Opinion
For Opinion on Hearing, see 217 Cal.Rptr. 685, 704 P.2d 752.
Opinions on pages 583-664 omitted.
[201 Cal.Rptr. 485]Charles M. Sevilla, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
John Van De Kamp, Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.
ABBE, Associate Justice.
Appellant challenges the finding that he was sane at the time he killed his wife. All of appellant's bases for this appeal relate to the construction and constitutionality of Penal Code section 25, subdivision (b), the statute defining the standard of insanity. We find no merit in any of appellant's contentions and affirm.
All further references are to the Penal Code unless otherwise specified.
Appellant was charged with one count of murder for the strangulation death of his wife which occurred while he was on a day pass from his confinement in Camarillo State Hospital. After being found competent to stand trial, appellant plead nolo contendere to the charge of murder (§ 187), stipulated to be second degree. Appellant also pled not guilty by reason of insanity.
Both parties waived jury trial on the sanity issue and each presented conflicting expert testimony on the nature and effect of appellant's mental condition at the time of the offense. Upon his being found legally sane, appellant was sentenced to the statutory term of 15 years to life.
The instant offense occurred after the effective date of section 25, subdivision (b), which was enacted as part of Proposition 8, the June 8, 1982, voter initiative (hereafter Prop. 8). This section provides in pertinent part: "In any criminal proceeding ... in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (Emphasis added.)
The trial court ruled the statute required appellant to prove both prongs of the insanity test by a preponderance of the evidence. Although the court found appellant incapable of distinguishing right from wrong in relation to the offense, it also found he knew and understood the nature and quality of his act and was therefore legally sane.
Appellant contends that the statute should be interpreted to permit an accused to establish insanity by proving either but not both prongs of the insanity test. He suggests that, despite the use of the conjunctive word "and," the electorate only intended to restore the disjunctive M'Naughton test as it existed prior to the [201 Cal.Rptr. 486] Supreme Court's decision in People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, adopting the American Law Institute definition of insanity. We disagree. The earlier test for insanity as set forth in People v. Kelly (1973) 10 Cal.3d 565, 574, 111 Cal.Rptr. 171, 516 P.2d 875, was as follows: "Insanity, under the California M'Naughton test, denotes a mental condition which renders a person incapable of knowing or understanding the nature and quality of his act, or incapable of distinguishing right from wrong in relation to that act...." This test varied from the traditional M'Naughton test which provided: " '... to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' ..." (People v. Drew, supra, 22 Cal.3d at p. 341, 149 Cal.Rptr. 275, 583 P.2d 1318.)
In support of the argument that the intent of the initiative was simply to return California's insanity defense to its pre-Drew state, appellant makes numerous assertions, none of which we find persuasive.
In construing a statute, it is necessary to determine what was intended. Penal Code section 7, subdivision (16) provides in pertinent part that "[w]ords and phrases must be construed according to the context and approved usage of the language...." Approved usage of the word "and" defines it as: "A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first...." (Black's Law Dict. (5th ed. 1979) p. 79, col. 2.) While the word "and" has sometimes been read to mean "or," (People v. Butler (1978) 81 Cal.App.3d Supp. 6, 8, 146 Cal.Rptr. 856, anc cases cited therein) this has been done only to fulfill manifest legislative intent.
The ascertainment of voters' intentions in enacting a statute by initiative is sometimes difficult. Initiative ballot pamphlet arguments are the equivalent of legislative history. (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1, cert. den. 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639.)
The analysis by the legislative analyst describes the test of insanity conjunctively and states: "These provisions could increase the difficulty of proving that a person is not guilty by reason of insanity."
Arguments in favor of Prop. 8 were included in the initiative ballot pamphlet. Those that relate directly or inferentially to the insanity provisions provide in part: "you will limit the ability of violent criminals to hide behind the insanity defense ..."; "... of those convicted of felonies, one-third go to state prison and the remaining two-thirds are back in the community in a relatively short period of time.... [p] There is absolutely no question that the passage of this proposition will result in ... more criminals being sentenced to state prison, and more protection for the law-abiding citizenry...." (Emphatic typography deleted.)
The Supreme Court held that subdivision (a) of article I, section 28; of the Constitution, added by section 3 of Prop. 8, "... is a legislative declaration of intent that evidently speaks for the proposition as a whole." (People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.) To the extent helpful here the subdivision provides for "... the more basic expectation that persons who commit felonious acts causing injury to innocent persons will be ... sufficiently punished so that the public safety is protected and encouraged...." It further provides that "... broad reforms in the ... disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives." Taken together, the plain language of the statute and the legislative history support the trial court's interpretation requiring appellant to prove both prongs of the test.
[201 Cal.Rptr. 487]Additional support for this interpretation is found in the Supreme Court's description of the overall effect of the provisions of Prop. 8. In upholding the constitutionality of the proposition against a challenge that its multiple provisions violated the single subject requirement of Article II, section 8, subdivision (d) of the California Constitution, the court stated: "Each of its several facets bears a common concern, ... promoting the rights of actual or potential crime victims.... These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, [and] protecting the public from the premature release into society of criminal offenders...." (Brosnahan v. Brown, 32 Cal.3d 236, 247, 186 Cal.Rptr. 30, 651 P.2d 274 (1982).) The construction requiring proof of both prongs significantly limits the class of persons who can be found insane. It therefore subjects a greater number of persons to criminal sentence rather than for care and treatment or release into the community. Such construction is consistent with the perceived interest of the voters in punishing and deterring criminal offenders and thereby providing greater protection to the public.
Several of appellant's hypotheses that "and" should be read "or" would require us to speculate as to the collective mind of voters or ascribe to them a sophisticated awareness of the development of the law of insanity. We must " '... assume that the voters ... "have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them ... and which they must be assumed to have duly considered...." ' " (Brosnahan v. Brown, supra, 32 Cal.3d 236, 252, 186 Cal.Rptr. 30, 651 P.2d 274, italics omitted.)
Appellant's reliance on Keeler v. Superior Court (1970) 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, as requiring the statute to be construed most favorably to him is misplaced. Only ambiguous penal statutes, those susceptible of two reasonable interpretations, are subject to the rule favoring a defendant. (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186.) Section 25, subdivision (b) is not susceptible to two reasonable interpretations. Even the rule requiring favoring the defendant is subject to the paramount rule of construction to " 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' " (Id., p. 828, 176 Cal.Rptr. 521, 633 P.2d 186.)
Reading section 25 in its entirety makes it clear that the voters intended to reduce the effect of mental disabilities when determining guilt (subd. (a)) and responsibility for criminal behavior (subd. (b)), and to limit the effect of such disabilities to the determination by the court of suitable punishment (subd. (c)).
We also reject appellant's contention that the disjunctive M'Naughton rule is constitutionally required. While "[i]t is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane" (People v. Kelly (1973) 10 Cal.3d 565, 574, 111 Cal.Rptr. 171, 516 P.2d 875), no particular test for insanity is constitutionally mandated by the due process clauses of the California or United States Constitutions. (U.S. Const., Amend. XIV; Cal. Const., art. I, §§ 7, 15.)
In Leland v. Oregon (1952) 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, the United States Supreme Court upheld an Oregon statute which required the accused to prove his insanity beyond a reasonable doubt. The test in the statute for insanity was the "right and wrong" test, a single prong of the traditional M'Naughton test, excluding irresistible impulse. The defendant attacked both the burden of proof and the insanity test.
In challenging the right-wrong test defendant argued that the test was fundamentally unfair in view of the strides made by psychiatry since the test was first laid down in M'Naughton. In response, the court noted the truth of that observation but stated: "... the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from [201 Cal.Rptr. 488] their criminal law. [Fn. omitted.] Moreover, choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. [Fn. omitted.]" (Id., p. 801, 72 S.Ct. p. 1008.)
The same view expressed in Leland was adopted by the California Supreme court in People v. Wolff (1964) 61 Cal.2d 795, 802, 40 Cal.Rptr. 271, 394 P.2d 959, when it rejected similar arguments and stated: "But the extent and nature of advances in psychiatric knowledge during the past decade are not shown, and we are not persuaded that they have been of such a revolutionary scope as to undermine the holding in Leland. [Fn. omitted.]" Neither has any such showing been made here.
The foregoing make it clear that a defense of insanity may be a " '... principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental' ..." (See Leland v. Oregon, supra, 343 U.S. 790, 798, 72 S.Ct. 1002, 1007, 96 L.Ed. 1302), but that no particular definition of insanity has such roots.
The M'Naughton test was originally devised to determine what persons were the proper subject for execution. Later the disposition of those found insane was changed. The procedural and definitional variations among the states and in England are set forth by the courts in Leland, Kelly, Wolff, and Drew, supra. The definitional variations of the nature and degree of insanity which will render a person not criminally responsible for his or her actions indicate the question is one of social policy.
The decision whether to impose criminal responsibility is akin to the decision as to what acts or omissions will be criminal and what punishment is suitable. Such questions have long been held to be subject to legislative determination. (Keeler v. Superior Court, supra, 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617; People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)
Appellant also argues that the due process clauses are violated by placing the burden of proof on the issue of insanity on the proponent. (§ 25, sub. (b); Evid.Code, § 522.) This issue has been rejected in Leland, supra, and most recently in People v. Drew, supra, 22 Cal.3d 333, 348-349, 149 Cal.Rptr. 275, 583 P.2d 1318. Nothing in either case suggests that a change in the definition of insanity would effect such a result. (Also see Patterson v. New York (1977) 432 U.S. 197, 202-203, fn. 9, 97 S.Ct. 2319, 2322-2323, fn. 9, 53 L.Ed.2d 281.)
Appellant is also incorrect in his assertion that section 25, subdivision (b) establishes a presumption of sanity or abolishes the defense of insanity. Therefore, his citations to cases which relate to the constitutionality of presumptions are inapposite.
We find appellant's other constitutional arguments similarly without merit. A penalty which is so disproportionate to the crime as to shock the conscience and offend fundamental notions of human dignity is cruel and unusual punishment under the federal and state Constitutions. (Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.) However, a legislative decision as to which mentally ill persons are criminally responsible and therefor subject to punishment is not the imposition of a penalty.
The determination of sanity or insanity is essentially one which affects what will happen to a person who stands convicted of a substantive offense. If found sane, he is subject to the same range of criminal sentences as all others similarly convicted. (§ 1026.) If he is found insane, he is subject to commitment for the maximum period for which he could have been confined on the substantive offense (Id.) or longer (§ 1026.2 In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097.) Therefore, to the extent that an involuntary confinement in an institution is in some respects penal in nature (see People v. Burnick (1975) 14 Cal.3d 306, 121 Cal.Rptr. [201 Cal.Rptr. 489] 488, 535 P.2d 352; People v. Feagley (1975) 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373), the penalty is potentially greater for those found insane under section 1026 rather than sane. In addition, appellant has presented no information which would indicate a violation of those factors set forth in Lynch, supra, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921.
Appellant's argument that section 25, subdivision (b), as construed, violates the equal protection clauses of the California and/or federal Constitutions is similarly flawed. He claims that section 25, subdivision (b) works invidious discrimination on the mentally ill defendant.
Arguably one killer could be exculpated because he did not know the nature and quality of his act and a fortiori was unable to distinguish right from wrong in relationship thereto. Another killer such as appellant might know the nature and quality of his act, i.e., that he was in fact killing, but did so because he believed irrationally he had a God-given right to do so. This latter belief does not, however, determine whether he was able to distinguish right from wrong for purposes of the insanity test.
California cases have explained the right-wrong prong as follows: "If he has reasoning capacity sufficient to distinguish between right and wrong as to the particular act he is doing, knowledge that what he is doing is wrong and criminal and will subject him to punishment, he must be held responsible for his conduct." (People v. Troche (1928) 206 Cal. 35, 46, 273 P. 767.) California cases equate wrongfulness with social condemnation; knowledge of wrongfulness means knowledge the act "... was a violation of the rights of another ..." (People v. Oxnam (1915) 170 Cal. 211, 213, 149 P. 165, disapproved on other grounds in In re Raymon M. (1978) 22 Cal.3d 419, 429, 149 Cal.Rptr. 387, 584 P.2d 524; People v. Wolff (1964) 61 Cal.2d 795, 801, 40 Cal.Rptr. 271, 394 P.2d 959) and "... could subject him to punishment ..." (People v. Wells (1949) 33 Cal.2d 330, 351, 202 P.2d 53, disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 327, fn. 7, 149 Cal.Rptr. 265, 583 P.2d 1308).
Even assuming arguendo that the new test discriminates between psychotics, no invidious discrimination has been shown. All insanity tests distinguish among the mentally ill and exculpate only those whose illness results in incapacity to meet the minimum criterion for responsibility. California cases are replete with references to the fact " '[s]ound mind' and 'legal sanity' are not synonymous...." (See e.g., People v. Wolff, supra, 61 Cal.2d 795, 816, 40 Cal.Rptr. 271, 394 P.2d 959.) The purpose of the rules regarding insanity as a defense has always been to separate the sane from the insane so far as criminal responsibility is concerned. (People v. Nash, supra, 52 Cal.2d 36, 53, 338 P.2d 416.) It does not depend on a particular diagnosis but rather on the effect of the mental illness on a person's capacity regardless of the diagnosis. (See e.g., People v. Wolff, supra, 61 Cal.2d 795, 810-816, 40 Cal.Rptr. 271, 394 P.2d 959.) In fact, under our statutory law " 'Insanity' may and does mean a variety of different things. Depending on the pertinent statute, a variety of issues of fact can be the subject of litigation." (People v. Nash, supra, 52 Cal.2d 36, 53, fn. 8, 338 P.2d 416 (1959).)
The second reason we cannot uphold appellant's contention is that he incorrectly defines the class for equal protection purposes. "The basic rule of equal protection is that those persons similarly situated with respect to the legitimate purpose of the law must receive like treatment...." (People v. Karsai (1982) 131 Cal.App.3d 224, 243-244, 182 Cal.Rptr. 406.) Section 25, subdivision (b) does not distinguish between psychotics. It defines and distinguishes those mentally ill persons who are legally insane and those who are not. The mentally ill but legally sane are not similarly situated to the legally insane with respect to the legitimate purpose of the law.
"A verdict on a plea of not guilty by reason of insanity is not merely an acceptance or rejection of a medical diagnosis, or a decision that punishing the accused [201 Cal.Rptr. 490] would or would not be therapeutic for him. Nor is it purely a determination that society would be better protected, on the one hand, by execution of the accused or his confinement in an institution set up under the Penal Code, or, on the other hand, by his confinement in an institution set up under the Welfare and Institutions Code. By their [sic] decision on the insanity plea the jury are [sic] to some extent expressing ancient convictions that society can properly punish the man who offends it because the punishment is a sort of justified collective purge or vengeance; a purge to rid society of the offender and thereby to protect it, and vengeance to show retribution on the transgressor, thereby to deter others and thus to protect society...." (People v. Nash (1959) 52 Cal.2d 36, 49, 338 P.2d 416.)
The finding of sanity permits the person convicted to be punished; those insane will be treated for their mental illness and released upon the restoration of their sanity. (See, In re Franklin (1972) 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465.) Criminally insane persons, i.e. those who know neither the nature of their act nor its wrongfulness, would presumably be unable to benefit from the punishment imposed by way of a criminal sentence or to be rehabilitated or deterred thereby.
On the other hand, persons who know the nature and consequences of their act or who know the act they are committing is wrong could benefit from or be deterred by criminal punishment. Therefore, the criminally insane under section 25, subdivision (b) are different than the noncriminally insane with respect to the legitimate purpose of the law.
The voters could rationally conclude that those who met only one prong of the test could be properly punished, while those who met both prongs would be confined and furnished care and treatment until the requisite restoration of sanity occurred. This finding is particularly compelling since the decision to punish the legally sane defendant does not necessarily negate his care and treatment for his mental illness. Numerous provisions of the Penal Code provide the potential for care and treatment of the mentally ill incarcerated persons. (See e.g., §§ 1203.03, 2684, 2685, 2960, 4011.6, 4011.8, 5068, 5079, 5080, all of which relate to the identification, care and treatment of convicted persons.)
Appellant's contentions that section 25, subdivision (b) deprives him of his right to a jury trial is meritless. Section 1026 clearly gives one claiming insanity as a defense a right to a jury trial on all the issues. Those issues are defined by section 25, subdivision (b).
The judgment is affirmed.
STONE, P.J., and GILBERT, J., concur.