People v. Modesto

382 P.2d 33, 59 Cal. 2d 722, 31 Cal. Rptr. 225, 1963 Cal. LEXIS 206

• Court: California Supreme Court
• Decided: June 4, 1963
• Docket: Crim 7166
• Status: Published

Opinions

TRAYNOR, J.

Defendant was convicted of two counts of first degree murder. The jury fixed the penalty at death on each count. Defendant admitted two prior felony convictions. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

Shortly after midnight on October 29, 1961, defendant entered the home of Mr. and Mrs. Ardel Mack carrying a hand sledge hammer with a 4-pound head. The Macks’ daughters, Connie, age 12, and Mary, age 9, were asleep in the house. At about 10:30 p.m. the previous evening defendant had seen Mr. and Mrs. Mack at a place where Mr. Mack played the guitar with a band and knew that they would not return home until about 2 a.m. Upon returning home, the Macks found Mary lying on the floor dead. Connie had disappeared. Her blankets were on the floor, and there was blood on her bed.

Defendant was arrested at Ms home at about 2:30 a.m., October 29, 1961. The arresting officers found bloodstains on the right rear fender, the right rear door handle, the rear seat, and the floor mat of defendant’s automobile. The blood on the rear seat appeared to have been smeared by a body moving on the seat. Defendant’s sledge hammer was removed from the trunk of his automobile. A chemist testified that the hammer had been heavily smeared with blood and had been washed.

At the time of his arrest, defendant was asleep in his bed, wearing only a pair of shorts. His hands were bloodstained, as were his shorts and his other clothes found on the floor of his room. A police chemist testified that there were semen stains on defendant's T-shirt, on the outside of his trousers, and on the shorts he was wearing when arrested.

At 7 p.m. on the day of his arrest, defendant admitted to police investigators that he struck Mary and Connie with the sledge hammer. He stated that he entered the Mack home “with the intentions of scaring Connie Jean for the way she has been acting, snotty and smart-aleckie, and just to kind of get back at her for a lot of things she said. I went into the house through the side door. The house was dark and the door wasn’t locked. So I went to the bedroom, flicked on the light and Connie Jean turned over and mumbled something and I shut the light off again, and I went over to shake her awake, and little Mary turned on the light, and I turned around with the intention of scaring her, and my hand went too far and I hit her with the sledge hammer. She went down, moaning, and Connie Jean started screaming, so I told her to be quiet, and I went like this (indicating) to hit her too, but my hammer just went right on and I hit her too; and I don’t know, after that I don’t know how many times I hit them— three or four or five times apiece—I don’t know. They were moaning and screaming and I couldn’t remember how many times I Mt them. ’ ’

Defendant stated to the officers that he then picked up Connie and dropped her on the lawn, returning to the house for the hammer. After putting Connie’s unconscious body on the rear floor of the car, defendant stated that he intended to go back for Mary, but panicked and drove away when he saw the lights of approaching automobiles. Shortly thereafter he stopped at a drainage ditch to clean the blood from Connie’s head. “When I opened the door her legs hung out. And the next thing I knew she was on the ground—so I grabbed her by the hand and pulled her over to the side of that drainage ditch ... so I could get some water to clean her off, and she just tumbled into the water, moaning loudly. ...”

Defendant also stated to the officers that “Between there [the drainage ditch] and . . . the house ... I don’t know where I stopped. I’m not sure in my mind, but I think—I think I had intercourse with Connie—I’m not sure.”

Connie’s body was found face down in the drainage ditch downstream from the point at which defendant stated she had gone into the water.

Autopsies of the girls’ bodies showed four separate injuries to Connie’s head and five separate injuries to Mary’s head, which were probably inflicted by the sledge hammer. Although drowning was the immediate cause of Connie’s death, the injuries to her head would have been fatal. Mary’s death resulted from injuries to the brain caused by multiple skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten hours, the pathologist was unable to state whether or not she had been sexually molested.

It was not disputed at the trial that defendant killed the two girls. The prosecution sought to prove that the killings were murders in the first degree on the ground that they were either wilful, deliberate, and premeditated, or occurred during the commission of burglary, rape, or an act punishable under Penal Code section 288. (Pen. Code, § 189.) There is no question of the sufficiency of the evidence to support the verdicts.

Defendant contends that the trial court erred in refusing to instruct the jury on the issue of manslaughter. Manslaughter is the unlawful killing of a human being without malice. Involuntary manslaughter is the killing without malice perpetrated “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ...” (Pen. Code, § 192.) It was error to refuse the instruction if there is any evidence of manslaughter deserving of consideration. (People v. Carmen, 36 Cal.2d 768, 773 [228 P.2d 281].)

In People v. Carmen, supra, we held that the defendant’s statement that he had shot to frighten the victims but did not intend to kill or injure anyone and did not aim at them was evidence deserving of consideration and required the issue of manslaughter to be submitted to the jury. Defendant’s statement to the officers goes farther. He stated that his original intention was to frighten Connie. When the light came on unexpectedly, he turned toward Mary with the intention of scaring her. His hand went too far and he struck her. Then he struck Connie who had awakened, screaming. Thereafter, he struck each of the girls three or four times. He offered no explanation for these subsequent blows. He did not take the stand during the trial on the issue of guilt. His statement alone would not warrant submitting the issue of manslaughter to the jury, for the jury could not reasonably infer from it an absence of malice aforethought. (Pen. Code, §§ 188, 1105.)

There was other evidence of manslaughter, however, that was deserving of consideration. There was evidence that defendant ate no breakfast on Saturday, October 28, 1961; that he purchased six cans of beer about noon and 12 more about 4 o’clock; that he was drinking and intoxicated in the early afternoon; that by 4:30 or 5 o’clock he was “feeling pretty high,” and that his eyes were bloodshot and his speech thick and slurred. Several witnesses testified that defendant appeared intoxicated when they observed him during the evening. At about 11:30 p.m. his stepfather drove him home because he was too drunk to drive. Defendant’s wife testified that he appeared drunk when he arrived home; that he was “awfully drunk” and staggering when he left home again about midnight. When he returned, his clothes were bloody, and he was glassy-eyed and unable to walk without her assistance.

Dr. Zonnis, a psychiatrist, testified that she examined defendant both in a normal state and while he was in an hypnotic trance and gave him neurological and electroencephalogram tests. The results of the neurological test were “of questionable significance” and “did not add up to any particular picture.” There was “some evidence of abnormality of the [electroencephalogram] test.” Dr. Zonnis diagnosed defendant as a “passive-aggressive personality, aggressive type,” explaining that this was a descriptive statement of his general personality configuration. “A person who falls into this classification, by description, tends to be irritable, short-tempered, at times given to temper tantrums. He tends sometimes to harbor resentments to a pathological degree.” She diagnosed defendant as possibly suffering from organic brain disease of undetermined cause.

On the basis of her examination of defendant, Dr. Zonnis was of the opinion that defendant did not enter the Mack house with the intent to take life; that he did not enter with the intent to strike either of the girls; and that he did not enter with the intent sexually to molest either of the girls.

On cross-examination, Dr. Zonnis was asked her opinion as to whether defendant had at any time formed an intent to hit the girls with the hammer. It was her opinion, based upon her examination of defendant and in view of the fact that he was at least moderately intoxicated at the time, that he did not intend to strike or to injure them. Dr. Zonnis testified in explanation of defendant’s statement to the investigating officers that “being able to reconstruct what he has done does not necessarily mean to me that he knew what he was doing at the time.” He became aware that he had struck the girls only after the fact. Dr. Zonnis testified that because of defendant’s intoxication “there was a deficiency or disturbance of usual insight and judgment and very possibly a disturbance in motor control. ’ ’

The prosecutor questioned Dr. Zonnis with regard to defendant’s intent at the time he struck each blow to the head of each of the girls. Dr. Zonnis was of the opinion that in each instance defendant did not consciously intend to strike either girl. “I see all of the blows as part of the same situation, possibly a reflex, automatic and uncontrolled.” She was asked, “What do you mean by [the statement] he did not consciously intend to strike her?” and responded, “I should say in terms of deciding that he wished to strike her, and being consciously aware of the fact that he was striking her. ’ ’ In the light of the foregoing evidence, the court erred in refusing to give defendant’s requested instruction on the issue of manslaughter. “It is a settled rule that jury instructions must be responsive to the issues. The issues in a criminal case are determined by the evidence. . . . The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citing cases.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true. ’ ’ (People v. Carmen, 36 Cal.2d 768, 772-773 [228 P.2d 281].)

Section 22 of the Penal Code provides that “whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” In People v. Gorshen, 51 Cal.2d 716 [336 P.2d 492], we held that under a general plea to the charge of murder a defendant might show that because of voluntary intoxication he did not possess the mental state—malice aforethought—necessary to a conviction of murder in either degree. (51 Cal.2d at pp. 731-734.) That case, moreover, stands for the proposition that psychiatric testimony that negates the specific mental state essential to a particular crime is relevant and admissible as a “partial defense.” “It would seem elementary that a plea of not guilty to a charge of murder puts in issue the existence of the particular mental states which are essential elements of the two degrees of murder. . . . Accordingly, it appears only fair and reasonable that defendant should be allowed to show that in fact, subjectively, he did not possess the mental state or states in issue.” (51 Cal.2d at p. 733.)

Accepting the testimony of defendant’s witnesses that he entered the Mack house in a state of intoxication intending only to frighten Connie, and that when he struck the blows that resulted in the girls’ deaths he did so without conscious intent either to strike or to injure them, the jury could have found defendant guilty of involuntary manslaughter.

In People v. Carmen, supra, we held it reversible error to refuse a manslaughter instruction when there is any evidence that would warrant a conviction of manslaughter. (36 Cal.2d at pp. 773-774.) Reversal is not required because of a reasonable probability that in the absence of the error the jury would have reached a different verdict (see People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]), but because the defendant has a constitutional right to have the jury determine every material issue presented by the evidence. Regardless of how overwhelming the evidence of guilt may be, the denial of such a fundamental right cannot be cured by article VI, section 4%, of the California Constitution, for the denial of such a right itself is a miscarriage of justice within the meaning of that provision. (People v. McKay, 37 Cal.2d 792, 798 [236 P.2d 145] ; People v. Mahoney, 201 Cal. 618, 627 [258 P. 607]; People v. Sarazzawski, 21 Cal.2d 7, 11 [161 P.2d 934]; see also Rogers v. Richmond, 365 U.S. 534, 540-541 [81 S.Ct. 735, 5 L.Ed.2d 760]; Cooper v. Superior Court, 55 Cal.2d 291, 302 [10 Cal.Rptr. 842, 359 P.2d 274]; People v. Rogers, 56 Cal.2d 301, 307 [14 Cal.Rptr. 660, 363 P.2d 892] ; People v. Brommel, 56 Cal.2d 629, 634 [15 Cal.Rptr. 909, 364 P.2d 845] ; People v. Trout, 54 Cal.2d 576, 585 [6 Cal.Rptr. 759, 354 P.2d 231]; People v. Holmes, 54 Cal.2d 442, 443-444 [5 Cal.Rptr. 871, 353 P.2d 583].)

It is contended, however, that under the instructions given in this case the jury could have reached a verdict of first instead of second degree murder only by rejecting the evidence of manslaughter and that therefore the jury passed on every material issue presented by the evidence. This contention was forcefully advanced in the dissenting opinion in the Carmen case. There is no basis for distinguishing the present case from the Carmen case in this respect. It is therefore settled that defendant’s right to a manslaughter instruction when there is evidence thereof precludes not only our weighing that evidence to determine the likelihood that a properly instructed jury would have found manslaughter, but also our attempting to determine how the failure to present the issue of manslaughter to the jury may or may not have influenced its choice between first and second degree murder. Since we do not know what effect an instruction that the jury could return a verdict of manslaughter would have had on its deliberations, we cannot conclude that it necessarily rejected the evidence of manslaughter. Defendant was entitled to a jury trial on all of the issues presented by the evidence, and that right he was denied.

Since the judgment must be reversed, we shall consider other contentions that may arise on retrial.

There is no merit in defendant’s contention that the court erred in failing to give certain instructions on its own motion. Relying upon People v. Carnine, 41 Cal.2d 384 [260 P.2d 16], defendant urges that the jury should have been instructed that the homicide would not be first degree if the act or intent sexually to molest or rape arose after the act of striking the girls. In the Camine ease, however, there was evidence tending to show that the defendant did not decide to steal the victim’s property until after the conclusion of the lethal assault. The evidence in the present case clearly establishes that the homicide and the felony, if any, were part of one continuous transaction. Defendant’s own statement reflects that he had intercourse with Connie at some point between the Mack home and the drainage ditch, and since the immediate cause of Connie’s death was drowning, such act must have taken place before the completion of the homicide. (People v. Mason, 54 Cal.2d 164, 169 [4 Cal.Rptr. 841, 351 P.2d 1025].)

Defendant contends that the court should have instructed the jury that an inference unfavorable to the prosecution could be drawn from the failure to introduce Connie’s underpants into evidence. Defendant contends that the condition of the underpants was vital to the prosecution’s theory that the killings were perpetrated in the course of a sexual attack. The record shows, however, that the prosecution introduced testimony with regard to the finding of the underpants and that defendant had a full opportunity to determine their condition on cross-examination. Having failed to raise any suspicion that the introduction of this evidence would have been adverse to the prosecution’s case, defendant cannot now assert that the court erred in failing to give an instruction that was neither requested by defendant nor warranted by the evidence.

Defendant contends that the trial court erred in refusing to allow Dr. Zonnis to explain the use of hypnosis as an analytical tool, and in excluding a tape recording of statements made by defendant while under hypnosis. Dr. Zonnis was alloAved to state her opinion as to defendant’s intent at the time he entered the Mack house and at the time defendant struck the girls. She testified repeatedly that she based her opinion on what defendant had told her and upon her pyschiatrie evaluation of him. At no time was she precluded from considering information derived from defendant Avhile he was under hypnotic trance. Indeed, on cross-examination, Dr. Zonnis testified that she based her opinion ‘ ‘ On the interviews that I had with him, the consistency of his responses, and on the information that corroborated what he had previously said that I obtained in the hypnotic interviews with him.”

It was error, however, to exclude Dr. Zonnis’ proffered explanation of hypnotic techniques as they are used in a psychiatric examination as a basis for her expert opinion. The evidence was clearly admissible for that purpose. (People v. Brown, 49 Cal.2d 577, 585 [320 P.2d 5].)

Although the tape recording of defendant’s statements while under hypnosis might properly have been excluded in the exercise of the trial court’s discretion to weigh its probative value as part of the basis for the expert’s opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein, the record shows that the trial court did not exercise this discretion, but erroneously concluded that People v. Busch, 56 Cal.2d 868, 878 [16 Cal.Rptr. 898, 366 P.2d 314], required exclusion of the evidence. In the Busch case we held that the trial court did not err in excluding an expert’s opinion based in part upon an hypnotic examination on the ground that no proper foundation had been laid to show the reliability of hypnosis as an analytical tool or that the expert was qualified in its use for that purpose. In the present ease, however, Dr. Zonnis was qualified as an expert psychiatrist. The defense offered to prove that hypnosis is an accepted analytical tool in the psychiatric profession in determining a person’s state of mind, and Dr. Zonnis was allowed to state her opinion based in part on the hypnotic examinations. Under these circumstances, there is nothing in the Busch case that would preclude introducing in evidence all of the data on which she based her opinion. The court therefore erred in failing to exercise its discretion in determining whether the recording should be admitted.

Defendant contends that he was improperly interrogated and subjected to “psychological coercion” by the investigating officers in the absence of counsel as a result of which he was tricked into stating that he had intercourse with Connie. Defendant was allowed to consult with his attorney before the statement in question was made, and was advised by him that he could speak to the officers if he wished. When first taken into custody he claimed to have no knowledge of the killings. Gradually during the course of questioning the story emerged, consistent with the physical evidence. The evidence suggested the possibility of a sex crime, and defendant was asked whether he had intercourse with Connie. He first denied it, but when later asked if there was anything else he wished to say, he stated that he thought he had intercourse with Connie between the house and the drainage ditch. Although psychological coercion may render an admission or confession involuntary, the record in this case falls far short of showing such coercion.

Defendant contends that the trial court erred in allowing photographs and slides of the victims to be introduced into evidence, arguing that since there was no doubt as to the nature of the injuries inflicted, the photographs and slides served solely to inflame the jurors, Defendant concedes that the pictures served to illustrate the testimony of the witnesses. Clearly the pictures were relevant; whether their probative value was outweighed by any probable prejudicial effect was a question addressed to the court’s discretion. (People v. Kendrick, 56 Cal.2d 71, 91 [14 Cal.Rptr. 13, 363 P.2d 13]; People v. Ditson, 57 Cal.2d 415, 446 [20 Cal.Rptr. 165, 369 P.2d 714].) In the exercise of that discretion, the trial court overruled defendant’s objection to the introduction of the pictures on the grounds that they tended to refute the contention that defendant had intended merely to scare the girls and were relevant to the question of the degree of the crimes.

Defendant contends that the prosecutor was guilty of prejudicial misconduct in several instances. Defendant complains that the prosecutor stated his personal belief in defendant’s guilt. It appears, however, that the prosecutor’s remarks were responsive to defense counsel’s argument that the respective counsel were partisans charged with the responsibility of representing a point of view. The challenged remarks were a fair summary of the prosecutor’s duties as a “partisan,” and were a permissible response to argument of counsel. (See People v. Osslo, 50 Cal.2d 75, 102-103 [323 P.2d 397].)

Some merit must be conceded to defendant’s contention that the prosecutor unfairly attacked defendant’s psychiatric witness, Dr. Zonnis. Although the area of permissible comment is wide (People v. Mason, 184 Cal.App.2d 317, 364 [7 Cal.Rptr. 627]), the prosecutor’s comments, in at least one instance,

* went beyond the limits of fair comment.

Defendant also urges that the prosecution committed misconduct during the trial on the issue of penalty by appealing to racial prejudice and by arguing that the victims were of good character. The record, however, does not show an appeal to racial prejudice. Defendant argues that good or bad character of the deceased is not relevant or admissible unless it is in issue, as, for instance, under a plea of self-defense, and that the purpose of evidence of the girls’ good character could therefore have been offered only to inflame the jury. Under Penal Code section 190.1 however, “Evidence may be presented ... of any facts in aggravation or mitigation of the penalty. ’ ’ Evidence that the victims were innocent children was properly admitted under this rule. (People v. Bentley, 58 Cal.2d 458, 460 [24 Cal.Rptr. 685, 374 P.2d 645].)

Conceding that the evidence of minimum, average and maximum terms served by persons sentenced to life imprisonment for first degree murder is admissible (People v. Purvis, 52 Cal.2d 871, 884 [346 P.2d 22]) defendant contends that the court erred in allowing the introduction of parole statistics on the ground that those statistics were based upon the number of persons released during the period 1950-1959. Such data, it is argued, are irrelevant to the present case because they do not take into consideration persons who are not released or the prior record of a prisoner. Although the statistics were not wholly applicable to this defendant, neither were they wholly irrelevant. On cross-examination, the witness explained that the figures did not include the time spent in prison by persons who had not been released and acknowledged that he had no figures or tables showing the average terms served by recidivists. Thus it appears that any misunderstanding of the statistics that might have been adverse to defendant was cured by the explanation elicited from the witness on cross-examination.

The judgment is reversed.

Gibson, C. J., Peters, J., Tobriner, J., and Peek, J., concurred.

Ref erring to Dr. Zonnis ’ qualifications as a consulting psychiatrist with the Palm Springs School District, the prosecutor stated: “This is the lady that is going to take care of our children in this county. This is the type of thing that concerns me. Are we going to have this type of situation?”