People v. Lines

• Decision Date: 14 February 1975
• Docket Number: Cr. 17898
• Citation: 119 Cal.Rptr. 225,531 P.2d 793,13 Cal.3d 500
• Court: California Supreme Court
• Parties: , 531 P.2d 793 The PEOPLE, Plaintiff and Respondent, v. Richard Lee LINES, Defendant and Appellant. In Bank

Page 225

119 Cal.Rptr. 225

13 Cal.3d 500, 531 P.2d 793

The PEOPLE, Plaintiff and Respondent, v. Richard Lee LINES, Defendant and Appellant.

Cr. 17898.

Supreme Court of California,

In Bank.

Feb. 14, 1975.

David E. Kenner, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Richard Lee Lines was charged by information with the murder of his aunt, Rose Ethyl Hunt. He entered pleas of not guilty and not guilty by reason of insanity. After a bifurcated trial, a jury found defendant guilty of murder in the second degree and sane at the time the offense was committed. ¹ Defendant was sentenced to imprisonment for the term prescribed by law. He appeals from the judgment of conviction.

On November 24, 1971, about 1 a.m., defendant went to a Los Angeles police station and informed the officer in charge that he had shot his aunt, Rose Hunt, in whose home he had been living. He handed the officer his jacket which contained a .38 caliber revolver and some ammunition. The police proceeded to the Hunt residence where they discovered the victim's body lying on the floor of her bedroom. She had been shot five times.

After advising defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) the police interrogated him at a tape-recorded interview. Defendant generally explained his conduct by giving them an account of a plot to murder his friend Jim McEver. He stated that his uncle, Edward Hunt, solicited defendant's aid in killing McEver who had acted improperly toward Hunt's daughter. According to the plan, defendant was to take McEver to a tavern for a drink and at a prearranged time was to inveigle the latter into going outside, where he would be shot.

According to defendant, he then informed McEver of the plot. On the afternoon preceding the murder, both men went to the police station where they related the details of the murder plan. They were advised to pretend to proceed with the plot so that the identity of all participants could be uncovered. That evening defendant engaged in drinking with McEver for about two hours and then returned home. An argument arose between defendant and the Hunts concerning the murder plan. Confused and upset over the altercation defendant was unable to sleep and decided to return to the police station with the gun which his aunt had purchased to kill McEver. As he was leaving the house, he went to his aunt's bedroom and an argument ensued. She started out of bed towards him, 'everything exploded in (his) head' and he shot her. ² After the shooting, defendant dropped the empty cartridges in the street, reloaded the gun, stopped off at a bar looking for McEver and then proceeded to the police station.

Defendant stated several times during the interrogation that he had no intention of killing his aunt, that he was upset and confused, and that he was afraid of his aunt when she advanced toward him. He also stated that he had had serious mental problems in the past.

On their case in chief during the guilt phase, the People introduced defendant's tape-recorded statements into evidence, and played the tape to the jury. Defendant took the stand in his own behalf. However, he then testified that he was in no way involved with the killing, that his uncle had killed his aunt, and that he had confessed in order to cover up for his uncle.

Before considering the main issue presented by this appeal, we must initially dispose of two preliminary contentions. First, defendant contends that the court erred in denying his motion for a judgment of acquittal made pursuant to Penal Code section 1118.1 ³ at the close of the People's case in chief during the guilt phase of the trial. ⁴ It has been said that the 'test to be applied by the trial court under the section is, therefore, the same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged (citations).' (People v. Valerio (1970) 13 Cal.App.3d 912, 919, 92 Cal.Rptr. 82, 86; see also People v. Lawrence (1972) 25 Cal.App.3d 213, 221, 101 Cal.Rptr. 671.) Defendant argues that the prosecution failed to prove malice, which is a necessary element in the offense of second degree murder. (Pen.Code, §§ 187, 189.) We consider defendant's argument on the basis of the evidence in the record at the time his motion was made.

He premises his argument upon People v. Collins (1961) 189 Cal.App.2d 575, 591, 11 Cal.Rptr. 504, 515, which held that: '(t)he prosecution, having presented as a part of its case the statement of defendant as to how the killing occurred, is bound by that evidence in the absence of proof to the contrary.' It is urged that the prosecution failed to establish malice since defendant's tape-recorded statement which the prosecution introduced in evidence precluded any finding of implied malice and there is no evidence to the contrary.

While it is true that defendant's statement in large part might preclude a finding of malice, there is in the record ample evidence to the contrary supportive of a finding of implied malice. It is settled that the necessary element of malice may be inferred from the circumstances of the homicide. (Jackson v. Superior Court (1965) 62 Cal.2d 521, 525, 42 Cal.Rptr. 838, 399 P.2d 374). 'Such malice may be express or implied . . .. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.' (Pen.Code, § 188.) Thus this court has declared that '(w)hen the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder; but in such a case the verdict should be murder of the second degree, and not murder of the first degree. (Citations.)' (People v. Howard (1930) 211 Cal. 322, 329, 295 P. 333, 336; see also People v. Wells (1938) 10 Cal.2d 610, 616--617, 76 P.2d 493.) Accordingly, in Jackson v. Superior Court, Supra, we pointed out that when it is proved that the defendant assaulted the victim with a deadly weapon in a manner endangering life and resulting in death, "malice is implied from such assault in the absence of justifying or mitigating circumstances." (62 Cal.2d at p. 526, 42 Cal.Rptr. at p. 842, 399 P.2d at p. 386.)

In the case at bench defendant shot a frail 57-year-old woman five times with a revolver while the unarmed victim was getting out of her bed four feet away from him. These facts fully support a finding of implied malice. We are satisfied the trial court did not err in denying defendant's motion to reduce the offense charged from second degree murder to manslaughter.

Defendant next contends that the court erred in denying his motion, made in connection with his motion for a new trial, to modify the verdict by reducing it from second degree murder to manslaughter. ⁵ He argues that the psychiatric evidence introduced during the sanity phase of the trial established his diminished capacity so as to negate malice. However, evidence of diminished capacity must be introduced during the guilt phase of the trial in order to be considered on a motion pursuant to section 1181, subdivision 6, to reduce a verdict from second degree murder to manslaughter. If such evidence is introduced only in the sanity or penalty phase of the trial it cannot be considered in reduction of the previously rendered verdict of guilty. (People v. Lookadoo (1967) 66 Cal.2d 307, 316, 57 Cal.Rptr. 608, 425 P.2d 208; see People v. McDowell (1968) 69 Cal.2d 537, 73 Cal.Rptr. 1, 447 P.2d 97; People v. Henderson (1963) 60 Cal.2d 482, 490--491, 35 Cal.Rptr. 77, 386 P.2d 677.) At the trial on the issue of guilt defendant presented to diminished capacity evidence. His sole defense was that his uncle, and not he, had committed the homicide. The decision whether to present evidence on the issue of diminished capacity at the trial on the issue of guilt or to reserve such evidence solely for presentation at the sanity or penalty phase of the trial is a matter of trial tactics and is a binding decision, subject to attack only if the decision resulted from professional incompetence. (People v. McDowell, Supra, 69 Cal.2d 737, 751, 73 Cal.Rptr. 1, 447 P.2d 97 and cases there cited.) We conclude that the trial court properly denied the motion.

We now direct our attention to the central contention urged by defendant on this appeal, namely that it was error for the trial court to admit the testimony of two court-appointed psychotherapists over defendant's objection that such testimony would violate his attorney-client privilege.

Several psychiatrists were appointed by the court at various stages in the proceeding to examine defendant's mental condition. As will appear, defendant objected to the admission of the testimony of two of these, Doctors Markman and Abe.

The information was filed on December 17, 1971. On December 27, 1971, defendant entered a plea of not guilty. On January 25, 1972, on defendant's motion the court appointed pursuant to sections 730 ⁶ and 1017 ⁷ of the Evidence Code, Doctors Tweed and Markman to examine defendant. On April 17, 1972, defendant entered a plea of not guilty by reason of insanity and the court thereupon pursuant to section 1026 et seq. of the Penal Code and section 730 of the Evidence Code appointed Doctor Bielinski 'to examine deft.' and 'reappointed' Doctors Markman and Tweed 'previously appointed . . . to examine deft. and report to the court . . ..' ⁸

On May 23, 1972, the case was called for trial. On May 30, 1972, the record discloses that the court...