People v. Nance

• Decision Date: 24 May 1972
• Docket Number: Cr. 10058
• Citation: 102 Cal.Rptr. 266,25 Cal.App.3d 925
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William NANCE, Defendant and Appellant.

Page 266

102 Cal.Rptr. 266

25 Cal.App.3d 925

PEOPLE of the State of California, Plaintiff and Respondent, v. William NANCE, Defendant and Appellant.

Cr. 10058.

Court of Appeal, First District, Division 3, California.

May 24, 1972.

Hearing Denied July 19, 1972.

Kirby L. Boston, Spring, Tex., William H. Benz, San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen. of the State of Cal., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Joyce F. Nedde, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

HAROLD C. BROWN, Associate Justice.

Appellant was charged with and found guilty after a trial by jury of violating Penal Code section 459 (burglary) and Penal Code section 448a (arson). The jury also found that appellant was sane at the time of commission of both crimes.

The facts: During the night of October 12, 1970, appellant was driving from Santa Rosa to San Francisco with four other men. The car ran low on gas and the men decided to steal some fuel from the gas pumps at the Marin County Airport. However, the pumps were electrically operated, and they were unable to get any gas. Appellant and three of his companions then broke a window in the airport administration building and entered the premises. Their original purpose was to find the switch and turn on the gas pumps. During the time they were inside, the men stole candy, gum, the emergency transmitter, the tape recorder and the record player. Armstrong, one of the passengers in appellant's car, did not see appellant take anything, but he did see him set fire to the curtains in the company's office.

After his arrest, appellant told Inspectors Melovich and Bridges that as they were leaving he had felt an urge to start a fire and had lit the curtains. He had no idea of starting a fire before he entered the building and didn't know why he had done so. At trial appellant was asked to describe his feelings when he 'got the idea to start the fire.' To this appellant replied, 'I just get excited. . . . Just had the urge to start it. . . . I have also had the feeling to burn things just to see it burn.' Appellant stated that he has had that feeling as long as he could remember.

During the insanity phase of the trial, the defense introduced extensive testimony to the effect that appellant had set numerous fires both as a child and while married, and to the effect that the fires had a possible symbolic sexual connotation to appellant. Appellant testified as to the pressures he felt when setting the fire, and the sense of ease he felt immediately afterward. It was also demonstrated that appellant stole almost daily, mostly articles for which he had no use.

Two psychiatrists had examined appellant at the court's request. Dr. Kenneth Hayworth testified that appellant was sane when the fire was set in that he understood the nature and consequences of his act, and was able to distinguish right and wrong. In the doctor's opinion, appellant had never acted other than of his own volition and was not acting under an 'irresistible impulse' when he set the fire. Dr. Jamshid A. H. Bakhtiar testified that appellant was sane when he burglarized the building, but insane when he set the fire because he was acting under an impulse which destroyed his ability to differentiate between right and wrong. Dr. Dakhtiar admitted that appellant could at times set deliberate fires, and he indicated the airport fire could have been deliberate. The doctor stressed the pressures which overwhelmed appellant, suggesting that the setting of a fire was a stress remover.

The principal question presented is: May diminished capacity due to a mental defect be raised as a defense to the crime with which appellant was charged?

Since People v. Wells, 33 Cal.2d 330, 356, 202 P.2d 53, it has been the law in California that evidence of diminished mental capacity whether caused by intoxication, trauma or disease, can be used to show that a defendant did not have a specific mental state essential to the offense charged. The defense was first defined in homicide cases where it is usually involved. (E.g., People v. Castillo, 70 Cal.2d 264, 74 Cal.Rptr. 385, 449 P.2d 449; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677.) The effect of allowing a defendant in a homicide case to show that he did not entertain the specific mental state required by the crime charged is to allow a reduction of the charge to a lesser offense. Thus, a defendant incapable of premeditation may be convicted of murder in the second rather than the first degree. (See People v. Wolff, 61 Cal.2d 795, 40 Cal.Rptr. 271, 394 P.2d 959.) If the defendant could not harbor malice aforethought because of a mental illness or intoxication, the homicide cannot be an offense higher than manslaughter--voluntary manslaughter if the defendant is capable of forming intent to kill and involuntary manslaughter if not. (People v. Mosher, 1 Cal.3d 379, 389--390, 82 Cal.Rptr. 379, 461 P.2d 659; see also People v. Conley, supra, 64 Cal.2d 310, 323--324, 49 Cal.Rptr. 815, 411 P.2d 911.) If the incapacity of the defendant reaches a state where he acts unconsciously, a difference has been made between diminished capacity due to voluntary intoxication and that due to other causes. While unconsciousness is usually a complete defense to a criminal charge, in the case of voluntary intoxication it will not completely excuse a criminal homicide although it will allow a reduction to involuntary manslaughter. (People v. Anderson, 63 Cal.2d 351, 366, 46 Cal.Rptr. 763, 406 P.2d 43; People v. Coogler, 71 Cal.2d 153, 170, 77 Cal.Rptr. 790, 454 P.2d 686; see also People v. Mosher, supra, 1 Cal.3d 379, 391, 82 Cal.Rptr. 379, 461 P.2d 659.)

In non-homicide cases, the use of the defense of diminished capacity has been questioned on the ground that, contrary to its original purpose, it would furnish a complete defense to criminal responsibility and set up a new test of insanity. (See People v. Rodriguez, 272 Cal.App.2d 80, 85, 76 Cal.Rptr. 818; People v. Hoxie, 252 Cal.App.2d 901, 916, 61 Cal.Rptr. 37.)

Although the availability of the defense in non-homicide cases has been questioned, the California Supreme Court implicitly ruled in People v. Mosher, 1 Cal.3d Supra, 392, 82 Cal.Rptr. 379, 461 P.2d 659, that in cases of robbery, rape and burglary, upon a proper showing, a defendant is entitled to jury instructions that defendant's diminished capacity might rebut the specific intent necessary to commit such crimes. This was a case in which the prosecution advanced the felony-murder theory as to these crimes and where the offense could v. Graham, 71 Cal.2d 303, 314, 78 Cal.Rptr. v. Graham, 71 Cal.2: 303, 314, 78 Cal.Rptr. 217, 455 P.2d 153, also approved a diminished capacity instruction given to the jury where defendant was charged with murder and robbery in separate counts, not involving a felony-murder charge. The appellate courts have recognized the defense in cases involving forgery (People v. Gentry, 257 Cal.App.2d 607, 65 Cal.Rptr. 235) and battery (People v. Glover, 257 Cal.App.2d 502, 65 Cal.Rptr. 219). In all these cases, the defense has been available to negative a specific intent or mental state required by the offense. No case has been cited to us or found where the defense was used in the trial of a crime requiring only a general criminal mens rea. To the contrary, the Supreme Court has recently rejected the defense in the trial of a violation of Penal Code section 4501 which prohibits an aggravated assault by a state prisoner who is not undergoing a life sentence and which does not require a finding of malice. The theory of the defense was that the defendant's use of excessive force to defend himself was caused by uncontrollable rage due to mental defect or disease. (People v. Noah, 5 Cal.3d 469, 96 Cal.Rptr. 441, 487 P.2d 1009.)

In Noah, the Supreme Court rejected the contention that the diminished capacity defense was applicable and stated: 'Defendants' novel theory founders on the shoals of Penal Code section 21, which precludes negation of the general criminal intent of section 20 by evidence of any mental defect short of lunacy, idiocy, or insanity. Section 21 makes clear that an otherwise competent defendant who is not insane, a 'lunatic,' or an 'idiot,' is capable of achieving that general criminal intent required by section 20. It provides: 'The intent or intention (of section 20) is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity.' (Italics added.) Although the mental conditions of lunacy and idiocy are not necessarily the same as legal insanity (citation), that mental abnormality manifesting itself in conduct which defendants describe as the product of 'irresistible impulse' has never been judicially recognized as either 'idiocy' or 'lunacy.' To the contrary, irresistible impulse has been consistently rejected as a complete defense to crime in this state. (Citations.) As stated in People v. Gorshen, Supra, 51 Cal.2d 716, at page 727, 336 P.2d 492, at page 498, evidence of irresistible impulse 'is received not as a 'complete defense' negating capacity to commit any crime but as a 'partial defense' negating specific mental state essential to a particular crime. '' (People v. Noah, supra, 5 Cal.3d 469, 477--478, 96 Cal.Rptr. 441, 446, 487 P.2d 1009, 1014.)

The question before us narrows to a determination whether arson requires a 'specific mental state.' Cases have explained the mental element of the crime as follows: 'It is...