*1 Dist., Div. No. Second Four. Apr. [Grim. 1978.] PEOPLE, THE Plaintiff and Respondent, STEVENSON,
THEODORE Defendant and Appellant.
Counsel Halvonik, Defender, State Public under
Paul the Court appointment by Sevilla, Defender, Charles Chief Assistant State M. Public Appeal, Curtis, Defender, A. State Public and Richard for Defendant Deputy and Appellant. General, Winkler, Jack
Evelle R. Chief Assistant J. Younger, Attorney General, Moore, General, S. Freder- Clark Assistant Attorney Attorney Jr., Millar, Jr., T. Paul C. Ament and Edward ick R. Deputy Fogel, General, for Plaintiff Respondent. Attorneys
Opinion trial, BIGELOW, J. * In a defendant was convicted as follows: jury I, on count which assault with a Guilty charged deadly weapon murder, Samuel Willis with intent to commit in violation of section 217 Code; II, of the Penal on count which an assault with charged deadly Reid, on William of a with weapon guilty possession deadly weapon Reid, intent to commit an assault on William in violation of section 467 of the Penal Code, lesser and within included offense that necessarily An use of a firearm II in count was charged. allegation charged found be to true. Before the true, trial defendant admitted as two convictions as in the information. prior felony Defendant was alleged sentenced to state I II, on count and to on count prison jail county sentences run the trial court’s corrected concurrently. sentencing, minute order recites that it “finds that two were admitted are priors considered for sentence and and that use “the as to judgment” allegation has two been found to be true.” We reverse.
Defendant’s contentions on this are in nature. appeal procedural Therefore, we limit our recital of the facts to those necessary our understanding holdings.
Shooting and Assault Incidents The case for the was as follows: Just between past midnight, 12:25 and a.m. 12:45 a.m. on October defendant and Willis had a over defendant’s claim that Willis had dispute misappropriated set. Willis, television Defendant fired three shots from his at pistol hitting Defendant, him twice. a friend named Parker and William and Connie Reid drove drive, all from the scene in the same car. away During defendant his at William Reid and told him not talk to pointed pistol about had what police just happened. of the Judicial by Council.
*Assigned Chairperson of Defendant’s
Evidence Drinking and Intoxication called as a witness testified cross- Ruby Briggs, People, and its intoxicat- examination as to defendant’s scotch drinking whiskey and assault and after the effect on him before immediately shooting ing incidents described. just Reid first defendant, and William and Connie Parker
She testified that October before about 11:40 came to her p.m. just midnight, apartment them an with about 45 minutes. They brought They stayed All five Label Walker Red scotch fifth whiskey. Johnny unopened bottle, half when which was had some scotch out of this empty persons from a six-ounce left about 12:25 a.m. Defendant was glass drinking they fill his three inches tall. She which was three to four saw glass defendant, When times or She defendant drink bit.” more. saw “quite were all Parker and the Reids left they jolly. later, defendant, Parker and Connie Reid
Fifteen to minutes twenty came back to The above described shooting Ruby Briggs’ apartment. of time. assault incidents had taken this short interval place during that defendant for the half bottle of testified asked Ruby empty Briggs a few minutes scotch which he had left there at her whiskey apartment when he himself a stiff drink. She noticed first earlier good poured “looked like he had been came back to her that defendant apartment under looked of “like he was kind of and also sort drinking” of a little alcohol.” influence
Jury on Diminished Instructions
Capacity to Intoxication Due (dimin- CALJIC ed. (rev. 1976) No. 8.771 The defendant requested malice, deliberate, or harbor ished premeditate, capacity—ability 1 CALJIC instruction No. 8.77 reads: committed, crime was “If from the evidence that at the time the alleged find you *7 illness, whether caused mental mental defendant had reduced substantially capacity, effect, intoxication, cause, defect, what if this any, must consider mental or other you any mental to form any specific diminished had on the defendant’s ability capacity manslaughter. of murder and voluntary states that are essential elements to the extent “Thus, was diminished defendant’s mental if find that the capacity you did, and meaningfully, whether he maturely that have a reasonable doubt you act, deliberate, or form an of his contemplated and reflect the upon gravity premeditate, the Instead, trial to trial intend to which the court refused kill), give. 4.212 CALJIC relevant to court No. intoxication—when (voluntary gave it to its the in intent) by limiting application charge specific modifying count I “assault with a the intent to commit with deadly weapon murder” and to further its the intent to limiting application specific “commit The then CALJIC murder.” trial court also No. 4.20 gave a the intoxication—not as to ofíense defense) (voluntary charged II with a (assault victim William Reid). alleged deadly weapon upon Also CALJIC No. of was 17:10 lesser included (conviction offense) which listed of with “having possession deadly weapons attempt [s/c] [i/c] assault, to commit in violation of Code” section Penal as one of the lesser offenses included I in counts and II.
The instructions to this which were the pertinent appeal given defining crimes were CALJIC Nos. 9.01 intent (assault with to commit charged 9.03 a (assault with and an murder), deadly weapon) adequate special instruction of a with intent to assault defining possession deadly weapon Code, addition, another a (Pen. misdemeanor. CALJIC 467), § Nos. 8.10 and 8.11 (murder—defined) (“malice were aforethought”—defined) given.
intent to of the first degree. that constituting either unlawfully murder him not to commit acts which did act commit acts which involve the risk of despite anti-social intoxication, his mental malice committed, “Also, if “[If “[Further, “Furthermore, you you despite that of aforethought kill, have a reasonable either the first purpose, to you have a reasonable doubt you cannot awareness, you if akill human that you find that the cannot find him if express awareness, have a or you nor had an you find [2] capacity or second degree. or find that as a whether reasonable doubt whether his cannot find that him being, implied defendant’s mental doubt involve you guilty was diminished to the extent that he neither harbored guilty cannot find that he harbored or intent he whether he malice [2] of either [1] grave was aware of the of whether he risk whether he was able to result of mental he wilful, aforethought, you [1] injury kill at harbored implied malice.] murder grave capacity was deliberate and or was injury able death, or aware voluntary manslaughter.” was diminished duty imposed time the to form the mental states acts or illness, or cannot find him' express malice.] of death, [3] were premeditated murder whether alleged form an intention mental duty imposed or whether he done for a [3] to him crime he did act defect, guilty not extent base, was on of or 2 CALJICinstruction No. 4.21 reads: ... crime ... Count “In the of which the defendant is accused [in information], element is the existence in the mind of the defendant of the necessary intent to .... specific “If the evidence shows that the defendant was intoxicated at the time of alleged offense, the should consider his state of intoxication if defendant had determining such intent. specific “If all the have a from evidence reasonable doubt whether was you defendant capable intent, such must of that doubt forming benefit specific you give find that he did not have such intent.” specific *8 a the court should have
The defendant contends that trial given CALJIC CALJIC and No. modified version of No. 8.77 as requested, mental state to form 3.353 (diminished specific [Wells-Gorshen capacity 4.21, I, and that CALJIC CALJIC No. all as to count instead of rule]) not intoxication—not a should have been No. 4.20 defense) (voluntary II a the of as to lesser included offense possession given with intent to commit an assault intent (i.e., deadly weapon specific 3.35, CALJIC and instead should have No. crime) given supra, We to diminished to form such intent. Adding agree. capacity specific CALJIC intent was in full. Its (how these errors No. 3.344 is shown) defendant the that must assume that the second tells they paragraph The note” to conduct. “use was of sound mind at the time of his alleged in a CALJIC No. warns not to the second 3.34 specific give paragraph and cites the if there of diminished intent crime is evidence capacity CALJIC reader to Nos. 3.35 8.77.
Sufficiency of Evidence Require Diminished Intoxication to Capacity Instructions that defense of diminished “It is now well established the is relevant as a result of intoxication ... prove voluntary capacity to commit the intent defendant was of forming specific incapable 310, 316-319 64 Cal.2d (1966) crime v. (See Conley charged. ....)” Spaniel (People 202].) course, the trial must, of be threshold determination
There intoxication to that is sufficient evidence of court there giving require with a crime charged “When a defendant is reads: No. 3.35 3 CALJIC instruction in order to state be established intent or mental a certain that specific which requires crime, consideration all evidence into must take you the crime or degree constitute committed, if, was the crime at time when allegedly therefrom and determine condition, however mental or some abnormal physical was from defendant suffering or state essential caused, intent mental him from forming specific which prevented If from all the which he is of crime with charged. crime or degree [H] constitute the such forming defendant was a reasonable doubt whether capable have evidence you state, doubt and find the benefit of that must mental give intent or you specific state.” intent or mental he did not have such that specific the circumstances purposes the time of information.]” the soundness of 4 CALJIC instruction of the case on his alleged attending mind and discretion conduct No. 3.34 reads: trial, you which, act, must assume that the the manner which it is “The intent with charged, person constituted committing which an act is done is shown by defendant was of it is done, the crime the act. the means described in the sound mind at [1] used, [For
985 of diminished instructions. v. Poddar 10 Cal.3d (1974) capacity (People 910, 750 518 P.2d “It has been held that 342].) Cal.Rptr. [111 merely that the defendant consumed some alcohol to commission showing prior of the crime without the effect of the alcohol himon is not showing sufficient to warrant an instruction on diminished when capacity [even 528...)” Bandhauer, 524, v. 66 Cal.2d requested (People defendant]. (Pe 287, 705, v. Carr 8 Cal.3d 294 (1972) 502 ople Cal.Rptr. [104 P.2d It has even been held that 513] (consumption marijuana).) “[t]he fact that a defendant has been without evidence that he drinking, became intoxicated no basis for an instruction on thereby, provides intoxication.” 539, v. Mills 73 (1977) 544 (People Cal.App.3d [140 no sua on trial court re Cal.Rptr. (holding 803] sponte duty “proverbial of beers’ ”).) ‘couple
When such an
defendant,
instruction is
the trial
requested by
task is
different
from that
for sua
judge’s
quite
required
sponte
instructions.
instruction,
defendant
the court knows
By
requesting
that the defendant is
on that defense.
then
Its
focuses on
relying
inquiry
of such evidence.
“It is well
if
settled that
sufficiency
defendant
an instruction it must be
if there is
requests
any
evidence on that issue
consideration whatsoever...
(see
deserving
any
Tidwell,
82,
v.
3 Cal.3d
86 . .
.”.
v.
29
(1972)
People
(People
Vasquez
81, 88
Even where there is
181].)
Cal.App.3d
Cal.Rptr.
conflicting
[105
“
issue,
evidence on this
nevertheless the law
that
requires
‘[h]owever
incredible the
he
be
is entitled to an
testimony
may
” (Italics
instruction based
that it is
true’
in
upon
hypothesis
entirely
722,
225,
v. Modesto
59 Cal.2d
729
(1963)
original.) (People
Cal.Rptr.
[31
382 P.2d 33],
on another unrelated
v. Morse
disapproved
point
People
631,
60
201,
Cal.2d
(1964)
648-649
388 P.2d
12A.L.R.3d
Cal.Rptr.
[36
but
810],
reaffirmed on this
v. Sedeno
10
(1974)
proposition
People
Cal.3d
720
518
913];
P.2d
v.
Cal.Rptr.
[112
People Vasquez, supra,
The fact that the trial was of the that the evidence judge opinion of defendant’s intoxication was of consideration because he deserving an instruction intoxication, on gave is entitled to some voluntaiy weight v. 81; 29 appeal. v. Bowen (People Vasquez, supra, Cal.App.3d People 498].) In the case of the evidence consisted of Vasquez, supra, of the defendant that he was “kind of and “kind of testimony high” loaded.” evidence came other from Conflicting contradictory held that the defendant had introduced evidence of
witnesses. That court consideration to the of instructions on intoxication as worthy giving intoxication, at *10 due to the case diminished capacity voluntary bar, the evidence of defendant’s intoxication came from an independent called the the commission of a and witness by People prove separate offense of a sexual nature. testified against independent Ruby Briggs defendant on that her defendant’s charge, giving testimony regarding evidence, intoxication cross-examination. We hold that such during upon instruction, defendant’s for diminished was suffi- request capacity cient to warrant full and instructions giving proper, complete thereon.
Such failure to so instruct on
material
every
presented by
question
82, 86
v. Tidwell
3 Cal.3d
(see
(1970)
evidence is error
[89
se since
473 P.2d
and the error is
748])
per
prejudicial
Cal.Rptr.
denied a
trial on all the issues
is
thereby
presented
appellant
Tidwell,
Multiple Specific Intents and
Mental
States
the existence of
“Evidence of diminished capacity may negate
[citation],
mental
to the commission of an offense
state essential
specific
short, in
the existence malice aforethought
including
[citation]....
or
other
mental
situation where malice aforethought
any
specific
any
offense,
find a
included
must be established in order to
or
state
charged
diminished
its existence.
be used to
evidence of
negate
capacity may
which
When
evidence exists the accused is entitled to an instruction
such
indicates the full effect which a
of its existence
bear
clearly
finding
may
on a crucial mental element of the
and included offenses.
charged
Poddar,
10 Cal.3d
757-758.)
(People
supra,
[Citations.]”
Code,
(Pen.
with intent to commit murder
In the crime of assault
I,
intents and mental states involved
217)
§
specific
charged
murder;
intent to
kill a human
are:
intent to commit
(1)
(2)
unlawfully
The “murder”
the mental state of malice
(3)
aforethought.
being;
intend,
which defendant must
be murder of the second
need
degree.
only
Therefore,
P.2d
v. Bernard
Assault intent to commit in viola- voluntary manslaughter tion of Penal Code 221 a section is lesser included offense in the crime of assault with intent to commit murder. v. Moles (People Therefore, modified 226].) versions of CALJIC No. 8.37 and No. 8.41 defined) (manslaughter (voluntary of malice due to diminished should be manslaughter—absence capacity) CALJIC No. 17.10 (conviction lesser included should given. offense) modified to be include assault with intent to commit man- voluntary *11 as a lesser included offense to assault with intent to slaughter commit murder in count I.
In the trial 4.21, court’s of CALJIC No. it giving erroneously limited the of diminished due to intoxica- application capacity voluntary tion to the intent Instead, “commit murder.” single in specific event of a retrial bar, of the at case a modified version of CALJIC No. 8.77 should be the effect of diminished given, due to covering capacity intoxication on the intents to commit voluntary murder and to specific kill a human as well as the unlawfully mental state of being specific malice aforethought.
CALJIC No. 3.35 (Wells-Gorshen rule) diminished capacity due to a intoxication is (see instruction voluntary proper 262 886-887) is to be used instead Spaniel, supra, CALJIC No. 4.21. The latter uses that “. .. should language jury consider his state of intoxication in if defendant had such determining intent.” CALJIC No. 3.35 tells the “.. . must specific language you take all the evidence into consideration ....” in such a making (Italics determination. added in both instructions.) This mandatory with the CALJIC No. 2.90 instruction on language comports proof a reasonable doubt as to beyond defendant’s The not guilt. jury may believe the defense evidence on diminished but it must take it capacity, into consideration in its deliberations if the defendant is to have a fair trial on all the issues raised.
Lesser Included Offense With
Specific Intent Defendant was convicted of the lesser included offense in count II of of a with intent to commit an assault on possession deadly weapon
988
another, a misdemeanor in violation of Penal Code section 467. The trial CALJIC court No. 4.20 intoxication—not a as defense) gave (voluntary II a to the offense of assault with violation of deadly weapon Penal Code section subdivision This offense is (a). general charged crime; intent diminished has no effect on the intent capacity general CALJIC No. 4.20 does to it. v. Hood Cal.3d apply (People CALJIC have been 462 P.2d No. 4.20 should 370].) included offenses which were limited the main and to the lesser charge CALJIC should intent crimes. No. 3.35 on diminished capacity general the lesser offense of Penal Code section have been as to violating of a defense to the lesser Since defendant was thus deprived of, conviction also. included he was convicted we reverse that offense Finding Use Firearm The as and entered reflected judgment pronounced jury’s finding a firearm in use of connection with count II. Since defendant was convicted of the misdemeanor offense of violation of section only *12 Code, the Penal which is not an to which section 12022.5 offense applies, that was error. The concede that the must be modified People judgment that reference. by striking
Admitting
Two Prior Convictions
contends,
concede,
and
Defendant
that defendant was not
People
re
Other Contentions at this we have reversing by disposed appeal Although point a retrial. in the event of should be clarified entire other points judgment, William Reid testified for The witness 1. Denial cross-examination. of and He died before trial his at the hearing. People preliminary defendant at admitted at the was against hearing testimony preliminary he denied full and Defendant’s contention that was the trial. complete is not borne out of Reid at the cross-examination hearing preliminary and is without merit. thereof this contention transcript
989 conviction. The hearsay Impeachment declarant—prior felony of Samuel witness Willis testified for the at the preliminary People hearing. He also died before trial his at the testimony preliminary hearing was admitted defendant at Defendant trial. to against sought introduce evidence of a of conviction declarant felony prior hearsay Willis in Code, order to his (Evid. 1202 and 788.) §§ impeach testimony. Defense counsel a record of a conviction in 1958 in Los produced felony for theft named “Samuel Willet” with County Angeles grand person the same birth date as Willis. The trial notice of court took this judicial record. While first authentication of the to be that of record discussing declarant, the trial matter court cut further consideration that off that under the set out in 6 (1972) v. by ruling guidelines People Beagle 313, Cal.3d 441 P.2d 492 conviction 1], [99 Cal.Rptr. any felony prior 1961 was too remote. Trial occurred in mid-1976. Had attempted conviction been of a this impeachment by prior felony defendant, would have been to the v. 18-year-old prior holding subject People Antick 15 Cal.3d 79 539 (1975) P.2d (19- Cal.Rptr. [123 43] characteristics). 17-year-old priors dishonesty having Evidence Code section 352’s discretion to exclude applying
relevant evidence an offer of aof witness under proof impeachment of Evidence Code section and the authority guidelines People 6 Cal.3d a distinction is drawn between the Beagle, supra, as the witness to be and a nondefendant witness for either impeached side. (See v. Carr 32 (1973) People (a Cal.App.3d Cal.Rptr. [108 216] aAlso witness).) distinction is made where a prosecution court nonjury trial is (See had. v. Banks
751].)
These cases indicate it that was error for the to trial court rigidly apply the of 441, to Cal.3d as remoteness guidelines People Beagle, supra, of the Willis, account, conviction to without into in prior impeach taking the 352, under Evidence Code the section weighing process necessary fact that the witness a was not defendant in a criminal case then being a tried before jury.
Here a we have declarant’s statements admitted key hearsay being defendant. The to such vital declarant is for against right impeach discretion, therefore, It was an of defendant’s defense. abuse the for trial court this a evidence of deny right by excluding felony conviction that related to in of its relative The dishonesty spite antiquity. trial court’s 352, based on Evidence Code section ruling, precluded to establish due authentica-
defendant from evidence offering necessary tion of the conviction. felony trial and before a to jurors. During Copies transcripts of the began reading preliminary hearing
reporter transcripts Reid, of both Willis and William of such testimony copies transcripts each and alternate to read and follow were (edited) juror juror The were collected at the conclusion reading by reporter. copies and did into the room deliberation. not go during reading that this would Defendant to this correctly stating objected procedure, two dead witnesses of these unduly testimony prosecution emphasize defendant was were the victims of the two of which who charges only rule can be drawn to the reason for the convicted. An procedural analogy in Evidence Code section recollection recorded evidence as to past evidence, but the be read into subdivision “The (b): writing writing may an adverse received in evidence unless offered itself not be by may Benchbook, section Jefferson, Evidence stated in California As party.” the rule “is to 11.2 at the reason for giving past prevent page oral evidence stature than the recollection recorded testimony greater 341, 350 v. Davis witness.” in evidence of the 242], the admission writing by party be it was held to error. using (proponent)
As to the use of jurors’ copies preliminaiy hearing transcripts thereof we can find no California during reading reporter, We such was error under the cases in hold that procedure directly point. facts and of this case. circumstances intent to commit murder
The of conviction of assault with judgments I of a of Penal Code section 217 in count violation possession another, in of Penal Code with intent to assault violation deadly weapon II, The of the use of firearm are reversed. section finding count II is ordered stricken Penal Code section 12022.5 as to violation of convictions of The that the two from the felony finding prior judgment. *14 defendant are true is stricken. J., concurred.
Jefferson (Bernard), However, P. J. I KINGSLEY, in the result. do not Acting I concur with two matters discussed in the agree majority opinion. Willis, The evidence offered the was the
(1) impeach attempt Willet,” of a record conviction named “Samuel person apparently for theft. from the fact that “Willet” to have been bom Apart appeared Willis, on the same name, as and bore the same in the first day nothing us, record shows that were the same On record before they person. exclusion the record to “Willet” was not error. relating Since excluded, evidence was I see no reason to proffered properly discuss the to have used an conviction as hypothetical 18-year-old right of a nondefendant witness. impeachment The case rested the transcribed of Reid and People’s testimony circumstances,
Willis: Under those it is to talk about pointless emphasiz- their was all the had to consider. ing testimony—that testimony It is a witness; one hear it is another to hear another thing thing party read that with the reader’s and with the testimony, misreading possible own I that, case, reader’s of what is read. cannot see this emphasis action of the trial court in to follow from allowing juiy reading effect; rather, had it let the its own transcript any prejudicial jury put on what Reid and had at Willis said emphasis preliminaiy hearing.
A for a J., was denied 1978. petition was May rehearing Kingsley, that the should be opinion petition granted. Respondent’s petition for a Court was denied June hearing Supreme