Defendant was convicted of driving under the influence of drugs. (Veh. Code, § 23152, subd. (a).)
Defendant took prescription Ambien while at home and fell asleep. He asserted that he was not criminally liable because he was sleep driving and, therefore, unconscious during the incident.
On appeal, defendant contends that the trial court's modified CALCRIM instructions to the jury on unconsciousness, voluntary intoxication, and involuntary intoxication were erroneous. Defendant also contends that the condition of probation imposed by the trial court that prohibits him from driving or having access to a vehicle or keys to a vehicle while he is taking Ambien violates his constitutional rights to travel, free association and privacy.
In the published portion of this opinion, we conclude that, except for the instruction on unconsciousness, the trial court's instructions were not erroneous. In our view, CALCRIM No. 3425 on unconsciousness is flawed, but the error is harmless in this case.
In the unpublished portion of this opinion, we conclude that one aspect of defendant's challenged probation condition is unconstitutionally overbroad and remand the matter to the trial court to address the defect.
Finding no other error, we affirm.
Defendant was charged with four counts stemming from his conduct just before midnight on October 16, 2008: count one, felony driving under the influence (sometimes referred to herein as DUI) (§ 23152, subd. (a)), with three or more DUI-related convictions within the past 10 years (§ 23550); count two, being a habitual traffic offender (§ 14601.3); count three, driving with a suspended or revoked license (§ 14601.5, subd. (a)); and count four, driving a vehicle that was not equipped with a functioning ignition interlock device while his driving privilege was restricted (§ 23247, subd. (e)).
On October 16, 2008, as Jeremy Miller was driving home from work, he saw a car driving erratically, "splitting lanes," veering off the road onto the shoulder, and speeding up and slowing as it traveled east on Interstate 80. Miller called 911 and reported the erratic driving behavior. At the dispatcher's request, Miller followed the car to an ampm Mini Market, where he saw a man leave the car, enter the market, return to the car, and begin to pump gas. He provided the dispatcher with a description of the car and the man who was driving it.
Rocklin Police Officer Jeff Kolaskey responded, arriving at the market shortly after 11:45 p.m. Kolaskey saw a man matching the description Miller had provided standing between the gas pumps and a car that matched Miller's description. When Kolaskey asked defendant his name, instead of responding verbally, defendant pulled out his identification card and gave it to Kolaskey. Kolaskey testified that defendant responded coherently to a series of questions, including: where defendant was coming from, when and what he had last eaten, when he had last consumed alcohol or drugs, when and for how long he had last slept, whether his car had mechanical problems, whether he was diabetic or epileptic, whether he was under a doctor's care, and whether he was taking any medication.
Defendant was cooperative during Kolaskey's interview and responded to all of Kolaskey's questions. Defendant did not stare blankly at the officer or fail to respond to questions. Defendant did not say anything that indicated he was unaware he had been driving or that he was unaware of what he was saying or doing, and Kolaskey testified he had no reason to believe defendant was unaware of those things. On cross-examination, however, Kolaskey admitted testifying at the preliminary hearing that defendant appeared to be incoherent.
In response to the question about where defendant was going, defendant told Kolaskey that he drove from his house in Fair Oaks to get gas. Defendant actually lived in Citrus Heights. In response to the officer's questions about when and what defendant had last eaten, defendant said he had tortilla pizza at 1:00 p.m. that day. In response to the officer's questions about when defendant had last slept and for how long, defendant said he had slept for an hour earlier that day.
Kolaskey observed that defendant had droopy, watery and glassy eyes, slow, slurred speech and a dry mouth. Although defendant's verbal responses made sense to Kolaskey, defendant's words "would run together." Kolaskey also observed that defendant was swaying, and was uneasy standing on his own feet unassisted.
Kolaskey performed a series of field sobriety tests on defendant in the gas station parking lot.
Kolaskey detected no odor of alcohol on defendant, but based on his observations, he concluded that defendant was under the influence of drugs. Kolaskey administered a preliminary alcohol screening test in the field with defendant's consent. The test indicated that defendant did not have alcohol in his system.
Kolaskey placed defendant under arrest for driving under the influence and transported him to the Placer County Jail. There, Kolaskey explained the blood-alcohol test options to defendant and defendant said he would take a blood test. Defendant's blood was drawn for testing at 1:40 a.m.
The blood test showed that defendant had 0.13 milligrams per liter of zolpidem in his system. No alcohol or other drugs were present.
The People's pharmacology expert, Dr. Julianna Landon Burton, testified that zolpidem, which is marketed under the brand name Ambien, among others, is prescribed as a sleep aid and can cause drowsiness, dizziness, confusion, poor motor coordination, and erratic and impulsive behavior.
Dr. Burton opined that the symptoms Kolaskey observed in defendant and the driving behavior Miller reported are consistent with the effects Ambien can have on a user.
According to Dr. Burton, studies show that 1.6 hours after taking the maximum recommended dose of 10 milligrams, people have an average peak level of 0.12 milligrams per liter of Ambien in their blood. Dr. Burton opined that since defendant had been in custody between 11:45 p.m. (the time when Officer Kolaskey encountered defendant) and 1:40 a.m. (when his blood was drawn), he had to have taken more than the maximum recommended dosage of 10 milligrams of Ambien on October 16. It is not possible to tell how much more defendant took without knowing how long before 11:45 p.m. he ingested the drug.
Dr. Burton testified that sleep driving is a rare side effect of Ambien. In 2007 and 2008, the manufacturer of Ambien sent letters to health care professionals to warn them that Ambien can cause sleep driving. According to Dr. Burton, there had been a cumulative total of approximately 1,000 reported cases of sleep driving while under the influence of Ambien, and it is estimated that 26 million Ambien prescriptions are written per year. Dr. Burton stated that as of 2007, federal law requires that a warning relating to sleep driving as a possible side effect of Ambien be included in the written materials included in each prescription of Ambien. Dr. Burton testified that Ambien has also been associated with sleep walking, preparing food, eating, making phone calls and engaging in conversations and other behaviors a person does not typically engage in while asleep. Ambien has also been associated with amnesia.
Defendant testified that in October 2008, he worked in construction. At that time, he suffered from insomnia, a condition he had had "for a long time." Without medication, he usually could not sleep for two to three days. By October 2008, he had been taking Ambien for insomnia for six or seven years, under the care of his physician, Dr. Thomas Dolkas. Defendant's Ambien dosage had remained the same since 2002. Dr. Dolkas testified he
Defendant testified that he was prescribed "One 10 milligram dose. One pill at bedtime." He testified that he had never been told by a medical professional that he could not take more than one dose of Ambien within a 24-hour period, but he knew he should not.
Dr. Dolkas testified that he had never had a conversation with defendant about sleep driving or other complex behaviors associated with Ambien, such as making phone calls or preparing food while asleep.
Defendant testified he was aware of warnings that Ambien causes sedation, drowsiness, or dizziness. Defendant was also aware that Ambien use is associated with other complex behaviors such as sleep eating and having conversations with others while the user is asleep. In fact, defendant had made phone calls while he was asleep. He testified that, prior to October 16, 2008, he had called his mother, his ex-wife, and others on a few occasions and engaged in conversation while he was asleep. Defendant also thought he may have left his house and returned while sleeping one night. He had been told that a friend who came over to check on him because he had been making phone calls found his door open, but found him at home. Defendant was aware, from what he saw on television, that an Ambien user who experiences "complex behaviors" while asleep should consult a doctor. Defendant admitted he did not talk to a doctor about making telephone calls while asleep because, even though it was embarrassing, he was not concerned about these incidents. During an interview with his defense expert, Dr. Gregory Sokolov, defendant told Dr. Sokolov that the sleep conversations did not scare him that much. Defendant also did not report to his doctor the incident in which friends had become concerned about phone calls he made one night, after which they went to check on him and found his door had been left open.
As for sleep driving, defendant testified he had heard the warnings about sleep driving in relation to Ambien use on television "probably a couple years" before October 16.
Defendant testified that although he remembered a police officer standing in front of him, he did not remember driving to Rocklin, his conversation with the police officer, taking field sobriety tests, or being taken to the police station. According to defendant, the first thing he remembered after he took Ambien on the morning of October 16, 2008, was waking up in jail dressed in orange. In contrast, defendant told his psychiatric expert, Dr. Sokolov, that he remembered his blood draw, which took place before defendant allegedly woke up in jail.
Similar to the prosecution's expert, Dr. Sokolov testified that he recalled receiving a letter from the manufacturer of Ambien that had been sent to health care professionals warning about sleep driving. Dr. Sokolov opined that on October 16, 2008, defendant was in a state of sedative hypnotic intoxication as a result of taking Ambien. According to Dr. Sokolov, one is not fully aware and cannot process information in a conscious and rational manner when in a state of sedative hypnotic intoxication. Based on his understanding that defendant appeared confused and robotic to Officer Kolaskey, Miller's observation of defendant's erratic driving, defendant's inability to remember what happened on October 16 and defendant's prior episodes of having conversations while asleep, Dr. Sokolov opined that, "within a medical certainty," defendant was in a state of sedative hypnotic intoxication, known as "sleep driving," on October 16. Dr. Sokolov testified that Ambien affects the judgment center of the brain, but not ingrained memories of behaviors in which the Ambien user has previously repeatedly engaged, such as driving. Dr. Sokolov agreed, however, that responding intelligibly to specific questions by a police officer evidences a conscious act. He also agreed that indicating understanding of field sobriety test instructions is evidence of awareness. It is evidence that "at some level ... there is processing of information, basic commands [to] do this [or do] that."
Dr. Sokolov testified that defendant told him he had no memory of taking the Ambien pills he was missing. According to Dr. Sokolov, taking more pills might be complex behavior caused by the Ambien. However, he cited no
Like Dr. Sokolov, defendant's pharmacology expert, Dr. Alan Donelson, testified that while under the influence of Ambien, a user is not fully conscious of what he or she is doing. It is "almost as if part of their brain is asleep and part of their brain is not." Dr. Donelson testified that Ambien has been associated with complex ambulatory behaviors, such as sleep driving, food preparation and sleep eating. There have been reports of people who have taken Ambien making uncharacteristic phone calls and having emotional but intelligible conversations with others while asleep.
According to Dr. Donelson, sleep driving has been "widely recognized as a problem." Dr. Donelson testified that a study revealed gross deviation from normal driving behaviors, such as failing to maintain lanes, running off the road, running up on sidewalks, and driving into objects. Upon getting out of a vehicle, the sleep driver will have the appearance of a grossly intoxicated person, slurring his or her words, looking half asleep, and swaying while standing. To the uneducated eye, the person appears to be drunk, rather than asleep. Dr. Donelson was not asked about one's ability to understand and perform field sobriety tests or the behaviors exhibited during such testing.
Dr. Donelson opined that the results of defendant's blood test and Kolaskey's and Miller's observations on October 16, 2008, are consistent with defendant being asleep while he was driving.
Dr. Donelson testified that Ambien metabolizes quickly. A person with severe insomnia who is worrying or anxious may not sleep through the night because the drug has its peak effect after only two hours. After four hours, the drug has worn off. "[I]t's not going to get you through the night if part of you wants to continue to worry and stay awake."
According to Dr. Donelson, the level of 0.13 milligrams per liter of zolpidem measured in defendant's blood draw at 1:40 a.m. would be within the therapeutic range provided the drug was ingested four hours before. But if a person were to have last taken Ambien 14 hours prior to the blood draw at 1:40 a.m. resulting in a level of 0.13 milligrams per liter, that person would have had to have taken a "huge dose." The dose would "probably" have been "close to a toxic level, four or five or six tablets." Unlike Dr. Sokolov, Dr. Donelson did not testify that taking more pills while asleep is a complex behavior caused by Ambien.
The jury found defendant guilty of driving under the influence as charged in count one of the complaint. Defendant waived his right to a jury trial on
Defendant was granted formal probation for a period of five years and ordered to serve 180 days in jail with seven days' credit for the convictions in the present case. However, the trial court granted defendant's motion to stay the execution of his judgment and sentence pending this appeal.
The trial court reinstated defendant's probation in his two prior driving-under-the-influence-related cases, ordered defendant to serve 60 days in one case and 19 days in the other, to run consecutively to each other and to the sentence in this case.
Prior to trial, defendant filed an in limine motion in which he requested the standard jury instructions on unconsciousness and involuntary intoxication. Defendant argued that the trial court should give CALCRIM Nos. 3425,
Thereafter, the prosecutor filed a motion to exclude evidence of unconsciousness on the grounds that voluntary intoxication is not a defense to driving under the influence, and involuntary intoxication is not at issue where defendant intentionally took Ambien after having engaged in ambulatory behavior while asleep on prior occasions.
Defendant subsequently filed an "adde[n]dum" to his in limine motion, requesting modified versions of CALCRIM Nos. 3425, unconsciousness
The trial court reserved ruling on the instructions until the evidence was presented. Ultimately, the court rejected defendant's proposed instructions and gave its own modified CALCRIM instructions on unconsciousness and involuntary intoxication, as well as a modified CALCRIM instruction on voluntary intoxication. The trial court instructed the jury as follows:
"The defendant is not guilty of driving under the influence if he acted while legally unconscious. Someone is legally unconscious when he is not
"Voluntary intoxication is
"Involuntary intoxication is a defense to driving under the influence. If you conclude that the defendant's state of intoxication was involuntary, then the defendant's state of consciousness or lack thereof shall be considered pursuant to a separate instruction regarding unconsciousness as previously read. [¶] A person is involuntarily intoxicated if the defendant knowingly — excuse me — unknowingly[
"A trial court must instruct the jury `on the law applicable to each particular case.' [Citation.] `[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.' [Citation.] Therefore, a claim that a court failed to properly instruct on the applicable principles of law is reviewed de novo. [Citation.] In conducting this review, we first ascertain the relevant law and then `determine the meaning of the instructions in this regard.' [Citation.] [¶] The proper test for judging the adequacy of instructions is to decide whether the trial court `fully and fairly instructed on the applicable law ....' [Citation.] `"In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole ... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]"' [Citation.]
"The meaning of instructions is no[t] ... determined under a strict test of whether a `reasonable juror' could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a `reasonable likelihood' that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276 [107 Cal.Rptr.2d 160] (Dieguez).)
The question of whether intoxication is voluntary or involuntary focuses on whether the intoxication is induced through the defendant's fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests. If intoxication is the result of the defendant's own fault or the defendant knows or has reason to anticipate the intoxicating effects, the intoxication is voluntary. (Velez, supra, 175 Cal.App.3d at p. 796; Chaffey, supra, 25 Cal.App.4th at pp. 856-858.)
There is a dearth of published California decisions on whether the voluntary and knowing ingestion of prescription medication constitutes voluntary or involuntary intoxication. In Chaffey, the defendant had been prescribed Xanax for anxiety and sleeplessness. She took an overdose in an effort to commit suicide. (Chaffey, supra, 25 Cal.App.4th at pp. 854-855.) The overdose rendered the defendant unconscious so that she had no awareness of what she was doing. The defendant drove her car and was arrested for driving under the influence. (Id. at pp. 853-854.) She had no recollection of what she did after taking the Xanax. (Chaffey, supra, 25 Cal.App.4th at p. 854.) Her psychiatrist testified that the defendant was unconscious when she was driving. (Ibid.)
Sitting as the trier of fact after the parties waived a jury trial, the trial court concluded that the intoxication must have been voluntary because it was predictable that the defendant would go through a period of sleepiness after taking an overdose of Xanax and that something would happen during that time. (Chaffey, supra, 25 Cal.App.4th at p. 854.) Accordingly, the trial court found defendant guilty of driving under the influence. (Ibid.) The appellate department of the trial court reversed the judgment based on the conclusion that the defendant was involuntarily intoxicated as a matter of law because, in
The Court of Appeal canvassed out-of-state cases involving intoxication from the use of prescription drugs. (Chaffey, supra, 25 Cal.App.4th at pp. 856-857.) These cases held that the intoxication is voluntary when the defendant knew or should have known of a drug's potential intoxicating effects. (Ibid.) The Chaffey court held that although a trier of fact could legitimately have found involuntary intoxication under the circumstances of that case, substantial evidence supported the trial court's finding of voluntary intoxication. (Id. at pp. 857-858.) In particular, the court noted that the defendant voluntarily swallowed the Xanax tablets, the label warned her that Xanax would cause drowsiness, and one should not operate heavy equipment when taking Xanax. (Id. at pp. 854, 857.) The court reasoned, "[i]t may be true that [the defendant] did not intend or even expect to be able to stand up let alone drive a car. Although such a specific event was not predictable or necessarily foreseeable from her past experience with Xanax, it is possible as the trial judge stated that she `... would go through a period of sleepiness and that something would happen in that period of time ....'" (Id. at p. 857.)
Defendant argues that the trial court's instructions on unconsciousness, voluntary intoxication, and involuntary intoxication were erroneous. We agree that the instruction on unconsciousness was flawed, but disagree that the other instructions were erroneous. We conclude that the flaws in the unconsciousness instruction are harmless.
Defendant contends that the trial court's instruction on unconsciousness is erroneous for two reasons. First, citing CALCRIM No. 3425, defendant contends that the trial court erred in declining to add "sleep driving" as a cause of unconsciousness. Second, defendant contends that the court's instruction directed the jury to ignore the expert testimony and to find defendant was not legally unconscious. We reject the first contention, but find some merit to the second.
Defendant requested an instruction that states, in relevant part, "Unconsciousness may be caused by a blackout, an epileptic seizure, involuntary
Defendant apparently equates his proposed insertion of "sleep driving" with the parenthetical reference to "sleep walking" or "other similar condition" in CALCRIM No. 3425. Defendant is mistaken, but the mistake is understandable given the CALCRIM reference to "sleep walking."
In the context of legal unconsciousness, somnambulism
The trial court's modified instruction, which stated that unconsciousness may be caused by involuntary intoxication, is a correct statement of the law (Velez, supra, 175 Cal.App.3d at p. 793), and the Judicial Council did not contemplate that each recognized cause of legal unconsciousness be listed for every jury. The recognized causes are set forth as options within parentheses. This, of course, indicates that the trial court is to select only the potential cause supported by the evidence. (See 1 CALCRIM (2012) Guide for Using Judicial Council of Cal. Crim. Jury Instns. (CALCRIM) Alternatives vs. Options, p. xxvi ["[w]hen the user must choose one of two or more options in order to complete the instruction, the choice of necessary alternatives is presented in parentheses ..."].) This is appropriate since listing causes not supported by the evidence could be potentially confusing for the jury.
Defendant's proposed modification sets forth a list of several alternative causes of legal unconsciousness — sleep driving being one alternative. But the insertion of the phrase "sleep driving," in addition to the inclusion of involuntary intoxication as a cause of legal unconsciousness, would have made the instruction read as if legal unconsciousness could result from involuntary intoxication or sleep driving (or one of the other listed conditions). Such an instruction would have effectively blurred the distinction between voluntary intoxication resulting in sleep driving, which is not excusable, and involuntary intoxication resulting in sleep driving, which is excusable.
Consistent with CALCRIM No. 3425 and the proposed modified instruction submitted by defendant, the court instructed the jury: "The People must prove beyond a reasonable doubt that the defendant was legally conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was legally conscious. If, however, based on all of the evidence you have a reasonable doubt that he was legally conscious, you must find him not guilty." (Italics added.)
While defendant offered the same language in his proposed modification to CALCRIM No. 3425,
Before discussing the flaws we see in the challenged instruction, we first review the history of the instruction and the legal rule it is intended to address — the presumption of consciousness.
The Hardy court went on to note that the presumption serves only to require the defendant to produce sufficient evidence to raise a reasonable doubt in the minds of the jury. (Hardy, supra, 33 Cal.2d at p. 64.) One reason for this rebuttable presumption "is that [the cause of unconsciousness] relates to defendant personally and lies peculiarly within his knowledge, and hence for reasons of convenience and necessity he should have the burden of producing evidence thereon." (Ibid.) This presumption does not change the prosecution's burden to prove the charged offense beyond a reasonable doubt, however. (Ibid.) A defendant can overcome the presumption regarding consciousness by simply producing sufficient evidence to raise a reasonable doubt that he or she was conscious when he or she acted during the commission of the alleged crime. (Ibid.)
In People v. Williams (1971) 22 Cal.App.3d 34 [99 Cal.Rptr. 103] (Williams), the defendant contended at trial he was in the throes of a psychomotor epileptic attack that rendered him unconscious when he shot and killed a complete stranger. (Williams, supra, 22 Cal.App.3d at p. 38.) The trial court instructed the jury on unconsciousness, using the pre-1972 version of CALJIC No. 4.31.
In People v. Maxey (1972) 28 Cal.App.3d 190, 200 [104 Cal.Rptr. 466] (Maxey), the court observed, "[t]he first [sentence in the pre-1972 version of CALJIC No. 4.31], standing alone, would require the jury to find a defendant conscious, if they were convinced beyond a reasonable doubt that he acted as if he were conscious. Thus, the jury would be precluded from finding a defendant unconscious in a case where his overt acts were those of a conscious person and regardless of any expert testimony or other evidence of unconsciousness. The second [sentence] of the instruction, however, properly concludes that `... if the evidence raises a reasonable doubt that he was in fact conscious, you should find [that] he was unconscious.' Although the second [sentence] is somewhat saving, we nevertheless agree with the court in Williams ... that the first [sentence] is misleading and that the total instruction is confusing, at the very least."
In People v. Cruz (1978) 83 Cal.App.3d 308 [147 Cal.Rptr. 740] (Cruz), the Court of Appeal observed that CALJIC No. 4.31 was modified in 1972 to address the concern about expert witness testimony expressed in Williams and Maxey. (Cruz, supra, 83 Cal.App.3d at p. 331.) The 1972 revision added the following italicized language to the instruction: "`However, if, notwithstanding the defendant's appearance of consciousness, the evidence raises a reasonable doubt whether he was in fact conscious, you should find that he was then unconscious.'"
Williams and Cruz were discussed in People v. Kitt (1978) 83 Cal.App.3d 834 [148 Cal.Rptr. 447] (Kitt), disapproved on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d 865]. Disagreeing with Cruz, the court in Kitt held that the 1972 revision to CALJIC No. 4.31 cured the defect identified in Williams. (Kitt, supra, 83 Cal.App.3d at pp. 842-843.) Noting that Williams rejected the earlier version of CALJIC No. 4.31 as a conclusive presumption of consciousness following from the fact that a defendant acted in a conscious manner, the court in Kitt observed, "[t]he second paragraph of CALJIC No. 4.31, as revised in 1972, sets forth the method of operation of [the rebuttable] presumption. It does so properly without using the term `presumption.' We find nothing confusing or contradictory in the instruction." (Kitt, supra, 83 Cal.App.3d at p. 842; see People v. Caldwell (1980) 102 Cal.App.3d 461, 478-479 [162 Cal.Rptr. 397] (Caldwell) [agreeing with Kitt that the 1972 revision cured the problem identified in Williams].)
While the defect noted in Williams was corrected, the court in Kitt found fault with the second sentence of the 1972 revision of CALJIC No. 4.31: "`However, if, notwithstanding the defendant's appearance of consciousness, the evidence raises a reasonable doubt whether he was in fact conscious, you should find that he was then unconscious.'" (Kitt, supra, 83 Cal.App.3d at p. 841, italics added.) The court took exception with the use of the word "should" and suggested it be substituted with the word "must." "The use of the word `should' might well be understood by the jury as not requiring it to make a finding of unconsciousness under the circumstances of reasonable doubt."
The Supreme Court reasoned that CALJIC No. 4.31 did not require the defendant to persuade the jury that he was unconscious. (Babbitt, supra, 45 Cal.3d at p. 695, fn. 15.) The instruction merely required the defendant to "raise a reasonable doubt that he was conscious, and then only if the prosecution's proof did not of itself raise such a doubt." (Id. at pp. 694, 695, fn. 15.)
Our high court further reasoned that CALJIC No. 4.31 must be read together with the other instructions the trial court gave to the jury (Babbitt, supra, 45 Cal.4th at p. 695), noting that the jury was instructed on the presumption of innocence, the prosecution's burden of proving every element of the charged offenses beyond a reasonable doubt, the sufficiency of circumstantial evidence to prove specific intent or mental state, that unconsciousness was a complete defense, and that if there was reasonable doubt
Thus, the Babbitt court approved of the manner in which the presumption of consciousness was handled in the 1979 revision of CALJIC No. 4.31.
We note first that the instruction improves on the prior CALJIC iterations. The two sentences of the third paragraph in CALCRIM No. 3425 referenced above are preceded by: "The People must prove beyond a reasonable doubt that the defendant was legally conscious when he acted." This emphasis was not in any of the CALJIC instructions, and it positively reinforces both the burden of proof and the fact that the prosecution bears that burden.
Looking now to the two similarities, we note that the instruction is different from the instruction criticized in Williams and somewhat consistent with the 1972 and 1979 revisions of CALJIC No. 4.31 discussed in Babbitt. CALCRIM No. 3425 tells the jury to consider all of the evidence when deciding whether there is a reasonable doubt that the defendant was conscious. Also, the word "must" is used as suggested by the court in Kitt.
We have one other observation about the trial court's modified version of CALCRIM No. 3425. In our view, the trial court's modification to the second paragraph in CALCRIM No. 3425 makes the instruction superior to the current version in the context of an intoxication defense case. In explaining the law of unconsciousness, the trial court explained that while involuntary intoxication can cause legal unconsciousness, voluntary intoxication cannot. This additional language served to enhance the jury's understanding of the law and focused the jury's attention on the predicate to the application of the instruction on unconsciousness — Was defendant's intoxication voluntary or involuntary?
The trial court instructed the jury that voluntary intoxication is not a defense to driving under the influence, and if the jury concluded that defendant's state of intoxication was voluntary, defendant's state of consciousness or lack thereof should not be considered a defense to driving under the influence. Defendant contends that these instructions impermissibly relieved the prosecution of the burden of proving "the element of `mental state,' specifically knowledge." Defendant asserts that even if the jury found voluntary intoxication, it could still have found that defendant's "condition" negated his knowledge that Ambien could cause "intoxicating effects, or ambulatory effects such as sleep driving." Defendant further argues that the trial court had a sua sponte duty to instruct on the union of act and mental state pursuant to CALCRIM No. 251, union of act and intent: specific intent or mental state.
Defendant misplaces reliance on People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385, 926 P.2d 365] to make his point. In discussing CALJIC No. 3.31, the former pattern instruction on the rule in Penal Code section 20, our high court stated, "[b]y its very terms, this instruction applies only to `crimes' ...." (Alvarez, supra, 14 Cal.4th at p. 221.)
Because driving under the influence is a general intent crime, the trial court gave a modified version of CALCRIM No. 250, union of act and intent: general intent. The trial court told the jury that to find defendant guilty of driving under the influence, the jury must find that defendant committed the prohibited act, and that defendant intentionally did the wrongful act; however, there is no requirement that defendant intended to break the law. In the modified portion of the instruction, the court expressly referred the jury to the instructions relating to unconsciousness, voluntary intoxication, and involuntary intoxication for the specific rules as they relate to the general intent required in the case. This instruction was appropriate. Indeed, like the court's modification of the unconsciousness instruction, the modification to CALCRIM No. 250 enhanced the jury's comprehension of the law and focused the jury on the central issue in the case.
The trial court also instructed the jury it could find defendant was voluntarily intoxicated if it found defendant willingly and knowingly ingested an intoxicating substance when he knew the substance could produce an intoxicating effect. (Pen. Code, § 22, subd. (c); Chaffey, supra, 25 Cal.App.4th
Defendant contends that the trial court erred by refusing to instruct the jury it had to find defendant was involuntarily intoxicated if it determined defendant did not know or have reason to know that Ambien would specifically cause him, as opposed to consumers in general, to sleep drive.
The jury here was instructed that a person is involuntarily intoxicated if he voluntarily ingested a legally prescribed drug that caused him to act unconsciously, "without knowing or that he reasonably should have known of the drug's intoxicating effects." The trial court further instructed, "In determining whether intoxication by prescription drug is involuntary, consider whether the defendant knew or had reason to anticipate that his use of the prescription drug could cause such intoxicating effects." These instructions adequately stated the law on unconsciousness and involuntary intoxication. (Velez, supra, 175 Cal.App.3d at p. 796; Chaffey, supra, 25 Cal.App.4th at pp. 856-858.)
As we have indicated, the flaws we have identified in CALCRIM No. 3425 were harmless in this case.
In our harmless error analysis, we first focus on the evidence that establishes defendant was voluntarily intoxicated, because if he was, as defendant appropriately conceded at oral argument, the flaw in the unconsciousness
Dr. Burton testified that each prescription of Ambien must include a written warning that Ambien can cause sleep driving. Dr. Donelson called sleep driving a "widely recognized" problem. Defendant did not claim actual ignorance of Ambien's intoxicating effects. To the contrary, defendant admitted that, prior to his arrest, he was aware of warnings that Ambien can cause sleep driving and other complex behaviors while the user is asleep. Defendant knew that prior to his arrest he had engaged in "complex behaviors" while asleep on multiple occasions. Although defendant knew from what he saw on television that he should consult a doctor if he experienced "complex behaviors" while asleep and using Ambien, he chose not to consult his doctor. Defendant knew or should have known that Ambien causes sleep driving, even though he had not previously personally experienced a sleep-driving episode after using Ambien. (Chaffey, supra, 25 Cal.App.4th at p. 857).
There was evidence that defendant actually took more than the maximum prescribed dosage. By his own testimony, he took at least one more pill than was prescribed in a 24-hour period. Furthermore, tablets were purportedly "missing." Defendant testified four pills were missing, but he told Dr. Sokolov that seven or eight were missing. Based on the amount of zolpidem in defendant's system at the time of his arrest, Dr. Burton opined that defendant had taken more than the maximum prescribed dosage. And if defendant last took Ambien at the earlier time he claimed, Dr. Donelson opined that defendant would have taken a "huge dose," probably close to a toxic level — as many as four to six tablets. And defendant knew he should not take more than one tablet in a 24-hour period, even though his doctor did not tell him this.
Not only was there evidence defendant took more than the recommended maximum dosage, but there was also evidence that he attempted to conceal having taken Ambien by telling the officer he had taken prescription Vicodin at two specific times on that day — once in the morning and again in the afternoon — while never mentioning he had taken any Ambien at all. A consciousness of guilt can be inferred from this concealment.
The evidence overwhelmingly establishes defendant knew or should have known that the Ambien he took could have caused sleep driving, even though he had not previously personally experienced a sleep-driving episode after
Even if the unconsciousness instruction did apply, the flaw in the instruction is nonetheless harmless in this case. "If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963 [86 Cal.Rptr.2d 243, 978 P.2d 1171] (Smithey).) On review, the instructions must be examined as a whole, in light of the trial record. (People v. Paysinger (2009) 174 Cal.App.4th 26, 30 [93 Cal.Rptr.3d 901] (Paysinger) [court determined it was not "reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt"]; see Dieguez, supra, 89 Cal.App.4th at p. 276.)
Our examination of the trial record includes consideration of the arguments of counsel. (See People v. Garceau (1993) 6 Cal.4th 140, 189 [24 Cal.Rptr.2d 664, 862 P.2d 664].) Similar to our harmless error analysis, the thrust of the prosecutor's argument was that defendant's intoxication was voluntary and, as a consequence, the jury need not reach the issue of defendant's consciousness. The prosecutor told the jury, "The first question you have to ask yourself is after you establish he was under the influence, was the intoxication voluntary or was it involuntary, because that makes all the difference in this case." He later told the jury, "Voluntary intoxication is not a defense to driving under the influence of a drug. If you conclude that the defendant's state of intoxication was voluntary, then the defendant's state of consciousness shall not be considered.... If you find voluntary, do not consider consciousness, and the outcome is guilty. That's where the law is." The prosecutor later made the point again. "The intoxication is voluntary. The result is you cannot consider his state of consciousness in this case, and he's responsible for his own actions regardless of his state of consciousness.... That's what the law is, and, if you apply it, the defendant is guilty of this crime."
The prosecutor mentioned the unconsciousness instruction, but only to say, "This is the instruction that you cannot use unless you find that the ... intoxication was involuntary.... You can't even get here unless you find involuntary intoxication."
In discussing unconsciousness, the prosecutor never suggested the jury was compelled to conclude defendant was conscious because he acted as if he was
Lastly, we examine the instructions as a whole. "`"`[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'"'" (Smithey, supra, 20 Cal.4th at p. 963.) In addition to instructing the jury on unconsciousness, voluntary intoxication, and involuntary intoxication, the trial court instructed the jury that it may not convict defendant unless the prosecution proved defendant's guilt beyond a reasonable doubt, that the prosecution must prove beyond a reasonable doubt that defendant was conscious when he acted, that the jury must consider all of the evidence, and that if two or more reasonable conclusions could be drawn from circumstantial evidence — one pointing to guilt and the other pointing to innocence — the jury must accept the one pointing to innocence. The jury was also instructed on the manner in which it must evaluate expert and other witness testimony. The instruction used here, although flawed, did reference the requirement that the jury consider all of the evidence when determining whether there was a reasonable doubt defendant was conscious when he drove.
Given the entirety of the instructions, the trial evidence and the arguments of counsel, it was not reasonably likely the jury could have believed it was required to find defendant was conscious without considering all of the evidence presented, including the expert testimony, or that defendant bore the burden of persuading the jury that he was unconscious while driving. (Paysinger, supra, 174 Cal.App.4th at p. 30; Dieguez, supra, 89 Cal.App.4th at p. 276.) Accordingly, the error occasioned by the flaw in CALCRIM No. 3425 was harmless.
The trial court is directed to modify the probation condition that prohibits defendant from having access to a vehicle or keys to a vehicle while he is taking Ambien. In all other respects, the judgment is affirmed.
Raye, P. J., and Butz, J., concurred.
"A couple years before" his arrest is more consistent with the other evidence. As we have noted ante, federal law required that written warnings about sleep driving be provided in each prescription beginning in 2007. Ambien's manufacturer sent sleep-driving warnings to health care professionals in 2007 and 2008.
We also note that only one case is cited in the Authority section following CALCRIM No. 3425, in the bullet entitled, "Unconscious State: Somnambulism or Delirium." That case is People v. Methever (1901) 132 Cal. 326, 329 [64 P. 481]. overruled on other grounds in People v. Gorshen (1953) 51 Cal.2d 716 [336 P.2d 492]). But Methever did not involve somnambulism or sleep walking. (Methever, supra, 132 Cal. at p. 328.) The defendant in Methever pled insanity and also asserted unconsciousness, claiming that he had previously suffered serious head injuries and also that he had an attack of delirium tremens at the time of the crime. (Ibid.)
In a prescription drug case such as this, it perhaps would have been less distracting and more simply stated to tell the jury: "Involuntary intoxication is a defense to driving under the influence. A person is involuntarily intoxicated if he or she willingly and knowingly ingested a prescribed drug and did not know or reasonably could not have known of the drug's intoxicating effects." Thus stated, there would have been no need for the last sentence in the trial court's modified instruction. We recommend that the Judicial Council adopt such an instruction to be used in prescription drug cases where it is alleged the defendant willingly and knowingly took the prescription drug.
Here, it would have been appropriate if the third element in the court's voluntary intoxication instruction read: "And three, the defendant knew or reasonably should have known the substance could produce an intoxicating effect." Defendant does not assign the court's failure to include "reasonably should have known" language in the voluntary intoxication instruction as error, and we conclude the trial court's failure to include this mirror image language in the voluntary intoxication instruction was harmless. The instructions as a whole were adequate. "There is no error in a trial court's failing ... to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given." (Dieguez, supra, 89 Cal.App.4th at p. 277.)
We recommend that the Judicial Council adopt the following instruction for voluntary intoxication to be used in cases where the defense involves a claim of unconsciousness resulting from the unexpected effect of prescription drugs: "Voluntary intoxication is not a defense
