People v. Tidwell, Cr. 12201

Decision Date28 August 1970
Docket NumberCr. 12201
Citation89 Cal.Rptr. 58,3 Cal.3d 82
CourtCalifornia Supreme Court
Parties, 473 P.2d 762 The PEOPLE, Plaintiff and Respondent, v. Robert Wayne TIDWELL, Defendant and Appellant.

William H. Lally, Sacramento, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and Jack R. Winkler, Deputy Attys. Gen., for plaintiff and respondent.

PER CURIAM.

Defendant and his brother, William Tidwell, were indicted for the murders of Jesse Levoy DeForest, Mary Jeannette DeForest and Keith Eugene Utterback. Following separate trials by jury, both brothers were convicted of murder in the first degree on all three counts and sentenced to death. Defendant's motions for a new trial and for reduction of the penalty were denied, and defendant's automatic appeal is now before us. (Pen.Code, § 1239, subd. (b).)

As set forth in People v. William Tidwell, Ante, page 44, we have concluded that the trial court improperly denied the joint motion of defendant and his brother for a change of venue from Lassen County. Accordingly, the convictions of first degree murder entered against defendant must be reversed.

We have also concluded that the convictions must be reversed because the trial court inadequately instructed the jury as to voluntary and involuntary manslaughter and felony murder in the context of defendant's diminished capacity defense. For the guidance of the trial court on retrial, we discuss that issue here.

At trial, defendant raised the defense of diminished capacity by testifying that he was ordinarily a nondrinker, and had never before been intoxicated; that on the day of the murders, he had consumed varying quantities of wine, beer and gin; and that he become drunk, fell asleep, and had only a vague recollection of a naked woman (Mrs. DeForest's body was naked when discovered), of hearing a shot, and of his brother taking a knife from him. Although much of the foregoing evidence was contradicted by a confession defendant made to police officers on August 25, 1967, the evidence was at least sufficiently 'deserving of consideration' (People v. Graham, 71 A.C. 320, 333, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Modesto, 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 382 P.2d 33), to have required instructions which would have fully presented the defense of diminished capacity to the jury.

The trial court properly instructed the jury that diminished capacity may prevent one from forming any of the specific mental states which are essential elements of murder, and may prevent premeditation, malice, willfulness, or deliberation which are necessary to a finding of murder in the first degree.

The trial court also instructed the jury on the elements of first and second degree murder in accordance with Penal Code sections 187--189, and informed the jury that it could not find defendant guilty of murder in the first or second degree if it determined that the element of malice was rebutted by evidence of defendant's diminished capacity.

However, the court failed to instruct the jury regarding voluntary manslaughter, thereby excluding the jury from considering manslaughter as the offense for which it should find defendant guilty if it determined that malice was rebutted by evidence of defendant's intoxication. The court's omission was error (People v. Castillo, 70 Cal.2d 264, 269--271, 74 Cal.Rptr. 385, 449 P.2d 449; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911), and the error was prejudicial per se since defendant was thereby denied a jury trial on all of the issues presented by the evidence (People v. Mosher, 1 Cal.3d 379, 390, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Modesto, supra, 59 Cal.2d 722, 730--731, 31 Cal.Rptr. 225, 382 P.2d 33).

The trial court also erred in failing to instruct the jury on the aspects of involuntary manslaughter in the context of a diminished capacity defense. As stated in People v. Graham, Supra, 71 A.C. 320, 333--334, 78 Cal.Rptr. 217, 225, 455 P.2d 153, 161: 'Intoxication may so diminish a person's mental capacity that he is unable to achieve a specific state of mind requisite to any offense; yet if the intoxication is voluntarily induced, it can never excuse homicide. (Citation.) Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.'

If, upon retrial, there is evidence which indicates that defendant was unconscious at the time of the offenses due to voluntary intoxication, the trial court should instruct on involuntary manslaughter as specified in People v. Graham, Supra, 71 A.C. 320, 334, footnote 4, 78 Cal.Rptr. 217, 455 P.2d 153. In addition, if there is evidence which indicates that defendant was unconscious for reasons outside his control, the trial court should instruct on unconsciousness. (Pen.Code, § 26, subd. 5; People v. Mosher, Supra, 1 Cal.3d 379, 391, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Wilson, 66 Cal.2d 749, 761, 59 Cal.Rptr. 156, 427 P.2d 820.)

The trial court instructed the jury on the felony-murder doctrine in the context of 'the perpetration or attempt to perpetrate robbery or burglary,' and defined the crimes of robbery and burglary, and the specific intent required to establish either crime. However, the trial court failed to instruct the jury that defendant's diminished capacity might rebut the specific intent required for the perpetration or attempt to perpetrate robbery or burglary, and therefore might prevent the jury from finding defendant guilty of first degree murder under the felony-murder doctrine. Such an instruction is required whenever defendant makes a sufficient factual showing of a diminished capacity which would prevent him from forming the requisite specific intent which is a necessary element of the felony charged in a felony-murder prosecution. (People v. Mosher, Supra, 1 Cal.3d 379, 391--393, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Ketchel, 71 A.C. 659, 665, 79 Cal.Rptr. 92, 456 P.2d 660; People v....

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  • People v. Frierson
    • United States
    • California Supreme Court
    • August 31, 1979
    ... ... (E. g., People v. Tidwell (1970) 3 Cal.3d 82, 87, 89 Cal.Rptr. 44, 473 P.2d 748; People v. Mosher (1969) 1 Cal.3d 379, 391-393, 82 Cal.Rptr. 379, 461 P.2d 659.) He reasons ... ...
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    • California Court of Appeals Court of Appeals
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    • October 1, 1973
    ...approved in People v. Carmen (1951), 36 Cal.2d 768, 773, 228 P.2d 281, and has been uniformly followed. (See People v. Tidwell (1970), 3 Cal.3d 82, 86, 89 Cal.Rptr. 58, 473 P.2d 762; People v. St. Martin (1970), 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390; People v. Wilson (1967), 66 ......
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    • California Court of Appeals Court of Appeals
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    ...on the charged crime. A requested instruction by defendant must be given where evidence exists on that issue. (People v. Tidwell, 3 Cal.3d 82, 86, 89 Cal.Rptr. 58, 473 P.2d 762; People v. Stevenson, 79 Cal.App.3d 976, 985, 145 Cal.Rptr. 301.) Here, the trial court properly refused the proff......
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