Filed 4/24/18 P. v. Fulkerson CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

HAROLD FULKERSON,

Defendant and Appellant.
C084042

(Super. Ct. No. 15F00520)




Following a jury trial, defendant Harold Fulkerson was convicted of second degree murder (Pen. Code, § 187, subd. (a)) with an enhancement for personally using a deadly weapon (§ 12022, subd. (b)(1)). Defendant admitted an on-bail enhancement and was sentenced to 15 years to life plus three years in state prison.
On appeal, defendant contends the trial court erred in failing to instruct sua sponte on involuntary manslaughter as a lesser included offense of murder based on unconsciousness due to voluntary intoxication. We shall affirm.
BACKGROUND
The Prosecution Case
In 2015 Danny Hillier lived in a two-bedroom apartment in Rancho Cordova. He rented out the other bedroom to his friends Teresa and Gary Anderson.
On the night of January 26, 2015, defendant, his girlfriend Alicia Atkins, and his mother Carol Scheile, Danny’s girlfriend, were partying at Danny’s apartment. They drank vodka that night but, according to Danny, no one used methamphetamine. At one point, defendant tripped and knocked loose a computer cord in Danny’s bedroom, causing him to cry and “call for his mommy.” Danny thought defendant drank almost an entire bottle of vodka that night.
The following morning, Kim Bushnell and her husband Clay Bushnell went to Danny’s apartment, where Danny introduced Kim and Clay to defendant, who was also present. Teresa was in her bedroom. Clay and Danny went to Danny’s bedroom to talk; defendant sat at the dining room table while Kim sat on a living room couch.
At some point, Kim observed defendant mumbling and being “weird and acting creepy.” His demeanor changed within a minute or two, being calm one minute and then “just jumped up and just got a rush.” Defendant stood up and said, “God, I’m cold, are you cold?” Kim answered that it was kind of cold. Defendant went into the kitchen, put something on the counter that made a glass-like “ting,” and put on gloves. He entered the bathroom that connected to the Andersons’ bedroom. Kim then heard “rough housing,” and a woman grunting and moaning.
Defendant came out of the bathroom a few minutes later. Kim saw a red smudge on his mouth. Kim told an officer that defendant was “completely wigged out” at the time. Danny and Clay then came out of Danny’s bedroom. Danny asked defendant if he was holding a knife in his hands. Defendant then put a knife with a red-stained blade behind his back. Defendant had a dark discoloration on his pants. Danny asked defendant about it; defendant said it was barbecue sauce. Defendant said his mother and stepmother thought he was crazy, but he was not. When Danny asked defendant what was going on, he replied nothing was going on.
Defendant went into the kitchen, where he removed his pants and washed them in the sink. Defendant tried to wash off his cell phone and dropped a 10-inch carving knife into a pan of water in the kitchen sink. He eventually put his blood-stained boots, pants, shirt, and gloves in the washing machine.
Danny went into the Andersons’ bedroom, where he found Teresa lying on the bed and completely covered with a blanket. After jiggling Teresa’s foot and getting no response, Danny pulled down the blanket.
Law enforcement was dispatched to the scene at 11:39 a.m. Teresa was dead when they arrived. She was lying across the bed wearing a shirt and boxer shorts. A blanket covered part of her lower torso, and the T-shirt was raised, exposing her stomach. Teresa received 17 stab wounds and five cut wounds, all consistent with being cut with a knife. She died from sharp force injuries to her neck, head, and upper shoulder; the fatal wounds sliced her jugular vein and her carotid artery. Defendant’s and Teresa’s DNA were found on defendant’s jeans and one of the gloves.
Danny and defendant were present when the deputies arrived. Defendant was detained on suspicion of murder at 11:54 a.m. He was cooperative and followed the deputy’s instructions. He was able to provide his date of birth, and, when asked for his address, said that he was homeless. The deputy did not smell alcohol on his breath.
Defendant’s blood was drawn at 8:54 p.m. on the day he was arrested. No alcohol was detected, but he had a low to normal range of tetrahydrocannabinol (THC) (53 nanograms per milliliter) and a low concentration of methamphetamine (40 nanograms per milliliter). Teresa had no alcohol in her bloodstream but had a high concentration of methamphetamine (487 nanograms per milliliter).
Alicia testified that defendant did not take any prescribed medications or see a doctor or mental health professional in the six months before the Teresa’s death. She had not seen him act crazy and he never told her that he heard voices. Defendant became angry and short-tempered when he drank. She never saw him use methamphetamine until the night of January 26.
On the morning of January 27, defendant was “frantic” and wished to accompany Alicia and his mother to their housecleaning job. Later that morning, defendant sent a text to Alicia stating that he loved her; this was out of character for defendant.
The Defense
Danny testified for the defense that defendant started drinking vodka as soon as he arrived on the night of January 26 at around 8:00 or 9:00 p.m. Everyone got along that evening. At one point, defendant tripped over a computer mouse cord, causing him to cry for over 30 minutes. Danny went to bed around 2:00 a.m.; Carol woke him up at around 4:00 a.m. because she thought defendant took her car. When defendant and Alicia returned at around 8:00 a.m., defendant resumed drinking vodka. Teresa had bumped her knee on a bicycle, so she went to lay down in her bedroom with an ice pack that morning.
Dr. Gregory Sokolov is the medical director of psychiatric services for the Sacramento County Jail. He treated defendant after defendant was admitted to jail following his arrest. Defendant was depressed with suicidal ideations at intake. He claimed to suffer from auditory hallucinations and thought people were watching him. His emotions fluctuated, and were changing and unstable. Two days later, he reported seeing things moving around him and hearing different voices.
Defendant was oriented to person, place, and date. There was no indication he suffered from disorganized or tangential thought processes. Defendant underwent a mental status evaluation within 24 hours of his arrest. It showed a linear and goal-directed thought process.
Defendant reported a history of substance abuse that included alcohol, methamphetamine, marijuana, and benzodiazepine, drinking up to a fifth of Jack Daniels and taking five milligrams of Xanax every day. He was initially diagnosed with depressive disorder and polysubstance use disorder.
The jail’s medical service placed defendant in the psychiatric unit and put him on an alcohol detoxification protocol. Upon his discharge from the psychiatric ward on February 3, defendant’s mental health had stabilized without psychiatric medications. This was consistent with stimulant induced mood psychotic disorder. Defendant’s discharge diagnosis was that he had stimulant mood disorder, tobacco use disorder, alcohol use disorder, severe cannabis disorder, stimulant use disorder, severe amphetamine disorder, benzodiazepine disorder, and a further evaluation would be needed to rule out psychotic disorder. The combined effects of these disorders could impair one’s attention span, memory, judgment, and decision-making, and cause impulsivity, hallucinations, and potentially, paranoid delusions.
Dr. Sokolov explained how methamphetamine use could produce psychotic-like symptoms. A person under the influence of methamphetamine may experience symptoms such as hallucinations, paranoid delusions, or disorganized thoughts or behavior. The symptoms could persist for a couple of days after the drug is last used, after which they usually went away while the person’s mental state improved.
Defendant’s reported auditory hallucinations needed additional evaluation because he was not observed responding to unseen others and did not seem internally preoccupied. Defendant had admitted to medical personnel that he fabricated his claim of auditory hallucination in order to stay in the psychiatric ward. He also gave medical personnel conflicting accounts of his alcohol consumption.
Carol saw defendant almost every day in the month before the incident, during which they frequently used methamphetamine together. Teresa used methamphetamine the night before she was killed; Carol did not see any conflict between Teresa and defendant that night. Defendant had several episodes in the months before the incident where he would act nervous, scared, and unsure of where he was going and what he and Carol were doing. He acted paranoid and worried someone was plotting to get him. Defendant also had violent outbursts for no reason. On the night of the January 26, defendant tripped over a computer cord in Danny’s room and cried for almost an hour. He acted paranoid for a couple of hours that night, telling Carol that he did not “trust them,” and needed to “stay here with [her] and protect [her] and stuff.” On the morning of the incident, as she and Alicia left for work, defendant had another episode and begged them not to leave.
Testifying on his own behalf, defendant recounted at length his history of substance abuse and mental health episodes. In the two months before Teresa’s death, defendant would sleep only a couple of hours at a time, sometimes staying awake for weeks.
Defendant had only a vague recollection of the events before Teresa’s killing. The evening before the killing, he partied at Danny’s apartment with Alicia and his mother, consuming Percocet, marijuana, Xanax, other drugs, and alcohol. He had been without sleep for at least a week. He cried hysterically that night because he thought Danny wanted to shoot him for tripping over a computer cord. He left the apartment with Alicia that night, returning with Alicia the next morning so she could go to work with Carol. He started “tripping out” when they prepared to leave for work because he wanted to leave with them. Defendant remembered just sitting there, drinking, and using his cell phone. He felt panicky, as if the walls were closing in on him and people were out to get him. He wanted to run away, but he thought he would get shot from the balcony if he left the apartment, so he went to Teresa’s room.
Defendant did not recall speaking to Kim. He was freezing at the time, something that happened when he got “flashes,” where he would be freezing cold and sweat at the same time. He wore gloves to stay warm.
Defendant went into Teresa’s bedroom because he was freezing cold and “tripping out . . . I needed to go somewhere safe, and I couldn’t get ahold of my mom.” He liked little animals, so defendant wanted to lie down and warm up with Teresa’s dog at the foot of her bed so that he would feel safe.
When he lay down at the foot of Teresa’s bed, Teresa “freaked out” and screamed when she saw him. Teresa sat up, grabbed a knife, and stabbed at defendant; defendant thought she was going to kill him. Defendant had to defend himself because Teresa forced him into a corner. He fought back in self-defense. Defendant took the knife away from her without being stabbed, but testified “I don’t really remember,” and it was “all kind of vague to me.” Everything happened very fast, and he did not think Teresa’s injuries were as severe as they were. Defendant testified, “I mean, it was real fast, like boom boom, and then that was it.” He continued, “It was over before, I mean, I really realized it. It was just off of instinct.” Defendant stopped when he felt safe. Asked if he put the cover over Teresa’s head, defendant replied, “I don’t remember any -- I don’t remember details like that.”
Defendant was in shock when he came out of the room. He was “just already freaked out, and then everybody was tripping out on me more, and that freaked me out even more.” He did not remember what he was doing regarding hiding the knife behind his back, and only vaguely recalled washing the knife and his pants in the sink. He took off his clothes and put them in the washer because he thought he had barbecue sauce on them.
Defendant did not think he did anything wrong because he defended himself. During his initial interview with the police, defendant denied killing Teresa because he wanted to go home.
DISCUSSION
Defendant contends the trial court prejudicially erred in failing to instruct sua sponte on the lesser included offense of involuntary manslaughter based on voluntary intoxication resulting in unconsciousness. We disagree.
“In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. [Citation.]” (People v. Martinez (2010) 47 Cal.4th 911, 953.) “A trial court must instruct the jury sua sponte on involuntary manslaughter as a lesser included offense of murder where, ‘there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense.’ [Citation.]” (People v. Turk (2008) 164 Cal.App.4th 1361, 1371 (Turk).)
“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.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive: section 26 describes as ‘[in]capable of committing crimes . . . [¶] . . . [¶] . . . [p]ersons who committed the act . . . without being conscious thereof.’ . . . Thus unconsciousness ‘ “can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting.” ’ [Citations.]” (Ochoa, at pp. 423-424.) A trial court must instruct sua sponte on involuntary manslaughter based on unconsciousness from voluntary intoxication if substantial evidence supports the finding. (People v. Halvorsen (2007) 42 Cal.4th 379, 418; People v. Breverman (1998) 19 Cal.4th 142, 175, fn. 22; Turk, supra, 164 Cal.App.4th at p. 1371 & fn. 6.)
According to defendant, there was substantial evidence that he “was unconscious due to involuntary and heavy intoxication, by being unaware of stabbing [Teresa] in a repeated and lethal manner, and/[or] by suffering from paranoid and psychotic-like delusions, including the delusion that [Teresa] was about to kill him with a knife, so as to trigger a sua sponte duty on the trial court’s part to instruct on the lesser included offense of involuntary manslaughter” as to the murder charge.
There is evidence that defendant was voluntarily intoxicated when he killed Teresa. There is also evidence he was suffering from some mental disorder related to paranoia when he killed her. But there is no evidence that he was unconscious during the killing. Defendant did not remember all the details of how he killed Teresa, but he nonetheless testified as to what he did in the encounter with Teresa that led to her death, as well as the events before and after. Defendant remembered being cold and putting gloves on, going into Teresa’s room, and his reason for going there. He remembered Teresa’s reaction to his lying down on the bed she was in, her trying to stab him with the knife, and his reaction to the alleged attack, taking the knife from Teresa and attacking her in purported self-defense. His actions after the murder are likewise consistent with him being conscious. Defendant remembered leaving the room, his mental state upon leaving, and how the reactions of the other occupants of the apartment worsened his mental condition. Defendant’s attempts to conceal that he had killed Teresa—hiding the knife blade, claiming the blood stain was barbecue sauce, and washing the knife and his clothing—show a consciousness of guilt and therefore that he was aware when he killed Teresa. A poor memory regarding some details of the killing does not support an instruction on unconsciousness.
Defendant’s reliance on People v. Bridgehouse (1956) 47 Cal.2d 406 (Bridgehouse), disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89, and People v. Wilson (1967) 66 Cal.2d 749 (Wilson), is unpersuasive.
These cases applied a former rule to the effect that if there was any evidence whatsoever supporting a defense, no matter how feeble, instruction thereon was required. (People v. Modesto (1963) 59 Cal.2d 722, 729; People v. Carmen (1951) 36 Cal.2d 768, 776-777; see Wilson, supra, 66 Cal.2d at p. 762.) As stated, the present rule is that a defendant is entitled to an instruction on unconsciousness through voluntary intoxication when supported by substantial evidence. Both cases turned on their unique facts. Bridgehouse involved a physically exhausted man, abruptly coming into the presence of his wife’s lover, whom he shot several times with a revolver; Bridgehouse testified he spoke to the man, then recalled “ ‘pulling the trigger on empty cartridges.’ ” (Bridgehouse, supra, 47 Cal.2d at pp. 409-411.) The court reduced the conviction of murder to voluntary manslaughter, based on lack of evidence of malice and the existence of extreme provocation. (Id. at pp. 413-414.) The court then stated that the instruction on unconsciousness should have been given, but did not order a retrial, although unconsciousness is an absolute defense. (Id. at p. 414.) Wilson held that Wilson’s testimony “that he did not remember shooting Washington or his wife and that he was distraught and mentally exacerbated by the evidence which preceded and precipitated his actions” was sufficient to trigger a duty to instruct on unconsciousness, based largely on the Bridgehouse case. (Wilson, at pp. 761-762.)
“Nothing in these facts even hints that defendant was so grossly intoxicated as to have been considered unconscious.” (People v. Abilez (2007) 41 Cal.4th 472, 516.) Voluntary intoxication and/or some form of mental disorder may be necessary conditions for an unconsciousness instruction, but they are not sufficient. Since all of the evidence shows defendant was conscious when he killed Teresa, the trial court was under no duty to instruct on unconsciousness through voluntary intoxication.
DISPOSITION
The judgment is affirmed.



RAYE , P. J.



We concur:



MURRAY , J.



HOCH , J.