THE PEOPLE, Plaintiff and Respondent, v. JOSEPH VASQUEZ CASTILLO, Defendant and Appellant
Crim. No. 12009
In Bank. Supreme Court of California
Jan. 31, 1969
70 Cal. 2d 264
The City urges that, according to the evidence, plaintiff was contributorily negligent as a matter of law in walking into the intersection with Officer Lombardo. The point is without merit. (See Anthony v. Hobbie (1945) 25 Cal.2d 814, 818 [-819] [155 P.2d 826]; Markewych v. Altshules (1967) [255 Cal.App.2d 642, 645-647 (63 Cal.Rptr. 335)].)
The judgment is affirmed.
Traynor, C. J., McComb, J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Stanton Price and Philip C. Griffin, Deputy Attorneys General, for Plaintiff and Respondent.
TOBRINER, J.-An information charged defendant with thе murder of Guadalupe R. Rios. Defendant entered pleas of not guilty and not guilty by reason of insanity and admitted a charged prior conviction for assault with a deadly weapon. A jury found him guilty of murder in the first degree. Defendant withdrew his plea of not guilty by reason of insanity and waived а jury trial on the issue of penalty. The trial court fixed the punishment at life imprisonment and entered judgment accordingly. This appeal followed.
Defendant contends that the trial court erroneously instructed the jury on the issue of voluntary manslaughter in that it failed to inform the jury that defendant could be convicted of manslaughter if he had intentionally committed the killing, yet, because of diminished capacity, did not act with malice. (People v. Conley (1966) 64 Cal.2d 310, 318 [49 Cal.Rptr. 815, 411 P.2d 911].) We conclude that defendant presented sufficient evidence of diminished capacity due to “pathological intoxication” to warrant the giving of the instruction set forth in Conley (64 Cal.2d at pp. 324-325 fn. 4) and that the failure of the trial court so to instruct requires reversal. (People v. Wilson (1967) 66 Cal.2d 749, 759, 762-763 [59 Cal.Rptr. 156, 427 P.2d 820]; People v. Modesto (1963) 59 Cal.2d 722, 731 [31 Cal.Rptr. 225, 382 P.2d 33].) We need not consider defendant‘s other assertions of error, as those matters may not arise upon a retrial.
According to thе prosecution‘s evidence at trial, defendant entered a bar in Fontana on August 6, 1966, along with his brother and another companion. They consumed half a pitcher of beer, and defendant also drank about half a bottle of beer. Defendant then went over to the pool table where Rios was standing and said, “What are you looking at me for?” Rios
Defendant then drove off but returned to the bar approximately an hour and a half later. He entered holding a gun. Rios picked up a bar stool and held it in front of him. Defendant, standing about 14 feet from Rios, said “I kill you” and fired once at Rios, who sustained a mortal wound. Defendant ejected the shell from the weapon and ran from the bar.
Defendant thеn drove to the home of his sister and brother-in-law and parked his car in their garage. He asked his brother-in-law to drive him home, stating that he had been in a fight and was too drunk to drive.
A deputy sheriff went to defendant‘s home that evening. Defendant, whose hair had been long at the time of the homicide, was being given a haircut. The deputy asked defendant for his name and address; defendant stated that he was Lupe Castillo and gave a false address. The deputy arrested him.
During interrogation by officers early the next morning defendant stated that he had receivеd his facial injuries in a fall at his home. He denied going to the bar and stated that he did not own a shotgun. He also said he did not know the location of his car.1 In the ground surrounding defendant‘s brother-in-law‘s garage the officers discovered two recently buried shotgun shells, which had been fired from the same weapon as the shell recovered in the bar.
Defendant introduced expert testimony of two witnesses which tended to show that because of diminished capacity he was unable to premeditate and deliberate or to commit the homicide with malice. Dr. Lawrence, a psychologist, testified that he had examined defendant on two occasions for about an hour and a half each time. He administered several tests to defendant including the Wechsler Adult Intelligence Scale, the Rorschach Diagnostiс Test, the Diagnostic Drawing Tests, and the Thematic Apperception Test. He concluded from the
Dr. Minard, a psychiatrist, testified that he had examined defendant for an hour and had reviewed the defense attorney‘s files in the case. He concluded that defendant had an unusual reaсtion to alcohol, a condition he described as alcoholic pathological intoxication. A person suffering from this condition may react exceptionally following the consumption of a small amount of alcohol and perform acts of violence without apparent motivation. The subject will almost always undergo a complete amnesia. The condition is quite similar to psychomotor epilepsy, which is caused by an electrical disturbance in the temporal lobe of the brain. Dr. Minard stated that on the basis of the facts of the homicide and his examination of defendant he believed that defendant had been unable to deliberate, premeditate, and reflect upon the gravity of the act meaningfully, and to harbor malice aforethought. Although stating that dеfendant‘s actions on the day of the homicide gave the impression that defendant was acting as a deliberating and reflecting man, Dr. Minard stated that his observation of defendant and study of his history indicated that defendant was suffering from a psychomotor seizure during the commission of the homicide and that no person so afflicted could premeditate or deliberate.3
Defendant primarily contends that the trial court committed error in instructing the jury. The trial court fully and correctly instructed the jury on first degree premeditated and deliberate murder and on second degree murder. The court explained that malice aforethought was an essential element of murder (
The error asserted by the defendant lies not in the language of the instructions but in thеir inadequacy. Although the trial court correctly instructed the jury that it must not convict defendant of murder without proof of malice, the court did not instruct the jury that it could convict defendant of voluntary manslaughter if it found that defendant had intentionally taken life but in so doing lacked malice because of diminished capacity due to mental defect, mental illness, or intoxication. Thus the trial court failed to give the instruction set out in People v. Conley, supra, 64 Cal.2d 310, 324-325 fn. 4.4
The nature of this error was fully and correctly explained by the Court of Appeal in People v. Aubrey (1967) 253 Cal.App.2d 912, 918-919 [61 Cal.Rptr. 772], a case raising this precise problem. “In Conley, a conviction of first degreе murder was reversed because of the failure of the trial court to instruct on manslaughter. The defendant had testified that he did not intend to kill and he could not remember what he had done. A blood test showed alcohol sufficient for intoxication. The opinion points out thаt evidence of intoxication may be considered by the jury to rebut malice. Referring to an earlier case, the court said (at p. 318): ‘We thus gave effect to the statutory requirements for the offense of manslaughter, “the unlawful killing of a human being without malice,” and recognized that since the statute had been enacted before the concept of diminished capacity had been developed, its enumeration of nonmalicious criminal homicides did not include
“What the Conley opinion teaches is that there is a type of voluntary manslaughter which does not come within any of the three definitions found in
The evidence of defеndant‘s lack of malice because of diminished capacity due to pathological intoxication was “deserving of consideration.” (People v. Modesto, supra, 59 Cal.2d 722, 727.) Indeed, the trial court instructed the jury on the significance of the diminished capacity defense in other respects. The court must have concluded that sufficient evidence had been adduced to compel an instruction on diminished capacity because it gave such an instruction, although it was an inadequate one. Accordingly, in failing to instruct on nonstatutory voluntary manslaughter the cоurt erred.
“It is elementary that the court should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatsoever.” (People v. Carmen (1951) 36 Cal.2d 768, 773 [228 P.2d 281]; People v. Modesto, supra, 59 Cal.2d 722, 727.)
The judgment of conviction is reversed.
Traynor, C. J., Peters, J., and Sullivan, J., concurred.
MOSK, J.-I concur in the judgment under compulsion of People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911], and People v. Modesto (1963) 59 Cal.2d 722 [31 Cal.Rptr. 225, 382 P.2d 33]. However, I would not disapprove People v. Stephanson (1968) 259 Cal.App.2d 181 [66 Cal.Rptr. 155], a case in which this court properly denied a hearing as recently as April 17, 1968.
Burke, J., concurred.
MCCOMB, J.-I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Kerrigan in the opinion prepared by him for the Court of Appeal in People v. Castillo (Cal.App.) 65 Cal.Rptr. 202.