Filed 5/15/13 P. v. Levin CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOHN L. LEVIN, 

 Defendant and Appellant. 

 B234523 

 (Los Angeles County 

 Super. Ct. No. GA077861) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. 

Janice C. Croft, Judge. Affirmed. 

 Donna L. Harris for Defendant and Appellant. 

 Kamala D. Harris Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A. 

Lehman, Deputy Attorneys General, for Plaintiff and Respondent. 

____________________________ 
2

BACKGROUND 

Defendant John Levin and Michelle Raymie Longoria (Michelle) were married in 

January 2007. Defendant was described as sharp witted, funny and intelligent. He was a 

natural leader and well regarded by his peers, one describing him as a “take charge kind 

of person,” “a person that would lead the conversation almost always or had a lot to say 

about whatever you were talking about.” Defendant “was always the life of the party in 

the sense that the conversation was around him. He told jokes. He was always talking 

about current events, some project he was working on, some language he was learning, 

some rescue he had been on with the search and rescue.” He weighed between 145 and 

155 pounds. 

 Defendant was an emergency medical technician and member of the Montrose 

search and rescue team, a volunteer reserve sheriff’s deputy team that performs rescues in 

the Angeles National Forest. To get onto the team defendant had attended the reserve 

sheriff’s academy for six months and participated in mountain rescue training for 

approximately one year thereafter. Defendant participated in additional rescue training 

approximately once per month, went out on rescue patrols approximately one weekend 

per month, and responded to emergency rescue calls as needed. One year, he received 

the rescue team’s Golden Piton award for responding to the most emergency calls that 

year. As a team member and reserve sheriff’s deputy, defendant had law enforcement 

powers, received weapons training, and was issued a badge and handgun. The pay was 

$1 per year. 

Defendant had a 13-year-old son, A., and a 12-year-old daughter, E., from a prior 

marriage. He was active in the children’s lives, attended E.’s softball games, and took A. 

geocaching. Michelle treated the children nicely and was like a big sister to E., playing 

with her and her Bratz dolls, sometimes doing their hair. The children lived with 

defendant and Michelle in their small apartment every other weekend and had dinner 

with them on Tuesdays and Thursdays. A. described defendant as a “neat freak.” 
3

Defendant and Michelle had a small dog named Rupert. Defendant loved the dog, 

played with him and, in the words of A., “had fun with him a lot.” 

Beginning in 2006, defendant’s relatives and peers noticed John and Michelle 

often exhibited slurred speech, a stumbling gait, and other signs of impairment. 

Defendant became reclusive, had trouble articulating his thoughts, and was not as quick 

witted as he had been. By 2007, he was “very slow to talk, very slow to answer.” He 

was “[b]arely understandable” and “could barely put three words in front of each other to 

communicate properly.” 

At two rescue team training sessions in 2007, defendant staggered when he 

walked, trembled, and slurred his speech. He was let go from the team in 2008. 

When the children visited defendant’s residence, defendant and Michele would 

stay in their bedroom, leaving A. and E. to entertain themselves. The kitchen reeked, 

there were piles of laundry, trash and dog feces on the floor, and the apartment smelled of 

urine, “disgusting,” “like a cat’s box urine.” 

A. described defendant as being “very skinny” and unhealthy looking. An uncle 

said he was gaunt and pale and had suffered, “[e]xtreme loss of weight, look[ing] very 

sickly” and malnourished, like “a cancer patient.” “[H]is clothes just hung on him.” 

Defendant’s brother said “[h]is facial features were sunken. He didn’t look healthy. 

Then his actions were . . . slow movements, thinking through his speech. He wasn’t as 

quick witted as I always remembered him. He wasn’t as responsive, but still he was 

functional but not his normal self.” He weighed approximately 110 pounds. 

At one of E.’s softball games, Michelle staggered when she walked and slurred her 

speech, and she and defendant seemed to E. to be “under the influence.” Concerned 

parents called defendant’s former wife to come pick up the children. 

In 2009, defendant was involved in an automobile accident while driving the 

children to school. The children decided not to drive to school with him anymore. 
4

Defendant’s family staged a drug intervention for him and Michelle, but defendant 

told them they were overreacting and he was fine. He later told a relative he and 

Michelle were in Las Vegas to check into a drug rehabilitation program. They never did 

so. 

Several days later, on the morning of September 9, 2009, defendant stabbed 

Michelle once in the back with a knife in their bedroom in Glendale. He then locked the 

bedroom door, put Rupert in a microwave oven and turned it on, locked up the apartment, 

and drove to Canada, leaving Michelle to bleed to death. 

Michelle’s and Rupert’s bodies were found by police the next day. The apartment 

was in disarray, like it had been ransacked. Dog feces was all over the floors, a coffee 

table had numerous pill bottles on it, with pills spilled out onto the floor, and the 

nightstands in the bedroom were covered with empty bottles, drinking glasses, 

medication boxes, leftover food, and trash, including several cups full of cigarette butts. 

All the food had been taken out of the refrigerator and set on counters, and shelves from 

the refrigerator were spread out on the floor in front of it. Three knives taped together 

with masking tape were on the kitchen floor, along with a fourth knife. A fifth knife, this 

one bloody, was on a counter. Rupert’s carcass was in the microwave, burned and 

bloodied, with blood spattered around the microwave interior. 

There was a blood trail in the stairwell leading to the bedroom, where Michelle’s 

body was discovered on the floor beside the bed. 

Michelle died from a single stab wound to the back, three inches deep. Her blood 

toxicology screen showed a blood alcohol level of 0.10 percent and was positive for 

Carisoprodol, a muscle relaxant and anti-pain drug commonly marketed as “Soma,” and 

butalbital, a barbiturate/sedative. 

Eighteen prescription pill bottles in defendant’s name for Carisprodol were found 

in defendant’s cars and apartment. Each bottle was labeled to contain 180 pills, with 

directions to take one tablet three times per day. All but one of the bottles came from out 

of state, and all but one of the prescriptions was filled between May 3, 2009 and 

August 20, 2009. 
5

Defendant was detained when he tried to drive across the Canadian border. He 

had cuts and scratches on his hands and wrists and a cut on his chest. Defendant first told 

police he had no idea why he had been arrested. He and Michelle had a healthy and 

loving relationship, but he left the apartment because she was taking Soma and “just went 

crazy.” She stabbed him in the chest while he was asleep, then told him to “[G]et the hell 

out,” and she would “see [him] in hell.” He was “just trying to get a few days between” 

them so he “could get back together with her.” There was nothing physically wrong with 

her when he left—she was standing at the door yelling and throwing knives at him. 

 Defendant next told police that he threw a knife at Michelle, which hit her in the 

back and penetrated about an inch. She told him she would see him in hell and collapsed 

on the bed. He panicked, grabbed his keys and pouch and two computers (“Because I 

thought I’d be working”), and got in the car and drove away. Although at first defendant 

said he did not remember going into the kitchen, he later said that after wounding 

Michelle he went to the kitchen, took everything out of the refrigerator, and shut himself 

in it for 30 minutes, hoping to die. When that did not work, he went back upstairs and 

saw Michelle bleeding. After she told him she would see him in hell, he gathered his 

things and left. 

 Defendant at first denied anything had happened to the dog but later stated he 

killed it in the microwave because it had eaten some of Michelle’s medicine, “was 

freaking out,” and tried to bite him. 

Defendant said the knives in the kitchen were taped together because he wanted to 

sit on them to kill himself, but ultimately did not do so. Defendant said he stabbed 

Michelle because she asked him to, he knew she was dying, and he stabbed himself in the 

chest because he needed a “defense strategy,” something to make it look like he was 

running away from something. 

 Defendant said he and Michelle were both “on drugs,” and he had last used Soma 

on Friday, September 11, 2009. But when asked whether the drugs had some effect on 

what he had done, he answered, “No.” He took Soma for jaw pain, and although he 

abused it in the past, he had not abused it recently. 
6

Defendant was charged with one count of murder (Pen. Code, § 187, subd. (a))1

and one count of animal cruelty (§ 597, subd. (a)), and it was alleged he committed the 

murder with a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). He pleaded 

not guilty and denied the special allegation, later changing his plea to the animal cruelty 

count to no contest. 

Although the prosecution urged the jury to find defendant guilty of first degree 

murder, it found him guilty only of second degree murder, finding true the allegation that 

the murder was committed with a knife. He was sentenced to 15 years to life in prison 

plus a consecutive one-year enhancement for use of a knife, plus a consecutive two-year 

term for animal cruelty. He timely appealed. 

After appellate counsel submitted the matter in this court on the briefs, we 

reviewed the record and requested that the parties submit supplemental briefs on whether 

the trial court erred in refusing to instruct the jury with CALJIC Nos. 4.21 and 4.22, 

pertaining to intoxication, and, if so, whether the error was prejudicial. Defendant and 

respondent both submitted supplemental letter briefs that we have considered. 

DISCUSSION 

A. Jury Instructions Pertaining to Mental Impairment 

Defendant requested an instruction in the terms of CALJIC No. 8.47, pertaining to 

unconsciousness due to voluntary intoxication. As requested, CALJIC No. 8.47 reads: 

“If you find that a defendant, while unconscious as a result of voluntary intoxication, 

killed another human being without an intent to kill and without malice aforethought, the 

crime is involuntary manslaughter. [¶] This law applies to persons who are not 

conscious of acting but who perform act [sic] or motions while in that mental state. The 

condition of being unconscious does not require an incapacity to move or to act. [¶] 

When a person voluntarily induces his own intoxication to the point of unconsciousness, 

he assumes the risk that while unconscious he will commit acts dangerous to human life 

or safety. Under those circumstances, the law implies criminal negligence.” 

 

 1 Undesignated statutory references are to the Penal Code. 
7

The trial court refused defendant’s request to give this instruction, finding no 

substantial evidence that defendant was intoxicated or unconscious when he stabbed 

Michelle. 

Defendant contends lack of the voluntary intoxication instruction violated his 

constitutional right to present a defense. We disagree. 

With respect to any defense or defense theory, the trial court must give a requested 

instruction only if substantial evidence supports the proffered defense or theory. (In re 

Christian S. (1994) 7 Cal.4th 768, 783.) For example, a trial court must instruct sua 

sponte on a lesser included offense if there is substantial evidence that would, if accepted 

by the trier of fact, absolve the defendant of guilt of the greater offense but not of the 

lesser. (People v. Blair (2005) 36 Cal.4th 686, 745.) Substantial evidence in this context 

is “evidence from which a jury composed of reasonable persons could conclude that the 

facts underlying the particular instruction exist.” (Ibid.) In deciding whether substantial 

evidence necessitates an instruction, the court determines only the legal sufficiency of the 

evidence, not its weight. (People v. Flannel (1979) 25 Cal.3d 668, 684, overruled on 

another ground in In re Christian S., at p. 777.) “‘Doubts as to the sufficiency of the 

evidence to warrant instructions should be resolved in favor of the accused.’ [Citations.]” 

(People v. Flannel, at p. 685.) The test is not whether there is any evidence, but whether 

there is evidence from which a reasonable jury could have found the specific facts 

supporting the instruction. (Id. at p. 684.) 

“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 selfintoxicating to that point, and is treated as involuntary manslaughter.” (People v. Ochoa

(1998) 19 Cal.4th 353, 423.) Involuntary manslaughter is a lesser offense of murder. 

(People v. Abilez (2007) 41 Cal.4th 472, 515.) 

The record includes no evidence that defendant was intoxicated to the point of 

unconsciousness when he killed Michelle. Although defendant told police he and 

Michelle were “on drugs,” there was no evidence that Carisoprodol, a muscle relaxant 

and pain reliever, would have rendered him unconscious. Defendant himself told police 
8

that drugs had no effect on what he had done. The trial judge thus properly declined to 

instruct the jury on involuntary manslaughter. 

Defendant argues substantial evidence indicated he was a drug addict whose life 

had spiraled out of control. By 2009 he was hopelessly addicted to prescription drugs, he 

was intoxicated numerous times from 2006 to 2009, his personality, personal habits, and 

physical condition changed drastically for the worse, and he told police he and Michelle 

were both on drugs and the last time he used Soma was Friday, September 11, 2009, two 

days after the murder. Furthermore, although defendant was described as sharp and 

quick witted by several people, he did not have a believable, well-thought out explanation 

for how Michelle had been stabbed. He argues his mental impairment before the murder 

and his inability to formulate a coherent story afterward imply he suffered impairment 

continuously up to the time he was arrested, and the jury would have been entitled to 

conclude his rambling and bizarre account of events was made up by someone who did 

not remember exactly what had happened. 

We disagree. Nothing in the record suggests defendant was so mentally impaired 

at any time as to be unconscious. That defendant held a job at all and was reasonably 

functional compels a contrary conclusion. 

Even if failing to instruct on involuntary manslaughter was error, any error was 

harmless under People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal only 

where a different verdict would have been probable absent the error. (See People v. 

Breverman (1998) 19 Cal.4th 142, 178 [failure to instruct sua sponte on a lesser included 

offense is reviewed for prejudice under People v. Watson].) Defendant was able to 

recount in detail his actions on the morning of the murder, actions that revealed he was 

“not only conscious, but calculating, alert and methodical.” (People v. Haley (2004) 34 

Cal.4th 283, 313.) For example, defendant described how immediately after the murder 

he formulated a plan to stab himself in the chest as part of a “defense strategy,” gathered 

computers in anticipation of using them in his work, locked up the house and drove from 

Southern California to Canada. That defendant was able to describe the crime in detail, 

formulate a defense strategy, collect his things and drive to Canada shows that no 
9

reasonable jury could have found him to be so incapacitated as to be guilty of involuntary 

manslaughter. 

In supplemental briefing defendant argues the trial court prejudicially erred in 

refusing to instruct the jury with CALJIC Nos. 4.21 and 4.22, pertaining to voluntary 

intoxication, which would have permitted the jury to convict him only of involuntary 

manslaughter. We disagree. Assuming for purposes of argument that substantial 

evidence supported the giving of an instruction on voluntary intoxication, any error in 

refusing to give the instruction in this case was clearly harmless. 

“A conviction for murder requires the commission of an act that causes death, 

done with the mental state of malice aforethought (malice). [Citation.] Malice may be 

either express or implied. [Citation.] . . . Malice is implied when a person willfully does 

an act, the natural and probable consequences of which are dangerous to human life, and 

the person knowingly acts with conscious disregard for the danger to life that the act 

poses. . . . [¶] The law recognizes two degrees of murder. . . . A person who kills 

unlawfully with implied malice is guilty of second degree murder.” (People v. Gonzalez 

(2012) 54 Cal.4th 643, 653.) 

“[A] defendant who kills without express malice due to voluntary intoxication can 

still act with implied malice.” (People v. Turk (2008) 164 Cal.App.4th 1361, 1378.) In 

fact, evidence of involuntary intoxication is inadmissible to negate implied malice. 

(People v. Timms (2007) 151 Cal.App.4th 1292, 1300 [“voluntary intoxication is 

irrelevant to proof of the mental state of implied malice”; People v. Martin (2000) 78 

Cal.App.4th 1107, 1114 [same]; cf. § 29.4, subd. (b) [“Evidence of voluntary intoxication 

is admissible solely on the issue of . . . whether the defendant premeditated, deliberated, 

or harbored express malice aforethought”].) 

Here, whether defendant was intoxicated when he killed Michelle is irrelevant for 

our purposes because in finding him guilty of second degree murder, the jury necessarily 

concluded he harbored at least implied malice aforethought toward her. Voluntary 

intoxication does not negate implied malice aforethought, and an intoxication instruction 
10

would not have enabled the jury to find defendant guilty of manslaughter instead of 

murder. Therefore, any error in failing to give the instruction was harmless. 

B. Admission of Evidence Pertaining to Animal Cruelty 

 Defendant contends the trial court erred when it admitted evidence that he killed 

Rupert even after he pleaded no contest to the animal cruelty charge. He argues the 

evidence was irrelevant and, even if relevant, inadmissible under Evidence Code section 

352 because its probative value was substantially outweighed by its unduly prejudicial 

impact. We disagree. 

 Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is 

that which tends in reason to establish material facts. (Evid. Code, § 210; People v. 

Harris (2005) 37 Cal.4th 310, 337.) Under Evidence Code Section 352, “The court in its 

discretion may exclude evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” 

(Evid. Code, § 352). “The trial court has broad discretion both in determining the 

relevance of evidence and in assessing whether its prejudicial effect outweighs its 

probative value.” (People v. Horning (2004) 34 Cal.4th 871, 900.) A court abuses its 

discretion when its ruling “falls outside the bounds of reason.” (People v. De Santis

(1992) 2 Cal.4th 1198, 1226.) 

Murder is the killing of a human being with malice aforethought. (§ 187.) First 

degree murder, with which defendant was charged, is any kind of willful, deliberate and 

premeditated killing. (§ 189.) 

Glendale Police Detective Joshua Wofford testified that he found the burned and 

bloodied carcass of a small dog in the microwave in defendant’s kitchen, and blood was 

spattered on the inside of the microwave. An audio recording of defendant’s interview 

with police was played for the jury, including his statement that he killed the dog by 

putting it in the microwave. Over the prosecution’s objection, photographs of the dog’s 

body were excluded from the jury. 
11

The evidence reasonably established that after stabbing Michelle, and while she 

was bleeding to death, defendant killed Rupert because the dog was “freaking out.” The 

evidence was relevant because it tended in reason to establish either that defendant 

harbored malice toward Michelle that carried over to the dog or that he deliberately 

sought to avoid discovery by neighbors whom the dog might have alerted. Furthermore, 

the dog’s fate and defendant’s changing story concerning it demonstrated the lack of 

credibility of his initial denial of having killed Michelle and his mental capacity to 

conceal the crime. 

There was no indication in the record that the evidence concerning Rupert would 

inflame the jury, as the prosecutor elicited only neutral and brief responses from 

Detective Wofford concerning his finding Rupert in the microwave, and defendant’s 

killing of Rupert was no more heinous than his stabbing Michelle in the back and leaving 

her to bleed to death. In the end, although the prosecution urged the jury to find 

defendant guilty of first degree murder, it found him guilty only of second degree murder, 

which indicates the jury was not inflamed. 

Moreover, any alleged error in admitting the evidence was harmless. (People v. 

Watson, supra, 46 Cal. 2d at p. 836.) To warrant reversal there must be a reasonable 

probability “a result more favorable to the appealing party would have been reached in 

the absence of the error.” (Ibid.) A reasonable probability “does not mean more likely 

than not, but merely a reasonable chance, more than abstract possibility. [Citations.]” 

(College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Here, defendant 

admitted to police that he stabbed Michelle in the back, deliberately locked the bedroom 

door, collected his things, locked up the house and drove to Canada, knowing she was 

bleeding to death. All evidence supported the admission and none contradicted it. 

Therefore, no reasonable probability exists that the jury would have reached a different 

verdict had evidence concerning Rupert’s death been omitted. 
12

DISPOSITION 

 The judgment is affirmed. 

 NOT TO BE PUBLISHED. 

 CHANEY, J. 

We concur: 

 MALLANO, P. J. 

 ROTHSCHILD, J.