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Name: People v. Ferguson
Case #: G043190
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/28/2011

(1) A defendant is not entitled to an instruction on unconsciousness unless supported by evidence that he was not conscious of acting; (2) evidence from a vehicle’s data recorder is admissible if obtained in response to a court order; (3) a court need not consider sentencing a defendant under the provisions of Penal Code section 1170.9 (alternative treatment for a United States military person with problems resulting from service in combat thereafter) unless it places him on probation.
Appellant, a Marine Corps Lance Corporal, was stationed at Camp Pendleton following a tour of duty in Iraq. Although he consumed alcohol prior to deploying to Iraq, following his return, his drinking increased, as did his marital problems. On the date of the offense, he consumed a significant amount of alcohol, drove his vehicle at a high rate of speed, and hit another vehicle stopped at a red light, killing the driver and severely injuring the passenger. He was convicted of second degree murder and driving under the influence of alcohol and causing great bodily injury.
(1) On appeal he contended the trial court erred in denying his request for an instruction on the partial defense of unconsciousness as a result of self-intoxication. As to the murder, the prosecution proceeded on an implied malice theory, which required proof that appellant knew his conduct endangered the life of another and that he acted with conscious disregard for life. (People v. Chun (2009) 45 Cal.4th 1172, 1182 [when a person consumes alcoholic beverages to intoxication, knowing he will be driving, he exhibits conscious disregard for the safety of others].) Appellant argued unconsciousness resulting from voluntary intoxication may be raised as a partial defense to reduce the offenses to involuntary manslaughter and that the court, therefore, should have instructed on specific intent and consciousness, pursuant to CALCRIM No. 626. The trial court refused the instruction because involuntary manslaughter is not a lesser included offense of murder in the context of drunk driving, per Penal Code section 192, subdivision (b). Regardless, appellant contended that an involuntary manslaughter conviction could be obtained under a nonstatutory defense, i.e., predicate act of a noninherently dangerous felony committed without due caution and circumspection, with the predicate act being the voluntary intoxication. Here the court held that even if such a theory of defense is credible, it did not apply in this case because there was insufficient evidence that appellant was unconscious to an extent that his driving cannot be deemed volitional. Rather, the uncontroverted facts revealed that appellant knew he was intoxicated and attempted to sober up prior to driving.
(2) Under Vehicle Code section 9951, evidence from a vehicle’s data recorder may be retrieved by one other than the registered owner only if the owner consents to the retrieval or it is obtained via a court order. Here, evidence from the recorder was presented to the jury indicating that appellant was traveling 75 miles per hour, was accelerating before he hit the victim’s car, and acceleration had stopped one-tenth of a second before impact. The data was obtained via a court order and, therefore, admissible.
(3) Appellant was sentenced to prison for 15 years to life for the murder and a concurrent term for the driving under the influence offense. The appellate court rejected appellant’s contention that the trial court erred as it did not exercise its discretion in considering him for alternative sentencing under Penal Code section 1170.9, because he was a member of the military who had served in a combat zone and, arguably, suffered post traumatic stress. The court that although the trial court may have misunderstood appellant’s eligibility for probation, probation being a requirement under this alternative sentencing statute, it had other valid reasons for denying probation which were supported by the record — namely, the trial court concluded that appellant had not established he committed the offenses as a result of service-related post traumatic stress disability.