Filed 12/26/13 P. v. Gil CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135666
v.
ARMANDO GIL,                                                         (Marin County Super. Ct.
                                                                     Nos. SC166588A & SC173882A)
         Defendant and Appellant.


         Defendant Armando Gil was convicted by a jury of making criminal threats. (Pen.
Code, § 422.)1 On appeal, he contends that he received ineffective assistance of counsel
because his court-appointed attorney failed to request a pinpoint instruction concerning
the effect of voluntary intoxication. We affirm.
                              FACTUAL AND PROCEDURAL BACKGROUND
         This appeal involves two separately filed cases, one of which was tried to a jury
verdict and the other of which was resolved by a plea. Sentencing encompassed both
cases.
         In case SC166588A, the Marin County District Attorney filed an information on
March 29, 2011, charging Gil with one count of rape (§ 261, subd. (a)(2)) and one count
of statutory rape (§ 261.5, subd. (c)). On May 27, 2011, Gil pleaded guilty to statutory
rape in exchange for dismissal of the rape charge.



         1
          All further statutory references are to the Penal Code unless otherwise specified.


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       In case SC173882A, the Marin County District Attorney filed an information on
March 17, 2011, charging Gil with having made criminal threats against Jane Doe (§ 422)
on or about December 26, 2010. The case was tried before a jury in May 2011.
       Jane Doe, who was 23 years old at the time of trial, testified that Gil had been her
boyfriend for nine years. She had his child when she was 17 years old. During the
relationship, Gil physically abused her by pulling her hair and by kicking and hitting her.
She broke off the relationship when she was 21 years old. When she had been trying to
break up with Gil, he once told her that he considered shooting and killing her and then
killing himself.
       Doe refused to let Gil see their child alone because she did not trust him. In
December 2010, Doe and Gil had arranged for him to see their child at her sister’s house,
but Doe did not drop off the child at her sister’s house as planned because she was
concerned about the child getting sick.
       On December 26, 2010, the day that Gil was scheduled to see his daughter, Doe
receive a voicemail message from Gil in which he threatened Doe and her parents after
indicating that she was playing games with him. She took the message seriously and
went to the police on January 3, 2011. The police made a recording of the message.
       After receiving the message, Doe was scared and was watching her back all the
time. She would double-check her car after getting off work to make sure no one was in
the car. Gil had twice before shown up in her car when she was trying to break up with
him. She obtained a protective order against Gil.
       A recording of the voicemail message was played to the jury at trial. Except for
the greeting in Spanish, the message was in English, which was Gil’s second language.
The message he left was as follows: “Hola [Jane Doe]. What’s up buddy? We agree on
something remember. We agreed you were gonna let me see my baby. I think you trying
to play with me, you know. Eh, let you know something. I’m gonna hurt you, [Jane
Doe], believe me that. I’m gonna hunt you and finish your life too. I’m gonna finish all
of your family life, you keep on fuck with me. Don’t fuck with me [Jane Doe]. You can



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call [the police]. I don’t give a fuck [Jane Doe]. You aint shit for me. Ha. Believe me
[Jane Doe]. Later.”
       When she first reported the message to police, Jane Doe told the officers that she
thought Gil was drunk. She reached that conclusion solely because he appeared to be
slurring his words in the message.
       Gil’s brother was the sole witness for the defense. He testified that he lived with
Gil and Doe when they were living together, about four to six years before the trial. He
claimed that he never observed any physical altercations between Doe and Gil, although
he admitted he was not around the couple all the time.
       The jury found Gil guilty as charged of making criminal threats. The court
sentenced Gil to an aggregate prison term of three years eight months, consisting of the
upper term of three years on the criminal threats count in case number SC173882A, with
a consecutive term of eight months on the statutory rape count in case number
SC166588A. Gil filed a timely notice of appeal in both cases.
                                        DISCUSSION
       Gil’s sole claim of error on appeal is that his trial counsel provided
constitutionally ineffective assistance by failing to ask the court to instruct the jury with
CALCRIM No. 3426,2 which concerns the effect of a defendant’s voluntary intoxication


       2
         In its standard form, CALCRIM No. 3426 reads: “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 [or failed to do an act] with
______ <insert specific intent or mental state required, e.g., ‘the intent to permanently
deprive the owner of his or her property’ or ‘knowledge that . . .’ or ‘the intent to do the
act required.’> [¶] A person is voluntarily intoxicated if he or she becomes intoxicated
by willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] [Do not
consider evidence of intoxication in deciding whether ______ [insert non-target offense>
was a natural and probable consequence of ______ <insert target offense>.] [¶] In
connection with the charge of ______ <insert first charged offense requiring specific
intent or mental state> the People have the burden of proving beyond a reasonable doubt
that the defendant acted [or failed to act] with ______ <insert specific intent or mental
state required, e.g., ‘the intent to permanently deprive the owner of his or her property’

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upon the ability to form the specific intent to commit a crime. As we explain, because
the evidence was insufficient to justify giving the instruction, counsel’s performance was
not constitutionally deficient. Further, even assuming counsel’s performance was
deficient, Gil’s claim fails because he cannot demonstrate a reasonable probability the
outcome would have been any different if his counsel had requested the instruction.
1.     Background
       Gil’s trial counsel elicited the following testimony from Doe at trial:
       “[DEFENSE COUNSEL]: Q.              One of the things that happened when you
showed the -- or when you played your phone message to the officer at the San Rafael
Police Station, first thing you said is: He’s drunk. Because you believed that Mr. Gil
was drunk; isn’t that right?
       “A.    I believe that he was drunk. I do not know since I was not there with him.
I don’t know if he had been drinking, but I did assume he was drinking.
       “Q.    In fact you said that twice; isn’t that right?
       “A.    Correct.
       “Q.    Because his words sounded slurred? [¶] . . . [¶]
       “A.    Correct, but it was still a clear message.”
       The defense did not present any other testimony or evidence suggesting that Gil
was intoxicated at the time he left the threatening voicemail message for Doe. It is
undisputed that Gil’s defense counsel did not request a jury instruction on the effect of
voluntary intoxication. It is further undisputed that no such instruction was delivered to
the jury.



or ‘knowledge that . . .’>. If the People have not met this burden, you must find the
defendant not guilty of ______ <insert first charged offense requiring specific intent or
mental state>.” [¶] <Repeat this paragraph for each offense requiring specific intent or
a specific mental state.> [¶] You may not consider evidence of voluntary intoxication
for any other purpose. [Voluntary intoxication is not a defense to ______ <insert general
intent offense[s]>.]



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         During closing argument, Gil’s defense counsel emphasized that Gil lacked the
specific intent to make a criminal threat because he was drunk, as follows: “[The
message is] hard to understand. You can listen to it in the back. It is somebody who is
drunk. It is more like a rant, more like a venting, not anything like a threat. . . . There is
no specific intent. It is not meant to be taken as a threat, because you need that specific
intent that it be meant as a threat. He’s drunk. She knows him to be drunk. And, No. 2,
it has to be with a specific intent. And from her mouth twice she says, He’s drunk.”
2.       Governing Legal Principles
         Section 29.4, subdivision (b) provides in relevant part that “[e]vidence of
voluntary intoxication is admissible solely on the issue of whether or not the defendant
actually formed a required specific intent . . . .” Voluntary intoxication may negate the
existence of a specific intent. (See People v. Williams (1997) 16 Cal.4th 635, 677.)
Making criminal threats in violation of section 422 is a specific intent crime that requires
a showing that the defendant intended the statements to be taken as a threat, even if there
is no intent to carry out the threat. (People v. Fierro (2010) 180 Cal.App.4th 1342,
1347.)
         A trial court must instruct the jury sua sponte on the general principles of law that
are closely and openly connected to the facts and that are necessary for the jury’s
understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v.
Breverman (1998) 19 Cal.4th 142, 154.) A trial court is not obligated, however, to
instruct sua sponte on voluntary intoxication. Voluntary “[i]ntoxication is now relevant
[after diminished capacity was abolished as a defense] only to the extent that it bears on
the question of whether the defendant actually had the requisite specific mental state.
Thus it is now more like the ‘pinpoint’ instructions . . . to which a defendant is entitled
upon request. Such instructions relate particular facts to a legal issue in the case or
‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi.
[Citation.] They are required to be given upon request when there is evidence supportive
of the theory, but they are not required to be given sua sponte.” (People v. Saille (1991)
54 Cal.3d 1103, 1119, citations omitted.) A defendant is entitled to a voluntary


                                               5
intoxication instruction only when there is substantial evidence of the following: (1) the
defendant was voluntarily intoxicated, and (2) “the intoxication affected the defendant’s
‘actual formation of specific intent.’ ” (People v. Williams, supra, 16 Cal.4th at p. 677.)
       In this case, the claim is not that the trial court erred in refusing a voluntary
intoxication instruction but that defense counsel was ineffective for failing to request the
instruction. In order to establish a claim of ineffective assistance of counsel, a defendant
bears the burden of demonstrating both that counsel’s performance fell below an
objective standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668,
687-688) and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Id. at p. 694; People v.
Ledesma (2006) 39 Cal.4th 641, 746.) “ ‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” (People v. Weaver (2001) 26
Cal.4th 876, 925.)
       “Unless a defendant establishes the contrary, we shall presume that ‘counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If
the record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of ineffective assistance of counsel must be rejected
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’ ” (People v. Ledesma, supra, 39 Cal.4th at
p. 746.) A failure to make a futile or nonmeritorious motion does not constitute
ineffective assistance. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
3.     Analysis
       Gil argues that his counsel’s performance was constitutionally defective because
there could be no conceivable tactical reason for failing to request an instruction on
voluntary intoxication. We disagree. A conceivable tactical reason for declining to ask
for the instruction is that defense counsel believed the evidence was insufficient to justify
giving the instruction.



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       There was no substantial evidence to show either that Gil was voluntarily
intoxicated or that his purported state of intoxication prevented him from forming the
requisite specific intent. The only evidence of Gil’s intoxication was Doe’s testimony
that she believed Gil was drunk at the time he left the voicemail message. However, her
assumption was based solely on the fact that he appeared to be slurring his words. She
clarified that she did not know whether Gil had been drinking. She did not observe Gil
drinking on the day the message was left, had no personal interaction with him at the time
the message was left, and had no other basis on which to conclude that Gil had been
drinking or was intoxicated. Moreover, Gil did not testify, there was no third party
testimony concerning Gil’s condition when he made the phone call, and there was no
physical evidence that he used alcohol or drugs before making the call. Such generalized
testimony about a defendant’s condition based solely on the defendant’s manner of
speech does not warrant a voluntary intoxication instruction. (See, e.g., People v.
Williams, supra, 16 Cal.4th at p. 677 [scant evidence that defendant was “ ‘doped up’ ”
and “ ‘probably spaced out’ ” did not qualify as substantial evidence of intoxication].)
       Further, even if there were substantial evidence of intoxication, there was
insufficient evidence that Gil was unable to form the specific intent to commit the crime
of making criminal threats. (See People v. Marshall (1996) 13 Cal.4th 799, 847-848
[even though defendant was intoxicated, evidence of the effect on his state of mind was
lacking].) Gil was able to leave a message that contained a coherent and direct threat,
rather than a confused and rambling statement. On appeal, Gil makes much of the fact
that Doe, who had been his girlfriend for nine years, was in a unique position to know
when he was drunk. However, by the same token, she was presumably also in a unique
position to know when Gil was too drunk to be taken seriously. Although Doe claimed
Gil was drunk, she also stated that his message was “clear.” From her perspective, the
message was not a rambling and incoherent diatribe. Rather, she was fearful of him and
believed that he intended his message to be taken as a threat.
       Under these circumstances, there was insufficient evidence to warrant an
instruction on voluntary intoxication. Gil’s trial counsel did not provide constitutionally


                                             7
defective assistance by failing to request the instruction, which the trial court would have
properly refused.
       In any event, Gil cannot demonstrate a reasonable probability the outcome would
have been any more favorable if the voluntary intoxication instruction had been given to
the jury. The omission of the instruction did not remove from the jury’s consideration or
incorrectly define the elements of the charged offense. The trial court instructed the jury
on the law applicable to the evidence presented, including the mental state and specific
intent required to establish the crime of making criminal threats. In addition, defense
counsel maintained in closing argument that Gil’s drunken state prevented him from
forming the specific intent required to support a conviction for making criminal threats.
Therefore, the jury had before it the purported evidence of Gil’s intoxication and was
urged by Gil’s counsel to consider it when deciding whether he acted with the requisite
intent. Nevertheless, the jury rejected the argument. The fallacy in Gil’s argument is that
the only person who offered evidence about his supposedly intoxicated state—Doe—also
testified that she took the threat seriously and was fearful of him. Plainly, if she took the
threat seriously, she did not believe he was so intoxicated that he lacked the intent to have
his message be taken as a threat. A pinpoint instruction on the effect of voluntary
intoxication would not have altered this fundamental fact. Consequently, there is no
reason to believe Gil was prejudiced by the absence of the instruction.
       Because we conclude Gil has not demonstrated that his counsel’s performance was
constitutionally deficient or that he was prejudiced as a consequence of his counsel’s
failure to request CALCRIM No. 3426, we reject his claim of ineffective assistance of
counsel.




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                                 DISPOSITION
     The judgment is affirmed.




                                         _________________________
                                         McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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