Opinion
For Opinion on Hearing see 119 Cal.Rptr. 225, 531 P.2d 793
Opinion on pages 450-459 omitted.
HEARING GRANTED
[114 Cal.Rptr. 223]David E. Kenner, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.
COMPTON, Associate Justice.
Defendant was charged in an information filed December 17, 1971 by the District Attorney of Los Angeles County with the crime of murder. He pleaded not guilty and not guilty by reason of insanity. In May of 1972, a trial was commenced but pursuant to Penal Code section 1368 defendant was found to be presently insane and proceedings were suspended for some four months during which he was committed to Atascadero State Hospital.
Upon a later finding that defendant had regained his sanity, criminal proceedings were reinstated and in a bifurcated jury trial defendant was found guilty of murder in the second degree and sane at the time of the commission of the offense.
FACTS
During the afternoon of November 23, 1971, defendant and one Jim McEever went to the Foothill Division of the Los Angeles Police Department and informed the detective on duty that defendant's Uncle Edward Hunt had solicited him, the defendant, to join in a plot to murder McEever. According to defendant his Aunt Rose Hunt, the victim in this case, was also aware of the plan to kill McEever. After discussing this matter with police, defendant and McEever departed.
At about 1:00 a. m. the following morning defendant walked into the Foothill Division station and informed the desk officer that he had just shot Rose Hunt. He handed the officer a gun and some ammunition. An officer was dispatched to the Hunt residence where he discovered the body of Rose Hunt lying on the floor of her bedroom. She had been shot five times. The shots were fired at a distance of at least two to three feet. Rose Hunt was 57 years old and described as thin and frail and weighing about 100 lbs.
In a statement to the police, which statement was placed in evidence by the People, [114 Cal.Rptr. 224] defendant recounted the background of the event. He stated that he was living with his aunt and uncle. He was quite upset at the plan to kill McEever. The aunt, Rose Hunt, had acquired a gun and ammunition. He had removed the gun and ammunition from the place where she kept it. During the evening of November 23, 1971, he had an argument with his aunt and threatened to go to the police and inform them about the proposed murder of McEever.
In the course of this discussion defendant took the gun in his hand and stood at the bedroom door. The victim was seated on the bed. Then in defendant's words 'She was getting up off the bed--and started--she was going--we went into a, you know, started like in a run toward me and everything exploded in my head and that's all I know.' Later defendant said 'Like I said she went into a rage and come up out of that bed and I was--she saw I was all up tight and upset anyway and she come up like that. Like I say--Bang Bang--I don't know she was just coming at me and I let it go.'
According to defendant he was afraid of his aunt. He didn't intend to kill her. He was upset and confused. Defendant told of having had previous mental difficulties.
When defendant appeared at the police station he was calm, sober and coherent. The murder weapon was a .38 caliber double action revolver with a fairly heavy trigger pull.
At the trial defendant testified that his Uncle Ed Hunt had killed the victim and that he, the defendant, had confessed in order to cover for the uncle. He denied that he had in any way participated in the homicide.
THE TRIAL OF THE NOT GUILTY PLEA
At the close of the People's case defendant moved for an acquittal of the crime of murder pursuant to Penal Code section 1118.1. That motion was denied. The defense then proceeded. On appeal defendant assigns as error the denial of his motion for acquittal, arguing that the People's evidence disclosed a homicide no greater than manslaughter.
Penal Code section 1105 provides: 'Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.'
Relying on People v. Collins, 189 Cal.App.2d 575, 11 Cal.Rptr. 504, defendant contends that the People were 'bound by' his statements which were offered in evidence in the case in chief. These statements he contends conclusively establish the absence of the malice required for the crime of murder.
'The prosecution, having presented as a part of its case the statement of defendant as to how the killing occurred, is bound by that evidence in the absence of proof to the contrary.' (Emphasis added.) (People v. Collins, supra, at 591, 11 Cal.Rptr., at 515.)
Defendant's testimony at the trial, which was in direct conflict with the statement he gave to the police, by that very conflict dissipated the effect of the Collins rule and permitted the inference of malice to be drawn from the defendant's conflicting versions of the killing. That conflict would constitute 'proof to the contrary' of defendant's original version.
Even before the defendant testified, however, the evidence offered by the prosecution was sufficient to establish that defendant was guilty of murder and the trial court quite correctly refused to reduce the crime to manslaughter.
That evidence disclosed that the defendant as the result of an argument, fired five shots from a double action revolver into an unarmed, 100 lb., 57 year old woman in the bedroom of her own home. His conduct after the event was calm and rational. [114 Cal.Rptr. 225] His accounting of the happening was lucid and coherent and his one hour statement to the police when read in its entirety evidences no hint of a disordered mind.
Among other things, defendant admitted in his statement to loading the murder weapon sometime prior to the confrontation with the victim. He admitted that he was physically capable of subduing the victim without the use of deadly force but stated that he felt he would not be able to leave the house and go to the police without a struggle.
In summary, nothing in the evidence with the exception of defendant's initial bald assertion that he did not intend to kill the victim, suggests any justification or excuse, legal provocation, lack of mental capacity or any other mitigation of the crime. Thus the presumption of Penal Code section 1105 operates to make the killing murder. Further, the evidence clearly establishes implied malice. (See People v. Torres, 214 Cal.App.2d 734, 29 Cal.Rptr. 706; People v. Butts, 236 Cal.App.2d 817, 46 Cal.Rptr. 362; People v. Coleman, 50 Cal.App.2d 592, 123 P.2d 557; People v. Cook, 15 Cal.2d 507, 102 P.2d 752; People v. McAuliffe, 154 Cal.App.2d 332, 316 P.2d 381.)
THE SANITY TRIAL
Several court appointed psychiatrists offered conflicting opinions as to defendant's sanity. Defendant makes no contention that the evidence does not support the jury's verdict finding him sane at the time of the commission of the offense.
Defendant does contend that it was error to permit certain doctors to testify for the prosecution. He also argues that the evidence produced at the sanity trial, which evidence touched on his ability to harbor malice, should have led the court on a motion for a new trial to reduce the offense from murder to manslaughter. Finally, defendant claims that the court erred in refusing to advise the jury during the sanity trial that he had previously been found incompetent to stand trial.
As to the appointment of psychiatrists, the record reflects the following: At the initial arraignment in December 1971, defendant first pleaded not guilty and trial was set for February 8, 1972. On motion of defendant on January 25, 1972, Doctors Tweed and Markman were appointed pursuant to section 730 on the Evidence Code. Trial was then continued to March 8, 1972 and was later continued to April 17, 1972. On the latter date defendant entered a plea of not guilty by reason of insanity and Dr. Bielinski was appointed to examine defendant pursuant to Penal Code section 1026 and section 730 of the Evidence Code. Doctors Tweed and Markman were 'reappointed' pursuant to the same authority. Trial was continued to May 24, 1972. On May 31, 1972, the court declared a doubt as to the defendant's present sanity and on its own motion appointed Doctors Coleman and Markman to examine defendant pursuant to Evidence Code section 730. By stipulation the court read the reports of Doctors Coleman, Markman and Tweed and based thereon found defendant to be insane pursuant to section 1368 of the Penal Code. Further proceedings were suspended.
The order recites that the appointments were also pursuant to Evidence Code section 1017. That section, of course, is not authority for appointment of experts. It only deals with the subject of privilege.
The proper section is 1027 of the Penal Code.
On October 4, 1972, proceedings were reinstated and defendant on 'rearraignment' pleaded not guilty. Dr. Coleman was appointed pursuant to Evidence Code section 952 to examine defendant and prepare a confidential report. On November 1, 1972, defendant pleaded not guilty by reason of insanity. Doctors Walter and Abe were appointed pursuant to Evidence Code section 730.
At the sanity trial defendant called only Dr. Coleman as his witness. The People called Doctors Walter, Tweed, Markman [114 Cal.Rptr. 226] and Abe. Defendant contends that the calling of Doctors Markman and Abe by the People violated the lawyer-client privilege.
All four doctors called by the People were appointed pursuant to the same authority and their testimony wa generally the same. Defendant makes no explanation as to why he singles out Doctors Abe and Markman.
He argues further that as an indigent he was required to ask for court appointed psychiatrists and unless those psychiatrists' reports remain confidential he does not enjoy the same advantages as an individual who can afford to hire private psychiatrists. This, he says, denies him equal protection of the law.
Evidence Code section 952 provides: 'As used in this article, confidential communication between client and lawyer' means information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.' (Emphasis added.) The emphasized language would embrace a psychiatrist, court appointed or otherwise, who consults with defendant and his counsel in order to permit counsel to determine the advisability of entering a plea of not guilty by reason of insanity or offering the defense of 'diminished capacity.' This privilege is bolstered by Evidence Code section 1017 which provides: 'There is no privilege under this article if the psychotherapist is appointed by order of a court to examine the patient, but this exception does not apply where the psychotherapist is appointed by order of the court upon the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed so that he may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his mental or emotional condition.' (Emphasis added.)
These sections together provide the indigent defendant with the same opportunity as a defendant who can afford to hire his own psychiatrist to preserve the confidentiality of the psychiatric consultant when the defendant's mental state is not made an issue. (People v. Goldbach, 27 Cal.App.3d 563, 103 Cal.Rptr. 800.)
Evidence Code section 1016 provides in part: 'There is no privilege under this article as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: (a) The patient; . . .'
Thus where the situation goes beyond consultation and advice and defendant's mental condition is placed in issue the attorney-client privilege and the patient-psychotherapist privilege do not obtain. This is the rule regardless of whether the psychotherapist is privately retained or court appointed. (People v. Aiken, 19 Cal.App.3d 685, 97 Cal.Rptr. 251; Sullivan v. Superior Court, 29 Cal.App.3d 64, 105 Cal.Rptr. 241; People v. Braun, 29 Cal.App.3d 949, 106 Cal.Rptr. 56.) The statutory scheme for court appointed experts provides equal protection of the law to indigent defendants.
In the case at bar defendant initially obtained the appointment of Doctors Tweed and Markman prior to the first trial and prior to the entry of a plea of not guilty by reason of insanity. Subsequently, however, he entered such a plea and those doctors were without objection reappointed pursuant to Penal Code section 1027.
At the resumption of proceedings in October 1972, defendant obtained the appointment of Dr. Coleman 'pursuant to Evidence Code section 952.' Evidence Code section 952 is not authority for appointment [114 Cal.Rptr. 227] of expert witnesses. The proper section under these circumstances was Evidence Code section 730. In any event, the court apparently intended Dr. Coleman to serve as a confidential consultant whose report would have been privileged. That privilege was lost, however, when defendant subsequently entered his plea of not guilty by reason of insanity and called Dr. Coleman as a witness.
Doctors Walter, Markman, Abe and Tweed were all appointed by the court on the two occasions in which defendant entered his plea of not guilty by reason of insanity. The controlling statute was Penal Code section 1027 which provides in part: 'When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists to examine the defendant and investigate his sanity. It is the duty of the psychiatrists so selected and appointed to examine the defendant and investigate his sanity, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question. . . . Any psychiatrist so appointed by the court may be called by either party to the action or by the court itself and when so called shall be subject to all legal objections as to competency and bias and as to qualifications as an expect.'
Thus, the 'exception' to the 'exception' of Evidence Code section 1017 did not apply. The trial court correctly allowed the doctors to testify.
The various psychiatrists in the course of their testimony in the sanity trial expressed conflicting opinions not only on the issue of defendant's sanity under the so-called M'Naughton Rule but also on the issue of his ability to harbor malice. There was substantial testimony offered, however, that defendant could harbor malice and was sane at the time of the commission of the offense.
The trial court quite properly refused on the motion for a new trial to reduce the crime of manslaughter on the basis of the psychiatrists' testimony. All evidence of defendant's mental capacity was offered at the sanity trial well after the defendant's guilt had been established. That evidence could have no bearing on defendant's mental capacity as developed in the trial on the merits. It must be remembered that the main defense offered in the guilt phase was that someone other than defendant had committed the crime. Defendant cannot have it both ways.
Finally, the fact that defendant had been previously found to be incompetent to stand trial was wholly irrelevant to the issues presented in the sanity proceedings held pursuant to Penal Code section 1026. The trial court properly refused to inform the jury of that matter.
The judgment is affirmed.
FLEMING, Acting P. J., and BEACH, J., concur.