[923]ROTH, P. J. I dissent.
The only evidence received on the defendant’s mental state prior to and at the time of the crime was offered by the defense, elicited from Dr. James Wells, a psychiatrist. The majority characterize the expert’s testimony as the “proposition” that defendant’s capacity to deliberate and premeditate was diminished. The majority fail to make clear that it is the only evidence in the record specifically directed to defendant’s mental capacity and that it demonstrates that defendant’s mental capacity was diminished.1
The majority proceed on the assumption that there was substantial evidence to support the judgment of first degree murder. It must be conceded that unless evidence resulting in a verdict of first degree murder is substantial, no court can or should affirm a conviction for that offense. (People v. Bassett, 69 Cal.2d 122, 138-139 [70 Cal.Rptr. 193, 443 P.2d 777].) I am unable to agree that the evidence at bench is “substantial,” when the inherent nature of the crime, fortified by uncontradicted testimony of a concededly reputable expert indicating diminished capacity, is rejected for no apparent reason. A jury’s discretion to fix the degree of a crime is not absolute. (People v. Tubby, 34 Cal.2d 72, 76 [207 P.2d 51].)
It seems to me that there should be apparent from the record reasonable and logical inferences to reject the uncontradicted psychiatric testimony. Indeed the law enjoins such rejections for fanciful, imaginative or for personal reasons. (People v. Bender, 27 Cal.2d 164, 186 [163 P.2d 8].)
The mental elements of premeditation and malice requisite for first degree murder may, of course, be proved by circumstantial evidence. At bench, those two legal prerequisites, assuming complete rejection of the [924]psychiatric testimony, admittedly may be legally inferred from the uncontradicted surface facts presented by the majority. It is clear that the defendant thought about the killing, loaded, aimed and fired the weapon and thereafter notified the police of the awful deed. Direct or circumstantial evidence of the type of passion, anger, viciousness, or the type of premeditation and malice harbored by a vengeful or inflamed but undiminished mentality usually present in every first degree murder case are wholly absent. To the contrary, the record abounds with evidence showing that over a long period of years appellant’s mind was so infected with the multiple virus of paternal guilt, helplessness, hopelessness and vicarious suffering, that appellant’s thinking on the subject of his unfortunate child at the time of the killing was tortured, warped and diminished beyond repair, and that the only possible motive was appellant’s muddled judgment that death of the victim was the only answer to “. . . the years of hopeless search . . .” to help his unfortunate son.
The quoted phrase is that of the majority. The record shows devotion, love and understanding of defendant toward his son for the full period of the latter’s life and a continuous, conscientious and heartrending as well as “hopeless search” made, with sacrifice of substantial expenditures of thought, time and money. The relationship between the victim and his father is a devastating rebuttal of any inference that defendant had “an abandoned and malignant heart” (Pen. Code, § 188; 1 Witkin, Cal. Crimes, pp. 289-290.)
Dr. Wells, an expert of undoubted reputation, with 22 years in the practice of psychiatry, who, the record shows, was frequently used by the trial court, was the only expert who testified. He recited an abundance of background and current facts and made significant psychiatric observations, fortified by psychiatric, findings and conclusions from the same as to which he was rigorously and intelligently cross-examined, indicating almost infallibly diminished mental capacity, as that term is defined in the cases. (People v. Conley, 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911]; People v. Mosher, 1 Cal.3d 379, 389 et seq. [82 Cal.Rptr. 379, 461 P.2d 659].)
His direct evidence covered approximately 18 pages of the reporter’s transcript and the cross-examination 72. No part of his testimony is refuted or even shaken. It is difficult to believe beyond reasonable doubt that defendant had sufficient control of his mental processes to have harbored the type of premeditation and malice required as conditions precedent for conviction of murder in the first degree. A few brief excerpts of the expert’s testimony which relate to the whole as does the crest of an [925]iceberg, demonstrate defendant’s tortured, warped and diminished mental process.
“. . . He certainly saw himself as the guilty person in regard to Doug’s illness, and certainly took the responsibility for Doug’s death. He was very remorseful, suppressed, remorse, and I was convinced that he was remorseful primarily in terms of the harm that he thought he had done his family by this act. He made it very clear that at the time that he made the decision to end Doug’s life, he was convinced that the entire family would turn away from him and leave him to whatever punishment might be met as a result of this action; that he had been shocked and surprised that the family had ralied [¿ic] around him, and felt more than ever that he had hurt them by this action. I think that at the same time perhaps in some respects there is a sense of relief for Doug from his point of view.”
Recounting one of the interviews with defendant in jail, the doctor testified:
“On each occasion when I arrived at the jail, Mr. Gibson was in solitary confinement up on the—whatever it is, fourth or fifth deck—and a very secluded area. He indicated that it was his preference that he be in that area. He said that it was partly at his request that he be there. He stated that he was taking—that he had two medications, internal cardiac medication, nitroglycerin, another medication used to reheve the spasm we mentioned earlier. That he had been quite upset when first placed in a cell block, that he was particularly upset because of the abuse of a mentally defective prisoner by the other prisoners in the cell. That they had forced this prisoner to dance in the nude and other activities in the absence of the jailer and mocked him. Mr. Gibson felt powerless to intervene physically, but was in time able to inform the jailers of this, and subsequently he was removed from his cell. He made the comments that it roused images in his mind to the possibility of Doug being treated in the same fashion.”
Testifying as to defendant’s reactions when the decedent was in Camarillo, the doctor related that the defendant told him:
“ ‘We got him into Camarillo. It was so pitiful. They didn’t do anything for him.’ This was Mr. Gibson’s opinion, of course. He added that they could go get Doug every weekend and take him out for visits with the family. Mr. Gibson was hoping—he told me this—he said, ‘He had to hold my hand all the way home. He got so skinny. We had to- stop and get something to eat—a hamburger and French fries’—which he had explained earlier were one of Doug’s favorite foods. T hated to take him back. The doctor said it was best for me. Oh, he hated to go in that [926]place. He was there four months or so. They wrote and told us to come and get him, that they couldn’t do anything. I was actually glad. It was so pitiful. He had lost so much weight. He didn’t have any table manners when he came back.’ ”
“. . . . A. Yes. My opinion is that at the time, Mr. Gibson was suffering from a very significant degree of depression. He stated that he had been wrestling with the possibility of this action for approximately two¡ months. He had made a decision the day prior to- the act that it must be done. I perhaps should add parenthetically that Mrs. Gibson made the observation on the Sunday prior, that would have been the 3rd, that she noticed a very marked change in her husband that day. She was not aware why, but he seemed much more depressed. In any event, I do believe that Mr. Gibson has been suffering from a severe chronic state of mental depression brought about by a breakdown of his own emotional competence because of his own failing health certainly exacerbated and accelerated by the family problems, preoccupations and concerns with Doug, and his illness and obsessive concern with the prospects of the future for Doug; also exacerbated by another family strife including the estrangement from the younger daughter; a feeling of guilt and responsibility on his part for the actions or for the boy’s illness and for some of the other family problems including his daughter’s actions, and that this state of mind, this depressive state, did bring about a marked alteration in his capacity to exercise full judgment. I do not believe that he was in any way out of contact. He was aware of where he was and what he was doing, this type of thing. I think it could be said to- be aware of the consequences of his actions, but very emphatically he was suffering from a significant degree of emotional disorder.
“Q. Doctor, in your opinion, would that state of mind that he had on January 4 of this year have impaired his judgment?
“A. Yes, I definitely think so.
“Q. And would that state of mind on January 4, 1971, have impaired his capacity to reason?
“A. Yes, I believe so.
“Q. And would that state of mind that he had on January the 4th of [927]this year have impaired his capacity to fully understand the nature and quality of his actions?
“A. I believe so.
“Q. Well, could you explain what, to a psychiatrist, then, the difference between understanding something is on the one hand, I guess, and fully understanding something on the other hand; are these two different concepts to a psychiatrist?
“A. I don’t know that it is necessarily a psychiatric technicality that we are concerned with here, Mr. Minier. I think it is a matter of simple understanding that there are levels of which we can understand anything, and I think at a very simple uncomplicated level, Mr. Gibson was aware of what he was doing when he made a decision to end his son’s life. He knew that when he took a gun and pointed it at the boy and pulled the trigger what would happen, but I am saying that there was impairment of his judgment and of his reason and of his motivation, that there was distortion in his motivations in so doing.
“A. Yes. I am thinking of abstracts of a sort, of things of his own thinking at the time. For example, that in so doing, he would be a pariah and would be totally separated from his family who would then not be hurt by his act. I am thinking of the fact that he acted out of an absolute conviction that Doug was faced with a future of pain and torture and discomfort at the hands of others without truly knowing this, but this was his conviction at the time. I am thinking that he had assumed a tremendous burden of guilt and responsibility for this child’s illness. Far out of keeping with the facts, we don’t know the cause of this kind of illness, but I think he was convinced that he was the present cause.”
Significantly, at one point in the record, Dr. Wells testified: “Now, in your judgment then, was Mr. Gibson able to maturely understand the nature and the gravity of the act of the killing of his son at the time that it happened? A. Not in my opinion.”
Among other things, referring to appellant’s attempt at suicide in 1966, Dr. Wells said: “It was partially because the family didn’t want notoriety that he was treated at home rather than hospitalized, and his wife states that he did not wake up for over 24 hours, and she also describes the fact that there was a purplish dusky hue to the skin at the time that he was [928]found. The reason that 1 think this is significant is because he may hme been in this condition long enough to have severely embarrassed the blood supply and oxygen supply to the brain so that it may have been a contributing factor to some of the personality changes that seem to have taken place. We all, of course, have some increasing memory deficit as the years accumulate. But there are some occasions that the wife noted that his memory and recall perhaps was not as good as subsequently.” (Italics added.)
There was substantial evidence to show distinct personality changes in appellant after the suicide attempt. In fact, during the entirety of his extensive testimony, on cross-examination, Dr. Wells maintained his opinion that defendant’s mental capacity to understand the nature of his act had been impaired, going so far as to state that defendant’s diminished capacity regarding the murder of his son continued to the time of trial.
In this respect, the following questions were put to the doctor:
“Q. Other than the fact that the defendant had this diminished capacity, he does not fall into any of those classes, those psychiatric classes, or what we call classes of psychiatric disorders, does he?
“A. Well, surely I think he would.
“Q. What is he then?
“A. I think that he is suffering from a reactive depression or, excuse me, a depression reaction'. I think there is some question not completely answered as to whether or not his depression at times has been of psychotic proportions. Certainly he was suffering from a clearly—from a neurotic depressive reaction, and he may very well have, at times, reached a point where his reality testing was sufficiently disturbed that would be described as a psychotic depressive reaction.” (Italics added.)
“Q. Is he psychotic as he sits here today?
“A. I don’t know for sure. I doubt it.
“Q. Was he psychotic when you interviewed him in the jail?
“A. No, I don’t think that he was.
“Q. Is he neurotic as he sits here today?
“A. Yes.
“Q. You can tell just by looking at him?
“A. I can give you an opinion.
“Q. Was he neurotic when you interviewed him in the jail?
[929]“A. Yes.”
Dr. Wells also stated that the defendant’s long history as a heart patient may have affected his mental processes. Significantly, the prosecution produced rebuttal testimony on this latter point—to the effect that heart patients do not undergo personality changes—but it failed to produce any testimony or evidence regarding the effects of the blackout suffered by appellant after the suicide attempt nor, as appears above, was there any direct showing in rebuttal concerning the ultimate issue, namely the defendant’s diminished mental capacity.
When the testimony of an established and reputable psychiatrist, fortified by the inherent nature of the crime, is completely ignored and when neither the state nor the majority can point to any evidence except technical legal inferences flowing from the fact of the killing which supports premeditation and malice, fulsome and blind submission to and acceptance of the jury’s finding that those two indispensable elements were present, is an obeisance not required of any court, trial or appellate. (See People v. Wolff, supra, 61 Cal.2d 795; see People v. Bassett, 69 Cal.2d 122; see People v. Anderson, 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942].)
A murder such as the one at bench cannot be excused but when Gibson, ill in body and mind, shot his son, the jury should have recognized the difference between a homicide requiring “more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill.” (People v. Wolff, supra, 61 Cal.2d 795, 822.)
The court found there was no substantial evidence in Wolff to support premeditation. At bench there is no substantial or any evidence to support premeditation or malice. In- my opinion, the evidence at bench sustains a judgment of voluntary manslaughter. (People v. Conley, supra, People v. Mosher, supra.) The Conley instruction was given, but apparently because, the psychiatric evidence was ignored or rejected by the jury, it was not followed.
I would modify the judgment to voluntary manslaughter, and as so modified, I would affirm.