THE PEOPLE v. CRUZ BRAMBILA ACEVEDO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

A jury convicted appellant Cruz Brambila Acevedo of sexual penetration by a foreign object with force and violence (Pen.Code, § 289, subd. (a)(1);  count 1),¹ torture (§ 206;  count 2), kidnapping to commit another crime (§ 209, subd. (b)(1);  count 3), kidnapping (§ 207, subd. (a);  count 4), and corporal injury to a former cohabitant (§ 273.5, subd. (a);  count 5) and found numerous special allegations to be true.   The trial court sentenced appellant to 25 years to life for count 1, plus two consecutive life terms for counts 2 and 3. On appeal, appellant contends:  (1) the trial court prejudicially erred in instructing the jury on voluntary intoxication;  and (2) his conviction of kidnapping must be reversed because it is a lesser included offense of kidnapping to commit another crime, and he cannot be convicted of both.   We agree with appellant's second contention, which respondent concedes, and will remand the matter to the trial court to strike appellant's conviction of kidnapping in count 4. In all other respects, the judgment is affirmed.

In August 2007, the victim, Vanessa C., was appellant's girlfriend.   She was not living with him at the time of the incident in this case but had been staying with him for a few nights at his mother's house, along with her seven-year-old son.   Vanessa had known appellant for two to three years and they had an “off and on” relationship.   In 2006, Vanessa and appellant lived together in Tijuana for three or four months.   When they returned to the United States, they lived together at appellant's mother's house in Porterville.   They separated in January 2007, but started seeing each other again in August 2007.

On the night in question, appellant and his friend Michael White came to Vanessa's AA meeting in Porterville to look in on her.   When the meeting ended around 9:30 p.m., and they had walked outside, appellant grabbed Vanessa by the hand and pushed her inside his van.   Inside the van, appellant slapped Vanessa and called her a “[f]ucking bitch.” ²

After stopping first at his cousin's house and then dropping his friend off, appellant drove Vanessa to a grapevine field.   During the drive, appellant hit and cussed at Vanessa.   He told her that she was going to get it, that he was going to hurt her, and that he was going to take her somewhere no one would find her.

After appellant pulled over and stopped on the side of the road, he started hitting, punching, and kicking Vanessa inside the van.   Vanessa jumped out of the window and tried to run away, but appellant caught up with her, pulled her hair, and dragged her back to the van.   Back inside the van, appellant choked Vanessa until she lost consciousness.

When Vanessa regained consciousness, appellant was dragging her by the hair through the grapevine field.   Vanessa stood up and appellant forced her to walk to the back of the field, hitting her in the back with sticks from the grapevines.

When they reached the end of the field, appellant hit Vanessa forcefully on the side of the face with a grapevine stick.   Vanessa testified:  “I just remember seeing like red through this eye.   Because my skin was hanging off the side of my face.”   The resulting injury was a deep laceration that ran from her left eyebrow almost to her cheek.

After hitting her in the face, appellant told Vanessa to get naked.   As Vanessa removed her clothes, appellant continued to hit her.   When she was naked, appellant pushed and kicked her into a plum field, where he used her clothes to tie her to a plum tree.   Appellant tied her with her back and head against the tree and tied her arms to branches.   Appellant used her bra to tie up one of her hands.

After tying Vanessa to the tree, appellant started kicking her in the vagina.   Vanessa testified:  “He was cussing me and telling me things like you fucking bitch.   And watch, you are going to die.   You are going to regret it.  [¶] He told me oh, you like to fuck, so you'll see what's going to happen.”

Appellant then picked up a tree branch and inserted the tip into Vanessa's rectum, causing her pain.   Vanessa was unable to scream because appellant had tied a shirt around her mouth.   Appellant yelled things like “you fucking bitch” and “you are not going to fucking play on me.”   He then punched her in the face, before walking away.

After he walked away, appellant left Vanessa tied to the tree for approximately 20 minutes.   During that time, Vanessa used her mouth to loosen the shirt that was in it.   Appellant noticed this when he returned and asked, “[Y]ou trying to get away?”   He then called Vanessa a “fucking bitch” and kicked her in the vagina again.

Appellant untied Vanessa and directed her to put her clothes back on.   They then walked out of the plum field.   Appellant continued to hit, punch, and kick Vanessa as they were walking.   When they reached a pile of dirt, appellant pushed Vanessa down to the ground and put her face in the dirt.   She was unable to breathe because there was dirt in her mouth.

As they started to walk back to the van, appellant continued to kick and hit Vanessa with grapevine sticks.   Before they reached the van, appellant took Vanessa back to the dirt pile and hit her with a stick.   They then walked to the van.   Vanessa walked in front of appellant and he hit her the whole time.

Appellant drove Vanessa back to his mother's house, where he told her to take a shower.   Vanessa obeyed and “tried to clean all the dirt and everything.”

After she took a shower, Vanessa told appellant she needed to go to the hospital because her head was bleeding and hurting badly.   Appellant instructed Vanessa to tell his mother that she fell in the shower and hit her head.   Vanessa complied with appellant's instruction.

Appellant's mother and uncle drove Vanessa to the hospital and appellant stayed behind.   Before they left for the hospital, appellant threatened to hurt Vanessa's mother and children if she told people what really happened.

Once she was at the hospital, and in a separate room from appellant's mother, Vanessa told hospital staff about appellant's attack, and the police investigation commenced.   Vanessa's police statement was consistent with her trial testimony.

After her initial treatment at the hospital, Vanessa was taken to a SART ³ nurse for a medical examination.   The nurse testified that Vanessa appeared to be in a lot of pain.   She could hardly walk and the nurse had to help her get up on the examination table.   The nurse further testified that the examination particularly stood out in her memory because of Vanessa's large number of injuries.   The nurse found over 25 injuries on her body and an additional four to six injuries to her genital area.

The nurse testified that Vanessa's injuries were consistent with her description of appellant's attack.   In addition to the laceration on her left eyebrow, which appeared to have been stitched up at the emergency hospital, Vanessa had extensive abrasions and bruises on various parts of her body, including her back, buttocks, chest, and inner thighs.   On Vanessa's back, the nurse observed a red “patterned injury” that resembled the bottom of a shoe.   Vanessa also had redness and swelling in the vaginal area, and a laceration on the anal fold near the rectum.

The police investigation of the crime scene also uncovered evidence consistent with Vanessa's description of events.   Among other things, police found a bra attached to a tree and a mound of dirt with an impression consistent with a face, apparent drops of blood, and shoes tracks and foot impressions that looked “as if there was a struggle or milling around.”

A search of appellant's van uncovered a pair of bloody socks underneath one of the seats.   Shoe prints and dust were also found on the dashboard and glove compartment area.

Police located appellant on the afternoon after the attack, but he fled over a fence.   Appellant was eventually located in May or June of 2008.

Uncharged prior acts

Tahnee C. testified concerning an incident that occurred in May 2005.   Tahnee was sitting on a picnic table, trying to call her mother to come pick her up, when appellant got mad at her for calling her mother.   Appellant pushed the picnic table over on top of her, so that she was lying partially underneath it.

After pushing the table over on her, appellant yelled at Tahnee to stand up.   When she stood up, he started spraying her with the water hose he had been using to wash his car.   Appellant then told her to go inside the house because his brother was coming and he did not want him to see her.

Tahnee went inside the house and was in the bedroom crying, when appellant came in and made her lie on the bed on her stomach, with her head leaning over the bed.   Appellant tied Tahnee's hands behind her back with an Ace bandage.   He then pushed her onto the floor and started slapping, hitting, and choking her.

Tahnee further testified:

“He made me go to into the living room.   I had to crawl, you know, using my knees.   Plus, he was pulling me by my hair.   I was in the living room because he had earlier threw food on the ground, so I was in there rolling on the food.   He just continued kicking me, hitting me, pulling me by my hair.   Telling me things like I can kill you[.]  I can go back to Mexico and they can never do anything to me.   They'll never find me.”

Appellant finally stopped and went to open the front door.   As he went outside, appellant was laughing at Tahnee.

Tahnee reported the incident to the police the following day, after speaking with her mother.   The police took photographs of her injuries, which she described as including a busted blood vessel in her eye, a busted lip, and bruises all over her body.   She also had bumps on her head, which were not visible.

Vanessa testified generally that “every other day [appellant] would hit me, beat me.”   She also testified about two specific incidents.   In 2006, when they were living in Tijuana, appellant hit her in the head with a crowbar and she went to the hospital to get stitches in her head.   In January 2007, when she was living with appellant in Porterville, appellant hit her with a metal object, but she did not seek medical treatment.

The defense

Appellant testified that he remembered specifically and with a clear mind what happened on the night in question.   Throughout his testimony, appellant denied engaging in any of the coercive or abusive acts described by Vanessa (i.e., choking, hitting, kicking, etc.).

According to appellant's version of events, he did not force Vanessa into the van after the AA meeting or slap her.   Although they did argue in the van, Vanessa instigated the argument.   She accused appellant of being with his ex-girlfriend Brenda, over whom they had also argued the previous day.   Appellant got mad and hit the back of Vanessa's headrest, but he did not make contact with her face.

After appellant stopped at his cousin's house and dropped his friend off, the argument he was having with Vanessa de-escalated.   Vanessa began to calm him down.   Appellant explained:  “Every time I'm mad, for whatever reason, she gives me a chill pill.   What that is she kisses me and supposedly that makes everything better.   That's my chill pill.”

At this point, Vanessa wanted, and appellant “kind of” wanted, to have sex.   Because he did not want to go back to his mother's house, where there was no privacy, appellant continued to drive and pulled over a few blocks down from the house.

Appellant and Vanessa went into the field and tried a number of times to have sex because appellant wanted to prove to her that he had not been with Brenda that day.   However, appellant was unable to perform because he had been “up for a couple of days already” on methamphetamine.   When asked about the effect methamphetamine had on him, appellant testified:

“First it's okay.   But after the second and third day, I can't do nothing.   [¶] But I still tried with her.   I mean, I tried.   We tried a number—a lot of times in the field.   I was in the field with her, but I didn't hit her.   I didn't strike her.   I didn't do this to her.   I didn't stick nothing up her.”

Appellant testified that both he and Vanessa took all their clothes off, and that he tied her to a tree with her bra because she asked him to.   They tried to have sex at the tree but nothing happened.

Appellant and Vanessa also tried unsuccessfully to have sex lying on the ground.   Appellant testified that Vanessa was lying on the ground and he was on top of her “[w]orking hard.”

Appellant testified that he was “real rough” with Vanessa when they were trying to have sex, “[b]ut we were always rough when we were on methamphetamine.”   Appellant added, however, that he was not rough “in the way of hitting her and stuff like that.”

When asked about the injuries described in the SART nurse's testimony in relation to what happened at the tree, appellant testified:

“Well, she let me tie her up and she was against the tree.   And there was—I don't know if you can see the picture right now, but there's a lot of branches.   A lot of branches.  [¶] I even—they were even hitting me, the branches, when we were going back and forward.   And hard.”

After appellant was unable to have sex with Vanessa, she became angry and again accused him of having been with Brenda and said this was the reason he was not able to do anything.   When they were back in the van, Vanessa started “going crazy” and was hitting and kicking the dashboard and glove compartment area.   Appellant grabbed her legs and put them down and told her to “kick back.”

After they drove home, Vanessa went to take a shower.   Appellant testified:

“And when she came out, when she came out she heard me on the phone saying I love you.   And she told me oh, you love?   Who are you talking to?  [¶] And I didn't say nothing.   I just hanged up.   But she heard me say I love you, though.   And she goes you love her.   All right.   You watch, Mother F. You see what happened.”

After this exchange, Vanessa told appellant she needed to go to the hospital.   When appellant asked why, she showed him a bleeding injury on her head, which she had been covering.   Vanessa said she fell in the shower and cracked her head open.

Appellant claimed that Vanessa had not been bleeding earlier when he brought her home in the van.   According to appellant, the bloody socks that police found in his van were the socks Vanessa was wearing after she came out of the shower, and that she put them in his van when she thought they were going to be taking the van to the hospital.

Appellant testified that after his mother called him from the hospital and told him Vanessa was accusing him of beating her, he walked to meet some friends and got high on methamphetamine.   When the police later located appellant at the abandoned house where he and a friend were smoking methamphetamine, appellant did not know they were police.   He ran away because he thought they were “gang-bangers” with whom his friend had been having problems.

On cross-examination, appellant testified that when he went to Vanessa's AA meeting he was “a little bit drunk” and “[a] little bit high.”   When appellant was asked the last time he took methamphetamine prior to the incident, he testified, “[p]robably early that day.”   Appellant repeated that he had already been up for three days.

On re-direct examination, appellant testified that when he is up for two or three days smoking methamphetamine, the methamphetamine makes him want to have sex, but he is unable to do it.

In his direct examination testimony, appellant also described his past use of methamphetamine in his relationship with Vanessa.   They used methamphetamine a lot together during the period when they lived together in Tijuana, where the drug was easy to obtain.   Appellant testified that when they used methamphetamine, sex was “[r]eal different.”

Appellant denied that he hit Vanessa with a crowbar when they were living in Tijuana.   According to appellant, her injury was related to her methamphetamine use.   They were both high, when Vanessa tripped and hit her head on a metal part of a bed and had to be taken to the hospital.

Appellant also denied that he hit Tahnee.   Rather, the “[s]ame thing happened with her.”   He explained:  “Well, I mean she said I did something, but it wasn't true.”

Appellant's mother, Maria Acevedo, testified that Vanessa asked her if she could take her to the hospital.   Vanessa told Acevedo that she fell in the bathroom.   Once they were at the hospital, Vanessa told Acevedo to tell appellant to leave because she would call the police on him.   In the past, Vanessa had said she would do something to appellant if he ever had a relationship with another woman.

DISCUSSION

I. Voluntary Intoxication Instruction

After appellant's direct examination concluded, the trial court excused the jury for a break and the parties briefly discussed the issue of whether the court should instruct the jury with CALCRIM No. 3426, a standard jury instruction concerning the purpose or purposes for which a jury may consider evidence of a defendant's voluntary intoxication.⁴  It appears that the prosecutor agreed that the instruction should be given, not because the evidence warranted it but “to make sure that the record, in case there is a conviction on any type of appeal, is protected.”   The trial court also expressed the view that there was “no legal basis to give it” but left it up to counsel to decide whether the instruction should be given.

Thereafter, the trial court instructed the jury on voluntary intoxication pursuant to CALCRIM No. 3426, in relevant part, as follows:

“You may consider evidence, if any, of voluntary intoxication only in a limited way.   You may consider that evidence only in deciding whether the defendant acted with the intent to do the act required.

“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of the effect.

“In connection with the charge of PC 289(a)(1) [sexual penetration by a foreign object with force] as charged in Count 1, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to do the act.   If the People have not met this burden, you must find the defendant not guilty of PC 289(a)(1) as charged in Count 1.

“In connection with the charge of PC 206 as charged in Count 2 [torture], the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to do the act.   If the People have not met this burden, you must find the defendant not guilty of PC 206 as charged in Count 2.

“In connection with the charge of PC 209(b)(1) [kidnapping to commit another crime] as charged in count 3, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to do the act.   If the People have not met this burden, you must find the defendant not guilty of PC 209(b)(1) as charged in Count 3.

“In connection with the charge of in special allegation Torture [ (§§ 667.61, subds.(a) & (d)(3)) ], the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to do the act.   If the People have not met this burden, you must find the defendant not guilty of in special allegation Torture.

“In connection with the charge of special allegation Kidnap to Commit Crime, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to do the act.   If the People have not met this burden, you must find the defendant not guilty of special allegation Kidnap to Commit Crime. [¶] ․ [¶]

“You may not consider evidence of voluntary intoxication for any other purpose.   Voluntary intoxication is not a defense to PC 207(a) [kidnapping] as charge[d] in Count 4;  ․ PC 273.5(a) [corporal injury on a former cohabitant] as charged in Count 5, PC 242 [battery] lesser included offenses of Count 1, 2, 5, and special allegation Personal Use of Dangerous Weapon, special allegation Tying or Binding, special allegation Simple Kidnap, or special allegation Personally Inflicted Great Bodily Injury.”

Appellant now contends that the trial court's version of CALCRIM No. 3426 was legally incorrect because it “told jurors to consider evidence of voluntary intoxication only in deciding whether appellant intended to do the act required, a general intent concept.” ⁵  Voluntary intoxication, however, is relevant on whether a defendant formed a required specific intent;  it is not relevant to a general intent crime.  (People v. Mendoza (1998) 18 Cal.4th 1114, 1125.)   Appellant contends the issue is properly before this court despite his failure to object to the instruction below.   But if the issue is deemed waived, appellant contends he received ineffective assistance of counsel.   Respondent contends the trial court's instruction was legally correct, and argues that, when read in context, it “clearly refer[red] to the specific intent of the target crimes charged in counts 1 through 3, on which jurors were properly instructed elsewhere.”  (Fn.omitted.)

Assuming arguendo that the trial court's instruction was incorrect and precluded the jury from considering evidence of appellant's voluntary intoxication in deciding whether he acted with the specific intent required for the offenses at issue, we nonetheless conclude any error was harmless under either the California or federal constitutional standard of prejudice.   (Chapman v. California (1967) 386 U.S. 18, 24;  People v. Watson (1956) 46 Cal.2d 818, 836.)   We reach this conclusion because, while there was some evidence that appellant consumed methamphetamine on the night in question, there was no evidence that he was so intoxicated that he was unable to form the specific intent for the offenses.   Therefore, the likelihood the jury would have acquitted appellant of the specific intent offenses if it had been instructed correctly on voluntary intoxication is negligible.

“A defendant is entitled to [an instruction on voluntary intoxication] only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's ‘actual formation of specific intent.’  [Citations.]”  (People v. Williams (1997) 16 Cal.4th 635, 677 (Williams ), italics added;  see also People v. Ivans (1992) 2 Cal.App.4th 1654, 1661 [“an intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state”].)

Here, there was no substantial evidence “that voluntary intoxication had [an] effect on [appellant's] ability to formulate intent.”  (Williams, supra, 16 Cal.4th at pp. 677–678.)   In his testimony, appellant reiterated that he recalled clearly and specifically what happened between him and Vanessa.   His detailed account of the incident suggests his supposed intoxication did not appreciably affect his mental state.  (See People v. Ramirez (1990) 50 Cal.3d 1158, 1181 [no substantial evidence where “[d]efendant purported to give a detailed account of all of the events of the night in question․  Instead, his defense was simply that he had not sexually assaulted or stabbed [the victim] at all”].)   Similarly, appellant's defense was that he did not commit the crimes at all, not that he failed to form the requisite specific intent because of voluntary intoxication.   The defense theory was that Vanessa lied about the details of the crimes to avenge appellant for cheating on her with his ex-girlfriend, Brenda.⁶

The defense also relied on evidence of appellant's methamphetamine use to bolster the credibility of his version of events.   During closing argument, defense counsel argued that appellant's account of wanting but being unable to have sex with Vanessa was reasonable in light of his testimony that he had been up for several days on methamphetamine.   The defense also suggested that appellant's account of attempting to engage in rough or unusual sex, including tying Vanessa to a tree with her consent, was credible in light of their shared history of engaging in such activities while on methamphetamine.   However, neither the evidence nor the defense suggested that appellant was so intoxicated that he did not act with the specific intent required for the offenses at issue.

The only other witness who testified regarding the effect of methamphetamine intoxication on appellant's mental state was Vanessa.⁷  Vanessa testified that appellant would get “real angry,” which was why she assumed he was “high” on methamphetamine on the night he attacked her.   However, there was no evidence appellant was so enraged as a result of methamphetamine intoxication that he was unable to formulate intent.   Moreover, the evidence suggested other sources for his anger, including his apparent belief that Vanessa had cheated on him and his apparent need to control and humiliate the women in his life, which was demonstrated by the prior incident concerning Tahnee.   There was no evidence that appellant had used methamphetamine in connection with this prior incident, which involved appellant becoming extremely angry when Tahnee tried to call her mother to pick her up, and pushed a picnic table over on her.   His ensuing conduct towards Tahnee was also remarkably similar to his conduct towards Vanessa.   He restrained Tahnee's hands and slapped, hit, and choked her.   He also forced her to move from one place to another, while hitting and kicking her and pulling her hair.   There was no evidence that in either this incident, or the instant incident involving Vanessa, appellant, assuming he consumed methamphetamine, was so intoxicated he did not know what he was doing.   Rather, his conduct appeared deliberate and calculated to inflict pain and humiliation on his victims.

To acquit appellant based on a voluntary intoxication defense, the jury would have had to decide that the incidents Vanessa described were incidents where appellant was so intoxicated that he did not know what he was doing.   At the same time, the jury would have had to reject all of the evidence indicating appellant's consciousness of guilt, including threats not to tell anyone what happened, and his flight from the police the day after the attacks.   It appears the likelihood the jury would have reached these conclusions if it had been instructed correctly on voluntary intoxication is close to zero.   The trial was largely a credibility contest.   The verdicts show who the jury found to be credible.   We conclude any error in the court's voluntary intoxication instruction was harmless beyond a reasonable doubt and that it is not reasonably probable that the jury would have rejected the prosecution's case and found appellant not guilty of counts 1 through 3 based on voluntary intoxication if it had been correctly instructed.

We also reject as without merit appellant's assertion that “the erroneous instruction lessened the prosecution's burden of proof on the mental state required to prove the charges of penetration by a foreign object, torture, and kidnapping to commit another crime.”   As appellant recognizes, the jury was correctly instructed on the specific intent or mental state required for these offenses.  (CALCRIM No. 1045 [sexual penetration by force], CALCRIM No. 810 [torture], CALCRIM No. 1203 [kidnapping for robbery, rape, or other sex offenses].)   We see nothing in the court's voluntary intoxication instruction suggesting the jury could find appellant guilty of the offenses even if it did not find appellant acted with the requisite specific intent.   At most, the instruction precluded the jury from properly considering evidence of appellant's voluntary intoxication in deciding whether he acted with the required specific intent for the offenses.   For reasons discussed above, any error in this regard was not prejudicial because there was no substantial evidence that intoxication affected appellant's actual formation of specific intent.

II. Lesser Included Offense of Kidnapping

Appellant contends, respondent concedes, and we agree that his conviction for kidnapping in count 4 must be reversed because it is a lesser included offense of the kidnapping to commit another crime in count 3. (See People v. Lewis (2008) 43 Cal.4th 415, 518;  People v. Medina (2007) 41 Cal.4th 685, 702.)

DISPOSITION

The judgment is reversed and the matter is remanded to the trial court with directions to strike appellant's conviction and sentence for kidnapping in count 4. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

HILL, P.J.

WE CONCUR:

CORNELL, J.

DETJEN, J.

FOOTNOTES

FN1. Further statutory references are to the Penal Code unless otherwise specified..  FN1. Further statutory references are to the Penal Code unless otherwise specified.

FN2. On cross-examination, Vanessa testified that appellant was using methamphetamine that night.   When asked how she knew, Vanessa responded that “it was obvious when he was high” because “[h]e gets real angry.”.  FN2. On cross-examination, Vanessa testified that appellant was using methamphetamine that night.   When asked how she knew, Vanessa responded that “it was obvious when he was high” because “[h]e gets real angry.”

FN3. SART stands for Sexual Assault Response Team..  FN3. SART stands for Sexual Assault Response Team.

FN4. Unmodified, the instruction states:“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 [or failed to do an act] with _ .“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.“[Do not consider evidence of intoxication in deciding whether _ was a natural and probable consequence of _ .]“In connection with the charge of _ the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with _ . If the People have not met this burden, you must find the defendant not guilty of _ < insert first charged offense requiring specific intent or mental state >.““You may not consider evidence of voluntary intoxication for any other purpose.  [Voluntary intoxication is not a defense to _ < insert general intent offense[s ]>.]”  (CALCRIM No. 3426.).  FN4. Unmodified, the instruction states:“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 [or failed to do an act] with _ .“A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.“[Do not consider evidence of intoxication in deciding whether _ was a natural and probable consequence of _ .]“In connection with the charge of _ the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with _ . If the People have not met this burden, you must find the defendant not guilty of _ < insert first charged offense requiring specific intent or mental state >.““You may not consider evidence of voluntary intoxication for any other purpose.  [Voluntary intoxication is not a defense to _ < insert general intent offense[s ]>.]”  (CALCRIM No. 3426.)

FN5. “ ‘A crime is characterized as a “general intent” crime when the required mental state entails only an intent to do the act that causes the harm;  a crime is characterized as a “specific intent” crime when the required mental state entails an intent to cause the resulting harm.’   [Citation.]”  (People v. Atkins (2001) 25 Cal.4th 76, 86.).  FN5. “ ‘A crime is characterized as a “general intent” crime when the required mental state entails only an intent to do the act that causes the harm;  a crime is characterized as a “specific intent” crime when the required mental state entails an intent to cause the resulting harm.’   [Citation.]”  (People v. Atkins (2001) 25 Cal.4th 76, 86.)

FN6. For example, defense counsel argued:  “Think about what [appellant's] account is, and think about is that consistent with human experiences.   Does Vanessa have a reason to lie?   Why would she lie?   I think the answer is a woman scorned.   Hell hath no fury like a woman who has been scorned.   She couldn't experience.   She couldn't excite her man who was with somebody else.   And they tried everything that they knew to make it happen and she failed.”.  FN6. For example, defense counsel argued:  “Think about what [appellant's] account is, and think about is that consistent with human experiences.   Does Vanessa have a reason to lie?   Why would she lie?   I think the answer is a woman scorned.   Hell hath no fury like a woman who has been scorned.   She couldn't experience.   She couldn't excite her man who was with somebody else.   And they tried everything that they knew to make it happen and she failed.”

FN7. In his argument, appellant cites the testimony of Tulare County Sheriff's Sergeant John Dow, who testified concerning his interview with appellant's friend, Michael White.   On cross-examination, defense counsel asked Sergeant Dow if he was aware of the fact that White was under the influence of a controlled substance.   Dow answered in the negative.   Defense counsel then asked Sergeant Dow about the symptoms a person might have if they were under the influence of methamphetamine and had been up for two or three days.   Dow confirmed that such symptoms could include incoherent and rambling thoughts.   However, no evidence was presented that appellant exhibited such symptoms during the events in question..  FN7. In his argument, appellant cites the testimony of Tulare County Sheriff's Sergeant John Dow, who testified concerning his interview with appellant's friend, Michael White.   On cross-examination, defense counsel asked Sergeant Dow if he was aware of the fact that White was under the influence of a controlled substance.   Dow answered in the negative.   Defense counsel then asked Sergeant Dow about the symptoms a person might have if they were under the influence of methamphetamine and had been up for two or three days.   Dow confirmed that such symptoms could include incoherent and rambling thoughts.   However, no evidence was presented that appellant exhibited such symptoms during the events in question.