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[No. D010682. Fourth Dist., Div. One. Dec. 19, 1990.]

[As modified Jan. 15, 1991.]

THE PEOPLE,

                                 Plaintiff and Respondent,
v.

ALEJANDRO GARCIA,

                                Defendant and Appellant.

[Opinion certified for partial publication. [FOOTNOTE 1]]

    A jury convicted defendant of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and found true an allegation that lie personally used a firearm while committing the offense (Pen. Code, § 12022.5), for shooting at a police officer who was responding to a report that defendant was walking down the street waving a gun. At trial the responding officers testified that defendant appeared incoherent and was not acting rationally when they took him into custody, and defendant introduced evidence that prior to the incident he had taken prescribed medication and that he had possibly suffered unintended side effects from the medication, which could include drowsiness, mental clouding, impairment of mental performance, anxiety, fear, psychotic dependency, and mood changes. The trial court rejected defendant's defense of involuntary intoxication and his requested instructions on the defense, and gave two instructions dealing with voluntary intoxication. (Superior Court of San Diego County, No. 102121, Louis E. Boyle, Judge.)

    The Court of Appeal reversed. It held that it was prejudicial error for the trial court to refuse to instruct on unconsciousness resulting from involuntary intoxication caused by prescribed medicine, since there was sufficient evidence of involuntary intoxication to inform the trial court that defendant was relying on unconsciousness as a defense. (Opinion by Todd, Acting P.J., with Benke, J., with Benke and Nares, JJ., concurring.)

Rosner & Law and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

    A jury convicted Alejandro Garcia of assault upon another with a firearm (Pen. Code, [FOOTNOTE 2] § 245, subd. (a)(2)) and found true an allegation he personally used a firearm during the commission of the offense within the meaning of section 12022.5. The jury acquitted Garcia of assault with a firearm upon a peace officer (§ 245, subd. (c), now § 245, subd. (d)(1)), the charge contained in the information. The trial court sentenced Garcia to a total term of six years: the upper term of four years for the assault conviction; and all additional two years for the firearm use allegation.. On appeal, Garcia's principal assignment of error is the trial court's failure to instruct the jury on the defense of involuntary intoxication. He also raises two assignments of error with respect to resentencing.

FACTS

    On April 27, 1988, at about 6:05 a.m., Luis Vega heard dogs barking and looked out his window at 133 West Olive Street in San Diego. He saw a man, later identified as Garcia, running in his backyard and trying to scale a seven- to eight-foot fence. Unsuccessful in scaling the fence, Garcia turned toward the window where Vega was and pointed a gun at Vega. Vega said Garcia was limping on his right leg and breathing and sweating hard. Garcia told Vega, "They want to get me. They want to kill me." Vega directed Garcia to the back gate and he left. Vega then called the police.

    On the same morning, Joe Ramos was stopped in his van at a red traffic light on the off ramp of Interstate 805 leading onto San Ysidro Boulevard. Ramos saw a man, later identified as Garcia, approach his van. Garcia pointed a gun at Ramos and told him, "Don't move or I will shoot you in the neck." Garcia then proceeded toward the freeway underpass. Shortly, thereafter, Ramos heard gunshots.

    San Diego Police Officer Mark Sullivan received the radio dispatch concerning a possible burglary in progress with a description of a suspect carrying a handgun stemming from Vega's call to the police. As Sullivan approached San Ysidro Boulevard and Interstate 805, he was stopped by a gas station attendant who told him that a man was walking down the Street waving a gun in the air. Sullivan then saw Garcia waving I gun as he stood in the middle of the road on San Ysidro Boulevard underneath the overpass of Interstate 8. Sullivan turned on his overhead flashing red and blue emergency lights and pulled up underneath the bridge about 20 yards from Garcia. Garcia looked over his shoulder, in the direction of Sullivan, and ran towards the sidewalk. When Garcia reached the sidewalk and was about 60 yards away, he turned toward Sullivan who was still standing next to his patrol car with the flashing lights still on. Garcia pointed his gun in the direction of the officer and fired one shot. Sullivan fired eight or nine shots at Garcia until Garcia fell to the ground. Sullivan radioed for assistance and officers Joel Bryden and Jesus Cesena arrived at the scene about a minute later.

    After Garcia was on the ground, he reached for his gun, which was on the sidewalk next to him. Cesena ordered Garcia in English to drop the gun. Garcia did not seem to respond, but rather continued rolling back and forth, waving the gun. Cesena then spoke to Garcia in Spanish, saying: "Police. Drop the gun." After about 30 seconds, Garcia dropped the gull. Cesena described Garcia as groggy and bewildered and opined that Garcia was under the influence of a drug. Bryden also shared that opinion and he testified Garcia appeared incoherent and was not acting rationally. In a radio call about the incident, Bryden referred to Garcia as a "5150," the radio code for a mental patient. The officers handcuffed Garcia and took him into custody. Garcia told police 14 cholos (Hispanic gang members) were hiding in the bushes adjacent to him. Officers searched the area, but did not find anyone or see anyone fleeing the area.

    Consuelo Reyes, Garcia’s girlfriend, testified she and Garcia had gone to Coronado beach around 11 p.m. on April 26 and stayed until the early morning hours. While at the beach she saw Garcia take a prescribed pill for back pain. Reyes said they became apprehensive when they noticed a car repeatedly driving by them. She told Garcia they should leave the area. They drove away, but believed they were being followed by the same vehicle. Eventually, Garcia and Reyes abandoned their vehicle and fled on foot. Garcia and Reyes were separated when lie climbed over a wall and she was unable to follow him. On cross-examination, Reyes denied she told police (1) Garcia snorted cocaine that evening at the beach and (2) she had seen Garcia with a handgun in his wristband that evening.

    Pharmacist Roger Fetterly testified he had filled a prescription for Vicodin, an opiate-based pain relieving drug, on April 26 for Garcia. Fetterly testified the side effects of Vicodin include drowsiness, mental clouding, lethargy, impairment of mental and physical performance, anxiety, fear, psychotic dependency and mood changes.

DISCUSSION

I

    Relying on the evidence that he took a prescription drug and possibly suffered unintended side effects from it, Garcia contends the trial court committed reversible error by failing to instruct the jury on the defenses of involuntary intoxication and unconsciousness. For the reasons that follow, we conclude the contention has merit.

    Generally, an accused may be completely relieved of criminal responsibility if, because of involuntary intoxications, [FOOTNOTE 3] he was temporarily tendered legally insane or temporarily deprived of his mental capacity at the time he committed the offense. (Annot., When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge (1976) 73 A.L.R.3d 195, 199.) Generally, courts have considered one to be involuntarily intoxicated when he has become intoxicated through the fault of another, by accident, inadvertence, or mistake on his own part. (Ibid.) In other words, involuntary intoxication encompasses those instances where the defendant's intoxication was not culpable. When intoxication results from medicine taken as prescribed, it is generally considered involuntary intoxication because a patient is entitled to assume that an intoxicating dose would not be prescribed by a physician. (Perkins v. United States (4th Cir. 1915) 228 F. 408, 415.)

    In California, involuntary intoxication comes within the unconsciousness defense, codified in section 26, subdivision four. [FOOTNOTE 4] "Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge." (People v. Cruz (1978) 83 Cal.App.3d 308, 330 [147 Cal.Rptr. 740].) "An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional. [Citation.]" (People v. Sedeno (1974) 10 Cal.3d 703, 717 [112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds in People v. FIannel (1979) 25 Cal.3d 668, 684-685 [160 Cal.Rptr. 84, 603 P.2d 1], fn. 12.) [FOOTNOTE 5]

    However, unconsciousness caused by voluntary intoxication is not a complete defense, but rather "can only have the effect of negating specific intent . . . ." (People v. Baker, supra, 42 Cal.2d at p. 575; see also § 22.) [FOOTNOTE 6] The justification for precluding voluntary intoxication as an absolute defense is based on the theory that "'when a crime is committed by a party while in a fit of intoxication[,] the law will not allow him to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime.’" (People v. Lewis (1869) 36 Cal. 531, 531-532, disapproved on other grounds in People v. Gorshen (1959) 51 Cal.2d 716, 734 [336 P.2d 492].)

    Here, the trial court rejected Garcia's defense of involuntary intoxication and his requested instructions, and instead instructed the jury pursuant to CALJIC Nos. 4.20 [FOOTNOTE 7] and 4.22, [FOOTNOTE 8] two instructions dealing with voluntary intoxication. [FOOTNOTE 9] The trial court refused Garcia's request to instruct pursuant to CALJIC No. 4.30, which reads:

    "A person who commits what would otherwise be a criminal act while unconscious, is not guilty of a crime.

    "This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of psychomotor epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause." The trial court also refused to give the following proposed instruction:

    "In deciding whether or not defendant was voluntarily intoxicated, you are not to consider ingestion of any prescription medication lie may have taken prior to the incident in question."

    After defense counsel argued the evidence of Garcia taking the prescription drug combined with the evidence of Garcia's weird behavior supported the giving of CALJIC No. 4.30, the trial court gave the following reason for refusing to give the instruction:

    "I don't see any evidence of any sort of unconsciousness in this case that could be believed by the jury that would justify such an instruction in this case. There has been sort of a dancing around certain disabilities of the defendant's through the injection of either prescription medication or cocaine. However, none of that has jelled into any specific evidence as to flow it would have impacted his mental state at the time. And I included in that the general comments of police officers indicating, to use their word, as you brought out 5150, that they had a person that was acting [irrationally at this point in time. And we can all stipulate to the fact that somebody discharging rounds within the community is acting somewhat irrationally. But I don't find it rises to the level where that instruction is required."

    It is well settled that in criminal cases, even in the absence of a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Castillo (1969) 70 Cali.2d 264, 270-271, fn. 5 [74 Cal.Rptr. 385, 449 P.2d 449].) "The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) The duty to instruct on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including the defense of unconsciousness, but only if the defendant is relying on that defense, or there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Sedeno, supra, 10 Cal.3d at p. 716.)

    Here, with the evidence of Garcia taking the prescription medicine and his bizarre behavior, it was clear Garcia was relying on an involuntary intoxication defense. This evidence was substantial enough to merit consideration. The trial court's apparent disbelief that the prescribed medicine affected Garcia's mental state is not an adequate justification for refusing to give instructions on involuntary intoxication. In People v. Flannel, supra, 25 Cal.3d 669, 685, the Supreme Court announced the rule succinctly: "'[T]he court should instruct tile jury on every theory of the else, but only to the extent each is supported by substantial evidence.' [Citation.]." The refusal to instruct on unconsciousness resulting from involuntary intoxication amounted to the trial court substituting itself for the trier of fact as well as an impermissible deprivation of Garcia's defense.

    There is a relative dearth of involuntary intoxication cases involving prescription drugs in the published reports of this state. [FOOTNOTE 10] From other jurisdictions, however, there are several reported cases on the subject, and they generally support the proposition that intoxication resulting from medicine which has been prescribed-and taken as prescribed-is involuntary intoxication. [FOOTNOTE 11]

    For example, in City of Minneapolis v. Altimus (1976) 306 Minn. 462 [238 N.W.2d 851], defendant raised the defense of temporary insanity due to involuntary intoxication. The evidence presented at trial indicated that at the time the defendant committed the acts in question he was intoxicated and unaware of what he was doing because of his unusual and unexpected reaction to Valium prescribed by a physician for treatment off back problem and flu. The Supreme Court of Minnesota reversed, holding the trial court erred in failing to give the requested instructions concerning intoxication and intent.

    Another example of the majority point of view is found in People v. Turner (Colo.App. 1983) 680 P.2d 1290. In Turner, the Colorado Court of Appeals ruled the defendant was entitled to have the jury determine whether his intoxication, caused by an overdose of a drug prescribed for relief from migraine headaches, was involuntary intoxication. The defendant testified he had not been warned of the consequences of ingesting excessive doses and his past experience caused him to believe he would become sleepy-not intoxicated.

    Furthermore, the Model Penal Code recognizes that involuntary intoxication can result from prescribed medicines:

    "'[S]elf-induced intoxication' means intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime." (Model Pen. Code, § 2.08, subd. (5)(b).) (4) We conclude this majority view is correct and the trial court's summary rejection of the notion that a prescribed medicine can induce involuntary intoxication was wrong. [FOOTNOTE 12]

    The Attorney General, however, argues that because there was evidence that Garcia took cocaine as well as the prescription medicine, he was not entitled to the involuntary intoxication instructions. We disagree, for the fact that Garcia's intoxication may have resulted from a combination of two intoxicants-one, an illegal substance taken voluntarily and the second, a prescribed medicine-does not necessarily negate an involuntary intoxication defense.

    The Attorney General relies principally on People v. Velez (1985) 175 Cal.App.3d 785 [221 Cal.Rptr. 631], in which the defendant voluntarily smoked a marijuana cigarette that unbeknownst to him contained phencyclidine (PCP). The PCP caused defendant to become legally unconscious and thereafter he committed an assault with a deadly weapon. The Court of Appeal concluded the defendant was voluntarily intoxicated as a matter of law and was not entitled to jury instructions on the absolute defense of unconsciousness caused by involuntary intoxication. The court applied a standard of criminal negligence-based on an objective test- [FOOTNOTE 13] determine whether the defendant's intoxication was involuntary or voluntary. The court held:

    "[A] reasonable person has no right to assume that a marijuana cigarette furnished to him by others at a social gathering will not contain PCP; nor may such a person assume such a marijuana cigarette will produce any predictable intoxicating effect. Absent these assumptions, defendant cannot contend he was involuntarily intoxicated, because he had no right to expect the substance he consumed was other than it was nor that it would produce an intoxicating effect different from the one it did. We therefore conclude defendant was voluntarily intoxicated as a matter of law within the meaning of section 22." (Id. at p. 796.)

    Significantly, the court in Velez supra, 175 Cal.App.3d at pages 795-796, specifically did not hold that a person who consumed illegal drugs could never rely on the defense of involuntary intoxication. Moreover, here, the facts are clearly distinguishable from those in Velez, and, consequently, we conclude the Attorney General’s reliance on Velez is misplaced. Unlike the defendant in Velez, Garcia took a legally prescribed medication. While there was evidence of Garcia also taking cocaine-an illegal substance-it was not connected in any way with his ingestion of the prescribed medicine. Nor was there any evidence that Garcia took an excessive dose of the prescribed medicine. While he was warned not to drink alcohol with the medicine or drive a car, there is no evidence he drank alcohol. As to the risks or untold side effects from combining the medicine with cocaine, he was not warned. Indeed, the pharmacist testified of possible side effects similar to those Garcia exhibited when Vicodin is not combined with another drug or alcohol. Applying a criminal negligence test similar to that employed in Velez, we cannot say a reasonable person in Garcia's position would have anticipated that his prescription medicine in combination with the cocaine would have caused him to act in the bizarre manner it did. [FOOTNOTE 14]

   In conclusion, we find it was prejudicial error for the court to refuse to instruct on unconsciousness resulting from involuntary intoxication. There was sufficient evidence of involuntary intoxication to inform the court that Garcia was relying upon unconsciousness as a defense. (Compare People v. Bridgehouse (1956) 47 Cal.2d 406, 414 [303] P.2d 1018], and People v. Wilson (1967) 66 Cal.2d 749, 762 [59 Cal. Rptr. 156, 427 P.2d 820].) He should have been allowed to present that defense to the jury. [FOOTNOTE 15]

    Judgment reversed.

Benke, J., and Nares, J., concurred.

Footnote 1: Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.

Footnote 2: All further statutory references are to the Penal Code unless otherwise specified.

Footnote 3: Whether intoxication results from alcohol or drugs is immaterial. (People v. Baker (1954) 42 Cal.2d 550 [268 P.2d 705].

Footnote 4: Section 26 provides: "All persons are capable of committing crimes except those belonging to the following classes:

    "One - Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.

    "Two - Idiots.

    "Three - Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent.

    "Four - Persons who committed the act charged without being conscious thereof.

    "Five - Persons who committed the act or made the omission charged through misfortune or by accident, when it appears there was no evil design, intention, or culpable negligence.

    "Six - Persons (unless the crime be punishable with death) who committed that act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused" (Italics added.)

Footnote 5: In People v. Scott (1983) 146 Cal.App.3d 823 [194 Cal.Rptr. 633], the defendant consumed punch that he did not know contained a hallucinogenic substance that caused him to act in a bizarre and irrational manner and under the delusion that he was a secret agent. The Court of Appeal reversed his convictions of attempting to unlawfully take a vehicle because the hallucinogenic substance caused him to act under the delusion that he was a secret agent and that he was acting to save his own life or possible that of the President. The appellate court held that Scott could not have had the requisite criminal intent because he acted under ignorance or mistake of fact (§ 26, subd. Three). The appellate court also observed: "Although defendant’s mistake of fact was undoubtedly irrational, it was also undoubtedly reasonable under the circumstances, because the circumstances include that the mistake emanated form a delusion caused by defendant’s involuntary intoxication resulting from unknowingly ingesting some unspecified hallucinogenic substance." (Id. At p. 832.)

Footnote 6: Section 22 provides: "(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental stated for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act.

    "(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.

    "(c) Voluntary intoxication includes the voluntary ingestion, or taking by any other means of any intoxicating liquor, drug, or other substance.")

Footnote 7: CALJIC No. 4.20 reads: "The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.

    "[If] the defendant was voluntarily intoxicated, it is not a defense and does not relieve him of responsibility for the crime."

Footnote 8: CALJIC No. 4.22 reads: "Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect or when he willingly assumes the risk of that effect.

    "Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance."

Footnote 9: Since the assault crimes involved in this case are general intent crimes (see People v. Rocha (1971) 3 Cal.3d 893, 898-899 [92 Cal.Rptr. 172, 479 P.2d 372]), voluntary intoxication did not constitute a defense for Garcia.

Footnote 10: One such case is People v. Baker, supra, 42 Cal.2d 550, which involves a retarded epileptic person who was accused of murdering his wife. The Supreme Court said the defendant’s intoxication produced by knowingly taking an overdose of medicine, prescribed to control his epilepsy, could be considered involuntary intoxication. The high court held that whether the imminent approach of an epileptic attack was sufficient to render the defendant’s taking of the medicine compulsive and thus involuntary was a question for the jury.

Footnote 11: See, e.g., Perkins v. United States, supra, 228 F.408; Johnson v. State (1945) 32 Ala.App.217 [24 So.2d 228]; Tackett v. Commonwealth (1924) 205 Ky.490 [266 S.W. 26]; Saldiveri v. State (1958) 217 Md. 412, [143 A.2d 70]; State v. Bunn (1973) 283 N.C. 444 [196 S.E.2d 777]; State v. Gilcrist (1976) 15 Wash.App. 892 [552 P.2d 690].

Footnote 12: To the extent the Attorney General suggests Garcia’s ingestion of the prescribed medicine cannot establish the defense of involuntary intoxication because he volunterily took the medicine, the Attorney General is wrong.

Footnote 13: Whether a reasonable person in defendant’s circumstances has engaged in criminally negligent behavior. (See People v. Watson (1981) 30 Cal.3d 290, 296 [179 Cal.Rptr. 43, 637 P.2d 279].)

Footnote 14: In People v. Murray (1967) 247 Cal.App.2d 730 [56 Cal.Rptr. 21], the defendant, accused of escape from a state prison, contended he had consumed a quantity of liquor and several "goofballs," presumably the tranquilizing drug mellaril. The defendant argued this combination so affected his mind that he did not realize what he was doing. The Court of Appeal apparently recognized involuntary intoxication as a valid defense based on the defendant’s lack of knowledge of the effect of combining drugs and alcohol. In dictum, the Court of Appeal said "the defendant’s testimony, if believed, would establish that he was not a habitual user of either alcohol or narcotics and that he had not previously taken both alcohol and ‘goofballs’ in tandem so as to be familiar with the possible effect. Thus involuntary intoxication - which may be treated the same as insanity." (Id. at p. 732.) However, the Court of Appeal affirmed the conviction, holding the trial court did not err in ruling that a jail inmate did not qualify as an expert witness on narcotics and narcotic behavior.

Footnote 15: However, we do not agree with Garcia that it was error to give CALJIC Nos. 4.20 and 4.21 on voluntary intoxication. We believe the trial court should have instructed on both voluntary intoxication and involuntary intoxication, thereby leaving it to the jury to determine whether Garcia’s unconciousness was voluntary or involuntary. As to which instructions on involuntary intoxication should be given, clearly CALJIC No. 4.30 is a proper instruction in this type of case. With respect to the other instruction proposed by Garcia, we conclude it was not proper under the evidence before the court. However, this does not cure the error in failing to craft an instruction adequately advising the jurors that involuntary intoxication would be available as a defense only if the proximate cause of the unlawful conduct did not result from ingestion of the prescription medicine in conjunction with the unlawful use of cocaine.