I dissent. In my opinion the majority has applied a self-contradictory and unduly narrow test to determine the admissibility of evidence regarding the state of mind of the victim in a murder trial.
Each of five witnesses testified that at the time of their conversation with her, Karen declared she was afraid that defendant would kill her or harm her parents. Such testimony, although hearsay, was admissible to prove that Karen did in fact fear defendant at the time of the conversations. The majority concede that “Karen’s expressions of fear were *782relevant to an issue of fact raised by the defense, i.e., whether Karen was willing to handle the gun, as defendant asserted. ’ ’ Indeed, Karen’s declarations of fear go directly to factual matters at the heart of the defense presented to the jury. There were only two witnesses to the discharge of the gun; one is dead, the other is charged with her murder. The defendant maintains that the victim asked to see the weapon and that it accidentally fired. Under the circumstances, admission of testimony by five witnesses indicating that Karen would have been too frightened to accompany defendant alone to a rendezvous to examine and later test fire a loaded automatic weapon was vital to an accurate assessment by the jury of the events which transpired in defendant’s apartment. This court has recognized 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 1 [t]he stream of consciousness has enough continuity so that we may expect to find the same characteristics for some distance up or down the current. ’ [Citing authorities.] ’■’ (People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 612, 621 [290 P.2d 538, 55 A.L.R.2d 1272] ; cf. Evid. Code, § 1250.)
Although ‘ ‘ declarations directly asserting the existence of a mental condition on the part of the decedent-declarant, and not including a description of the past conduct of a third person that may have caused that mental condition, are and should be admissible, they should be admitted only where there is at least circumstantial evidence that they are probably trustworthy and credible. As was said by this court in People v. Brust, 47 Cal.2d 776, 785 [306 P.2d 480], in quoting from People v. Weatherford, 27 Cal.2d 401, 421 [164 P.2d 753], such declarations are 1 admissible only if there appears to be a necessity for that type of evidence and a circumstantial probability of its trustworthiness (V Wigmore, p. 202, § 1420). . . . 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 truthworthiness [sic]. (VI Wigmore, § 1725, p. 80.) ’ (See also McCormick, Evidence (1954), §268, p. 568.) Wigmore also has stated that such declarations are admissible only when they are ‘made at a time when there was no motive to deceive. ’ (6 Wigmore, Evidence, (3d ed. 1940), § 1730, p. 94.) ” (People v. Hamilton, 55 Cal.2d 881, 895 [13 Cal.Rptr. 649, 362 P.2d 473] ; cf. Evid. Code, § 1252.)
*783The record indicates sufficiently the probable credibility of Karen’s declarations of mental state, and discloses no convincing reasons for deceiving the witnesses. Dale Moore learned of Karen’s fears when she asked him to observe two meetings with defendant in order to protect her. Moore, a boyfriend with whom she was intimate, had threatened to break off their relationship if she did not stop seeing defendant. lie observed both meetings, one of which was an emotionally charged confrontation between Karen, defendant, and defendant’s wife in a parking lot. Professor Resell learned of Karen’s fears when she missed a quiz in her psychology class and came to his office to explain that she had been upset and to arrange for a makeup examination. He noticed that she was “less well kempt” than usual, her face was flushed, and she was fidgety. Although the makeup examination was presumably scheduled at that time, Karen returned to discuss her fears with Professor Resch at a second meeting held several days later, and possibly at a third meeting as well. Leslie Sautter, a girl friend of Karen since childhood, learned of her fears during a conversation at the former’s home; nothing in the record indicates that the conversation was anything other than a discussion of personal problems between old friends. Patricia Mullen and Diane Ijames, both friends of Karen for over a year, learned of her fears in separate and similarly innocuous conversations during working hours at the Broadway Department Store.
Each witness also testified that Karen explained the reasons for her state of mind in terms of alleged past conduct by the defendant. Such testimony was not introduced to prove the truth of the threats or of the other matters asserted as explanations for her state of mind, but merely as circumstantial evidence of her state of mind. Such evidence must be received with great caution, lest the jury be misled into considering it as proof of the past conduct alleged rather than as proof of the declarant’s state of mind. However, the trial judge carefully reiterated his precautionary instruction admonishing the jury that the testimony of the witnesses concerning those conversations with Karen was received for the limited purpose of determining Karen’s state of mind. In such a situation the jury’s task may be difficult, but it is not impossible, and in the appropriate ease it becomes the jury’s responsibility to render such determinations. The issue of whether the probative value of the statements extracted from the conversations outweighed any potentially prejudicial *784effect that the testimony. might have had, was a matter primarily for the sound..discretión of the trial court. (Estate of Anderson, 185 Cal. 700, 719 [198 P. 407] ; Adkins v. Brett, 184 Cal. 252, 258 [193 P, 251] ; former § 1868, Code Civ. Proe., repealed by Stats. 1965, ch. 299, § 56, operative January 1,1967; cf. Evid. Code, § 352.)
A review of the record indicates that the evidence was correctly admitted. Defendant was in an emotional dilemma. He was infatuated with Karen, his wife had discovered his infatuation, and Karen was undecided whether to reject him. On the way to his apartment on the day of Karen’s death, defendant drove to his bank and cashed a $65 cheek, leaving a balance of slightly more than $2 in his checking account. He visited his safety deposit box and removed his wife’s jewelry and ownership documents pertaining to the car, boat, and trailer which he and his wife owned, ostensibly because his wife wanted the items in her possession pending their divorce. He executed the ownership documents and placed them together with an executed savings account withdrawal slip on the living room table in an envelope addressed to his wife. Defendant was alone with Karen when his gun discharged, fatally injuring her. The weapon had a safety device plainly marked “safe” and “fire” and could not be fired in the former position. Expert testimony indicated that 9 pounds of pressure was required to fire the-automatic pistol; in contrast, smaller weapons with a “hair trigger” require only from 3 or 4 ounces to 1% pounds of pressure. Expert testimony further indicated that the weapon was within 10 inches of Karen’s head when the shot was fired, and that the bullet entered her left temple just above the eye. As a student of police science, defendant was presumably familiar with criminal evidence. When he was asked to submit to paraffin tests of his hands, he refused to take them; when advised that he was required to comply, he again attempted to avoid the test, but finally submitted voluntarily. Nitrate deposits were found on his left hand; no such deposits were found on Karen’s hands. All this competent evidence strongly supported the inference that the injury resulting in Karen’s death was deliberately inflicted by the defendant. Under the circumstances, the jury was entitled to receive the benefit of any additional evidence which might tend to aid their deliberations by disclosing Karen’s state of mind on the date of her death.
The majority follow the rule set forth in People v. Hamilton, supra, 55 Cal.2d 881, 895, allowing evidence of threats to *785do future violence only so long as the testimony with regard to such threats does not refer to past acts of the defendant: “In such cases [where the declarations of state of mind refer also to past acts of the defendant] the authorities are agreed that it is impossible for the jury to separate the state of mind of the declarant from the truth of the facts contained in the declarations, and that for such reasons such declarations are inadmissible.”
That rule of automatic exclusion has been criticized as unduly narrow and self-contradictory. Justice White, dissenting in Hamilton, aptly observed that “To me it seems a sad commentary upon the intelligence of jurors, in the light of the court’s constant, painstaking and specific admonitions, to say that they were unable to follow them or that in violation of their sworn obligations as jurors they cast aside such admonitions. I cannot indulge in either of those assumptions, . . .” (55 Cal.2d at p. 904.) The Evidence Code, which was adopted before the trial but became effective after the trial, omits any such automatic rule. The comments to section 1252 of the code label the above-mentioned Hamilton tests as confusing and contradictory: 11 The declarations are inadmissible if they refer to past conduct of the accused; nevertheless, they are admissible ‘only’ when they refer to his past conduct, i.e., his threats. The declarations, to be admissible, must show primarily the state of mind of the declarant and not the state of mind of the accused; nevertheless, such declarations are admissible ‘only’ if they refer to the accused’s statements of his state of mind, i.e., his intent to do future harm to the victim. . . . The Evidence Code does not freeze the courts to the arbitrary and contradictory standards mentioned in the Hamilton case for determining when prejudicial effect outweighs probative value.”1
*786Justice White carefully set forth the effects of the automatic rule of exclusion propounded in Hamilton: “I agree that evidence of this character may be excluded as legally irrelevant if the court determines that its value is outweighed by policy considerations of undue prejudice, lapse of time or surprise. The majority opinion seems to hold that the evidence here was so highly prejudicial that it outweighed any probative value and should have been excluded. I feel that these are matters primarily addressed to the sound discretion of the trial court. The majority would completely emasculate the rule providing for ‘state of mind’ testimony unless it refers to threats as to future conduct on the part of the accused, thereby withholding from the trier of facts evidence of past conduct which would materially aid the arbiter of facts in determining whether the declarant was actually in fear of the accused. I am apprehensive lest such a rule would militate against convictions of murder in proper cases.” (55 Cal.2d at p. 903.) The drafters of the Evidence Code shared his apprehensions, and the results in this case demonstrate the correctness of their views.
I would affirm the conviction.
These comments reflect those of Justice White in his dissent: "If the purpose of admitting such evidence is to show the ‘ state of mind ’ of the declarant where, as in the instant case, it was eoncededly an issue in the case, then I am at a loss to understand why declarations of threats to do future violence should be regarded as less prejudicial than the narration of alleged past conduct. And surely if the purpose of admitting ‘state of mind’ testimony is to be achieved, then as in the instant ease, such a state of mind as fear of the defendant could be engendered by past actions of brutality, probably more so than by unexecuted threats of promised future harm to the declarant. Complaint is made in the majority opinion that testimony of past conduct tends more to establish the state of mind of the accused rather than of the declarant. Would not such a conclusion be as applicable to threats of future violence as to prior executed acts of violence? This would appear to be a distinction without a difference." (55 Cal.2d at pp. 902-903.)