Cameron

Defendant was convicted by a jury of murder of the second degree and found to have used a deadly weapon in the commission of the offense. The trial court struck the enhancement and imposed the term prescribed by law. Defendant’s salient contention on appeal is that the trial court prejudicially erred in giving an instruction which implied that voluntary intoxication has no bearing on the offense of murder in the second degree with implied malice.

In the published portion of the opinion 1 we conclude that the contention has merit. We will modify the judgment to conviction of involuntary manslaughter, the lowest offense of which the defendant would have been convicted but for the error, reinstate an enhancement which had been stricken, and give the People the option of retrial.

Facts and Procedural Background

Early in the morning of November 4,1990, defendant stabbed Harold Moe in the leg. Moe bled to death soon thereafter.

On the evening of November 3, Paula Taylor-Costa (who testified under a grant of immunity) and defendant went in a limousine to a bar with some men. Both women were drinking alcoholic beverages and Taylor-Costa testified that defendant was drunk.…

I concur.

“I do not rule Russia; ten thousand clerks do.” (Nicholas I (1796-1855).)

My colleague has done an admirable job exposing the flaws in the published version of People v. Rhodes (1989) 215 Cal.App.3d 470 [ 263 Cal.Rptr. 603 ]. As one of the participating justices in Rhodes , it is only fitting that I assume the burden of recounting how the published version of Rhodes has miraculously created a life for itself despite this court’s best efforts to put a stake through its heart.

While it is unfortunately true that my two former colleagues and I initially filed the published version of Rhodes , all three of us recognized the error of our ways, granted Mr. Rhodes a rehearing, and issued a new, nonpublished opinion that in no way adopted the language we take issue with today. (People v. Rhodes (Feb. 28, 1990) C004019.) In such circumstances the publisher is normally notified of the court action and the superseded opinion which was initially designated for publication is never published in the official reports.

Alas, while we wearers of the robe had a great deal of authority (in contrast to power) over the matter of publication, it was our normally faultless clerical staff…

[Opinion certified for partial publication. [*] ]

OPINION

BLEASE, Acting P.J.

Defendant was convicted by a jury of murder of the second degree and found to have used a deadly weapon in the commission of the offense. The trial court struck the enhancement and imposed the term prescribed by law. Defendant's salient contention on appeal is that the trial court prejudicially erred in giving an instruction which implied that voluntary intoxication has no bearing on the offense of murder in the second degree with implied malice.

In the published portion of the opinion [1] we conclude that the contention has merit. We will modify the judgment to conviction of involuntary manslaughter, the lowest offense of which the defendant would have been convicted but for the error, reinstate an enhancement which had been stricken, and give the People the option of retrial.

Early in the morning of November 4, 1990, defendant stabbed Harold Moe in the leg. Moe bled to death soon thereafter.

On the evening of November 3, Paula Taylor-Costa (who testified under a grant of immunity) and defendant went in a limousine to a bar with some men. Both women were drinking alcoholic beverages and…