SERIES 3400 DEFENSES AND INSANITY
F 3428 Mental Impairment: Defense To Specific Intent Or Mental State
TABLE OF CONTENTS
F 3428 Inst 1 Mental Impairment: Defendant Does Not Need To Prove
F 3428 Inst 2 Mental Impairment: Modification Of Argumentative Language
F 3428 Inst 3 Mental Impairment: Jurors To Consider The Evidence; Modification Of Limiting Language
F 3428 Inst 4 Mental Impairment: Concurrence Of Act And Intent/Mental State
F 3428 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
F 3428 Inst 6 Mental Impairment: Deletion Of Terms “General” and “Specific” Intent
F 3428 NOTES
F 3428 Note 1 Whether Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
F 3428 Note 2 Mental Impairment Instruction Should Be Given When Requested And Supported By Expert Medical Testimony
Return to Series 3400 Table of Contents.
F 3428 Inst 1 Mental Impairment: Defendant Does Not Need To Prove
*Add to CC 3428, paragraph 1 [CC 3400 adaption]:
The defendant does not need to prove that (he/she) suffered from a mental (disease[.] / [or] defect [,] / [or] disorder).
Points and Authorities
See FORECITE F 3402 Inst 1; see also FORECITE F 401.6 Inst 1; F 404.2 Inst 1.
F 3428 Inst 2 Mental Impairment: Modification Of Argumentative Language
*Modify CC 3428, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
You have heard evidence that concerning whether the defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—By stating that the defendant “may have” suffered from a mental disorder, etc., the instruction is an improper comment on the evidence. (See FORECITE F 416.3 Inst 4.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3428 Inst 3 Mental Impairment: Jurors To Consider The Evidence; Modification Of Limiting Language
* Modify CC 3428, paragraph 1, sentence 2, as follows [added language is underlined; deleted language is stricken]:
You may Consider this evidence only for the limited purpose of in deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.
Points and Authorities
“Consider” vs. “May Consider”—See CALCRIM 3427; see also FORECITE F 105.2 Inst 1.
No Limited Purpose—CALCRIM 3428, paragraph 3, specifies the limited purpose of the evidence. Therefore, limiting language is not needed in paragraph 1 where it constitutes confusing surplusage.
(See generally FORECITE F 416.3 Inst 4.)
F 3428 Inst 4 Mental Impairment: Concurrence Of Act And Intent/Mental State
*Modify CC 3428, paragraph 2, sentence 1, as follows [added language is underlined; deleted language is stricken]:
The People prosecution has the burden of proving beyond a reasonable doubt that the defendant acted committed [act alleged in the charge] [the act element(s) of the charge] [or failed to act] with the required intent and/or mental state, specifically: __________ <insert specific intent or mental state required, e.g.,”malice aforethought,” “the intent to permanently deprive the owner of his or her property,” or “knowledge that . . .”> required for that charge.
Points and Authorities
See FORECITE F 251 Inst 3.
F 3428 Inst 5 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
F 3428 Inst 6 Mental Impairment: Deletion Of Terms “General” and “Specific” Intent
Modify CC 3428 as follows: Delete references to “General” or “Specific” intent in the title and/or body of the instruction.
Points and Authorities
See FORECITE PG XI(H).
F 3428 NOTES
F 3428 Note 1 Whether Placing Defendant’s Mental State At Issue Permits Mental Examination Of Defendant By Prosecution
See FORECITE F 763.10 (Factor h) Note 1.
F 3428 Note 2 Mental Impairment Instruction Should Be Given When Requested And Supported By Expert Medical Testimony
The court does not have a sua sponte duty to instruct the jury with the substance of CALCRIM 3428 (formerly CALJIC No. 3.32). (People v. Saille (1991) 54 C3d 1103, 1119.) The court must give the instruction only when requested and when substantial evidence supports the defense, and expert medical testimony has been found necessary to establish such substantial evidence. (People v. Panah (2005) 35 C4th 395, 484; People v. Moore (2002) 96 CA4th 1005, 1115-1116, 1117.)
