People v. Kelly

• Decision Date: 26 December 1973
• Docket Number: Cr. 16877
• Court: California Supreme Court
• Parties: , 516 P.2d 875 The PEOPLE, Plaintiff and Respondent, v. Valerie Dawn KELLY, Defendant and Appellant.

Page 171

111 Cal.Rptr. 171

10 Cal.3d 565, 516 P.2d 875

The PEOPLE, Plaintiff and Respondent, v. Valerie Dawn KELLY, Defendant and Appellant.

Cr. 16877.

Supreme Court of California, In Bank.

Dec. 26, 1973.

James A. Hutchens, La Mesa, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Elaine A. Alexander, Patrick J. Hennessey, Jr., and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Valerie Dawn Kelly was charged in count one of an information with assault with a deadly weapon with intent to commit murder (Pen.Code, § 217), ¹ in count two thereof with attempted murder (§§ 187, 664) and in court three with assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)). Defendant pleaded not guilty and not guilty by reason of insanity to all counts. Trial by jury was waived, counts one and two were dismissed by the court on the People's motion on the ground of insufficiency of evidence, and the court found defendant guilty of assault with a deadly weapon in violation of section 245, subdivision (a). The court thereafter found that defendant was legally sane at the time the offense was committed. Imposition of sentence was suspended and defendant was granted probation for a period of five years under specified terms and conditions. She appeals from the judgent of conviction. (§ 1237.)

Defendant has used drugs ever since she was 15 years old. ² In the fall of 1970 when she was 18 years old, she began taking mescaline and LSD, using those drugs 50 to 100 times in the months leading up to the offense. On December 6, 1970, her parents received a telephone call that defendant as being held at the police substation located at the Los Angeles International Airport after being found wandering about the airport under the influence of drugs. In response to the call, her parents picked up defendant at the airport and drove her back to their home in San Diego. Although they recognized that she was not acting normally, at defendant's request they drove her to her own apartment where she spent the night.

On the next morning, December 7, defendant telephoned her mother and asked to be driven to her parents' home. Mrs. Kelly did so but noticed that defendant 'wasn't there'; she seemed to be '(j)ust wandering' and told her mother that she heard 'a lot of noises, and a lot of people talking . . ..' ³ Mrs. Kelly made defendant change into pajamas and lie down, and then went into the kitchen to prepare defendant's breakfast. Shortly thereafter, defendant entered the kitchen and, while Mrs. Kelly was turned toward the stove, repeatedly stabbed her mother with an array of kitchen knives. The police were called, defendant was arrested, and eventually charged as already indicated.

On December 14, 1971, the case proceeded to trial before the court sitting without a jury. ⁴ The parties waived their right to a bifurcated trial on the separate issues of guilt and insanity (Pen.Code, § 1026), and agreed that the court upon receiving evidence at a single trial, could separately decide the two issues after allowing counsel to argue as to each. (People v. Dessauer (1952) 38 Cal.2d 547, 554, 241 P.2d 238; see generally Witkin, Cal. Criminal Procedure (1963) § 502, p. 508.)

Much of the evidence presented at the trial consisted of the reports and testimony of seven psychiatrists. Since there was substantial agreement among them, we briefly summarized their testimony, referring to illustrative examples of it in the footnotes.

Defendant suffered from personality problems--according to one witness an underlying schizophrenia--but was normally a sane person. ⁵ However, her voluntary and repeated ingestion of drugs over a two-month period had triggered a legitimate psychosis ⁶ so that on the day of the attack, defendant was unable to distinguish right from wrong. ⁷ Nevertheless, defendant was conscious in that she could perceive the events that were taking place. ⁸

The trial court heard considerable testimony that defendant was not acting simply as a person who, after ingesting drugs or alcohol is unable to perceive reality and reason properly. Rather, the drug abuse was deemed the indirect cause of a legitimate, temporary psychosis that would remain even when defendant was temporarily off drugs. ⁹ Finally, there was general agreement that defendant, although still a 'brittle' person with latent schizophrenic tendencies, was sane at the time of trial.

At the conclusion of all the evidence, the prosecutor and defense counsel presented their arguments to the court on the guilt phase of the case. The court then in essence found that defendant did the acts constituting an assault with a deadly weapon, that at such time she was not in a state of unconsciousness, ¹⁰ and that defendant was 'guilty as charged.'

After a recess, counsel for both parties then presented their arguments on the sanity phase of the case. At the conclusion of the arguments the court found that while defendant was indeed psychotic both before and after the attack, and 'was not capable of understanding that her act was wrong,' her insanity was no defense because it 'was not of a settled and permanent nature, and, in addition, was produced by the voluntary ingestion of hallucinatory drugs.' ¹¹ Accordingly the court found that defendant was legally sane at the time the offense was committed. As already stated, the court eventually suspended imposition of sentence and granted probation.

Defendant contends (1) that the evidence before the court established a defense of unconsciousness and (2) that insanity, however caused, was a defense to section 245, subdivision (a), a general intent crime.

In support of her first contention, defendant argues that the evidence showed her to be psychotic at the time of her actions. She relies on the court's findings that there was no evidence she was fully aware of what she was doing on the day of the assault but was shown to have been intermittently aware of her actions. (See fn. 5, Ante.) She urges that the only determination to be made by the trial court was whether she was in fact unconscious at the time of her acts and that the fact that such unconsciousness was the product of drug intoxication voluntarily induced should not negate the defense.

Section 26, subdivision Five, designates as among those persons deemed incapable of committing crimes '(p)ersons who committed the act charged without being conscious thereof.' In People v. Methever (1901) 132 Cal. 326, 329, 64 P. 481, 482, this court observed that the above section 'contemplates only cases of persons of sound mind, as, for example, somnambulists, or persons suffering with delirium from fever or drugs.' Nevertheless, as Witkin points out it may have other applications--as, for example, to a person suffering from a blow causing a 'black out' or to a person in an epileptic fit. (1 Witkin, Cal. Crimes, pp. 138--140.) More recently in People v. Newton (1970) 8 Cal.App.3d 359, 376, 87 Cal.Rptr. 394, 405, the court declared that "Unconsciousness,' as the term is used in the rule just cited (i.e., § 26, subd. Five) need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist--and the above-stated rule can apply--where the subject physically acts in fact but is not, at the time, conscious of acting. (Fn. omitted.)'

While there are broad statements in the cases that unconsciousness is a complete defense to a criminal charge (see, for example, People v. Wilson (1967) 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820), we have always taken pains to articulate the rule in the light of unconsciousness produced by voluntary intoxication. In People v. Baker (1954) 42 Cal.2d 550, 575, 268 P.2d 705, 720, we said: 'Unconsciousness is a complete, not a partial, defense to a criminal charge (Pen.Code, § 26, subd. 5), and, although voluntary intoxication may at times amount to unconsciousness, yet it can only have the effect of negating specific intent, the applicable code section being section 22 and not 26, subdivision 5. (Citations.)' We repeated this formulation in People v. Conley (1966) 64 Cal.2d 310, 323, 49 Cal.Rptr. 815, 823, 411 P.2d 911, 919: 'Defendant offered evidence of intoxication caused by alcohol and drugs to support his defense of unconsciousness. Unconsciousness is ordinarily a complete defense to a criminal charge. (Pen.Code, § 26, subd. Five.) If the state of unconsciousness is caused by voluntary intoxication, however, it is not a complete defense.' (See also People v. Graham (1969) 71 Cal.2d 303, 316, 78 Cal.Rptr. 217, 455 P.2d 153.) Thus, as the above cases make clear, the provisions of section 22 ¹² cannot be circumvented by urging, as defendant does in the instant case, that we should concern ourselves only with the question whether the defendant was in a state of unconsciousness and not inquire as to whether such state was the product of the Voluntary ingestion of drugs or alcohol. Such is not the law of this state. ¹³

In sum, unconsciousness caused by voluntary intoxication is only a partial defense to a criminal charge--that is, it may serve to negate the specific intent or state of mind requisite to the offense. (People v. Graham, Supra, 71 Cal.2d at p. 316, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Baker, Supra, 42 Cal.2d at p. 575, 268 P.2d 705.) It follows, therefore, that unconsciousness caused by voluntary intoxication is No defense to a general intent crime--by definition a crime in which no specific intent is required. Assault with a deadly weapon is such a crime, and we have held that the requisite general intent therefor may not be negated through a showing of voluntary intoxication. ¹⁴ Thus, if there was...