Filed 12/29/15 P. v. Long CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068488

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SWF1103182)

DAYLE WILLIAM LONG,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Angel M.

Bermudez, Judge. Affirmed.

         Christine Vento, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and

Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
          A jury convicted Dayle William Long of second degree murder. (Pen. Code,1

§ 187, subd. (a).) The jury also found true an allegation that Long personally and

intentionally discharged a firearm causing death or great bodily injury. (§ 12022.53,

subd. (d).) The court sentenced Long to an indeterminate term of 40 years to life in

prison.

          Long appeals contending only that the trial court erred in failing to instruct that

voluntary intoxication could be considered with regard to the mental state of implied

malice. Long recognizes that section 222 does not permit such instruction. However

relying on his interpretation of a concurring opinion of Justice Ginsburg in Montana v

Egelhoff (1996) 518 U.S. 37 (Egelhoff), Long argues section 22 is unconstitutional and all

of the California cases which hold to the contrary were wrongly decided. Lastly, he

contends his trial counsel was ineffective because counsel did not request the instruction,

which appellate counsel deems essential.

          We are satisfied that the cases which have rejected Long's arguments were

correctly decided and we will follow them. We will also find the record does not support

a claim of ineffective assistance of trial counsel.




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

2      Section 22 was renumbered in 2013 to section 29.4. (Stats. 2012, ch. 162, § 119,
p. 2621.) We will continue to refer to section 22 which was the section number at the
time of the offense.
                                                 2
                                 STATEMENT OF FACTS

         Although the appellant's opening brief sets forth 32 pages of facts, Long does not

challenge the admissibility or the sufficiency of the evidence to support his conviction.

The questions presented in this appeal are purely questions of law, unaffected by the facts

of the offense. Accordingly, we will set forth a much shorter summary of the facts in

order to provide background for the discussion which follows.

         The offense in this case occurred in a bar where Long, an off duty Riverside

County Sheriff's Deputy, had been drinking for several hours. At some point Long's

interaction with several bar patrons deteriorated, leading to an argument, which tragically

ended with Long shooting one of the patrons.

         At around 3:00 p.m. on December 21, 2011, Long arrived at Spelly's restaurant in

Murietta. Long met a friend at the bar and they sat and drank alcoholic beverages for a

while.

         At about 4:00 p.m. April Reilly,3 her brother Sam Vanettes, Danny Burnside, and

Chris Hull arrived at Spelly's. After a while April's group made contact with Long and

the two groups played darts and drank together.

         Long's friend left the bar at about 6:45 p.m. Around 8:00 p.m., the relationship

between Long and April's group began to deteriorate. Long and Sam got into a heated

argument about whether certain streets in Orange County intersected each other.




3      In the same fashion as the parties have done in their briefs, we will refer to the
patrons who arrived by their first names for convenience. No disrespect is intended.
                                              3
       April testified that Long was intoxicated, grouchy and slurred his words. He had a

"mean" expression on his face. April said that at some point Long appeared to challenge

Sam to a fight. April and Danny attempted to intercede. Danny noticed Long had a gun.

Long said he was a "cop."

       Sam attempted to calm things down and approached Long. Sam put his hand on

Long's shoulder and hip in a nonaggressive fashion. Long pushed Sam away and pulled

out his gun.

       Long held his gun with two hands, extended his arms and pointed the gun at Sam.

Sam told him to put the gun away, but Long fired three rapid shots at Sam, paused and

fired two more shots. Sam died of gunshot wounds to his chest, abdomen and his face.

       The defense called several witnesses to impeach the version given by the victim's

friends. Long also testified on his own behalf.

       Long said he was a trained law enforcement officer who had been trained on how

to react to dangerous situations. He said at one point Chris threatened to take his gun

away and kill him. Long said he was afraid of the threats. Long thought Sam was going

to grab his gun and that he fired because he was afraid.

       The defense also called an expert in use of force by police. Based on a

hypothetical that mirrored the facts of this case, the expert opined that Long's use of force

was proper in this case.




                                             4
                                      DISCUSSION

                                             I

                           SECTION 22 IS CONSTITUTIONAL

       Long contends he was denied due process and the Sixth Amendment rights to

present a defense and to enjoy the effective assistance of counsel. He argues that section

22 is unconstitutional because it denied him the right to have the jury consider the effect

of his voluntary intoxication on his ability to harbor implied malice. He contends the jury

should have been able to consider the impact of his voluntary intoxication on whether he

acted with conscious disregard for human life.

       By way of preface, Long's defense at trial was not that he was intoxicated. In fact

he denied he was drunk. Rather his defense was he acted properly in self-defense based

upon his law enforcement training. The trial court did give an instruction that the jury

could consider voluntary intoxication as it might relate to express malice and the related

intention to kill a human being.4




4       The trial court gave the jury CALCRIM No. 3426, as follows: "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 intent to
kill. [¶] 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. [¶] In connection with
the charge of murder or the lesser included offense of manslaughter, the People have the
burden of proving beyond a reasonable doubt that the defendant acted with intent to kill.
If the People have not met this burden, you must find the defendant not guilty. [¶] In
connection with the charge of first degree murder, the People have the burden of proving
beyond a reasonable doubt that the defendant acted with premeditation and deliberation.
If the People have not met this burden, you must find the defendant not guilty."
                                             5
                                    A. Legal Principles

       In 1994, the California Supreme Court held that evidence of voluntary intoxication

was admissible with regard to the mental state of implied malice. (People v. Whitfield

(1994) 7 Cal.4th 437, 451.) The following year the Legislature amended section 22 to

limit the relevance of voluntary intoxication to express malice. Express malice being

found in the intention to unlawfully kill a human being. Section 22 as enacted in 1995

provides:

            "(a) No act committed by a person while in a state of voluntary
            intoxication is less criminal by reason of his or her having been in
            that condition. Evidence of voluntary intoxication shall not be
            admitted to negate the capacity to form any mental states 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, or, when
            charged with murder, whether the defendant premeditated,
            deliberated, or harbored express malice aforethought. [¶] (c)
            Voluntary intoxication includes the voluntary ingestion, injection, or
            taking by any other means of any intoxicating liquor, drug, or other
            substance."

       In People v. Martin (2000) 78 Cal.App.4th 1107, 1114, the court held "[i]t is clear

that the effect of the 1995 amendment to section 22 was to preclude evidence of

voluntary intoxication to negate implied malice aforethought." Other appellate courts

have reached the same conclusion. (People v. Carlson (2011) 200 Cal.App.4th 695, 705-

706 [Fourth District, Division Three]; People v. Turk (2008) 164 Cal.App.4th 1361, 1375

[Fourth District, Division One]; and People v. Timms (2007) 151 Cal.App.4th 1292, 1298

(Timms) [First District, Division Four].)


                                              6
       Although the California Supreme Court has not directly addressed this issue, in a

footnote, which is arguably dicta, in People v. Boyer (2006) 38 Cal.4th 412, 469, footnote

40, the court observed: "In 1995, section 22 was amended to provide prospectively that

when the charge is murder, 'voluntary intoxication is admissible solely on the issue . . .

whether the defendant premeditated, deliberated, or harbored express malice

aforethought.' [Citation.] Hence, 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, or of voluntary

manslaughter, based on his or her potentially lethal act, committed with 'conscious

disregard' for life, in response to provocation or as the result of an honest, though

unreasonable belief in the need for self-defense."

       In People v. Atkins (2001) 25 Cal.4th 76, 93, the court rejected the argument that

exclusion of evidence, under section 22, of the defendant's voluntary intoxication

"violate[d] his due process rights by denying him the opportunity to prove he did not

possess the required mental state." In People v. Sorden (2005) 36 Cal.4th 65, 72, the

court reaffirmed the view it took in Atkins, relying on the United States Supreme Court

decision in Egelhoff, supra, 518 U.S. at pages 39 to 40 and 56.

       In Egelhoff, supra, 518 U.S. 37, a plurality of the court concluded that consistent

with long established common law, a state could restrict the use of evidence to limit

culpability for criminal acts done while voluntarily intoxicated. The crime at issue was

murder defined as intentional and purposeful killing. The court held that Montana's rule

precluding the use of evidence of voluntary intoxication for such offense did not violate

                                              7
principles of due process, as the common law has long limited the use of evidence of

voluntary intoxication to limit culpability. (Id. at p. 56.)

       In her separate opinion, Justice Ginsburg concurred in the result because she

interpreted Montana's statute to redefine the elements of homicide, which it was

constitutionally entitled to do. (Egelhoff, supra, 518 U.S. at pp. 57-60 (conc. opn. of

Ginsburg, J.).)

       In this case, Long contends that the amendment to section 22 was merely an

evidentiary rule and thus impermissibly limited the availability of relevant, exculpatory

evidence and is therefore unconstitutional. That argument was specifically rejected by

the court in Timms, supra, 151 Cal.App.4th at pages 1300 to 1301. There the court

concluded that the amendment limiting the availability of voluntary intoxication as a

defense was a policy statement by the Legislature. With regard to homicides with

"implied malice," the amendment is a judgment that effects the circumstances under

which individuals may be held criminally responsible for their actions. The court found

that the amendment of section 22 was consistent with the principles established in

Egelhoff, supra, 518 U.S. 37. (Timms, supra, at p. 1301.)

                                         B. Analysis

       Long candidly recognizes the controlling California authority contrary to his

position. At base, he contends the cases are all wrongly decided. Based on a portion of

the legislative history of the amendment, Long concludes the amendment establishes an

evidentiary rule that would not be acceptable under Justice Ginsburg's concurring opinion

in Egelhoff, supra, 518 U.S. 37. Respectfully, we disagree.

                                               8
       We think the courts, which have previously rejected the same challenge, were

correct. We are certainly in agreement with the decision in Timms, supra, 151

Cal.App.4th 1292 where the court concluded the Legislature was making a policy

statement on the proper role of voluntary intoxication for crimes committed by persons

under such influence. It is noteworthy that the statute allows such evidence to address the

existence of specific intent to kill and the resulting state of expressed malice arising from

the specific intent.

       The mental state of implied malice arises from conscious disregard of risk to

human life. The Legislature could reasonably conclude that persons who are voluntarily

under the influence of intoxicating substances, who commit dangerous acts leading to

death of another should not have their culpability reduced. Such purpose complies with

principles of due process as articulated in Egelhoff, supra, 518 U.S. 37. There was no

denial of due process or the right to present a defense in this case.

                                              II

                       INEFFECTIVE ASSISTANCE OF COUNSEL

       Appellate counsel argues that trial counsel was ineffective for failing to request a

jury instruction on voluntary intoxication as it impacts implied malice. We will not pause

long with this argument

       First, we have established there was no legal basis for such instruction and that it

would have been error for the trial court to give it. Second, the defense in this case was

not intoxication. The defense was that Long acted reasonably in self-defense. He was a

trained law enforcement officer who was faced with dangerous criminal threats and that

                                              9
he acted reasonably in light of his extensive training. Long denied that he was

intoxicated. He said he was "buzzed," but not drunk.

       Nor can we lose sight of the actual events in this case. Long engaged in conflict

with the victim and his friends. The problems escalated when Long produced a gun,

which aggravated the encounter, rather than calming it. The shooting itself involved

Long using a two-hand stance with the pistol with arms extended. He shot the unarmed

victim three times, paused briefly and shot him two more times.

       The jury was instructed on voluntary intoxication as it related to intent to kill and

express malice. They found Long guilty of second degree murder and found he

personally, and intentionally discharged his firearm causing death. In our view it is

utterly inconceivable that an instruction that voluntary intoxication could negate implied

malice would have likely produced a different result.

       Where a defendant claims ineffective assistance of counsel the defendant bears the

burden of proof. The defendant must establish that counsel performed below the level of

competency and that in the absence of the error a different result would have been

reasonably likely. (Strickland v. Washington (1984) 466 U.S. 668, 687.) In this case,

Long has not shown any error by trial counsel and has not shown any reason to think a

different result would have been likely.




                                             10
                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, Acting P. J.

WE CONCUR:


              McDONALD, J.


                   AARON, J.




                                    11
