Filed 3/25/21 P. v. Schmidt CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MIKHAIL SCHMIDT,

Defendant and Appellant.

 D076806

 (Super. Ct. No. SCN370653)

APPEAL from a judgment of the Superior Court of San Diego County, 

Harry M. Elias, Judge. Affirmed and remanded with directions.

Eric R. Larson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. 

Garland, Assistant Attorneys General, Charles C. Ragland and James H. 

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent. 

A jury convicted Mikhail Schmidt with one count of murder (Pen. 

Code,1 § 187, subd. (a)) and found true special circumstance allegations that

1 Undesignated statutory references are to the Penal Code.
2

Schmidt intentionally killed the victim by means of lying in wait (§ 190.2, 

subd. (a)(15)), and further that he personally used a knife in the commission 

of the murder (§ 12022, subd. (b)(1)). Following a bifurcated sanity phase, 

the jury found Schmidt was sane when he committed the murder. The court 

sentenced Schmidt to life in prison without the possibility of parole plus one 

year for the knife use enhancement, in addition to a restitution fine and a 

suspended $10,000 parole revocation fine under section 1202.45. Schmidt 

contends his conviction and the jury’s special circumstance finding must be 

reversed due to prejudicial instructional errors regarding mental impairment 

and voluntary intoxication. He contends that if we do not reverse his 

conviction and the special circumstance finding, we should strike the parole 

revocation fine because he was sentenced to life without the possibility of 

parole. The People concede the latter point, and we agree the court must 

strike that fine. Otherwise, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

In 2017, victim J.B.’s coworker found J.B. stabbed to death outside the 

construction-site trailer where they were staying. Responding police found 

blood stains inside the trailer and a trail of blood leading away from it. 

Pathologists determined J.B.’s blood alcohol content was 0.29 percent at the 

time of his death. 

The next day, Schmidt admitted to killing J.B. to his employer M.H., 

who was also a personal friend. That day, M.H. noticed something “off” about 

Schmidt, and overheard Schmidt on his phone saying he should not be 

talking without a lawyer. M.H. suspected Schmidt had been drinking and

Schmidt admitted it. Schmidt initially told M.H. he was on the phone with 

someone investigating him for war crimes, and talked about his experience in 
3

the military killing people. Schmidt also claimed to be working for an 

organization called “Agent Orange,” which gave him instructions to hurt 

others. Schmidt then admitted he had killed J.B., going into “graphic detail” 

about the interaction and killing. M.H. had heard about the previous night’s 

murder and prodded Schmidt for information. Schmidt said he had been 

“looking for trouble” and trying to find someone “alone and vulnerable.” 

Schmidt told M.H. he saw J.B., who seemed drunk, and followed him back to 

the construction site and into the trailer. Schmidt threw a paint brush inside 

to see if it would startle or wake anyone up, then when nothing happened, 

proceeded to stab J.B. in the ear and also in the kidney specifically to stop 

him from screaming. When M.H. pressed Schmidt about the conflict between 

his Agent Orange story and his description of how he encountered J.B.,

Schmidt said, “Would you believe me if I told you that everything about the 

Agent Orange was . . . total bullshit?” When M.H. said yes, Schmidt 

admitted it was “totally random”; that he found and followed J.B. M.H. 

asked Schmidt to go for a walk outside together, but beforehand told his wife 

to lock the store doors and call police, who eventually arrested Schmidt. 

Following his arrest, police interviewed Schmidt. He initially denied 

killing the victim and telling M.H. about it, but eventually gave officers a 

detailed account of his actions before and during the crime, consistent with 

what he told M.H.2 Schmidt explained: “It was random. It really was. Uh, 

there was no rhyme or reason behind why I chose him. Um, lately I’ve been 

just like tasting blood, like I needed that thrill again. I did. And last night, I 

don’t know where it came from. I honestly, I don’t know what came over me. 

2 The jury viewed Schmidt’s videotaped interview, which he gave after 

police read him his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 

436.)
4

Um, so yeah, I went. I left my house with that intention to do harm.” 

Schmidt told officers he “crept into the fucking trailer and that was that, 

boom. . . . I knew there was blood on the way out. But damn, I did not think 

about the phone GPS. I did not, I wiped my whole fucking car down with 

Lysol last night, except for the fucking outside. I mean I, I played, I played 

this whole thing out in my head so many fucking times, of how to, how to do 

it. And my biggest fault is that I needed to let someone know, so I told 

[M.H.]. That was my biggest fault. That was my downfall, that I needed 

recognition for, and I have completely ruined everything I had, just off of one 

night of fucking just pain.” A blood sample taken from Schmidt at the

conclusion of his police interview was determined to have an alcohol content 

of 0.092 percent. 

Defense Evidence

At trial, Schmidt presented a neurologist expert who testified he 

suffered from brain abnormalities consistent with PTSD, as well as psychotic 

and mood disorders. He presented a psychiatrist expert who opined Schmidt 

had experienced some form of trance, loss of consciousness, seizure, “highly 

altered mental state” or altered consciousness.3 However, the expert 

explained that alcohol would suppress seizures and allow an addicted person 

to function better: “Alcohol suppresses seizures. Alcohol withdrawal causes 

seizures. And typically you have to be highly dependent on alcohol—highly 

dependent meaning you wake up in the morning and your neurologic system 

doesn’t work; you can’t coordinate until you have another drink, and then you 

can move your hands and legs in a coordinated fashion. That’s when people 

are addicted to alcohol.” 

3 Schmidt and the People presented expert evidence in the sanity phase 

of trial, which is not at issue on appeal.
5

Schmidt testified in his defense that he became a daily drinker by 2014, 

and sought help. He relapsed into consistently drinking alcohol in 2017. 

According to Schmidt, he committed the killing during a five-hour black-out 

period after Agent Orange, a counterterrorism government agency, 

“activated” or hired him through “nanobot” controllers that were injected into 

his brain. He remembered seeing the victim, identifying him as a target that 

the agency wanted him to eliminate, and following him through the 

construction site gate. He recalled stabbing the victim once in the ear and 

twice in the kidney. After the killing, Schmidt remembered cleaning his 

knife. He testified he saw these things from a “bird’s eye view.” The next 

morning he thought it was a dream, but then realized it was not after finding 

his clothes in the dryer and seeing yellow tape at the construction site. At 

that time, panic set in and he bought a bottle of alcohol. Schmidt denied 

telling the truth to police when he said he was feeling the need to taste blood 

or had the urge to kill, but he could not explain why he made those 

statements to police.

Rebuttal

In rebuttal, the People presented a clinical psychologist who testified 

that Schmidt exhibited traits of grandiosity, glib superficial charm, a need for 

stimulation, and pathological lying, for which he scored the highest on her 

tests. She opined that Schmidt was manipulative and not particularly 

impulsive, but his actions were “planned out and calculated” in that he 

considered the pros and cons before doing things. The prosecution also 

presented Schmidt’s Marine Corps commanding officer who rebutted a 

number of things. 

The trial court gave the jury the following instruction regarding 

voluntary intoxication based on CALCRIM No. 625: “You may consider 
6

evidence, if any, of the defendant’s voluntary intoxication only in a limited 

way. You may consider the evidence only in deciding whether the defendant

acted with an intent to kill, the defendant acted with deliberation and 

premeditation, or the defendant was unconscious when he acted. A person is 

voluntarily intoxicated if he or she becomes intoxicated by willingly using any 

intoxicating drug, drink, or other substance knowing that it could produce an

intoxicating effect, or willing to [sic] assume the risk of that effect. You may 

not consider evidence of voluntary intoxication for any other purpose.”

The trial court also instructed the jury with a modified version of 

CALCRIM No. 3428 as follows: “You have heard evidence that the defendant 

may have suffered from a mental disease or defect or disorder. You may

consider this evidence only for the limited purpose of deciding whether at the 

time of the charged crime the defendant acted with the intent or mental state 

required for that crime. The People have the burden of proving beyond a

reasonable doubt that the defendant acted with the required intent or mental

state, specifically malice aforethought. If the People have not met this 

burden, you must find the defendant not guilty of murder. The People have 

the burden of proving beyond a reasonable doubt that the defendant acted 

with the required intent or mental state, specifically: intent to kill, as it 

relates to the special circumstance of lying in wait. If the People have not 

met this burden, you must find the defendant not guilty of the special 

circumstance or murder by means of lying in wait.”

Defense counsel did not object to the giving of these instructions, nor 

did he raise any issue or objection about them during the jury instruction 

conference. 
7

DISCUSSION

I. Instructional Error Claims

Schmidt raises two claims of instructional error. He first contends the 

modified version of CALCRIM No. 3428 read to the jury regarding mental 

impairment erroneously failed to provide that the evidence of mental disease, 

defect, or disorder applied not only to malice aforethought, but also to the 

elements of premeditation and deliberation. He additionally contends the

version of CALCRIM No. 625 given to the jury regarding voluntary 

intoxication erroneously failed to instruct jurors they could consider the 

evidence of his voluntary intoxication in evaluating the accuracy and 

reliability of the statements he made during his post-arrest police 

interrogation. Schmidt maintains that based on the evidence and the 

prosecutor’s closing argument, the instructional errors were prejudicial and 

his conviction should be reversed. 

A. Forfeiture

Schmidt’s counsel did not object to either instruction given, nor did he 

ask for clarification, amplification or further modification to encompass the 

additional issues mentioned above. Given the omission, the People respond 

that Schmidt forfeited the instructional errors. The People argue that the 

sole inquiry is whether the claim of error affected Schmidt’s substantial 

rights under section 1259, which they equate with asking whether the 

instruction resulted in a miscarriage of justice. They argue it is not 

reasonably likely that Schmidt would have received a different outcome had 

his counsel sought amplification of the instructions. 

We agree with the People in part, that is, we agree the claims are 

forfeited, but there is no need to assess the instructions’ impact on Schmidt’s 

substantial rights. In People v. Buenrostro (2018) 6 Cal.5th 367, the 
8

California Supreme Court suggested a limit on section 1259’s application in 

addressing the Attorney General’s claim of forfeiture, explaining: “In 

general, a defendant may raise for the first time on appeal instructional error 

affecting his or her substantial rights. [Citation.] But ‘[a] party may not 

argue on appeal that an instruction correct in law was too general or 

incomplete, and thus needed clarification, without first requesting such 

clarification at trial.’ ” (Id. at p. 428, italics added; see also People v. 

Covarrubias (2016) 1 Cal.5th 838, 901, 906, 911, 913 [holding forfeiture rule 

applies to failure to request clarifying or amplifying language to an 

incomplete instruction without applying section 1259]; People v. Jackson 

(2016) 1 Cal.5th 269, 336 [same]; People v. Williams (2015) 61 Cal.4th 1244, 

1286; but see People v. Townsel (2016) 63 Cal.4th 25, 59-60 [invoking section 

1259 to review defendant’s claim that predecessor jury instruction to 

CALCRIM No. 3428 was incomplete without identifying premeditation and 

deliberation as mental states]; People v. Rodgers (2006) 39 Cal.4th 826, 881, 

fn. 28 [same].) In Buenrostro, the defendant claimed that the challenged 

instruction improperly permitted the jury to find her guilty based on evidence 

of motive alone. (Buenrostro, 6 Cal.5th at p. 428.) The high court held the 

claim was forfeited because, “at bottom, it is an argument that the 

instruction was incomplete” and thus the “[d]efendant was obligated to 

request a clarifying instruction [but] failed to do so, thereby forfeiting her 

appellate challenge.” (Ibid.) The defendant made additional claims that 

other instructions were incorrect. (Ibid.) As to those claims, the California 

Supreme Court held they were reviewable despite the lack of an objection 

below. (Ibid.) 

Thus, while courts will not find a forfeiture when a defendant claims 

the court gave a jury instruction incorrect in law (People v. Buenrostro, supra, 
9

6 Cal.5th at p. 428; People v. Gomez (2018) 6 Cal.5th 243, 312), this is not the 

claim Schmidt makes here. As to the voluntary intoxication instruction, 

Schmidt admits the jury in his case “was properly told the voluntary 

intoxication evidence applied to the elements of intent to kill, premeditation, 

and deliberation . . . .”4 His claim is that the jury should have been 

instructed that the evidence also was relevant to its evaluation of his 

truthfulness or the reliability of his statements to police. With respect to the 

mental impairment instruction, Schmidt’s claim is likewise that it should 

have additionally encompassed premeditation and deliberation, not just 

intent to kill or malice aforethought. 

Schmidt argues forfeiture is not applicable to his challenges because 

the error fell within the trial court’s sua sponte duty to correctly instruct the 

jury on general principles of the law or elements of the offense. But here, the 

trial court gave otherwise correct instructions. The cases Schmidt cites, 

including People v. Montoya (1994) 7 Cal.4th 1027, 1047 [“a trial court must 

instruct on general principles of law that are commonly or closely and openly

connected with the facts before the court and that are necessary for the jury’s 

understanding of the case”] and People v. Hillhouse (2002) 27 Cal.4th 469, 

503 [the trial court has a sua sponte duty to correctly instruct on all elements 

of the charged offenses] predate Buenrostro and do not convince us that the 

forfeiture rule is inapplicable here. In People v. Chavez (2018) 22 

Cal.App.5th 663, this court addressed a defendant’s claim of error in failing 

to instruct the jury fully on self-defense, specifically, by failing to include 

bracketed language within the instruction pertaining to an aggressor’s right 

to use self-defense when he initially uses nondeadly force, but the opponent 

4 This court has held that CALCRIM No. 625 is a correct statement of 

the law. (People v. Turk (2008) 164 Cal.App.4th 1361, 1381.)
10

counters with deadly force. (Id. at p. 692.) Chavez did not address forfeiture 

or waiver, and it involved the alleged failure to instruct on a theory of the 

case, implicating the court’s sua sponte obligation. Chavez does not prevent 

us from concluding that forfeiture applies to Schmidt’s claim here that 

otherwise correct jury instructions were incomplete. 

We need not further discuss the issue, because even if we were to 

address the merits of Schmidt’s claims, we would reject them.

B. CALCRIM No. 3428

There is no merit to Schmidt’s challenge to the court’s failure to modify 

CALCRIM No 3428 sua sponte. We assess independently whether 

instructions correctly state the law (People v. Posey (2004) 32 Cal.4th 193, 

218), considering the instructions as a whole as we must. (People v. Tate 

(2010) 49 Cal.4th 635, 696.) As to prejudice, we review under the Watson 

(People v. Watson (1956) 46 Cal.2d 818) harmless error standard claims of 

“ ‘ “ ‘incorrect, ambiguous, conflicting, or wrongly omitted instructions that do 

not amount to federal constitutional error . . . .’ ” [Citations.] ‘[U]nder

Watson, a defendant must show it is reasonably probable a more favorable 

result would have been obtained absent the error.’ [Citation.] [¶] . . . [¶] 

Further, the Watson test for harmless error ‘focuses not on what a reasonable 

jury could do, but what such a jury is likely to have done in the absence of the 

error under consideration. In making that evaluation, an appellate court 

may consider, among other things, whether the evidence supporting the 

existing judgment is so relatively strong, and the evidence supporting a 

different outcome is so comparatively weak, that there is no reasonable 

probability the error of which the defendant complains affected the result.’ ” 

(People v. Beltran (2013) 56 Cal.4th 935, 956; see People v. Watt (2014) 229 
11

Cal.App.4th 1215, 1219-1220 [Watson standard applies to instructional error 

by failing to instruct or giving an erroneous instruction].)

The court correctly instructed the jury with the pattern version of 

CALCRIM No. 3428 that evidence of mental disorder could be considered “for 

the limited purpose of deciding whether, at the time of the charged crime, the 

defendant acted with the intent or mental state required for that crime.” The 

court additionally separately defined first degree murder for the jury with 

CALCRIM No. 521,5 which included instructions regarding premeditation 

and deliberation for purposes of one of the theories advanced by the People 

for first degree murder: “The defendant is guilty of first degree murder if the 

People have proved that he acted willfully, deliberately, and with 

5 The court instructed the jury: “The defendant has been prosecuted for 

first degree murder as charged in Count 1 under two theories: First, that the 

murder was willful, deliberate, and premeditated; and, second, that the 

murder was committed by lying in wait. Each theory of first degree murder 

has different requirements, so I will instruct you on both. [¶] You may not 

find the defendant guilty of first degree murder unless all of you agree that 

the People have proved the defendant committed murder as defined as first 

degree. You need not all agree as to the same theory. So let me define for 

you deliberation and premeditation.” The court then read CALCRIM No. 521 

more fully on premeditation and deliberation as follows: “The defendant is 

guilty of first-degree murder if the People have proved that he acted willfully, 

deliberately, and with premeditation. The defendant acted willfully if he 

intended to kill. The defendant acted deliberately if he carefully weighed the 

considerations for and against his choice and, knowing the consequences, 

decided to kill. The defendant acted with premeditation if he decided to kill

before completing the act that caused death. [¶] The length of time the 

person spends considering whether to kill does not alone determine whether 

the killing is deliberate and premeditated. The amount of time required for 

deliberation and premeditation may vary from person to person and 

according to the circumstances. A decision to kill made rashly, impulsively, 

and without careful consideration is not deliberate and premeditated. On the 

other hand, a cold, calculated decision to kill can be reached quickly. The test 

is the extent of the reflection, not the length of time.” 
12

premeditation. The defendant acted willfully if he intended to kill. The 

defendant acted deliberately if he carefully weighed the considerations for 

and against his choice and, knowing the consequences, decided to kill. The 

defendant acted with premeditation if he decided to kill before completing the 

act that caused death.” Read together, these instructions gave the jury the 

ability to assess the mental disorder evidence on the issue of whether 

Schmidt premeditated or deliberated. “ ‘ “[T]he fact that the necessary 

elements of a jury charge are to be found in two instructions rather than in 

one instruction does not, in itself, make the charge prejudicial.” [Citation.]

“The absence of an essential element in one instruction may be supplied by 

another or cured in light of the instructions as a whole.” ’ ” (People v. Bolin

(1998) 18 Cal.4th 297, 328; see also People v. Sanchez (2001) 26 Cal.4th 834, 

852 [jurors are presumed able to “understand and correlate” instructions and 

to have followed the court’s instructions].) 

This was the conclusion of the California Supreme Court in People v. 

Townsel (2016) 63 Cal.4th 25 and People v. Rogers, supra, 39 Cal.4th 826, in 

which the defendants advanced similar claims as Schmidt does here: that the 

court erred by failing to identify premeditation and deliberation when 

instructing with CALJIC No. 3.32, the predecessor instruction to CALCRIM 

No. 3428. (People v. Townsel, at pp. 58-59; People v. Rogers, at p. 880.) In 

Townsel, the court instructed the jury with CALJIC No. 3.32 on how it could 

apply evidence of mental defect or disorder to the charges before it, which 

included murder, dissuading a witness, and witness-killing as a special 

circumstance. As Schmidt does here, the defendant in Townsel contended 

that the instruction given, directing the jurors to consider that evidence 

“solely” in determining whether the defendant “ ‘actually formed the mental 

state which is an element of . . . murder’ ” (Townsel, at p. 59), limited the 
13

jury’s consideration to malice aforethought, precluding its consideration of 

the evidence on the question of premeditation and deliberation. The 

Supreme Court—applying People v. Rogers, 39 Cal.4th 826—rejected this 

position and found the instruction sufficient with respect to premeditation 

and deliberation, explaining that once the jury found malice, it was directed 

to make the further finding of premeditation and deliberation, which 

undisputedly was a mental state. (Townsel, at pp. 62-63.) In Rogers, the 

defendant, who was found guilty of first degree murder with a multiple 

murder special circumstance, argued the trial court should have specified 

premeditation and deliberation as mental states to which his mental health 

evidence was relevant. (Ibid.) The Rogers court rejected the argument: “We 

previously have rejected claims that a trial court erroneously failed to 

identify premeditation and deliberation as a mental state to which evidence 

of mental disease or defect was relevant, in cases where the trial court either 

explained that premeditation and deliberation were mental states necessary 

for a conviction of first degree murder [citations] or instructed that ‘ “the 

mental state required is included in the definition of the crime charged” ’ 

[citation]. We also have rejected a similar claim regarding the instruction 

relating voluntary intoxication to mental state. [Citation.] In the foregoing 

cases, in light of full instructions defining first degree murder including an 

explanation of premeditation and deliberation, we concluded ‘a reasonable 

jury would have understood that the requisite mental states (as set forth in 

the definitions of the crimes) were the same “mental states” that could be 

considered in connection with the evidence of defendant’s mental disease, 

defect, or disorder.’ ” (Id. at p. 881.) 

In reply, Schmidt distinguishes People v. Rogers on grounds the court 

there instructed the jury it could consider mental impairment on “whether or 
14

not the defendant actually formed the mental state which is an element of 

the crimes charged in the information” (People v. Rogers, supra, 39 Cal.4th at 

p. 880), but here, the court specified “intent to kill” and “malice aforethought” 

as the mental states to which the evidence was relevant. But the instruction 

in this case did tell the jury that it could consider the mental impairment 

evidence for the purpose of deciding “whether, at the time of the charged 

crime, the defendant acted with the intent or mental state required for that 

crime.” Schmidt’s effort to distinguish Rogers is not persuasive, and like the 

court there, we likewise presume the jurors associated the “intent or mental 

state” required for “the charged crime” with the mental elements of first 

degree murder, including premeditation and deliberation, which the court 

had already defined pursuant to CALCRIM No. 521. 

In sum, we see no likelihood that the jury, considering CALCRIM No. 

3428 in the context of the entire body of instructions on first degree murder, 

would have misunderstood the instruction as meaning it could not consider 

Schmidt’s mental impairment, if any, when determining whether he killed 

with premeditation and deliberation.

Finally, even if we were to determine there was some error, it is 

harmless in view of the jury’s true finding on the special circumstance 

allegation that Schmidt killed J.B. by lying in wait. That finding alone 

designated the crime as one of first degree murder. “ ‘Lying in wait is the 

functional equivalent of proof of premeditation, deliberation, and intent to 

kill.’ . . . Once a sufficient period of watching and waiting is established, 

together with the other elements of lying-in-wait murder, no further evidence 

of premeditation and deliberation is required in order to convict the 

defendant of first degree murder.” (People v. Sandoval (2015) 62 Cal.4th 394, 

416; see also People v. Wright (2015) 242 Cal.App.4th 1461, 1496 [showing of 
15

lying in wait makes unnecessary separate proof of premeditation and 

deliberation].) The court included “intent to kill, as it relates to the special 

circumstance of lying in wait” as part of CALCRIM No. 3428 on the use of 

defendant’s asserted mental impairment. We conclude any misdirection of 

the jury as to premeditation and deliberation would not have altered the 

verdict.

C. CALCRIM No. 625

Schmidt contends the version of CALCRIM No. 625 given was 

incomplete and erroneous because it improperly limited the jury’s 

consideration of voluntary intoxication evidence to the elements of intent, 

deliberation and premeditation, or whether he was unconscious when he 

acted. Citing People v. Wiidanen (2011) 201 Cal.App.4th 526, he maintains 

that based on this record, the voluntary intoxication evidence was also 

relevant to the jury’s evaluation of the veracity and reliability of the

incriminating statements he made during his police interview. Schmidt 

argues the error was prejudicial and compels reversal of his first degree 

murder conviction as well as the special circumstance finding because it 

“struck directly at the heart of [his] defense based on mental disease and 

defect.” He maintains he presented a credible mental disease or defect 

defense, and points to evidence that he was an Iraq war veteran diagnosed 

with PTSD; his crime was nonsensical, suggesting mental illness; and the 

evidence of intent to kill was strong and consistent with his killing for the 

“thrill of it” or at “Agent Orange’s” direction. According to Schmidt, had the 

jury been properly instructed on his mental disease defense, there is a 

reasonable probability it would have found that though he acted with the 

intent to kill, he did not do so with the requisite deliberation and 

premeditation necessary for first degree murder or the lying-in-wait 
16

allegation. Schmidt argues the erroneous voluntary intoxication instruction 

compounded the prejudice due to the prosecution using his voluntary 

intoxication to undercut his defense by suggesting it was fabricated since he 

did not talk about Agent Orange when he was being interviewed by police 

while intoxicated. 

For the reasons expressed above, we agree with the People that 

Schmidt forfeited the claim by failing to ask that the instruction be 

supplemented or augmented. (People v. Buenrostro, supra, 6 Cal.5th at p. 

428; People v. Covarrubias, supra, 1 Cal.5th at pp. 901, 906, 911, 913; People 

v. Jackson, supra, 1 Cal.5th at p. 336.)

To forestall Schmidt’s ineffective assistance of counsel claim, however, 

we will address the merits and assume the court erred by failing to sua 

sponte modify the voluntary intoxication instruction as Schmidt contends.6 

Schmidt argues we should assess prejudice as if the error deprived him of 

instructions on an applicable defense and apply the Chapman (People v. 

Chapman (1967) 386 U.S. 18) standard of prejudice for federal constitutional 

error. We do not see Schmidt’s claims of incomplete jury instructions on the 

issues of mental defect and voluntary intoxication as the absence of jury 

instructions on a defense or as preventing Schmidt from presenting a 

defense. And the California Supreme Court has held that instructional error 

6 The People concede that under People v. Wiidanen, supra, 201 

Cal.App.4th at p. 533, intoxication has relevance to the question of 

awareness, familiarity, understanding, and the ability to recognize and 

comprehend. However, the law as to voluntary intoxication, section 29.4, 

subdivision (b), does not say voluntary intoxication is relevant to a 

defendant’s veracity. (§ 29.4, subd. (b) [“Evidence of voluntary intoxication is 

admissible solely on the issue of whether or not the defendant actually 

formed a required specific intent, or, when charged with murder, whether the 

defendant premeditated, deliberated, or harbored express malice 

aforethought”].) 
17

restricting a jury’s consideration of voluntary intoxication amounts to state 

law error. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 187; People v. 

Mendoza (1998) 18 Cal.4th 1114, 1134-1135.) Under the circumstances, we 

reverse only if we find a reasonable probability the error affected the verdict 

adversely to Schmidt. (Letner, at p. 187.) 

While Schmidt maintains the instructional errors struck at the heart of 

his mental deficiency defense, we have already concluded that the court 

properly instructed the jury as to that defense. We need only address 

Schmidt’s claim that the voluntary intoxication instruction “was used by the 

prosecution to undercut his [mental deficiency] defense at trial by suggesting 

it was fabricated because he did not say these same things about Agent 

Orange while he was intoxicated and being interviewed by police.” Schmidt 

refers to the prosecutor’s closing arguments at pages 1287 to 1289, but in 

none of the closing remarks on those pages did the prosecutor refer to the 

voluntary intoxication instruction or Schmidt’s intoxication at all. Finally, in 

view of Schmidt’s conduct after the killing, wiping down his vehicle and 

cleaning his clothing, as well as his concession to M.H. that the Agent Orange 

story was “total bullshit,” Schmidt’s mental deficiency defense was weak 

already. On this record, Schmidt has not demonstrated prejudice. 

As for the effect of voluntary intoxication on Schmidt’s veracity or 

reliability of his statements to police, neither Schmidt nor his own defense 

expert testified or even suggested at trial that his intoxication impacted his 

statements to police. As summarized above, Schmidt’s defense medical 

expert explained that alcohol would suppress seizures and allow an alcoholic 

to become more functional. Schmidt himself was asked about the truth of his 

statements to police and did not say they were influenced in any way by 
18

alcohol.7 Additionally, the jury heard M.H. testify about Schmidt confessing 

to killing J.B. consistent with what Schmidt told police. We cannot say on 

this record there is a reasonable probability the jury would have reached a 

verdict more favorable to Schmidt had the trial court instructed it to consider 

his intoxication on the veracity or reliability of his statements to police. 

II. Parole Revocation Fine

Schmidt contends his parole revocation fine must be stricken from his 

sentence because he was sentenced to life without the possibility of parole, for 

which such a fine is inapplicable. (People v. Jenkins (2006) 140 Cal.App.4th 

805, 819.) The People concede the error and we agree; “a parole revocation 

fine is not applicable where there is no possibility of parole.” (People v. 

DeFrance (2008) 167 Cal.App.4th 486, 505.)

7 Schmidt gave the following testimony after being asked: “Do you recall 

telling [the detective] that you felt you needed a taste for blood?” [¶] 

[Schmidt]: Yes. Okay. [¶] [Defense counsel:] That you needed that thrill 

again; you had the edge? [¶] [Schmidt:] Yes. [¶] [Defense counsel:] Why 

did you say that? [¶] [Schmidt]: You know, I’ve been kicking myself for that 

for the last two and a half years. The worst thing to ever say to a prosecutor, 

I guess, or detective. But in my—in my head it didn’t feel like this whole 

thing was real—it still doesn’t feel real. And so I said the first thing that 

came to my head was wanted to taste blood again which, you know, you hear, 

like, in a Rambo movie or something. [¶] But, like, I can’t say why I said 

that. It’s not like there’s an itch or a feeling like that in me. It’s my own 

little world is happening. [¶] [Defense counsel:] Was there any truth to the 

fact that you were feeling the need to taste blood—[¶] . . . [¶] . . . or the urge 

to kill? [¶] [Schmidt:]—no because I’ve never had this before and—I would 

say no, there’s not.” 
19

DISPOSITION

The matter is remanded and the trial court directed to strike the parole 

revocation fine imposed under section 1202.45 and forward a certified copy of 

the corrected abstract of judgment to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.