F 3.32

F 3.32 n1 Mental Disease Or Defect: Effect Of Physical Trauma.

Physical trauma suffered by the defendant before or during the charged offense may negate the specific intent or mental state elements of the charge. (See FORECITE F 4.010a.)

When such evidence has been presented FORECITE F 4.010 should be given and CJ 3.32 should be modified to assure the jury understands that a mental defect caused by physical trauma must be considered.

[Research Note: See FORECITE BIBLIO 3.32]

F 3.32 n2 Victimization: As Mental State Defense.

For a discussion of victimization (including PTSD and BWS) as a defense to specific intent and/or mental state elements of the charge, see Rutberg, Not Guilty By Reason Of Victimization, CACJ Forum Vol. 20 No. 40, p. 36. [A copy of this article is available to FORECITE subscribers. Ask for Article Bank # A-36; see also People v. Contreras DEPUBLISHED (98) 66 CA4th 842, ____ [78 CR2d 349] [error to refuse evidence of childhood trauma and PTSD offered in support of defendant’s imperfect self-defense theory].]

RESEARCH NOTES: See Diana J. English Ph.D., Cathy Spatz Widom, Ph.D., Carol Brandford, MSW, Childhood Victimization and Delinquency, Adult Criminality and Violent Criminal Behavior: A Replication and Extension (February 1, 2002) [a final report presented to the National Institute of Justice under Grant No. 97-IJ-CX-0017. Electronic copy available at www.ncjrs.org; search the abstract database]. This work is an augmentation of previous studies, which identified childhood victimization as an important risk factor in the development of criminal behavior.

See FORECITE BIBLIO 3.32.

F 3.32 n3 Mental Disease or Defect: Post Partum Psychosis.

Post partum disorders are a recognized problem which can severely impact a mother’s mental state during the first year after an infant’s birth. Such disorders may afflict up to 10-20% of post partum mothers to varying degrees. In fact, the California Legislature has passed two resolutions attempting to deal with the problems of social responsibility for an awareness of post partum psychosis. (See 38 UCLA Law Rev. 699, 716; S. Con. Res. 23, 1989-90 Reg. Sess., ch. 83 (July 26, 1989); S.Con.Res. 39, 1989-90 Reg. Sess., ch. 87 (July 26, 1989).)

Hence, post partum disorder is a potential defense theory which should be investigated whenever a mother is charged with neglecting, assaulting or killing her infant child. [See Article Bank A-78 for a comprehensive annotation of post partum issues and resources. See Brief Bank # B-831 for sample factual and legal allegations in support of a post partum depression habeas claim.]

RESEARCH NOTE: See “Post Partum Psychosis as Defense to Murder?” TL Schroeder, student author. 21 W.ST.U.L.REV. 267-93, Fall 1993.

F 3.32 n4 Mental Disease Or Defect To Negate Malice.

People v. Whitfield (94) 7 C4th 437, 453 [27 CR2d 858] held that, notwithstanding PC 22 — which limits the defense of voluntary intoxication to specific intent offenses — intoxication may negate implied malice which requires that the defendant “actually appreciate” the risk involved. In response to Whitfield, the legislature amended PC 22, effective 1/1/96, to specifically preclude voluntary intoxication as a defense to implied malice. This amendment may be constitutionally suspect as applied to intoxication. (See FORECITE F 8.47b.)

However, even if the amendment of PC 22 is valid, the legislature’s failure to similarly amend PC 28, a related statute regarding mental disease or defect, evinces a legislature intent that mental disease or defect may negate implied malice. “Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent.” (Craven v. Crout (85) 163 CA3d 779, 783 [209 CR 649]; see also, Bunner v. Imp. Ins. Co. (86) 181 CA3d 14, 21 [225 CR 912].)

(See also FORECITE F 3.32 n11.)

F 3.32 n5 Mental Disease Or Defect: Confusional Arousal Syndrome.

People v. Cegers (92) 7 CA4th 988, 995-1001 [9 CR2d 297] held that evidence that the defendant suffered from “Confusional Arousal Syndrome” should not have been excluded on the basis of confusion of issues, since such evidence was central to defendant’s case. “Confusional Arousal Syndrome” is a type of sleep disorder resulting from diminished oxygen levels caused by a defect in breathing patterns during sleep. The syndrome is associated with people who have sleep apnea and are awakened during a period of depressed mental functioning. They are able to perform motor functions, such as walking, while still mentally asleep. In severe cases, such persons can be violent, causing injury or death to others, in which event their condition has been termed “homicidal somnambulism.” The condition is properly termed physiological rather than psychological, because it results from an anomaly of the brain. It is exacerbated by excessive alcohol consumption. (Cegers, 7 CA4th at 994.)

[An article, Guilty of Sleepwalking: Are Sleep Disorders Excuse for Murder? by Jane E. Brody, New York Times, further discussing this issue is available to FORECITE subscribers. Ask for Article Bank # A-65.]

F 3.32 n6 Expert Testimony Regarding Defendant’s Formation Of Mental State.

People v. Nunn (96) 50 CA4th 1357, 1365 [58 CR2d 294] held that pursuant to PC 28 and PC 29, expert testimony is admissible concerning factors which may be relevant to whether a defendant harbored a required mental state or intent at the time he or she acted. However, the expert may not express an opinion regarding the ultimate question of whether the defendant actually formed the required mental state or specific intent.

F 3.32 n7 Mental Disease Or Defect To Negate Knowledge.

Even though knowledge is not a specific intent, it is sufficiently akin to such a mental state that it may be negated by voluntary intoxication under PC 22. (See FORECITE F 4.21 n4.)

By the same reasoning, mental disease or defect should be permitted to negate knowledge under PC 28. (See also FORECITE F 3.32 n4.)

F 3.32 n8 Defense Theory: PTSD.

See People v. Contreras DEPUBLISHED (98) 66 CA4th 842, ____ [78 CR2d 349] [error to refuse evidence of childhood trauma and PTSD offered in support of defendant’s imperfect self-defense theory].

The U.S. National Center for Post-Traumatic Stress Disorder, through the U.S. Department of Veteran’s Affairs offers a resource called “PILOTS.” The database provides access to over 12,500 international literature citations on the topic of PTSD, dating back to 1917. It is available via the web at:

http://www.dartmouth.edu/dms/ptsd

Additional information regarding PTSD may be obtained from the following:

• National Crime Victims Research and Treatment Center – Medical University of South Carolina, 171 Ashley Avenue, Charleston, SC 29425 (843) 792-2945

• National Institute of Mental Health, Department of Health and Human Services, Division of Epidemiology and Services, Violence and Traumatic Stress Research Branch, Parklawn Building, Room 10C-24, 5600 Fishers Lane, Rockville, MD 20857, (301) 443-3728

• Anxiety Disorders Association of America, 6000 Executive Building #513, Rockville, MD 20852-3801, (301) 231-9350

• Council on Anxiety Disorders, P.O. Box 17011, Winston-Salem, NC 27116, (919) 722-7760

• Crisis Management Group, Echo Bridge Office Park, 377 Elliott Street, Newton Upper Falls, MA 02164, (617) 969-7600

• Vietnam Veterans of America, 2001 S Street, NW, Washington, DC 20009, (202) 332-2700

[A discussion of PTSD, including references, is available to FORECITE subscribers. Ask for Article Bank # A-71.] While this material is presented from the standpoint of victims of crime, many of the same principles are applicable to a criminal defendant who has been victimized.

RESEARCH NOTES:

Post-Traumatic Stress Disorder And The Death Penalty. D.D. Burke & M.A. Nixon, 38 How. L.J. 183-99 Fall 1994.

“Litigating PTSD: Making the Connection Between Trauma, From Childhood Abuse To Combat, And Later Violent Acts,” by Claudia Baker and Cessie Alfonso. (NLADA Indigent Defense, Nov./Dec. 1999). See Article Bank # A-83 for this article.

F 3.32 n9 Mental Disease Or Defect: Presumption Of Sanity Violates Due Process.

In Patterson v. Gomez (9th Cir. 2000) 223 F3d 959, 967-68, the trial court read instructions patterned after CJ 3.32 and CJ 2.90, then instructed as follows: “At the time of the alleged offense charged in the information, you were [sic] instructed to presume that the defendant was sane.” The Patterson court concluded that the instruction violated due process and that the error was not harmless. “[I]f a jury is instructed that a defendant must be presumed ‘sane’ — that is, ‘rational’ and ‘mentally sound.’ and ‘able to anticipate and appraise the effect of [his] actions,’ — a reasonable juror could well conclude that he or she must presume that the defendant had no such mental disease, defect, or disorder. If a juror so concludes, he or she presumes a crucial element of the state’s proof that the defendant was guilty of willfulness, premeditation, and deliberation.” (Patterson, at 966.)

F 3.32 n10 Mental Disease Or Defect: Necessity Of Medical Diagnosis.

If there is an issue as to whether the defendant was suffering from a mental disease, defect or disorder at the time of the commission of the charged crime, and the defense intends to request CJ 3.32, competent evidence regarding the mental disease, defect or disorder must be presented to the jury. Without expert medical testimony there is no evidentiary basis for the trial court to instruct with CJ 3.32. (See People v. Moore (2002) 96 CA4th 1105, 1117 [117 CR2d 715]; see also People v. Maxey (72) 28 CA3d 190, 199 [104 CR 466] [no expert testimony as to defendant’s "unsound mind"]; compare People v. Williams (71) 22 CA3d 34, 52 [99 CR 103] [psychiatrists testified as to defendant’s "abnormal brain, one even of his being insane, of his mind being temporarily gone [fn. omitted]"]; People v. Musselwhite (98) 17 C4th 1216, 1229-30, 1247-49 [74 CR2d 212] [expert testimony defendant suffered from mental disease; trial court gave instruction consistent with CJ 3.32]; People v. Cox (90) 221 CA3d 980, 987 [270 CR 730] [same]; People v. Molina (88) 202 CA3d 1168, 1171 [249 CR 273] [same]; People v. Young (87) 198 CA3d 891, 907-909 and fn 6 [234 CR 819] [same].) Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. (See Conservatorship of Torres (86) 180 CA3d 1159, 1163 [226 CR 142]; People v. Kelly (92) 1 C4th 495, 540 [3 CR2d 677] ["Mental illness [or mental defect] is a medical diagnosis …."].)

F 3.32 n11 Intoxication And/Or Mental Disease To Negate Malice: Challenge To Saille In Light Of Lasko/Blakeley.

People v. Saille (91) 54 C3d 1103 [2 CR2d 364] held that express malice is equivalent to a bare intent to kill. Therefore, under Saille neither intoxication nor mental impairment may reduce an intentional killing to voluntary manslaughter. Saille did allow consideration of intoxication and mental impairment but only on the question of whether or not there was an intent to kill. If the accused did not form the intent to kill as a result of intoxication and/or mental impairment then the offense was reduced to involuntary manslaughter.

However, the Lasko [People v. Lasko (2000) 23 C4th 101 [96 CR2d 441]], Blakeley [People v. Blakeley (2000) 23 C4th 82 [96 CR2d 451]] and Rios [People v. Rios (2000) 23 C4th 450 [97 CR2d 512]] cases provide a basis for arguing that Saille has been overruled and now intoxication and/or mental impairment may reduce a homicide to voluntary manslaughter. That is, even if the intoxication and/or mental impairment was not sufficient to entirely negate the intent to kill, it may still be sufficient to reduce the offense from murder to voluntary manslaughter. (See also FORECITE F 8.40 n16; FORECITE F 8.40e.) [Briefing on this issue is available to FORECITE subscribers. Search for B-960.]

F 3.32 n12 Whether Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution.

When a defendant relies on a "diminished actuality" defense, the prosecution is not entitled under PC 1054 (discovery in criminal cases), to access to defendant for purposes of a mental examination conducted by a prosecution expert. (Verdin v. Superior Court (2008) 43 C4th 1096.)

F 3.32a

Evidence Of Mental Disease: Should Not Be Phrased As A Limitation

(PC 28)

*Change second sentence of CJ 3.32 to provide as follows [added language is capitalized; deleted language is between <<>>]:

You MUST* <<may>> consider such evidence <<solely>> for the purpose of determining whether OR NOT the defendant actually formed…

Points and Authorities

CJ 3.32 may be given when the defendant’s “mental” evidence is offered for the purpose of raising a question of whether the defendant possessed the requisite specific intent and/or mental states. (People v. Aguilar (90) 218 CA3d 1556, 1569 [267 CR 879]; People v. Leever (85) 173 CA3d 853, 865-66 [219 CR 581].) However, CJ 3.32 need not be given sua sponte without a request. (People v. Ervin (2000) 22 C4th 48, 90-91 [91 CR2d 623].)

However, CJ 3.32 is not “the only or best way to convey the needed information.” (Leever 173 CA3d at 866.) The instruction is deficient because it “is phrased as a limitation on the use of such evidence.” (Leever 173 CA3d at 866.) A better approach is to state the relevance of the evidence in positive terms and add a separate limiting instruction if necessary.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

*NOTE: Regarding the requirement that the evidence “must” be considered, see FORECITE F 4.21e.)

CALJIC HISTORICAL NOTES

As originally recommended by FORECITE, CALJIC revised 3.32 to make mental disease, defect or disorder evidence applicable to specific intent as well as premeditation and malice. However, the current version of CJ 3.32 fails to recognize that this evidence may also be relevant to other mental states such as knowledge, torture and lying in wait. Therefore, in any case involving a mental state not specifically referenced in CJ 3.32, the instruction should be revised to make the instruction specifically applicable to all requisite mental states. (See FORECITE F 3.32c.)

It should also be noted that CJ 3.32, even in its revised form, continues to be phrased as a limitation rather than in positive terms as set forth above.

F 3.32b

Mental Disease Or Defect: When Combined With Intoxication

(PC 28)

*Modify CJ 3.32 as follows [added language is capitalized]:

You have received evidence regarding a [mental disease] [mental defect] [or] [mental disorder] of the defendant [______ (insert name of defendant if more than one)] at the time of the commission of the crime charged [namely, _________] [in Count[s] _______] [.] [or a lesser crime thereto, namely ______________]. You <<should>> MUST* consider this evidence, SEPARATELY OR IN COMBINATION WITH ANY EVIDENCE OF THE DEFENDANT’S INTOXICATION, for the purpose of determining whether or not the defendant [______ (insert name of defendant if more than one)] actually formed [the required specific intent,] [premeditated and deliberated] [harbored malice aforethought] [and] [or] [_______ (insert other relevant mental states such as knowledge, torture, lying in wait)] which [is] [are] an element[s] of the crime charged [in Count[s] ________________], namely ________________ [.] [or the lesser crime[s] of ________________].

Points and Authorities

The line between intoxication and mental defect can be unclear. Hence, when the evidence is unclear whether the defendant’s mental impairment stems from mental defect, intoxication or both CJ 3.32 and CJ 4.21 should be modified to assure the jury will consider the mental defect and intoxication evidence together.

People v. Saille (91) 54 C3d 1103, 1119 [2 CR2d 364] firmly established the defendant’s right to a pinpoint instruction upon matters which may negate a requisite element of the charge. (See also People v. Welch (64) 61 C2d 786, 789-90 [40 CR 238] [coram vobis granted based on undiscovered evidence that alcohol combined with brain damage produced insanity].)

(See also FORECITE F 3.32 n11.)

*NOTE: Regarding the requirement that the evidence “must” be considered, see FORECITE F 4.21e.)

NOTES

[Copies of sample instructions relating intoxication to brain damage are available to FORECITE subscribers. Ask for Instruction Package # I-855.]

F 3.32c

Mental Disease To Negate Mental State Elements

(PC 28)

*Modify second sentence of CJ 3.32 to provide as follows [added language is capitalized; deleted language is between <<>>]:

You may consider such evidence <<solely>> for the purpose of determining whether OR NOT defendant [__________] actually formed [the required specific intent,] [premeditated AND deliberated] [harbored malice aforethought] [AND] [or] [__________] (insert other relevant mental states such as knowledge, torture, lying in wait) which [is] [ARE] [an] element[S] of the crime charged ….

Points and Authorities

A. CJ 3.32 Is Phrased As A Limitation.

[See FORECITE F 3.32a.]

B. Mental Disease, Defect, Etc. May Negate Other Mental States.

CJ 3.32 fails to recognize that mental disease, etc., may negate other mental states than just specific intent, premeditation and malice. Even though PC 28 limits mental disease evidence to whether the defendant actually formed specific intent, premeditation, deliberation or malice, constitutional principles require that such evidence also be considered in determining whether other mental elements of the charges (e.g., knowledge, lying in wait) were proven.

Failure to allow such proof and jury instruction relating such evidence to the mental elements of the charge would implicate the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) which require the prosecution to prove every element of the charge. (See People v. Figueroa (86) 41 C3d 714, 724 [224 CR 719]; see also, People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364] [right to request instruction pinpointing effect of intoxication on mental element of the charge]; see also FORECITE F 1.20b; FORECITE F 4.21 n4; but see FORECITE F 4.21 n11.)

NOTES

People v. Musselwhite (98) 17 C4th 1216, 1247 [74 CR2d 212] held that the following instruction, in combination with the other instructions specifically defining the elements of the offenses, adequately informs the jury that it could consider the defendant’s mental disease or defect in deciding whether the prosecution had met its burden of proving the mental elements of first degree murder beyond a reasonable doubt:

“Evidence has been received regarding a mental disease, defect or mental disorder of the defendant at the time of the crime charged in the Information. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged….”

In so doing, the court concluded that there was no need to give the defendant’s requested instruction which related the mental state evidence specifically to premeditation/ deliberation and malice aforethought.

PRACTICE TIP: See PG VI(C)(10) for strategies in response to refusal of specific pinpoint or defense theory instruction as covered by other more general instructions.