People v. Arriola

Defendant appeals from judgment of conviction of grand theft after jury trial. He admits the sufficiency of the evidence but contends the court erred (1) in giving instruction on unconsciousness; (2) in omitting “intent” from an instruction on intoxication.

Evidence

Shortly before noon Fred Clapp was sitting at the bar of the Big Horn Bar drinking a cup of coffee. He occasionally did banking for the proprietor and on this occasion the proprietor had just given him $175 in currency, a check and a bank book. Clapp had placed all three in the left breast pocket of a heavy outer shirt (mackinaw type) he was wearing. Defendant entered the tavern and obtained a bottle of beer. Louis Hanga sat down at the bar next to defendant and started to write down an address. Defendant was “kind of half laying on the bar, and kind of reaching over on my arm.” Defendant touched Hanga’s arms and shoulders. Police Officer Farnlacher, who was off duty and had come into the tavern to cash a check, observed defendant place his hands on Hanga’s thigh. Hanga told defendant to move away. Defendant then sat on a stool next to Clapp and asked the

As defendant’s defense was intoxication to the point of not being able to form an intent to steal, we will now detail the evidence on that issue.

Defendant testified that he had been going from bar to bar drinking tequila all night. He started drinking again early in the morning of the theft. He had a detailed memory of the bars he had visited, the taxis he rode in, and whom he was with until a scuffle or fight which he claims took place the morning of the theft on the sidewalk near the Big Horn Bar. All is then a blank until he found himself in a jail cell. That morning two friends of his had given him a ride and let him off at a certain street corner. He then walked to 16th and South Van Ness. He said “I went to see a fellow I know. We talked in the street.” He had a scuffle with this man.

Farnlacher testified that prior to the arrest he did not observe blood on defendant or his clothing. However, defendant resisted arrest and with only one cuff on him, Farnlacher had to throw defendant to the sidewalk in order to subdue him. When defendant arose Farnlacher noticed fresh blood on his chin and on his blouse or coat. Farnlacher talked to defendant at the police station. He appeared to understand the questions he was asked and the witness was able to understand him. At that time he said as he had at the time of his arrest, “What are you trying to pin on me?” and “I didn’t do it.” Farnlacher testified that at the time of arrest he could smell alcohol on defendant’s breath and that “there was a certain slurring as to his speech” in talking to the officer. Later at defendant’s cell defendant spoke without the slur. The witness would not say that defendant was intoxicated. “I would say that he had been drinking, but not to the extent of intoxication.” When the witness ran after defendant, the latter did not stagger at all but walked straight “about the fastest you could walk without breaking into a run.” Clapp testified that he smelled beer on defendant’s breath and that when defendant came into the tavern he “kind of staggered ... I couldn’t say he was drunk, but he kind of was leaning on the bar. I couldn’t say he was drunk. That I don’t know, but I know he was drinking beer.” All defendant drank in the Big Horn Bar was half a bottle of beer.

Grand theft, insofar as is pertinent here, is the felonious stealing or taking of the personal property of another from his person. (Pen. Code, §§ 484, 486, 487, subd. 2.) To

1. Unconsciousness.

Defendant’s position on these instructions is not clear. He apparently mentions them as not curing his claim of error in the intoxication instruction. However, he states without specification of any kind that he does not concede that they should have been given nor their correctness. They embodied the substance of section 26, subdivision 5, Penal Code, and were fully correct. They did not contain and are not required to contain the second sentence of section 22, Penal Code, hereafter discussed. It was so held in People v. Baker (1954), 42 Cal.2d 550 , 575 [ 268 P.2d 705 ], People v. Anderson (1948), 87 Cal.App.2d 857 , 860 [ 197 P.2d 839 ], and People v. McNichol (1950), 100 Cal.App.2d 554 , 557 [ 224 P.2d 21 ]. The instruction contained a phrase to the effect that the rule of law on unconsciousness does not apply in a case in which the mental state of the person in question is due to voluntary intoxication resulting from the use of intoxicating liquor. While this statement is a proper one to be used in an instruction on unconsciousness occurring other than from the voluntary use of drugs and intoxicating liquor, here it may have aggravated the failure of the court to instruct upon the question of intent as related to voluntary intoxication from the use of liquor. It is questionable whether the instruction should have been given as defendant at no time claimed that his actions were due to unconsciousness resulting from the blows he claims to have received. His defense was that by reason of intoxication he was unable to form the required intent. As held in the above cases, where intoxication is involved, even if it leads to unconsciousness or a temporary interference with the mental facilities, the situation is governed by section 22 and not by section 26, subdivision 5, dealing with unconsciousness from other causes. In any event, as they were correct instructions on the subject, there was no prejudice in giving them.

2. Intoxication.

The court gave CALJIC Number 78 which is an extensive instruction on intoxication intended, however, to be ■used where the crime charged does not require specific intent. It included the first sentence of section 22: “No act committed

It has repeatedly been held in a case requiring proof of specific intent that an instruction embodying the substance of section 22, Penal Code, must be given and that to give only the first sentence of that section without giving the second sentence is error. (People v. Coyne, 92 Cal.App.2d 413 , 415 [ 206 P.2d 1099 ]; People v. Romo, 24 Cal.App.2d 119 , 121-122 [ 74 P.2d 306 ].) If the defendant, as here, offers no instruction upon the subject it is the court’s duty to give it of its own motion. (People v. Baker, supra, 42 Cal.2d 550 , 576; People v. Sanchez, 35 Cal.2d 522 , 528 [ 219 P.2d 9 ].) It is true that the evidence of intoxication, including defendant’s own testimony on the subject, was quite weak. As hereafter pointed out, there was no substantial evidence to support defendant’s claim that he was intoxicated to the extent of not being able to form an intent to steal. It is very doubtful that it would have been error for the trial court to have refused to instruct on intoxication at all. However, as said in People v. Coyne, supra, 92 Cal.App.2d 413 , 417, the trial judge evidently felt that the evidence was sufficient to require an instruction on intoxication because he gave one. He should have given a proper one. The serious question is whether the giving of such a palpably erroneous instruction was prejudicial. In turn, this depends upon the question of whether there is any substantial evidence upon which the jury could have found that defendant was intoxicated to the extent of being unable to form an intent to steal. Certainly the evidence of the prosecution witnesses would not have supported such a finding. At most their evidence was that defendant appeared to have been drinking, that at one time he staggered, and that at first his talk was slurred. Defendant’s testimony, considered alone, might have supported such a finding, although it was quite fantastic. But balancing his acts against his testimony that he did not know what he was doing, eliminates any support for such a finding. His actions in the bar, running his hands over Hanga, his skill in taking

Actions of a defendant may completely refute his testimony as to his inability to form an intent to do the thing which he did. In People v. Keeling, 152 Cal.App.2d 4 , 12 [ 312 P.2d 407 ], we said, in a homicide case, “Defendant’s actions, before, during and after the killing completely refute his own statement that he ‘blacked out.’ ” In People v. Clifton, 186 Cal. 143 [ 198 P. 1065 ] (homicide), the defendant claimed to have been intoxicated to such an extent as to be unable to understand the questions asked him by the police when first arrested. The trial court had refused to give the defendant’s instruction to the effect that the jury could disregard the defendant’s answers if it found that the defendant was so intoxicated as not to be able to understand the questions. The reviewing court upheld the refusal to so instruct, stating that “In view of the character of the answers given it is difficult to imagine that defendant did not fully understand both questions and answers” (p. 150) and that every witness who testified regarding the matter testified that although the defendant was somewhat under the influence of liquor, the defendant apparently sufficiently understood and intelligently answered the questions. In People v. Coston, 82 Cal.App.2d 23 [ 185 P.2d 632 ] (homicide), the trial court gave an erroneous instruction to the effect that forgetfulness may not be an element of unconsciousness. In holding that there was no prejudice in the error, this court stated (p. 40): “There must be something more than his [the defendant’s] mere statement that he does not remember what happened to justify a finding that he was unconscious at the time of that act. Here the only purported evidence of unconsciousness was