Disability As Criminal Defense

This post covers how some well known concepts of criminal defense in California can be made in the context of a disabled defendant. There is nothing new in the rules, yet the recent case, People v. Gana, provides some more detail and guidelines on application.

The rule starts with California Penal Code, Section 26. This section lists exemptions; if defendant establishes one of those, (s)he may have got a "jail free" card. Three of the six prongs (Nos. 2, 3, and 4) may be raised if the defendant was disabled, and that disability produced an impairment fitting the exemption (for that purpose, prong No. 5 may arguably also be included here). As shown below, any disability may lead to the defendant's state of incapacity to commit crime, it is only a question of the measuring approach and the degree of incapacitation.

Examples:

People v. Baker (1954) 42 Cal.2d 550, analyzes applicability of Section 26 to a disabled person (epilepsy, honest mistake in taken wrong drugs);
In re Ricky S. (2008) 166 Cal.App.4th 232, reversed judgment of a mentally challenged in development 14 y.o. as incompetent.

The incapacitation does not have to render a person entirely nonsensitive or unmovable: it is only measured to the extent it prevents the person from forming the criminal intent.  A recent case, People v. Gana (2015) 236 Cal.App.4th 598, explains:

“A person “who commit[s] the act charged without being conscious thereof” is deemed incapable of committing a crime. (Pen. Code, § 26, par. Four.) “Unconsciousness for this purpose need not mean that the actor lies still and unresponsive … . Thus unconsciousness ‘“can exist … where the subject physically acts in fact but is not, at the time, conscious of acting.”’” (People v. Ochoa (1998) 19 Cal.4th 353, 423–424; see People v. Methever (1901) 132 Cal. 326, 329, disapproved on other grounds in People v. Gorshen (1959) 51 Cal.2d 716, 731–734 [unconsciousness “contemplates … cases of persons of sound mind,—as, for example, somnambulists, or persons suffering with delirium from fever or drugs”].) It “‘is ordinarily a complete defense to a charge of criminal homicide,’” unless “‘the state of unconsciousness results from intoxication voluntarily induced … . (Pen. Code, § 22.)’” (People v. Ochoa, supra, 19 Cal.4th at p. 423.)”

The disability itself does not have to be of mind- or ability-impairing character. In Gana, the defendant suffered from cancer, and only after following a combination of circumstances, happened to take wrong medication, which in turn led to the incident. How one can prove such a condition? Through medical testimony, which is admissible on this issue. Same Gana case confirms on page 609-610:

“medical testimony … as to why [the defendant] was unconscious” can support an instruction on this defense. (People v. Coston (1947) 82 Cal.App.2d 23, 40.) The defense presented the testimony of medical experts who identified the medications defendant was taking to combat cancer and to overcome the adverse effects of the chemotherapy, and explained how these medications could affect her mental state. In particular, Tramell concluded defendant was suffering from a psychosis likely caused by “a combination of events, combination of factors, including both her depression as well as the medications that she was taking. It appears that she was experiencing a delirium, which is a kind of fluctuating level of consciousness, due to medical illness that caused her to … have worsening symptoms of depression and worsening psychoses.””

One court observed the situation more generally, attributing the development of this and similar defenses as a modern trend, moving away from strict application of old and rigid rules. See, In re Jennings (2004) 34 Cal.4th 254, 279:

“At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. … [I]t has never been suggested that these exceptions do not equally apply to the case of statutory offenses unless they are excluded expressly or by necessary implication.” ’ ” [citation] These cases follow the modern trend away from imposing strict liability for criminal offenses and to require some showing of knowledge or criminal intent, even if only criminal negligence. [citation] the People bear the burden of proving the defendant knew or should have known the firearm possessed the characteristics bringing it within the” Assault Weapons Control Act] [citation] In addition to interpreting statutory language to require some showing of criminal intent, as we did in Jorge M., we may permit a conviction absent evidence of knowledge, but allow a defendant to raise a mistake of fact in his defense

The argument in Jennings was not a complete defense under Section 26, but a mitigation under "mistake of fact." This is the second area, where defendant's disability may apply.

As a general matter,  a mistake of fact defense is not available unless the mistake disproves an element of the offense. People v. Parker (1985) 175 Cal. App. 3d 818, 822. This rule changed after Jennings, (Id. at 277), where it was held that the mistake of fact, can be raised in crimes traditionally immune to this argument (such as criminal negligence, or crimes not requiring criminal intent).

And finally, and of the least degree of usefulness, if neither avoiding the criminal liability entirely, nor mitigating it to a lesser charge under a general mistake of fact helped, there is one more bite of the apple, that is the "Unreasonable Self-Defense" argument.

An honest but unreasonable belief in the need for self-defense therefore negates the malice required for mayhem, since one acting with that purpose does not act with the intent to vex, injure, or annoy. Although such an unreasonable belief does not completely absolve a defendant, it mitigates his criminal responsibility to the lesser included offense of assault or battery. People v. McKelvy (1987) 194 Cal.App.3d 694.