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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roberto Nerios HERNANDEZ, Defendant and Appellant.


Decided: August 21, 1984

Ronald A. Parravano, Monterey, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Deputy Atty. Gen., Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

On appeal from a judgment of conviction for attempted murder with great bodily injury, appellant contends that the trial court erred in its interpretation and application of Penal Code provisions regarding his defenses of diminished capacity and insanity.   We find no such error and affirm the judgment.

The Offense

The salient facts are not in dispute.   At about 11 p.m. on June 14, 1982, the victim, age 61, who was drunk, was attacked by appellant with a knife in the bathroom of a bar.   The victim was cut along the jawbone, inside the mouth, and on the ear.   Appellant stated that he was a revolutionary from El Salvador and told the victim, “ ‘I'm going to kill you because you killed my father.’ ”   When the victim fell, appellant kicked him unconscious.   Police apprehended appellant in the act of placing a green rope or cord around the victim's neck.

It appeared to the police that appellant had been drinking but was not intoxicated.   Later he told them that he had been in the bathroom of the cafe, had stabbed a man with a pocket knife, and had intended to kill him because the man had killed appellant's father a few years before in El Salvador.   He intended to strangle him, slowly, with the cord.

The Defense

Appellant relied on a defense of diminished capacity and also pled not guilty by reason of insanity.   Two psychiatrists testified in his behalf.   The first, Dr. Hicks, found that appellant “had suffered from a schizophrenic disorder, paranoid type, in remission.”   When questioned about the possible relationship between appellant's crime and his delusion regarding the victim having killed his father, Dr. Hicks stated, “․ the individual might feel that a stranger on the street was an individual that had killed his father or had done so in the past.   He may then, in revening himself upon the person who in his delusion had done this terrible act, form the intent to kill this person to get even.   The capacity to form the intent is there, but the reason to form that intent is the product of the psychotic illness.”   The doctor then opined that appellant was insane, within the M'Naghten test, at the time of the act and stated that “[i]n the context of the delusion” appellant did not understand the wrongfulness of his act and did not have the ability to understand the nature and quality of his act.

Dr. Fithian agreed that appellant had “[p]robable schizophrenia, paranoid type” and that he was not sane at the time of the offense.   In his opinion appellant did not know right from wrong because of his delusional system.   He believed that appellant knew he was using a knife and hurting someone but that he did not have much control over his acts.


Under the law applicable to this proceeding (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149), the defense of diminished capacity had been abolished, but evidence of mental disease, defect, or disorder was admissible on the issue of whether appellant actually formed the requisite intent to commit the crime.  (Pen.Code, §§ 25, 28;  People v. Jackson (1984) 152 Cal.App.3d 961, 199 Cal.Rptr. 848, hg. den. May 31, 1984.)   Also, the test to be applied where a defense of insanity was presented had been changed by initiative (Proposition 8) adopted June 8, 1982, from the American Law Institute's Model Penal Code standard back to the M'Naghten rule.  (Pen.Code, § 25, subd. (b);  see People v. Fields (1983) 35 Cal.3d 329, 368, fn. 19, 197 Cal.Rptr. 803, 673 P.2d 680;  see generally People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318.)

 Although appellant couches his arguments on appeal in constitutional terms, the true thrust of his contentions is that the trial court's rejection of his diminished capacity defense and his insanity plea was not supported by the evidence.   We do not agree.   There was ample evidence from which the court, sitting as the trier of fact, could properly have inferred that appellant harbored the requisite specific intent.   Dr. Hicks testified that a person with appellant's alleged delusional system would have the “general ability” to reflect and form the specific intent to take a life.   Dr. Fithian testified that appellant probably knew he was using a knife and hurting someone.   The circumstances of the offense and appellant's statements after it also support the trial court's determination.

 The same reasoning applies to the insanity defense.   Unanimity of expert opinion that appellant was suffering from schizophrenia did not compel a finding that he was legally insane.  (People v. Wolff (1964) 61 Cal.2d 795, 804, 40 Cal.Rptr. 271, 394 P.2d 959;  accord, People v. Drew, supra, 22 Cal.3d at p. 350, 149 Cal.Rptr. 275, 583 P.2d 1318.)   That determination was for the trier of fact, which was required to take into account, inter alia, the material on which the experts based their opinions and the reasoning which led them to their conclusions.  (Ibid.)  Although Dr. Hicks stated the conclusion that appellant, within his delusion, did not understand the wrongfulness of his behavior and did not have the ability to understand the nature and quality of his act, the record reveals that the material considered by the doctor was merely the fact of the delusion itself, and his reasoning process in going from that fact to his conclusion was not discussed.   Similarly, Dr. Fithian's conclusion that appellant did not know right from wrong does not find substantial support in the record insofar as factual basis and supportive reasoning are concerned.  (See People v. Drew, supra, 22 Cal.3d at pp. 350–351, 149 Cal.Rptr. 275, 583 P.2d 1318.)

 In essence, both experts agreed that appellant's delusion that the victim had killed his father rendered him legally “insane.”   But the fact that appellant may have been suffering from the stated delusion would not have prevented his acts from constituting attempted murder, for if the facts had been as he perceived them, they would have provided no justification or excuse for the crime.  (Cf. People v. Scott (1983) 146 Cal.App.3d 823, 831, 194 Cal.Rptr. 633;  see People v. Nash (1959) 52 Cal.2d 36, 45, 338 P.2d 416;  Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 958–960.)   Furthermore, his actions and statements both before and after the crime supported the trial court's rulings.  (See People v. Wolff, supra, 61 Cal.2d at p. 805, 40 Cal.Rptr. 271, 394 P.2d 959.)

We conclude that the trial court did not err in finding appellant guilty as charged.

The judgment is affirmed.

I dissent.   While the record here is not as clear as desirable, I am satisfied that the trial court erroneously literally applied the conjunctive language of Penal Code section 25, subdivision (b) to find appellant sane.   I agree with People v. Horn (1984) 158 Cal.App.3d 1014, 205 Cal.Rptr. 119, that Penal Code section 25, subdivision (b) reinstated the M'Naghten standard.   The trial court here erroneously concluded that despite appellant's delusional state he knew that he was committing a wrongful act.   Accordingly, I would reverse and remand for a new hearing on the sanity issue on the basis of Horn, supra.

I also agree with the majority in Horn, supra, footnote 6, 158 Cal.App.3d at page 1022, 205 Cal.Rptr. 119, that if Penal Code section 25, subdivision (b) is read in the conjunctive, it is identical to the “wild beast test,” which I would conclude is a violation of fundamental due process (Cal. Const., art. I, §§ 7(a) and 15.)   The due process guarantees of our state Constitution are broader than those of the United States Constitution.  (Cf., People v. Ramirez (1979) 25 Cal.3d 260, 265–269, 158 Cal.Rptr. 316, 599 P.2d 622;  Leland v. Oregon (1952) 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302.)

BARRY–DEAL, Associate Justice.

SCOTT, J., concur.

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