PEOPLE v. WETMORE (1976)

Defendant was charged with burglary in violation of Penal Code section 459. He was arraigned and initially pleaded not guilty.

On defendant's motion Dr. John S. Woodard was appointed to examine him pursuant to Evidence Code sections 730 and 1017. Thereafter defendant was rearraigned and entered an additional plea of not guilty by reason of insanity. Two additional doctors (Michael B. Coburn, M.D., and Marshall S. Cherkas, M.D.) were appointed to examine defendant pursuant to Penal Code section 1026.

When the matter was called for trial defendant personally and all counsel waived trial by jury. The parties stipulated that the cause be submitted on the testimony contained in the transcript of the preliminary hearing ‘and the reports of Drs. Coburn and Cherkas on file herein.’ The court found defendant guilty of a violation of Penal Code section 459 and determined it to have been burglary of the second degree.

The court then proceeded with respect to defendant's plea of not guilty by reason of insanity. Defendant personally and all counsel again waived trial by jury. The parties stipulated that the matter be submitted on ‘the reports of doctors on file.’ The court found defendant not guilty by reason of insanity.

Thereafter on July 3, 1975, the court found that defendant had not recovered his sanity ‘pursuant to section 1026a Penal Code.’ Criminal proceedings were suspended and defendant was ordered ‘committed to Patton State Hospital for care and treatment until he becomes sane.’

Defendant appeals from the judgment (order of commitment).¹

The incident involved in the burglary charge occurred when Joseph Robert Cacciatore left his apartment for three days and upon his return found defendant inside the apartment. The lock on the front door was broken and the ‘place was a total disaster.’ Later Mr. Cacciatore discovered that a ring and a watch were missing from his apartment.

In the report of Michael B. Coburn, M.D., submitted in evidence at the guilt phase of the trial, it was stated: ‘This report is directed to the question of the defendant's mental state at the time of the offense, including sanity under 1026 and capacity to form the intent to commit burglary and/or theft.’ Dr. Coburn stated his conclusion on those two issues as follows: ‘In my opinion, at the time of the commission of the alleged offense the defendant was insane under 1026 PC, truly not understanding the nature and quality and wrongfulness of what he was doing. In my opinion, he was incapable of forming the intent to enter a dwelling for the purpose of committing theft or another felony, and was incapable of intending to permanently deprive another of their property without their consent.’

Dr. Coburn gave the following account of his discussion with defendant concerning the charged offense: ‘He said that he had been hospitalized at Brentwood, and would suddenly go out against advice, and was then let go by them. He found himself on the street with no place to go, and began to believe that he owned property. He said he was ‘directed’ to the place in question, and when he opened it and found it unlocked he ‘knew’ he had been correct. He said, ‘I was trying to rearrange it. I believed I had bought the place through some place in San Bernardino.’ He denied breaking the door jamb or the television, but said he had ripped up numerous pieces of advertising because of his feeling that they were somehow wrong and inappropriate. He said he had found that the clothes fit him, and ‘I thought it was a set-up—it was planned. The clothes fit and I was hungry.’ Apparently, he was cooking a meal and using the toilet when he was arrested. His reaction when the police came is very interesting, and if assumed to be true, clearly indicates the nature of his delusions at the time of the offense. He said, ‘When the police came my whole world came to an end. I was very embarrassed.’ Apparently, he was shocked by their presence and at that moment understood that he had misinterpreted the situation.'

Dr. Marshall S. Cherkas, whose report was also introduced in evidence at the guilt phase of the trial, stated therein that it was his ‘impression’ that defendant ‘was not sane at the time of the commission of the offense in that he could not even distinguish between right and wrong.’ Dr. Cherkas also stated as follows: ‘I doubt sincerely that this man had any capacity to form specific intent to commit theft.’

In finding defendant guilty of burglary the trial court indicated its opinion that where a defendant pleads not guilty, and not guilty by reason of insanity, evidence of legal and medical insanity is not admissible to establish lack of specific intent due to diminished capacity at the guilt phase of the trial. The trial court indicated its belief that the evidence presented in the doctors' reports went only to the issue of defendant's legal insanity because the doctors finally concluded that defendant was in fact legally insane.

On this appeal defendant argues that the trial court erred in refusing to consider evidence which was offered to prove diminished capacity at the guilt phase of his trial, claiming that the evidence showed defendant's inability to form the requisite specific intent and also showed that defendant was legally insane.

The difference between the defense of diminished capacity and that of legal insanity was clearly defined by our Supreme Court in People v. Wells, 33 Cal.2d 330, 202 P.2d 53. With respect to the admissibility of evidence showing lack of specific intent and evidence showing legal insanity, the court stated (33 Cal.2d at pp. 350–351, 202 P.2d at p. 66): ‘The fundamental rule above stated, with its qualification, is therefore, as follows: As a general rule, on the not guilty plea, evidence, otherwise competent, tending to show that the defendant, who at this stage is conclusively presumed sane, either did or did not, in committing the overt act, possess the specific essential mental state, is admissible, but evidence tending to show legal sanity or legal insanity is not admissible. Thus, if the proffered evidence tends to show not merely that he did or did not, but rather that because of legal insanity he could not, entertain the specific intent or other essential mental state, then that evidence is inadmissible under the not guilty plea and is admissible only on the trial and the plea of not guilty by reason of insanity. The standard by which the trial judge must appraise the admissibilty of evidence in every case is, of course, the familiar ‘right or wrong’ standard hereinabove quoted, by which legal insanity as a defense is gauged. Evidence which tends to show legal insanity (likewise, sanity) is not admissible at the first stage of the trial because it is not pertinent to any issue then being litigated; but competent evidence, other than proof of sanity or insanity, which tends to show that a (then presumed) legally sane defendant either did or did not in fact possess the required specific intent or motive is admissible.'

Specific intent to steal or to commit some other felony is one of the elements of burglary which the prosecution has the burden of proving. (Pen.Code, § 459; People v. Bard, 70 Cal.2d 3, 5, 73 Cal.Rptr. 547, 447 P.2d 939; People v. Failla, 64 Cal.2d 560, 563–565, 51 Cal.Rptr. 103, 414 P.2d 39.)

The defense of diminished capacity to negative specific intent is available whenever a particular mental state constitutes as essential element of the crime. (People v. Wilson, 261 Cal.App.2d 12, 17–18, 67 Cal.Rptr. 678; People v. Glover, 257 Cal.App.2d 502, 506, 65 Cal.Rptr. 219; People v. Gentry, 257 Cal.App.2d 607, 610, 65 Cal.Rptr. 235.) The defense of diminished capacity is available to negative the specific intent necessary to a conviction of burglary. (People v. Taylor, 220 Cal.App.2d 212, 216, 33 Cal.Rptr. 654.)

Respondent argues that ‘the reports of the psychiatrists indicated that it was solely because of legal insanity that appellant was unable to form the specific intent which is a requisite element of the crime of burglary.’ This statement is not entirely accurate. Both of the psychiatrists concluded that defendant was legally insane at the time of the commission of the offense. They also each concluded that defendant lacked the capacity to form the specific intent to commit theft. Both of the doctors related a similar account of the incident as told by defendant wherein defendant stated that he was ‘directed’ to the victim's apartment. Dr. Coburn's report reflected that defendant believed that he had purchased the property.

Without considering whether or not a person is legally insane within the concept of the M'Naughton rule, a trier of fact may conclude that the evidence shows that because of mental defect or illness the person lacked the capacity to form the specific intent necessary to be guilty of the commission of the charged offense. Thus in the present case, whether or not the defendant knew that breaking and entering the victim's apartment and taking his possessions was wrongful and could subject him to punishment, if the defendant entered the victim's premises while operating under the delusion that the apartment and its contents belonged to him, he would not have had the specific intent necessary to the crime of burglary. Such a factual situation was indicated in Dr. Coburn's report: ‘Apparently, he [defendant] was cooking a meal and using the toilet when he was arrested. His reaction when the police came is very interesting, and if assumed to be true, clearly indicates the nature of his delusions at the time of the offense. He said, ‘When the police came my whole world came to an end. I was very embarrassed.’ Apparently, he was shocked by their presence and at that moment understood that he had misinterpreted the situation.'

In In re Miller, 33 Cal.App.3d 1005, at page 1020, 109 Cal.Rptr. 648, at page 658, the court stated with respect to the nature of the diminished capacity defense: ‘This defense, known as the Wells [People v. Wells, 33 Cal.2d 330, 202 P.2d 53]—Gorshen [People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492] rule, embraces the viewpoint that a person may commit a serious crime such as robbery and murder, not with malice or because he really wants to steal or to take human life but because he is impelled to do so by irrepressible and emotional impulses brought about by mental aberrations; just as the People must prove the existence of intent or premeditation or malice, so must the defendant be allowed to disprove them.’

And in People v. Cantrell, 8 Cal.3d 672, at pages 685–686, 105 Cal.Rptr. 792, at page 800, 504 P.2d 1256, at page 1264, the court discussed the use of the theory of irresistible impulse as a diminished capacity defense, stating: ‘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 whow by competent evidence his act was the [ ] [product] of an irresistible impulse and that the irresistible impulse was due to mental disease.’

The trial court in the instant case stated that ‘there are certain kinds of mental conditions, to-wit, insanity, which cannot be utilized and testified to, and is, therefore, not admissible to establish the question of lack of specific intent due to diminished capacity in a case in chief, and the court has felt and does feel that that is the situation here, that if a defendant's mental capacity which would preclude the forming of a specific intent is that of insanity, both legal and medical insanity, that the defendant's position in that case is pursuant to 1026 and cannot be effectively raised by the presentation of evidence to that effect in the case of a diminished capacity defense on the guilt or innocence of the defendant.’

Once the trial court learned that the psychiatrists' conclusions were that defendant was insane at the time of the commission of the offense, it refused to consider any evidence tending to show that defendant through defect of reason or mental illness lacked the capacity necessary to form the specific intent essential to the commission of burglary. It is true that at the guilt phase of a bifurcated trial pursuant to Penal Code section 1026 a defendant is conclusively presumed to be sane. (People v. Wells, supra, 33 Cal.2d 330, 350, 202 P.2d 53.) But evidence was presented tending to show that defendant lacked the capacity to form the specific intent necessary for the commission of burglary. As noted in People v. Smith, 33 Cal.App.3d 51, at page 74, 108 Cal.Rptr. 698, at page 715, the issues of insanity and diminished capacity based on mental defect or disease ‘occupy overlapping conceptual territory, legal and medical.’ The court further stated (33 Cal.App.3d at p. 74, 108 Cal.Rptr. at p. 714): ‘At the bifurcated guilt trial any evidence of mental pathology short of legal insanity is admissible to show lack of capacity. [Citations.] . . . A claim of diminished capacity may be grounded on the cognitive factor (i. e., lack of awareness or consciousness) or on lack of volition, for example, irresistible impulse. [Citation.] At the insanity trial the prevailing M'Naughton standard defines insanity in verbalisms primarily centering on the cognitive capacities. [Citations.] When both claims rest on absence of cognitive capacity, both involve the jury in parallel and mutually interacting judgments. The two issues occupy overlapping conceptual territory, legal and medical. The extensive overlap has been noted: ‘[The diminished capacity] rule would be largely coextensive with the [M'Naghten] right-and-wrong test, for a person who lacks the requisite criminal intent because of mental disorder can probably also be said to lack comprehension of the nature and quality of the act or that it was wrong.’ [Citations.]'

The trial court in this matter having failed to consider in the guilt phase of the case the evidence offered on the issue of diminished capacity, we are of the opinion that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the trial court's error. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) Thus, if found not guilty of the offense charged, while defendant might have been subject to civil mental illness commitment proceedings (see People v. Redmond, 16 Cal.App.3d 931, 939, 94 Cal.Rptr. 543), he would not have been subject to the proceedings for which provision is made in Penal Code section 1026. (See People v. Vanley, supra, 41 Cal.App.3d 846, 855–857, 116 Cal.Rptr. 446.)

The judgment (order of commitment) is reversed and the cause is remanded for further proceedings consistent with the opinion herein.

I dissent:

The trial court was justified in concluding that defendant's lack of intent to commit the burglary was a function of his insanity. Dr. Coburn's report supports this conclusion. It first states that defendant ‘was insane’ and immediately following this states that ‘he was incapable’ of forming the requisite intent.

The evidence, therefore, comes squarely within the category of inadmissible evidence described in People v. Wells, 33 Cal.2d 330, 351, 202 P.2d 53, 66, where the court said: ‘Thus, if the proffered evidence tends to show not merely that he did or did not, but rather that because of legal insanity he could not, entertain the specific intent or other essential mental state, then that evidence is inadmissible under the not guilty plea and is admissible only on the trial on the plea of not guilty by reason of insanity.’

FOOTNOTES

1.  The order of commitment is an appealable order. (People v. Vanley, 41 Cal.App.3d 846, 848, fn. 1, 116 Cal.Rptr. 446; Pen.Code, § 1237, subd. (1).)

FORD, Presiding Justice.

ALLPORT, J., concurs.