Custer

Defendant appeals from the judgment entered following a nonjury trial that resulted in his conviction of the crime of murder of the second degree. The victim of the homicide was Rhonda Jane Smith, the nine-year-old child of appellant's wife by a former marriage. Appellant makes but one contention which he expresses as follows: "Appellant was deprived of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the California Constitution in that appellant was denied due process of law and a full and fair trial in that appellant was insane at the time of the commission of the alleged crimes with which he was charged and thus incapable of committing crimes under section 26, subdivision 3 of the Penal Code of California." Since appellant does not challenge the sufficiency of the evidence to establish his guilt, apart from the issue as to his sanity, and the facts are not in dispute, we accept the summary thereof substantially as set forth in respondent's brief. Clara Jane Custer lived with appellant and her two children, Rhonda Smith and Randy Smith, on October 27, 1965. On that date appellant gagged his…

In my view this is a case of murder where the element of malice aforethought has not been proved. While I agree with the finding of the trial court on the issue of legal sanity, I think the evidence unequivocally discloses that defendant by reason of severe mental illness lacked the capacity for malice required for murder. (Pen. Code, § 187 ) On four different occasions before the killing he had been a patient in mental hospitals under treatment for schizophrenia, and immediately after the killing he underwent a year's treatment in Atascadero State Hospital for insane delusions. Although defendant has refused to argue the issue of diminished capacity, we have an independent responsibility in the matter, and I would reduce the judgment of conviction from second degree murder to manslaughter, i.e. a voluntary killing without malice by reason of defendant's diminished capacity to entertain malice. (Pen. Code, § 192 ; People v. Conley, 64 Cal.2d 310 , 323 [ 49 Cal.Rptr. 815 , 411 P.2d 911 ].) Appellant's petition for a hearing by the Supreme Court was denied May 15, 1968. Peters, J., was of the opinion that the petition should be granted. *Page 244

—Defendant appeals from the judgment entered following a nonjury trial that resulted in his conviction of the crime of murder of the second degree. The victim of the homicide was Rhonda Jane Smith, the nine-year-old child of appellant’s wife by a former marriage.

Appellant makes but one contention which he expresses as follows: ‘‘ Appellant was deprived of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 13 of the California Constitution in that appellant was denied due process of law and a full and fair trial in that appellant was insane at the time of the commission of the alleged crimes with which he was charged and thus incapable of committing crimes under section 26, subdivision 3 of the Penal Code of California. ’ ’

Since appellant does not challenge the sufficiency of the evidence to establish his guilt, apart from the issue as to his sanity, and the facts are not in dispute, we accept the summary thereof substantially as set forth in respondent’s brief.

Clara Jane Custer lived with appellant and her two children, Rhonda Smith and Randy Smith, on October 27, 1965. On that date appellant…