People v. Lee, Cr. 18058

• Decision Date: 03 May 1979
• Docket Number: Cr. 18058
• Citation: 92 Cal.App.3d 707,155 Cal.Rptr. 128
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. LEE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 128

155 Cal.Rptr. 128

92 Cal.App.3d 707

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. LEE, Defendant and Appellant.

Cr. 18058.

Court of Appeal, First District, Division 1, California.

May 3, 1979.

Hearing Granted July 5, 1979.

Lawrence E. Kern, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Karl J. Phaler, A. Wells Petersen, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

ELKINGTON, Associate Justice.

Regrettably, we find ourselves compelled once again to reverse a judgment of conviction because of a trial court's erroneous extemporaneous comment and informal jury instructions, concerning the accused's critical defense.

Defendant Lee was charged with murder. He pleaded "not guilty" and "not guilty by reason of insanity." A theory of the prosecution was that the homicide was premeditated and deliberate. On trial of the issues posed by his not guilty plea, his only defense was that of "Diminished capacity." He was found "guilty of first degree murder," and "sane," by a jury and he appeals from the judgment.

As is now well known, under the Wells-Gorshen concept of diminished capacity even though a defendant be legally sane under the recently rejected M'Naghten test, or the now apposite American Law Institute criteria (see People v. Drew, 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318), if he suffers from a mental illness that prevents him from acting with malice he may not be convicted of murder, and if so prevented from acting with premeditation or deliberation, he may not under that theory be found guilty of murder, first degree. (People v. Henderson, 60 Cal.2d 482, 490-491, 35 Cal.Rptr. 77, 386 P.2d 677; see People v. Poddar, 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342; People v. Sedeno, 10 Cal.3d 703, 723, 112 Cal.Rptr. 1, 518 P.2d 913; People v. Anderson, 63 Cal.2d 351, 365, 46 Cal.Rptr. 763, 406 P.2d 43.)

Under this rule, if a mental illness precluded Lee from entertaining malice at the time of his criminal act he could not be found guilty of, or punished for, murder; his offense would be no greater than manslaughter. And under such circumstances, assuming malice, were he unable to premeditate or deliberate, his crime under such a theory was not murder, first degree.

We recognize that the defense of diminished capacity, although it has many supporters, has often been criticized as illogical and disregardful of the public safety and welfare. Some point out that it confers a lesser punishment upon otherwise sane and legally responsible criminals because of mental aberrations predisposing them to violence, thus allowing them sooner to resume their antisocial depradations. On the other hand, they argue, one who is not mentally so predisposed, and is therefore a lesser threat to the community, will suffer the full measure of punishment for a similar crime. We decline to enter upon the debate. The concept of diminished capacity is ingrained in the law of this state, and we as a lesser reviewing court are bound to apply it. (See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

We need not dwell upon the details of the offense which brought about Lee's conviction. It is sufficient to say that he assaulted a young college student and dragged her behind some bushes where in the perpetration of, or attempt to perpetrate, a sexual offense, he crushed her skull and killed her by repeated blows with a heavy pipe and rock. The crime was accompanied by nearly unbelievable viciousness and depravity.

The Attorney General's brief correctly describes the testimony of Lee's psychiatrist witness in this manner: "Dr. Satten testified during both phases of the trial. He found appellant to be paranoid and schizophrenic. . . . During the course of five interviews, the doctor found appellant to be withdrawn, autistic and preoccupied with his own thoughts, hallucinations or delusions. . . . Appellant's general delusional system focused on a belief people were trying to kill him. . . . Appellant thought the victim was part of an ambush set up for him so he had to do something to protect himself. . . . Dr. Satten felt appellant's failure to react to warnings that police were coming indicated he was wrapped up in his own thoughts and sex, particularly with persons of other races, was a preoccupation with him. . . . Based upon the doctor's contacts with appellant, Dr. Satten felt appellant could neither premeditate, deliberate or harbor malice." Dr. Satten's testimony concerning Lee's mental condition was corroborated by other evidence.

During the guilt phase of the trial, Lee's attorney on direct examination, when educing testimony of Dr. Satten tending to establish Lee's inability to entertain the necessary malice, and the premeditation and deliberation of one theory of the murder charge, and thus his diminished capacity, was interrupted by the trial court and, in the jury's presence, the following comments were made (the emphases are ours):

"The Court: Yes. Doctor, let me you understand, ladies and gentlemen of the jury, murder is the unlawful killing of a human being with malice aforethought. So basically if A kills B, and that is all you know, that is murder of the second degree. Now, that is one type, which is in line with (defense attorney) Mr. Beaupre's questions. If you find out that A premeditated and deliberated, you take the second degree murder and push it up to first degree. (P ) The word deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. (P ) The legal definition of the word premeditated means considered beforehand. So that if you know that A kills B, in order to make it murder of the first degree, A must have arrived at or determined as a result of careful thought and weighing of considerations for and against, and then decided to kill. If you don't find premeditation, then you cannot find first degree murder. And again the word deliberation; if you don't find deliberation you can't find murder of the first degree. You must consider it beforehand, and you must deliberate, which means formed as a result of careful thought and weighing of considerations for and against which is not, unfortunately, the clinical definition. (P ) So if all you know is that A kills B, that is second degree murder. To make it first degree, you must premeditate, think about it beforehand, and deliberate, think about it, and after thinking about it, then do it. (P ) Now let me ask you the question Mr. Beaupre was trying to ask.

"Mr. Beaupre: Thank you, your Honor.

"The Court: As a result of this schizophrenia, in you opinion, could Mr. Lee deliberate and premeditate, as I have just defined it?

"The Witness: As you have defined it, I do not believe he could have deliberated or premeditated.

"The Court: Mr. Beaupre.

"Mr. Beaupre: Q. Do you believe he could harbor malice toward the victim? A. I do not believe so.

"The Court: Well, Doctor, do you know what malice is, as Mr. Beaupre uses it?

"Mr. Beaupre: Would you like to explain that?

"The Witness: Well, the instruction form tells what malice is not

"The Court: Let me tell you what malice is. There are two kinds of malice. Kind number one is called express malice. I'm going to kill you bang. I point the gun, that's it. Then you have implied malice. Implied malice is the doing of an act involving a high degree of probability it will result in death. I shoot the gun, done for a base, antisocial purpose, which means that I know what I am doing, and knowing the consequences of shooting the gun, I shoot it anyway; knowing it is for a base, antisocial purpose, I shoot anyway, knowing what is going to happen. So if I shoot him and kill him, it is for a base, antisocial purpose. If I know that I have the gun and know that if I fire it it may result in...