California Criminal Jury Instructions (CALCRIM) (2017)

626. Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes

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626.Voluntary Intoxication Causing Unconsciousness: Effects on
Homicide Crimes (Pen. Code, § 29.4)
Voluntary intoxication may cause a person to be unconscious of his or
her actions. A very intoxicated person may still be capable of physical
movement but may not be aware of his or her actions or the nature of
those actions.
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.
When a person voluntarily causes his or her own intoxication to the
point of unconsciousness, the person assumes the risk that while
unconscious he or she will commit acts inherently dangerous to human
life. If someone dies as a result of the actions of a person who was
unconscious due to voluntary intoxication, then the killing is involuntary
manslaughter.
Involuntary manslaughter has been proved if you find beyond a
reasonable doubt that:
1. The defendant killed without legal justification or excuse;
2. The defendant did not act with the intent to kill;
3. The defendant did not act with a conscious disregard for human
life;
AND
4. As a result of voluntary intoxication, the defendant was not
conscious of (his/her) actions or the nature of those actions.
The People have the burden of proving beyond a reasonable doubt that
the defendant was not unconscious. If the People have not met this
burden, you must find the defendant not guilty of (murder/ [or]
voluntary manslaughter).
New January 2006; Revised August 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on voluntary intoxication causing
unconsciousness if there is evidence to support this finding. (People v. Graham
(1969) 71 Cal.2d 303, 316 [78 Cal.Rptr. 217, 455 P.2d 153] [partially abrogated by
Pen. Code, § 29.4(c)]; People v. Ochoa (1998) 19 Cal.4th 353, 423–424 [79
386
0180
Cal.Rptr.2d 408, 966 P.2d 442].) However, the court may properly refuse to give
this instruction when the evidence shows that the defendant acted with malice
before becoming intoxicated. (People v. Whitfield (1994) 7 Cal.4th 437, 455 [27
Cal.Rptr.2d 858, 868 P.2d 272] [partially abrogated by amendments to Pen. Code,
§ 29.4(a)].)
In People v. Ochoa (1998) 19 Cal.4th 353, 423–424 [79 Cal.Rptr.2d 408, 966 P.2d
442] [quoting People v. Graham (1969) 71 Cal.2d 303, 316 [78 Cal.Rptr. 217, 455
P.2d 153]], the court stated,
[I]f the state of unconsciousness results from intoxication voluntarily induced
. . . it is not a complete defense. If the intoxication is voluntarily induced, it
can never excuse homicide . . . . [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.
The committee has chosen not to include the phrase “criminal negligence is
deemed to exist” because the committee concluded that this unnecessarily
complicates the issue for the jury.
AUTHORITY
• Definition of Voluntary Intoxication. Pen. Code, § 29.4(c).
Presumption of Criminal Negligence. People v. Graham (1969) 71 Cal.2d
303, 317, fn. 4 [78 Cal.Rptr. 217, 455 P.2d 153] [partially abrogated by Pen.
Code, § 29.4(c)].
• Malice Preceded Intoxication. People v. Whitfield (1994) 7 Cal.4th 437, 455
[27 Cal.Rptr.2d 858, 868 P.2d 272] [partially abrogated by amendments to Pen.
Code, § 29.4(a)].
• Criminal Negligence. People v. Penny (1955) 44 Cal.2d 861, 879–880 [285
P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 226.
3 Millman, 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
Unconsciousness Does Not Require Inability to Move
“[U]nconsciousness can exist . . . where the subject physically acts in fact but is
not, at the time, conscious of acting.” (People v. Ochoa (1998) 19 Cal.4th 353, 424
[79 Cal.Rptr.2d 408, 966 P.2d 442] [citations and internal quotation marks omitted];
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see also People v. Hughes (2002) 27 Cal.4th 287, 343–344 [116 Cal.Rptr.2d 401,
39 P.3d 432].)
Malice Preceded Intoxication: Drunk Driving
In a case in which the defendant was convicted of second degree murder following
a fatal drunk driving accident, the trial court properly refused to give an
unconsciousness instruction where the defendant’s long history of drinking and
driving established that he acted with malice prior to becoming intoxicated. (People
v. Whitfield (1994) 7 Cal.4th 437, 455 [27 Cal.Rptr.2d 858, 868 P.2d 272] [partially
abrogated by amendments to Pen. Code, § 29.4(a)].)
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