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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Donald Christopher JOHNSON, Defendant and Appellant.

No. A041477.

Decided: May 19, 1989

Robert F. Kane, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen. Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Donald Christopher Johnson (appellant) appeals from a judgment of conviction entered after the jury found him guilty of attempted murder, robbery, assault with a deadly weapon and auto theft.


Shortly after midnight on October 18, 1987, John Morey (Morey) went to Eureka Federal Savings in Pacifica to withdraw $60 from an automated teller.   As he was returning to his van, which he left running, he was assaulted by two men who were later identified as Timothy Cardera and Jimmy Coe.   Morey, who had been a high school wrestler, a former Marine and was trained in “Taekwon Do” karate, subdued his attackers.   Coe and Cardera, while being held on the ground, yelled for help.   Appellant appeared and kicked Morey hard in the head with heavy work-boots;  Morey blacked out;  when he regained consciousness, he was lying on his back with appellant and Coe to his left, and Cardera sitting on him.   Cardera and appellant were stabbing him with their knives in the head, arms, and abdomen while Coe was hitting and kicking him.   The attack lasted for three to four minutes, and during this time appellant kept stabbing Morey while Cardera went through his pockets;  when his knife broke, Cardera gouged the victim's eyes with his thumbs.

For some unknown reason the attackers backed off and left.   Morey got up and noticed his money was gone;  his watch had been cut off and his van had been stolen.   Although severely wounded and bleeding, Morey managed to stagger to the bushes.   He was taken by ambulance to Seaton Medical Center where he was treated by Dr. Gualberto, a surgeon.   Morey was in critical condition when he arrived at the emergency room, having suffered multiple stab wounds in the head, forehead, face, shoulders, arm, elbow, and abdomen which required 125 to 150 stitches.   One stomach wound was four and one-half inches deep.

Appellant's defense was predicated on two principal theories—(1) denial of the assault, and (2) intoxication.   Testifying on their behalf, both appellant and Coe maintained that appellant did not have a knife and did not stab Morey.   Appellant insisted that he rushed to the scene to help Cardera and Coe;  that he pulled Cardera off of Morey, and that shortly thereafter he urged both of them to leave.   He admitted kicking the victim and taking his van but explained the kicking was unintentional, occurring during the scuffle and that he took the victim's van because he was scared.   Appellant also persisted that all the stabbings were done by Cardera and that it was Cardera who demanded and obtained the money from Morey.  (Cardera had pled guilty prior to trial so that only Coe and appellant were tried by jury.)   In addition, voluminous evidence was introduced at trial showing that appellant was drinking heavily the entire day preceding the incident and that he showed definite signs of intoxication.

Appellant's claim denying the commission of the violent acts was contradicted not only by the victim, but by additional physical and testimonial evidence as well.   Officer Hillman, who arrested appellant at a nearby gas station shortly after the incident, discovered blood on appellant's pant leg and also inside Morey's van.   When asked how he got the blood on his pants, appellant did not answer.   Debora Johnson, appellant's sister, testified that soon after the stabbing appellant telephoned her asking for a ride.   During the telephone conversation appellant told his sister that he and his friends did some stupid thing and that “he had just stabbed somebody.”   In answering his sister's questions, appellant replied he did not know whether the victim was dead or alive.

Appellant was charged with:  (a) attempted murder (Pen.Code,1 §§ 664/187;  count I);  (b) robbery (§ 211;  count II);  (c) assault with a deadly weapon (§ 245 subd. (a)(1);  count III);  and (d) auto theft (Veh.Code, § 10851;  count IV).   The information also alleged that in the commission of the counts I to III offenses appellant personally used a deadly weapon (a knife) within the meaning of section 12022, subdivision (b), and that he inflicted great bodily injury upon the victim within the meaning of section 12022.7.   The jury found appellant guilty as charged and further found the enhancements to be true.   He was sentenced to state prison for a total of eleven years (the middle term of seven years for attempted murder plus three years consecutive for inflicting great bodily injury upon the victim plus one year consecutive for using a deadly weapon [a knife] in the commission of the offenses).   Sentence on the remaining three counts was stayed.

On appeal appellant challenges both his conviction and sentencing.   He contends that the trial court committed prejudicial error:  (1) by failing to instruct sua sponte on the lesser included offense of attempted voluntary manslaughter, and (2) in admitting his prior auto theft conviction for impeachment purposes;  he further alleges prosecutorial misconduct and claims sentencing error in that the trial court failed to articulate reasons for imposing enhancements for both the great bodily injury and weapon use enhancements.

I. Failure to Instruct Sua Sponte on Attempted Voluntary Manslaughter Constitutes Prejudicial Error

Appellant's principal contention on appeal is that the trial court committed prejudicial error in failing to give a sua sponte instruction on attempted voluntary manslaughter.   In essence, appellant argues (1) that voluntary intoxication or an honest but unreasonable belief to defend oneself or others may negate the element of malice and may reduce murder to voluntary manslaughter (People v. Balderas (1985) 41 Cal.3d 144, 196, fn. 24, 222 Cal.Rptr. 184, 711 P.2d 480;  People v. Flannel (1979) 25 Cal.3d 668, 674, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Olea (1984) 160 Cal.App.3d 891, 896–897, 206 Cal.Rptr. 829;  People v. McKee (1968) 265 Cal.App.2d 53, 61, 71 Cal.Rptr. 26);  and (2) that where, as here, there is substantial evidence to support such a defense, the trial court has a sua sponte duty to instruct on such defense theory.  (People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913, overruled on other grounds in People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)   Appellant's point is well taken.

It is well settled that the mens rea of attempted murder is express malice (People v. Collie (1981) 30 Cal.3d 43, 61, 177 Cal.Rptr. 458, 634 P.2d 534) whereas the mental ingredient of attempted voluntary manslaughter is specific intent to kill without malice aforethought.  (People v. Tucciarone (1982) 137 Cal.App.3d 701, 705, 187 Cal.Rptr. 159;  People v. Heffington (1973) 32 Cal.App.3d 1, 11, 107 Cal.Rptr. 859.)   While the statute provides that express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature” (§ 188), case law makes it clear that killing with specific intent does not per se amount to malice.   As explained in People v. Spurlin (1984) 156 Cal.App.3d 119, 127, 202 Cal.Rptr. 663, “under California law, a person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect or incapacitation.  [Citation.]  ‘Mental incapacitation’ has been liberally construed to include such things as ‘voluntary intoxication’ [citation], an honest but unreasonable belief the defendant is in imminent peril of loss of life or serious injury․”  This same concept was further discussed in People v. Van Ronk (1985) 171 Cal.App.3d 818, 823, 217 Cal.Rptr. 581, where the court emphasized that the mere intent to kill is not equivalent to malicious killing and that just as malice elevates the killing to murder, mitigating factors (such as heat of passion, provocation, unreasonable but good faith belief in the necessity of self-defense, etc.) may reduce an intentional killing to manslaughter.   Significantly, the court emphasized that such principles apply equally to attempted killings:  “Where a person intends to kill another person and makes an unsuccessful attempt to do so, his intention may be accompanied by any of the aggravating or mitigating circumstances which can accompany the completed crimes.   In other words, the intent to kill may have been formed after premeditation or deliberation, it may have been formed upon a sudden explosion of violence, or it may have been brought about by a heat of passion or an unreasonable but good faith belief in the necessity of self-defense.   If the law acts out of forbearance for the weakness of human nature and mitigates an intentional killing where mitigating circumstances appear, then we can discern no plausible reason why the law should not also mitigate an intentional attempt to kill under similar circumstances.”  (Id., at p. 824, 217 Cal.Rptr. 581.)

Consistent therewith, it has been held that voluntary intoxication as well as an honest but unreasonable belief in the necessity of self-defense may refute malice aforethought and may prevent a murder conviction.  (People v. Balderas, supra, 41 Cal.3d at p. 196, fn. 24, 222 Cal.Rptr. 184, 711 P.2d 480;  People v. Olea, supra, 160 Cal.App.3d at pp. 896–897, 206 Cal.Rptr. 829.)   It is likewise settled that the jury must be instructed sua sponte on the manslaughter alternative of homicide if (1) the defendant is relying on such a defense;  (2) there is substantial evidence supportive thereof;  and (3) the defense is not inconsistent with the defendant's theory of the case.   (People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913;  accord People v. Flannel, supra, 25 Cal.3d at p. 682, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Sanchez (1982) 131 Cal.App.3d 718, 735, 182 Cal.Rptr. 671.)

When viewed in light of these principles, it becomes obvious that in the present case the trial court erred in failing to give a jury instruction to the effect that appellant's intoxication may constitute a defense to the attempted murder charge.   While the trial court did properly advise the jury that the necessary elements of attempted murder are malice aforethought and specific intent to kill and that in determining the existence of specific intent the jury may consider appellant's state of intoxication, the trial court failed to further explain that appellant's intoxication may negate malice aforethought and reduce the attempted murder charge to attempted voluntary manslaughter. On the contrary, in instructing on the elements of attempted murder the court mistakenly imparted to the jury that a specific intent to kill also proves the existence of express malice; 2  it thereby precluded the jury from considering whether due to appellant's voluntary intoxication the attempted murder should be reduced to attempted voluntary manslaughter.

 Even though appellant did not request an instruction on voluntary intoxication as a defense to the attempted murder charge, we entertain no doubt that under Sedeno the trial court herein was duty bound to instruct sua sponte on such defense.   The record is clear that appellant relied on the defense of intoxication, and he produced substantial evidence that he had been drinking the entire day and was intoxicated at the time of the commission of the crimes.   Furthermore, his defense of intoxication was not inconsistent with his alternative theory that he did not assault the victim.

Appellant's evidence shows that he and Coe began consuming alcoholic beverages in the morning of April 17th.   While fixing a truck, they drank a 12–pack of beer, followed by another 6–pack and a pint of tequila before going to a bar to shoot pool.   On the way to the bar they bought and consumed another 6–pack.   Thereafter, they went to a bar called Winters where each drank double shots of tequila.   Next, they dropped by Los Amigos, another bar, where they consumed additional beers.   They continued to drink beers and five double shots of tequila at the Seahorse, yet another bar.   Therefrom the jury could conclude that by the time of the incident appellant had drunk some 18 beers plus 20 ounces of tequila.

Furthermore, ample evidence was introduced to support the conclusion that appellant actually became intoxicated.   During the entire day preceding the incident he consumed no food at all, only alcoholic beverages.   When questioned by counsel, appellant testified that he was feeling the effects of alcohol and felt drunk.   Appellant's testimony was corroborated by codefendant Coe as well as by other witnesses.   Coe testified that by the time they got to the Seahorse, both he and appellant were pretty loaded and staggering.   Officer Hillman, who arrested appellant for being drunk in public, confirmed that appellant appeared to be drunk, was swaying and leaning against a camper and his eyes were bloodshot.   Finally, Debora Johnson, appellant's sister, reaffirmed that during the telephone conversation following the incident appellant showed definite signs of intoxication:  his speech was slow and slurred, it was difficult to understand him, he was not responsive to the questions, and he created the overall impression that he was under the influence of alcohol.3

Nevertheless, respondent argues that the trial court did not err in failing to give sua sponte voluntary intoxication defense instructions because:  (a) intoxication as a defense to homicide is part and parcel of diminished capacity which was abolished by Proposition 8;  (b) the instruction given by the trial court was sufficient because under section 188 express malice is established where intent to kill has been proven;  and (c) sua sponte instruction here was not required because appellant did not rely on the defense of intoxication but rather chose to deny the commission of the offenses altogether.   None of these contentions has merit.

 While diminished capacity indeed has been abolished and cannot serve as a defense to murder (§§ 25, 28 subd. (b)) it is well established that evidence of mental impairment caused by mental disease, mental defect, mental disorder or voluntary intoxication may be introduced to prove that the defendant in fact did not form the requisite mental element of the crime (such as specific intent, malice, premeditation, etc.).  (§§ 22, 28.) 4  Case law teaches that the meaning of the cited statutory language is that “evidence of mental problems is inadmissible to show that a defendant lacked the capacity to form the requisite mental state, but is admissible to show that the defendant actually lacked the requisite mental state.”  (People v. Molina (1988) 202 Cal.App.3d 1168, 1173, 249 Cal.Rptr. 273, original emphasis.)   Or as stated in People v. Olea, supra, 160 Cal.App.3d 891, 206 Cal.Rptr. 829, a case involving voluntary intoxication, “while it is no longer possible for a defendant to assert or prove he was unable to form various mental states or to control his conduct on account of intoxication, that is to say, that he lacked the capacity to do so, it is yet the case the fact of his intoxication may be presented in evidence and considered by the trier of fact on the issue whether he actually formed one or more of the mental states referred to, such that a necessary element of a given crime might not be shown to exist.   Stated another way, what emerges from the revisions is that the fact of intoxication in a criminal proceeding now pertains not to what a defendant could have done concerning the formation of a requisite mental state, but only to what he actually did with respect thereto.”  (At pp. 896–897, 206 Cal.Rptr. 829, 3d and 4th emphasis added.)

It is clear from the above discussion that despite the abolishment of diminished capacity appellant's voluntary intoxication was admissible to prove that he did not, in fact, entertain malice at the time of the commission of the homicide and that the court was under a duty to so advise the jury.

 Respondent's next contention that an intentional unlawful killing per se amounts to malice under section 188, is likewise meritless.   Section 188 defines express malice as “a deliberate intention” to unlawfully kill a human being.   The consumption of alcohol resulting in intoxication may preclude one from forming a deliberate intention to kill.   An instruction that fails to inform the jury about such defense to an essential element of the crime is inherently defective and misleading.  (See People v. Spurlin, supra, 156 Cal.App.3d at p. 127, 202 Cal.Rptr. 663;  People v. Van Ronk, supra, 171 Cal.App.3d at pp. 823–824, 217 Cal.Rptr. 581;  People v. Molina, supra, 202 Cal.App.3d at p. 1173, 249 Cal.Rptr. 273.)

 Respondent's final argument that in the instant case no sua sponte instruction was required because appellant's defense was predicated upon nonparticipation rather than intoxication, also fails.   First of all, extensive evidence was introduced by both parties that at the time of the incident appellant was heavily intoxicated.  (See discussion, supra.)   Also, while the primary thrust of appellant's defense was a denial of the commission of the crimes, trial counsel argued to the jury that appellant did not (and could not) commit the offenses charged because he was too drunk to do so due to this intoxication.5  The prosecution recognized the dual nature of appellant's defense, and its closing argument forcefully called the jury's attention to the inconsistency in appellant's position:  “They don't expect you to believe what they had to say and why do I say that?   Because I believe there are two defenses, not one.   We didn't do it, but if you think we did it, then we were too drunk to do it or to know what we are doing.  [¶] They expect you to believe the victim because they had to come up with two defenses, inconsistent, but just in case.”  (Emphasis added.)   Finally, the attempted voluntary manslaughter was not only a defense raised by appellant, but also a lesser included offense of the attempted murder, the criminal act charged.   It is black letter law that, regardless of the defendant's reliance on such theory, the trial court as a matter of fundamental fairness must instruct sua sponte on lesser included offenses where, as here, the evidence raises a question as to whether all of the elements of the charged offense are present.  (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Geiger (1984) 35 Cal.3d 510, 518, 199 Cal.Rptr. 45, 674 P.2d 1303.)

 Such analysis compels the conclusion that the trial court committed error in failing to instruct sua sponte on voluntary intoxication as a defense to the charge of attempted murder.   Since the court's failure to so instruct deprived appellant of his constitutional rights to have the jury determine every material issue presented by the evidence, the error must be held to be prejudicial.  (People v. Sedeno, supra, 10 Cal.3d at p. 720, 112 Cal.Rptr. 1, 518 P.2d 913.)6


V. Disposition

The conviction for attempted murder is reduced to attempted voluntary manslaughter (People v. Bridgehouse (1956) 47 Cal.2d 406, 414, 303 P.2d 1018) unless the People elect to retry the attempted murder charge within 30 days after the remittitur is issued;  in all other respects the judgment of conviction is affirmed.   The case is remanded for retrial and/or sentencing consistent with this opinion.


FN1. Unless otherwise indicated, all statutory references are to the Penal Code..  FN1. Unless otherwise indicated, all statutory references are to the Penal Code.

2.   The instruction given to the jury read as follows:  “Defendants are charged in count I of the information with the commission of the crime of attempt to commit murder, in violation of sections 664 and 187 of the Penal Code.  [¶] Murder is the unlawful killing of a human being with malice aforethought.  [¶] Any person who attempts to murder another human being is guilty of a violation of sections 664 and 187 of the Penal Code.  [¶] In order to prove the commission of attempted murder, each of the following elements must be proved:  [¶] One, that a direct but ineffectual act was done by one person towards killing another human being;  and [¶] Two, that the person committing such act harbored express [ ] malice aforethought, namely, a specific intent to kill unlawfully another human being.”  (Emphasis added.)

3.   The record reads as follows:  “Q [counsel for defendant Coe] Ms. Johnson, you are familiar with your brother's voice?  [¶] A Yes, I am.  [¶] Q Okay.   And have you ever noticed in the past a change in his voice when he has been drinking?  [¶] A Yes, he becomes very slurred, slowed.   His—sometimes you can't really understand him at all.  [¶] Q When he called you that night, did you have difficulty understanding him?  [¶] A Yes, I did.   [¶] I asked him several times where he was at and I still don't know where he was at.  [¶] Q Was he responsive to your questions?  [¶] A Not really, no.   It was—I had to ask him two or three times before I did get an answer out of him.   That's how I know that he had been drinking․  [¶] Q Okay.   Were his answers to the police officer that you heard slurred like when he had talked to you on the phone?  [¶] A Yes.  [¶] Q Was it your impression in talking to him that you mean that he was under the influence of alcohol?  [¶] A Yes, very much so.”

4.   Section 22 provides in part:  “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.   Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act.  [¶] (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”  (Emphasis added.)Subdivision (a) of section 28 states:  “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.   Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”  (Emphasis added.)

5.   “Now, you have all seen movies and you have all seen highway patrol ads and how they do the test for field sobriety.   Somebody standing on one foot.   That would be quite a feat for somebody who had as much alcohol as Mr. Johnson said he did.  [¶] He was arrested for being drunk in public, so the police said he had been drinking.   He would have had to be very remarkedly retained his balance to kick Mr. Morey in the head with these boots very heavy, as you can see, metal, steel toes․  [¶] You will be instructed by the jury—judge later on that there is an alternate count to auto theft and it's tricky because it's basically—says temporarily deprive the lesser included and you will have to consider whether or not Mr. Johnson had the intent when he took the car and went three blocks away to make a phone call to permanently deprive Mr. Morey of his van, which is permanent or just temporary.  [¶] Now, you all heard how much Mr. Johnson had to drink.   The district attorney went and calculated it for you and it was quite a large amount of alcohol.  [¶] And you'd have to take into effect how much that alcohol would influence Mr. Johnson's ability to be coordinated, to do the things that Mr. Morey attributes to him․  [¶] When you go back into the jury room, consider this:  Consider Mr. Johnson and you are going to have to decide whether he was [a] drunken good Samaritan who tried to stop something or whether he was actively involved.”

6.   In light of our conclusion we do not address the additional instructional errors cited by appellant.

FOOTNOTE.   See footnote *, ante.

ANDERSON, Presiding Justice.

CHANNELL and PERLEY, JJ., concur.

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