People v. Modesto

• Decision Date: 04 June 1963
• Citation: 59 Cal.2d 722,382 P.2d 33,31 Cal.Rptr. 225
• Court: California Supreme Court
• Parties: , 382 P.2d 33 The PEOPLE, Plaintiff and Respondent, v. Lawrence Glenn MODESTO, Defendant and Appellant. Crim. 7166.

Page 225

31 Cal.Rptr. 225

59 Cal.2d 722, 382 P.2d 33

The PEOPLE, Plaintiff and Respondent, v. Lawrence Glenn MODESTO, Defendant and Appellant.

Crim. 7166.

Supreme Court of California.

June 4, 1963.

Rehearing Denied July 3, 1963.

Earl Klein, Beverly Hills, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman S. Sokolow, Deputy Atty. Gen., William O. Mackey, Dist. Atty., and Roland Wilson, Chief Trial Deputy Dist. Atty., for plaintiff and respondent.

TRAYNOR, Justice.

Defendant was convicted of two counts of first degree murder. The jury fixed the penalty at death on each count. Defendant admitted two prior felony convictions. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

Shortly after midnight on October 29, 1961, defendant entered the home of Mr. and Mrs. Ardel Mack carrying a hand sledge hammer with a four-pound head. The Macks' daughters, Connie, age twelve, and Mary, age nine, were asleep in the house. At about 10:30 p. m. the previous evening defendant had seen Mr. and Mrs. Mack at a place where Mr. Mack played the guitar with a band and knew that they would not return home until about 2:00 a. m. Upon returning home, the Macks found Mary lying on the floor dead. Connie had disappeared. Her blankets were on the floor, and there was blood on her bed.

Defendant was arrested at his home at about 2:30 a. m., October 29, 1961. The arresting officers found bloodstains on the right rear fender, the right rear door handle, the rear seat, and the floor mat of defendant's automobile. The blood on the rear seat appeared to have been smeared by a body moving on the seat. Defendant's sledge hammer was removed from the trunk of his automobile. A chemist testified that the hammer had been heavily smeared with blood and had been washed.

At the time of his arrest, defendant was asleep in his bed, wearing only a pair of shorts. His lands were bloodstained, as were his shorts and his other clothes found on the floor of his room. A police chemist testified that there were semen stains on defendant's T-shirt, on the outside of his trousers, and on the shorts he was wearing when arrested.

At 7:00 p. m. on the day of his arrest, defendant admitted to police investigators that he struck Mary and Connie with the sledge hammer. He stated that he entered the Mack home 'with the intentions of scaring Connie Jean for the way she has been acting, snotty and smart-aleckie, and just to kind of get back at her for a lot of things she said. I went into the house through the side door. The house was dark and the door wasn't locked. So I went to the bedroom, flicked on the light and Connie Jean turned over and mumbled something and I shut the light off again, and I went over to shake her awake, and little Mary turned on the light, and I turned around with the intention of scaring her, and my hand went too far and I hit her with the sledge hammer. She went down, moaning, and Connie Jean started screaming, so I told her to be quiet, and I went like this (indicating) to hit her too, but my hammer just went right on and I hit her too; and I don't know, after that I don't know how many times I hit them three or four or five times apiece I don't know. They were moaning and screaming and I couldn't remember how many times I hit them.'

Defendant stated to the officers that he then picked up Connie and dropped her on the lawn, returning to the house for the hammer. After putting Connie's unconscious body on the rear floor of the car, defendant stated that he intended to go back for Mary, but panicked and drove away when he saw the lights of approaching automobiles. Shortly thereafter he stopped at a drainage ditch to clean the blood from Connie's head. 'When I opened the door her legs hung out. And the next thing I knew she was on the ground so I grabbed her by the hand and pulled her over to the side of that drainage ditch * * * so I could get some water to clean her off, and she just tumbled into the water, moaning loudly. * * *'

Defendant also stated to the officers that 'Between there (the drainage ditch) and * * * the house * * * I don't know where I stopped. I'm not sure in may mind, but I think I think I had intercourse with Connie I'm not sure.'

Connie's body was found face down in the drainage ditch downstream from the point at which defendant stated she had gone into the water.

Autopsies of the girls' bodies showed four separate injuries to Connie's head and five separate injuries to Mary's head, which were probably inflicted by the sledge hammer. Although drowning was the immediate cause of Connie's death, the injuries to her head would have been fatal. Mary's death resulted from injuries to the brain caused by multiple skull fractures. Since Connie had been carried downstream in rapidly moving water and had been in the water nine to ten hours, the pathologist was unable to state whether or not she had been sexually molested.

It was not disputed at the trial that defendant killed the two girls. The prosecution sought to prove that the killings were murders in the first degree on the ground that they were either wilful, deliberate, and premeditated, or occurred during the commission of burglary, rape, or an act punishable under Penal Code section 288. (Pen.Code, § 189.) There is no question of the sufficiency of the evidence to support the verdicts.

Defendant contends that the trial court erred in refusing to instruct the jury on the issue of manslaughter. Manslaughter is the unlawful killing of a human being without malice. Involuntary manslaughter is the killing without malice perpetrated 'in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection * * *.' (Pen.Code, § 192.) It was error to refuse the instruction if there is any evidence of manslaughter deserving of consideration. (People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281.)

In People v. Carmen, supra, we held that the defendant's statement that he had shot to frighten the victims but did not intend to kill or injure anyone and did not aim at them was evidence deserving of consideration and required the issue of manslaughter to be submitted to the jury. Defendant's statement to the officers goes farther. He stated that his original intention was to frighten Connie. When the light came on unexpectedly, he turned toward Mary with the intention of scaring her. His hand went too far and he struck her. Then he struck Connie who had awakened, screaming. Thereafter, he struck each of the girls three or four times. He offered no explanation for these subsequent blows. He did not take the stand during the trial on the issue of guilt. His statement alone would not warrant submitting the issue of manslaughter to the jury, for the jury could not reasonably infer from it an absence of malice aforethought. (Pen.Code, §§ 188 and 1105.)

There was other evidence of manslaughter, however, that was deserving of consideration. There was evidence that defendant ate no breakfast on Saturday, October 28, 1961; that he purchased six cans of beer about noon and twelve more about four o'clock; that he was drinking and intoxicated in the early afternoon; that by four-thirty or five o'clock he was 'feeling pretty high,' and that his eyes were bloodshot and his speech thick and slurred. Several witnesses testified that defendant appeared intoxicated when they observed him during the evening. At about 11:30 p. m. his stepfather drove him home because he was too drunk to drive. Defendant's wife testified that he appeared drunk when he arrived home; that he was 'awfully drunk' and staggering when he left home again about midnight. When he returned, his clothes were bloody, and he was glassy-eyed and unable to walk without her assistance.

Dr. Zonnis, a psychiatrist, testified that she examined defendant both in a normal state and while he was in an hypnotic trance and gave him neurological and electroencephalogram tests. The results of the neurological test were 'of questionable significance' and 'did not add up to any particular picture.' There was 'some evidence of abnormality of the (electroencephalogram) test.' Dr. Zonnis diagnosed defendant as a 'passive-aggressive personality, aggressive type,' explaining that this was a descriptive statement of his general personality configuration. 'A person who falls into this classification, by description, tends to be irritable, short-tempered, at times given to temper tantrums. He tends sometimes to harbor resentments to a pathological degree.' She diagnosed defendant as possibly suffering from organic brain disease of undetermined cause.

On the basis of her examination of defendant, Dr. Zonnis was of the opinion that defendant did not enter the Mack house with the intent to take life; that he did not enter with the intent to strike either of the girls; and that he did not enter with the intent sexually to molest either of the girls.

On cross-examination, Dr. Zonnis was asked her opinion as to whether defendant had at any time formed an intent to hit the girls with the hammer. It was her opinion, based upon her examination of defendant and in view of the fact that he was at least moderately intoxicated at the time, that he did not intend to strike or to injure them. Dr. Zonnis testified in explanation of defendant's statement to the investigating officers that 'being able to reconstruct what he has done does not necessarily mean to me that he knew what he was doing at the time.' He became aware that he had struck the girls only after the fact. Dr. Zonnis testified that because of defendant's intoxication 'there was a deficiency or disturbance of usual insight and judgment and very possibly a disturbance in motor control.'

The prosecutor questioned Dr. Zonnis with regard to defendant's intent at the time he struck each blow to the head of each of...