F 8.85(h)

F 8.85(h) n1 Error to Delete “Factor h” When Record Contains Evidence of Intoxication.

People v. Marshall (96) 13 C4th 799, 857 [55 CR2d 347], held that the defendant was entitled to have the jury consider evidence of his intoxication at the penalty trial and that the trial court erred in deleting the language of PC 190.3 (h) from the list of factors for the jury to consider.

F 8.85(h) Inst 1

Mental Impairment Not Limited To Excuse Or Negation Of An Element

The mental impairment referred to in this instruction is not limited to evidence which excuses the crime or reduces defendant’s culpability, but includes any degree of mental defect, disease or intoxication which the jury determines is of a nature that death should not be imposed. That the jury has rejected a defense of insanity, diminished capacity or diminished actuality at a previous stage of the proceedings does not prohibit its consideration of evidence showing some impairment as a reason not to impose death.

Points and Authorities

This instruction which is patterned after the federal death penalty statute (see 21 USC 848(m)(1)) pinpoints and clarifies defendant’s theory that his mental impairment, although insufficient to establish insanity or to negate any elements of the offense, is a valid mitigating circumstance which, alone and/or in consideration with other factors, justifies sparing the defendant’s life. It is well settled that the defendant has a right, upon request, to an instruction which relates the defense theory of the case to an element of the charge. (See, e.g., People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [see FORECITE PG III(A) for additional authorities].)

It is also beyond dispute that intoxication or mental impairment, even if insufficient to defeat the guilt charges, is a fact which the jury may consider in mitigation. (See People v. Lucero (88) 44 C3d 1006, 1029-1131 [245 CR 185]; see also Penry v. Lynaugh (89) 492 US 302 [106 LEd2d 256; 109 SCt 2934].)

Accordingly, even though there may be no sua sponte duty to clarify the statutory factors (see People v. Hernandez (88) 47 C3d 315, 359-60 [253 CR 199]) the defense theory should be pinpointed and clarified upon request. (SeeState v. English (La 1979) 367 So.2d 815: reversible error to refuse defendant’s instruction that mental disease or defect as used in the penalty phase was not to be confused with insanity; see also Drinkard v. Johnson (5th Cir. 1996) 97 F3d 751, 756 [instruction may not constitutionally preclude jury from considering mitigating evidence that did not rise to the level of temporary insanity].)

Refusal of the requested clarification would implicate defendant’s 8th (cruel and unusual punishment) and 14th (due process/equal protection) Amendment rights by failing to assure jury consideration of important mitigating evidence and by reducing the reliability of the sentence. (See Lockett v. Ohio (78) 438 US 586 [57 LEd2d 973; 98 SCt 2954].)

By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)