Filed 4/9/26 P. v. Rubio CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084574
v. (Super.Ct.No. FVI23000184)
LUIS ENRIGUE RUBIO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Nicole Quintana
Winter, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Matthew C. Mulford and
Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury convicted defendant and appellant Luis Enrique Rubio of attempted murder
(Pen. Code,1 §§ 187, subd. (a), 664), finding it true it was deliberate and premeditated
(§ 189, subd. (a)). The jury also found true that defendant personally inflicted great
bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)),
and he personally used a dangerous and deadly weapon, to wit, a knife (§ 12022,
subd. (b)(1)). Defendant’s sole challenge on appeal is the trial court gave a legally
erroneous jury instruction on voluntary intoxication that precluded jurors from
considering voluntary intoxication evidence as it relates to premeditation and
deliberation. We conclude the voluntary intoxication instruction was legally erroneous,
but the error is harmless. Therefore, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
In 2023, John Sharp was living in Victorville with Diane Goldberg, who was
friends with the victim, T.L. T.L. lived with them “on and off.” In January 2023, T.L.
brought defendant to stay at the house.
On January 12, 2023, around 10:00 a.m., Sharp was in the living room watching
TV, T.L. was in her bedroom, and defendant was back and forth between the bathroom,
bedroom, and kitchen. At one point, defendant went to the kitchen briefly, then Sharp
heard a woman screaming from T.L.’s room. Prior to the screams, Sharp did not hear any
argument or commotion; he only heard the two “conversing.” During T.L.’s screams,
Sharp heard the word knife and sounds that she was being stabbed. He went to her
1 Further statutory references are to the Penal Code unless otherwise stated.
2 bedroom door and saw defendant standing over her as she was curled up sitting in the
corner. Sharp told defendant to get out; he was argumentative but left.
Sharp went to check on T.L. and saw a knife sticking out of her face. He described
what he saw as “a massacre” or “something like that out of a horror movie.” Sharp called
911. When police arrived, they found T.L. on the floor of her bedroom; her head was
lying on top of a laundry hamper where there was a pool of blood. They observed blood
splatter on the wall, “a butcher knife with a black handle impaled on the right side of
[T.L.’s] head near the right eye,” and a wine bottle in the trash can.
Sharp told officers that shortly before the stabbing he heard slamming in the
kitchen. A search of the knife drawer in the kitchen revealed that it was in disarray.
Sharp testified that the knives were generally placed neatly under a rubber mat. He did
not create the disarray in the drawer and did not know who did. Sharp assumed
defendant retrieved a knife from the drawer because those were the only knives in the
house.
Shortly after the stabbing was reported, a deputy sheriff located defendant running
on Burning Tree Road near a golf course. The golf course is “about 10-to-15 minutes by
foot” from Sharp’s house. Defendant was wearing only blue jeans and white shoes; he
seemed tired and was sweating “like he had been running.” When defendant saw the
deputy get out of the patrol car, he ran into the golf course. The deputy identified
himself, pursued defendant, and told him to stop. Eventually, he was apprehended; the
deputy found a box cutter with an exposed blade in defendant’s waistband. A search of
the area around the golf course produced a T-shirt next to some bushes that are between
3 Sharp’s house and the location where defendant was detained. Near the collar of the T-
shirt were red stains, which appeared to be blood.
At the time of defendant’s arrest, a sheriff deputy noted that he (defendant) was
shirtless and had blood splatter toward the bottom of his shoes. There appeared to be
blood drops on his left hand and scratches on his left chest and left rib cage. The deputy
opined that the scratches could have been defensive wounds caused by the victim.
Defendant also had a laceration on his right palm, consistent with a knife cut. The deputy
did not check or test the blood for DNA and did not know its origin.
T.L. received sutures for a cut above her eye, a cut to her nose, and a cut to the
right side of her face. She also had bruising to her nose and eye, and her injuries required
surgery.
On January 29, 2023, defendant called T.L. from jail. During the call, he
apologized for hurting her and said that he was not himself that night because he was
hearing voices telling him to hurt her. He stated he just “flipped out” and “snapped” and
did not recall what happened. Defendant told T.L. that before he stabbed her, he was
“tripping” and promised her “no more drugs. No more alcohol, no. None of that shit.”
He said he wanted “to learn from” this incident. T.L. repeatedly forgave him and told
him she loved him. Before the call ended, he told her that his preliminary hearing is
coming up and they will ask her if he was hearing voices. He told her to be honest with
them about him hearing voices and tripping. After repeatedly telling her he loved her,
defendant said, “It was just, you know, we were arguing. It was just a mess, you know?”
4 On May 16, 2024, defendant was charged with premeditated and deliberate
attempted murder (§§ 664, 187, subd. (a), count 1); assault with intent to commit a felony
(§ 220, subd. (a)(1), count 2); and assault with a deadly weapon (§ 245, subd. (a)(1),
count 3). The People dismissed counts 2 and 3 before the jury retired for deliberations. It
was further alleged that defendant committed the attempted murder with a deadly weapon
(§ 12022, subd. (b)(1)). and personally inflicted great bodily injury (§ 12022.7, subd. (e)).
The jury found defendant guilty of premeditated and deliberate attempted murder, and
found true the deadly weapon and personal infliction of great bodily injury
enhancements. The trial court sentenced him to five years plus seven years to life in state
prison.
II. DISCUSSION
Defendant contends the trial court’s instruction on voluntary intoxication was
legally erroneous because it expressly, and improperly, precluded the jury from
considering evidence of his intoxication when deciding premeditation and deliberation.
The People argue the evidence of intoxication was so weak that no instruction was
warranted; furthermore, any error in precluding premeditation and deliberation in its
voluntary intoxication instruction was harmless. We agree the court erred by precluding
premeditation and deliberation in its voluntary intoxication instructions, but conclude the
error is harmless.
A. Relevant Background Facts
At trial, it was noted that a wine bottle was located in the trash can in T.L.’s
bedroom; however, no evidence was introduced as to when and who consumed the wine.
5 During his phone call with T.L., defendant apologized for hurting her, claiming he was
not himself because he was hearing voices tell him to hurt her; he stated he wanted to
learn from this incident and promised her no more drugs or alcohol. No evidence was
introduced to show that defendant was under the influence of any substance at the time of
the incident, nor did the defense offer any expert testimony that defendant’s behavior was
in line with someone who was under the influence of drugs or alcohol. Moreover, neither
Sharp, T.L., nor any member of law enforcement observed defendant talking to himself.
Over the prosecution’s objection, the trial court found sufficient evidence to allow
the defense to argue voluntary intoxication to negate specific intent. Accordingly, the
jury was given CALCRIM No. 3426: “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 the intent to kill [T.L.] [¶] 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. [¶] In connection with the charge of
Attempted Murder, the People have the burden of proving beyond a reasonable doubt that
the defendant acted with a specific intent to kill. If the People have not met this burden,
you must find the defendant not guilty of Attempted Murder.” The court did not instruct
the jurors that they could also consider defendant’s intoxication when determining
whether he acted with the heightened mental state of premeditation and deliberation.
During closing argument, the prosecutor acknowledged that intoxication may
negate the specific intent for attempted murder, but argued the evidence was insufficient
6 to show that defendant was intoxicated. Specifically, she noted the only evidence was a
wine bottle in the trash can, defendant’s statement to T.L. that he would stay away from
drugs and alcohol, and his claim that he was hearing voices. She pointed out that there
was no evidence defendant had been under the influence of alcohol or drugs at the time of
his attack on T.L., no evidence of anyone observing him hearing voices, and no expert
testimony to correlate his behavior with intoxication.
Defense counsel argued the prosecution must “prove beyond a reasonable doubt
that intoxication played no part in” defendant’s attack. In contrast, he claimed
defendant’s voluntary intoxication affected premeditation and deliberation. Counsel
noted that during a jail call to T.L., defendant said he would not do drugs or alcohol
anymore; in response, T.L. stated that she did not know what she had done. According to
counsel, these statements show defendant acted suddenly when he attacked T.L. such that
his attack failed to rise to the level of willful or deliberate.2 Referencing CALCRIM No.
3426, counsel further asserted the phone call conversation demonstrates that drugs or
alcohol played a role in defendant’s actions.3 Regarding the allegation whether he
2 “All of a sudden, all of a sudden, right, nothing in all of a sudden rises to the level of willful, deliberate, where you went reflected on the consequences of your actions, what you’re trying to do, right. . . . [¶] Now, when we talk about willful, deliberate, and premeditated, that’s not just a whim.· That’s not just in the moment.· I was thinking, I was feeling it, that takes time.· That takes calculation.· And in that moment, even in the call, [T.L.] mentioned, I don’t know what happened all of a sudden.· I thought everything was okay.”
3 “And I will show you Jury Instruction No. 3426. All right, which says that the defendant acted with the intent to kill.· However, a person is voluntarily intoxicated or other substance.· All right.· So when you listen to the call, . . . you’ll hear [T.L.] agree, [footnote continued on next page]
7 deliberately and with premeditation attempted to murder T.L., defense counsel reasoned
that to conclude there was deliberate premeditation, the jurors had to conclude “the
voices didn’t matter. [Defendant] wasn’t on drugs. That’s all a ruse, right. He had
planned this all along, right.”4
not as a yes, right, suggesting the way that the People are saying he’s trying to convince her. That’s far from it.· Everything happened pretty quick. He was talking to the TV.· He was hearing voices.· And when he said, yeah, we’re going to do the cleansing, she agreed, yeah, that’s what we’re going to do.·. . . [¶] So, it’s my position, and I believe that whatever was happening in that bedroom, whatever drugs, alcohol, whatever else might also be there, played a role.· And for that, while it may be unreasonable to us, in that moment he was absolutely afraid, right.”
4 “So now going to that willful, deliberate, premeditation.· This is going to be that first allegation.· So let’s just say you believe that the District Attorney has proved beyond a reasonable doubt that the fact [defendant] did intend to kill her.· That this is an extra step. You can find [defendant] guilty of Count 1 and still find not true of the first allegation, which is, was it done willfully, with deliberation, with premeditation. “If you find that he intended to kill, did he weigh the consideration for and against his choices, knowing the consequences, decided to kill, acting with premeditation.· All right.· That’s more than just something that—that’s more than just the moment.· It was the hearing of the voices.· Don’t know what came over him. “So this is what the People have to do.· The District Attorney has to get to beyond a reasonable doubt in every single one of those circumstances.· That leaves you with the only possible reasonable explanation for what happened.· And the only possible reasonable explanation of what happened is that the voices didn’t matter.· He wasn’t on drugs.· That’s all a ruse, right. He had planned this all along, right.· Because Mr. Sharp had explained, I think, that he had mentioned that [T.L.] had either invited him over, or they’re at the house for maybe a couple of days they were hanging out. But what the People are suggesting is that he planned this from the very get go.· He knew what he was going to do. “Now, I understand one of the things that this says is that you look at the reflection of time.· So time isn’t necessarily a factor, but the reflection is.· And I don’t believe that there’s enough evidence here to support that there was enough reflection to the point that it’s beyond a reasonable doubt, to the point that it leaves you with no other reasonable possible other option.· “So if you guys go back there, and you have your discussions, and you realize it is possible that he intended to kill her, that was done with premeditation, deliberation.· [footnote continued on next page]
8 In response, the prosecutor argued the evidence was insufficient to show defendant
had consumed any drugs or alcohol, but even if the jurors believed he had, he knew what
he had done as evidenced by the fact that he apologized to T.L. and told her she had done
nothing wrong (which shows he was not so intoxicated that he did not know what was
going on, nor was he defending his family due to some delusion she was attacking him).
Regarding premeditation, counsel maintained there “is no time requirement. Things can
happen all of a sudden.· Even premeditation can happen all of a sudden.·. . . There’s no
evidence of the exact moment he decided to kill [T.L.].· There’s evidence that he did
form that intent before he started stabbing her because what else did he intend to do?”
B. Standard of Review and Applicable Law
Attempted murder is punishable by five, seven, or nine years in state prison. But
if the trier of fact finds the attempted murder was “willful, deliberate, and premeditated,”
the punishment is “imprisonment in the state prison for life with the possibility of
parole.” (§ 664, subd. (a).)
There is no sua sponte duty to instruct on the effect of voluntary intoxication on
the mental states required for attempted murder. (§ 28, subd. (b); People v. Saille (1991)
54 Cal.3d 1103, 1119-1120 (Saille); People v. Castillo (1997) 16 Cal.4th 1009, 1016
(Castillo) [includes attempted murder].) Rather, voluntary intoxication is more like a
Sure.· You have to come back with guilty. But at the same time, if you come back with saying, you know what, I think he, I think he was there, he attacked her, he apologized, but I do believe he was under the influence of drugs, alcohol, or both, or that, yeah, he does feel bad, he is sorry, he was hearing voices.· He did believe, and it may not be our reasonable belief, right, his reasonable belief, . . .”
9 “pinpoint” instruction to which a defendant is entitled upon request. (Saille, at p. 1119
[“They are required to be given upon request when there is evidence supportive of the
theory, but they are not required to be given sua sponte”]; People v. Ricardi (1992)
9 Cal.App.4th 1427, 1432 [no sua sponte duty to instruct on voluntary intoxication but
must give this instruction on request]; Castillo, at p. 1014.) Evidence of voluntary
intoxication is “‘admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.’” (Castillo, at p. 1013; see Saille,
supra, at pp. 1111-1112; § 29.4, subd. (b) [jury may consider evidence of voluntary
intoxication and its effect on the defendant’s required mental state].)
“A trial court must instruct the jury, even without a request, on all general
principles of law that are ‘“closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.”’” (People v. Burney (2009)
47 Cal.4th 203, 246.) “Even if the court has no sua sponte duty to instruct on a particular
legal point, when it does choose to instruct, it must do so correctly.” (Castillo, supra,
16 Cal.4th at p. 1015.) We review instructional error arguments de novo. (People v.
Lucero (2016) 246 Cal.App.4th 750, 758; People v. Waidla (2000) 22 Cal.4th 690, 733
[“Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that, we believe, is however predominantly
legal. As such, it should be examined without deference.”].)
10 C. Analysis
Here, the trial court gave CALCRIM No. 3426, which told the jury they may
consider evidence of defendant’s voluntary intoxication “only in a limited way. You may
consider that evidence only in deciding whether the defendant acted with the intent to kill
[T.L.].” This instruction did not relate voluntary intoxication to mental state or
premeditation and deliberation. Accordingly, defendant contends the instruction was
erroneous because it unlawfully precluded the jury from considering the intoxication
evidence in deciding whether he acted with premeditation and deliberation. (People v.
Mendoza (1998) 18 Cal.4th 1114, 1134 (Mendoza); Castillo, supra, 16 Cal.4th at
pp. 1014, 1016.) We agree.
In Castillo, there was evidence of defendant’s voluntary intoxication prior to the
murder. The trial court instructed the jury on voluntary intoxication according to
CALJIC No. 4.21, which provided: “‘In the crimes of murder and attempted murder . . .
a necessary element is the existence in the mind of the perpetrator of the specific intent to
kill. [¶] If the evidence shows that the defendant was intoxicated at the time of the
alleged crime, you should consider that fact in determining whether the defendant had
such specific intent or mental state. . . .’” (Castillo, supra, 16 Cal.4th at p. 1014, fn. 2,
italics added.) Jurors also received CALJIC No. 4.21.1 that stated “‘where a specific
intent or mental state is an essential element of the crime’” “‘you should consider the
defendant’s voluntary intoxication in your determination of whether the defendant
possessed the required specific intent or mental state at the time of the commission of the
alleged crime. [¶] Thus in the crimes of murder and attempted murder . . . a necessary
11 element is the existence in the mind of the defendant of a certain specific intent or mental
state which is included in the definition of the crimes set forth elsewhere in these
instructions.’” (Ibid., italics added.) The defendant was convicted of first degree murder,
where the sole theory was premeditation and deliberation. (Id. at pp. 1012-1013.)
On appeal, the defendant faulted trial counsel “for failing to request a ‘pinpoint’
jury instruction specifically relating voluntary intoxication to premeditation and
deliberation.” (Castillo, supra, 16 Cal.4th at p. 1012.) The appellate court agreed, but
our Supreme Court did not. (Id. at p. 1016.) After considering the instructions as a
whole, the court noted that even though the trial court did not include “mental state”
when it told the jury what voluntary intoxication could be considered for, it did relate
voluntary intoxication to “‘specific intent or mental state’” elsewhere in the instructions.
(Ibid.) Thus, the court found that no reasonable juror would have understood them to
permit consideration of “intoxication in determining whether defendant specifically
intended to kill but to prohibit [consideration of] that same intoxication in determining
whether [the defendant] premeditated and deliberated. Premeditation and deliberation are
clearly mental states; no reasonable juror would assume otherwise.” (Id. at p. 1017; see
People v. Hughes (2002) 27 Cal.4th 287, 342 [“‘by relating intoxication to “mental state,”
a reasonable jury would have understood deliberation and premeditation to be “mental
states” for which it should consider the evidence of intoxication’”].)
Defendant correctly notes that the same may not be said here because even when
considering the instructions as a whole, the trial court failed to expressly instruct that the
jury could consider intoxication “‘where a specific intent or mental state is an essential
12 element of the crime.’” (Castillo, supra, 16 Cal.4th at p. 1017 [“Premeditation and
deliberation are clearly mental states”].) Voluntary intoxication was only linked to
specific intent; the jury was not directed to also consider voluntary intoxication in regard
to mental states. In fact, they were instructed that they may “only” consider intoxication
in deciding whether the defendant acted with the intent to kill. By so instructing the jury,
the court effectively precluded them from being able to consider evidence of voluntary
intoxication for premeditation and deliberation. Thus, we cannot conclude that “[n]o
reasonable juror would understand the instructions to permit the jury to consider
intoxication in determining whether defendant specifically intended to kill but to prohibit
it from considering that same intoxication in determining whether he premeditated and
deliberated.” (Ibid.)
Having concluded the trial court erred in instructing the jury regarding voluntary
intoxication, we must determine whether it was reasonably probable that the error
affected the verdict adversely to defendant, per People v. Watson (1956) 46 Cal.2d 818,
836-837. (See, e.g., People v. Mendoza, supra, 18 Cal.4th at pp. 1134-1135 [error in
voluntary intoxication instruction subject to state law standard of review].) We conclude
that it did not.
The jury was properly instructed on voluntary intoxication as it related to
defendant’s ability to form the specific intent to kill. By finding him guilty of attempted
murder, the jury necessarily rejected any theory that his intoxication prevented him from
forming the specific intent to kill. We also agree with the People that the evidence of
intoxication was scant. A defendant is entitled to a jury instruction on voluntary
13 intoxication only when there is substantial evidence both that the defendant was
voluntarily intoxicated and that his intoxication “affected [his] ‘actual formation of
specific intent.’” (People v. Williams (1997) 16 Cal.4th 635, 677 (Williams); see People
v. Verdugo (2010) 50 Cal.4th 263, 295.)
There is no evidence defendant ingested any controlled substances prior to
attacking T.L., nor did he appear to be under the influence at the time of his arrest.
Although an empty wine bottle was found in the trash can in T.L.’s bedroom, no one
testified that it was defendant who had consumed the wine, how much he had consumed,
or when he had consumed it. Regarding defendant’s jail call to T.L., he claimed to have
heard voices telling him to hurt T.L.; however, he never attributed the voices to his
intoxication. He only mentioned drugs and alcohol when he told T.L. that he wanted to
stop using them and learn from this experience. Still, he never attributed his attack to
being intoxicated. Rather, during his apology to T.L, he said, “It was just, you know, we
were arguing. It was just a mess, you know?”
Nonetheless, assuming the above amounts to substantial evidence of defendant’s
voluntary intoxication, there is still no evidence it had any effect on his mental state.
(See Williams, supra, 16 Cal.4th at pp. 677-678 [no instruction for voluntary intoxication
required where evidence of intoxication was scant]; People v. Marshall (1996) 13 Cal.4th
799, 848 [evidence did not require requested voluntary intoxication instruction where the
record did not support conclusion that at time of offense defendant was unable to
premeditate or form intent to kill].) Evidence of defendant’s acknowledgement that he
was arguing with T.L., coupled with his decision to go to the kitchen, open the knife
14 drawer, lift the mat that covered the knives, select a butcher knife, return to the bedroom,
and then repeatedly stab her, demonstrates he had the mental state to premeditate and
deliberate his actions. Therefore, on this record, we conclude the erroneous instruction
that precluded the jury from considering evidence of defendant’s intoxication when
deciding premeditation and deliberation was harmless. (See People v. Watson, supra, 46
Cal.2d at p. 837 [reasonably probable that a result more favorable would have been
reached absent the error].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER ______________________________________________________________________________________________________________________________________________________________________
J.
We concur:
RAMIREZ ______________________________________________________________________________________________________________________________________________________________________
P. J.
FIELDS ______________________________________________________________________________________________________________________________________________________________________