PEOPLE v. SOTO

Amicus Curiae Brief of Ray Haynes

Cal.May 30, 2017

SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People of the State of California, $236164 Plaintiff and Respondent, SUPREME COURT , FILED MAY 3.0 2017 Juaquin Soto, Jorge Navarrete Clerk Defendant and Appellant. Deputy Monterey Superior Court, Case No. SSC120180A The Honorable Carrie M. Panetta, Judge Sixth Appellate District Case No. HO41615 Application to File Amicus Curiae Brief and Amicus Curiae Brief of Senator Ray Haynes Supporting the People of the State of California Mitchell Keiter, SBN 156755 Keiter Appellate Law The Beverly Hills Law Building 424 South Beverly Drive Beverly Hills, CA 90212 Tel. (310) 553-8533 Mitchell.Keiter@gmail.com RECEIVED MAY 18 2017 CLERK SUPREME COURT IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People of the State of California, 8236164 Plaintiff and Respondent, V. Juaquin Soto, Defendant and Appellant. w e e ” e e e e e r e e e e e e m e N e e S e e e e ” e e e ” Senator Ray Haynes Application to File Amicus Curaie Brief Supporting the People of the State of California To the Honorable Tani Cantil-Sakauye, Chief Justice, and the Honorable Associate Justices of the Supreme Court: Former Senator Ray Haynes hereby applies for permission tofile a brief as amicus curiae supporting the People of the State of California, pursuantto California Rules of Court, rule 8.520, subdivision (f). This case addressesthe effect of the statutory amendmentto then- Penal Code section 22 (now renumbered as section 29.4), legislation that amicus helped enact. Amicus curiae Senator Ray Haynes served in the California State Senate, representing the 36h District, and the Assembly, representing the 66th District, from 1993 until 2007. He served, inter alia, as Senate Republican Whip and Chair of the Senate Constitutional Amendments Committee. In both the Senate and Assembly he was a memberof the Judiciary Committee, and was actively involved in the Legislature’s amending Penal Code section 22 to reify the reasoning of Justice Stanley Mosk’s concurring and dissenting opinion in People v. Whitfield (1994) 7 Cal.4th 437. Senator Haynes maintains an ongoing interest in this issue, and publishes analysis on numerous criminal justice issues in the Flash Report. If this Court grants this application, amicus curiae requests this Court permit the filing of the brief that is bound with this application. VHX Mitchell Keiter Counsel for Amicus Curiae Senator Ray Haynes IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People of the State of California, $236164 Plaintiff and Respondent, V. Juaquin Soto, Defendant and Appellant. t l e d Monterey Superior Court, Case No. SSC120180A The Honorable Carrie M. Panetta, Judge Sixth Appellate District Case No. H041615 Amicus Curiae Brief of Senator Ray Haynes Supporting the People of the State of California Mitchell Keiter, SBN 156755 Keiter Appellate Law The Beverly Hills Law Building 424 South Beverly Drive Beverly Hills, CA 90212 Tel. (310) 553-8533 Mitchell.Keiter@gmail.com Table of Contents Table of Authorities 4 Question Presented 9 Introduction 10 Statement of Facts 15 Statement of the Case 16 Argument 19 I. The Legislature has deemedintoxication legally irrelevant as a defense to implied malice murder. 19 A. Intoxication is factually relevant to implied malice. 22 B. Intoxication is legally irrelevant to implied malice. 23 II. Intoxication evidenceis factually relevant but legally irrelevant regardless of whether the defenseoffers it to show a mistake of fact, unconsciousness, or imperfect self-defense. 32 A. Mistake of fact 33 B. Unconsciousness 37 C. Imperfect self-defense 40 1. Imperfect self-defense reflects a failure of proof as to malice, and does not require affirmative proof of any element. 40 2. Because both CALCRIM No. 520 and CALCRIM No. 571 ask whether the defendant lacked malice due to a mistaken perception, the legal relevance of intoxication must be the samefor each inquiry. 44 3. No other state deemsintoxication evidence to be more exculpatory where the defendant presents it to show imperfect self-defense rather than as a “stand alone” defense. 50 II. An armedintruder whoforcibly enters the victim’s home is not entitled to instruction on any form of self-defense, regardless of his level of intoxication. 55 Conclusion 61 Certification of Word Count 62 Appendix Proof of Service Table of Authorities Cases Brown v. State (Md. Ct. Spec. App. 1992) 90 Md.App.220 [600 A.2d 1126] ..2 253 Commonwealth v. Grassie (2017) 476 Mass. 202 [65 N.E.3d 1199] 2...eeee eee 51 Commonwealth v. Jiminez (Pa.Super.Ct. 2016) 2016 WL 5922700 1.0... ees 49 Commonwealth v. Yanoff (Pa.Super.Ct. 1997) 456 Pa.Super.Ct. 222 [690 A.2d 260] ............... 51 In re Christian S. (1994) 7 Cal.4th 768....... 14, 55, 56, 60 Montana v. Egelhoff (1996) 518 U.S. 37 [116 S.Ct. 2013, 1385 L.Ed.2d 361] ............... 20, 21 People v. Batting (N.Y. Ulster Oyer & Terminer 1875) 49 How. Pr. 392 .. 1. es 28 People v. Blake (1884) 65 Cal. 275 ......... 10, 12, 19, 25 People v. Brabson(Ill. App. Ct. 1977) 54 Ill.App.3d 134 [S69 N.E.2d 346] 2...eeen 54 People v. Carlson (2011) 200 Cal.App.4th 695 ....... 37-39 People v. Catlin (2001) 26 Cal.4th 81.............. 25, 38 People v. Curry (2007) 158 Cal.App.4th 766 ........... 26 People v. Feingold (2006) 7 N.Y.3d 288 [852 N.E.2d 1163] . 42 People v. Gorshen (1959) 51 Cal.2d 716, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101 ....... 22 People v. Grays (2016) 246 Cal.App.4th 679 ........... 58 People v. Gutierrez (1986) 180 Cal.App.3d 1076...... 35, 48 People v. Hardin (2000) 85 Cal.App.4th 625 ........ 57-59 People v. Hood (1969) 1 Cal.3d 444 ................ 11, 20 People v. Knoller (2007) 41 Cal.4th 139 ......... 22, 28, 42 People v. Langworthy (1982) 416 Mich. 630 [S31 N.W.2d 171] 2...eeee 19, 34 People v. Luparello (1986) 187 Cal.App.3d 410 ...... 27, 29 People v. Mocaby(Ill. App. Ct. 1990) 194 Ill.App.3d 441 [SSI N.E.2d 673] 2...eeee es 53 People v. Quach (2004) 116 Cal.App.4th 294 ........... 58 People v. Randle (2005) 35 Cal.4th 987, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172 ... 43, 60 People v. Rangel (2016) 62 Cal.4th 1192 ..... 14, 31, 56-60 People v. Register (1983) 60 N.Y.2d 270 [457 N.E.2d 704] disapproved on other grounds in People v. Feingold (2006) 7 N.Y.3d 288 [852 N.E.2d 1163] ................. 23, 28 People v. Rios (2000) 23 Cal.4th 450 ........ 40, 41, 43, 44 People v. Rogers (1858) 18 N.Y.9 ...... 2.0.20... ee ee 11 People v. Seaton (2001) 26 Cal.4th 598 ............... 59 People v. Smith (2014) 60 Cal.4th 603 ................ 26 People v. Soto (2016) 248 Cal.App.4th 884 ........ passim People v. Stanley (1992) 6 Cal.App.4th 700 ............ 34 People v. Steele (2002) 27 Cal.4th 1230 ............... 48 People v. Turk (2007) 164 Cal.App.4th 1361 ........... 38 People v. Trujeque (2015) 61 Cal.4th 227 .............. 40 People v. Valencia (2008) 43 Cal.4th 268 ........... 57, 60 People v. Welch (1928) 89 Cal.App.18 ................ 26 People v. Whitfield (1994) 7 Cal.4th 437 .......... passim People v. Wright (2005) 35 Cal.4th 964 ............ 13, 46 Powell v. Texas (1968) 392 U.S. 514 [88 S.Ct. 2145, 20 L.Ed.2d 1254] ..................0. 19 Roberts v. People (1870) 19 Mich. 401 .......... 28-30, 34 State v. Barr (1935) 336 Mo. 300 [78 S.W.2d 104] ....... 21 State v. Cross (1858) 27 Mo. 332 ............-....040. 36 State v. Erickstad (N.D. 2000) 620 N.W.2d 136 ......... 42 State v. Jones (1981) 95 Wash.2d 616 [628 P.2d 472] (en banc) ..... 2.2...eeeee 52 State v. Mize (1986) 316 N.C. 48 [340 S.E.2d 439] ....... 51 State v. Saenz (Me. 2016) 150 A.3d 331............... 51 State v. Vaughn (1977) 268 S.C. 119 [232 S.Ed.2d 328]... 23 Terry v. State (Ind. 1984) 465 N.E.2d 1085, superseded by statute as recognized in Sanchez v. State (Ind. 2001) 749 N.E.2d 509 2... eee 20 Statutes Alabama Code Section 13A-6-2 ................000% 50 California Penal Code Section 22 ... 0... 0.ee ee ee ee ee ee 21 Section 29.4 2... .. ee ee ee ns 9,21, 45 Section 189 .. 0... 0... ee ee ee 25, 38 Section 198.5 ............. 0... eee eens 57-59 Florida Statutes Annotated Section 782.04 ............ 50 17-a Maine Revised Statutes Annotated Section 201 ..... 50 Revised Statutes Nebraska Annotated Section 28-303 ............. 0.0 eee ee ee ee ee 51 Section 28-304 ..... 0.0.0.2... .... 0 ee eee eee 51 Ohio Revised Code Annotated Section 2903.02 ......... 51 18 Pennsylvania Consolidated Statutes Annotated Section 2502. 2.6... eeee 90 Secondary Sources Dressler, Redressing the Theoretical Underpinnings of Accomplice Liability: New Solutions to An Old Problem (1985) 37 Hastings LJ.91 2...ee eee 27 Dressler, Understanding Criminal Law (4th ed. 2006) .... 40 Fletcher, Rethinking Criminal Law (1978) ............. 20 Hart, Punishment and Responsibility (1968) ........... 33 Keiter, How Evolving Values Have Shaped (and Reshaped) California Criminal Law (2009) 4 Cal. Legal History 393 ... 19 Keiter, Just Say No Excuse: The Rise and Fall of the Intoxication Defense (1997) 87 Journal of Crim. Law & Criminology 482 Leeeee ee eee ee 20, 24, 43, 51 Keiter, With Malice Toward All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law (2004) 38 Univ. of San Francisco L. Rev. 261 .... 24, 25 LaFave and Scott, Criminal Law (2d ed. 1972) ......... 53 Model Penal Code, § 2.08, subdivision (2) .............. 2.0000 eee 24 § 210.3 commentary at 64 (1985)............... 35 Note, Constructive Murder—Drunkennessin Relation to Mens Rea (1920) 34 Harv. Law Review 78 ................. 19 Jury Instructions CALCRIM No.520 ............. 32, 40, 47-49, 50, 52 No. 571 3... eee eee eee 32, 40, 47-49, 50, 52 No. 626 1... ee ee eee ee ee eee 32, 37, 39 No. 3406) oweeee eee eee 32 No. 3426) ee eee 32 Question Presented Defendants must subjectively appreciate and consciously disregard a grave danger to be guilty of implied malice murder, but Penal Code section 29.4 bars defendants from introducing intoxication evidence to show they did not subjectively perceive (and disregard) an existing danger. Therefore, a defendant who shoots at what he thinksis a tree stump(but is actually a child) may not defend against an implied malice murder charge by showing his intoxication caused him to misperceive the nature of his target. Doesthis policy also apply where intoxication causes the defendant to perceive a nonexistent danger, e.g. he shoots at what he thinks is an armedterrorist (but is actually a child)? In other words,if the law deemsintoxication legally irrelevant where the defendant’s misperception produces a false negative finding of danger (mistaking a grenade fora ping-pongball), does the same rule apply where the misperception producesa false positive finding (mistaking a ping-pongball for a grenade)? Introduction Appellant broke into the home of a complete stranger and stabbed him to death as his family hid in the bedroom. Appellant contends the killing deserves mitigation as imperfect self-defense manslaughter because he needed to make an “instantaneous” decision about whetherto kill under “highly stressful conditions.” (AOB 43) Mitigation is unavailable because the stressful conditions were of his own making. The primary issue is the exculpatory reach of intoxication evidence. California has long wrestled with the problem of the voluntarily intoxicated offender. He may be less culpable than one who consciously endangers others, but his very unawarenessof his surroundings creates a special danger from which society deserves protection. This Court observed the tension over a century ago. Culpability considerations warrant mitigation: “In the forum of conscience, there is no doubt considerable difference between a murder deliberately planned and executed by a person of uncloudedintellect, and the reckless takingof life by one infuriated by intoxication.” (People v. Blake (1884) 65 Cal. 10 275, 277, quoting People v. Rogers (1858) 18 N.Y. 9.) But public safety demands accountability, as “human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct.” (Ibid.) Intoxication evidence was thus admissible in homicides only against a charge of express malice murder. The balance had shifted when the Court again described the issue almost a century later: “On the one hand, the moral culpability of a drunken criminal is frequently less than that of a sober personeffecting a like injury. On the other hand,it is commonly felt that a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences.” (People v. Hood (1969) 1 Cal.3d 444, 455.) It was enough that the intoxicated offender not completely escape the consequences, so a defendant could then present intoxication evidence to show he acted without express or implied malice, and was guilty of only vehicular or involuntary manslaughter, based on negligence. (People v. Whitfield (1994) 7 Cal.4th 437, 453-454.) 1] Whitfield provided the fullest debate on the question. The majority contended implied malice murder wasa specific intent offense, so the defendant could show “due to voluntary intoxication, he or she did not appreciate the dangerousness of his or her conduct.” (Whitfield, supra, 7 Cal.4th at p. 453.) Justice Mosk’s separate opinion, however, echoed Blake, supra, 65 Cal. 275, in deeming intoxication factually relevant but legally irrelevant to implied malice. “The voluntary inebriate may be perfectly unconscious of what he does and yet he is responsible . . . . Public policy and public safety imperatively require [it].” (Whitfield, supra, at p. 471 (conc. & dis. opn. of Mosk,J.) [internal citation omitted].) The Legislature then amended the law to implement Justice Mosk’s position that a defendant’s intoxication-caused misperception wasfactually relevant but legally irrelevant to implied malice. A defendant who shot at a child believing her to be a tree stump, therefore, could not present evidence of his intoxication to show he did not consciously disregard a grave danger to humanlife. 12 Appellant now contends he subjectively believed he neededto stab Israel Ramirez to protect himself, and his intoxication was relevant to this belief, and thus to his defense against murder charges. (AOB 22-23.) But rationalizing mistaken perceptions through intoxication evidenceis precisely what the post- Whitfield amendment forbids. If intoxication, though factually relevant, is legally irrelevant when the defendant does not perceive an existing danger(e.g. shooting a child in the backyard because he mistakenly did not perceive her), it must also be legally irrelevant when the defendant does perceive a nonexistent danger(e.g. shooting a child because he mistakenly perceived she was pointing a gun at him). (People v. Wright (2005) 35 Cal.4th 964, 985 (conc. opn. of Brown,J.).) The Legislature carefully weighed the policy considerations and concluded voluntary intoxication did not support mitigating a homicide from murder to manslaughter. Appellant offers no ground for creating a different rule where the mistaken perception of danger derives from a false positive finding of danger rather than a false negative one. 13 Intoxicated offenders ordinarily may assert their mistaken perception and belief in the need for self defense when charged with implied malice murder; they simply may not present intoxication evidence to advance that claim. But appellant broke into Mr. Ramirez’s home. Ramirez therefore could lawfully use force to defend himself and appellant could not — even if he reasonably perceived a needforit. (People v. Rangel (2016) 62 Cal.4th 1192, 1226; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Having created the circumstances privileging Ramirez’s use of force over his own, appellant forfeited the right to acquittal on the groundofjustifiable homicide, or conviction of voluntary manslaughterthrough imperfect self-defense. 14 Statement of Facts’ Appellant forcibly entered the homeofIsrael Ramirez and Patricia Saavedra as the couple was watching television on the couch with their son. (People v. Soto (2016) 248 Cal.App.4th 884, 896.) According to Saavedra, appellant stabbed Ramirez in the neck. Saavedra took their son to hide in the bedroom with his sister. Ramirez went to the kitchen while appellant pursued him. Appellant testified Ramirez stabbed him first, and appellant took out his knife to defend himself. (Id. at pp. 896-897.) Police discovered Ramirez’s body lying in the apartment hallway, in a pool of blood. Police found blood on the hallway walls, in the kitchen, and in front of the couch. DNAtesting matched the blood near the couch with Ramirez’s, and both men’s blood appeared on the knife found in appellant’s pocket. (Soto, supra, 248 Cal.App.4th at p. 898.) Appellant did not recall where either man was stabbed. (/d. at p. 899.) 1 Amicus derives these abbreviated statements of facts and case from the Court of Appeal opinion. They summarize only the facts and procedural history pertinent to the arguments presented in this brief. Following the opinion, the statement of facts appearsfirst. 15 Appellant had methamphetamine, marijuana, and alcohol in his system. (Soto, supra, 248 Cal.App.4th at p. 898.) Appellant’s experttestified his impulsiveness and poor decisionmakingreflected a methamphetamine-induced psychosis. This psychosis produces a perception of threats that do not actually exist. (Id. at pp. 899-900.) Statement of the Case The People charged appellant with homicide. The court instructed the jury under both express malice and implied malice murdertheories, and on first degree murder under both a premeditation and deliberation theory anda felony- murder theory based on the commission or attempted commission of a burglary. The People further charged appellant with first degree burglary and with using a deadly weapon in committing both the homicide and the burglary. (Soto, supra, 248 Cal.App.4th at p. 900.) The court instructed the jury on malice with CALCRIM No. 520, and on justifiable homicide in self-defense with CALCRIM No. 505. (Soto, supra, 248 Cal.App.4th at pp. 900- 901.) The court instructed on imperfect self-defense 16 voluntary manslaughter with CALCRIM No. 571, adding, inter alia, “Imperfect self-defense does not apply if a defendant’s conduct creates circumstances wherethe victim is legally justified in resorting to self-defense against the defendant. But the defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant.” (Soto, supra, 248 Cal.App.4th at p. 901.) As to voluntary intoxication, the court read a modified version of CALCRIM No. 625. “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 an intentto kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted. Voluntary intoxication can only negate express malice, not implied malice. [{.] A person is voluntarily intoxicat[ed] if he or she becomesintoxicated by willingly using any intoxicating drug, drink, or other substance knowingthat it could produce an intoxicating effect, or logically assumingtherisk of that effect. You may not consider evidence of voluntary intoxication for 17 any other purpose.” The court read CALCRIM No. 626 to instruct the jury on unconsciousness produced by voluntary intoxication. (Soto, supra, 248 Cal.App.4th at p. 901.) The jury acquitted appellantof first degree murder and convicted him of second degree murder. (Soto, supra, 248 Cal.App.4th at p. 901.) It convicted him of burglary and found the knife allegations true. (Ibid.) The Court of Appeal concluded the instructions misinformed the jury by preventing its consideration of appellant’s intoxication evidence in evaluating his defense of imperfect self-defense. (Soto, supra, 248 Cal.App.4th at p. 895.) The Court of Appeal found the instructional error harmless. (Jbid.) Both parties petitioned for review, and the Supreme Court granted both petitions, deeming appellant as the petitioner. 18 Argument I. The Legislature has deemed intoxication legally irrelevant as a defense to implied malice murder. The intoxication debateillustrates the tension identified in People v. Blake, supra, 65 Cal. 275, 277, over whetherto measure the magnitude of an offense subjectively, “from the standpoint of the offender,” or objectively, “from the standpoint of society which suffers from the acts of the intoxicated offender.” (People v. Langworthy (1982) 416 Mich. 630 [331 N.W.2d 171, 175]; Note, Constructive Murder-Drunkennessin Relation to Mens Rea (1920) 34 Harv. L. Rev. 78, 80-81; see Keiter, How Evolving Values Have Shaped (and Reshaped) California Criminal Law (2009) 4 Cal. Legal Hist. 393.) The doctrines of actus reus, mensrea, insanity, mistake, justification, and duress enable a constantly shifting adjustment of these competing imperatves. (Powell v. Texas (1968) 392 U.S. 514, 536 [88 S.Ct. 2145, 20 L.Ed.2d 1254].) In other words, regardless of how a legislature technically describes the elements of offenses and their defenses, the admissibility of intoxication evidence ultimately depends on policy, as both sides in Whitfield 19 agreed. (Whitfield, supra, 7 Cal.4th 437, 451 fn. 5, citing Fletcher, Rethinking Criminal Law (1978) p. 850; Whitfield, supra, at p. 463 (conc. & dis. opn. of Mosk, J.); see also Hood, supra, 1 Cal.3d 444, 455-456.) States may therefore impute a constructive mental state to a defendant as a matterof law even if he did not subjectively harbor it as a matterof fact. (Montana v. Egelhoff (1996) 518 U.S. 37, 58 [116 S.Ct. 2013, 135 L.Ed.2d 361] [conc. opn. of Ginsburg J].) States have enacted widely divergent rules on this subject. (Keiter, Just Say No Excuse: The Rise and Fall of the Intoxication Defense (1997) 87 J. Crim. L. & Criminology 482, 910-512 [Just Say No Excuse].) Indiana formerly considered a defendant’s subjective mental state exclusively, and fully exculpated offenders whose intoxication prevented them from forming an intent. The murderstatute clearly requires an intentional act on the part of the perpetrator. ... Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts. (Terry v. State (Ind. 1984) 465 N.E.2d 1085, 1088, superseded by statute as recognized in Sanchez v. State (Ind. 2001) 749 N.E.2d 509, 513-515.) Other states have chosen to deny any exculpatory effect to 20 intoxication. (Egelhoff, supra, 518 U.S. at p. 48, fn. 2.) Montana prosecutors may therefore establish deliberate homicide (which requires the defendant purposely or knowingly cause the death of another) not only “in a purely subjective sense” but through a law “rendering evidence of voluntary intoxication logically irrelevant to proof of the requisite mental state.” (Egelhoff, supra, 518 U.S. 37, 58 [conc. opn. of Ginsburg J.] [emphasis added].)? Both sides in Whitfield noted California has pursued a compromise position. For specific intent cases, Penal Code section 22 (renumbered as 29.4) considers intoxication evidence admissible. In general intent cases, it is subjectively relevant as a matterof fact yet logically irrelevant as a matter of law. The only dispute in Whitfield concerned into which offense category implied malice murderfell. 2 This analysis concerns only the admissibility of intoxication evidence to show the absence of a required mens rea. It does not affect its admissibility for other purpose. (See e.g. State v. Barr (1935) 336 Mo. 300 [78 S.W.2d 104, 105-106] ‘ [intoxication may be relevantto alibi by showing defendant could not physically commit offense].) Similarly, unless otherwise indicated, “intoxication” refers to that which is voluntary or self-induced. 21 A. Intoxication is factually relevant to implied malice. One can easily discern the factual relevance of intoxication to implied malice murder. “Implied malice requires a defendant's awareness of engaging in conduct that endangers thelife of another—no more, and no less.” (People v. Knoller (2007) 41 Cal.4th 139, 143.) The rationale for admitting intoxication evidenceis that “it appears only fair and reasonable that defendant should be allowed to show that in fact, subjectively, he did not possess the mental state or states in issue.” (People v. Gorshen (1959) 51 Cal.2d 716, 733, disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101 [emphasis added].) Insofar as the defendantdid not have the mental state at issue — “awareness”that his conduct endangeredthelife of another — any evidence, including intoxication, is factually relevant to his defense. Whitfield did not go so far as the former Indiana rule and authorize admission of intoxication evidence in all cases; it held intoxication was inadmissible as a defense to the negligence required for vehicular or involuntary manslaughter. (Whitfield, supra, 7 Cal.4th at p. 451.) But 22 the majority cited the evidence’s factual relevance in permit|ting] the defendant to defend against a charge of murder on the groundthat, due to voluntary intoxication, he or she did not appreciate the dangerousnessof his or her conduct, hence did not harbor malice, and should be convicted of the lesser offense of manslaughter. (Id. at p. 453 [emphasis added].) B. Intoxication is legally irrelevant to implied malice. The legislative decision to exclude intoxication evidence as a matter of law in implied malice cases rests on the obviousrisks in becoming intoxicated to the point where one is unaware of one’s surroundings. The elementof implied malice, “defined as conscious disregard of a substantial risk — encompassestherisks created by defendant’s conductin getting drunk.” (People v. Register (1983) 60 N.Y.2d 270 [457 N.E.2d 704, 709], disapproved on other grounds in People v. Feingold (2006) 7 N.Y.3d 288 [852 N.E.2d 1163, 1168.) ‘The effect of drunkenness on the mind and on men's actions . .. is a fact known to everyone, and it is as much the duty of men to abstain from placing themselves in a condition from which such danger to others is to be apprehendedasit is to abstain from firing into a crowd or doing any other act likely to be attended with dangerousorfatal consequences.’ 22 C.J.S. § 68(a) (1961). (State v. Vaughn (1977) 268 S.C. 119 [232 S.Ed.2d 328, 331].) 23 Therefore, if self-induced intoxication renders an actor unaware of a risk he would have been aware of had he been sober, “such unawarenéssis immaterial.” (Whitfield, supra, 7 Cal.4th at p. 475, citing Model Penal Code, § 2.08, subd.(2).) Manystates distinguish between express and implied malice in determining when to admit intoxication evidence. (Just Say No Excuse, supra, 87 J. Crim. L. & Criminology 482, 510-512.) The dual policy reflects the distinct vice rendering the element(s) of each adequate to establish malice. Express malice involves the especially culpable mental state of an intent to kill. Intoxicated killers harbor less subjective culpability than sober ones, so they do not act with malice on an express malice theory. Implied malice derives from less subjective culpability (conscious disregard) but more objective danger than express malice. (Keiter, With Malice Toward All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law (2004) 38 U.S.F. L. Rev 261, 263-268 [With Malice Toward All|.) Contrary to appellant’s claim that implied malice murderis a lesser included offense, so that 24 “whenever there is express malice murder, there is also implied malice” (ARB 4), implied malice has the additional element of objective danger; the natural and probable consequencesofthe offender’s act must be dangerous to 3 Because the law looks to the maintenance ofhumanlife. personal security and social order more than to an accurate discrimination as to the moral qualities of individual conduct, a less culpable subjective mental state combined with an objective social danger may establish malice just as much as the more culpable mental state of an intent to kill. (Blake, supra, 65 Cal. 275, 277.)* The comparable effect of a subjective intentto kill and objective danger was described by then-Court of Appeal *For murders committed by certain especially dangerous meanslike poison or explosives, implied malice may support a first degree murder conviction. (Pen. Code, § 189; People v. Catlin (2001) 26 Cal.4th 81, 149.) 4 Because a jury mayfind a defendant acted with express malice but not implied malice (by intending to kill through the commission of a relatively nondangerous act (see With Malice Toward All, supra, at p. 265)), courts should instruct juries that intoxication is legally relevant as a defense to a charged express malice murder even thoughit is inadmissible as to an implied malice ground. 25 Justice Cantil-Sakauye in People v. Curry (2007) 158 Cal.App.4th 766, 786-789.) So long as an aider-abettor knowsof and intendsto facilitate a planned crime, she may be liable for any reasonably foreseeable crime committed. (See e.g. People v. Smith (2014) 60 Cal.4th 603, 611 [accomplice criminally liable for not just intended crime but any reasonably foreseeable crime that occurs].) An aider- abettor may thusbeliable for attempted murdereither (1) because she knewof the perpetrator’s intent to kill; or (2) because the attempted murder was a natural and probable consequenceof the intended crime. (Curry, supra, at p. 789.) Although the latter form has a lesser culpability, it also “requires more”; the ultimate crime must be a natural and probable consequenceof the planned crime. (Jbid.) For comparable reasons, the law imputesliability to both intoxicated offenders and aider-abettors for subjectively unintended and unanticipated harms. Criminals acting together present a greater dangerto society than one acting alone. (People v. Welch (1928) 89 Cal.App.18, 22.) Similarly, appellant freely admits his methamphetamine and alcohol 26 use aggravated the dangerto society by making him more likely to act aggressively, start fighting, and use deadly force without any legitimate basis. (AOB 22.) The rule holding accomplicesliable for all “criminal harms they have naturally, probably and foreseeably put in motion” is not unfair; by joining with others whose actions they cannot control they forfeit their personal identity and their right to be held liable for only those acts they subjectively intended. (People v. Luparello (1986) 187 Cal.App.3d 410, 439-441, citing Dressler, Redressing the Theoretical Underpinnings ofAccomplice Liability: New Solutions to An Old Problem (1985) 37 Hastings L.J. 91, 111.) Full accountability for all reasonably foreseeable crimes committed also serves to deter individuals from combining with others to commit crimes. (Luparello, supra, at p. 438.) Inebriates likewise forfeit control over their behavior, aggravating the danger to others. A zookeeper who exposes a crowd to danger by opening the doorof a lion’s cage is criminally responsible for deaths that ensue, not because he controls the lion’s actions but because he cannot. (See People 27 v. Register, supra, 457 N.E.2d 704, 707 (opening lion’s cage reflects implied malice/depraved mind); People v. Batting (N.Y. Ulster Oyer & Terminer 1875) 49 How.Pr. 392, 395 {intoxication turns individuals into “beasts preying upon society”].) It is the inebriate’s lack of control/awareness that aggravates the danger to others. (See People v. Knoller, supra, 41 Cal.4th 139, 158 [emphasis added]: implied malice appeared from defendant’s “decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him.”) There is thus a long tradition of extendingliability to intoxicated offenders for subjectively unintended or unanticipated harms. Justice Mosk cited a Michigan Supreme Court decision holding an intoxicated offender had set his will free from the control of reason--to have suppressed the guards and invited the mutiny; and [so] should therefore be held responsible as well for the vicious excesses of the will, thus set free, as for the acts done by its prompting. (Roberts v. People (1870) 19 Mich. 401, 419, cited in Whitfield, supra, at p. 471.) 28 Because the defendant had forfeited his capacity to reason and control his actions, he could not assert he committed the actus reus but lacked the mensrea. There is no ground upon whicha distinction can safely be made in such cases, between theacts of his hands and those of his will, which have set in motion and directed the hands. (Roberts, at p. 419.) The defendant therefore could not disconnect his “hands”(acts) from his “will” (mental state) and claim he did not intend the harmful acts, because it was his “will” that set the hands in motion by voluntarily consumingintoxicants. (Ibid.) The Roberts analysis fully describes the justification for Luparello’s first degree murder conviction. (Luparello, supra, 187 Cal.App.3d 410.) Luparello conspired to commit an aggravated assault with others, but one went further and fatally shot the victim. (/d. at pp. 419-420.) The defense contended Luparello should not be responsible for the shooter’s acts absent evidence he intended or anticipated the homicide. (/d. at p. 438.) But the Court of Appeal essentially 29 echoed Roberts: his “will” had set in motion an uncontrollable and destructive force (the shooter’s “hands”), for which Luparello was fairly held responsible. Justice Mosk thus embraced the Michigan Supreme Court’s position that “a man whovoluntarily puts himself into a condition to have no control of his actions, must be held to intend the consequences.” (Whitfield, supra, 7 Cal.4th at p. 471, quoting Roberts, supra, 19 Mich. at p. 416, internal citations omitted.) The imputation of malice was oneoflaw, not fact, so the factual relevance of intoxication could not exculpate. The law does not seek to ascertain the actual state of the perpetrator’s mind, for the fact from which malice is implied having been proved, the law presumesits existence, and proof in opposition in this presumption, is irrelevant and inadmissible. (Whitfield, supra, 7 Cal.4th at pp. 475-476 [boldface added].) Intoxication was factually relevant but legally irrelevant. Chief Justice George did not oppose the policy holding voluntary intoxication legally irrelevant to implied malice but found the Legislature had not incorporated that policy into the statute. (Whitfield, supra, 7 Cal.4th at pp. 448-449.) He explained how the Legislature “easily” could have written the 30 statute to implement the policy favored by Justice Mosk by stating “voluntary intoxication is admissible solely on the issue whether a defendant harbored express (but not implied) malice.” (bid.) The Legislature did so the next year (omitting the parenthetical). For crimes committed since that date, the law excludes intoxication as a defense to implied malice murder. (People v. Rangel, supra, 62 Cal.4th 1192, 1227.) Voluntary intoxication is factually relevant but legally irrelevant to a defendant’s appreciation of danger, as required for implied malice. The samelegal irrelevance applies regardless of whether the defendant presents the intoxication as showing a mistake of fact, unconsciousness, or imperfect self-defense. 31 II. Intoxication evidence is factually relevant but legally irrelevant regardless of whether the defense offers it to show a mistake of fact, unconsciousness, or imperfect self-defense. A defendant may present intoxication evidenceforits exculpatory effect through different theories. ArgumentI demonstrated howit is unavailable against what appellant terms a “stand alone defense” to implied malice murder. (ARB 3-4; see CALCRIM Nos. 520, 3426.) But there are other theories through which it could be relevant. It could establish a mistake of fact (see CALCRIM No. 3406), it could produce unconsciousness (CALCRIM No. 626), or it could lead a defendant to harbor an unreasonable belief in the need to defense himself. (CALCRIM No. 571.) Appellant thus argues evidence of his intoxication was relevant to his mistaken belief in the need to use deadly force against Mr. Ramirez (AOB 22, 37, ARB 5.) But the reach of the intoxication defense and its exculpatory effect are bound bythe policy that intoxication evidenceis factually relevant but legally irrelevant against a charge of implied malice murder. That same policy applies regardless of defendant’s theory in presenting the evidence. 32 A. Mistake offact Appellant contends his homicide deserves mitigation because he made a mistakeof fact. (AOB 29.) A mistake may negate a defendant’s culpability; an offender who commits an unjustifiable homicide due to a mistake of fact will be less culpable than another wholikewisekills with full understanding of his conduct. In other words, someone who shoots at a child believing she is a tree stump deservesless blame than someone else who shoots knowing his target is an innocentchild. Whatis crucial is that those whom we punish should have had, when they acted, the normal capacities, physical and mental, for . . . abstaining from what[the law] forbids, and a fair opportunity to exercise those capacities. Where these capacities are absent [due to, inter alia, ignorance or mistake] .. . the moral protest is thatit is morally wrong to punish because “he could not have helped it” or “he could not have done otherwise.” (Hart, Punishment and Responsibility (1968) 152.) Factual unawarenessreflects a moral innocence justifying legal innocence. 33 But this reasoning does not apply to inebriates because they had the “normal capacities” and “fair opportunity to exercise” them but voluntarily forfeited that opportunity. More than a century after Roberts, supra, 19 Mich. 401, the Michigan Supreme Court confirmedits rationale that a person who unconsciously creates risk due to voluntary intoxication may manifest more moral blameworthiness than a sober person who unconsciously creates risk due to mental deficiency. (Langworthy, supra, 331 N.W.2d 171, 179.) Mistakes therefore lack exculpatory effect when defendants voluntarily generate them through intoxication. (People v. Stanley (1992) 6 Cal.App.4th 700, 706.) Not all mistakes are created equal. Appellant’s contrary assertion conflates voluntary and involuntary intoxication, and treats them as functional equivalents. But why a defendant misperceives facts matters. Mistakes due to mental illness warrant more blame than those due to involuntary intoxication. 34 ae m o A defendant who commits criminal acts while under a temporary delusion caused by involuntary intoxication is neither morally blameworthy nor a menace to the community and therefore may appropriately use the mistake-of-fact defense to obtain complete exoneration. The same cannot be said of the mentally ill defendant who may represent a continuing threat and who may be blameworthy to some degree, although perhaps not as much as a completely sane individual. (People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083-1084.) Mistakes due to voluntary intoxication, a fortiori, are even more culpable and dangerous. Just as unawarenessof risk due to intoxication deserves more serious sanction than unawareness dueto other grounds when presented as a “stand alone defense,” so too does “mistake of fact” due to intoxication deserve more serious sanction than other mistakes when presented as an alternative mitigating ground. (Cf. Model Penal Code, § 210.3 commentary at 64 (1985) “|E]xtreme emotional disturbance will not reduce murder to manslaughterif the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance.”) Intoxication-fueled mistakes also differ from mistakes flowing from other grounds for deterrence purposes; the law can deter stupefaction butit 35 cannot deter stupidity. “A mistake or accident may happen to a man, whether drunk or sober, and if they are more likely to occur when in the former predicament, he is not entitled to any advantage over the sober man by reason ofthis.” (State v. Cross (1858) 27 Mo. 332, 337.) The Cross court’s analysis, though more than a century and a half old, applies with frightening precision to appellant’s contention that his consuming methamphetamine and alcohol for days, thereby aggravating the risk he would “misperceive things,” entitled him to use such misperception as a defense to murder. (AOB 22.) “Ifa man can thus divest himself of his responsibilities as a rational creature and then perpetrate deeds of violence with a consciousness that his actions are to be judged by the irrational condition to which he has voluntarily reduced himself, society would not be safe.” (Cross, supra, at p. 338.) In sum, mistakes of fact ordinarily are inconsistent with culpability, and thus are factually relevantin refuting it. But the same policy barring intoxication evidence to show the defendant mistakenly did not perceive an existing danger 36 bars its admission to show the defendant mistakenly perceived one that did notexist. B. Unconsciousness. The court read CALCRIM No. 626to the jury. It instructs, inter alia, Whena person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumesthe risk that while unconscious he or she will commit acts inherently dangerousto humanlife. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. (CALCRIM No. 626.) This instruction was error, because voluntary intoxication is inadmissible as a defense to implied malice murder, regardless of whether the defendantretains or loses consciousness in the process. (People v. Carlson (2011) 200 Cal.App.4th 695, 707.) Carlson rejected a loophole to the rule described above precluding the admission of voluntary intoxication evidence to show the absence of implied malice. The instruction relies on “the premise voluntary intoxication can still negate a finding of implied malice.” (Carlson, supra, 200 Cal.App.4th at p. 37 707.) Carlson recalled the analysis of People v. Turk (2008) 164 Cal.App.4th 1361, 1376-1377, which rejected instructing that juries that intoxication-caused homicides amountedto involuntary manslaughter. “This instruction is incorrect because a defendant who unlawfully kills without express malice due to voluntary intoxication can still act with implied malice, which voluntary intoxication cannot negate, in the wake of the 1995 amendmentto section 22, subdivision (b). To the extent that a defendant whois voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder.” (Carlson, supra, at p. 707, quoting Turk, supra, at pp. 1376- 1377.)° As intoxication evidence waslegally irrelevant to implied malice murder where the defendant was severely intoxicated but still conscious, the Court of Appeal refused to “carve out an exception where a person drinks so much as to render him or her unconscious.” (Carlson, supra, at p. 707.) Intoxication was inadmissible to show the absence of implied malice, both whenit led to unconsciousness and whenit did not. The Carlson conclusion is unassailable. CALCRIM No. $s It could be first degree murderif such an intoxicated murderer used poison or other special means. (Pen. Code, § 189; People v. Catlin, supra, 26 Cal.4th 81, 149.) 38 626 accurately stated the law as described by the majority in Whitfield, supra, 7 Cal.4th 437, when the Court granted review to “consider his claim that he was entitled to an instruction based on a defense of unconsciousness brought about by his voluntary intoxication. ...” (Id. at p. 456.) But Justice Moskobjected to the majority holding, as it would “allow the grossly intoxicated killer an unanticipated defense to murder based on unconsciousness. I doubt the Legislature ever intended such a result.” (Id. at p. 456 [emphasis added].) Whether or not the Legislature ever intended such a result before Whitfield, it indicated in 1995 that it opposedit prospectively. The Carlson court correctly concluded the section 22 amendment showed the Legislature believed intoxication should be admissible to show the absence of express malice but not implied malice, so a defendant who committed an act whose natural and probable consequences were dangerousto humanlife should be guilty of implied malice murder, even if intoxication prevented him from subjectively appreciating the risk. No different result was warranted if the defendant 39 offered the evidence to show “unconsciousness” under CALCRIM No. 626 rather than a failure of proof as to the “conscious disregard” element under CALCRIM No. 520. Likewise, the outcome must be the same whether the defense is a failure of proof as to the conscious disregard element or the “defense” of imperfect self-defense. (CALCRIM No. 571.) C. Imperfect self-defense 1. Imperfect self-defense reflects a failure of proof as to malice, and does not require affirmative proof of any element. Procedurally, imperfect self-defense is not an “affirmative defense” but a shorthand description of the circumstances under which the defendantis guilty of only voluntary manslaughter because the People failed to prove malice beyond a reasonable doubt. (People v. Trujeque (2015) 61 Cal.4th 227, 271; People v. Rios (2000) 23 Cal.4th 450, 454; Dressler, Understanding Criminal Law (4th ed. 2006) 250.) Imperfect self-defense voluntary manslaughter simply describes a circumstance under which the jury may decline to find malice. Contrary to appellant’s argument, a voluntary manslaughter conviction does not require affirmative proof of 40 appellant’s beliefs at the time of the killing. (ARB 3-4.) Both his assertions misstate the law: imperfect self-defense does require the absence of malice and does not require “far more” than the absence of malice. (Rios, supra, at p. 461.) “Provocation and imperfect self-defense are not additional elements of voluntary manslaughter which must be proved” for a homicide conviction to be voluntary manslaughter instead of murder, and evidence tending to show the defendant actually but unreasonably believed in the need for self-defense is “relevant only” to show the absence of malice. (Rios, supra, at pp. 461, 470.) But the Legislature established the legal irrelevance of intoxication evidence to the jury’s determination of implied malice. It may have been easier to discern how a jury needsto make only one determination, whether the defendant harbored malice, through the instruction formerly in use. The current instruction asks whether the defendant consciously disregarded a known danger to humanlife, and its literal construction could apply to a surgeon engaged in risky emergency surgery that could save the patient’s life but 41 also hasten her death. By contrast, the former element of “wanton disregard for humanlife” more directly referenced the antisocial nature of implied malice.. (See Knoller, supra, 41 Cal.4th 139, 153.) Appellant’s conclusion that the jury must make multiple findings derives from the apparent need to determine: (1) whether the defendant acted in conscious disregard of a known danger; and (2) whether the defendant nevertheless acted with an actual belief in the need for self- defense. But there is only one question, whether the defendant acted with malice, and the People mustprove it beyond a reasonable doubt. New York law makesthis clearer in requiring the defendant show “utter disregard for the value of humanlife,” just as North Dakota proscribes “extreme indifference to the value ofhumanlife.” (People v. Feingold (2006) 7 N.Y.3d 288 [852 N.E.2d 1163, 1168] [emphasis added]; State v. Erickstad (N.D. 2000) 620 N.W.2d 136, 143 [emphasis added].) Someone whoacts according toa perceived need for self-defense (however unreasonable) does not disregard the value of humanlife, he acts to protect one — 42 his own.® An actual belief in the need to defendlife thus cannot coexist with the “malignant heart” described in section 188. (Rios, supra, 23 Cal.4th 450, 461.) Especially in the context of defending others, mitigation serves not only the goal of punishing offenders according to their subjective culpability but also protecting the public. Third parties in these cases perceive victims in apparent danger and must decide whetherto intervene, often with only limited information about the nature of the conflict. (People v. Randle, supra, 35 Cal.4th 987, 1009 (conc. opn. of Brown J.).) Punishing misjudgment as murder would significantly deter intervention in all cases, with detrimental effects on the protection of innocent humanlife. (Ibid; see Just Say No Excuse, supra, 87 J. Crim. L. & Criminology 482, 498, fn. 98.) Someoneacting to protect humanlife does not evince malice, so a reasonable doubt about whether the defendant subjectively believed in the need for self-defense precludes 6 Imperfect self-defense may also cover the defense of others. (People v. Randle (2005) 35 Cal.4th 987, 997, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) 43 conviction for murder. But as the jury must answer the same ultimate question of malice regardless of whether the defendant asserts he did not subjectively perceive a danger that did exist or asserts he did subjectively perceive a danger that did not, the effect of intoxication evidence must be the same: it is factually relevant but legally irrelevant. 2. Because both CALCRIM No. 520 and CALCRIM No. 571 ask whether the defendant lacked malice due toa mistaken perception, the legal relevance of intoxication must be the same for each inquiry. A defendant may lack malice because he does not perceive -- and consciously disregard -- a danger to human life (that exists) or because he does perceive one (which does not exist) and believes he mustact to protect himself or others. Either way, the People’s failure to prove otherwise beyond a reasonable doubt precludes conviction for implied malice murder. (Rios, supra, 23 Cal.4th at p. 462.) The People mustaffirmatively establish implied malice beyond a reasonable doubt, regardless of whether defendant’s asserted mistake lay in not seeing a real dangeror in seeing an unreal one. The legal admissibility of the intoxication evidence must be the samein either case. 44 CALCRIM 520 defines the presence of malice, whereas CALCRIM 571 defines its absence, but both instruct on the defendant’s “knowledge.” CALCRIM 520 instructs juries must find the defendant “knew”his act was dangerous to human life; if the defendant believed he shot at a tree stump, nota child, he is not guilty of implied malice murder. But Penal Code section 29.4 renders the defendant’s intoxication “irrelevant and inadmissible” to establish this lack of knowledge. (Whitfield, supra, 7 Cal.4th 437, 476.) CALCRIM No. 571 requires the jury find the “defendant actually believed” there was imminent danger and that deadly force was necessary, andit instructs the jury to consider the circumstances as they were “known and appearedto the defendant.” If circumstances thus known and apparent to the defendant revealed an armedterrorist attacking him so that he needed to use deadly force to protect himself, he would not be guilty of murder. But just as Penal Code section 29.4 bars the defendant from using intoxication evidence to show he did not know his target was a child, it bars him from using intoxication evidence to show he “knew”or it appeared that the target wasa terrorist. 45 Three justices observed this in People v. Wright (2005) 35 Cal.4th 964, 985 (conc. opn. of Brown, J.) Intoxication can affect a person in two opposing ways. It can cause a person not to perceive a risk that is real, as is common in the case of alcohol abuse(see, e.g., People v. Whitfield (1994) 7 Cal.4th 437, 442-444 [parallel citations]), and it can cause a person to perceive a risk that is not real, as is commonin the case of cocaine or methamphetamine abuse. Underthe ordinary framework (see CALCRIM No. 520), a false negative finding may show the absence of malice, as where the defendant shoots at a tree butfails to perceive there is a child right in frontof it (or that the “tree” itself is actually a child.) Under the imperfect self-defense framework (see CALCRIM No. 571), a false positive finding may show an unreasonably perceived threat; the defendant perceives an assailant pointing a gun at him and so shoots at whatis actually a harmless toddler. Justice Brown prescribed the same evidentiary rule for each mistake. The Legislature has madeclear that, in the former situation, a defendant may be convicted of second degree murder on an implied malice theory, and the evidence of voluntary intoxication is not admissible. (§ 22, subd. (b).) Logic suggests that a similar rule should apply when voluntary intoxication causes the opposite effect. 46 (Wright, supra, at p. 985.) The two legal theories are even closer in operation. A failure to appreciate an actual risk usually involves not perceiving something that is present, and unreasonably acting in self-defense usually involves perceiving something that is absent. But not always. A defendant could fail to appreciate a danger by shooting near what he knowsis a child because he perceives a bulletproof wall protecting her, though none exists. Or a defendant could unreasonably perceive a need for self-defense where he believes someoneis about to push him off downwardsto his death only because he fails to perceive there is a cushion placed beneath him and the drop is just ten inches. And as the hypothetical in the “question presented” shows, it may even be the same mistake; a defendant may mistake a grenade for a ping-pong ball or mistake a ping-pongball for a grenade. The Legislature’s policy deeming intoxication legally irrelevant in determining implied malice must apply to both. Criminal convictions do not turn on how the defense labels its theory: “The same policy reasons which prevent use 47 of evidence of mentalillness to prove the absence of general intent apply to prevent use of the same evidence under the guise of an affirmative mistake-of-fact defense.” (Gutierrez, supra, 180 Cal.App.3d 1076, 1083.) It would “subvert|]” legislative policy and frustrate the legitimate ends of criminal justice if defendants enjoyed greater exculpation for their theories simply “by presenting them underthe label of mistake of fact.” (Jd. at p. 1084.) This Court has also rejected altering the proper outcome of a case based on the guise through which the defense presented its evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1255.) Steele presented evidence of post-traumatic stress disorder deriving from his Vietnam service and other mental abnormalities, which made him “routinely misinterpret stimuli” and “over-respond [and] misinterpret events or stimuli.” (Id. at pp. 1240-1241.) These symptoms resemble the symptoms described below, although they at least partially derived not from methamphetamine consumption but service of one’s country. (Steele also had an intoxication level estimated around .28. (Steele, supra, at p. 48 1240.)) But the Court rejected his request for the jury to consider his heat of passion defense for a person with his unique background, as that would “resurrect the abolished defense of diminished capacity in the guise of an expanded form of heat of passion manslaughter.” (Steele, supra, at p, 1255.) Appellant’s instant attempt to use his intoxication to establish the absence of malice pursues a similar loophole. It seeks to resurrect the since-rejected rule of Whitfield, supra, 7 Cal.4th 437, (intoxication is legally relevant to the determination of implied malice) in the guise of an expanded form of imperfect self-defense manslaughter. This Court should reject this “attempt to back door in evidence of intoxication that is statutorily precluded and held to be irrelevant.” (Commonwealth v. Jiminez (Pa. Super. Ct. 2016) 2016 WL 5922700.) 49 3. No other state deems intoxication evidence to be more exculpatory where the defendant presents it to show imperfect self-defense rather than as a “stand alone” defense. Appellant contends that intoxication’s exculpatory effect of should be broader whenoffered to refute implied malice by showing the defendant madea false positive finding of danger (under CALCRIM No. 520) rather than a false negative one (under CALCRIM No. 571). He cannot cite any case to support this theory, because there does not appear to bea published case nationwide supporting his theory that evidence maybelegally irrelevant to malice when offered as a “stand alone” defense but legally relevant to establishing imperfect self-defense. Comparing one state’s criminal doctrines to those of otherstates is difficult, as the hypothetical outcome depends on interdependent rules. For example, states grade homicides differently (some states define three degrees of murder’ and others define only one®), they require different "See e.g. Fla. Stat. Ann. § 782.04; 18 Pa.C.S.A. § 2502. *See e.g. Ala. Code §13A-6-2; 17-a Maine Rev. Stat Ann. § 201. 50 mental states for murder (some require a purposeto kill? whereas others permit murder convictions based on gross negligence),’° they define imperfect self-defense differently(if at all),"’ and they prescribe varying degrees of exculpation for intoxication (if at all).'* Furthermore, not every state has determined the application of these interdependentdoctrines. 9 See Ohio Rev. Code Ann. § 2903.02 [murder requires purpose to kill]; see also Rev. Stat. Neb. Ann. §§ 28-303, 304 [murder requires purpose to kill unless committed through poison, perjury, or in the course of an enumerated felony]. 10 See State v. Saenz (Me. 2016) 150 A.3d 331, 335 [defendant commits extreme indifference murder through conduct “he should have known would create a very high degree of risk” of death/serious bodily injury]; Commonwealth v. Yanoff (1997) 456 Pa.Super.Ct. 222 [690 A.2d 260 264]: malice appears through acts “in gross deviation from the standard of reasonable care, failing to perceive” [the creation of a substantial and unjustifiable risk]. 11 See Commonwealth v. Grassie (2017) 476 Mass. 202 [65 N.E.3d 1199, 1206]; State v. Mize (1986) 316 N.C. 48 [340 S.E.2d 439, 441-442] (imperfect self-defense applies only wherebelief in need for self-defense was reasonable but the defendant used excessive force or was theinitial aggressor). 12 See Just Say No Excuse, supra, 87 J. Crim. L. & Criminology at pp. 510-512. 51 This should not surprise, as some states produce fewer published decisions in a decade than California does in a year, and even ourstate has not yet resolved this issue. Nevertheless, it does not appear that any state has ever graded a homicide less severely because intoxication evidence purportedly showed the defendant mistakenly harbored an unreasonable belief in the need for self-defense rather than showing he mistakenly failed to perceive an actual danger. Intoxication in many states has the same exculpatory effect regardless of whetherit is presented as a “stand alone” defense (e.g. CALCRIM No. 520) or in the imperfect self- defense context (e.g. CALCRIM No. 571). There were, then, two possible ways the jury could have decided that appellant lacked the intent necessary for a conviction of second degree murder. They could have found either that he was so intoxicated as to be unable to form the intent to kill or, alternatively, that he acted in self-defense, but recklessly or negligently used more force than was necessary to repel the attack. (State v. Jones (1981) 95 Wash.2d 616 [628 P.2d 472, 476] (en banc).) And the mannerof presentation obviously does not matter n the 15 states that completely bar the presentation of intoxication evidence as a defense to any mental state. (See 52 Appendix.) Some states, however, allow consideration of intoxication to show the absence of malice generally but not to support an imperfect self-defense theory, apparently on the theory that one who knowingly uses deadly force has an obligation to do so carefully, with responsibility for the consequences of unreasonable misperceptions. Intoxication is legally relevant to imperfect self-defense only if it is otherwise legally relevant to malice. Maryland deemsintoxication evidence legally irrelevant to malice, and thus it may not support imperfect self-defense manslaughter. Even moreclearly, he does not qualify for the voluntary manslaughter treatment, where, becauseof intoxication, he easily loses his self- control; that is to say, he is to be judged by the standard of the reasonable sober man. (W. LaFave andA. Scott, Criminal Law (2d ed. 1972) 659, quoted in Brown v. State (Md. Ct. Spec. App. 1992) 90 Md.App.220 [600 A.2d 1126, 1132].) By contrast, an Illinois court found a defendant’s intoxication waslegally relevant to his imperfect self-defense claim. (People v. Mocaby(Ill. App. Ct. 1990) 194 Ill.App.3d 441 [551 N.E.2d 673, 679].) But Illinois already permitted consideration of intoxication evidence to show the absence of malice even outside the imperfect self-defense context, much 53 as California did before the 1995 amendment. (People v. Brabson(Ill. App. Ct. 1977) 54 Ill.App.3d 134 [369 N.E.2d 346, 348].) Mocaby therefore does not advance appellant’s contention that intoxication should have a greater exculpatory effect in imperfect self-defense cases than otherwise permitted by statute. The California Legislature has determined, like most states, that voluntary intoxication is legally irrelevant to the determination of malice. Appellant offers no persuasive reason for abandoning that policy when misperceptions lead to false positive findings of danger rather than false negative ones. 54 Ill. An armedintruder who forcibly enters the victim’s homeis not entitled to instruction on any form of self-defense, regardless of his level of intoxication. Appellant references In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1, to support his argument. (AOB 42.) This footnote actually offers another example of how policy overrides evidence’s factual relevance. And it offers another ground for why a manslaughter conviction is unavailable to appellant — even if he reasonably believed Ramirez was about to kill.him. The full footnote reflects policy: a defendant’s belief (however reasonable!) in the need to defend himself will not exculpate where the defendant created that need. [O]rdinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct(e.g., the initiation of a physical assault or the commission of afelony), has created circumstances under which his adversary's attack or pursuit is legally justified. ([Citations].) It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murderconviction even if the felon killed his pursuer with an actual belief in the need for self-defense. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1 [emphasis 55 added.) This rule resembles the amendment to then-section 22 excluding intoxication evidence from implied malice cases. An inebriate who culpably endangers others by becoming severely intoxicated may not present factually relevant evidence of his intoxication, just as someone who culpably endangers othersby initiating an assault or committing a felony (appellant did both in commencing an assault with a deadly weapon against Ramirez) may not show his factually relevant belief in the need for self-defense. The policy not only reinforces the intoxication policy in the abstract, it precludes appellant’s request for instruction on voluntary manslaughter in this case. This Court recently cited the Christian S., supra, 7 Cal.4th 768, footnote to bar an imperfect self-defense theory in a case with facts almost identical to ours. (Rangel, supra, 62 Cal.4th 1192, 1226.) Here, defendant and his son, who were armed, broke into Durbin's home while Durbin and his wife and young children were present. Defendant shot Durbin when herushedinto the living room because defendant thought he was “runningto get a gun.” (Id. at p. 1226.) 56 But the circumstancesof the entry privileged Durbin’s use of force, and not the defendant’s. As defendant appears to concedein his reply brief, because defendant was “the initial aggressor and the victim's responselegally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter.” ([People v. Seaton, [2001] 26 Cal.4th [598, at p. 664 [parallel citations]; see Pen.Code § 198.5 [resident “presumed to have held a reasonable fear of imminentperil of death or great bodily injury” to himself, his family, or a memberof the household when he usesforce against a person not a memberof the family or household “who unlawfully and forcibly enters” the residence].) (Rangel, supra, at p. 1226 [emphasis added].) As appellant unlawfully invaded Ramirez’s home, Ramirez could lawfully use force and appellant could not. If appellant correctly perceived Ramirez was attacking him, a defense of perfect (reasonable) self-defense still would have been unavailable. (Ibid.) Appellant therefore could not assert imperfect self-defense. (People v. Valencia (2008) 43 Cal.4th 268, 288 [imperfect self-defense available only where reasonable belief would support perfect self-defense].) The Court of Appeal has likewise recognized Penal Code section 198.5 renders imperfect self-defense unavailable to homeinvaders. In People v. Hardin (2000) 85 Cal.App.4th S 57 625, the defendant testified “he had ingested cocaine and feared people were after him,” and presented doctors’ testimony that he had experienced a cocaine-induced psychosis. (Id. at p. 628.) But whatever his state of mind, he could not invoke even imperfect self-defense when he broke into a woman’s home andstruck her with a hammer. (Jd. at p. 627.) Section 198.5 revoked prior legal authority that could “be read as granting home invaderstheright of imperfect self-defense to resist attempts at forcible eviction by a residential homeowner.” (Hardin, supra, at p. 634.)’* As in Rangel, supra, 62 Cal.4th 1192, “The entire situation was created by defendant. [The victim’s] use of force was privileged; defendant’s was not.” (Hardin, supra, at p. 634.) Appellant cites People v. Quach (2004) 116 Cal.App.4th 294, 300-301, to show an aggressor may lawfully use force after his victim escalates the level of force. (AOB 43.) But Quach involved known adversaries engaging in mutual 13 It is more accurate to speak of the homedweller, because the right to use defensive force against an intruder does not turn on legal title to the property. (See People v. Grays (2016) 246 Cal.App.4th 679, 688.) 58 combat, not an attack on a complete stranger in his home, as in Rangel, supra, 62 Cal.4th 1192, Hardin, supra, 85 Cal.App.4th 625, or this case. Instruction in Quach thus concernedjustification under Penal Code section 197, where the right to use force may shift back and forth depending on the nature of the force used, rather than section 198.5, which presumesthe home invader has noright to use force — and the homedweller does. (Hardin, supra, at p. 634.) The Seaton homedweller therefore could “escalate” and answer the aggressor’s punch by using a deadly weapon (hammer) without privileging the home invader’s responsive useof force. (People v. Seaton (2001) 26 Cal.4th 598, 664.) The evidence showed appellant stabbed Ramirez in his home,as his blood was found near the couch. (Soto, supra, 248 Cal.App.4th 884, 898.) Appellant’s argument on appeal, that he attemptedto legally “withdraw” by leaving the apartment, mustfail. (AOB 42.) A defendant no more regains the right to use force after stabbing a victim in his homeby attempting to escape the location than does any other fleeing felon regain a right to use force to shoot ata 59 pursuing police officer. (Rangel, supra, 62 Cal.4th at p. 1226, citing Christian S., supra, 7 Cal.4th at p. 773, fn.1.) The procedural posture of this case is just like that of Randle, supra, 35 Cal.4th 987. Theissuelitigated at the Court of Appeal was the reach of imperfect self-defense, namely, whether it applied when invokedto protect others. (Id. at p. 993.) But this Court also considered the question of whether, even if the partial defense could apply, the defendantforfeited its potential application as the initial ageressor. (Id. at pp. 1001-1002.) This case, which also considers the reach of the defense, may likewise address whether appellant’s aggression forfeited its application to him. Regardless of intoxication, appellant was an armed intruder whobrokeinto the victim’s home. A defendant may show imperfect self-defense only if his self-defense would have been “perfect” had his belief been reasonable. (People v. Valencia, supra, 43 Cal.4th 268, 288.) Here it would not have been. He therefore could not rely on an imperfect self- defense defense. (Rangel, supra, 62 Cal.2d 1192, 1226.) 60 Conclusion The Legislature has determined that evidence of voluntary intoxication is legally irrelevant to the existence of implied malice, and is therefore inadmissible to show the defendant acted withoutit. Intoxication may cause a person to have mistaken perceptions, but these do not mitigate a homicide from murder to manslaughter when a defendant makesa false negative finding by failing to perceive an actual danger to others. This legal irrelevance must likewise apply to false positive findings of an actual danger to himself (or others). Whether a severely intoxicated defendantkills because he mistakes a grenadefor a ping-pong ball, or a ping-pongball for a grenade, he acts with implied malice and is guilty of murder. Respectfully submitted, Dated: May 17, 2017 AV Mitchell Keiter Counsel for Amicus Curiae Senator Ray Haynes 61 Certification of Word Count (Cal. Rules of Court, rule 8.204, subdivision (c).) I, Mitchell Keiter, counsel for appellant, certify pursuant to the California Rules of Court, that the word countfor this documentis 9,517 words, excluding tables, this certificate, and any attachment permitted under rule 8.204(d). This document was prepared in WordPerfect word-processing program, andthis is the word count generated by the program for this document. I declare under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Dated: May 17, 2017 Maw Mitchell Keiter 62 Appendix This appendix cites authorities in each jurisdiction describing the law on the exculpatory effect of intoxication and on imperfect self-defense. Federal Intoxication is legally irrelevant to implied malice. United States v. Kane (9th Cir. 1968) 399 F.2d 730, 736 Unreasonable belief in need for self-defense may mitigate homicide to voluntary manslaughter. United States v. Rivera-Muniz (9th Cir. 2017) — F.3d —, — 2017 WL 1404193 Alabama Intoxication is legally irrelevant to “extreme indifference” murder. Allen v. State (Ala. Crim. App. 1992) 611 So.2d 1188, 1190- 1193 Self-defense must derive from reasonable belief. Bookerv. State (Ala. Crim. App. 1994) 645 So.2d 355, 357, citing Ala. Code § 13A-3-23, subd.(a)(1). Alaska Intoxication is legally irrelevant to (second degree) extreme indifference murder. Jeffries v. State (Alaska 2007) 169 P.3d 913, 920 Intoxication evidence “not germane” to unreasonableself- defense claim. (Nygren v. State (Alaska 1980) 616 P.2d 20, 22 Arizona Intoxication evidence is never legally relevant as a defense. Ariz. Rev. Stat. 813-503 see State v. Moody (2004) 208 Ariz. 424 [94 P.3d 1119, 1161] (en banc) Arkansas Intoxication evidence is never legally relevant as a defense. Standridge v. State (1997) 329 Ark. 473 [951 S.W.2d 299, 302-303] Colorado Intoxication is legally irrelevant to (first degree) extreme indifference murder. People v. Zekany (Colo. Ct. App. 1991) 833 P.2d 774, 778. Self-defense must derive from reasonable belief. Colo. Rev. Stat. Ann. § 18-1-704; see People v. Ellis (Colo. Ct. App. 2001) 30 P.3d 774, 780 Connecticut Intoxication is relevant to show absenceof intentto kill required for murder(State v. Bruno (1996) 236 Conn. 514 [673 A.2d 1117, 1132]) but not to show absence of recklessness required for first degree manslaughter (State v. Jenkins (2005) 88 Conn.App. 762 [872 A.2d 469, 475-477].) Self defense must derive from reasonable belief. Conn. Gen Stat. Ann. § 53a-19; Daniel v. Commissioner of Correction (Conn. App. Ct. 2000) 57 Conn.App. 651 [751 A.2d 398, 413-414] Delaware Intoxication evidence is never legally relevant as a defense. 11 Del. Code § 421; Wyant v. State (Del. 1986) 519 A.2d 649, 651-652 District of Columbia Intoxication is legally irrelevant to implied malice murder. Bishop v. United States (D.C. Cir. 1939) 71 App.D.C. 132 [107 F.2d 297, 301-302.| Self-defense must derive from reasonable belief. Parker v. United States (2017) 155 A.3d 835, 845-848 Florida Intoxication is legally irrelevant to second degree (depraved mind) murder. Gentry v. State (Fla. 1983) 437 So.2d 1097, 1099; Jackson v. State (Fla.Dist.Ct.App. 1997) 699 So.2d 306, 307-308 Self-defense must derive from reasonable belief (Fla. Stat. Ann. § 776.012; Hill v. State (Fla. Dist. Ct. App. 2008) 979 So.2d 1134, 1134-1135), though impulsive reaction to victim’s attack may reduce homicide to manslaughter (Sandhaus v. State (Fla. Dist. Ct. App. 2016) 200 So.2d 112, 115-116). Georgia Intoxication evidence is never legally relevant as a defense. Ga. Code. Ann. § 16-3-4, subd. (c); Payne v. State (Ga. 2001) 540 S.E.2d 191, 193 Hawaii Intoxication evidence is never legally relevant as a defense. Haw.Rev. Stat. Ann. § 702-230, subd. (1); State v. Souza (1991) 72 Haw. 246 [813 P.2d 1384, 1385-1386] Idaho Intoxication evidence is never legally relevant as a defense. Idaho Code § 18-116 Illinois Statutorily, voluntary intoxication evidence is never legally relevant as a defense. 720 Ill. Comp. Stat. Ann. 5/6-3: “A person whois in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” However, courts still recognize a voluntary intoxication defense where defendant “had lost his power of reason and was unable to form the requisite mental state for the offense.” People v. Redmond(Ill. App. Ct. 1994) 265 Ill.App.3d 292 [637 N.E.2d 526, 534] It is thus legally relevant as a defense to malice. People v. Brabson(Ill. App. Ct. 1977) 54 IllApp.3d 134 [369 N.E.2d 346, 348] Unreasonable belief in need for self-defense may mitigate homicide to voluntary manslaughter. People v. O’Neal (1984) 104 Ill.2d 399 [472 N.E.2d 441, 443- 444] Indiana Intoxication evidence is never legally relevant as a defense. Ind. Code § 35-41-2-5; State v. Sanchez (Ind. 2001) 749 N.E.2d 549, 551 Iowa Intoxication is legally irrelevant to second degree murder. State v. Artzer (lowa 2000) 609 N.W.2d 526, 531 Self-defense must derive from reasonable belief. Iowa Code § 704.3; State v. Bedard (lowa 2003) 668 N.W.2d 598, 600 Kansas Intoxication is legally irrelevant to reckless second degree murder. State v. Spicer (Kan. Ct. App. 2002) 30 Kan.App.2d 317 [42 P.3d 742, 748]; see State v. May (Kan. Ct. App. 2012) 272 P.3d 46 [2012 WL 1352827] (unpublished); State v. Wise (Kan Ct. App. 2007) 166 P.3d 450 [2007 WL 258057 1] (unpublished) Actual but unreasonable belief in need for self-defense may warrant mitigation to voluntary manslaughter. State v. Harris (2012) 293 Kan. 798 [269 P.3d 820, 825-826] Kentucky Intoxication is legally irrelevant to wanton murder. Nichols v. Commonwealth (Ky. 2004) 142 S.W.3d 683, 689 Unreasonable belief in need for self-defense will mitigate murder to second degree manslaughter (unless innocent third party harmed). Gribbins v. Commonwealth (Ky. 2016) 483 S.W.3d 374-376 Louisiana Intoxication is legally relevant to intent required for manslaughter but not to negligent homicide. State v. Hilburn (La .Ct. App. 1987) 512 So.2d 497, 504-505 Self-defense must derive from reasonable belief. State v. Morris (La. Ct. App. 2009) 22 So.3d 1002, 1012-1013 Maine Intoxication evidence is legally irrelevant to depraved indifference murder. State v. Smith (Me. 1980) 415 A.2d 50, 574. Intoxication is legally relevant to whether defendant caused death “underthe influence of extreme anger or extreme fear brought about by adequate provocation. State v. Rollins (Me. 1972) 295 A.2d 914, 920-921. Maryland Intoxication is legally irrelevant to second degree murder. Hookv. State (Md. 1989) 315 Md.25 [553 A.2d 233, 235] Unreasonable belief in need for self-defense may mitigate homicide to voluntary manslaughteronly if defendant was entitled to take some action against the victim. State v. Marr (2001) 362 Md. 467 [765 A.2d 645, 649]; Peterson v. State (Md. Ct. Spec. App. 1994) 101 Md.App. 153 [643 A.2d 520, 522-523] Massachusetts Intoxication evidence is relevant to all forms of malice. Commonwealth v. Miller (2010) 457 Mass. 69 [927 N.Ed.2d 999, 1003-1005] Imperfect self-defense applies only where the belief in need for self-defense was reasonable but the defendant used excessive force or was theinitial aggressor. Commonwealth v. Grassie (2017) 476 Mass. 202 [65 N.E.3d 1199, 1206-1206] Michigan Intoxication evidenceis never legally relevant as a defense. Mich. Comp. Laws § 768-37, subd. (1); People v. Nickens (2004) 470 Mich. 622 [685 N.W.2d 657, 663, fn. 7] Minnesota Intoxication not legally relevant to driving while intoxicated- felony murder. State v. Smoot (Minn. Ct. App. 2007) 737 N.W.2d 849, 854 Self-defense must derive from reasonable belief. State v. Thompson (Minn. 1996) 544 N.W.2d 8, 12-13 Mississippi Intoxication is never legally relevant as a defense. Hale v. State (Miss. 2016) 191 So.3d 719, 724 Missouri Intoxication is never legally relevant as a defense. Mo.Ann.Stat. § 562.076.1; State v. Erwin (Mo. 1993) 848 S.W.2d 476, 482 [en banc] Montana Intoxication is neverlegally relevant as a defense. Mont. Code. Ann. § 45-2-203; State v. McLaughlin (2009) 351 Mont. 282 [210 P.3d 694, 699} Nebraska Intoxication is never legally relevant as a defense. Neb.Rev. Stat. § 29-122; State v. Braesch (2016) 292 Neb. 930 [874 N.W.2d 874, 943] Nevada Intoxication is legally irrelevant to implied malice. State v. Fisko (1937) 58 Nev. 65 [70 P.2d 1113, 1117] disapproved on other grounds in State v. Fox (1957) 73 Nev. 241 [316 P.2d 924, 927] Self-defense must derive from reasonable belief. Nev. Rev. Stat. Ann. § 200-130, subd. (1); Daniel v. State (2003) 119 Nev. 498 [78 P.3d 890, 901, fn. 31] New Hampshire Intoxication is legally irrelevant to second degree extreme indifference murder. State v. Dufield (1988) 131 N.H. 135 [549 A.2d 1205, 1206- 1208] Self-defense must derive from reasonable belief. State v. Gorham (1990) 120 N.H. 162 [412 A.2d 1017, 1019] New Jersey Intoxication is legally irrelevant to reckless manslaughter. State v. Baum (2016) 244 N.J. 147 [129 A.3d 1044, 1052- 1053] Self-defense based on unreasonable belief may mitigate a homicide to reckless manslaughter. State v. Munroe (2012) 210 N.J. 429 [45 A.3d 348, 358] New Mexico Intoxication is legally irrelevant to second degree (knowing) murder. State v. Campos (1996) 122 N.M. 148 [921 P.2d 1266, 1275- 1278] Imperfect self-defense may mitigate homicide to voluntary manslaughter for “act committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence ofall the ingredients necessary to excuse the act on the ground of self-defense.” State v. Fox (N.M. Ct. App. 2016) 390 P.3d 230, 233 New York Intoxication is legally relevant to murder. State v. Lassey (N.Y. Sup. Ct. 2013) 40 Misc.3d 530 [966 N.Y.S.2d 848, 850-859]. Jury must evaluate reasonableness of defendant’s defensive conduct by assessing his personal circumstances. People v. Wesley (1990) 76 N.Y.2d 555 [563 N.E.2d 21, 24] North Carolina Intoxication is legally relevant to (premeditated) first degree murder but not second degree murder. State v. Bunn (1973) 283 N.C. 444 [196 S.E.2d 777, 786] Imperfect self-defense may apply where the defendant initiates the conflict or uses excessive force. State v. Mize (1986) 316 N.C. 48 [340 S.Ed.2d 439, 441-442] North Dakota Intoxication is not legally relevant to extreme indifference murder. State v. Erickstad (N.D. 2000) 620 N.W.2d 136, 144 Unreasonable belief in need for self-defense may mitigate homicide to manslaughter (where belief is reckless) or negligent homicide (wherebelief is negligent) State v. Leidholm (N.D. 1983) 334 N.W.2d 811, 844-848 Ohio Intoxication is never legally relevant as a defense. Ohio Rev. Code Ann. § 2901.21, subd. (C); State v. Arnold (Ohio Ct. App. 2013) 2 N.E.3d 1009, 1026 Oklahoma Intoxication is legally relevant to murder. Johnson v. State (Okla. Crim. App. 1980) 621 P.2d 1162, 1163 Self-defense must derive from reasonable belief. Perryman v. State (Okla. Crim. App. 1999) 990 P.2d 900, 903- 904 Oregon Intoxication is legally irrelevant to extreme indifference elementof first degree manslaughter. State v. Boone (1983) 294 Or. 630 [661 P.2d 917, 920-921] (en banc) Self-defense must derive from reasonable belief. State v. Bassett (Or. Ct. App. 2010) 234 Or.App. 259 [228 P.3d 590, 592-593] Pennsylvania Intoxication is legally irrelevant to third degree murder. Com v. Street (Pa. Super. Ct. 2013) 69 A.3d 628, 632 Self-defense must derive from reasonable belief. Com. v. Mouzon (2012) 617 Pa. 527 [53 A.3d 738, 740-741] Rhode Island Intoxication is legally relevant to murder and may reduce homicide to voluntary manslaughter. State v. Motyka (R.I. 2006) 893 A.2d 267, 285 Self-defense must derive from reasonable belief. State v. Catalano (R.I. 2000) 750 A.2d 426, 429-430 South Carolina Intoxication is never legally relevant as a defense. State v. South (1993) 310 S.C. 504 [427 S.E.2d 666, 669] South Dakota Intoxication is legally relevant to first degree but not second degree murder. Kleinsasser v. Weber (S.D. 2016) 877 N.W.2d 86 7 24 Self-defense must derive from reasonable belief. State v. Luckie (S.D. 1990) 459 N.W.2d 557, 559-560 Tennessee Intoxication is not legally relevant to second degree murder. State v. Butler (Tenn. Crim. App. 1994) 900 S.W.2d 305, 310 Self-defense must derive from reasonable belief. State v. Bult (Tenn. Crim. App. 1998) 989 S.W.2d 730, 732 Texas Intoxication is never legally relevant as a defense. Texas Penal Code Ann. § 8.04, subd. (a); Raby v. State (Tex. Crim. App. 1998) 970 S.W.2d 1, 4-6 Utah Intoxication is legally relevant to murder. State v. Cummins (Utah Ct. App. 1992) 839 P.2d 848, 857 Imperfect self-defense requires a reasonable belief that the use of force is legally justifiable or excusable even thoughit is not. State v. Low (Utah 2008) 192 P.3d 867, 877-878 Vermont Intoxication is legally relevant to second degree murder. State v. Bruno (2012) 192 Vt. 515 [60 A.3d 610, 624-625] Self-defense must derive from reasonable belief. State v. Shaw (1998) 168 Vt. 412 [721 A.2d 486, 489-492] Virginia Intoxication is legally irrelevant to malice. Essex v. Com (1984) 228 Va. 273 [322 S.E.2d 216, 221] Unreasonable belief in need for self-defense may mitigate homicide to voluntary manslaughter. Couture v. Com. (Va. Ct. App. 2008) 51 Va.App.239 [656 S.E.2d 425, 430] Washington Intoxication is legally relevant to second degree murder. State v. Jones (1981) 95 Wash.2d 616 [628 P.2d 472, 476] (en banc) Imperfect self-defense may mitigate murderto first degree manslaughter where defendant recklessly/negligently uses more force than necessary. State v. Jones (1981) 95 Wash.2d 616 [628 P.2d 472, 476] (en banc) West Virginia Intoxication is legally relevant to malice. State v. Keeton (1980) 166 W.Va. 77 [272 S.E.2d 817, 821] Self-defense must derive from reasonable belief. State v. Wykle (2000) 208 W.Va. 369 [540 S.E.2d 586, 590- 591] Wisconsin Intoxication is legally relevantto first degree intentional murder but not second degree intentional homicide. State v.. Brown (Wis. Ct. App. 1984) 118 Wis.2d 377 [348 N.W.2d 593, 596] Unreasonable belief in need for self-defense may mitigate intentional homicide from first degree to second degree. Wisc. Stat. Ann. § 940.01, subd. (2)(b); State v. Head (2002) 255 Wisc.2d 194 [648 N.W.2d 413, 430] Wyoming Intoxication evidence waslegally irrelevant to implied malice murder in Crozier v. State (Wyo. 1986) 723 P.2d 42, 53-54. The Wyoming Supreme Court later redefined the elements of implied malice murder to require an act done “recklessly under circumstances manifesting an extreme indifference to the value of humanlife extreme indifference” but did not addressthe effect of intoxication evidence. Wilkerson v. State (Wyo. 2014) 336 P.3d 1188, 1200. Self-defense must derive from reasonable belief Bloomfield v. State (Wyo. 2010) 234 P.3d 366, 376. Proof of Service Iam employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. On May 17, 2017, I served the foregoing document described as AMICUS CURIAE BRIEF in case number $236164 on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list, or by electronically mailing it. I deposited the envelopes in myoffice’s outgoing mail box in Beverly Hills, California. The envelopes were mailed with postage thereon fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of May, 2017, at Beverly Hills, California. Vir. Mitchell Keiter Mailing List Amit Kurlekar Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Amit.Kurlekar@doj.ca.gov Stephen B. Bedrick Attorney at Law 1970 Broadway, Suite 1200 Oakland, CA 94612 Sixth District Appellate Program 95 South Market Street, Suite 570 San Jose, CA 95113 servesdap@sdap.org Michael S. Ogul Office of the Santa Clara County Public Defender 120 West Mission Street San Jose, CA 95110 michael.ogul@pdo.sccgov.org Monterey Superior Court Salinas Division 240 Church Street, Suite 318 Salinas, CA 93901 California Court of Appeal Sixth Appellate District 333 W. Santa Clara St., Suite 1060 San Jose, CA 95113 Sixth. District@jud.ca.gov Hon. Dean D. Flippo District Attorney, Monterey County P.O. Box 1131 Salinas, CA 93902