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

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael William SANDERS, Defendant and Appellant.

Cr. 43736.

Decided: March 30, 1984

Anson & Milberg, and Jonathan Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.


Appeal from judgment of conviction of second degree murder after a court trial.


The factual dispute in this case concerns only whether or not appellant in fact harbored malice aforethought in the death of the victim, an elderly man whom appellant killed by stabbing him through the eye with a pair of scissors.   He raises defenses based on voluntary intoxication.1

On February 14, 1982 Linda Washington, appellant's companion, was awakened by a beating being administered to her by appellant.   Ms. Washington eluded appellant who then ran out of the apartment.   Ms. Washington then awakened a neighbor, George Thomas, who pursued appellant.   Initially, appellant eluded Thomas but later Thomas and a companion, Larry Milton, found appellant sitting in a trailer next to the body of the victim.   A pair of scissors protruded from one eye of the victim and appellant, sitting naked on the bed, stated in reference to the victim's dog, “This dog is going to save the world.”   Mr. Thomas then put a robe on appellant and appellant said, “This robe is going to save the world.”   Appellant appeared to Thomas to be “completely out of it.”   Money was strewn about the bed and floor of the trailer.   Thomas asked appellant if the money was his and appellant said “Yes.”   He then told appellant that they would have to get out of there before the police arrived and appellant stated “Larry, help me, help me, Larry.”

Appellant was also seen running naked and stumbling down the street by a 14-year-old boy, James Berkey.   The victim's neighbor, David Aulbridge, was awakened by the sounds of screaming and hollering coming from the trailer.   He heard someone holler “Help me, Help me” from the trailer.   He later saw appellant, naked, coming out of the trailer, accompanied by Thomas and Milton.

Appellant does not deny causing the victim's death.   He stated to Dr. Siegel, the psychotherapist appointed to examine him, that he remembered being in the trailer, that an old man with a grayish beard had reached up to him, that he had broken the old man's arm, and that he had thought that the old man was a devil so he attacked him.   He did not describe the exact nature of the attack but it is undisputed that by attack he must have meant that he had plunged the scissors into the old man's eye.

John Stalberg, a psychiatrist, testified that a person suffering from a moderate or severe amount of PCP intoxication could reach the level of unconsciousness and that a person who reached that state of unconsciousness would not be able to form particular types of specific mental intent.   The doctor found that appellant had been a heavy user of many drugs for 20 years.   However, Dr. Stalberg also testified that appellant was not insane in that he did not exhibit a state of “settled insanity.”   It was Dr. Stalberg's opinion that appellant was mentally clear two days after the offense when the PCP had left his system.   Appellant was mentally ill only while the PCP was in his body.   Appellant had smoked some five cigarettes dipped in PCP which Dr. Stalberg estimated to have been between 12 and 14 milligrams of PCP which he characterized as a significant or substantial amount.

Dr. Ronald Siegel, a psychologist and psychopharmacologist, testified as an expert concerning PCP.   He had examined appellant.   Dr. Siegel gave a graphic description and explanation of the effects of PCP on an individual.

He then testified as to appellant's history of drug use and finally testified as to the incident in question.   It was his opinion that although appellant was a regular user of PCP, he had a heightened hallucinatory episode on the 13th and 14th of February.   His rationale for this was that the dosage of PCP that appellant actually got was much more than he was used to.   Appellant told him that during the three days that he had been smoking PCP he had watched a number of movies.   One movie that he had watched was an army movie with Burt Lancaster.   Later, he believed that he was the character that Burt Lancaster was playing, an officer in the German army.   He thought he had died and had been brought back as a black person.   He thought his companion, Ms. Washington, sleeping next to him was a man who had had an operation and for some reason he thought that he should kill her or him.   And he remembered holding Ms. Washington by the throat.   He came to momentarily and she told him that he was going to hurt her and her baby.   She was pregnant.   He came to his senses and ran out the door.

Appellant had viewed another movie several times over the three days in question.   A movie called “Phantasm.”   Dr. Siegel also viewed this movie and testified that it depicts a group of nonhumans wearing shrouds, that there is a boy in the movie who is given a riddle to solve and he must solve it to save the race of man.   A monster with red and green eyes and an old grayish man who is the agent of the nonhumans who are trying to take over the world are also depicted.   In the movie the old man is killed by a scissorlike device that flies around on a ball.   The device attaches itself to the head of the victim.   The scissors go into his eyes or into the side of the head, depending on where they hit the victim and a drill is drilled into the forehead and the blood is pumped out of the body.   The boy in the movie obtains superhuman powers and is able to fly.

Appellant told Dr. Siegel that after he ran out into the street he mistook a pedestrian for the monster with the red and green eyes, that he remembered being in a house, that he had to solve a riddle or the whole black race would be destroyed, that he felt that he had super powers but that he needed his suit like Superman.   He was nude and without his Superman suit he could not exercise his powers.   He remembered breaking the old man's arm and attacking him because the old man was the same old man with the grayish beard as in the movie.   Dr. Siegel stated that the circumstances of the killing, especially the scissors in the eye and a puncture wound on the forehead, were dramatically similar to the movie.

At the close of testimony the trial court found appellant guilty of murder in the second degree.   Malice was implied in this situation since there was no evidence of provocation and the ferocity of the attack evidenced a wanton disregard for human life.   The trial court found that appellant was not unconscious at the time of attack.


Appellant contends:  (1) he was temporarily insane as a matter of law;  (2) he was unconscious as a matter of law;  (3) there was insufficient evidence of implied malice;  and (4) the trial court failed to determine lack of malice due to drug intoxication.


1. Temporary Insanity

 There is no merit to appellant's contention that he was insane as a matter of law.   Not only did appellant fail to raise the defense of insanity below, and thus there was no separate trial thereon, (§ 1027) but the experts appointed to examine him stated that he exhibited neither a permanent nor a settled state of insanity but rather he appeared to be intoxicated due to the ingestion of PCP.

2. Unconsciousness

 Appellant's argument that the trial court erred in rejecting the defense of unconsciousness is also without merit.   The trial court specifically rejected evidence that appellant was unconscious at the time of the killing.   The issue of unconsciousness due to voluntary intoxication is governed by section 22 rather than section 26, subdivision 4 [formerly subd. 5].  (People v. Kelly (1973) 10 Cal.3d 565, 573–574, 111 Cal.Rptr. 171.)

 The court was sitting as the trier of fact and the issue of intoxication and its effect upon the actual finding of intent or of a specific mental state is for the trier of fact.  (People v. Dement (1957) 48 Cal.2d 600, 604, 311 P.2d 505;  People v. De Moss (1935) 4 Cal.2d 469, 473–474, 50 P.2d 1031;  People v. Morga (1969) 273 Cal.App.2d 200, 209, 78 Cal.Rptr. 120;  CALJIC 4.21.)   There was affirmative evidence of consciousness.   Appellant by his own admission to Dr. Arnold Siegel was conscious immediately before beating Ms. Washington, running out of the house and seeing the jogger.   He was conscious of breaking the victim's arm and of attacking him.   The fact that appellant stated he thought he was attacking a devil rather than a man, and that he could not recall the act of plunging the scissors into the old man's eye was simply some evidence negating consciousness to be weighed against the opposing evidence.

3. Sufficiency of Evidence to Imply Malice

Appellant argues that the evidence was insufficient to support a finding of implied malice.  “[A] defendant acts with malice when he ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’  [Citation omitted.]”  (People v. Cruz (1980) 26 Cal.3d 233, 250, 162 Cal.Rptr. 1, 605 P.2d 830.)

“Penal Code sections 187 and 188 define murder as the unlawful killing of a human being with malice aforethought;  the necessary malice is implied when no considerable provocation appears.   An assault with a deadly weapon made in a manner to endanger life and resulting in death is sufficient to sustain a conviction of second degree murder, as the requisite malice is implied from the assault.  [Citations.]”  (People v. Pacheco (1981) 116 Cal.App.3d 617, 625, 172 Cal.Rptr. 269.)

 In the instant case the trial court implied malice from the act of plunging a pair of scissors into the eye of an old man and on into his brain.   The trial judge properly found implied malice based on the violent nature of the act itself and the lack of provocation for it.

Appellant relies on People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342 for the proposition that malice requires an awareness of the obligation to act within the general body of laws regulating society and that the defendant acted in spite of such an awareness.  (Id. at pp. 759–760, 111 Cal.Rptr. 910, 518 P.2d 342.)   The reliance is misplaced in light of the 1981 amendment to Penal Code section 188 effective January 1, 1982 prior to the commission of this crime.   That amendment read:  “An awareness of the obligation to act within the general body of laws regulating society is not included within the definition of malice.”  (Stats.1981, ch. 404, § 6.)  Therefore, malice aforethought no longer includes such a requirement, and to that extent People v. Poddar has been legislatively overruled.

As to the provision that the appellant act with a base antisocial purpose, it is just this purpose which is implied from the lack of provocation for the act and the nature of the act itself.   As the Supreme Court recently stated:  “We have said that second degree murder based on implied malice has been committed when a person does ‘ “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life” ’ ․”  (People v. Sedeno (1974) 10 Cal.3d 703, 719, 112 Cal.Rptr. 1, 518 P.2d 913, quoting from People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.)   Phrased in a different way, “malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130].)”  (People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

 Appellant places too much reliance on the testimony of the experts in this case.   Where experts are asked to speculate about a defendant's state of mind at some time in the past their opinions, even when unanimous, are not necessarily controlling.  (People v. Drew (1978) 22 Cal.3d 333, 350–351, 149 Cal.Rptr. 275, 583 P.2d 1318;  People v. Wolff (1964) 61 Cal.2d 795, 810–811, 40 Cal.Rptr. 271, 394 P.2d 959.)

“ ‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’  [Citation omitted.]”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)   The appellate court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citations.]”   In so doing the entire record must be reviewed to determine if the evidence supporting the verdict is substantial.  (Id. at pp. 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)   The evidence in the instant case supports the trial court's finding of implied malice.

4. Effect of Voluntary Drug Intoxication on Malice

In this context appellant claims that the trial court refused to consider the effect of voluntary intoxication and erred by “not applying” section 22, subdivision (b) and “ignoring” the analogous second sentence of section 28, subdivision (a).   Appellant's contention is unavailing.   It is true the trial court in announcing its finding stated an inability to reconcile sections 22, subdivision (b) and 28, subdivision (b);  but he did not deny appellant any opportunity to produce evidence to negate the actual formation of malice.

In explaining his finding the trial judge correctly said he was not applying “diminished capacity.”   The trial court stated “The only thing I can say is since the Legislature, even if they did it in an imperfect way attempted to abolish the defense of diminished capacity and in doing so amended 22, 28 and 29 of the Penal Code in such a manner that they cannot be logically reconciled, [the] court is going to find the defendant guilty of murder in the second degree and invite counsel to take the matter up on appeal and maybe get the benefit of the consensus of opinion as to what these changes really meant․”   In answer to defense counsel's request that the court clarify its ruling the court stated:  “I am treating 22b and 28b at the same time that there is no defense sufficient to reduce the offense as far as the intention of the Legislature was concerned.   ¶ I am simply not applying diminished capacity.   If indeed under the circumstances a Court of Appeal finds that it should be applied, then I take it that they will reduce the verdict.   I am simply not applying it in any way.   ¶ I am saying that 22b and 28b are simply not reconciliable in my mind, and I am applying 28b rather than 22b.”

The court explained this as an attempt to follow the legislative intent behind the abolition of the defense of diminished capacity (§ 28, subd. (b)).  The court's difficulty in reconciling is understandable.   The section operates in a “convoluted area” 2 of law.   However, the court reached the correct result and any error in its statement is therefore harmless.

Part of the court's uncertainty over the use of section 22, subdivision (b) stems from the court's finding of consciousness under section 26, subdivision (4) rather than section 22, subdivision (b).

The court decided that having found that appellant was conscious, the only other issue which section 22, subdivision (b) could address would be diminished capacity;  and since such a defense had been abolished by section 28, subdivision (b), he was unable to reconcile this with section 22, subdivision (b).   Had the trial court realized that in situations of voluntary intoxication, section 22, subdivision (b) rather than section 26, subdivision (4) controls the issue of consciousness (People v. Kelly, supra, 10 Cal.3d 565, 111 Cal.Rptr. 171, 516 P.2d 875), the court's inability to reconcile the two code sections would thus have been cured.

Under section 22, subdivision (a), quoted at the outset, appellant could not introduce evidence of voluntary intoxication to prove that his capacity was so diminished by intoxication that he could not harbor “malice aforethought.”   In section 28, subdivision (a), the Legislature declared that likewise evidence of “mental disease, mental defect or mental disorder shall not be admitted to negate the capacity to form any mental state, including ․ malice aforethought ․   Evidence of mental disease, mental defect or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent ․ or harbored malice aforethought․”  (Emphasis added.)

Out of an abundance of caution the Legislature went on in section 28, subdivision (b) to state that “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action.”   Section (a) above states that evidence of diminished capacity is inadmissible;  section (b) states that neither can it form an affirmative defense.

 The combined results of section 22, subdivision (a) and section 28, subdivisions (a) and (b) is that substantial evidence from which a trier of fact can find guilt beyond a reasonable doubt can no longer be rebutted by evidence of merely diminished capacity.   The cases that held diminished capacity as a defense to all specific intent crimes and that such diminished capacity automatically could, itself, prevent the formation of malice are no longer controlling.  (See e.g., People v. Cruz, supra, 26 Cal.3d 233, 242, 162 Cal.Rptr. 1, 605 P.2d 830;  People v. Anderson (1965) 63 Cal.2d 351, 364, 46 Cal.Rptr. 763, 406 P.2d 43;  People v. Wolff, supra, 61 Cal.2d at pp. 821–822, 40 Cal.Rptr. 271, 394 P.2d 959;  People v. Henderson (1963) 60 Cal.2d 482, 490–491, 35 Cal.Rptr. 77, 386 P.2d 677.)

By its amendments to Penal Code sections 22, 28 and 188, the Legislature has made it very clear that the law in California is no longer interested in the extent to which a defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.   Diminished capacity no longer mitigates a second-degree murder to voluntary manslaughter, and diminished capacity based on voluntary intoxication does not reduce a second-degree murder to involuntary manslaughter.   Malice aforethought now includes only the specific states of mind required to render an unlawful killing a murder, i.e., actual intent or an intent which can be implied from the lack of provocation coupled with the ferocity of an attack or a conscious creation and disregard or an unjustifiable risk of death.

 However, the Legislature was mindful of the fact that a defendant can be intoxicated but not unconscious or he can be so mentally debilitated either through intoxication or other means, and yet not legally insane, that the intent to kill or the harboring of malice which is otherwise supported by substantial evidence on which the defendant can be found guilty beyond a reasonable doubt, can be negated by proof that the defendant did not in fact form the required intent or harbor the requisite malice.   To prevent the appellant from admitting psychiatric evidence or taking the stand himself on the issue of his level of intoxication or his level of mental function where he claims not to have in fact formed the required intent or harbored malice would be to deny him due process of law.   As stated by the California Supreme Court “[W]e do not perceive how a defendant who has in his possession evidence which rebuts an element of the crime can logically be denied the right to present that evidence merely because it will result in his acquittal.”  (People v. Wetmore (1978) 22 Cal.3d 318, 328, 149 Cal.Rptr. 265, 583 P.2d 1308.)   Not allowing the defendant to disprove mental state would “constitute an invalid interference with the trial process.”  (People v. Wells (1949) 33 Cal.2d 330, 346, 202 P.2d 53;  see also In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368.)   Therefore, evidence of voluntary intoxication and mental disability are admissible at the guilt phase to show that in fact the defendant did not form the required specific intent or harbor the required malice.  (§§ 22, subd. (b) and 28, subd. (a).)  But it is admissible only as evidence to be weighed by the trier of fact on the actual formation of the ultimately necessary element (malice in the case at bench).   It is no longer a legal requirement of malice aforethought that the defendant not have a diminished capacity.

As stated in a recent article:  “The changes in Pen C § 22 are intended to make clear that voluntary intoxication cannot be used as the basis for an independent defense of diminished capacity.   ¶ The Legislature heard ample and scientifically sound expert testimony that convinced it that even severe mental disabilities virtually never negate mens rea.   Mental disabilities may give someone a crazy motive for forming an intent, or may to some extent compromise a person's ability to control himself.   However, mental disabilities do not prevent the formation of the mens rea except in exceptionally rare cases, such as in Wetmore, where the alleged burglar's delusional belief that he was in his own apartment negated the felonious intent (to steal) that is part of the mens rea of burglary.   Great numbers of lawbreakers will not be acquitted ․ under the provisions of SB 54 unless judges and juries are willing to believe unbelievable theories concerning the negation of mens rea.”  (Morse and Cohen, Diminishing Diminished Capacity in California (June 1982) California Lawyer, p. 25.)

In the context of the instant case the question becomes:  Was the appellant so debilitated by the psychotic effects of PCP intoxication at the time of the killing that he did not in fact harbor the malice aforethought that can otherwise be implied from the unprovoked act of stabbing the victim to death through the eye with a pair of scissors?

In the instant case the trier of fact heard evidence from the psychiatrist and the psychologist on both the issue of voluntary intoxication and the mental disorder it may have caused.   In the same legislation in which it amended the foregoing Penal Code sections, the Legislature added section 29 which states:  “In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect [whether or not the disorder or defect is caused by intoxication] shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged.   The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”   The trial court stated:  “As to section 29, if no expert can testify about whether or not the defendant had the requisite mental state necessary to constitute the crime, and presumably no layman can give that testimony under any circumstances, how can the trier of fact receive any evidence upon which to decide the issue which the last sentence of that section says the trier of fact must do?   I don't know;  I can't reconcile.”

 An expert can still testify under section 29 as to the mental state that the defendant was in at the time of an offense, given his level of intoxication or some other indication of mental disfunction such as mental disease.   The only testimony by an expert witness section 29 specifically excludes is the expert's opinion as to the ultimate issue of whether or not the mental state of the defendant at the time of the offense would preclude the formation of the required mens rea.   The trial court understood this distinction.   Dr. Stalberg was asked if based upon the appellant's statement that he had ingested 10 to 15 milligrams of PCP, such ingestion would have put him significantly or substantially under the influence of the PCP.   The doctor testified that it would.   The prosecution objected.   The court noted the objection of the prosecution but did not act on it.   Subsequently, defense counsel attempted to elicit from Dr. Stalberg his opinion as to whether or not someone under the substantial, significant influence of PCP would be able to form the requisite intent necessary to commit murder.   Again, the prosecution objected and the court properly sustained the objection since this is exactly the type of testimony that section 29 precludes.

The trial court understood what was to be excluded by section 29.   Apparently, the trial court remained uncertain as to what was admissible under section 29.   The psychologist, Dr. Siegel, took the stand and testified to the level of intoxication of appellant and to the general effects of PCP intoxication on anyone.   He also testified to the similarities between the killing committed and the events depicted in a horror movie which appellant had seen.   All of this testimony was admissible so long as the psychotherapist did not state that as a result of ingesting PCP and watching a movie appellant did not have the requisite intent or harbor the requisite malice.   Whether or not that inference will be drawn from the testimony is left to the trier of fact.  (§ 29;  Evid.Code, § 600, subd. (b).)

 The trial court found that the abolition of the defense of diminished capacity (§ 28, subd. (b)) was irreconcilable with the admission of the evidence of voluntary intoxication (§ 22, subd. (b)) and the trial court apparently had some misgivings as to whether or not any inference could be drawn from the testimony of the experts in question.   However, the trial court correctly applied “the language of section 188 of the Penal Code as to implied malice, a situation where there is no considerable provocation, coupled with the willful and wanton nature and ferocity of the attack in this case, clearly it would be second degree murder to me.”   We find that the trial court did admit and weigh the testimony of the experts on the issue of voluntary intoxication.   The trial court found, albeit pursuant to the wrong code section, that the appellant was conscious at the time of the commission of this crime.   Substantial evidence of guilt existed given the nature of the commission of the crime upon which the trial court could find implied malice.   The appellant failed to convince the court that he did not in fact harbor the malice which could otherwise be implied and the court properly refused to entertain the defense of diminished capacity.

Appellant's contention would resurrect the legislatively rejected and discarded idea that diminished capacity and irresistible impulse are defenses negating intent or malice when a person intentionally kills another.   Appellant intended to save the world and the black race by killing the old man whom, because of appellant's intoxication on PCP and even perhaps influenced by the motion picture, appeared to him to be the devil.   But as explained, these are no longer defenses in California.   Appellant's voluntary intoxication may have induced a fantasy that the old man personified the devil.   But appellant knew he was intentionally committing a killing pursuant to a self-appointed authority, a delusion or fantasy induced by voluntary intoxication.   The trial court properly found that appellant was conscious at the time of the attack.   Like Jack Ruby appellant had no authority to commit the intentional killing.   His purpose, his motive, whether induced by laudable ideas or fantasies resulting from intoxication, or whatever drove him to kill is not a defense to murder;  it does not remove the element of intentional, malicious killing.

The judgment is affirmed.


1.   At the time of the offense, Penal Code section 22 in part read as follows:  “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.   Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental state including, but not limited to, purpose, intent, knowledge, or malice aforethought, with which the accused committed the act.”“(b) Whenever the actual existence of any mental state, including but not limited to, purpose, intent, knowledge, or malice aforethought, is a necessary element to constitute any particular species or degree of crime, evidence that the accused was voluntarily intoxicated at the time of the commission of the crime is admissible on the issue as to whether the defendant actually formed any such mental state.”  (Emphasis added.)Penal Code, section 28, subdivision (b) read as follows:  “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action.”All further unspecified statutory references are to the Penal Code.

2.   See Morse and Cohen, Diminishing Diminished Capacity in California (June 1982) California Lawyer, p. 25.

BEACH, Associate Justice.

COMPTON, Acting P.J., and GATES, J., concur.

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