People v. Mosher, Cr. 11529

Citation461 P.2d 659,1 Cal.3d 379,82 Cal.Rptr. 379
Decision Date12 December 1969
Docket NumberCr. 11529
CourtUnited States State Supreme Court (California)
Parties, 461 P.2d 659 The PEOPLE, Plaintiff and Respondent, v. Merle Mark MOSHER, Defendant and Appellant.

Carl B. Shapiro, Fairfax, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., and John T. Murphy, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

On September 28, 1966, the Grand Jury of Alameda County indicted the defendant Merle Mark Mosher for the murder of Edith Christie (Pen.Code, § 187) and charged defendant with a prior conviction of statutory rape in 1960 (Pen.Code, § 261, subd. 1). Defendant admitted the prior conviction and pleaded not guilty and not guilty by reason of insanity to the murder charge.

In a separate proceeding the trial court found the defendant mentally competent to stand trial. The jury found the defendant guilty of murder in the first degree, held the defendant sane at the time of the offense, and fixed the penalty at death. The appeal to this court is automatic. (Pen.Code, § 1239, subd. (b).)

We shall point out why we have concluded that the judgment convicting the defendant of first degree murder must be reversed because the trial court inadequately instructed the jury as to voluntary and involuntary manslaughter and the specific intent required for felony murder in the context of Mosher's diminished capacity defense. (People v. Graham (1969) 71 A.C. 320, 331--334, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Conley (1966) 64 Cal.2d 310, 318--326, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Modesto (1963) 59 Cal.2d 722, 729--731, 31 Cal.Rptr. 225, 382 P.2d 33; see generally, People v. Ketchel (1969) 71 A.C. 659, 665, 79 Cal.Rptr. 92, 456 P.2d 660; People v. Castillo (1969) 70 A.C. 274, 279--282, 74 Cal.Rptr. 385, 449 P.2d 449.)

Particularly, the judgment must be reversed because the court did not properly instruct the jury as to the elements of voluntary manslaughter in a case in which the defendant asserted the defense of diminished capacity. The trial court instructed the jury on voluntary manslaughter using only the language of subdivision 1 of Penal Code section 192: 'upon a sudden quarrel or heat of passion .' In so limiting the instruction the court erred, for, as we have previously noted, the statutory requirement is 'the unlawful killing of a human being without malice.' (Italics added.) (Pen.Code, § 192 .) Thus, in order to give effect to the statute when evidence of diminished capacity has been introduced, the jury must be instructed that if it finds the defendant could not harbor malice aforethought because of a mental disease, defect, or intoxication the homicide cannot be an offense higher than manslaughter. (People v. Conley, supra, 64 Cal.2d 310, 318, 49 Cal.Rptr. 815, 411 P.2d 911.) 1

Finally, the trial court erred in failing to instruct the jury that defendant's diminished capacity might rebut each of the specific kinds of intent necessary to a finding of a killing in the perpetration of or an attempt to commit rape, burglary, or robbery, and hence, might rebut the prosecution's felony-murder theory of first degree murder. (People v. Ketchel, supra, 71 A.C. 659, 665, 79 Cal.Rptr. 92, 456 P.2d 660.)

The failure to give such instructions in the light of the diminished capacity defense deprived defendant of his 'constitutional right to have the jury determine every material issue presented by the evidence' and requires the reversal of defendant's murder conviction. (People v. Modesto, supra, 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 230, 382 P.2d 33, 38.) We do not find the failure to give such instructions to be invited error. (See People v. Graham, supra, 71 A.C. 320, 78 Cal.Rptr. 217, 455 P.2d 153.)

We point out the lack of merit in defendant's remaining contentions.

1. The Facts

The homicide occurred during the early morning hours of August 2, 1966, in an apartment in Oakland where the decedent, Mrs. Edith Christie, lived alone. The evidence against defendant is exclusively circumstantial.

On August 1, 1966, Mrs. Christie and her niece, Mrs. Brooker, had lunched and then shopped in Oakland. About 4:30 p.m. Mrs. Brooker returned Mrs. Christie to her apartment. At 3:45 a.m. on August 2, 1966, a taxi driver received a call to pick up Mrs. Christie at her apartment. Mrs. Christie walked unsteadily toward the taxi and the driver assisted her to the vehicle and drove her to Peralta Hospital. Dr. Willard Peterson, Mrs. Christie's personal physician for seven years, arrived at Peralta Hospital sometime between 4 and 4:30 a.m. He observed a large hematoma about her face; she was gagging. He had never previously treated her for such physical injuries. She died in surgery that morning at 9 a.m.

A pathologist examined the deceased at the coroner's office at 2:30 p.m., August 2, 1966. He noted abrasions and cuts about the head, and injuries to the body. Numerous ribs had been fractured. The injuries were consistent with a beating by fists and feet and had not been caused by a fall. The pathologist concluded that the cause of death was a subdural hemorrhage of the brain due to trauma.

At the time of the death defendant was 30 years old. He had the equivalent of three years of college education. He had worked his way through the first few years of college at part-time night jobs. Then he had fallen behind in his studies, his grades had suffered, he had changed his major from music to education, and he had dropped out of school. He was involved in two serious automobile accidents in August and December 1960. After each accident he had remained unconscious for several hours. As a result of two barroom brawls defendant, in November 1961, had been committed for psychiatric care to Mendocino State Hospital where he remained until April 1962. Thereafter he continued on home-leave status until December 1963.

After his release from the hospital defendant held several jobs selling encyclopedias and kitchenware. In July 1966 the encyclopedia company suspended defendant for two or three weeks. Defendant's supervisor followed the customary practice in such cases, lending defendant his salesman's identification card so that defendant could continue to work during the period of suspension. According to the testimony of the supervisor and his wife, in addition to defendant's setback at work defendant was in the process of breaking up his relationship with his fiancee, Miss Marlene Norman. Defendant began to appear morose and depressed, particularly as a result of the collapse of the engagement. On August 1 the supervisor gave defendant some $50 as commission for sales defendant had theretofore transacted. The supervisor went to pick up defendant at 5 p.m. to start work, but defendant appeared to be disoriented and did not want to work that day.

Defendant ate dinner at his apartment about 9 p.m. and at about 11:30 p.m. walked to a neighborhood bar. Defendant visited several bars that evening and consumed about five or six drinks of whiskey before closing time at 2 a.m.; after the automobile accidents in 1960 defendant had become a heavy drinker. When subsequently interrogated he could not remember anything of the night's events except that he had started walking home and while on the street two Oakland police officers had questioned him.

Mrs. Darnall lived in an apartment building about three blocks from Mrs. Christie's apartment. About 3:30 a.m., August 2, 1966, she awoke as a result of a pounding on the back door of her apartment. She heard footsteps going down the stairs and she saw defendant at the foot of the stairs. She asked him what he was doing there and he replied that he was looking for 'Marlene.' Mrs. Darnall informed him that there was no one by that name in the building. After some dispute with defendant concerning his wanting to use a telephone, Mrs. Darnall slammed her door shut; she got her only lighted view of defendant as he walked down the front walk, some 25 feet away. Mrs. Darnall's daughter phoned the police, asking them to investigate the prowler. Defendant visited four other persons in the area in a similar fashion during those same early morning hours.

In response to the phone call from Mrs. Darnall's daughter, Oakland Police Officers Gardner and Price arrived about 3:40 a.m. to investigate the prowler report. Mrs. Darnall described the man she had seen as white, heavy set, broad-shouldered, and of an average height of about 5 feet 9 or 10 inches. She said he was wearing a dark suit and a white shirt and had taken off his coat. She saw no bloodstains on his shirt and she could not remember whether he had worn a tie. The officers commenced a systematic search on foot, checking backyards, stairways, and areas behind the buildings. At 4 a.m., and a few blocks away, they observed a man matching Mrs. Darnall's description of the visitor, except that he was wearing a suit coat. Sergeant Price ordered the man, who was defendant, to halt. When asked what he was doing, defendant replied that he was going home to Fairmont Street. Fairmont Street lay quite far from where the officers found defendant.

The officers commenced a pat-down search for weapons. Sergeant Price felt in the suspect's lower left coat pocket 'a sharp object like a knife blade.' The officer pulled a gold watch with bracelet from defendant's pocket and asked defendant where he got it. Defendant indicated that he did not own the watch, but refused to say where he had obtained it. The officers also found a large ring of keys and a wallet with identification for Mark Mosher and for Mr. Tiner, defendant's supervisor. There was a bloodstain on the center panel of defendant's shirt, his hands were cut, and his breath had an odor of alcohol. The officers placed defendant under arrest for suspicion of burglary, handcuffed him, and took him to Mrs. Darnall's apartment for identification. Mrs. Darnall...

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