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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel LOPEZ, Defendant and Appellant. IN RE: Daniel LOPEZ on Habeas Corpus.

G001009, G004362.

Decided: December 30, 1986

Dan Mrotek, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Holly D. Wilkens, Deputy Attys. Gen., for plaintiff and respondent.


A jury convicted Daniel Lopez of second degree murder with use of a knife.   He was seventeen years old when the offense was committed, but after a diagnostic study the court determined he was not amenable to treatment as a juvenile and sentenced him to prison.   He both appeals and seeks relief by means of habeas corpus based on a claim of ineffective assistance of counsel.   We have heard oral argument in both matters and have now consolidated them on our own motion.   The appeal, as amplified by the briefs filed in the writ proceeding, has merit with respect to an instructional error;  and reversal is required.   The writ petition is denied as moot.


Lopez and others were drinking beer and smoking marijuana perhaps laced with phencyclidine at the house of a friend on June 6, 1982.   In the late afternoon Ronald Lucero stopped by on his bicycle while on an errand for his sister.   Lucero, nineteen years old, was barely five feet tall and weighed less than 100 pounds;  he was mentally retarded.   One member of the drinking group, Arthur Garcia, accused Lucero of belonging to a rival gang.   Lucero denied the accusation, but Garcia struck him in the face.   Another individual suggested Lucero leave before he got “jumped.”   Lucero responded that he could not leave yet because one of their friends had taken his bicycle.

Shortly thereafter, however, Lucero and Lopez walked toward a commercial area.   Lopez, who planned to purchase cigarettes, wore a sheathed knife on his belt.   Garcia followed, apparently intending to fight Lucero.   When he caught up with the other two, they were conversing in normal tones but Lopez held the knife in his hand.   Garcia turned his back for a moment, and suddenly Lucero was screaming.   Garcia pulled Lopez away, and they returned to their friend's house where, according to several witnesses, Lopez admitted he “sliced” the victim.   Lucero, mortally wounded, staggered into a nearby bar and died;  the knife had penetrated one and one-half inches into his heart.

At trial the Lopez' counsel conceded he killed the victim, but sought to obtain a verdict of manslaughter rather than murder, claiming his acts were the product of the ingestion of alcohol and drugs, rather than intent and malice.   There was no other defense.

Lopez testified he consumed vast quantities of beer and smoked marijuana, perhaps laced with phencyclidine, before the killing.   While he could remember events before and after the crime, he could not recall the stabbing itself.   He was scared afterward, however, and turned himself in several days later.

A clinical psychologist, Dr. David Pierce, testified for the defense.   An expert on the effects of phencyclidine, Pierce examined the defendant, read various reports concerning the crime, and interviewed a number of individuals with knowledge of the case and the defendant.   He concluded Lopez' physical condition and actions were consistent with those of a person affected by its use.   He stated, “[N]o other drug of which I'm aware so frequently causes inexplicable violent behavior․”   It is common for users to retain no memory after the violence has subsided of what occurred.   He described the early clinical usage of the drug as follows:  “It became commonly available for—as an anesthetic for humans in the 1950's, and it was a superior anesthetic.”   He noted persons who appeared to be awake during surgery would actually be unconscious, although they sometimes became comatose.   Patients also had to be placed in restraints because they would frequently burst out in uncontrolled violence.


Lopez, as noted, had but one defense:  He did not premeditate the killing and did not harbor malice aforethought.   The jury could have found that to be the case under either of two scenarios reasonably suggested by the evidence.   The jury could have believed the killing was a product of the voluntary consumption of alcohol or drugs, or a combination of the two, and not malice;  or it might have found Lopez was in an unconscious state of the sort described by the defense doctor.

Unfortunately, neither counsel nor the court appears to have noticed the distinction between these two related, but importantly different, possibilities.   As a result both sides requested, and the court gave, two appropriate instructions on the general subject.   One instruction related to the possibility that Lopez did not act out of malice but as a result of voluntary intoxication;  the other warned that he was not relieved of criminal culpability even if he was unconscious when the killing occurred.   The difficulty is this:  While both instructions are accurate statements of the law, when read together we believe it is more probable than not that a jury would understand them to mean one theory had swallowed up the other, i.e., that intoxication short of unconsciousness was insufficient to negate the element of malice.   That, of course, is not the law.  (People v. Ray (1975) 14 Cal.3d 20, 28, 120 Cal.Rptr. 377, 533 P.2d 1017.)

CALJIC No. 4.21, relates to the first possibility, i.e., that Lopez' actions were a product of voluntary intoxication rather than malice.   It provides, “In the crime of murder in the first degree, a necessary element is the existence in the mind of the defendant of the specific intent to kill, accompanied by premeditation and deliberation.  [¶] In the lesser included offense of voluntary manslaughter, a necessary element is the existence in the mind of the defendant of the specific intent to kill.  [¶] In the crime of murder (in the first and second degree), a necessary element is the existence in the mind of the defendant of the mental state of malice aforethought.  [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent or mental state.  [¶] If from all the evidence you have a reasonable doubt whether defendant formed such specific intent or mental state, you must give the defendant the benefit of that doubt and find that he did not have such specific intent or mental state.”

The second instruction, CALJIC No. 8.47, explains that a defendant is not relieved entirely of the consequences of his act, even if it occurs during a period of unconsciousness induced by voluntary intoxication;  the killing is involuntary manslaughter nonetheless.   In other words either instruction can lead to a finding of involuntary manslaughter;  but they proceed from different directions, one from the defendant's point of view, the other from the prosecution's.   CALJIC No. 8.47 provides, “If you find that the defendant killed while unconscious as a result of voluntary intoxication and was therefore unable to form a specific intent to kill or harbor malice aforethought, his killing is involuntary manslaughter.  [¶] When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts inherently dangerous to human life or safety.   Under such circumstances, the law implies criminal negligence.”

The jury was also instructed in terms of CALJIC No. 1.01 that “You are not to single out any certain sentence or any individual point or instruction and ignore the others.   You are to consider all the instructions as a whole and are to regard each in light of all the others.”   As Lopez' counsel on appeal persuasively argues, when CALJIC Nos. 4.21 and 8.47 are read together, they can reasonably be understood to define intoxication in terms of unconsciousness.   Neither counsel clarified the point in argument before the trial court.

In fact, the prosecutor's rebuttal emphasized the incorrect interpretation we fear the jury adopted:  “I think it's—counsel made a statement about following the law.   Obviously, that's everyone's intent in relation to your duty as jurors.  [¶] What I find very curious is when she talked about the crime of involuntary manslaughter, she didn't touch upon that instruction [CALJIC No. 8.47] that the court's going to give you in relation to involuntary manslaughter, and that's that if you find the defendant killed while unconscious, as a result of voluntary intoxication, and was therefore unable to form a specific intent to kill or harbor malice aforethought, his killing is involuntary manslaughter.  [¶] Where in this case is there anything of unconsciousness? ”  (Emphasis added.)

Defense counsel immediately objected:  “Your honor, I'm going to object.   That misstates the law.   There's also going to be an instruction given on voluntary manslaughter in general.”   The court replied, “Well, ladies and gentlemen, you are admonished with regard to the evidence, you've heard it, and rely on your own recollection.  [¶] And I'll instruct you on the law.   So what you do is take the instructions I give you, which may be applicable to this case, they will be applicable, depending on your findings on the evidence that you've heard.”   Curiously, at some point in the proceedings, and very likely after making these remarks, the trial judge noted on the face sheet of the defense request for instructions next to CALJIC No. 8.47, “Not uncon.”   It appears he may have realized the confusion it might engender and either determined to add a clarifying instruction or to strike the paragraph concerning unconsciousness entirely.   In the end, unfortunately, he did neither.

Of course, if the prosecutor was correct that there was no evidence of unconsciousness, CALJIC No. 8.47 should not have been given at all.   But we believe the defense psychiatrist's testimony combined with the irrational nature of the killing itself and Lopez' use on intoxicants before it occurred provided adequate justification for its use.

Thus, both CALJIC Nos. 4.21 and 8.47 were properly given;  but read together they yield a potentially misleading measure of the degree of intoxication required to apply CALJIC No. 4.21, i.e., a finding of intoxication requires that the defendant have attained a state of unconsciousness.   In view of the prosecutor's rebuttal argument, we believe it is more likely than not Lopez' substantial rights were affected by this erroneous interpretation of the law.

As it may have realized based on its notation on the face sheet of the defense list of requested instructions, the court should have given a third instruction sua sponte specifically advising the jury as follows:  “Although a finding that the [defendant] was unconscious would establish the ․ fact[ ] that [he] lacked both the ability to entertain malice and an intent to kill, the absence of either or both of such may nevertheless be found even though [his] mental state had not deteriorated into unconsciousness.”  (People v. Ray, supra, 14 Cal.3d at p. 28, 120 Cal.Rptr. 377, 533 P.2d 1017.)   As the Attorney General candidly conceded at oral argument, this or a comparable instruction should be given in every case in which CALJIC Nos. 4.21 and 8.47 are both appropriate.

If the instruction we suggest is not requested, we also believe the court should give it sua sponte.   The court has a “duty to instruct sua sponte on general principles closely and openly connected with the facts of a case․”  (Id., at p. 25, 120 Cal.Rptr. 377, 533 P.2d 1017;  see also People v. Mosher (1969) 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659.)   We believe that duty was breached here.   Voluntary intoxication was the sole defense;  the killing was conceded, Lopez simply hoping to confine the conviction to involuntary manslaughter.   The evidence was far from overwhelming on the issue.   Lopez most certainly was intoxicated, but to what degree?   Apparently the jury found he was not unconscious, but is that the only decision it made on the question of intoxication?   Our fear is, of course, that it was.

Pursuant to Penal Code section 1259, an “appellate court may ․ review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”  (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10, 98 Cal.Rptr. 33, 489 P.2d 1361;  People v. Henderson (1985) 163 Cal.App.3d 1001, 1009, 209 Cal.Rptr. 883.)   We have applied the statute even where the offending instruction has been requested by the defense.  (People v. Garewal (1985) 173 Cal.App.3d 285, 297–299, 218 Cal.Rptr. 690.)   The doctrine of invited error is not to be applied in such circumstances “unless counsel articulated a tactical basis for the choice.  [Citations.]”  (People v. Wickersham (1982) 32 Cal.3d 307, 332, 185 Cal.Rptr. 436, 650 P.2d 311.)

The same rule is applicable in the case of instructions which should have been given but were not.   In People v. Graham (1969) 71 Cal.2d 303, 78 Cal.Rptr. 217, 455 P.2d 153, the court erred in failing to instruct on manslaughter due to diminished capacity.   Not only was no defense request for such instructions made, all three defense counsel acquiesced in the court's statement that “everyone agrees that there is no evidence from which involuntary manslaughter could be found;  the only type of manslaughter that could be found here would be voluntary.”  (Id., at p. 317, 78 Cal.Rptr. 217, 455 P.2d 153.)  Graham concluded there is placed upon the trial court “an affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case [which] can [not] be nullified by waiver of defense counsel.”  (Ibid.)  There is but one exception:  Where “defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.”  (Id., at p. 318, 78 Cal.Rptr. 217, 455 P.2d 153;  People v. Wickersham, supra, 32 Cal.3d at p. 331, 185 Cal.Rptr. 436, 650 P.2d 311.)   It is, of course, inapplicable here.   The judgment must be reversed accordingly.

In light of our disposition of the instructional issue, there is no reason to consider the other contentions raised;  none would preclude retrial.   Similarly, there is no need to reach the ineffective assistance of counsel contention made in the companion habeas petition.

Judgment reversed.   Writ denied.

CROSBY, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.