PEOPLE v. McCOWAN (1984)

Defendant appeals from the judgment sentencing him to life imprisonment without the possibility of parole after a jury convicted him of first degree murder (Pen.Code, §§ 187, subd. (a), 189) ¹ , second degree murder (§§ 187, subd. (a), 189) and attempted murder (§§ 187, subd. (a), 664).   The jury also found true the special circumstance of multiple murders (§ 190.2, subd. (a)(3)), that defendant personally used a firearm in the commission of those offenses (§ 12022.5), and that defendant personally inflicted great bodily injury in the commission of the attempted murder (§ 12022.7).

Defendant raises numerous claims of error, urging reversal of the judgment.   We reject each of them and affirm the judgment.

FACTS

In March 1982, defendant and his wife Thaymer were divorced, ending a lengthy marriage.   Lois Leary, Thaymer's mother, had lived with defendant and Thaymer during the last two years of the marriage.   Lois was separated from her husband, Robert.

The dissolution proceedings had been bitter, and relations between defendant and Thaymer remained strained following their dissolution.   Defendant lived in a converted drapery shop in front of the Sacramento County residence where Thaymer and Lois lived.   On the evening of August 20, 1982, defendant shot and killed Thaymer and shot and wounded Lois near their home.

Shortly after the shootings, defendant went to the residence of his former girlfriend, Mary Crawford.   He told Crawford to give some boat parts to a friend, stated he had killed Thaymer and Lois, and told her that she (Crawford) did not know him.   Defendant then left and went to the home of Robert Leary, where he shot and killed Leary.

Defendant surrendered himself to authorities the day after the shootings.   After waiving his rights, defendant gave a taped statement in which he admitted the shootings.   Defendant told police stress from his employment situation, dissolution proceedings, his father's death, problems with Thaymer's attorney, and the breakup with Crawford collectively had been more than he could bear.   On the day of the shootings, defendant had left work early in order to obtain more Librium from his doctor at Kaiser Hospital.   Later that day, he consumed four beers and four other alcoholic drinks.   That evening, Thaymer made an obscene gesture at him as he drove by her home.   Defendant became enraged, and when Thaymer appeared to be reaching for something in her vehicle, he grabbed his gun and started firing.   He shot at Lois three times, feeling total hatred for her.

After reloading his gun in Robert's driveway, defendant stated he shot Robert once, then four more times after he fell, at close range.   He felt a “surging, raw hate” as he killed Leary.   Defendant then went to the law offices of Thaymer's attorney, Jack James, intending to shoot him, but the attorney was gone.   He knew where James lived, but did not want to hurt innocent people.   Instead, he went to a motel and tried to kill himself, but could not bring himself to do it.   His explanation for the shootings was as follows:  “I just completely lost control, and that's all there was to it.   Insanity.  Insanity.”

At trial, defendant presented evidence of his bitter relationship with Thaymer, Lois and Robert, and Thaymer's attorney.   Defendant believed they had treated him unfairly.   He was depressed and suicidal during the dissolution proceedings.   He became involved in an altercation with Thaymer's attorney after one court proceeding, and the attorney had threatened him with violence.   Moreover, after first agreeing to testify favorably for defendant, Robert later changed his mind.

Defendant had stated he wanted to kill Thaymer.   He also had said he would like to kill Thaymer, Lois, Robert and James together, then himself.   Sometime in 1982, he told friends he had imagined Thaymer was in his room and that he had fired a bullet at her image, striking a totem pole.

Following a violent argument between defendant and Crawford, defendant went to see Dr. Kenneth Patton, a psychologist.   Patton saw him twice, in December of 1981 and March of 1982.   In December, defendant told Patton his girlfriend and one of his daughters believed he was “losing his grip.”   Defendant thought the dissolution proceedings were primarily the cause of his troubles.   He had considered suicide.   In March, he was continuing to experience stress and had thought about harming his wife and an attorney.   He obtained a prescription for Librium, an anti-anxiety drug.   Patton found no evidence of psychosis or delusional behavior, and concluded defendant was suffering a stress reaction secondary to divorce.

Defendant testified he saw Dr. Patton because he was concerned he could not control himself.   He had strange dreams, from which he would awaken wanting to kill Thaymer, Lois, Robert, James and himself.   In July 1982, he fired at a totem pole in his room, thinking it was Robert.   He dreamed Thaymer, Lois and James also were present.

On the evening of the shootings, defendant loaded some items into his automobile, including a pistol, which he usually kept there.   When he saw Thaymer and Lois drive by he followed them to see whether they were leaving the area.   When Thaymer made an obscene gesture at him, defendant became upset and confronted Thaymer.   He had his gun because he thought Thaymer had one.   He could not remember much after he walked over to Thaymer.   He recalled being at the attorney's office, but did not recall anything about Robert's home.   He could not explain why he had remembered details of the shootings the day after they occurred but could not recall them at trial.

Dr. Elmer Galioni, a psychiatrist testifying for defendant, interviewed defendant on three occasions.   He opined that defendant suffered from a mental disorder which he characterized as a “major depressive episode.”   Dr. Galioni believed defendant's mental disorder had a significant impact on his mental process the night of the shootings.   The disorder had a number of symptoms:  depression, insomnia, loss of interest in activities, periods of agitation and irritability, recurrent thoughts of suicide, and physical and mental fatigue.

Dr. Galioni's diagnosis was based on the stresses defendant suffered as a result of the dissolution proceedings, threats by James, work difficulties, his father's death, and the breakup with his girlfriend, as well as on the “psychotic break” involving the hallucinations in which he shot at the totem pole.   A person in his situation could not control his emotions because the stresses were so great.   The emotions were so intense that he had great difficulty in thinking clearly and making judgments.

On cross-examination, Dr. Galioni admitted there is controversy among psychiatrists about whether a psychiatrist has the ability to diagnose a person's previous mental state with any reliability.   He agreed that an opinion about a past mental state generally carries with it a greater risk of error that an opinion about a current mental state.

During the first interview with defendant, Dr. Galioni did not discuss the events of August 20, 1982.   Defendant was depressed at the first interview, but not psychotic.   In the second interview, defendant related his previous feelings of wanting to hurt others.   He told Dr. Galioni how he killed Thaymer and Robert and wounded Lois.   In a previous interview with another doctor, defendant could not recall what happened after he approached Thaymer.

Dr. Galioni acknowledged it is critically important in interpreting a person's past mental state to know what the person felt at the time.   While he believed he had asked defendant what he thought when he fired at Thaymer, his notes did not reflect that question.   He could not recall asking defendant his reasons for the shootings.   When he asked what defendant's feelings were, defendant replied he felt completely out of control.   Dr. Galioni asked what defendant thought when he left his ex-girlfriend's place;  defendant said he was going to Robert's home to shoot him.   Although important, that statement was not in his notes.

Dr. Galioni listened to the police interview with defendant.   Defendant sounded coherent and lucid, with his memory intact.   Defendant's statement to Crawford that he shot Thaymer and Lois and that she did not know him might indicate he recognized what he had done and the consequences of his actions.   While defendant was in the driveway of Robert's residence he reloaded his gun, contrary to Dr. Galioni's understanding.   Dr. Galioni admitted that was significant activity, but had not asked defendant about it.   Moreover, although he admitted it was important, Dr. Galioni did not ask defendant why he had fired four more times at Robert after first shooting him.

At the sanity phase, the parties stipulated that the evidence presented during the guilt phase would be received as evidence for the sanity phase.

During the sanity phase, Dr. Galioni again testified for defendant.   In his opinion, defendant was suffering from a mental disorder at the time of the offenses that rendered him incapable of knowing or understanding the nature and quality of his acts and incapable of distinguishing right from wrong.   Defendant's mental disorder was a major depressive episode, which progressed to the point where he had periods of being overtly psychotic.   Dr. Galioni pointed to the hallucinations associated with the totem pole incident as support for his conclusions.   He opined that the totem pole incident was a strong indication of mental disease.   Defendant was completely out of touch with reality, unable to know right from wrong.

In Dr. Galioni's interviews with defendant following completion of the guilt phase, defendant stated he felt angry and “disjointed” at the time of the offenses.   He heard the sounds of the gun firing, but could not remember doing the shooting.   He had no control.   He could not recall driving to Robert's house and was not aware of having his gun with him or of reloading it.   Defendant was unaware of knocking on the door or ringing the doorbell, shooting the gun, or seeing Robert fall.

When defendant gave his statement to authorities, he could not distinguish between what actually happened and what he had dreamed.   He did remember thinking of going to a motel to kill himself.   Defendant had no recognition of right or wrong.

Dr. Galioni discussed with defendant the inconsistencies between his statements to police and the interviews after the guilt phase.   The psychiatrist attributed the inconsistencies to “patchy forgetfulness”;  defendant's mind was protecting him from the unpleasant experience of the shootings.   For example, although he had difficulty distinguishing between dreams and reality, defendant gave boat parts to Crawford;  yet he did not recall doing so.   His statement to police that he did not go to James' residence because he did not want to hurt innocent people reasonably could be interpreted to mean defendant had considered the rights of others.

The jury found defendant sane at the time he committed the offenses.

DISCUSSION

I

Over defense objections, the trial court ruled the defense could not “ask any psychiatrists or other expert on mental condition a question as to whether or not the defendant had the capacity to form a mental state in issue here on the date of the alleged commission of the offense.”   The court also barred expert testimony “as to whether or not the defendant did or did not form the required mental state at the time of the alleged commission of the act, ․”  The court expressly relied on sections 25, 28 and 29 for its rulings.

Section 25, subdivision (a), states in part:  “The defense of diminished capacity is hereby abolished.   In a criminal action, ․ evidence concerning an accused person's ․ mental illness, disease, or defect shall not be admissable [sic] to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”

Section 28 provides in pertinent part:  “(a) Evidence of mental disease, mental defect, or mental disorder shall not be admitted to negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.   Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.  [¶] (b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action ․  [¶] ․ (d) Nothing in this section shall limit a court's discretion, pursuant to the Evidence Code, to admit or exclude psychiatric or psychological evidence on whether the accused had a mental disease, mental defect, or mental disorder at the time of the alleged offense.”

Section 29 states:  “In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect 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.”

Defendant contends:  (1) the trial court's rulings prohibiting defendant from presenting relevant evidence in his behalf violated defendant's due process rights and his right to compulsory process of witnesses;  (2) the rulings unconstitutionally relieved the prosecution of its burden of proving all elements of the offenses beyond a reasonable doubt;  and (3) the ruling prohibiting expert opinion testimony regarding defendant's mental state at the time of the offenses violated his right to equal protection of the laws.

Proposition 8 added section 25 to the Penal Code.   The Legislature enacted sections 28 and 29.   Defendant's crimes occurred in August 1982.   Proposition 8 became effective on June 9, 1982.  (Cal. Const., art. I, § 28;  art. XVIII, § 4.)   Accordingly, the provisions of that initiative measure apply to defendant.  (People v. Smith (1983) 34 Cal.3d 251, 257–258, 193 Cal.Rptr. 692, 667 P.2d 149.)

 Not all relevant evidence is admissible.  Evidence Code section 351 provides that all relevant evidence is admissible except as otherwise provided by statute.   The Legislature has created exceptions where relevant evidence is excluded on grounds of unreliability or public policy.  (See Evid.Code, § 900 et seq. [privilege] and § 1200 et seq. [hearsay].)

 Both the Legislature and the electorate have the power to enact criminal statutes which define the elements of crimes.  (Cal. Const., art. II, § 8;  Pen.Code, § 6;  In re Brown (1973) 9 Cal.3d 612, 624, 108 Cal.Rptr. 465, 510 P.2d 1017.)   A fortiori, they also have the power to determine which defenses will exist and the mental states required for the commission of crimes.   The restrictions imposed by sections 25, subdivision (a), 28 and 29 are determinations by the electorate and the Legislature that for reasons of reliability or public policy, capacity evidence is inadmissible.

In People v. Jackson (1984) 152 Cal.App.3d 961, 965, 199 Cal.Rptr. 848, the accused's defense to an attempted murder charge was that he lacked the requisite mental state by reason of mental defect.   Prior to the testimony of the defendant's psychiatric witnesses, the trial court stated that sections 28 and 29 limited testimony to their opinion regarding the defendant's mental state at the time of the crime and barred psychiatric testimony on the ultimate conclusion of law.

The court of appeal held that the evidentiary restrictions imposed by sections 28 and 29 were not so severe that the accused was deprived of his due process right to present the defense that he lacked the requisite mental state.   It held that the statutory restrictions were a legitimate legislative determination on the admissibility of a class of evidence.  (People v. Jackson, supra, 152 Cal.App.3d at pp. 968–969, 199 Cal.Rptr. 848.)

 In evaluating the constitutionality of sections 25, subdivision (a), and 28, we must determine whether the exclusion of capacity evidence prevented defendant from disproving the mental state necessary to the charges.  (People v. Jackson, supra, 152 Cal.App.3d at p. 968, 199 Cal.Rptr. 848.)   Defendant has the right to present a defense, which includes both his version of the facts and the testimony of witnesses.  (Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023.)   Moreover, the prosecution is required to prove every fact necessary to constitute the crime beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375.)

 Examination of the record discloses defendant was permitted to present evidence suggesting that his mental condition prevented him from forming the required mental state at the time he committed the offenses.   Dr. Galioni testified that his mental disorder, a “major depressive episode,” had a significant impact on his mental process the night of the shootings.   According to Galioni, defendant essentially was out of control, unable to think clearly or make judgments without great difficulty.   The cause of his condition was the existence of numerous, intense pressures and stresses.

Defendant cites People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308 in support of his argument that capacity evidence cannot be excluded.   In Wetmore, the Supreme Court voided a rule barring admission of evidence of diminished mental capacity at the guilt phase, where an insanity defense could be raised at a later phase.   The court rejected the distinction between mental capacity evidence and actual mental state evidence.  (Id., at p. 324.)

Wetmore was decided prior to enactment of sections 25, subdivision (a), and 28.   These statutes eliminate both capacity evidence and the diminished capacity defense.   Accordingly, Wetmore is inapposite here.

Section 29 prohibits an expert from testifying whether the accused had the requisite mental state at the time of the offense, placing determination of that ultimate fact in the province of the trier of fact.

 Defendant urges section 29 is an unequal and discriminatory prohibition of the use of expert testimony by defendant and others similarly situated.   We disagree.

 Defendant misconstrues the scope of the prohibition contained in section 29.   Contrary to his assertion, the statute does not forbid an expert from stating his opinion about the accused's mental state.   Dr. Galioni stated his opinion that, as a result of defendant's mental disorder, he was out of control when he committed the offenses.  Section 29 precluded Dr. Galioni only from testifying whether defendant had one of the mental states required for the offenses—for example, malice aforethought.   That ultimate determination must be made by the trier of fact.

 Section 29 properly may be viewed not as a prohibition on the use of expert testimony, but as a limitation on the use of expert testimony, and a determination that such testimony on the ultimate issue whether the accused had the requisite mental state is unnecessary.   Expert testimony embracing the ultimate issue to be decided by the trier of fact generally is admissible.  (Evid.Code, § 805.)   However, it is not an abuse of discretion for a court to find the jury fully capable of deciding the question posed to the expert based on its own experience.  (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 926, 184 Cal.Rptr. 393.)

The Legislature has determined that judges and jurors are capable of deciding whether a defendant's mental illness resulted in an inability to form the mental state required to sustain the charge.   Such testimony is not “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ․”  (Evid.Code, § 801, subd. (a).)  Although defendant disputes the wisdom of that determination, we cannot hold, as a matter of law, that the Legislature's policy decision is erroneous.  (People v. Jackson, supra, 152 Cal.App.3d at p. 969, 199 Cal.Rptr. 848.)

As we have said, defendant was permitted to introduce psychiatric testimony regarding his mental condition at the time of the offenses.   He was precluded only from introducing capacity evidence and asking his psychiatrist whether the requisite mental state existed.   These limitations did not prevent defendant from presenting his defense.   We hold that sections 25, subdivision (a), 28, and 29 do not contravene defendant's constitutional rights to due process, use of witnesses, or equal protection, nor do they relieve the prosecution of its proof burden.  (See People v. Jackson, supra, 152 Cal.App.3d at pp. 968–970, 199 Cal.Rptr. 848.)

II

Defendant contends the trial court improperly instructed the jury at the conclusion of the guilt phase.   According to defendant, the court erred when it:  (1) refused to give a modified instruction;  (2) gave instructions on heat of passion;  (3) refused to give defendant's proposed instructions;  and (4) confused the jury with an instruction.   Defendant urges the errors were prejudicial and compel reversal.

 CALJIC No. 8.77 (4th ed. 1979) was the diminished capacity instruction.   After the Legislature enacted section 28, the instruction was discontinued.  (CALJIC No. 8.77 (4th ed. 1979 pocket pt.) p. 79.)   It is no longer a correct statement of the law.   Defendant's modifications to CALJIC No. 8.77 substituted the words “reduced” for “diminished” and “state” for “capacity.”

Defendant claims the modifications comport with that portion of section 28, subdivision (a), which allows evidence of mental defect on the issue of whether the accused actually formed a required specific intent.   We disagree.

Even in its modified form, CALJIC No. 8.77 remains an instruction regarding capacity evidence;  its admission is no longer permitted.   The court properly instructed the jury on whether defendant actually formed the requisite mental state, by giving a modified version of CALJIC No. 3.36 (4th ed. 1981).   That instruction was nearly identical to one requested by defendant.   The court properly refused defendant's proposed modifications.

The court instructed the jury on heat of passion to reduce murder to manslaughter.   Defendant claims he did not rely on such a defense at trial.   Moreover, he asserts, the instructions directed the jury to measure his conduct against an objective standard of reasonableness, thereby prejudicing his defense which was predicated on a mental disorder, a subjective standard.

 Defendant's contention is meritless.   He himself requested two heat of passion instructions.   Moreover, there was evidence he became enraged when Thaymer made the obscene gesture at him, and felt hatred for Robert when he shot him.   On this record, irrespective of his wishes, the trial court was obligated to instruct on heat of passion sufficient to reduce murder to manslaughter.  (People v. Wickersham (1982) 32 Cal.3d 307, 324–326, 185 Cal.Rptr. 436, 650 P.2d 311.)   There was no error.

 Defendant's proposed instructions on heat of passion were correctly refused as inaccurate statements of the law.   All were concerned with formation of the requisite mental state and the use of evidence of mental defect.   None properly limited the use of such evidence.   Only the court's instruction, CALJIC No. 3.36 as modified, was consistent with section 28, subdivision (a).

Defendant urges CALJIC No. 3.36 confused the jury by implying the purpose for which evidence of mental defect was admitted was a “limited” one and thus “not important.”

 Defendant is mistaken.   The court did not instruct the jury it could consider evidence of mental defect for a “limited” purpose.   Rather, the court told the jury it could consider such evidence solely for the purpose of determining whether defendant actually formed the requisite mental states.   As we have said, that instruction was a proper application of section 28, subdivision (a).   Contrary to defendant's assertions, the modified version of CALJIC No. 3.36 clearly apprised the jury how to apply evidence of his mental defect to the requisite mental states.   We assume that the jurors, properly instructed, were capable of understanding the instructions and that no confusion resulted.  (People v. Billings (1981) 124 Cal.App.3d 422, 428, 177 Cal.Rptr. 392.)

III

Proposition 8 also added section 25, subdivision (b), to the Penal Code.   Under that statute, a defendant is insane only when “he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”  (§ 25, subd. (b);  emphasis added.)

Defendant contends subdivision (b) constitutes a new insanity standard, rather than a restatement of the traditional M'Naghten standard.²  According to defendant, the new standard is so narrow as to make proof of lack of mens rea a virtual impossibility, violating his due process rights.   The People urge the statute merely reinstated the M'Naghten test as the measure of criminal insanity, and that the two prongs are indistinguishable.

Since People v. Coffman (1864) 24 Cal. 230, California courts had followed the M'Naghten test to define the defense of insanity.   That test provides:  ‘[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act, or, if he did know it, that he did not know he was doing what was wrong.”  (Emphasis in original;  id., at p. 235.)   The test became known as the “right and wrong” test, with the focus on the defendant's ability to understand the wrongfulness of his conduct.  (See People v. Wolff (1964) 61 Cal.2d 795, 800–801, 40 Cal.Rptr. 271, 394 P.2d 959, and cases cited therein.)

As the People point out, California decisions reviewing sanity findings under the M'Naghten standard sometimes utilized the conjunctive “and” when applying the test, rather than the disjunctive “or” found in the original formulation.   Thus, some decisions stated the test in terms of a lack of understanding of the nature and quality of the act and the inability to perceive the act to be wrongful.  (See People v. Nash (1959) 52 Cal.2d 36, 42–43, fn. 3, 338 P.2d 416;  People v. French (1939) 12 Cal.2d 720, 730, 87 P.2d 1014, overruled on another ground in People v. Valentine (1946) 28 Cal.2d 121, 144, 169 P.2d 1;  People v. Ricks (1958) 161 Cal.App.2d 674, 677, 327 P.2d 209.)

The original CALJIC instruction, number 801, on insanity used “and” rather than “or.”   After the decision in People v. Richardson (1961) 192 Cal.App.2d 166, 13 Cal.Rptr. 321, the instruction was changed.  (See CALJIC No. 4.00 (3d ed. 1970).)   In Richardson, the court recognized the problem and held use of the conjunctive misstated M'Naghten.   However, under the circumstances of the case, the court held the error was not prejudicial.  (People v. Richardson, supra, 192 Cal.App.2d at pp. 172–173, 13 Cal.Rptr. 321.)

M'Naghten was criticized for its exclusive focus on the cognitive capacity of the accused, which often was unrelated to the defendant's illness or crime.  (People v. Drew (1978) 22 Cal.3d 333, 341–343, 149 Cal.Rptr. 275, 583 P.2d 1318.)   In Drew, our Supreme Court reversed itself and abandoned M'Naghten.   In its place, the court adopted the test proposed by the American Law Institute:  “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 [i.e., wrongfulness] of his conduct or to conform his conduct to the requirements of law.”  (Model Pen.Code (Proposed Official Draft) (1962) § 4.01, subd. (1), quoted in People v. Drew, supra, 22 Cal.3d at p. 345, 149 Cal.Rptr. 275, 583 P.2d 1318.)

The ALI test altered the test for insanity in two respects.   First, it did away with the all-or-nothing language of M'Naghten, and replaced it with a less stringent standard of substantial capacity.  (People v. Drew, supra, 22 Cal.3d at p. 346, 149 Cal.Rptr. 275, 583 P.2d 1318.)   Second, it added a volitional prong to the test by requiring the capacity to conform to legal requirements.  (Ibid.)

In People v. Horn (1984) 158 Cal.App.3d 1014, 205 Cal.Rptr. 119, this court, with one justice dissenting, held Proposition 8 was not intended to create a new test of insanity, but was only intended to abrogate the decision in Drew and return to the M'Naghten test.   The majority recognized that the word “and” is used in section 25, subdivision (b), but pointed out “and” and “or” have been used interchangeably in the past and that “and” may be interpreted as “or” under certain circumstances.  (Id., at pp. 1027–1028.)   According to the court, Proposition 8 was intended to serve as a deterrent to criminal behavior through punishment.  (Id., at pp. 1028–1029.)   Abrogation of Drew, but not of M'Naghten, would serve that purpose.  (Id., at pp. 1029.)

The dissenting opinion by Justice Evans noted the clear, unambiguous language of the statute and the strict standard imposed.  (People v. Horn, supra, at pp. 1034–1035, 205 Cal.Rptr. 119.)   Recognizing that various authorities in the past used “and” and “or” interchangeably, Justice Evans declared “․ that circumstance does not permit us to be so presumptive as to conclude the people, by their initiative process, didn't mean what they clearly stated, that the conjunctive rather than the disjunctive be required and both prongs of the M'Naghten test be established in order to prove insanity as a criminal defense.”  (Id., at p. 1035.)

The dissent could find nothing in the statute, in Proposition 8 as a whole, or in the arguments about the initiative that would imply the electorate did not intend the conjunctive to be the requirement rather than the disjunctive.  (Id., at pp. 1035–1037.)   Nor can we.   That the statute imposes a strict standard should not tempt us to substitute our preference for the clearly expressed will of the people, who we must presume knew what they were doing.  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 252, 186 Cal.Rptr. 30, 651 P.2d 274;  Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243–244, 149 Cal.Rptr. 239, 583 P.2d 1281.)

 While we agree with the Horn majority that Proposition 8 was intended to deter crime through punishment, we are persuaded that requiring proof the accused suffered from both aspects of the M'Naghten standard more adequately accomplishes that goal, by significantly limiting the class of persons who may be found insane.   The new standard subjects more criminals to punishment and incarceration in state prison instead of to treatment in a mental institution.   This construction is consistent with section 25 as a whole, which reduces the effect of mental disabilities during the guilt phase, the sanity determination, and at sentencing.   Accordingly, we disagree with the Horn majority and hold the statute requires the defendant to prove both prongs of the test.³

During cross-examination of Dr. Gallioni, the prosecutor had implied defendant must satisfy both prongs of M'Naghten to prevail on his insanity defense.   In closing arguments at the sanity phase, counsel for both sides stated defendant must prove a lack of understanding of the nature and quality of his acts and an inability to know the acts were wrongful.

 At the conclusion of the sanity phase, the court instructed the jury that defendant was insane only if he was incapable of knowing or understanding the nature and quality of his act and of distinguishing right from wrong at the time of the offenses.   Because we have concluded section 25, subdivision (b) requires proof of both prongs, we hold the court properly instructed the jury.

Defendant claims the new statute violates his due process rights by virtually eliminating the insanity defense.   According to defendant, the new standard will result in sanity verdicts despite evidence of mental illness.

 “It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane.  [Citations omitted.]”  (People v. Kelly (1973) 10 Cal.3d 565, 574, 111 Cal.Rptr. 171, 516 P.2d 875.)   However, no particular test for insanity is constitutionally compelled by the due process clauses of either the state or federal constitutions.   In Leland v. Oregon (1952) 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, the United States Supreme Court upheld an Oregon statute which required the accused to prove his insanity beyond a reasonable doubt.   The test in the statute for insanity was the “right and wrong” test, a single prong of the traditional M'Naghten test, excluding irresistible impulse.   The defendant attacked both the burden of proof and the insanity test.

In challenging the right-wrong test, the defendant argued the test was fundamentally unfair in view of the strides made by psychiatry since the test was first laid down in M'Naghten.   In response, the Leland court noted the truth of that observation but stated:  “․ the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law.  [Fn. omitted.]   Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge would determine criminal responsibility.  [Fn. omitted.]”  (343 U.S., at p. 801, 72 S.Ct. at 1008, 96 L.Ed., at p. 1310.)

The same view expressed in Leland was adopted by the California Supreme Court in People v. Wolff (1964) 61 Cal.2d 795, 802, 40 Cal.Rptr. 271, 394 P.2d 959, when it rejected similar arguments and stated:  “But the extent and nature of advances in psychiatric knowledge during the past decade are not shown, and we are not persuaded that they have been of such a revolutionary scope as to undermine the holding in Leland.  [Fn. omitted.]”

 The defense of insanity may be a “ ‘․ principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental’ ․” (see Leland v. Oregon, supra, 343 U.S. at p. 798, 72 S.Ct. at 1007, 96 L.Ed. at p. 1309), but no particular definition of insanity has such roots.   The definitional variations of the nature and degree of insanity which will render a person not criminally responsible for his or her actions indicate the question is one of social policy.   The decision whether to impose criminal responsibility is akin to the decision as to what acts or omissions will be criminal and what punishment is suitable.   Such questions have long been held to be subject to legislative determination.  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617;  People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)   We hold the insanity standard contained in section 25, subdivision (b) does not deprive defendant of the right to present his defense, for the defense remains available, albeit in a limited form.

IV

Defendant moved to strike the special circumstances finding to make defendant eligible for parole.   The trial court denied the motion, stating:  “The Court has considered the evidence and the stresses the defendant was subjected to, stemming from his marital situation and his employment and financial situation, but the fact remains that Mr. McCowan murdered Thaymer McCowan, attempted to murder Lois Leary, and after visiting his girlfriend, went to Robert Leary's home and murdered him, went out in search of a fourth murder victim, and the Court in exercise of its discretion, finds and concludes that life imprisonment without the possibility of parole is the appropriate sentence, and accordingly, the motion to strike the special circumstances is denied.”

Defendant urges the court failed to exercise its discretion in considering the motion to strike the special circumstance.   Relying on People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029 and rule 443 of the California Rules of Court, defendant claims the court must state reasons for the exercise of its discretion.

 Williams held that section 1385 authorizes the trial court in a murder case to dismiss a special circumstances finding and to modify sentence to life imprisonment with the possibility of parole.  (People v. Williams, supra, 30 Cal.3d at pp. 477–490, 179 Cal.Rptr. 443, 637 P.2d 1029.)   However, nowhere in Williams does the court require trial courts to state their reasons for denying the motion.   Section 1385 itself requires a statement of reasons only in the event of dismissal.  Rule 443 applies only when the giving of reasons is required.

Here, the record discloses the court properly exercised its discretion in denying the motion.   There was no error.

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   (M'Naghten's Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722].)

3.   In People v. Skinner (1984) 154 Cal.App.3d 653, 201 Cal.Rptr. 483, the Court of Appeal for the Second District, Division Six, per Abbe, J., with Stone, P.J., and Gilbert, J., concurring, rejected the defendant's contention that section 25, subdivision (b), should be interpreted to permit an accused to establish insanity by proving either prong of the insanity test.   The court held that, taken together, the plain language of the statute and its legislative history supported the interpretation that insanity may only be established by proving both prongs of the test.   On June 14, 1984, the Supreme Court granted a hearing in Skinner (Crim. 23783).

REGAN, Associate Justice.

PUGLIA, P.J., and CARR, J., concur.