There is no error in failing to instruct on voluntary intoxication and unconsciousness when the defendant’s testimony made clear that he was conscious of his actions when he killed the victim. There is no sua sponte duty to instruct on CALCRIM No. 626 relating voluntary intoxication to unconsciousness or other defining instructions. On July 10, 2009 Wright was on a cocaine/drinking binge and lost consciousness. In the early morning hours of July 11, he challenged a roommate about conduct with his girlfriend. When the roommate shoved him hard, he swung at him with a hammer and “snapped” and “lost it” and did not remember what happened after the second hammer strike. He was convicted of second degree murder. There was no substantial evidence that he was unconscious on July 11. Further, there was not a reasonable probability that he would have not been convicted of second degree murder absent the alleged instructional error.

There was no error when a juror was reseated after the prosecution prevailed on a challenge to the defense use of peremptory challenges based on group bias toward women. The prosecution objected to defense counsel’s exercise of peremptory challenges as demonstrating group bias. The last woman excused by a defense peremptory challenge was asked to wait in the hallway. The court found that the defense could not excuse people because they were women. The prosecution sought the remedy of reseating the juror. Women are a cognizable group and Wheeler/Batson principles apply whether the prosecutor or defendant is the complaining party. Counsel’s explanation after the prosecutor made a prima facie showing admitted group bias against the overwhelming number of women on the jury. That conclusion by the trial court was supported by substantial evidence. Any procedural error by not hearing the Wheeler motion at the sidebar was not raised in the trial court and would not be prejudicial in light of the instruction that a peremptory challenge may be without a reason and was not to be viewed as an insult.