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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JESHUA ISREAL FIGUEROA, Defendant and Appellant.


Decided: February 24, 2011

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.


A jury convicted Jesua Figueroa of attempted voluntary manslaughter (Pen.Code, § 664/192, subd. (a)) 1 and assault with a deadly weapon (§ 245, subd. (a)(1)).   It further found that Figueroa personally used a deadly weapon during the commission of the attempted manslaughter (§ 12022, subd. (b)(1)), and inflicted great bodily injury during the commission of both offenses (§ 12022.7, subd. (a)).  The trial court sentenced Figueroa to an aggregate term of seven years in state prison.   We affirm.


Figueroa and Roger Swafford, the victim, were “sort of” friends.   On the morning of October 18, 2006, Figueroa and Swafford and two other males drove a Jeep into Azusa Canyon, where they began drinking beer and tequila.   By early afternoon, Figueroa had become drunk, and Swafford suggested that Figueroa was “through” and needed to stop drinking.   Figueroa did not react well to Swafford's suggestion;  he pulled out a knife and started stabbing Swafford repeatedly.   By the time one of the others intervened, Figueroa had stabbed Swafford more than a dozen times.   At about the same time, a forest service patrolman noticed the men at the Jeep, and stopped to check things out.   The patrolman saw blood on Figueroa's clothing, and saw Swafford, bloody and still bleeding, lying in the Jeep unconscious.   The patrolman decided he should “[g]et the crap out of there,” and got back into his vehicle to leave.   As he was leaving, the patrolman told the group to get out of the canyon, and then called in a report to the station.

Shortly thereafter, a Los Angeles County Deputy Sheriff stopped the Jeep. Figueroa was sitting in a rear seat.   He appeared “somewhat intoxicated,” and was “covered in blood.”   He had two lacerations on his index finger.   Paramedics responded to the scene, and air-lifted Swafford to a local hospital.

In November 2008, the People filed an information charging Figueroa with one count of attempted murder (§ 664/187, subd. (a)), with an allegation that he used a deadly weapon, a knife, in the commission of the offense (§ 12022, subd. (b)(1)), and one count of assault with a deadly weapon (§ 245, subd. (a)(1)).   As to both counts, the information alleged that Figueroa had personally inflicted great bodily injury (GBI) during the commission of the offenses. (§ 12022.7, subd. (a).)

Before trial, Figueroa exercised his right to represent himself.   During a discovery hearing one month later, the trial court declared a doubt as to Figueroa's competency to represent himself, and to stand trial.   He re-appointed the public defender's office to represent Figueroa.   On June 4, 2009, the trial court conducted a hearing on Figueroa's competency.   The parties agreed that the issue would be decided based on reports submitted by three psychiatrists.   At the conclusion of the hearing, the court found Figueroa competent to stand trial.

The charges against Figueroa were tried to a jury in July 2009, at which time the People presented evidence establishing the facts summarized above.   Figueroa testified on his own behalf.   According to Figueroa, a fight began after Swafford's companions made statements to the effect that they were going to “kick [his] ass” and “kill” him.   Figueroa acknowledged that he had “punched” Swafford.   As for Swafford being stabbed, Figueroa testified he did not remember the actual stabbing itself.   He testified:  “I guess I was drunk and I just blacked out or something, you know.”   Figueroa testified that it was not his “custom and habit” to carry a knife because his “mental health doctor” had told him that he could not have any weapons.

The prosecution called Detective Chaffey Shepherd in rebuttal, who testified about an interview with Figueroa.   Detective Shepherd testified that Figueroa first said he had been in a fight with Swafford and did not recall how he was cut.   Figueroa later said that someone else stabbed Swafford, not him.   Finally, Figueroa began to cry, and said he was afraid he would not see his brother again.   Figueroa told the detective that Swafford began swinging a knife at him but dropped it.   Figueroa told Detective Shepherd he picked it up and began swinging it at Swafford.

On July 29, 2009, the jury returned a series of verdicts.   It found Figueroa not guilty of attempted murder but guilty of the lesser offense of attempted voluntary manslaughter, with a finding that he had used a deadly weapon.   Figueroa was also found guilty of assault with a deadly weapon.   As to both offenses, the jury found that Figueroa had personally inflicted GBI.


I. Competency to Stand Trial

Figueroa contends both of his convictions must be reversed because the trial court erred in finding him competent to stand trial.   We find no error.

A. The Governing Law

While the due process clauses of the state and federal constitutions prohibit the prosecution of an incompetent defendant (People v. Lewis (2008) 43 Cal.4th 415, 524), competence is presumed unless proven otherwise by a preponderance of the evidence (§ 1369, subd. (f);  and see generally People v. Lawley (2002) 27 Cal.4th 102, 131).   A defendant is incompetent when, as a result of mental disorder or developmental disability, he or she in unable to understand the nature of the criminal proceedings to assist counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a).)  Competence is a question of fact, and, as such, a reviewing court will not disturb a trial court's finding that a defendant is competent where the record discloses substantial evidence supporting the finding.  (People v. Castro (2000) 78 Cal.App.4th 1402, 1418.)

B. The Competency Hearing

As noted above, three psychiatrists submitted reports on the issue of Figueroa's competency:  Kausal Sharma, M.D.;   Ronald Markman, M.D., Ph.D.;   and Gordon Plotkin, M.D., J.D. After reviewing the reports and listening to the arguments of counsel, the trial court found Figueroa competent for the following stated reasons:

“There seems to be a common element throughout all reports in terms of opinion.  [¶] For the most part, Dr. Sharma is unequivocal in his opinion that based upon his knowledge of the defendant's history as well as interview that he is malingering and certainly is fainting [sic ] a condition [and] that Mr. Figueroa's competent to stand trial.  [¶] Dr. Markman, on the other hand, it's his opinion that the defendant is ․ incompetent to stand trial, but he does note ․ ‘fully ․ rule out an attempt on Mr. Figueroa's part to faint [sic ] or exaggerate a psychiatric condition.’   But based upon totality of circumstances, he feels it's unlikely that [Figueroa] is fainting [sic ] or malingering, so [he is] incompetent.  [¶] Dr. Plotkin also finally opines that the defendant is incompetent.   But again he is somewhat equivocal in that opinion.   He notes that it is possible that there is an underlying medical illness but that the defendant is somewhat embellishing versus completely malingering an illness, so he feels that the defendant may be embellishing or perhaps malingering.   But out of an abundance of caution, I get the impression from his report that he feels incompetency is the correct opinion.   The common denominator throughout these reports is there is some feeling on the part of all three physicians that the defendant could have perhaps be malingering, some more definitely convinced that others.  [¶] The court notes that there is a case that even in the event the defendant has a mental illness, it does not mean, by itself, that he's unable to understand the proceedings or assist in his own defense.   The court has reviewed the record as well [and notes] at least at one point Mr. Figueroa was representing himself and filled out a Faretta [ 2] waiver and claimed under penalty of perjury that he understood the nature of the proceedings and so forth, but I'm not going to base my decision on that.   I think the medical opinion is sufficient.   And given that there is questionable opinions as to whether or not Mr. Figueroa is malingering or not and one definite opinion that he is, in fact, malingering, I think the weight of the evidence falls on the side of competency and I will find Mr. Figueroa is competent to stand trial.”

C. Analysis

Substantial evidence supports the trial court's competency finding, and Figueroa's arguments on appeal, fairly summarized, essentially invite us to render our own contrary finding based on our own review of the evidence.   We decline his invitation.   In short, we reject Figueroa's contention that the trial court's finding was “contrary to the opinions of the psychiatric professionals.”   One of the psychiatrists, Dr. Sharma, expressly found that Figueroa was competent, and the other two psychiatrists, although favoring a conclusion that Figueroa was incompetent, acknowledged the possibility that he was malingering and feigning incompetence.   The trial court is not compelled to make a determination about competency simply by reference to the majority vote.   We recognize that a different trier of fact could have reached a different competency finding than did the trial court, but that is not the test we apply on appeal.   Substantial evidence amply supports the trial court's finding, and that marks the beginning and the end of Figueroa's argument on appeal.

II. Instructional Error:  Lesser Offense

Figueroa contends his conviction for attempted voluntary manslaughter must be reversed because the trial court did not instruct the jury sua sponte on the lesser offense of attempted involuntary manslaughter.   We disagree.

We reject Figueroa's argument that instructions on the lesser offense of attempted involuntary manslaughter were required because California law does not recognize such a crime.   As the Court of Appeal explained in People v. Broussard (1977) 76 Cal.App.3d 193, the crime of involuntary manslaughter involves an unintentional killing of another, whereas an attempted crime requires the specific intent to commit a target crime, and it is not possible for a person to intentionally commit an unintentional killing.  (Id. at p. 197.)   This reasoning continues to be valid today.  (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [“If there were such a crime, it would necessarily be based on the internally contradictory premise that one can intend to commit an unintentional killing.   Since the essential premise posits a manifest impossibility, there is no such crime as attempted involuntary manslaughter.”];   and see also People v. Villanueva (2008) 169 Cal.App.4th 41, 54, fn. 12.)

The cases cited by Figueroa discuss involuntary manslaughter as a lesser offense of voluntary manslaughter, and are not applicable in the context of an attempted crime.   In the context of attempted manslaughter, Figueroa either intended to kill, or he did not, in which case he would not have been found guilty of attempted manslaughter.

III. Instructional Error:  Defenses

Figueroa contends both of his convictions must be reversed because the trial court denied his request to instruct the jury on the defenses of “unconsciousness” (CALCRIM No. 3425) and “involuntary intoxication” (CALCRIM No. 3427).   We are not persuaded to reverse.

“ ‘ “[A] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.”  ‘ “ (People v. Manriquez (2005) 37 Cal.4th 547, 581, italics omitted.)  “ ‘ “[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]  The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.”  [Citation.]’  “ (People v. Breverman (1998) 19 Cal.4th 142, 154.)   The trial court has a duty to instruct, sua sponte, on defenses that are supported by substantial evidence and are “not inconsistent with the defendant's theory of the case.”  (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)

Involuntary intoxication

There was no error in the trial court's refusal to instruct on involuntary intoxication.   Simply put, there was no evidence to support the instruction because the evidence, both from the prosecution and the defense, established that Figueroa had been voluntarily drinking on the day of the stabbing.   Figueroa's argument that he had only been voluntarily drinking beer, and that his companions may have put tequila in his beer without his knowledge, meaning he was “involuntarily” drinking a combination of beer and tequila, is not persuasive.   The evidence showed without dispute that Figueroa voluntarily imbibed what he knew was an intoxicating liquid, regardless of whether or not it was beer or a combination of beer and tequila.   Further, he offers no legal authority to support his proposition that he was entitled to an involuntary intoxication instruction on the theory he drank a combination of beer and tequila, thinking it was only beer.   We have been cited to no case requiring an involuntary intoxication instruction when a defendant says, that he or she didn't know the drinks were that strong.


Figueroa also contends the trial court erred in failing to instruct on unconsciousness.   We disagree.   It may be correct that an alcohol-induced “blackout” can constitute a type of “unconsciousness.” (see, e.g., People v. Cox (1944) 67 Cal.App.2d 166, 172.)   However, we find that the trial court's decision to reject an instruction on the defense of unconsciousness was appropriate and, in any event, did not amount to prejudicial error.

First, there was not substantial evidence to support such an instruction on unconsciousness.   Even viewing the evidence most favorably to Figueroa, he did not testify that he was unconscious or that he had no memory of the events.   In fact, Figueroa's detailed testimony regarding his actions leading up to the stabbing, along with his selective testimony regarding the altercation itself, tended to negate any inference of unconsciousness.   Figueroa testified, for example, quite specifically regarding going to the canyon in a white jeep, what he drank, and about Swafford's friends' statements and conduct prior to the stabbing.   He testified that Swafford's friends said they were going to kill him or “kick [his] ass.”   He remembered he and Swafford then began fighting.   He testified he remembered being contacted by a police officer right after the stabbing and that he had blood on his clothing and was taken to the hospital.   So, the only alleged “blackout” he suffered was when he was stabbing the victim.   Figueroa introduced no expert testimony regarding unconsciousness.   Defendant's own testimony that he could not remember particular details regarding the crime, standing alone, was insufficient to warrant an unconsciousness instruction.  (People v. Rogers (2006) 39 Cal.4th 826, 888.)   Because substantial evidence did not support an unconsciousness instruction, the trial court did not err by failing to instruct on it.

In addition, the omission of an instruction is harmless beyond a reasonable doubt where the circumstances show that “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.   In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context․’  “ (People v. Wright (2006) 40 Cal.4th 81, 98, quoting People v. Sedeno (1974) 10 Cal.3d 703, 721.)

Figueroa's claim about his mental state was explored at trial, and the trial court instructed the jury that it could consider evidence of Figueroa's intoxication in deciding whether he had an intent to kill at the time of the stabbing.   His trial counsel argued that, in the event the jurors rejected his claims of self-defense or imperfect self-defense, they should find he never harbored an intent to kill because the evidence showed there was no intent due to intoxication.   The jury heard Figueroa's inconsistent statements about what happened on the day of the stabbing.   An instruction on unconsciousness based upon voluntary intoxication would have presented the jury with another form of the very question it resolved against defendant, i.e., intent to kill.   Omission of the instruction was harmless.   We find the jury would not have acquitted Figueroa of attempted voluntary manslaughter had it only heard an instruction on unconsciousness.


The judgment is affirmed.


We concur:




FN1. All further references are to the Penal Code..  FN1. All further references are to the Penal Code.

FN2. Faretta v. California (1975) 422 U.S. 806..  FN2. Faretta v. California (1975) 422 U.S. 806.

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