CALCRIM No. 404. Intoxication

Judicial Council of California Criminal Jury Instructions (2020 edition)

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404.Intoxication
If you conclude that the defendant was intoxicated at the time of the
alleged crime, you may consider this evidence in deciding whether the
defendant:
A. Knew that <insert name of perpetrator> intended to
commit <insert target offense>;
AND
B. Intended to aid and abet <insert name of
perpetrator> in committing <insert target offense>.
Someone is intoxicated if he or she (took[,]/ [or] used[,]/[or] was given)
any drug, drink, or other substance that caused an intoxicating effect.
[Do not consider evidence of intoxication in deciding whether
<insert charged nontarget offense> is a natural and probable
consequence of <insert target offense>.]
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on voluntary intoxication; however, the
trial court must give this instruction on request. (See 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] [in context not involving aiding and
abetting].) Although voluntary intoxication is not an affirmative defense to a crime,
the jury may consider evidence of voluntary or involuntary intoxication and its
effect on a defendant’s ability to form specific mental states. (Pen. Code, §§ 22, 26;
People v. Mendoza (1998) 18 Cal.4th 1114, 1131-1134 [77 Cal.Rptr.2d 428, 959
P.2d 735]; People v. Scott (1983) 146 Cal.App.3d 823, 832 [194 Cal.Rptr. 633].)
Give the last bracketed paragraph on request if the defendant was charged with both
target and nontarget crimes. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77
Cal.Rptr.2d 428, 959 P.2d 735].)
Related Instructions
See CALCRIM No. 3426, Voluntary Intoxication, and CALCRIM No. 3427,
Involuntary Intoxication.
AUTHORITY
• Instructional Requirements. Pen. Code, § 29.4; People v. Mendoza (1998) 18
Cal.4th 1114, 1131-1134 [77 Cal.Rptr.2d 428, 959 P.2d 735]; see People v.
167
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]
[in context other than aiding and abetting].
• Burden of Proof. See People v. Saille (1991) 54 Cal.3d 1103, 1118-1119 [2
Cal.Rptr.2d 364, 820 P.2d 588] [in context other than aiding and abetting].
RELATED ISSUES
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].)
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. Heffıngton (1973) 32 Cal.App.3d 1, 8 [107
Cal.Rptr. 859].) Unconsciousness caused by voluntary intoxication is governed by
former Penal Code section 22 [now Penal Code section 29.4], 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].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 30-34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3][c] (Matthew Bender).
405-414. Reserved for Future Use
CALCRIM No. 404 AIDING AND ABETTING
168

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