High Court Urged to Back Disputed Legal Doctrine : Murder: Legislature barred ‘diminished capacity’ in 1981, but issue of malice is still a factor. Case involves a killer who was drunk when he fatally shot a man.

The state Supreme Court was asked by defense attorneys Tuesday to apply a disputed legal doctrine that would permit killers to escape murder charges if they were intoxicated or mentally impaired at the time of the crime.

The justices heard argument in a pivotal case among several that have arisen following the abolition of the controversial “diminished capacity” mental defense by the Legislature in 1981.

At issue is whether a convicted Los Banos murder defendant--drunk when he fatally shot one man and wounded another in a barroom brawl--was wrongfully denied a chance to win a lesser verdict of manslaughter.

The high court’s decision, due within 90 days, could have broad impact. A wide range of murder defendants in recent years have sought to show they lacked responsibility for their crime because of drunkenness, heavy drug use or mental defect.

In one case pending before the high court, lawyers for Sheryl Lynn Massip of Anaheim are contending she is entitled to a reduced verdict of manslaughter on grounds she suffered from postpartum psychosis when she drove over her 6-week-old child with the family car.

The judicially created diminished-capacity doctrine was eliminated in the furor after San Francisco Supervisor Dan White was found guilty of manslaughter, rather than murder, in the 1978 City Hall killings of Mayor George Moscone and Supervisor Harvey Milk.

White argued that he was under too much stress to form the mental state necessary to commit murder due to personal anguish over political differences with Moscone and Milk. White served five years in prison, was released and then took his own life.

Though the ability to claim a diminished-capacity defense was removed, state law still requires a finding of malice to support a charge of first or second-degree murder. But state appeals courts have been divided over whether defendants may contest murder charges on the grounds they lacked malice because of mental impairment.

The issue is of no small importance: the punishment for first-degree murder ranges from 25 years in prison to the death penalty; by contrast, the term for voluntary manslaughter ranges from 3 to 11 years in prison.

In Tuesday’s one-hour hearing, lawyers for the defendant, Manuel de Jesus Saille, argued that even if the law now bars evidence of a defendant’s “capacity” to form the mental state necessary for murder, evidence of intoxication or mental impairment still could be admitted to show the defendant actually lacked malice.

“Mr. Saille was deprived of the only defense he had--voluntary intoxication,” said attorney Bradley A. Bristow of Sacramento. “His conviction must be reversed.”

Deputy Atty. Gen. Janet E. Neeley contended, however, that defense attorneys were merely “searching for a way around” the abolition of the diminished-capacity defense. Intoxication and mental impairment are no longer legal excuses for murder, as long as intent to commit the crime is clearly shown, she said.

Neeley cited evidence that Saille had made repeated threats to kill and boasted after the fatal shooting he had done what he said he would do. “There could not be a clearer case of premeditated and deliberated intent,” she said.

Saille was convicted of first-degree murder and attempted murder and sentenced to 34 years to life in prison for the slaying of Guadalupe Borba and the wounding of David Ballagh in November, 1985.

Authorities said that Saille drank between 18 and 22 beers over a period of 12 hours before being repeatedly refused service in a Merced County bar. After threatening to kill Ballagh, a security guard at the bar, Saille went to his home, retrieved a rifle and returned to the establishment. During an ensuing struggle, Borba, a bystander, was killed by gunfire and Ballagh and Saille were wounded.

At trial, Saille’s attorneys were refused their request that the jury be instructed it could find him guilty of only voluntary manslaughter because of his intoxication. A state Court of Appeal upheld the ruling, saying that under both a 1981 statute and the 1982 Victims Bill of Rights initiative, intoxication was no longer a defense to a charge of murder.

Under current law, evidence of diminished capacity--a mental defect short of insanity--may still be introduced at the sentencing phase of a trial. The issue of insanity--the inability to know an act was wrong--was not before the court.