Filed 10/28/15 P. v. Abbott CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B258086

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA083184)
         v.

DAVID BRIAN ABBOTT,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C.
Taylor, Judge. Affirmed.


         Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Nathan
Guttman, and Steve Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant David Brian Abbott (defendant) appeals from his
conviction of voluntary manslaughter. He contends that the trial court erred in failing to
instruct the jury as to involuntary manslaughter in general, and as to involuntary
manslaughter based upon unconsciousness caused by voluntary intoxication. Defendant
further contends that defense counsel rendered ineffective assistance by not requesting
the instructions. Finding no merit to defendant’s contentions, we affirm the judgment.
                                    BACKGROUND
       Defendant was charged with the murder of Samantha Sproson (Sproson), in
violation of Penal Code section 187, subdivision (a).1 The information further alleged
that defendant personally and intentionally discharged a firearm causing death, within the
meaning of section 12022.53, subdivision (d). A jury found defendant not guilty of
murder but guilty of the lesser included offense of voluntary manslaughter in violation of
section 192, subdivision (a), and found true the firearm allegation.
       On July 31, 2014, the trial court sentenced defendant to a total term of 15 years in
prison, comprised of the upper term of 11 years, plus the middle term of four years for
the firearm enhancement. The court ordered defendant to pay mandatory fines and fees,
and awarded total presentence custody credit of 1,083 days. Defendant filed a timely
notice of appeal from the judgment.
Prosecution evidence
       Sproson died of a single gunshot wound to the back of the head inflicted by
defendant on December 31, 2011.
       Defendant’s neighbor Michael Tapp (Tapp) testified that he was awakened by
defendant’s voice in Sproson’s apartment around 5:00 a.m. on the morning of the
shooting. Sproson lived next door, and they shared a common wall which did not keep
out sound very well. Defendant was saying, “I want my clip,”2 which he repeated
numerous times. Finally, defendant said, “Give me the clip, or I’m going to shoot you. I

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

2      An ammunition magazine is sometimes called a “clip.”

                                             2
still have one in the chamber.” Defendant then counted down from 10 to one. When he
reached one, Tapp heard footsteps going toward the back of Sproson’ apartment. When
Sproson said she did not have the clip, defendant demanded it again and then counted
down from three. About 30 seconds later, Tapp heard a pop like a firecracker, and called
911. Tapp heard a rustling sound on the hardwood floors, but no more voices.
       Defendant lived in the same apartment complex as Tapp for about two years.
They socialized with other neighbors 10 or 12 times, and on such occasions defendant
usually drank alcohol. Once when defendant was with friends, Tapp observed that
defendant was so intoxicated he was unable to walk straight on his own and was
stumbling from side to side. Defendant’s friends virtually dragged him to the local bar.
On another occasion, Tapp observed defendant talking to the landlord while he appeared
to be intoxicated. Defendant’s speech was slurred and he kept repeating himself. Tapp
testified that defendant’s speech did not seem slurred at the time he heard defendant
demanding the clip.
       Sandy Marino (Marino), also lived in the same building. She testified that
Sproson was her friend, that she had introduced her to defendant, and that she regularly
socialized with defendant and Sproson. Defendant, whose nickname was “Drunk Dave,”
drank a lot, almost every day, and often became so intoxicated he would lose his balance,
his speech would become slurred, and he would pass out. Marino testified that Sproson
was usually in defendant’s apartment, where there were often parties and fights between
defendant and Sproson, some of them physical. Sproson drank an average amount, not a
lot. Once Marino saw defendant drag Sproson down the stairs by the nape of her neck
and once saw him trying to “choke her out” by placing his arm around Sproson’s neck in
a headlock Sproson did not appear to be physically injured.
       Within a minute or two after Tapp’s 911 call, two Hermosa Beach police officers
arrived and found defendant standing in the hall outside Sproson’s apartment (No. 6).
One of them, Officer Mark Smuts, testified that he saw defendant who appeared to be
very intoxicated, but with fine coordination. Defendant was not staggering or swaying;
he was not holding on to anything, and he did not fall. Defendant answered the officers’


                                            3
questions, gave his name as “Dave,” told them that his girlfriend lived in apartment
No. 6, and that he lived in apartment No. 7. When he was asked whether his girlfriend
was still inside, defendant replied, “She should be.” Defendant was then placed in
handcuffs and led to the officers’ patrol car. During the walk, defendant did not lose his
balance.
       When Detective Sergeant Raul Saldana arrived at the crime scene, he observed
Sproson’s body lying face down, with her upper torso in the bathroom, her head close to
the toilet, and the lower part of her body in the hallway. It appeared that the bullet, fired
from 18 inches to two feet away, traveled in a straight line, and entered the back of her
head about two inches behind her left ear. The bullet exited her head at the right temple
and struck the middle of the underside of the toilet lid, which was up and resting
vertically against the toilet tank.
       During the booking process Officer Smuts observed that defendant appeared to
have perfect coordination, with no stumbling or holding himself against the wall for
balance as he stood. Defendant was able to follow the officers’ directions, including to
turn around. When defendant’s blood was drawn later, at approximately 9:20 a.m. the
same morning, his blood alcohol content (BAC) was .25 percent. Sergeant Saldana
testified that he had dealt with many intoxicated people, perhaps thousands over his 30 or
so years as a police officer, and the highest BAC he had encountered was .46 percent. He
had handled people with a .25 percent BAC several times and had seen a variety of
behavior in individuals with a high BAC. Sergeant Saldana observed defendant during
the booking process, and noticed that although defendant’s speech was slurred and he
appeared to be intoxicated, he made sense and could be understood. Defendant’s
coordination was good, he was not swaying or stumbling, he seemed pretty steady on his
feet, did not lean on anything, and maintained his balance. Defendant was cooperative,
and not combative, antagonistic, or belligerent.
       Sergeant Saldana assisted Los Angeles County Sheriff’s deputies in a search of
defendant’s studio apartment where they found a nine-millimeter semiautomatic handgun
under the mattress and box springs of the bed. A search of defendant’s pockets turned up


                                              4
an expended nine-millimeter casing, an unfired nine-millimeter round, a fired
“mushroomed” bullet, and some coins. Sproson’s DNA was recovered from the
mushroomed bullet and from several bloodstains on defendant’s clothing and foot.
Defense evidence
       Defendant presented the testimony of physician and former police officer, Terence
McGee, a specialist in addiction medicine and expert in testing for alcohol and drug
abuse. Dr. McGee estimated that defendant’s BAC at 5:00 a.m. was probably .30 percent
if his BAC was .25 percent at 9:20 a.m. He testified that the average person with a .30
percent BAC would be unconscious, and death from respiratory arrest would normally
occur at .40 percent; however, a person can develop a tolerance to alcohol over time, and
the practiced alcoholic could surpass those levels without the same effects as others.
Nevertheless, a person with a .30 percent BAC, would have impaired judgment, causing
him to behave differently from himself in a sober state, and to make bad decisions.
       Dr. McGee explained that a heavy drinker who still managed to keep a job, pay
rent, and so forth was a “functioning alcoholic”; and whether a functioning alcoholic
would have the same level of impaired judgment as someone who rarely drank would
depend on the situation and the person, as alcohol affected everyone differently. Dr.
McGee thought it was possible that a person with a BAC of .30 or .33 percent would be
able to pick up a bullet from the ground, travel 40 to 50 feet, and then place a gun under a
mattress. However in Dr. McGee’s opinion, 80 percent of the population would be
comatose at .30 percent, and no one at that level would be rational or normal in any
intellectual way.
       Dr. McGee viewed a video recording of defendant’s booking, which took place
between 7:20 and 7:30 a.m. on the day of his arrest. Dr. McGee estimated that at that
time, defendant probably had a BAC of about .27 or .28 percent. The video showed
defendant walking in with officers. Dr. McGee noticed that defendant’s eyes were
droopy and blood shot, and he thought that defendant sounded intoxicated; however,
although defendant’s voice was gravelly, he could not recall any slurring. As defendant
stood with his hands cuffed behind him, he did not sway or lean against a wall to keep


                                             5
himself up, and as officers instructed him to turn around, sit down, and so forth,
defendant was able to follow the directions. The fact that defendant’s coordination was
good indicated that he had been using alcohol for a long period of time and had built
some tolerance. There was no question in Dr. McGee’s mind that defendant was an
alcoholic. Picking up a shell casing and bullet, going back to his own apartment, and
placing the gun under the mattress, took coordination and thought, indicating that
defendant had a higher tolerance for alcohol than most people.
       Defendant testified in his defense that Sproson had been his girlfriend for about
two years. He described an incident that occurred during the recent Thanksgiving
holiday weekend, which they spent together at Lake Havasu. During an argument,
Sproson slapped him on the cheek and then tried to punch him, but he moved out of the
way, pushed her onto the bed and left the room. She drove home alone the next day.
Defendant testified that this was not the first time she had hit him. After returning home
Sproson wrote in her diary that she had been drunk, said mean things, and was being
selfish. She regretted the alcoholic she had become, and wanted to change. Defendant
testified that after he returned home, she apologized and they continued their relationship.
       Defendant testified that he drank daily, and drank excessively on a regular basis,
although not during the work day. He started drinking in high school and considered
himself an alcoholic. On any given evening he would drink 20 beers, plus a shot of rum
for every two or three beers. He described the events of Friday, December 30, 2011: he
worked that day, and after work, he bought three or four 30-packs of beer and two large
bottles of rum for the New Year’s weekend; he arrived home at 3:00 p.m., had his first
beer immediately, and drank about 12 more, plus some rum, before he and Sproson
walked to a nearby restaurant for dinner at 6:00 or 7:00 p.m.; Sproson also drank both
beer and rum before dinner, and they continued to drink after dinner; and they stayed up
all night and he did not stop drinking until 4:30 a.m.
       Around 3:00 a.m., Sproson went downstairs to her apartment to feed her dog, and
returned about two hours later. In the meantime, defendant decided to clean his pistol, as
he was planning to go to the shooting range in the next few days. By that time, he had


                                             6
opened the second 30-pack of beer and a second bottle of rum. He sat at the table, took
the clip out of the gun, cleaned the gun, sprayed lubricant on the internal parts, placed a
round in the chamber, as was his custom, and put the cleaning kit away. Sproson then
returned, grabbed the gun’s clip from the table, and ran back to her apartment. Defendant
got up to follow her, not realizing he still had his gun in his hand.
       Defendant testified that as he followed Sproson, he demanded his clip several
times and counted down from 10 to one. He also said that he still had one round in the
chamber and threatened to shoot her, but he did not mean it. Sproson replied that she did
not have his clip and asked “Dave, why are you doing this to me?” He asked her again
for the clip and counted down from three to one, but still did not intend to do anything if
she failed to hand over the clip. Defendant followed Sproson as she walked toward the
bedroom. When he was about two feet behind her, she turned, threw the clip at him,
striking his lip, and then spun around to her left. Startled, stunned, and in pain, defendant
raised his hand and pulled the trigger, in a motion he described as a reflex. Defendant
then kneeled over the fallen Sproson and checked for a pulse. He did not see a wound
because her hair was in the way. He did not call 911.
       Defendant testified he could not remember anything after that until the two
officers approached him as he stood outside Sproson’s apartment. He did not remember
picking up the casing or the mushroomed bullet, or putting the gun under the mattress.
Defendant claimed he did not intend to kill Sproson, did not get his gun in order to kill
her, and that he missed her very much.
                                       DISCUSSION
I. Defendant’s contentions
       Defendant contends that the trial court erred by failing to give a jury instruction
defining the elements of involuntary manslaughter, such as CALCRIM No. 580, and by
failing to give instructions such as CALCRIM No. 625 and 626, regarding voluntary
intoxication resulting in unconsciousness. He argues that the court should have given
both instructions sua sponte because involuntary manslaughter is a lesser included
offense of murder, and because the latter instructions would have provided an


                                              7
understanding of voluntary intoxication as it relates to involuntary manslaughter.
Defendant also contends that because the jury sent out an inquiry regarding involuntary
manslaughter, the trial court was obligated under section 1138 to give the instructions.3
Defendant also contends that the absence of these instructions deprived him of due
process, and that his trial counsel rendered constitutionally ineffective assistance by
failing to request them.
II. Duty to instruct
       Section 1138 provides: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.” This procedure may be waived, expressly or by failure to
object. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220.)
       A trial court must instruct sua sponte on lesser included offenses that are
supported by substantial evidence. (People v. Licas (2007) 41 Cal.4th 362, 366.)
“Involuntary manslaughter is ordinarily a lesser offense of murder. [Citation.]” (People
v. Abilez (2007) 41 Cal.4th 472, 515.)4 “[T]he ‘substantial’ evidence required to trigger
the duty to instruct on such lesser offenses is not merely ‘any evidence . . . no matter how


3      The jury submitted the following questions during deliberations: “If the defendant
is innocent of murder 1 & murder 2 then are we definitely to charge guilty with voluntary
manslaughter; or could he also be innocent of voluntary manslaughter [i.e.] if it was an
accident that the gun went off, wouldn’t it be involuntary manslaughter?” Defense
counsel agreed with the trial court’s proposed response: “See instruction number 640 for
help completing the verdict forms. Please reread all instructions carefully.”

4       Defendant was convicted of voluntary manslaughter. Involuntary manslaughter is
not a lesser included offense of voluntary manslaughter. (People v. Orr (1994) 22
Cal.App.4th 780, 784-785.) Voluntary manslaughter is an unlawful killing where malice
has been negated by such factors as heat of passion or imperfect self-defense. (People v.
Bryant (2013) 56 Cal.4th 959, 969; § 192.)


                                              8
weak’ [citation], but rather ‘“evidence from which a jury composed of reasonable
[persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was
committed. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v.
Breverman (1998) 19 Cal.4th 142, 154, 162.)
       The greater offense charged in this case was murder. Murder is the unlawful
killing of a human being with malice aforethought (§ 187), while involuntary
manslaughter requires a finding that the defendant acted without malice, “in the
commission of a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection.” (§ 192, subd. (b); People v. Thomas (2012) 53
Cal.4th 771, 815.) “When a person renders himself or herself unconscious through
voluntary intoxication and kills in that state, the killing is attributed to his or her
negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.”
(People v. Ochoa (1998) 19 Cal.4th 353, 423; § 192, subd. (b).) The trial court’s duty to
instruct sua sponte extends to involuntary manslaughter based on unconsciousness, so
long as there is substantial evidence to support it. (People v. Halvorsen (2007) 42 Cal.4th
379, 418-419.)
III. Involuntary manslaughter due to criminal negligence
       Defendant contends that the evidence showed that he fired the gun accidentally,
while committing misdemeanor brandishing a firearm.5
       “[T]here are three types of predicate acts that may underlie involuntary
manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. All
three acts require the same mens rea of criminal negligence. [Citations.]” (People v.
Butler (2010) 187 Cal.App.4th 998, 1012.) “[C]riminal negligence [is] unintentional
conduct which is gross or reckless, amounting to a disregard of human life or an
indifference to the consequences. [Citation.]” (People v. Guillen (2014) 227


5     Section 417, subdivision (a)(2)(B), provides: “Every person who, except in self-
defense, in the presence of any other person, draws or exhibits any firearm, whether
loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner,
unlawfully uses a firearm in any fight or quarrel is punishable as [a misdemeanor].”

                                                9
Cal.App.4th 934, 1027, citing People v. Penny (1955) 44 Cal.2d 861, 879.) Such
disregard or indifference is measured objectively, and “merely requires a showing that a
reasonable person would have been aware of the risk. [Citation.]” (People v. Butler,
supra, at pp. 1008-1009, fn. omitted.)
       “[A]n accidental shooting that occurs while the defendant is brandishing a firearm
in violation of section 417 could be involuntary manslaughter. [Citations.]” (People v.
Thomas, supra, 53 Cal.4th at pp. 813-814.) Defendant represents that his “testimony
presented this precise explanation” by testifying that he shot Sproson accidentally. We
have reviewed the two pages in the reporter’s transcript cited by defendant, but nowhere
on those two pages is there an express or implied claim of accident. Furthermore we
have found no such testimony anywhere else in the trial transcript. Defendant testified
that he did not intend or plan to kill Sproson, but he did not testify that the gun fired
accidentally. Defense counsel asked defendant what happened after he was struck in the
face with the clip. Defendant replied: “Um, I was just -- I guess, my reflex I just -- I
came up -- it hit so hard, I just -- my hand came up, and I -- I believe, I pulled the
trigger.” (Italics added.) A defendant’s claim of having no intent to kill, by itself, does
not require an instruction on involuntary manslaughter, and a gun does not fire by
accident when the trigger is intentionally pulled. (See People v. Thomas, supra, at pp.
814-815.) Thus, an instruction regarding involuntary manslaughter due to accident was
unwarranted.
       As the trial court was not required to give such an instruction, and because
defendant agreed to the court’s response to the jury inquiry in that regard, the court did
not abuse its discretion in not following the precise procedure of section 1138.6 (See
People v. McCleod, supra, 55 Cal.App.4th at pp. 1219-1220 [error under section 1138
reviewed for abuse of discretion].)
       Regardless, if the trial court had erred, any such error would be harmless under
any standard of prejudice, as “‘the factual question posed by the omitted instruction was


6      See footnote 3, ante.

                                              10
necessarily resolved adversely to the defendant under other, properly given instructions’
[citation].” (People v. Prettyman (1996) 14 Cal.4th 248, 276.) The jury was instructed
with CALCRIM Nos. 3146 and 3149 regarding the personal use and the intentional
discharge of a firearm. The jury found that defendant personally and intentionally
discharged a firearm, causing the victim’s death.
IV. Unconsciousness due to voluntary intoxication
       Defendant contends that the trial court was required to instruct that killing while
unconscious due to voluntary intoxication is involuntary manslaughter. Under section
29.4 (former section 22), voluntary intoxication can negate premeditation, deliberation,
express malice, or other required specific intent, but it cannot completely relieve a
defendant of criminal liability. (People v. Halvorsen, supra, 42 Cal.4th at pp. 417-418.)
Rather, a killing while unconscious due to voluntary intoxication is treated as involuntary
manslaughter. (People v. Ochoa, supra, 19 Cal.4th at p. 423.)
       Without citation to authority, defendant suggests that a person is unconscious if he
is too intoxicated to harbor a conscious disregard for human life. On the contrary,
voluntary intoxication does not negate a conscious disregard or implied malice. (People
v. Timms (2007) 151 Cal.App.4th 1292, 1297-1298, 1300.) As the California Supreme
Court has recognized in dictum, “depending on the facts, it now appears that defendant’s
voluntary intoxication, even to the point of actual unconsciousness, would not prevent his
conviction of second degree murder on an implied malice theory.” (People v. Boyer
(2006) 38 Cal.4th 412, 469, fn. 40; see also People v. Carlson (2011) 200 Cal.App.4th
695, 706-707.) Evidence of “voluntary intoxication is irrelevant to proof of the mental
state of implied malice or conscious disregard.” (People v. Timms, supra, at p. 1300.)
       “Unconscious” in this context does not mean unconscious of the danger to human
life, but unconscious or unaware of one’s own actions. (People v. Haley (2004) 34
Cal.4th 283, 313; see People v. Ferguson (2011) 194 Cal.App.4th 1070, 1081-1083.)
“[U]nconsciousness need not rise to the level of coma or inability to walk or perform
manual movements; it can exist ‘where the subject physically acts but is not, at the time,
conscious of acting.’ [Citation.]” (People v. Halvorsen, supra, 42 Cal.4th at p. 417.)


                                             11
“An unconscious act, as defined ‘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.’
[Citations.]” (People v. Ferguson, supra, at p. 1083.)
       The evidence defendant cites as demonstrating unconsciousness shows only that
defendant was undoubtedly quite intoxicated, with a BAC of .30 to .33 percent.
Defendant notes that Dr. McGee testified that the average person, and even most long-
term drinkers with such high a BAC would have passed out; and he explained that
although some long-term drinkers could have sufficient alcohol tolerance to be walking
around, such a person would be extremely intoxicated, have impaired judgment, and
could act rashly and impulsively. Dr. McGee’s opinion did not require an instruction on
unconsciousness, as a very intoxicated person is not unconscious simply because he
demonstrates extremely bad judgment. (See People v. Ferguson, supra, 194 Cal.App.4th
at p. 1084.)
       Defendant also notes his lack of memory after firing the gun. A “professed
inability to recall the event, without more, [is] insufficient to warrant an unconsciousness
instruction. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 888.) “[W]hile ‘a
reviewing court’ must ‘assume that [the defendant’s] selective recollection was natural,
not feigned’ it is ‘far short of a claim or description of . . . coexistent unconsciousness.’”
(People v. Carlson, supra, 200 Cal.App.4th at p. 704.) Nevertheless, defendant
remembered the event well enough to describe it in detail. He did not lose his memory
until after he shot Sproson and confirmed she was dead.
       Defendant’s ability to describe the events in detail amply demonstrated that he was
not unconscious during that time. (Cf. People v. Halvorsen, supra, 42 Cal.4th at p. 418.)
Further, the “complicated and purposive nature of his conduct” prior to the shooting
provided substantial evidence of consciousness. (Ibid.) Defendant cleaned his gun and
put the cleaning kit away, and he was able to describe the steps he took in doing so.
Knowing he had a bullet in the chamber of the gun in his hand, defendant used two
count-downs and the threat of shooting Sproson to obtain her compliance. Then, after


                                              12
Sproson threw the magazine and turned her back to him again (and after she kneeled,
stumbled, or was pushed downward, as indicated by the trajectory of the bullet),
defendant raised the gun and pulled the trigger. He then checked her pulse, picked up the
casing and spent bullet, and returned to his own apartment to hide the gun. Defendant’s
own expert testified that these last actions took coordination and thought, indicating a
higher tolerance for alcohol than most people.7
       Not only did the facts demonstrate defendant’s consciousness, they also provided
substantial evidence of malice. “Malice is implied . . . when a killing results from an
intentional act, the natural consequences of which are dangerous to human life, and the
act is deliberately performed with knowledge of the danger to, and with conscious
disregard for, human life. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 596.)
Whether the defendant was aware of the danger and acted with a conscious disregard for
human life may be inferred from the circumstances and defendant’s acts leading up to the
killing. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 107-108.) In particular,
brandishing a loaded weapon during a heated argument, as defendant did here, implies
malice. (Id. at pp. 108-109.) Other circumstances included defendant’s familiarity with
the use of his gun, as shown by his sufficient understanding of its parts in order to clean
it, his custom of keeping a bullet in the chamber, and his intended shooting-range
practice; the physical violence that had erupted in past arguments with Sproson, and his
own testimony that Sproson had used force against him on more than one occasion, most
recently the month before the shooting; and defendant’s act in following Sproson to her
apartment with a loaded gun while threatening to shoot her. Further, as the jury found,
defendant fired the weapon intentionally. He admitted that he pulled the trigger, albeit


7      In contrast see People v. Lee (1999) 20 Cal.4th 47, 53, 58, where the evidence was
sufficient to require an instruction on unconsciousness: the defendant’s BAC was
estimated to have been between .33 and .39 percent; a witness testified that the defendant
appeared different, giving a blank stare as if he were ““possessed by a spirit’”; he was
staggering and falling against the wall as he got his gun; the witness heard a shot, came to
look, and saw the defendant holding the victim and begging her not to die; the gun was
on the floor.

                                             13
impulsively, and he did not testify that the gun accidentally discharged. We conclude
that under such circumstances, no rational jury could conclude that defendant was
unconscious or that he did not harbor a conscious disregard for the danger his actions
posed to Sproson’s life. Thus, instruction on the lesser offense of involuntary
manslaughter was unwarranted. (See People v. DePriest (2007) 42 Cal.4th 1, 50.)
       As involuntary manslaughter instructions were factually and legally unsupported,
counsel did not render ineffective assistance by not requesting them. (See People v.
Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
       If the trial court had erred in failing to instruct sua sponte on unconsciousness,
any such error would not implicate defendant’s constitutional right to due process and
would thus be reviewed under the harmless error test of People v. Watson (1956) 46
Cal.2d 818, 836, which asks whether an examination of the whole record reveals a
reasonable probability that the error affected the outcome. (People v. Breverman, supra,
19 Cal.4th. at p. 149, 165; Cal. Const., art. VI, § 13.) Under the same evidence and
reasoning by which we found that no reasonable jury would find unconsciousness, we
conclude that there would be no such probability; and further, we conclude beyond a
reasonable doubt that the omission of the instructions did not contribute to the jury’s
verdicts. (See Chapman v. California (1967) 386 U.S. 18, 24.)
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                  ____________________________, J.
                                                  CHAVEZ

We concur:

__________________________, P. J.
BOREN

__________________________, J.
HOFFSTADT


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