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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

THE PEOPLE,                                                                                D013522

                                Plaintiff and Respondent,                                   (Super. Ct. No. CR113174)
v.

RUBEN ARROYO,

                                Defendant and Appellant. 
________________________________________

In re RUBEN ARROYO, D015603

                                on Habeas Corpus.
________________________________________/

EXCERPT

II

    Arroyo contends the jury was improperly instructed on two critical issues: (1) the application of the defense of intoxication; and (2) the definition of malice. In subparts II A and II B of this opinion, infra, we shall consider each of the claimed instructional errors individually to determine if there was error and then in subpart II C, we shall consider the question of prejudice.

A.

    The trial court instructed the jury pursuant to CALJIC No. 4.20 as follows:

"The law provides that no act committed by a person while in a state of intoxication is less criminal by reason of his having been in such condition.

"In the crime charged in count one, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve him of responsibility for the crime."

    It was error to give CALJIC No. 4.20, which prohibits the application of the defense of intoxication to a general intent crime, in a case involving a specific intent crime. (People v. Spencer (1963) 60 Cal.2d 64, 87; People v. Rivera (1984) 162 Cal-App.3d 141, 145.) [FOOTNOTE 2] Further, it has long been held that a jury may consider evidence of voluntary intoxication in determining the presence of malice in a murder charge and base a conviction of voluntary manslaughter upon such evidence. (See People v. Tuthill (1947) 31 Cal.2d 92, 103; People v. Burkhart (1931) 211 Cal. 726, 731; People v. Yeager (1924) 194 Cal. 452, 474; see also § 22, subd. (b) ["Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."].) Thus, the trial court's error in giving CALJIC No. 4.20 in a case involving a specific intent crime was exacerbated by the explicit reference to count one, the murder charge.

    In addition to instructing pursuant to CALJIC No. 4.20, the trial court instructed pursuant to CALJIC No. 4.21 as follows:

"In the crimes of murder and manslaughter, the lesser offense included within a crime of murder the defendant is accused in count one of the information, a necessary element is the existence in the mind of the defendant of the mental state of malice aforethought.

"If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such mental state.

"If from all the evidence you have a reasonable doubt whether the defendant formed such mental state, you must find that he did not have such mental state."

There was nothing improper in giving CALJIC No. 4.21 -- that is, if CALJIC No. 4.20, which is facially contradictory, had not been given. Giving both CALJIC Nos. 4.20 and 4.21 without explaining that CALJIC No. 4.21 is an exception to the general rule embodied in CALJIC No. 4.20 is error. (People v. Rivera, supra, 162 Cal.App.3d at p. 145.)

    Relying on People v. Kozel (1982) 133 Cal.App.3d 507, 522-523, and People v. McCoy (1984) 150 Cal.App.3d 705, 710-711, the Attorney General argues unpersuasively that it was proper to give the two instructions together. The reliance is misplaced. In Kozel, the Court of Appeal acknowledged it was error to give CALJIC No. 4.20 in a murder case if the jury is not otherwise informed that it can consider the effect of intoxication in deciding whether the defendant had the capacity to form the specific intent required, that is, malice aforethought. (133 Cal.App.3d at pp. 522-523.) The Court of Appeal in Kozel pointed to the giving of four other instructions that "fully informed" the jury of the application of the defense of intoxication, and eliminated any prejudice in giving CALJIC No. 4.20. (Id. at p. 523.) None of these four instructions was given here. Furthermore, the instruction given in Kozel did not specifically state the defense of intoxication does not apply to a murder count,, as the instruction given here did. McCoy, which involved assault and attempted murder charges, is similarly distinguishable. Also, the Court of Appeal in McCoy noted the first sentence of CALJIC No. 4.20 is an incorrect statement of the law with respect to specific intent crimes such as attempted murder. (150 Cal.App.3d at p. 710.)

    The Attorney General also presents a waiver argument, contending that it was Arroyo’s duty at trial to request modification of the instructions to avoid possible confusion from the giving of both CALJIC Nos. 4.20 and 4.21. We disagree. The trial court must ensure that the instructions adequately state the law and adequately assist the jury in resolving the issues addressed by the instructions. (People v. Key (1984) 153 Cal.App.3d 888, 898.) The trial court has a duty "to give a correctly phrased instruction." (People v. Forte (1988) 204 Cal.App.3d 1317, 1323.) A trial court must not give misleading instructions. (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.)

    Nor are we persuaded that closing arguments of counsel dispelled any possibility of confusion engendered by giving both CALJIC Nos. 4.20 and 4.21. The trial court also gave CALJIC No. 1.00, which instructs the jury that the case is to be resolved on the basis of the law as explained in the instructions, not on the basis of arguments made by counsel. In this regard, we note the recent United States Supreme Court case of Boyde v. California (1990) 494 U.S. 370, 384, in which the high court observed that "arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, . . . and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law."

Footnote 1: All statutory references are the Penal Code unless otherwise specified.

Footnote 2: The Attorney General argues unpersuasively that Spencer, supra, and Rivera, supra, are inapplicable because they deal with specific intent crimes and implied malice is not a specific intent, but something less than general intent. First, we note the Attorney General has failed to cite case authority recognizing the distinction it seeks to draw. Second, even if this argument has some merit, implied malice was not the only theory upon which his murder case went to the jury; the prosecution argued in the alternative that Arroyo had the specific intent to kill.