Opinion
C072540
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. YONNIE JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF118211A)
Defendant Yonnie Jackson beat his estranged wife in a Walmart parking lot. He acknowledged that his wife was badly beaten but insisted he had no recollection of it. Because he had been prescribed a sedative which can cause blackouts, especially when combined with alcohol, his defenses at trial were that he was unconscious because of involuntary intoxication or that he was not guilty by reason of insanity.
A jury convicted defendant of kidnapping, infliction of corporal injury on a spouse with great bodily injury, stalking, stalking in violation of a restraining order, and disobeying a court order with a special allegation of prior domestic violence. The jury reached an impasse on a charge of attempted murder with great bodily injury, but a second jury convicted him of that crime. Both juries rejected his insanity defense. The trial court sentenced him to 16 years 8 months in prison. At defendant's request, we consolidated his appeals from each jury trial.
Defendant now contends (1) the prosecution failed to prove he was not unconscious during the attack, (2) the sanity determinations are not supported by sufficient evidence, and (3) the trial court failed to instruct that the prosecution had to prove the voluntariness of defendant's intoxication.
We will affirm the judgment.
BACKGROUND
Defendant married the victim in January 2001. The victim said their marriage was plagued by defendant's alcohol-fueled rages and described various physical altercations that he initiated. After the victim got a restraining order, defendant stopped drinking and improved for awhile, but he started drinking again soon after moving back home.
Defendant minimized the marriage problems. He said all was well at home until the spring of 2011 when he became increasingly dizzy and nauseous and his doctor prescribed Ativan for anxiety. When the symptoms increased, his Ativan dosage was increased and he continued to drink on weekends, although he noticed he could not control himself and that friends and family were avoiding him. He also said he began losing track of time and waking up in strange places, although he never reported any of those symptoms to his primary care doctor.
On cross-examination, defendant acknowledged telling doctors in 2010 that he had "marital issues" and strong feelings of anger but he said his violent urges were curbed by the prescription of a benzodiazepine, Xanax. The Ativan prescribed for him in the spring of 2011 was also a benzodiazapine. When he lost weight and began to need glasses, he blamed the Ativan and unsuccessfully tried to get his doctor to switch him back to Xanax. At trial, he said he realized much later that Ativan made him high.
The victim said defendant would drink a lot on weekends and whenever school was out. They worked for the same school district, but her schedule was year-round and his was not. One morning in early June, after school was out for him and he had been on a drinking binge for several days, he called her at work, demanding she come home and take him for medical treatment; he could not walk by himself, so she had to hold him up to get him to the car. A brain scan was normal, but the doctor prescribed an antidepressant and more Ativan.
Additional evidence was provided of further physical altercations initiated by defendant against the victim. Then, one night, defendant locked himself in the bathroom with a pill bottle and the victim reported a potential suicide attempt to police. Defendant hit an officer twice and resisted arrest even after officers pepper-sprayed him and stunned him with electricity; eventually they handcuffed him and removed him from the house. At trial, defendant could not remember whether he actually took any pills.
The victim obtained another restraining order. Later, however, the victim's son found defendant inside the house, surrounded by shattered glass and bleeding from a cut on his hand. Notes from defendant's subsequent visits to an emergency room and psychiatric hospital recorded that defendant was alert, oriented, had a steady gait but was suffering from alcohol dependence and anxiety disorder, and said defendant denied having psychiatric symptoms. The notes mentioned nothing about blackouts. There was additional evidence that defendant subsequently broke into the home and started a fire.
On July 28, a court issued criminal and civil restraining orders prohibiting defendant from contacting the victim. But defendant subsequently attacked the victim at a Walmart parking lot. Police later found a tracking device attached to the victim's car that matched with a monitoring device defendant had activated. Video footage from the Walmart parking lot showed that defendant waited about twenty minutes in the parking lot, then ran toward the victim and intercepted her as she returned to her car.
Witnesses described an intense beating: defendant held her hair, beat her with his fist, pushed her into the passenger seat and tried to drive off, pulled her to the ground, kicked and stomped her with his boots, and repeatedly slammed the car door against her head. Defendant did not stop when the victim lost consciousness. One witness described the beating as "rag-dolling," meaning defendant threw the victim around like a pillow, sometimes banging her head against the car. Defendant told bystanders who tried to stop the beating to leave him alone because he had a gun; when they told him he was hurting the victim, he looked at them as if to say, "I know what I'm doing." Defendant stopped only when an off-duty officer approached him with a gun. At that point, defendant fled.
Defendant was arrested three days later after his vehicle was identified by police in a parking lot near a mental hospital. Defendant said he had no recollection of being at the Walmart parking lot or being found in his car. He said his first recollection was waking up in jail and being offered an Ativan withdrawal regimen. There was no evidence of what substances he consumed on the day of the crimes, although a toxicology panel on the day of his arrest showed a blood alcohol content of .02 and no drugs.
In 2012, a jury convicted defendant of kidnapping (Pen. Code, § 207, subd. (a)), infliction of corporal injury on a spouse with great bodily injury (§§ 273.5, subd. (a), 12022.7, subd. (e)), stalking (§ 646.9, subd. (a)), stalking in violation of a restraining order (§ 646.9, subd. (b)), and disobeying a court order with a special allegation of prior domestic violence (§ 273.6). In a bifurcated proceeding the jury rejected defendant's plea of not guilty by reason of insanity. The jury reached an impasse on a charge of attempted murder, but in 2013 another jury convicted defendant of attempted murder with infliction of great bodily injury. (§§ 664, 187, subd. (a).) The second jury also rejected defendant's plea of not guilty by reason of insanity. We will provide additional facts in the discussion.
Further undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends there was insufficient evidence to convict him of any crimes at all because he established he was unconscious when he assaulted the victim. Unconsciousness from intoxication is a complete defense, but only if it is involuntary. (People v. Cruz (1978) 83 Cal.App.3d 308, 330, superseded by statute on other grounds as stated in People v. Levell (1988) 201 Cal.App.3d 749, 751.) When it is asserted, the prosecution must prove beyond a reasonable doubt that a defendant was conscious at the time of the crime, but that burden is "aided by a presumption . . . that a defendant who acts as if he is conscious is presumed to be conscious." (Id. at pp. 330-331.) The presumption does not change the People's ultimate burden of proof, although to overcome the presumption, a defendant may present evidence that "things are not what they seem." (People v. Hardy (1948) 33 Cal.2d 52, 64-65 [epilepsy example].) Intoxication can be involuntary if, for example, a drug was slipped into a defendant's drink without his knowledge. (People v. Scott (1983) 146 Cal.App.3d 823, 831 [hallucinating defendant commandeered vehicles to save his life or the life of the President].) A craving for alcohol because of chronic alcoholism does not make intoxication involuntary. (People v. Wyatt (1972) 22 Cal.App.3d 671, 677.)
Defendant's theory is that a person with alcohol dependence who commits a violent crime after voluntarily consuming a drug that has an effect on the central nervous system akin to alcohol is involuntarily intoxicated and therefore "unconscious" as a matter of law unless the prosecutor establishes the defendant was warned about and understood the intoxicating effects of the drug. Defendant acknowledged that he got "paperwork" about Ativan's side effects when he picked up his medicines and he said he read them several months before the crime, just before he e-mailed his doctor saying he wanted to discontinue it. The e-mail did not mention blackouts or intoxication, but simply asked for a different benzodiazepine. His doctor declined to make the switch, so defendant continued taking Ativan, although he independently chose not to take the antidepressants prescribed by the same doctor. Defendant testified he did not realize until much later that Ativan made him "high" although the jury also heard expert testimony that Ativan is always dispensed with warning labels on the bottle saying it causes drowsiness and one should not operate machinery after taking it or combine it with alcohol.
Defendant does not refute the evidence that he purposefully waited for and intentionally attacked the victim, constantly holding her hair with one hand so he could use his other hand to repeatedly hit her head, push her into the passenger seat, try to drive away while her feet were dangling outside, then pull her out of the vehicle to slam her head on the ground and against the vehicle while alternately stomping her face and chest. He was positively identified by several witnesses and his actions were observed by the jury on film. His speech was not slurred and he did not stumble. He does not deny that a reasonable juror would presume from this evidence that he was conscious.
Defendant claims to have established proof of his unconsciousness by denying recall of his escalating criminal conduct over a period of about six weeks and claiming no one told him that combining Ativan with alcohol created a risk of blackouts, calling this a "solid affirmative defense of unconsciousness based on Ativan involuntary intoxication" that was rebutted by no more than proof of an "academic disagreement" among experts. In fact, the experts disagreed on insanity, but even defendant's own expert acknowledged his purposefulness and organization during a presumed blackout state and distinguished it from unconsciousness.
We do not consider a comment made outside the presence of the jury to the effect that the trial judge had heard Ativan was "bad stuff." --------
To determine whether there is sufficient evidence to uphold a verdict, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant's unconsciousness defense was based on his testimony that he did not recall any of his bad acts, together with an invited inference that he became unconscious by taking Ativan without knowing its effects. Yet he cites no evidence in the record that he even consumed Ativan on the day of the crimes. His medical records indicated he drank excessive amounts of alcohol over the summer and the only intoxicant in his system when he was arrested was alcohol. As we have said, voluntary alcohol consumption is not a defense. (People v. Wyatt, supra, 22 Cal.App.3d at pp. 676-677.) Further, an unconsciousness defense may be defeated by evidence a defendant voluntarily took pills from a bottle with a label warning of drowsiness. (People v. Chaffey (1994) 25 Cal.App.4th 852, 857.) Benzodiazepine labels warn of drowsiness.
In any event, there was sufficient evidence to support a jury conclusion that defendant was conscious when he committed the crimes. Among other things, there was the savageness of the attack; his escalating pattern of rage and violence over a period of years, and especially in the weeks before the crime; the use of an electronic device allowing him to monitor the victim's vehicle and his apparent use of it to lie in wait and attack her by surprise; and the fact that he warned others away from the scene by claiming to have a gun but fled when confronted by a law enforcement officer. These facts and others support the juries' rejection of the unconsciousness defense.
II
Defendant asserted he was not guilty by reason of insanity and two juries rejected that defense. He claims the juries' decisions were not supported by substantial evidence. Appellate review of an insanity hearing is the same as other evidentiary decisions made by a fact finder: we presume all intendments in favor of the judgment and set aside a verdict only if " 'under no hypothesis whatsoever' " is there sufficient substantial evidence to support the finding in the record. (People v. Belcher (1969) 269 Cal.App.2d 215, 220, italics omitted.)
The test for insanity is whether the defendant was able to understand the nature and quality of the criminal acts or to distinguish between right and wrong when the defendant committed the act. (People v. Elmore (2014) 59 Cal.4th 121, 140 [citing the traditional M'Naghten test (M'Naghten's Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722]) as set out in earlier cases and in § 25, subd. (b).) Defendant's mental health expert was a newly-certified forensic psychiatrist who had never testified about a defendant's sanity before. She concluded defendant understood the nature and consequences of his actions at the time of the crimes but he lacked the capacity to realize the difference between right and wrong. As we shall explain, the court-appointed experts disagreed.
Defendant admitted that he drank large amounts of alcohol on a regular basis but denied it caused any problems, despite recommendations from friends, family and medical doctors that he seek treatment for alcoholism. Alcohol dependence can lead to anterograde amnesia, or blacking out. Some prescriptions for anxiety and depression, including Ativan, can increase the risk of such blackouts. The defense expert presumed defendant's amnesia was caused by combining alcohol and Ativan, although she admitted she was aware of no evidence in the record that he had consumed either on the day of the crimes.
Defendant's expert, a psychiatrist, diagnosed defendant with depression, anxiety, and alcohol dependence. She also said he had narcissistic traits. Opposing experts made similar diagnoses. There was no direct evidence about defendant's mental state on the day of the crimes, so experts had to rely on his medical records, the observations of witnesses at the crime scene and defendant's testimony that he remembered nothing from that day and very little from the weeks preceding it.
The defense expert opined from defendant's history of alcohol dependence, his Ativan prescription and his lack of recall, that defendant was in a blackout state on August 15 and that, although he was capable of organized behavior and was not unconscious that day, he must not have been aware of the difference between right and wrong. Two expert witnesses appointed by the trial court disagreed, concluding unequivocally that defendant may well have experienced blackouts but he did not meet the criteria to be considered legally insane. One of the court-appointed experts, a psychiatrist, explained that people in a blackout state are not unconscious and are capable of making decisions and thinking about what they are doing but they do not recall it later because their brains cannot transfer knowledge from short-term to long-term memory. The other expert, a psychologist, observed that, despite mild to moderate impairment from depression, defendant had been able to complete a teaching credential with a 3.9 GPA and adequately manage coaching, child care and other life activities during the time he claimed to have been experiencing blackouts, so he could not have been out of touch with reality, and there were no other signs in the record of any mental disease or defect that affected his ability to understand right and wrong.
A court-appointed psychiatrist explained anterograde amnesia (blackout), emphasizing that it is not a form of unconsciousness, but rather an inability to mentally transfer current events to long-term memory. He had done 800 to 1000 insanity evaluations over 38 years. He said that people who experience blackouts might later have little or no memory of what happened or what they had done, but a lack of subsequent memory reveals nothing about their sanity. In fact, he said, it is impulse control, not cognition, that is impaired in a blackout and he concluded defendant's understanding of right and wrong while the crimes were in progress was aptly demonstrated by his response to two people who tried to intervene in the beating: in response to one witness's implied threat with a raised fist, he claimed to have a gun and in response to another witness's pointed gun, he promptly stopped and fled. The psychiatrist said if defendant had been cognitively impaired by alcohol and Ativan that day, as the defense expert opined, witnesses would have observed stumbling, slurred speech and the inability to talk or walk or carry out goal-oriented movement.
The other court-appointed expert, a psychologist, agreed there was no clear relationship between a claim of not remembering a criminal incident and insanity and, in fact, in his 25 years of evaluating insanity evidence, he had found it very common for sane criminal defendants not to remember their crimes. He agreed it was likely defendant was under the influence of alcohol and drugs at the time of the crimes, but he disagreed with what to make of the fact that defendant committed a crime during daylight hours: rather than demonstrating an inability to grasp the wrongfulness of his act, he thought it proved nothing more than indifference or lack of inhibition, saying people take bold criminal actions all the time because they do not expect to be caught or because they think they won't have to pay the consequences.
The cited evidence was sufficient to support the juries' rejection of the insanity defense. We find no reason to question the juries' assessment of competing evidence.
III
Defendant contends the trial court's instructions about the burden of proof were inadequate because they did not directly state that the prosecution had to prove beyond a reasonable doubt that defendant's intoxication was voluntary. It is the duty of counsel, not the court, to identify portions of the record supporting an argument on appeal. (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) But defendant cites no evidence that he consumed any intoxicants at all on the day of the crime and no other evidence that warranted instructions other than those offered.
The trial court gave instructions for the jury to use if it accepted the defense theory that a history of alcohol abuse, a prescription for Ativan and a spotty memory of several weeks' duration established defendant's intoxication, including instructions on unconsciousness, voluntary and involuntary intoxication, circumstantial evidence, mental state and burden of proof. (CALCRIM Nos. 220, 225, 625, 3425, 3426, and 3427) Defendant does not suggest that any of these instructions were wrong and he does not suggest a different or additional instruction, instead asserting that a reasonable juror might have somehow misconstrued the instructions. We reject this argument.
As a starting point, a claim of instructional error is forfeited if a defendant does not request a pinpoint amplification or explanation at the time of trial. (People v. Anderson (1966) 64 Cal.2d 633, 639.) Defendant asserts his jury trials and due process rights were violated despite the absence of any instructional request. Even if an error had been preserved, a reviewing court interprets the instructions actually given in a manner that supports the judgment if they are reasonably susceptible to such an interpretation. (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.) And we presume jurors understand and follow jury instructions and that they possess intelligence and common sense. (People v. McKinnon (2011) 52 Cal.4th 610, 670.) In this case, we find no basis to conclude the instructions given were reasonably susceptible to the sort of misinterpretation suggested by defendant.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
HOCH, J.