Can evidence of intoxication be considered in determining whether appellant acted with premeditation or deliberation?

deliberation or premeditation" and CALCRIM No. 625 instructed that evidence of intoxication could be considered in determining whether appellant acted with premeditation or deliberation. "There is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)

Assuming, without deciding that the trial court erred in not modifying CALCRIM No. 625, any error would be harmless under any standard of review. (See People v. Flood (1998) 18 Cal.4th 470, 484 [error harmless where factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions].) The uncontradicted evidence shows that appellant committed a lying-in-wait murder. Based on the instructions as a whole, there is no doubt the jury considered appellant's intoxication. Appellant fails to explain how the jury could have found that he was sober enough to premeditate and deliberate the murder, but was too intoxicated to harbor the "equivalent" mental state for lying in wait.³ Because it could not have done so, any alleged instructional error was harmless. (Ibid.)

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