Opinion
As Modified Dec. 3, 1970.
Opinions on pages 1138 to 1157 omitted
HEARINGS GRANTED
Hearing Granted Jan. 21, 1971.
Charles E. Stott, Jr., San Francisco, for appellants (under appointment of the Court of Appeal).
Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Karl S. Mayer, Deputy Attys. Gen., San Franciso, for respondent.
[91 Cal.Rptr. 245] TAYLOR, Associate Justice.
Defendants appeal from judgments entered on jury verdicts finding them guilty of assault by a prisoner serving less than a life sentence (Pen.Code, § 4501) following retrial after reversal of prior judgments in People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106. On appeal, Meyers contends that as a life prisoner, he cannot be convicted of a violation of Penal Code section 4501; Noah and Meyers both contend that the trial court erred in refusing to give their proffered instructions on the necessarily included offenses of assault, necessarily included offenses of assault, necessarily included offenses of assault, battery and assault with a deadly weapon, and in giving incomplete instructions on the defense of diminished capacity; Noah contends that the trial court committed prejudicial error by refusing to transfer him to the county jail so that he could have access to legal materials to adequately represent himself.
As there are no contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice. On April 30, 1967, Noah and Meyers were inmates confined in the same cell tier of the maximum security 'O' Wing at the Soledad Correctional Facility. Shortly after 10:00 a. m., Noah, Meyers, Chacon and Smith were released from their cells for exercise. The two correctional officers who were on duty, Nance and Fegan, noticed that the four inmates formed a group and started a fight, during which Noah, Meyers and Chacon stabbed Smith. The officers shouted to the inmates to stop the fight and return to their cells, but they did not do so and continued stabbing Smith who was forced to the floor. At one point, Noah and Chacon dragged Smith by his legs down the tier while Meyers walked behind near Smith's head.
After tear gas was used, the fight was broken up and Noah, Meyers and Chacon withdrew into Noah's cell. When the officers arrived, the three inmates were laughing and Noah had a stab wound on his arm. During the altercation, the officers had seen knives in the hands of Noah, Meyers and Chacon but not Smith. After the altercation, as they moved towards Noah's cell, Noah, Meyers and Chacon threw down their weapons, which were subsequently retrieved by the officers and admitted into evidence.
Smith was treated on an emergency basis at the hospital for some 40 to 50 stab wounds on his body. Smith testified that he had known both Meyers and Noah prior to the April 30 incident and had an earlier altercation with Meyers at another correctional institution. For this reason, Smith had a knife available to him at Soledad to protect himself from Meyers' possible revenge. Smith started the fight by stabbing at Noah after Noah alleged that Smith was cheating at a gambling game, and stabbed at Meyers when the latter came to Noah's aid. Smith acknowledged he had made homosexual advances towards Meyers.
Accordingly, the theory of the defense was that Noah and Meyers' participation in the fight was self-defense and that matters subsequently got out of hand as a result of their uncontrollable rage. Meyers testified that when Smith made a grab for his private parts, Noah came to Meyers' defense and was stabbed by Smith. Noah then backed off and Smith stabbed at Meyers, causing Meyers to stab back. Meyers stopped stabbing Smith when he felt he was secure from further attack. Smith and Meyers' version of the incident was corroborated by Kinsey, and inmate in a nearby cell. Noah did not take the stand.
The three psychiatrists who testified for the defense stated Noah had an abnormal electroencephalogram, which indicated a brain malfunction affecting his ability to exercise rational judgment in high stress situations. Accordingly, Noah's ability to distinguish right from wrong during an affray was improbable. As to Meyers, the defense experts stated that he was legally sane but emotionally disturbed with his ability to make final discriminatory judgments and his capacity to harbor malice aforethought impaired. Meyers would tend to overreact in anger to a threat of violence [91 Cal.Rptr. 246] in an immediate and impulsive manner without any formulated intent.
The prosecution's psychiatrists testified that there were more elements of normalcy in Noah's electroencephalogram than of abnormalcy, and that Noah had an assaultive personality but not a mental disorder. He was impulsive and erratic but with his judgment intact, although his standard of conduct was different from others. They also agreed that Noah knew what he was doing, that it was wrong and unlawful, and was aware of the consequences of his acts. As to Meyers, the prosecution experts indicated that he was able to form an intent and recognize his duties to society on the date of the assault on Smith. In a rage, Meyers' ability to attempt a criminal act would be enhanced and he had the capacity to harbor malice aforethought, was conscious of what he was doing and able to plan it, as well as to form malice and specific intent to assault during a rage.
Meyers first argues that he could not be properly convicted of a violation of Penal Code section 4501, as that offense is not a lesser offense included within the charge of the information. The information charged that Meyers, while serving a life sentence in a state prison, did, with malice aforethought, commit an assault on Smith, an inmate, by means of force likely to produce great bodily injury, an offense within the statutory definition of Penal Code section 4500, set forth in the footnote below.
'Every person undergoing a life sentence in a state prison of this state, who, with malice aforethought, commits an assault upon the person of another, other than another inmate, with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death; however, in cases in which the person subjected to such assault does not die within a year and a day after such assault as a proximate result thereof, or the person so assaulted is another inmate, the punishment shall be death or imprisonment in the state prison for life without possibility of parole for nine years, at the discretion of the court or jury trying the same, and the matter of punishment shall be determined as provided in Section 190.1 of this code. For the purpose of computing the days elapsed between the commission of the assault and the death of the person assaulted, the whole of the day on which the assault was committed shall be counted as the first day.
Penal Code section 4501 provides: 'Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison not less than three years.'
Meyers argues that since section 4501 purports to exclude every person undergoing a life sentence and since he was serving a life sentence, he cannot be found guilty under 4501. The record indicates that the trial court instructed the jury that section 4501 was a lesser included offense under section 4500. In People v. St. Martin, 1 Cal.3d 524, at page 536, 83 Cal.Rptr. 166, 463 P.2d 390, our Supreme Court, for the first time, clearly held that in view of the present statutory scheme, the general rule of requiring instructions on necessarily included offenses applied to charges for a violation of section 4500. The court said at page 536, 83 Cal.Rptr. at page 172, 463 P.2d at page 396: 'First, where one offense cannot be committed without committing another offense, the latter offense is a necessarily included offense. (People v. Greer, 30 Cal.2d 589, 596, 184 P.2d 512.) Second, a lesser offense is necessarily included if it is within the offense specifically charged in the accusatory pleading, as distinguished from the statutory definition of the crime. (People v. Marshall, 48 Cal.2d 394, 397, 309 P.2d 456; see People v. Ireland, 70 Cal.2d 522, [91 Cal.Rptr. 247] fn. 14, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Thomas, 58 Cal.2d 121, 128, 23 Cal.Rptr. 161, 373 P.2d 97.)' Under the second category, an assault on a fellow inmate by a life prisoner without malice is clearly an included offense under section 4500, the offense charged in the accusatory pleading.
This interpretation regarding sections 4500 and 4501 is reasonable. The elements of the offense set forth by section 4500 are: 1) by an assault with a deadly weapon; 2) by a state prisoner; 3) serving a life sentence; 4) with malice aforethought. The elements of the offense set forth in section 4501 are: 1) assault with a deadly weapon; 2) by a state prisoner. Although section 4501 contains the clause 'except one undergoing a life sentence,' that language neither sets forth an element of the offense nor a matter of affirmative defense. Rather, the purpose of the clause is to distinguish the offense from the one set forth in section 4500 and for which a greater penalty is provided. The penalty for violation of Penal Code section 4500 is death or a consecutive life imprisonment without possibility of parole for nine years. The penalty for a violation of section 4501 is three years to life. The penalty for an assault with a deadly weapon by a person who is not a state prisoner at the time of the offense is much less, namely, imprisonment in the state prison not exceeding 10 years or in a county jail not exceeding one year or by a fine not exceeding $5,000 or both fine and imprisonment (Pen.Code, § 245).
Although there is some authority for construing section 4501 to exclude all life prisoners (In re Smith, 64 Cal.2d 437, 440, fn. 1, 50 Cal.Rptr. 460, 412 P.2d 804), such an interpretation would be anomalous and unreasonable. The real problem is created by the use of the term 'with malice aforethought' in section 4500 and not in section 4501. If a life prisoner is excluded from section 4501 but committed an assault on another inmate or civilian personnel with a deadly weapon, but without the requisite malice aforethought, the greatest possible penalty would be the 10 years provided by Penal Code section 245. Thus, a life prisoner committing an assault with a deadly weapon without malice could only be punished by a maximum sentence of 10 years, pursuant to section 245, while a prisoner serving a sentence less than life, who commits the identical offense, could be given a sentence from three years to life, pursuant to section 4501. All sections of the Penal Code should be interpreted in harmony with one another when possible (People v. McKerney, 257 Cal.App.2d 64, 64 Cal.Rptr. 614). When interpreting legislation, a court should not ascribe an absurd or unjust result nor presume the Legislature used inconsistent provisions on the same subject (Moore v. City Council, 244 Cal.App.2d 892, 53 Cal.Rptr. 603).
The interpretation suggested by Meyers would also defeat the apparent purpose of sections 4500 and 4501. It is well settled that the purpose of these provisions is to promote prison safety by discouraging assaults by prisoners on each other or the civilian personnel in the prison (People v. Sanchez, 65 Cal.2d 814, 829, 56 Cal.Rptr. 648, 423 P.2d 800). Thus, on the theory that persons already confined in a prison have less to lose by committing another offense than persons on the outside, prisoners are punished more severely than persons who are not prisoners and are guilty of the same conduct. Similarly, sections 4500 and 4501 distinguish on the basis of the severity of the sentence that the perpetrator is serving at the time of the assault by punishing life prisoners more severely than those serving a lesser sentence on the theory that a person already under a life sentence may feel he has much less to lose by committing another offense than a prisoner serving a lesser sentence. Accordingly, we conclude that the trial court correctly instructed that section 4501 can be a lesser included offense under section 4500. This interpretation of the language of the statute in the instant case greatly benefited Meyers, as there was also sufficient evidence to establish a violation of section 4500.
[91 Cal.Rptr. 248] Meyers and Noah contend that the trial court erred in refusing their proffered instructions concerning assault, battery, and assault with a deadly weapon, as necessarily included offenses within sections 4500 and 4501 of the Penal Code. Although, as indicated above, People v. St. Martin, supra, has now clearly held that there are lesser included offenses within a charge of violation of Penal Ode section 4500, it is nevertheless true that not all conceivable lesser offenses need be charged to the jury. The applicable rules are set forth in People v. Garcia, 250 Cal.App.2d 15, 17, 58 Cal.Rptr. 186, 188: '* * * there are three general situations which affect the court's duty to give instructions upon a lesser included offense. First, where there is evidence which could absolve the defendant from guilt of the greater offense but would support a finding of guilt of the lesser offense, the instruction is mandatory. Second, where the evidence would not support a finding of guilt of the lesser offense--for example, where the defendant denies complicity or where the elements of the offenses differ--the instruction is not only unnecessary but is erroneous because not pertinent.' There is a third or intermediate situation where proof of the greater offense necessarily includes every element of the lesser offense; in which situation, the instruction is proper but not mandatory and, even if requested, it is not error to refuse if all of the evidence shows guilt above the lesser offense.
The instant case clearly falls within this third category (People v. Osuna, 70 Cal.2d 759, 766, 76 Cal.Rptr. 462, 452 P.2d 678). There is no evidence in the instant case which would absolve appellants of having committed an assault with a deadly weapon while being persons confined in a state prison. The evidence is uncontradicted that both appellants were persons confined in a state prison at the time of commission of the offenses, and that each actually stabbed inmate Smith. The evidence shows appellants were guilty of at least violation of section 4501 or were not guilty at all. Accordingly, the trial court properly declined to instruct the jury on the lesser included offenses proposed by appellants.
We next turn to the instructions given by the trial court. After instructing the jury of the elements of Penal Code section 4500 and the lesser included offense of Penal Code section 4501, the court indicated that the offense charged in the information (§ 4500) required the specific intent to commit violent injury on the person of another and then gave the instructions set forth in the footnote below on diminished capacity. Appellants contend that the trial court erred in failing to instruct that the principle of diminished capacity was also applicable to general intent crimes and thus to Penal Code section 4501.
'You have heard talk about a rule of diminished capacity or diminished mental capacity. And this is it. When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime you must take all evidence into consideration and determine therefrom if at the time when the crime was allegedly committed the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.
[91 Cal.Rptr. 249]Since People v. Wells, 33 Cal.2d 330, 202 P.2d 53, it has been the law of this state that evidence of diminished mental capacity, whether caused by intoxication, trauma or disease, can be used to show that a defendant did not have a specific mental state essential to an offense. Although first introduced and usually involved in homicide cases (People v. Castillo, 70 Cal.2d 264, 74 Cal.Rptr. 385, 449 P.2d 449; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677), the rule is of general application: mental illness not amounting to legal insanity may negative the existence of a particular mental state that is an element of the crime charged (Witkin, Cal. Crimes, 1969 Supp. § 147A, pp. 55-56).
One of the few nonhomicide cases is People v. Gentry, 257 Cal.App.2d 607, 65 Cal.Rptr. 235, wherein the doctrine was held applicable to the felonious issuing of checks without sufficient funds (Pen.Code, § 476a) which requires a specific intent to defraud.
However, People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, while holding that assault with a deadly weapon is not a specific intent crime, also implied that an instruction on diminished capacity should not be given in reference to a general intent crime. The matter of diminished responsibility must be raised in the guilt phase of a trial (People v. Lookadoo, 66 Cal.2d 307, 57 Cal.Rptr. 608, 425 P.2d 208). To apply the rule of diminished capacity to general criminal intent would be tantamount to inviting a verdict of not guilty by reason of insanity during the guilt phase. This would carry the doctrine far beyond its usual purpose and would frustrate the bifurcated proceedings established in this state to litigate the issue of insanity (Pen.Code, § 1026; cf. People v. Steele, 237 Cal.App.2d 182, 46 Cal.Rptr. 704). The purpose of the rule of diminished capacity is to ameliorate the law governing criminal responsibility prescribed by M'Naughton's rule by permitting a defendand to establish that, under the circumstances, he did not entertain the specific mental state required by the crime charged (People v. Henderson, 60 Cal.2d 482, 483, 490, 35 Cal.Rptr. 77, 386 P.2d 677). The circumstances which would show that appellants here were lacking a capacity to harbor general criminal intent would establish that they were unconscious at the time of the assault or, if conscious, were nevertheless unaware of the nature and quality of the act. Unconsciousness, not induced by voluntary intoxication, is a complete defense (Pen.Code, § 26, subd. 5; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911). On the other hand, if appellants were not aware of the nature and quality of their acts, they would be insane under the M'Naughton test and, therefore, not criminally responsible. The latter matter would, of course, be settled in the insanity phase of the trial. Accordingly, we hold there was no prejudicial error in the court's failure to instruct on the doctrine of diminished capacity in relation to Penal Code section 4501.
In Hood, the court reversed a judgment of conviction for assault with a deadly weapon on a peace officer and assault with intent to murder because an instruction to consider the evidence of intoxication in determining whether the defendant had the specific intent to commit murder was followed by an instruction negating the effect of self-imposed intoxication. The court pointed out that the latter instruction should be given only where a general intent crime is involved. In the instant case, the court limited the diminished capacity instruction to the crime charged, namely, Penal Code section 4501. Thus, the confusion created by the instructions in Hood was obviated here.
Noah contends that the trial court deprived him of his constitutional right to represent himself by denying his motion to remove him from the Soledad Facility to the Monterey County Jail pending trial. The record indicates that the motion was made on January 6, 1969, well in advance of the retrial which commenced on April 2, 1969. The apparent basis of the motion was that Noah wanted to represent himself and in order to do so wanted access [91 Cal.Rptr. 250] to the legal materials available at the county jail but not at Soledad. The trial court denied the motion for security reasons.
The uncertified order setting forth this reason is attached to the opening brief and not disputed by the People.
The record indicates that earlier that day, just prior to the time of the motion for the transfer, Noah was represented by counsel, Mr. Lopez, who asked to be relieved, and was. The matter was then set for further hearing the same afternoon. The motion was apparently made in pro. per. at the hearing that afternoon and denied. Thereafter, at Noah's request, counsel was again appointed to represent him and did so at the pretrial proceedings and at the trial. The motion was not renewed. Under these circumstances, the denial of Noah's motion was not prejudicial.
Affimed.
SHOEMAKER, P. J., and AGEE, J., concur.
'Any person who, under this section, is punished by imprisonment rather than death, shall be required to serve his sentence consecutively to any sentence he is presently serving.'
'I've read before to you the general rule in regard to reasonable doubt and burden of proof. The burden of proof, of course, is upon the State, not upon the defendant. And with regard to all--to all items of the case, if there be a reasonable doubt as to the guilt or innocence of the defendant, as I say, the burden is upon the prosecution and insofar as it applies to this phase of the case or any other phase of the case such doubt shall be resolved in favor of the defendants.
'If you have a reasonable doubt as to whether or not the defendant Meyers had the mental capacity to form the specific intent to commit a malicious assault by life prisoner or if you have a reasonable doubt as to whether or not Meyers had the mental capacity to harbor malice aforethought, then you may not find him guilty of malicious assault by a life prisoner.'