Opinion
A129253
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CROSLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 210992)
Defendant Michael Croslin was convicted by jury of elder abuse and assault with a deadly weapon upon a long-time acquaintance. He contended that he was involuntarily intoxicated and largely unconscious when he repeatedly struck his friend with a cane. Croslin argues the jury was not adequately instructed on involuntary intoxication as a defense, and that the court did not properly respond to a jury question on the issue. We affirm the conviction.
I. BACKGROUND
Michael Croslin was charged by felony complaint with committing the following offenses against William Burton on October 23, 2009: attempted murder (Pen. Code, §§ 187, subd. (a), 664; count I); elder abuse likely to cause great bodily injury (§ 368, subd. (b)(1); count II); assault with a deadly weapon (§ 245, subd. (a)(1); count III); and criminal threats (§ 422; count IV). As to the attempted murder charge, it was alleged that the crime was willful, deliberate, and premeditated. The complaint was later amended to allege with respect to counts I and III (attempted murder and assault with a deadly weapon) that Croslin personally inflicted great bodily injury on Burton (§ 12022.7, subd. (a)) and with respect to count II (elder abuse) that Burton suffered great bodily injury (§ 368, subd. (b)(2)).
All further code references are to the Penal Code unless otherwise indicated.
The evidence at trial established that Croslin had known the victim, 67-year-old Burton, for six to seven years before the crime took place. In the 18 months before the assault, Burton and Croslin took methamphetamine together at Burton's house about once or twice a month. Burton also admitted personal use of gamma hydroxybutyrate (GHB) on at least one occasion prior to the incident.
GHB is a sedative sometimes characterized as a "date rape" drug.
On October 22, 2009, Burton and Croslin had dinner with a friend and a drug dealer came by Burton's house. According to Burton, he and Croslin went to an upstairs bedroom, used methamphetamine, and watched pornography. They took their last dose of methamphetamines at about 2:00 a.m. While Croslin was taking a shower, Burton said he entered the bathroom to use the toilet. Burton then made food (chili and lemonade) and brought it upstairs for both of them to eat. Croslin accused Burton of drugging his drink, which Burton denied. In the morning, Croslin and Burton had an argument and Burton told Croslin to leave. Croslin said he would leave when he was "goddamn good and ready" and threw food at Burton from across the kitchen table. He then knocked Burton to the kitchen floor, choked him around the neck with his hands, and hit him in the face with a fist. Burton pushed Croslin off of himself and crawled toward the dining room. Burton said he saw Croslin standing behind him with a look of "pure hatred" on his face and a cane in his hand. Croslin swung the cane down at Burton and hit him more than seven or 10 times, striking him on the back of the head, the leg, and the left hand. Croslin put his foot on Burton's throat, cutting off his breathing. Croslin then disappeared. Burton could hear movement in the house, so he went to the downstairs apartment and banged on the door for help.
Burton suffered three or four head lacerations of about three to five centimeters each, a fractured bone in his left hand, and a possible ligament injury in his left wrist. Twenty staples were used to close the lacerations.
Croslin denied the use of methamphetamine that night. Croslin said that when the drug dealer came by, he told Burton he did not want to take drugs and he went upstairs to prepare for bed. While he was in the shower, Burton came into the bathroom unannounced and tried to get into the shower with Croslin. Croslin told Burton to get out and he did, but he quickly returned, opened the shower door again, and stepped into the tub. Croslin again told him to get out and he did. When Croslin got out of the shower, there was a bowl of chili and a glass of lemonade on a counter in the bathroom. Croslin ate the chili, which was very spicy, and gulped down the lemonade. When he got to the bottom of the glass, he tasted something bitter and peculiar and suspected something had been added to the drink. He immediately started yelling at Burton. He then experienced symptoms such as loud sounds, bright lights, wooziness, heaviness, and a lack of coordination. He told Burton to call 911 and Burton guided him to the bedroom.
Croslin testified that the next thing he remembered was "being very rudely aroused with a sensation . . . of my airway being obstructed . . . ." He realized he was downstairs in the dining room and it was daytime. He grabbed the object pressing against his neck (a cane) and tried to sit up, but he was disoriented, his vision was obscured, he had high-vibration humming in his ears, and felt a sense of rotation. Croslin saw that a pair of pants was tight around his knees and that Burton's head was over his crotch. Croslin swung the cane because he was in fear for his life: he was being choked and violated. He only remembered hitting Burton once with the cane. The next thing he recalled was looking for a telephone upstairs but he was unable to find any, although he did find the keys to the house. He next recalled being downstairs looking for telephones and that Burton was not present. He opened the front door and put the cane outside. His next memory was of sitting in a chair hearing his name being called. Two guns were being pointed at his head. He then found himself sitting in the back of a patrol car and he recalled asking for a urine test.
Carlos Dominguez, who was staying in the downstairs apartment at the time of the incident, testified that he was awakened at 8:00 a.m. by sounds of people yelling and furniture moving directly above him (in Burton's kitchen). He heard someone yell for help, someone being hit, someone falling, and a statement like, "I should (or will) kill you." He called the police and then saw Burton approach, bleeding and asking for help. A few minutes later, Dominguez saw Croslin go downstairs to the backyard. He was wearing jeans and no shirt and he was agitated and seemed to be looking for somebody. When Dominguez later saw Croslin in the police car, he looked "very tense, very wired up, very aggressive."
When the police arrived, Burton emerged from the downstairs apartment using a cane. Burton told police that Croslin was upstairs. Police went to Burton's home and called several times for Croslin. Croslin eventually responded and came to the front door wearing only a pair of pants. Officers repeatedly ordered Croslin to lie on the floor and he complied slowly and in stages. Police found food on the kitchen walls and floor, a pool of blood on the dining room floor, items knocked over in the dining room, and what appeared to be dried blood on a cane found outside the front door. There was clothing on the floor of the upstairs bedroom and in the dining room. While in the back of a patrol car, Croslin was breathing hard and looked agitated and he said, "I don't know what that is in there, but it needs killing." He may have asked for a urine test.
Dr. Corey Hahn, a psychologist at the San Francisco County Jail, was called as a defense witness. He evaluated Croslin's mental health status the day after his arrest. Croslin appeared "[v]ery disorganized, agitated, elevated mood, basically not making much sense, pacing around, speaking in a convoluted way that didn't necessarily make complete sense." He had paranoid ideation and rambling speech and he was hyperactive and grandiose. These symptoms were consistent with methamphetamine-induced psychosis but could also be consistent with use of a combination of drugs. Croslin was placed in an observation unit and his symptoms of disorganization and agitation subsided over time. Croslin asked for a urine test, but the jail was not equipped to conduct such a test. Dr. Hahn testified that someone can exhibit psychotic symptoms from methamphetamine ingestion anywhere from three days to two weeks after its use, and very heavy users can show symptoms three to six months after using the drug.
Dr. John Mendelson, testified as a defense forensic expert. He testified that drugs that "cloud consciousness," such as GHB or other sedatives can be used "to render someone insensate enough to be molested or raped." People who ingest such drugs can move around and act, but not with a great deal of purpose or thought, and they might be unaware of what they are doing. They can follow directions to do simple tasks that do not require much cognitive processing. They can walk around and appear normal to outsiders. The drugs inhibit memory formation, causing the person either not to remember what happened or to have a memory that is very sketchy and sporadic. Dr. Mendelson testified that methamphetamine-induced psychosis is characterized by confusion, disorientation, hyperstimulation, hyperactivity, and combativeness and can be caused by a long binge or a large dose of methamphetamine. Dr. Mendelson testified that Croslin's account of the incident combined with Dr. Hahn's description of his condition the next day was consistent with use of a short-acting sedative and a long-acting stimulant like methamphetamine. A large amount of GHB combined with methamphetamine or followed by a large dose of methamphetamine might cause a person to pass out quickly, followed by methamphetamine symptoms. He agreed that the symptoms exhibited by Croslin following his arrest were consistent with a methamphetamine-induced psychotic state.
Defense and Prosecution Arguments
The defense argued that Croslin had been "poisoned or drugged" with GHB so that Burton could sexually molest Croslin. Counsel contended that Croslin "lost consciousness" as a result of the involuntary drug ingestion. Without identifying a particular offense or element to which the defense might apply, counsel argued that ". . . if you make a mistake when you have been involuntarily intoxicated, the law protects you." Counsel also urged that, to the extent that Croslin was able to perceive and recall events, he was acting in self-defense.
The prosecution contended that Croslin was an admitted methamphetamine addict, whose behavior at the time of, and subsequent to, his arrest was consistent with methamphetamine-induced psychosis and not GHB sedation.
Croslin testified that he is a former anesthesiologist who lost his medical license as a result of his habitual drug use. He acknowledged his addiction to methamphetamine.
Jury Instructions, Deliberations and Verdict
The jury was instructed on the following defenses: self-defense (CALCRIM No. 3470), mental disorder (CALCRIM No. 3428), voluntary intoxication (CALCRIM No. 3426), involuntary intoxication (CALCRIM No. 3427), legal unconsciousness (CALCRIM No. 3425), and mistake of fact (CALCRIM No. 3406). The court declined to give a requested defense instruction on "accident" (CALCRIM No. 3404).
The jury began deliberations on June 8, 2010. On the following day, it sent the court the following note: "The jury requires further clarification of the terms 1.) Intent [¶] 2.) Willfullness and the phrase [¶] 3) 'the defendant acted with the intent or mental state required for that crime.' given the excessive use of drugs whether voluntary or involuntary." With the agreement of counsel, the judge sent the jurors the following response: "As to the question regarding intent and willfulness, the definition of each is in the instruction for each of the counts or the instruction should alert you to where you can find the definitions. As to question 3, I need further clarification as to what specifically you are asking."
At the end of the day, at about 4:25 p.m., the court held another conference with counsel. Defense counsel asked the court to provide a further response to the jury's inquiry specifically referring the jury to the instructions on specific and general intent, and informing the jury that either voluntary or involuntary intoxication could negate specific intent. The court declined to provide a further response, explaining that the instructions on specific and general intent were clearly identified by headings in the written instructions and that it wanted to receive clarification on the jury's question about voluntary and involuntary intoxication before attempting to answer it. The next morning, on June 10, defense counsel submitted a proposed supplemental response to the jury question, asking the court to direct the jury's attention to all instructions discussing intent, willfulness, and mental state, specifically to CALCRIM Nos. 250 (general intent) and 251 (specific intent) and to 3406, 3425, 3426, 3427, and 3428, which identified the circumstances when the intent or mental state could be negated if the jury found that Croslin was affected by excessive intoxication. Before the court could address that request, the jury announced that it had reached a verdict.
The jury found Croslin not guilty on counts I and IV (attempted murder and criminal threats). The jury found Croslin not guilty of attempted voluntary manslaughter, as a lesser offense to count I. The jury found Croslin guilty of elder abuse, but found the allegation that Burton suffered great bodily injury not true. Croslin was convicted of assault with a deadly weapon but the jury found the allegation that he personally inflicted great bodily injury on Burton not true. The court ultimately sentenced Croslin to the three-year middle term for the elder abuse conviction and stayed another three-year middle term on the assault conviction.
The verdict forms for the attempted murder charge and the criminal threats charge were dated June 9. All of the other verdict forms were either undated or dated June 10.
II. DISCUSSION
Croslin asserts that involuntary intoxication, short of unconsciousness, can negate any mental state required to prove a crime and that the jury was not properly instructed on this defense. Croslin contends that the court's instructions on the defenses arising from involuntary intoxication were "at best ambiguous" and that the jury's request for clarification "went unanswered." He complains that these errors resulted in a deprivation of due process under the federal constitution. A. Standard of Review
When the trial court instructs the jury on a defense but the defendant challenges the adequacy of the instruction, we review the instructions as a whole to determine whether it is reasonably likely the jury misconstrued the instructions as precluding it from considering the entire defense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) We reverse only if we also find a reasonable probability the error affected the verdict adversely to defendant. (Id. at pp. 1134-1135; People v. Letner and Tobin (2010) 50 Cal.4th 99, 187.)
Although Croslin argues the prejudice standard for federal constitutional error should apply, the California Supreme Court case he cites is distinguishable because it involved an instruction that completely removed an element of the offense from the jury's consideration (People v. Flood (1998) 18 Cal.4th 470, 477-479), and the federal case law he cites is either distinguishable (see, e.g., Estelle v. McGuire (1991) 502 U.S. 62, 72 [federal error only where erroneous instruction so " 'infected the entire trial that the resulting conviction violates due process' "]) or not controlling authority (see, e.g., Conde v. Henry (9th Cir. 1999) 198 F.3d 734, 740 [instruction that modified element of crime violated due process even though other instruction correctly defined the element]). Moreover, our courts have found no federal constitutional right implicated in statutory elimination of the exculpatory value of voluntary intoxication. (People v. Timms (2007) 151 Cal.App.4th 1292, 1300 [rejecting equal protection argument to § 22]; People v. Martin (2000) 78 Cal.App.4th 1107, 1117 [rejecting due process challenge to § 22]; see also Montana v. Egelhoff (1996) 518 U.S. 37 (plur. opn. of Scalia, J.) [finding no due process violation in Montana statute excluding evidence of voluntary intoxication on the issue of a defendant's mental state].) He fails to demonstrate that his asserted defense here based on involuntary intoxication assumes a different constitutional dimension. B. The Request for Clarification of Instructions
On federal habeas review of People v. Mendoza, supra, 18 Cal.4th 1114, the Ninth Circuit Court of Appeal held (as it did in Conde v. Henry, supra, 198 F.3d at pp. 740-741) that the Chapman harmless error analysis (Chapman v. California (1967) 386 U.S. 18) applied to the instructional error in that case, rather than the more deferential Watson test (People v. Watson (1956) 46 Cal.2d 818, 836) that was applied by the California Supreme Court. (Valdez v. Castro (9th Cir. 2005) 155 Fed.Appx. 301, 302; see also Valdez v. Castro (N.D. Cal. July 9, 2007, No. C-00-04733 MMC) 2007 U.S.Dist. Lexis 53174 [reviewing procedural history of case].) We are bound to follow the decisions of the California Supreme Court unless overruled by the United States Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We first observe that in Croslin's belated request for further clarification of the jury instructions he did not make the claim he asserts here. He did not contend that involuntary intoxication would necessarily negate general criminal intent and asked for no further instruction or clarification on this issue. He asked only that the jury be "referred" to the general and specific intent instructions (CALCRIM Nos. 250 & 251) already given, and that "with respect to their third question regarding how voluntary or involuntary intoxication affects their decision on intent or mental state, we're requesting that the Court inform them that either voluntary or involuntary intoxication can negate specific intent.'" (Italics added.) To the extent that Croslin failed to request any clarification on general intent and acquiesced in the trial court's earlier response, he forfeits the claim of error on appeal. (See People v. Rogers (2006) 39 Cal.4th 826, 877.) Since Croslin was acquitted of all specific intent offenses charged, any error in failing to provide the requested clarification on that issue is moot. C. Involuntary Intoxication and General Intent Crimes
Croslin was convicted of felony assault under section 245 subdivision (a)(1) [assault with a deadly weapon other than a firearm], and elder abuse likely to cause great bodily injury as defined in section 368 subdivision (b)(1). Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788 (Williams); People v. Colantuono (1994) 7 Cal.4th 206, 215-216 (Colantuono).)"[A]ssault does not require the specific 'intent to cause any particular injury [citation], to severely injure another, or to injure in the sense of inflicting bodily harm . . . . [(Fns. omitted.)]' Rather, assault required 'the general intent to willfully commit an act the direct, natural, and probable consequences of which if successfully completed would be the injury to another.' [Citation.]" (Williams, at p. 784.) The " 'mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.' " (Williams, at p. 782, citing Colantuono, at p. 214.) Infliction of abuse upon an elder likewise requires only general criminal intent. (See People v. Valdez (2002) 27 Cal.4th 778, 789 [discussing child abuse under § 273a, subd. (a)—"use of a general intent standard is appropriate when the statute criminalizes commission of a battery, or direct infliction of unjustifiable pain or suffering"].)
"Section 368 was patterned on and is virtually identical to section 273a. Cases interpreting one section are therefore appropriately used to interpret the other. [Citation.]" (Valdez, supra, 27 Cal.4th at p. 785, fn. 4; People v. Heitzman (1994) 9 Cal.4th 189, 204-205.)
Evidence of voluntary intoxication is inadmissible to negate the existence of general criminal intent. (People v. Atkins (2001) 25 Cal.4th 76, 81 (Atkins).)However, classification of a crime as a general intent offense still may not fully describe the requisite mental state.(Williams, supra, 26 Cal.4th at p. 785.) A general intent crime may also involve a specific mental state, such as knowledge. (See Mendoza, supra, 18 Cal.4th at p. 1129 [evidence of intoxication relevant to awareness of direct perpetrator's purpose to establish culpability of aider and abettor]; People v. Reyes (1997) 52 Cal.App.4th 975, 983, 985 [holding that with regard to the element of knowledge, receiving stolen property is a specific intent crime].) " 'The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender.' " (Atkins, supra, 25 Cal.4th at p. 82.) The general/specific intent classification of an offense " 'is necessary "only when the court must determine whether a defense of voluntary intoxication or mental disease, defect, or disorder is available . . . ." ' [Citation.]" (Williams supra, 26 Cal.4th at p. 785; People v. Rathert (2000) 24 Cal.4th 200, 205.)
While conceding that there is "little authority" for his position, Croslin contends that "[i]nvoluntary intoxication is akin to insanity or infancy and operates as a complete defense by negating all mens rea." (Italics added & omitted.) We agree with Croslin that there is little, if any, authority in support of the sweeping proposition he urges here. To the extent that Croslin invites us to adopt a more expansive view of the law in this area, we decline to do so.
More specifically, Croslin argues that the jury was not properly instructed that involuntary intoxication could separately negate the knowledge elements of elder abuse and assault with a deadly weapon and that the court failed to advise the jury that the prosecutor had the burden to prove he was not involuntarily intoxicated. We need not decide under what circumstances involuntary intoxication, short of unconsciousness, might present a defense to a knowledge element applicable to an otherwise general intent offense, since we find that the unconsciousness instruction given here adequately and correctly advised the jury of the extent to which involuntary intoxication would present a defense to the mens rea elements of the assault offenses of which Croslin was convicted.
Pursuant to CALCRIM No. 830, the jury was instructed, in pertinent part, "The defendant is charged in Count II with elder abuse likely to produce great bodily harm or death in violation of Penal Code section 368(b)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on David Burton[;] [¶] 2. The defendant inflicted suffering on David Burton under circumstances or conditions likely to produce great bodily harm or death; [¶] 3. David Burton is an elder[;] AND [¶] 4. When the defendant acted, he knew or reasonably should have known that David Burton was an elder. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] An elder is someone who is at least 65 years old." (Italics added.)
The jury was instructed, pursuant to CALCRIM No. 875, that "The defendant is charged in Count III with assault with a deadly weapon in violation of Penal Code section 245. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person[;] AND [¶] 5. The defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] . . . [¶] The People are not required to prove that the defendant actually intended to use force against someone when he acted. [¶] . . . [¶] Voluntary intoxication is not a defense to assault." (Italics added.)
"It is often said that a defendant who is forced to take liquor or drugs against his or her will, and who as a result is temporarily deprived of mental capacity, will not be criminally responsible. (See 73 A.L.R.3d 195 [involuntary intoxication as defense]; 1 Pepperdine L. Rev. 442.) In California this defense probably comes within the unconsciousness statute (P.C. 26 (Four) . . . ). [Citations.]" (1 Witkin & Epstien, Cal.Criminal Law (3d ed. 2000) Defenses, § 34, p. 364.) "[U]nconsciousness is a complete defense except where it is caused by voluntary intoxication. [Citations.]" (People v. Heffington (1973) 32 Cal.App.3d 1, 8.)
The jury was unambiguously instructed here that involuntary intoxication was relevant to the question of whether Croslin had the requisite mental state for any of the offenses charged. (CALCRIM No. 3427.) The jury was further unequivocally told that unconsciousness due to involuntary intoxication is a complete defense to any crime.(CALCRIM No. 3425.) In addition, the jury was instructed that Croslin was not guilty of elder abuse or assault with a deadly weapon if, due to involuntary intoxication, he acted under a mistake of fact regarding the need to defend himself. (CALCRIM No. 3406.) These instructions covered Croslin's entire theory of the case.
"Consider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required intent or mental state when he acted. [¶] A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose, without any fault on the part of the intoxicated person."
"The defendant is not guilty of any of the crimes 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. [¶] The defendant's unconsciousness must have been caused by involuntary intoxication. [¶] 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."
Croslin's testimony was that, after being drugged, he regained consciousness, realized that there was a cane across his neck and that Burton's head was over his crotch, and that he reacted by grabbing and swinging the cane, hitting Burton with the cane at least once. Defense counsel did not argue that Croslin was unaware of his actions, or unaware of Burton's identity, when he struck Burton. Instead, he told the jury that "what Michael Croslin was able to perceive when he came to, when he was able to remember and was aware of what was going on, was lawful self-defense."
The jury clearly found beyond a reasonable doubt that Croslin was legally conscious at the moment he swung the cane. The instruction on unconsciousness unambiguously told the jury that "[t]he defendant is not guilty of any of the crimes if he acted while legally unconscious," and, "The People must prove beyond a reasonable doubt that the defendant was conscious when he acted." Thus, if the jury had a reasonable doubt about whether Croslin was conscious at the time he struck Burton in the head with the cane it would have had to acquit him of all of the charged crimes. Because the jury convicted Croslin of elder abuse and assault with a deadly weapon, it necessarily found that Croslin was "conscious of his . . . actions" at the time he swung the cane in Burton's direction.
When a defendant raises a defense of mental disorder or mental defect, the trier of fact decides whether the defendant had or did not have the required mental states for the crimes charged, including "purpose, intent [or] knowledge." (§ 29.) Having rejected Croslin's unconsciousness defense, the jury also necessarily found that he had the requisite mental states for the crimes of which he was convicted. "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. . . . [A]ssault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Williams, supra, 26 Cal.4th at p. 790.) Croslin testified that he intentionally swung a cane at Burton's head, and there was no evidence at all that he lacked knowledge, as a result of intoxication or otherwise, that his act would result in the application of physical force to Burton.
Elder abuse required proof that Croslin willfully inflicted unjustifiable physical pain or mental suffering on Burton, knowing that Burton was an elder. " '[T]he terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character.' . . . The use of the word 'willfully' in a penal statute usually defines a general criminal intent, absent other statutory language that requires 'an intent to do a further act or achieve a future consequence.' [Citations.]" (Atkins, supra, 25 Cal.4th at p. 85.) If Croslin consciously swung a cane in the direction of Burton's head and the cane struck Burton's head, Croslin willfully inflicted pain on Burton. At no time did Croslin contend that he was unaware that Burton, a long-time acquaintance, was an elder (defined as a person 65 years old or older) and Croslin testified that he recognized that it was Burton's head over his crotch. Accordingly, if Croslin consciously swung a cane in the direction of Burton's head, he did it with knowledge that Burton was an elder.
Thus, the mental states required for both assault counts were necessarily found by the jury to exist beyond a reasonable doubt even if the jury also may have believed that he was involuntarily intoxicated, or harbored reasonable doubt on that question. Nothing in the instructions given precluded the jury from considering the entire defense presented by Croslin. (See Mendoza, supra, 18 Cal.4th at p. 1134.) We conclude that, on the facts of this case, there was no reasonable probability of a more favorable result even had the jury been instructed that involuntary intoxication short of unconsciousness could separately negate the knowledge elements of the crimes for which he was convicted. D. Burden of Proof on Intoxication
Croslin argues that the jury should have been instructed that the prosecutor bore the burden of proving that he was not involuntarily intoxicated to the point that he lacked the mental state required for the crimes of elder abuse and assault with a deadly weapon. He notes that the instruction on involuntary intoxication (CALCRIM No. 3427) does not discuss burden of proof. However, the instruction on unconsciousness, which included unconsciousness due to involuntary intoxication, expressly provides that "[t]he People must prove beyond a reasonable doubt that the defendant was conscious when he acted." Further, the jury was instructed that the People were required to prove each element of the charged offenses beyond a reasonable doubt. There was no error.
It would not in any event be a denial of due process for the state to place on the defendant the burden of proof of an affirmative defense which negates an element of the crime. (People v. Boyes (1983) 149 Cal.App.3d 812, 820 [presumption of consciousness does not contravene due process]; Hobgood v. Housewright (8th Cir. 1983) 698 F.2d 962, 963.)
III. DISPOSITION
The judgment is affirmed.
Bruiniers, J. We concur: Jones, P.J. Simons, J.