Opinion
C081997
11-03-2017
THE PEOPLE, Plaintiff and Respondent, v. KHIEM THUONG TRAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F06635)
A jury found defendant Khiem Thuong Tran guilty of second degree murder. On appeal, he contends the trial court erred in instructing the jury on voluntary intoxication. He also challenges as unconstitutional Penal Code section 29.4, which limits the ways voluntary intoxication may mitigate an offense. He argues section 29.4 denied him due process of law, equal protection, and his right to present a defense. We disagree and affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant killed his wife by stabbing her eight times. That night, defendant and his wife went to a party. Shortly before they left the party, defendant was holding a beer bottle. Someone asked him to finish it. Defendant replied that he had already had seven beers. His wife drove them home.
Defendant and his wife lived with defendant's parents. Defendant's father had gone to bed around 10:00 p.m. He woke to hear defendant and his wife arguing and yelling, though he could not make out what they were saying. He was not concerned though: they would argue every month or so.
When defendant's parents heard defendant's son crying, they went into the master bedroom. There, they found the wife lying on the ground. Defendant's father called 911. As he did, he saw defendant crawling down the hallway; defendant was also trying to call 911.
Defendant's wife died from multiple stab wounds. She had two stab wounds on her chest and six on her upper back. She also had minor cuts on her right hand, which were consistent with defensive wounds.
Defendant also had a number of stab wounds. He had a cluster of five or six superficial stab wounds near his left nipple and another cluster of superficial wounds, near the middle of his chest. That cluster, however, had a "rather large, very gaping wound," that went "a little bit into the chest cavity." The gaping wound was very different from the other wounds.
An expert for the defense opined defendant's wounds were inflicted at separate times and by different mechanisms. The tightly clustered wounds could be due to self-infliction. But the gaping wound implied the defendant moved, and "usually you see movement when one is stabbed," as opposed to self-inflicted.
Defendant's blood was collected at 12:04 a.m., and his blood-alcohol concentration ranged from 0.128 to 0.175 percent.
After the murder, defendant spoke with a detective and made numerous inculpatory statements, which were played for the jury: "we got home — we both laughing and we both have fun and I don't know what happened after that. I was so stupid why? . . .There's something wrong in my head?" "I think — I did it — I did everything so you don't ask any more please sir — I (unintelligible) I don't know the only thing is I remember — is I shouldn't do it." "I killed my wife — I don't know what else I can tell you."
When asked how he had received the stab wounds, he said: "I think she did me once — I did my twice — I don't know — I don't remember." The detective tried to clarify: "Okay so you think she stabbed you once and then you stabbed yourself twice is that what you're sayin'?" Defendant said: "Yeah I think so — I don't remember how many I did . . . ." Asked why he would stab himself, defendant said: "If she die I want to die with her."
At trial, the court instructed the jury (with both parties' assent) using CALCRIM No. 625: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. . . . [¶] You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation."
The prosecution proceeded on a first degree murder theory. The jury ultimately found defendant not guilty of first degree murder, but guilty of second degree murder.
DISCUSSION
I
Instructing on CALCRIM No. 625
On appeal, defendant challenges the trial court's instruction (using CALCRIM No. 625) that the jury "may" consider evidence of involuntary intoxication in determining whether defendant had the requisite mental state. He argues this instruction lowered the prosecution's burden of proof and denied him his right to present a defense. He reasons, the word "may" suggested to the jury that it could choose to ignore his intoxication. He concludes, had the jury been instructed that it "must" consider defendant's intoxication, it may have reached a different verdict. Defendant is mistaken.
The challenged instruction is unambiguous: it informs the jury that it "may consider" voluntary intoxication "only in a limited way." The instruction then proceeds to explain the limited way a jury "may consider" voluntary intoxication. Defendant's reading runs counter to that plain meaning as well as another instruction given (CALCRIM No. 103) that the jury, "must impartially compare and consider all the evidence that was received throughout the entire trial." Defendant's reading is therefore unpersuasive. (See People v. Avena (1996) 13 Cal.4th 394, 417 [we do not concern ourselves with whether a meaning can be "teased out" of instruction]; People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions."].)
And even assuming arguendo defendant's reading is correct, he could not establish prejudice. For one, in all probability his intoxication led the jury to find him not guilty of first degree murder. (See § 29.4, subd. (b) [on a murder charge, voluntary intoxication is admissible on the issue of whether the defendant premeditated, deliberated, or harbored express malice aforethought].) For another, voluntary intoxication can negate express malice, not implied malice. (Ibid.) This presents an all but insurmountable hurdle where the underlying act, from which the inference was drawn, involves stabbing the victim eight times. (See People v. Elmore (2014) 59 Cal.4th 121, 133 ["Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger"].)
II
Challenge to Penal Code Section 29.4
Defendant next challenges section 29.4 as unconstitutional, both facially and as applied. When a defendant is charged with murder, section 29.4 permits evidence of voluntary intoxication in consideration of "whether the defendant premeditated, deliberated, or harbored express malice aforethought." (§ 29.4, subd. (b).) It does not permit evidence of voluntary intoxication in consideration of whether a defendant acted with implied malice. (People v. Timms (2007) 151 Cal.App.4th 1292, 1300 (Timms).)
Defendant argues section 29.4 denied him due process of law, equal protection, and the right to present a defense. He maintains that excepting implied malice from consideration of voluntary intoxication is patently arbitrary. We disagree.
As defendant concedes, identical challenges to section 29.4 (formerly § 22) have been rejected. (See, e.g., Timms, supra, 151 Cal.App.4th at p. 1302 [rejecting argument that section 22 irrationally allows first degree murderers to reduce their convictions through voluntary intoxication but not second degree murders, the court explained, "[t]here is no such creature as a first degree murderer prior to conviction"]; People v. Martin (2000) 78 Cal.App.4th 1107, 1117 [finding nothing in section 22 "deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime"]; People v. Carlson (2011) 200 Cal.App.4th 695, 707-708 [rejecting both a due process and equal protection challenge to section 22].)
On January 1, 2013, section 22 was renumbered section 29.4. (Stats. 2012, ch. 162, § 119.)
Defendant, nevertheless, maintains those cases were wrongly decided. He, however, bases that conclusion on the threadbare assertion that section 29.4's selective limitation is arbitrary. We cannot agree. To the contrary, as expressed in those cases, such a scheme rests on a solid policy foundation. (See, e.g., Timms, supra, 151 Cal.App.4th at p. 1302 ["by withholding voluntary intoxication as a defense to implied malice murder, the Legislature bolstered the deterrent effect of section 22 by underscoring the long-standing principle in California law that voluntary intoxication is no excuse for crime"].)
Indeed, as articulated over 150 years ago: " 'It will, moreover, occur to every mind that such a principle [(drunkenness voluntarily brought on is no excuse for crime)] is absolutely necessary to the protection of life. In the forum of conscience, there is no doubt considerable difference between a murder deliberately planned and executed by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct. But there is, in truth, no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow-men, and to society, to say nothing of more solemn obligations, to preserve, so far as lies in his power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable. But if, by a voluntary act, he temporarily casts off the restraints of reason and conscience, no wrong is done him if he is considered answerable for any injury which, in that state, he may do to others or to society.' " (See People v. Alexander (1960) 182 Cal.App.2d 281, 291-292 superseded by statute on other grounds as stated in People v. Sexton (1995) 33 Cal.App.4th 64, 70; quoting Denio, J., in People v. Rogers (1858) 18 N.Y. 9.)
Defendant's challenge to section 29.4 accordingly fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Duarte, J.