Filed 4/19/13 P. v. Gonzalez CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G045904

                   v.                                                  (Super. Ct. No. 10CF0597 )

ARNULFO GONZALEZ,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Thomas

M. Goethals, Judge. Affirmed.
                   Jennifer Peabody, under appointment by the Court of Appeal, for

Defendant and Appellant.

                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Barry J.T. Carlton and

A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury found Arnulfo Gonzalez guilty of second degree murder for the

unlawful killing of Samuel Valdivia (Pen. Code, § 187; all further references are to the
Penal Code unless otherwise specified), and also found true he personally used a knife in

the commission of the murder within the meaning of section 12022, subdivision (b),

subsection (1). Gonzalez contends the trial court erred by providing an unmodified
version of CALCRIM No. 625, which addresses the effect of voluntary intoxication in

homicide crimes. Gonzalez argues the instruction could have caused a reasonable juror

to disregard evidence of the victim‟s and witnesses‟ intoxicated state. For the reasons

expressed below, we affirm.

                                             I

                       FACTUAL AND PROCEDURAL BACKGROUND

              In early March 2010, Gonzalez stayed with his friend Manuel Cervantes for

10 days while visiting Orange County to attend court hearings. On the afternoon of

March 13, Gonzalez and Cervantes gathered at Samuel Valdivia‟s apartment. Joining
them were Valdivia, Guillermo Macias, and Valdivia‟s nephew, Adan. The men drank

beer and used methamphetamine in the days leading up to the homicide.

              In the late afternoon, Gonzalez and Valdivia borrowed Cervantes‟s car to

meet another friend for drinks. Cervantes, Macias, and Adan drove to Cervantes‟s

sister‟s home, where they continued drinking and smoking methamphetamine. When

Cervantes and Macias returned to Valdivia‟s apartment around 1:00 a.m., Gonzalez and

Valdivia were arguing about whether Gonzalez had driven Cervantes‟s car recklessly.

Gonzalez appeared upset and challenged Valdivia to fight. Valdivia declined and told

Gonzalez to calm down. Gonzalez suggested they “get knives and fight,” but Valdivia




                                             2
refused Gonzalez‟s repeated challenges. When Gonzalez angrily struck Valdivia‟s

furniture, Valdivia ordered Gonzalez to leave and pushed him out of the apartment.
             Gonzalez left and moved his truck closer to Valdivia‟s apartment. He

returned to the apartment five to 10 minutes later holding an open pocketknife. He

repeatedly challenged Valdivia to come outside and fight. Valdivia initially refused,
invited Gonzalez inside and urged him to forget about the argument. But Gonzalez

continued to challenge Valdivia, who eventually relented and walked outside. The two

men began fighting, and during the melee Gonzalez stabbed Valdivia seven times: once

fatally under the armpit, which pierced Valdivia‟s lung and heart; twice in Valdivia‟s

abdomen; and four times on Valdivia‟s left forearm.

             Cervantes and Macias heard Valdivia exclaim, “he got me.” They found

Valdivia bleeding and still struggling with Gonzalez. Both men intervened to wrest the

knife away from Gonzalez, who promptly fled the scene.

             Around 3:00 p.m. that afternoon, police officers found Gonzalez driving his
truck and pulled him over in a parking lot near the police station. Gonzalez admitted

wounding Valdivia with the knife. Two hours later, authorities conducted a blood test on

Gonzalez, which revealed the presence of methamphetamine.

             The medical examiner testified the wounds on Valdivia‟s forearm were

consistent with “defensive wounds” received when using the forearm to fend off blows.

An autopsy revealed Valdivia‟s blood alcohol level was 0.26 and he had a low level of

methamphetamine in his system.

             At trial in August 2011, Gonzalez testified that at the time of the homicide

he had not slept for four days, and he admitted he had been drinking alcohol and using
methamphetamine with his friends. Gonzalez claimed Valdivia challenged him to fight



                                            3
and pushed him out of the apartment. Gonzalez retrieved the pocketknife from his truck,

but testified he did this to convince Valdivia to apologize for the argument, not to stab
him. Gonzalez claimed he stabbed Validivia because he was frightened when Validivia,

who was considerably taller and outweighed Gonzalez by 80 pounds, threatened and hit

him.
              Following the trial, a jury convicted Gonzalez of second degree murder and

found he personally used a knife in the commission of the murder. The trial court

sentenced Gonzalez to 16 years to life in prison.

                                              II

                                        DISCUSSION

A.     Trial Court Did Not Err By Providing an Unmodified Version of CALCRIM No.

625 (Voluntary Intoxication Effects on Homicide Crimes)

              Gonzalez contends the trial court‟s instruction on the effects of voluntary

intoxication misled the jury by suggesting they could not weigh and consider evidence
that Valdivia and the eyewitnesses were intoxicated. The trial court instructed the jury

under Judicial Council of California Criminal Jury Instructions 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 intent to kill, or the defendant acted with deliberation and premeditation.

[¶] 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. [¶] You may not

consider evidence of voluntary intoxication for any other purpose. [¶] Voluntary
intoxication is not relevant to the issue of „implied malice.‟ If all the elements of



                                              4
„implied malice‟ as I have defined them to you are established, the fact the defendant may

have been voluntarily intoxicated is not a defense and does not negate the theory of
implied malice.”

              Gonzalez argues “all of the percipient witnesses consumed drugs and

alcohol in the hours before the altercation and . . . the victim [] had a blood alcohol level
of [0.26] and had consumed methamphetamine. [¶] The witnesses, likely because of

their level of intoxication, had difficulty recalling the details and provided inconsistent

versions of the verbal and physical altercations. Moreover, the coroner testified that

methamphetamine use can cause aggressive, bizarre, violent and unexpected behavior.

According to the coroner, typically a person with a [0.26] blood alcohol level would have

impaired judgement [sic] and motor skills. Moreover, the ability to move volitionally

would be impaired, and a person may become clumsy, unable to judge distance, violent,

and have difficulty controlling themselves. Appellant‟s defense at trial was that he was

provoked by [the victim] and feared [him] because of his size and aggressive conduct and
that he stabbed him in the heat of passion or in unreasonable self-defense.”

              Gonzalez asserts CALCRIM No. 625 misled the jury into believing “it was

precluded from considering [Valdivia‟s] intoxication as relevant evidence negating the

mens rea required from murder to manslaughter. A juror could also reasonably believe

that he/she was also precluded from considering the witnesses‟ intoxication in evaluating

their testimony and determining their ability to accurately observe, perceive, recall and

recollect the incident.”

              We review CALCRIM No. 625 in light of the entirety of the instructions to

determine whether there is a “reasonable likelihood the jury applied the instruction in an
impermissible manner.” (People v. Houston (2012) 54 Cal.4th 1186, 1229.) The trial



                                              5
court in a criminal case must instruct sua sponte on “general principles of law relevant to

the issues raised by the evidence and necessary for the jury‟s understanding of the case.”
(People v. Anderson (2011) 51 Cal.4th 989, 996–997 (Anderson).) The trial court‟s duty

requires giving the jury instructions regarding the essential elements of a charged offense.

(People v. Breverman (1998) 19 Cal.4th 142, 154-155.) It also extends to instructions on
the defendant‟s theory of the case, including defenses the defendant relies on if there is

substantial evidence to support the defense and it is not inconsistent with the defendant‟s

theory. (Anderson, supra, at pp. 996–997.) But a party may not “„complain on appeal

that an instruction correct in law and responsive to the evidence was too general or

incomplete unless the party has requested appropriate clarifying or amplifying language.‟

[Citation.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) If the court

correctly instructs the jury on basic principles of law applicable to the charges, the burden

is on the defendant to request a clarifying instruction. (People v. Garvin (2003) 110

Cal.App.4th 484, 488.)
              The introductory sentence of the voluntary intoxication instruction

explicitly directed the jury to consider “the defendant‟s voluntary intoxication only in a

limited way. You may consider that evidence only in deciding whether the defendant

acted with an intent to kill [etc.]” (Italics added.) The instruction‟s later statement the

jury “may not consider evidence of voluntary intoxication for any other purpose” must be

considered in context, and therefore a reasonable juror would understand the statement

refers to the defendant’s voluntary intoxication.

              That was clearly the way the parties construed the instruction in the lower

court. The prosecutor argued the instruction applied to Gonzalez‟s voluntary
intoxication, which he asserted was not “a defense to implied malice.” During rebuttal



                                              6
argument, the prosecutor noted, “The defense argues to you, well, if [Gonzalez]

premeditated and deliberated, why would he telegraph that? Why wouldn‟t he just walk
up and stab him? Well, he did have alcohol on board and he did have meth on board.

We know that. Did that clear [sic] his judgment? Did it affect his judgment? Probably.

Did it affect it to the point where he didn‟t form the intent to kill? Absolutely not. And
even if did, you still have the implied malice murder.”

              Defense counsel‟s argument did not suggest the instruction applied to

anyone other than Gonzalez. Counsel argued Gonzalez had used methamphetamine and

“clearly was intoxicated at the time” of the crime, which “shows . . . he didn‟t intend to

kill [Valdivia] and he didn‟t premeditate and deliberate . . . .” Defense counsel also

elicited testimony concerning the victim‟s level of intoxication and the effect it would

have on his conduct. Gonzalez testified he was afraid that Valdivia, 80 pounds heavier

and eight inches taller, would hurt or even kill him. Defense counsel argued Gonzalez

had testified “he was afraid he was going to be torn to pieces. He was going to be
pummeled. This guy [Gonzalez] who‟s five-two, five-three, 115 pounds, versus a person

[Valdivia] who‟s six feet tall and nearly 200 pounds. Who‟s been drinking all day, since

at least three or four o‟clock in the afternoon, until now, three o‟clock in the morning.

Who‟s smoked meth or ingested meth sometime or another during the day because his

blood, as we stipulated to, is positive for methamphetamine. . . . [¶] That‟s the

provocation that we‟re talking about that makes this not a murder.” He also argued, “It‟s

the fact that this drunk guy, this big, drunk, aggravated, aggressive guy came out the door

and grabbed him. Shoved him out the door. Tried to hit him in the head. That‟s what

heat of passion is.” He made a similar argument concerning imperfect self-defense and
self-defense theories.



                                              7
              Neither side suggested the instructions precluded consideration, as

Gonzalez now contends, of Valdivia‟s intoxication as relevant to the victim‟s “conduct,
attitude and demeanor.” A reasonable juror would have understood CALCRIM No. 625

applied only to Gonzalez‟s voluntary intoxication and did not preclude consideration of

Valdivia‟s intoxication as it may have related to provocation and Gonzalez‟s belief in the
need to defend himself. The trial court directed the jury to consider the instructions as a

whole, and provided comprehensive instructions addressing the elements of first and

second degree murder and the state of mind required for murder (CALCRIM Nos. 520,

521, 560B), provocation and its effect on the degree of murder (CALCRIM No. 522),

sudden quarrel and heat of passion manslaughter based on provocation (CALCRIM

No. 570), imperfect self-defense (CALCRIM No. 571), self-defense (CALCRIM

No. 505), and mutual combat (CALCRIM No. 3471).

              The trial court also separately instructed the jury concerning evaluation of

witness testimony. CALCRIM No. 226 provided in relevant part: “You alone must
judge the credibility or believability of the witnesses. In deciding whether testimony is

true and accurate, use your common sense and experience. You must judge the testimony

of each witness by the same standards, setting aside any bias or prejudice you may have.

[¶] You may believe all, part, or none of any witness‟s testimony. Consider the

testimony of each witness and decide how much of it you believe. [¶] In evaluating a

witness‟s testimony, you may consider anything that reasonably tends to prove or

disprove the truth or accuracy of that testimony.” The instruction included a

nonexclusive list of considerations for evaluating credibility, including “How well could

the witness see, hear, or otherwise perceive the things about which the witness testified?”
(See also CALCRIM No. 105.)



                                             8
               Although neither the prosecution nor the defense emphasized intoxication

evidence to attack credibility, neither side suggested the jury could not consider it, or that
the evidence was irrelevant to an assessment of credibility. Defense counsel argued the

methamphetamine found in Valdivia‟s blood suggested the witnesses were “not being

honest” when they denied using drugs in Valdivia‟s presence, and they were trying to
place Valdivia in the best light because of “the guilt they” felt about his death and “the

things they didn‟t do in this case to help out their friend.” CALCRIM No. 625,

reasonably construed, did not prevent the jury from considering this argument, or from

considering how alcohol and methamphetamine use affected the ability of witnesses to

perceive or recollect.1

               Because CALCRIM No. 625, reasonably construed, was not erroneous or

ambiguous, we need not address whether Gonzalez forfeited his contentions, the error

was prejudicial, or counsel acted ineffectively by failing to object or seek additional or

clarifying language. Nor has Gonzalez shown how this instruction violated his federal
constitutional rights to a fair trial or to present a defense.




               1
                            The jury made one request during deliberations: “The
definition of the following: 1) Lawful justification (murder) [¶] 2) Provocation
(manslaughter) [¶] 3) Conscious disregard (implied malice).” The court responded,
“These are words and phrases that have no special meanings beyond what is included in
the instructions you have been given.” Nothing suggests any jury confusion about the
use of the intoxication evidence.

                                                9
                                        III

                                   DISPOSITION
            The judgment is affirmed.




                                              ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                        10
