THE PEOPLE, Plaintiff and Respondent, v. PONCIANO M. LOVATO, Defendant and Appellant.
Crim. No. 414
Fifth Dist.
Jan. 25, 1968
Rehearing Denied February 23, 1968
258 Cal. App. 2d 290
Pierce, P. J., and Regan, J., concurred.
A petition for a rehearing was denied February 23, 1968, and the petition of the real parties in interest for a hearing by the Supreme Court was denied March 20, 1968.
Allan B. O‘Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Doris H. Maier, Assistant Attorney General, Edsel W. Haws and Raymond M. Momboisse, Deputy Attorneys General, for Plaintiff and Respondent.
GARGANO, J.—Defendant appeals from a judgment of conviction after a jury verdict of murder in the second degree.
During the trial defendants’ counsel informed the court that he intended to offer evidence to show that defendant lacked the mental capacity to act with malice when he shot Dr. Shah, and that at the very most he was guilty of manslaughter, not murder in the second degree. The court opined, however, that defendant was guilty of no less than murder in the second degree and hence was not entitled to show diminished mental capacity since he was an alien in possession of a concealable weapon in violation of
Notwithstanding the court‘s ruling, it is undisputed that there was sufficient evidence of defendant‘s diminished mental capacity for the jury to have returned a verdict of manslaughter if it had been permitted to consider this factor. Consequently, the real issue is whether the court correctly modified the standard jury instruction on manslaughter. If so, the court also correctly ruled on the admissibility of the evidence. If not, the court committed error of reversible degree when it instructed the jury on manslaughter, and we need not concern ourselves with its ruling on the admissibility of defendant‘s evidence and the related question as to whether defendant‘s trial counsel made an adequate offer of proof.
It is settled under the Wells-Gorshen rule of diminished capacity that a defendant cannot be convicted of murder if, at the time of the alleged offense, he was operating under a mental disability, not amounting to legal insanity, that prevented him from acting with malice (People v. Wells, 33 Cal. 2d 330 [202 P.2d 53]; People v. Gorshen, 51 Cal. 2d 716 [336 P.2d 492]). Accordingly, it is reversible error for the trial court to refuse to instruct on manslaughter when there is substantial evidence of defendant‘s lack of mental capacity to act with malice (People v. Conley, 64 Cal. 2d 310 [49 Cal. Rptr. 815, 411 P.2d 911]). However, an exception is made in the case of felony murders. Thus, if a homicide occurs during the commission of one of the six felonies enumerated in
In addition, if a homicide results from the commission of a felony not enumerated in
After long and careful consideration, we conclude that the answer to this basic and fundamental question is in the negative. It is common knowledge that several million aliens are living in this country and that the vast majority are peaceful and law-abiding. Undoubtedly, many are serving or have children serving in the armed forces. Consequently, to categorically hold that every alien who is intentionally in possession of a concealable weapon, regardless of the reason, is guilty of an offense inherently dangerous to human life, and hence is guilty of murder in the second degree if the offense results in a homicide, under every possible circumstance we can visualize, would manifestly lead to unjust and even absurd results. Moreover, to in effect state that a person‘s citizenship is the controlling factor as to whether a homicide was committed with malice is not only illogical but would constitute an affront to the judiciary which through the years has constantly striven to find compelling reasons rather than arbitrary distinctions before making rules which result in differing treatment of people.
It is of course true that the Legislature, in the exercise of police power, has the right to reasonably regulate the use of firearms and other deadly weapons. Furthermore, as the People point out, in upholding the legislative prerogative to include aliens within the ambit of
However, be this as it may, the determination as to whether a felony is inherently dangerous to human life in order to invoke the felony-murder second rule is a judicial, not a legislative, determination (People v. Williams, supra, 63 Cal. 2d 452; People v. Phillips, supra, 64 Cal. 2d 574). Moreover, the fact remains that a violation of
The People argue that the Supreme Court has already ruled that the possession of a concealable weapon by an ex-felon in violation of
Significantly, all of the cases relied upon by the People are cases in which the ex-felon was also in the process of committing other felonies. For example, in People v. Robillard, 55 Cal. 2d 88 [10 Cal. Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086], the defendant had stolen an automobile and was in the process of committing this crime when he shot and killed the
As a further example, in both Ford appeals (People v. Ford, supra, 60 Cal. 2d 772; People v. Ford, supra, 65 Cal. 2d 41), the defendant, an ex-felon, was not only armed with a concealable weapon when the homicide occurred but he was also caught in the act of kidnapping two people when he killed a police officer. Once again, it is obvious that possession of a concealable weapon by an ex-felon while engaged in the act of kidnapping two victims is a crime inherently dangerous to human life. Thus, although the court held that the defense of diminished capacity was unavailable, it nevertheless used this significant language: “The evidence other than that related to the murder count amply supports the judgments of conviction of the felonies of kidnaping Roope and Mrs. Ford (
In People v. Schader, 62 Cal. 2d 716 [44 Cal. Rptr. 193, 401 P.2d 665], the court merely held that the trial court committed prejudicial error in not giving an instruction on second degree murder since there was substantial evidence in support of the defendant‘s theory that he was not engaged in the commission of one of the felonies enumerated in
In any event, we conclude that there is a clear, rational and logical distinction between the nature of the offense when committed by an ex-felon and when committed by an alien. An ex-felon by his felony conviction has demonstrated instability and a propensity for crime. Thus, there is a core of
In view of the probability of another trial, we make the following brief comments with reference to defendant‘s contentions that his inculpatory statements were improperly admitted into evidence and that the court committed prejudicial error when it denied his request to close the argument in the sanity phase of the trial.
Defendant does not question the admissibility of the statements which he made when he first entered the police station and announced that he had shot Dr. Shah. These uninvited statements are clearly admissible under the rule articulated in People v. Hines, 66 Cal. 2d 348 [57 Cal. Rptr. 757, 425 P.2d 557]. Moreover, defendant does not assert that he was not adequately advised of his constitutional rights; the record is abundantly clear that he was advised of these rights in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974]. Defendant contends, however, that the evidence is insufficient to show that he knowingly and intelligently waived his rights before he made the statement to the deputy district attorney which was admitted into evidence over his objection.
It is of course the rule that the prosecution has the burden of showing that a defendant has knowingly and intelligently waived his rights to counsel and to remain silent (People v. Furnish, 63 Cal. 2d 511 [47 Cal. Rptr. 387, 407 P.2d 299]; People v. Lilliock, 62 Cal. 2d 618 [43 Cal. Rptr. 699, 401 P.2d 41]). However, the ultimate determination as to whether a defendant has knowingly and intelligently waived his rights is up to the trial court, and its decision will not be disturbed on appeal unless it is “palpably erroneous” (People v. Stafford, 240 Cal. App. 2d 422 [49 Cal. Rptr. 598]).
We cannot pass on the admissibility of defendant‘s inculpatory statements if this case is retried for we do not know exactly what evidence will be produced by the prosecution. It suffices to point out that on the basis of the record
Defendant also contends that the statement which was read into evidence was objectionable hearsay; the statement was taken through an unsworn interpreter and read into evidence by the reporter who transcribed the proceedings. It is clear, however, that the prosecutor laid an adequate foundation for admissibility under the rule articulated in People v. Sigal, 221 Cal. App. 2d 684 [34 Cal. Rptr. 767], and that defendant‘s hearsay objection was entirely without merit. Both the interpreter and the reporter testified and authenticated the contents of the transcript before the statement was read into evidence.
With reference to the sanity phase of the trial, it is true, as the People maintain, that our Supreme Court has held on numerous occasions that the order of argument is within the discretion of the trial judge (People v. Cotter, 63 Cal. 2d 386 [46 Cal. Rptr. 622, 405 P.2d 862]). However, the trial court should nevertheless approach the problem with caution. In Cotter the defendant did not request permission to close the argument. And in the recent decision of People v. Bandhauer, 66 Cal. 2d 524 [58 Cal. Rptr. 332, 426 P.2d 900], relating to the penalty phase of a criminal trial, the Supreme Court used this significant language at page 530: “The prosecutor‘s burden of proving guilt beyond a reasonable doubt at the trial on the issue of guilt justifies his closing the argument as well as opening it. At the trial on the issue of penalty, however, neither side has the burden of proving that one or the other penalty is the proper one in the case at hand, and there is no logical reason to favor one side over the other in argument. Equal opportunity to argue is also consistent with the Legislature‘s strict neutrality in governing the
The judgment is reversed.
STONE, J.—I concur in the result since cases cited in the opinion appear to hold that the defense of diminished capacity to a charge of homicide committed in the perpetration of a felony is restricted to situations where the concomitant felony is not inherently dangerous. Yet for the reasons below, this rule would seem to lead to an anomalous result.
Both diminished capacity and diminished responsibility involve the same basic concept in determining specific intent or malice. It is whether a defendant had the capacity to perform the mental process by which the particular state of mind was formed. In either instance the question is resolved by evidence that a defendant was or was not able to arrive at a particular state or condition of mind by reason of mental retardation, mental disease or deterioration, temporary loss of his faculties through injury or through the use of drugs, including narcotics and alcohol. The Supreme Court recognized this similarity of causal efficacy in People v. Conley, 64 Cal. 2d 310, where, in discussing the defense of diminished responsibility, it said, at page 319 [49 Cal. Rptr. 815, 411 P.2d 911]: “Implicit in such a defense is also the defense of diminished capacity. The jury could well reject the claim of complete unconsciousness and yet believe that the evidence introduced to establish unconsciousness was sufficient to indicate that defendant‘s mental capacity was substantially reduced.”
Coming to grips with the cases we note, first, it is well established that diminished capacity may be made an issue in the defense of a felony requiring specific intent. (People v. Ford, 60 Cal. 2d 772, 792 [36 Cal. Rptr. 620, 388 P.2d 892].) Second, under the Wells-Gorshen rule diminished capacity can be made an issue where the homicide was not committed in the perpetration of another felony. (People v. Conley, supra.) Third, a defendant charged with a homicide committed in the perpetration of a felony not requiring specific intent but inherently dangerous, such as an ex-felon in posses-
The upshot of these three rules is that a defendant charged with a homicide committed in the perpetration of a felony which requires specific intent has a right to raise the defense of diminished capacity to the felony charge. If the trier of fact believes that by reason of diminished capacity he could not form the specific intent to commit the felony, he then stands in the position of one charged with murder without the additional felony charge. Under the Wells-Gorshen rule, as explicated in Conley, he can raise the defense of diminished responsibility or diminished capacity as to the homicide. (People v. Sievers, 255 Cal. App. 2d 34, 38 [62 Cal. Rptr. 841].) On the other hand, a defendant charged with a homicide committed in the perpetration of a felony which, although inherently dangerous, requires no specific intent is precluded from raising the defense of diminished capacity.
It would seem to be a denial of due process and equal protection of the law to permit a defendant charged with a homicide committed in the perpetration of a felony requiring specific intent, such as robbery, to raise the defense of diminished capacity to the felony and, if successful, to also raise it as to the murder, but to deny the defense to a defendant charged with homicide committed in the perpetration of a felony not requiring specific intent, such as an ex-felon in possession of a firearm.
Thus, it appears to me that a defendant‘s right to raise the issue of diminished capacity in a felony-homicide case should not rest upon a judicial determination of whether the felony is inherently dangerous (the dissent here) or not so (the majority opinion) but, rather, upon the fact of diminished capacity and its effect.
CONLEY, P. J.—I dissent. It seems clear to me that the trial judge gave the instructions which in the main opinion are found to be prejudicially erroneous in accordance with the rule laid down by the Supreme Court in People v. Ford, 65 Cal. 2d 41, 57-58 [52 Cal. Rptr. 228, 416 P.2d 132], and earlier cases. There it is pointed out that it is not error to refuse to give a manslaughter instruction, even though there was evidence of diminished capacity of the defendant, if as here the felony-murder doctrine is directly involved. In the opinion it is said: “Defendant maintains that it was error to refuse
This case presents a situation in which there was a breach of the concealed weapons law which, unquestionably, contributed to the murder.
I should affirm the judgment of the court below.
Respondent‘s petition for a hearing by the Supreme Court was denied March 20, 1968.