Filed 2/21/24 P. v. McLaughlin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOHN DAVID McLAUGHLIN,

 Defendant and Appellant.

2d Crim. No. B324160

(Super. Ct. No. NA117856)

(Los Angeles County)

John David McLaughlin appeals his convictions by a jury 

on two counts of attempted robbery (Penal Code, §§ 664/211) 1

and one count of criminal threats (§ 422, subd. (a)). The trial 

court found true that appellant had five prior convictions under 

the Three Strikes law. (§§ 667, subds (b)-(i), 1170.12, subds. (a)-

(d).) It struck four of the convictions and sentenced him to eight 

years, eight months in prison. Appellant contends the court 

erred by instructing the jury incorrectly on the issue of his 

mental fitness, and by failing to instruct the jury sua sponte on 

1 All unmarked statutory references are to the Penal Code.
2

the issues of unconsciousness and voluntary intoxication. We will 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant entered a bank in Marina del Rey on the 

morning of August 17, 2021. He approached the teller’s window 

and passed her a plastic bag with a note reading, “All bills in the 

bag now. . . . Please and thanks.” He then told her to fill it with 

money. No customers were present in the lobby, so the teller 

“stalled” by walking to an area behind the counter where 

appellant could not see her. He left after a few minutes without 

incident. 

Appellant boarded a bus to Long Beach, where he entered a 

second bank. He passed the teller a plastic bag with a note 

reading, “Put all large bills in the bag thanks.” The teller pressed 

the alarm button and handed the note to her supervisor. 

Appellant looked at them and said, “Do what I say, or you’ll 

regret it.” The supervisor directed him to leave. Appellant

punched the teller window and walked out of the bank. Police 

arrested him an hour later about a mile away. 

Appellant represented himself at trial. Both tellers 

identified him as the man who attempted to rob them. The 

People also showed jurors bank surveillance images of a man who 

looked like appellant, with the same tattoos, wearing the same 

clothes and carrying the same plaid bag he had when he was 

arrested. Testifying in his defense, appellant acknowledged he 

resembled the suspect but denied visiting either bank. He 

described it as the “weirdest day of [his] life” and felt 

“everything’s been kind of like gray” since his arrest. 

The jury asked the court two questions while deliberating: 

“Are we able to take the defendant’s mental fitness into account? 
3

And, two, or request a professional to evaluate him?” The People 

recommended the court answer “no” to both questions because 

the jury heard no evidence about defendant’s mental fitness at 

trial. The court agreed and asked appellant if he wished to be 

heard. Appellant responded, “I think my mental fitness – me 

personally, I think it’s fine if the jury wants to know. They think 

that my – maybe it sounds like I might be mentally ill or 

something? Me personally, I don’t think so.” The court answered 

the two questions as follows: “No, the defendant’s mental fitness 

is for the court to consider, not you. No, there is no professional 

mental health evaluation for you to consider. . . . Please do not 

speculate as to the defendant’s mental fitness.” Appellant did not 

object. 

DISCUSSION

Mental Fitness Instruction

Appellant contends the trial court erred when it directed 

jurors not to consider his mental fitness while deliberating. This 

response to the jury’s questions, he argues, “eliminated the intent 

requirement entirely or impermissibly handicapped the jury in 

its ability to find that appellant did not have the specific intent 

required for attempted robbery or criminal threats.” (See People 

v. Alvarez (1996) 14 Cal.4th 155, 224 [larcenous intent to steal a 

required element of attempted robbery]; Dziubla v. Piazza (2020) 

59 Cal.App.5th 140, 151, citing section 422 [criminal threats 

theory of illegality requires “a willful threat to commit a crime 

that would result in death or great bodily injury to another”].)

The People argue appellant invited any error when he denied 

suffering from mental illness and posed no objection to the trial 

court’s proposed answers. We agree. (In re Seaton (2004) 34 

Cal.4th 193, 198; People v. Boyette (2002) 29 Cal.4th 381, 430.)
4

But we also find the court's response was proper and did 

not mislead the jury. (People v. Lucero (2000) 23 Cal.4th 692, 

723-724.) The parties introduced no evidence at trial related to 

appellant’s mental fitness at the time of the alleged crimes. 

Appellant never argued he lacked capacity to form the specific 

intent to rob the victims or to threaten them. Instead, he denied 

entering the banks at all and described the charges against him 

as a case of mistaken identity. The court need not have inferred 

the existence of such evidence from the jury’s questions. The 

court’s answers directed the jury’s attention to where it 

belonged—on the parties’ evidence and the court’s instructions. 

Among the instructions were those describing the intent element 

for each charged crime. (See, e.g., CALCRIM Nos. 251 [Union of 

Act and Intent: Specific Intent], 460 [Attempt], 1600 [Robbery], 

1300 [Criminal Threats].) The jury could not have been misled in 

light of these instructions and the evidence. 

Voluntary Intoxication and Unconsciousness Instructions

Appellant contends the trial court erred by not instructing 

the jury sua sponte on voluntary intoxication and 

unconsciousness. He argues there was substantial evidence to 

support both defenses. We again disagree. The parties presented 

no evidence appellant committed the charged crimes while under 

the influence of drugs or alcohol. All discussions about his past 

struggles with substance abuse were conducted outside the jury’s 

presence. When confronted with surveillance photos from the 

banks, appellant did not testify that he may have committed the 

crimes while unconscious or that he did not remember the 

incidents. It would not have mattered if he had. (See People v. 

Rogers (2006) 39 Cal.4th 826, 888 [“defendant’s own testimony 

that he could not remember portions of the events, standing 
5

alone, was insufficient to warrant an unconsciousness 

instruction”].) He simply denied being the person in the photos. 

A trial court’s duty to instruct the jury sua sponte did not extend 

to instructions “inconsistent with the defendant’s theory of the 

case.” (Id. at p. 887.)

CONCLUSION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CODY, J.

We concur:

YEGAN, Acting P. J.

BALTODANO, J.
6

James Otto, Judge

Superior Court County of Los Angeles

______________________________

Brad J. Poore, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Wyatt E. Bloomfield, Supervising 

Deputy Attorney General, Christopher G. Sanchez, Deputy 

Attorney General, for Plaintiff and Respondent.