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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerard John POLLARD, Defendant and Appellant.

Cr. 38779.

Decided: September 16, 1981

Quin Denvir, State Public Defender, Carole Morita, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow, Timothy E. Cary, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged with murder.   He pleaded not guilty and not guilty by reason of insanity.   Three psychiatrists were appointed pursuant to Penal Code sections 1026 and 1027.

At the time of trial defendant waived a jury and agreed that the court could decide the issues raised by both pleas on the basis of the transcript of the preliminary hearing, and the reports of the psychiatrists augmented by testimony from those doctors.

Thus the trial court on identical evidence first found defendant guilty of second degree murder and then not guilty by reason of insanity.   He was then committed pursuant to Penal Code sections 1026 and 1027.   Defendant appeals.   We affirm.

From an objective standpoint, the evidence of the circumstances of the killing, which included a statement made to an acquaintance by the defendant shortly afterwards, shows that defendant sought out his brother-in-law and deliberately shot him because of defendant's anger over the victim's alleged infidelity to defendant's sister.

From a subjective standpoint the psychiatrists all opined that the defendant was “insane” and incapable of harboring malice, controlling his conduct, making purposeful decisions or intending to kill.

The sole issue presented by this appeal is whether there is a legal inconsistency between a finding that defendant was guilty of second degree murder and at the same time not guilty by reason of insanity, and if so to what relief, if any, defendant is entitled.

 The commitment of the defendant for insanity is an appealable judgment.  (Pen.Code, § 1237;  People v. Vanley, 41 Cal.App.3d 846, 116 Cal.Rptr. 446.   The scope of review extends to any question of law involved in any ruling prior to the judgment which affected the substantial rights of the defendant.  (Pen.Code, § 1259.)

Inasmuch as defendant's commitment to a mental hospital as a result of his having been found not guilty by reason of insanity is limited by the maximum term for the underlying offense (In Re Moye, 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097;  Pen.Code, § 1026.5) a substantial issue is involved in the crime which defendant was found to have committed, notwithstanding that he has been found not guilty by reason of insanity and thereby excused from penal consequences therefor.

An essential ingredient of the crime of murder is the mental element or mens rea which historically has been described as “malice aforethought” (Pen.Code, §§ 187, 188), an amorphous concept which, for want of a better description, is that state of mind which the courts have found sufficiently culpable to make an unlawful killing murder.

California's attempt at statutory definition is to be found in Penal Code section 188, as follows:

“Such malice may be expressed or implied.   It is expressed when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

In People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, the Supreme Court of California attempted its own definition of malice aforethought by adding to the above-quoted statutory language the following concept.

“The law prohibits acts highly dangerous to human life that cause serious injury or death, unless legal cause or excuse is shown.   Malice aforethought, either express or implied, is manifested by the doing of such an act by a person who is able to comprehend this prohibition and his obligation to conform his conduct to it .”  (Fn. 4, at p. 324;  emphasis added.)

Thus in California, malice aforethought now includes comprehension of the wrongfulness of the act and awareness of an obligation to conform one's conduct to society's restrictions—an element of cognition.

In People v. Cantrell, 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256, and People v. Poddar, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342, the court broadened the definition of malice aforethought to include the ability in fact to conform one's conduct—a volitional element.

Prior to this rather recent evolution of the definition of “malice aforethought” the Supreme Court adopted for California the concept of “diminished capacity” whereby a defendant may “rebut” the existence of the mental element required for a particular crime by evidence of mental disease.   (People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492;  People v. Wells, 33 Cal.2d 330, 202 P.2d 53;  People v. Castillo, 70 Cal.2d 264, 74 Cal.Rptr. 385, 449 P.2d 449.)   Inasmuch as the prosecution has the burden of proving all of the elements of the crime beyond a reasonable doubt, it is more accurate to say that under the “diminished capacity” concept, a defendant may offer evidence of mental disease in order to raise a reasonable doubt as to whether he had the requisite mens rea for the crime with which he is charged.

In Conley, supra, followed by People v. Castillo, supra, the court ruled an unlawful, albeit intentional, killing without malice, by definition, is manslaughter notwithstanding the absence of the “sudden quarrel,” or “heat of passion” specifically mentioned in the statute defining manslaughter, (Pen.Code, § 192) and that a homicide, where malice is absent as a result of “diminished capacity” to harbor malice, is a “non-statutory” manslaughter.

The foregoing discussion concerns the trial of the issue of defendant's guilt which is raised by a plea of not guilty.   Where a defendant enters pleas of both not guilty and not guilty by reason of insanity, Penal Code section 1026 provides for a two-step or bifurcated procedure whereby the issue of whether defendant is guilty of any crime, and if so what crime, is first determined by the trier of fact operating under a conclusive presumption that defendant was sane at the time of the commission of the offense.

Upon a finding that defendant is guilty of a criminal offense, the trier of fact is then, in the second phase of the proceeding, asked to determine whether or not the defendant was sane at the time of the commission of the offense.   In that latter proceeding, there is a continuing but rebuttable presumption that defendant was and is sane and defendant has the burden of proving insanity by a preponderance of the evidence.  (In Re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465.)

In trying the “diminished capacity” defense, evidence may be offered to show that because of mental disease, defendant lacked the capacity for the requisite mens rea.   In trying the issue of defendant's sanity—the second phase of the proceedings—evidence may be offered to show that defendant was “insane” as that term has been defined by case law.   That term is more correctly characterized as “non-responsibility,” i. e., the level of mental disorder at which society has elected to excuse an individual from the penal sanctions which ordinarily would attach to his conduct.

The distinction between the two concepts, i. e., “diminished capacity” on the one hand and “non-responsibility” on the other—and the types of evidence which are admissible in the two different proceedings is, at best, not clear cut.

It seems evident that the Legislature intended, by the enactment of Penal Code section 1026 and its conclusive presumption of sanity during the first phase of the proceedings, to limit the inquiry, into whether a defendant was suffering from mental disease, to proceedings conducted pursuant to a plea of not guilty by reason of insanity.   Be that as it may, that intention has effectively been overtaken by the Supreme Court's embracing of the “diminished capacity” concept and the conclusiveness of the presumption of sanity during the “guilt” phase of the proceedings has as a practical matter been substantially, if not completely, eroded.

In spite of this apparent conflict, the Supreme Court and the Courts of Appeal have continued to attempt to distinguish between the two concepts.   In In Re Walker, 10 Cal.3d 764, 112 Cal.Rptr. 177, 518 P.2d 1129, the Supreme Court declared that even after the adoption of “diminished capacity” in California, a defendant in the “guilt” phase of the proceedings was conclusively presumed to be “sane” although not conclusively presumed to be “legally capable of committing crime.”  (Also see People v. Yanikian, 39 Cal.App.3d 366, 114 Cal.Rptr. 188;  People v. Nicolaus, 65 Cal.2d 866, 56 Cal.Rptr. 635, 423 P.2d 787.)

At the time of In re Walker, supra, and People v. Nicolaus, supra, the test for “non-responsibility” or “insanity” was the right and wrong test of the McNaughton rule.   Hence the distinction between evidence on that issue and evidence of “diminished capacity” was still discernable though somewhat dim.   As we will discuss, infra, that situation has changed.

In People v. Drew, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, the Supreme Court recently adopted for California the American Law Institute test of “insanity” or “non-responsibility.”

That test is “ ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ ”  (P. 345, 149 Cal.Rptr. 275, 583 P.2d 1318.)

It is at once apparent that the combined cognitional and volitional elements of the newest definition of “non-responsibility” are identical with those elements in the definition of “malice aforethought.” 1  It follows logically that one cannot at the same time be “insane” under the test adopted in People v. Drew, supra, and possess the mental element of malice required for the crime of murder.

Defendant argues that inasmuch as he proved his case of “insanity” by a preponderance of the evidence, a fortiori, he retroactively raised a reasonable doubt as to his ability to harbor malice.   We disagree and view the matter in the converse.

The prosecution's burden of proof on the issue raised by the defendant's plea of not guilty was to prove, beyond any reasonable doubt, that the killing was unlawful and as a result of malice aforethought—a much higher burden of proof than by a preponderance of the evidence.   In this the prosecution was successful and the evidence supports that judgment.

There is nothing in the record to indicate that the trial court failed to give consideration to defendant's claim of “diminished capacity” as it affected the element of malice.

Had the defendant entered only a plea of not guilty and was appealing from a judgment of guilt we would have no hesitancy in affirming the conviction on the basis of the objective evidence.

 Conversely, had defendant entered the single plea of not guilty by reason of insanity, the result would be an admission of guilt of the charged offense, i. e., murder.  (People v. Haygood, 179 Cal.App.2d 112, 3 Cal.Rptr. 455;  People v. Stewart, 89 Cal.App.3d 992, 153 Cal.Rptr. 242;  Pen.Code, § 1016)  The plea of not guilty by reason of insanity is one of confession and avoidance.  (People v. Wells, supra;  People v. Love, 21 Cal.App.2d 623, 70 P.2d 202) and evidence of defendant's insanity offered by way of avoidance has no bearing on the confessional nature of that plea.

In practical application, the defendant in a homicide case by pleading not guilty and not guilty by reason of insanity, now gets two “bites at the apple” but the success of the second “bite” does not retroactively affect the first.

Once the issue raised by the plea of not guilty is resolved, a new and separate proceeding is commenced under the plea of not guilty by reason of insanity and at that stage the situation is as if defendant had entered the single plea of not guilty by reason of insanity.   He may not in this second proceeding question his guilt as determined in the first proceeding.

The judgment is affirmed.


1.   We recognize that the test of “non-responsibility” is cast in a negative fashion and that it is more correct to say that the test for “responsibility” or “sanity” is identical with the definition of “malice aforethought.”

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.