California's Diminished Capacity : Evolution and Transformation

Robert Weinstock, MD, Gregory B. Leong, MD, and J. Arturo Silva, MD

Diminished capacity survives in California as a severely attenuated defense known as diminished actuality. Some other states have similar limited strict mens rea defenses. The lost advantages of California's former expanded concept of diminished capacity are reviewed. As opposed to the all-or-none insanitv defense. mens rea defenses ~ermitthe trier of fact to find ~radationsof guilt bit are inapplicable uniess the elements of a are redefined to permit consideration of motivational aspects, as California had done. The change from diminished capacity to a diminished actuality defense was a return to the complex, somewhat artificial legal concept of intent and a resurrection of confus- ing and antiquated common definitions. The change was made in response to an unpopular jury verdict and a political climate in which little interest existed or still exists for understanding the reasons behind the commission of any crime. Some of the later restrictions imposed by the California Supreme Court on allow- ing voluntary intoxication to reduce to voluntary logically should not apply to mental illness. Knowledge of the complex mens rea issues and the various relevant current defenses is essential for any forensic psychiatrist evaluating defendants in jurisdictions in which such defenses are admissible.

The concept of "diminished capacity" fre- concept of diminished capacity, either men- quently has been misunderstood by forensic tal illness or voluntary intoxication could psychiatrists. It is a type of mens rea (or negate the capacity of a defendant to form a criminal intent) defense most highly devel- specific intent if such intent was necessi- oped in California's recent past. Under the tated by the definition of a particular crime.' As a result, a defendant whose spe-

Dr. Weinstoch is clinical professor of psychiatry, Uni- cific intent was nullified by mental illness versity of California. Los Angcles, and staff psychiatrist, or voluntary intoxication could not be found West Los Angeles Veterans Affairs Medical Center, Los Angeles, CA. D-.Leong is associate professor of clinical guilty of a crime that necessitated the ne- psychiatry, Universily of Missouri-Columbia, and chief gated specific mental intent. Instead, guilt of psychiatrq. Harry S. Truman Memorial Veterans Hos- pital, Columbia. MO. Dr. Silva is associate professor of could be found only for a lesser included psychiatry. University of Texas Health Science Center at crime for which the negated specific mental San Antonio, and staff psychiatrist, South Texas Veter- ans Health Care System, San Antonio, TX. Address intent was not needed, in contrast to an correspondence to: Robert Weinstock, MD, Psychiatry that often offends the pub- Service ( 116AC), West Los Angeles VAMC, 1 130 1 Wilshire Blvd, Los Angeles, CA 90073. lic by finding a defendant "not guilty."

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 347 Weinstock, Leong, and Silva

Gradations allowed a jury to lessen but, raised by the outcome of the trial of Dan ordinarily. not obviate the crime. A find- White. White's counsel used the dimin- ing of a lesser crime would result. thereby ished capacity defense in this case involv- adjusting punishment to the degree of ing the killing of San Francisco's mayor moral reprehensibility of a defendant's and a city supervisor, resulting in a con- motives and intent and not solely the ac- viction for manslaughter instead of mur- ~LLJreus. or criminal act. It differed from der. One expert witness testified that a "diminished responsibility" defense, in White had suffered from a hypoglycemic which punishment was reduced after a state secondary to consuming too much defendant was found guilty of all ele- sugar-laden junk food such as Hostess ments of a crime. Instead. the crime itself ~winkies~and the media and certain pol- was reduced to a lesser included one, and iticians focused on this testimony. Dimin- the defendant was convicted of the lesser ished capacity was ridiculed as the crime. Diminished capacity frequently "Twinkies defense," thereby diverting the was used to lessen a crime of first degree public from exploring the reasons for the murder to second degree murder or even inadequate prosecution of the case. The to voluntary or involuntary manslaughter. reaction to the verdict combined with the Although circumstances such as cultural rationale provided by several influential, factors could not be used for a diminished scholarly legal papers advocating limita- capacity defense, mental conditions short tions on psychiatric "" for of severe mental illness or insanity, in- crime" led to both legislative and voter cluding states of psychological tension initiatives. These resulted in significant and abnormal fear conditions, were per- limitations to the diminished capacity de- missible and could provide partial mitiga- fen~e.~~'The developing political cli- tion. These conditions could be explained mate, emphasizing law and order. pro- to a jury. who thereby could consider a vided fertile ground for these changes. person's reasons for committing a crime Punitive measures became a higher prior- if either a mental disorder of any kind or ity than any "fine tuning" to adjust the voluntary intoxication were proven to af- punishment to the moral reprehensibility fect such reasons. of a particular defendant's motives for In California, the diminished capacity committing a crime. defense as such has been eliminated by a Little has been written elucidating the combination of legislative actions, voter lost advantages of the diminished capac- initiatives. and judicial decisions and re- ity defense as originally created by the placed by a severely attenuated defense California Supreme Court with the assis- that has come to be known as the "dimin- tance of psychiatrist Bernard Diamond. ished actuality" defense. The political im- Also ignored have been the disadvantages petus for the change occurred in 1981 as in California of the return to antiquated a result of public outrage over the verdicts and confusing definitions of in the trial of John Hinckley in Washing- terms such as " aforethought" and ton. DC and controversy in California "implied malice," and use of terms such

348 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense as "abandoned and malignant heart," that make downward departures from sentenc- few can understand, even though they ing guidelines and in some jurisdictions may be colorful. are legally precluded from doing so. Currently, the mens reu defenses are Therefore, their only, very narrow discre- often confounded with each other and tion may be limited to the possibility of with diminished responsibility defenses. sentencing at the lower end of the range In this article we to clarify some permitted by guidelines.8.' However. as of these complex and confusing inens reu acknowledged by legal scholar Stephen issues with an emphasis on past and ~orse,"true responsiveness to the moral present developments in California. Di- issues in a nzeizs reu defense was only minished capacity. as conceptualized in accon~plishedby expanding the defini- previous California law. provided a valu- tions of the elements of a crime to include able model that other jurisdictions could modern psychological elements, such as emulate. To our knowledge, none of the the California Supreme Court previously many other states in which the diminished had accomplished in its creation of the capacity or iizeizs reu defenses exist has diminished capacity defense. redefined the mental elements of a crime In California law, as in English com- in contemporary psychological terms the mon law, to be convicted of a crime re- way California had done prios to the elim- quiring a specific intent, specified mental ination of the diminished capacity de- states are necessary and must be proven. fense as such. Confusion should not be For such "specific intent" . in the allowed to obscure the many lost, valu- absence of the necessary mental state. the able facets. Therefore, we attempt to elu- defendant could be convicted only of a cidate the advantages of the previous di- lesser included crime without that spe- minished capacity defense and compare it cific intent. For example in the case of a with the current status of similar defenses homicide, to be found guilty of first de- in some other states as well as with Cal- gree murder, the jury must unanimously ifornia's current, limited diminished ac- believe that the defendant had premedi- tuality defense. tated, deliberated, and harbored malice aforethought. If the defendant did not pre- Diminished Capacity and Its meditate or deliberate, but did harbor Changes malice aforethought. the jury should The diminished capacity defense not reach a verdict of second degree murder. only allowed for gradations of guilt, with The jury should reach a verdict of (vol- resultant gradations of punishment. but untary or involuntary) manslaughter, if also permitted the jury to participate in they conclude that none of these three the totality of the process, rather than specific intents required for murder were being kept ignorant of the likely sentence present in the defendant's mind at the after a finding of guilt and relegating sen- time of the homicide. Under diminished tencing solely to a judge. In our present capacity, the psychiatrist could give an political climate, judges are reluctant to opinion about the capacity of a defendant

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 349 Weinstock, Leong, and Silva to form the necessary specific intent re- vant to the defendant's capacity to com- quired to be found guilty of a particular mit a crime. crime. Although murder has received the Diminished capacity enabled the de- most attention, there are many other spe- fense to introduce consideration of moti- cific intent crimes. General intent crimes vation in order to arrive at an opinion as in California, but not in all states, could to criminal intent. Explanation of motiva- not be negated by diminished capacity but tion to jurors could assist them in under- could only be totally negated by an insan- standing a defendant better and was often ity defense. conducive to leniency under a framework The California legislative changes nul- of gradations of guilt and punishment. lified the diminished capacity defense and Even as long ago as 1955, forensic psy- replaced it by a strict mens rea defense in chiatrist ~ar~man"had advocated the which psychiatrists cannot testify about need for psychiatrists to strive to clarify their opinions regarding the ultimate in- that there is no deed without intent and no intent without motivation. He recognized tent issue. The new law has removed the the need to include motives in any real- term "capacity" and addresses only istic evaluation of intent. whether the defendant actually had the Of crucial significance, yet generally necessary intent as opposed to the capac- ignored or forgotten, has been the return ity to form the intent. The new defense is by the legislation and initiatives in Cali- called "diminished actuality." These fornia to confusing, antiquated "common changes alone were relatively minor, be- law" definitions. The elements of the cause psychiatrists still can give relevant crime of murder were redefined to pro- testimony and address the ultimate issue hibit the expanded and more readily un- in reports but merely, on the witness derstood psychological definitions, which stand, cannot address the ultimate issue had used cognitive and volitional terms (whether the defendant actually did or did (usually reserved for an insanity de- not harbor the intent in question). This fen~e).~These previously expanded defi- change alone is relatively insignificant. nitions had been accomplished by the The new requirement actually is easier to California Supreme Court with the help satisfy, since it is possible to not have a of Bernard Diamond. Dr. Diamond was a specified intent, yet not lack the capacity forensic psychiatrist whose name became to have the intent. However, more signif- associated with the diminished capacity icantly under the new law, psychiatrists in concept because of his contributions to its California also are generally not permit- development by testifying in some land- ted to testify freely about motivation or mark cases and assisting with appeals. explain why a particular defendant com- His goal was consonant with what he mitted a crime, since such information is considered the proper ethical role for fo- often found irrelevant to the narrow issue rensic psychiatrists, that is, to influence of legal intent. Before the 1981 legisla- and achieve changes in the law consistent tion. such data were admissible and rele- with the ethical goals of medicine.] I but

350 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense nonetheless to remain totally honest and prepense," as it was called in Old English, truthful when expressing an opinion. distinguished murder from a slaying in These expanded definitions were at- self-defense and in 1390 was incorpo- tacked by some as an inappropriate infu- rated into English law by statute to dis- sion of medical values into law. These tinguish between felonious and excusable critics thought medicine should have no homicide. In 1581 William Lambard de- role in what they conceived of as essen- fined manslaughter as a "speciall manner tially a moral enterprise. Psychiatry also of willful killing without any malice fore- was attacked as unable to characterize the thoughte off' in order to distinguish it functions of the human mind reliably in from murder, a "willful manner of sleying regard to issues of "malice aforethought" w[ith] malice prepensed long since." and "premeditation" despite the fact that Murder entailed "malicious hate and dis- these court-developed redefinitions had pleasure."'* Killings that occurred during used contemporary concepts of motiva- drunken brawls at that time were not un- tion and other aspects traditionally con- usual and were considered manslaughter sidered part of an insanity defense. and not murder. Implied malice developed in order to Malice Aforethought punish certain crimes regardless of moti- Diamond. a serious scholar of forensic vation and to avoid the difficult task of psychiatric history, reviewed the histori- evaluating subjective states of mind. Cer- cal development of malice aforethought tain criminal acts, by their very nature. in an article written before the changes in were presumed to be of malice its definition by the California Supreme aforethought. In response to the poison- Court's development of diminished ca- ing of 17 members of the household of pacity." Malice aforethought originally the Bishop of Rochester by their cook, suggested something close to the ordinary King Henry VIII enacted the first such English meaning for these terms- hatred statute in 1530 declaring that homicide by or enmity preexisting the criminal act. poison was always high treason punish- incorporating elements of premeditation. able by boiling to death in oil. This pun- The definition of malice aforethought ishment probably was intended to dis- changed over the years to involve a con- courage any similar crimes and was a trast between design and purpose, as op- reaction to a sensational case and the like- posed to accident and mischance. The lihood that Henry VIII feared his own term "malice" lost any need for malice in poisoning. the ordinary sense and lost any implica- In the 17th century, Hale included in tions of premeditation despite the use of the list of crimes that implied malice by "aforethought." the deed alone: any killing without prov- In the 13th century, Bracton defined ocation, the slaying of any minister of homicide as a "premeditated justice in the enactment of his office, a through anger or hatred or for the cause of slaying occurring during the course of a gain."I2 Malice aforethought or "malice . or the incidental killing of an

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 351 Weinstock, Leong, and Silva innocent bystander during an attempt to time past. An individual who committed kill another. Many of these crimes retain the latter type of act could escape to a city a continuing influence on the current con- of refuge. Pardons by a king, governor, or cept of implied malice. The dangerous- president of a country only work to tem- ness of the act itself was essential rather per an unjust conviction during eras, un- than intent or state of mind. Implied mal- like our own, in which political consider- ice extended even to acts in which ex- ations do not make it politically difficult treme negligence or recklessness caused to pardon any convicted persons. death. Intoxication was not recognized as ex- In early English and U.S. law, murder culpatory during the 15th to 18th century. was always punishable by death. Except Thomas Aquinas was someone who did for an insanity defense, death could be think that murder was less grievous if avoided only by the king's pardon, or in committed when drunk than sober.I4 Ar- the United States by the governor of a istotle, however. thought intoxication es- state. or by the president for federal sentially doubled the crime and should crimes. Implied malice brought a strict therefore double the puni~hment.'~Coke liability element into the law-only the also regarded intoxication as a factor that act mattered. Certain acts might some- should increase punishment. In the late times truly imply malice, but it was irrel- 17th century, Hale expanded ideas formu- evant why an act was committed. Ordi- lated by Coke and wrote the first system- narily in modern law, criminal intent (or atic treatise on mens rea. His ideas have nzens rea) is essential. In the United influenced English common law and, States. Oliver Wendell Holmes took the through Blackstone,16 American law to extreme alternative position and advo- this day. He fostered a lack of regard for cated disregard for motive and intent as nlotivation as opposed to intent. Hostility fictional clichks. He considered actual and premedit&m we& no longer part of malice as relevant only if such malice the definition of malick. Only a deliberate would result in an additional harm or lead to do'bodily harm was required. to other acts the law wished to prevent; Hostility and premeditation became sec- otherwise, only the degree of danger at- ondary and were merely evidence sup- tendant to the act itself was pertinent ac- portive of malice. Malice had to be de- cording to ~olmes.'"n contrast, in our rived from external circumstances to system and in common law, strict "objec- discover the inward intention, such as ly- tive'' liability, regardless of intent, gener- ing-in-wait or former grudges. The unso- ally is considered unjust except for the phisticated psychological concepts of the most minor crimes such as trespassing, time made it especially difficult to ascer- parking offenses, or in some civil liability tain motivation. and it was therefore areas such as product liability. Even the much simpler to ascertain the legal con- Bible (in Deuteronomy 19:4-6) distin- cept of "intent" by the circumstances of guished murder from a killing done igno- the crime itself. The concept of intent in rantly of a person who was not hated in contrast to motivation certainly made

352 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense conviction easier but allowed for arbitrary ifornia had recognized intoxication as po- artificial definitions and distinctions. tentially capable of destroying volition These common law concepts were in- since the 1863 case of People v. Belen- corporated into American law and have ciai9in which it was stated that intoxica- remained confusing. Even Justice Ben- tion could not be excluded. in a murder jamin Cardozo,17 while addressing the case, as evidence regarding whether an New York Academy of Medicine in act was deliberate and premeditated. Sim- 1928, stated that the present distinction is ilarly, in the 1866 case of People v. Hnr- so obscure that no jury hearing it for the ris,20 an intoxicated person who had first time could fairly be expected to as- voted twice in an election was found not similate and understand it. He therefore guilty since he did not intentionally vote advocated collaboration between the dis- twice. Although voluntary intoxication ciplines of law and medicine to conlinent was not an for a crime, intoxica- on existing distinctions and try to im- tion was relevant as to whether a crime prove them. Justice Cardozo commented that required a specific intent in point of that he was not sure he understood the fact was committed. Even earlier in the distinction after years of diligent study, 19th century, some other states that dis- yet "upon the basis of this fine distinction tinguished degrees of murder also permit- with its obscure and mystifying psychol- ted intoxication to be considered in deter- ogy, scores of men have gone to their mining whether a killing was done with death." premeditation and deliberati~n.~' Diminished capacity later was ex- Development of Diminished tended by the court to include mental Capacity illness. Changes made by the California A form of diminished capacity defense Supreme Court led to the use of more was used in Scotland in 1867 to reduce understandable and psychologically so- murder to the crime of culpable homi- phisticated court-developed definitions of cide.I8 In that case, alcoholism and pecu- malice aforethought and premeditation. liarities of mental constitution were con- The courts thereby expanded on and clar- sidered extenuating circumstances even if ified the confusing and antiquated com- not such as to warrant acquittal by reason mon law and statutory terms. Eventually of insanity. The jury was asked to assess the concept included volitional as well as the defendant's capacity to commit the cognitive components. crime. The choices were murder, culpable The first relevant case that initiated the homicide, or insanity. Since sanity was development of diminished capacity for presumed, the burden of proving the con- mental illness in California was People v. trary was placed on the defense. Wells in 1949.~~The defense claimed an The defense of diminished capacity in honest but unreasonable fear of bodily California originated from a long legal harm. Wells, a prison inmate, had thrown history permitting the use of voluntary a cuspidor at a prison guard. slightly intoxication to negate specific intent. Cal- scratching him. This crime at that time

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 353 Weinstock, Leong, and Silva would have resulted in death for the pris- Although historically intoxication was oner if malice aforethought could be not permitted to result in an insanity de- proven. California has a bifurcated trial fense and was not a complete defense for for insanity and the trial court had refused a crime, California and the common law to admit evidence in the guilt phase rele- developed distinctions between general vant to whether the defendant had the and specific intent. The purpose was to required specific intent of malice afore- preclude a defendant from being totally thought. Wells did not have the type of absolved of guilt of any crime because of problem ordinarily qualifying for an in- unconsciousness due to voluntary intoxi- sanity defense but, arguably, was unrea- cation, yet to allow for some mitigation in sonably in fear of bodily harm when the crime because of the effect of alcohol frightened by the prison guard. Diamond on criminal intent. In its development of was involved in the appeal. The Califor- diminished capacity, the California Su- nia Supreme Court held it was an error preme Court extended this defense to not to admit the testimony, although in a mental illness. manner analogous to the current court, The California Supreme Court in the they found the error harmless, and did not Gorslzen case stated that if particular overturn the conviction and resultant mental states were relevant to distinguish death penalty verdict. It fell to the gover- the two degrees of murder and man- nor to do that-paradoxically a conserva- slaughter, it was only reasonable that a tive governor who replaced Earl Warren defendant should be allowed to show that during the appeals process when the lat- he did not, in fact. subjectively possess ter, who had twice refused to commute the necessary mental state or states.23 Di- the sentence, was elevated to the U.S. minished capacity developed as an exten- Supreme Court by President Eisen- sion of and judicial decisions to mit- hower. l2 igate crimes committed by a defendant In 1959. in the case of People v. Gor- asserting voluntary intoxication. The term shen in which Diamond himself testified, "capacity" had been used in a case in- the Court completed the development of volving intoxication as early as 1954.~~In diminished capacity as such. not as a that case. the Court stated that voluntary complete defense negating the capacity to intoxication was not a complete defense commit any crime, but as a partial de- negating capacity to commit any crime fense negating the specific mental state but a partial defense negating a specific essential to a particular crime.23 The de- mental state essential to a particular fendant could still be convicted and found crime. This decision laid the groundwork guilty of a lesser included crime for for the "capacity" portion of diminished which the negated intent was not a nec- capacity as clarified in the 1959 Gorshen essary component. Thereafter, the dimin- case. ished capacity defense in California was California has used the common law often known as the Wells-Gorshen doc- definitions of the elements of murder both trine. currently and under the previous ex-

354 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense panded concept of diminished capacity. attempt to ward off an imminent. com- Malice aforethought distinguishes murder plete loss of sanity. He committed the from manslaughter. Homicide without lulling in the presence of a police officer, malice is manslaughter. Premeditation showing a lack of rationality as well as an and deliberation are required for first de- inability to control himself. gree as opposed to second degree murder. The court considered it only reasonable Malice, however, can be express or im- and fair to allow a similar approach for plied. It is express when there is a mani- mental illness as it had permitted for vol- fest deliberate intention to unlawfully untary intoxication. It became possible take away the life of a another person. It also for mental illness to negate the spe- is implied when no considerable provo- cific intent of a crime. In cases in which cation appears, or when the circum- the intent to kill was formed as a result of stances attending the killing show an deliberation and premeditation (necessary "abandoned and malignant heart." How- for first degree murder), it could be nul- ever, the previous expanded concept of lified by evidence that a particular defen- diminished capacity included the changes dant, because of impairment of his or her made by the California Supreme Court mental ability by mental disease or by with redefinitions of these common law intoxication, could not and therefore did terms to inclitde modern psychological not premeditate or deliberate. This por- concepts. tion is still true in California, except for Diamond testified in the Gorshen case abolition of the tenn "capacity." about what he called the medical essence Although the California Penal Code of malice afo~ethought.~'He distin- stated that a malicious and guilty intent is guished between whether an individual conclusively presumed from the deliber- performs an act as the result of his own ate con~missionof an unlawful act for the free will and intentionally. or whether the purpose of injuring another, the Califor- action is attributable to some abnormal nia Supreme Court in Gorslzen stated that compulsion, force. symptom, or disease the presumption had little meaning, since process of the individual. Diamond the facts of deliberation and purpose that claimed that in an ordinary individual must be established to bring the presump- these actions would be evidence of free tion into operation are just as subjective will and deliberation. He stated that in as the presumed fact of malicious and Gorshen's case, the actions instead were guilty intent. This aspect also is still gen- just as much symptoms of his mental erally true in California and the court still illness as were his visions and trances. He does allow subjective intent in cases of testified that Gorshen heard voices and express and implied malice. However, in- experienced visions of devils in disguise tent to kill is now itself sufficient for a committing abnormal sexual acts. Gor- finding of express malice.25726 shen, as a result of a beating and asper- The Gorshen court did not accept the sions on his manhood. acted like an au- "reasonable man" (objective) standard tomaton whose behavior was a desperate used in the common law for

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 355 Weinstock, Leong, and Silva as a defense to malice and therefore to lowing the new legislation as interpreted murder. In the common law, provocation by the court. is now itself sufficient for of a reasonable man was necessary to establishing malice and therefore second meet the definition of voluntary man- degree murder. According to the court. slaughter (i.e., an unlawful killing upon a intent to kill is no longer solely an aspect sudden quarrel or in the heat of passion). of premeditation and first degree murder. The Court considered evidence relevant The Suille decision also precluded intox- about a particular defendant's abnormal ication from negating express malice so mental condition caused by intoxication, as to result in voluntary manslaughter. trauma. or disease. It held that it was not However, it did not eliminate the ability proper to restrict evidence of mental ill- of intoxication, and therefore. presum- ness so that it could negate only the entire ably, mental illness, to negate express intent at the sanity phase of California's malice and thereby result in involuntary bifurcated trial but not permit mental ill- manslaughter. First degree murder could ness to negate a more limited specific still be reduced to second degree murder intent at the guilt phase. Since malice by nullifying premeditation. Since the in- aforethought comes within the meaning tent to kill itself is now sufficient to reach of the phrase "any particular purpose, a murder verdict, voluntary intoxication motive. or intent." the court considered can no longes reduce murder to voluntary murder a specific intent crime and con- manslaughter. Intentional killing is mur- sidered it fair and reasonable that the de- der, unless the specific statutory defini- fendant be allowed to show that in fact, tion for voluntary manslaughter is met. A subjectively, he did not possess the men- jury, therefore, is more likely to reach a tal state or states in issue, either as a result murder verdict. Despite these changes, a of mental illness or voluntary intoxica- significant portion of the Gorsherz deci- tion. sion and all of the Wells decision still Additionally. the Gorslzen court deter- apply in California. mined that the intent to kill was not a necessary (statutorily prescribed) element Expanded Psychological of second degree murder, but was a nec- Distinctions in Diminished essary element only of first degree mur- Capacity der. "a willful. deliberate, and premedi- In 1964 in People v. Wolff, the Califor- tated killing," and was implied in the nia Supreme Court expanded its defini- statutory description of voluntary man- tion of "premeditation" to include the ex- slaughter, "the unlawful killing of a hu- tent to which the defendant could man being without malice aforethought." maturely and meaningfully reflect on the This latter portion of the opinion recently gravity of the contemplated act.'7 Even was changed by the California Supren~e before this, premeditation (required for Court in People v. ~aille.'"he~ based first degree murder) had necessitated, in their decision on the changed legislative California, that the defendant had exer- and initiative statutes. Intent to kill, fol- cised a substantial degree of thought,

356 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense weighing. and deliberate judgment or elements usually reserved for insanity de- planning. The WoIff court considered rel- fenses were thereby included and could evant the extent of the defendant's under- reduce murder to manslaughter. standing reflection upon an act and its In 1978 in People v. Wetmore. a bur- consequences, thereby realizing the enor- glary case in which the defendant delu- mity of the evil, as part of the court's sionally believed the house he burglarized appraisal of the quantum of moral turpi- was his own, the court determined that if tude and depravity. Establishing "careful a "specific intent" crime included no planning" by the defendant was necessary lesser csime, diminished capacity could for a first degree murder verdict, not be a complete defense and result in a not merely the almost useless previous and guilty ~erdict.~'Such evidence could current distinction that the thought must also be used in the sanity phase of Cali- precede the action. fornia's bifurcated trial. Because of du- In 1966 in People v. Conley, the court plication and the California Supreme added to the definition of malice afore- Court's preference for its diminished ca- thought a requirement that the defendant pacity defense. the legislature was invited be able to comprehend the duty society to make changes and eliminate the bifur- places on all persons to act within the law cated trial. Diminished capacity as its (an awareness of the obligation to act former expanded modernized mens rea within the general body of laws regulat- variant stood ready potentially to replace ing society).'x Therefore, a cognitive el- the insanity defense in California. ement of knowledge of the wrongfulness Also, at about the same time, (in 1979) of an action usually reserved for a the California Supreme Court clarified M'Naghten-type insanity defense was that the "imperfect self-defense" doctrine needed to find murder as opposed to man- used in the Wells case was an alternative slaughter. The court commented that the type of nonstatutory voluntary man- statutory limitation of voluntary man- slaughter. This doctrine. also accepted in slaughter to homicides caused by ade- some other jurisdictions, reduces murder quate provocation was not exclusive, to manslaughter when a person has killed since the statute antedated the concept of under the honest but unreasonable belief diminished capacity. in the to defend against immi- The concept of lack of volitional ca- nent peril to life or against great bodily pacity was introduced into the diminished injury. This doctrine was raised by the capacity defense in 1973.'" In 1974 in defense in the first homicide trial of the People v. Poddar, the trial of the killer of Menendez brothers, which ended in a Tatiana Tarasoff, the court, in the context hung jury.3'* " The imperfect self-de- of implied malice, added the requirement fense doctrine was reaffirmed by the Cal- that the defendant, even if aware of his ifornia Supreme Court in the 1994 case of duty to act in accordance with the law, In Re Christian s.'~as independent of must also be able to act in accordance diminished capacity and not affected by with that duty.?' Cognitive and volitional the latter's abolition. This decision af-

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 357 Weinstock, Leong, and Silva

firmed the previous 1979 decision of Peo- ity, diminished actuality, or other mens ple v. ~larznel." If the honest belief is rea variants may be relevant, should be- found to be reasonable, it is a complete come aware of the possible ways that all defense and a defendant should be found mental health defenses may be relevant not guilty. when agreeing to consult on such a case. Several issues in California are clear. Transformation of Diminished Sections 28 and 22 of the California Penal Capacity into Diminished Code currently do not allow evidence of Actuality mental illness or intoxication to negate The California legislature. in 198 1, the capacity to form any mental state. but abolished the diminished capacity de- both are admissible solely in the issue of fense as such.%n additional voter initia- whether or not the accused actually tive was adopted in June 1982,~essen- formed the required specific intents. Psy- tially duplicating the legislative approach, chiatric evidence still can be used to dis- while adding a few different aspects. prove aspects of a specific intent that the Both of these actions were considered prosecution must prove beyond a reason- complementary, as reaffirmed by the Cal- able doubt. It can be used in the guilt ifornia Supreme Court in the 1991 Saille phase of a bifurcated trial. in contrast to decision." the insanity defense, which still is rele- Although these actions were promoted gated solely to the sanity phase after guilt as an end to the confusion about dimin- already has been found. ished capacity and the misuse of psychi- Section 22(b) of the California Penal atry, the new resultant confusion, in our Code states that "evidence of voluntary opinion. has been far greater following intoxication is admissible solely on the the changes made by the legislature and issue of whether or not the defendant the voter initiative. The California Su- actually formed a required specific intent, preme Court only recently partially clar- premeditated, deliberated, or harbored ified these changes for express malice in malice aforethought, when a specific in- the 1991 Saille decision and for implied tent crime is charged." Section 29 of the malice in the 1994 Whitfield decision. California Penal Code allows the expert These decisions clarify some of the con- to give relevant testimony in the guilt fusion, but still perpetuate much of it. phase of a criminal trial. but not to testify Many of the distinctions, although based as to whether the defendant had or did not on English common law, are difficult to have the required mental state. This ulti- comprehend. Terms such as "malice" do mate issue question is to be decided by not require malice in an ordinary sense. the trier of fact. Although prohibited from Yet. to perform a competent evaluation- testifying on this ultimate issue, the ex- ethically and otherwise-a forensic psy- pert is not precluded from expressing an chiatrist, who evaluates a defendant in opinion on this issue in the written report California or in other jurisdictions in or providing relevant data in courtroom which the defenses of diminished capac- testimony.

358 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense

The expanded definition of premedita- voluntarily and intentionally committing tion was specifically eliminated by stat- the act automatically implies malice if ute. Mature and meaningful reflection no there is intent to kill or conscious disre- longer is required for a finding of pre- gard for human life, diminished actuality meditation or first degree murder. Pre- by intoxication can only reduce second meditation itself again is almost auto- degree murder to involuntary manslaugh- matic in that it now means solely that the ter. intent precedes rather than follows the Despite the use of the word "deliber- crime. In addition, first degree murder ate" in the phrase "deliberate intent un- requires deliberatiqn: but this term also is lawfully to kill," a part of the definition of confusing. as will be discussed shortly. In malice aforethought and necessary for section 188 of the California Penal Code, any form of murder, the court does not the legislature returned solely to the com- require deliberation for second degree mon law definition of malice-that mal- murder but limits its use to deliberate ice is express when there is a deliberate intent, an element of first degree murder. intention unlawfully to take away the life "Deliberate" therefore no longer can dis- of a fellow creature. It is implied when no tinguish murder and manslaughter. "De- considerable provocation appears or liberate" in section 188 of the California when circumstances attending the killing Penal Code now is merely a way to dis- show an "abandoned and malignant tinguish express from implied malice or, heart." This section abolished the ex- alternatively. distinguish first and second panded definitions of malice previously degree murder, since first degree murder given by the California Supreme Court. It requires deliberation. Express malice is also added that when it is shown that the defined as deliberate intent unlawfully to killing resulted from the intentional com- kill. The word "deliberate" also appears. mission of an act with express or implied confusingly. in the special circumstance malice. as defined above, no other mental death penalty instruction of lying-in-wait. state need be shown to establish the men- These distinctions are confusing, but tal state of malice aforethought. "Unlaw- could succeed in finding a greater crime fully" means there is no justification, ex- for any situation involving deliberation cuse, or mitigation. on the part of the defendant. Proving that Diminished actuality as a result of the deliberation existed could result in a find- absence of premeditation and the nega- ing of "special circumstances" and a sen- tion of deliberation can still lead to the tence of a death penalty or life imprison- reduction of murder from first to second ment without the possibility of parole. In degree. However, the California Supreme the absence of proven deliberation. sec- Court determined that diminished actual- ond degree murder, instead of man- ity cannot be used to negate murder to slaughter, now should be the least severe voluntary manslaughter by voluntary in- verdict. toxication in cases where express mal- The court has stated that there is no ice25 or implied malice26 is proved. Since longer any possibility of a finding of di-

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 359 Weinstock, Leong, and Silva minished capacity nonstatutory voluntary social disregard for human life and an manslaughter in intoxication cases. How- objectively dangerous physical act. Ne- ever, in cases of mental illness, unlike gating the presence of implied malice by those involving intoxication, it is possible intoxication reduces murder to involun- for a defendant to have intended to com- tary mans~aughter.~~It cannot any longer, mit the underlying act that resulted in a according to the Whitfield decision,26 re- homicide without having had an intent to duce the verdict to voluntary manslaugh- kill. The act might be performed on a ter in cases involving voluntary intoxica- delusional basis, in~pulsivelyin a state of tion; only cases that meet the statutory extreme panic or in a state of dissociation definition can do so. Even if no excep- without thinking of the consequences. tions are made for intoxication, mental Therefore. it would seem logically possi- illness, in contrast. should logically still ble to negate express malice but still have be able to negate the presence of an the intent necessary for voluntary man- "abandoned and malignant heart" needed slaughter with the act itself being inten- for implied malice. with its subjective tional. It remains unclear whether the requirement of a conscious and antisocial California Supreme Court would permit disregard for human life. Despite the ab- voluntary manslaughter verdicts under sence of precedent-setting cases, the ne- such circumstances. gation of conscious and antisocial disre- Section 192 of the California Penal gard for human life (necessary for finding Code negates a finding of malice when implied malice) and without the intent to the intentional killing results from a sud- kill (necessary for finding express malice) den quarrel or the heat of passion induced logically should still be able to result in a by adequate provocation. The resultant verdict of nonstatutory voluntary man- finding should be voluntary manslaugh- slaughter for mental illness. ter. A subjective standard of a particular Proof of psychiatric disorders would defendant's perception of provocation seem capable of negating a finding of continues to be applied. Whether a defen- either express or implied malice, yet the dant has acted in wanton disregard for person could still have made a decision to human life or with some antisocial moti- commit the act itself that resulted in the vation is no longer relevant for express killing. In such a case, a voluntary man- malice, according to the statute, but no slaughter verdict would seem reasonable. change in this regard has been made in However, the court could insist that only the definition for implied malice. Murder involuntary manslaughter is permissible with implied malice aforethought occurs in order to be consistent with its voluntary when a person has acted deliberately and intoxication opinion. Analogously, the the circumstances attending the killing court might limit a finding of voluntary show an "abandoned and malignant manslaughter to the statutory intentional heart." The statutory "abandoned and ma- killing resulting from a sudden quarrel or lignant heart" definition contains two el- the heat of passion. However, the logic ements-a subjective conscious and anti- behind the voluntary intoxication deci-

360 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense sions do not necessarily apply to mental Whitfield by the majority to be a specific disorders. Nonstatutory voluntary man- intent crime. The court clarified that the slaughter should logically be possible for intent to do an act involves general intent mental illness cases in addition to non- when the crime consists of only the de- statutory involuntary manslaughter. scription of a particular act without refer- Involuntary manslaughter by statute in- ence to intent to do a further act or volves unlawful killing of a human being achieve a consequence. When the crime's without malice aforethought and without definition refers to a defendant's intent to intent to kill. Statutory involuntary man- do some further act or achieve some ad- slaughter requires, in California and in ditional consequence, the crime is a spe- many other jurisdictions, that (1) a person cific intent crime. Implied malice does is killed and (2) the killing is unlawful. not entail an intent merely to do a violent The killing is unlawful if it occurs (1) act, but the defendant must act with during the commission of a knowledge of the danger and in conscious inherently dangerous to human life and disregard for human life. Therefore, vol- (2) in commission of an act, ordinarily untary intoxication and, presumably, lawful, which involves a high risk of mental illness can be used to negate both death or great bodily harm without due implied as well as express malice. caution and circumspection. According to the majority opinion in According to hit field,^^ in a vehicular ~hitjield.~~the determination of whether homicide case malice also can be consid- a defendant who drives under the influ- ered implied when (1) the killing resulted ence of alcohol exhibits the conscious from an intentional act, (2) the natural disregard of human life necessary for a consequences of the act are dangerous to finding of implied malice does not de- human life, and (3) the act was deliber- pend solely on the defendant's state of ately performed with knowledge of the mind at the time of a driving accident danger to and with conscious disregard while intoxicated, but also on his state of for human life. Voluntary intoxication mind when he decided to begin drinking. leading to a driving death can lead to a Implied malice, and the resultant finding finding of either second degree murder or of second degree murder, requires a de- gross vehicular manslaughter. The test for termination that a defendant actually ap- vehicular manslaughter is an objective preciated the risk involved when he test of gross negligence. Implied malice started to drink, such as knowing he involves an element of voluntariness: the would need to drive. Statutory vehicular person must actually have appreciated the manslaughter, in contrast, requires proof risk involved as opposed to being solely, of gross negligence or that a reasonable recklessly negligent. Implied malice en- person in the defendant's position would tails a degree of wantonness that is absent have been aware of the risk. Since intox- in gross negligence. ication can negate malice to involuntary Contrary to the common law definition. manslaughter in cases of express malice implied malice murder was determined in (such as a case of firing a gun while

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 361 Weinstock, Leong, and Silva intoxicated thereby killing an~ther),~'the an act without awareness of its potential court considered that it should permit ne- lethality, because of delusions or condi- gation of implied malice in cases of ve- tions such as mania or even agitation, that hicular homicide while intoxicated. An may preclude realistic consideration of example given by the Whitjield court is consequences. In addition, subjective that a person becomes drunk at a party provocation can occur as a result of para- expecting to be driven home by a spouse. noid delusions or even affective lability. However, the spouse becomes ill, so the although a would not now intoxicated defendant decides to have such a reaction. Subjective percep- drive and thereby kills another person. tions of provocation can legally negate This is an illustration of a decision to implied malice. In regards to express mal- drink with a subsequent unforeseeable ice, a mentally ill defendant might intend outcome. Justice Mosk, in a dissent, com- to do the act itself that results in the mented on the fact that in English com- killing without having an intent to kill. It mon law, implied malice is a general in- would seem that a nonstatutory voluntary tent crime. He thought that the earlier manslaughter verdict would be appropri- California precedent had been based on ate under such circumstances. Some such the expanded definitions of malice that individuals might also qualify for a had been repealed by legislation. He ex- M'Naghten-type insanity defense (the pressed additional concern about the con- current California standard). Nothing fusing status of drunk driving cases in analogous to a decision to drink, despite California and the unjustness of the fel- awareness of a need to drive, or despite ony murder doctrine. knowledge of the potential loss of behav- ior controls if intoxicated, occurs in cases Current Status of Mental Illness involving mental illness. The only possi- and Diminished Actuality ble analogy would be the refusal of a The diminished actuality defense in chronically mentally ill patient to stay on California still permits voluntary intoxi- medication designed to control his or her cation and mental factors, short of severe mental illness, despite prior history of mental illness, to remain mitigating fac- relapse under such circumstances. How- tors and negate a specific intent in spe- ever. we know of no such precedent- cific intent as opposed to general intent setting cases, and a mental patient might crimes. The California Supreme Court nonetheless not be considered responsible decisions in Saille and Whitfield involved for a decision to stop medication. cases of voluntary intoxication and the Unlike earlier court decisions, the de- consideration of diminished actuality. liberate intention to lull unlawfully. ac- Forbidding a voluntary manslaughter ver- cording to California Supreme Court rul- dict by nonstatutory negation of malice ings, now is also an element of second may make sense in the context of alcohol degree murder and not only of first degree intoxication. However, in cases of mental murder. The aspect of deliberation is now illness. there can be an intent to commit considered irrelevant for second degree

362 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense murder, and lack of deliberation pre- to follow a suggestion made by Diamond cludes only first degree murder. Never- prior to the full development of dimin- theless, it should still be possible in some ished capacity. When applicable, an at- cases in which mental illness is a factor to tempt could be made to show the absence meet the voluntary manslaughter statu- of lnens rea in the robbery itself.'' tory standard by a subjective absence of ~orse,'%ho consulted with the legis- an abandoned and malignant heart. The lators, recommended the abolition of di- presence of an abandoned and malignant minished capacity but retention of a strict heart should result in a finding of implied tnet1.s reu defense. His views had a strong malice and a 'minimum verdict of second influence on the subsequent legislation. degree murder. As a result of mental ill- Morse had been critical of most of the ness. the defendant could lack the subjec- ways mental health professionals make tive conscious and antisocial disregard for deterministic causal connections and how human life that is part of the "abandoned such connections are used to lessen crim- and malignant heart" definition, despite inal responsibility. He thought that the having committed intentionally an objec- fundamental issue is not whether a defen- tively dangerous physical act. Such a dant is as culpable as another offender mentally ill defendant could also lack the who committed the same criminal act but intent to kill necessary for express malice, whether the defendants should have or despite an intent to perform the dangerous could have controlled themselves. Morse act itself. It should, therefore, at least favored the all-or-none insanity defense, logically be possible in cases of mental holding most defendants fully responsible illness to find nonstatutory voluntary if at the time of the offense they knew manslaughter. Both intoxication and, pre- what they were doing and had any volun- sumably, mental illness by the statutorily tary control whatsoever. He advocated se- prescribed standard can reduce a charge verely limiting mental health defenses to of murder to voluntary manslaughter by situations in which such control was to- the occurrence of an antecedent sudden tally absent because of cognitive disabil- quarrel or heat-of-passion situation. ity.37 It seems reasonable that, in contrast to It is unclear what benefit the legislative the Saille and Whitfield decisions. that and voter changes in California have ac- involved intoxication, mental illness complished. No jury was ever required to should be able to result in a verdict of find diminished capacity. Juries were nonstatutory voluntary manslaughter. merely permitted to do so. It is unclear However. we are not aware of any rele- why an impulse that was very difficult to vant precedent-setting cases in the con- control should not be permitted to provide text of mental illness, and this issue, a partial although not a total exc~se'~if a therefore, remains uncertain. It also jury wanted to mitigate but not totally should be possible in a case of excuse the offense. Such an option, of murder. such as an unintended killing course, is prohibited by the all-or-none during the commission of a bank robbery, M'Nnglzterz insanity defense, and there is

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 363 Weinstock, Leong, and Silva little provision for it under a limited strict tions to allow meaningful use of the de- nzens rea defense. fense. Such a limited, strict rnerzs rea de- fense, if stringently applied, rarely can be Mens Rea Defenses in the Future used successfully. Additionally. for psy- Many states other than California have chiatric testimony to be relevant, a sub- Inens rea defenses, and some have devel- jective standard of malice needs to be oped a type of diminished capacity de- employed in which a defendant's actual fense. Some jurisdictions even use the mental state is relevant, in contrast to an term "diminished capacity" itself. How- objective "reasonable man" standard. To ever. to our knowledge, none has rede- be truly meaningful, a redefinition of fined the elements of a crime as Califor- terms such as malice aforethought would nia had. The 1984 federal Insanity be needed, as well as consideration of Defense Reform Act does not permit a motivation as opposed to the legal intent diminished capacity defense as such, but concept. nonetheless does permit a nlens rea de- The American Law Institute's Model fense in addition to an insanity defense.'" Penal code"' recommends an affirmative Parenthetically, the current federal sen- defense of extreme emotional distress for tencing guidelines permit diminished ca- which there is a reasonable explanation or pacity resulting from mental illness, but excuse. The Code considered the defense not intoxication, to result in a downward to be a modified version of the traditional departure in ~entencing.~"The American notions of passion and provocation that Bar Association's Criminal Justice Stan- takes into account an actor's subjective dards of 1984 recommended a nzens rea state of mind and is inconsistent with defense in addition to an insanity de- premeditation. However. although analo- fense." gous, extreme emotional distress is more Despite the position of some states, it circumscribed than a n~erzsrea defense seems arbitrary and inconsistent not to and is more like a diminished responsi- permit a inens rea defense based on men- bility defen~e."~Mitigation of the crime tal illness, or even intoxication. if they and its resulting punishment by extreme preclude a defendant from harboring the emotional distress are affirmative de- specific mental state and intent necessi- fenses after guilt for a crime (itself in- tated by the definition of certain crimes. cluding intent) has been shown. Some Nevertheless, many jurisdictions do not states have adopted this approach to re- permit expert testimony to assist in these duce murder to manslaughter after all el- considerations. They permit only the total ements of a crime have been proven be- negation of general intent if a defendant yond a reasonable doubt. States generally meets the artificial and somewhat arbi- require the defense to bear the burden of trary standard for the insanity defense. proof of an extreme emotional distur- Some jurisdictions have replaced in- bance defen~e.~'?44 sanity defenses with a merzs rea defense, Some states have followed California but they have not expanded their defini- in adopting a so-called diminished capac-

364 Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 California's Diminished Capacity Defense ity defense itself or other rnens rea de- and not restrict their opinions to only one fenses without modernizing and redefin- of the relevant issues. Limited strict mens ing the psychological and mental rea defenses should not be confused with elements of a crime as California courts California's former diminished capacity had done. Diminished capacity in such defense, which provided a meaningful jurisdictions refers to capacity to have an supplement and potential alternative to intent, but the common law definitions of the insanity defense. the intent portion of a crime are main- Complex as these concepts may be, it is tained. Others have a pure limited nzens essential that forensic psychiatrists evaluat- rea defense analogous to diminished ac- ing cases in any jurisdiction permitting tuality. Thus. the diminished capacity de- rnens rea defenses become as clear about fense and its variants have continued to the applicable criteria as they are about in- have an existence outside of Califor- sanity defense criteria. It is essential also to nia45-5 1 and within California as dimin- appreciate the California experience in or- ished actuality. Some jurisdictions restrict der to place current law, the various mens mem rea defenses to particular crimes or rea defenses, and the relevant literature into use terms such as "extreme emotional their proper context. disturbance" to lessen the crime and pun- ishment after guilt for a more serious defense has been found. However, many References other jurisdictions still do not permit a Clark CR: Clinical limits of expert testimony mens rea defense and allow only a tradi- on diminished capacity. Int J Law Psychiatry 5: 155-70, 1982 tional all-or-none insanity defen~e.~~-~~Morse SJ: Undiminished confusion in dimin- Often, no mitigation at all is allowed for ished capacity. J Crim Law Criminology 75: 1-55, 1984 mental illness if it is less than severe, Morse SJ: Crazy behavior, morals and sci- frequently equated with psychosis, and ence: an analysis of mental health law. Calif L voluntary intoxication generally provides Rev 5 1527-654, 1978 Morse SJ: Diminished capacity: a moral and no excuse at all even if the psychological legal conundrum. Int J Law Psychiatry 2:271- effects of such intoxication were unfore- 98, 1979 1981 Cal Stat Ch 404 seen by the defendant. 1982 Cal Stat Ch 894 Diminished capacity was an important California Voter Initiative Proposition 8: The and worthwhile alternative to an arbitrary Victims Bill of Rights. June 8, 1982 Freed DJ: Federal sentencing in the wake of all-or-none insanity defense. If Califor- guidelines: unacceptable limits on the discre- nia's current M'Nuglzten insanity defense tion of sentencers. Yale LJ 101 : 168 1-1754, 1992 criteria are applied rigidly, they can pre- Newton J: Judge denounces mandatory sen- clude almost any defendant, no matter tencing law. Los Angeles Times. December how mentally ill, from being found not 19, 1992,ppBl,B10 Karpman B: Criminal psychodynamics: a guilty by reason of insanity.'5 Forensic platform. Arch Crim Psychodynamics 1:3- psychiatrists need to be aware of mens 100, 1955 Diamond BL: The forensic psychiatrist: con- rea alternatives to an insanity defense in sultant vs activist in legal doctrine. Bull Am jurisdictions that permit such defenses Acad Psychiatry Law 20: 1 19-32, 1992

Bull Am Acad Psychiatry Law, Vol. 24, No. 3, 1996 Weinstock, Leong, and Silva

12. Diamond BL: With malice aforethought. Arch 34. In Re Christian S., 7 Cal 4th 768 (1994) Crim Psychodynamics 2:l-45, 1957 35. People v. Flannel, 22 Cal 3d 668 (1979) 13. Holmes OW: The Common Law. Boston: Lit- 36. Morse SJ, Cohen E: Diminishing diminished tle Brown, 1881, pp 75, 76 capacity in California. Calif Law 2:24-6, 14. Aquinas T: Summa theologica, in Great I982 Books of the Western World (vol 20). Chi- 37. Morse SJ: Excusing the crazy: the insanity cago: Encyclopedia Britannica, 1952, p 144 defense reconsidered. S Cal L Rev 58:777- 15. Aristotle: Nicomachean ethics, in Great 836, 1985 Books of the Western World (vol 9). Chicago: 38. Dressler J: Reaffirming the moral legitimacy Encyclopedia Britannica, 1952, p 359 of the doctrine of diminished capacity: a brief 16. Blackstone W: Commentaries on the Laws of reply to Professor Morse. J Crim Law Crim- England (vol VI). Oxford, England: Claren- inology 75:953-62, 1984 don Press, 1769, p 24 39. Comprehensive Crime Control Act of 1984, 17. Cardozo BN: Law, Literature and Other Es- Public Law No. 98-473, 98 Stat 1987 (1984) says and Addresses. New York: Harcourt 40. Section 5K2.13, United States Sentencing Brace, 1931, pp 86-101 Guidelines Manual, November 19, 199 1 18. HM Adv v. Dingwall, 5 Irvine 466 (1867) 41. American Bar Association: ABA Criminal 19. People v. Belencia, 21 Cal 544 (1863) Justice Mental Health Standards. Washington, 20. People v. Harris, 29 Cal 678 (1866) DC: American Bar Association, 346-53, 21. Swan v. The State, 23 Tenn (4 HVM) 136 I989 (1843) 42. Model Penal Code, section 2103, Proposed 22. People v. Wells, 33 Cal 2d 330 (1949) Official Draft, 1963 23. People v. Gorshen, 51 Cal 2d 716 (1959) 43. People v. Patterson, 347 NE 2d 898 (1978) 24. People v. Baker, 42 Cal 2d 550 (1954) 44. State v. Traficonda, 6 12 A 2d 45 (Conn 1992) 25. People v. Saille, 54 Cal 3d 1103 (1991) 45. Commonwealth v. Grey, 399 Mass 469, 505 26. People v. Whitfield, 7 Cal 4th 437 (1994) NE 2d 171 (1987) 27. People v. Wolff, 61 Cal 2d 795 (1964) 46. State v. Shank, 3675 E 2d 639 (NC 1988) 28. People v. Conley, 64 Cal 2d 310 (1966) 47. State v. Rose, 398 SE 2d 314 (NC 1990) 29. People v. Cantrell, 8 Cal 3d 672 (1973) 48. Colorado v. Sandoval, 805 P 2d 1 126 (1990) 30. People v. Poddar, 10 Cal 3d 750 (1974) 49. US. v. Pohlot, 827 F 2d 889 (3rd Cir 1987) 3 1. People v. Wetmore. 12 Cal 3d 3 18 (1978) 50. People v. Caulley, 197 Mich App 177 (1992) 32. Stevenson MJ: Instr-uction on self-defense is 51. State v. Arbour, 618 A 2d 60 (Conn App Menendez key. Los Angcles Daily lournal 1992) 1O6(243): 1-2, December 6. 1993 52. State v. Laffoon, 610 P. 2d 1045 (Ariz 1980) 33. Abrahamson A: Lyle Menenciez jury saysit 53. State v. Wilcox, 436 NE 2d 523 (Ohio 1981) cannot reach a verdict; D.A. to rc~qbrothers. 54. State v. Roussell, 424 So 2d 226 (La 1982) Los Angeles Times. January 26. 1994, pp A I, 55. Diamond BL: The criminal responsibility of A26 the mentally ill. Stan L Rev 4:59-86, 1961

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