IN RE: GARY M. (1981)

On December 7, 1978, the minor, then 16 years of age, shot and killed his father with a .22 calibre rifle. Following a jurisdictional hearing (Welf. and Inst.Code, § 602) he was found to have committed voluntary manslaughter (Pen.Code, § 192) and was committed to the custody of the California Youth Authority. He appeals from that judgment.¹ Because we think the court misapplied the test of legal insanity enunciated in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, in ruling that the determination of what constitutes a “mental disease or defect,” as the phrase is used there is necessarily a medical question, we reverse the judgment.

FACTS

At the jurisdictional hearing, the minor admitted shooting his father, as his father was preparing to “beat the shit out of [him]” for receiving a disappointing report card. While his father was out of the room for a moment, the minor “must have” picked up the rifle. He felt he “couldn't take it any more, it was too much.” He testified that he shot his father in the head as he re-entered the room, though he could not actually remember aiming and firing the gun. The minor then ran out of the house, to “get more bullets,” then returned when he heard his father coughing. He shot him a second time in the head, because he thought his father was suffering, then ran outside again. He remembered firing the second shot, but did not know why he ran outside. Finally, he re-entered the house and shot him a third time. Then he “grabbed the dog and [his] brother and went to the police station,” where the two boys hysterically told a janitrix and then a police officer what had happened.

The defense produced a great deal of evidence of the father's brutality. The minor, his 14-year-old brother Gregg, his older sister Karen, and his mother (who was divorced from the father and resided in Georgia) testified to a shocking history of spousal and child abuse, including an attempted castration of Gregg. Neighbors and acquaintances testified that the boys seemed “too good” and dominated by their father. The evidence supported the minor's assertion that he lived in perpetual fear of his father, which finally became “too much.”

Two court-appointed psychiatrists testified regarding the minor's claim that he was legally insane when he shot his father.

Dr. Jack Shelton testified that, at the time of the shooting, the minor “became overwhelmed and underwent an acute transient severe personality destruction that … could be described [as] psychotic. [¶] In other words he was legally insane at the time of the first shot.” The minor's actions were “‘automatic,”’ he said, as his “good boy” ego was displaced. “And he was beside himself quite literally.” Dr. Shelton continued, “When the good boy broke down I don't think he could restrain himself ․” The doctor dismissed the testimony of some of the minor's classmates that he had spoken several times of shooting his father as part of “the pattern of mounting tension and fear,” in that he tried to “ventilate” these feelings.

Interpreting the rule adopted in People v. Drew, supra, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318 as “find[ing] room in the law for diminished responsibility in terms of the presence of mental disease,” he testified that the minor was legally insane at the time of the killing, since he was then undergoing an “overwhelming acute transient psychotic episode that resulted in his firing of the first shot.” He distinguished this from merely undergoing a “highly emotional situation,” in that, in the latter instance, the individual's “ego apparatus for dealing with social reality around him” is left intact. In Dr. Shelton's opinion, the minor “objectively was shooting the gun, … but … subjectively, he didn't feel himself to be doing the act in the usual sense when we think of ourselves acting, I see it as an explosion, ego alien explosion that hit him.”

Expressed in terms of a “legal” conclusion, the witness said, “[W]here this boy's head was at, I think he was totally irresponsible at the time of the first shot[ ] [¶] … [i]n that he did not have the capacity to understand what he was doing. If only for a moment he was not in the ordinary sense commit[t] ing the act, I mean, it was like an explosion where he stood apart from that, himself, and witnessed himself doing it.” He no longer considered the minor a threat to society, however, since the circumstances bringing about his transient psychosis were gone.

Dr. Joseph O'Neill testified that he did not know whether the minor “had substantial capacity to control his conduct,” but in his opinion the minor did not suffer from a “specific mental disease or defect,” and he felt that he had the capacity to premeditate and deliberate. He did think that the minor was emotionally disturbed, however. He “felt that [the minor] had suffered a rather continuous and creschending [sic] amount of physical and psychological abuse. That his reactions to this had become more and more circumscribed until he had no alternatives allowed to him except to continue to accept the abuse. That it had a profound impact on all aspects of his life, … [¶] [He found] himself in the box[ ] canyon, that was just very little maneuvering room for him, psychologically as well as physically and socializing.”

He agreed that the minor had an intense fear of his father, and that such a fear could have an effect on a person's psychological makeup and his ability to approach problems rationally. He said it was medically possible, after a sustained period of such fear and abuse, “that [the minor] could reach a state where he could no longer rationally approach the reality of the situation[[[[.]” In light of the minor's subjectively limited alternatives, he also agreed that it was medically possible that a dissociative reaction might have set in, so that “in his mind there was a separation of some kind[,] in essence a psychotic type reaction ․” In fact, he did not believe there was any question that a dissociative reaction had set in (i. e., a condition in which a person might appear “to be acting consciously but his actions are out of touch with his consciousness”); he did not know, however, whether it preceded or followed the shooting. It was possible that it occurred beforehand. A person in such a state is “usually not capable of stopping what he is doing,” but he might be. On the other hand, he may very well be able to premeditate and deliberate. These abilities might vary with the degree of a dissociative state, but it is very difficult to try to gauge that.

However, he disagreed with Dr. Shelton that the minor should be considered legally insane. He said there was “no such medical category” as “transient psychosis.” While a psychosis is medically recognized as a disease or defect (as in the World Health Organization's Diagnostic Manual), a dissociative state is not. It is an unusual mental state, but not an “abnormal” one and may, in fact, be thought of as “‘a coping mechanism.”’ Finally, Dr. O'Neill did not consider the minor to be a threat to society, but thought he might be to himself.

The juvenile court, in its comments on its findings, indicated that it was “convinced of the existence of the dissociative reaction at the time of the killing.” Nevertheless, it concluded, as a matter of law, that the minor was not insane under the Drew test, because he did not suffer from a “‘mental disease of defect”’: “This condition is not within the medical concept of ‘mental disease or defect’ but most certainly is an abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls (see McDonald v. U. S. [(D.C. Cir. 1962) 312 F.2d 847]). However, this Court considers that the ‘mental disease or defect’ necessary for a finding of insanity is a condition determinable as a medical concept and is absent in this case. The same evidence may serve, and in this case has served, to dispel any finding of deliberation, premeditation or specific intent. These terms are not grounded, necessarily, on medical concepts.” Having found him sane, the court found that the killing resulted from the “heat of passion” and found the minor to have committed voluntary manslaughter.

DISCUSSION

In People v. Drew, supra, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, the Supreme Court adopted the American Law Institute's test of insanity: “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.” (Model Pen. Code, § 4.01 (Final Draft, 1962).)²

The terms “mental disease or defect” are not defined in the Model Penal Code. In a companion case to Drew, however, In re Ramon M. (1978) 22 Cal.3d 419, 149 Cal.Rptr. 387, 584 P.2d 524, the court pointed out that the phrase had its origin in Durham v. United States (D.C. Cir. 1954) 214 F.2d 862, the first case in which a federal court of appeals abandoned the old M'Naghten test. In Durham the court explained only briefly what it meant thereby: “We use ‘disease’ in the sense of a condition which is considered capable of either improving or deteriorating. We use ‘defect’ in the sense of a condition which is not considered capable of either improving or deteriorating and which may be either congenital, or the result of injury, or the residual effect of a physical or mental disease.” (Durham, at p. 875.)

The same court elaborated somewhat on these definitions in McDonald v. United States (D.C. Cir. 1962) 312 F.2d 847: “Our eight year experience under Durham suggests a judicial definition, however broad and general, of what is included in the terms ‘disease’ and ‘defect.’ In Durham, rather than define either term, we simply sought to distinguish disease from defect. Our purpose now is to make it very clear that neither the court nor the jury is bound by ad hoc definitions or conclusions as to what experts state is a disease or defect. What psychiatrists may consider a ‘mental disease or defect’ for clinical purposes, where their concern is treatment, may or may not be the same thing as mental disease or defect for the jury's purpose in determining criminal responsibility. Consequently, for that purpose the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” (Last sentence emphasis added.) (Id., at pp. 850-851.) The Supreme Court in In re Ramon M., endorsed and adopted the Durham definition of mental defect “as further elucidated in McDonald.” (In re Ramon M., supra, 22 Cal.3d at pp. 427-428, 149 Cal.Rptr. 387, 584 P.2d 524.)

In Washington v. United States (D.C. Cir. 1967) 390 F.2d 444, the court outlined the reasons for the “eludicat[ion]” in McDonald: “Soon after Durham we found out that, although the jury was being given more information, still too much emphasis was being placed upon the labels used by the psychiatrist, upon whether he concluded that the defendant did or did not have a ‘mental illness.’ In Carter v. United States [(D.C. Cir. 1957) 252 F.2d 608, 616-618] we pointed out again that Durham was designed to eliminate this kind of labeling․ [¶] This warning was not effective enough so in McDonald v. United States we gave the terms ‘disease’ and ‘defect’ a legal definition independent of their medical meanings․ [¶] We clearly separated the legal and moral question of culpability from the medical-clinical concept of illness. We hoped thereby to separate the roles of the psychiatrist and the jury, with the former stating medical-clinical facts and opinions and the latter making the judgments required by the legal and moral standard.” (Fns. omitted.) (Id., at pp. 451-452; see also United States v. Brawner (D.C. Cir. 1972) 471 F.2d 969, 983-984 [adopting ALI rule but retaining McDonald definition of “mental disease or defect,” which “has helped accomplish the objective of securing expert testimony needed on the subject of mental illness, while guarding against the undue dominance of expert testimony or specialized labels”].)

“Mental disease or defect,” as that concept has been carried over into California's law of insanity by In re Ramon M.'s adoption of McDonald, is therefore a legal notion, very much concerned with behavior and responsibility, as the criminal law must be. While application of the rule is informed by medical insights (United States v. Brawner, supra, 471 F.2d at p. 995; People v. Drew, supra, 22 Cal.3d at p. 345, 149 Cal.Rptr. 275, 583 P.2d 1318), medical notions of what constitutes a disease are not determinative.

In this case, Dr. O'Neill testified that there was no medical abnormality in the disassociative state in which the minor killed his father, despite the fact that individuals in such a state “usually” are incapable of controlling what they do. The trial court concluded that the minor's state was an “abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls,” the language of the McDonald test, but held that the minor was sane because the “condition is not within the medical concept of ‘mental disease or defect.”’ The court erred in restricting its consideration to “medical concepts.” The error was not harmless in view of the fact that, but for its legal error, the court placed the minor's condition within the test of McDonald v. United States. Accordingly, the judgment (order committing the minor to the Youth Authority) is reversed.³

I concur in the rationale of the majority opinion dealing with the method of determination of legal insanity following the Supreme Court decision in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, however, I dissent from the result reached by the majority in applying that rationale to the facts presented.

The majority correctly state that the question of legal insanity is a factual determination to be decided by the trier of fact and is not a question left entirely to the medical experts. That function was in my view properly carried out. The trial court found that the minor's mental state was an “abnormal condition of the mind which … substantially impairs behavior controls …” and concluded that the condition was not within the medical concept of mental disease or defect. I fail to see how utilization of the term “medical concepts” of mental disease or defect indicates or compels the conclusion the trial court relied solely upon the medical expert testimony and restricted its consideration to medical concept only. I find my review of the record indicates that the court concluded all the evidence bearing on the mental condition of the minor. I view the stated conclusion to be in harmony as best it can with the present test of legal insanity as adopted by People v. Drew, supra. For this reason, I would affirm the judgment.

FOOTNOTES

1.  The court was informed subsequent to oral argument that the minor had been released from the custody and control of the Cobb Community Treatment Center, a youth authority facility, by virtue of successful completion of the treatment program, that on November 13, 1980, the minor was formally discharged from the custody and jurisdiction of the Youth Authority and that on December 22, 1980, the juvenile court of Siskiyou County entered an order releasing the minor from all penalties and disabilities resulting from the offense pursuant to Welfare and Institutions Code section 1179.

2.  The court declined to decide whether it would adopt the second half of the test: “(2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” (People v. Drew (1978) 22 Cal.3d 333, 345, fn. 8, 149 Cal.Rptr. 275, 583 P.2d 1318.)

3.  We do not reach the issue whether the minor was insane as a matter of law. However, in view of the fact that the trial court placed the minor's condition within the McDonald test and the minor has completed his “term” and the trial court relieved the minor of all “penalties and disabilities” resulting from the offense pursuant to Welfare and Institutions Code section 1179 (ante, fn. 1), we see no purpose in further trial court proceedings.

BLEASE, Associate Justice.

REYNOSO, J., concurs. EVANS, Acting Presiding Justice, concurring in part, dissenting in part.