*1 28, 1969.] Nо. 12805. In Bank. Feb. [Crim. PEOPLE, Respondent,
THE Plaintiff and v. PATRICK Appellant.
IRELAND, Defendant and *3 Castro, Sheela, & Lightner, Hughes, Hilmen Sheela, Hughes & and Peter J. for ’Laughlin, Hughes Castro O Appellant. Defendant and James, Attorney General, E. Lynch, William Thomas C. Philip Thomas and C. Attorney General, Kallay Plaintiff and Assistant Respond- General, Griffin, Attorneys Deputy ent. charged Patrick Ireland was
SULLIVAN, J.Defendant by of Ann Lucille Ireland, the murder indictment with guilty guilty and pleas of not reason wife. He entered guilty insanity by jury, found and, after trial degree. plea guilty of not murder in Defendant’s the second bjr insanity personally him, withdrawn reason of imprisonment prescribed by for the term he was sentenced to appeals judgment. He from law. teacher, Ireland, Defendant, high school Ann Lucille in 1957 deceased, while defendant was married attending college. They children, had two born 1958 and respectively. began experience In 1963 marital *4 diffiсulties and Ann entered into the first of a series of secret began extramarital Defendant soon to affairs. doubt his wife’s
fidelity against and to make Ann accusations her. at first involvement, denied her and defendant’s accusations resulted in physical a of violent number encounters between them injuries. relationship Ann sustained continued unhappy years. and this turbulent state for several Early attorney Ann an and consulted commenced parties together, an action for divorce. The continued to live however, attempts mar- and undertook several to revive their riage. unsuccessful, Ann Their efforts were and soon became relationship involved in an extramarital with the salesman pool company swimming a a at the Ire- which had installed family land residеnce. Defendant was informed of this a friend, and Ann she admitted her involve- when he accused shortly promised relationship ment and thereafter to sever the family. Defendant, in order to the interest make keep private promise, certain Ann hired a that would her relationship Apparently to follow her. Ann’s with detective the salesman the latter when he learned was terminated improved private did not detective, this result rela- but tions between Irelands.
During period began suffer from head- defendant nervousness, fatigue, a aches, and and consulted doctor who prescribed medication for these conditions. April 24, 1967, On the Irelands met with conciliation county As a counsellor conciliation court. attached meeting agreed and Arm to seek thе
result of this in a last Behavioral Institute effort services of the Western step apparently marriage; their Ann’s consent to this save part.1 reluctance on her After obtained with some together meeting suggested they have lunch willing they and returned to their Ann to do so but was not afternoon, and Ann out to her hairdresser home. went put to bed when and the children she had returned meeting their with the conciliation the Irelands discussed appointment at the Western counsellor and their future point Apparently from a conviction reluctance on this resulted Ann’s prosecu would be effected. in her own mind that no reconciliation April 18, produced that, knowl defendant’s tion on without evidence divorce, obtaining attorney edge, again an about she consulted days April 27, appointment two after him on with that she had another arrangements with a Ann had made shown that her death. It was also together; apart apartment two went woman friend rent murder; day April 25, April again hunting on ment on name, apartment in the friend’s had decided rent and that pay understanding Ann rent. with the *5 agreed to certain Behavioral Institute. Defendant undertake relationship diminishing changes such as the influence in their allowing Ann to assume parents, nearby, lived and of his who family. expressed again Ann to positive role a more willingness to make efforts the interest defendant harmony. family renewed displayed April 25, Ann a sullen and morning of On the attempts response to attitude defendant’s incommunicative Defendant made efforts to engage in with her. to conversation tеaching his duties but was unsuccessful relieved from be day. taught during the When doing so and five classes he home, p.m., and 4 Ann was not home between :30 returned returned from the market where she shortly thereafter she but day taken the shopping. During the defendant had had been prescribed him, had and which various medications the market he drank two prior Ann’s from coffee return defendant, Ann and mugs Upon return their wine. her daughter purchase pool their chlorine for and to went out to suggested way home defendant errands, do other and on their they of a friend. Ann did not have dinner at the home that they prepared home so, and returned where she wish do family. at this time had dinner for the Defendant another until he called for mug of wine and took rest was coffee lay again had dinner. After dinner defendant down and mug another coffee of wine.2 p.m. 25, 1967, April and on Sometime between 7:30 8 :30 by firing his Ann into her at defendant shot killed wife and pistol he from a range close two .38 caliber bullets that usually kept himself testified in his bedroom. Defendant shooting or of certain events memory had actual no details of the homi- occurring thereafter, only and known testimony3 six- of his provided at cide were trial shooting year-old presence the took in whose daughter, Terry, place. evening gone on the Terry bed that after she testified talking in the den where her question parents she heard her par her she asked watching television; that
mother had been replied they they that and talking about ents what were parents program; her talking about the television pri disputed background foregoing and drawn are facts are not 2 The testimony marily at trial. from defendant’s By stipulation 3 Terry actually trial. as a witness at called night given by police on parties officers her a statement testimony. in lieu actual was admitted crime really ‘talking going first”; about who to leave were that defendant ‘1 shortly got gun thereafter in Ms ’’ den, go and asked Ann pocket, returned to the outside pool swimming go that Ann refused and and talk; pulled her off the couch where she was lying; floor, she, Terry, Ann and then went into fell to the the room began then sat down in a crying; and chair upon the couch; Ann climbed back defendant then gun pocket, what, and said Ann?” took the from “Now Ann; and fired shots at that the first shot went into the three eye Ann in window and second and third shots struck then went into the front roоm and chest; that defendant *6 rocking she, sitting crying”; Terry, and that “was neigh stayed mother, Ann, her until then on the couch with bors arrived. first relates to certain Defendant’s contention testi
mony prosecution in After introduced rebuttal. the in and had defendant had taken the stand his own defense (text preced background the material set forth above related testimony ing 2, ante)—and had in the course of his fn. years in detailed an incident several before the homicide a knife in course which Ann attacked defendant with the argument—the prosecution as a Mrs. Jan an called witness of Blount, family had known defendant iee friend who early April in years. first testified that some Mrs. Blount Ann’s infi her and had discussed defendant had visited delity. prosecution sought to elicit from Mrs. Then the telephone she of a conversation which Blount the substance objection April morning of 25. An with Ann on the had had argument ground hearsay and interposed the on prosecutor presence jury. The offered of the ensued out of the testimony Blount that Ann had through of Mrs. prove to the “ going kill telephone: know he’s to me. the I stated to her on get ’ll never let hurry up and it over with. He I wish he would ’’ me leave. to prosecutor was admissible argued that statement prior immediately to her death. show Ann’s of mind state relevant, urged, “to show state of mind was Such probabilities . . . that she would of the decedent’s conduct provoke anything him.” The defense took not have done state of mind was not relevant position that Ann’s proposed evidence doesn’t tend in issue the case because put in all Ireland testi anything to rebut [because] getting treatment, not that he was the silent fied to was that part.” The court any aggressive conduct on her there was following language: "Well, as I objection in the overruled the going not it, things—Oh, am rebuts several I understand it Blount argue it’s admissible.” Mrs. then I matter. think proceeded testify jury in accordance with before proof. offer of hearsay is question It is clear that evidence here (a), subdivision meaning of section evidence within the footnote.4 Code, we forth in the Evidence set to show that the mat purpose for its admission was only physical fact words ters therein stated were true. The upon possible bearing question spoken by Ann had no except fact tended to insofar the issues the case (Cf. prove in those the truth оf the matters asserted words. see 293-294 P. Smith v. Whittier 95 Cal. 1966), 463-471, pp. (2d generally Witkin, Evidence Cal. ed. §§ 425-433.) question urged It is was never the statement existing physical or theless Ann’s mental admissible show exception state under to the stated section rule hearsay (a), Code, set subdivision Evidence which we also portion forth in the footnote.5 As the italicized that sub demonstrates, however, exception applicable is division only when the declarant’s mind is itself an issue state case, prove explain in the is or acts or relevant conduct of the declarant. It is clear at the outset that declarant Ann’s state day
mind her in the on the death was issue itself Coupe One 1948 Convertible (cf. case Chevrolet (1955) 45 Cal.2d 620-622 P.2d 55 A.L.R.2d *7 (1920) 252, 255-256 P. ; Adkins v. Brett 184 Cal. [193 251]) hearsay and was therefore not that the statement (a) (1) 1250. admissible under subdivision of section The Peo ple’s (1957) 47 on v. Brust Cal.2d 776 reliance [306 " ‘Hearsay (a) provides: 1200, 4 Evidence Code section subdivision ’ by a than was made other evidence of a statement that evidence is prove testifying hearing the that is offered witness while at the truth of the matter stated.” “Subject (a) provides: Code 5 Evidenee section subdivision [forbidding under cir ‘made section 1252 the of a statement admission ’], evidence of of trustworthiness such as to its lack cumstances indicate mind, emotion, existing or state of a statement of the declarant’s then intent, motive, design, (including plan, physical of sensation a statement by feeling, pain, bodily health) not made inadmissible mental or is when; hearsay (1) prove the rule is offered to declarant’s evidence any mind, physical that or аt other emotion or sensation at time state of time when to action; it is an issue in the or the evidence is offered itself added.) prove explain (Italics conduct the declarant.” or acts or of regard 480], P.2d in misplaced. this is wholly There the sought to introduce two statements made the vic- defense homicide, tim some months before the and one statement made homicide, support the afternoon in before order to its theory long-continued provocatory “that a of course conduct bringing of Mrs. Brust in point culminated defendant to a for where cool deliberation was capacity substantially impaired.” We held there that the first two these state- ments, hostility which manifested the victim’s toward defend- nonhearsay ant, were admissible circumstаntial evidence of hostility, probabil- the victim’s which show “tend[ed] ity of hostile conduct toward The third defendant.” state- exception ment held under the state-of-mind was admissible hearsay “a rule as declaration of the victim’s intent to day toward defendant” behave homicide. on of the provocatively (47 pp. 784-785.) Cal.2d It is thus clear that the hearsay evidence Brust insofar as was was it deemed admissible not the declarant’s because state mind was an issue in the action” “itself but because such statements prove explain tended “to or acts or conduct of the declar- ant.”6 only theory Thus, the tenable admissibility statement, that the (a)(2), the terms subdivision prove explain “offered acts or of the conduct declar urging People, ant.” The this subdivi applicability ‘‘ question sion, contend that the statement tended to rebut testimony appellant’s the inference raised that aggressor.” deceased have Reference is may here Ann,
made to defendant’s argument that in the course of an testimony years prior some occurred four to the homi cide, attacked defendant with a knife. position with this is that did the defense difficulty respect with raise issue to Ann’s conduct imme- of fact preceding diately undisputed prosecution her death. The evi- pre-Evidence involving 6 Some Oode eases of court admission hearsay part victim state-of-mind declarations on the have used language suggesting even when such are admitted statements explain subsequent the victim-declarant’s conduct the basis of admissi bility (See, "in is fаct such state of mind is issue.” example, People Cal.Rptr. v. Hamilton 473]; People 362 P.2d v. Lew Cal.2d Cal. 942].) Rptr. 441 P.2d We the enactment of believe the Evi requires language premises now a more use of dence Code careful statutory (a) (1) in order distinction reflected subdivisions (2) may (See generally (a) preserved. Chadbourn, Study A be Belating Hearsay to the Evidence Article of the Uniform Buies of Evi Rep. (1964) 505-514.) dence, pp. 6 Cal. Law Revision Com.
531 that daughter Terry by established given the Ireland’s dence by was shot defend- reclining on couch when she Ann its dispute rather rested did this fact but ant. The defense defendant’s mental state upon that a contention entire case pres- by emotional affected cumulative of his act—as the time sure and the medications prescribed ingestiоn of alcohol testimony the which murder. The required was not showing that in People places conduct issue—that urge Ann’s had attacked the homicide Ann some before years light in the construed, of all knife—simply cannot be with a conduct on ease, issue to Ann’s in to raise an evidence the the the homicide. night People 774 (1968) Lew 68 Cal.2d Cal. The case of v. [69 although the 942], before Rptr. 102, it was tried 441 P.2d Code, is instructive the Evidence nevertheless effective date of point in There question.7 on the here defendant maintained an death resulted from accident which victim gun examining while when she defendant’s occurred lap in a chair. and double hear seated on Certain hearsay say showing the victim’s fear defendant were statements appeal exceрtion. On from the state-of-mind admitted under judgment degree murder we concluded that the of second by issue of fact raised statments "relevant an 780) (68 p. though ease involved defense” Cal.2d at even Atchley (see People neither a claim of self-defense as to 764]) 172 P.2d nor issue whether voluntarily night the victim had been with on the (see People question v. Alcalde Cal.2d Cal.App.2d cf. v. Finch P.2d Cal.Rptr. 420]). The "issue of fact raised 765 [29 defense” to which the statements were relevant was simply accidental as that of whether death claimed might reasonably have defendant. The inferred from jury that, account, such to defendant’s statements contrary sat lap not have of defendant and victim would exam light ined his of other evidence in the firearm—especially guns. (68 case victim Cal.2d at to the effect feared spite pp. 779-780.) conclusion, however, this In we went on excluded to hold that the statements should have been because 7 We Lew “Section which sets forth the state-of- stated exception, respects mind in all a codification is essential common ’ ’ jurisdiction. [i.e., existing time enactment] law then at the 3.) (68 p. 781, Lew, represents fn. We Cal.2d at thus consider existing prior a statement of the common law to the effective date interpretation code, guide reliable of section 1250. *9 specific past of them made reference to conduct of the most and a of were number upon them circumstances made (See credibility. which east doubt the declarant-victim’s v. Hamilton 55 Cal.2d 893-896 Cal. [13 Rptr. 473]; Code, 1252, 362 P.2d cf. Evid. and Law § therеto.) appended Revision CommissionComment 1‘ Lew, case, In the instant unlike in acts or of conduct (Evid. Code, §1250, (a)(2)) the declarant” at the subd. simply dispute; time of the homicide werfe not the defense deny precisely did not that such ‘‘acts or conduct” daughter by Terry. (Cf. People described the Ireland’s Cal.Rptr. 801, Purvis 713].) 362 P.2d such it In circumstances must be concluded through Ann testimony statement of offered of hearsay Mrs. Blount was admitted into evidence.8 improperly unnecessary Our inquiry conclusion renders an as to question whether the statement in was inadmissible it because ‘‘was made under such as circumstances to its lack indicate of (Evid. Code, 1252; ante.) trustworthiness.” see fn. § prejudicial. The question error statement in not reflected Ann’s of mind state at the of time utter only opinion part аnce it also constituted on her as to conduct which defendant would a might undertake at future time. On the hearsay opinion of this jury basis have reasonably inferred that Ann several hours before the homicide had con cluded that defendant had then formed the intention kill logical wit, next inference, her. The that Ann’s assessment of defendant’s then intention was and accurate had in fact formed an intention to kill several hours before (see 8, ante), the homicide directly fn. strikes at the of heart judgment must, therefore, defense. (Cal. be reversed. Const., VI, 13.) art. § Two of defendant’s present other contentions warrant our guidance for upon attention of the court retrial. extrajudicial Defendant claims that certain state against ments introduced him were obtained in viоlation of rights. his constitutional After defendant was arrested and handcuffed at his home he was escorted two officers to a waiting police car. On the to the ear he was way advised might, through 8 The fact Ann’s state of mind series infer ences, probative be considered of defendant’s intentions at the time hearsay utterance cannot render her statement admissible under exception. (b), expressly provides: state-of-mind Section subdivision “This section does not make admissible evidence a statement memory prove or belief to the fact remembered or believed.’’ v. Arizona with Miranda rights his accordance 974], 1602, 10 694, 86 A.L.R.3d S.Ct. L.Ed.2d U.S. at that and, upon being say asked whether he anything ’’ 1‘ attorney. parents my Appar time, replied my Call : he request, ently responded to defendant’s the officers neither of attempted to communicate it, or took action as a result of superior it to officers. transported and placed in the car Defendant was during trip asked points he some police At two station. children, and the officerdriv- questions his wife about ‘‘ you talk all ing Sir, I’m allowed to at said to him: ease, talk to later at the concerning will you part response on the officer was station.” This sergeant given police him a with orders accordance the home.9 Ireland police station was imme- defendant arrived at the When *10 interrogation room handcuffs diately placed in an where the being Then, upon were and he was searched. removed provided so, special in a instructed to do he sat chair for the suspects10 and while the officer who interrogation of waited inventory had him to the station undertook an driven response questions person. his In to found on property particular property of to the nature of items such officer as concerning remarks certain discursive defendant made family. disintegration minutes defendant’s arrival Approximately five after at (the police watch com- interrogation room a lieutenant and, observing taking an inven- the officer mander) entered tory defendant if he had of defendant’s asked been property, rights. replied in of his Defendant the affirmative but advised the lieutenant nevertheless see give proceeded such “to to advice ’’ admonished. Defendant indicated that he had bеen fully wanted talk he understood and asked if the lieutenant to not, The that he did but that “there him. lieutenant said coming was an officer that would talk to him.” down Sergeant Cartwright, the chief of detec- officerreferred to was tives. arrival 35 minutes after defendant’s at the
Approximately sergeant gave appear 9 It heard tliat the who this order defend does request Apparently attorney ant’s it. informed of or was simply police practice. representative order was with, large chrome-pipe chair a 10 The officer a testified: "We have padded floor, padded it, seat cushion and back and it’s bolted on only that’s the chair that room other than when we remains bring only in, chair in a was the room.” it chair time interrogation completed, rоom—after the had inventory been booking obtained, photograph information and a taken—Ser- geant Cartwright had arrived. He asked the officer who con- booking so, ducted the and, to leave when he had done advised rights his Miranda third for the time. After again defendant had indicated he understood the admon- ition, Sergeant Cartwright, who had not been informed of request attorney, defendant’s for an “if asked defendant he willing me, to talk with and he said that he wanted to willing talk with someone and was I to listen to what he had say.” Sergeant replied Cartwright that he would be will- ing to listen and engaged the two men then a conversation which, after detective had told defendant that his wife dead, defendant, resulted in a confession wherein response questions, indicated that wife; he shot his pistol so; had used .38 caliber to do that marital problems shooting; basis and that his wife had seeing man, another whom defendant refused to name. conversation, At the of this conclusion which lasted from 30 again speak minutes, asked par- with his telephone. ents on the police Defendant was then taken to the officeof the chief of parents telephone and his on a were contacted there. Defend- spoke to his father and ant said he had Ann. killed He Sergeant began Cartwright then to sob and telephone took the police from him and told the father that he should come to the possible. sergeant soon as station as then undertook a second conversation with defendant which was recorded with- knowledge out his and which lastеd approximately half hour parents until defendant’s at the arrived station. In this con- spite sergeant’s defendant, versation efforts to elicit shooting, engaged rambling monologue the details of the in a purchase concerning the shopping trip his house and the daughter taken that he had with Ann and his earlier *11 evening. parents When defendant’s arrived almost immediately a, lawyer. asked him if Apparently he wanted defendant response question, made no persons present to this but one of the three other (Sergeant Cartwright, father, defendant’s “Yes, mother) defendant’s said I think he should have a ’ ’ lawyer. At trial defendant’s first (unrecorded) conversation with Sergeant Cartwright sought was through be introduced the Following of the latter. voir dire testimony examination of grounds “on the objеction defendant officer, made was the parents an request his to contact conducted after a it was The had honored.” request wasn’t attorney made, was defendant ground that objection on the was overruled and there conversation in the first participate elected to part of the pattern the on “constant or . . . consistent no in the absence the matter discuss . . . refuse proceeded to Cartwright then Sergeant of counsel. ...” of the first conversation. jury the substance relate before the placed in evidnee (recorded) The second conversation testimony continuing objection through the over defendant’s playing the Cartwright through Sergeant before recording. jury tape (1968) 68 Cal.2d v. Fioritto In the recent case of 625], emphasized that “A Cal.Rptr. 817, 441 P.2d we 714 [68 objective decision was to establish principal Miranda] [the possible as from safeguards courts insofar that would liberate in necessity adjudicating and troublesome difficult influences, physi each case whether coercive cal, psychological employed admissions or confessions.” to secure (68 p. on to indicate that 717.) Cal.2d at We then went objective responsibility imposed upon us a constitutional extrajudicial of criminal insure that statements defendants range “protective at trial full not be admitted unless the operation prescribed Miranda was in at the devices”11 such statements were obtained. time when primary “protective One of the devices” envisioned interrogation requiring Miranda is that custodial by wholly suspect when indicates in cease manner privilege. he pect Fifth A sus wishes to exercise his Amendment may many may, He as in indicate such a wish ways. Fioritto, rights; sign refuse a waiver of constitutional interrogation already an refuse to continue may simply ease, may, or he instant ask for an attor progress; setting ney. right questioning, “Without to cut off interrogation operates in-custody on the individual to over producing privilege after come a statement free choice states that he wants has been once invoked. individual If interrogation attorney is attorney, must until an cease dispel adequate employed protective com devices are "Unless surroundings, pulsion from no obtained inherent custodial truly statement (Italics prоduct can his free choice.” be added.) (Miranda Arizona, supra, U.S. L.Ed.2d 714].)
536 (Miranda (Italics added.) Arizona, supra,
present.” 384 436, 723].) 474 L.Ed.2d 694 U.S. [16 We think it clear the defendant’s statement (“Call police parents my attorney”) for ear constituted my part request attorney Further, on his his be summoned. permits speculation not think that we do the Miranda decision part on our attorney as to wished whether defendant to see his interrogation prior wished or to consult merely unspecified Clearly with his at some future time. attorney request defendant’s manifests a have the desire to assistance attorney possible This, of his at earliest moment. under Miranda, privilege— is an assertion the Fifth Amendment interrogation and therefore must until an “the cease attorney present.” (384 p. p. 723].) is 474 U.S. at L.Ed.2d at [16 People contend, however, The statements uttered subsequent to his privilege assertion of the nevertheless were volunteered admissible because state- given clearly under circumstances ments manifest an privilege intention to waive the previously asserted. Great emphasis placed upon subsequent is defendant’s conduct request continuing for and his efforts to find a attorney policeman who would to him. listen principle People to which the turn comfort was stated in import Miranda as follows:11 fundamental privilege is custody while an individual is not whether he police is allowed to talk to warnings without the benefit of counsel, interrogated. but whether he can he There is no stop requirement police person police who enters a and states station that he wishes to to a confess crime [foot citing People note v. Dorado (1965) 354 Cal.2d [42 Cal.Rptr. ], person police 398 P.2d or a who calls the 361] to offer a confession or other statement desires to any admissibility make. Volunteered statements of kind are not barred by Fifth their the by Amendment and is not affected holding (384 p. our at p. U.S. at today.” L.Ed.2d 726].) only did Not we affirm our principle to this adherence ease, also Fioritto but we there indicated that even a custody might make statements admissible under if it Miranda were shown that such statements were the result defendant’s own initiative and did not arise in a con (68 interrogation. pp. text of custodial 718-720; Cal.2d see People v. Lara Cal.Rptr. 392 432 P.2d v. Tomita (1968) Cal.App.2d Cal.Rptr. However, sug 739].) as we also 92 [66 permit teaching us Miranda does not gested in Fioritto. the “sрontaneous” any state “voluntary” characterize through interrogative custodial specifically ments obtained assertion of subsequent to a defendant’s processes undertaken *13 processes which must are the privilege, the for those very Fioritto and have indicated in that moment. As we cease at interrogative of custodial above, the cessation reiterated “protec the privilege is one of processes upon assertion of the dispel employed compul the “to which must be tive devices” sion inherent surroundings” (384 p. 458 U.S. at custodial p. obtained 714]), at statement without L.Ed.2d any [16 admissible. the use of that device is not In the ease defendant’s assertion of the instant operated Miranda should have to shut privilege, which under interrоgation, absolutely machinery down of custodial the functioning machinery.12 upon no the of that continued effect police upon the he defendant’s arrival at station Immediately special placed interrogation room and in the was provided in the chair suspects. During questioning he for the time inquiries giving remained there statement with that that were rebuffed answers to effect would have (or chief of await the arrival of the detectives “the inter ” officer, by rogating Attorney as was referred to Gen during argument). Approximately half eral oral a hour after placed interrogation room, officer, defendant was in the this Sergeant Cartwright, room, booking entered dismissed officer, interrogation a and commenced the with Miranda willingness warning and as to defendant’s to talk. inquiry by statements thereafter made We cannot conclude that response questions by Sergeant to direct Cart interrogative wright process not obtained in custodial were police after defendant had asserted his Fifth initiated by and, Miranda, under privilege Amendment was entitled to be ‘‘ Fioritto, process. said in from such a As we form of free queries, gentle, renewed however subtle or cannot be con the sidered in determining whether has there been violation of Supreme principles prescribed the stern Court in ” (68 720.) p. We conclude all evi Miranda. Cal.2d at extrajudicial statements was dence of defendant’s errone ously admitted. police depart that a within the 12 The fact failure of communication upon might
ment concern lies with rogative have been fault can have no effect our decision. Our reason, that, fact whatever custodial inter privilege. upon processes did cease assertion of the 538 error, Defendant also contends that it was in the case, jury circumstances of this to instruct on second degree felony In that, murder. the alternative he contends if degree appropriate second murder instructions felony case, given court requested should have an instruction purported might him which to cure confusion which giving result from the agree of such instructions. Because we
with the former of these contentions need not we address ourselves to the latter. felony-murder operates posit rule aforethought existence of malice whiсh homicides are the perpetration attempted direct causal result of perpe dangerous
tration of all felonies life, to human inherently posit aforethought the existence of malice and to clas sify degree the offense as murder of the first in homicides direct causal specifi are the result of those six felonies cally (See enumerated in section 189 of the Penal Code. Peo ple Phillips (1966) v. 574, 64 Cal.Rptr. Cal.2d 582-585 [51 People 414 ; P.2d v. Williams (1965) 63 Cal.2d 353] Cal.Rptr. 7, 457-458 P.2d Ford (1964) v. [47 Cal.Rptr. Cal.2d 892]; People P.2d 570]; People 868-869 P.2d Coefield *14 (1946) 121, v. Valentine 28 Cal.2d 135-136 P.2d See Witkin, generally 1 §§ 311, 325, pp. Cal. Crimes 283- 295-296.) Thus, 284, “A that homicide is a direct causal result of the commissionof inherently danger a felony (other ous to human life than the six felonies in enumerated Code, 189) Pen. degree constitutes at leаst second § murder.” (People Ford, 795.) supra, v. 60 Cal.2d Accord degree giving felony-murder the of a second ingly, instruction prosecution in a murder has the effect “relieving] of the necessity of the finding of one of the jury crime murder” elements of the (People Phillips, supra, v. 64 Cal.2d 584). wit, aforethought. malice jury given in this case was an instruction based upon (Revised). No. 305 CALJIC given pro instruction part: in vided relevant ‘. . . killing the unlawful of a human being aforethought with malice degree is murder of the second following in Three, the cases: . . . when killing the is perpetration attempt a direct causal result of the perpe felony inherently dangerous life, trate a to human such as an deadly weapon.” assault with a The court then went on to upon instruct the elements of the crime of assault a with deadly weapon in the terms of CALJIC No. 604. the understood might have jury This instruction might have ways. jury concluded First, the either two second guilty it find defendant should therefrom that mal- defendant harbored it that degree if found murder first homicide then that aforethought and found ice crime assault with of the instruction perpetration of occurred in the jury had understood deadly weapon. If the of second doctrine way have misconceived the this it would Second, explained it above. degree as we have felony murder meaning the correct the instruction if the derived from jury it have concluded question, it would of the doctrine degree if it guilty murder of second should find defendant only perpetra- in the committed found homicide was weapon. This, the deadly with a tion of the crime of assault proper People Phil- (see v. understanding of the instruction lips, 9), supra, 574, 584, have relieved 64 Cal.2d fn. would aforethought.13 jury specific finding from a of malice felony-murder We of the have concluded that the utilization rule in those us extends the circumstances such as before operation “beyond any it of that function that rule rational ” Washington designed (People is serve. v. 62 Cal.2d Cal.Rptr. 442, 130].) To such use P.2d allow felony-murder effectively preclude jury of the rule would considering aforethought from issue of malice cases all wherein homicide has been committed a result of a felonious category great majority all assault—a which includes bootstrapping support This homicides. kind of finds neither logic law. nor in We hold that a therefore second felony-murder may degree properly given instruction not be upon felony part integral it is based which is an of the when produced by prosecution which the homicide and evidence an offense included in shows be within the offense fact charged.14 interpretation instant case would 13 In eireumstanees substantially defense, upon prin eviscerated which was based have ciples Although specific capacity. intent of diminished commit necessary felony operation felony-murder underlying is to the (see Cal.Rptr. doctrine 401 capacity Sears 744 [44 9381)—so arguable it P.2d is a defense of diminished entirely bo unavailable it be since could directed would *15 felony-—nevertheless underlying intent to commit it is issue of applicability of such that evidence to that narrow issue would clеar be comparable way equivalent applicability to the in no such evi aforethought charged of malice to the broad issue in the offense. dence Conley Cal.Rptr. People (1966) 310, (See 64 322 v. Cal.2d 411 [49 911].) P.2d (1957) People 456], 14 In v. Marshall 394 P.2d [309 we held “necessarily charged, that an offense was included” within the offense 540 felony-murder upon has A similar limitation rule (See People v.
recognized in New York and other states.
(1927)
People
;
Wagner
v.
Moran
with the related of first murder have felony recognized indicated that limitation in New York is not to jurisdiction degree applied preclude felony- first be murder instruction based upon as to which the burglary felony intended is the homicide itself or an offense included Hamilton, supra, (People therein. ple 55 901; Cal.2d Peo- Cal.Rptr. v. Talbot Cal.2d 633].) Although express present opinion upon P.2d we no question cases, considered in those we specifically must over- them extent reasoning rule to the contain or lan- guage opiniоn. inconsistent with the instant judgment is reversed. J., Peters, J., C. Tobriner, J., J., Traynor, Mosk, Burke, J., concurred. meaning Code, within the of section 1159 of the when Penal the lesser statutory greater offense either was embraced within the definition of the specific allegations accusatory pleading. or was embraced within the Cal.App.2d Cal.Rptr. In 263], v. Lewis 585 [9 court, discussing upon bench, prop the effect of Marshall facts there at erly charged concluded if that ”... the indictment this ease had hatchet, deadly weapon, murder with a likely then assault with a or with means ’’ bodily great necessarily to cause harm would be included offenses. (186 Cal.App.2d p. 600.) explained forth in rule set Marshall and ‘1 ’’ Lewis, necessarily which relates to whether an offense is included meaning within the of section is not affected the rule which we enunciate, application now of which is limited to the determination degree felony-murder of whether a second instruction is warranted under show, however, may the evidence. Marshall and Lewis do that an offense charged though be included in within the offense even it is fact statutory greater embraced within the definition of the offense. generally Merger Felony-Murder 15 See Note: The Doetrine Misdemeanor-Manslaughter (1960) 35 St. John’s L.Rev. 109. *16 judgment McCOMB, J. I affirm the would I dissent. expressed by Coughlin opinion in the Mr. Justice reasons Ireland Appeal by him for the prepared Court Cal.Rptr. (Cal.App.) 70 381. rehearing April petition was denied Respondent’s for a printed opinion to read as 1969, and the was modified above. 3, 1969.] 12804. In Bank. Mar. No.
[Crim. PEOPLE, Respondent, THE Plaintiff v. HAROLD Appellant. JOHNSON, Defendant and EDWARD