People v. Coddington

MOSK, J.—

I dissent.

So far as it imposes punishment, including the sentence of death, on appellant Herbert James Coddington, the judgment in this cause depends on the soundness of the jury’s verdict finding him sane. That the superior court committed error, and the prosecutor engaged in misconduct, bearing on the issue of sanity is undoubted. The majority establish the fact. Whether such error and misconduct caused prejudice is the question. The majority give a negative answer. After reviewing the record on appeal, I would give an affirmative one.

Under the law of the State of California, as we have held in decisions including People v. Skinner (1985) 39 Cal.3d 765 [ 217 Cal.Rptr. 685 , 704 P.2d 752 ] (hereafter sometimes Skinner), a person is not criminally liable for any conduct in which he participates while he is insane. Insanity operates as an “affirmative defense” belonging to a defendant for use against any “criminal charge” (People v. Hernandez (2000) 22 Cal.4th 512, 522 [ 93 Cal.Rptr.2d 509 , 994 P.2d 354 ], italics omitted), separate and independent from the elements of any underlying crime (see ibid.). The defendant who would invoke insanity must plead it (Pen. Code, § 1016; see id., § 1026 et seq.) and then prove it by a preponderance of the evidence (id., § 25, subd. (b)). Insanity is defined in accordance with the test adopted by the House of Lords in M’Naghten’s Case (1843) 8 Eng.Rep. 718. (People v. Skinner, supra, 39 Cal.3d at pp. 768-769, 771-777.) It entails the following: At the time of the commission of the crime or crimes charged, and as a result of mental disease or defect, the defendant was “incapable of knowing or understanding the nature and quality of his . . . act” or “of distinguishing right from wrong . . . .” (Pen. Code, § 25, subd. (b); see generally People v. Skinner, supra, 39 Cal.3d at pp. 768-769, 771-777.) To be incapable of distinguishing right from wrong, a person need not be incapable of distinguishing legal right from legal wrong. (People v. Skinner, supra, 39 Cal.3d at *658 pp. 777-784; see People v. Stress (1988) 205 Cal.App.3d 1259, 1272-1274 [ 252 Cal.Rptr. 913 ].) He need only be incapable of distinguishing moral right from moral wrong. (People v. Skinner, supra, 39 Cal.3d at pp. 777-784; see People v. Stress, supra, 205 Cal.App.3d at pp. 1272-1274.) Moral right and moral wrong refer to right and wrong as defined by positive norms comprising “society’s generally accepted standards” of behavior (People v. Stress, supra, 205 Cal.App.3d at p. 1274 ; see People v. Kelly (1992) 1 Cal.4th 495, 534-535 [ 3 Cal.Rptr.2d 677 , 822 P.2d 385 ]), and depend for their enforcement on the “operation of feelings of shame, remorse, and guilt” (Hart, The Concept of Law (1961) p. 84). A person is incapable of recognizing that specified conduct is morally wrong if he believes that he is commanded by God to participate therein. (People v. Skinner, supra, 39 Cal.3d at pp. 783-784; see People v. Stress, supra, 205 Cal.App.3d at p. 1273 .)

The trial of the issue of sanity in this case was one of the most complex and extensive of any that I have ever examined. It was also one of the closest and most vigorously litigated. Quantitative measurement supports qualitative characterization. The reporter’s transcript of the oral proceedings on sanity fills almost 1,700 pages—exceeding the reporter’s transcript of the oral proceedings on guilt and penalty combined.

Coddington called to the stand three psychiatrists who had examined him on his retainer: Mark J. Mills, M.D., Fred Rosenthal, M.D., and Joseph Satten, M.D. They each testified at length and in detail, concluding, inter alia, that he was severely mentally ill.

For their part, the People called to the stand two other psychiatrists who had examined Coddington under the superior court’s appointment: Bruce T. Kaldor, M.D., and Robert M. Bittle, M.D. They too each testified at length and in detail, concluding, inter alia, that he was severely mentally ill.

Coddington’s psychiatrists each went on to opine that he was insane. They concluded that he was incapable of distinguishing moral right from moral wrong. They did so because they concluded that he believed that he was authorized and indeed commanded by God to act as he did through “signs” that he discerned in traffic lights and in certain numbers.

By contrast, the People’s psychiatrists each went on to opine that Coddington was sane. Dr. Kaldor rejected Coddington’s belief about the “signs” from God: he deemed Coddington’s conception of God and notion of morality to be somehow insufficient. Dr. Bittle also rejected Coddington’s belief about the “signs” from God: he deemed Coddington’s belief to be a *659 mere rationalization to justify his conduct at least to himself. He did so in spite of his admission that he “did not . . . have the impression that” Coddington “was lying,” but “felt” instead that he “was in general . . . straightforward.”

There was much evidence in support of the opinion of Coddington’s psychiatrists that he was insane, and in opposition to that of the People’s psychiatrists that he was not. Among the undisputed, and indisputable, facts are these: In spite of Coddington’s long-term and pathological obsession with sex—for years he kept a daily log of the number of times he masturbated, revealing a high of 38—he did not sexually assault Alecia T. and Monica B. at all on the first and third days of their captivity, and did so only on the second and then only in a relatively limited fashion. He was hardly a simple sexual predator. Further, in spite of his long-term and pathological obsession with violence—which culminated in his murder of Mabs Martin and Dorothy Walsh—he became progressively passive as the girls became progressively aggressive over the course of the incident. He was hardly a simple violent thug.

But there was also much evidence in support of the opinion of the People’s psychiatrists that Coddington was sane, and in opposition to that of his own psychiatrists that he was not. Among the undisputed, and indisputable, facts are these: Coddington was extremely intelligent. He often lied to and deceived others in order to serve his own interests. He had a powerful motive to lie to and deceive the psychiatrists who examined him—to avoid a sentence of death. He also had a substantial opportunity to do so successfully—the experience provided him through the process of repeated inquiry allowed him to attempt to tailor his responses away from sanity and toward insanity.

In light of the foregoing, we can say with confidence that the jury’s determination of the issue of sanity depended on its assessment of the relative credibility of Coddington’s psychiatrists and the People’s. We can also say with confidence that the jury’s assessment turned on the narrow question whether Coddington was malingering—a question that must be considered close in light of the admission by Dr. Bittle, one of the People’s psychiatrists, that he did not believe that Coddington was “lying,” but “felt” instead that he “was in general . . . straightforward.”

As the majority establish, the superior court erred by vouching for the “impartial[ity]” of the People’s psychiatrists, whom it had appointed, over that of psychiatrists who are retained by a “party” and purportedly owe him “allegiance”—including, inferentially, Coddington’s. The court’s attestation *660 was erroneous. It was reasonably likely (People v. Clair (1992) 2 Cal.4th 629, 663 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ]) to have been understood by the jury as an expression, contrary to decisional law (e.g., People v. Cole (1952) 113 Cal.App.2d 253, 261 [ 248 P.2d 141 ] (per Dooling, J.); People v. Ramirez (1952) 113 Cal.App.2d 842, 855 [ 249 P.2d 307 ]), of the court’s personal knowledge or belief that was beyond the evidence admitted at the sanity trial and hence beyond the jury’s ability to consider and weigh. It was also misleading on the facts of this case. So far as the record on appeal gives any indication, the People’s psychiatrists were no more “impartial” than Coddington’s, either generally or specifically on the narrow and close question of malingering.

As the majority also establish, the superior court erred by allowing the prosecutor to cross-examine Coddington’s psychiatrists, and to argue in summation, with regard to certain psychiatrists, of whom they were generally not aware, who had earlier examined Coddington on his retainer but were not called by him to the stand. The court’s allowance was erroneous. It violated the work product rule of section 2018 of the Code of Civil Procedure. It was also misleading on the facts of this case. It permitted the prosecutor to lead the jury to believe that the uncalled psychiatrists would have testified that Coddington was sane; that their testimony would have been sound because it would have been based on examinations that were closer in time to the crimes; and that the testimony of Coddington’s psychiatrists was unsound because it was based on examinations that were farther in time from the crimes and that were not informed by the results of the earlier ones. The record on appeal contains little concerning what testimony the uncalled psychiatrists would have given. But what little it does contain suggests that they would not have testified that Coddington was sane. For it suggests that they had even not examined him on the issue.

As the majority establish as well, the prosecutor misconducted himself by intentionally eliciting testimony on cross-examination of Dr. Satten, one of Coddington’s psychiatrists, to the effect that the People did not have a right to have a defendant pleading insanity examined by a psychiatrist without his consent, and the superior court erred by admitting evidence in the form of such testimony. Evidence concerning any such right was inadmissible because it was irrelevant (Evid. Code, § 350), and it was irrelevant because it had no tendency in reason to prove or disprove any material fact (id., § 210). For a prosecutor intentionally to elicit such evidence is misconduct. (E.g., People v. Smithey (1999) 20 Cal.4th 936, 960 [ 86 Cal.Rptr.2d 243 , 978 P.2d 1171 ].) For a court to admit such evidence is error. (E.g., People v. Poggi (1988) 45 Cal.3d 306, 323 [ 246 Cal.Rptr. 886 , 753 P.2d 1082 ].) The evidence in question was also misleading on the facts of this case. As the *661 Court of Appeal held in People v. Danis (1973) 31 Cal.App.3d 782, 786-787 [ 107 Cal.Rptr. 675 ]—a decision on which the prosecutor expressly relied outside of the presence of the jury—the People did indeed have a right to have a defendant pleading insanity examined by a psychiatrist without his consent. 1 Of course, the defendant might not cooperate. But in that event, his noncooperation could be introduced against him as evidence. (Cf. People v. McPeters (1992) 2 Cal.4th 1148, 1190 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ] [dealing with a defendant who “tendered] his mental condition as an issue in the penalty phase” of a capital trial].) The record on appeal indicates that, although the prosecutor took steps to exercise the right in question, he apparently did not actually do so. That he did not follow through seems clear: Had he exercised the right, and had Coddington cooperated, he would have obtained an examination—which he did not. Had he exercised the right, and had Coddington not cooperated, he would surely have sought to introduce his noncooperation against him as evidence—which he did not. Why he did not follow through also seems clear: Having learned, from their reports, that Drs. Kaldor and Bittle, who had been appointed by the court, had each formed the opinion that Coddington was sane, he could rely upon them and their purported “impartiality,” and hence had no need to retain a psychiatrist of his own. He led the jury to believe that he was disabled from subjecting Coddington to a psychiatric examination, but that, if he had not been, he would have been able to call a psychiatrist to testify that Coddington was sane in terms even stronger than those of the “impartial” Drs. Kaldor and Bittle. He did so, however, altogether without basis.

Having surveyed the superior court’s errors and the prosecutor’s misconduct, we must now address this question: Were they prejudicial? The answer that I would give is: Yes.

Under People v. Watson (1956) 46 Cal.2d 818, 837 [ 299 P.2d 243 ], there is prejudice when there is a “reasonable probability]” that error or misconduct contributed to the outcome. There is such a reasonable probability when there is “merely a reasonable chance, more than an abstract possibility,” of an effect of this kind. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 [ 34 Cal.Rptr.2d 898 , 882 P.2d 894 ], italics in original; see Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 68 [ 70 Cal.Rptr.2d 118 , 948 P.2d 909 ].)

After reviewing the record on appeal, I believe that there is at least a reasonable chance that, cumulatively if not individually, the superior court’s errors and the prosecutor’s misconduct contributed to the jury’s verdict finding Coddington sane.

*662 First, the superior court’s erroneous vouching for the “impartiality” of the People’s psychiatrists over that of Coddington’s improperly increased the credibility of the former and decreased that of the latter, both generally and specifically on the narrow and'close question of malingering. It also did so unfairly, inasmuch as the record on appeal gives no indication that the People’s psychiatrists were more “impartial” than Coddington’s in either regard. It is true that the “jurors were instructed that they were the sole judges of the believability of a witness and the weight to be given to [his] testimony . . . .” (Maj. opn., ante, at p. 616.) But it is also true that “jurors are eager to find and quick to follow any supposed hint of the judge as to how they should” proceed. (People v. Cole, supra, 113 Cal.App.2d at p. 261; accord, People v. Ramirez, supra, 113 Cal.App.2d at p. 855.) That is because “[j]urors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.” (People v. Mahoney (1927) 201 Cal. 618, 626-627 [ 258 P. 607 ].)

Second, the superior court’s erroneous allowance of the prosecutor’s cross-examination and argument relating to Coddington’s uncalled psychiatrists improperly increased the credibility of the People’s psychiatrists and decreased that of Coddington’s, both generally and specifically on the narrow and close question of malingering. It permitted the prosecutor to magnify the believability of the People’s psychiatrists on malingering, by bolstering their testimony with the “nontestimony” of the uncalled psychiatrists that Coddington was sane. At the same time, it permitted the prosecutor to minimize the believability of Coddington’s psychiatrists on insanity, by attacking their examinations as later than those of the uncalled psychiatrists and as not informed by their results. And it did so unfairly, since it appears from the record on appeal that the uncalled psychiatrists had not even examined Coddington on the issue of sanity. That the jury heard much from the psychiatrists “who did testify” (maj. opn., ante, at p. 606) only highlighted the fact that it heard nothing at all from those who did not.

. Third, the prosecutor’s misconduct in intentionally eliciting inadmissible evidence on the People’s purportedly nonexistent right to a psychiatric examination of a nonconsenting defendant pleading insanity, and the superior court’s erroneous admission of such evidence, are similar in effect to the error concerning Coddington’s uncalled psychiatrists. That is to say, they improperly increased the credibility of the People’s psychiatrists and decreased that of Coddington’s, both generally and specifically on the narrow and close question of malingering. Unfairly so, since—as the prosecutor himself knew—the People did indeed have the right in question, but, to judge from the record on appeal, declined to exercise it for reasons of their own. Certainly, they were not disabled from subjecting Coddington to a *663 psychiatric examination by Coddington himself. That the “jury was aware that” Coddington “had been examined by . . . five psychiatrists who testified” (maj. opn., ante, at p. 612)—his three, who the court implied owed him “allegiance” because of his retainer, and the People’s two, who the court stated were “impartial” because of its appointment—could hardly have caused the jury to ignore the fact that he had not been examined by a psychiatrist of the People’s own choosing.

In view of all that is set out above, I conclude that there is at least a reasonable chance that the superior court’s errors and the prosecutor’s misconduct, together, contributed to the jury’s verdict finding Coddington sane. For I conclude that there is at least a reasonable chance that such errors and misconduct marginally affected the jury’s assessment of the relative credibility of Coddington’s psychiatrists and the People’s on the narrow and close question of malingering, and hence marginally affected the jury’s consequent determination, implicit but necessary, that Coddington did not prove by a preponderance of the evidence that he was insane because he did not disprove to that standard that he was not malingering.

I so conclude in spite of the majority’s argument to the contrary. That is because they fail to persuade, stumbling at some points on the law, and at others on the facts, as they attempt to minimize the crucial matter of the jury’s assessment of the relative credibility of Coddington’s psychiatrists and the People’s on the narrow and close question of malingering.

As to the facts: Although Coddington made some admissions to his psychiatrists and the People’s that God did not command him to plan the crimes, he consistently stated that He did indeed command him to execute them, through a combination of “go” “signs” that He gave and “stop” “signs” that He did not give. Hence, although he might be criminally liable for the planning—which was not at issue—he would not be criminally liable for the execution—which was.

As to the law: It was of no consequence whether or not Coddington’s crimes were the product of mental disease or defect. The answer would surely be relevant under the so-called product test of insanity, which the United States Court of Appeals for the District of Columbia laid down in Durham v. United States (D.C. Cir. 1954) 214 F.2d 862 [ 94 App. D.C. 228 , 45 A.L.R.2d 1430 ], and subsequently abandoned in United States v. Browner (D.C. Cir. 1972) 471 F.2d 969 [ 153 App. D.C. 1 ] (in bank). The product test, however, has never been the law in this state. It was similarly of no consequence what Coddington’s conception of God might have been. What mattered, and still matters, is that a person’s “God” is the ultimate, and ultimately authoritative, source of norms comprising standards *664 of behavior. (See People v. Skinner, supra, 39 Cal.3d at pp. 783-784.) Neither was it of consequence what Coddington’s notion of morality might have been. Then and now, if a person believes that he is commanded by God to act as he does, whatever his views of morality might be, he is incapable of recognizing that his act is morally wrong. That is the square holding of Skinner , which dealt with a defendant who “held” a “belief . . . that the marriage vow ‘till death do us part’ bestows on a marital partner a God-given right to kill the other partner who has violated or was inclined to violate the marital vows.” {Id. at p. 770.) In support of its holding, Skinner quotes from Justice Cardozo’s opinion for Court of Appeals of the State of New York in People v. Schmidt (1915) 216 N.Y. 324 [ 110 N.E. 945 ]: “ ‘If . . . there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, we think it cannot be said of the offender that he knows the act to be wrong’ ”—specifically, morally wrong. {People v. Skinner, supra, 39 Cal.3d at p. 784, quoting People v. Schmidt, supra, 216 N.Y. at p. 340 [ 110 N.E. at p. 949 ].) The majority assert that “[i]t is not enough in a case like this, where the appellant had a unique concept of morality, to say simply . . . that a person is incapable of recognizing that conduct is morally wrong if he or she believes God has commanded that conduct.” (Maj. opn., ante, at p. 627.) But Skinner holds that it is, in fact, enough. It cannot be ignored.

For the reasons stated, I would reverse the judgment as to sanity and penalty, and remand the cause to the superior court for proceedings not inconsistent with the views expressed herein, including retrial of the issue of sanity.

Kennard, J., concurred.

Appellant’s petition for a rehearing was denied September 27, 2000, and the opinion was modified to read as printed above. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.

See Estelle v. Smith (1981) 451 U.S. 454, 465-466 [ 101 S.Ct. 1866,1874-1875 , 68 L.Ed.2d 359 ] (citing decisions so holding).