People v. Flannel

BIRD, C. J., Concurring and Dissenting.

I respectfully dissent from that portion of the lead opinion which states it was not error to fail to instruct on diminished capacity. 1

The law is clear that a criminal defendant has a constitutional right to have a jury determine every material issue presented by the evidence. (See People v. Sedeno, supra, 10 Cal.3d 703, 720-721 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ]; People v. Modesto (1963) 59 Cal.2d 722, 730 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ].) Appellant was entitled to the requested diminished capacity instructions under the corollary rule that a trial court “‘should instruct the jury upon every material question upon which there is any evidence deserving of any consideration whatever. [Citations.] The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citations.] That is a question within the exclusive province of the jury. However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.’” (People v. Carmen (1951) 36 Cal.2d 768, 773 [ 228 P.2d 281 ]; italics in original; original italics in the last two sentences omitted.)

Today, the lead opinion states that appellant had no right to any jury instructions on diminished capacity since he “presented no substantial evidence of intoxication.” (Lead opn., ante, at p. 685.) Although People v. Carmen, supra, 36 Cal. 2d at page 773 is cited with apparent approv *688 al, the lead opinion concludes that the evidence of intoxication in this case is unworthy of “any consideration whatever” by the jury. (Ibid.)

The lead opinion has confused two concepts. Substantial evidence is the standard applied in criminal appeals when a court must decide whether the evidence produced at trial was sufficient to prove the defendant’s guilt beyond a reasonable doubt. That is not the issue in this case. Here, the jury must be given the opportunity to consider his defense. The accused need not prove that defense beyond a reasonable doubt but must show there is a reasonable doubt as to his guilt. Clearly, the substantial evidence standard used in considering the validity of a conviction on appeal is totally inappropriate as a standard for determining when an accused is entitled to instructions on a defense of diminished capacity. 2

The effect of the lead opinion’s “substantial evidence” standard is to take away the proper role of the jury since it encourages judges to rule on the ultimate merits of a defense rather than determining whether the evidence is sufficient to raise an arguable defense.

This case is a vivid example of the unfortunate results that will be produced if today’s decision is treated by subsequent courts as anything other than an aberration. In the six-hour period preceding the commission of the homicide, appellant consumed four tall beers, two shots of gin, one shot of whiskey, and at least two more beers. Assuming appellant to be a man of normal size, this consumption of alcohol would suggest a blood alcohol level at the time of the shooting of about 0.10 percent. 3 In this state, all drivers are presumed to be under the influence of alcohol at that level. (Veh. Code, § 23126, subd., (3).)

*689 Clearly, the amount of drinking in this case amounts to evidence worthy of consideration by a jury on the question of diminished capacity and warranted instructions on diminished capacity. 4 While no expert testified as to the effect of this level of intoxication on appellant’s mental capacities, alcohol is a drug familiar to many jurors, and its effects could have been assessed by them.

The lead opinion relies on appellant’s trial testimony to justify the refusal to give any instructions concerning appellant’s diminished capacity. (Lead opn., ante, at p. 686.) The testimony given at the trial is worthy of note. “Did you feel any effect of the alcohol you had consumed earlier that day?” “Yes, I was.” “You weren’t drunk, were you?” “Somewhat—I wasn’t normal. I was drunk, I would suppose.” Despite my colleagues stern warning that courts should not undertake to weigh the credibility of witnesses (lead opn., ante, at p. 684), they commit this very error when they find this evidence detracts from the defense of diminished capacity because it is “equivocal.” (Lead opn., ante, at p. 686.) They overlooked the fact that appellant’s testimony was not contradicted. If all questions as to credibility are resolved in appellant’s favor, his testimony stands for the simple proposition that he was “drunk” at the time of the homicide. Giving appellant the benefit of the doubt as the lead opinion concedes must be done (lead opn., ante, at p. 685), it is impossible to conclude that a jury composed of reasonable persons could not have found that appellant acted without the malice necessary for a conviction of murder.

*690 The lead opinion’s view of the evidence is at odds with that taken by the trial court. Instructions were given on the effect that appellant’s intoxication may have had on his ability to formulate an intent to kill and to premeditate his actions. Indeed, the evidence of intoxication which the lead opinion now rejects as insubstantial may well account for the jury’s refusal to convict appellant of first degree murder.

This court cannot find as a matter of law that appellant’s testimony that he was “drunk” was a lie or established that he was not sufficiently intoxicated to be unaware of the wrongfulness of his acts or to conform his conduct to social norms. I agree with the trial court that this evidence raised material issues of intent and premeditation. However, the trial court should have instructed the jury on the defense of diminished capacity as it applied to the element of malice. 5 Under the mandate of People v. Sedeno, supra, 10 Cal.3d 703 , this failure to instruct on a material issue requires a reversal.

Appellant’s petition for a rehearing was denied January 24, 1980, and the concurring and dissenting opinion was modified to read as printed above. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.

I concur in parts 1 and 2 of the lead opinion, but I have serious doubts concerning part 3. A trial court’s obligation to instruct sua sponte turns not upon the frequency with which a defense appears in the case law, but upon the clarity of the legal principle involved and its manifest application to a given set of facts. (See People v. Sedeño (1974) 10 Cal.3d 703, 715-717 .) In part 2 of their opinion, the justices joining in the lead opinion endorse the concept that an unreasonable belief in the need to act in self-defense may negate the malice necessary for conviction for murder. Since this principle is “closely and openly connected with the facts” of this case, the trial court had an affirmative obligation to instruct sua sponte on this defense. {Id., at p. 716.)

However, I do agree with that portion of part 3 which requires that such instructions be given sua sponte in future cases.

It is a non sequitur to argue that to adhere to the rule that a request for instruction must be granted whenever there is any evidence of diminished capacity, no matter how weak, “would mandate instructions whenever... evidence of any consumption of alcohol was offered, a result contrary to existing authority.” (Lead opn., ante, at p. 685, fn. 12.) People v. Miller (1962) 57 Cal.2d 821 [ 22 Cal.Rptr. 465 , 372 P.2d 297 ], demonstrates that in some cases evidence of intoxication is not sufficient to raise a defense of diminished capacity. Moreover, People v. Carr (1972) 8 Cal.3d 287 [ 104 Cal.Rptr. 705 , 502 P.2d 513 ], shows that evidence of intoxication may not be relevant to a claim of diminished capacity. There, the sole evidence of intoxication was the defendant’s testimony that his drinking “gave him courage to carry out his criminal design.” {Id., at p. 295.) Instruction on diminished capacity was held to have been properly refused because “ [s]uch evidence in no way negates his [the defendant’s] intent to commit his acts or his awareness of their wrongful nature.” (Ibid.)

This estimate was reached in the following manner. Each normal sized drink of alcohol, when absorbed through the gastrointestinal tract, results in about a 0.02 percent *689 increase in the blood alcohol level in the average person. The body tends to eliminate alcohol at a rate of about 0.018 percent per hour. (See, e.g., Alcohol and the Impaired Driver, A.M.A., Com. on Medicolegal Problems (1970).)

Thus, assuming appellant to be a man of average stature, his blood alcohol at 4 p.m. can be computed by multiplying 0.02 percent by the number of normal size drinks [treating the “tall beers” as 116 of a “normal” beer, appellant had the equivalent of 1016 drinks]. The product of the duration of the drinking period (six hours) multiplied by the clearance rate (0.018 percent) must be subtracted from the first figure.

I would disapprove the decision in People v. Bandhauer (1967) 66 Cal.2d 524 [ 58 Cal.Rptr. 332 , 426 P.2d 900 ], since it appears to be an isolated aberration. Significantly, the majority in that case cited no authority for their holding that the defendant’s consumption of “six or seven beers” in the six hours immediately preceeding the crime did not suffice to raise a material defense of diminished capacity. (Id., at p. 528.) Adopting the views stated in the dissenting opinion of Justice Peters (id., at pp. 531-533), I am of the view that the denial of the instruction requested in that case deprived the defendant of his constitutional right to have the jury and not the trial court decide the merit of this defense. The difference between the weight of the evidence relied upon in Bandhauer and that in People v. Miller, supra, 57 Cal.2d 821 , illustrates the gap between evidence sufficient to raise a defense of diminished capacity and that which is insufficient.

Whatever the basis for the verdict reached, the trial court could not reasonably have found the evidence of intoxication to raise a material issue with respect to one aspect of appellant’s mental state but not another.