In People v. Townsel (2016) 63 C4th 25, the jury was instructed with a version of CJ 3.32 which provided as follows: “Evidence has been received regarding a mental defect or mental disorder of the defendant, Anthony Townsel at the time of the crime charged in Counts 1 and 2. You may consider such evidence solely for the purpose of determining whether or not the defendant Anthony Townsel actually formed the mental state which is an element of the crime charged in Counts 1 and 2, to wit, murder.” [emphasis added.] (63 C4th at 59.)
Because the jury was instructed that evidence of mental illness may be used only to determine whether the defendant actually formed the mental state which is an element of murder (CJ 3.32). The witness-killing special circumstance finding, and a conviction for the separate offense of attempting to dissuade a witness, both of which had specific-intent elements, were reversed.
The CALCRIM version of this instruction, CC 3428, para.1, sentence 2, has a similar defect because it states:
You may consider this evidence only for the limited purpose of 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.
Accordingly, CC 3428 should be modified in light of the decision in Townsel.