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Court of Appeal, First District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Prosenjit PODDAR, Defendant and Appellant.

Cr. 9547.

Decided: June 27, 1972

Franklin Brockway Gowdy, San Francisco, for defendant-appellant. Evelle J. Younger, Atty. Gen., Robert R. Granucci, Karl J. Uebel, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Appellant, who was a student at the University of California at Berkeley, killed a young woman, Tanya Tarasoff, with whom he had a romantic interest which, while temporarily and partly reciprocated, later was rejected. He called at her home, asked to speak with her. She refused to converse, and screamed. Thereupon, appellant shot her with a pellet gun, pursued her as she ran from the house, grabbed her and stabbed her many times with a kitchen knife which, with the gun, he had brought with him. He called the police, told them he had stabbed the woman, and asked that he be handcuffed. He was found guilty of second degree murder, and on his plea of not guilty by reason of insanity, he was found sane. On appeal he does not contend that the judgment on the insanity plea should be set aside.

There was presented a great deal of expert testimony that appellant was a schizophrenic paranoid. A psychiatrist engaged by the People testified that he was not. Appellant had periods of depression; he would lie abed, miss meals and classes, speak disjointedly and weep. His eyes were glazed. His speech was erratic. He spoke of being in love with Tanya; he recorded on tapes his conversations with her; he spoke with a male friend about killing her, in particular, by blowing up her room; and said to a friend, Mr. Mistree, that he could not control himself. He followed Tanya about, sometimes meeting her. He heard her say, after she had made a trip to Brazil, that she had had a good time there with a ‘playboy.’ The fatal encounter occurred following an appearance by appellant earlier in the day, when Tanya's mother had told him to go away and leave Tanya alone, which he promised to do. Appellant had undergone psychiatric treatment at Cowell Memorial Hospital. He had broken this off. Dr. Moore, a clinical psychologist, had written to the campus police stating that appellant was suffering from paranoid schizophrenia and was dangerous.

Additional factual information is supplied under appropriate headings below. This opinion is divided into two parts: the first containing discussion of points which have to do, or may have to do, with guilt or acquittal; the second part with discussion of points relating to the degree of homicide which may be sustained, if a felonious homicide can be sustained at all.


I. Instruction on Unconsciousness

Appellant contends that the court should have instructed the jury sua sponte on the subject of unconsciousness as a complete defense. The trial judge is obliged to instruct the jury ‘[on] those principles of law commonly or closely and openly connected with the facts of the case before the court.’ (People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 692, 348 P.2d 116, 125; People v. Hood, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.) But there must be substantial evidence on the issue sufficient to alert the trial judge that it is an issue in the case. (People v. Cram, 12 Cal.App.3d 37, 41, 90 Cal.Rptr. 393.)

With these rules in mind, we proceed to examine what was before the trial court. To take first the lesser of the two elements relied upon by appellant, we make reference to the testimony of a neurologist, who, having read appellant's electroence-phalogram, testified that a lesion in the temporal lobe can result in discharges with seizures characterized by behavior of which the patient may be only dimly or not aware at all. But this would not be likely to alert the judge to the defense of unconsciousness. The EEG did not show what the nature of the pathological abnormality was. The neurologist testified that it could have been a tumor, a scar, a vascular anomaly, or a vascular lesion. A vascular lesion, the doctor testified, in layman's language means a stroke. Besides, the emphasis placed on the testimony of the neurologist by defense counsel in the course of his testimony was placed on the effect of the abnormality in controlling aggressiveness, anger and other drives, and not on unconsciousness.

More reliance is placed by counsel on the testimony of one of the defense psychiatrists, Dr. Grossi. He testified that appellant was in such a state of psychosis that by reason of repression, he did not know the meaning of what he was doing. The doctor was not even certain that appellant knew he was stabbing the victim. But when the witness, under crossexamination, was asked, ‘What is the difference, mental or physical, if he was unconscious at the time?’, answered, ‘I didn't say ‘unconscious.” This, of course, does not in itself negate the defense of unconsciousness, but it does tend to negate warning to the judge that this defense might be an issue in the trial.

The cases cited by appellant in which sua sponte instructions on the defense of unconsciousness should have been given and judgments were reversed (although on other grounds as well) are People v. Moore, 5 Cal.App.3d 486, 85 Cal.Rptr. 194, and People v. Newton, 8 Cal.App.3d 359, 87 Cal.Rptr. 394. in both of these cases, the fact that unconsciousness was a defense was pointedly made. In both, the defendant testified: In People v. Moore, that the victim was defendant's friend and that he did not intend to kill him; and in People v. Newton, that after he had been shot be remembered nothing except crawling and later finding himself at the entrance to a hospital. He expressly testified that he was unconscious or semiconscious during this interval. In the case before us, defendant did not testify. Of course, he was not obliged to do so. But testimony of a defendant is an obvious means of alerting a trial judge to the existence of a defense which may call for a sua sponte instruction. Besides, the testimony of the one expert among the three who testified for the defendant, Dr. Grossi, was the only evidence which gave indication of the defense of unconsciousness, and even this, as we have said, was diluted by the doctor's own rejection of the word ‘unconscious.’ In Moore, the sole expert called by the accused pointed up the defense of unconsciousness by his testimony that the defendant was in a schizophrenic fugue state at the time of the shooting (5 Cal.App.3d at p. 489, 85 Cal.Rptr. 194).

But the most compelling feature about this matter of unconsciousness (an issue raised for the first time on appeal) is that trial counsel, at the conclusion of his opening argument to the jury, said, ‘Mr. Poddar's entitled to expect you as jurors to follow your sworn duty, and he is entitled to expect you to consider the evidence of mental illness that has been presented and to attempt to understand it fully, and he is entitled to expect you to come in with a verdict of manslaughter.’ This entreaty of the defense is wholly inconsistent with the defense of unconsciousness and would eliminate such defense from consideration by the judge, because unconsciousness (when not caused by voluntary intoxication) is a complete and not a partial defense. (People v. Wilson, 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820.)

II. Exclusion of Testimony of Anthropologist

At the trial, appellant offered to present as witness an anthropologist, possessor of a Ph.D. degree in social sciences, who had lived more than twenty years in India. She had particularly studied adjustment and difficulties of Indian students who had come to American universities. Appellant offered to prove that the expert would testify to cultural stresses which would affect the adjustment of appellant in shifting from the simple culture in which he had lived (he was of the Harijan caste, the untouchables) to the sophisticated milieu of an American university. More particularly, she would testify that the cultural strain becomes acute in relationships between men and women because the normal marriage in India is arranged for the parties. Altogether, according to the offer of proof, her testimony would give evidence of diminished capacity.

The judge was of the opinion that the witness was not qualified to testify on the direct consequences to appellant of cultural stresses, but the judge did offer to allow the witness to testify to facts of cross-cultural difficulties, and to allow counsel to ask hypothetical questions of psychiatric experts, the questions to include factual data supplied by the anthropologist. Appellant's counsel declined, on the ground that he wished to use the anthropologist as an independent expert witness on the issue of diminished capacity so that the jury could draw whatever inferences it found proper from this testimony itself and not as filtered through the testimony of psychiatrists.

In the first place, we find several of the cases cited by appellant to be inapplicable, namely, People v. Wolff, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959; People v. Webb, 143 Cal.App.2d 402, 412, 300 P.2d 130; People v. Conley, 64 Cal.2d 310, 324–325, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Wells, 33 Cal.2d 330, 357, 202 P.2d 53. These cases hold that the opinion of a lay witness may be admissible on the issue of diminished capacity, but in each of them the opinion was based on the behavior of the defendant as perceived by the witness, and therefore was justified under Evidence Code section 800. In the present case, the testimony would be that of an expert. Moreover, it would be that of an expert whose testimony, it was asserted, would go to the thought processes of the defendant.

We conclude that it was proper to exclude the testimony in the form in which it was offered. Diminished capacity is a mental infirmity. To the extent that it is to be evaluated by experts, the experts should be those qualified in the mental sciences. The effect, therefore, of such matters as cultural stress should be assessed by experts in the fields of psychiatry and psychology, and ultimately by the jury with the assistance of the testimony of such experts. We need not consider whether it would have been proper to exclude the anthropologist's testimony completely, because the court was willing, as we have said above, to allow the testimony as furnishing material for the opinions of the psychiatrists. It is desirable to give direction and control to the presentation of expert testimony of such delicate matters as the capacity of a person to deliberate or to entertain malice. To allow independent testimony on sociological, ethnic or like influences, not as reviewed by experts in psychological sciences, but as directly presented to the jury, would be to open the door to a vast amount of argument from various sources, the result of which would often be distraction of the jury and the removing of their deliberation from the essential element of the mental capacity of the accused.

Moreover, many of the cultural difficulties of appellant were presented by testimony of one of his companions, Mr. Mistree. Mistree's observations were taken into consideration by Dr. Grossi, a psychiatrist produced by the defense, who examined appellant after the homicide.

III. Exclusion of Testimony of Later Behavior

The court refused to allow testimony of a Mr. Martinez, a lay witness, which, according to the offer of proof, would have been that about four months after the killing, he had seen defendant in a certain attitude of preoccupation, talking to himself and making motions with his head and hands which would be consistent with paranoid schizophrenia. The testimony was refused as remote in time and also because of the leeway theretofore given to testimony on the state of mind of the defendant at the time of the homicide. The ruling was well within the discretion of the judge. The time was considerably remote and the testimony that had been permitted was extensive.

IV. Testimony of Court-Appointed Psychiatrist

Appellant complains that the testimony of Dr. Peschau should not have been allowed because the record does not affirmatively indicate that appellant was entitled to remain silent or of his right to counsel before the psychiatric interview commenced. No objection to the testimony was made and the issue cannot be raised for the first time on appeal. (People v. Schoonover, 5 Cal.App.3d 101, 108, 85 Cal.Rptr. 69; People v. Peters, 23 Cal.App.3d 522, 530–532, 101 Cal.Rptr. 403; People v. Myers, 262 Cal.App.2d 307, 310–312, 68 Cal.Rptr. 636.) It may well be that Dr. Peschau did admonish defendant and that if the point had been made, this would have been made clear. The doctor had been examining subjects for the superior court of various counties for a number of years. Moreover, the testimony of Dr. Peschau does not contain any incriminating statements which had been made by the defendant. The doctor simply testified to his opinion of appellant's mental condition.


V. Instructing the Jury on First Degree Murder

Appellant contends that although the verdict was of second degree murder, it was error for the court to instruct the jury on first degree murder, because by doing so the court made it less likely that the jury would find the lesser verdict of manslaughter. Appellant cites no authority to the effect that it is reversible error to instruct on a higher degree of homicide than that which could be sustained by the evidence.1 But assuming that in some cases it would be reversible error so to do on the theory that the jury, having before it the possibility of convicting of a more serious offence, may compromise on a higher degree than it otherwise would have found, we do not deem this such a case. This is so even if we further assume that had the jury found appellant guilty of first degree murder, this court on review might have found it necessary to effect a reduction. The trial judge need not have done so. An appellate court has the opportunity of studying a record at leisure. A court, trial or appellate, may reduce the offense, but cannot increase it. Therefore, if the trial judge erroneously has taken from the jury the ability to decide upon the higher offense, there is no means of making a correction. There was before the judge, when the motion was made for acquittal of murder of the first degree under section 1118.1 of the Penal Code, objective evidence of premeditation consisting of these elements: 1) appellant had been following the victim on various occasions; 2) he had talked about killing her; 3) he had asked if a gun such as that which he did use could kill a person; 4) on the morning of the killing he had visited the victim's home and had been rebuffed by her mother; 5) he had armed himself with the gun and with a long-bladed kitchen knife;2 6) he had pursued the girl to the sidewalk; 7) the later stab wounds, and not the pellet shots, were the cause of death; 8) it is inferable that he had made his decision that either Tanya would talk with him or he would kill her; 9) he disclosed his recognition of guilt by immediately calling the police.

It is argued by appellant that even if the evidence shows a plan on the part of appellant to kill Tanya, the evidence presented by the psychiatrists demonstrates that a certain amount of planning is compatible with an inability of the defendant to engage in the meaningful and mature deliberation which is required for first degree murder, and that because the testimony of the sole psychiatrist appearing for the prosecution would at most support the defendant's ability to intend to kill the girl and that his deed was an ‘antisocial act,’ there is uncontradicted expert testimony which precludes a finding of first degree. But, the making of fine distinctions, which have taken a great deal of thought to fashion, and often by divided reviewing courts, need not always be made by trial judges in presenting the cases to the jury.

Finally, we know from the record that the jury returned after deliberating for what the record seems to show was about three and a quarter hours, asking for further instruction on the difference between second degree murder and manslaughter, thus indicating (although not conclusively showing) that they had eliminated first degree from their deliberations and that they were not in the process of compromising with first degree in mind as one of the possibilities. Following repetition of the instructions on second degree murder and manslaughter, the jury deliberated one hour and 25 minutes before announcing that they had reached a verdict. From the external indicia, it would not appear that the jury arrived at its conclusion by mere compromise.

VI. Instructions on Sudden Quarrel or Heat of Passion

Appellant makes the point that the court gave several instructions on that species of voluntary manslaughter which arises from sudden quarrel or heat of passion. He declares, and the Attorney General agrees, that there is no evidence on this subject. The prejudice, argues appellant, comes from the fact that the instructions emphasize the elements that the passion must be such as would be aroused in the mind of an ordinarily reasonable person of average disposition, that the defendant may not set up his own standard of conduct but the jury is to apply the test of the ordinarily reasonable person, and that the emotion of revenge will not constitute heat of passion. All of these, appellant argues with much logic, tend to defeat the defense of diminished capacity because the very basis of that defense is that the accused is not the ordinarily reasonable man at the time of the occurrence.

Giving of irrelevant instructions is error because it is confusing. (People v. Jackson, 42 Cal.2d 540, 546–547, 268 P.2d 6.) Respondent replies that the error was invited because appellant offered an instruction which contained the statutory definition of voluntary manslaughter, which of course includes sudden quarrel or heat of passion. But this was a mere definition. Besides, this instruction was not given. In requesting CALJIC instructions, by check mark on a list, defendant omitted checking the sudden quarrel instruction. Nowhere in his opening statement did counsel for the defense make reference to sudden quarrel, and in his closing argument he specifically said, ‘We're not dealing with sudden quarrel or heat of passion.’ Counsel surely did not express a deliberate tactical purpose in suggesting the one instruction and cannot be held to the rule of invited error. (People v. Graham, 71 Cal.2d 303, 319, 78 Cal.Rptr. 217, 455 P.2d 153.) We need not decide whether the error, standing alone, would be prejudicial. It must be considered in combination with the error in instructing on second degree murder.

VII. Instruction on Second Degree Murder

CALJIC No. 8.30 was given, which appellant concedes was correct. This reads: ‘Murder of the second degree is the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.’

At a conference of the trial judge with counsel before the charge was given to the jury, counsel for appellant vigorously protested the giving of a second instruction, CALJIC No. 8.31, but the objection was overruled and the instruction was given, as follows: ‘Murder of the second degree is the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life. [¶] When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.’ If one asks, what act? the answer must be, in this case, stabbing the victim 17 times with some incised wounds into the liver, kidney, and lung, the last by a penetration about five inches deep; and in another case, it might be shooting the victim through the heart. Obviously, such acts are integral parts of the homicide. Or, if one asks, what base antisocial purpose? the answer must be, in this and in those homicide cases (by far the most numerous) in which a deadly assault is made with a weapon, none other than the purpose to kill.

The giving of the two instructions in cases of ‘integral part’ homicides produces this result: By CALJIC No. 8.30, to constitute second degree murder, there must be an intent to kill (although not fully deliberated as for first degree); on the other hand, by CALJIC No. 8.31, there need not be intent to kill if the very act which directly caused death was highly dangerous to life, with wanton disregard for life and was done for a ‘base, antisocial purpose,’ a lesser aim than that of killing. If this be a correct exposition of the law, why may not the prosecution always rely on the instruction which imposes on it the lesser burden? Or why should the first, CALJIC No. 8.30, be given at all?

CALJIC No. 8.31 differs from CALJIC No. 8.32, the second degree felony-murder instruction, in that the former does not refer to the act which carries high probability of death as a felony. But it is reasonable to apply the same principle to the two. It has been held in many cases that CALJIC No. 8.32 must not be given in cases where the underlying felony is an integral part of the homicide. (People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22; People v. Sears, 2 Cal.3d 180, 186, 84 Cal.Rptr. 711, 465 P.2d 847; People v. Satchell, 6 Cal.3d 28, 34, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Wesley, 10 Cal.App.3d 902, 906, 89 Cal.Rptr. 377; People v. Butler, 12 Cal.App.3d 189, 194, 90 Cal.Rptr. 497.) The instruction is proper in cases where the underlying felony is an independent one, is inherently dangerous to life, and is done with wanton disregard for life and with a base, antisocial purpose. Examples are People v. Calzada, 13 Cal.App.3d 603, 606, 91 Cal.Rptr. 912 (driving on a highway under influence of heroin, death nesulting); People v. Taylor, 11 Cal.App.3d 57, 60, 89 Cal.Rptr. 697 (furnishing of heroin which causes death); People v. Mattison, 4 Cal.3d 177, 184–185, 93 Cal.Rptr. 185, 481 P.2d 193 (furnishing methyl alcohol causing death, but without intention to kill).

The cases holding the instruction to be improper where the underlying crime is not a collateral one, are based upon the proposition that the instruction relieves the jury of the obligation of finding malice in order to constitute second degree murder. The giving of the instruction, the court has said in cases where the felony was an integral part of the homicide, is a bootstrapping operation. (People v. Wilson, supra, 1 Cal.3d at pp. 437–438, 82 Cal.Rptr. 494, 462 P.2d 22.) In the case before us, the instruction does not refer to an underlying felony, calling it by name, but does refer to such an act as could not be anything but a felonious assault which culminated in the killing. The bootstrapping is present even though the definition of the felony is not. It is possible to conceive cases calling for CALJIC No. 8.31 in which acts dangerous to life are done with wanton disregard therefor and with base, antisocial motive, where the acts would not be made a crime by a statute, or where the felony-murder rule need not be invoked. For example, in People v. Thomas, 41 Cal.2d 470, 261 P.2d 1, it was said, in a concurring opinion, that if the defendant, as he testified, had shot towards a point near the victim, not intending to kill, but because it gave him sexual satisfaction, this would meet the ‘base, antisocial purpose’ test. (In Thomas, first degree was sustained on the lying-in-wait theory.)

We are aware that our reasoning conflicts with that of the court in People v. Wyatt, 22 Cal.App.3d 671, 679, 99 Cal.Rptr. 674. Wyatt, who asserted diminished capacity because of intoxication imposed on paranoid tendencies, had fired six shots into the victim. On appeal, the court sustained CALJIC No. 8.31 on this syllogistic pattern: One is guilty of malice aforethought who with wanton disregard for human life does an act that involves a high degree of probability that death will result (citing People v. Conley, 64 Cal.2d 310, 321, 49 Cal.Rptr. 815, 411 P.2d 911). But one who kills with malice aforethought is guilty of murder. Therefore, etc.

The difficulty is with the generality of the application of the major premise. Our thought is that the major premise does not apply where the act dangerous to life is the mortal act itself.3 If this were not so, in cases where diminished capacity is asserted, that defense would be unjustifiably enfeebled.

VIII. The Errors as Prejudicial

In considering whether the errors were prejudicial to appellant, we take notice of two factors: First, the expert testimony relating to appellant's mental condition, and second, the circumstances of the rendition of the instructions on the requested repetition. Something has been said at the beginning of this opinion about the first of these. At this point, we remark that three psychiatrists and one clinical psychologist agreed that appellant suffered from chronic schizoid paranoia. One of these, Dr. Grunberg, was engaged by the Berkeley police and made his examination within 24 hours of the killing. Another, Dr. Moore, a clinical psychologist, had interviewed appellant seven times before the homicide, had informed the police of the likelihood that appellant would kill the girl, and had recommended commitment to a mental institution. Dr. Moore's opinion as to the necessity of commitment was corroborated before the homicide by Dr. Gold, a psychiatrist. It is not fully explained why the recommendations for commitment were not carried into effect. Dr. Grossi, who examined appellant after the homicide, made the diagnosis of paranoia. The testimony of Dr. Peschau, the court-appointed psychiatrist who was called by the prosecution, on direct examination was exceedingly laconic. Essentially, his testimony consists of two sentences: that appellant had the capacity to intend to kill the girl, and the capacity during the commission of the deed to understand that it was an antisocial act. Had the trial been free from substantial error, the testimony of Dr. Peschau might have been sufficient to sustain the judgment, even against the weighty testimony of the other experts. But the sharp division of opinion points up the seriousness of any instructions to the jury.

Now to the second factor. When the jury returned to ask for instructions on second degree murder and manslaughter, the instructions on sudden quarrel, including the ‘ordinarily reasonable person’ test, were repeated, but certain other instructions, relating to diminished capacity, which had been given in the original charge, were not. Among the omitted ones was this: ‘Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.’ To be sure, some references to diminished capacity were given in the repeated instructions, and the jury had not specifically asked for repetition of instructions on diminished capacity, but since this issue was of the essence of the case, surely it would have been better to have repeated all of the instructions relevant to it. We do not say it was error not to do so, but that this is a factor to be considered in determining whether the erroneous instructions were prejudicial.

IX. Disposition of the Case

Upon consideration of the entire cause, we find that appellant's conviction of a felonious homicide is to be sustained, but that because of the errors described herein, appropriate disposition is a reduction from second degree to manslaughter. Therefore, under the provisions of Penal Code section 1181, subdivision 6, and following the procedure employed in People v. Kelley, 208 Cal. 387, 393, 281 P. 609 (and see People v. Gibbs, 12 Cal.App.3d 526, 548, 90 Cal.Rptr. 866, where reduction was effected because of erroneous instructions), we remand the cause to the trial court with directions to enter judgment against defendant finding him guilty of manslaughter, and thereupon to pronoumce judgment upon him as prescribed by law.


1.  Appellant cites People v. Aikin, 19 Cal.App.3d 685, 97 Cal.Rptr. 251, in which the prosecutor had not tried or argued the case on a theory of first degree murder and in which the court remarked (at p. 700, 97 Cal.Rptr. 251) that under the circumstances it would have been better for the court to have instructed the jury that if they found defendant guilty of murder, it would be of the second degree. But this was not held to be error. There were several errors in the case and the Attorney General had requested that the judgment be reduced to involuntary manslaughter, on suggestion of the court.

2.  At trial, it was argued by defense counsel that the accused had armed himself in order to defend against attack by Tanya's father or brother if they should return to the home. This inference, though possible, no doubt was rejected by the jury. To have armed himself at all with calculation would tend to show thoughtful preparation.

3.  The ‘dangerous act’ sort of malice was not the basis for the decision in People v. Conley, where there was reversal of a first degree conviction under faulty instructions, on other points. In the two cases cited in Conley, the rule had no application. In People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, cited in Conley, first degree conviction because of killing of a coconspirator by the intended victim of a robbery was reversed; and in People v. Thomas, 41 Cal.2d 470, 261 P.2d 1, also cited in Conley, the lying-in-wait sustained the judgment. Initiating a gun battle has been given as an example of the dangerous act. If the intended victim or a police officer kills in reasonable response to such an act, the defendant is guilty of murder. (People v. Gilbert, 63 Cal.2d 690, 704, 47 Cal.Rptr. 909, 408 P.2d 365.)

DEVINE, Presiding Justice.

RATTIGAN, and BRAY*, JJ., concur.

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