Brief Bank # B-960 (Re: F 3.32 n11 [Intoxication And/Or Mental Disease To Negate Malice: Challenge To Saille In Light Of Lasko/Blakeley].)
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Date of Brief: November 21, 2001.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
Appeal from the Judgment of the Superior Court, Sacramento County
Honorable John H. Darlington, Judge Presiding
APPELLANT’S OPENING BRIEF
State Bar No. 77371
1305 North H Street, Suite A
Lompoc, CA 93436-3335
Attorney for Appellant
THE TRIAL COURT SHOULD HAVE INSTRUCTED ON THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER BASED ON THE EVIDENCE THAT APPELLANT’S MENTAL DISEASE & DISORDER IN COMBINATION WITH HIS VOLUNTARY INTOXICATION NEGATED MALICE AFORETHOUGHT
Appellant contends that the trial court had a duty to instruct on the lesser included offense of voluntary manslaughter based on the substantial evidence that appellant’s mental disease and gross intoxication negated the requisite malice aforethought to find him guilty of murder. The defense requested that the court do so and proposed a jury instruction. [Footnote 1] (C.T. 244; R.T. 795.) The court refused to instruct on voluntary manslaughter. First, relying on People v. Spurlin (1984) 156 Cal.App.3d 119, it concluded there was insufficient evidence of provocation from the victim. Second, relying (presumably) on People v. Saille (1991) 54 Cal.3d 1103, it concluded evidence of voluntary intoxication to negate malice aforethought could result in conviction of no more than involuntary manslaughter. (R.T. 796-797; C.T. 243-249.) On the written proposed instruction itself, the court noted it was relying on “People v. Bobo 229 Cal.App.3d, and People v. Rios 23 Cal.4th , fn. 10.” (C.T. 244.)
Appellant’s contention that voluntary intoxication and mental disease are relevant to disprove the presence of malice aforethought and result in a conviction of voluntary manslaughter is based on several developments in the law since Bobo and Saille were decided. First, that part of Saille which equates express malice aforethought with a bare intent to kill was overruled in In re Christian S. (1994) 7 Cal.4th 768. Express malice requires a “deliberate and wrongful intent.” (Id., at pp. 778.) Second, the Supreme Court has clarified that the presence or absence of malice aforethought is what distinguishes murder from manslaughter – not an intent to kill; an intent to kill was never an element of voluntary manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, People v. Blakeley (2000) 23 Cal.4th 82.) Third, when voluntary manslaughter is the only charge, it is conceded that malice aforethought does not exist; the prosecution does not bear the burden of proving those circumstances that negate it. (People v. Rios (2000) 23 Cal.4th 450.)
What these cases mean is that a person who unlawfully and intentionally kills another human being without malice aforethought is guilty of voluntary manslaughter. In Lasko, the defendant claimed he acted under the heat of passion upon being provoked, though he acted with malice aforethought, the circumstances partially excused his malice because the statute says so. (§ 192, subd. (a).) In Blakeley, the defendant claimed he acted with the actual belief he needed to defend himself though his belief was unreasonable under the circumstances. Such a belief is inconsistent with malice aforethought because it is not a “deliberate and wrongful” belief or a “conscious disregard of the risk to human life”– as was recognized in Christian S., malice aforethought is absent. (§ 192.) Though these cases were careful to limit their holdings so as not to be perceived to be reviving the diminished-capacity defense, their holdings do not rule out voluntary manslaughter based on the absence of malice, in fact, due to mental illness or voluntary intoxication. It logically follows that a person who acts intentionally may lack malice aforethought, in fact, due to mental disease or voluntary intoxication. Though his actions are intentional, he does not have the “deliberate and wrongful” intent needed for express malice or the wrongful conscious disregard for human life needed for implied malice. The resulting crime is voluntary manslaughter. (§ 192.)
Appellant proposes that the current statutory definitions of murder and manslaughter found in sections 188 and 192, as clarified by recent case law, as well as sections 28 and 22 support the contention that when voluntary intoxication and mental disease disprove the presence of malice aforethought, in fact, an unlawful intentional killing will result in a conviction of voluntary manslaughter. Constitutional principles also urge adoption of appellant’s view.
The due process clause precludes a conviction unless the state has proved beyond a reasonable doubt every fact necessary to constitute the crime with which the accused is charged. This burden cannot be shifted to a defendant. (Patterson v. New York (1977) 432 U.S. 197, 204-205 [97 S.Ct. 2319, 2324, 53 L.Ed.2d 281].) Thus, “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” (Id. at p. 210 [97 S.Ct. at p. 2327].) Our system of criminal justice is premised on the principle that for an action to be punishable as a crime, the act must be done with a concurrent criminal intent (Pen. Code §§ 7, 20; People v. Vogel (1956) 46 Cal.2d 798, 801, fns. 1 & 2; In re Winship (1970) 397 U.S. 358, 372 [90 S.Ct. 1068, 1076-1077, 25 L.Ed.2d 368] (conc. opn. of Harlan, J.) [burden of proof beyond a reasonable doubt].)
Appellant’s contention is grounded in the well settled principle that evidence which tends to negate a mental state required to prove a crime is admissible, unless it is statutorily prohibited for a constitutionally valid reason. (People v. Wells (1949) 33 Cal.2d 330, 357; see Montana v. Egelhoff (1996) 518 U.S. 37, 53 [116 S.Ct. 2013, 2022, 135 L.Ed.2d 361] [plurality opinion] [“the introduction of relevant evidence can be limited by the State for a ‘valid’ reason ….”].)
A. Senate Bill No. 54:
In 1981, several amendments were enacted together as part of Senate Bill No. 54. Those amendments included the addition to the Penal Code of section 28, which eliminated the diminished capacity defense, and section 29, which limited psychiatric testimony regarding a defendant’s mental state. The Legislature also changed Penal Code section 188’s definitions of express and implied malice as well as section 189’s definition of premeditation and deliberation and amended section 22 to restrict a defendant’s use of evidence of voluntary intoxication to negate mental capacity.
The amendments show that the Legislature referred specifically to the defenses and types of evidence that were being eliminated or restricted. For example, section 28, subdivision (b) states,
As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.
Before the 1981 amendments, section 188 stated:
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
The 1981 amendments did not change this language. Rather, the amendments added the following language:
When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. An awareness of the obligation to act within the general body of laws regulating society is not included within the definition of malice. (Stats. 1981, ch. 404, § 6, p. 1593.)
The added language clearly refers to the diminished capacity defense. The amendment uses the same language as was used in case law before 1981 in explaining the premise that malice required an “‘… awareness of the obligation to act within the general body of laws regulating society ….’ (People v. Conley (1966) 64 Cal.2d 310, 322.)”
(In re Christian S., supra, 7 Cal.4th 768, 775; also see People v. Wolff (1964) 61 Cal.2d 795 and People v. Poddar (1974) 10 Cal.3d 750 which also made evidence of a defendant’s “diminished capacity” relevant to determining culpability for premeditation and deliberation and implied malice.)
The language and history of the 1981 Penal Code amendments leave no question that the Legislature intended to abolish the diminished capacity defense. The Legislature explicitly and repeatedly stated that it was doing so. (In re Christian S., supra, 7 Cal.4th at pp. 780-781 [review of extensive legislative history materials].) [Footnote 2]
In sum, the upshot of the amendments was “to change the focus from the defendant’s general capacity to form a given mental state to the ultimate question of whether the defendant in fact actually had the required mental state. (Analysis of Sen. Bill No. 54 by Governor’s Legal Affairs Sect., pp. 1-2.)” (In re Christian S., supra, 7 Cal.4th at p. 781, emphasis added.)
B. People v. Saille:
In People v. Saille (1991) 54 Cal.3d 1103, after analyzing the amendment to section 188, the court held that the definition of express malice had been narrowed so that when evidence of voluntary intoxication and mental disorder is admitted and believed by the jury to negate malice aforethought, the crime committed can be no more than involuntary manslaughter. (Id., at p. 1117.) The court explained its reasoning:
In amending section 188 in 1981, the Legislature equated express malice with an intent unlawfully to kill. Since two distinct concepts no longer exist, there has been some narrowing of the mental element included in the statutory definition of express malice. A defendant, however, is still free to show that because of his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought). (People v. Jackson, supra, 152 Cal.App.3d at p. 968.) In a murder case, if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal. If such a showing gives rise to a reasonable doubt, the killing (assuming there is no implied malice) can be no greater than involuntary manslaughter. (See People v. Bobo, [fn. * omitted] supra, 229 Cal.App.3d at pp. 1442- 1443.) (Id., at pp. 1116-1117.)
Saille based this reasoning on its conclusion that, after the amendment of section 188, “express malice and an intent unlawfully to kill are one and the same.” (Saille, supra, 54 Cal.3d at p. 1114.)
Section 188, as amended by Senate Bill No. 54 (see fn. 5, ante), now provides: “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.” (Italics added in original.)
The first sentence of the underscored passage limits malice to the definition set forth in section 188. This sentence clearly provides that once the trier of fact finds a deliberate intention unlawfully to kill, no other mental state need be shown to establish malice aforethought. Whether a defendant acted with a wanton disregard for human life or with some antisocial motivation is no longer relevant to the issue of express malice. (People v. Stress (1988) 205 Cal.App.3d 1259, 1267-1268 [252 Cal.Rptr. 913].) No doubt about this conclusion is possible when the last sentence of section 188 is analyzed. That sentence directly repudiates the expanded definition of malice aforethought in People v. Conley, supra, 64 Cal.2d 310, and People v. Poddar, supra, 10 Cal.3d 750, that express and implied malice include an awareness of the obligation to act within the general body of laws regulating society and the capability of acting in accordance with such awareness. After this amendment of section 188, express malice and an intent unlawfully to kill are one and the same. [fn. 6 omitted] (People v. Stress, supra, 205 Cal.App.3d at p. 1268.)
Pursuant to the language of section 188, when an intentional killing is shown, malice aforethought is established. Accordingly, the concept of “diminished capacity voluntary manslaughter” (nonstatutory manslaughter) recognized in Conley, supra, 64 Cal.2d 310, is no longer valid as a defense. (Saille, supra, 54 Cal.3d at pp. 1114-1115.)
In the case of In re Christian S., the court retreated from Saille’s conclusion about the definition of express malice. Express malice requires not just a bare intent to kill, but also a “wrongful intent.” (Christian S., supra, 7 Cal.4th at p.778.) The court in Christian S. also rejected the State’s suggestion that it had previously decided in Saille, supra, 54 Cal.3d 1103, that Penal Code section 188’s definition of express malice does not require an intent to act “unlawfully,” that an intent to kill will suffice.
This reads too much into Saille. It quotes a Court of Appeal decision that, in turn, relies on another Court of Appeal decision for the proposition that, ” ‘The adverb “unlawfully” in the express malice definition means simply that there is no justification, excuse, or mitigation for the killing recognized by the law.’ ” (Saille, supra, 54 Cal.3d at p. 1115, quoting People v. Bobo (1990) 229 Cal.App.3d 1417, 1440-1441 [271 Cal.Rptr. 277], citing People v. Stress (1988) 205 Cal.App.3d 1259, 1268 [252 Cal.Rptr. 913].) (Christian S., supra, 7 Cal.4th at p. 779.)
This is because express malice is not just a bare intent to kill, as stated by Saille – it requires a deliberate and wrongful intent, as explained in Christian S., supra, 7 Cal.4th at pages 779 and 780, and affirmed in Lasko, Blakeley and Rios. (Lasko, supra, 23 Cal.4th at p.109-111; Blakeley, supra, 23 Cal.4th at pp. 88-89; Rios, supra, 23 Cal.4th at pp. 461-462.) Language in Saille to the contrary has been overruled. [Footnote 3]
The court in Christian S. explained the statutory definition of implied malice also includes a “wrongful” intent, e.g., “an abandoned and malignant heart.” (Pen. Code § 188.)
This ambiguity [in the definition of “express malice” in section 188], however, does not affect the applicability of the imperfect self-defense doctrine, because a defendant’s actual belief in the need for self-defense against imminent peril would negate a finding of implied as well as express malice. As already noted, under section 188 malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” As Justice Traynor explained in his concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], implied malice is shown when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (Italics added.) A defendant who acts with the requisite actual belief in the necessity for self-defense does not act with the base motive required for implied malice, i.e., with “an abandoned and malignant heart.” (Accord, People v. Wells, supra, 33 Cal.2d 330, 345 [imperfect self-defense negates “malice aforethought” element of Penal Code section 4500 (assault by a life prisoner “with malice aforethought,” a capital offense)].) A contrary conclusion, namely, that imperfect self-defense applies only in cases of express, but not implied, malice would lead to a totally anomalous and absurd result, in which a defendant, who unreasonably believes that his life is in imminent danger, would be guilty only of manslaughter if he acts with the intent to kill his perceived assailant, but would be guilty of murder if he does not intend to kill, but only to seriously injure, the assailant. There is no authority to support such an incongruous rule. (Christian S., supra, 7 Cal.4th at p. 780, fn. 4.)
As shown by the above discussion of Christian S., the underpinnings of Saille’s definition of express malice as a bare intent to kill has been discredited. To be sure, Saille survives for its holding that the Legislature abolished the defense of diminished capacity, but nothing more. The addition of the second paragraph to Penal Code section 188 makes it clear that voluntary manslaughter based on those mental states created by judicial decision relating to a defendant’s capacity to form a requisite mental state is no longer available. However, Saille’s holding that mental disease and/or voluntary intoxication could not negate malice aforethought to get to voluntary manslaughter is not sound because it was based on its equation of malice with intent to kill – a view no longer adhered to by a majority of the California Supreme Court as seen in Christian S., Lasko, Blakeley and Rios. Rather, when malice aforethought is absent, in fact, the resulting crime is voluntary manslaughter, if the unlawful killing is otherwise intentional.
C. Statutory Construction of sections 188, 28 and 22 in light of Christian S., et al:
We begin with the fundamental rule that a court’s primary task in construing a statute is to determine the Legislature’s intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724.) We must begin with the words of the statute. (Ibid.)
Blakeley and Lasko explained that the critical distinction between murder and manslaughter is malice aforethought.
Murder is the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187, subd. (a).) Malice aforethought may be either express or implied. “It is express when the defendant manifests “a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) The latter language has been further defined as “when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life” (People v. Dellinger (1989) 49 Cal.3d 1212, 1217), referred to for convenience as “conscious disregard for life.” (Blakeley, supra, 23 Cal.4th at 87.) [Footnote 4]
Manslaughter is “the unlawful killing of a human being without malice.” (§ 192 verbatim.) In Blakeley, the court was considering the effect of imperfect self-defense on malice aforethought and of what crime would the accused be guilty.
A defendant lacks malice and is guilty of voluntary manslaughter in “‘limited, explicitly defined circumstances: either when the defendant acts in a “sudden quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in “unreasonable self-defense” – the unreasonable but good faith belief in having to act in self-defense (see In re Christian S. (1994) 7 Cal.4th 768 . . . ; People v. Flannel [(1979)] 25 Cal.3d 668).’ (People v. Barton (1995) 12 Cal.4th 186, 199.)” (Blakeley, supra, 23 Cal.4th at 87-88.)
In Rios, the court was considering whether the prosecution bore the burden of proving the absence of provocation or imperfect self-defense when only voluntary manslaughter was charged. Justice Baxter explained:
In Blakeley and Lasko, both supra, we recently stated that specific intent to kill is not a necessary element of voluntary manslaughter. (Blakeley, supra, 23 Cal.4th at p. 88; Lasko, supra, 23 Cal.4th at p. 108.) However, we meant only to make clear that voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully, and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense. (Blakeley, supra, 23 Cal.4th at pp. 90-91; Lasko, supra, 23 Cal.4th at pp. 90-92, fn. 7 [emphasis in original].) (Rios, supra, 23 Cal.4th at p. 461, fn. 7.)
One must conclude from these last comments that voluntary manslaughter is a killing without malice. If that state of mind exists at all, its existence is negated by evidence of certain circumstances, as defined by statute (Pen. Code, § 192 [“Manslaughter is the unlawful killing of a human being without malice”].) The resulting crime that is committed is voluntary manslaughter, an unlawful killing without malice. (Lasko.)
Based on the facts and issues put before the court, Lasko and Blakeley held that when a person kills with malice aforethought (express or implied, as defined), and the killing occurs in a sudden quarrel or heat of passion OR because the defendant in good faith but unreasonably believes in the need to kill in self defense, and the killing is nonetheless unlawful (unjustified/non-accidental), then the crime committed is voluntary manslaughter.
Although the majority found no prejudicial error stemming from the erroneous instruction on voluntary manslaughter that intent to kill was an element, under the facts and instructions given in Mr. Blakeley’s case, all six justices agreed with Justice Mosk’s view that an unintentional killing in unreasonable self defense, without malice, can be involuntary manslaughter. (Blakeley, 23 Cal.4th at 92 [maj. opn.]; at p. 99, fn. 2, Mosk, J., dis.)
To sum up, Blakeley and Lasko teach that voluntary manslaughter is an intentional killing without malice. (§ 192.) [Footnote 5] An actual yet unreasonable belief in the need to defend oneself negates malice aforethought in an intentional killing because malice “cannot coexist” with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand. (People v. Flannel (1979) 25 Cal.3d 668, 675 (plur. opn. of Tobriner, J.) (Flannel); see also id., at pp. 686-687 (conc. opn. of Richardson, J.); Christian S., supra, 7 Cal.4th 768, 777-780.)
Likewise, evidence of voluntary intoxication or mental illness that raises a reasonable doubt about whether a defendant, in fact, acted with malice aforethought, express or implied, in killing another human being unlawfully, may result in conviction of voluntary manslaughter (§§ 188, 192, 22 & 28.) Because one who kills unlawfully and intentionally, but lacks malice, is guilty of voluntary manslaughter, “[intentional] voluntary manslaughter … is considered a lesser necessarily included offense of intentional murder.” (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 200-201.)
As revealed by the above discussions regarding Christian S., Blakeley and Lasko, insofar as Saille held express malice is nothing more than an intentional unlawful killing, and its negation would be involuntary manslaughter, its holding has been repudiated. The definitions of express malice and implied malice are based on their statutory definitions. The mental state required for express malice is not simply an unlawful intent to kill; it is a deliberate and wrongful unlawful intent to kill. (Christian S., supra, 7 Cal.4th at p. 780, fn. 4; People v. Lasko, supra, 23 Cal.4th at pp. 109-111.)
D. The Statutory Scheme Recognizes Voluntary Manslaughter Due to Mental Illness and Voluntary Intoxication:
This brings us back to our premise – that the amendments embodied in Senate Bill 54 were intended by the Legislature “to eliminate the use of diminished capacity defenses; to eliminate psychiatric opinions on the ultimate issue of intent; and to reverse Supreme Court decisions that require certain cognitive requirements for first and second degree murder. (Bill Analysis, Senate Bill 54 (as amended June 17, 1981), Assembly Committee on Criminal Justice, Terry Goggin, Chairman, p. 3.) The purpose of the legislation was “to change the focus from the defendant’s general capacity to form a given mental state to the ultimate question of whether the defendant in fact actually had the required mental state.” (Analysis of Sen. Bill No. 54 by Governor’s Legal Affairs Sect., pp. 1-2.) (In re Christian S., supra, 7 Cal.4th at p. 781, emphasis added.)
Penal Code section 28, subdivision (a), in its current version, states:
Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged. [Footnote 6]
Penal Code section 22, subdivision (b), as amended in 1995 (Stats.1995, c. 793 (S.B. 121), §1), provides:
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. [Footnote 7]
Penal Code section 188 defines malice aforethought as:
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. An awareness of the obligation to act within the general body of laws regulating society is not included within the definition of malice. (Stats. 1981, ch. 404, § 6, p. 1593.)
Penal Code section 192 provides verbatim:
“Manslaughter is the unlawful killing of a human being without malice.”
The language of Penal Code sections 188 and 192 permits a conviction for voluntary manslaughter based on the negation of malice aforethought and an intentional killing when the killer due to intoxication/mental disorder was not actually conscious of the risk to human life or that death would be the natural consequence of the performance of his intentional act. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 104.) [Footnote 8]
If the jury finds the intent with which his actions are committed is due to his mental disease and gross intoxication, and, he in fact does not have a deliberate and wrongful intent to kill, or a conscious disregard of the natural consequences of his action, the crime would be voluntary manslaughter unless the killing is unintentional. As explained in Lasko, an intentional killing without malice is voluntary manslaughter.
E. The Legislative History of Senate Bill 54:
Christian S. acknowledged that the statutory definition of malice aforethought is not crystal clear. In that event, the courts look to the legislative history to divine the intent of the Legislature in construing the statute. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 830.)
As shown by the legislative history to Senate Bill 54, and the amendments to sections 188 and 22 themselves, the Legislature aimed to abolish mental capacity defenses but did not ban evidence of mental illness or intoxication that showed an accused did not, in fact, act with malice aforethought.
The authors of Senate Bill 54 believed that the defense of diminished capacity can be divided into two variants: the “mens rea variant” and the “partial responsibility variant.” (California Lawyer, June 1982, “Diminishing diminished capacity in California” Morse & Cohen, at p. 24.) The “mens rea variant” allows a defendant to use evidence of his mental disorder to negate the specific intent element of the charged offense while the “partial responsibility variant” permits the accused to show that because of a mental disability, the defendant is less responsible for his actions than a normal person. (Id.)
If specific intent is an element of the crime, any evidence relating to existence or absence of that intent is relevant. (§ 28, subd. (a).) For example, expert testimony describing some consciously entertained thought inconsistent with the requisite intent of the crime charged would be admissible. (People v. Wells, supra, 33 Cal.2d at pp. 344-345.) In Wells, the defendant entertained an intent that negated the mens rea of the crime charged; because of his mental illness, he over-reacted to external stimuli so that he mistakenly and irrationally believed he was acting in self-defense when he assaulted the guard, negating the element of malice aforethought required by the statute. The court “recognized that malice aforethought is a specific mental state and that a defendant may show that he lacked that mental state when it is an essential element of the offense of which he stands accused.” (Id., at p. 357.)
Evidence must be admitted that shows that at the time a defendant committed an overt act he did or did not have a specific mental state such as malice aforethought. By way of examples of the classes of crimes that require proof of a specific mental state the Wells court mentioned “the homicides, wherein, if a charge of murder in either degree is to be supported, there must be proof of malice aforethought; lacking proof of malice aforethought the homicide can be no higher offense than manslaughter.” (Id., at p. 346.)
Evidence that the defendant was acting under a delusion at the time of the criminal act would be admissible to show that the accused did not form the requisite intent. For example, in People v. Wetmore (1978) 22 Cal.3d 318, defendant showed that he entered the apartment under the delusion that he was the owner, and thus, he did not enter with the intent of committing theft or a felony. (People v. Wetmore, supra, 22 Cal.3d at p. 321.)
One legal commentator proposed another example of relevant mental health evidence,
A mental health expert conceivably could testify, under the strict mens rea interpretation of section 28, subdivision (a) that a defendant was suffering from a disease in the nature of a psychosis (loss of contact with reality), which, at times could cause the defendant to become so confused, bewildered, or perplexed that he could not rationally premeditate. This evidence would be admissible because it is directly relevant to the issue of whether the defendant actually premeditated. (Seibert, K., “Admissibility of Psychiatric Testimony in the Guilt Phase of Bifurcated Trials: What’s Left After the Reforms of the Diminished Capacity Defense?”, (1984) 16 Pac.L.J. 305, 319, 326, n. 148 omitted.)
Another example is the case of People v. Molina (1988) 202 Cal.App.3d 1168. There, a psychotic mother, who was experiencing auditory hallucinations, strangled and killed her 18-month-old son and set fire to the house. The trial court refused requested instructions on the lesser offenses of voluntary and involuntary manslaughter. The defendant was convicted of second degree murder and found not guilty by reason of insanity. The Court of Appeal reversed. The Molina court reviewed sections 25, 28, and 29, noting that the statutory language provides that “evidence of mental problems is inadmissible to show that a defendant lacked the capacity to form the requisite mental state, but is admissible to show that the defendant actually lacked the requisite mental state.” (202 Cal.App.3d at p. 1173.) From this the court concluded:
The inclusion of the language in subdivision (a) [of section 28] regarding actual formation of mental states shows that the Legislature did not foreclose the possibility of a reduction from murder to voluntary manslaughter where malice is lacking due to mental illness, or a further reduction to involuntary manslaughter where intent to kill is not present for the same reason. (Id., at p. 1174.)
The court in Saille rejected Molina because it had supposedly failed to consider the effect on the definition of malice of the amendment to section 188, which was part of the same legislative package as sections 25, 28, and 29. (People v. Saille, supra, 54 Cal.3d at pp. 1113-1114.) As discussed above, this fallacy was based on the assumption that application of a mental defense to negate malice would result in reduction to a “non-statutory” brand of manslaughter. As seen, this is not the case.
Since the mental defenses are themselves based in statutory language which refers to the distinct mental states of premeditation and deliberation, malice aforethought and specific intent, it is reasonable to interpret these statutes as impacting on the statutory difference between murder and voluntary manslaughter found in Penal Code sections 188, 189 and 192 – the absence of malice aforethought. (See People v. Molina, supra, 202 Cal.App.3d at p. 1174 [“The inclusion of the language in subdivision (a) [of section 28] regarding actual formation of mental states shows that the Legislature did not foreclose the possibility of a reduction from murder to voluntary manslaughter where malice is lacking due to mental illness, or a further reduction to involuntary manslaughter where intent to kill is not present for the same reason.”].)
Reduction of murder to manslaughter where malice is negated by a mental defense but an intent to kill remains is not a judicial creation but an interpretation of the statutes which achieves the Legislature’s intended result.
Sections 28 and 29 and the amendments to section 22 specifically list “premeditation and deliberation”, “malice aforethought”, and “specific intent” separately. [Footnote 9] This list confirms that the Legislature intended to fit these categories of evidence into the pre-existing statutory scheme which compels the jury to find voluntary manslaughter in the absence of malice. (People v. Molina, supra, 202 Cal.App.3d 1168, 1173-1175; accord: People v. Whitler (1985) 171 Cal.App.3d 337, 343; In re Thomas C. (1986) 183 Cal.App.3d 786, 797, fn. 4; People v. Lynn (1984) 159 Cal.App.3d 715, 731 [abolition of the diminished capacity defense does not preclude a defendant from showing that he did not actually form the requisite mental state].)
Thus, it can be reasonably inferred that from the legislative amendments to Penal Code sections 21, 26, 188 and 189 that the Legislature intended simply to eliminate the defense of diminished capacity in the “partial responsibility” sense. The “mens rea variant” is not an independent defense and should not be labeled as diminished capacity. (Id.) [Footnote 10] This is consistent with both Wells, supra, 33 Cal.2d 330 and People v. Gorshen (1959) 51 Cal.2d 716, because neither of these cases suggest that a special defense was created. [Footnote 11] Gorshen held that murder could be reduced to manslaughter, not only on the statutory basis of the reasonable person objective standard of provocation (§ 192), but also on the subjective standard of defendant’s voluntary intoxication or mental impairment. (51 Cal.2d at pp. 731-733.) Likewise, imperfect self-defense is based on the defendant not having the subjective mental state of malice aforethought required for murder which reduces it to voluntary manslaughter in unlawful intentional killings. (In re Christian S., supra, 7 Cal.4th at p. 780; Blakeley, supra, 23 Cal.4th at p. 92.)
In homicide cases, the amendments merely limit the relevance of evidence of a defendant’s voluntary intoxication or mental disease by eliminating the expanded definitions of “malice” and “premeditation and deliberation” found in People v. Conley, supra, 64 Cal.2d 310, 322 and People v. Wolff, supra, 61 Cal.2d 795 which permitted a defendant to demonstrate that he was less capable of forming the required intent than a normal person because he did not appreciate his societal duty to conform to the laws or because he did not maturely and meaningfully reflect upon the gravity of his act. This eliminates one base on which the jury could find that malice was absent. This interpretation of the legislative amendments conforms to the plain meaning of the statutes, carries out the legislative intent, avoids constitutional problems concerning interpretations which prohibit the introduction of evidence which rebuts a required mental state and preserves “malice” as the statutory distinction between murder and manslaughter.
F. The Court Should Have Instructed the Jury, As Requested by the Defense, that the Absence of Malice Aforethought Due to Mental Illness and/or Voluntary Intoxication Results in Voluntary Manslaughter When the Unlawful Killing is Intentional:
The defense asked the court to instruct the jury with a modified version of CALJIC No. 8.40. (See footnote 6, ante.) The court refused to do so based on People v. Bobo, (C.T. 244) which had been cited with approval in Saille. The court should have granted the defense request.
Because California’s murder statutes require specific mental states, the prosecution must prove their existence, and the defendant has the constitutional right to rebut that proof with any relevant evidence. (People v. Babbitt (1988) 45 Cal.3d 660, 694.) For example, section 28, subdivision (a) permits consideration of evidence of mental disease, mental defect or mental disorder on the issue of whether or not the accused actually formed a required mental state; however, the section does not explicitly state what the legal effect of such findings would be. Obviously, however, if “[e]vidence of mental disease . . . is admissible” to show that the accused did not “actually . . . harbor malice aforethought,” then the Legislature must have contemplated that such a showing would have some legal consequences. It is equally obvious that the Legislature could not have intended that consequence to be acquittal. Since such a killing would be neither excusable nor justifiable (§§ 195, 197), it would be unlawful, and logically should be treated as voluntary manslaughter, even if not fitting precisely within the statutory definitions of manslaughter. (§ 192.) [Footnote 12]
It is well settled that a jury must be instructed on all lesser included offenses.
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370]), but not when there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479 [96 Cal.Rptr. 441, 487 P.2d 1009]; People v. Osuna (1969) 70 Cal.2d 759, 767 [76 Cal.Rptr. 462, 452 P.2d 678].) The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Mosher (1969) 1 Cal.3d 379, 393 [82 Cal.Rptr. 379, 461 P.2d 659]; People v. Graham (1969) 71 Cal.2d 303, 319 [78 Cal.Rptr. 217, 455 P.2d 153].) Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. (People v. St. Martin, supra, 1 Cal.3d 524, 533.)” (Sedeno, supra, 10 Cal.3d 703, 715-716, fn. omitted; see Barton, supra, 12 Cal.4th at pp. 194-198.) (People v. Breverman, supra, 19 Cal.4th at pp. 154-155.)
1. Standards of Prejudice:
Though the state supreme court has held there is no federally guaranteed right to sua sponte instruction on lesser included offenses in noncapital cases (People v. Breverman, supra, 19 Cal.4th at pp. 165-166), in this case, the defense requested the instruction. Moreover, the federal Constitution guarantees a defendant the right to have the jury decide the existence of all of the elements of the offense of which he is convicted. The Sixth Amendment to the federal Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. (United States v. Gaudin (1995) 515 U.S. 506, 522-523 [115 S.Ct. 2310, 132 L.Ed.2d 444].) The jury’s “constitutional responsibility,” includes applying the law to the facts to determine the existence of each element of the crime- “that is, [the] ‘ultimate’ or ‘elemental’ fact[s]” needed to convict. (Id. at pp. 514-515.)
In order to make a finding on each elemental fact needed to convict, the jury must of course be fully instructed on the elements of the crime. For that reason, instructions that omit or misdescribe an element of the offense, preventing the jury from making a necessary factual finding, are constitutionally defective. (People v. Flood (1998) 18 Cal.4th 470, 491 [“The prohibition against directed verdicts for the prosecution extends to instructions that effectively prevent the jury from finding that the prosecution failed to prove a particular element of the crime beyond a reasonable doubt.”].)
A defendant has a constitutional right to have the jury instructed with a pinpoint instruction that relates the theory of his defense to the crime. (United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-02.) The federal due process clause of the 14th Amendment to the Constitution requires criminal intent to always be proven by the prosecution. (In re Winship, supra, 397 U.S. 358, 372 [90 S.Ct. 1068, 1076-1077, 25 L.Ed.2d 368] (conc. opn. of Harlan, J.) [burden of proof beyond a reasonable doubt]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]), as applied in Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182]; Neder v. U.S. (1999) 527 U.S. 1 [144 L.Ed.2d 35, 44, 51].)
Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of heat of passion, unreasonable self-defense or mental disease or voluntary intoxication (as to express malice). Therefore, the court must instruct on these theories when warranted by the evidence. (Mullaney v. Wilbur (1975) 421 U.S. 684-687, 696-698, 703 [95 S.Ct. 1881, 1882-1884, 1888-1889, 1892, 44 L.Ed.2d 508].)
Due process requires fundamental fairness in the criminal procedures by which a defendant is convicted of a crime. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872 [102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193] [“Due process guarantees that a criminal defendant will be treated with ‘that fundamental fairness essential to the very concept of justice.’”]; Spencer v. Texas (1967) 385 U.S. 554, 563-564 [87 S.Ct. 648, 653, 17 L.Ed.2d 606] [“the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial”]; People v. Quartermain (1997) 16 Cal.4th 600, 618].) In particular, due process “ensure[s] fundamental fairness in the determination of guilt at trial.” (Albright v. Oliver (1994) 510 U.S. 266, 283 [114 S.Ct. 807, 818, 127 L.Ed.2d 114] (conc. opn. of Kennedy, J.).)
2. Appellant’s Case:
Extensive testimony was admitted regarding appellant’s history of mental disorders and his state of intoxication near the time of the offense. Appellant’s various admissions to numerous persons immediately after the event could support the inference that the killing was intentional though committed in a drunken rage or due to appellant’s mental illness (which included a history of self-mutilation, self-choking, traumatic injury to the brain and possible seizures) or a combination of both.
Put another way, due to the combined effect of intoxication and mental disease, appellant acted in a “blind rage,” (not based on provocation that would enrage an “ordinarily reasonable man”) triggered by some event that would cause a mentally ill person to react, without malice, express or implied, because he did not, in fact, have a wrongful intent. (See People v. Logan (1917) 175 Cal. 45, 48, 49-50 [164 P. 1121] [heat of passion can be provoked by insulting words alone]; also People v. Cameron (1994) 30 Cal.App.4th 591, 601 [“Intoxication is a circumstance from which the jury might find that defendant’s act in response to provocation should be attributed to passion rather than judgment.”]; also see id., at p. 604, fn. 7.)
The defense argued there was circumstantial evidence of provocation based on the circumstances of the death. The evidence of repeated beating to the point of the brain protruding inferred extreme emotion was at work but why? The defense argued something had to have triggered appellant’s reaction and it must have come from Mr. E, though there was no direct evidence of what he did, and, on this basis, too, the court should instruct the jury on voluntary manslaughter. (R.T. 795-796.)
The court refused to do so, finding there was insufficient evidence that Mr. E provoked appellant, so there was no basis for the jury to know whether appellant acted as a reasonable man in his response (People v. Spurlin, supra, 156 Cal.App.3d 119). (R.T. 796-797; (C.T. 245-249 [handwritten notes on requested instructions on CALJIC Nos. 8.42, 8.43, 8.44, 8.50 and 8.73].)
The court erred because, in fixing the degree of culpability of an accused between murder and manslaughter, a jury must be permitted to consider as a circumstance bearing on the formation of the requisite intent, evidence that at the time of the commission of the crime, he or she was deeply under the influence of intoxicating liquor or effected by mental disease, disorder or defect. (§§ 192, 22, 28.) It is the jury’s task to decide what crime the accused has committed.
The record shows the jury questioned the meaning of the word “deliberately” in the implied malice instruction. Reasonably, the jury could not believe that appellant’s actions were the “deliberate” ones of a mentally sound person, yet the only alternatives were to convict of involuntary manslaughter (which required them to find the killing was unintentional) or acquit (a finding the jury most likely could not live with under the evidence).
That the jury asked for definition of the word “deliberately” in CALJIC No. 8.31 [implied malice instruction] [Footnote 13] shows they were convinced that mental illness played a role – but what role? CALJIC Nos. 4.21.1 and 3.32 would not have explained how mental illness figured into their determination.
The court sent in to the jury a written explanation, reported to say the following:
“One acts deliberately when one acts volitionally and voluntarily as opposed to involuntarily or accidentally. In the context of the instruction, it means one has made a voluntary choice to commit an act, where one knows it is dangerous to life, and chooses to act despite that awareness and knowledge. It does not imply a deliberate intent to kill, that would be express malice.” (C.T. 911.)
Defense counsel asked the court to supplement the answer with the additional instruction that
“in making that determination they can consider his mental illness and any issues of involuntary [sic] intoxication, because they are focusing in on a particular area and it’s hard to know where they are, but I still think that that point needs to be reemphasized.” (R.T. 911.)
The prosecution opposed the request on the ground it went beyond the jury’s question and the instruction covered the defense’s concern. The court agreed the other instructions covered the concerns of the defense and declined to give the jury any more that what they asked for – a definition of “deliberately.” The court also declined to actually define a “deliberate act,” as requested by the prosecution. (R.T. 912.)
A little less than an hour and a half later, the jury returned with its verdicts finding appellant guilty of second degree murder having used a flashlight as a deadly weapon in its commission. (R.T. 913-915; C.T. 158.)
Had the jury been given the option of convicting of voluntary manslaughter due to appellant’s extreme mental illness and aggravated state at the time of the killing, it is likely that they would have chosen that option. The evidence of mental illness and voluntary intoxication was overwhelming. There was no apparent reason for appellant to act out the way it did. A reasonable person without appellant’s mental history may not have done this deed, but section 28 recognizes that mental illness is relevant to disprove that appellant did not, in fact, act with malice aforethought. To the extent section 22 allows the jury to consider appellant’s voluntary intoxication as to whether he had express malice aforethought, the jury could have found appellant intended to kill without having the deliberate and wrongful intent to do so. “I don’t know why I did it,” appellant told his mother. “I just have so much anger inside.” (R.T. 166-167, 170-171; 193-194.) He was also “tweeking,” high on methamphetamine, sketchy, really nervous. His mother could tell he was drunk.
Dr. Estner thought appellant had organic brain damage. He explained that persons with brain damage react differently to external stimuli than someone without brain damage. The brain damaged person would tend to react “impulsively.” Their ability to control their impulses would be impaired; sometimes they could control them; others not. This lack of control would extend to anger. Appellant could have reacted impulsively to something said or misperceived and take out his anger on another person. (R.T. 654-656.) Though Dr. Osran discounted appellant’s history of mental illness, significantly, he back-tracked on his diagnosis and admitted on cross-examination to numerous factors he had not considered or information he had not sought. (See ante, p. 27.)
On this record there is more than sufficient evidence for the court to have instructed on voluntary manslaughter based on appellant’s mental illness and intoxication. The failure to do so warrants reversal and remand for a new trial with complete instructions on the lesser included offenses available.
The Legislature amended the definition of murder to excise the mental states relevant to showing the “diminished capacity” defense found in case law in order to abolish the “diminished capacity” defenses, and that only. What remains are the bare elements of murder and manslaughter no longer enhanced with the mental states which made “diminished capacity” testimony relevant. However, the Legislature left standing those statutes that make evidence of the accused’s mental condition relevant to the jury’s decision as to the relative culpability of those accused of murder. The Supreme Court recently confirmed that the Legislature’s dividing line between murder and manslaughter is malice and that malice carries a meaning of its own, distinct from the intentional killing required for voluntary manslaughter. This is a principle of law closely connected to the issues in appellant’s case. Consequently, the trial court should have instructed on voluntary manslaughter on its own, or, at the least, granted the defense request to so instruct. Its failure to do so must result in reversal in this case.
Dated: November 21, 2001.
Attorney for Appellant
CALJIC No. 8.40 (Modified):
Every person who unlawfully kills another human being without malice aforethought but with an intent to kill, is guilty of voluntary manslaughter.
There is no malice aforethought if the killer did not harbor malice due to mental disorder, illness or disease or due to voluntary intoxication, or both.
In order to prove this crime, each of the following elements must be proved:
1. A human being was killed;
2. The killing was unlawful;
3. The killing was done with the intent to kill. (C.T. 244.)
The materials provided to the Legislature at the time it was considering these amendments included an analysis by the Assembly Committee on Criminal Justice stating as follows:
“The purpose of this bill [including the 1981 amendments] is to eliminate the use of diminished capacity defenses; to eliminate psychiatric opinions on the ultimate issue of intent; and to reverse Supreme Court decisions that require certain cognitive requirements for first and second degree murder.” (Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 54, June 30, 1981, at p. 3.)
Specifically, those passages from Saille that were rejected in Christian S. are:
1. “The adjective ‘deliberate’ in section 188 consequently implies an intentional act and is essentially redundant to the language defining express malice.” (Saille, supra, at 54 Cal.3d p. 1115);
2. “‘The adverb “unlawfully” in the express malice definition means simply that there is no justification, excuse, or mitigation for the killing recognized by the law. (People v. Stress, supra, 205 Cal.App.3d at p. 1268.)’” (Saille, supra, 54 Cal.3d at p. 1115).
In People v. Watson (1981) 30 Cal.3d 290, the court observed that the language employed in defining implied malice in two strands of cases [People v. Thomas (1953) 41 Cal.2d 470, 480 (conc. opn. of Traynor, J.) and People v. Phillips (1966) 64 Cal.2d 574, 587] was substantively similar. (Id. at p. 300.) Therefore, the court concluded that second degree murder with implied malice has been committed “when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. … [Citations.] Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]” (Ibid., internal quotation marks deleted.) Thus, the two definitions of implied malice which had evolved from the foregoing cases actually articulated one and the same standard. (People v. Watson, supra, 30 Cal.3d at p. 300; People v. Dellinger (1989) 49 Cal.3d at p. 1219.)
Penal Code section 192 states: “Manslaughter is the unlawful killing of a human being without malice.”
Section 22, subdivision (b) expresses the Legislature’s intent concerning mental capacity defenses:
(b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.
In People v. Martin (2000) 78 Cal.App.4th 1107, the Fifth District rejected a constitutional challenge on due process grounds that the Legislature could not ban consideration of voluntary intoxication as to implied malice aforethought. Since appellant’s defense was based on a mixture of voluntary intoxication and mental illness, and no such limitation exists in section 28, appellant is not challenging the statutory limitation in section 22 in this brief.
However, he will note that while the Legislature may deem a class of evidence irrelevant as to a requisite mental state for a valid reason, it does not follow that the Legislature can deem such evidence irrelevant to one method of proving malice aforethought for all second degree murders.
The legislative history to the amendment to section 22 shows that the elimination of voluntary intoxication as a basis for negating implied malice aforethought was focused on those prosecutions for second degree murder based on the theory that the killer who was a drunken driver with a long history of driving drunk and being convicted of such, and still driving while drunk. Under those facts, case law held that malice aforethought could be implied. The elimination of voluntary intoxication to negate implied malice for these prosecutions may be for a valid reason, as argued by the Assembly Public Safety Committee’s analysis of S.B. 121.
That analysis found the decision in People v. Whitfield (1994) 7 Cal.4th 437 that pre-1195 section 22 permitted voluntary intoxication to negate implied malice aforethought while intoxication was also being used to prove implied malice aforethought would baffle juries. (See Assembly Committee on Public Safety, S.B. 121 (Thompson) – As Amended: April 3, 1995, Analysis, July 11, 1995, p. 5.) Whether or not the Legislature can constitutionally eliminate voluntary intoxication as relevant to negate implied malice aforethought in murder prosecutions other than drunk driving murder prosecutions, appellant leaves to answer for another day.
“[A] murder committed with implied malice requires that the prosecution demonstrate the defendant in fact acted with malice. (See People v. Protopappas, supra, 201 Cal.App.3d at pp. 162-164.) The concept of implied malice has both a physical and a mental component. (People v. Patterson, supra, 49 Cal.3d at p. 626.) The physical component is satisfied by the performance of ‘“an act, the natural consequences of which are dangerous to life.’” (Ibid., quoting People v. Watson, supra, 30 Cal.3d at p. 300.) The mental component, as set forth earlier, involves an act “‘deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. …’” (People v. Dellinger, supra, 49 Cal.3d at pp. 1218-1219.) Whether a defendant’s underlying acts are inherently dangerous in the abstract is not dispositive in the jury’s determination as to whether a defendant acted with malice. (Nieto Benitez 4 Cal.4th at pp. 106-107.)
As to the 1995 amendment to section 22, please see footnote 12, ante.
The “strict mens rea” approach does not admit evidence offered to prove that the defendant was less capable than a normal person, unless that evidence also establishes that the mental illness actually prevents the formation of the intent.
Gorshen, a longshoreman, reported to work intoxicated and was told by his foreman to go home. After Gorshen refused to leave, the two men fought briefly. The
fight ended when the foreman knocked Gorshen to the ground. Gorshen announced that he was going to go home, get his gun, return, and kill the foreman. Gorshen went home, cleaned and loaded his gun, returned to the docks, and killed the foreman. In addition to introducing evidence of his intoxication, Gorshen introduced psychiatric testimony that he was suffering from a mental disease at the time of the killing. The psychiatrist described the effect of the disease and concluded that Gorshen did “not have the mental state which is required for malice aforethought or premeditation or anything which implies intention, deliberation or premeditation.” (Id., at p. 723.) The trial court found Gorshen guilty of second degree murder. The court relied on the psychiatrist’s testimony to reduce the murder to second degree, but found there was malice aforethought.
Citing People v. Wells, supra, 33 Cal.2d 330, the court upheld the admission of the psychiatric evidence, as it was evidence of defendant’s mental infirmity short of insanity that tended to prove the defendant did not have the necessary specific mental state to commit first degree murder. (Gorshen, supra, 51 Cal.2d at p. 726.)
As stated in People v. Flannel, supra, 25 Cal.3d 668, 679 (quoting Perkins on Criminal Law (2d ed. 1969) pp. 69-70):
Since manslaughter is a “catch-all” concept, covering all homicides which are neither murder nor innocent, it logically includes some killings involving other types of mitigation, and such is the rule of the common law.
Footnote 13: “Regarding instruction 8.31, What is the meaning of deliberately found/written on #3 The act was deliberately performed … .” (C.S.T. 1.)