People v. Conley

• Decision Date: 09 December 1968
• Docket Number: Cr. 4756
• Citation: 268 Cal.App.2d 47,73 Cal.Rptr. 673
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Junior CONLEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 673

73 Cal.Rptr. 673

268 Cal.App.2d 47

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Junior CONLEY, Defendant and Appellant.

Cr. 4756.

Court of Appeal, Third District, California.

Dec. 9, 1968.

Rehearing Denied Jan. 6, 1969.

Hearing Denied March 5, 1969.

Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Charles P. Just, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Robert Y. Bell, Santa Rosa, for defendant-appellant.

FRIEDMAN, Associate Justice.

In October 1964 a jury in Mendocino County found defendant Conley guilty of the first degree murder of Elaine McCool and her husband, Clifton McCool. Defendant was sentenced to life imprisonment. In March 1966 the judgment of conviction was reversed by the State Supreme Court. (People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911.) A second trial in Mendocino County culminated in a deadlocked jury. On defendant's motion venue was changed to Tehama County and he was tried a third time in January and February 1967. The jury found him guilty of the first degree murder of both victims, and concurrent life sentences were imposed. He appeals.

The statement of facts in People v. Conley, supra, 64 Cal.2d at pages 314 and 315, 49 Cal.Rptr. 815, 411 P.2d 911 summarizes the evidence in detail. Suffice it to say here: Defendant was involved in an affair with Mrs. McCool, who wished to terminate it and return to her husband. After she told him she was ending the relationship, defendant indulged in several days of heavy drinking, then traded his automobile for a rifle, bought ammunition and shot both husband and wife. His blood alcohol level at the time of the shooting was high enough to indicate a possibility of impaired judgment. Psychiatric evidence pointed to a somewhat disorded personality but was characterized by conflicting claims regarding his capacity to entertain malice and to premeditate. Although he claimed to remember nothing of the shooting, several psychiatrists testified that he had been conscious of his actions. The jury found him guilty of two premeditated murders, then rejected his insanity plea.

Jury Instructions

Conley's first conviction was reversed by the Supreme Court for absence of a jury instruction on 'nonstatutory' voluntary manslaughter. Footnote 4 of the Conley opinion, 64 Cal.2d at pp. 324--326, 49 Cal.Rptr. 815, 411 P.2d 911 consists of a suggested comprehensive jury instruction, defining the various kinds of murder and manslaughter as affected by evidence of diminished capacity and unconsciousness attributable to mental defect or voluntary intoxication. A portion of that instruction describes two kinds of voluntary manslaughter recognized by California law: first, the 'heat of passion' or 'sudden quarrel' variety expressed in Penal Code section 192, subdivision 1; second, the nonstatutory variety, where 'due to diminished capacity caused by mental illness, mental defect, or intoxication, the defendant did not attain the mental state constituting malice.'

On Conley's first appeal, on substantially identical evidence as here, the Supreme Court held that absence of the instruction on nonstatutory voluntary manslaughter required reversal. A careful examination of the record of the last trial indicates omission of this very instruction. The same result--reversal--must follow here.

The Attorney General urges that the trial judge gave the equivalent of this instruction by telling the jurors that they could not find defendant guilty of first or second degree murder if, by reason of diminished mental capacity, he did not harbor malice aforethought. Repeating the argument under another heading of the law, he urges the error's harmlessness. As in People v. Aubrey, 253 Cal.App.2d 912, 919, 61 Cal.Rptr. 772, this combination of instructions gave the jury on opportunity to acquit defendant if they found no malice, but none to find him guilty of nonstatutory voluntary manslaughter. Whatever deductions legal reasoning might draw from the combination of instructions, the pivotal fact is that only one kind of voluntary manslaughter was defined for the jury, that described in Penal Code section 192, subdivision 1. The jury were not informed that diminished capacity due to voluntary intoxication might reduce the killing to voluntary manslaughter. As a matter of law, the error requires reversal. 'The denial of the right to have a significant issue determined by the jury is in itself a miscarriage of justice within the meaning of article VI (section 13) of the Constitution and requires reversal.' (People v. Conley, supra, 64 Cal.2d at pp. 319--320, 49 Cal.Rptr. at p. 821, 411 P.2d at p. 917; see also People v. Modesto, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 33.)

We turn to other claims of error which might arise on retrial.

Defendant charges error in the instructions on intoxication. In substance, the trial court gave both CALJIC 78 (Rev.) and CALJIC 319 (Rev.), both of which convey the idea expressed in the first sentence of Penal Code section 22: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.' The Supreme Court has criticized such instructions where the crime charged (such as murder) involves specific intent. (People v. Ford, 60 Cal.2d 772, 796, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Spencer, 60 Cal.2d 64, 87, 31 Cal.Rptr. 782, 383 P.2d 134.) In Conley's trial the juxtaposition of these two instructions with those on diminished capacity could not but leave the jurors in a state of hopeless confusion. As pointed out in Spencer, 60 Cal.2d at page 87, 31 Cal.Rptr. 782, 383 P.2d 134 jurors should not be called upon to perform the intricate analysis necessary to reconcile these instructions.

When there is an issue of diminished capacity due to intoxication, an instruction, in the language of Penal Code section 22 is not necessarily error. (People v. Sievers, 255 Cal.App.2d 34, 37, 62 Cal.Rptr. 841.) There is no need for such an instruction superimposed upon the Conley instruction framed by the Supreme Court. The basis notion of section 22--that intoxication does not exculpate but may affect specific intent--is suffused throughout the Conley instruction. A homicide case featured by a defense of diminished capacity attributable to a mixture of intoxication and mental disorder inevitably involves the jury in complex and subtly differentiated notions. If a trial judge can convey these notions to lay jurors in more simple terms than those articulated in footnote 4 of the Conley opinion, he is welcome to the attempt. If he cannot, he should give the Conley instruction with no more emendation than the evidence demands.

The last paragraph of the Conley instruction, dealing with a type of involuntary manslaughter, will confront the judge retrying this case with a special problem. ¹ That paragraph presupposes evidence of unconsciousness due to voluntary intoxication but not mental disorder or defect. (People v. Chapman, 261 A.C.A. 167, 192--193, 67 Cal.Rptr. 601 (hg. den.).) It describes a partial defense to the homicide charge. Unconsciousness due to mental disorder is a complete, not a partial, defense. (People v. Wilson, 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820; People v. Baker, 42 Cal.2d 550, 575, 268 P.2d 705.) Where there is evidence of unconsciousness involving both voluntary intoxication and mental disorder, instructions on both theories are appropriate. (People v. Baker, supra, 42 Cal.2d at pp. 573--575, 268 P.2d 705.) On retrial there may or may not be a claim of unconsciousness. That claim may or may not be premised on evidence of mental disorder as well as voluntary intoxication.

At this point the trial judge's problems become quite esoteric. He will face the task of fitting psychiatric testimony into instructions on several kinds of unconsciousness classified by legal effect. He must bear in mind that 'an instruction that does not distinguish unconsciousness caused by voluntary intoxication from that induced by other causes is erroneous.' (People v. Conley, supra, 64 Cal.2d at p. 324, 49 Cal.Rptr. at p. 824, 411 P.2d at p. 920.) In addition to the Sua sponte instruction on nonstatutory voluntary manslaughter, he encounters the alternatives of giving or withholding the involuntary manslaughter instruction embodied in the last paragraph of the Conley footnote, as well as the instruction on unconsciousness due to mental disorder. These latter alternatives involve both the judge's obligations and tactical choices for the defense. If the jury is about to be offered two kinds of voluntary manslaughter, the defendant may wish to eschew the additional option of involuntary manslaughter described in the last paragraph of the Conley instruction, preferring to rely on the theory of unconsciousness due to mental disorder. ² On the other hand, by Sua sponte omission of the last paragraph of the Conley instruction, the trial judge opens the record to attack on appeal. As this court pointed out in People v. Champman, supra, 261 A.C.A. at pages 192--193, 67 Cal.Rptr. 601, the circumstances of the trial may call for a defense request for the last paragraph of the Conley instruction and not force it upon the trial judge Sua sponte. To the extent that the Supreme Court has not imposed Sua sponte obligations, the judge retrying this case might well involve counsel in some of these alternatives.

In two instructions the trial court told the jury, in effect, that insanity was not a question in the guilt trial and that it must assume the defendant's sanity. Although abstractly correct, these instructions shared the vice of the intoxication instructions, confounding the jury's task of considering diminished capacity. Such instructions should be avoided where the defense of diminished capacity due to mental disorder is presented to the jury. If they are given, it is incumbent upon the trial judge to...