People v. Moore

• Decision Date: 10 January 1968
• Docket Number: Cr. 13027
• Citation: 257 Cal.App.2d 740,65 Cal.Rptr. 450
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Louis MOORE, Defendant and Appellant.

Page 450

65 Cal.Rptr. 450

257 Cal.App.2d 740

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Louis MOORE, Defendant and Appellant.

Cr. 13027.

Court of Appeal, Second District, Division 5, California.

Jan. 10, 1968.

As Modified on Denial of Rehearing Feb. 2, 1968.

Caryl Warner, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Stanton J. Price, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

After a court trial defendant was convicted of murder in the second degree. On appeal, as below, he argues that uncontradicted evidence of diminished capacity due to mental illness shows him to be guilty of manslaughter only. These are the facts:

Defendant was born in 1931. He quit school at the age of seventeen. After doing various odd jobs he entered the army. He was assigned to a military fire department for a couple of years and spent eight months in Korea. He received an honorable discharge. He then went to work as a government security guard. He quit and joined the fire department in Troy, New York, his home town. There he became convinced that other firemen were 'ganging up' on him. In 1955 he was admitted to the Veterans Administration Hospital in Albany, New York with complaints of nervousness and tightening of the stomach 'due to being picked on by his fellow employees.' ¹ He was discharged on May 6, 1955, with the following diagnosis: 'Schizophrenic Reaction, acute, paranoid type in partial remission. Treated, improved.'

On October 10, 1963, he again entered the Veterans Administration Hospital in Albany. His then illness was summarized as set forth in the footnote. ² The hospital record contains the following evaluation: 'The patient is mentally clear and properly oriented. He becomes tearful when he speaks of his confusion and his lack of accomplishment. He speaks despairingly of himself at all times and insists that his plight is all his own fault. He states repeatedly that it is impossible for him to express himself so that anyone else will understand what he means. On admission he seemed definitely paranoic in his ideas that an employer was openly sadistic in his treatment of him which precipitated one of his hospitalizations. However this has been the only manifestation of paranoia elicited; he states merely that people know he is mixed up and he knows he is mixed up and that people avoid him because of this.'

After four days in the hospital defendant began to complain of 'tightness' in his stomach. This was treated and disappeared. In conferences with a therapist he reported that he found his home town of Troy depressing. He wanted to go to the west coast where he had worked before. Early in January he received an offer of a room from a friend in California. He was discharged on January 8, 1964. The final diagnosis on that discharge was 'Schizophrenic Reaction, paranoid type with anxiety, treated, improved.'

Although, as defendant told one of the examining psychiatrists, 'he has been carrying a gun for protection because people pick on him,' defendant's record contains no evidence of any prior acts of violence or tendencies in that direction. His only brush with the law was an arrest in New York in 1952 for carrying a gun.

The friend in California who had offered him a room was one Douglas D. Carmack, whom defendant had met during an earlier stay in this state. Defendant traveled to California to join Carmack and on the way he acquired a pistol.

While defendant stayed with Carmack he felt depressed. He was again having stomach problems. He kept vomiting and could not hold his food down. On January 30 he was thinking about suicide. He told Carmack that he wanted to return to the hospital. Carmack tried to talk him out of it. Defendant then went into the bathroom, loaded his gun, returned to the room where Carmack was lying on a bed and emptied the gun in Carmack's direction. Several bullets entered Carmack's body and he eventually died.

Defendant, clad in underwear and a torn bathrobe, ran out into the street calling for help. He encountered the caretaker of the apartment house. Defendant shouted 'I just shot a guy.' The caretaker said: 'For God's sake did you shoot Carmack?' Defendant replied: 'Yep, I shot him. I am sorry, but I shot him.'

Officer Taylor of the Long Beach Police Department encountered defendant sitting on the steps in front of the apartment house still clad in his underwear and robe. Taylor asked him what happened. Defendant said: 'I just shot Doug.' The officer then asked him: 'Did you kill him?' Defendant answered: 'Yes I did.' ³

The preliminary examination was held on February 6, 1964. The information charging defendant with murder was filed in the superior court on February 18. On February 21 defendant pleaded 'not guilty' and 'not guilty by reason of insanity.' Pursuant to section 1027 of the Penal Code the court appointed Doctors Nielsen and Abe to examine defendant. In the meanwhile defendant had been hospitalized in the Los Angeles County Jail Hospital. His stay was stormy. When admitted he was screaming and hallucinating, 'audio and visual.' For self-protection he was put in a padded cell. The next day he started to eat his faces. He slept on the floor. The following day he smeared his faces all over himself and on the walls of his cell. He was treated with thorazine and after several other episodes gradually became more quiet and cooperative.

Doctor Nielsen reported to the court on March 3, 1964. His summary was as follows: 'The defendant is a chronic schizophrenic and is dangerous. He was insane at the time of the commission of the crime and he is insane at the present time.' Doctor Abe's report is dated April 12, 1964. His conclusion is as follows: 'Defendant probably was legally sane at the time of commission of offense. Although difficult to ascertain, defendant possibly did not form intent in view of his prior history of mental illness and his unstable paranoid personality. Defendant, however, appears to have known that he did wrong.'

Before the case was called for trial on June 3, 1964, defendant was also examined by the only psychiatrist who later testified at the trial, Doctor Kurt Fantl. Doctor Fantl's conclusion was that defendant was insane at the time of the homicide and at the time of the doctor's examination on May 15.

On the basis of these reports the court, on June 3, expressed a doubt concerning defendant's then sanity. (Pen. Code, § 1368.) A hearing was set for June 5. On that date the court found that the defendant was not capable of cooperating with his attorney and he was duly committed to the state hospital at Atascadero.

In December, 1965, defendant, in propria persona, filed a petition for a writ of habeas corpus. In essence he contended that he was then sane. A writ was issued, returnable January 7, 1966. On that day, two more physicians, Doctors Bielinski and Tatunjian were appointed to examine defendant pursuant to section 1368--not 1027--of the Penal Code. Doctor Tatunjian, by report dated January 25, found him to be sane then and at the time of the offense. ⁴ On February 3, 1966, defendant was found presently sane and after various continuances at defendant's request, trial actually started on May 31.

By stipulation the People's case was submitted on the transcript of the preliminary hearing and some additional testimony. The only defense witness was Doctor Fantl.

Doctor Fantl had spent the entire morning of May 15, 1964, with defendant and another two and one-half hours just before testifying on June 2, 1966. Admittedly his testimony is based on his acceptance of defendant's version of the incident. ⁵ This, he reported as follows: 'He describes the incident as to him an entirely unexplainable event. He says that he absolutely had no reason to kill Doug, that Doug was his only friend. Doug had never offended him. Doug had never done anything to hurt him. There was never any quarreling. There was never any difficulty. That this particular day when the incident occurred, he was in very severe pain. He had very severe pain in his stomach. That he was distraught. That his mind kept racing back and forth. And suddenly, he has no idea for what reason and why, he got up, went into the bathroom, loaded his gun and started shooting. He claims that it was not until after he heard the noise of the gun, the discharge of the gun that he actually realized what he had been doing. He claimed that he had absolutely no motive. That he was terribly upset when he saw what he had done. That he immediately ran downstairs yelling for help. That he was so upset that he didn't even bother to put on any clothing. He claims that he did not know at the time whether he had killed the man but that he did not really find that out until the following day.'

In Doctor Fantl's opinion defendant, 'when he did what he did, he was reacting. He was not thinking. He was not deliberating. He was simply acting like a sleepwalker would act or a person under hypnosis.'

According to the witness, schizophrenia is today thought to be an illness with a hereditary chemical basis. The adrenal glands produce poisonous chemicals which in turn cause 'disturbance in perception so that a person is unable to perceive the world the way we perceive it.' The production of these chemicals is more marked under stress. Under such circumstances schizophrenics 'are living in a nightmare from which they cannot wake up.' In the doctor's opinion defendant did not premeditate, did not deliberate, did not even intend to injure the deceased. He was in a fugue state, a condition of automotism, which the doctor also described as a 'state of altered consciousness.' ⁶

The People offered no evidence bearing directly on the issue of diminished capacity. After argument and discussion with the court defendant was found guilty of murder in the second degree.

On the...