THE PEOPLE, Plaintiff and Respondent, v. RODNEY KEITH WELBORN, Defendant and Appellant, 257 Cal. App. 2d 513

MOSS, J. —Defendant pleaded not guilty and not guilty by reason of insanity to a charge of the murder of Rick Rebbe. The court appointed three psychiatrists, Drs. Crahan, Drury and Walters, to examine the defendant as to his sanity pursuant to

section 1027 of the Penal Code. By stipulation, in which defendant personally joined, the guilt issue was submitted to the court upon the transcript of the preliminary hearing and of a conversation between defendant and the investigating officer. Both sides waived argument. The court found defendant guilty of murder of the first degree. By stipulation, in which defendant personally joined, the sanity issue was submitted for decision by the court upon the reports of five psychiatrists who had examined defendant.

The court found that defendant was sane at the time of the homicide and at all times during the trial, and sentenced defendant to life imprisonment. Defendant made a motion for new trial which his counsel submitted withoxit argument. The motion was denied. Defendant appealed and we appointed counsel at his request. We granted defendant’s motion to augment the record to include the reports of the five psychiatrists who examined defendant and the transcript of defendant’s statement to the investigating officer.

We have concluded that the failure of defense counsel to offer in evidence at the guilt phase of the trial psychiatric evidence that the record shows was available, while at the same time neither offering nór arguing any other defense, resulted in a total failure to present the cause of the defendant in any fundamental respect, and thereby deprived him of his constitutional right to effective aid of counsel. We therefore reverse the judgment. On Saturday afternoon, November 20, 1965, defendant and the victim, Richard Rebbe, went hunting.

Rebbe failed to return and on Monday, November 22, 1965, at 3 :30 p.m. the police called at the home where defendant resided with his parents and asked him if he knew where Rebbe was. Defendant stepped out of the doorway and said, “Well, he is dead.” The police then advised defendant of his constitutional rights and asked him if he understood them. Defendant said he understood and that he was going to turn himself in and would have told the police officers earlier but that his family was present.

Defendant then told the officers how he had shot Rebbe while they were hunting together in the Angeles National Forest. He then gave the officers the pistol he had used to fire the first shot and directed the officers to the places where he had thrown the victim’s rifle and where he had left the victim’s body. The same night, November 22, 1965, at 10 :30 p.m. the police again questioned the defendant. At 1:08 a.m. the defendant made a statement which was transcribed and by stipulation received in evidence.

Defendant told the officers that early in the outing he had accidentally fired a shot very close to Rebbe’s arm. He told them that after he and Rebbe had been hunting for about one hour they had had an argument because defendant wanted to go home and Rebbe wanted to stay on. Defendant's account of what happened after the argument with Rebbe was as follows: “Q. Was this argument just a slight one or violent? A. Just—no—friends, he was more or less stubborn and I accepted it. As he got me kind of careless and I thought he was off shooting someplace else and I was kind of daydreaming.

I turned sideways towards him, 1 guess, and 1 was facing in the other direction and aiming the gun just like we were shooting at trees and things, like that, and I had the gun—I had my arm out in a rigid position and as I pulled the trigger he was standing behind me or beside me with his back toward me and I hit him one time before I turned around and I fired it two or more times before I could realize what was happening.” Rebbe was limp on the ground after being shot. “Q. Then what happened?. A. His breathing was kind of heavy, then and he was unconscious.

I felt like—like I was going to faint or something and I wandered about for a few minutes, I guess, and I didn’t know what to do. I picked him up and I drug him or actually carried him about 20 yards over underneath a bush that was sort of like a tree protruding out of the side of the hill there. And I was—I left him there for a few minutes, I guess, and didn’t know what to do. And I picked up the rifle and aimed it at his head and I turned my head and I fired it and it struck him in the head either in the forehead or in the top of his head, I don’t know. . . . Q.

Rodney, can you tell us, give us any reason why you shot and killed Richard Rebbe? A. No. Q. You cannot? A. Carelessness. Just clowning around. ” A medical expert testified that both the first shot fired from defendant’s pistol and the second shot fired from the victim’s rifle a few minutes later could have been fatal. When the trial commenced the psychiatric reports of Drs. Crahan, Drury and Walters were on file with the court. The psychiatrists were not called to testify. Their reports were not admissible in evidence except upon stipulation.

No such stipulation was presented at the guilt phase, and there is no indication in the record that the trial judge had read or considered them at the time he found defendant guilty of murder of the first degree. The sanity phase of the trial was by stipulation submitted to the court upon the foregoing reports and in addition upon the reports of Drs. Thompson and Nielsen. Drs. Drury, Nielsen and Thompson concluded that defendant was insane at the time he shot Rebbe. Dr. Crahan, although concluding that defendant was sane, also concluded that defendant was mentally disturbed. Of the five psychiatrists, only Dr.

Walters did not conclude that defendant was mentally ill to some degree. We summarize the psychiatric reports in the footnote to show the evidence bearing on the issues of premeditation, deliberation and malice aforethought which the record indicates was available to defense counsel at the trial and at the time of the motion for new "It is counsel’s duty to investigate carefully all defenses of fact and law that may be available to the defendant, and if bis failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.” (People v.

Ibarra, 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487].) Where the defense of diminished capacity is “ 'withheld not through faulty judgment, but in default of knowledge that reasonable inquiry would have produced, and hence in default of any judgment at all’ ” the omission may constitute “ ‘a total failure to present the cause of the accused in any fundamental respect’ ” and will result in a denial of the fair trial contemplated by the due process clause. (People v. Ibarra, supra, pp. 460, 465, quoting from Brubaker v.

Dickson (9th Cir. 1962) 310 F.2d 30, 38-39.) “To justify relief on the ground of constitutionally inadequate representation of counsel, “ ‘an extreme case must be disclosed’ ” [Citations]. It must appear that counsel’s lack of diligence or competence reduced the trial to a ‘farce or sham. ’ [Citations] ’’ (People v. Ibarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487.) Defendant has the burden, moreover, of establishing his allegation of inadequate representation ‘not as a matter of speculation but as a demonstrable reality. ’ ” [Citations] (People v.

Reeves, 64 Cal.2d 766, 774 [51 Cal.Rptr. 691, 415 P.2d 35].) At the time this ease was tried on March 29 and 30, 1966, the law was well settled that evidence that the defendant in a criminal proceeding had a mental disorder can be used to show that he did not have a specific mental state essential to the commission of an offense. (People v. Wells, 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, 51 Cal.2d 716 [336 P.2d 492]; People v. Henderson, 60 Cal.2d 482 [35 Cal.Rptr. 77, 386 P.2d 677] ; People v.

Wolff, 61 Cal.2d 795 [40 Cal.Rptr. 271, 394 P.2d 959].) An attorney who undertakes the defense of a murder charge should be aware of the relevance and usefulness of such evidence. The admissibility of evidence of an abnormal mental condition short of insanity to negative the element of premeditation and malice aforethought was established in People v. Wells, supra, 33 Cal.2d 330, 350, in 1949. Discussion of the use of such evidence may readily be found in standard reference works. (1 Witkin, Cal. Crimes, §§ 300, 321, pp. 274, 292; 18 Cal.Jur.2d, Evidence, §76, pp. 503, 504; McKinney, New Cal.

Dig., Criminal Law, § 403(2) ; West’s Cal. Dig., Criminal Law, § 474.) Evidence that defendant suffered from a mental disorder was crucial to his defense in this ease. Since there was no evidence that the homicide was committed in any of the ways specifically enumerated in Penal Code,

section 189, a finding of first degree murder could only have been predicated on a finding that the killing was “wilful, deliberate and premeditated. ’ ’ The evidence presented by the prosecution did not provide a strong basis for the inference that either of the fatal shots was premeditated and deliberate. Defendant and Kebbe were apparently friends. There was no evidence of any bad feeling between them before the hunting trip began. In the early part of the trip defendant fired a shot close to Bebbe’s arm.

Bebbe apparently believed defendant’s explanation that the shot was not intended to hurt him because the two men continued to hunt together. There is little in the evidence, therefore, from which it can be inferred that defendant had deliberated about the first fatal shot before he fired it. Defendant said that he fired the second fatal shot to end Bebbe’s suffering. Evidence that defendant was in a mental state of dissociation when he fired the second shot might reasonably have convinced the trier of fact that that shot also was not “deliberate.” (See People v. Holt, 25 Cal.2d 59 [153 P.2d 21]; People v.

Thomas, 25 Cal.2d 880 [156 P.2d 7]; People v. Bender, 27 Cal.2d 164 [163 P.2d 8].) Evidence of defendant’s abnormal mental condition was also crucial on the issue of whether he shot Bebbe with malice aforethought. The mental state encompassed by the phrase “malice aforethought” was described in People v.

Conley, 64 Cal.2d 310, 322 [49 Cal.Rptr. 815, 411 P.2d 911], as follows: "An intentional act that is highly dangerous to human life, done in disregard of the actor’s awareness that society requires him to conform his conduct to the law, is done with malice regardless of the fact that the actor acts without ill will toward his victim or believes that his conduct is justified. In this respect it is immaterial that he does not know that his specific conduct is unlawful, for all persons are presumed to know the law including that which prohibits causing injury or death to another.

An awareness of the obligation to act within the general body of laws regulating society, however, is included in the statutory definition of implied malice in terms of an abandoned and malignant heart and in the definition of express malice as the deliberate intention unlawfully to take life. ’ ’ The psychiatric evidence which was available to defense counsel was, therefore, also relevant to the issue of whether at the time of the homicide defendant was aware of his duty to society to act within the law.

The record in this case shows unmistakably that defense counsel’s failure to raise the defense of diminished capacity was the result of ignorance of the law, not trial tactics. Even without defense evidence, the prosecution’s ease concerning defendant’s mental state at the time of the shooting was open to argument. Defense counsel waived argument.

The psychiatric reports available to counsel before the trial began pointed to the strong possibility of an abnormal mental condition in this case; yet defense counsel took the initiative in stipulating that the case be submitted on the transcript of the preliminary hearing without reference to the psychiatric reports. The fact that defense counsel again took the initiative in stipulating that the sanity phase of the trial be submitted on the reports of the psychiatrists indicates that counsel probably thought that the reports were relevant only to the sanity issue.

After the degree of the murder had been fixed as first degree, and all of the psychiatrists’ reports were in evidence, defense counsel submitted the motion for new trial without argument. There is nothing in the record to indicate that the trial judge considered or was even aware of the possible defense of diminished capacity. Therefore, the complete failure of defense counsel to produce either evidence or argument at the guilt stage of the trial and in support of the motion for new trial reduced the trial to a farce and a sham.

In holding that defense counsel failed to present a crucial defense, we do not imply that the psychiatric reports or psychiatric testimony would, if received in evidence, necessarily prove that defendant did not act with malice aforethought or with the kind of premeditation and deliberation necessary for a conviction of first degree murder. The judgment is reversed. Ford, P. J., and Cobey, J., concurred. A petition for a rehearing was denied January 11, 1968. Had the psychiatric evidence been offered by the defense, the court would have committed reversible error had it refused to receive it. (People v.

Steele, 237 Cal.App.2d 182 [46 Cal.Rptr. 704].) The theory that a mental disease or defeet not amounting to legal insanity may negate the existence of an element of a crime is often called the theory of “diminished capacity.’’ (People v. Anderson, 63 Cal.2d 351, 364 [46 Cal.Rptr. 763, 406 P.2d 43].)