In what circumstances will a court allow a defendant to plead not guilty to a charge of attempted murder where the accused has admitted making threats against the victim?

In People v. Atchley, 53 Cal.2d 160, 172, 346 P.2d 764, 770, it was held this type of evidence was not objectionable as heresay. The court declared 'It tended to prove her fear of defendant, which was relevant to defendant's claim that she was the aggressor in a struggle for the gun.' The particular evidence which was received in Atchley consisted of a letter written by the decedent to a judge just two days before her death. It alleged that the defendant had made certain car sales without a license and in addition told of his [213 Cal.App.2d 770] threats and of her fears of him. The letter (without limiting instruction) was admitted to show the state of mind of the decedent and not to show that the threats were actually made. As in the case before us, the admitted hearsay evidence was interwoven with allegations of past conduct. Nevertheless the court ruled that the admission of the evidence was proper and under the circumstances of that particular case was not prejudicial.

In People v. Brust, 47 Cal.2d 776, 784-785, 306 P.2d 480, 483, an important theory of the defense was that a long continued provocatory course of conduct of the decedent culminated in bringing defendant to a point where his capacity for cool deliberation was impaired. Under this theory the victim's expressions of hostility to defendant tended to show the actual existence of the hostility. 'Evidence of circumstances which would tend to excite defendant's anger against his victim may be admitted on defendant's behalf as tending to show provocation and passion, and therefore excusability or a lesser degree or lower class of crime. * * * Declaration [that on the afternoon before she was killed the victim stated she was going to get in touch with defendant and get some more money out of him] * * * is also relevant, for it is a declaration of the victim's intent to behave provocatively toward defendant. [Citing cases.] * * * The death of the declarant creates the necessity for resort to hearsay and the declarations, being those of a present existing state of mind, made in a natural manner and not under circumstances of suspicion, carry the probability of trustworthiness.'

It is the circumstances in each case which must govern and the trial judge has the responsibility of weighing such circumstances and of determining whether the prejudicial effect to the accused of the particular declarations outweighs any possible benefit to the prosecution. (People v. Hamilton,

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In People v. Merkouris, 52 Cal.2d 672, 682, 344 P.2d 1, certain declarations that defendant had threatened the victims were admitted, not to prove the truth of that fact directly, but to prove the fear in the minds of the victims.

'This court has declared that 'under certain circumstances declarations are admissible to prove a state of mind at a particular time although uttered before or after that time, apparently on the theory that under these particular circumstances '[t]he stream of consciousness has enough continuity [213 Cal.App.2d 771] so that we may expect to find the same characteristics for some distance up or down the current.' [Citing authorities.]' [Citations.]' (People v. Hamilton, supra, 55 Cal.2d 881, 894, 13 Cal.Rptr. 649, 656, 362 P.2d 473, 480.)