Sievert

DISCUSSION

I Defendant Was Not Entitled To A Sua Sponte Instruction On Unconsciousness Defendant contends the trial court erred in failing to instruct the jury on the defense of unconsciousness. We disagree. “[T]he sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses . . . . In the case of defenses, . . . a sua sponte instructional duty arises „only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant‟s theory of the case.‟ ” (People v. Breverman (1998) 19 Cal.4th 142, 157, italics deleted.) This rule does not apply to all types of defenses, however. Where a trial court has given complete and accurate instructions on the mental element of the crime charged, it does not have a sua sponte

CALJIC No. 4.31 provides that “[i]f the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if [he] [she] were conscious, you should find that [he] [she] was conscious, unless from all the evidence you have a…