People v. Boyes

bery (§§ 664/211). The jury also found firearm use allegations to be true with respect to all three counts. The verdicts were returned on August 12, 1981.

On September 30, 1981, the trial court denied appellant’s motion for a new trial. It sentenced appellant to 17 years to life imprisonment for second degree murder as enhanced by the firearm use finding. It imposed an additional consecutive term of three years representing one-third of the midterm for attempted murder as enhanced by the use allegation. Finally, it imposed a stayed sentence of eight months for attempted robbery.

Later, on October 20, 1981, the trial court vacated the sentence imposed on September 30. It ordered appellant to serve the full midterm of 7 years for attempted murder consecutive to the 17-years-to-life sentence on the murder count with the use enhancement. It again stayed the attempted robbery sentence. The total sentence was thus 24 years to life, rather than 20 years to life as originally ordered.

On New Year’s Eve 1980, the decedent, Tony Zapeda, and Paul Perez went to the St. Francis Hotel in San Francisco where they had several drinks. At 2 a.m., they drove to Cesar’s Palace on Mission Street; they parked up the street from the club. When they emerged from Caesar’s at about 4:30 a.m., they were unable to start the car. Zapeda removed his jumper cables from the car and opened the hood while Perez began walking back to Cesar’s to seek assistance from Zapeda’s cousin whom they had seen there. Before Perez reached the club, a black Lincoln drove by. Zapeda, standing in the street by his disabled car, said something like “All I need is a jump.” An occupant of the car shouted “Get out of the street, punk.” Perez heard three or four shots and saw Zapeda fall backwards. The Lincoln sped away.

Benny Andino, another patron of Cesar’s, observed the occupants of the Lincoln shortly before the shooting. Andino identified the driver of the vehicle as codefendant Eduardo Henriquez (who was acquitted on motion with respect to the murder and by the jury on the remaining charges) and the front seat passenger as appellant Leandro Boyes. After the Lincoln pulled away from the front of Cesar’s, Andino saw it stop for a moment up the street. He heard three shots and saw the car “peel” away and turn right at the corner of Valencia and Mission.

Austin Fretty encountered the Lincoln and its occupants not long after the Zapeda shooting. At 5 a.m., Fretty was walking along Dolores Street on his way home from a New Year’s Eve party. At the corner of 20th and Dolores a man Fretty identified as appellant accosted him at gunpoint and

demanded money. Before Pretty could comply appellant fired, telling him “I’m going to kill you, punk.” Appellant fired another five rounds at Pretty, emptying the pistol. He walked away without picking up the money Pretty had thrown to the ground. Appellant walked to a large black car parked “catty corner” across the street. Pretty saw two other men and two women in the car. The victim was hospitalized and ultimately survived his wounds.

At 5:30 a.m., police officers investigating the Zapeda shooting saw the Lincoln parked at a Shell service station and detained its occupants. They were identified as Henriquez, the driver, Antoinette Imholz, the middle frontseat passenger, appellant Leandro Boyes, the right frontseat passenger, and Ricky Rodriguez and Karen Denton, the backseat passengers.

A .38 caliber handgun was found in the waistband of Imholz’ pants. Police also found a box of .38 caliber ammunition on the floor of the car and two .38 caliber shell casings in appellant’s shirt pocket. Ballistics tests confirmed that the gun seized from Imholz had been used in the shootings of Zapeda and Pretty. Appellant told the police he could “barely remember” firing the gun. The officers stated that appellant appeared sober at the time of his arrest.

The two female passengers testified for the prosecution. Denton received immunity from prosecution while Imholz was permitted to plead guilty as an accessory to the charged crimes.

The women testified that they had been walking home from Cesar’s about 4:45 a.m. when Henriquez pulled up in the Lincoln and offered them a ride home. Imholz and Denton accepted. Henriquez, appellant and Rodriguez all had beers in their hands and appeared to have been drinking earlier in the evening. Appellant in particular was acting oddly. Imholz stated he seemed “really high” and was “just staring.” As they were driving away from Cesar’s, a man approached the car. Appellant shouted loudly at the man to get out of the street. Denton and Imholz then heard three shots fired from the front seat. They testified, however, that they did not actually see the gun in appellant’s hand. Similarly, Henriquez testifying in his own defense, claimed to have heard three “pops” from the front passenger seat but not to have seen appellant fire.

Henriquez drove the Lincoln away from the scene. Appellant sat impassively, displaying no emotion. Later, however, appellant suddenly became angry with Rodriguez for flirting with Denton and told him to “knock it off.”

As they were driving down Dolores Street, appellant suddenly told Henriquez to stop the car. Appellant said, “Wait a minute,” and ran across the

The court defined unconsciousness and delivered the following instruction concerning its proof: “Evidence has been received which may tend to show that Defendant Boyes was unconscious at the time and place of the commission of the alleged offense for which he is here on trial. If after a consideration of all the evidence you have a reasonable doubt that the Defendant was conscious at the time the crime was committed he must be found not guilty.

“If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged offense the Defendant Boyes acted as if he was conscious, there is a rebuttable presumption that he was conscious, as to which rebuttable presumption the Defendant has the burden of raising a reasonable doubt.

“However, if, notwithstanding the Defendant’s appearance of consciousness, the evidence raises a reasonable doubt whether he was in fact conscious, you must find that he was then unconscious.”

Appellant contends the rebuttable presumption of consciousness contravenes Ulster County Court v. Allen (1979) 442 U.S. 140 [ 60 L.Ed.2d 777 , 99 S.Ct. 2213 ], and Sandstrom v. Montana (1979) 442 U.S. 510 [ 61 L.Ed.2d 39 , 99 S.Ct. 2450 ], by reducing the prosecution’s burden of proving guilt beyond a reasonable doubt. Defense counsel’s apparent failure to object to this instruction does not waive any error in its delivery. (People v. Roder (1983) 33 Cal.3d 491 , 497, fn. 6 [ 189 Cal.Rptr. 501 , 658 P.2d 1302 ].)

The instruction here accurately defined the judicially created presumption of consciousness recognized under California law. (See generally People v. Hardy (1948) 33 Cal.2d 52 , 63-66 [ 198 P.2d 865 ]; People v. Caldwell (1980) 102 Cal.App.3d 461 , 478-479 [ 162 Cal.Rptr. 397 ]; People v. Kitt (1978) 83 Cal.App.3d 834 , 842-843 [ 148 Cal.Rptr. 447 ].) Further, respondent concedes the effect of the instruction was that upon a showing beyond a reasonable doubt of an appearance of consciousness the burden of persuasion, not merely the burden of going forward with the evidence, would shift to defendant. Therefore, the narrow question before this court is whether the issue of consciousness is subject to the constitutional proscription against presumptions which lighten the prosecution’s burden of proving the elements of an offense beyond a reasonable doubt.

In every decision cited by appellant the presumption held invalid clearly involved proof of an element of the charged offense. (Sandstrom v. Montana, supra, 442 U.S. 510 [intent to cause “ordinary consequences” of one’s acts]; Ulster County Court v. Allen, supra, 442 U.S. 140 [possession

of hand gun by the defendant]; People v. Roder, supra, 33 Cal.3d 491 [knowledge of stolen character of goods]; People v. Henderson (1980) 109 Cal.App.3d 59 [ 167 Cal.Rptr. 47 ] [possessor’s alteration of manufacturer’s number on handgun]; People v. Burres (1980) 101 Cal.App.3d 341 [ 161 Cal.Rptr. 593 ] [intent to commit a battery].) In urging us to disregard the distinction between elements of an offense and affirmative defenses, appellant ignores the unambiguous holdings of the Supreme Court on this subject: “We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. . . . We therefore will not disturb the balance struck in previous cases holding that the due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” (Patterson v. New York (1977) 432 U.S. 197 , 210 [ 53 L.Ed.2d 281 , 292].) Accordingly, Patterson, distinguishing Mullaney v. Wilbur (1975) 421 U.S. 684 [ 44 L.Ed.2d 508 , 95 S.Ct. 1881 ], found no infirmity in a requirement a defendant prove he acted under “extreme emotional disturbance” as the statute defining the charged offense did not include the absence of such a condition as an element of the crime.

Engle v. Isaac (1982) 456 U.S. 107 [ 71 L.Ed.2d 783 , 102 S.Ct. 1558 ], the most recent Supreme Court authority on this subject, echoes Patterson’s emphasis upon close scrutiny of the statutory definition of the offense and its defenses: “Our opinions suggest that the prosecution’s constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime. [Citations.] These decisions, however, do not suggest that whenever a state requires the prosecution to prove a particular circumstance beyond a reasonable doubt, it has invariably defined that circumstance as an element of the crime. A state may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime. [Fn. omitted.] The due process clause does not mandate that when a state treats absence of an affirmative defense as an ‘element’ of the crime for one purpose, it must do so for all purposes.” (Id., at p. 120 [71 L.Ed.2d at pp. 795-796].)

A comparison of federal decisions concerning various states’ presumptions and burdens of proof regarding self-defense illustrates the subtlety of the distinction between elements and affirmative defenses drawn in Patterson and Engle. A number of decisions hold that where a state characterizes a killing in self-defense as lawful and defines murder or manslaughter as an

(§§ 187, 188, 211, 663, 664.) Nonetheless, we recognize that consciousness is closely related to both the “actus reus” and “mens rea” components of each of the charged crimes since, as Sedeño indicates, it is pertinent both to the voluntariness of a defendant’s acts and to his capacity to understand and intend those acts and their consequences.

A close connection between a condition recognized as a defense and the elements of a crime does not compel the conclusion that absence of that condition is itself an element of the offense. Insanity, too, tends to undermine or negate voluntariness and capacity to harbor criminal intent. (People v. Phillips (1979) 90 Cal.App.3d 356 , 365-367 [ 153 Cal.Rptr. 359 ].) Nonetheless, numerous state and federal decisions have rejected the contention that the prosecution is obliged to bear the burden of proof with respect to a defendant’s sanity where soundness of mind is not an express prerequisite to commission of the offense. (Patterson v. New York, supra, 432 U.S. 197 , 202-207 [ 53 L.Ed.2d 281 , 287-291] [reaffirming Leland v. Oregon (1952) 343 U.S. 790 [ 96 L.Ed. 1302 , 72 S.Ct. 1002 ]]; People v. Drew (1978) 22 Cal.3d 333 , 348-349 [ 149 Cal.Rptr. 275 , 583 P.2d 1318 ]; People v. Phillips, supra, 90 Cal.App.3d 356 , 364-365; Krzeminski v. Perini (6th Cir. 1980) 614 F.2d 121 , 123-124; Duisen v. Wyrick (8th Cir. 1977) 566 F.2d 616 ; see also Greider v. Duckworth (7th Cir. 1983) 701 F.2d 1228 , 1233-1234, fn. 8; Stacy v. Love (6th Cir. 1982) 679 F.2d 1209 , 1213, cert, den., 459 U.S. 1009 [ 74 L.Ed.2d 400 , 103 S.Ct. 364 ].)

Even more closely on point are recent federal decisions holding that a state may require a defendant to prove his intoxication at the time of an incident as an affirmative defense although the effect of that “defense” is to negate the intent element of the charged crime: “We agree . . . that it is not a denial of due process for the state to place on the defendant the burden of proof by a preponderance of the evidence of an affirmative defense which negates an element of the crime. [Citations.] Here, the state trial court carefully instructed the jury that the state had the burden of proving each element of the crime beyond a reasonable doubt. Although appellant had the burden of proving the affirmative defense by a preponderance of the evidence, such a requirement did not rely upon a presumption or improperly shift the burden of proof to the defendant in the way condemned by the Supreme Court in Mullaney v. Wilbur, supra, 421 U.S. at p. 701, 95 S.Ct. at 1891 .” (Hobgood v. Housewright (8th Cir. 1983) 698 F.2d 962 , 963; see also Long v. Brewer (8th Cir. 1982) 667 F.2d 742 , 746-747, cert. den. 459 U.S. 883 [ 74 L.Ed.2d 153 , 103 S.Ct. 189 ]; United States ex rel. Goddard v. Vaughn (3d Cir. 1980) 614 F.2d 929 , 934, cert. den. 449 U.S. 844 [ 66 L.Ed.2d 53 , 101 S.Ct. 127 ].)

Reversed.

Caldecott, P. J., and Poché, J., concurred.