# People v. Kelly

> California Supreme Court · December 26, 1973 · 10 Cal. 3d 565

URL: https://www.frixlaw.com/law-library/cases/9848654

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. VALERIE DAWN KELLY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 26, 1973
- **Citations:** 10 Cal. 3d 565; 111 Cal. Rptr. 171; 516 P.2d 875; 1973 Cal. LEXIS 170
- **Precedential status:** Published
- **Opinion:** Concurrence by Mosk
- **Judges:** Sullivan
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by People v. Drew, 22 Cal. 3d 333 (1978).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9848654

## How later opinions describe it (automated extraction)

- finding that the defendant was not guilty of assault with a deadly weapon by reason of insanity where evidence showed that she was psychotic at the time of the offense and was incapable of understanding that her act was wrong

## Opinion text

*578 MOSK, J.
I concur in the judgment of the court and in the well-reasoned analysis of the opinion except for its reliance upon a doctrine we should, at long last, disavow as outmoded and unsupportable in either medical science or law: the ancient rule for determination of criminal responsibility. In four passages the opinion refers with approval to the M’Naughton test, in two of them describing the rule as “the California M’Naughton test.” (Ante, pp. 574, 576, 577.) The opinion also speaks in terms of distinguishing right from wrong, and at the trial questions to the expert witnesses were so framed.
The implication that California does not adhere strictly to the traditional M’Naughton test, first adopted in England six score and ten years ago, is an accurate reflection of the current status of the law in this state. (People v. Wolff (1964) 61 Cal.2d 795 [ 40 Cal.Rptr. 271 , 394 P.2d 959 ].) However, rather than to pay even cursory obeisance to the anachronistic theory commonly identified as the M’Naughton test, I would forthrightly abandon the rule and adapt the law in California to the best available alternative: the American Law Institute model code proposal.
In 1843 the M’Naughton rule declared, in substance, that a man was not a proper subject for hanging if he was unable to distinguish right from wrong conduct. 1 In practice this meant that because delirious and demented *579 individuals were incapable of appreciating and profiting by the punishment inflicted by. the state, the cases were removed, after conviction, from the criminal process. Yet doubt was cast upon the M’Naughton rule soon after its promulgation. Professor Sherry quotes from an 1883 English source suggesting that “every judgment delivered since the year 1843 has been founded on an authority which deserves to be described as in many ways doubtful.” (Sherry, The Politics of Criminal Law Reform (1973) 21 Am.J. Comp.L. 201, 211.) As Dr. Karl Menninger has written: “The psychiatrists of the day did not (sufficiently) dispute this pontifical ‘decision,’ and some have gone along with it ever since, despite its absurdity. It requires an incalculable degree of presumption to say whether another individual ‘knows’ right from wrong, especially when few of us could truly say . . . what our own degree of expertise is in this distinction, [f] Trying to get around the absurdity of the M’Naghten criteria has invited the ingenuity of many lawyers, judges, and psychiatrists for a century.” (Menninger, The Crime of Punishment (1966) p. 115.)
Efforts to “get around” the M’Naughton rule were undertaken in New Hampshire as long ago as 1870 (State v. Pike, 49 N.H. 399, 429 ), by Judge Bazelon in 1954 in Durham v. United States, 214 F.2d 862 [ 94 App.D.C. 228 , 45 A.L.R.2d 1430 ], 2 by Chief Judge Biggs of the Third Circuit in United States v. Currens (1961) 290 F.2d 751, 774 , 3 and by this court when in 1949 we adopted a significant variation of M’Naughton in People v. Wells (1949) 33 Cal.2d 330 [ 202 P.2d 53 ], a thoughtful concept developed by Justice Schauer, and further explicated in People v. Gorshen (1959) 51 Cal.2d 716 [ 336 P.2d 492 ],
Despite the innovative Wells-Gorshen approach, this court has persisted *580 in paying lip service to M’Naughton. While in People v. Henderson (1963) 60 Cal.2d 482, 490 [ 35 Cal.Rptr. 77 , 386 P.2d 677 ], Justice Traynor frankly conceded the Wells-Gorshen “purpose and effect are to ameliorate the law governing criminal responsibility prescribed by the M’Naughton rule,” the following year this court in People v. Wolff (1964) 61 Cal.2d 795 [ 40 Cal.Rptr. 271 , 394 P.2d 959 ], reaffirmed M’Naughton once again, declaring (at p. 803) that it has become “ ‘an integral part of the legislative scheme for the appraisal of criminal responsibility in California and any change therein should come from the Legislature.’ ” Indeed, said the Wolff court, “the entire problem is currently under consideration by that body.” Nearly a decade later the problem still languishes before the Legislature, which now has presented to it a proposed revision of the entire Penal Code.
It is my thesis that, contrary to the concession in Wolff that M’Naughton is a part of the “legislative .scheme” (People v. Ryan (1965) 140 Cal.App.2d 412, 425 [ 295 P.2d 496 ]), the ancient test has been solely a judicial product and therefore may, in deference to advances in medical and legal science, be judicially changed. Indeed, none of the statutory provisions relating to criminal responsibility have precisely followed the M’Naughton rule. (See, e.g., Pen. Code, §26, subd. Three; Pen. Code, § 1016, subd. 6; Pen. Code, § 1367.) Nor does the proposed Penal Code now being considered by the Legislature speak in M’Naughton terms (see § 535 of the proposed Penal Code). Yet we - continue to proclaim that we abide by M’Naughton, despite the fact, as declared by Dr. Phillip Roche in The Criminal Mind (1958) page 176, that we “have reached a place where there is a consensus that the M’Naghten test of responsibility in the defense of insanity is no longer useful.” Justice Frankfurter, testifying before the Royal Commission on Capital Punishment (1953), said the rules “are in large measure abandoned in practice and therefore I think the M’Naghten rules are in large measure shams. That is a strong word, but I think the M’Naghten rules are difficult for conscientious people . . . .”
I believe it is time that this court forthrightly jettison the M’Naughton rule and follow the lead of the several states that now adhere to the rule included in the Model Penal Code of the American Law Institute. The least we can do is to take a modest step that will be operative until such time as the Legislature finally acts upon the adoption of a new penal code and prescribes therein statutory requirements for criminal responsibility. We should not out of apathy or ennui continue, in the words of Justice Cardozo, to “mock ourselves with a definition that palters with reality” (Cardozo, Law and Literature (1931) p. 107), or adhere to a *581 test “which has almost no recognizable reality” (United States v. Baldi (3d Cir. 1951) 192 F.2d 540, 568 ).
Articulating a test of criminal responsibility is a problem of drafting a formula in such a way as to enable the judicial process to discriminate between those cases where a punitive-correctional disposition is necessary, and those in which a medical-custodial disposition will satisfy the needs of society. While a universally accepted result has proved elusive, an operational definition is not out of reach. Any test of criminal responsibility should be premised on the rationality of man and retain irrationality as a minimum criterion of insanity. Second, it should harmonize law and modern medical science, thus enabling the psychiatrist to contribute to the administration of justice unhampered by moral and legal abstractions. Third, the test should be stated in a manner readily understood by a jury of laymen. Fourth, any test should relieve from criminal responsibility all those with respect to whom the purposes of the penal law would not be satisfied by traditional imprisonment while at the same time making certain that the accountability of other persons for their actions is not undermined. (Lindman and McIntyre, The Mentally Disabled and the Law (1961) p. 336.)
The American Law Institute was organized in 1923 by a distinguished group of judges, lawyers, and legal scholars as a permanent organization devoted to the clarification and improvement of the law. It has devised formulations in the fields of criminal procedure, evidence, and its Uniform Commercial Code has been adopted in all but one state of the United States. Its Model Penal Code was finally completed in 1962 and subsequent thereto a number of states have adopted all or substantial parts of it (e.g., Illinois (1961), Minnesota (1963), New Mexico (1963), New York (1965), Pennsylvania (1965)).
Section 4.01 of the ALI Model Penal Code describes “mental disease or defect excluding responsibility” in the following terms: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. [¶] (2) As used in this Article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.” '
In the opinion of most thoughtful observers this proposed test, commonly known as the ALI formulation, is a significant improvement over *582 M’Naughton. 4 It substitutes “appreciate” for “know,” thereby indicating that an offender must be emotionally as well as intellectually aware of the significance of his conduct. The test also uses the word “conform” instead of “control” which skillfully avoids any reference to such terms as “irresistible impulse” which have been as difficult of explanation as the M’Naughton test itself.
The ALI formulation has been adopted substantially in six states (Illinois, Vermont, Missouri, Massachusetts, Maryland, Wisconsin) and in most federal courts. Indeed, “No other circuit except the First continues to rely on the ancient M’Naghten rules” observed the Ninth Circuit, sitting en banc in Wade v. United States (9th Cir. 1970) 426 F.2d 64, 65 , and adopting in substance the ALI test. 5 California has temporized with various devices, its notable contribution through Wells-Gorshen and their progeny being the concept of diminished capacity. I concede the merit in the diminished capacity theory, despite its frequently perplexing problems in application, but I cannot acquiesce in the continuing charade of deeming M’Naughton to be a sacred cow.
The majority opinion in this case would have become truly notable if it served as the last rites for the M’Naughton rule in California, invited the Legislature to adopt a substitute therefor whenever it considers penal code revision, and directed trial courts in the' interim to adhere to the ALI formula.
“To what extent is a lunatic’s spelling even of his own name to be deemed an authority?” asked Justice Frankfurter in his book, Of Law and Life and Other *579 Things (1965) page 3. He commented on the variorum of Daniel M’Naughten:
1. The original Gaelic—Mhicneachdain.
2. The defendant himself, signing a letter at the trial—M’Naughten.
3. The State Trials—Macnaughton.
4. Clark and Finnelly—M’Naghten.
5. Archbold—Macnaughton, Macnaughten or Macnaghten.
6. Stephen—Macnaughten or Macnaghten.
7. Halsbury—M’Naughton or M’Naughten.
8. 1930 Select Committee on Capital Punishment—McNaughten.
9. 1949 Royal Commission on Capital Punishment—M’Naghten.
The Durham rule “is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” The state of Maine has adopted Durham. (Me. Rev. Stats. Annot. (1964) pp. 15-104.)
The Currens test is: “The jury must be satisfied that at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.” For a critical analysis of the case, see Diamond, From M’Naughton to Currens and Beyond (1962) 50 Cal.L.Rev. 189.
To mention just a sampling: Fingaxette, The Meaning of Criminal Insanity (1972) page 242 ff.; Wechsler, Codification of Criminal Law in the United States (1968) page 24 ff.; Goldstein, The Insanity Defense (1967) page 86 ff.; Lindman & McIntyre, The Mentally Disabled and the Law, supra, page 336 ff. For a contrary view, see State v. Lucas (1959) 30 N.J. 37 [ 152 A.2d 50, 74 ] (Weintraub, C. J., concurring).
United States v. Freeman (2d Cir. 1966) 357 F.2d 606 ; United States v. Currens (3d Cir. 1961) 290 F.2d 751 ; United States v. Chandler (4th Cir. 1968) 393 F.2d 920 ; Blake v. United States (5th Cir. 1969) 407 F.2d 908 ; United States v. Smith (6th Cir. 1968) 404 F.2d 720 ; United States v. Shapiro (7th Cir. 1967) 383 F.2d 680 ; Pope v. United States (8th Cir: 1967) 372 F.2d 710 ; Wion v. United States (10th Cir. 1963) 325 F.2d 420 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9848654. Public record. Not legal advice.