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Filed 8/27/24 P. v. Ugarte CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ELMER UGARTE,

Defendant and Appellant.

 A167452

 (Alameda County 

 Super. Ct. No. 21CR008570)

Elmer Ugarte appeals his jury conviction for second degree murder of 

his wife, Maria Hernandez. (Pen. Code, § 187, subd. (a).)1 He argues the 

trial court prejudicially erred by failing to instruct the jury on the lesser 

included offense of involuntary manslaughter based on unconsciousness from

voluntary intoxication. We find no error. We, however, agree with the 

parties that the abstract of judgment should be corrected to accurately reflect 

the second charge of which Ugarte was convicted, cruelty to a child by 

endangering health (§ 273a, subd. (b)). In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ugarte and Hernandez, known as “Lupe,” were married and had two 

children. They moved to Arizona early in their marriage and then separated 

1 All statutory citations herein are to the Penal Code.
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when Hernandez returned to California with the children in 2010. Five years 

later, Ugarte came back to California and lived with Hernandez again.

Beginning in 2017, Hernandez reconnected on Facebook with her 

boyfriend from her teenage years, Saul A. Ugarte discovered this and 

accused Hernandez of cheating on him. He moved out of the family home and 

said he wanted a divorce, but he moved back a few months later. In 2018, 

Ugarte resumed a relationship with his own ex-girlfriend in Arizona.

In February 2020, Ugarte, Hernandez, and the children lived in 

Hayward, in a house with a detached studio where Hernandez’s sister resided

with her husband. Around this time, Ugarte argued with Hernandez once or 

twice a week and physically abused her in front of the children. Hernandez’s

sister noticed more beer cans piling up in the yard than usual.

On Sunday, February 2, 2020, Ugarte sent a text message to 

Hernandez: “ ‘I’m glad I saw that shit on your phone today . . . we are done.’ ”

Hernandez asked him to “ ‘come home’ ” and texted the next day, “ ‘I love you 

and only you.’ ” Over the course of the next two days, Ugarte sent 

threatening messages to Saul A. on social media. In the early morning on 

February 4, 2020, Ugarte searched the Internet for information about 

divorce, flights to Arizona, and a restaurant where Hernandez and Saul A.

had once met.

I. The Day of the Murder.

Around 8:00 a.m. on February 4, 2020, Hernandez went to work. She 

was crying and had bruises on her arms. She told a coworker she had a fight

with her husband over the weekend, after he went through her phone. She 

said she was scared and done with her marriage and was going to take her 

children to her mother’s house.

That afternoon, Hernandez’s brother-in-law did laundry in the main

house. He saw Ugarte on the couch using his phone, watching television, and 
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drinking from a can. Hernandez’s sister also saw Ugarte sitting on the couch. 

She spoke to him, but he did not acknowledge her, even after she waited a 

full minute for a response. Instead, Ugarte immediately stood up, moved 

around, and then sat down again with his back to Hernandez’s sister.

Around 4:30 p.m., Ugarte picked up his 11-year-old daughter Jane Doe

from school and drove her home. Doe noticed that his eyes were red and he 

looked angry and mean, but he walked and drove normally. She did not 

think Ugarte was drunk. When they arrived home, Doe went to her room to 

relax. Ugarte texted Hernandez about taxes and divorce paperwork. She

responded, “ ‘Whatever you want Elmer.’ ”

Then Ugarte’s texts became threatening: “ ‘It’s weird how the tables 

turn in an instant. . . . [Y]our brother [is] . . . getting married and you’re 

getting a divorce for Valentine’s Day.’ ” When Hernandez did not respond, 

Ugarte texted: “[Looking] for your boyfriend Saul . . . . im [sic] about to 

publicate all of your fucking messages on messenger onto Facebook stupid.’ ”

Then: “ ‘Are you Happy Now. . . done. . .bitch. . .’ ” “ ‘Where else do you want 

it publicated. . .????’ ” Hernandez did not respond by text, but she and Ugarte 

had a three-and-a-half minute phone call after he sent these messages.

Immediately after that call, Hernandez called Doe. She sounded scared 

and told Doe, “ ‘Lock your door. Your dad is drunk.’ ” She told Doe to pack 

her things. Hernandez picked up her son from his school and drove home, 

where he waited in the car.

Around 5:30 p.m., Hernandez went in the house, knocked on Doe’s door 

and said, “ ‘Open. It’s me. Let’s go.’ ” She sounded panicked. Doe opened 

her door and walked down the hall to the front door with Hernandez. Ugarte 

walked past them and went into the main bedroom. He looked angry. He 
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said, “ ‘Lupe, get the fuck over here,’ ” and Hernandez went into the bedroom

with him. The bedroom door closed.

About 15 seconds later, Doe heard Hernandez scream loudly. The 

bedroom door opened, and Doe saw her father stabbing her mother. Ugarte 

had a knife in his right hand and held Hernandez by the collar of her shirt 

with his left hand. Hernandez tried to push Ugarte away as he continued to 

stab her in the chest. Ugarte stabbed Hernandez about 10 times while 

Hernandez screamed and told Doe to call 911.

Doe screamed at Ugarte to stop, and Hernandez fell to the floor. 

Ugarte continued to stab Hernandez, about five more times. Doe picked up 

one of her shoes and threw it at Ugarte’s head. The shoe hit him and he 

looked at her—“[he] was angry” and this “[t]errified” Doe—but he continued 

stabbing Hernandez. Doe started hitting Ugarte over the head with her 

other shoe, which finally made him stop.

Doe grabbed her phone and called 911. Ugarte walked past her and 

went into the kitchen, where Doe heard him washing off the knife. While Doe 

was speaking with a 911 dispatcher, Ugarte called her stupid and 

disrespectful. He said, “ ‘[Hernandez] cheated on me. She treated me bad. 

That’s what she gets.’ ” Then he walked out of the house and drove away. 

Around this time, Ugarte texted his mother, “ ‘Bye mom. I’m going to jail 

now for killing Lupe. Ok, Whatever. I’m a . . . “asshole badass.” ’ ”

At 5:50 p.m., first responders arrived at the house and pronounced 

Hernandez dead. She had 34 stab and incised wounds, including stab 

wounds to her heart, lung, and liver. A knife with an eight-inch blade and

Hernandez’s blood on it was recovered from the kitchen sink.

Around 6:30 p.m., Ugarte’s cousin called him after hearing he hurt

Hernandez. Ugarte was on the phone with his cousin for an hour while he 
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was driving. He told his cousin he stabbed Hernandez. He said, “ ‘She

fucking cheated on me with that fucking guy. She thinks I’m stupid.’ ” He 

called Hernandez a “ ‘bitch’ ” and a “ ‘liar.’ ” He admitted killing her more 

than 10 times during this call and repeated Saul A.’s name “probably like a 

hundred times . . . .”

Before he was arrested, Ugarte texted Hernandez’s phone, “ ‘Good bye 

Lupe . . . . I hope Saul . . . was the love of your life.’ ” Then he called his 

ex-girlfriend. He said he had messed up and done “ ‘something bad’ ” and she 

would not be seeing him for a while. He sounded upset but not intoxicated. 

Around 7:45 p.m., officers arrested Ugarte about 30 miles from the Hayward 

house.

When he was arrested, Ugarte smelled of alcohol. He complied with 

officers’ instructions but requested a blood draw. He said he had been 

blacked out. His blood was drawn around 12:30 a.m. on February 5, 2020, 

several hours after he killed Hernandez. His blood-alcohol level was 0.15

percent.

II. The Trial and Jury Verdict.

A grand jury indicted Ugarte with murder (§ 187, subd. (a)) and a 

misdemeanor violation of cruelty to a child by endangering health (§ 273a, 

subd. (b)). At trial, the prosecution pressed for a verdict of first degree 

murder. The defense conceded that Ugarte killed Hernandez and intended to

do so. However, they argued he should be convicted of voluntary 

manslaughter because he killed in the heat of passion. The defense also 

claimed Ugarte was so impaired by alcohol he was in “a stupor” and acting on 

impulse, making his crime second degree murder at most.

A defense expert testified about the effects of alcohol and about 

retrograde extrapolation, a method of using an individual’s blood-alcohol

content at one time to estimate what it was at a prior time. The expert 
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testified that alcohol causes individuals to “act on impulse,” with reduced 

inhibition and emotional stability. They “may” be “[un]aware of current 

events” and “the consequences and things that [they]’re doing.” The bloodalcohol level at which these impairments manifest “may vary greatly 

depending on the person’s individual experience with alcohol . . . .” The 

expert indicated a normal to heavy drinker with Ugarte’s weight and blood 

draw result would have had a blood-alcohol content of 0.25 or 0.29 at the time 

of the murder—corresponding to at least 15 drinks. With blood alcohol of 

approximately 0.30, an individual would experience “somnolence, sleepiness,

[and] drowsiness” and “[t]he body is basically sort of shutting down.”

“[S]omewhere approaching . . . 0.30 percent” an individual reaches “the 

comatose level.”

The trial court gave the standard instructions for first and second 

degree murder. (CALCRIM Nos. 500, 520 & 521.) The court also instructed 

on the lesser included offense of voluntary manslaughter—heat of passion. 

(CALCRIM No. 570.) The court instructed with CALCRIM No. 522, 

explaining that provocation may reduce a murder from first to second degree 

or to manslaughter. The court also instructed the jury with CALCRIM No. 

625 to consider evidence of Ugarte’s voluntary intoxication “only in deciding 

whether [he] acted with an intent to kill, or [he] acted with deliberation and 

premeditation.”

The jury acquitted Ugarte of first degree murder and convicted him of 

second degree murder; it convicted him of child cruelty as charged. The trial 

court sentenced him to 16 years to life in prison.

DISCUSSION

Ugarte claims the trial court had a sua sponte duty to instruct the jury 

on the lesser included offense of involuntary manslaughter based on 
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unconsciousness from voluntary intoxication. (CALCRIM No. 626.)2 We 

disagree. As we will explain, there was no substantial evidence Ugarte was 

unconscious when he murdered Hernandez. However, we agree with the 

parties that the abstract of judgment must be amended to reflect that 

Ugarte’s additional conviction was for cruelty to a child by endangering 

health.

I. Legal Background.

“A trial court has a sua sponte duty to instruct the jury on any 

uncharged lesser offense . . . necessarily included in a charged offense if there 

is substantial evidence” the defendant committed the lesser offense but not 

the charged one. (People v. Lopez (2020) 9 Cal.5th 254, 269.) The duty

persists even when a defendant fails to request the instruction, presents an 

inconsistent defense, or objects to the instruction for tactical reasons. (People 

v. Barton (1995) 12 Cal.4th 186, 195; People v. Millbrook (2014) 222 

Cal.App.4th 1122, 1137.) This “ ‘venerable’ ” rule encourages the most 

accurate verdict possible based on the pleadings and evidence, “ ‘prevent[ing] 

2 CALCRIM No. 626 explains that “[v]oluntary intoxication may cause 

a person to be unconscious of his or her actions” although “still . . . capable of 

physical movement . . . .” The instruction explains that a person who 

“voluntarily causes his or her own intoxication to the point of 

unconsciousness . . . assumes the risk that while unconscious he or she will 

commit acts inherently dangerous to human life”: If someone dies as a result, 

the killing is involuntary manslaughter. The instruction lists four elements 

that the jury must find beyond a reasonable doubt to support an involuntary 

manslaughter conviction: (1) the defendant killed without legal justification 

or excuse; (2) the defendant did not act with the intent to kill; (3) the

defendant did not act with a conscious disregard for human life; and (4) as a 

result of voluntary intoxication, the defendant was not conscious of his or her 

actions or the nature of those actions. The instruction concludes, “The People 

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

was not unconscious. . . .”
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either party, whether by design or inadvertence, from forcing an all-ornothing choice between conviction of the stated offense . . . or complete 

acquittal . . . .’ ” (People v. Smith (2013) 57 Cal.4th 232, 239.)

The trial court’s duty requires instruction on involuntary manslaughter 

“when there is evidence deserving of consideration that the defendant was 

unconscious due to voluntary intoxication.” (People v. Halvorsen (2007) 42 

Cal.4th 379, 418 (Halvorsen); see CALCRIM No. 626.)3 However, a court 

need not instruct on this or any theory if it lacks substantial evidentiary 

support. (People v. Smith, supra, 57 Cal.4th at p. 240.)

We address this issue de novo, viewing the evidence in the light most 

favorable to Ugarte. (People v. Millbrook, supra, 222 Cal.App.4th at p. 1137.) 

We do not evaluate the credibility of evidence, which is the jury’s role. (Ibid.) 

Still, substantial evidence does not mean any evidence, no matter how weak, 

but is evidence a reasonable jury could find persuasive. (People v. Wilson

(2021) 11 Cal.5th 259, 298.) It does not include evidence that is 

“[s]peculative, minimal, or insubstantial . . . .” (People v. Simon (2016) 

1 Cal.5th 98, 132.)

II. There Was No Substantial Evidence of Unconsciousness to 

Support the CALCRIM No. 626 Instruction.

While Ugarte presented evidence that he was highly intoxicated during

the murder, no reasonable jury could find he was unconscious when he 

stabbed his wife 34 times.

3 Contrary to the People’s argument, the issue is not forfeited when a 

defendant fails to request this particular instruction. People v. Saille (1991) 

54 Cal.3d 1103 is not to the contrary. The issue in that case was whether 

there is a duty to instruct “on the relationship between voluntary intoxication 

and premeditation and deliberation.” (Id. at pp. 1118, 1120.) This pinpoint 

instruction was given in our case.
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A. Proving an Act Was Unconscious.

In general, an unconscious act is one “ ‘committed by a person who 

because of somnambulism, 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, italics omitted.) The 

instruction at issue here is consistent: “As a result of voluntary intoxication, 

the defendant was not conscious of (his/her) actions or the nature of those 

actions.” (CALCRIM No. 626.) “[U]nconsciousness 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.’ ” (Halvorsen, supra, 42 Cal.4th at p. 417; see CALCRIM No. 626

[“A very intoxicated person may still be capable of physical movement but 

may not be aware of his or her actions or the nature of those actions”].)

“[W]e begin with the presumption that a person who appears to act in 

[a] state of consciousness is conscious.” (People v. James (2015) 238 

Cal.App.4th 794, 804.) The burden is on the defendant to produce evidence 

rebutting this presumption. (Ibid.) Minimal evidence does not suffice, 

particularly when the defendant’s actions and statements are otherwise 

inconsistent with unconsciousness. (See Halvorsen, supra, 42 Cal.4th at 

p. 418.) Evidence of habitual drinking, memory loss, and/or a high bloodalcohol content at the time of a killing—standing alone—is inadequate. (See

id. at pp. 418–419.)

B. The Evidence Was Inconsistent with Unconsciousness.

Ugarte’s actions before, during, and after the stabbing were wholly 

inconsistent with unconsciousness. In the hour leading up to the murder, he 

picked his daughter up from school and walked and drove normally. He 

texted Hernandez about getting a divorce and threatened to publicly expose 
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her relationship with Saul A. When Hernandez got home, Ugarte ordered 

her to come into their bedroom and almost immediately began to stab her.

He kept stabbing even when Hernandez fought back and when his 11-yearold daughter threw a shoe at him and screamed at him to stop. Still, he was 

not oblivious to his daughter’s efforts. He turned and gave her an “angry” 

look when her shoe hit him and finally stopped his attack when she began 

hitting him over the head with her other shoe.

After the attack, Ugarte walked into the kitchen and washed the knife. 

This demonstrated his immediate awareness that he had committed a crime 

by slaying Hernandez. Then, Ugarte repeatedly admitted and tried to justify 

the killing. He said Hernandez “ ‘cheated on [him]’ ” and “ ‘[t]hat’s what she 

gets.’ ” He texted his mother, “ ‘I’m going to jail now for killing Lupe.’ ” On 

the phone with his cousin, he admitted killing Hernandez more than 10 times 

and repeated Saul A.’s name dozens of times, continuing to blame his crime

on his wife’s relationship with her ex-boyfriend. Just before he was arrested, 

Ugarte texted Hernandez “ ‘[g]ood bye’ ” and told his own ex-girlfriend that

he had done “ ‘something bad’ ” and she would not see him for a while.

This evidence showed that—while Ugarte may have been very 

emotional and not entirely rational—he was conscious of his actions and 

understood their consequences. Ugarte’s own statements about the murder

and the “purposive nature of his conduct” in ordering Hernandez into their 

bedroom to stab her after they had been fighting for days (if not years) made 

it “clear that he did not lack awareness of his actions during the . . . 

offense[].” (Halvorsen, supra, 42 Cal.4th at p. 418; see People v. Rangel

(2016) 62 Cal.4th 1192, 1227–1228 [no substantial evidence of 

unconsciousness where defendant told others what he did and why and tried 

to hide the murder weapons]; People v. Ochoa (1998) 19 Cal.4th 353, 424 
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[no substantial evidence of unconsciousness where defendant took his victim 

to a secluded place and gave her commands].)4

C. Evidence of Unconsciousness Was Insubstantial.

Ugarte relies entirely on evidence of his alcohol abuse and his bloodalcohol content after the murder to support an inference he was unconscious 

when he stabbed Hernandez to death. However, the defense expert who 

testified about these subjects never offered an opinion that Ugarte was 

unconscious during the murder. Rather, he opined that a normal to heavy

drinker with Ugarte’s weight and blood draw result would have had a bloodalcohol level between 0.255 and 0.29 at the time of the murder if they did not 

continue drinking in the meantime; a chronic alcoholic could eliminate 

alcohol faster, presumably resulting in a higher blood-alcohol level in the 

hours prior.

5 The expert then explained that with a blood-alcohol level 

around 0.30, an individual is typically “entering a comatose level and the 

body is shutting down.” He acknowledged, however, there are people who can 

function with extremely high levels of blood alcohol, and a “chronic drinker” 

4 Ugarte seems to claim we should not consider evidence he “act[ed] like 

a conscious person” and “in a way that appeared purposeful” because 

weighing this against evidence he was unconscious is the jury’s role. This is 

true only when there is substantial evidence of unconsciousness: where a 

“reasonable jury could infer from the evidence as a whole” that Ugarte was 

unconscious. (People v. Holloway (2004) 33 Cal.4th 96, 140, italics added.) 

We consider all of Ugarte’s behavior in determining whether there was such 

evidence here.

5 Ugarte claims that based on testimony that chronic alcoholics can 

burn alcohol twice as fast as others, a jury could have found his blood-alcohol

level at the time of the stabbing was between 0.36 and 0.43. This is 

speculative; the expert never testified about how to calculate past blood 

alcohol for chronically heavy drinkers. Even assuming Ugarte had such a 

high blood-alcohol level, this does not amount to substantial evidence he was 

unconscious considering the rest of the evidence presented at trial.
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may not experience lethargy and unconsciousness until their blood-alcohol

level is higher than 0.30. Mental impairments, too, “may vary greatly 

depending on the person’s individual experience with alcohol previously and 

. . . how frequently and how much they drink.”

We assume the evidence supports a finding that Ugarte was a chronic 

alcoholic. However, there was no evidence that, with a blood-alcohol level 

approaching or exceeding 0.30, he would have been unaware of his actions or 

their nature. Ugarte’s expert certainly did not suggest a person acting the 

way Ugarte did before, during, and after the murder could have been 

unconscious. The expert’s general, hypothetical testimony about bloodalcohol content was not substantial evidence that Ugarte was unconscious 

when he stabbed his wife to death. (See People v. Ochoa, supra, 19 Cal.4th at 

pp. 390, 424 [no duty to instruct on manslaughter based on voluntary 

intoxication; expert testimony “did not pertain to defendant’s own psychology 

or his mental state at the time of the crimes, but rather on the possible 

effects of drug use generally”].)

The evidence of unconsciousness is far weaker here than in Halvorsen, 

supra, where it fell short of supporting a manslaughter instruction. In that 

case, an expert testified the defendant had bipolar disorder with psychosis

and the defendant testified there were gaps in his memory and he did not 

consciously pull the trigger when shooting one of several seemingly random

victims. (42 Cal.4th at pp. 417–418, 421.) The Supreme Court found this did 

not amount to substantial evidence of unconsciousness considering the other 

evidence in the case. (Id. at p. 418.)

Missing in Halvorsen and in this case was substantial evidence—expert 

testimony, direct testimony by the defendant, or something else—concerning 

the defendant’s actual state of mind and unawareness of his actions. 
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(See, e.g., People v. James, supra, 238 Cal.App.4th at pp. 801, 809–810 

[defendant tried to climb a building, ran around “ ‘crashing his head into cars 

and garbage cans,’ ” never responded to commands, and “was mumbling 

incoherently”; expert concluded he was unaware of his actions due to 

psychosis]; People v. Newton (1970) 8 Cal.App.3d 359, 373 [defendant testified

he was unconscious and expert confirmed this was consistent with shock from

an abdominal gunshot wound].)

In sum, the evidence that Ugarte was unconscious was insubstantial. 

The trial court had no duty to instruct on involuntary manslaughter based on 

unconsciousness from voluntary intoxication. Given this conclusion, we need 

not address the parties’ arguments about whether any error by the trial court 

in this regard was prejudicial.

III. The Abstract of Judgment Must Be Corrected.

Finally, the abstract of judgment indicates that Ugarte was convicted of 

cruelty to a child by inflicting injury (listed as a violation of § 273, subd. 

(b)(1)), but he was convicted of cruelty to a child by endangering health

(§ 273a, subd. (b)). The parties agree—as do we—that the abstract should be 

amended to correct this apparent clerical error. (People v. Mitchell (2001) 26 

Cal.4th 181, 185–188.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment 

in accordance with this opinion. The trial court shall 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.
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Jackson, P. J.

WE CONCUR:

Simons, J.

Chou, J.

A167452/People v. Elmer Ugarte