CALCRIM No. 404. Intoxication
Judicial Council of California Criminal Jury Instructions (2023 edition)
Download PDF
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.
173
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
174
© Judicial Council of California.
