People v. Reza

Opinion

ASHBY, J.

By jury trial appellant was convicted of robbery with use of a firearm (Pen. Code, §§ 211, 12022.5) and possession of a sawed-off shotgun (Pen. Code, § 12020). He was sentenced to state prison for a low term of two years on the robbery plus two years for the firearm use. Execution of sentence on the other count was stayed pursuant to Penal Code section 654.

In the early morning hours of September 16, 1979, appellant robbed the Bahia Motel in Montebello. The motel clerk observed appellant and a companion arrive by car. Appellant entered the motel, held a sawed-off shotgun on the clerk, and robbed him. The clerk activated a silent alarm and, immediately after appellant left, the clerk supplied the police with a description of the suspects and their vehicle. The police stopped the vehicle a quarter mile away. On the side of the road, 20 yards from where the stop occurred, the police recovered a shotgun. The clerk was brought to the scene and identified appellant and the gun. Money and shotgun shells were found in the car.

Appellant presented a diminished capacity defense that he was too drunk to form the intent to rob. He and his friend had been drinking at a party and were headed toward Whittier Boulevard to cruise. He testified he stopped at the motel to go to the bathroom and did not remember what happened there.

Appellant contends the jury was erroneously instructed on (1) diminished capacity; (2) flight; and (3) use of a firearm. We find no merit to these contentions.

[132]

Diminished Capacity

The trial court instructed the jury in the language of CALJIC No. 4.21 (voluntary intoxication—when relevant to specific intent).

1

Appellant did not request any other instruction on the subject. He now contends, however, that the court should have given CALJIC No. 3.35 (diminished capacity to form specific mental state) instead.

2

We disagree.

CALJIC No. 4.21, which deals with voluntary intoxication, “is a proper choice, where, as here, intoxication from the use of alcohol and drugs is the only evidence in the record supporting a defense of diminished capacity. Number 3.35 would be the choice where diminished capacity is predicated upon facts other than the use of drugs and alcohol.”