Opinion
COMPTON, J.
Defendant was convicted in a trial by jury of first degree murder (Pen. Code, § 187). He was sentenced to life imprisonment. He [919]*919purports to appeal from the “verdict, judgment and sentence” and from the order denying a motion for new trial.
Only the judgment is appealable; however, all defendant’s claims of error are reviewable on appeal from the judgment.
The facts may be summarized as follows: On January 4, 1971, the defendant fired a single shot into the head of his 12-year-old son causing his almost immediate death. He called the police, informed them of the killing and was taken into custody at the scene. At the initial meeting with the arresting officers the defendant appeared to be calm and rational and in possession of his faculties. His constitutional rights were read to him from a Miranda advisement card, and he again stated that he had killed his son. He did not appear, at this time, to be confused, irrational, or in any type of trance or pain.
The deceased son was described by his mother as an autistic child who was unable to speak, had no empathy, failed to relate to sadness, was self-destructive and hyperactive, with a sexual orientation which was causing his parents concern because of fear that he might harm someone:
A psychiatrist described infantile autism as one of the most severe, if not the most severe form of childhood mental disorder. It is characterized by failure to talk, severe motor disturbances, compulsive repetitious behavior, inability to learn, and problems with interpersonal relationships. The autistic child frequently becomes the focal point of his family because of the needs and demands he generates. Many times the family structure is severely disturbed by the intense and constant preoccupation with the problems of the autistic child.
Defendant had suffered from a severe heart condition since approximately 1958 and had suffered an attack as recently as the day before the killing of the son. The years of hopeless search for assistance for the autistic son, coupled with physical deterioration of the defendant as a consequence of his heart disease, was proffered by defense to prove that defendant’s mental state at the time of the offense was such that he could not by reason of diminished mental capacity form the degree of intent requisite for first degree murder.
The defense relied upon the testimony of a single psychiatrist in advancing the proposition that defendant had a diminished capacity to deliberate and premeditate.
The jury was fully and properly instructed that a defendant cannot be [920]*920convicted 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 which would prevent him from acting with malice aforethought or with premeditation and deliberation. (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]; People v. Gorshen, 51 Cal.2d 716 [336 P.2d 492]; People v. Baker, 42 Cal.2d 550 [268 P.2d 705]; People v. Ford, 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132]; People v. Wells, 33 Cal.2d 330 [202 P.2d 53].)
The determination of the degree of the crime is a matter for the jury (People v. Simpson, 43 Cal.2d 553 [275 P.2d 31]), and the opinion of an expert is not binding on the trier of fact. (People v. Gentry, 257 Cal. App.2d 607 [65 Cal.Rptr. 235]; People v. Williams, 151 Cal.App.2d 173 [311 P.2d 117].)
There was substantial evidence to support the judgment of first degree murder found by the jury. (People v. Tubby, 34 Cal.2d 72 [207 P.2d 51]; People v. Ford, supra, 65 Cal.2d 41; People v. Bassett, 69 Cal.2d 122, at p. 138 [70 Cal.Rptr. 193, 443 P.2d 777].)
All evidence which bears on the subjective state of mind of an individual, except for his own description of his thought processes, is necessarily indirect evidence. Here that indirect evidence took the form of the opinion of the psychiatrist on the one hand and the objective conduct of the defendant on the other. The defendant did not testisfy.
The inference of the defendant’s lack of premeditation and deliberation which could be drawn from the opinion evidence was obviously not as persuasive to the trier of fact as the opposite inference of the existence of those thought processes which could readily be drawn from the defendant’s motive, the fact that shortly after committing the crime he was rational, cooperative, coherent and well oriented as to time, place and persons present. (See People v. Wolff, 61 Cal.2d 795 [40 Cal.Rptr. 271, 394 P.2d 959].)
The psychiatrist’s testimony was to the effect that the defendant’s “judgment” was impaired. It could be said that anyone who resorts to criminal homicide as a solution to his problems fails to exercise “good judgment,” however, the social policy underlying the law of homicide does not recognize that concept as mitigating the gravity of the crime. Nor does that social policy yet mitigate the gravity of a deliberate intentional killing when the motive appears to be other than one that is truly base in nature. Thus euthanasia, at this point in history, is not countenanced in California.
[921]*921Here there was a total absence of any evidence that defendant was delusional or out of contact with reality. (Cf. People v. Wolff, supra.)
Defendant next urges reversible error in the fact that the prosecution, after having declared its intention not to seek the death penalty challenged six jurors for cause on the basis of their stated opposition to' the death penalty. The defendant maintains that this procedure resulted in an improper weighting of the jury in favor of the prosecution.
In People v. Chand, 116 Cal.App.2d 242 [253 P.2d 499], the court was faced with an identical situation. The court there stated at pages 249-250: “So long as the charge includes murder in the first degree it is for the jury and not for the prosecutor to say whether a verdict of murder in that degree shall be returned and if so whether or not the death penalty shall be decreed. It was therefore proper for the court, as the law requires, to see that a jury was selected competent and qualified to pass upon the charge contained in the information and upon the punishment which the law permits therefor.”
We note too that here the prosecution had not utilized all its peremptory challenges.
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Opinion
COMPTON, J.
Defendant was convicted in a trial by jury of first degree murder (Pen. Code, § 187). He was sentenced to life imprisonment. He [919]*919purports to appeal from the “verdict, judgment and sentence” and from the order denying a motion for new trial.
Only the judgment is appealable; however, all defendant’s claims of error are reviewable on appeal from the judgment.
The facts may be summarized as follows: On January 4, 1971, the defendant fired a single shot into the head of his 12-year-old son causing his almost immediate death. He called the police, informed them of the killing and was taken into custody at the scene. At the initial meeting with the arresting officers the defendant appeared to be calm and rational and in possession of his faculties. His constitutional rights were read to him from a Miranda advisement card, and he again stated that he had killed his son. He did not appear, at this time, to be confused, irrational, or in any type of trance or pain.
The deceased son was described by his mother as an autistic child who was unable to speak, had no empathy, failed to relate to sadness, was self-destructive and hyperactive, with a sexual orientation which was causing his parents concern because of fear that he might harm someone:
A psychiatrist described infantile autism as one of the most severe, if not the most severe form of childhood mental disorder. It is characterized by failure to talk, severe motor disturbances, compulsive repetitious behavior, inability to learn, and problems with interpersonal relationships. The autistic child frequently becomes the focal point of his family because of the needs and demands he generates. Many times the family structure is severely disturbed by the intense and constant preoccupation with the problems of the autistic child.
Defendant had suffered from a severe heart condition since approximately 1958 and had suffered an attack as recently as the day before the killing of the son. The years of hopeless search for assistance for the autistic son, coupled with physical deterioration of the defendant as a consequence of his heart disease, was proffered by defense to prove that defendant’s mental state at the time of the offense was such that he could not by reason of diminished mental capacity form the degree of intent requisite for first degree murder.
The defense relied upon the testimony of a single psychiatrist in advancing the proposition that defendant had a diminished capacity to deliberate and premeditate.
The jury was fully and properly instructed that a defendant cannot be [920]*920convicted 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 which would prevent him from acting with malice aforethought or with premeditation and deliberation. (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]; People v. Gorshen, 51 Cal.2d 716 [336 P.2d 492]; People v. Baker, 42 Cal.2d 550 [268 P.2d 705]; People v. Ford, 65 Cal.2d 41 [52 Cal.Rptr. 228, 416 P.2d 132]; People v. Wells, 33 Cal.2d 330 [202 P.2d 53].)
The determination of the degree of the crime is a matter for the jury (People v. Simpson, 43 Cal.2d 553 [275 P.2d 31]), and the opinion of an expert is not binding on the trier of fact. (People v. Gentry, 257 Cal. App.2d 607 [65 Cal.Rptr. 235]; People v. Williams, 151 Cal.App.2d 173 [311 P.2d 117].)
There was substantial evidence to support the judgment of first degree murder found by the jury. (People v. Tubby, 34 Cal.2d 72 [207 P.2d 51]; People v. Ford, supra, 65 Cal.2d 41; People v. Bassett, 69 Cal.2d 122, at p. 138 [70 Cal.Rptr. 193, 443 P.2d 777].)
All evidence which bears on the subjective state of mind of an individual, except for his own description of his thought processes, is necessarily indirect evidence. Here that indirect evidence took the form of the opinion of the psychiatrist on the one hand and the objective conduct of the defendant on the other. The defendant did not testisfy.
The inference of the defendant’s lack of premeditation and deliberation which could be drawn from the opinion evidence was obviously not as persuasive to the trier of fact as the opposite inference of the existence of those thought processes which could readily be drawn from the defendant’s motive, the fact that shortly after committing the crime he was rational, cooperative, coherent and well oriented as to time, place and persons present. (See People v. Wolff, 61 Cal.2d 795 [40 Cal.Rptr. 271, 394 P.2d 959].)
The psychiatrist’s testimony was to the effect that the defendant’s “judgment” was impaired. It could be said that anyone who resorts to criminal homicide as a solution to his problems fails to exercise “good judgment,” however, the social policy underlying the law of homicide does not recognize that concept as mitigating the gravity of the crime. Nor does that social policy yet mitigate the gravity of a deliberate intentional killing when the motive appears to be other than one that is truly base in nature. Thus euthanasia, at this point in history, is not countenanced in California.
[921]*921Here there was a total absence of any evidence that defendant was delusional or out of contact with reality. (Cf. People v. Wolff, supra.)
Defendant next urges reversible error in the fact that the prosecution, after having declared its intention not to seek the death penalty challenged six jurors for cause on the basis of their stated opposition to' the death penalty. The defendant maintains that this procedure resulted in an improper weighting of the jury in favor of the prosecution.
In People v. Chand, 116 Cal.App.2d 242 [253 P.2d 499], the court was faced with an identical situation. The court there stated at pages 249-250: “So long as the charge includes murder in the first degree it is for the jury and not for the prosecutor to say whether a verdict of murder in that degree shall be returned and if so whether or not the death penalty shall be decreed. It was therefore proper for the court, as the law requires, to see that a jury was selected competent and qualified to pass upon the charge contained in the information and upon the punishment which the law permits therefor.”
We note too that here the prosecution had not utilized all its peremptory challenges. Thus the prosecution would have been able to remove the challenged jurors in any event. There was no error in the procedure that was followed.
The defense next contends that the reading of the jury instruction approved in People v. Ortega, 2 Cal.App.3d 884 [83 Cal.Rptr. 260], and People v. Baumgartner, 166 Cal.App.2d 103 [332 P.2d 366], was prejudicial error since it contained an impermissible element of coercion which would affect the free choice of a holdout juror.1 This issue was [922]*922extensively treated in People v. Ortega, supra, and in People v. Walker, 112 Cal.App.2d 462 [246 P.2d 1009]. From these cases and others cited by them the rule appears clear that the cited instruction is a proper vehicle for providing the jury with a deliberative approach to settling, differences in opinion among their members.
When, as here, the instruction is given without revelation as to' how the jury stood on the question of guilt, and when, under the circumstances of its use, is merely an adjuration to careful and dispassionate discussion and consideration of all issues, there is no element of coercion present. (People v. Walker, supra, 112 Cal.App.2d 462 at p. 472; People v. Ortega, supra, 2 Cal.App.3d 884; People v. Lammers, 108 Cal.App.2d 279 [338 P.2d 667].)
Defense further maintains that the Ortega instruction is in conflict with CALJIC Instruction No. 17.401 given in this case with specific reference to the following portion: “. . . However, you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.”
Defense urges that the Ortega instruction calls upon a holdout juror to measure his quantum of reasonable doubt against that expressed by the majority of his fellows in order to arrive at a qualitative assessment of the validity of his own doubt.
A fair reading of the Ortega instruction reveals that it is only a suggested approach to a thought process. In no way can it be said to call for a recalcitrant juror to substitute other’s reasoning for that of his own merely because he finds his analysis or decision at odds with the other jurors. To simply call upon a juror to consider all varying opinions oh a subject in arriving at a decision one way or another cannot be said to be coercion.
The judgment is affirmed.
Herndon, J., concurred.