The People v. Bryan Torrez

San Francisco, California criminal defense lawyer represented Defendant charged with misdemeanor assault and battery.





Bryan Torrez appeals from a judgment of conviction and sentence imposed after a jury found him guilty of misdemeanor assault and battery (Pen. Code, §§ 240, 242).[1] He contends (1) the court erred in precluding expert witness testimony to support his unconsciousness defense; (2) the prosecutor committed misconduct in asking a character witness about a purported arrest of the defendant for attempting to break into cars, because the arrest was actually for resisting a police officer; and (3) the sentencing minutes should be corrected so that he does not have to pay the fees and assessments imposed at sentencing or a $25 fee under section 1463.07. We will order a correction of the sentencing minutes and affirm the judgment.



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Before trial, defense expert Dr. Logan Schneider testified at an evidentiary hearing on the mental and physical effects of sleep deprivation. Dr. Schneider, who had not interviewed Torrez or reviewed any statements from him, opined that everyone eventually suffers the same effects from sleep deprivation, but each person's susceptibility can vary. Typically, after 24 hours of not sleeping, most people will experience a decrease in attention and thinking ability, slight mood alterations, and temperature changes. After 48 hours of not sleeping, these impairments will worsen, people may misperceive reality in the form of visual illusions (misinterpreting things that are there, such as misinterpreting others' facial expressions as more aggressive than they actually are) or hallucinations (seeing things that are not there), and emotions may become more volatile (moodiness, elation, depression, aggression, anger, or irritability) as sleep deprivation continues. After 72 hours without sleep, most people will hallucinate and accept the hallucination as reality. As time goes on, delusions and detachment from reality may make sleep-deprived persons less aware of their impairments. Dr. Schneider distinguished sleep deprivation from sleep walking, however,

confirming that one cannot be conscious when sleep walking, which originates out of deep sleep.





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Before trial, defense expert Dr. Logan Schneider testified at an evidentiary hearing on the mental and physical effects of sleep deprivation. Dr. Schneider, who had not interviewed Torrez or reviewed any statements from him, opined that everyone eventually suffers the same effects from sleep deprivation, but each person's susceptibility can vary. Typically, after 24 hours of not sleeping, most people will experience a decrease in attention and thinking ability, slight mood alterations, and temperature changes. After 48 hours of not sleeping, these impairments will worsen, people may misperceive reality in the form of visual illusions (misinterpreting things that are there, such as misinterpreting others' facial expressions as more aggressive than they actually are) or hallucinations (seeing things that are not there), and emotions may become more volatile (moodiness, elation, depression, aggression, anger, or irritability) as sleep deprivation continues. After 72 hours without sleep, most people will hallucinate and accept the hallucination as reality. As time goes on, delusions and detachment from reality may make sleep-deprived persons less aware of their impairments. Dr. Schneider distinguished sleep deprivation from sleep walking, however,

confirming that one cannot be conscious when sleep walking, which originates out of deep sleep.





As the jury was instructed, unconsciousness is a defense if the defendant was unaware of his actions. (People v. Heffington (1973) 32 Cal.App.3d 1, 9 (Heffington); CALCRIM No. 3425.) This unconsciousness may be caused by, for example, a blackout or epileptic seizure. (People v. Cox (1944) 67 Cal.App.2d 166, 172; People v. Freeman (1943) 61 Cal.App.2d 110.) "To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.'" (People v. Halvorsen (2007) 42 Cal.4th 379, 417; see Heffington, supra, 32 Cal.App.3d at p. 9; People v. Boyer (2006) 38 Cal.4th 412, 472 (Boyer) [suggesting unconsciousness extends to persons who are not conscious of acting but perform acts while asleep or while suffering from a delirium of fever]; People v. Gana (2015) 236 Cal.App.4th 598, 610-611 (Gana) [jury should be instructed on unconsciousness where there is substantial evidence the

defendant's medical condition and medications caused her to suffer delirium, which resulted in fluctuating levels of consciousness].) An inability to remember is generally insufficient, without more, to demonstrate unconsciousness. (E.g., Heffington, supra, 32 Cal.App.3d 1, 10.)...



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In sum, the court did not abuse its discretion in excluding Dr. Schneider's testimony. Because the court instructed the jury with CALCRIM No. 3425 on unconsciousness, allowed testimony from Torrez about his lack of sleep, allowed defense counsel to argue the defense in closing argument, and did not err in excluding Dr. Schneider's testimony, Torrez was not deprived of his defense or a fair trial.

Affirmed

Dr. Logan Schneider, M.D., consultant neurologist at the Palo Alto VA Heath Care System