People v. Roy

Decision Date28 June 1971
Docket NumberCr. 4150
Citation95 Cal.Rptr. 884,18 Cal.App.3d 537
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas Lynn ROY, Defendant and Appellant.
OPINION

TAMURA, Acting Presiding Justice.

On an information charging him with three counts of murder (Pen.Code, § 187), defendant was acquitted on one count, found guilty of second degree murder on two counts, and sentenced to state prison on each of the two counts, sentences to run concurrently. 1

On the night of July 22, 1969, defendant and his wife attended a party at Daniel Machain's residence in Fontana. Mike and Vivian Cobern and Frank and Barbara Hubka were among the guests present. Daniel Machain, Mike Cobern and Frank Hubka were later to be the victims of the homicides with which defendant was charged. During the evening Vivian Cobern became intoxicated and went to one of the bedrooms to lie down. Machain later accused defendant of having 'raped' Vivian while she was 'passed out' in the bedroom and ordered defendant to leave the party. Defendant and his wife left and, according to their testimony, arrived home about 12:30 a.m. and went directly to bed, fully clothed. Other evidence indicated defendant left the party some time after 1:00 a.m.

After defendant left the party, Cobern, Machain, and Hubka decided to go to defendant's house to 'talk' to him about the alleged rape. The three, accompanied by their wives, drove to defendant's house in Cobern's Camaro. They arrived about 1:30 a.m. and parked in defendant's driveway. According to the wives, just as they arrived they saw defendant enter the house. They testified the three men left the car, went to the front porch, knocked, and were admitted by defendant's wife.

Defendant and his wife were the only surviving witnesses to the events which occurred within the house. Defendant's wife testified the first thing she recalled was being dragged into the living room by Machain and Cobern and of seeing defendant fighting a third man. She testified that Machain and Cobern were shouting they were going to rape and kill her, that defendant ran to a back room to get his shotgun, that Hubka ran out of the house through the back door, and that Cobern pursued defendant. Defendant testified just as he got his gun and shells he heard a window crash and that he fired through that window, and that by this time the others had left the house.

The versions of the occurrences outside the house were somewhat confused and conflicting. However, there was evidence that Machain was holding defendant's wife by the throat and appeared to be forcing her to an open door of the Camaro. Defendant pointed his gun at Machain and ordered him to release his wife. Machain whirled defendant's wife away from him and appeared to move forward towards defendant whereupon defendant shot him. Cobern ran to the other side of the car saying, 'We're going, we're going.' Defendant bent over Machain's body shouting, 'You want some more, you want some more.' He then turned his gun toward Cobern and shot him. Hubka was crouching near the other side of the car; defendant shouted, 'Come on, come on,' and shot him also. The victims all died instantly.

Immediately following the shootings defendant got into the Camaro, pushed Cobern's body out of the car with his foot, and drove off. A neighbor who witnessed the shootings from his house flagged a passing patrol car. During the ensuing high speed chase defendant's car went into a spin and stalled; he was surrounded by police and ordered out of his car with his hands up. He exited with the shotgun in his hands saying, 'I was trying to protect my wife; they were trying to rape her. I killed two of the sons of bitches; I hope I killed all of them,' and threatened the police. He was eventually subdued and taken into custody.

The jury found the defendant not guilty as to the victim Machain but guilty of second degree murder as to Cobern and Hubka.

Defendant assigns numerous grounds for reversal but, as we view them, his principal contentions are (1) errors and inadequacies in the instructions, particularly as they relate to the defense of diminished capacity and unconsciousness; (2) erroneous evidentiary rulings; and (3) insufficiency of the evidence to support the convictions.

I

Defendant's main attacks on the judgment relate to claimed errors and inadequacies in the instruction on diminished capacity. There was evidence that defendant consumed a considerable quantity of beer and hard liquor at the party and was 'pretty well intoxicated.'

The court rendered the entire Conley instruction on diminished capacity (People v. Conley, 64 Cal.2d 310, 324, fn. 4, 49 Cal.Rptr. 815, 411 P.2d 911), omitting portions dealing with first degree murder, with which defendant was not charged, and references to mental defect or disease. Defendant urges (1) he was entitled to an instruction on diminished capacity from mental disease or defect and (2) the instruction as rendered erroneously precluded the jury from considering a verdict of involuntary manslaughter unless it found that defendant was unconscious due to voluntary intoxication.

Diminished capacity due to mental illness or defect.

The court did not err in failing to include mental disease or defect in the diminished capacity instruction. There was no evidence 'deserving of consideration' to alert the trial court that defendant was claiming diminished capacity by reason of mental illness or defect.

Defendant directs our attention to his testimony that about a month earlier he suffered a 'concussion' for which he was hospitalized for two days when an axle struck his forehead while he was repairing a car and that at the party he felt his head 'snap' while lifting his wife onto a bed. The record discloses that over the People's objection the defense was permitted to elicit from defendant hearsay testimony as to what the doctor told him when he suffered the concussion. Defense counsel stated the evidence was offered for the limited purpose of providing 'an explanation of what defendant did next,' that is, to explain what defendant did after his head allegedly 'snapped.' Defendant testified that at the hospital 'they' told him one method of diagnosing a 'concussion' was to examine the pupils of the eyes to see if one was larger than the other so that when his 'head snapped,' he went to the bathroom to check his eyes and that it was as he was leaving the bathroom that Machain asked him what he was doing in the wrong room. (The bathroom was near the bedroom occupied by Vivian.) There was no evidence that defendant suffered a mental defect from the 'concussion' or any ill effects from the fact that he felt his head 'snap.' In fact, defendant testified that when he checked his eyes he found them to be normal.

A diminished capacity instruction on the court's own motion is required only where there is evidence 'deserving of consideration' sufficient to alert the trial judge the defendant is relying on that defense. (People v. Small, 7 Cal.App.3d 347, 356, 86 Cal.Rptr. 478; People v. Cram, 12 Cal.App.3d 37, 41, 90 Cal.Rptr. 393; see People v. Tidwell, 3 Cal.3d 82, 85--86, 89 Cal.Rptr. 58, 473 P.2d 762; People v. Graham, 71 Cal.2d 303, 316, 78 Cal.Rptr. 217, 455 P.2d 153.) The evidence reviewed did not require the court, Sua sponte, to include mental disease or defect in the diminished capacity instruction. Nor did evidence that after the killings defendant appeared 'excited,' 'dazed,' 'extremely tired,' and had a bowel movement in his pants require such instruction, Sua sponte. (See People v. Glover, 257 Cal.App.2d 502, 507, 65 Cal.Rptr. 219)

Defendant's further contention that he was entitled to a Sua sponte diminished capacity instruction based on a traumatic injury is equally void of merit. Although defendant testified that while he was fighting his assailant he was hit on the head, there is no evidence the blow caused a traumatic injury. Defendant testified he immediately got up and continued to fight. At trial, he was able to recount in detail the events which followed. The facts in the instant case are unlike those in People v. Alvarez, 4 Cal.App.3d 913, 84 Cal.Rptr. 732 (defendant had been stabbed and was bleeding profusely) and People v. Newton, 8 Cal.App.3d 359, 87 Cal.Rptr. 394 (defendant had been shot in the abdomen).

Diminished capacity due to intoxication.

Defendant attacks the following paragraph of the Conley instruction on involuntary manslaughter which the court rendered in the instant case:

'Involuntary manslaughter is a killing in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Thus, if you find that the defendant killed while unconscious as a result of voluntary intoxication and was therefore unable to formulate a specific intent to kill or to harbor malice, his killing is involuntary manslaughter. The law does not permit him to use his own vice as a shelter against the normal legal consequences of his act. An ordinary and prudent man would not, while in possession of a dangerous weapon, permit himself to reach such a state of intoxication as to be unconscious of his actions.'

Defendant complains that the instruction was erroneous because it required proof of unconsciousness before the jury could consider a verdict of involuntary manslaughter. It is urged that People v. Mosher, 1 Cal.3d 379, 390--391, 82 Cal.Rptr. 379, 461 P.2d 659, requires a supplementary involuntary manslaughter instruction, unconditioned by a finding of...

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