Filed 7/9/15 P. v. Keating CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067077

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD255699)

SHERIDAN LOUIS KEATING,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted Sheridan Louis Keating of one count of assault with a deadly

weapon (Pen. Code,1 § 245, subd. (a)(1)) and one count of criminal threats (§ 422). The

jury found that Keating used a deadly weapon during the commission of the threat count.

(§ 12022, subd. (b)(1).) The court sentenced Keating to three years in prison.

       Keating appeals challenging only the criminal threat conviction. As to that count

he contends the court erred by failing to instruct the jury on voluntary intoxication,

without request. In this case Keating represented himself. He denied he was intoxicated

at the time of the offense and did not request an instruction on voluntary intoxication.

We will follow established Supreme Court precedent, which provides in cases such as

this, the trial court does not have a sua sponte duty to instruct on voluntary intoxication.

Therefore we will reject Keating's contention and affirm the judgment.

                                STATEMENT OF FACTS

       Keating does not challenge either the sufficiency or the admissibility of the

evidence to support his convictions. Thus we will include only a summary of the facts of

the offenses. We find the respondent's summary is accurate and adopt it here for

convenience.

                                    A. Prosecution Case

       William Hatch lived with his mother, Ellen, in a house located at 2815 Charlar

Avenue in San Diego. Hatch's niece, Debbie Martin, was permitted to live on the house's

covered back patio but was not allowed to entertain visitors and was not allowed to enter



1      All further statutory references are to the Penal Code unless otherwise specified.
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the main house when Hatch and his mother were not present. Appellant was Martin's

boyfriend. Hatch had told appellant he was not welcome at the house on at least eight

occasions. Appellant had previously confronted Hatch and gotten "in [his] face."

       On April 25, 2014, around 3:45 p.m., Hatch was outside his home when he heard

loud yelling. He looked down the street and saw appellant approaching. Using Hatch's

name, appellant was screaming, "I'm going to fuckin' bash your brains in. You are a dead

fuck. Come on up. I'm going to fuck you up." Hatch had never seen anyone this irate in

his life. When appellant was six feet away from Hatch, appellant dropped the knapsack

he was carrying, and revealed a steel car strut. Appellant was holding the strut like a

baseball bat. Hatch was afraid, and didn't know what to do, so he retreated from his

driveway into the street to give himself more room to maneuver. Appellant continued to

scream, "I'm going to frickin' kill you, jack you up. I'm going to fuck you up, bash your

brains in."

       Hatch's neighbor, William Barlow, saw appellant, who was armed with a vehicle

strut, begin running toward Hatch's house. Barlow believed appellant was "drunk or on

drugs." When Barlow saw appellant threatening Hatch with the strut, Barlow approached

and startled appellant. This caused appellant to direct his attention toward Barlow. With

appellant temporarily distracted, Hatch retreated up his driveway toward his open garage

to retrieve a shovel he could use to keep appellant away. Unable to find a shovel, Hatch

retrieved a weeder—a two or three foot long, pronged, gardening tool. Equipped with the

weeder, Hatch ran back into the street where he saw appellant and Barlow struggling with

each other. Hatch yelled and appellant whirled and charged toward him, still armed with

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the strut. Hatch held the weeder out with both arms. Appellant continued to curse at

Hatch; however, Hatch was able to use the weeder to keep appellant away. In an attempt

to close the distance, appellant reached out and used his hand to push the weeder

downward. Hatch did not want to hurt appellant, but he shoved one of the weeder's barbs

into appellant's leg, hoping this would cause appellant to drop his weapon. Because the

first puncture wound "only phased him for a second," Hatch used the weeder to pierce

appellant's leg a second time. However, appellant continued to aim the strut at Hatch's

head, swinging the strut four to six more times, until appellant was exhausted. Wearied,

appellant dropped the strut to the ground and fell to his knees. Barlow then retrieved the

strut and moved it out of appellant's reach.

       Hatch directed appellant to stay on the ground and told him police were on the

way. When appellant heard that police were coming he attempted to rise to his feet.

Hatch used the weeder's handle to trip appellant, who fell back to the ground. Hatch

continued to trip appellant each time he got to his feet. Eventually, appellant was able to

stand, by grabbing the weeder. Once on his feet, appellant let go of the weeder, grabbed

Hatch's shirt, and took a swing at him. Hatch retreated backwards and his shirt was

nearly ripped from his body. Hatch then hit appellant on the side of his head. Appellant

took another swing at Hatch, who avoided the blow and landed another punch. After the

second punch, appellant staggered to the ground. Upon hearing again that the police

were on their way, appellant once more stumbled to his feet.

       San Diego police officer Eric Oberndorfer was the first to arrive at the scene. He

observed two men wrestling with a garden tool. Oberndorfer noticed that appellant

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appeared dirty and disheveled, with blood shot eyes, and spittle on the corner of his

mouth. Because appellant was acting in a violent and aggressive manner, and appeared

agitated and angry, Oberndorfer ordered appellant to the ground. Appellant complied.

Oberndorfer handcuffed appellant, who remained aggressive and continued to scream.

When paramedics arrived at the scene, they saw that appellant's leg had been punctured.

When paramedics attempted to treat appellant, appellant became violent, thrashing

around and spitting on them. Oberndorfer then had to place a spit sock over appellant's

mouth.

       After appellant was transported to the hospital, his behavior did not improve.

Appellant continued to act violently and had to be restrained. He berated the hospital's

African-American security guard, referring to him as a "nigger." He also insulted the

hospital's nursing staff by referring to them as "bitch" and "cunt." He even called his

attending physician a "piece of shit . . . that didn't know what he was doing." Eventually,

appellant had to be sedated. At the hospital, appellant tested positive for amphetamines

and had a blood alcohol level of .17.

       Ellen Hatch and Margaret Kim each observed the altercation and called 9-1-1.

Their recollections of the incident were similar to that of Hatch. Kim testified that

appellant appeared as if he was "definitely on something." Deborah Martin, appellant's

girlfriend, also testified. According to Martin, appellant, who was "extremely drunk" and

angry, came to visit her on the day of the altercation. Martin attempted to lure appellant

away from her house by riding away on her bike. Appellant initially followed her, but

then stopped and returned to the house.

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                                     B. Defense Case

       Appellant testified that on April 25, 2014, he started drinking around noon.

Appellant was in a "good-hearted mood" and was feeling happy. Appellant decided to

visit his girlfriend to see if she had food for him. When Hatch saw appellant, he waved

him over to where he was standing. When appellant approached, Hatch suddenly

attacked. Appellant was knocked unconscious. When appellant awoke, he saw Barlow

and Hatch stabbing him. Appellant passed out again until he heard sirens responding to

the call. Appellant was shocked that police handcuffed him but did not handcuff his

attackers. Because he was upset that he was being arrested, and Hatch was being allowed

to go free, appellant became uncooperative.

                                       DISCUSSION

       Keating contends the trial court had a duty to instruct the jury, using CALCRIM

No. 3426 on the effects of voluntary intoxication on his ability to form the specific intent

required by section 422. He recognizes he denied intoxication at trial. He also

recognizes there is case law indicating there is no sua sponte duty on trial courts to give

such instruction. He contends, however, there was considerable evidence of his

intoxication at the time of the offenses and since he was self-represented we cannot

expect he would know enough to ask for the instruction. We are aware of no exception to

the rules on sua sponte instructions for self-represented defendants. Further, such

instruction would be inconsistent with Keating's defense at trial.




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                                     A. Legal Principles

        A trial court in a criminal case has a duty to instruct the jury, even without request,

on all defenses that are consistent with the defendant's theory of defense and are

supported by substantial evidence. (People v. Barton (1995) 12 Cal.4th 186, 195.) We

review challenges to jury instructions "which involve[] the determination of applicable

legal principles under the de novo standard." (People v. Guiuan (1998) 18 Cal.4th 558,

569.)

        Instructions on the effect of voluntary intoxication on a defendant's ability to form

a specific mental state have been characterized as "pinpoint instructions" which must be

requested. (People v. San Nicolas (2004) 34 Cal.4th 614, 670.) In People v. Saille

(1991) 54 Cal.3d 1103 the court said:

           "[D]efendant's evidence of intoxication can no longer be proffered as
           a defense to a crime but rather proffered in an attempt to raise a
           doubt on an element of a crime which the prosecution must prove
           beyond a reasonable doubt. In such case the defendant is attempting
           to relate his evidence of intoxication to an element of the crime.
           Accordingly, he may seek a 'pinpoint' instruction that must be
           requested by him [citation], but such a pinpoint instruction does not
           involve a 'general principle of law' as that term is used in the cases
           that have imposed a sua sponte duty of instruction on the trial court."
           (Id. at p. 1120.)

The court reaffirmed the position taken in Saille in People v. Bolden (2002) 29

Cal.4th 515, 559.

                                         B. Analysis

        Keating admitted he had been drinking at the time of the offenses, but denied he

was intoxicated. His defense was that the victim attacked him and that he did not


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threaten or assault the victim. The defense did not offer any testimony on how the

amount of drugs or alcohol Keating might have consumed would have affected his ability

to specifically intend to threaten the victim. Certainly there was abundant evidence of

clear and unambiguous threats made by Keating. However, there is nothing in the record

that would inform the jury about the effect any intoxication may have had on specific

intent. (People v. Williams (1988) 45 Cal.3d 1268, 1311.)

       Since Keating did not request a pinpoint instruction on intoxication, and the court

did not have a duty to give one without request, we find no instructional error in this case.

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                   McINTYRE, J.


                         IRION, J.




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