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F 4.016 n1 Idiocy: Affirmative Defense (PC 26).
A. General Principles. Like insane and unconscious persons, “idiots” cannot be held liable for crime. (PC 26.) Idiocy is an “[e]xtreme deficiency in intelligence, commonly due to incomplete or abnormal development of the brain.” (People v. Gorshen (59) 51 C2d 716, 729, fn 10 [336 P2d 492].) To be a defense, the deficiency must meet the test for insanity. (In re M. (78) 22 C3d 419, 428 [149 CR 387] [adopting ALI test for idiocy because ALI test was then used for insanity].)
The case law reflects little utilization of the idiocy defense, and even less success. Perhaps this will change with increased utilization of sophisticated techniques for identifying intellectual deficiency and abnormal development of the brain. Intellectual deficiency of the sort identified with fetal alcohol syndrome may well establish that the defendant could not comprehend those “generally accepted standards of moral obligation” under the circumstances in which the crime occurred.
B. Idiocy: Test. In 1982, section 25, subdivision (b) was added as part of Proposition 8. That subdivision provides in part that insanity shall only be found when the accused person “was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” Thus the M’Naghten rule was reinstated as the test for insanity. (See M’Naghten’s Case (1843) 10 Clark & Fin 200, 210 [8 Eng Rep 718, 712].)
The test for the defense of idiocy, however, is not defined by statute. The question is whether the [American Law Institute] Model Penal Code test adopted in In re Ramon M. (78) (78) 22 C3d 419 [149 CR 387] still applies. InPeople v. Phillips (2000) 83 CA4th 170 [99 CR2d 448] the court concluded it does not because there is no basis for distinguishing between insanity and idiocy for the purposes of imposing criminal responsibility: “It would make no sense to conclude that lack of capacity to commit a crime is governed under one test in the case of mental illness and another test in the case of mental retardation…We hold that the test for insanity as stated in section 25, subdivision (b) applies also to determine whether a person is an idiot pursuant to section 26.” (Phillips, 83 CA4th at 173.)