Filed 5/15/13 P. v. Levin CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Supe rior Court of Los Angeles County. Janice C. Croft, Judge. Affirmed.
Donna L. Harris for De fendant and Appellant. Kamala D. Harris Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ _______________2 BACKGROUND
Defendant John Levin and Mi chelle Raymie Longoria (M ichelle) were married in January 2007. Defendant was de scribed 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 conv ersation almost always or had a lot to say about whatever you were talking about.” Defe ndant “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 te chnician and member of the Montrose search and rescue team, a volunt eer reserve sheriff’s deputy team that performs rescues in the Angeles National Forest. To get onto th e team defendant had attended the reserve sheriff’s academy for six mont hs and participated in mo untain rescue training for approximately one year thereafte r. Defendant participated in additional rescue training approximately once per month, went out on rescue patrols approximately one weekend per month, and responded to em ergency rescue calls as needed. One year, he received
the rescue team’s Golden Piton award for re sponding to the most emergency calls that year. As a team member and reserve sher iff’s deputy, defendant had law enforcement powers, received weapons training, and was issued a badge and ha ndgun. The pay was $1 per year. Defendant had a 13-year-old son, A., a nd a 12-year-old daugh ter, E., from a prior marriage. He was active in th e 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 doi ng their hair. The children lived with defendant and Michelle in their small ap artment 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 stumblin g gait, and other signs of impairment. Defendant became reclusive, ha d trouble articulating his thou ghts, and was not as quick witted as he had been. By 2007, he was “very slow to talk, very sl ow to answer.” He was “[b]arely understandable” an d “could barely put three word s 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, de fendant and Michele would stay in their bedroom, leaving A. and E. to entertain themselves. The kitchen reeked, there were piles of laundry, tr ash 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 patie nt.” “[H]is clothe s 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 wa lked and slurred her speech, and she and defendant seemed to E. to be “under the influence.” Concerned parents called defendant’s former wi fe to come pick up the children. In 2009, defendant was involved in an automobile accident while driving the
children to school. The children decided no t to drive to school with him anymore.4 Defendant’s family staged a drug interv ention 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 progr am. 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 Gl endale. He then locked the bedroom door, put Rupert in a microwave oven and turned it on, lock ed up the apartment, and drove to Canada, leaving Mi chelle 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 covere d with empty bottles, drinking glasses, medication boxes, leftover food, and trash, incl uding several cups full of cigarette butts.
All the food had been taken out of the refri gerator 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, al ong with a fourth knife . A fifth knife, this one bloody, was on a counter. Rupert’s ca rcass was in the microwave, burned and bloodied, with blood spattered around the microwave interior.
There was a blood trail in the stairwell le ading 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-pa in drug commonly marketed as “Soma,” and butalbital, a barbiturate/sedative. Eighteen prescription pill bottles in defend ant’s name for Carisprodol were found in defendant’s cars and apartm ent. Each bottle was labele d 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 prescrip tions was filled betwee n 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 arre sted. He and Michelle had a healthy and loving relationship, but he left the apartmen t because she was taking Soma and “just went crazy.” She stabbed him in the chest while he was asleep, then told hi m to “[G]et the hell out,” and she would “see [him] in hell.” He wa s “just trying to get a few days between” them so he “could get back together with he r.” There was nothing physically wrong with her when he left—she was standing at th e 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 work ing”), and got in the car and drove aw ay. Although at first defendant said he did not remember going into the k itchen, he later said that after wounding Michelle he went to the kitchen, took everyt hing 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 th e dog but later stated he
killed it in the microwave because it had eat en some of Michelle’s medicine, “was freaking out,” and tried to bite him.
Defendant said the knives in the kitchen we re taped together because he wanted to sit on them to kill himself, but ultimately di d not do so. Defendantsaid he stabbed Michelle because she asked him to, he knew she was dying, and he st abbed himself in the
chest because he needed a “d efense strategy,” something to make it look like he was running away from something.
Defendant said he and Michelle were bot h “on drugs,” and he had last used Soma on Friday, September 11, 2009. But when as ked 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, su bd. (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 specia l allegation, later changing hi s plea to the animal cruelty

count to no contest. Although the prosecution urged the jury to find defendan t guilty of first degree murder, it found him guilty only of second degree murder, fi nding 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 us e of a knife, plus a consecutive two-year term for animal cruelty. He timely appealed. After appellate counsel submitted the ma tter in this court on the briefs, we reviewed the record and requested that the pa rties 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, whet her the error was prejudicial. Defendant and respondent both su bmitted 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 ma lice aforethought, the crime is involuntary manslaughter. [¶] This law applies to persons who are not conscious of acting but who perfo rm 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 int oxication 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 in toxicated 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 theo ry, the trial court must give a requested instruction only if substantia l evidence supports the pro ffered defense or theory. ( In re
Christian S . (1994) 7 Cal.4th 768, 783.) For exam ple, a trial court must instruct sua sponte on a lesser included offens e if there is substantial evid ence 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.) Subs tantial 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 resolv ed in favor of the accused.’ [Citations.]” ( People v. Flannel , at p. 685.) The test is not whet her there is any evidence, but whether there is evidence from which a reasonable ju ry could have found the specific facts supporting the instruction. ( Id . at p. 684.) “When a person renders himself or he rself unconscious through voluntary
intoxication and kills in that st ate, the killing is attributed to his or her negligence in selfintoxicating to that point, and is tr eated 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 eviden ce that Carisoprodol, a muscle relaxant and pain reliever, would have rendered him unconscious. Defendant himself told police8 that drugs had no effect on wh at he had done. The trial j udge thus properly declined to instruct the jury on involuntary manslaughter. Defendant argues substantial evidence indi cated he was a drug addict whose life had spiraled out of control. By 2009 he was hopelessly addi cted to prescription drugs, he
was intoxicated numerous times from 2006 to 2009, his personality, personal habits, and physical condition change d drastically for the worse, and he told police he and Michelle were both on drugs and the last time he us ed Soma was Friday, September 11, 2009, two days after the murder. Furthermore, alt hough defendant was described as sharp and quick witted by several people, he did not ha ve a believable, well-thought out explanation for how Michelle had been stabbed. He argu es his mental impairment before the murder and his inability to formulate a coherent st ory 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 biza rre account of events was made up by someone who did not remember exactly what had happened. We disagree. Nothing in the record sugge sts defendant was so mentally impaired at any time as to be unconsci ous. That defendant held a job at all and was reasonably functional compels a contrary conclusion. Even if failing to instruct on involuntar y manslaughter was error, any error was
harmless under People v. Watson (1956) 46 Cal.2d 81 8, 836, which requires reversal only
where a different verdict would have be en 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 calcula ting, alert and methodical.” ( People v. Haley (2004) 34 Cal.4th 283, 313.) For exam ple, defendant described how immediately after the murder he formulated a plan to stab himself in the ch est as part of a “defense strategy,” gathered computers in anticipation of us ing them in his work, locked up the house and drove from
Southern California to Canada. That defendan t was able to describe the crime in detail, formulate a defense strategy, collect his th ings and drive to Canada shows that no9 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 th e jury with CALJIC No s. 4.21 and 4.22, pe rtaining 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 re quires the commission of an act that causes death,
done with the mental state of malice aforet hought (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 de grees of murder. . . . A person who kills unlawfully with implied ma lice is guilty of second degree murder.” ( People v. Gonzalez (2012) 54 Cal.4th 643, 653.) “[A] defendant who kills w ithout 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 me ntal state of implied malice”; People v. Martin (2000) 78 Cal.App.4th 1107, 1114 [same]; cf. § 29.4, subd. (b) [“Eviden ce 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 le ast implied malice aforethought toward her. Voluntary intoxication does not negate implied malice af orethought, and an in toxication instruction10 would not have enabled the ju ry 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 tr ial court erred when it adm itted 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 releva nt, inadmissible under Evidence Code section 352 because its probative value was substantia lly outweighed by its unduly prejudicial impact. We disagree. Only relevant evidence is admissible. (Evid. Code, § 35 0.) 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 Sectio n 352, “The court in its discretion may exclude evidence if its probativ e value is substantia lly outweighed by the probability that its admission w ill (a) necessitate undue consum ption of time or (b) create substantial danger of undue prejudice, of confus ing the issues, or of misleading the jury.” (Evid. Code, § 352). “The trial court ha s broad discretion both in determining the relevance of evidence and in assessing whet her 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 w ith malice aforethought. (§ 187.) First degree murder, with which defendant was charge d, is any kind of willful, deliberate and premeditated killing. (§ 189.)
Glendale Police Detective Jo shua Wofford testified that he found the burned and bloodied carcass of a small dog in the microw ave in defendant’s k itchen, and blood was spattered on the inside of th e microwave. An audio record ing of defendant’s interview with police was played for th e jury, including his statement that he killed the dog by putting it in the microwave. Over the prosec ution’s objection, phot ographs 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, defenda nt killed Rupert because the dog was “freaking out.” The
evidence was relevant because it tended in reason to estab lish 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 aler ted. Furthermore, the dog’s fate and defendant’s changing stor y concerning it demonstrated the lack of credibility of his initial denial of having k illed 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 elic ited only neutral and brief responses from Detective Wofford concerning his finding R upert in the microwave, and defendant’s killing of Rupert was no more heinous than his stabbing Miche lle in the back and leaving her to bleed to death. In the end, althou gh the prosecution urged the jury to find defendant guilty of first degr ee murder, it found him guilty on ly of second degree murder, which indicates the jury was not inflamed. Moreover, any alleged error in adm itting 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 part y would have be en 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, deliberatel y locked the bedroom door, collected his things, lo cked up the house and drove to Canada, knowing she was bleeding to death. All evid ence supported the admission a nd none contradicted it. Therefore, no reasonable probab ility exists that the jury wo uld 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.