69 Cal. 2d 122 | Cal. | 1968
Defendant was charged by information with two counts of murder, and pleaded not guilty and not guilty by reason of insanity to both. The jury returned verdicts of first degree murder on each count, found defendant sane at the time of the commission of the crimes, and fixed the penalty at death. The court denied motions for new trial and for reduction of the penalty. The appeal is automatic. (Pen. Code, §1239, subd. (b).)
We have before us the tragedy of a youth suffering since childhood from deep-seated paranoid schizophrenia, who at the age of 18 methodically executed his mother and father. The evidence is overwhelming that while he planned the parricide with precision and knew that it was wrong, his diminished mental capacity was such that he could not maturely
In these circumstances we must once again shoulder the burden of dissecting a lengthy record and weighing the “substantiality” of the prosecution’s evidence of mental capacity. (See, e.g., People v. Goedecke (1967) 65 Cal.2d 850 [56 Cal Rptr. 625, 423 P.2d 777]; People v. Nicolaus (1967) 65 Cal.2d 866 [56 Cal.Rptr. 635, 423 P.2d 787].) This is a responsibility we are empowered by statute to perform (Pen. Code, §§ 1181, subd. 6, and 1260), and we will not hesitate to act, as here, to prevent a grave miscarriage of justice.
Officer Meyer arrived at defendant’s house at 4:30 p.m. on December 19, 1963, in response to a call for assistance. Defendant told him that his mother and father had been arguing and had gone into their bedroom and bolted the door; that he thereafter heard two shots in succession, but was unable to enter the bedroom to see what had happened; and that he summoned the neighbors, Mr. and Mrs. Glass, who in turn called the police. The officer forced the bedroom door and found two bodies on the floor. Defendant’s mother was lying on her back with a .22-calibre single-shot Derringer pistol in her right hand. She had been shot in the head at close range; although still alive, she died without regaining consciousness. Defendant’s father was lying nearby, dead from a gunshot wound of the chest that had also been fired at close range. A lamp in the parents’ room had been turned on its side.
Homicide detectives thereafter found in defendant’s bedroom a matchbox containing a small piece of paper with a note on it in defendant’s handwriting. At the top was written “12,1963”; below, the following appeared:
*127 “1. As planned S-2.
“2. Then remove shell and put F/prints on.
“3. Then put G in M’s hand.
“4. Muss room, lamps. ”
On the reverse side was written “Et cetera,” then the following:
“5. Put F nearby.
“6. Lock door.
“7. Get Glasses.”
In a corner of the paper was the word “Plans”; and on one side, the word “Remember,” below which was written. “Wear plastic hood, leather gloves for shot, whites for prints.' ’
Also found in defendant’s bedroom were a pair of black leather gloves and a pair of white cotton gloves, both lying in open view; the latter were damp, and crumpled within them was a piece of string several feet long. There was a box containing 47 live .22-calibre shells in defendant’s dresser drawer, and a plastic bag with blood on it in a wastebasket in the adjacent hallway. Sales slips found in defendant’s wallet showed that he had purchased the Derringer on December 12, 1963, from a local sporting goods store.
Defendant’s former brother-in-law testified that several years earlier he and defendant had learned from watching television how to bolt the bedroom door from the outside by means of a piece of string passed around the edge of the door and then withdrawn.
Harold Glass, defendant’s neighbor, testified that in a conversation at the jail shortly after the shootings defendant told him that he had murdered his mother and father but did not regret it, and that he planned to kill his sister some day too.
George Dutra, a psychiatric technician at Atascadero, testified that defendant was assigned to his ward for one year beginning in April 1964, and often discussed the case with him. Defendant told Dutra he had been planning to kill his parents since he was about eight years old. On the day of the shootings he took his gun, went to his mother’s bedroom, and asked her to turn around and close her eyes because he had a surprise for her. He then put the gun to her temple and pulled the trigger. Upon hearing the shot his father came in and told him to get a wet towel. Defendant went to his own room, reloaded the gun, and returned to his parents’ room.
Referring to his mother, defendant told Dutra that “the old biddy took quote a while to die,” and he tried to suffocate her with a plastic bag. He said he intended to make it look like a murder-suicide, had devised a way to bolt the door from the outside with a piece of string, and had written out a set of plans to this effect. When asked how he felt about killing his parents, defendant said that he “enjoyed” doing so; that they “deserved” to die because “All crumbs deserve to die ’ ’; and that they drank a lot and argued a lot and were cold towards him. Showed him “very little love and affection.” Defendant stated that killing them was one of the most “glorious” or “heightened” or “wonderful” experiences of his life. He said he was “quite amused” by their struggle to live, and made no offer to help them as they lay dying on the floor. Finally, he told Dutra he would also like to kill two other psychiatric technicians on his ward.
With cross-examination of this witness, however, the other side of the case began to emerge. Dutra acknowledged that defendant was admitted to Atascadero with the diagnosis of schizophrenic; he was considered a very dangerous patient, and was kept under sedation by use of ataraxic drugs ‘ ‘ almost the entire time he was there” because of his “suicidal tendencies, homicidal tendencies, anxiety, hallucinations.” Explaining the latter phenomenon, Dutra testified that defendant told him he heard the voice of “Christopher Chamberlain,” who told him to do “bad things,” including kill his parents. Another voice he heard was that of “Juanita Gomez,” assertedly a prostitute. Dutra observed defendant pacing the floor and moving his lips as though talking to someone, and at other times saw him mumbling alone in his room.
The defense. When the prosecution rested its case in chief, the defense came forward with a mass of evidence to establish that by reason of his illness defendant lacked the mental capacity to entertain the state of mind necessary to be found guilty of murder in the first degree.
Dr. Dayrel D. Smith, one of the court-appointed psychiatrists in this case, examined defendant for several hours approximately one month after the killings. He determined that defendant “was seriously and severely mentally ill and that the major portion of the difficulty consisted in disorder
Prom other observations the doctor determined that defendant was also in the grip of a delusional system. The delusions centered around his belief that he was “superior” and “psychic,” and “was capable of receiving the thoughts of other people. ’ ’ Defendant further believed, however, that “everybody has the potential to harm him,” and that he had “received” a thought from his parents to the effect that “he was nuts, and this troubled him. ’ '
Dr. Smith further testified that defendant’s flattened “affect,” i.e., his lack of remorse or any other appropriate emotion, was typical of the schizophrenic personality, as was his “break with reality” in the form of hallucinations and delusions. Such phenomena, on the other hand, are very real to the patient.
In Dr. Smith’s opinion, defendant had been mentally ill for years. As evidence of this, he explained that hallucinations and delusions such as defendant exhibited “only arise in an illness out of an earlier maladaptation. They are compensa
On the precise question at issue, Dr. Smith conceded that not all schizophrenics are incapable of forming an intent to kill, of premeditating, or of harboring malice. But the doctor was of the opinion that this particular individual, because of the extent and duration of his illness, did not have the capacity to give careful thought to and weigh the considerations for and against killing his parents, or to maturely and meaningfully deliberate and reflect upon the gravity of his contemplated act.
Nor was defendant’s apparent “method in his madness” inconsistent with this conclusion. Dr. Smith explained that the offense was the “direct product” of the “ideational content of his disease”; he was acting “under the imperative demand of his delusional system and his hallucinations,” and any seeming plan was simply his minimal effort to respond to “whatever is being communicated to him from his disturbed thinking.” For example, even if the trick of bolting a door from the outside had been demonstrated to him in the manner testified to by the prosecution witnesses, ‘ ‘ his reaction to what he had seen would be subject to modification in his delusions, his belief that this was all right to go ahead and do what he wanted to do; subject to modification [by] wha.t his voices said to him. ’ ’
Dr. Nicholas M. Danger, a psychiatrist, conducted a series of seven examinations of defendant, each lasting approximately two hours. He also caused defendant to be examined
Dr. Danger described defendant as a youth of very slight build, weak musculature, and remarkably myopic; he was able to answer questions intelligently, but talked in a somewhat slurred speech. There was ‘‘ almost a complete absence of affect” as defendant related to him the events in issue. He told the doctor that he had been at school about a week before the shootings, listening to music in the record library, when the voice of “Christopher Chamberlain” told him to take a piece of paper and write out the “plan.” He did it quickly, and told the doctor “I don’t remember what I wrote on the note. Everything was jumbled up.” Apparently he bought the gun, but did not think further about it. On the night before the shootings, however, “He [i.e., “Christopher Chamberlain”] wouldn’t let me sleep”; instead, defendant lay awake “and looked at the bright little stars.” The next morning he decorated the family’s aluminum Christmas tree, and had a rare fit of anger because the tree was artificial, symbolizing to him the cold, unemotional spirit of contemporary Christmas.
In attempting to describe the actual killing of his parents, defendant said he put the gun to his mother’s head and “one minute she was standing there and the next minute she was gone. Disappeared. . . . After the first shot I was dazed and sort of faint by the explosion, then I felt like things rushed very fast. Seemed like a quarter of a second. Then I went—■ then when I saw my father kneeling I felt happy because he was in pain. I thought that he was in greater pain that anybody I ever saw. She was his whole life. The only one he ever cared for. They used to fight but really loved each other. I felt nothing. Just like looking at a picture in a magazine.” Defendant further said that the officers arrived and “took him
Dr. Danger presented and analyzed a life history of defendant. As a child, he was incapable of playing and competing with his peers because of abnormally insufficient physical development and poor coordination. He had no friends, and his schoolmates ridiculed and rejected him. He turned to his parents for help, but apparently received little affection and even less understanding. Throughout his early years his attitude towards his parents vacillated abruptly between love and hate, but the latter inexorably gained the upper hand. Although defendant suppressed any overt act of hostility, his internal tensions expressed themselves in other ways: in particular, he was frequently disturbed by habits of his father which a normal child would have overlooked or forgiven.
Unable to relate to either his peers or his parents, defendant took refuge in a fantasy world. At the age of five or six he was given a toy panda; he told Dr. Danger that “It was white and red and I liked it very much and kept it until I was arrested. I put it to bed and slept with it. I felt comfortable with it. Without it I felt nervous. ” As a teenager, he painted a portrait of a face on the back of a large map hanging in his room. Outlined in charcoal, it had burning red pupils set in chalk-white eyes.
But no hope was forthcoming. At the age of 13 or 14 Ms father discovered him apparently talking to himself, and “He thought it was funny.” His English compositions in high school were so bizarre that his teacher advised him to see a psychiatrist.
By this time defendant was firmly under the command of his auditory hallucinations. Dr. Danger explained that “This is something that he has been doing actually from early childhood on. And as I brought out in my study of him, at the age of 10 or 11 he became aware of this, that he had always conversed with what he thought first were his own thoughts. [
In particular, 'the voice of “Christopher Chamberlain’’ began telling him to kill his parents. When he was 10 or 11 he heard “loud” thoughts saying he should put rat poison into his father’s drink; at age 14 he made a doll representing his father and pushed pins into it; at 15 or 16 he wanted to “kill him with a rolling pin, wrap him in his bedspread, put him in his ear, and roll it down the hill.” Defendant also told Dr. Danger that a boy at school had mentioned he knew how to make car brakes inoperative, and ‘ ‘ I thought of asking him to teach me this so that I could fix their car. Then I thought of learning hypnosis so I could hypnotize them to drive on the wrong side of the road. I thought to kill her, too, with the rat poison since occasionally both of them drank. I actually bought a book on hypnosis. It cost $1 but it was rather disappointing. ’ ’
Of the making and executing of the final plan, defendant could tell Dr. Danger only that “I had to do it. It was Christopher Chamberlain who told me.” The doctor analogized defendant’s mental condition a.t the time to that of a person who has been placed in a hypnotic trance: neither ‘‘ really knows what lie is doing let alone why he is doing it. One is an outside command, the other one is a command that is coming from within, but he has no power to resist it, and in this particular case [it] coincided with his own pathological trend of mind.” Like Dr. Smith, Dr. Danger concluded that defendant did not have the mental capacity to give careful thought to and weigh the considerations for and against killing his parents, to form an intention to kill unlawfully, or to meaningfully and maturely deliberate and premeditate and reflect upon the gravity of his contemplated act and to harbor malice aforethought. Summing up, Dr. Danger stated that
Dr. Joseph Krofcheek, a psychiatrist, examined defendant two months after the killings. The examination lasted approximately two hours, and was directed to determining defendant’s current mental condition. In Dr. Krofcheek’s opinion defendant was suffering from paranoid schizophrenia. Such a person, the doctor testified, “becomes so concerned with his own inner feelings and thoughts he gives less credence to the reality of the . . . actions of people and objects in the surrounding environment. And soon is unable to tell the difference what is originated from within him and what he experiences in the outside world, and this becomes the dominant theme and the basis of his almost, you could say, his philosophy of life. ’ ’
Like Drs. Smith and Danger, Dr. Krofcheek concluded that defendant did not have the mental capacity to weigh and consider the reasons for and against killing Ms parents, or to meaningfully and maturely deliberate and premeditate or reflect upon the gravity of his contemplated act and to harbor malice aforethought. Explaining his opinion, Dr. Krofcheek pointed out that during the examination defendant’s “affect was grossly inappropriate to what he was saying”; he appeared to be hallucinating at the time, and suffered from delusions both of grandeur and of persecution. The doctor found that defendant “was very ill, and it was not an illness that was sudden. It had been an illness that was present for quite some time.”
The prosecution’s rebuttal. If the case had gone to the jury on the foregoing evidence alone and had resulted in verdicts of murder in the first degree, we would have been compelled to find it insufficient under the authority of People v. Wolff (1964) 61 Cal.2d 795 [40 Cal.Rptr. 271, 394 P.2d 959], and People v. Ford (1966) 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132], To forestall such a ruling, the prosecution undertook to create a “conflict’’ in the psychiatric evidence.
The testimony of each of the first two experts called by the prosecution, Dr. George T. Abe and Dr. Edwin E. McNiel, was virtually identical. Neither had examined defendant in person; both had read various documentary materials pre
Defendant earnestly contends that the evidence is insufficient to support the verdicts of murder in the first degree. The rules governing our resolution of this issue are now well settled: “The determination of the degree of the crime is, of course, generally left to the discretion of the jury. Upon appeal, the reviewing court is bound to view the evidence most favorably in support of its judgment. (People v. Simpson, 43 Cal.2d 553, 571 [275 P.2d 31].) But the jury’s discretion is not absolute. (People v. Tubby, 34 Cal.2d 72, 76 [207 P.2d 51].) Recently, in People v. Hall, 62 Cal.2d 104, 110 [41 Cal.Rptr. 284, 396 P.2d 700], we reaffirmed the principle first stated in People v. Holt, 25 Cal.2d 59, 70 [153 P.2d 21], that 'Implicit in our duty to determine the legal sufficiency of evidence to sustain a verdict is our obligation, in a proper case, to appraise the sufficiency and effect of admitted or otherwise indubitably established facts as precluding or overcoming, as a matter of law, inconsistent inferences sought to be derived from weak and inconclusive sources.' (See also Jaffe, Judicial Review: Question of Fact, 69 Harv.L.Rev. 1020, 1026-1031.) Since the amendment of Penal Code section 1181 in 1927, this court is empowered to modify the
As the emphasized language indicates, our task in this regard is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jurj’’—and may not limit our appraisal to isolated bits of evidence selected by the respondent.
There is, of course, nothing new in the latter requirement. In the leading civil case of Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183], this- court restated the fundamental rule that “when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradieted, which will support the conclusion reached by the jury.” Quoting this language, we emphasized in Estate of Bristol (1943) 23 Cal.2d 221, 223 [143 P.2d 689], that “The critical word in the definition is ‘substantial’; it is a door which can lead as readily to abuse as to practical or enlightened justice. ’ ’ Seeking to determine the meaning of “substantial” in this connection, the court in Estate of Teed (1952) 112 Cal.App.2d 638, 644 [247 P.2d 54], canvassed dictionary and judicial definitions and concluded that the term “clearly implies that
The same standards control, a fortiori, when it is a criminal judgment which is challenged on the ground of insufficiency of the evidence. In resolving that contention the appellate court is required to determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Hall (1964) supra, 62 Cal.2d 104, 109-110, citing People v. Huizenga (1950) 34 Cal.2d 669, 676 [213 P.2d 710].) The prosecution’s burden is a heavy one: “To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.” (People v. Hall, supra, at p. 112.) Accordingly, in determining whether the record is sufficient in this respect the appellate court can give credit only to “substantial” evidence, i.e., evidence that reasonably inspires confidence and is “ of solid value ’ ’ as the court said in Teed.
While this test has perhaps most frequently been invoked in holding insufficient the evidence of identity purporting to connect the defendant with the crime (People v. Hall, supra ; People v. Gould (1960) 54 Cal.2d 621, 630-631 [7 Cal.Rptr. 273, 354 P.2d 865]; People v. Jackson (1965) 238 Cal.App.2d 477, 479-480 [47 Cal.Rptr. 860]; People v. Singh (1936) 11 Cal.App.2d 244, 254 [53 P.2d 403]), it is equally applicable to all elements of the prosecution’s case (People v. Jackson (1955) 44 Cal.2d 511, 517 [282 P.2d 898] [aggravated kidnaping ; no showing of “bodily harm”] ; People v. Rodriguez (1960) 186 Cal.App.2d 433 [8 Cal.Rptr. 863] [manslaughter; no showing of criminal agency causing death]) and in particular to its burden of proving that the defendant committed the allegedly criminal act with the requisite specific intent or other state of mind (People v. Tatge (1963) 219 Cal.App.2d 430 [33 Cal.Rptr. 323] [abortion; failure to prove defendant’s knowledge of pregnancy or intent to induce a miscarriage] ; People v. Tidmore (1963) 218 Cal.App.2d 716, 720 [32 Cal.Rptr. 444] [burglary; failure to prove that entry was made with intent to commit rape] ; People v. Ravel (1953) 122 Cal.App.2d 312 [264 P.2d 610] [grand theft; failure to
In the ease at bar we have already undertaken to examine the “whole record” on this issue, and have set forth at some length the psychiatric evidence showing that defendant lacked the necessary mental capacity to be guilty of murder in the first degree. We must now determine whether the psychiatric testimony introduced by the prosecution to rebut that evidence was “substantial” within the meaning just discussed.
We begin with the testimony of Drs. Abe and McNiel. As noted, neither had examined defendant in person, and both testified on the basis of a lengthy hypothetical question posed by the prosecutor.
But we do not here sit in judgment on a medieval trial by oath. A man’s life, in our system of justice, cannot be made to depend on whether or not the witnesses against him correctly recite by rote a certain ritual formula. There is no magic in the particular words emphasized in Goedecke and Nicolaus: the court was there concerned, rather, with the prosecution’s failure to introduce expert proof on the issue we thus described, i.e., the extent of the individual’s capacity to reflect on the gravity of his proposed act. In the case at bar, therefore, we cannot call a halt to our inquiry merely because the prosecution’s experts uttered the ‘‘ correct ’ ’ words; we must
In evaluating expert evidence in this light, our duty is again twofold. “Mental illnesses are of many sorts and have many characteristics. They, like physical illnesses, are the subject matter of medical science. They differ widely in origin, in characteristics, and in their effects on a person’s mental processes, his abilities, and his behavior. To make a reasonable inference concerning the relationship between a disease and a certain act, the trier of the facts must be informed with some particularity. This must be done by testimony. Unexplained medical labels—schizophrenia, paranoia, psychosis, neurosis, psychopathy—are not enough. Description and explanation of the origin, development and manifestations of the alleged disease are the chief functions of the expert witness. The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant; it does not lie in his mere expression of conclusion.” (Italics added.) (Carter v. United States (D.C.Cir. 1957) 252 F.2d 608, 617 [102 App.D.C. 227].) In short, “Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced for the conclusions.” (Italics added.) (People v. Martin (1948) 87 Cal.App.2d 581, 584 [197 P.2d 379] ; accord, People v. Jones (1964) 225 Cal.App.2d 598, 611 [37 Cal.Rptr. 454].) Here, the testimony of Drs. Abe and McNiel was deficient in both emphasized respects.
To begin with, of the eight psychiatrists, one general practitioner, two psychologists, and one psychiatric technician who testified at various phases of this trial on the issue of defendant’s mental condition, it is significant that Drs. Abe and McNiel were the only witnesses who had not examined defendant in person. The testimony of the experts called by the defense, as we have seen, was predicated upon many cumulative hours of private, professional confrontation with defendant, provoking his reactions, observing his demeanor, and listening to the intonation of his responses. By contrast, both Drs. Abe and McNiel conceded on the stand that they had never talked with this defendant, and the record does not
We do not presume to advise members of another profession in the conduct of their practice. Nevertheless, a distinguished federal court recently surveyed the medical writings on this subject, and concluded: “The basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject. Gill, Newman & Redlich, The Initial Interview in Psychiatric Practice (1954). See also Finesinger, Psychiatric Interviewing: Principles and Procedure in Therapy, 105 Am.J.Psychiat. 187 (1948). More than three or four hours are necessary to assemble a picture of a man. A person sometimes refuses for the first several interviews to reveal his delusional thinking, or other evidence of mental disease. Menninger, A Manual for Psychiatric Case Study, ch. 1-4 passim (2d ed. 1962) (hereafter cited as Menninger). See Noyes & Kolb, Modern Clinical Psychiatry, ch. 7 (with bibliography); Knight, Borderline States, 17 Bull, of Menninger Clinic 1, 8 (1953). Paranoid patients particularly may be able to guard against revealing their disorder with extraordinary skill. Menninger 64-65. See Noyes & Kolb, Modern Clinical Psychiatry 112-13. From hours of interviewing, and from the tests and other materials, a skilled psychiatrist can construct an explanation of personality and inferences about how such a personality would react in certain situations. And he can explain his findings in non technical terms to a jury.” (Fn. omitted.) (Rollerson v. United States (D.C.Cir. 1964) 343 F.2d 269, 274 [119 App.D.C. 400] (per Bazelon, C. J.).)
The record before us amply bears out this appraisal of the value of a personal examination in cases of this nature. Many of the diagnostic facts related by the defense psychiatrists— e.g., defendant’s physical inadequacy, recurring auditory hallucinations and flattened affect—were learned from or confirmed by observing him in the course of the interview. The defense witnesses each stressed the importance of such nonverbal “communication” from the patient;
From the portions of the record quoted and summarized hereinabove it is evident that the psychiatric witnesses called by the defense conscientiously undertook to present such an explanation to the jury. They supported their conclusions by detailed explorations into defendant’s childhood, family life, and adolescent behavior; they provided instructive analyses of the nature of paranoid schizophrenia, and painstakingly interpreted the significance of defendant’s delusions and hallucinations. Only by such an effort could the hidden wellsprings of this bizarre tragedy be brought to light.
In sharp contrast, however, is the showing of Drs. Abe and McNiel. Their meager testimony provided essentially no “reasons” whatever for their conclusions: after flatly asserting that defendant had the mental capacity described, each wit
In appraising the substantiality of this evidence we find guidance in two civil eases dealing with the related issue of the mental capacity of a testator to make a valid will. In Estate of Powers (1947) 81 Cal.App.2d 480 [184 P.2d 319], a jury determined that the testatrix lacked such capacity. The trial court refused to revoke probate notwithstanding the verdict, and on appeal the question presented was ‘‘ whether as a matter of law there was no substantial evidence to support the jury’s finding. ...” Two doctors had given expert testimony in accord with that finding. The Court of Appeal observed, however, that “Neither of them ever saw the testatrix and their testimony was based entirely upon a reading of the hospital records,” and furthermore “they did not accept the hospital records in toto as the basis for their expressed opinions, but rather accepted only those portions of the hospital records which supported their opinions and rejected those portions which contradicted their opinions.” Affirming the
Again, in Estate of Teed (1952) supra, 112 Cal.App.2d 638, the trial court, sitting as trier of fact, found that the testatrix lacked the mental capacity to make a will, and accordingly refused probate. The sole issue on appeal was the substantiality of the evidence to support that finding. After brushing aside various items of lay evidence as either inconclusive or irrelevant, the court turned to the expert testimony of two doctors who had found an absence of the requisite mental capacity. The first doctor had not examined the testatrix for six months prior to the execution of the will. The second doctor, a psychiatrist, had never seen the patient at all; like the prosecution psychiatrists in the ease at bar, this witness was therefore compelled to express his opinion as to mental capacity on the basis of a hypothetical question, and on cross-examination be admitted that “It is always desirable to form your own opinion from your observations and examination.” (Id. at p. 643.) The Court of Appeal reversed on the ground of a lack of substantial evidence to support the finding of testamentary incapacity, observing (at p. 646) that “the ipse dixit of the most profound expert proves nothing except [as] it finds support upon some adequate foundation. ’ ’
We conclude that the opinion testimony of Drs. Abe and McNiel cannot be deemed “substantial” evidence to support the implied finding of defendant’s mental capacity on the guilt phase of this trial.
The testimony of the third expert witness called by the prosecution, Dr. Crahan, was deficient in a very different respect. On direct examination Dr. Crahan briefly stated his opinion that defendant had the mental capacity to premeditate and deliberate, to maturely and meaningfully reflect on
“Q. [By defense counsel] Doctor, was the result of this delusional system, let’s say, directed towards a particular course of action ? Is it likely that he is without, let’s say, free choice to change that course of action if he is strictly operating within this delusional system? A. He believes himself to be comparable to God and to be able to control the lives of these people because he has passed judgment on them. That is the delusion. It is as simple as that.
“Q. Then wouldn’t it be fair to say that in that sense he was stripped of reason ? A. Relative to that area, yes.
“Q. And wouldn’t you say that, in that sense, he was robbed of his power of free choice, in that sense ? A. In a sense, yes.
“Q. So, then, if he was premeditating or carrying on deliberations, wouldn’t you say this was within that delusional system? A. No. He could plan to execute these people quite logically and rationally because he felt he was justified in doing so, but his premeditation and his planning would be rational and sane. ’ ’
In short, Dr. Crahan was of the opinion that defendant could both ‘ ‘be legally insane and premeditate.”
When the foundation of an expert’s testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions. (People v. Bruce (1966) 64 Cal.2d 55, 63-65 [48 Cal.Rptr. 719, 409 P.2d 943].) Under our established rules and from an appraisal of the entire record in this case, we find no substantial evidence to support the verdicts of murder in the first degree. The evidence does support, however, a conviction of murder in the second degree, and it is our duty to modify the judgment accordingly.
We need not further prolong this opinion by a detailed analysis of defendant’s lesser contentions. He claims various errors in instructions and admission of evidence, as well as prejudicial misconduct of the prosecutor in argument to the jury. The points have been examined, and no reversible error appears.
The judgment is modified by reducing the degree of the crimes to murder in the second degree and, as so modified, is affirmed. The cause is remanded to the trial court with directions to arraign and pronouhce judgment on defendant in accordance with the foregoing ruling.
Traynor, C. J., McComb. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
Appellant’s petition for a rehearing was denied September 5,1968.
Defendant was arrigned on the information on January 16, 1964, and Drs. Marcus Crahan and Dayrel D. Smith were appointed to examine him upon his plea of not guilty by reason of insanity. (Pen. Code, § 1027.) On January 24 Dr. Crahan filed his report, in which he stated that defendant "has been in the County jail since December 19, 1963. On the 21st of December, he was found banging his head against the wall. Inspection revealed a red raised area in the middle of his forehead. He stated he banged his head because, ‘I should feel guilty but I don’t.’ On December 22, he appeared highly nervous, agitated, trembling, stuttering; states he has an urge to Mil himself. He also expresses concern that the other inmates want to Mil him, but he admitted that no one had made threats to him. On the 23rd of December, he was again agitated, trembling, says everyone wants to Mil him. On December 24th, he inflicted a few light lacerations on each wrist. He has been placed on librium four times daily and appears somewhat more calm.
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On February 4, 1964, Dr. Smith filed his report, stating that "It is my opinion that this defendant is legally insane at the present time, and was legally insane at the time of commission of this offense. This defendant does not know the difference between right and wrong, is not aware of the nature and consequences of his acts, is as cooperative as possible, but entirely unable to cooperate with counsel to aid in making a plan in his own defense.” The doctor reported that defendant suffered from paranoid schizophrenia, manifesting itself in delusions of grandeur and persecution, in recurring auditory hallucinations, and in inappropriate emotional responses. The doctor concluded that "The persistence of his hallucinations and his preference for his unreal world seriously impair the defendant’s memory and comprehension, and together with his. delusions deprive the defendant of his judgment.'. .’. This defendant has been mentally ill for many years, and the offense is an outgrowth of the
On February 28, 1964, the court considered these reports, found defendant to be “ presently insane, ’ ’ and committed him to Atascadero State Hospital. (Pen. Code, § 1370.)
Some two years and two months later, on May 4, 1966, defendant was certified to have recovered sufficiently to enable him to stand trial. (Pen. Code, § 1372.) The Atascadero staff findings recited that as of that date defendant was “mentally ill, but not to the extent that he doesn’t know the nature of the charges against him. He will be able to cooperate with his attorney.” He was diagnosed as a chronic schizophrenic.
Defendant was finally brought to trial on December 5, 1966, almost three years after he killed his parents.
Thus in his opening statement to the jury defense counsel said, “Ladies and gentlemen, it is not denied that the parents of that boy died at his hands.”
This thought, stated Dr. Smith, “struck at the content of his delusions, which were that he was a superior being with an absolute right to do what he wanted. If you want an explanation for the acting out of all of this psychotic material, it was probably that the offense occurred because [the facts of] the delusions being hit at and downgrading him weren’t tolerable for him. He had to maintain his own falsified world where he was the superior being, and he couldn’t tolerate the thoughts which came to him which he believed came from his parents and which downgraded him and set his feelings of superiority apart.’’
The doctor explained that “the purpose that his delusions serve is to compensate him for what he lacks, for his inability to compete with more masculine people. It makes his world a place where he is more comfortable to live and where he gets satisfaction.
“The same thing is true of the nature of hallucinations. These things appear to come from outside, but they are products of the mind. They are inside. The very fact that they are products of the mind and not something out yonder makes them of . . . significance to the person who is mentally ill, and these hallucinations were significant to this defendant. The internal world was a warmer, friendlier place to be. If you need to have hallucinations about a warmer friendlier place, the only thing that there is about it is that the real world isn’t a warm and friendly place.
“He had to use these abnormal ways of being equal to other people to exist in this world; and even at that, it was so falsified by the presence of these abnormal mental trends that he wasn’t really in the world. He was in his own ivorld.”
In a report to Dr. Danger on these tests, Dr. Bessent concluded that defendant had an IQ of 115 or “ high average. ” He “ tends to experience failure in his interpersonal relationships largely because of his lack of maturity. In relating to others he is not able to respond in a mature manner, so he meets with rebuff, with failure, and tends then to withdraw . . . into an immature fantasy life.” He is a youth “of potentially superior intelligence whose functioning is impaired by tension and anxiety which are expressed in obsessive compulsive defenses and passivity. Residuals of underlying schizophrenic process are present and passive child-like in desires as well as more passive identifications are present. Constructive expression of aggression has not been learned.”
For example, he repeatedly complained to the doctors of the fact that-Ms father ate with his mouth open, and smoked and drank in secret although he purported to be a devout Mormon. He also complained that when he was 14 or 15 his father “bought six little ducks for me for-Easter and about six months later he killed them. Just chopped. their heads off, and he wanted me to help him clean them and to eat them. This was the most cruel thing to do to my ducks. It's like burning down my house. ” ■ •.
The picture was produced by defense counsel, identified by the witness, and subsequently introduced into evidence.
Similarly, defendant would visit cemeteries every day on the way to or from school, trying to find the peace of mind that he longed for “ with such a tremendous intensity. ’ ’
The teacher testified that his work ‘‘ would appear to be the writings of a mentally retarded child. They were full of violence of the comic book variety, the dripping dagger sort of thing. . . . And the fact that he was so shy and withdrawn in class and so aggressive in a blood-chilling way in his papers, I remembered this as being very, very strange.” Although defendant was then in high school, the teacher estimated that his writings were at the age level of an 8 to 10-year-old.
Another of defendant’s school teachers testified that in 1957—i.e., at the age of 11—it was specifically reported of defendant that he ‘‘talks aloud to himself for lengthy periods.” The teacher added that it was
Rather than finding in defendant’s “plan” a capacity to deliberate and premeditate, Dr. Danger was of the opinion that it illustrated his mental illness in that defendant proceeded to leave all the incriminating evidence—e.g., the note, the bullets, the sales slips, the gloves, and the plastic bag—in his nearby bedroom and hallway: “A little boy when he . . . steals cookies from the cookie jar could have more successfully concealed his act than [the way] this so-called plan was carried out.” Defendant’s voice had not instructed him how to dispose of the evidence, and he had “confidence that everything will bo all right. ...”
ExpIaining further, Dr. Krofcheek testified that “In the development of this kind of an illness the symptoms that were demonstrated by the patient are not symptoms that come on suddenly or overnight. They are a result of a long-standing pathologic process within him, of altered relationships between him and significant people like his parents, the result of unrewarding relationships with his peers, being rejected by hie
“And when I saw Fred I think this was like the end of the road, . . ; as far as he could go without completely not knowing who he was, where he was, or anything that was happening to him. ’ ’
The prosecution also introduced lay evidence on this issue. There was, for example, a circumstantial effort to show an insurance motive for the crimes. Evidence was presented of defendant’s satisfactory performance in his college classes, but such abstract intelligence is not inconsistent with the defense in this ease; indeed, one of the prosecution’s own psychiatrists testified on cross-examination that ‘ ‘ In general, this illness [i.e., paranoid schizophrenia] is more apt to . . . afflict people who are of higher intelligence. ’ ’ From die content of a psychology course taken by defendant, the titles of several books he cheeked out of the college library, and similar evidence, the prosecution sought to insinuate that ho had learned enough about the illness to feign the symptoms observed in his medical examinations; even the prosecution’s experts, however, were confident of the ability of a psychiatrist to expose a malingerer of this kind, commenting that “Usually you can trip these people up in one way or another.” Finally, there was testimony that defendant “appeared normal” to various nonexpert witnesses—including his older sister, whom he had wanted also to kill and who admitted she would ‘ ‘ like ” to “ sec him die” for killing their parents. There was no dispute among any of the psychiatrists, of course, that a person can suffer from paranoid schizophrenia for a long time without his illness being detectable by untrained, lay observers,
I.e., the reports of Drs. Crahan, Smith, Danger and Bessent; defendant’s Atascadero file; the sherifE’s report of the shootings; defendant’s confession to the police; and the transcript of the preliminary hearing.
Thus in People v. Holt (1944) supra, 25 Cal.2d 59, there were, as here, certain items of evidence which might ‘ ‘ seem by themselves, at first impression, to establish a willful, deliberate and premeditated intent to commit murder. Viewing that evidence superficially, it would appear possible to so hold and so dispose of this appeal. But in determining whether the life of the defendant legally is forfeit in expiation of his crime the jury was not free to isolate such specifically mentioned items of evidence from all the other related facts and circumstances. ’ ’ (Id., at p. 69.) And ‘ ‘ To the extent that the character of á particular homicide is established by the facts in evidence the jury is bound, as are we, to apply the standards fixed by law.” (Id., at p. 90.)
The disagreement of the present author with the majority in Goedecke and Nicolaus flowed from his conclusion that the prosecution’s evidence in each of those eases was “substantial” in this sense. (See People v. Goedecke, 65 Cal.Sd at p. 862; People v. Nicolaus, id. at p. 884.)
It is true that each had also read various documents in the ease, including the pretrial medical reports'. (Ante,' fn. 14.) But neither had been present in the courtroom to. hear the detailed testimony of Drs. Smith, Danger, Bessent, and Krofcheck, discussed hereinabove, in which these experts analyzed and explained ■ the conclusions embodied in 'tiieir reports, ■ ■ '
Both witnesses conceded they did not ask defense counsel for the opportunity to personally examine defendant prior to trial. They explained that they ' ‘ understood ’ ’ from discussions with the district attorney ’s office that this was “not usually done,’’ but we see no impropriety in the making of such a request, and here there was no indication that permission would be refused.
Dr. Smith testified: “There’s more to what he tells you than the content of it or whether it’s the truth or not. There’s the way fi’e tells it,
Dr. Danger testified: ‘ ‘ this is the role of an expert examiner to observe him, to watch him, to scrutinize him, and to evaluate everything he says, the way he says, the way he says it, the intonation of his voice, the reaction of his facial muscles, eyes, ...”
Dr. Krof check testified: “he was communicating to me more than just with words. I was very much aware of the non-verbal cues that go along with the stated words, like Ms body posture, his facial expression, the use of particular words, the way he used them, his tonal inflection, the change of emotions as lie was talking, the appropriateness of a feeling or emotion as it’s hooked up with content. ... I think it’s important to recognize that the stated word, the content, is just one of many other parameters of the communication, and it’s not any one thing that I look at or look for, but it’s a synthesis of the total information that I’m getting from him, which includes all of the non-verbal cues and nonverbal language as well as the stated words. ’ ’
For example, when asked how a psychiatrist can determine if a patient is suffering from auditory hallucinations, Dr. Abe explained: “Now, some of the ways that you can do this is the way he relates to you. How does he talk? Now, if he is relevant and coherent and quite [in contact] with reality, then generally speaking you would think not in terms of his delusions or hallucinations because if he is beset with this sort of hearing voices, for example, he is going to be distracted. He may look around. He may turn away from me right in the middle of a sentence and even say, ‘What?’ All kinds of things can be manifested. But in an interview situation where the individual is quite perceptive of what you are saying and is able to answer in a relevant and coherent fashion, at least at that moment you can say he is not hearing voices, most likely. He may have hidden the voices and concentrate, but he can’t’do this for very long. ’ ’
Dr. Abe conceded in the sanity phase of this trial that in none of his more than 3,000 court appointments under an insanity plea would he have consented to form an opinion without a personal confrontation with the defendant.
Not having conducted such an examination of defendant, of course,
We do not imply, of course, that the testimony in question was inadmissible. Assuming the necessary minimum acquaintance with the case in which he is called to testify, "the extent of an expert’s knowledge goes to the weight of his testimony, rather than to its admissibility ’ ’ (Estate of Schluttig (1950) 36 Cal.2d 416, 424 [224 P.2d 695]). And this rule has recently been applied to the sanity testimony of a psychiatrist who was not permitted to conduct a personal examination of the defendant. (People v. Brekke (1967) 250 Cal.App.2d 651, 661-662 [58 Cal. Rptr. 854].)
Consistently with this attitude, Dr. Crahan testified for the defense on the sanity phase of the trial. After a lengthy analysis of defendant’s condition, the doctor concluded that at the time of the killings he did not have sufficient mental capacity to understand the nature and quality of his act or to distinguish between right and wrong in relation to that act.