Paragraph eleven reads:  “During the interview, Rothwell
at times explained she was really drunk during the incident. However, she also
denied feeling “buzzed,” explaining she could “see straight” and was not falling
down drunk. She also admitted she drinks “a little bit” and takes medical
marijuana everyday. Rothwell said she takes Lexapro for anxiety and
depression and that she had taken her medication the night of the
Rothwell told police she has anger problems and when her
father died two years ago it “kinda pushed” her over the edge. She admitted to

stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said  ‘you won’t [stab me],’  so she did.
Rothwell agreed there were similarities about the two incidents with Rivas and
Montes because each man had dared her to stab him.”

SSRI Stories
Note:  The Physicians Desk Reference states that
antidepressants can cause a craving for alcohol and can cause

alcohol abuse. Also, the liver cannot metabolize the antidepressant and
the alcohol simultaneously, thus leading to higher levels of both alcohol and
the antidepressant
in the human body.



THE PEOPLE, Plaintiff and

No. G040557.

Court of Appeals of California, Fourth
District, Division Three.

Filed April 22, 2010.

Christine Vento,
under appointment by the Court of Appeal, for Defendant and

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,
Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for
Plaintiff and Respondent.



O’LEARY, Acting P.

Samantha Elizabeth Rothwell appeals from a judgment after a jury
convicted her of second degree murder and found true she personally used a
deadly or dangerous weapon, a knife, in the commission of the crime. Rothwell
argues her federal constitutional rights were violated when the trial court
refused to instruct the jury to consider evidence of her intoxication in
determining whether she acted with conscious disregard for human life. We
disagree and affirm the judgment.

FACTS[ 1 ]

One afternoon, a group of 10 to 15
friends rented a room at the Hotel Huntington Beach to celebrate Nicole Alcala’s
birthday. Rothwell, one of the invitees, and her friend, Kristina Torres,
arrived around 8:30 p.m. Marc Bellatiere and his girlfriend, Jennifer Mulcahy,
were at the party when Rothwell and Torres arrived. Mulcahy also invited her
brother Ryan Soto. Eighteen-year-old Walter Rivas was also at the

Sometime in the evening, the group went to the beach to meet with
friends. Rothwell chose to stay at the hotel. When the group returned sometime
after midnight, Soto recalled that Rothwell “didn’t seem like herself.” While
some people started getting ready for bed, Bellatiere went outside to the fifth
floor stairwell landing to smoke a cigarette. Mulcahy, Torres, Rothwell, and
Rivas joined him. For the first five to 10 minutes, the mood was fine. However,
the atmosphere changed when Rivas began talking about seeing God the last time
he was in Huntington Beach. Rothwell became upset and ordered Rivas to not “talk
about God. I don’t like hearing about that stuff.” Rivas was taken aback by
Rothwell’s response and asked her why. She replied, “It’s because I’m the
devil,” and demanded Rivas “stop talking about it.” Rivas responded, “I’ll talk
about whatever I want.” Rothwell threatened, “If you don’t stop talking, shut
up, I’ll stab you.” No one in the group took Rothwell’s threat seriously. Rivas
said jokingly, “If you are going to do it, do it,” and continued to talk about
God. Rivas was not threatening, did not make any aggressive moves toward
Rothwell, and made no physical contact with her.

Rothwell walked to the
hotel room and flung the door open. Mulcahy followed and tried to calm her down.
Rivas stayed on the landing talking with Torres. When Rothwell and Mulcahy
entered the hotel room, it was dark and everyone was sleeping. Rothwell went to

the side of the bed where her belongings were located and began digging through
her purse while saying, “@#$% this guy . . . he can’t be talking to me like
this.” Mulcahy tried to grab Rothwell and calm her down, but Rothwell pulled
away and left the room.

Rothwell returned to the stairwell and headed
straight for Rivas. Rothwell swung her closed fist toward Rivas’s neck. Rivas
was substantially taller than Rothwell and struggled against her, but she
stabbed him in the jugular vein and in the back. When Rothwell took her arm
away, Rivas was bleeding profusely and said, “That @#$% fucking stabbed me.
That @#$% fucking stabbed me.” Bellatiere and Torres walked Rivas back to the
hotel room where they had him lay on the bathroom floor.

returned to the room and quickly gathered her things to leave. Soto asked, “Why
did you do it? What happened?” and Rothwell responded, “It wasn’t a big fucking
deal, get over it,” or “Get the @#$% over it. @#$% you,” and left the room
passing a bloody Rivas. Rothwell left bloody fingerprints on the stairwell
railing as she left. Someone called 911.

Bellatiere, Mulcahy, and Soto
left the hotel scared and panicked while Alcala and Torres tended to Rivas. The
group drove down the street and parked. Bellatiere left because he was the only
one in the group who was over 21 years old and had brought alcohol for the
party, which included underage party guests. Bellatiere, Mulcahy, and Soto
called Mulchay’s mother and asked what they should do. As a result of that
conversation, about one hour later, Bellatiere, Mulcahy, and Soto returned to

the hotel. Bellatiere and Mulcahy spoke to police who were at the

Rivas died at the hospital. An autopsy determined he bled to death
as a result of an L-shaped stab wound in the left jugular vein of the neck.
Rivas had a blood alcohol level of .09% before his death. He would have needed
four and one-half to five drinks to reach that level.

Police officers
arrested Rothwell the next day at her apartment in Valencia. Officer Michael
Reilly executed a search warrant and found her purse and backpack. In a small
pocket of her backpack, he found a folding knife with dried blood on it. Dried
blood was also found on her backpack, tennis shoes, and pants. Inside Rothwell’s
purse, Reilly found a McDonald’s receipt from earlier that morning at 2:39 a.m.
for a double cheeseburger and chicken nuggets.

Later that day, officers
interviewed Rothwell at the Huntington Beach Police Department. After waiving
her Miranda[ 2 ] rights, Rothwell told police she consumed
three beers and two or three shots of alcohol and vomited while the others were
at the beach. Rothwell explained that while having a cigarette on the fire
escape, she had a conversation with Mulcahy about how she used to cut herself,
which sparked an argument with Rivas. She recalled Rivas said he “found God in
Huntington Beach,” but said it did not make her upset and she was joking when
she said the devil visited her. She explained Rivas had been drinking and yelled
at her to stab him. In response, she walked back to the hotel room and got her
knife. She denied saying she was going to stab Rivas. When she went back to the
stairwell, Rothwell alleged Rivas was taunting her to “stab me like that.”
Rothwell explained the two were wrestling and she was trying to get away when
she swung three times at his stomach and back and inadvertently stabbed him in
the neck. Rothwell explained Torres was screaming at her to stop, but she was
“drunk” and “pissed off” because Rivas had yelled at her and was grabbing her by
the arms. She told police that after she stabbed Rivas, he said, “You got me,”
and “[She] killed him.” Rothwell admitted seeing Rivas laying on the floor
bleeding profusely but gathered her belongings and left the hotel room because
she was terrified and realized he might die. Rothwell recalled saying, “tell
everybody to go to hell” to Mulcahy’s friend Marshall who had followed her down
the stairs. Rothwell explained that when she left the hotel she drove to

McDonald’s and purchased a double cheeseburger and chicken nuggets. Rothwell
explained she then went home and waited for the police to come and arrest

During the interview, Rothwell at times explained she was really
drunk during the incident. However, she also denied feeling “buzzed,” explaining
she could “see straight” and was not falling down drunk. She also admitted she
drinks “a little bit” and takes medical marijuana everyday. Rothwell said she
takes Lexapro for anxiety and depression and that she had taken her medication
the night of the incident. Rothwell told police she has anger problems and when
her father died two years ago it “kinda pushed” her over the edge. She admitted
to stabbing a friend Alex Montes in the arm approximately a year and one-half
before when they were drunk and playing around. Rothwell explained she was not
mad at Montes, but he had said “you won’t [stab me],” so she did. Rothwell
agreed there were similarities about the two incidents with Rivas and Montes
because each man had dared her to stab him.

Rothwell cried while she told
police she did not mean to kill Rivas. When she heard about Rivas’s death she
“felt sick” and felt bad for his family. Rothwell did not know what made her do
it and admitted she is “not right.”

An indictment charged Rothwell with

murder in violation of Penal Code section 187, subdivision (a).[ 3 ]
The indictment alleged she personally used a knife, a dangerous and deadly
weapon, in the commission of the crime, pursuant to section 12022, subdivision

At trial, the prosecutor offered Montes’s testimony. Montes
testified he was a good friend of Rothwell, had known her for three years, and
would see her everyday. Montes explained a conversation he had with Rothwell in
which she told him that she did not believe in God because her father told her
to say her prayers and when Rothwell woke up in the morning, her father was
dead. He testified Rothwell would get upset and very emotional if the topic of
God was discussed. He recalled she would say, “Don’t ever bring God up in my
house again. I don’t believe it.” Despite her anger about any discussion of God,
he never saw Rothwell pick up a weapon or heard her say she would stab someone
for talking about God. Montes recalled a night when he and Rothwell were
“playing around” and Rothwell said, “if you make me mad enough I’ll stab you.”
Not taking Rothwell seriously, Montes explained he said jokingly, “you won’t
stab me” and stuck his arm out. In response, she pushed the knife into his arm,
drawing blood. She apologized the next day, and Montes still considers her a
close friend.

Mulcahy also testified for the prosecution. Mulcahy was a
friend of Rothwell from high school and stayed in touch weekly. Mulcahy
testified Rothwell appeared to be fine when she entered the party. She explained
it was the first time Rivas and Rothwell had met. She believed Rothwell was not
religious but was also not an atheist. She also knew Rothwell carried a knife
for protection and could get very angry. Mulcahy testified everyone drank
throughout the night.

The prosecutor also offered the testimony of a
forensic scientist, Annette McCall. McCall testified blood samples gathered from
the scene compared with known samples of Rivas’s DNA revealed Rivas could “not
be eliminated as a source.” She also testified blood samples gathered from
Rothwell’s backpack and knife compared with known samples of Rivas’s DNA
revealed Rivas could “not be eliminated as a source.”

Rothwell offered
Torres’s testimony. Torres explained she and Rothwell were best friends. Torres
said they “probably smoked marijuana” before going to the hotel and she saw
Rothwell smoking marijuana throughout the night. Torres described Rivas as
always having a smile on his face. According to Torres, Rivas and Rothwell were
talking about religion on the landing and Rivas said he saw God on the beach.
Rothwell said, “I’m the devil.” Torres explained Rivas was calm and Rothwell was
yelling and then left briefly. Torres recalled that when Rothwell returned, it
appeared as though she was dancing with Rivas. She eventually realized it looked
confrontational and Rivas was trying to push Rothwell away. Torres testified she
never saw a knife. She saw the blood pouring from Rivas’s neck but did not think
he would die. Torres helped Rivas until the paramedics arrived. She remembered
Rivas saying, “Tell my mother I love her.” She stated Rothwell gathered her
belongings and left the hotel room. Torres thought she heard Rothwell say upon
her departure, “It’s no big deal, fucking deal with it.” Torres said Rivas had
not been confrontational or argumentative with Rothwell that night or in the
past. However, Torres explained Rothwell becomes confrontational whenever the
subject of God comes up. Torres also explained that if someone tells Rothwell
not to do something, she will do it. Furthermore, if someone dares Rothwell to

do something, she will. Torres testified she witnessed the stabbing of Montes by
Rothwell, which was the result of a dare. Torres also testified “`[Rothwell]
goes from zero to maniac . . . if you push her button.'”

Torres admitted
lying to the police to protect Rothwell. She tried to protect Rothwell because
she knew what Rothwell did was wrong and it was no accident. Torres explained
she called Christian Robinson, Rothwell’s boyfriend, and told him that Rothwell
had stabbed someone. Two days later, Torres felt she could no longer protect
Rothwell and typed a statement to police that she both faxed and hand delivered.
In the statement, she explained Rothwell had stabbed Rivas. She also reported
Rothwell said to Rivas, “Oh yeah, oh, you don’t think I won’t. You think I

The trial court instructed the jury on first degree murder and
second degree murder­both on the implied malice and no premeditation
theories­and involuntary manslaughter. Rothwell’s counsel requested CALCRIM
No. 3426, the voluntary intoxication instruction. The prosecutor objected based
on Rothwell’s statement she was not buzzed. The trial court expressed a
preference for CALCRIM No. 625, a voluntary intoxication instruction that
pertains directly to homicide. Defense counsel requested CALCRIM No. 625 be
modified to add malice aforethought, which includes implied malice. The
requested instruction (the Special Instruction) provided: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited
way. You may consider that evidence only in deciding whether the defendant acted
with an intent to kill, or the defendant acted with deliberation and
premeditation, or acted with malice aforethought. [¶] A person is

voluntarily intoxicated if he or she becomes intoxicated by willingly
using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect.
[¶] You may not consider evidence of voluntary intoxication for any other
purpose.” The court declined to instruct the jury with the Special Instruction.
Instead, the court instructed the jury with CALCRIM No. 625 without the “or
acted with malice aforethought” language.

The jury convicted Rothwell of
second degree murder and found true the allegations she personally used a deadly
or dangerous weapon, a knife. The trial court sentenced her to prison for a
total term of 16 years to life.


Due Process and Fair Trial

Rothwell contends her federal constitutional rights to due process and a
fair trial were violated when the trial court, relying on section 22, refused to
instruct the jury it may consider her voluntary intoxication to negate implied
malice. Specifically, she argues section 22, subdivision (b), is
unconstitutional because it was designed to keep out relevant, exculpatory
evidence and is not a redefinition of the mental state element of the offense.
We disagree.

Section 22, most recently amended in 1995, provides: “(a) No
act committed by a person while in a state of voluntary intoxication is less
criminal by reason of his or her having been in that condition. Evidence of
voluntary intoxication shall not be admitted to negate the capacity to form any
mental states for the crimes charged, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. [¶] (b) Evidence of voluntary intoxication
is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice
aforethought. [¶] (c) Voluntary intoxication includes the voluntary ingestion,
injection, or taking by any other means of any intoxicating liquor, drug, or
other substance.” (Italics added.)

The Legislature’s 1995 amendment to

section 22 inserted the word “express” before the word “malice” in subdivision
(b). The 1995 amendment was in direct response to People v. Whitfield
(1994) 7 Cal.4th 437 (Whitfield). In Whitfield, the California
Supreme Court held evidence of a defendant’s voluntary intoxication was
admissible to negate implied as well as express malice. (Id. at

The history of the 1995 amendment to section 22 was most recently
addressed in People v. Turk (2008) 164 Cal.App.4th 1361 (Turk). In

Turk, the court concluded, “The legislative history of the amendment
unequivocally indicates that the Legislature intended to legislatively supersede
Whitfield, and make voluntary intoxication inadmissible to negate implied
malice in cases in which a defendant is charged with murder.” (Turk,
164 Cal.App.4th at pp. 1374-1375.)

Rothwell argues section 22
is unconstitutional after the 1995 amendment because “it created a rule that
keeps out relevant exculpatory evidence by in effect precluding the jury from
considering evidence that could disprove the `conscious disregard for human
life’ element of implied malice second degree murder.” Rothwell relies on

Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), and Justice
Ginsburg’s concurring opinion, to support her contention.

Egelhoff, a plurality of the court upheld the constitutionality of a
Montana statute providing voluntary intoxication “`may not be taken into
consideration in determining the existence of a mental state which is an element
of [the] offense.'” (Egelhoff, supra, 518 U.S. at p. 57.) The plurality
found no due process violation because the right to have a jury consider
intoxication evidence was not a “fundamental principle of justice.” In
concurrence, Justice Ginsberg drew a distinction between rules designed to keep
out relevant, exculpatory evidence that might negate an essential element of a
crime and violate due process, and rules that redefine the mental state element
of the offense. (Ibid.) Justice Ginsburg viewed the Montana statute as a
redefinition of the offense’s required mental state and therefore excluding
evidence of voluntary intoxication was constitutional. (Id. at pp.

“When a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, `the holding of the
Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds . . . .'” (Marks v. United States

(1977) 430 U.S. 188, 193.) Assuming Justice Ginsburg’s concurrence controls, as
Rothwell urges this court to do, we nonetheless conclude section 22 does not
violate due process.

In People v. Timms (2007) 151 Cal.App.4th
1292, 1300-1301 (Timms ), the court addressed the identical issue we have
here. The court explained section 22 did not violate a defendant’s due process
rights because section 22, subdivision (b), did not belong to the “prohibited
category of evidentiary rules designed to exclude relevant exculpatory
evidence.” (Timms, supra, 151 Cal.App.4th at p. 1300.) The court
reasoned, “The absence of implied malice from the exceptions listed in
subdivision (b) is itself a policy statement that murder under an implied malice
theory comes within the general rule of subdivision (a) such that voluntary
intoxication can serve no defensive purpose. In other words, section 22,
subdivision (b)[,] is not `merely an evidentiary prescription’; rather, it
`embodies a legislative judgment regarding the circumstances under which
individuals may be held criminally responsible for their actions.’ [Citation.]
In short, voluntary intoxication is irrelevant to proof of the mental state of
implied malice or conscious disregard. Therefore, it does not lessen the
prosecution’s burden of proof or prevent a defendant from presenting all
relevant defensive evidence.” (Id. at pp. 1300-1301)


Timms court found illuminating the fact section 22 does not appear in the
Evidence Code, it appears in the Penal Code. (Timms, supra, 151
Cal.App.4th at p. 1300.) Additionally, the court acknowledged the California
Supreme Court’s holding in People v. Atkins (2001) 25 Cal.4th 76, which
rejected a due process challenge to section 22 in the context of the general
intent crime of arson. (Timms, supra, 151 Cal.App.4th at p.

With respect to Justice Ginsburg’s concurrence, the court stated
that assuming the concurrence controls, “Justice Ginsberg also stated: `Defining

mens rea to eliminate the exculpatory value of voluntary intoxication
does not offend a “fundamental principle of justice,” given the lengthy
common-law tradition, and the adherence of a significant minority of the States
to that position today. [Citations.]’ [Citation.] Under this rational, the 1995
amendment permissibly could preclude consideration of voluntary intoxication to
negate implied malice and the notion of conscious disregard. Like the Montana
statute, the California Legislature could also exclude evidence of voluntary
intoxication in determination of the requisite mental state.” (Timms,
151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22
did not infringe defendant’s constitutional rights.

Rothwell also argues
the trial court’s application of section 22 violated her constitutional right to

due process and a fair trial because, “[t]he level of a defendant’s intoxication
is undeniably relevant evidence on the issue of whether he or she consciously
disregarded a risk to human life.” We find People v. Martin (2000) 78
Cal.App.4th 1107 (Martin), instructive.

In Martin, supra,
78 Cal.App.4th at page 1113, the court rejected this constitutional challenge to
section 22. The court explained, “Section 22 states the basic principle of law
recognized in California that a criminal act is not rendered less criminal
because it is committed by a person in a state of voluntary intoxication.” The
court stated section 22 “is closely analogous to [the Legislature’s] abrogation
of the defense of diminished capacity . . . . The 1995 amendment to section 22
results from a legislative determination that, for reasons of public policy,
evidence of voluntary intoxication to negate culpability shall be strictly
limited. We find nothing in the enactment that deprives a defendant of the
ability to present a defense or relieves the People of their burden to prove
every element of the crime charged beyond a reasonable doubt.” (Martin,
78 Cal.App.4th at p. 1117.)

We find the courts’ reasoning in

Timms, supra, 151 Cal.App.4th 1292, and Martin, supra, 78
Cal.App.4th 1107, persuasive. Thus, we conclude the trial court’s refusal to
instruct the jury with Rothwell’s Special Instruction did not violate her
constitutional rights. The trial court properly instructed the jury with CALCRIM
No. 625.

Equal Protection

In its respondent’s brief,
the Attorney General suggests Rothwell may be asserting an equal protection
claim. In her reply brief, Rothwell raises the equal protection argument for the
first time. We need not consider this argument, because it was made for the
first time in reply without any showing of good cause for failing to raise it in
the opening brief. (Shade Foods, Inc. v. Innovative Products Sales &

Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) Additionally,
to the extent Rothwell attempts to raise an equal protection claim, her failure
to properly raise the issue and support it with adequate argument and citation
to authority waived the issues on appeal. (See, e.g., California Dept. of
Corrections v. State Personnel Bd.
(2004) 121 Cal.App.4th 1601, 1619.) In
any event, her claim fails on the merits. (Timms, supra, 151 Cal.App.4th
at pp. 1302-1303.)


The judgment is



1. `In accord
with the usual rules of appellate review, we state the facts in the light most
favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199,
2. Miranda v. Arizona (1966) 384 U.S. 436.
3. All further
statutory references are to the Penal Code

Posted in Breaking News - Our Most Recent Serotonin Nightmares., Recent Cases Blog and tagged , , , , , , , , , , , , , , , , , , , , , .

Ann Blake Tracy, Executive Director,
International Coalition for Drug Awareness
(DrugAwareness.Org & SSRIstories.Net)
Author: ”Prozac: Panacea or Pandora? – Our Serotonin Nightmare – The Complete Truth of the Full Impact of Antidepressants Upon Us & Our World” & Withdrawal CD “Help! I Can’t Get Off My Antidepressant!”

She has specialized since 1990 in adverse reactions to serotonergic medications (such as Prozac, Sarafem, Zoloft, Paxil, Luvox, Celexa, Lexapro, Effexor, Serzone, Remeron, Anafranil, Fen-Phen, Redux and Meridia as well as the new atypical antipsychotics Zyprexa, Geodon, Seroquel and Abilify), as well as pain killers, and has testified before the FDA and congressional subcommittee members on antidepressants.

WITHDRAWAL WARNING: In sharing this information about adverse reactions to antidepressants I always recommend that you also give reference to my CD on safe withdrawal, Help! I Can’t Get Off My Antidepressant!, so that we do not have more people dropping off these drugs too quickly – a move which I have warned from the beginning can be even more dangerous than staying on the drugs!

WITHDRAWAL HELP: You can find the hour and a half long CD on safe and effective withdrawal helps here: store.drugawareness.org And if you need additional consultations with Ann Blake-Tracy, you can book one at www.drugawareness.org or sign up for one of the memberships for the International Coalition for Drug Awareness which includes free consultations as one of the benefits of that particular membership plan. You can even get a whole month of access to the withdrawal CD with tips on rebuilding after the meds, all six of my DVDs, hundreds of radio interviews, lectures, TV interviews I have done over the years PLUS my book on antidepressants with more information than you will find anywhere else for only $30 membership for a month (that is only $5 more than the book alone would cost) at www.drugawareness.org. (Definitely the best option to save outrageous postage charges for those out of the country!)

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