California Criminal Jury Instructions (CALCRIM) (2017)

625. Voluntary Intoxication: Effects on Homicide Crimes

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I. IMPAIRMENT DEFENSE
625.Voluntary Intoxication: Effects on Homicide Crimes (Pen.
Code, § 29.4)
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 with an intent to kill[,] [or] [the
defendant acted with deliberation and premeditation[,]] [[or] the
defendant was unconscious when (he/she) acted[,]] [or the defendant
<insert other specific intent required in a homicide charge or
other charged offense>.]
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.
You may not consider evidence of voluntary intoxication for any other
purpose.
New January 2006; Revised August 2014, February 2016
BENCH NOTES
Instructional Duty
With the statutory elimination of diminished capacity as a defense, there is no sua
sponte duty to instruct on the effect of voluntary intoxication on the mental states
required for homicide. (Pen. Code, § 28(b); People v. Saille (1991) 54 Cal.3d 1103,
1119–1120 [2 Cal.Rptr.2d 364, 820 P.2d 588].) However, subsequent cases affirm
that voluntary intoxication can be used to negate an element of the crime that must
be proven by the prosecution. (People v. Reyes (1997) 52 Cal.App.4th 975, 982 [61
Cal.Rptr.2d 39]; People v. Visciotti (1992) 2 Cal.4th 1, 56–57 [5 Cal.Rptr.2d 495,
825 P.2d 388].) Such an instruction is a “pinpoint” instruction, which must be
given on request when there is sufficient evidence supporting the theory. (People v.
Saille, supra, 54 Cal.3d at p. 1120.)
Include the bracketed language regarding unconsciousness if the court also gives
CALCRIM No. 626, Voluntary Intoxication Causing Unconsciousness: Effects on
Homicide Crimes.
If the defendant is charged with a homicide crime that has as an element an
additional specific intent requirement other than intent to kill, include the required
intent in the last bracketed portion of the second sentence. For example, if the
defendant is charged with torture murder, include “whether the defendant intended
to inflict extreme and prolonged pain.” Or, if the defendant is charged with felony-
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murder, insert intent to commit the felony where indicated. Similarly, if the
defendant is also charged with a nonhomicide crime with a specific intent
requirement, include that intent requirement. For example, if the defendant is
charged with murder and robbery, include “whether the defendant intended to
permanently deprive the owner of the property.”
AUTHORITY
• Voluntary Intoxication Defined. Pen. Code, § 29.4(c).
Unconsciousness Not Required. People v. Ray (1975) 14 Cal.3d 20, 28–29
[120 Cal.Rptr. 377, 533 P.2d 1017], disapproved on other grounds in People v.
Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675].
• No Sua Sponte Duty to Instruct. People v. Saille (1991) 54 Cal.3d 1103, 1120
[2 Cal.Rptr.2d 364, 820 P.2d 588].
• Evidence of Intoxication Inapplicable to Implied Malice. Pen. Code, § 29.4(b);
People v. Martin (2000) 78 Cal.App.4th 1107, 1114–1115 [93 Cal.Rptr.2d 433].
• Applies to Attempted Murder. People v. Castillo (1997) 16 Cal.4th 1009,
1016 [68 Cal.Rptr.2d 648, 945 P.2d 1197].
• Voluntary Intoxication Relevant to Knowledge. People v. Reyes (1997) 52
Cal.App.4th 975, 982–986 [61 Cal.Rptr.2d 39].
• This Instruction Upheld. People v. Turk (2008) 164 Cal.App.4th 1361, 1381
[80 Cal.Rptr.3d 473]; People v. Timms (2007) 151 Cal.App.4th 1292, 1298 [60
Cal.Rptr.3d 677].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 30–34.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[4], 73.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.01[3][d.1], [e], 142.02[1][e], [f], [2][b], [3][c]
(Matthew Bender).
RELATED ISSUES
General Instruction on Voluntary Intoxication
This instruction is a specific application of CALCRIM No. 3426, Voluntary
Intoxication, to homicide.
Unconsciousness
Unconsciousness (as defined in CALCRIM No. 3425, Unconsciousness) is not
required. (People v. Ray (1975) 14 Cal.3d 20, 28–29 [120 Cal.Rptr. 377, 533 P.2d
1017], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89
[96 Cal.Rptr.2d 451, 999 P.2d 675].)
Not Applicable in Murder Cases Based Exclusively on Implied Malice
This instruction is inapplicable to cases where the murder charge is exclusively
based on a theory of implied malice, because voluntary intoxication can only
CALCRIM No. 625 HOMICIDE
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negate express malice. (Pen. Code, § 29.4(b); People v. Martin (2000) 78
Cal.App.4th 1107, 1114–1115 [93 Cal.Rptr.2d 433].) Drunk-driving second degree
murder is one type of case that is typically based exclusively on an implied malice
theory.
HOMICIDE CALCRIM No. 625
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