‘Diminished Capacity’ Abolition Upheld : Crime: State Supreme Court rules that such a defense, outlawed by voters in 1982, cannot be presented to evade a murder charge.

The state Supreme Court on Thursday refused to allow defendants to evade a charge of murder on grounds they were drunk or mentally impaired when the killing occurred.

The court unanimously rejected what prosecutors called an attempt to resurrect the controversial “diminished capacity” defense. The legal defense had been abolished by the Legislature and the voters under Proposition 8, a 1982 anti-crime initiative.

The justices said a convicted Los Banos murder defendant, who had drunk at least 18 beers before fatally shooting a bystander in a barroom fight, was properly prevented from obtaining a lesser verdict of voluntary manslaughter.

The opinion by Justice Edward A. Panelli declared that intoxication or mental defect could not serve to show a defendant lacked malice, a necessary element for a murder conviction.

“When an intentional killing is shown, malice aforethought is established,” wrote Panelli. “Accordingly, the concept of ‘diminished capacity-voluntary manslaughter’ . . . is no longer valid as a defense.”

State Deputy Atty. Gen. Janet E. Neeley praised the ruling, saying it would likely have “broad impact” throughout the state. Defendants have often tried to use claims of drunkenness to escape conviction of murder, she noted. Appeal courts have been divided on the validity of the defense.

“Proposition 8 showed that the people were fed up with that defense,” said Neeley. “They wanted a defendant to be held accountable for murder, regardless of whether they had been drinking or not.”

Charles Hobson, an attorney for the Criminal Justice Legal Foundation, said the ruling “closes the door” to attempts to circumvent the abolition of diminished capacity. “This was an important case for California,” he said.

Bradley A. Bristow and Madeline McDowell of the Central California Appellate Program, which represented the defendant, expressed disappointment and said they would seek a rehearing before the high court.

The ruling also is likely to affect the pending case of Sheryl Lynn Massip of Anaheim. Orange County prosecutors have appealed a ruling granting Massip 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.

Milton C. Grimes, an attorney for Massip, said the ruling had taken from defendants “a valid defense--the altering of a person’s mind that makes them do something they hadn’t planned to do before.”

The diminished capacity defense, allowing defendants to contest charges with evidence of mental impairment short of insanity, was established under a series of state Supreme Court rulings dating back to 1949.

But the doctrine was revoked with legislation passed in the furor that arose when former San Francisco Supervisor Dan White used it to gain a verdict of manslaughter, rather than murder, in the 1978 City Hall killings of Mayor George Moscone and Supervisor Harvey Milk.

In what was ridiculed as the “Twinkie defense,” White claimed that the killings were the result of severe depression, made worse as he compulsively gorged himself with cola drinks, candy bars and cupcakes. White served five years in prison, was released and then committed suicide.

The Legislature responded in 1981 by abolishing diminished capacity and the voters reaffirmed the move the next year in passing Proposition 8, the Victims’ Bill of Rights measure.

Nonetheless, defense attorneys had contended--and some appellate courts agreed--that evidence of mental impairment could still be used to show that a defendant had not acted with malice aforethought, legally defined as a predetermination to commit a crime.

Prosecutors responded that while drunkenness or mental impairment could be cited as a factor in considering a sentence, it could not be considered in determining whether there was the malice necessary to support a conviction for murder.

For defendants in such cases, the stakes are high. The penalty for first- or second-degree murder ranges from 15 years in prison to the death penalty; for voluntary manslaughter, terms extend from 3 to 11 years in prison.

In the case before the high court, Manuel de Jesus Saille was convicted in Merced County of the first-degree murder of Guadalupe Borba and attempted murder of David Ballagh in 1985. Saille was sentenced to 34 years in prison.

Authorities said Saille had drunk from 18 to 22 beers before arriving at a cafe and bar in Los Banos. He was twice asked to leave and finally did--but threatened to get a gun and kill Ballagh, the security guard. Prosecutors said Saille went home, got his semiautomatic assault rifle and returned to the bar, announcing: “I told you I would be back.”

During an ensuing struggle the weapon discharged, killing Borba--the bystander--and wounding Saille and Ballagh.

Times staff writer Eric Lichtblau in Orange County contributed to this story.