The People v. William Oliver Richey

Riverside, California criminal defense lawyer represented Defendant charged with voluntary manslaughter.





Infant and victim H.R. died of abusive head trauma suffered at the hands of his father, William Oliver Richey, the defendant, who maintained the child had accidentally drowned in a baby bath, only to be dropped in the shower as defendant attempted to revive him. Defendant was convicted of second-degree murder (Pen. Code, § 187, subd. (a))1 and assault resulting in death (§ 273ab, subd. (a).) Defendant was sentenced to state prison for 25 years to life and appealed.



On appeal, defendant raises two instructional issues. He argues the trial court erred by failing to instruct, sua sponte, on (1) voluntary manslaughter based on a theory of heat of passion as to the murder charge, and (2) the complete defense of unconsciousness, as to both the homicide and assault charges.



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Defendant also argues that the court committed reversible error by failing to instruct sua sponte on the defense of unconsciousness as to both counts. We disagree.



The duty to instruct on the complete defense of unconsciousness, like the duty to instruct on the lesser offense of heat of passion manslaughter, depends on whether the defendant is relying on that defense, or if there is substantial evidence of such a defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Ray (1975) 14 Cal.3d 20, 25 citing People v. Sedeno (1974) 10 Cal.3d 703, 716.) Where the defendant did not rely on that defense at trial and there was no substantial evidence to support such a defense, an instruction on involuntary unconsciousness is not required to be given sua sponte. (People v. Ray, supra, at p. 27.)



"Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge." (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) "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.'" (Id. at p. 417, quoting People v. Newton (1970) 8 Cal.App.3d 350, 376.)



It has been held that an unconscious act within the contemplation of section 26 is one committed by a person who, because of somnambulism, or sleep walking, a blow on the head, or similar cause, is not conscious of acting and whose act therefore cannot be deemed volitional. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1315, and cases

cited.) CALCRIM No. 3425 specifies that unconsciousness may be caused by a blackout, or an epileptic seizure, or involuntary intoxication.



However, while there is no statutory presumption that a person is conscious, such a presumption has been recognized by judicial decision. (People v. Hardy (1948) 33 Cal.2d 52, 63-64, citing People v. Nihell (1904) 144 Cal.200, 202.) "Therefore, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness." (People v. James (2015) 238 Cal.App.4th 794, 804, citing People v. Cruz (1978) 83 Cal.App.3d 308, 330-331.)



Here, defendant, whose burden it was to establish, by evidence, testimonial or otherwise, the affirmative defense of unconsciousness, did not assert that he was unaware of what he was doing due to a blackout, seizure, or other problem interfering with his volition. His appearance to all who interacted with him in the minutes and hours after the baby's abusive head trauma was that of a conscious individual attempting to give CPR to the non-responsive infant. Additionally, his admission to Jamie that he "snapped" while conversing in private at the hospital, is ample evidence that he was conscious and fully aware of what he had done.

Affirmed.