People v. Briseno CA5

Opinion

Filed 9/23/26 P. v. Briseno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F087730 Plaintiff and Respondent, (Super. Ct. No. VCF403222A) v. MARC BRISENO, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Tulare County. Nathan G. Leedy, Judge. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant and appellant Marc Briseno (appellant) was convicted by a jury of second degree murder. On appeal, he contends (1) insufficient evidence supported the jury’s finding that he acted with malice, and (2) the trial court erred by refusing to instruct on the lesser included offense of involuntary manslaughter based on unconsciousness. We affirm. PROCEDURAL SUMMARY On January 11, 2024, the District Attorney of Tulare County filed a first amended information charging appellant with the murder of Kevin Robertson. (Pen. Code, § 187, subd. (a)).1 It was further alleged that appellant committed the murder while he was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)), and that he personally used a deadly weapon during the commission of the offense (§ 12022, subd. (b)(1)). On February 1, 2024, the jury found appellant not guilty of first degree murder and found the special circumstance allegation not true. The jury found appellant guilty of second degree murder as a lesser included offense and found the personal use of a deadly weapon enhancement true. On March 11, 2024, the trial court sentenced appellant to 15 years to life. The court struck the punishment for the enhancement under section 1385, subdivision (c). Appellant filed a timely notice of appeal. FACTUAL SUMMARY I. The People’s Case A. Background In September 2020, Cristian M.,2 his wife, and their young child lived with appellant in appellant’s sister’s apartment. Robertson dealt marijuana to Cristian, and 1 All further references are to the Penal Code unless otherwise indicated. 2 Consistent with California Rules of Court, rule 8.90, we refer to certain individuals by their first name and last initial to protect their privacy.

2. Cristian owed Robertson $20. Robertson and Cristian communicated through a social media application. B. Party and arranged meeting the following day The apartment held a party on the night of September 25, 2020, at which appellant was observed drinking alcohol. The next day, on September 26, appellant seemed “very intoxicated” as he was slurring his words and smelled of alcohol. Robertson posted a picture on the social media application that consisted of a screenshot of Cristian M.’s profile. On the screenshot was a caption that stated, “Who want [sic] some free meds lmk?” The post also included the address of appellant’s sister’s apartment. Cristian M. and Robertson arranged to meet later that day. Appellant went with Cristian to meet Robertson in the afternoon. When they returned in the evening, they acted “a little weird” and appeared worried. Appellant had a black bag3 with him when he returned. C. Robertson’s body is discovered A witness observed a pickup truck stopped on the side of the road near an intersection in the Dinuba area, as well as two men running away from the truck. Law enforcement arrived at the scene and found Robertson’s body. His body was “slumped over” inside his truck, his seat belt was buckled in, and a 10- to 11-inch knife was in his abdomen.4 The penetration of the knife cut Robertson’s common iliac artery, causing rapid blood loss. The autopsy report showed Robertson died from the stab wound and blood loss.5 3 The bag is also referred to in the record as a backpack. For consistency, we refer to it throughout this opinion as a bag. 4 Robertson had an empty knife sheath on his belt, and a knife was located on the ground next to his truck. 5 At the time of his death, Robertson had “a significant amount of methamphetamine … in his system,” an amount in the toxic and potentially lethal range.

3. D. Arrest and postarrest interview On Thursday, October 1, 2020, law enforcement was investigating an instance of vandalism caused by appellant. Appellant told law enforcement that he had broken a car window to free his brother, but his brother was not in the car. He also pointed out another car that he believed his brother was in. Appellant was “fidgeting” and appeared disoriented, and he admitted to having used cocaine and methamphetamine days prior. Appellant told law enforcement, “Sorry for everything. That [sic] happened to your guys’ Police Department. I don’t know what I did exactly.” Appellant was arrested, and while in a holding cell by himself, he had a conversation with an imaginary person. Detectives from the Tulare County Sheriff’s Office interviewed appellant the same day.6 After being read his Miranda7 rights, appellant asked, “So how many, uh, officers did I kill?” When asked what he was doing last night, appellant stated he could not remember. Appellant stated he had not “been the same” since he had taken drugs on “late Friday” or “late Saturday.” Although appellant usually consumed cocaine, he tried methamphetamine during this time period. Regarding the last thing he remembered from Saturday, appellant told the detectives, “I was with one of my buddies and then we went to go rob some guy and then I stabbed him and killed him.” He said that the incident occurred in the Dinuba area. Appellant stated he was by himself when he went to meet Robertson. Appellant used his car to stop Robertson’s truck before slashing Robertson’s tires, and, while Robertson was “trying to fight [appellant] off,” appellant stabbed Robertson. Afterwards, appellant grabbed Robertson’s black bag, got back in his car, and left. Later, appellant stated he was with Cristian M. and David W. when he went to meet with Robertson. Appellant was on the passenger side of Robertson’s truck and 6 The interview was video recorded, which was shown to the jury. 7 Miranda v. Arizona (1966) 384 U.S. 436.

4. Cristian was on the driver’s side. Robertson backed up his truck when Cristian was “still in the truck,” and appellant slashed the tires. Appellant then “dragged [Robertson] out and then [he] stabbed [Robertson] one time.” Appellant added, “And then [Robertson] kicked me so I grabbed his leg and pulled him and then stabbed him.” Appellant did not know if Robertson had any weapons on him. Appellant stated the plan was to “[j]ust get whatever he had and go.” Appellant did not plan to stab Robertson, but he “ended up with the knife and then [he] just ended up stabbing [Robertson].” Appellant knew Cristian M. owed Robertson $20. Regarding the knife used to stab Robertson, appellant stated they had “passed it around” before the confrontation, and that he “was the only one that … ended up with it.” During the interview, appellant could not remember many details from the incident. He stated, “I don’t know” or “I don’t remember” in response to many of the detectives’ questions. He did not remember if the incident occurred on Friday or Saturday. He could not remember what occurred on Sunday, Monday, Tuesday, and “half of” Wednesday. Toward the end of the interview, appellant also stated, “Sorry for killing your mom. I did not know what I was doing.” II. The Defense’s Case A. Cristian M.’s testimony Cristian M. testified that, during the party the night before the incident, appellant drank “a lot” of alcohol and “almost blacked out.” Appellant’s behavior that night was “strange” and “different.” The next morning, Cristian communicated with Robertson on the phone while appellant was in the next room. Appellant was still intoxicated from the night before. Appellant was not invited to go with Cristian M. and David W. to meet with Robertson, but he got in David’s car. Appellant was aware of “the situation” regarding his sister’s apartment address. After they found Robertson’s truck in the park, they followed Robertson’s truck to an unknown location in the back roads of Dinuba in “the 5. middle of nowhere.” Cristian told David to pass Robertson to stop his truck. Cristian told appellant and David to stay in the car while he got out to talk with Robertson. When Cristian M. approached the driver’s side of Robertson’s truck, Cristian punched Robertson and Robertson punched back. Robertson pulled out a knife and said, “Get off of me,” and “You better back up or I’m going to stab you.” Cristian wrestled the knife out of Robertson’s hand and threw the knife away. Robertson then put his truck in reverse, and Cristian hung onto the window to avoid being run over. Robertson’s truck dragged Cristian down the road until Cristian reached inside and shifted the gear into park. Robertson was reaching for a black bag in the truck. Appellant opened the passenger-side door of Robertson’s truck, and Robertson kicked appellant in the face. Appellant “[went] in” and stabbed Robertson one time. Appellant and Cristian M. left and got back into David W.’s car. Robertson’s bag was in the backseat of David’s car, and inside the bag was a switchblade and “some drugs.” Cristian testified that “it was never” the plan “to rob [Robertson]” or to harm him. Appellant showed signs of intoxication in the days following the incident. He talked to himself, and “disappear[ed]” out of the apartment at night. Cristian M. watched over appellant, and at one point, Cristian called appellant’s sister to let her know how appellant was acting. B. Appellant’s testimony Appellant testified in his own defense. He consumed cocaine and “a lot” of alcohol at the party the night before the incident. He drank alcohol throughout the night and did not sleep. Appellant continued drinking all morning and heard Cristian M. speaking with Robertson about the $20 debt. After appellant saw his sister’s apartment address on Robertson’s social media post, appellant “took it upon [himself] to go” with Cristian M. to meet Robertson.

6. Appellant was upset and planned to verbally confront Robertson, but he did not intend to harm Robertson. He was still intoxicated during the drive to meet Robertson. Appellant stood by David W.’s car as Cristian M. approached Robertson’s truck. Cristian and Robertson were arguing and fighting, and Robertson yelled, “I have a knife. I’ll stab you.” Appellant observed Robertson trying to strike Cristian, as well as Cristian wrestling with Robertson over control of a knife. The truck’s tires then started to spin. As the truck reversed, dragging Cristian M. with it, appellant reached into David W.’s car and grabbed a knife. Appellant ran and “took an angle” on the truck, intercepting its path, and slashed the tires to stop the truck. The truck eventually stopped when it “got stuck,” and appellant walked around the front of the truck to see Robertson reaching for a black bag. Believing Robertson was reaching for a gun or a knife inside the bag, appellant opened the passenger-side door and punched Robertson while moving the bag to the side. Robertson kicked appellant in the face. At that point, appellant came “back with [his] knife” and stabbed Robertson. Appellant testified that he believed he had to use deadly force to stop Robertson. Appellant took the bag and left with Cristian. Inside the bag was methamphetamine and a black switchblade. Appellant used the methamphetamine from the bag the next day. He was “hearing voices” and talking to himself “about things that weren’t happening.” Appellant testified at trial that some of the statements he made during his postarrest interview were not true. Although he claimed throughout the interview that he wanted to rob Robertson, he testified that this was not true. He testified that he was not “in the right state of mind” during the interview, and any false statements were “just how it came out at the time.” He explained that during the interview, “I was just kind of saying what came to my mind and going with it.” He testified he was hallucinating during the interview.

7. III. Rebuttal Cristian M. was interviewed by law enforcement on October 1, 2020. He was initially not “forthcoming” and provided “multiple” accounts of the events during the interview. Cristian eventually admitted that he went to the truck’s driver-side window and argued with Robertson. Cristian stated that Robertson tried to physically strike him but missed, and he was able to strike Robertson first. According to Cristian, he and appellant planned to “beat[] up [Robertson] when they confronted him regarding the whole $20 issue.” Cristian blamed appellant for the incident and claimed that appellant disposed of Robertson’s bag and its contents. Cristian also stated that appellant had been drinking throughout the day of the incident. DISCUSSION I. Sufficiency of the Evidence Appellant contends his second degree murder conviction must be reversed because insufficient evidence shows he stabbed Robertson with either express or implied malice. The People disagree, as do we. In assessing a claim of insufficiency of the evidence, we review “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Snow (2003) 30 Cal.4th 43, 66.) “ ‘We do not reweigh evidence or reevaluate a witness’s credibility,’ ” and we “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. (People v. Lasko (2000) 23 Cal.4th 101, 107.) “It is express when the defendant manifests ‘a deliberate intention unlawfully to take away the life of a fellow creature.’ ” (Ibid.) It is implied “when ‘the killing is 8. proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 988.) The record contains substantial evidence that appellant acted with express malice. Appellant invited himself to accompany Cristian M. and David W. to confront Robertson, who had publicly posted appellant’s sister’s apartment address on social media earlier that same day. During the confrontation, when appellant stabbed Robertson in the abdomen, he did so only after getting kicked in the face by Robertson. He told the detectives that he stabbed Robertson because he was kicked. From this, the jury could reasonably have inferred appellant stabbed Robertson in anger from having been kicked in the face moments before. (See People v. Smith (2005) 37 Cal.4th 733, 741 [express malice may be inferred from the defendant’s acts and the circumstances of the crime]; see also People v. Houston, supra, 54 Cal.4th at p. 1215.) Appellant’s attempts to reargue the evidence—including evidence of his intoxication and his intent—are unpersuasive under the applicable standard of review. (See People v. Zamudio (2008) 43 Cal.4th 327, 357 [“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict”]; People v. Maury (2003) 30 Cal.4th 342, 403 [“We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence”]; see also People v. Jennings (2010) 50 Cal.4th 616, 639 [“If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding”].) In any event, substantial evidence also supports appellant’s conviction of second degree murder under a theory of implied malice. “Implied malice requires proof of both a physical act and a mental state. Physically, [the] defendant must perform an act whose natural consequences are dangerous to life, or put another way, a defendant must perform 9. ‘ “an act that involves a high degree of probability” ’ of death.” (In re Ferrell (2023) 14 Cal.5th 593, 600.) “To establish the mental state required for implied malice, the defendant must deliberately perform the act with a conscious disregard for life, knowing the act endangers another’s life.” (Ibid.) Regarding the objective element, appellant asserts the evidence failed to establish that stabbing Robertson once in the abdomen was an act carrying a high probability that it would result in death. He highlights that he stabbed Robertson only once and did so after Robertson kicked him in the face. Further, after the stabbing, appellant immediately went back to David W.’s car rather than stabbing Robertson a second time or more. Appellant stabbed Robertson in the abdomen with a 10- to 11-inch knife, severing an artery. Robertson died from the resulting loss of blood. That appellant stabbed Robertson only once does not preclude a finding of malice considering the location of the stab wound, namely, his abdomen. (In re M.S. (2019) 32 Cal.App.5th 1177, 1185 [“Evidence of intent to kill may be satisfied by proof of a single stab wound that penetrates a vital organ”]; People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [specific intent to kill may be inferred from a single stab wound to an “extremely vulnerable area of the body” such as the abdomen].) Evidence that appellant “precisely target[ed]” Robertson’s artery is not required for the objective component, nor is evidence of specialized knowledge of human anatomy. The objective component instead requires evidence that the defendant performed an act involving a high degree of probability of death. (In re Ferrell, supra, 14 Cal.5th at p. 600; People v. Reyes, supra, 14 Cal.5th at p. 989 [“To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must ‘ “involve[] a high degree of probability that it will result in death” ’ ”].) That standard was met here. Appellant further argues insufficient evidence supported the subjective element of implied malice. Not so. “[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.”

10. (People v. Watson (1981) 30 Cal.3d 290, 296–297; People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 502 [implied malice may be proven by circumstantial evidence since rarely would a defendant provide direct evidence he actually appreciated the risk involved].) The record supports appellant appreciated the risk of his actions. As stated above, appellant stuck a large knife into Robertson’s abdomen and fled the scene afterwards. (See People v. Cravens (2012) 53 Cal.4th 500, 511 [“the jury was entitled to infer [the] defendant’s subjective awareness that his conduct endangered [the victim’s] life from the circumstances of the attack alone”]; ibid. [the defendant’s failure to check on the victim’s condition or seek assistance supported the finding of implied malice].) Appellant admitted to the detectives that he stabbed Robertson because Robertson kicked him in the face. On this record, a jury could reasonably have found that appellant understood the risks involved in his actions. Appellant asserts that there was no evidence that he had any prior intent to confront Robertson. He highlights his testimony that he did not approach Robertson’s truck until he believed that it was necessary to prevent Robertson from seriously injuring or killing Cristian M. Appellant further notes he was 23 years old at the time of the homicide and his youth may have contributed to his unplanned participation in the charged incident as well as prevented him from understanding or recognizing the risk of his actions. These arguments are unpersuasive. First, there was evidence that he had prior intent to confront Robertson. He testified he took it upon himself to go with Cristian to meet with Robertson. (But see People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 [“Ill will toward, or hatred of, the victim are not prerequisites of malice”].) As to his version of the incident, the jury was free to reject his self-serving testimony, in whole or in part, and draw reasonable inferences from the evidence. Appellant’s reliance on his youth is similarly unpersuasive under the applicable standard of review. (People v. Jennings, supra, 50 Cal.4th at p. 639; People v. Bolin (1998) 18 Cal.4th 297, 331 [reversal is not 11. warranted “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]’ ”].) In sum, we conclude the jury could reasonably have concluded appellant acted with either express or implied malice. II. Instructional Error Appellant contends the trial court prejudicially erred by refusing to instruct the jury on involuntary manslaughter based on unconsciousness resulting from voluntary intoxication (CALCRIM No. 626). The People contend the trial court’s refusal to give the instruction was not erroneous. We agree with the People. Defense counsel requested CALCRIM No. 626,8 an instruction on involuntary manslaughter based on unconsciousness resulting from voluntary intoxication. (CALCRIM No. 626.) The trial court indicated the instruction would not be given, expressing doubt that it had evidentiary support because appellant’s own testimony accurately recited the events “leading up to, during, and after the incident that resulted in death.” Defense counsel argued that the instruction instead focuses on “whether the intoxicated person may … be aware of his or her actions or the nature of the actions at the time the act is committed.” Defense counsel added, “While [appellant] may have recovered memories of these occurrences over the last three years, I think it’s not unreasonable for a jury to believe that—the testimony that he wasn’t even supposed to come along, he wasn’t invited, he was told to remain in the car, but he was coming out of the car.” The court doubted whether there was evidence that appellant, at the time of the 8 The instruction states, in part: “When a person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.” (CALCRIM No. 626.)

12. incident, was not “conscious of acting.” In the court’s view, “[t]he evidence of unconsciousness … seems to be extremely thin at best.” The trial court did not instruct the jury with CALCRIM No. 626. The court explained its decision outside of the presence of the jury:

“[Appellant] gave a clear, step-by-step of the events in his interrogation and also on the stand.

“Unconsciousness does not require that someone be physically incapacitated. In other words, somebody can go moving around but lack awareness of. There was no evidence that the [appellant] lacked awareness or didn’t know what was going on, so that would be inappropriate.” Involuntary manslaughter is treated as a lesser included offense of murder. (People v. Ochoa (1998) 19 Cal.4th 353, 422.) “When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter.” (Id. at p. 423.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive .…” (Ibid.) Instead, “unconsciousness ‘ “can exist … where the subject physically acts in fact but is not, at the time, conscious of acting.” ’ ” (Id. at p. 424.) “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7.) “A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant’s theory of the case.” (People v. Rogers (2006) 39 Cal.4th 826, 887.)

13. “We review a trial court’s failure to instruct on a defense theory de novo and view the evidence in the light most favorable to the defendant in doing so.” (People v. Ibarra (2024) 106 Cal.App.5th 1070, 1081.) Appellant argues the trial testimony concerning his intoxication and behavior, as well as his statements to police at the time of his arrest and in his interview shortly thereafter, constituted substantial evidence that he was unconscious at the time of the incident. We are not persuaded. Although the record provides substantial evidence that appellant was intoxicated at the time of the incident, the evidence in the record lacks substantial evidence that he was unconscious at that time. None of the evidence relied upon by appellant demonstrates he was unaware of his actions at the time. Because evidence of intoxication by itself is insufficient to warrant the CALCRIM No. 626 instruction, the trial court did not err by failing to give the instruction. (People v. Abilez (2007) 41 Cal.4th 472, 516 [evidence defendant consumed an unknown amount of alcohol insufficient because there was no evidence he was so intoxicated that he could be considered unconscious]; People v. Carlson (2011) 200 Cal.App.4th 695, 701, 704 [blood-alcohol level of 0.23 percent and memory loss insufficient to warrant instruction].) Appellant recalled a significant degree of details leading up to, during, and after the incident in his postarrest interview and trial testimony. Appellant recalled that he went with Cristian M. to rob Robertson. Appellant told the detectives that he, Cristian, and David W. were following Robertson near Dinuba when their car pulled around Robertson’s truck, bringing both vehicles to a stop. He recalled “taking an angle” on Robertson’s truck, slashing its tires, getting kicked by Robertson, and then stabbing Robertson. He remembered taking Robertson’s black bag. These details are supported by the record, including Cristian’s trial testimony. Based on appellant’s actions during the incident, as well as his ability to recall said behavior and actions, we cannot conclude appellant was “ ‘ “not … conscious of acting” ’ ” at the time. (People v. Ochoa, supra, 14. 19 Cal.4th at p. 424; see People v. Halvorsen (2007) 42 Cal.4th 379, 418 (Halvorsen) [the defendant’s failure to accurately recall certain details of the incidents by the time of trial “does not support an inference he was unconscious when he committed them”].) Appellant notes that certain details he provided during his postarrest interview were not true, and that he could not remember many details. Further, according to his trial testimony, he was simply saying “whatever came to mind” and was “going with it” during that interview. But even so, at least part of “whatever came to mind” was an account of the series of events that finds significant support in the rest of the record, which demonstrates he was conscious of acting. That he provided additional and unsupported details, or multiple and differing accounts, fails to persuade us otherwise. (See Halvorsen, supra, 42 Cal.4th at p. 418 [the defendant having stated before trial that he did not remember the crimes “does not, without more, suggest his testimony about the crimes was mere confabulation”].) Appellant highlights his bizarre behavior and remarks during his arrest and interview. His arrest and interview occurred several days after the incident. (See Halvorsen, supra, 42 Cal.4th at p. 417 [unconsciousness “can exist ‘where the subject physically acts but is not, at the time, conscious of acting’ ” (italics added)].) Notably, after the incident but before the arrest, appellant consumed the methamphetamine he took from Robertson’s truck. Although there is evidentiary support that appellant also took methamphetamine the night before the incident and acted “weird” after the incident later that same day, his actions during the incident refute the notion that he was unconscious. (See People v. Carlson, supra, 200 Cal.App.4th at p. 704 [“ ‘The complicated and purposive nature of [appellant’s] conduct’ ‘makes clear that [he] did not lack awareness of [his] actions during the course of the offense[]’ ”].) While there was evidence that appellant was intoxicated at the time of the incident, the record lacks substantial evidence that appellant’s alcohol and substance use rendered 15. him unconscious. Thus, the trial court correctly declined to give CALCRIM No. 626. Finding no error, we decline to consider whether any assumed error was prejudicial. DISPOSITION The judgment is affirmed.

SANDHU, J. WE CONCUR:

LEVY, Acting P. J.

DETJEN, J.

16.