California Criminal Jury Instructions (CALCRIM) (2017)

3425. Unconsciousness

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B. IMPAIRMENT DEFENSES
3425.Unconsciousness
The defendant is not guilty of <insert crime[s]> if (he/she)
acted while unconscious. Someone is unconscious when he or she is not
conscious of his or her actions. [Someone may be unconscious even
though able to move.]
Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic
seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a
similar condition>).
[The defense of unconsciousness may not be based on voluntary
intoxication.]
The People must prove beyond a reasonable doubt that the defendant
was conscious when (he/she) acted. If there is proof beyond a reasonable
doubt that the defendant acted as if (he/she) were conscious, you should
conclude that (he/she) was conscious, unless based on all the evidence,
you have a reasonable doubt that (he/she) was conscious, in which case
you must find (him/her) not guilty.
New January 2006; Revised April 2008, August 2013
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case.
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of a defense, which, if believed, would be
sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s
guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127
P.3d 40].)
Because there is a presumption that a person who appears conscious is conscious
(People v. Hardy (1948) 33 Cal.2d 52, 63–64 [198 P.2d 865]), the defendant must
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produce sufficient evidence raising a reasonable doubt that he or she was conscious
before an instruction on unconsciousness may be given. (Ibid.;People v. Kitt
(1978) 83 Cal.App.3d 834, 842 [148 Cal.Rptr. 447], disapproved on other grounds
by People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d 865]
[presumption of consciousness goes to the defendant’s burden of producing
evidence].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 26(4); People v. Mathson (2012) 210
Cal.App.4th 1297, 1317–1323 [149 Cal.Rptr.3d 167]; People v. Stewart (1976)
16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].
• Burden of Proof. Evid. Code, § 607; People v. Hardy (1948) 33 Cal.2d 52, 64
[198 P.2d 865]; People v. Cruz (1978) 83 Cal.App.3d 308, 330–331 [147
Cal.Rptr. 740].
• Unconsciousness Defined. People v. Newton (1970) 8 Cal.App.3d 359, 376
[87 Cal.Rptr. 394]; People v. Heffıngton (1973) 32 Cal.App.3d 1, 9 [107
Cal.Rptr. 859].
• Unconscious State: Blackouts. People v. Cox (1944) 67 Cal.App.2d 166, 172
[153 P.2d 362].
• Unconscious State: Epileptic Seizures. People v. Freeman (1943) 61
Cal.App.2d 110, 115–116 [142 P.2d 435].
• Unconscious State: Involuntary Intoxication. People v. Heffıngton (1973) 32
Cal.App.3d 1, 8 [107 Cal.Rptr. 859]; see People v. Hughes (2002) 27 Cal.4th
287, 343–344 [116 Cal.Rptr.2d 401, 39 P.3d 432] [jury was adequately informed
that unconsciousness does not require that person be incapable of movement].
• Unconscious State: Somnambulism, Sleepwalking, or Delirium. People v.
Mathson (2012) 210 Cal.App.4th 1297, 1317–1323 [149 Cal.Rptr.3d 167];
People v. Methever (1901) 132 Cal. 326, 329 [64 P. 481], overruled on other
grounds in People v. Gorshen (1953) 51 Cal.2d 716 [336 P.2d 492].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses,§§ 32–39.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.01[4] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
COMMENTARY
The committee did not include an instruction on the presumption of consciousness.
There is a judicially created presumption that a person who acts conscious is
conscious. (People v. Hardy (1948) 33 Cal.2d 52, 63–64 [198 P.2d 865].) Although
an instruction on this presumption has been approved, it has been highly criticized.
(See People v. Kitt (1978) 83 Cal.App.3d 834, 842–843 [148 Cal.Rptr. 447],
disapproved on other grounds by People v. Cooper (1991) 53 Cal.3d 771, 836 [281
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Cal.Rptr. 90, 809 P.2d 865] [acknowledging instruction and suggesting
modification]; People v. Cruz (1978) 83 Cal.App.3d 308, 332 [147 Cal.Rptr. 740]
[criticizing instruction for failing to adequately explain the presumption].)
The effect of this presumption is to place on the defendant a burden of producing
evidence to dispel the presumption. (People v. Cruz, supra, 83 Cal.App.3d at pp.
330–331; People v. Kitt, supra, 83 Cal.App.3d at p. 842, disapproved on other
grounds by People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809
P.2d 865]; and see People v. Babbitt (1988) 45 Cal.3d 660, 689–696 [248 Cal.Rptr.
69, 755 P.2d 253] [an instruction on this presumption “did little more than guide
the jury as to how to evaluate evidence bearing on the defendant’s consciousness
and apply it to the issue.”].) However, if the defendant produces enough evidence
to warrant an instruction on unconsciousness, the rebuttable presumption of
consciousness has been dispelled and no instruction on its effect is necessary. The
committee, therefore, concluded that no instruction on the presumption of
consciousness was needed.
RELATED ISSUES
Inability to Remember
Generally, a defendant’s inability to remember or his hazy recollection does not
supply an evidentiary foundation for a jury instruction on unconsciousness. (People
v. Heffıngton (1973) 32 Cal.App.3d 1, 10 [107 Cal.Rptr. 859]); People v.
Sameniego (1931) 118 Cal.App. 165, 173 [4 P.2d 809] [“The inability of a
defendant . . . to remember . . . is of such common occurrence and so naturally
accountable for upon the normal defects of memory, or, what is more likely, the
intentional denial of recollection, as to raise not even a suspicion of declarations
having been made while in an unconscious condition.”].) In People v. Coston
(1947) 82 Cal.App.2d 23, 40–41 [185 P.2d 632], the court stated that forgetfulness
may be a factor in unconsciousness; however, “there must be something more than
[the defendant’s] mere statement that he does not remember what happened to
justify a finding that he was unconscious at the time of that act.”
Two cases have held that a defendant’s inability to remember warrants an
instruction on unconsciousness. (People v. Bridgehouse (1956) 47 Cal.2d 406, 414
[303 P.2d 1018] and People v. Wilson (1967) 66 Cal.2d 749, 761–762 [59 Cal.Rptr.
156, 427 P.2d 820].) Both cases were discussed in People v. Heffıngton (1973) 32
Cal.App.3d 1 [107 Cal.Rptr. 859], but the court declined to hold that Bridgehouse
and Wilson announced an “ineluctable rule of law” that “a defendant’s inability to
remember or his ‘hazy’ recollection supplies an evidentiary foundation for a jury
instruction on unconsciousness.” (Id. at p. 10.) The court stated that, “[b]oth [cases]
were individualized decisions in which the court examined the record and found
evidence, no matter how incredible, warranting the instruction.” (Ibid.)
Intoxication—Involuntary versus Voluntary
Unconsciousness due to involuntary intoxication is a complete defense to a criminal
charge under Penal Code section 26, subdivision (4). (People v. Heffıngton (1973)
32 Cal.App.3d 1, 8 [107 Cal.Rptr. 859].) Unconsciousness due to voluntary
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intoxication is governed by former Penal Code section 22 [now Penal Code section
29.4], rather than section 26, and is not a defense to a general intent crime. (People
v. Chaffey (1994) 25 Cal.App.4th 852, 855 [30 Cal.Rptr.2d 757]; see CALCRIM
No. 3426, Voluntary Intoxication.)
Mental Condition
A number of authorities have stated that a conflict exists in California over whether
an unsound mental condition can form the basis of a defense of unconsciousness.
(See People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 23 [151 Cal.Rptr. 621]; 1
Witkin California Criminal Law (3d ed. 2000) Defenses, § 32 [noting the split and
concluding that the more recent cases permit the defense for defendants of unsound
mind]; Annot., Automatism or Unconsciousness as a Defense or Criminal Charge
(1984) 27 A.L.R.4th 1067, § 3(b) fn. 7.)
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