P. v. Hanna

P. v. Hanna








Filed 1/6/12 P. v. Hanna CA4/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. DENNIS DALE HANNA, Defendant and Appellant.

E051955 (Super.Ct.No. SWF029251) OPINION

APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Dennis Dale Hanna guilty of oral copulation of a child under the age of 10 years (Pen. Code, § 288.7, subd. (b), count 1) and lewd act on a child under the age of 14 years (Pen. Code, § 288, subd. (a), count 2).^[1] Defendant was sentenced to a total term of 15 years to life in state prison with credit for time served. Defendant’s sole contention on appeal is that the trial court prejudicially erred in denying his request to instruct the jury on the defense of unconsciousness as to count 1. We reject this contention and affirm the judgment.
I
FACTUAL BACKGROUND
In September 2009, defendant lived with his brother (C.H.) and his brother’s girlfriend (C.A.) in Lake Elsinore. The brother and girlfriend had five children. Defendant had a good relationship with all five children, but showed “special attention” to Jane Doe. Jane “really liked” defendant and would “follow him around like a puppy dog.”
On September 14, 2009, defendant was not feeling well and had taken some cold medicine. He was also drinking heavily, consuming a large amount of whiskey and beer. However, defendant did not appear intoxicated. Later in the evening, C.A. put her five children to bed. C.A. and C.H. were in their room, watching a movie. Defendant was in the living room on the couch. C.A. and C.H. believed defendant was asleep, but they were not sure. C.H. noticed defendant was sitting up with his eyes closed.
Later that night, around 11:30 p.m., C.A. went to check on Jane and discovered that she was not in her bedroom. She went into the living room and saw Jane lying on the couch with defendant. Jane’s pants and underwear were pulled down and defendant was licking her vagina. C.A. began screaming for C.H., grabbed Jane away from defendant, and told defendant to get out of her house. C.H. came out of the bedroom and saw C.A. pulling up Jane’s underwear and pajama bottoms. Defendant said, “‘Oh shit,’” grabbed his belongings, left the house, and drove away in his truck. C.H. asked Jane what happened and she said, “‘Um, [defendant] licked my [va]gina.’”
The following morning defendant called C.A. and left a voicemail apologizing and saying that he “didn’t know what happened.” Later that day, C.A. went to the police station with Jane and reported the incident. The police conducted two forensic interviews with Jane. During one of those interviews, Jane said defendant had licked her vagina while she was with him on the couch. She also stated that defendant had previously licked her vagina when she was about four years old. In the first interview, Jane did not disclose any abuse.
After waiving his constitutional rights, defendant was subsequently interviewed. During the interview, defendant wrote an apology letter to Jane, C.H., and C.A. He stated that he did not remember what happened on the night of the incident because he was drunk; but acknowledged that C.A. had no reason to make up what she saw and that if C.A. said she saw him orally copulating Jane, then it must have happened. Defendant further claimed that after he left, he realized he was unable to drive, still feeling the effects of alcohol, so he moved his truck to the other side of the parking lot and slept in his truck.
Defendant testified on his own behalf. He asserted that he was not feeling well on the night of the incident and had taken “double the dosage” of cold medicine and drank “heavily” for the rest of the evening. His mind was vague thereafter, and he did not remember anything until he awoke to C.A. screaming at him to get out of the house. He claimed that he never had any sexual interest in children; that he had never been accused of inappropriately touching a child; and that he was unconscious and sleeping when the current incident occurred.
Defendant’s parents and sister also testified on behalf of defendant. They stated that they had never witnessed defendant display any sexual interest in children.
II
DISCUSSION
Defendant contends the trial court prejudicially erred in denying his request to instruct the jury on the defense of unconsciousness as to oral copulation of a child under the age of 10 years (count 1). We disagree.
A. Additional Factual Background
At trial, defense counsel requested the trial court to instruct the jury with CALCRIM No. 3425 (unconsciousness instruction) and CALCRIM No. 3426 (voluntary intoxication instruction). The People opposed these instructions.
The trial court noted that count 1 (oral copulation of a child under the age of 10 years, § 288.7, subd. (b)) is a general intent crime, whereas count 2 (lewd act on a child under the age of 14 years, § 288, subd. (a)) is a specific intent crime. As such, the trial court was inclined to give the challenged instructions as to count 2 only.
Defense counsel argued, “I think the defense on the state of the evidence would be entitled to this instruction simply on the defendant’s testimony that he was asleep at the time of whatever happened and was woken up by [C.A.]” The trial court inquired, “[w]hen did the defendant ever testify that he went to sleep‌” Defense counsel acknowledged that defendant did not testify that he went to sleep, “but he testified that he was woken up,” and “the only inference from that is that if you’re woken up, you’re woken up from a state of sleep.” The trial court rejected this argument, explaining that one could be woken up from a blackout as in this case where defendant testified that he remembered drinking heavily all day and that he did not remember anything. The trial court further noted that the unconsciousness here is not due to “merely sleeping,” but as a result of voluntary intoxication and that “unconsciousness due to voluntary intoxication is not a defense to a general intent crime.”
Defense counsel subsequently requested two pinpoint instructions, arguing that there was substantial evidence defendant was actually asleep and that the trial court should separate the issues of sleep and unconsciousness. The People objected to the two pinpointed instructions.
The first pinpoint instruction read: “A defendant who is actually asleep during the alleged commission of a sex crime cannot be convicted of that crime. If you find that [defendant] was actually asleep at the time of the allegations, you must return a verdict of Not Guilty. [Defendant] testified that he woke up at the time of the allegations; the alleged victim testified that [defendant] was asleep as she approached the couch; [defendant’s] brother testified that the couch was the location where defendant normally slept; the time of the incident was alleged to be 11:30 p.m. in a dark room. These are facts you may consider in reaching your determination as to whether [defendant] was actually asleep.”
The second pinpoint instruction stated: “Sleep and unconsciousness are separate and distinct issues. You may find the defendant was asleep in a normal sleep not solely resulting from the ingestion of alcohol; you may find that [defendant] was unconscious from the use of alcohol. You may find both of these to be true, or neither to be true. However, each issue—sleep and unconsciousness—are issues for the jury to decide.”
The trial court denied defendant’s request, reiterating that unconsciousness due to voluntary intoxication is not a defense to general intent crimes. The trial court explained: “In looking at the facts in this case as presented by witnesses that testified, I have found the following: Here in the defendant’s own testimony he displayed an ability to remember some parts of the incident but not others. He remembered drinking, sitting on a recliner, watching a movie, being screamed at by a woman, leaving the house, grabbing personal belongings, driving his vehicle to another side of a parking lot, among other things. Those are factors that the defendant in his own words testified to, and I was paraphrasing there, but things that he remembered and recalled about the night in question and events surrounding the incident. Other events he simply stated I do not remember. [¶] Nowhere throughout the defendant’s own testimony did he ever say [that he] laid down and went to sleep. There is no credible evidence that the defendant simply went to sleep. He never said that. No one said that. Therefore, this Court finds that the only possible theory under which an unconsciousness defense could be given would be based upon voluntary intoxication during a period of momentary blackout. That is the only possible reasonable inference . . . . [¶] I even think it’s very thin, but I think it would be error to not give it.”
Pursuant to CALCRIM No. 3425 (unconsciousness instruction), the trial court instructed the jury as follows: “The defendant is not guilty of lewd or lascivious act on a child 14 years of age or younger if he acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. Someone may be unconscious even though able to move. [¶] Unconsciousness may be caused by a blackout. [¶] The People must prove beyond a reasonable doubt that the defendant was 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 conscious. If, however, based on all the evidence, you have a reasonable doubt that he was conscious, you must find him not guilty. [¶] Unconsciousness due to voluntary intoxication is not a defense to engaging in oral copulation with a child ten years of age or younger as charged in Count 1.”
The trial court also instructed the jury in accordance with CALCRIM No. 3426 (voluntary intoxication instruction) as follows: “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 the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the defendant or the child. [¶] A person is voluntary 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. Voluntary intoxication is not a defense to engaging in oral copulation with a child ten years of age or younger as charged in Count 1.”
Defendant complains that the trial court prejudicially erred and violated his federal constitutional rights in failing to instruct the jury that the defense of unconsciousness did not apply to count 1 because the defense “applies to a defendant who is asleep and remains asleep, and thus unaware, of performing an unlawful act.”
B. Legal Principles
“‘[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence,’” (People v. Lewis (2001) 25 Cal.4th 610, 645) and a trial court has the duty to instruct accordingly. (People v. Breverman (1998) 19 Cal.4th 142, 154, 160; People v. Montoya (1994) 7 Cal.4th 1027, 1047 [“The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case”].) A court must instruct on a particular defense at the request of the defendant only when substantial evidence supports such instruction. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201 & fn. 8.) “‘“Substantial evidence” in this specific context is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded”’ that the particular facts underlying the instruction did exist.” [Citations.]’ [Citation.]” (People v. Lemus (1988) 203 Cal.App.3d 470, 477.)
Unconsciousness, including unconsciousness caused by a blackout, an epileptic seizure, or involuntary intoxication is a complete defense to a charged crime. (§ 26 [unconscious person is incapable of committing crime]; People v. Halvorsen (2007) 42 Cal.4th 379, 417; People v. Ochoa (1998) 19 Cal.4th 353, 423.) On the other hand, unconsciousness caused by voluntary intoxication is not a complete defense. Instead, “it can only negate specific intent under section 22.” ^[2] (People v. Walker (1993) 14 Cal.App.4th 1615, 1621; see also § 22.) A person can be unconscious, for purposes of sections 22 and 26, although he or she is capable of movement. (People v. Hughes (2002) 27 Cal.4th 287, 343-344; People v. Ochoa, at pp. 423-424 [unconsciousness can exist where the subject physically acts, but is not conscious of acting at the time].) Thus, a person who voluntarily consumes alcohol is held responsible for his or her ensuing criminal acts even if he or she was unconscious when he or she committed them. (People v. Morrow (1969) 268 Cal.App.2d 939, 949 [when a person takes his first alcoholic drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even if he is an alcoholic]; People v. Velez (1985) 175 Cal.App.3d 785, 795-796 [defendant knowingly ingested unlawful drug (marijuana) not realizing it contained another illegal drug (PCP); defendant could not reasonably assume marijuana cigarette would not contain PCP].)
Behind these long-established principles is the policy that a person should be responsible for the results of indulging in his or her own vices: “The preclusion of voluntary intoxication as an absolute defense at common law has been justified on the theory that ‘“when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime.”’ [Citations.]” (People v. Velez, supra, 175 Cal.App.3d at p. 794.) “Clearly, then, one who becomes voluntarily intoxicated to the point of unconsciousness can have no actual intent to commit a crime; rather, criminal responsibility is justified on the theory that having chosen to breach one’s duty to others of acting with reason and conscience, one may not entirely avoid criminal harm caused by one’s breach of duty. It is therefore apparent the imposition of criminal responsibility for acts committed while voluntarily intoxicated is predicated on a theory of criminal negligence. [Citations.] In California, whether one is criminally negligent is ascertained by applying an objective test: whether a reasonable person in defendant’s circumstances has engaged in criminally negligent behavior. [Citation.]” (Id. at pp. 794-795.)
C. Analysis
Initially, we note that the trial court correctly found that oral copulation of a child under the age of 10 years (§ 288.7, subd. (b)), as alleged in count 1, is a general intent crime. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1292.) Accordingly, the defense of unconsciousness based on voluntary intoxication was not applicable to count 1.
Realizing voluntary intoxication is not a defense to count 1, defendant argues that there was substantial evidence warranting an instruction on the complete defense of unconsciousness based on defendant being asleep at the time of the oral copulation. However, contrary to defendant’s assertion, there was no evidence supporting use of the instruction. Arguably, there was some evidence that defendant was unconscious at the time he committed the crimes. Defendant testified he had no memory of the incident; he explained, “Um, I have no recollection of [Jane] being in the living room.” He also stated, “I was unconscious. I was sleeping,” and “[t]he next thing I remember is waking up.” A defendant’s stated inability to remember events is generally insufficient by itself to raise the defense of unconsciousness. (People v. Froom (1980) 108 Cal.App.3d 820, 829-830.) Nonetheless, we note that a defendant’s own testimony can amount to substantial evidence that he did, in fact, experience a blackout. (E.g., People v. Lewis, supra, 25 Cal.4th at p. 646 [“The testimony of a single witness, including the defendant, can constitute substantial evidence requiring the court to instruct on its own initiative”]; People v. Tufunga, supra, 21 Cal.4th at p. 944 [defendant’s own testimony was substantial evidence supporting instruction on claim-of-right defense].)
Assuming arguendo, however, that this evidence was sufficient to support a finding of unconsciousness, as opposed to a mere memory lapse, there was no evidence that defendant’s blackout was caused by anything other than voluntary intoxication. Defendant testified that he had taken “double the dosage” of cold medicine and had been drinking heavily on the night of the crimes. He also stated that he did not remember what happened on the night of the incident because he was drunk and that after he left the apartment, he realized he was unable to drive, still feeling the effects of alcohol, so he moved his truck to the other side of the parking lot and slept in his truck. C.A. and C.H. corroborated defendant’s statements that defendant had been drinking heavily.
Contrary to defendant’s argument, there was no evidence suggesting that his blackout or sleep was due to causes other than voluntary intoxication. Defendant asserts, “[w]hether [he] was asleep and unconscious is a substantially different issue than whether he was voluntarily intoxicated and in an alcohol-induced blackout.” However, no evidence was presented that his sleep could result in unconsciousness.
People v. Baker (1954) 42 Cal.2d 550 is instructive. In Baker, the evidence suggested that the defendant was intoxicated from a voluntary overdose of prescription drugs or was suffering from an epileptic attack, including a “‘clouded state.’” (Id. at p. 575.) Because there was evidence from which the jury could have concluded the defendant acted while unconscious due to either voluntary intoxication or an epileptic seizure, instructions on both the complete defense of unconsciousness and on the effect of voluntary intoxication were proper. (Id. at pp. 575-576.) Here, in contrast, there was no evidence presented of any cause for defendant’s blackout or sleep other than the voluntary consumption of alcohol. The evidence overwhelmingly shows that defendant blacked out or fell asleep due to his voluntary intoxication.
Thus, there was no basis for the trial court to instruct with the complete defense of unconsciousness as to count 1. Instead, the trial court properly instructed the jury with CALCRIM No. 3425 (unconsciousness instruction) and CALCRIM No. 3426 (voluntary intoxication instruction) as to count 2.
Further, even assuming defendant’s statements of being asleep provided some evidence he was unconscious at the time of the offenses, we find that the trial court’s failure to instruct on unconsciousness as a defense to count 1 harmless beyond a reasonable doubt. On this record, the trial court instructed on both unconsciousness and involuntary intoxication as to count 2, and the jury still found defendant guilty of committing a lewd act on Jane. (See People v. Breverman, supra, 19 Cal.4th at p. 178.) By doing so, the jury necessarily rejected his claim that he was unconscious due to any form of intoxication or being asleep or blacking out, and that defendant had the specific intent to commit a lewd act on Jane. Moreover, C.A. directly witnessed defendant orally copulating Jane. Jane also told both her parents, as well as the police, that defendant “‘licked my [va]gina.’” In addition, defendant apologized for his actions by calling C.A. and writing an apology letter. Defendant also admitted that C.A. had no reason to make up what she saw, and that if C.A. said she saw defendant orally copulating Jane, then it must have happened.
Accordingly, no prejudicial jury instructional error can be shown on this record.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RICHLI
Acting P.J.

We concur:



KING
J.



CODRINGTON
J.