People v. Keating CA4/1

Filed 7/9/15 P. v. Keating CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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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