Trial court did not err by refusing to instruct the jury on involuntary manslaughter based on brandishing a firearm because there was no evidence that the defendant drew or exhibited the firearm in a rude, angry, or threatening manner. Gana shot her husband in the chest, killing him, and then chased her two sons and shot at them, injuring one. Gana made incriminating statements to police and medical personnel indicating that she had been depressed and planned to kill her husband and sons before killing herself. Evidence presented during her trial indicated that her chemotherapy drugs may have caused a psychotic break. A jury convicted her of first degree murder and two counts of premeditated attempted murder. She appealed raising numerous contentions, including that the trial court erred by failing to instruct the jury on involuntary manslaughter. Held: Affirmed. Involuntary manslaughter is an unlawful killing committed without malice where the killing occurs in the commission of an unlawful act not amounting to a felony, or committed under other circumstances not applicable here. Gana argued that she shot and killed her husband without malice while brandishing a gun. To support an instruction on involuntary manslaughter based on brandishing a firearm there had to be evidence defendant drew or exhibited a firearm in a rude, angry, or threatening manner. Cases holding that evidence supported a brandishing charge all involved scenarios where the crime was preceded by a quarrel or confrontation between the participants. Here, the trial court did not err in in refusing to give the requested involuntary manslaughter instruction because there was no evidence of a quarrel, argument, or struggle between Gana and her husband or sons that preceded the shooting.

CALJIC No. 3.32 is not a deficient instruction when given in a murder case even though it does not specifically state that a mental disease, defect, or disorder could be used to determine whether the defendant harbored malice. CALJIC No. 3.32 provides that the jury should consider evidence of mental disease, defect, or disorder in determining whether the defendant actually formed the specific intent required to commit the charged crime. Gana argued that the instruction was deficient because it did not specifically state that evidence of mental disease, defect, or disorder could be used for the determination of the presence of malice aforethought. The Court of Appeal disagreed. Courts have found no error in cases in which a mental defect instruction merely mentioned the term “mental state” in a generic sense, but the trial court elsewhere either specifically explained that premeditation and deliberation were mental states necessary for a conviction of first degree murder, or generally instructed that the mental state required is included in the definition of the crime charged. (See People v. Rundle (2008) 43 Cal.4th 76, 148-149.) Here, the trial court did both of these things. There was no possible likelihood that the jury failed to properly apply CALJIC No. 3.32.

Trial court erred by refusing an instruction on the defense of unconsciousness, but the error was harmless. Gana’s trial counsel requested an instruction on the defense of unconsciousness (both as a complete defense and, in the event the jury found Gana acted while voluntarily intoxicated, to reduce the murder to voluntary manslaughter) but the trial court refused to give the instructions. The defense of unconsciousness applies when “the subject physically acts in fact but is not, at the time, conscious of acting.” (People v. Ochoa (1998) 19 Cal.4th 353, 423-424.) In Gana’s trial, medical experts testified that the medications Gana was taking to combat cancer could have resulted in psychosis, Gana herself testified that she could not remember shooting her husband or shooting at her sons, and police officers who arrived at the scene shortly after the shooting observed that Gana had a “thousand mile stare” and was unresponsive to questioning. The Court of Appeal found that such evidence was sufficient to warrant an instruction on the defense of unconsciousness and that the trial court erred by refusing to give one. However, the Court of Appeal found that the error was harmless because the issue was “necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Wright (2006) 40 Cal.4th 81, 98.) The jury had been instructed that it could consider Gana’s intoxication and mental defect, disease, or disorder in determining whether she possessed the requisite specific intent. By rejecting those theories and convicting Gana of first degree murder and attempted premeditated murder, the jury necessarily rejected that Gana’s medications resulted in unconsciousness.