People v. Stevenson, Cr. 29690

• Decision Date: 17 April 1978
• Docket Number: Cr. 29690
• Citation: 79 Cal.App.3d 976,145 Cal.Rptr. 301
• Parties: The PEOPLE, Plaintiff and Respondent, v. Theodore STEVENSON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 301

145 Cal.Rptr. 301

79 Cal.App.3d 976

The PEOPLE, Plaintiff and Respondent, v. Theodore STEVENSON, Defendant and Appellant.

Cr. 29690.

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

April 17, 1978.

As Modified April 19, 1978.

Rehearing Denied May 10, 1978.

Hearing Denied June 15, 1978.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Richard A. Curtis, Deputy State Public Defender, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Paul C. Ament, Deputy Attys. Gen., for plaintiff and respondent.

BIGELOW, ^* Associate Justice.

In a jury trial, defendant was convicted as follows: Guilty on count I, which charged assault with a deadly weapon on Samuel Willis with intent to commit murder, in violation of section 217 of the Penal Code; on count II, which charged an assault with a deadly weapon on William Reid, guilty of possession of a deadly weapon with intent to commit an assault on William Reid, in violation of section 467 of the Penal Code, a lesser and necessarily included offense within that charged. An allegation of the use of a firearm charged in count II was found to be true. Before the jury trial defendant admitted as true, two prior felony convictions as alleged in the information. Defendant was sentenced to state prison on count I and to county jail on count II, the sentences to run concurrently. In sentencing, the trial court's corrected minute order recites that it "finds that two priors were admitted and are considered for sentence and judgment" and that "the use allegation as to Count two has been found to be true." We reversed.

Defendant's contentions on this appeal are procedural in nature. Therefore, we limit our recital of the facts to those necessary to understanding our holdings.

SHOOTING AND ASSAULT INCIDENTS

The case for the People was as follows: Just past midnight, between 12:25 a. m. and 12:45 a. m. on October 4, 1975, defendant and Willis had a dispute over defendant's claim that Willis had misappropriated a television set. Defendant fired three shots from his pistol at Willis, hitting him twice. Defendant, a friend named Parker and William and Connie Reid all drove away from the scene in the same car. During the drive, defendant pointed his pistol at William Reid and told him not to talk to the police about what had just happened.

EVIDENCE OF DEFENDANT'S DRINKING AND INTOXICATION

Ruby Briggs, called as a witness by the People, testified on cross-examination as to defendant's drinking scotch whiskey and its intoxicating effect on him before and immediately after the shooting and assault incidents just described.

She testified that defendant, Parker and William and Connie Reid first came to her apartment just before midnight, about 11:40 p. m. October 3, 1975. They stayed about 45 minutes. They brought with them an unopened fifth of Johnny Walker Red label scotch whiskey. All five persons had some scotch out of this bottle, which was half empty when they left about 12:25 a. m. Defendant was drinking from a six-ounce glass which was three to four inches tall. She saw defendant fill his glass three times or more. She saw defendant drink "quite a bit." When defendant, Parker and the Reids left they were all jolly.

Fifteen to twenty minutes later, defendant, Parker and Connie Reid came back to Ruby Briggs' apartment. The above described shooting and assault incidents had taken place during this short interval of time.

Ruby Briggs testified that defendant asked for the half empty bottle of scotch whiskey which he had left there at her apartment a few minutes earlier and poured himself a good stiff drink. She noticed when he first came back to her apartment that defendant "looked like he had been drinking" and also looked sort of "like he was kind of under the influence of a little alcohol."

JURY INSTRUCTIONS ON DIMINISHED CAPACITY DUE TO INTOXICATION

,2] The defendant requested CALJIC 8.77 ¹ (1976 Rev.) (diminished capacity ability to premeditate, deliberate, harbor malice, or intend to kill), which the trial court refused to give. Instead, the trial court gave CALJIC 4.21 ² (voluntary intoxication when relevant to specific intent) modifying it by limiting its application to the charge in count I "assault with a deadly weapon with the intent to commit murder" and further limiting its application to the specific intent to "commit murder." The trial court then also gave CALJIC 4.20 (voluntary intoxication not a defense) as to the offense charged in count II (assault with a deadly weapon upon alleged victim William Reid). Also given was CALJIC 17.10 (conviction of lesser included offense) which listed "having possession of deadly weapons (sic ) with attempt (sic ) to commit assault, in violation of section 467, Penal Code" as one of the lesser offenses included in counts I and II.

The instructions pertinent to this appeal which were given defining the crimes charged were CALJIC 9.01 (assault with intent to commit murder), 9.03 (assault with a deadly weapon) and an adequate special instruction defining possession of a deadly weapon with intent to assault another (Pen.Code, § 467), a misdemeanor. In addition, CALJIC 8.10 (murder defined) and 8.11 ("malice aforethought" defined) were given.

The defendant contends that the trial court should have given a modified version of CALJIC 8.77 as requested, and CALJIC 3.35 ³ (diminished capacity to form specific

mental state (Wells-Gorshen Rule)) instead of CALJIC 4.21, all as to count I, and that CALJIC 4.20 (voluntary intoxication not a defense) should not have been given as to the lesser included offense in count II of possession of a deadly weapon with intent to commit an assault (i. e., a specific intent crime) and instead should have given CALJIC 3.35, supra, on diminished capacity to form such specific intent. We agree. Adding to these errors CALJIC 3.34 ⁴ (how intent is shown) was given in full. Its second paragraph tells the jury that they must assume that the defendant was of sound mind at the time of his alleged conduct. The "use note" to CALJIC 3.34 warns not to give the second paragraph in a specific intent crime if there is evidence of diminished capacity and cites the reader to CALJIC 3.35 and 8.77.

SUFFICIENCY OF EVIDENCE OF INTOXICATION TO REQUIRE DIMINISHED CAPACITY INSTRUCTIONS

3] " It is now well established that the defense of diminished capacity as a result of voluntary intoxication . . . is relevant to prove defendant was incapable of forming the specific intent to commit the crime charged. (See People v. Conley (1966) 64 Cal.2d 310, 316-319, 49 Cal.Rptr. 815, 411 P.2d 911 . . . .)" (People v. Spaniel (1968) 262 Cal.App.2d 878, 887, 69 Cal.Rptr. 202, 207.)

6] There must, of course, be a threshold determination by the trial court that there is sufficient evidence of intoxication to require the giving of diminished capacity instructions. (People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342.) "It has been held that merely showing that the defendant consumed some alcohol prior to commission of the crime without showing the effect of the alcohol on him is not sufficient to warrant an instruction on diminished capacity (even when requested by the defendant). (People v. Bandhauer, 66 Cal.2d 524, 528, 58 Cal.Rptr. 332, 426 P.2d 900 . . . .)" (People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 709, 502 P.2d 513, 517 (consumption of marijuana).) It has even been held that "(t) he fact that a defendant has been drinking, without evidence that he became intoxicated thereby, provides no basis for an instruction on intoxication." (People v. Mills (1977) 73 Cal.App.3d 539, 544, 140 Cal.Rptr. 803, 805 (holding no sua sponte duty on trial court re "proverbial 'couple of beers' ").)

9] When such an instruction is requested by the defendant, the trial judge's task is quite different from that required for sua sponte instructions. By the defendant requesting the instruction, the court knows that the defendant is relying on that defense. Its inquiry then focuses on the sufficiency of such evidence. "It is well settled that if the defendant requests an instruction it must be given if there is any evidence on that issue deserving of any consideration whatsoever . . . (see People v. Tidwell, 3 Cal.3d 82, 86, 89 Cal.Rptr. 58, 473 P.2d 762 . . . ." (People v. Vasquez (1972) 29 Cal.App.3d 81, 88, 105 Cal.Rptr. 181, 184.) Even where there is conflicting evidence on this issue, nevertheless the law requires that " '(h)owever incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.' " (Italics in original.) (People v. Modesto (1963) 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 229, 382 P.2d 33, 37, disapproved on another unrelated point in People v. Morse 10] The fact that the trial judge was of the opinion that the evidence of defendant's intoxication was deserving of consideration because he gave an instruction on voluntary intoxication, is entitled to some weight on appeal. (People v. Vasquez, supra, 29 Cal.App.3d 81, 105 Cal.Rptr. 181; People v. Bowen (1971) 22 Cal.App.3d 267, 99 Cal.Rptr. 498.)

(1964) 60 Cal.2d 631, 648-649, 36 Cal.Rptr. 201, 388 P.2d 33, but reaffirmed on this proposition in People v. Sedeno (1974) 10 Cal.3d 703, 720, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Vasquez, supra, 29 Cal.App.3d 81, 105 Cal.Rptr. 181.

11] In the case of People v. Vasquez, supra, the evidence consisted of testimony of the defendant that he was "kind of high" and "kind of loaded." Conflicting and contradictory evidence came from other witnesses. That court held that the defendant had introduced evidence of intoxication worthy of consideration as to the giving of instructions on diminished capacity due to voluntary intoxication. In the case at bar, the evidence of defenda...