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People v. Ceja6/23/1994
andling a gun that has residue on it, being in close proximity to a firearm discharge, touching something other than a gun with residue on it, or being touched by someone with residue on his hands. It is unpredictable how much gunshot residue or particles are shot out from a Davis .380, but the defendant's criminalist testified he would expect more than one particle. He said the shot itself produces thousands of particles; if someone fired a gun there is probably a good chance that someone would have more than one particle deposited at the time of a shot; whether more than one particle could be identified at some later time when the samples are taken is another question; he has examined samples from suspected shooters where only one or two particles were found.
An analysis of a blood sample taken from the victim revealed the blood contained ethanol and cocaine. Ethanol is drinking alcohol. The blood alcohol level was 0.13 grams percent; the cocaine level was 0.06 micrograms per milliliter and the metabolite was 0.84 micrograms per milliliter. Metabolite is a breakdown product of cocaine. When ethanol and cocaine are taken at the same time, there is a possibility of a drug being formed called ethyl cocaine or cocaethylene. The influence or the effect of the substances is potentiated or increased.
Dr. Terence McGee testified that a combination of cocaine and alcohol prolongs the effect of the substances, and the effects of such a combination are much greater than the effect of either substance singularly. One with a combination of the drugs in his system would have much more of a tendency to "fly off the handle," or do things that might not occur to him in a sober state. If a person has a tendency towards being hostile, the combination of substances would "throw fuel on the fire." It would not be uncommon for such persons to be calm in their demeanor at one moment in time and the next moment be aggressive.
I
JURY INSTRUCTIONS
RE VOLUNTARY AND INVOLUNTARY MANSLAUGHTER
With respect to the murder count, appellant contends the trial court committed reversible error by failing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. This contention is well taken.
The jury was instructed on justifiable self-defense as a complete defense to the murder charge. The court, however, refused to give voluntary manslaughter instructions, finding there was no evidence to warrant such instructions. Defendant argued the voluntary manslaughter instructions would be appropriate if the jury should find defendant's belief in the need for self-defense was honest but unreasonable.
A trial court must instruct the jury on every theory that is supported by substantial evidence and does not err when it refuses to instruct on theories not so supported. (See People v. Flannel (1979) 25 Cal. 3d 668, 685, 160 Cal. Rptr. 84, 603 P.2d 1.) Substantial evidence is evidence from which a reasonable jury could have concluded "'that the particular facts underlying the instruction did exist.' [Citation.]" (People v. Lemus (1988) 203 Cal. App. 3d 470, 477, 249 Cal. Rptr. 897.) Where the theory is that the defendant committed a lesser included offense, the court must instruct on the lesser included offense when there is evidence from which a rational trier of fact could conclude beyond a reasonable doubt, the defendant was guilty of the lesser crime. (People v. Glenn (1991) 229 Cal. App. 3d 1461, 1465, 280 Cal. Rptr. 609.)
"To be exculpated on a theory of sel
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