3426. Voluntary Intoxication
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 <insert specific intent or mental state required, e.g., "the intent to permanently deprive the owner of his or her property" or "knowledge that . . ." or "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 that effect.
[Do not consider evidence of intoxication in deciding whether <insert non-target offense> was a natural and probable consequence of <insert target offense>.]
In connection with the charge of <insert first charged offense requiring specific intent or mental state> the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with <insert specific intent or mental state required, e.g., "the intent to permanently deprive the owner of his or her property" or "knowledge that . . .">. 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>.
<Repeat this paragraph for each offense requiring specific intent or a specific 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]>.]
The court has no sua sponte duty to instruct on voluntary intoxication; however, the trial court must give this instruction on request. (People v. Ricardi (1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364]; People v. Castillo (1997) 16 Cal.4th 1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Although voluntary intoxication is not an affirmative defense to a crime, the jury may consider evidence of voluntary intoxication and its effect on the defendant's required mental state. (Pen. Code, § 22; People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 [61 Cal.Rptr.2d 39] [relevant to knowledge element in receiving stolen property]; People v. Mendoza (1998) 18 Cal.4th 1114, 1131-1134 [77 Cal.Rptr.2d 428, 959 P.2d 735] [relevant to mental state in aiding and abetting].)
Voluntary intoxication may not be considered for general intent crimes. (People v. Mendoza (1998) 18 Cal.4th 1114, 1127-1128 [77 Cal.Rptr.2d 428, 959 P.2d 735]; People v. Atkins (2001) 25 Cal.4th 76, 81 [104 Cal.Rptr.2d 738, 18 P.3d 660]; see also People v. Hood (1969) 1 Cal.3d 444, 451 [82 Cal.Rptr. 618, 462 P.2d 370] [applying specific v. general intent analysis and holding that assault type crimes are general intent; subsequently superceded by amendments to Penal Code Section 22 on a different point].)
If both specific and general intent crimes are charged, the court must specify the general intent crimes in the bracketed portion of the last sentence and instruct the jury that voluntary intoxication is not a defense to those crimes. (People v. Aguirre (1995) 31 Cal.App.4th 391, 399-402 [37 Cal.Rptr.2d 48]; People v. Rivera (1984) 162 Cal.App.3d 141, 145-146 [207 Cal.Rptr. 756].)
Give the bracketed paragraph beginning, "Do not consider evidence of intoxication," when instructing on aiding and abetting liability for a non-target offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77 Cal.Rptr.2d 428, 959 P.2d 735].)
CALCRIM No. 3427, Involuntary Intoxication.
CALCRIM No. 625, Voluntary Intoxication: Effects on Homicide Crimes.
Instructional Requirements. Pen. Code, § 22; People v. Castillo (1997) 16 Cal.4th 1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588].
1 Witkin & Epstein, California Criminal Law 3d (2000) Defenses, § 26.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124, Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
"[E]vidence of voluntary intoxication is no longer admissible on the issue of implied malice aforethought." (People v. Martin (2000) 78 Cal.App.4th 1107, 1114-1115 [93 Cal.Rptr.2d 433], quoting People v. Reyes (1997) 52 Cal.App.4th 975, 984, fn. 6 [61 Cal.Rptr.2d 39].)
Intoxication Based on Mistake of Fact Is Involuntary
Intoxication resulting from trickery is not "voluntary." (People v. Scott (1983) 146 Cal.App.3d 823, 831-833 [194 Cal.Rptr. 633] [defendant drank punch not knowing it contained hallucinogens; court held his intoxication was result of trickery and mistake and involuntary].)
Premeditation and Deliberation
"[T]he trial court has no sua sponte duty to instruct that voluntary intoxication may be considered in determining the existence of premeditation and deliberation." (People v. Hughes (2002) 27 Cal.4th 287, 342 [116 Cal.Rptr.2d 401, 39 P.3d 432], citing People v. Saille (1991) 54 Cal.3d 1103, 1120 [2 Cal.Rptr.2d 364, 820 P.2d 588]; see People v. Castillo (1997) 16 Cal.4th 1009, 1018 [68 Cal.Rptr.2d 648, 945 P.2d 1197] [counsel not ineffective for failing to request instruction specifically relating voluntary intoxication to premeditation and deliberation].)
Unconsciousness Based on Voluntary Intoxication Is Not a Complete Defense
Unconsciousness is typically a complete defense to a crime except when it is caused by voluntary intoxication. (People v. Heffington (1973) 32 Cal.App.3d 1, 8 [107 Cal.Rptr. 859].) Unconsciousness caused by voluntary intoxication is governed by Penal Code section 22, rather than by section 26 and is only a partial defense to a crime. (People v. Walker (1993) 14 Cal.App.4th 1615, 1621 [18 Cal.Rptr.2d 431] [no error in refusing to instruct on unconsciousness when defendant was voluntarily under the influence of drugs at the time of the crime]; see also People v. Ochoa (1998) 19 Cal.4th 353, 423 [79 Cal.Rptr.2d 408, 966 P.2d 442] ["if the intoxication is voluntarily induced, it can never excuse homicide. Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication [citation]."].)
(New January 2006)