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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Thomas HUDEC, Defendant and Appellant.


Decided: April 29, 1985

Cesena & Lee and James H. Cesena, Santa Ana, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Frederick R. Millar, Jr., and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.


Charles Thomas Hudec was found guilty of first degree murder and found not guilty by reason of insanity.   The judgment committed him to Patton State Hospital for life.   Hudec appeals the judgment, stating (1) his Miranda rights were not read to him prior to his confession;  (2) he was incompetent to stand trial;  and (3) he should have been convicted of manslaughter rather than murder.

In the early morning hours of May 31, 1981, Hudec approached Jack Parra, a uniformed Anaheim police officer who was interviewing an individual in a coffee shop parking lot.   Hudec said “I think I killed someone,” and Officer Parra asked “Who do you think you killed?”   Hudec responded, “My father.”   Officer Parra radioed in the address and was subsequently informed that officers found a victim there who had been assaulted with an ax and a knife.   At that point, Officer Parra arrested Hudec.

After his arrest, Hudec told police he was a mentally unstable person who heard voices inside his head.   He had been living with his father for the three weeks since his discharge from the psychiatric ward of a naval hospital.   Although he had no particular problems with his father, the voices told Hudec to kill his father.

He had decided to kill his father the previous evening, while the father was out.   Hudec got an ax from the garage and a knife from the kitchen.   When the father came home about midnight, Hudec decided to wait until he was asleep so he could kill quickly, with as little pain to his father as possible.

About 1 a.m., Hudec went into his father's bedroom with the weapons.   He went back and forth between the father's bedroom and his bedroom several times, vacillating about doing the act.   Finally, he struck his father in the head with the ax.   The father woke up and began yelling at Hudec.   Panicked, Hudec stabbed him in the chest with the knife and ran out of the house.

Hudec was incarcerated pending trial at the Orange County Jail where he was treated with antipsychotic and antidepressant medication by the jail's psychiatric team.   At the pretrial hearing, Hudec waived jury trial and entered a plea of not guilty and not guilty by reason of insanity.   At the beginning of trial, Hudec's counsel informed the court that he and the district attorney would enter into a stipulation that Hudec was not guilty by reason of insanity and that the only issue remaining for trial was the degree of homicide.

Hudec called three forensic psychiatrists who were stipulated to be experts.   Their testimony was similar in most respects.   Each had examined Hudec and reviewed his background.   Each testified Hudec had a history of mental illness and treatment.   He was diagnosed as a paranoid schizophrenic, a disease characterized by deteriorated and irrational thought processes and by delusions of persecution.   For several years, Hudec had been experiencing voices within himself, which he interpreted as voices from God.   These voices were directive and controlling.   The evening of the killing, Hudec had been plagued by voices telling him he had to kill his father in order to please God and to prevent Hudec from becoming a homosexual.   The killing was a direct result of Hudec's mental disease.   Although he tried to resist the voices, at the time of the act Hudec was not in rational control of his behavior.

Dr. Sheffner, who examined Hudec once, testified Hudec's debate over whether to commit the crime indicated that he had some ability to test reality and that he was not a sociopath without a conscience.

Dr. Klatte and Dr. Sharma each saw Hudec four times.   They both testified Hudec was unable to comprehend his duty to conform to the law, he did not have the capacity to so conform, and he was unable to maturely and meaningfully reflect on the act when it occurred.   Dr. Sharma testified Hudec did have the intent to kill, but was unable to premeditate and deliberate and had no capacity to harbor malice.   The court found Hudec understood the wrongful nature of his act but was “compelled to do this by the loss of his volition on the orders of God․”  On this basis, the court found Hudec guilty of first degree murder and not guilty by reason of insanity.


 Hudec first contends the trial court erred in overruling his Miranda objection to the admissibility of his statements to Officer Parra.   He argues Officer Parra should have advised him of his right to remain silent and his right to an attorney as soon as he said “I think I killed someone.”   We disagree and hold the statements admissible.

Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 held the prosecution cannot use statements stemming from custodial interrogation unless the defendant is first advised of the right to remain silent and the right to have an attorney present.  (Id., at p. 444, 86 S.Ct. at 1612;  People v. Tarter (1972) 27 Cal.App.3d 935, 941, 104 Cal.Rptr. 271.)   However, this prohibition does not apply to volunteered statements.  “Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.”  (Miranda, supra, 384 U.S., at p. 478, 86 S.Ct. at 1630.)

Here, Hudec walked up to Officer Parra and volunteered the information that he thought he had killed his father.   Parra's intervening question “Who do you think you killed?” was not coercive and did not constitute custodial interrogation.   It was merely a general investigatory question to ascertain whether a crime had been committed and whether Hudec should be arrested.   Such inquiries are not subject to the Miranda notice requirements.  (People v. Hill (1974) 12 Cal.3d 731, 767, 117 Cal.Rptr. 393, 528 P.2d 1.)


 Hudec next contends the trial court erred in finding him competent to stand trial without holding a competency hearing.   He suggests the administration of antipsychotic drugs to him by the jail authorities raised a presumption that a competency hearing was required.   We hold the trial court had no duty to order a competency hearing on these facts.

California law requires the trial court to order a competency hearing whenever the record raises a doubt as to a defendant's capacity to understand the proceedings or to assist counsel in his defense.  (Pen.Code, § 1368.)   If the record reveals substantial evidence of incompetency, the defendant is entitled to a hearing as a matter of law.   If the evidence of incompetency is less than substantial, the decision to hold a hearing is within the discretion of the trial court and will not be disturbed on appeal.  (People v. Laudermilk (1967) 67 Cal.2d 272, 283, 61 Cal.Rptr. 644, 431 P.2d 228;  People v. Stiltner (1982) 132 Cal.App.3d 216, 222, 182 Cal.Rptr. 790;  People v. Boyd (1971) 16 Cal.App.3d 901, 907, 94 Cal.Rptr. 575.)

 Here, the record strongly supports a finding of competency to stand trial.   Hudec was examined by Dr. Sharma pursuant to court order after his insanity plea.   In his report to the court, Dr. Sharma concluded Hudec was competent to stand trial if he continued to take antipsychotic medication to control his mental illness throughout the proceedings.1  At the trial, the court asked Hudec if he was aware of the proceedings, if he understood his prior waiver of jury trial, and if he could assist his counsel.   Hudec answered yes to each inquiry.   Counsel also indicated his belief that Hudec was capable of assisting him.

Hudec suggests his cooperation with the prosecution and his waiver of certain rights shows he was incompetent to stand trial.   We find no merit in this argument.   Hudec does not attack the validity of any particular waiver, and the record reveals no impropriety.   In a case such as this, where the facts are essentially undisputed, cooperation between the parties and proper waivers by the defendant can expedite and focus the proceedings and are to be encouraged.


 Hudec contends the trial court erred in failing to find that evidence of his diminished capacity negated malice aforethought, the specific intent for murder.2  He claims the court could not properly find insanity based on his inability to control his behavior and fail to find diminished capacity to harbor malice.   We agree and modify the judgment to voluntary manslaughter.

Prior to 1978, the test for insanity in California was based on M'Naghten's Case:  “[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.”  (M'Naghten's Case (1843) 8 Eng.Rep. 718, 722.)   This test focuses exclusively on the cognitive capacity of the defendant.

To meet the inadequacies of the M'Naghten test, the courts developed the concept of diminished capacity, under which a defendant can introduce evidence to negate a specific mental state essential to the commission of an offense.   In People v. Cantrell (1973) 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256, the court expanded diminished capacity to include irresistible impulse, a concept evolved to supply the volitional element lacking in the M'Naghten test.  “The courts of this state have long refused to equate irresistible impulse with legal insanity or to accept it as a complete defense to a crime.   [Citations.]  Precisely for this reason, a defendant who raises the defense of diminished capacity at the guilt phase of the trial must be permitted to show by competent evidence his act was the product of an irresistible impulse and that the irresistible impulse was due to mental disease.”  (Id., at p. 685, 105 Cal.Rptr. 792, 504 P.2d 1256;  see also People v. Drew (1978) 22 Cal.3d 333, 344–345, 149 Cal.Rptr. 275, 583 P.2d 1318;  People v. Poddar (1974) 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342.)

In People v. Poddar, supra, the California Supreme Court made it clear that the volitional aspect of diminished capacity could negate malice so as to preclude a murder conviction.   In that case, the court reversed a second degree murder conviction for failure to give specific jury instructions relating diminished capacity to malice.  “The effect, accordingly, which a diminished capacity bears on malice in a second degree murder-implied malice case is relevant to two questions:  First, was the accused because of a diminished capacity unaware of a duty to act within the law? ․  Second, even assuming that the accused was aware of this duty to act within the law, was he, because of a diminished capacity, unable to act in accordance with that duty?   [Citations.]  If it is established that an accused, because he suffered a diminished capacity, was unaware of or unable to act in accordance with the law, malice could not properly be found and the maximum offense for which he could be convicted would be voluntary manslaughter.”  (Id., at p. 758, 111 Cal.Rptr. 910, 518 P.2d 342.)

In 1978, the Supreme Court rejected the M'Naghten test of insanity and adopted the ALI test, which added a volitional element.  “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 [wrongfulness] of his conduct or to conform his conduct to the requirements of law.”  (People v. Drew, supra, 22 Cal.3d at pp. 336–337, fn. 3, 149 Cal.Rptr. 275, 583 P.2d 1318.)   The court criticized M'Naghten for its lack of a volitional element.  “The M'Naghten rules fruitlessly attempt to relieve from punishment only those mentally diseased persons who have no cognitive capacity ․  This formulation does not comport with modern medical knowledge that an individual is a mentally complex being with varying degrees of awareness.   It also fails to attack the problem presented in a case wherein an accused may have understood his actions but was incapable of controlling his behavior.   Such a person has been allowed to remain a danger to himself and society whenever, under M'Naghten, he is imprisoned without being afforded such treatment as may produce rehabilitation and is later, potentially recidivistic, released.”  (Id., at p. 341, 149 Cal.Rptr. 275, 583 P.2d 1318, quoting Wade v. United States (9th Cir.1970) 426 F.2d 64, 66–67.) 3

The issue of insanity is determined in the second phase of a bifurcated trial.   Prior to 1978, a defendant was prevented from introducing evidence of diminished capacity at the guilt phase of the trial if it tended to show insanity.   This sometimes resulted in a defendant being convicted of a specific intent crime and then acquitted by reason of insanity.   At this point, the distinction between diminished capacity and insanity was important.   Although insanity had no volitional element, diminished capacity did;  through the concept of irresistible impulse, a defendant could introduce evidence of mental defects otherwise irrelevant.

In People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308, the court held evidence of diminished capacity must be allowed at the guilt phase even though it is relevant to insanity.  “[D]efendant cannot logically or constitutionally be denied the right to present probative evidence rebutting an element of the crime merely because such evidence also suggests insanity․  [¶] A defendant who, because of diminished capacity, does not entertain the specific intent required for a particular crime is entitled to be acquitted of that crime.   If he cannot be convicted of a lesser offense and cannot safely be released, the state's remedy is to institute civil commitment proceedings, not to convict him of a specific intent crime which he did not commit.”  (Id., at p. 321, 149 Cal.Rptr. 265, 583 P.2d 1308.)

After Drew and Wetmore, the tests for diminished capacity and insanity were virtually the same.   The Supreme Court recognized this, and in urging the Legislature to abolish the bifurcated trial, stated:  “The development of [diminished capacity] has brought it so close to that of insanity that we doubt that the issue of diminished capacity has currently been placed on the proper side of the judicial ledger.   Indeed, when we changed the designation of the defense from diminished ‘responsibility’ to diminished ‘capacity’ [citation] we approached more nearly the concept of inability to conform one's conduct to the requirements of law, which is now a facet of the test of insanity․  [¶] Prior to this appeal we have been confronted with a substantial number of cases that have illustrated the overlap in evidence admissible to prove diminished capacity and evidence admissible to prove insanity;  with the present decision the duplication approaches a totality.   To require the jury to hear the same evidence twice, once to determine diminished capacity and once to determine insanity, appears a pointless waste of judicial time and resources.  [Citations.]”  (Emphasis in original.)   (People v. Wetmore, supra, at pp. 330–331, 149 Cal.Rptr. 265, 583 P.2d 1308.   Accord, People v. Cruz (1980) 26 Cal.3d 233, 251–252, 162 Cal.Rptr. 1, 605 P.2d 830;  People v. Duckett (1984) 162 Cal.App.3d 1115, 1125, 209 Cal.Rptr. 96;  People v. Nicholas (1980) 112 Cal.App.3d 249, 275–276, 169 Cal.Rptr. 497.)

The identity of proof between diminished capacity and insanity was underscored in People v. Cruz, supra, 26 Cal.3d 233, 162 Cal.Rptr. 1, 605 P.2d 830.   In that case, a jury convicted defendant of first degree murder, rejecting his diminished capacity defense and finding him sane under the M'Naghten test.   The Supreme Court affirmed and refused to remand for another insanity phase trial under the ALI test.   The court stated:  “[T]he jury completely rejected the diminished capacity defense by returning a verdict of first degree murder.   It disbelieved the considerable evidence offered to show that defendant, to at least a limited extent, was out of touch with reality, did not appreciate what he was doing, or could not control his actions.   In doing so, the jury necessarily rejected the evidence that might support a verdict that defendant not only had a diminished capacity but was legally insane under either clause of the ALI test.”  (Id., at p. 252, 162 Cal.Rptr. 1, 605 P.2d 830.  [Fn. omitted.]  Accord, People v. Nicholas, supra, 112 Cal.App.3d 249, 272–273, 169 Cal.Rptr. 497.)

Here, the trial court found the defendant understood his duty to conform his behavior, but lacked the ability to do so.   The court stated on the record its understanding that the ability to conform behavior was relevant only to insanity and not to diminished capacity.   Thus, it found Hudec guilty of first degree murder and not guilty by reason of insanity.   This result is illogical and incorrect under the law as it then existed.   If Hudec could not control his behavior, he was under diminished capacity by definition.   The most recent affirmation of this principle is People v. Duckett, supra, 162 Cal.App.3d 1115, 209 Cal.Rptr. 96, in which the court held that evidence of command hallucinations was evidence of an irresistible impulse and that such evidence applied to the defense of diminished capacity.  “In other words, the irresistible impulse aspect of the diminished capacity defense applied to the defendant who, because of a mental disease or disorder, was unable to conform his conduct to the requirements of the law.”  (Id., at p. 1125, 209 Cal.Rptr. 96.)

In light of the court's finding that Hudec was unable to control his behavior and was therefore not guilty by reason of insanity, we conclude he was also under a diminished capacity and was unable to form the specific intent for murder.   We thus modify the judgment to voluntary manslaughter.

The judgment is affirmed as modified.   The trial court is directed to modify the order of commitment accordingly.


1.   Dr. Sharma's conclusion of competency was based on the following reasoning:  “Mr. Hudec presented himself for the interview as a cooperative individual.   He was able to recognize me from our prior contact.   He stated that his attorney, Mr. Holmes, had entered the plea of not guilty, and not guilty by reason of insanity.   He was able to describe the possible consequences of the plea.   He was able to discuss the roles of various court officials, including the defense attorney.   He was able to describe the circumstances leading to his arrest and the subsequent legal proceedings.   He was oriented to time, place, and person, and his memory was grossly intact.”

2.   This case arose prior to Penal Code section 28, enacted by the 1981 Legislature and effective January 1, 1982, and Penal Code section 25, added by the passage of Proposition 8 and effective June 9, 1982.   Both of these sections purport to abolish the defense of diminished capacity.

3.   The ALI test adopted in People v. Drew was abrogated by the addition of Penal Code section 25.  (Fn. 2, ante.   See People v. Horn (1984) 158 Cal.App.3d 1014, 205 Cal.Rptr. 119.)

WALLIN, Associate Justice.

SONENSHINE, Acting P.J., and CROSBY, J., concur.

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