Paragraph eleven reads: "During the interview, Rothwell at times explained she was really drunk during the incident. However, she also denied feeling "buzzed," explaining she could "see straight" and was not falling down drunk. She also admitted she drinks "a little bit" and takes medical marijuana everyday. Rothwell said she takes Lexapro for anxiety and depression and that she had taken her medication the night of the incident. Rothwell told police she has anger problems and when her father died two years ago it "kinda pushed" her over the edge. She admitted to stabbing a friend Alex Montes in the arm approximately a year and one-half before when they were drunk and playing around. Rothwell explained she was not mad at Montes, but he had said 'you won't [stab me],' so she did. Rothwell agreed there were similarities about the two incidents with Rivas and Montes because each man had dared her to stab him."
SSRI Stories Note: The Physicians Desk Reference states that antidepressants can cause a craving for alcohol and can cause alcohol abuse. Also, the liver cannot metabolize the antidepressant and the alcohol simultaneously, thus leading to higher levels of both alcohol and the antidepressant in the human body.
http://www.leagle.com/unsecure/page.htm?shortname=incaco20100422068 PEOPLE v. ROTHWELL
THE PEOPLE, Plaintiff and Respondent,
SAMANTHA ELIZABETH ROTHWELL, Defendant and Appellant.
Court of Appeals of California, Fourth District, Division Three.
Filed April 22, 2010.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSO'LEARY, Acting P. J.
Samantha Elizabeth Rothwell appeals from a judgment after a jury convicted her of second degree murder and found true she personally used a deadly or dangerous weapon, a knife, in the commission of the crime. Rothwell argues her federal constitutional rights were violated when the trial court refused to instruct the jury to consider evidence of her intoxication in determining whether she acted with conscious disregard for human life. We disagree and affirm the judgment.
FACTS[ 1 ]One afternoon, a group of 10 to 15 friends rented a room at the Hotel Huntington Beach to celebrate Nicole Alcala's birthday. Rothwell, one of the invitees, and her friend, Kristina Torres, arrived around 8:30 p.m. Marc Bellatiere and his girlfriend, Jennifer Mulcahy, were at the party when Rothwell and Torres arrived. Mulcahy also invited her brother Ryan Soto. Eighteen-year-old Walter Rivas was also at the party.
Sometime in the evening, the group went to the beach to meet with friends. Rothwell chose to stay at the hotel. When the group returned sometime after midnight, Soto recalled that Rothwell "didn't seem like herself." While some people started getting ready for bed, Bellatiere went outside to the fifth floor stairwell landing to smoke a cigarette. Mulcahy, Torres, Rothwell, and Rivas joined him. For the first five to 10 minutes, the mood was fine. However, the atmosphere changed when Rivas began talking about seeing God the last time he was in Huntington Beach. Rothwell became upset and ordered Rivas to not "talk about God. I don't like hearing about that stuff." Rivas was taken aback by Rothwell's response and asked her why. She replied, "It's because I'm the devil," and demanded Rivas "stop talking about it." Rivas responded, "I'll talk about whatever I want." Rothwell threatened, "If you don't stop talking, shut up, I'll stab you." No one in the group took Rothwell's threat seriously. Rivas said jokingly, "If you are going to do it, do it," and continued to talk about God. Rivas was not threatening, did not make any aggressive moves toward Rothwell, and made no physical contact with her.
Rothwell walked to the hotel room and flung the door open. Mulcahy followed and tried to calm her down. Rivas stayed on the landing talking with Torres. When Rothwell and Mulcahy entered the hotel room, it was dark and everyone was sleeping. Rothwell went to the side of the bed where her belongings were located and began digging through her purse while saying, "Fuck this guy . . . he can't be talking to me like this." Mulcahy tried to grab Rothwell and calm her down, but Rothwell pulled away and left the room.
Rothwell returned to the stairwell and headed straight for Rivas. Rothwell swung her closed fist toward Rivas's neck. Rivas was substantially taller than Rothwell and struggled against her, but she stabbed him in the jugular vein and in the back. When Rothwell took her arm away, Rivas was bleeding profusely and said, "That bitch fucking stabbed me. That bitch fucking stabbed me." Bellatiere and Torres walked Rivas back to the hotel room where they had him lay on the bathroom floor.
Rothwell returned to the room and quickly gathered her things to leave. Soto asked, "Why did you do it? What happened?" and Rothwell responded, "It wasn't a big fucking deal, get over it," or "Get the fuck over it. Fuck you," and left the room passing a bloody Rivas. Rothwell left bloody fingerprints on the stairwell railing as she left. Someone called 911.
Bellatiere, Mulcahy, and Soto left the hotel scared and panicked while Alcala and Torres tended to Rivas. The group drove down the street and parked. Bellatiere left because he was the only one in the group who was over 21 years old and had brought alcohol for the party, which included underage party guests. Bellatiere, Mulcahy, and Soto called Mulchay's mother and asked what they should do. As a result of that conversation, about one hour later, Bellatiere, Mulcahy, and Soto returned to the hotel. Bellatiere and Mulcahy spoke to police who were at the hotel.
Rivas died at the hospital. An autopsy determined he bled to death as a result of an L-shaped stab wound in the left jugular vein of the neck. Rivas had a blood alcohol level of .09% before his death. He would have needed four and one-half to five drinks to reach that level.
Police officers arrested Rothwell the next day at her apartment in Valencia. Officer Michael Reilly executed a search warrant and found her purse and backpack. In a small pocket of her backpack, he found a folding knife with dried blood on it. Dried blood was also found on her backpack, tennis shoes, and pants. Inside Rothwell's purse, Reilly found a McDonald's receipt from earlier that morning at 2:39 a.m. for a double cheeseburger and chicken nuggets.
Later that day, officers interviewed Rothwell at the Huntington Beach Police Department. After waiving her Miranda[ 2 ] rights, Rothwell told police she consumed three beers and two or three shots of alcohol and vomited while the others were at the beach. Rothwell explained that while having a cigarette on the fire escape, she had a conversation with Mulcahy about how she used to cut herself, which sparked an argument with Rivas. She recalled Rivas said he "found God in Huntington Beach," but said it did not make her upset and she was joking when she said the devil visited her. She explained Rivas had been drinking and yelled at her to stab him. In response, she walked back to the hotel room and got her knife. She denied saying she was going to stab Rivas. When she went back to the stairwell, Rothwell alleged Rivas was taunting her to "stab me like that." Rothwell explained the two were wrestling and she was trying to get away when she swung three times at his stomach and back and inadvertently stabbed him in the neck. Rothwell explained Torres was screaming at her to stop, but she was "drunk" and "pissed off" because Rivas had yelled at her and was grabbing her by the arms. She told police that after she stabbed Rivas, he said, "You got me," and "[She] killed him." Rothwell admitted seeing Rivas laying on the floor bleeding profusely but gathered her belongings and left the hotel room because she was terrified and realized he might die. Rothwell recalled saying, "tell everybody to go to hell" to Mulcahy's friend Marshall who had followed her down the stairs. Rothwell explained that when she left the hotel she drove to McDonald's and purchased a double cheeseburger and chicken nuggets. Rothwell explained she then went home and waited for the police to come and arrest her.
During the interview, Rothwell at times explained she was really drunk during the incident. However, she also denied feeling "buzzed," explaining she could "see straight" and was not falling down drunk. She also admitted she drinks "a little bit" and takes medical marijuana everyday. Rothwell said she takes Lexapro for anxiety and depression and that she had taken her medication the night of the incident. Rothwell told police she has anger problems and when her father died two years ago it "kinda pushed" her over the edge. She admitted to stabbing a friend Alex Montes in the arm approximately a year and one-half before when they were drunk and playing around. Rothwell explained she was not mad at Montes, but he had said "you won't [stab me]," so she did. Rothwell agreed there were similarities about the two incidents with Rivas and Montes because each man had dared her to stab him.
Rothwell cried while she told police she did not mean to kill Rivas. When she heard about Rivas's death she "felt sick" and felt bad for his family. Rothwell did not know what made her do it and admitted she is "not right."
An indictment charged Rothwell with murder in violation of Penal Code section 187, subdivision (a).[ 3 ] The indictment alleged she personally used a knife, a dangerous and deadly weapon, in the commission of the crime, pursuant to section 12022, subdivision (b)(1).
At trial, the prosecutor offered Montes's testimony. Montes testified he was a good friend of Rothwell, had known her for three years, and would see her everyday. Montes explained a conversation he had with Rothwell in which she told him that she did not believe in God because her father told her to say her prayers and when Rothwell woke up in the morning, her father was dead. He testified Rothwell would get upset and very emotional if the topic of God was discussed. He recalled she would say, "Don't ever bring God up in my house again. I don't believe it." Despite her anger about any discussion of God, he never saw Rothwell pick up a weapon or heard her say she would stab someone for talking about God. Montes recalled a night when he and Rothwell were "playing around" and Rothwell said, "if you make me mad enough I'll stab you." Not taking Rothwell seriously, Montes explained he said jokingly, "you won't stab me" and stuck his arm out. In response, she pushed the knife into his arm, drawing blood. She apologized the next day, and Montes still considers her a close friend.
Mulcahy also testified for the prosecution. Mulcahy was a friend of Rothwell from high school and stayed in touch weekly. Mulcahy testified Rothwell appeared to be fine when she entered the party. She explained it was the first time Rivas and Rothwell had met. She believed Rothwell was not religious but was also not an atheist. She also knew Rothwell carried a knife for protection and could get very angry. Mulcahy testified everyone drank throughout the night.
The prosecutor also offered the testimony of a forensic scientist, Annette McCall. McCall testified blood samples gathered from the scene compared with known samples of Rivas's DNA revealed Rivas could "not be eliminated as a source." She also testified blood samples gathered from Rothwell's backpack and knife compared with known samples of Rivas's DNA revealed Rivas could "not be eliminated as a source."
Rothwell offered Torres's testimony. Torres explained she and Rothwell were best friends. Torres said they "probably smoked marijuana" before going to the hotel and she saw Rothwell smoking marijuana throughout the night. Torres described Rivas as always having a smile on his face. According to Torres, Rivas and Rothwell were talking about religion on the landing and Rivas said he saw God on the beach. Rothwell said, "I'm the devil." Torres explained Rivas was calm and Rothwell was yelling and then left briefly. Torres recalled that when Rothwell returned, it appeared as though she was dancing with Rivas. She eventually realized it looked confrontational and Rivas was trying to push Rothwell away. Torres testified she never saw a knife. She saw the blood pouring from Rivas's neck but did not think he would die. Torres helped Rivas until the paramedics arrived. She remembered Rivas saying, "Tell my mother I love her." She stated Rothwell gathered her belongings and left the hotel room. Torres thought she heard Rothwell say upon her departure, "It's no big deal, fucking deal with it." Torres said Rivas had not been confrontational or argumentative with Rothwell that night or in the past. However, Torres explained Rothwell becomes confrontational whenever the subject of God comes up. Torres also explained that if someone tells Rothwell not to do something, she will do it. Furthermore, if someone dares Rothwell to do something, she will. Torres testified she witnessed the stabbing of Montes by Rothwell, which was the result of a dare. Torres also testified "`[Rothwell] goes from zero to maniac . . . if you push her button.'"
Torres admitted lying to the police to protect Rothwell. She tried to protect Rothwell because she knew what Rothwell did was wrong and it was no accident. Torres explained she called Christian Robinson, Rothwell's boyfriend, and told him that Rothwell had stabbed someone. Two days later, Torres felt she could no longer protect Rothwell and typed a statement to police that she both faxed and hand delivered. In the statement, she explained Rothwell had stabbed Rivas. She also reported Rothwell said to Rivas, "Oh yeah, oh, you don't think I won't. You think I won't."
The trial court instructed the jury on first degree murder and second degree murderboth on the implied malice and no premeditation theoriesand involuntary manslaughter. Rothwell's counsel requested CALCRIM No. 3426, the voluntary intoxication instruction. The prosecutor objected based on Rothwell's statement she was not buzzed. The trial court expressed a preference for CALCRIM No. 625, a voluntary intoxication instruction that pertains directly to homicide. Defense counsel requested CALCRIM No. 625 be modified to add malice aforethought, which includes implied malice. The requested instruction (the Special Instruction) provided: "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 an intent to kill, or the defendant acted with deliberation and premeditation, or acted with malice aforethought. [¶] 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. [¶] You may not consider evidence of voluntary intoxication for any other purpose." The court declined to instruct the jury with the Special Instruction. Instead, the court instructed the jury with CALCRIM No. 625 without the "or acted with malice aforethought" language.
The jury convicted Rothwell of second degree murder and found true the allegations she personally used a deadly or dangerous weapon, a knife. The trial court sentenced her to prison for a total term of 16 years to life.
DISCUSSIONRothwell contends her federal constitutional rights to due process and a fair trial were violated when the trial court, relying on section 22, refused to instruct the jury it may consider her voluntary intoxication to negate implied malice. Specifically, she argues section 22, subdivision (b), is unconstitutional because it was designed to keep out relevant, exculpatory evidence and is not a redefinition of the mental state element of the offense. We disagree.
Due Process and Fair Trial
Section 22, most recently amended 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." (Italics added.)
The Legislature's 1995 amendment to section 22 inserted the word "express" before the word "malice" in subdivision (b). The 1995 amendment was in direct response to People v. Whitfield (1994) 7 Cal.4th 437 (Whitfield). In Whitfield, the California Supreme Court held evidence of a defendant's voluntary intoxication was admissible to negate implied as well as express malice. (Id. at 451.)
The history of the 1995 amendment to section 22 was most recently addressed in People v. Turk (2008) 164 Cal.App.4th 1361 (Turk). In Turk, the court concluded, "The legislative history of the amendment unequivocally indicates that the Legislature intended to legislatively supersede Whitfield, and make voluntary intoxication inadmissible to negate implied malice in cases in which a defendant is charged with murder." (Turk, supra, 164 Cal.App.4th at pp. 1374-1375.)
Rothwell argues section 22 is unconstitutional after the 1995 amendment because "it created a rule that keeps out relevant exculpatory evidence by in effect precluding the jury from considering evidence that could disprove the `conscious disregard for human life' element of implied malice second degree murder." Rothwell relies on Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), and Justice Ginsburg's concurring opinion, to support her contention.
In Egelhoff, a plurality of the court upheld the constitutionality of a Montana statute providing voluntary intoxication "`may not be taken into consideration in determining the existence of a mental state which is an element of [the] offense.'" (Egelhoff, supra, 518 U.S. at p. 57.) The plurality found no due process violation because the right to have a jury consider intoxication evidence was not a "fundamental principle of justice." In concurrence, Justice Ginsberg drew a distinction between rules designed to keep out relevant, exculpatory evidence that might negate an essential element of a crime and violate due process, and rules that redefine the mental state element of the offense. (Ibid.) Justice Ginsburg viewed the Montana statute as a redefinition of the offense's required mental state and therefore excluding evidence of voluntary intoxication was constitutional. (Id. at pp. 57-59.)
"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .'" (Marks v. United States (1977) 430 U.S. 188, 193.) Assuming Justice Ginsburg's concurrence controls, as Rothwell urges this court to do, we nonetheless conclude section 22 does not violate due process.
In People v. Timms (2007) 151 Cal.App.4th 1292, 1300-1301 (Timms ), the court addressed the identical issue we have here. The court explained section 22 did not violate a defendant's due process rights because section 22, subdivision (b), did not belong to the "prohibited category of evidentiary rules designed to exclude relevant exculpatory evidence." (Timms, supra, 151 Cal.App.4th at p. 1300.) The court reasoned, "The absence of implied malice from the exceptions listed in subdivision (b) is itself a policy statement that murder under an implied malice theory comes within the general rule of subdivision (a) such that voluntary intoxication can serve no defensive purpose. In other words, section 22, subdivision (b)[,] is not `merely an evidentiary prescription'; rather, it `embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.' [Citation.] In short, voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard. Therefore, it does not lessen the prosecution's burden of proof or prevent a defendant from presenting all relevant defensive evidence." (Id. at pp. 1300-1301)
The Timms court found illuminating the fact section 22 does not appear in the Evidence Code, it appears in the Penal Code. (Timms, supra, 151 Cal.App.4th at p. 1300.) Additionally, the court acknowledged the California Supreme Court's holding in People v. Atkins (2001) 25 Cal.4th 76, which rejected a due process challenge to section 22 in the context of the general intent crime of arson. (Timms, supra, 151 Cal.App.4th at p. 1300.)
With respect to Justice Ginsburg's concurrence, the court stated that assuming the concurrence controls, "Justice Ginsberg also stated: `Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a "fundamental principle of justice," given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. [Citations.]' [Citation.] Under this rational, the 1995 amendment permissibly could preclude consideration of voluntary intoxication to negate implied malice and the notion of conscious disregard. Like the Montana statute, the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state." (Timms, supra, 151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22 did not infringe defendant's constitutional rights.
Rothwell also argues the trial court's application of section 22 violated her constitutional right to due process and a fair trial because, "[t]he level of a defendant's intoxication is undeniably relevant evidence on the issue of whether he or she consciously disregarded a risk to human life." We find People v. Martin (2000) 78 Cal.App.4th 1107 (Martin), instructive.
In Martin, supra, 78 Cal.App.4th at page 1113, the court rejected this constitutional challenge to section 22. The court explained, "Section 22 states the basic principle of law recognized in California that a criminal act is not rendered less criminal because it is committed by a person in a state of voluntary intoxication." The court stated section 22 "is closely analogous to [the Legislature's] abrogation of the defense of diminished capacity . . . . The 1995 amendment to section 22 results from a legislative determination that, for reasons of public policy, evidence of voluntary intoxication to negate culpability shall be strictly limited. We find nothing in the enactment that deprives a defendant of the ability to present a defense or relieves the People of their burden to prove every element of the crime charged beyond a reasonable doubt." (Martin, supra, 78 Cal.App.4th at p. 1117.)
We find the courts' reasoning in Timms, supra, 151 Cal.App.4th 1292, and Martin, supra, 78 Cal.App.4th 1107, persuasive. Thus, we conclude the trial court's refusal to instruct the jury with Rothwell's Special Instruction did not violate her constitutional rights. The trial court properly instructed the jury with CALCRIM No. 625.
Equal ProtectionIn its respondent's brief, the Attorney General suggests Rothwell may be asserting an equal protection claim. In her reply brief, Rothwell raises the equal protection argument for the first time. We need not consider this argument, because it was made for the first time in reply without any showing of good cause for failing to raise it in the opening brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) Additionally, to the extent Rothwell attempts to raise an equal protection claim, her failure to properly raise the issue and support it with adequate argument and citation to authority waived the issues on appeal. (See, e.g., California Dept. of Corrections v. State Personnel Bd. (2004) 121 Cal.App.4th 1601, 1619.) In any event, her claim fails on the merits. (Timms, supra, 151 Cal.App.4th at pp. 1302-1303.)
DISPOSITIONThe judgment is affirmed.
1. `In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
2. Miranda v. Arizona (1966) 384 U.S. 436.
3. All further statutory references are to the Penal Code.