P. v. Mason

Filed 5/26/06  P. v. Mason CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT  OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County.  Vilia G. Sherman, Judge.  Affirmed.

Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.

When defendant's girlfriend came back from a weekend trip with another man, defendant slashed and stabbed her face with his hunting knife; as she attempted to defend herself, he also cut her hands and arms.  He estimated that he spent 10 minutes stabbing her.  Finally, he put her out of her misery by cutting her throat.  An autopsy revealed over 200 separate wounds.

Defendant, too, sustained a number of wounds, including deep gashes on his neck and wrist.  He told the police that his girlfriend started the affray by picking up the knife and cutting him during an argument.  At trial, however, he admitted that she had not cut him at all; instead, he claimed that she had provoked him, by announcing that she had had unprotected sex with other men.  Although he admitted inflicting her wounds, he claimed to have no recollection of doing so.  When he realized what he had done, he testified, he tried to kill himself.

Defendant was found guilty of first degree murder (Pen. Code, §§  187, subd. (a), 189), with a torture-murder special circumstance (Pen. Code, §  190.2, subd. (a)(18)) and with an enhancement for personal use of a deadly weapon (Pen. Code, §  12022, subd. (b)(1)).  He was sentenced to life without the possibility of parole, plus one year.  He now contends:

1.  The trial court erred by failing to instruct on the lesser included offense of involuntary manslaughter, based on unconsciousness due to voluntary intoxication.

2.  Defendant's trial counsel rendered ineffective assistance by failing to request instructions on involuntary manslaughter based on voluntary intoxication, and also by failing to request instructions that voluntary intoxication could negate premeditation, deliberation, and specific intent.

3.  There was insufficient evidence of intent to torture to support the torture-murder special circumstance.

We find no prejudicial error.  Hence, we will affirm.

I

FACTUAL BACKGROUND

Defendant lived with his girlfriend, victim Charlene Canis.  In January 2002, Eric Sumner moved into the same apartment building.  Eric became friendly with defendant and Charlene; they would have him over for drinks or dinner.  Charlene was planning on moving to a house.  One day, in Eric's presence, Charlene told defendant, â€