People v. Heffington

• Decision Date: 01 May 1973
• Docket Number: Cr. 6662
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Ray HEFFINGTON, Defendant and Appellant.

Page 859

107 Cal.Rptr. 859

32 Cal.App.3d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bruce Ray HEFFINGTON, Defendant and Appellant.

Cr. 6662.

Court of Appeal, Third District, California.

May 1, 1973.

Rehearing Denied May 30, 1973.

Hearing Denied June 28, 1973.

Evelle J. Younger, Atty. Gen., by Marjory Parker and Edmund McMurray, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Carl B. Shapiro, San Anselmo, for defendant and appellant.

FRIEDMAN, Associate justice.

An information charged defendant with assault with intent to commit murder. (Pen.Code, § 217.) He pleaded not guilty and not guilty by reason of insanity. A jury found him guilty as charged and another jury found him to have been sane. He appeals.

Early in the evening of August 29, 1971, Robert Mattos was standing between two parked cars on a street in Weaverville. Mattos, who was seventeen years old, had shoulder-length hair, sideburns, whiskers, and a moustache. Defendant, who was a passenger in a cattle truck driven by his wife, stuck his head out of the window and yelled derisive words directed at Mattos' long hair. In response, Mattos 'flipped the man the bird,' i.e., lifted his finger skyward. The truck continued onward to defendant's home, where its cargo of animals was unloaded.

Defendant's wife then drove him back to Weaverville, where defendant made inquiries as to the whereabouts of the youth who had made the finger sign. The truck finally pulled up to a curb and stopped. Defendant got out of the truck, crossed the street and walked up to Mattos. As defendant crossed the street, he fumbled with a knife contained in a sheath. Defendant asked Mattos if he was 'the guy that flipped him off,' and Mattos replied in the affirmative. Defendant immediately took a swing at Mattos, but Mattos blocked the swing and hit back at defendant, striking him in the face or chest area.

A fight ensued during which Mattos kicked defendant either just above the belt or in the groin. Defendant then drew his knief, advanced on Mattos and began to swing at him. Mattos stepped back and removed his belt in order to ward off the knife. Defendant swung the knife five times; on the third swing he cut Mattos on the left shoulder, ultimately leaving a scar. All during the fight, Mattos was trying to get away.

Undersheriff Laag of Trinity County came upon the scene and observed defendant striking at Mattos with a knife while the latter was trying to back off. When the two participants failed to heed Laag's demand to stop the fight, Laag drew his service revolver and defendant then desisted and placed the knife in his rear pocket. Laag grasped defendant by the wrists and told him he was under arrest. Defendant broke away and went across the street toward his truck. Laag caught up with defendant and struggled with him until two other deputies arrived. Defendant was then placed under arrest and escorted to jail. Laag noticed the odor of alcohol on defendant's breath but detected no signs of intoxication.

After waivers by defendant and his wife, the wife took the stand as a prosecution witness. She testified that defendant had consumed five beers over a period of several hours preceding the fight. That afternoon, while transporting livestock back from a ranch, defendant had complained of a headache and double vision and asked his wife to drive the truck. She testified that she had observed or heard nothing as they drove through Weaverville on their way to their home; that after unloading the animals, defendant was told by his son that a hippie had given him the finger as they drove through town; that defendant wanted to find out why and had his wife drive him back to town. After she drove around for a while, defendant told her to stop, noting that he saw a youth who might know. Defendant's wife witnessed the ensuing fight but claimed that Mattos was the aggressor.

Defendant testified in his own behalf. Earlier in the day, he had consumed five beers. He and his wife had been moving horses from a ranch to their home. He testified that he did not recall leaving or driving from the ranch, arriving in Weaverville or unloading the stock. He did recall that someone, perhaps his wife, told him that somebody in town gave him the finger. He returned to Weaverville looking for this person. When asked why he went looking for this particular individual, defendant replied, 'Well, if you gave me the finger, I'd ask you why.'

Defendant testified that the ensuing events were somewhat hazy. He did remember approaching Mattos and asking him, 'Did you give me the finger?' Mattos, according to defendant, answered, 'Yeah, man,' and came running at him like a 'wild bull,' and kicked him in the testicles. Defendant recalled pulling his knife to use it in his own defense; he recalled intending to use it in his own defense and recalled that he was afraid for his life. The next thing defendant recalled was Officer Laag trying to restrain him but he had no idea why. He recalled dropping the knife at Laag's request. Defendant did not remember much of what occurred thereafter until he was booked.

Defendant testified that he had suffered a series of head injuries through fights and being stomped by a saddle horse. He had sought medical advice but no cure had been found. Defendant also stated that he is unable to drink intoxicating beverages to the same degree as he could prior to the head injuries. The testimony of relatives and friends tended to corroborate defendant's history of head injuries, problems of recollection, eye difficulties and his decreased tolerance to alcohol.

Two psychiatrists, Dr. O'Neill and Dr. Abrahams, had examined defendant under court appointment. Dr. O'Neill was called as a defense witness and Dr. Abrahams as a prosecution rebuttal witness.

The court instructed the jury that assault with intent to commit murder required proof of a specific intent to murder; that malice, express or implied, was an element of murder; that the jury should consider if defendant was intoxicated in determining if he had specific intent; that the jury should determine whether defendant was suffering from some abnormal mental or physical condition which prevented him from forming the requisite specific intent; that (simple) assault was a necessarily included crime in the offense charged. The court rejected a request for an instruction on unconsciousness as a defense. (CALJIC 4.30.)

I

Defendant assigns error in the trial court's refusal to instruct on unconsciousness. We consider this claim in the light of two principles: first, that unconsciousness is a complete defense except where it is caused by voluntary intoxication (Pen.Code, § 26, subd. 5; People v. Wilson, 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820; People v. Conley, 64 Cal.2d 310, 323, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Graham, 71 Cal.2d 303, 316--317, 78 Cal.Rptr. 217, 455 P.2d 153) second, that defendant was entitled to a jury instruction on any theory, no matter how remote or incredible, which had the support of "any evidence deserving of any consideration whatsoever" (People v. Sam, 71 Cal.2d 194, 211, 77 Cal.Rptr. 804, 814, 454 P.2d 700, 710).

Dr. O'Neill testified that he had not arrived at any diagnosis of defendant's mental condition on the day of the events. He said that he did not feel defendant was suffering from any psychiatric disease at the time. He had reviewed defendant's medical history, which confirmed the past occurrence of head injuries. He stated that repeated head injuries may increase a person's sensitivity to alcohol so that a relatively small number of drinks would result in a condition of 'paradoxical intoxication.' A person in that condition might undergo a personality alteration and have an amnesia concerning the occurrences during that period. Dr. O'Neill had no opinion as to whether defendant was suffering from paradoxical intoxication at the time of the events. On the assumption that defendant had consumed four to six beers before the fight and on the assumption that he might have been suffering from paradoxical intoxication, Dr. O'Neill concluded that defendant's capacity to form an intent was unimpaired on the day in question, but that at some time during the altercation with Mattos he 'may or may not have lost his capacity to continue to form a rational intent.'

Dr. Abrahams found that defendant could remember some of the events but not others. He believed defendant was the kind of person who would tends to forget distasteful or unpleasant things. He testified that a person like defendant would have an impaired ability to premeditate, that is, to carry out a preconceived objective. Dr. Abrahams believed that defendant (placed in the situation of the altercation) coule not form a specific intent to kill, as intent is explained in psychological terms. He testified that in a primitive sense defendant might have intended to do bodily harm to the victim, but was not sure whether he was able to differentiate between killing and bodily injury, since the concept of 'killing' is a fairly complicated concept. He testified that pathological intoxication ¹ was a very rare diagnosis, which he rejected in defendant's case because the physical findings did not support it.

In the sense intended by Penal Code section 26, subdivision 5, unconsciousness includes not only a state of coma or immobility, but also a condition in which the subject acts without awareness. (People v. Newton, 8 Cal.App.3d 359, 376, 87 Cal.Rptr. 394.) Neither Dr. O'Neill nor Dr. Abrahams testified to a lack of consciousness or state of automatism; neither expressed an opinion that defendant lacked awareness of his actions before and during the fight. Dr. O'Neill found no psychopathological condition, described 'paradoxical' intoxication as no more than a possibility and, even as to that condition, suggested no loss of awareness, not even a momentary loss. Dr. Abrahams...