Opinion
Rehearing Denied Nov. 8, 1971.
Opinion on pages 758 to 776 omitted
HEARING GRANTED
For Opinion on Hearing, see 105 Cal.Rptr. 792, 504 P.2d 1256.
[98 Cal.Rptr. 14]Ronald A. Mayo, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Alexander B. McDonald, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
AULT, Associate Justice.
Samuel Dwane Cantrell was indicted for the murder of Danny Paul Wright. He entered pleas of not guilty and not guilty by reason of insanity. A jury, by separate verdicts, found him guilty of first degree murder, sane at the time he committed the offense, and fixed his punishment at confinement in the state prison for life. His motion for new trial was denied, and the trial court sentenced him to life imprisonment. He appeals from the judgment of conviction.
On appeal, Cantrell raises the following contentions:
1. His extrajudicial statements and confessions should have been excluded because the prosecution failed to prove the corpus delicti for the crime of murder.
2. His extrajudicial statements concerning his acts of sexual misconduct with the 12-year-old victim should have [98 Cal.Rptr. 15]been excluded because the prosecution failed to establish the corpus delicti for the underlying felony (child molesting, Pen.Code § 288), thereby precluding it from proceeding under the felony murder doctrine.
3. Even if his extrajudicial statements concerning his sexual misconduct with the victim were admissible, the evidence failed to establish a violation of Penal Code section 288 as a matter of law.
4. The jury was not properly instructed on the intent necessary to establish the crime of child molesting.
5. The trial court erred in not giving a sua sponte instruction limiting the effect of the incriminating statements he made to examining psychiatrists.
6. The trial court gave erroneous and improper instructions on voluntary and involuntary manslaughter.
7. The trial court prejudicially limited the examination of the psychiatric experts regarding his diminished mental capacity.
8. It was prejudicial error to give CALJIC Instruction No. 806 concerning 'irresistible impulse' during the guilt phase of the trial where diminished capacity was an issue.
FACTS
Danny Wright, age 12, lived in Oceanside with his parents, three brothers and a sister. On Friday, August 15, 1969, he left his home at 6:55 p. m., saying he intended to see a friend at the beach. When he left he was wearing a jacket and a silver-colored chain bracelet. Insofar as in known, he was never seen alive again by anyone except the defendant Cantrell.
Cantrell spent the evening of Saturday, October 18, and the early morning hours of Sunday, October 19, with his close friend Edward Stringer, first driving to San Diego and then visiting some girls in Oceanside and having a few drinks. On the way home, Cantrell became very quiet and put his head down. When Stringer asked what was the matter, Cantrell said, 'I think I have killed a kid.' Stringer didn't believe him. Cantrell then related he had picked up a boy named Danny Wright in Oceanside, had taken him for a ride in the Camp Pendleton area, had played with him and had strangled him. Stringer testified: ' * * * he told me that he was queering with the kid.' ' * * * the kid got disturbed and shook up and started struggling, screaming, and he strangled him.' Cantrell then took Springer to a spot in the Del Dios area where he said he had thrown the body. They could see nothing from the road and they did not go down the incline. Stringer told Cantrell he was going to call the police and suggested Cantrell talk to Stringer's friend in the sheriff's office to see if what he said was true. Cantrell agreed.
Stringer reported the matter to the sheriff's office shortly after Sunday midnight. Early Monday morning, October 20, 1969, Deputy Sheriff Ring and Sergeant Norton, homicide detectives in the sheriff's department, went to Cantrell's residence to investigate. As soon as Ring said he had talked with Stringer, Cantrell stated he thought he may have killed a boy. Ring immediately advised him of his constitutional rights. Cantrell said he understood about his rights, having been a military policeman, and that he was willing to talk. He repeated the same story to Ring, but with more details. He told of going for a ride with Danny, who he thought was 13 or 14 years old. He said they parked, got out of the car and somehow, he couldn't recall how, Danny had his clothes off. He said he fondled the boy's penis with his hands and that the boy began to scream. He said, 'This must have triggered me because I took my hands and choked him. I then took a rag or a T-shirt and tied it around his neck.' He said he put the nude body in his car and drove around Del Dios area, where he finally threw the body down a bank. He stated he had thought it was all a nightmare when he awoke the next morning until he found some weeds in his car. He recalled he had returned to Del Dios [98 Cal.Rptr. 16]area to look for the body, but found nothing.
Cantrell did not testify during any part of the trial. At the guilt phase, he presented several character witnesses and the testimony of three of the four psychiatrists who had examined him. All of the psychiatrists who testified agreed Cantrell was functioning under a diminished capacity at the time of the homicide. Basically, all agreed he did not have the mental capacity to deliberate or intend to take human life at the time he strangled Danny Wright. Two of the three psychiatrists testified Cantrell's strangling of Danny was a compulsive reaction to the boy's yelling and struggling which, due to his mental condition, Cantrell had no power to control.
CORPUS DELICTI
A prima facie showing of the corpus delicti of the crime charged must be made before a defendant's extrajudicial statements, admissions or confessions may be received in evidence (People v. Cooper, 53 Cal.2d 755, 765, 3 Cal.Rptr. 148, 349 P.2d 964). To establish the corpus delicti in the instant case, it was only necessary for the People to show a reasonable probability the criminal act of another caused the death of Danny Wright. (People v. Ives, 17 Cal.2d 459, 464, 110 P.2d 408; People v. Small, 7 Cal.App.3d 347, 354, 86 Cal.Rptr. 478.) The corpus delicti may be established by circumstantial evidence, and by the reasonable inferences to be drawn from such evidence (People v. Miller, 71 Cal.2d 459, 477, 78 Cal.Rptr. 449, 455 P.2d 377). While slight evidence is sufficient to establish the corpus delicti, it must be proved entirely independent of and without considering the defendant's extrajudicial statements (People v. Mehaffey, 32 Cal.2d 535, 544-545, 197 P.2d 12).
The evidence introduced at the trial before the defendant's extrajudicial statements were received was sufficient to make a prima facie showing Danny Wright had met his death through a criminal agency. It showed: Danny, age 12, left his home in Oceanside to see a friend at the beach at 6:55 p. m. August 15, 1969, and was never seen alive again. He was wearing a jacket and was dressed for the weather. He was also wearing a silver-colored chain link bracelet without a metal plate in it. He was in good health and not given to fainting spells or stumbling of any kind. Officer Ring, on October 20, 1969, found the remains of a human being consisting of a skull, five or six of the twelve long bones from the victim's arms and legs, hair and some mummified skin, at the base of a culvert in a remote area of San Diego County, approximately 26 miles from Danny's home. None of the long bones found had any fractures or breaks. Ring had had occasion to examine the remains of approximately thirty persons who had been struck on the highway by automobiles. In such cases the long bones and other bones of the body were fractured severely. No clothing was found in the area where the remains were discovered; in Ring's experience it was unusual not to find clothing of a decedent who had died by accidental means. There were no skid marks on the road in the area where the remains were found nor any broken vehicular glass. A silver-colored chain link bracelet was found around the end of two long bones of the skeleton. Danny's father testified the bracelet was similar to the one Danny was wearing at the time he left home. The teeth found in the skull were unusual and appeared to Danny's father and to a dentist to be those of the boy.
Tested by the rules announced above, we believe the sufficiency of the proof of the corpus delicti is not open to serious dispute. The court properly permitted the introduction of defendant's extrajudicial statements.
CORPUS DELICTI OF THE UNDERLYING FELONY
Contrary to Cantrell's contention, the People need not establish the corpus delicti of the underlying felony before introducing a defendant's extrajudicial statements. In People v. Miller, 37 Cal.2d 801, [98 Cal.Rptr. 17]236 P.2d 137, the defendant contended it was incumbent upon the People to establish the corpus delicti of both the crime of murder and the underlying felony involved (attempted robbery) before his extrajudicial statements could be received in evidence. The court held the only prerequisite to consideration of extrajudicial statements was proof of the corpus delicti of the crime of murder, stating at page 806, 236 P.2d at page 139:
'The corpus delicti of the crime of murder having been established by independent evidence, both reason and authority indicate that the circumstances surrounding the commission of the crime can be shown by the extra-judicial statements of the accused, and that such evidence of the surrounding circumstances may be used to establish the degree of the crime committed.'
The Miller case was cited with approval in People v. Cooper, supra, 53 Cal.2d 755, at page 765, 3 Cal.Rptr. 148, 349 P.2d 964, where the Supreme Court again rejected the identical claim made here. Thus Cantrell's extrajudicial statements were properly admitted to show he had been sexually molesting Danny immediately before he strangled him, so the prosecution could establish the degree of the crime by invoking felony murder rules. (Pen.Code § 189.)
EVIDENCE OF INTENTION TO VIOLATE PENAL CODE SECTION 288
Assuming the admissibility of his extrajudicial statements, Cantrell nevertheless contends the evidence was insufficient to establish he violated Penal Code section 288, the underlying felony relied upon. The thrust of his argument is that there was no proof he acted with the specific intent required to violate the section. The contention is without merit. Under the cases cited in the preceding paragraph, Cantrell's extrajudicial statements were not only admissible to show he committed acts proscribed by Penal Code section 288, but also to prove he did so with the requisite specific intent. We know of no authority, and Cantrell has cited none, which holds the People must prove the underlying felony independent of and without reference to the defendant's extrajudicial statements. His admissions he was 'queering with the kid', fondling the boy's penis with his hands, and that he strangled him when he started to yell, all indicate his sexual contact with Danny was neither innocent nor accidental. The reasonable inference to be drawn from the evidence is that Cantrell engaged in the acts with the intent of arousing, appealing to, or gratifying his own lust, passion or sexual desires. (Pen.Code, § 288.)
INSTRUCTIONS ON SPECIFIC INTENT REQUIRED UNDER PENAL CODE SECTION 288
As Cantrell concedes, the trial court, in the course of its instructions, correctly informed the jury of the specific intent required to violate Penal Code section 288. CALJIC Instructions Nos. 521, 523, 524 and 526 were given substantially verbatim.
These instructions were given three times. They were part of the original instructions, and were repeated twice later as part of the instructions in answer to specific questions asked by the jury during the course of its deliberations. The actual instructions given on the subject read:
Following are extracts from testimony of the psychiatrists.
[98 Cal.Rptr. 18]Cantrell's quarrel with the instructions in this area is that other instructions involving felony murder and intent generally used the terminology 'with the specific intent to commit a lewd and lascivious act on the body of a child.' The court's instructions to the jury must be considered as a whole, and each instruction must be regarded in the light of the others (CALJIC No. 5--now CALJIC No. 1.01), and the jury in this case was so instructed. The instructions complained of concerning the specific intent to commit a lewd and lascivious act must be read in the light of the other instructions which defined a lewd and lascivious act and which included the requirement of the specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of the minor or the accused. Since these instructions correctly and adequately advised the jury of the specific intent required to violate Penal Code section 288, the court was not required to repeat the entire definition each time it referred to that specific intent. Taken as a whole, the instructions were not misleading or erroneous, and nothing before us indicates the jury was in fact misled (People v. Kearney, 20 Cal.2d 435, 439, 126 P.2d 612).
FAILURE TO GIVE INSTRUCTIONS LIMITING THE EFFECT OF INCRIMINATING STATEMENTS MADE TO THE EXAMINING PSYCHIATRISTS
Relying on In re Spencer, 63 Cal.2d 400, 46 Cal.Rptr. 753, 406 P.2d 33, Cantrell contends the trial court committed prejudicial error in failing, sua sponte, to instruct the jury the psychiatrists' testimony, relating the incriminating statements he made to them, should not be regarded as proof of the facts disclosed by the statements. At page 412, 46 Cal.Rptr. at page 761, 406 P.2d at page 41 the court in Spencer stated:
'If defendant does specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should be permitted to testify at the guilt trial, but the court should instruct the jurors that the psychiatrist's testimony as to defendant's incriminating statements should not be regarded as proof of the truth of the facts disclosed by such statements and that such evidence may be considered only for the limited purpose of showing the information upon which the psychiatrist based his opinion.'
Spencer does not hold the court must give the limiting instruction concerning psychiatric testimony, sua sponte. Here it was Cantrell, not the People, who offered the psychiatric testimony, and it was his attorney who elicited the incriminating statements from the medical experts. He made no request to limit the testimony at the time it was offered and made no tender of the instruction he now claims should have been given.
'Although in criminal cases the court must instruct the jury on its own motion as to applicable general legal principles, even though the parties fail to propose such instructions, the court need not render [98 Cal.Rptr. 19]particular instructions as to specific points unless the parties request them or they are essential to a fair trial.' (People v. Morse, 60 Cal.2d 631, 656, 36 Cal.Rptr. 201, 217, 388 P.2d 33, 49; see also People v. Hood, 1 Cal.3d 444, 449, 82 Cal.Rptr. 618, 462 P.2d 370.)
The incriminating statements Cantrell made in the course of the psychiatric examinations, related by the psychiatrists in their testimony at the trial, were basically the same incriminating statements he had made to Stringer and Officer Ring. They were already properly before the jury, and a limiting instruction would have had little or no effect. Under these circumstances, the failure to give the instruction did not deprive Cantrell of a fair trial. In the absence of a request, the court was under no duty to instruct the jury concerning the limited effect of the incriminating statements disclosed by the psychiatrists' testimony. (See People v. White, 50 Cal.2d 428, 430, 325 P.2d 985.)
Only two of the three psychiatrists who testified at the guilt phase of the trial were appointed pursuant to Penal Code section 1027. The third psychiatrist was selected by Cantrell's attorney to advise the defense. The incriminating statements were made to all three of the psychiatrists.
'Without any such evidence to the contrary, we are unable to find that defendant could have formed or sustained the premeditation requisite to a conviction of willful, deliberate and premeditated murder, which is murder of the first degree (Pen.Code, § 189) punishable by death (Pen.Code, § 190).
THE MANSLAUGHTER INSTRUCTIONS
The trial court gave the following manslaughter instructions:
'Manslaughter is the unlawful killing of a human being, without malice aforethought. It is not divided into degrees but is of two kinds, namely, voluntary manslaughter and involuntary manslaughter.
'As applied to this case, voluntary manslaughter is the intentional and unlawful killing of a human being by another where the mental capacity of the defendant was so affected by mental disease or from some other cause as he was not able to harbor malice as has been heretofore defined for you in these instructions.
'As applied to this case, involuntary manslaughter is the unlawful killing of one human being by another due to diminished capacity, the defendant--by another if, due to diminished capacity, the defendant had neither malice as heretofore defined for you nor an intent to kill.'
Cantrell contends the instructions erroneously limited the basis for a manslaughter verdict to a consideration of diminished capacity. The instructions were proper. Under the evidence the only possible basis upon which the jury could have found Cantrell guilty of manslaughter was under the theory of a diminished capacity.
Defense evidence presented at the guilt phase of the trial consisted entirely of the testimony of character witnesses and psychiatrists. No evidence was presented at the guilt phase, by either the People or the defense, from which it could have been inferred that Danny Wright provoked the attack which caused his death or that Cantrell acted 'upon a sudden quarrel or heat of passion.' (Voluntary Manslaughter, Pen.Code § 192.) Likewise, no evidence was presented from which it could be inferred the death came about in any manner described in the statutory definition of involuntary manslaughter (Pen.Code § 192).
The manslaughter instructions were not required in this case because the evidence was susceptible of an interpretation that the homicide came within the statutory definition of manslaughter contained in Penal Code section 192. If the homicide was manslaughter, and not murder, it was nonstatutory manslaughter, reduced in degree solely because of the existence of a diminished capacity (See People v. Castillo, 70 Cal.2d 264, 270, 74 Cal.Rptr. 385, 449 P.2d 449). The rule requiring the court to instruct the jury upon every material question upon which there is any evidence whatsoever deserving of consideration (People v. Modesto, 59 Cal.2d 722, 727, 31 Cal.Rptr. 225, 382 P.2d 33), does not imply [98 Cal.Rptr. 20]instructions should be given on issues and questions not raised by the evidence. Here, the court's instructions properly limited the jury's consideration of manslaughter to a consideration of diminished capacity.
RULING AND INSTRUCTIONS RE IRRESISTIBLE IMPULSE
In the guilt phase of the trial, Cantrell's attorney called and examined three of the four psychiatrists who had examined him and produced substantial evidence through them that Cantrell suffered from a diminished capacity at the time of the homicide. He contends his examination of the medical experts was unduly restricted by the objections of the prosecutor and the rulings of the court. The meritorious aspect of his claim centers upon the refusal of the court to permit him to show Cantrell's act of strangling Danny Wright was the result of an irresistible impulse. Throughout this phase of the trial, the prosecutor steadfastly and erroneously maintained the defendant should not be permitted to show he had a diminished capacity to control his acts and that the killing resulted from an irresistible impulse. To a degree, at least he was successful in persuading the court to follow his views. As a result Cantrell's attorney was inhibited in his efforts to bring out the nature and extent of the defendant's diminished capacity.
We quote his arguments to the court on the subject taken from various parts of the reporter's transcript:
'There is sufficient evidence to support a verdict based on the theory that defendant committed the murder during an attempt to perpetrate robbery. The case, however, was also tried on the theory that the killing was a wilful, deliberate, and premeditated murder, and it is necessary to consider the difficult question whether there is likewise substantial evidence supporting this theory. In the absence of such evidence, it was, of course, error to give instructions relating to this theory. [Citation.]
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. (People v. Hoin, 62 Cal. 120, 122-123; People v. Hubert, 119 [98 Cal.Rptr. 21]Cal. 216, 223, 51 P. 329; People v. Nash, 52 Cal.2d 36, 45, 338 P.2d 416.) 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 offspring of an irresistible impulse and that the irresistible impulse was due to mental disease. Under the Wells-Gorshen rule of diminished capacity, as amplified and clarified in the more recent cases of People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911, People v. Castillo, supra, 70 Cal.2d 264, 74 Cal.Rptr. 385, 449 P.2d 449 and People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659, relevant evidence of an accused's diminished mental condition affecting intent, where intent is an element of the crime charged, is admissible at the trial of the guilt issue. As stated in People v. Wells, 33 Cal.2d 330, 351, 202 P.2d 53, and repeated in People v. Nicolaus, 65 Cal.2d 866, 881, 56 Cal.Rptr. 635, 645, 423 P.2d 787, 797:
"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."
The quotation also negates defendant's claim he should have been permitted to introduce evidence of insanity at the guilt phase.
Some indication of the attitude of one or more of the jurors is given in a question presented to the court by the foreman of the jury (which had retired at 10:50 a. m. and returned at 2:30 p. m.) and which was the occasion of the court's re-reading of the criminal homicide instructions the first time. The question was:
We can think of no more relevant evidence bearing on the issues of intent to kill and malice aforethought than competent testimony to the effect the act of killing resulted from an irresistible impulse due to mental disease. Since such testimony bore directly upon the accused's mental condition affecting intent and did not amount to proof of insanity, it follows it was admissible at the guilt phase of the trial.
Despite the trial court's ultimate ruling precluding testimony concerning irresistible impulse, Cantrell's attorney was able to produce evidence much to the same effect. He developed testimony showing Cantrell neither possessed nor acted with the intent to kill, and neither harbored nor acted with malice aforethought at the time of the homicide. He also produced testimony showing Cantrell was 'out of control' at the time of the strangling, and that the act was a compulsive one rather than deliberate.
We need not decide whether the court's ruling precluding testimony concerning irresistible impulse was prejudicial under the circumstances. The error was compounded by the giving of CALJIC Instruction No. 806 'Concerning 'Irresistible Impulse", which was tendered and urged by the prosecutor. The instruction read:
'The law does not recognize the plea of irresistible impulse as a defense to crime. If a person is conscious of, knows and appreciates the nature and wrongfulness of his act, then he does the act at his peril, and the plea of irresistible impulse will not avail him.'
The counterpart of the instruction given, with no change in meaning, is now found in CALJIC (3d Ed.) No. 4.05. It is followed by the caveat:
'This instruction is designed for use only in connection with the plea of 'not guilty by reason of insanity'. It must not be used where there is a claim of diminished capacity.'
The instruction given, while correctly stating the law applicable to the sanity phase of a trial, had no place in the instructions to be given at the trial of the guilt issue, particularly where evidence of a diminished capacity of the very kind described in the instruction had been introduced. The effect of the instruction was to emasculate the defense of diminished capacity as it applied to premeditated murder and render meaningless the expert testimony Cantrell developed bearing on his state of mind at the time of the homicide.
[98 Cal.Rptr. 22]The erroneous instruction was read to the jury three times before it arrived at a verdict in the guilt phase. While the evidence concerning Cantrell's diminished capacity bore mainly on his state of mind at the time of the homicide, and not on his intent at the time he committed the underlying felony, the case was clearly tried on both the theory of premeditated and felony murder. The whole tenor of the prosecutor's cross-examination of the medical experts was to cast doubt upon their conclusion Cantrell suffered from a diminished capacity at the time of the homicide. Moreover, the jury was fully instructed on both premeditated and felony murder, and we are unable to determine which of the prosecution's theories served as the basis for its verdict. As the Attorney General concedes elsewhere in his brief, '* * * it is perfectly possible that the jury convicted appellant of first degree murder not on a theory of felony murder but on a theory of premeditated murder based on the conclusion that appellant desired to escape detection for his previous acts upon Danny Wright and killed to conceal that crime.' If in fact the jury did reject the felony murder theory, and convicted on the basis of premeditated murder, it did so under an instruction which was clearly erroneous and which effectively removed the defense of diminished capacity.
Under the circumstances we cannot say the error was not prejudicial. (See People v. Robinson, 61 Cal.2d 373, 404-406, 38 Cal.Rptr. 890, 392 P.2d 970; People v. Anderson, 63 Cal.2d 351, 359-360, 46 Cal.Rptr. 763, 406 P.2d 43.)
The judgment is reversed.
Assigned by the Chairman of the Judicial Council.
WHELAN, Associate Justice (dissenting).
I dissent and would affirm the judgment.
While the giving of the instruction known as CALJIC 806 was error in the context, it should be held nonprejudicial under Article 6, section 13 of the California Constitution.
It was error because if 'irresistible impulse' were to be mentioned in the instructions at all, because of its mention in the examination of the psychiatrists or in their testimony, the phrase should have been explained in its proper relation to the instructions on diminished capacity properly given in view of the evidence of diminished capacity from the medical experts.
With a rearward vision it is clear that if the testimony as to diminished capacity were to be accepted by the jury, it would be because they accepted also the truth of the evidence as to the assumed facts upon which the opinion evidence was based.
The psychiatrists, Drs. Larson, Duff and Kavanaugh, were unanimous that defendant, when he put his hands around the boy's neck, was acting impulsively and without premeditation, deliberation or malice; all were of opinion his action was triggered by panic when the boy screamed as defendant was engaging in an act in violation of Penal Code section 288. 1
[98 Cal.Rptr. 23]None of the psychiatrists was of opinion defendant was incapable of forming the intent necessary to a violation of Penal Code section 288.
The Wells-Gorshen rule on diminished capacity does not apply where the murder was committed in perpetration of one of the felonies specified in Penal Code section 189, of which a violation of Penal Code section 288 is one. (People v. Risenhoover, 70 Cal.2d 39, 73 Cal.Rptr. 533, 447 P.2d 925.)
Here all of the testimony as to diminished capacity was based upon the assumption that defendant, while engaged in an action in violation of section 288, panicked when the victim screamed and acted compulsively to stop the screaming.
It is true that where two different theories are presented to support a charge of first degree murder, and the jury has been erroneously instructed as to either theory, if it is impossible to say upon which theory a verdict of first degree murder was reached, the verdict must be reversed. (People v. Ford, 65 Cal.2d 41, 55-56, 52 Cal.Rptr. 228, 236, 416 P.2d 132, 140. 2 )
The same is true if there be insufficient evidence in support of one of the theories presented to the jury by the court's instructions. (People v. Risenhoover, supra, 70 Cal.2d 39, 51, 73 Cal.Rptr. 533, 540, 447 P.2d 925, 932; 3 People v. Ford, supra, 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132.)
The jury here was instructed upon both the felony-murder and the deliberate, premeditated [98 Cal.Rptr. 24]and malicious murder theories, so that a reversal would seem compelled except for the fact that the error in instructions complained of, the giving of CALJIC 806, is error only if the jury might have failed to find defendant suffered from diminished capacity and also found he did not perpetrate the crime while engaged in an act violative of Penal Code section 288. 4
The only evidence as to diminished capacity was that given by the experts, unless the testimony as to defendant's confession relating the circumstances of the crime could be said to be such evidence.
The value of an expert's opinion is dependent upon the truth of the assumed facts. (Owings v. Industrial Acc. Comm., 31 Cal.2d 689, 692, 192 P.2d 1; Blankenfeld v. Industrial Acc. Comm., 36 Cal.App.2d 690, 698, 98 P.2d 584; People v. Beach, 263 Cal.App.2d 476, 487, 69 Cal.Rptr. 394.)
The weight to be given to the opinion of an expert depends on the reasons he assigns to support that opinion. (People v. Martin, 87 Cal.App.2d 581, 584, 197 P.2d 379.)
The jury was instructed in accordance with Penal Code section 1127b that the might consider the opinion of an expert and the reasons given for it.
It would seem, almost, that the jury must accept the opinion of the psychiatrists, since it was unimpeached by other expert opinion, or by anything other than cross-examination and was based upon assumptions of facts that coincided with the only available evidence as to the circumstances of the crime.
Concerning psychiatric testimony not attempted to be met by opposing testimony, it was noted in People v. Coogler, 71 Cal.2d 153, 166, 167-168, 77 Cal.Rptr. 790, 454 P.2d 686: 'Although unanimity of expert opinion carries persuasive value (see, e. g., People v. Ford (1966) 65 Cal.2d 41, 55, 52 Cal.Rptr. 228, 416 P.2d 132), a jury, under certain circumstances, can properly reject such opinions. As we recently explained in People v. Bassett (1968) 69 Cal.2d 122, 141, 70 Cal.Rptr. 193, 205, 443 P.2d 777, 780, "'The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion * * *."' (Quoting Carter v. United States (D.C.Cir. 1957) 102 U.S. App.D.C. 227, 252 F.2d 608, 617.)
It is a proposition so little probable that it must be rejected as unreasonable that the jury would accept the opinion of the psychiatrists that defendant suffered from diminished capacity and not accept the reason given for the diminished capacity and the evidence supporting that reason, which was the only evidence as to the circumstances of the crime contained in defendant's own statements.
Likewise so little probable as to be unreasonable is the proposition that the jury should accept the truth of defendant's statement he had killed the boy, but reject his account of the manner in which it came about, which was degrading to defendant and indicated on the face of it he had committed [98 Cal.Rptr. 25]murder of the first degree, but which furnished also, a comprehensible explanation of his action.
Since the finding of diminished capacity could only have been made upon the basis of the opinion evidence, which in turn was valid only if defendant when he panicked was engaged in an act violative of Penal Code section 288 as assumed by the psychiatrists as a foundation for their opinions, a foundation supported by the uncontradicted evidence, the giving of the instruction could not have resulted in a miscarriage of justice.
'Every person who wilfully and lewdly commits any lewd or lascivious acts upon or with the body, or any part of member thereof, of a child under the age of fourteen years of age, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or such child is guilty of a violation of Section 288 of the Penal Code.
'It is not necessary in perpetrating or attempting to perpetrate a lewd and lascivious act on the body of a child that the bare skin of the minor be touched. The touching, fondling, rubbing or feeling of the body, members or private parts of the minor under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lusts, passions and sexual desires of either the minor or the accused, constitutes the offense, even though such touching, fondling, rubbing or feeling was through the clothing of the minor.
'Although an essential element of perpetrating or attempting to perpetrate a lewd and lascivious act on the body of a child is an intent to arouse, appeal to, or gratify the lusts, passions or sexual desires of either the person committing the acts or the child, the law does not require as an essential of the crime that the lusts, passions, or sexual desires of either of such persons be actually aroused, appealed to, or gratified.
'Want of consent on the part of the child is not an element of perpetrating or attempting to perpetrate a lewd and lascivious act on the body of a child. Whether or not the child consented to the conduct, if it occurred, is immaterial, except only that evidence of consent or lack of it tends to show a circumstance in the whole set of circumstances to be considered by you in determining whether or not such act was committed by the defendant.
'A good faith belief on the part of a person alleged to have committed a violation of Section 288 of the Penal Code that the victim of the offense was over the age of fourteen years does not constitute a defense of the crime.'
[The Prosecutor]: 'Your Honor, it is my understanding that the first witness to be summoned by the defense this afternoon is Dr. Alfred E. Larson, a medical doctor who specializes in psychiatry * * *. I believe that the only thing that he can testify to with respect to diminished capacity, which is, as I understand it, the purpose for which he is being called, is that the defendant had a diminished capacity to control himself and I respectfully submit to the Court that that does not fall within the--within diminished capacity as it is legally defined in the cases. That that is more akin to and I would submit synonymous with irresistible impulse. And I submit to the Court that any questions and evidence offered with respect to irresistible impulse is irrelevant and immaterial and is highly prejudicial to the People's case.'
[The Prosecutor]: 'I respectfully submit to the Court that despite the fact that CALJIC 806 happens to be organized in the book under the sanity or insanity portion of the book, that it is the law in this state, not changed by Conley or any of the cases decided thereunder, not changed by Gorshen or any other cases decided thereunder, that irresistible impulse, which is just exactly what he is asking by the question, that the Court has just sustained an objection to, is not a defense to crime, nor a diminishing factor to criminal liability in the State of California.'
[The Prosecutor]: 'What I am getting at is, what I am pointing toward is this, that it is my contention that all of these questions that go to this business of irresistible impulse, and that is exactly what you are talking about when you talk about control, are irrelevant and immaterial, because of the fact that 806 uses the word 'plea', it uses it in the archaic legal sense, it does not use it in the statutory definition of a plea as set out in the Penal Code.'
[The Court]: 'That is obvious from reading it.'
[The Prosecutor]: 'That is obvious from reading it and it is the law in this state that the plea of irresistible impulse is not a defense and that has not been changed by Conley or Gorshen.'
[The Prosecutor]: 'For the record, anything in diminution of the People's case as alleged in the People's case as pleaded is a matter of defense and to say that permitting an inquiry into irresistible impulse only and solely because it is not permitted to go into the issue of a complete defense, but to a partial defense is a contradiction in terms and is internally incomsistent. There is nothing even in the latest cases reported in 1 Cal.3rd that--which is the case of People v. Moser [sic], which suggests for a minute that irresistible impulse is one of the dynamics that the Courts have determined to diminish the magnitude of the crime and as a matter of fact there are a number of cases that specifically reject the theory of Durham. Conley itself rejects the theory of Durham.'
Dr. Larson:
'In this specific case, in the killing of this boy, I have a feeling that he--his malice wasn't towards the victim, but what had happened in the car, the homosexual act, with a veritible child, a member of his own sex.
'But the compulsion, the situation, something in the conglomeration of factors caused it to occur, and he was very much panicked, frightened and with relatively little control at that time.'
Dr. Duff:
'Recollection of some homosexual activity, specifically Mr. Cantrell's manual manipulation of the boy's genitalia. The boy becoming upset, at least saying he wanted to leave, go, becoming more upset, yelling.
'I think he was so panicked, that you know, he wanted the noise to stop. It was almost like there was a divorcing of what the act is, of taking someone's life, as opposed to the noise stopping. I think he was so panicked, he was not able to take the time to--he had the ability, but the panic interfered.'
Dr. Kavanaugh:
'He said, 'We stopped, and I started what I started,' and I asked what was that, and he said, 'To play with him. He started yelling and screaming, and it bothered me.' * * *
'Q At the time he told you that he was playing with the boy, did you inquire into the particulars of that at all?
'A No, I did not. I assumed it was sex play.
'Q You understood it to mean sex play?
'A Yes I did. * * *
'Well, I think what happened in this chain of events was at the point at which the boy started to scream, it set off an internal chain of events, which then affected him in such a way he no longer knew in a rational sense what he was doing. He was really responding to the screams.'
'Nor can we uphold the conviction of first degree murder on the basis of the felony-murder rule. (Citations.) Robbery was the only felony committed by defendant which is enumerated in section 189, and which could therefore sustain a verdict of first degree murder under the felony-murder rule if found by the jury to still have been in the process of being perpetrated at the time of the homicide. We do not know from their verdict whether the jury's finding of first degree murder was posited on this theory or upon premeditation and intent.
'The question whether the robbery was still in process at the time of the shooting should not have been reserved to the jury. Rather the trial court should have determined, as a matter of law, that the robbery terminated prior to the homicide.'
"It has long been settled under the Wells-Gorshen rule of diminished capacity that in cases other than those where a felony-murder is charged, a defendant cannot be convicted of murder of the first degree if, at the time of the alleged offense, he was operating under a mental disability not amounting to legal insanity that prevented him from acting with malice aforethought or with premeditation and deliberation.' (People v. Ford, 65 Cal.2d 41, 54-55, 52 Cal.Rptr. 228, 416 P.2d 132, 140; see also People v. Goedecke, 65 Cal.2d 850, 855-858, 56 Cal.Rptr. 625, 423 P.2d 777; People v. Nicolaus, 65 Cal.2d 866, 876-878, 56 Cal.Rptr. 635, 423 P.2d 787.)'
'Your honor, if the defendant had the intent to commit a lewd and lascivious act upon the body of a child and did so, and at the time he performed this act he had full capacity of himself and consequently a death occurred following that act, does this constitute first degree murder, regardless of any diminished capacity after the lewd act and during the strangulation?'
'Reviewing the evidence in the instant case we conclude that a jury could properly reject the expert's conclusions because of doubt as to the material upon which these conclusions were based. * * *
'* * *
'* * * [A] jury in considering defendant's capacity to premeditate and deliberate could properly accept defendant's evidence or it could equally properly reject the lone psychiatrist's opinion based based upon defendant's self-serving descriptions of his alleged past blackouts and lack of memory of the acts in question.'