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Name: People v. Wildanen
Case #: C065804
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/05/2011

It was error to give the instruction on consciousness of guilt from false or misleading statements about the crime in combination with an unmodified version of the instruction on voluntary intoxication. The morning following a New Year’s Eve party, a party-goer went to bed at 5 a.m. and woke within two hours to find he was being orally copulated. He accused appellant who made a denial and then left. Appellant was interviewed shortly afterward by the police and made a denial, but also indicated that he did not recall events because he was drunk. During the police interview, his blood alcohol was .22 and .17 percent. The defense theories included that defendant was too intoxicated to realize the party-goer was unable to resist because he was unconscious at the time of the acts. The combination of CALCRIM Nos. 362 and 3426 prohibited the jury from considering voluntary intoxication for any purpose other than to decide whether he had knowledge that the victim was unconscious. The instruction was in error because it did not allow the jury to decide that the defendant might have been too intoxicated to know that his statements were false or misleading. However, the error was not a violation of due process because the permissive inference, that he was aware of his guilt when he made selectively false statements, was reasonable. It was further harmless and not reasonably probable that there would have been a more favorable result in the absence of the error.