*1 16502. In Bank. Feb. [Crim. No. 1974.] PEOPLE,
THE Plaintiff and Respondent, PODDAR,
PROSENJIT Defendant and Appellant.
Counsel
Franklin under Brockway Gowdy, Court, appointment by for Supreme Defendant and Appellant. Sirbu, (Alameda),
James C. Public Defender M. Assistant Hooley, Gary Defender, as Amici Defendant Public Curiae on behalf of and Appellant. General, Hinz, Jr., J. Evelle Edward A. Chief Assistant Attorney Younger, General, James, General, E. Assistant Robert Attorney William Attorney Uebel, General, R. Granucci Karl J. for Plaintiff and Deputy Attorneys Respondent.
Opinion the murder information WRIGHT, C. J. Defendant was by charged not Code, 187.) guilty He (Pen. pleaded of Tatiana Tarasoff. (Tanya) § of guilty A returned a verdict reason of insanity. and not guilty by the com time of at the defendant sane and found second murder degree «the term state pre sentenced to of the crime. He was prison mission scribed law. court erred that the trial
Defendant’s appeal principal complaint (CALJIC No. instructions. murder malice-second in giving implied and, even were instructions 8.31.)1 proper that the contend stated below for reasons conclude We were not if prejudicial. improper, instructions requested that the court erred refusing give *4 as an element to implied to the effect of diminished capacity relating con- case we this the facts of Under particular second murder. result that a it is reasonably of the error probable clude that in absence and the judgment, been reached would have to defendant more favorable be reversed. must accordingly,
Defendant was (“untouchable”) born into the caste in Harijan Bengal, India. He came to the of California at Berkeley University campus student in and resided at the International House. graduate September In fall of he attended folk at the classes International dancing House, and it was each weekly there he met saw other Tanya. They fall, in- and on New Year’s she kissed defendant. He throughout Eve the act be a serious relation- to existence of recognition terpreted who, his This view was not shared by Tanya learning feelings, ship. upon and indicated told him that she was involved with other men otherwise with that she was not interested in into an intimate entering relationship him.
As a emotional crisis. result this rebuff defendant underwent severe studies and his his his He became and neglected appearance, depressed himself, and often health. He remained by disjointedly weeping. speaking deterioration, with steady throughout spring This condition persisted, meetings Defendant did have occasional and into summer of 1969. their conver- recorded various of this with Tanya during period tape love him. ascertain she did not why sations in an to attempt America. After her went to South Tanya summer During (rev. ed. Jury to “CALJIC” are to California Instructions—Criminal 1A11references 1970). designations have reference indicated all numbered Unless otherwise CALJIC instructions. defendant at the of a friend departure began suggestion improve,and returned, October, de- assistance. In after had sought psychological Tanya fendant his The latter then wrote to seeing campus stopped psychologist. that, was from them in his defendant alerting suffering para- police opinion, recommended that noid acute and severe. The schizophrenia, psychologist defendant committed as a civilly dangerous person. 27, 1969, with home to Tanya’s
On October defendant went speak home, her told him to leave. Defendant her. was not at mother She knife, later, returned and a and found armed with gun kitchen pellet him, she alone. She refused to and when he Tanya speak persisted, screamed. At this defendant her with the She ran shot point gun. pellet house, stabbed by and fatally pursued, caught repeatedly defendant. He then returned to home and called the Tanya’s police. three of a defense of diminished produced support that defendant was a and one who testified para- psychiatrists psychologist at the noid who could not have harbored malice aforethought schizophrenic testimony time of the introduced court-appointed killing. and could schizoid merely who testified that defendant was psychiatrist murder. mental states of first or second degree harbor requisite *5 trial court instructed the as jury to several it might possible findings the make on basis of the 8.77, evidence It read to the presented.2 jury that which diminished could provides of the capacity negate any states, mental malice a including to of aforethought, necessary finding murder in the first or second degree.3
areWe here concerned those instructions particularly relating second murder. The court instructed such murder both when degree is and and malice further instruction which de express4 implied,5 gave-a alia; (8.20), degree degree (8.30, 2Inter in the first murder in second murder the 8.31), (8.40) voluntáry manslaughter manslaughter (8.45). involuntary and Also, pertinent part: you 3 8.77 reads in “. . if that . . . find . [defendant’s] capacity you mental was diminished to the a doubt whether extent that have reasonable aforethought, you guilty he did harbor malice the cannot find him of murder of either degree.” first or second capacity The court also instructed in terms of 8.41 8.48 that the diminished negate might finding voluntary involuntary manslaughter. defense either a of or degree killing being 4“Murder of second a is the unlawful of human with malice being unlawfully when there is manifested an intention kill a human (8.30.) premeditation.” but the evidence is insufficient to establish deliberation degree killing being 5“Murder the second a of is the unlawful of a human as direct death, involving high degree causal result of an act it in probability of that will result
755 .6 which instruction was malice consistent terms No given fined in impfied in defense to the malice related the diminished impfied explicitly capacity noted, malice that structions as court instructed generally although, be of diminished may negated by finding capacity. in malice
Defendant attacks the of impfied propriety giving first, (8.31) two struction in context with related instructions on grounds: from a instructions do not from malice preclude implying act; sec act which was itself an mortal dangerous integral part ond, defense the diminished instructions weakened severely may that failed to advise that a diminished they in adequately malice. specifically negate impfied that the on the
Defendant’s first attack on 8.31
assumption
predicated
instruction is the functional
second
equiva
degree murder-implied
instruction.7 He
in
case
a second
felony-murder
lent of 8.32
degree
8.32, suffers
that
of its
similarity
8.31
view
argues
necessarily,
have held 8.32 to
the same defect as the latter instruction. We
improper
is “included in
within
the instruction is based on a
which
felony
where
fact
522,
(1969)
Cal.2d
the offense
v. Ireland
charged.”
also
A.L.R.3d
see
Cal.Rptr.
P.2d
22].) Defendant
(1969)
Wilson
in terms of
purported
*6
the
rule allows
felony-murder
assault with a
deadly
being
weapon.
of an
committing
murder from the
of malice as an element of
implication
(1965) 63 Cal.2d
(People v. Williams
inherently dangerous felony
disregard for human
with wanton
purpose
act
for a
antisocial
which
life.
is done
base
act,
necessary
killing
is not
...
[to
result of such an
it
“When the
is the direct
(8.31.)
intent to cause death].”
establish
involving
high
of
killing
an act
a
implied
the
results from
6“Malice is
when
death,
base,
purpose
antisocial
act is
for a
that it
result in
done
probability
will
(8.11.)
disregard
a wanton
for human life.”
and with
7
causal
being
as the direct
killing
. . which occurs
“The unlawful
of
human
.
inherently dangerous
felony
attempt
to commit a
result of the commission of or the
specific intent
perpetrator
of
the
life . . . where there was in the mind
human
(8.32.)
crime,
degree.”
is murder in the second
to commit such
7,
406 P.2d
People
Phillips (1966)
v.
130].) This was in characterization of the felony- our conformity murder strict liability doctrine as a artificial criminal highly concept of its and as" doctrine to be construed as narrowly light possible a. of felonies. deterring negligent killings during purpose perpetration 574; People Washington, supra, Phillips, supra, v. Cal.2d 111.)8 62 Cal.2d turn now-to defendant’s that 8.31 is functionally
We contention equiva- are lent to and suffers from the same defect as 8.32. The two instructions attention on an act other similar in some both focus the jury’s respects: of murder than the homicide to find an element necessary finding act with are couched in which defines both language operative reference to to human life. danger is, however, between the crucial and distinction
here
one
controlling
Under the 8.32 instruction
two situations
the instructions.
governed
has been found
felony
once the intentional commission of
underlying
Under
be made in order to convict of murder.
no further
need
findings
had
instruction, however,
act
the mere
underlying
8.31
finding
that the act
it must be further found
been committed
not enough;
“base,
(supra,
for life”
done for a
antisocial
with wanton disregard
purpose
the con
5)—that is,
order to warrant
with malice aforethought—in
fns.
act which
malice arises out of an
viction. Thus even though
implied
homicide,
an independent
is an integral part
situation,
malice,
nevertheless made.
the Ireland
must
unlike
standard of
reflects the statutory
of 8.31
language
construing
narrowly
policy
*7
Ireland and the
8We have continued to adhere to
Wilson,
431; People
supra,
(People
1 Cal.3d
scope
felony-murder
v.
doctrine.
847];
711,
People
(1970)
v. Satchell
Cal.Rptr.
2
465 P.2d
v. Sears
Cal.3d 180 [84
383];
also,
1361,
33,
(1971)
see
Cal.Rptr.
489
50 A.L.R.3d
757 set out in Penal Code . . . when section 188: ... implied “[Malice] the circumstances show an abandoned and attending malignant killing heart.” The “abandoned and has been construed heart” phrase malignant base, to be that state of antisocial mind the defendant for pur “[w]here does an act which that it will involves pose, high degree probability 1], result (People (1953) in death” v. Thomas 41 470 P.2d Cal.2d [261 (People J. life v. Traynor, with wanton for human concurring) disregard Washington, supra, 782). been 62 Cal.2d at this state of mind has When p. found to exist then acted with defendant has malice. specifically it Thus is clear that an does not instruction in 8.31 language remove the and does not involve the malice from question jury conclude, that in condemned in Ireland. “bootstrapping” accordingly, We infra), the absence of (see other circumstances 8.31 pertinent properly states the law where the assault is an applicable underlying integral part of the resultant homicide.9
Our that as that 8.31 does not suffer from the same defect holding not, however, found in 8.32 does insulate the instruction from attack as on the that it fails to relate the determi being inadequate ground properly nation of malice to evidence of diminished offered capacity the existence that 8.31 in con of such mahce. Defendant contends negate with other and omitted instructions his dimin junction given weakened ished defense resulted in error. and prejudicial
Evidence of diminished
may
the existence of a
negate
mental state essential to
(People
commission of an offense
v.
Conley (1966)
310,
64 Cal.2d
316
911]),
P.2d
411
Cal.Rptr.
[49
the existence of
including
(1949)
v. Wells
33
53]).
Cal.2d 330
P.2d
The use of such evidence is
[202
relevant to
both
of whether the offense
question
was murder in the first or second
manslaughter
(id.) and the
of whether the offense was murder or
question
ople
v.
(Pe
(1959)
Gorshen
758
short,
677]).
any
or
In
in
situation where malice
any
order to find
charged
other
mental state must be established in
offense,
to negate
included
be used
may
or
evidence of diminished in
to an
its
such evidence
the accused is entitled
existence.
exists
When
exist
of its
indicates
effect which a finding
which
the full
clearly
struction
and included
bear
a crucial mental element
may
charged
ence
379, 461
(People
(1969)
Mosher
Our in the instant case is inquiry directed to the particularly propriety of the jury’s of in malice evidence of diminished finding implied light above, alia, As noted malice is inter capacity.11 a finding, implied that an accused acted with (People “wanton life.” v. human disregard Washington, supra, 782.) 62 Cal.2d at find order to “wanton p. it that his disregard” duty must be shown the accused was both aware of to act within the law and acted in to cause death or serious likely a manner 310, Conley, injury supra, such awareness. v. 64 Cal.2d despite 322.) effect, bears on malice accordingly, which a diminished capacity second in a case is relevant to two malice degree questions: murder-implied First, duty was because of accused a diminished unaware course, is, act within A the law the law? to know person presumed Second, the accused another. even that prohibits injuring assuming he, law, aware of was of a dimin was this to act within the because duty (See People that v. ished unable to act in accordance with capacity, duty? 1256]; People (1973) Cantrell 8 Cal.3d P.2d Cal.Rptr. [105 1009].)12 441, 487 P.2d (1971) v. Noah 5 Cal.3d Cal.Rptr. [96 accused, a diminished ca it that an he suffered If is established because law, malice or unable accordance with the unaware of to act in pacity, he could not offense for which could be found the maximum properly convicted be voluntary manslaughter. be would case that there was significant
The record discloses in the instant
evidence
Almost all of
evidence
defendant’s diminished capacity.
(See
v.
longer per
reversible
failure
so
no
se
error.
10The
instruct
ante,
913].)
(1974)
page
Sedeno
pre
and we must
compelling
express
evidence of
11The record discloses no
have
based on
sume that the
second
could
been
verdict of
murder
all,
verdict, accordingly,
justified,
propriety
if at
on the
malice.
must
finding.
such a
change
impulse is not
way
previous
rule that irresistible
imply
12We
no
Gorshen,
716, 726;
supra,
(See People v.
51 Cal.2d
complete
a
People
defense
a crime.
992].)
impulse
(1936)
Walter
irresistible
Malice is when a properly implied from an act involv- killing resulting a ing high degree death probability by accompanied requisite mental element. The to a process of that element properly leading First, three requires determinations. was the act or acts done for Gruberg, 13Dr. Kermit psychiatrist by Berkeley a employed Department, Police testified for the killing. defense that he had examined defendant within 24 hours of the opinion In his paranoid schizophrenia suffered from and was not capable of meaningful” “mature and killing reflection on nature of act in his the deceased. The doctor further testified understanding that the defendant’s" duty placed upon by him severely by Gold, the law was impaired his illness. Dr. Stuart a defense psychiatrist, testified that he had occasion to examine defendant when defendant sought psychiatric aid from the student opinion health In his clinic. defendant was who, paranoid a could not have schizophrenic deceased, psychotic because of his delusions about doing understood “. . what thinking . he was and what he about was taking Grossi, in terms of her life.” Philip psychiatrist, Dr. A. a defense had examined extensively. defendant phrenic He also testified that the a paranoid defendant was schizo who lacked the duty to understand placed upon that the law him Moore, not to kill person. another psychologist gave Dr. Lawrence university, at the substantially defense. on organic testimony identical as in the case of the three psychiatrists.called Anderson, defense, neurologist Dr. Wilmer M. called testified that tests, neurological including the basis of electroencephalogram, an there were Peschau, abnormalities in defendant’s psychiatrist appointed brain. Dr. lohn court, by the testified paranoid that defendant schizophrenic was not a and that he duty could understand placed that the law upon him. Second, base, duty aware of the accused antisocial purpose? risk of grave him not to acts which involve the commit imposed upon Third, so, first act that awareness? The or if did he death? injury despite *10 in with the definition accordance determination expressly required rela- malice, and third determinations are and second required implied the defi- also in accordance tive to of “wanton disregard” question 6, order to (8.11, supra.) malice. fn. make proper nition of implied three of must all the foregoing inquiries malice finding evidence of a diminished answered in the affirmative and as to each inquiry case in the instant the balance. The jurors must be in weighed capacity with- malice told that diminished could negate implied were only capacity each essential element that such defense could out advised being negate malice. which must be found to implied prior we are of the view that Although an instruction instructions ideally or should have been given evidence of diminished making spe- capacity cifically to each of the three elements of the mental state deter- applicable mination, we do not deem it error to have instructed only in generally absence of a for (See People the more instructions. v. request specific (1967) 156, Wilson 66 Cal.2d People 749 427 P.2d Cal.Rptr. [59 v. (1959) Wade 116].) Cal.2d 322 More- over, determination, as to the first whether the act or acts were done base, antisocial the instructions well be deemed purpose, might specifi- sufficient as the were twice this was cally jurors instructed that expressly 8.11, 5, 6, (8.31, supra), an element of that they malice fns. implied must consider evidence of diminished in malice. capacity finding implied
The record does not disclose that defendant an instruction requested to the of evidence of diminished specifically relating capacity applicability did, however, as to the first instructions determination. He such request third He two based to second and determinations. instructions proposed 324-325, Conley, in terms supra, v. 64 Cal.2d spoke his law and a ability which the to conform duty person’s imposed however, court, to refused give conduct to that duty. comprehended Furthermore, that were advised these or not jurors similar instructions. malice, an aware- as an consisted of “wanton element disregard,” the commission of pro- law followed duty by ness imposed told At they that no time were act awareness. specifically despite scribed to the directly that the of diminished was evidence capacity applicable he act within that must defendant was both aware of whether questions these law, such The resolution that he acted awareness. despite defendant’s voluminous issues, moreover, and thrust of involved the focus thus failed The instructions given diminished evidence of capacity. serve the needs of the the evidence understand jurors properly apply of diminished issues. result was the jury underlying could have found to evidence malice without giving weight pre- proper defense, sented its refusal to of a crucial and the court erred support instruct (1951) in more terms. Carmen Cal.2d 281].) P.2d De little that the error We have difficulty concluding prejudicial. was, to have entertained fendant’s his failure whole defense essentially, the crimes or charged mental elements of necessary intents which were over was almost included in the was introduced which Evidence charges. lacked of diminished by reason whelming *11 the conclude the case we that Under the facts of instant aforethought. that result more favorable absence the error it is reasonably probable Cal.2d (1956) 46 to would v. Watson defendant have been reached. P.2d 243].) 836 [299 As the foregoing error that the prejudicial be reversed judgment requires and the cause be remanded retrial it is not that necessary we resolve comment, defendant’s contentions. deem it how- remaining We proper ever, retrial, for the the guidance and court in the event of a parties as to defendant’s that contention the court erred in in- prejudicially giving structions on heat of voluntary based on sudden or manslaughter quarrel 8.42, (8.41, 8.43, 8.44.) passion. the
Defendant contends that record fails to any possible support Code, (Pen. based on circumstances manslaughter statutory mitigating 192), and that § because instructions directed the jurors specifically standard, to measure defendant’s conduct an objective they against prejudi- conflicted with diminished that cially instructions on requiring capacity defendant be judged subjectively.
We that on the agree record of this there is no sufficient evidence appeal that defendant’s conduct result of a sudden or heat of quarrel pas- and, sion in the absence defendant for an by instruction request thereon, it was error to (See so instruct. (1954) v. Jackson 42 Cal.2d P.2d People v. (1970) Nunez Cal.App.3d 707].) We do not intend to that on a different imply showing retrial defendant is such precluded a defense. asserting He would that event be entitled to instructions proper thereon. is reversed. judgment
Tobriner, J., Mosk, J., Burke, J., Sullivan, J., and concurred.
DRAPER, J.* I dissent. of the scope
The instructions informed jury given adequately no “there is defense of diminished was informed jury capacity. diminished that due to if . . . evidence shows malice aforethought the defendant ... (or) caused mental illness mental defect by capacity malice constituting the mental state did not have the attain intentional, be voluntary, premedi- even though killing aforethought manslaughter also defined involuntary The court tated and unprovoked.” an without and without malice “the of a human killing being unlawful if to kill or intent is no There intent to kill .... did not have . . . reason diminished an intent to form malice aforethought to harbor mental capacity kill.” instructions, of these I cannot misled believe the would light is “the direct causal result instruction malice if killing implying death,
of an act that it will result in high involving probability base, with wanton disregard act is done for antisocial purpose the “wanton for human life.” the “base antisocial Clearly, *12 purpose” the defendant. for life” to the state of mind of human relate disregard solely determined, Yet, if diminution of had been adequate anti- was “base and a less one which could have much hardly “purpose,” social,” life be “wanton.” his for human nor could disregard
The does majority set out the opinion by instructions not requested them, As defendant. I read the states strongest may only instructed, as the in definition court fact the merely inserting of the act of is able to violence the “committed who by phrase person that the law is to such an act and who able comprehend prohibits compre hend his re to conform his conduct to such This obligation prohibition.” q does not reach the the refinement majority, three-step proposed by uest nor does it add the instructions actually of to anything significance given. is no be refined or modi There instruction which cannot any subject upon to its the taste of some fied and ramifications to expand upon qualifications Instructions, however, de the not to give scholar of law. are designed the to course, laymen, tailed law but to instruct lay language, them, issues are to determine. they upon development fact Expansion issue, the within their to the facts in fall of detailed properly application counsel, the court. by of rather than instruction by field argument *Assigned by of the Judicial Council. the Chairman for Reversal only misdirection of be made if error may com VI, of has Const., resulted plained (Cal. in a of art. miscarriage justice. 13.) I cannot find § such a finds issue the deter miscarriage. majority minative raised but by his contention that the appellant peripherally instruction (CALJIC 8.31) defect given No. suffers found in 8.32 Ireland, 70 Cal.2d 1323]), Moreover, A.L.R.3d contention the majority rejects. himself did not find in the denial a new trial. appellant prejudice District, Four, Court of First Appeal, Division reduced conviction to one of manslaughter. The Attorney General in this hearing petitioned court, and stated that the Court of decision appellant’s opposition Appeal Nevertheless, “is sound just one.” this court now remands the issue for new trial.
The reversal will extended trial days time—some 17 were con- require Moreover, in the sumed trial it on the not will present plea guilty. require reversal of an untold number cases tried and now already pending cases, retrial of all those absence definitive instruc- appeal. Upon tion in will majority lead predictably varying language opinion choices several trial courts in to meet seeking requirements thus and still majority further holding, leading diversity opinion this decisions court to settle what meets the technical language precisely course, semantic standards here Of this burden would be readily espoused. above, if As I cannot such out find prejudice shouldered appeared. pointed here. prejudice would, most,
I at reduce the conviction to and as manslaughter, one of reduced, so affirm conviction.
McComb, J., concurred. March was denied 1974. rehearing petition
Respondent’s McComb, J., should Clark, J., were opinion petition be granted.