*1 Bist., 1, 1972.] No. 20773. Div. Two. Mar. Second [Crim. PEOPLE,
THE Plaintiff and Respondent, GIBSON,
ALEXANDER Defendant Appellant.
Counsel
James T. for Defendant and Lindsey Appellant. General, James, E. Evelle J. William Assistant Attorney Attorney Younger, General, General, II, and Lawrence P. Scherb Attorney Deputy Plaintiff Respondent.
Opinion
COMPTON, Defendant was in a trial of first J. convicted Code, 187). (Pen. He was life He murder sentenced imprisonment. § “verdict, sentence” and from judgment appeal purports a motion for new trial. the order denying however, defendant’s claims of all
Only appealable; are from the judgment. error reviewable appeаl *3 4, 1971, the as follows: On The facts be summarized may January his son causing shot into the head of 12-year-old defendant fired a single them of the the informed almost death. He called his immediate police, initial at At the meeting and was taken into the scene. custody killing to be calm and rational the defendant with the officers appeared arresting read to were of faculties. His constitutional rights and his possession card, he had and he stated that a Miranda advisement again him from confused, irrational, time, be did this to killed his son. Hе not at appear, or or of trance type pain. his as an autistic child who son mother
The deceased was described by sadness, was failed relate to was unable to had no empathy, speak, orientation which self-destructive and with sexual hyperactive, someone: concern because of fear that he harm causing might parents severe, if A autism as one of the most described infantile psychiatrist the It is characterized not most severe form of childhood mental disorder. disturbances, talk, be- failure to repetitious severe by compulsive motor havior, learn, and with interpersonal relationships. inability problems because The autistic child becomes the focal of his family frequently structure the needs and times the of demands he generates. Many family with the disturbed and constant preoccupation intense severely of the autistic child. problems since approxi-
Defendant had suffered from severe heart condition as the before mately day 1958 had suffered attack as recently for assistance for The of search killing years son. hopeless son, as conse- autistic with deterioration of the defendant coupled physical disease, that defend- his heart defense prove was proffered by quence not by mental at time was such that could ant’s state offense of intent requisite reason of diminished mental form degree first murder. degree in ad- a single psychiatrist The defense relied the testimony upon diminished capacity that defendant had vancing proposition deliberate premеditate. cannot that a defendant
The instructed fully jury properly 920
convicted murder of the first
if
time
offense
degree
alleged
under a mental
in
operating
disability
amounting
legal
which would
sanity
him
with
prevent
malice
acting
aforethought
v.
(People Conley,
deliberation.
310 [49
Henderson,
815,
v.
911];
411
People
P.2d
Cal.Rptr.
of an is not (People Gentry, the trier of fact. Cal. expert binding *4 Williams, 607 235]; App.2d Peоple Cal.Rptr. [65 151 Cal.App.2d v. 117].) 173 P.2d [311 was
There substantial evidence to the of first support degree v. murder found the Tubby, 34 Cal.2d jury. 72 P.2d [207 Ford, v. 51]; Bassett, v. People 41; supra, People 122, p. 777].) 443 P.2d Cal.Rptr. [70 individual,
All evidence which bears on the state of mind of an subjective for his own except description of thought necessarily processes, indirect evidence. Here that indirect evidence the of the took form of the on the one opinion hand and the conduct psychiatrist objective of the defendant on the other. The defendant did not testisfy.
The inference the lack defendant’s and deliberation which could drawn be from the as opinion evidence not obviously to the trier of fact persuasive as the inference of the existence of opposite those which be could drawn the defendant’s processes readily motive, rational, the fact that after the crime he was shortly committing time, coherent and well cooperative, oriented as place persons (See People Wolff, present. Cal.2d 795 P.2d was to the psychiatrist’s testimony effect that the defendant’s “judg-
ment” was It could be said that who resorts to criminal impaired. anyone as a homicide solution to his fails exercise problems “good judgment,” however, homicide social law not does policy underlying that recognize crime. Nor does concept mitigating gravity that social aof deliberate intentional policy mitigate killing yet gravity when the motive to be other than in appears one that is base nature. truly euthanasia, Thus at this in is not in California. countenanсed history, evidence that defendant there was a total absence of any Here supra.) People Wolff, (Cf. with reality. delusional or out contact fact that the prosecution, reversible error in the Defendant next urges challenged death declared intention not to seek the after its having penalty to' the death cause their stated six on the basis of jurors opposition resulted in an im- The defendant this procedure maintains penalty. favor of the prosecution. weighting jury proper Chand, 499], court People In 116 Cal.App.2d 249- stated at was faced an identical situation. The court there pages it is for in the first degree 250: “So as the includes murder charge long a verdict of murder whether not for the say jury prosecutor or not the death in that shall be returned and if so whether penalty court, law It for the as the requires, shall decreed. was therefore proper see that a pass was selected competent qualified upon which contained in the information and charge upon punishment law therefor.” рermits had utilized all its peremptory
We note too here the prosecution would have been able to remove Thus the challenges. prosecution no error challenged event. There was jurors procedure *5 was followed. the instruc
The defense next contends that the jury reading 260], Ortega, 2 884 People tion in v. approved Cal.App.3d [83 366], Baumgartner, People v. 103 P.2d 166 Cal.App.2d [332 element of coercion error since it an contained prejudicial impermissible which would of a holdout This issue juror.1 affect the free choice 1“ in all large strictly speaking, proportion perhaps In a of cases and ‘The Court: cases, which a victions and not Although the verdict to certainty expected. absolute cannot be attained or must, course, verdict, juror agrees result of his own con be own the fellows, yet acquiescence a mere in the of his or her conclusion result, bring you in to to a must examine the order twelve minds unanimous regard to you to with a and deference questions proper submitted with candor and opinions of each other. should that the case must some time You consider decided, you and from the same source be are selected in the same manner selected, to jury suppose be and there is no reason any from which future must intelligent, impartial to or women more case or more on if ever twelve men more will be submitted it, produced be competent to or or clearer evidence will decide that more case, view, your duty it decide the this is to one side or other. And with practicable, do you сonscientiously In order to make a decision more can so. in In party one the other all cases. proof on or imposes law the burden case, to People of the State of California proof the burden of is on the present any you of it every beyond part of it doubt. if in are part a reasonable And establish left in doubt, to of the doubt and must be the defendant is entitled the benefit conferring together, ought pay proper respect to each other’s acquitted. you inBut arguments. disposition оther’s And to be to each opinions and listen with convinced
922 Walker, People Ortega, in v. supra, People treated and in
extensively 462 cited From cases and others Cal.App.2d P.2d these 1009]. them the rule clear that the cited instruction is a vehicle appears proper with a deliberative differences providing settling, approach their members. opinion among When, here, as to' instruction is without revelation how given when, jury stood under the circumstances question guilt, use, of its discussion merely to careful adjurаtion dispassionate issues, of coercion consideration all there is no element present. Walker, 472; (People v. supra, People 462 at Cal.App.2d p. Lammers, Ortega, supra, 884; People Cal.App.3d Cal.App.2d Defense is in conflict with Ortega further maintains that the instruction CALJIC Instruction case with No. 17.401 this reference specific given However, to the “. not be influenced . . should you following portion: of the decide because a any jurors, question particular way majority them, or favor such decision.”
Defеnse urges that the Ortega instruction calls a holdout upon juror to measure his of reasonable doubt quantum that expressed by against of his fellows majority in order to arrive at a assessment qualitative of his own validity doubt.
A fair Ortega reading instruction reveals that it is a sug- only gested to a approach In no can be said to call for process. way a recalcitrant to substitute juror other’s for that of his own reasoning because he merely finds his or decision analysis at odds with the other To jurors. call simply upon juror cоnsider all aoh varying opinions subject in at a arriving decision one another way cannot said *6 be coercion.
The is affirmed. judgment
Herndon, J., concurred. hand, larger on the other your conviction, if much the panel of are dissenting for a a juror should consider a one, whether doubt in his or her own mind is a reasonable impression upon which makes no honest, the minds so many of men or equally women intelligent equally with himself or herself and to have heard the same evidence with the same attention and with equal to arrive at desire the truth under hand, the sanction of the And majority same oath. acquittal, on the other if a for are minority ought the seriously to ask they may reasonably themselves whether ought not to judgment, doubt the of correctness a which is not concurred in by associated, most of those they with whom are weight sufficiency and distrust the of that carry evidence which to fails to conviction the minds That their fellows. given you suggestion is to as a theory jurors coming and rationale behind ” a way (People Ortega, one or the decision other.’ 896.) at p. ROTH, P. J. I dissent. state the defendаnt’s mental received on prior
The evidence only defense, elicited from Dr. crime was offered by and at time of the testi- Wells, characterize the expert’s The majority James psychiatrist. deliberate pre- that defendant’s capacity mony “proposition” is the clear that it The fail make was diminished. majority meditate mental directed to defendant’s in the record only evidence specifically mental it defendant’s capacity and that demonstrates that diminished.1 was substantial on the there
The majority proceed assumption con It must be evidence to of first murder. support degree is verdict of first murder that unless evidence in a degree ceded resulting substantial, that offense. for no court can or should affirm conviction Bassett, 122, 193, 443 138-139 (People [70 “sub 777].) at bench is P.2d that the evidence unable agree am stantial,” crime, fortified uncontra when inherent nature of the diminished indicating dicted testimony concededly reputable expert fix discretion to is no reason. A jury’s for rejected apparent capacity, Tubby, Cal.2d crime is not absolute. 51].) P.2d reason- me from the record It seems to that there should be apparent testi- able and the uncontradicted inferences to logical reject psychiatric fanciful, Indeed the law such for enjoins imaginative mony. rejections Bender, (People v. or for reasons. personal first and malice
The mental elements of requisite At course, evidence. circumstantial degree murder may, proved by bench, those two complete rejection assuming legal prerеquisites, but majority admit such is the state of record discount 1The individual, subjective of an on the state of mind statement: “All evidence which bears necessarily description processes, own indirect except for his psychiatrist opinion took the form of the evidence. Here indirect evidence objective one of the defendant on the other. hand conduct *7 testify. defendant did not of and which premeditation inference the defendant’s lack of deliberation “The obviously persuasive not as to the оpinion could be drawn from the evidence was thought opposite processes fact of the existence of those trier of inference motive, shortly readily could be the defendant’s the fact which drawn from rational, committing cooperative, oriented the crime he was coherent and well after time, (See People Wolff, present. place persons and 795 as to 959].)” 271, Cal.Rptr. 394 P.2d inferred from the psychiatric testimony, admittedly may uncon- legally tradicted surface facts It is clear that рresented by majority. loaded, defendant about the and fired aimed killing, weapon and notified thereafter of awful police deed. Direct or circum- viciousness, stantial evidence of the of or the of type passion, anger, type and malice harbored or inflamed but undi- vengeful minished first case are mentality murder usually present every absent. To the wholly the record abounds with evidence contrary, showing that over a of was long mind so infected with the period years appellant’s virus of multiple and paternal vicarious guilt, helplessness, hopelessness suffering, that on the of his unfortunate child appellant’s thinking subject tortured, at the time of the was killing and diminished warped beyond and that the motive was muddled repair, only possible appellant’s judg- ment that death of the victim was the . answer to “. . the of years only . . search .” hopeless his unfortunate son. help devotion, The is that of the quoted phrase The record shows majority. love and of understanding defendant toward his son for of the full period continuous, life latter’s and a сonscientious and as well heartrending made, as “hopeless search” of sacrifice substantial expenditures time and thought, between the money. victim his relationship father is a rebuttal of devastating any inference defendant had “an Witkin, abandoned (Pen. Code, 188; heart” malignant Cal. § Crimes, 289-290.) pp. Wells,
Dr.
of undoubted
with 22
expert
reputation,
years
who,
practice
shows,
the record
psychiatry,
used by
frequently
court,
the trial
was the
who
only
testified. He recited an
expert
abundance
background
current facts and made
obser-
significant psychiatric
vations, fortified by
findings and conclusions from the same
psychiatric,
as to which he
cross-examined,
rigorously
intelligently
indicating
almost infallibly diminished mental
as that
term defined
capacity,
cases.
v. Conley,
815,
His evidence covered approximately pages reporter’s transcript and the cross-examination 72. No is refuted part testimony or even shaken. It is difficult to believe reasonable beyond doubt defendant had sufficient control of his mental have harbored processes type premeditation and malice as conditions required precedent conviction murder in the first A few degree. brief excerpts which expert’s testimony relate to the whole as does crest of an *8 mental tortured, diminished defendant’s warped demonstrate iceberg, process. in regard Doug’s . as the person
“. . He saw himself guilty certainly illness, very death. He took the Doug’s certainly responsibility remorse, that was remorse- remorseful, I he and was convinced suрpressed, had done his family he of the harm that he thought ful in terms primarily he time that made it clear that this act. He made very by entire would life, family that the to end he was convinced decision Doug’s be met might to whatever from him and leave him punishment turn away action; that and surprised a of this that he had been shocked result that he [¿ic] him, than ever around and felt more had ralied family that at the same time perhaps had hurt them this action. I think by view.” there of relief for some sense respects Doug the doctor testi- one defеndant in jail, interviews with Recounting fied: was in each Mr. Gibson
“On when arrived at the occasion jail, is, or fifth deck—and confinement on the—whatever it fourth solitary up he be it secluded area. He that was his very indicated preference he be there. in that area. He said that at his it was partly request medications, he internal He stated that he had two taking—that medication, reheve used to cardiac another medication nitroglycerin, first been when we mentioned earlier. That he had upset spasm quite abuse block, in cell that he was because upset placed particularly the cell. That defective other mentally prisoners prisoner activities had forced to dance in nude and other they this prisoner Gibson felt powerless the absence of and mocked him. Mr. jailer this, intervene but was in time able inform the jailers physically, the comments his cell. He made removed from subsequently being it roused in his mind to the images Doug possibility treated in the same fashion.” the decedent was in Cama- as to defendant’s reactions when
Testifying rillo, the doctor related that the told him: defendant
“ ‘We It didn’t do any- him into Camarillo. was so got They pitiful. He added that for him.’ was Mr. Gibson’s course. thing This opinion, for visits with could weekend and take him out they go get Doug every said, ‘He had Mr. Gibson was told me this—he family. hoping—he to- to hold hand We had skinny. stop all home. He so my way got he fries’—which had get to eat—a and French something hamburger him earlier were foods. T hated take one of favorite explained Doug’s Oh, in that back. The me. hated doctor said was best for go *9 He us placе. was there four months or so. wrote and told to come They him, and get couldn’t do I was It was they anything. actually glad. so He had pitiful. lost so much He didn’t have table manners any weight. ” when he came back.’
“. . time, . . A. Yes. My opinion Mr. Gibson suffer- from a ing very significant He stated that he had been degree depression. two¡ with the wrestling of this action for possibility months. approximately He had made a decision the to- I the act day that must done. prior should add perhaps that Mrs. Gibson made the observa- parenthetically tion 3rd, on Sunday that would have been the prior, that she noticed marked in her husband that was not very change She aware day. why, but he event, seemed much more In I do believe that Mr. depressed. any Gibson has been from suffering severe chronic state of mental depression about brought by breakdown of his own emotional because competence of his own health exacerbated and failing certainly accelerated by family problems, preoccupations concerns and his illness Doug, and obsessive concеrn with future for also Doug; prospects exacerbated by another strife family including estrangement younger daughter; feeling guilt on his responsibility part actions or for the boy’s illness for some of the other family problems his including actions, mind, daughter’s that this state of this depressive state, did about a marked bring alteration in his to exercise full capacity I do not judgment. believe that he was in out of He was way contact. aware of where was and what he was this I think doing, type thing. it could be actions, said to-be aware but his consequences very emphatically from a dis- suffering significant emotional order.
“Q. Doctor, would your that state of mind that he had opinion, 4 of January this have year his impaired judgment? Yes, “A. think so. definitely
“Q. And would that 4, 1971, state of mind on January have impaired to reason? Yes, I “A. believe so.
“Q. And would that state of mind that he had on the 4th of January *10 and the nature understand fully his have impaired this year actions? of his quality I believe so.
“A. then, “Q. the difference what, to a Well, psychiatrist, could you explain hand, and fully one I guess, is on the understanding something between hаnd; con- two different other are these on the something understanding ato cepts psychiatrist? we that technicality is a necessarily
“A. I don’t know that it psychiatric under- here, simple I it is matter with Mr. Minier. think are concerned and anything, we can understand that there are levels of which standing level, was aware Mr. Gibson I think at a very simple uncomplicated life. He knew end his son’s he made a decision to what he was when doing it and boy pulled trigger when took and at that he pointed gun his that there was what would but I am saying impairment happen, motivation, was distortion and of that there his reason and of his in his in doing. motivations so sort, own think- of a of his
“A. Yes. I am of abstracts thinking things be a at the time. he would For that in so doing, pariah ing example, be hurt by would be would then not who totally separated family convic- of an absolute his act. am of the fact that he acted out thinking discomfort that and torture and tion was faced with future of pain Doug this, at but this was his convic- the hands others without truly knowing burden of at tremendous the time. I am that he had tion thinking assumed Far out of keeping for this child’s illness. guilt responsibility illness, facts, but I think we this kind don’t know the cause of that he was the cause.” convinced present “Now, record, testified: in the Dr. Wells at one
Significantly, then, the na- understand maturely was Mr. Gibson able your judgment son at the time ture and the act of the of his killing gravity Not A. in my happened? opinion.” suicide attempt other things, referring
Among appellant’s notoriety want didn’t Wells “It was because family Dr. said: partially and his wife states rather than was treated at home hospitalized, hours, the fact did and she also describes that he not wakе for over up that he was at the time that there was a hue the skin dusky purplish significant found. The reason that think this is may because he hme been in this long enough severely condition to have embarrassed the blood supply oxygen supply to the brain so that it been have a contribut- may factor to some of ing to have taken personality changes seem place. all, course, We have some deficit ac- as the increasing memory years But there cumulate. are some occasions that the wife noted that his memory added.) recall as (Italics perhaps subsequently.” good There was substantial evidence to show distinct personality changes *11 fact, after the suicide appellant In ex- attempt. during the of his entirety cross-examination, tensive on Dr. Wells testimony, maintained his opinion that defendant’s mental to understand the nature of his act had been so far as to impaired, state that going defendant’s diminished capac- ity regarding murder of his son continued to the time trial. In this were to the respect, following doctor: questions put “Q. Other than the fact that the defendant had this diminished capacity, classes, classes, he does not fall into of those those or what any psychiatric disorders, we call classes of he? does psychiatric Well, “A. I think he surely would.
“Q. What is he then? or, me, I think
“A. that he is from reactive excuse suffering depression I reaction'. think there depression some an- is question completely swered as to or whether not his at times has been depression psychotic Certainly from a proportions. suffering neurotic clearly—from reactiоn, times, have, depressive and he well reached may very testing reality sufficiently where disturbed that would be described depressive as a psychotic added.) (Italics reaction.” “Q. Is he as he sits here psychotic today? I
“A. don’t know for sure. I it. doubt
“Q. Was he when interviewed him in the you psychotic jail? No, I
“A. don’t think that was.
“Q. Is he neurotic as he sits here today?
“A. Yes.
“Q. You can tell at him? just by looking
“A. can an give you opinion.
“Q. heWas neurotic when interviewed him in the you jail? Yes.”
“A. as a heart patient history defendant’s long Dr. also stated Wells pro- the prosecution mental processes. Significantly, have affected his may that heart pa- the effect this latter pоint—to duced rebuttal testimony any it failed produce undergo changes—but do not tients personality by ap- blackout suffered the effects evidence regarding testimony above, nor, any was there the suicide appears after attempt pellant de- issue, namely ultimate in rebuttal concerning direct showing fendant’s diminished mental capacity. forti and reputable psychiatrist,
When the of an established testimony crime, and when ignored is completely nature of the fied inherent technical evidence any еxcept can point neither the state nor majority which supports pre fact of the killing inferences from the legal flowing to and malice, submission acceptance and blind fulsome meditation were elements indispensable present, that those two jury’s finding (See People court, trial or obeisance not appellate. required *12 Bassett, 122; 795; see supra, People v. Wolff, 61 Cal.2d see Anderson, v. People Cal.2d 15 Gibson, but when be excused
A such as the one bench cannot murder mind, son, have recognized should ill in shot his body “more understanding compre- between homicide requiring difference neces- act than the mere amount of hension of the character (People Wolff, supra, the intention to kill.” to form sary 822.)
The court there was substantial evidence in support found no Wolff no substantial or evidence to At bench there is support premeditation. the evidence at bench sustains or malice. In- opinion, my People Conley, supra, judgment manslaughter. of voluntary because, Mosher, but supra.) Conley instruction given, apparently it was not evidence was rejected by jury, ignored psychiatric followed. and as so to voluntary manslaughter, would modify
modified, affirm. I would