*1 impracticable issue whether it was impossible, futile gesture bring (Woley supra, to Turkus, the action trial” 408). impossible plaintiffs Even go been to trial the time the stipulation, covered since party prepared pretrial (see neither for the conference rule supra), impossibility 8.2, would be of no avail plaintiffs. Nearly discovery two after months remained proceedings completed plaintiffs were in which could have pretrial set the ease for conferenc and trial within the five-year period. plaintiffs spent It is true that this time seek- join ing nothing prevented a second but their proceeding pretrial against peti- conference and seeking join tioner while were party. another peremptory prohibition writ of prayed. Let issue as
Gibson, J., Schauer, J., C. Spence, J., McComb, J., J., White, Peters, J. concurred. Sept. 16, No. 6403. In Bank.
[Crim. 1959.] THE PEOPLE, Respondent, v. MERKOURIS, JAMES Appellant. *4 B. Angeles), Richard (Los Ellery Defender Cuff, Public E. Deputy Erskine, W. and Richard Goethals, Tolmasov John A. Appellant. Lavine for and Morris Public Defenders Sokolow, H. Attorney Norman Stanley General, and Mosk, Respondent. Deputy Attorney General, for guilty McCOMB, Defendant was found on two counts J. jury penalty degree and the fixed the as death. murder, of first appeal pursuant automatic, is to section subdivision His (b), of the Penal Code.1 against two informations were filed 15, 1954, On November by attorney Angeles County, the district of Los Despine having
charging him with
murdered
Forbes and
September 20,
or about
1954. Defendant
Robert P. Forbes on
Despine
guilty
charge
having
pleaded
murdered
an
Forbes,
plea,
his counsel entered
additional
guilty
insanity.
respect
charge, of not
reason of
to such
charge
having
Despine
murdered
After a
trial on
degree murder,
was convicted of first
Forbes, defendant
imposed.
penalty the death
plea
personally
guilty by
withdrew his
of not
Defendant
(b),
upon
of the Penal Code reads:
subdivision
“When
1Section
rendered,
appeal
automatically
any plea
judgment
of death is
action
him or
without
his counsel.”
taken
the defendant
*5
insanity.
appeal,
reason
After
automatic
judgment
the
(People
was reversed and remanded for a new trial.
v. Mer
kouris,
Atascadero sane, that defendant was and he was hospital from Angeles ordered returned to retrial, Los for being subsequently the trial date set 16, as June 1958. August 26, again Defendant’s counsel on 1957, and on June 16, requested the trial court to declare that it enter- pursuant tained a “doubt” as to sanity, then provisions section 1368 of the Penal Code.2 On August 26, appointed psychiatrists two taking after and, examine evidence, considerable 19, 1958, found on June it did entertain a “doubt” meaning within the of the statute as to defendant’s then sanity. The court then ordered that the two informations be proceed consolidated and case Both stipu- to trial. sides pleaded lated that defendant be guilty deemed have guilty respect and not reason of charge with having murdered trial, jury Robert P. Forbes. After guilty degree returned two verdicts of of first murder, (cid:127) penalty then fixed the as death. jury plea A guilty by trial was waived on the of not reason insanity. 10-day After a trial on this issue the court, conflicting evidence, found that defendant was sane at time of commission of two offenses. A defense motion present sanity declare doubt as to defendant’s then trial were denied, motion for new and defendant was sen- resulting present death, appeal. tenced automatic presented questions are These determination: 2Section 1368 of the Penal “If Code reads: time pendency prior judgment of an action and a doubt arises as to the sanity question of the the court must order the as to his jury, to be determined the court without a or jury, by jury demanded; and, with a such if a trial is from the time of order, proceedings prosecution all the criminal shall be sus pended question until of the of the defendant has been jury determined, charged, prosecution may criminal and the trial be dis retained, according to the discretion of court until insanity.” determination of the issue judg- to sustain the substantial- evidence First. Was there ? guilty ments of fully in the summarized The evidence is Yes. p. seq.). the evi supra, 543 et Since (People Merkouris, far merits are as the trial, so concerned, dence on the no previously substantially produced, as that the same by setting it forth herein. purpose would be served useful prior opinion, forth set in the From résumé appears at the time the case was submitted to the guilt or innocence could inferences reasonable *6 the Therefore, been therefrom. rule set forth have in drawn People 678, 15 v. Cal.2d 680 P.2d Newland, [1] [104 prosecution In a applicable, is: criminal the 778], is weight determine, the is for the to if of and reasonably justify guilty by of verdict the circumstances opinion reviewing an of the court that those circum jury, the reasonably with might also be reconciled the innocence stances warrant a reversal of of of the defendant does not a verdict jury. Likewise, guilty defendant’s contention that the incriminating circumstantial evidence was insufficient to the guilt might because such evidence also be deemed establish his (People compatible is not well taken. v. New with innocence p. [2].) supra, 684 land, holding court err in not Did the trial as a matter Second. a “doubt” as to that it entertained law defendant’s
sanity the time the trial? applicable: here These rules are No. meaning within sane, A the of section i. Jensen, Penal Aparicio, 38 Cal.2d if 1368 conduct judgment, than in the mind of person. (People v. 41 Cal.2d People Gomez, which (People Lindley, doubt arises issue of a defendant’s purpose of the Penal Code, rests v. ii. iii. The determination 43 Cal.2d his own defense v. is doubt requiring a within “doubt” Code, he is able to Jensen, supra, 572, the sound discretion 565, 26 Cal.2d in..the proceedings counsel if determination 576 567 referred in a rational pendency of the action mind [1] [1] [241 of a .motion p. taken at the [275 789 [5], 576 .the of a defendant’s understand P.2d P.2d manner. against [3] [6] [258 [2].) section time of trial of the for a 221].) 25]People judge, hearing or him 1368 of the trial is one trial P.2d or (People nature rather court. 227]; third upon to v. v. only may as a law a be It is where “doubt” said matter appear of the has been abuse where there discretion judge, in the in the that is vested determination question, properly that the conclusion of the latter be p. appeal, (People Jensen, supra, [3].) disturbed Applying foregoing rules facts present ease, appears August 26, 1957, that on it when defend (Mr. Lambros) requested ant’s Basil then counsel P. sanity, declare doubt to defendant’s trial court following bearing question: had before on that matters describing Statements of Mr. Lambros defendant’s conduct county jail when he visited after from Atascadero; return statement of Mr. Lambros de always sanity, fendant’s “contention has in been one my opinion merely he the doctors at convinced Atascadero by telling that he was sane he sane, them because I cheeked I found once, that never Atascadero, open one of the did he meetings, They staff ever his mouth. psychiatric never had one Now, conference with him. only certifying basis for him back as sane is the fact that he had talked with various ward doctors and with the inmates room”; his Mr. Lambros’ stated that defendant capable consulting attorney prepare with an and conduct defense; conduct the court report room; the certificate Atascadero officials that defendant was sane and letter to the district at torney from stating Atascadero officials the observations of *7 physician charge who had ward where defendant had been confined and the conclusions of the staff doctors; deputy attorney’s opinion and the district he did stated that defend jail ant behaved and the courtroom because just go “he does care to to trial.” foregoing With the matters him, judge before the trial justified in concluding August 26, 1957, did, as he that report persuasive the Atascadero was “more any than outward manifestation as indicated the conduct the defendant from court, before the which the court cannot conclude at this present sanity.” time that entertains a doubt toas the position appellate An in no appraise in the indicating defendant’s conduct trial court as insanity, attempt feign delay proceed calculated temper. ings, or sheer Conduct of character indicated may, record here to the observant trial judge, be overwhelmingly suggestive of a attempt calculated cunning at oper- deception well than of mental weakness. It rather any preclude rational doubt as to ate to entertainment sanity. the actor-defendant’s appointment (under section The trial court’s Procedure) psychiatrists to examine Code of two Civil report court, and its continuance of the defendant and do not the court had a doubt as to de matter, indicate sanity. granted on motion of fendant’s The continuance expressly opposed by counsel, counsel for the defense lengthy litigation in People, because both counsel had another experts appointed request The at the of counsel matter. were report parties, for so that a both later defendant’s condition go counsel were free to to trial in this would be available when case. reasons,
On after continuances for various June represented by public appeared defender, deputy trial. district rather than defense attorney, question sanity. counsel, first raised the prosecutor repre- Lambros, said that Mr. while he was still senting (at ap- defendant, had informed the court earlier pearance judge) before another Frederick J. Hacker Dr. (who had been of the 1956 that there was question ability cooperate in his own defendant's de- fense) thoroughly had examined concluded that he was sane but he “claimed petit prevent being present mats and that would him from [i.e., proceedings] stages aware of the of the trial under guilty prosecutor Therefore, said, the not issue.” “In might to arm order the Court material be necessary to determine that issue this trial as well as present present status as sanity, I wish to copies report Crahan, submit Court Dr. Marcus [a Angeles psy- medical doctor for Los sheriffs’ facilities, chiatrist who had re-examined 11, 1958],” defendant on June personal testimony and “some from Dr. Crahan.” raising question
Defense counsel stated he was existing sanity presented reports of defendant’s then psychiatric prosecutor recent examinations of defendant. The fortify said, “to the record ... I want to crossexamine these psychiatric other doctors” evidence. 17, 1958, respective June On counsel appeared. again The court proceeding announced “This suggestion at the of counsel is had for the defendant . . . or not this as to whether Court should entertain a doubt as *8 sanity.” request at his was allowed Defendant not, in which he insisted that he was statement, to make a been, insane, did not wish to enter and never plea entered, if such had been he wished with- plea, concerning in sanity were drawn. Defendant’s remarks his he had made when he was substance similar those which insanity plea original at the trial. allowed to withdraw his It was for trial court to evaluate defendant’s renewal upon his his sanity, insistence the different circumstances presented relating question whether existing sanity. court had a doubt as to his In this connection the court was entitled to consider that defendant’s similar statement in 1955 was one of the factors which re- led ensuing delay versal of conviction and the these Although proceedings. reportedly physi- had told prompt disposition cians and counsel that he wished cause, (and presumed to) is to be have defendant, having determined that once observed the effect in delaying such a statement the ultimate decision of these proceedings, opinion repetition formed the pre- of his viously position might announced dilatory have a similar effect. upon The trial judge, all the evidence as to defend existing sanity,
ant’s including psychia of four trists who had testified sane, stating several of them simulating believed he was insanity, neurological some epilepsy, disease, prop could erly completely opinions disbelieve that defendant was incapable cooperating in his defense. foregoing demonstrates that subject the evidence on the highly conflicting defendant’s together and, judge’s personal with the trial observation of defendant, was support sufficient his conclusion that he did not have a doubt as to defendant’s at that time. Third. Did the trial receiving court err evidence, (a) over objection, statements made the de- ceased, Despine and Forbes, through Robert testimony Fairly Mr. and Mrs. Bonk, (b) over Officer objection, testimony Inspector Wood relative to an indict- ment sending threatening through letters of defendant for mail, (c) objection, without the testimony of Officer Kline, a rebuttal witness the People, relative to the belief brother, Reverend John Merkouris, who of defendant’s
682 hilling anyone, witness, not a was accused of if defendant Despine Forbes, it would be defendant’s ex-wifef Fairly testimony No. and (a) The of Mr. and Mrs. Bonk, complains, was to effect Officer which defendant Despine expressed 1948 and Forbes Robert Fairly stay to Mr. and Mrs. their intent to with them awhile lives, their because defendant had threatened and that 1949 expressed or 1950 Robert Forbes to Officer Bonk his inten permit carry gun tion to obtain a because defendant bothering again. testimony had been This was Forbeses objected ground hearsay, on it was immaterial, prejudicial. overruling remote, objection, In judge being that the evidence was admonished re purpose showing for ceived the limited the declaration of persons intent of the deceased and their state of mind and not alleged as to the truth of the statements to have been made. Inspector having complaint Wood testified to his received postal in the summer of 1948 relative to a late violation having regulations; Despine to his talked Robert and having Forbes; through Forbes, to his procured, Robert threatening a malicious letters of nature sent defend- having ant. He also testified talked with Robert Forbes again complaining in 1950 and Forbes’ about Mr. defendant. ground objection remote, An immaterial, the evidence was hearsay overruled. rulings The trial were correct. The victims’ court’s asser- protect intent tions of to avoid and themselves from defendant exception were admissible under the mental state hearsay they that in fact rule as evidence such had intent. The existence of that intent evidences the declarants’ fear of defendant.
The declarations that defendant had threatened the prove admissible, victims were not to the truth of that fact prove directly, the victims’ but fear.
Where, as
the identification of
here,
defendant as
in issue,
the killer is
the fact that the victims feared defend
reason to fear
ant is relevant because
conduct
rather
v.
4
A.L.R.
Commonwealth,
fear had been aroused
than, e.g.,
of "defendant
1509];
him,
that the victims’ fear
Lowery
683 ]; Bauers, v. [14, Wn.2d State P.2d 15] [8]-[9]].) 279, 286-287 Inspector testified, objection, to what (b) Wood over against for encompassed the indictment threatening through sending the mail. He testified that letters language he it, knew statute, under the federal grand jury he secured from the federal which indictment only obscenity encompassed also, in the letters but although specifically. effect, it did not mention threats threats, contends that this evidence was Defendant inadmissible. pleaded guilty fact It is admitted that defendant charging sending him with the indictment obscene matter placed through mails, probation $150, was fined years. (People p. Merkouris, supra, 544.) two Also, *10 jury proper there the record discloses that was before the the that letters sent defendant did in contain evidence fact obscenity. as threats well questioned Assuming, deciding, without that the evidence Inspector inadmissible, Wood was we are satisfied from an examination of the entire record that such evidence was important prejudice sufficiently not eyes in defendant jury justice. in miscarriage of the result Therefore, VI, 4%, under article section Constitution, California alleged error not judgment. does warrant a reversal of the (c) testifying through As a defense witness an interpreter, Michael Merkouris Reverend in a vital corroborated defendant’s alibi particular, wit, that defendant him contacted September in 19, Galveston 1954. Reverend Michael denied meeting September Kline Officer 23, 1954, talking or presence an in such individual of Reverend John, or know- ing whether John had a conversation with or Kline, whether stated to Kline that John neither John nor Reverend Michael or seen heard defendant after the latter left Galveston September a month 23, about 1954. He also testified understanding ability that his of, and speak, English was limited. Kline, called as a rebuttal witness, Officer testified to the meeting
effect that he have a did and did talk with Reverend 23, 1954; spoke Michael on that to one an in English; other that Reverend Michael called Reverend over, John the two of right them stood next other; to each ensuing in conversation Officer Kline told of defend being ant’s wanted for murder in Angeles; Los and that said Reverend John had left Galveston a month 684 previously nor seen neither he Reverend Michael had gave testimony him other which
heard from He tended since. being said, what was to show that Reverend Michael knew telling being is, that while Officer Kline was my said, murder, “Oh, wanted for Reverend Michael God!” once, more than and one such instance was when Reverend “My his God, was it ex-wife?” Defendant said, John having por objects now to the court’s received evidence testimony query containing tion Reverend John’s objection it was ex-wife. Since no was whether receipt testimony, in the trial to the of this made de urge not was error to receive fendant now it. People 251]; (People Owens, 123 P. v. v. Cal. [56 Cal.App.2d People 572]; Lindsey, 90 [16] [203 Cal.App. 367, Sellas, 114 P. deputy attorney improperly Fourth. Bid the district opinion jury injected his argue to when he basing previous trial, on a with which liar, was a jury was familiar? deputy attorney argument in his No. The district opportunity he wished he had the same to demon- said at in the case bar the manner which he had been strate impeach at the former There able to trial. ground on the that what objection, which court sustained at former trial was evidence the case bar. attorney explained deputy that he district then only been into referring which had read Thereupon at in the case bar. record and was evidence right to refer to evidence that counsel had court said attorney deputy explained then district case bar. particular testimony reference from the he had former *11 present case, the in the read into record trial which was stipulations and present pertaining proceedings in case the at trial, disclosing know, that defendant not the former did being trial, at the cross-examined former of a when he was recording Sergeant in which of conversation Jones in Angeles had not been said that he Los had defendant years. remarked, connection, eight this or Counsel seven opportunity he that same to do it he wished “had that having way today” and referred falsified. testimony from portions the former of defendant’s trial The present the case included record in acknowl- read into the Angeles that he had been Los edgment by be- by September 8, 1954, 3 followed tween the
685 playing recording, of a of which defendant had heen unaware having Sergeant and which disclosed his Sep- told Jones on 27,1954, Angeles tember that he had not been Los for seven eight years. or effect, deputy attorney In the reminding district the jurors of the evidence from the former the read into reflecting record in the trial and impeached, been in that he had made false The statements. departure remarks not constitute a did from the In record. apprised jurors the court addition, the the statements of ment. the counsel were not evidence. jurors properly regarded (Cf. People v. Chavez. Therefore, the remarks as a matter of Cal.2d it will be assumed [20] et argu- seq. Fifth. Is section 190.1 the Penal Code unconsti of tutional? provisions Defendant contends the No. of section post 190.1 of the Penal are ex him, Code3 facto as to in that guilt of 3Section 190.1 the or Penal Code reads: “The of innocence every person charged penalty with an for which offense the in the imprisonment determined, death or alternative for life shall first he finding penalty. person guilty without If as to such has been found punishable imprisonment death, of an offense life or there shall thereupon proceedings penalty, be further on the of issue the the penalty. presented trier of further rounding fix fact shall the Evidence be at proceedings penalty, on of the issue of the circumstances sur crime, background history, the of the any aggravation mitigation imprisonment penalty. of facts in or of the The deter penalty mination of the of life or death shall be jury trying discretion of the court or the issue of fact the evidence penalty presented, expressly fixed shall be stated the deci penalty imposed, however, or sion upon any verdict. death shall be age years person who under of 18 at the time of proof age commission of the crime. The burden of as to the of said person upon shall be the defendant. has guilty by pleaded “If of the defendant reason at offense, fact, of of time commission trier after thereupon penalty, determination shall determine whether not defendant was sane at the time of commission such offense. prevail provisions any provision of this shall over section other determining respect sanity of the offense. law with the time of defendant However, if of commission at time at time doubt arises as to the the trial of de- time, question fendant termined as shall be de- such Chapter (commencing 1367) provided in at Section 2 of code. Title Part sitting jury, “If the court without the defendant convicted the court. If the the trier of fact shall be by defendant was convicted jury guilty, jury plea shall the trier fact be a unless a jury, convicted the trier of fact is waived. If the defendant was penalty sanity, any, if and the issue of shall be the issue of good shown, discharges jury unless, for cause same *12 686 prior to the effective
the crimes which he committed occurred section. This contention has been held to be date People 620, (See Turville, without merit. v. 51 636 Cal.2d 237, 241 710 stipulation McNiel? ceedings [22] No. [4] et In the seq. et Sixth. [1] [331 seq. [335 receiving the penalty proceedings [328 Did the trial court err respect P.2d P.2d P.2d 678]; 632]; to defendant’s testimony People People the defense v. v. Ward, 50 Cal.2d Feldkamp, having Drs. Grahan penalty presented been found 51 Cal.2d pro 702, a meaning presently jury, of section insane within the after a trial in Code, 1368 the Penal having to Atascadero State 1956, and his been committed pursuant Hospital that section. for care and treatment People proceeded rested, with rebuttal. After the defense witness, testified that on the basis Grahan, Dr. rebuttal and the materials furnished of his examinations presently him, he was of the that defendant was sanity during trial; that defendant sane the aforementioned at all times under the doctor’s exami- had been sane malingering had been before the ; nation and jury trial. Dr. McNiel testified similarly. testimony This defendant contends improper, on the
theory jury having that the found insane, the mat- judicata. ter was res It was not res judicata, and the testi- mony properly received, since an order of commitment hospital to a for the conclusively state insane does not estab- person lish that the insane; merely committed is creates presumption person that the is insane and that the v. continues. People Gilberg, Superior Court, v. However, 197 4 Cal.2d Cal. presumption 136,145 319 [8] [7] is rebuttable. et et seq. seq. [240 [47 P. (People 1000] 724] ; ; jury in which ease a new shall drawn be to determine the issue penalty, issues, may or the issue of or both such as the ease be. proceedings any penalty, “On such further on the issue of concerning the commission of the crime admissible deter- mining guilt of the defendant be admitted. guilty by jury, “In case which defendant has been found jury, trying penalty, the same another issue unable penalty, to reach a unanimous verdict on the issue shall jury impose punishment dismiss the ordering and either for life lieu of penalty, trial on new the issue of or order a new impaneled try penalty, sanity, any, issue of the issue of such if guilt jury.” but the issue of shall not retried be People Field, Cal.App.2d [8] et seq. *13 P.2d judgment is affirmed.
The White, Schauer, J., Spence, concurred. J., J., PETERS, J. I dissent. many my opinion, of facts, In under all which are not fully majority set opinion, or at all forth in the a “doubt” sanity law, a as to as matter existed to prejudicial and failure declare such “doubt” constituted requiring majority opinion a error reversal. does not prior appeal on the in (People disclose that this case Mer- kouris, 999]), ground the main Cal.2d sanity was that a the reversal “doubt” as to defendant’s then law, a matter of and that existed as the evidence on that issue was much weaker there involved than the evidence on the present appeal. same issue on the opinion majority Nor does the lengthy hearing disclose on the to ascertain present sanity whether a as existed, “doubt” to judge the trial expressed thought was confused and at times issue then him before was whether defendant was or That, course, opinion sane. was not the issue. now signed by majority of this court indicates its face majority laboring are also misapprehen- under the same by sion. This is indicated appearing several statements in opinion. page typewritten opinion 10 of the appears On upon “The trial judge, statement: all the evidence as to de- existing sanity fendant’s pears: ap- ...” page And on the next foregoing “The demonstrates that the evidence on the subject sanity highly conflicting . .” . That was not issue before the trial court, nor issue before this court. majority Because of the failure to forth set pertinent
all of the facts, those facts will be set forth in some detail. May The first reversal this ease is In 25, dated 1956. 1956,
August court, the trial court, as directed this present sanity declared “doubt” of defendant under section 1368 the Penal 13, Code.1 On 1956, provides, part: pendency 1Section 1368 “If at time judgment of an action and a doubt arises defendant, question the be determined the court must order the as to Ms jury, jury, a trial without a or with a by jury if a trial . . demanded .” presently insane, and he defendant was decided that proper August 13, 1957, the to Atascadero. On was committed hospital that, opinion, in their de- certified of that officials defense sane. On fendant was as to the requested “doubt” declare counsel At commencement present sanity of defendant. evidently laboring under the mis- defendant, hearing, brought been from Atascadero to see apprehension that he had Atascadero, his doctors at demanded one of a Dr. Jacobs, grew violent, and the record He shows: to see that doctor. from courtroom.” The former is removed “The defendant attorney Lambros, at request, Mr. the court’s support for the court of his motion made statement sanity. then Lambros stated a doubt as to defendant’s declare Atascadero, three occasionshe had visited defendant that on my opinion, been able I, “on no have that get occasion attempted through him”; these interviews de- Jacobs, his confuse Lambros with Dr. ward fendant would *14 Miller, or for a Dr. would ask for Dr. Jacobs doctor, and many complaints The defendant made who was deceased. attempted on his food and and two occasions treatment, about attorney. he assault his The defendant demonstrated that to including attorneys, all his own, has a fixed belief that and conspiracy deprive rights. in a to him officials, all are of his facts, counsel for on these defendant moved the court Based present sanity. a “doubt” as to The to attorney declare attention that in- also called to fact defendant going once,, at he on to trial and insists that is sane. sists investigation his Lambros stated that disclosed that the doctors presently at Atascadero who had certified defendant as sane psychiatric defendant, had never had conference with the their on but had based certification statements ward doctors and inmates. prosecutor objected declaring The to a doubt present “despite sanity, as to and stated the verdict of the jury declaring presently him insane, of last always felt that is not a matter which a year, I have charged pass on.” He then that his defend- should simulating insanity requested permission pro- ant was and to A duce evidence on the issue. recess was then taken. After brought back recess the defendant was into courtroom. again He that been to see Dr. stated he had told that he was produced. be Jacobs and demanded doctor display “The defendant record then shows evidences During deputy sheriffs.” is violence, and subdued certain extremely profane and vio- became period the defendant again moved that the court Attorney then Lambros lent. and stated sanity, a “doubt” as to defendant’s declare last already described, he had the visits addition August 10, with at Atascadero defendant visited get nothing that he out and could father of castigation all on the swearing concerned but defendant rights. him of conspiring deprive his ground were he had de- visited 23, 1957, On Lambros stated nothing him get out of county jail, but could fendant Defend- Jacobs and Miller. except a see Doctors demand to conspiring him of again ant swore at and accused Lambros occasion defend- against reported that on that Lambros him. deputies. four On forcibly ant back to tank was taken attempted interview again the 25th of Lambros August, recognize him. but did not the defendant fact that is also attention Lambros called subject suffering epileptic from epilepsy, daily, is seizures lapses memory from suffers hallucinations and that he unable to consult violence. Lambros stated had been again prepare requested with his client defense, present sanity “doubt” as to his be declared. prosecutor again objected, stating that from his inves- tigation trying trial, he to stall his believed defendant hearing. for a and asked continuance point Attorney At this Lambros asked that the record show arguing all that he the time motion the right “has been his back floor to on the presently the bench in the He courtroom. restrained body leg handcuffs, restraint, deputies chain. Three are holding and have been him down.” The court di- show, rected that record so and further that the stated approval restraint exercised the court. report then The court stated that it had the from Atasca- *15 stating not dero defendant insane and persuasive any “court that that is more the feels than by the outward manifestation indicated conduct of the as court, before from court con- defendant which the cannot present this time that as to the clude at it entertains doubt testimony sanity.” made court to No reference was Attorney however, of on to state, Lambros. The court went appoint psychiatrists that it would two to examine the defend- naming appointment being them, that the made ant, n pursuant to section 1871 of the Code of Civil Procedure.2 Why judge this if the trial was done' had no doubt on the appear. issue not does hearing The was not resumed until June 1958. The
public represented defender now the defendant. This attor- ney immediately the court of moved that declare “doubt” present sanity under of section 1368 the Penal The Code. proceeded court then to take evidence issue as to present sanity whether it a doubt as entertained to requested permission defendant. The to make a being granted, statement. Permission at defendant stated length insane; some that he sane and never had been plea he involved; did commit the murders of in- implied guilt; plea of that he wished to withdraw his against will; which been entered his that he had substantially to waive a This wished trial. statement was prior similar the one the defendant on his made erroneously permitted when trial court had plea insanity. guilty his to withdraw reason (People Merkouris, Cal.2d 550-552 engaged long against then tirade present counsel, charging conniving him with fraud and with prosecution. permit court refused to the with- insanity plea. drawal proceeded The court then to take evidence on the issue as it to whether doubt as to defendant’s sanity. just great Evidence was if length, introduced the issue present sanity Eight was then before court. doctors psychiatrists called, were seven of whom testified sanity. issue of suffering Evidence was introduced that defendant was from epilepsy; granted 1954 the Veterans Bureau had per disability him a 100 disease, cent for this and that he was subject frequent grand petit mal seizures, and was taking disability. medication Dr. Frederick Hacker and Dr. M. on the Neilsen, J. both panel psychiatrists experienced and both in their provides, part, 2Section 1871 the Code Civil Procedure thereof, appear any judge “Whenever shall be made to court or civil, proceeding, either before or the trial of action or expert is, required by criminal . . that . evidence be will judge may, any party, . . . such court or on motion or on motion judge, appoint experts investigate o£ such court or and one or more testify proceeding at the trial of. such action or relative expert is, matter or which matters as to such or will be required .. *16 defendant was unequivocal opinion that their field, gave it as co unable to medically legally insane, and presently psychia fully qualified other counsel. One operate with his panel court Miller, also trist, Vernon John Dr. many times, defendant examined and who had psychiatrists, medically legally was that had testified insane and opined attorney. He with his incapable cooperating had deteriorated. defendant’s condition that in 1956 the legally was still that June, 1958, he believed As cooperate spite fact could that medically insane, but might under stress but break down counsel, his with trial. opined that defendant qualified psychiatrists was Four of these stated that believed presently sane. Several simulating insanity. One of the four ad- defendant was progressive from brain suffers that defendant mitted long standing is of and affects such disease disease he defend- but nevertheless believed behavior, ant to be sane. produced by prosecution psychiatrist was Another only presently was sane and that defendant simulating simulating he also insanity,
was but was though all the medical records and other even epilepsy, contrary. on this evidence issue were attorney repeated Lambros, former Mr. former about his and about statement relations defendant He inability cooperation. pointed his in secure out that jury during resulting in a trial verdict presently insane, then defendant was defendant had had fight gag proved prosecutor, and, with the after ineffectual quiet placed in a booth had be him, the courtroom forcibly placed therein and chained to iron defendant chair hearing. during lengthy hearing trial The attitude this weigh is evidence, to how it should this indicated certain statements made it. After three had testi doctors fied, the defense counsel called attention to the fact that simply if in the hearing was to determine there was “doubt” sane; was as to whether court’s mind appeared hearing proceeding as if the that the issue sanity; being tried were that issue was with affording issue, out the defendant a which testimony already pro entitled; he that in view the produced show duced defense had sufficient ‘‘ ’’ present sanity. there a doubt of defendant’s He moved compel the court declare that “doubt” and the de try point if fense to the issue as were proof to be burden of then decided. The court stated: “The upon you satisfaction to show Court’s whether the *17 presently insane,...” is defendant responded that the Defense counsel issue was not whether presently insane, enough but whether there was apparently agreed a evidence to create “doubt.” The court analysis. again importuned After defense counsel with this the such “doubt” court declare the court stated that “this proceeding your suggestion. Consequently, is at initiated the upon you you proof burden is to submit whatever have can so that Court determine whether or it has present sanity as to the of the defendant, doubt sufficient to ’’ require upon a trial that issue. quantum
After proof some discussion of the of required, the produced court stated it that could evaluate the evidence attorney produced until the district the evidence he de- sired, produced. and further evidence was After presented all the on the issue had been opening trial court directed the defense counsel to make an argument “upon you.” the “burden” because is purported After argument, to review the evidence issue, on the of and at conclusion that review stated that reports reports it had reviewed the doctors’ and from those preponderates “it seems that the evidence in favor of the present sanity within the it, Statute as we understand is justified entertaining feel Court cannot a doubt as present sanity meaning defendant’s within the of the Statute. from
“The Court feels the information before it and from of the defendant, the observation and as of one the doctors points out, go this having is trial anxious his case the Court does not a presented, entertain doubt within meaning of the Statute that insane and therefore the ready Court finds this case is now for trial.” demonstrates, my This record opinion, that, aas matter law, a of “doubt” existed sanity. as very On trial this ease this court held that on ‘‘ ’’
evidence much slimmer than here involved a doubt law, existed as matter that failure court trial to declare such (People “doubt” constituted reversible error. Merkouris, v. 46 page Cal.2d 540 P.2d At 552 [297 of the “Prior the commencement trial this court stated: qualified psychia the court had before affidavit itself, any equivocation, averred, without in which it was trist medically legally time insane at the the defendant alleged act was committed.” as as at the time trial, well after re quoting of the Penal Code, section 1368 After ferring court, to certain comments appears 553): “It as matter law (p. follows continued as mind of the court was, time, at that doubt that there 18, 21.) sanity. (People Ying, Ah v. Cal. to defendant’s as People 565, 568 P.2d Aparicio, v. 38 Cal.2d We said [241 sanity appears a doubt of the defendant’s ... 221], that ‘when law, an abuse as matter dis on the of the record face a determination failure to order is shown and the cretion justice miscarriage of in a question of results the a Cal.App. 223 required. (People Vester, 135 reversal is supra, Cal.App. 369 People 685]; v. West, [143 793].)’ P. concerning as “Taking the evidence court-appointed three we record, reflected see time of trial well psychiatrists him at the considered sane committed; we see time the crime was as sane *18 legally him both independent psychiatrist considered one in the medical medically This insane at both times. conflict which question fact one of to make the evidence sufficient tried____ should have been is that trial court abused its “It our conclusion dis- trying the issue of defendant’s in not cretion permitting trial in commencement of the objection plea implied counsel, of withdraw his over the of not ’’ insanity. guilty reason of a matter law of a existed as of because If “doubt” February in of as existed 1955 facts prior circumstances certainly a “doubt” as a trial, first existed matter to the following of of 1957 June 1958. The law to a factors, collectively, demonstrate this cer- considered tainty : subject epileptic The 1. fact defendant was daily seizures;
almost jury 2. The that a defendant fact had determined that 1956; was insane in pro- The 3. conduct court these ceedings, forcibly restrained; and the fact had to be that he testimony Attorney 4. Lambros he had been
694 unable to communicate with his client or to co- secure his operation preparing defense; qualified 5. testimony psychiatrists of three that, their opinion, legally medically then defendant was in- being sane, two prevented that such cooperating counsel; defendant from with his 6. The fact much slimmer evidence than court, ruled, prior has here been has produced, appeal, such evidence created a as a doubt matter law. presence In cases it has been held that the of several of these factors was sufficient to create a “doubt” aas matter (People Jackson, Cal.App.2d of law. 105 v. 811 P.2d [234 People 261]; Cal.App. Vester, v. 135 223 685]; P.2d [26; People West, Cal.App. v. 369 P. and of course [143 793] People Merkouris, Cal.2d In none all present. of these eases were of the factors here involved qualified psychiatrists opined It is true four presently testimony merely defendant was sane. But this sanity. a present created conflict on the issue of Had the before the been issue whether or was presently testimony psychiatrists sane, four of these would supported finding have a that defendant was then sane. But upon entitled, demand, defendant was a trial on that (Pen. Code, 1368.) issue. The issue of § only was not then before the court. The issue then involved present sanity. was whether “doubt” existed as to Reason- question. able minds cannot differ on the answer to that existing all of Under the facts then such “doubt” existed as matter law. aggravated The error court was further
vacillating adopted by passing standards it in on the motion. produced creating After aimed at defense counsel had mind, “doubt” the court’s “The burden stated: proof upon you is show the satisfaction Court’s ’’ That, course, whether the insane. court. That was misstatement of the issue then before the issue was not present insanity at all. The issue was whether present sanity. there existed “doubt” After this error was of the trial called attention *19 court, properly and after that stated the burden on defendant to a mind, was raise doubt in its the ex- court pressed thought the a legal that there could not exist doubt preponderated sanity. in if the evidence favor of This con- persisted very hearing. fusion until the close of the After argument by counsel, court, in making ruling, the its stated:
695
that
evidence
reports, it seems
the
“.
.
doctors’
.
from the
present
within the
preponderates in
the
favor
feel
it,
the Court cannot
as
understand
that
we
Statute
present
justified
entertaining a
as to the
in
doubt
’’
meaning
of the Statute.
the
within
Certainly
most
nature.
section
error of a
serious
This was
a
exists the evi-
require that before
“doubt”
1368 does not
present insanity.
“preponderate”
favor
must
dence
my
the trial
committed
opinion,
reasons,
For these
as to
failing to declare a doubt
error in
prejudicial
sanity.
is obvious. Under
this error was
That
entitled,
the defendant was
section 1368 of
upon
Penal Code
deprived
He
trial on this issue.
was
demand, to
right.
reversible
This constitutes
error.
fundamental
requires
addition,
In
error, alone,
reversal.
on
This
prejudicial
errors occurred.
merits,
trial on
serious
majority opinion, that the evidence
in the
true,
It is
stated
judgments.
But
is sufficient to sustain
on the merits
overwhelming.
entirely
It was
circum-
was not
sup-
an alibi which
was
he
stantial. Defendant’s defense
ported by
evidence,
as summarized
substantial evidence.
appeal,
on
disclosed that the case
in the
being
very
its
close one. That
sub-
so,
on merits was
tipped
balance,
and must be
error
well have
stantial
prejudicial.
have
considered to
been
my opinion, made
court,
several serious and
rulings
prejudicial
admission
evidence.
proper
place,
objection,
In
over
the trial court
first
admitting hearsay
defendant,
statements
some
erred in
years
killings,
before the
had threatened the de-
four to six
by
were testified to Mrs. Dulce
Those statements
cedents.
Fairly
decedents,
C. F.
mother of one
Fairly,
neighbor
police
and former
of one of
Bonk, a
officer
Clifford
Fairly
that in
and Mrs.
testified
decedents. Mr.
1954)
killings
the de-
(the
occurred
substance,
stated,
them
cedents came to
for a
live with them
while because their
to come and
wanted
lives had been
per-
Bonk
threatened Mr. Merkouris.
objection,
testify,
he,
over
mitted
City
decedents,
Forbes,
Robert
one
at the
witness, saw
going
get
that he was
Hall; that Forbes told
witness
ex-husband,
gun permit
because
wife’s
bothering them; that Forbes stated
witness
enough
desperate
to warrant
thought
he
the situation
carrying
gun;
he, Forbes,
“guy.”
was afraid
*20
objections to this evidence
it
remote,
The
were that was too
hearsay.
properly
immaterial,
court,
and was
The
while
ruling
prove
not
that the evidence was
to be received to
the
statements,
they
truth of the
ruled that
were admissible to
part
an
show the declaration of
intention on the
of the de-
future,
is,
ceased
do
act
to come and live
to show
of
Fairlys,
with
the state mind of the de-
at the time of the
ceased
statements.
cases,
material,
in some
of
course,
Of
evidence
the declarant’s state-
ment
intention
relevant and
In
admissible.
People
Alcalde,
v.