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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Vasquez CASTILLO, Defendant and Appellant.

Cr. 2755.

Decided: January 10, 1968

Joseph V. Mazziotta, San Bernardino, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Gen., and Stanton Price, Deputy Atty. Gen., for plaintiff and respondent.


An information was filed charging the defendant with murder (Pen.Code, § 187), and with having suffered a prior felony conviction for assault with a deadly weapon. Defendant admitted the prior conviction and entered dual pleas of ‘not guilty’ and ‘not guilty by reason of insanity’ to the main charge. The jury found the defendant guilty of murder in the first degree, whereupon defendant withdrew his plea of ‘not guilty by reason of insanity,’ waived trial by jury on the issue of penalty, and stipulated with the district attorney that the court could decide the punishment. It was further agreed that the evidence submitted at the first phase of the trial on the guilt issue could be considered on the issue of penalty. The court sentenced the defendant to life imprisonment.

The defendant's attack on the judgment takes two avenues: (1) The judgment should be modified because the evidence is insufficient to sustain the verdict of first degree murder as distinguished from second degree murder; and (2) the judgment should be reversed because of inadequate representation at the trial level by reason of the fact that defendant's trial counsel withdrew the purportedly crucial defense of not guilty by reason of insanity.

On Saturday morning, August 6, 1966, the victim, Guadalupe Rios, was playing pool in a combination bar-pool hall in Fontana, California, when defendant, the latter's brother, and a male companion entered the bar. The victim's brother-in-law, Manuel Gomez, was also present together with the bar owner and a few patrons. Defendant and his companions ordered a pitcher of beer. The three of them consumed about one-half of the pitcher, whereupon they ordered three bottles of beer. Between 15–20 minutes after he entered, the defendant approached the victim and asked, ‘What are you looking at me for?’ Rios denied staring at the defendant and explained that he was merely looking out window. Defendant's companions persuaded defendant to return to the bar, but 5–10 minutes after he resumed drinking, the defendant again confronted the victim and asked the latter why he was staring at him. Rios told the defendant to keep away from him or he would hit him with a cue stick. Defendant stated, ‘Oh, you want it like that? I have something in the car, too.’ When defendant's brother tried to calm him the defendant slapped the brother and returned to the bar area.

The victim's brother-in-law engaged in a conversation with the defendant, his brother, and their friend for perhaps another 20–30 minutes. Defendant asked the victim's brother-in-law to come outside and look at the defendant's car. The victim's brother-in-law followed the three men outside. While the four men were outside appraising the defendant's Buick, the victim appeared outside the bar and walked over to the defendant and said, ‘You've been nasty to me.’ Without further warning, he struck the defendant with his fist and knocked him down. Defendant and his companions then left the premises.

During the afternoon of same day, at least 1 1/2 hours after defendant's departure, he returned to the bar-pool hall and entered the front door with a gun in his hands. The weapon appeared to be a high-powered rifle. Defendant held the weapon with one hand on the pistol grip and trigger and the other hand on the forepad or stock of the gun. Rios, apparently anticipating that he was to be the victim, picked up a wooden stool and held it in front of him. Defendant said, ‘I kill you,’ and while standing some 14 feet from Rios, fired a blast which hit the victim in the groin. Rios' brother-in-law leaped at defendant, but the latter momentarily pointed the gun at the rescuer and then retreated. Before running out the door, he ejected the spent shell from the weapon. Defendant was seen driving away from the scene and shots were fired at his vehicle. The victim died as a result of the massive hemorrhages sustained from the gunshot wounds.

Between 2:30–3:00 p. m. the same afternoon, the defendant's brother-in-law, one Nick Martinez, left his Fontana residence to visit a nearby store and left his own car in the garage. On the way to the store, he saw the defendant walking along the street. When he returned from the store, he was about to open his garage when defendant appeared and informed Martinez that the latter's car was not in the garage but that defendant's car was. Defendant told Martinez he had been in a fight, was too drunk to drive, and wanted his brother-in-law to take him home. He asked Martinez not to open the garage. Martinez drove the defendant to the latter's residence in the nearby city of Colton. When Martinez returned to his own home, he saw defendant's car in the garage and he also noticed a shovel near the garage.

In the early evening of the same day, a sheriff's deputy appeared at defendant's residence in Colton. He went to the backyard of the home where four men and three women were present, including the defendant. Defendant, whose hair was long at the time of the shooting had just had his hair cut extremely short. The deputy inquired of the persons present in the rear yard whether any of them knew of the defendant's whereabouts. Defendant feigned his true identity, claimed his name was Lupe Castillo, and pretended he lived in Indio, California. Nevertheless, the officer recognized the defendant, placed him under arrest, informed him as to the nature of the charge, advised him he had a right to remain silent, that he did not have to make any statement, that he had a right to counsel before he made any statements, and that if he could not afford an attorney that one would be provided for him. The officer then inquired as to whether defendant understood his constitutional rights and defendant indicated that he did.

The defendant was then removed to the county jail and was interrogated after midnight on Sunday, August 7. The cautionary warnings relating to his constitutional rights were repeated. Defendant was then asked how he had obtained the injuries visible on his face and the back of his head, which were presumably sustained when he was struck and knocked to the ground by the victim. Defendant maintained that he received the injuries from a fall in his front yard, denied he had been in the Fontana bar-pool hall on Saturday, claimed that he did not own a shotgun, and denied any knowledge as to the location of his 1955 Buick.

Thereafter, during the early morning hours of Sunday, a detective visited the Fontana residence of defendant's brother-in-law and sister, Mr. and Mrs. Martinez. The officer was given permission by defendant's sister to search the garage where he discovered the defendant's Buick.

Later, on Sunday afternoon, the detective and two fellow officers visited the Fontana residence of defendant's sister. In the rear of the garage they found an area of freshly-turned dirt approximately 3 1/2 feet long and 1 foot wide. Two .410 shotgun shells were found in the dirt, one being partially exposed and the other having been buried. The shotgun shell which was hidden in the dirt and a shotgun shell found on the floor beside the victim's body were found to have markings made by the same gun. However, the lethal weapon was never discovered.

The defendant did not testify in his own behalf. However, the defense called a clinical psychologist and a psychiatrist, and their expert testimony will be the subject of extensive analysis by reason of the fact that the degree of the crime of murder is seriously disputed on appeal.

The clinical psychologist stated the following for the benefit of the court and jury: That he interviewed the defendant on two occasions in the county jail; that defendant was subjected to comprehensive intelligence and personality testing; that he gave him the Wechsler Adult Intelligence Scale, the Rorschach diagnostic test, the diagnostic drawing test, and the The matic apperception test; that on an intelligence scale upon which 100 represents the intelligence of the average person, the defendant's score was 67; that approximately 99% of the people in defendant's age group who take the test do better than the defendant, thus putting the latter intellectually in the lowest 1% of the population in his age group; that on an intelligence basis this 31-year old defendant would be classified as being ‘mentally retarded’; that defendant was suggestible and easily influenced; however, he was not ‘mentally ill.’

The defense psychiatrist gave the following testimony: That he reviewed the reports of two other psychiatrists who had previously examined the defendant following the commission of the crime as well as the report of the clinical psychologist; that he also examined the defense counsel's file relating to the background of the offense; that he thereafter interviewed the defendant in the county jail; that he had an electroencephalogram taken of defendant when the latter was sober; that no tests were conducted while defendant was nuder the influence of alcohol; that defendant displayed no indication of any mental illness, but showed evidence of intellectual impairment; that in his opinion any stress or excitement would decrease the defendant's mental ability; that in his opinion the defendant at the time of the killing was suffering from ‘alcoholic pathological intoxication’ which is one of the more unusual mental disorders related to alcoholism; that such a condition results in a peculiar susceptibility to small amounts of alcohol wherein the reaction of the patient might be explosively violent on occasion; that one of the symptoms of the disorder is complete amnesia during the existence of the episode; that ‘alcoholic pathological intoxication’ is akin to psychomotor epilepsy and the brain wave patterns of both conditions are similar; that psychomotor epilepsy is a form of disease arising from an electrical disturbance in the temporal lobe of the brain and may be hereditary or the result of brain injury; that in certain people intoxication develops a latent psychomotor epilepsy; that in his opinion the defendant was unable to meaningfully deliberate, premeditate and reflect upon the gravity of the act, and harbor malice aforethought; that in his opinion the defendant was not able to weigh and consider the question of killing a person and the reasons for and against such a choice; that his diagnosis of alcoholic pathological intoxication was based on three factors: (1) defendant's statements about his conduct on previous drinking episodes; (2) defendant's violent actions which the doctor concluded were poorly motivated since defendant was characterized as a non-violent person when sober; and (3) defendant's amnesia regarding events surrounding the killing; that the defendant was ‘mildly mentally retarded,’ nearly illiterate, but not psychotic; that the electroencephalogram reflected that the brain waves were ‘within normal limits.’

The cardinal issue involved is whether there was sufficient evidence to support the jury's finding that the defendant committed first degree murder, or whether the judgment of conviction should be modified to second degree murder. Initially, it should be noted that the determination of the degree of the crime is generally left to the discretion of the jury, and on appeal, the reviewing court is bound to view the evidence most favorably in support of the judgment. (People v. Ford, 65 Cal.2d 41, 51, 52 Cal.Rptr. 228, 416 P.2d 132.) However, when a proper case appears (Pen. Code, § 1181, subd. 6), this court is empowered to modify a judgment to murder of the second degree and affirm it as modified. (People v. Ford, supra; People v. Wolff, 61 Cal.2d 795, 819, 40 Cal.Rptr. 271, 394 P.2d 959.)

Murder is the unlawful killing of a human being, with malice aforethought. (Pen.Code, § 187.) Malice may be either express or implied. It is express when there is manifested a deliberate inteniton unlawfully to take the life of a fellow creature. It is implied when no considerable provocation appears, or where the circumstances attending the killing show an abandoned and malignant heart. (Pen.Code, § 188.) ‘All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing [or certain feloy-murders], * * * is murder of the first degree; and all other kinds of murder are of the second degree.’ (Pen.Code, § 189.)

While there has sometimes been a tendency to emasculate the distinction between the two degrees of murder (People v. Holt, 25 Cal.2d 59, 84–89, 1534 P.2d 21), the offense of murder is divisible. Manifestly, both first and second degree murder involves the unlawful killing of a human being with malice aforethought. (Pen. Code, § 187.) Consequently, the true test of the degree of murder must include ‘consideration of the somewhat limited extent to which [the] defendant could maturely and meaningfully reflect upon the gravity of his contemplated act. * * *’ (People v. Wolff, supra, 61 Cal.2d 795, 821, 40 Cal.Rptr. 271, 287, 394 P.2d 959, 975.)

In the case under review, the defendant interposed the defense of diminished capacity, and it should be emphasized that the trial court correctly and extensively instructed the jury on the subject. Evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, can be used to show that a defendant did not have a specific mental state essential to an offense. (People v. Conley, 64 Cal.2d 310, 316, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Anderson, 63 Cal.2d 351, 364–366, 46 Cal.Rptr. 763, 406 P.2d 43.)

Under the doctrine of diminished capacity, the defense of mental illness not amounting to legal insanity is a significant issue in any case in which it is raised by substantial evidence. (People v. Henderson, 60 Cal.2d 482, 490, 35 Cal.Rptr. 77, 386 P.2d 677.) ‘Its purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M'Naughton rule. [Citations.] Under that rule the defendant is not insane in the eyes of the law if at the time of the crime he knew what he was doing and that it was wrong. Under the Wells-Gorshen rule of diminished responsibility [diminished mental capacity] even though a defendant be legally sane according to the M'Naughton test, if he was suffering from a mental illness that prevented his acting with malice aforethought or with premeditation and deliberation, he cannot be convicted of murder in the first degree. This policy is now firmly established in the law of California.’ (People v. Henderson, supra, 60 Cal.2d 482, 490–491, 35 Cal.Rptr. 77, 82, 386 P.2d 677, 682; see People v. Goedecke, 65 Cal.2d 850, 855, 56 Cal.Rptr. 625, 423 P.2d 777; People v. Conley, supra, 64 Cal.2d 310, 319, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492; People v. Wells, 33 Cal.2d 330, 202 P.2d 53.)

The California Supreme Court has used the following language for assistance in differentiating between first and second degree murder: ‘* * * [defendant] knew the difference between right and wrong; he knew that the intended act was wrong and nevertheless carried it out. But the extent of his understanding, reflection upon the enormity of the evil, appears to have been materially—as relevant to appraising the quantum of his moral turpitude and depravity—vagus and detached. We think that our analysis in Holt of the minimum essential elements of first degree murder, especially in respect to the quantum of reflection, comprehension, and turpitude of the offender, fits precisely this case: that the use by the Legislature of ‘wilful, deliberate, and premeditated’ in conjunction indicates its intent to require as an essential element of first degree murder (of that category) substantially more reflection; i. e., more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill. * * *' (People v. Wolff, supra, 61 Cal.2d 795, 822, 40 Cal.Rptr. 271, 289, 394 P.2d 959, 976.)

In applying the minimum essential elements of first degree murder, especially with respect to the quantum of reflection, comprehension, and turpitude of the offender (see People v. Goedecke, supra, 65 Cal.2d 850, 856, 56 Cal.Rptr. 625, 423 P.2d 777) to the facts of the case under review, we have a situation where a psychiatrist and a psychologist presented evidence to the effect that at the time of trial the defendant was ‘mildly mentally retarded,’ but was not psychotic. Moreover, there was evidence the defendant suffered from severe chronic alcoholism. The psychiatrist further rendered an opinion to the effect that at the time of the commission of the homicide defendant suffered from a condition known as ‘pathological intoxication,’ which, according to the psychiatrist, constituted a form of ‘legal insanity.’ In the doctor's opinion this condition involved a severe diminution of the defendant's capacity to deliberate, reflect, plan, and premeditate the killing of the victim, to weigh and consider the reasons for or against the act, or the consequences thereof.

Defendant urges that because the People failed to offer any medical testimony to rebut opinion of the psychiatrists, the doctors' conclusions stand uncontradicted and the judgment must therefore be modified. However, in People v. Wolff, supra, 61 Cal.2d 795, 804, 40 Cal.Rptr. 271, 276, 394 P.2d 959, 964, the Supreme Court made clear the rule as to the significance of expert testimony in the deliberations of the trier-of-fact and the scope of appellate review:

‘However impressive * * * unanimity of expert opinion may at first appear * * * our inquiry on this just as on other factual issues is necessarily limited at the appellate level to a determination whether there is substantial evidence in the record to support the jury's verdict * * * under the law of this state. [Citations.] It is only in the rare case when ‘the evidence is uncontradicted and entirely to the effect that the accused is insane’ (In re Dennis (1959) 51 Cal.2d 666, 674, 335 P.2d 657) that a unanimity of expert testimony could authorize upsetting a jury finding to the contrary. While the jury may not draw inferences inconsistent with incontestably established facts (People v. Holt (1944) 25 Cal.2d 59, 70, 153 P.2d 21), nevertheless if there is substantial evidence from which the jury could infer that the defendant was legally sane at the time of the offense such a finding must be sustained in the face of any conflicting evidence, expert or otherwise, for the question of weighing that evidence and resolving that conflict ‘is a question of fact for the jury's determination’ (People v. Berry, * * * supra, 44 Cal.2d 426, 432, 282 P.2d 861). Indeed, the code specifically requires that the jury be instructed that * * * ‘The jury is not bound to accept the opinion if any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion if it shall be found by them to be unreasonable.’ (Pen.Code, § 1127b.)'

Moreover, ‘it is settled that ‘the conduct and declarations of the defendant occurring within a reasonable time before or after the commission of the alleged act are admissible in proof of his mental condition at the time of the offense.’' (People v. Wolff, supra, 61 Cal.2d 795, 805, 40 Cal.Rptr. 271, 277, 394 P.2d 959, 965.)

In addition to the expert testimony herein, which was purely in opinion form, the jury had the benefit of considering all the factors in the case, including the defendant's actions at the time the crime was committed, and also his acts immediately following the commission of the crime for the purpose of determining defendant's ability to form an intent to kill, to premeditate the killing, to maturely and meaningfully reflect upon the gravity of his contemplated act, and to determine whether the defendant acted maliciously in shooting the victim. The defendant did not take the stand for the purpose of offering evidence under the diminished capacity defense and, consequently, his defense was based entirely on the opinions of the psychiatrist and psychologist. Their judgment was greatly influenced by hearsay evidence as to the extent of the defendant's alcoholic intake prior the the killing. The expert's knowledge of the defendant's background, past history, and personality was extremely limited. No evidence was presented tending to establish that the defendant was a peaceful, decent person when sober, or that he was a good husband and father when not drinking. The defense relied solely on the doctors' testimony for the purpose of establishing the defendant's innocence of the crime. While there was some evidence indicating that the defendant had been steadily employed from the year 1955 to the date the crime was committed, there was presumably a strong reason for defense counsel not to delve into the defendant's prior history inasmuch as he had sustained a prior conviction for assault with a deadly weapon, and had been responsible for the deaths of other persons in an automobile collision which occurred during the course of a drinking episode.

The significance of the defendant's behavior following the killing cannot be disregarded. Unlike People v. Wolff, supra, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959, where the 15-year old defendant walked into the police station and surrendered immediately following the homicide, the 31-year old defendant in the case under review displayed an acute awareness as to what he had done by his efforts to conceal the crime and to escape the consequences of the killing. He hid his car, concealed the murder weapon so that it was never found, buried the bullets and shells used in firing the gun, attempted to conceal his own identity by having his head shaved or nearly-shaved, pretended to be another person when the arresting officer first approached him, denied he had ever been present at the scene of the crime, and lied about the manner in which he had suffered the facial and head injuries inflicted by the victim. Where a defendant gives an explanation later shown to be untrue the jury may reasonably conclude that the explanation is an intentional fabrication indicating consciousness of guilt. (People v. Wayne, 41 Cal.2d 814, 264 P.2d 547, 823; People v. Boggs, 255 Cal.App.2d 693, 63 Cal.Rptr. 430.)1 On the basis of the defendant's behavior before and following the commission of the crime, the jury was certainly acting within its province in minimizing or disregarding the expert testimony. The electroencephalogram was normal, and the jury could have reasonably concluded that the defendant did not suffer from any condition akin to psychomotor epilepsy at the time of the killing.

Defendant's failure to offer any proof as to his character, disposition, emotions, and personality when sober, either through his own testimony or the testimony of relatives, friends and fellow workers, lift the jury in the position where the only substantial evidence, judging from the defendant's conduct before, during and after the homicide, indicated that he intentionally, deliberately, maliciously, and premeditatively took the life of another human being, and that the motive for the killing was strictly one of vengeance because of the victim's act in striking the defendant after the defendant had wrongfully provoked the fight in the bar.

Finally, defendant urges that his defense counsel was inadequate at trial for the sole reason that following the guilty verdict he was permitted to withdraw his plea of not guilty by reason of insanity. The defendant and his counsel both joined in the motion. The withdrawal of the insanity plea was completely justified. Defense counsel had examined all medical reports pertaining to the defendant's mental condition. Moreover, the public defender had requested that a psychiatrist and psychologist examine the defendant, An electroencephalogram was performed. It certainly was not counsel's responsibility that the electroencephalogram test was normal nor that the psychiatrist and psychologist's tests, which delved into the intelligence and personality of the defendant, reflected that he was not insane. Moreover, we know of no judicial nor statutory authority equating ‘pathological intoxication’ with legal insanity. While voluntary intoxication may be shown to negate the existence of a state of mind, and thus reduce first degree murder to second degree murder or manslaughter, intoxication can never be an absolute defense, which is to say that it can never be the equivalent of insanity. (People v. Conley, supra, 64 Cal.2d 310, 316, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Wells, supra, 33 Cal.2d 330, 357, 202 P.2d 53.) The withdrawal of the insanity defense did not reduce the defendant's trial to the level of a farce or sham (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487) inasmuch as the evidence offered by the defense clearly established that the defendant was neither psychotic nor mentally ill.

The judgment of conviction is affirmed.


1.  255 A.C.A. 819, 831.

KERRIGAN, Associate Justice.

McCABE, P. J., and TAMURA, J., concur.