People v. Cruz

• Decision Date: 24 January 1980
• Docket Number: Cr. 19162
• Court: California Supreme Court
• Parties: , 605 P.2d 830 The PEOPLE, Plaintiff and Respondent, v. Francisco Palacio CRUZ, Defendant and Appellant.

Page 1

162 Cal.Rptr. 1

26 Cal.3d 233, 605 P.2d 830

The PEOPLE, Plaintiff and Respondent, v. Francisco Palacio CRUZ, Defendant and Appellant.

Cr. 19162.

Supreme Court of California, In Bank.

Jan. 24, 1980.

Rehearing Denied Feb. 20, 1980.

Sanford Jay Rosen, San Francisco, under appointment by the Supreme Court Thelton E. Henderson, Robert S. Baker and Rosen, Remcho & Henderson, San Francisco, for defendant and appellant.

Paul Halvonik, State Public Defender, and Charles M. Sevilla, Chief Asst. State Public Defender, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Susan Rankin Bunting, Deputy Attys. Gen., for plaintiff and respondent.

NEWMAN, Justice.

Defendant appeals from conviction after a jury trial on three counts of first degree murder. He was found to be sane as to each count and was sentenced to death.

I. Facts

In the very early hours of June 3, 1975, using a length of pipe, defendant crushed the skulls of his wife, a 15-year-old step-grandson, and a 10-year-old step-granddaughter. An eight-year-old step-granddaughter waked while he was attacking the step-grandson and fled from the house, escaping the tragedy. To assure his wife's death defendant loaded a shotgun and fired it into her face. After the killings he removed the 10-year-old's cutoffs and spread vaseline in and around her vagina, but apparently he did not conclude an act of intercourse. He denied molesting her, stating he had attempted intercourse before but she was too small and would not cooperate. He was unable to explain his reasons for removing her clothing and applying the lubricant.

Police were summoned by a call made by the eight-year-old from a neighbor's home. They arrived at approximately 2:30 a. m. and were able to persuade defendant to leave the house at approximately 4 a. m. When he emerged he acknowledged the killings and stated, "(D)o with me what you want. I am ready to pay the penalty." He was handcuffed and placed in the police car while the officers conducted a search of the home. At approximately 5:30 the search was completed and the bodies of the victims removed. At that time he was advised of his Miranda rights and taken to Susanville. While being transported he gave a detailed account of the slayings and stated that he killed the grandchildren and his wife because they treated him without respect and were always picking on him and making derogatory comments about him in the presence of others.

At trial the fact that he had committed the killings was not disputed. His defense at the guilt phase essentially was that he did not have the ability to harbor malice or to premeditate or deliberate because of a diminished capacity due to alcohol and mental illness.

His counsel raises several contentions here, including the following: (1) whether there was substantial evidence of premeditation, deliberation, and malice; and (2) whether the judge erred in refusing to instruct, Sua sponte, that malice aforethought includes an awareness of the duty to act within the body of laws that regulate society. His appeal also raises the question of the proper insanity test; and because of our intervening decision in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318 we consider whether to remand for a new insanity phase trial, using the Drew test. He also challenges the constitutionality of the death penalty in effect at the time of the killings. (Stats. 1973, ch. 719, §§ 2, 4, 5, 6, pp. 1297-1300, repealed by Stats. 1977, ch. 316, §§ 4, 6, 8, 10, pp. 1256-1258.) The challenge is valid for the reasons given in Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101. Therefore, though we reject defendant's other contentions and affirm the judgment, we must modify it to provide for a sentence of life imprisonment in accordance with the constitutionally valid provisions of the applicable statute. (Rockwell, supra, at p. 445, 134 Cal.Rptr. 650, 556 P.2d 1101; People v. Teron (1979) 23 Cal.3d 103, 119, 151 Cal.Rptr. 633, 588 P.2d 773.)

II. Evidence of the specific intent required for first or second degree murder

Manslaughter is an unlawful killing without malice. (Pen. Code § 192.) Murder in the second degree is an unlawful killing with malice aforethought ( §§ 187 and 189). First degree murder is in addition willful, deliberate, and premeditated or committed under conditions not relevant here. ( § 189.)

Defendant contends that the evidence was insufficient to prove premeditation, deliberation and malice in light of the evidence of his diminished capacity. Concerning the sufficiency of evidence to support a finding of the degree of murder People v. Wolff (1964) 61 Cal.2d 795, 818-819, 40 Cal.Rptr. 271, 286, 394 P.2d 959, 974 states: "This problem . . . is by no means new to us. In dealing with it we recognize that every relevant and tenable presumption is to be indulged in favor of sustaining the judgment of the trial court; but when a proper case appears (Pen.Code, § 1181, subd. 6) we do not hesitate to modify the judgment to murder of the second degree and affirm it as modified."

Diminished capacity is a defense to all specific intent crimes. (People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308.) As it applies to murder, the defense was explained in People v. Henderson (1963) 60 Cal.2d 482, 490-491, 35 Cal.Rptr. 77, 82, 386 P.2d 677, 682: "It can no longer be doubted that the defense of mental illness not amounting to legal insanity is a 'significant issue' . . . . Under the Wells-Gorshen rule of diminished responsibility (or 'diminished capacity,' per People v. Anderson (1965) 63 Cal.2d 351, 364, 46 Cal.Rptr. 763, 406 P.2d 43) even though a defendant be legally sane according to the M'Naughton test, if he was suffering from a mental illness that prevented his acting with malice aforethought or with premeditation and deliberation, he cannot be convicted of murder of the first degree. This policy is now firmly established in the law of California."

Further, "A person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease . . . and in such a case his killing . . . is voluntary manslaughter." (People v. Conley (1966) 64 Cal.2d 310, 318, 49 Cal.Rptr. 815, 820, 411 P.2d 911, 916.) See also People v. Gorshen (1959) 51 Cal.2d 716, 336 P.2d 492; People v. Wells (1949) 33 Cal.2d 330, 343-357, 202 P.2d 53.

People v. Wolff, supra, 61 Cal.2d at pp. 821-822, 40 Cal.Rptr. at pp. 287-288, 394 P.2d at pp. 975-976, set out these guidelines for diminished capacity to deliberate and premeditate: " 'The true test is not the duration of time as much as it is the Extent of the reflection.' . . . (T)he true test must include consideration of the somewhat limited extent to which this defendant could Maturely and meaningfully reflect upon the gravity of his contemplated act. . . . Certainly in the case now at bench the defendant had ample Time for any normal person to maturely and appreciatively reflect upon his contemplated act and to arrive at a cold, deliberated and premeditated conclusion. He did this in a sense and apparently to the full extent of which he was capable. But, indisputably on the record, this defendant was not and is not a fully normal or mature, mentally well person. He knew the difference between right and wrong; he knew that the intended act was wrong and nevertheless carried it out. But the extent of his understanding, reflection upon it and its consequences, with realization of the enormity of the evil, appears to have been materially as relevant to appraising the quantum of his moral turpitude and depravity vague and detached. We think that our analysis in Holt (People v. Holt (1944) 25 Cal.2d 59, 153 P.2d 21) of the minimum essential elements of first degree murder, especially in respect to the quantum of reflection, comprehension, And turpitude of the offender, fits precisely this case: that the use by the Legislature of 'wilful, deliberate, and premeditated' in conjunction indicates its intent to require as an essential element of first degree murder (of that category) substantially more reflection; i. e., more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill." (Original italics.)

The Wolff language has been endorsed repeatedly by this court in diminished-capacity murder cases where premeditation was an issue. (People v. Goedecke (1967) 65 Cal.2d 850, 856, 56 Cal.Rptr. 625, 423 P.2d 777; People v. Nicolaus (1967) 65 Cal.2d 866, 877, 56 Cal.Rptr. 635, 423 P.2d 787; People v. Bassett (1968) 69 Cal.2d 122, 148, 70 Cal.Rptr. 193, 443 P.2d 777; People v. Risenhoover (1968) 70 Cal.2d 39, 51-52, 73 Cal.Rptr. 533, 447 P.2d 925; In re Kemp (1969) 1 Cal.3d 190, 194-195, 81 Cal.Rptr. 609, 460 P.2d 481; People v. Sirhan (1972) 7 Cal.3d 710, 727-728, 102 Cal.Rptr. 385, 497 P.2d 1121; People v. Sedeno (1974) 10 Cal.3d 703, 713, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Horn (1974) 12 Cal.3d 290, 298-299, 115 Cal.Rptr. 516, 524 P.2d 1300.) The words most consistently stressed are "extent to which this defendant could Maturely and meaningfully reflect upon the gravity of his contemplated act." (Wolff, supra, 61 Cal.2d at p. 821, 40 Cal.Rptr. at p. 287, 394 P.2d at p. 975, see Comment, Keeping Wolff from the Door: California's Diminished Capacity Concept (1972) 60 Cal.L.Rev. 1641.)

As for malice, in a proper case "a jury could conclude that the defendant killed intentionally, with premeditation and deliberation, but did not do so with malice aforethought." (People v. Conley, supra, 64 Cal.2d at p. 323, 49 Cal.Rptr. at p. 823, 411 P.2d at p. 919; and see People v. Gorshen, supra, 51 Cal.2d 716, 336 P.2d 492.) Substantial evidence supporting a finding of premeditation and deliberation does not in every...