Opinion
A128410 Contra Costa County Super. Ct. No. 051000629
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMIE BENNETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Jamie Bennett was convicted of assault with a deadly weapon on a peace officer and resisting an executive officer, enhanced due to his use of a deadly weapon. Bennett now argues that the trial court, on its own motion, should have instructed the jury on involuntary intoxication and unconsciousness and asks us to reverse the judgment. Because these instructions are part of a defense theory that was not established at trial or widely recognized in published authority, we disagree. Bennett also argues there was insufficient evidence to support the imposition of a probation report fee, and asks us to remand to the trial court to reconsider imposition of the fee. Because Bennett did not object to the imposition of the probation fee, we refuse to do so. Thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Ingrid Melendez believed Jamie Bennett, her friend and neighbor, was committing suicide. Officers Chang, Hewitt, and Nissen responded to her 9-1-1 call. The three officers checked the perimeter of Bennett's house and announced their presence. Unable to see inside, the officers went to the front door and knocked. Bennett soon came to the door, opened it slightly, and told the officers to leave.
Officer Nissen told Bennett that they were there to check on his well-being. During the conversation, Nissen noticed Bennett was holding an aluminum bat, and instructed him to put it down. Bennett refused. Officer Nissen took precautions and reached for her Taser. As she did, Bennett moved to grip the handle of the bat, and Nissen reacted by firing an errant Taser shot. Bennett then tried to close the door. The officers resisted and kept the door ajar after Nissen stuck her foot in the doorway. Nissen removed her foot from the doorway when she remembered Bennett was armed with the bat, and the door closed.
Concerned that Bennett was a danger to himself and others, the officers decided to force entry into his house. Officer Hewitt kicked open a hole in the door. Bennett then struck Hewitt twice with the bat. Hewitt continued trying to break down the door while Bennett thrust the bat at the officers several more times. Bennett soon retreated into the house, and the officers eventually apprehended him.
Bennett was charged with assault with a deadly weapon upon a police officer (Pen. Code, § 245, subd. (c) ) and resisting an executive officer (§ 69). A deadly weapon enhancement was added to the resisting count. (§ 12022, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise specified.
At trial, Bennett explained that he attempted to commit suicide by taking Vicodin and ingesting helium. When the attempt failed, Bennett took a shower, watched television, and did household chores. He later fell asleep and woke to the sound of officers knocking, at which point he grabbed the bat and answered the door. Bennett said that when he went to the door he was disoriented. He thought someone was trying to break into the house, and he was trying to protect himself and the house from burglary. He did not know the trio were police officers.
Bennett's counsel did not request an instruction on involuntary intoxication or unconsciousness, nor did his counsel argue a theory of defense that included these concepts. Rather, the court instructed that voluntary intoxication is not a defense to assault with a deadly weapon on a peace officer. (CALCRIM No. 860.) The jury found Bennett guilty of both crimes and found the enhancement to be true. The trial court placed Bennett on probation and sentenced him to a year in county jail, minus his accrued credit of 252 days. (§§ 2900.5 & 4019.) The trial court also imposed several fines and fees on Bennett, including a $176 probation report fee, which Bennett did not object to. He timely appealed.
DISCUSSION
I. The Trial Court Had No Duty to Instruct Sua Sponte
A defendant's unconsciousness that is not induced by voluntary intoxication is a complete defense to a criminal charge. (§ 26; People v. Halvorsen (2007) 42 Cal.4th 379, 417.) Bennett argues that the trial court should have instructed the jury that he would not be guilty of assault or resisting if his actions were taken while unconscious as a result of involuntary intoxication. He claims the trial court's failure to instruct on involuntary intoxication (CALCRIM No. 3427) and unconsciousness (CALCRIM No. 3425) on its own motion was prejudicial and requires reversal of the judgment. We review alleged instructional errors de novo and view the evidence in the light most favorable to Bennett. (People v. Shaw (2002) 97 Cal.App.4th 833, 838; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674.)
Bennett sets forth this argument. Because he took the pills and helium with the intention of committing suicide rather than becoming intoxicated, he did not intentionally become intoxicated, and thus he is not liable for actions taken while unconscious. (See CALCRIM Nos. 3425, 3427.) But we know no binding authority, and none was presented, that recognizes intoxication resulting from a failed suicide attempt to be involuntary. Bennett relies on People v. Chaffey (1994) 25 Cal.App.4th 852, 856 (Chaffey), where the Second District opined that, in certain circumstances, a trier of fact could find such intoxication involuntary. But, as the Chaffey court recognized, "[u]ndisputed facts do not necessarily lead to undisputed conclusions concerning those facts." (Id. at p. 857.) While the trial court in Chaffey could have found the defendant's intoxication was involuntary, there was substantial evidence to conclude otherwise and the court of appeal affirmed her conviction. In Chaffey the defendant ingested Xanax in a suicide attempt, and the trial court could conclude that it was reasonably foreseeable the defendant could do something harmful while intoxicated by the drug before it made her fall asleep. (Id. at pp. 857-858.) So, too, here. But the evidence did not compel the court sua sponte to give the desired instruction. Even if the evidence of defendant's disorientation could be construed to support a claim that he was unconscious as a result of involuntary intoxication, this theory of defense was not presented at trial, was not supported by expert testimony as was the state of defendant's unconsciousness in Chaffey, and as far as we can tell, is not generally accepted.
A trial court must instruct sua sponte only on "general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) And a trial court should instruct on every theory of the case supported by substantial evidence. (Ibid.) But a trial court need not give, without request, pinpoint instructions—specific points or special theories—that might be applicable to the case. (People v. Saille (1991) 54 Cal.3d 1103, 1120; People v. Warren (1940) 16 Cal.2d 103, 117.)
The instructions sought on involuntary intoxication and unconsciousness are part of a special theory neither advanced by the defense nor independently cognizable by the trial court. We cannot expect the trial court to conceive such a theory on its own, and we cannot require a judge to instruct on a theory not presented by the defense and not well established by authority. (See People v. Wade (1959) 53 Cal.2d 322, 334, disapproved on another ground in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.) The instructions may be standard, but the theory is not, and it goes too far to say that the trial court should have instructed on Bennett's possible involuntary intoxication on its own motion.
Bennett first presented his involuntary intoxication defense in this appeal. He did not rely on the defense at trial. The trial court had no sua sponte duty to instruct on involuntary intoxication and unconsciousness as those concepts may have had a bearing on Bennett's failed suicide attempt.
II. The Challenge to the Probation Report Fee is Forfeited
Section 1203.1b authorizes the recovery of costs incurred in preparing probation reports. In short, the defendant can be required to pay the cost of preparing the report, provided that cost is not excessive. (§ 1203.1b, subd. (a).) So long as the defendant does not waive his right, the trial court must determine the defendant's ability to pay and afford the defendant a hearing. (§ 1203.1b, subd. (b).) Here, the trial court imposed several fees on Bennett, including a $176 probation report fee. Bennett argues there is insufficient evidence that the fee constitutes the reasonable cost of the report and that he has the ability to pay it. He asks us to remand the matter to the trial court for the required determinations.
However, Bennett did not object to the imposition of this fee at sentencing. The issue, then, is whether Bennett's failure to object forfeits his claim on appeal, in accordance with the general rules of forfeiture. (See People v. Welch (1993) 5 Cal.4th 228, 232-37.) Bennett argues that because he is challenging the sufficiency of the evidence, his claim should not be deemed forfeited.
He bases his argument on People v. Pacheco (2010) 187 Cal.App.4th 1392, 14001401 (Pacheco), where the Sixth District struck a monthly probation fee, and other fines and fees, on the basis of insufficient evidence, despite no objection at trial. But the Pacheco court applied two cases where a defendant's failure to challenge the fees of appointed counsel were deemed not to have been forfeited. (Id. at p. 1397.) In one, the attorney did not object to his own fees, and the court held the insufficiency of evidence of the defendant's ability to pay attorney fees could be challenged for the first time on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1214 (Viray).) In the other, a statutory provision (§ 987.8) required an express finding before ordering a defendant to pay attorney fees. In reliance on the general rule that, in the absence of a guilty plea, a defendant can challenge insufficiency of evidence to support a finding for the first time on appeal, the court discussed but did not reach the fee issue. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 (Lopez).) Pacheco, Lopez and Viray are not persuasive.
The reason to excuse a defendant's failure to object to counsel fees is obvious. Counsel, who is expected to make the objection, has a stake in a fee reimbursement order. In such cases, one can excuse a defendant's possible waiver. But there is no such potential compromise of a defendant's interests when the objection is directed at a probation fee. Moreover, the insufficient evidence exception to the forfeiture rule that Bennett relies upon here does not generally apply in a sentencing context. The failure of a sentencing court to properly make or articulate its discretionary sentencing choices may not be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 852.) The forfeiture rule applies and will bar a challenge to the evidentiary basis for court imposed fees unless first raised in the trial court. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; see also People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 [considerations of fairness and orderly and efficient administration of the law warrant application of the forfeiture doctrine to bar substantial evidence challenge to the amount of a restitution fine.].) Bennett forfeited his right to challenge the probation report fee by his failure to object to it in the trial court. He presents no argument that convinces us to depart from the application of the forfeiture doctrine.
DISPOSITION
The judgment is affirmed.
Siggins, J.
We concur:
McGuiness, P.J.
Pollak, J.