PEOPLE v. MARKARIAN

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Armik MARKARIAN, Defendant and Appellant.

B020558.

Decided: June 15, 1987

Frank O. Bell, Jr., State Public Defender, and Richard Avila, Deputy Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Terry T. Fujimoto, Deputy Atty. Gen., for plaintiff and respondent.

Defendant, Armik Markarian, was convicted of the first degree murder of his father-in-law, Orlando Lazabal, the attempted murder of his mother-in-law, Maria Lazabal, and assault with a deadly weapon on his wife, Maria Markarian.   He challenges the murder and attempted murder convictions on several grounds.

We reverse the convictions for murder and attempted murder because the jurors may have interpreted their instructions to require that Markarian prove his claim of diminished mental state rather than produce evidence creating a reasonable doubt as to his mental state at the time he acted.

FACTS

Markarian and his wife, Maria, were married against the wishes of her parents.   The marriage was not a successful one.   After three months, Maria left Markarian and moved back to her parents' home.   She returned to Markarian twice in the following two years but each attempt at reconciliation proved unsuccessful and Maria ended up residing with her parents, Orlando and Maria Lazabal.   Markarian blamed his in-laws, especially Ms. Lazabal, for the failure of his marriage.

The day before the shooting, Markarian went to the Lazabal home to see his wife.   According to her, he pushed his way into the house when she opened the door.   She told him to get out and never come back.   He told her he was taking her to Fresno, “dead or alive.”   After about 20 minutes, Markarian left without Maria.

The night of the shooting Maria heard her dog barking in the backyard.   She went to the back door and saw Markarian in the yard.   She locked the backdoor and ran toward her parents' bedroom screaming, “Daddy, Armik is here.”   She had only gone a few steps when she heard a gunshot and felt pain in her right hand.   As she continued running toward her parents' room she heard the backdoor being broken, Markarian running after her, and more shots being fired from behind her.   She yelled, “Daddy, Armik is here and he has a gun.”   Then, she ducked into the bathroom, closed the door and crouched inside the tub.   While in the bathroom she heard her father yelling and more shots being fired.   Then she heard her mother scream, “You killed him.   That son of a bitch killed your father.”   Maria opened the door and saw her father lying in the hall covered in blood.

Ms. Lazabal testified she and her husband were in their bedroom watching television when she heard her daughter scream, “Daddy, Armik is here.”   At the same time she heard gunshots.   She then pulled out a loaded .357 Magnum revolver from under the mattress and handed it to her husband.   She saw him walk to the hallway outside their bedroom, crouch down and fire one shot from the revolver.   When Ms. Lazabal went into the hallway she saw her husband, Orlando, on the floor.   She ran next door to call the police then returned to her house.   As she stood beside her husband's body she felt “a very strong pressure” at the back of her head and heard “a sound that went click.”   She saw Markarian just as he struck her a blow to the mouth that knocked out her teeth.   Markarian hit her several more times then ran out of the house.   Ms. Lazabal pursued.   By that time the police arrived and took Markarian into custody.

Markarian testified he went to see Maria the day before the shooting to discuss his plan that they should move to Fresno.   He denied saying he was going to take her to Fresno “dead or alive.”

On the night of the shooting he decided to go to the Lazabal home, get Maria, and go to Fresno.   Before driving to the Lazabals, Markarian drank four glasses of whiskey and a can of beer.   The liquor made him “dizzy,” his eyes “circled” and he cried.   He drove to the Lazabals' house but turned around and went back home.   At home he drank more whiskey and cried some more.   By then his walk was unsteady from the whiskey.   Finally, he took a rifle for protection against Mr. Lazabal, whom he knew to be armed, and drove back to the Lazabals' house.

Markarian testified when he got to the house he climbed over the fence and into the backyard.   He heard his wife scream and then he heard a shot.   He broke into the house because there was no place to hide in the backyard.   Once inside the house he hid behind a couch.   After more shots were fired at him, he closed his eyes and fired his rifle in the direction the shots were coming from.   He denied he ever saw Ms. Lazabal inside the house.   He admitted slapping her twice outside the house just as the police arrived.

Dr. Blake Skrdla, a court-appointed psychiatrist, testified for the defense.   Dr. Skrdla interviewed Markarian and reviewed his blood alcohol test, his statements to the police and a statement by Maria Markarian.   Based on the information obtained from all these sources, he formed the opinion Markarian suffered from a border-line personality disorder manifested by emotional overinvolvement and feelings of anger, depression and suicidal ideation when relationships deteriorated.   Dr. Skrdla testified, without objection, that at the time of the shooting Markarian did not in fact form the specific intent to kill and did not premeditate or deliberate upon an act of murder.   The doctor also held the opinion Markarian did not act with malice.   Another court-appointed psychiatrist, Dr. Stalberg, testified without objection Markarian was able to form premeditation and an intent to kill.   However, Dr. Stalberg agreed with Dr. Skrdla's diagnosis of borderline personality disorder with paranoid traits.1

DISCUSSION

I. WHERE THE DEFENSE WAS BASED ON THE DEFENDANT'S DIMINISHED MENTAL STATE IT WAS PREJUDICIAL ERROR TO INSTRUCT THE JURY IT “MUST ASSUME” THE DEFENDANT WAS OF SOUND MIND

 It is elementary that every true crime requires an act and a culpable state of mind or mens rea.  (1 Witkin, Cal. Crimes, (1963) § 52, p. 56;  Pen.Code § 20.) The mens rea of murder is characterized as “malice aforethought.”  Penal Code section 188 provides, “Such malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”   The mens rea of attempted murder is express malice—a specific intent to kill.  (People v. Collie (1981) 30 Cal.3d 43, 61, 177 Cal.Rptr. 458, 634 P.2d 534.)

The trial court instructed the jury, “Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death ․”  (Italics added.)

As part of its instructions on intent the trial court gave former CALJIC instruction No. 3.34 (rev. 1979) which read in part,

“The intent with which an act is done is shown as follows:

. . . . .

“By the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act.

“For the purposes of the case on trial, you must assume that the defendant was of sound mind at the time of his alleged conduct which, it is charged, constituted the crime described in the Information.” 2  (Italics added.)

The trial court gave this instruction despite a use note by the CALJIC editors cautioning judges not to instruct jurors they “must assume” the defendant was of sound mind in a case involving specific intent if there is evidence of diminished capacity.  (1 CALJIC (4th ed.) at p. 111.) The reason for this cautionary note was that instructing the jury to assume the defendant was of sound mind and then, later, instructing the jury to consider his mental state and intoxication in determining if he had the specific intent to commit the crime “could have the potential of leaving the jury in a state of confusion.”  (People v. Wingo (1973) 34 Cal.App.3d 974, 979, 110 Cal.Rptr. 448.)

As the People point out, Wingo held that even though the trial judge had improperly instructed the jury it “must assume” the defendant was of “sound mind,” taken as a whole the trial judge's instructions adequately instructed the jury on diminished capacity and did not constitute prejudicial error.  (34 Cal.App.3d at p. 979, 110 Cal.Rptr. 448;  accord People v. Lewis, (1977) 74 Cal.App.3d 633, 643, 141 Cal.Rptr. 614.) The instructions the court believed resolved the confusion in the Wingo case were the standard instructions telling the jurors they were not to single out any certain sentence or any individual point or instruction while ignoring others and that they were to consider all the instructions as a whole and to regard each in the light of all the others.   The trial court in Wingo also instructed the jurors, “If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider the state of intoxication in determining if defendant had such specific intent.  [¶] If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.” 3  (34 Cal.App.3d at pp. 978–979, 110 Cal.Rptr. 448.)

In affirming the conviction, the court reasoned the instructions disclosed “a meaning to the effect that the jurors were to assume that defendant was of sound mind at the time of his alleged conduct unless they concluded from the evidence that he was then intoxicated, and that if they found he was intoxicated they were to determine whether such intoxication prevented defendant from entertaining the specific intent to commit the crime charged.”   (Ibid.)  Even assuming this was the message the trial judge in our case intended to convey, the instructions would not be acceptable because they could also be interpreted to require Markarian to prove that owing to his diminished mental state at the time he did not form the requisite intent to kill.

 Where the commission of a crime requires a specific mental state that state must be proved like any other fact.  (People v. Wells (1949) 33 Cal.2d 330, 350, 202 P.2d 53.)   Therefore, “it is fundamental that ․ evidence ․ which tends to show that a defendant, at the time he committed the overt act, either possessed or did not possess the specific essential mental state (as of malice aforethought, deliberate intent, etc.) is admissible.”  (Id., at p. 347, 202 P.2d 53.)   This fundamental rule is codified in Penal Code section 28, subdivision (a) which provides in relevant part, “Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated or harbored malice aforethought, when a specific intent crime is charged.”  Penal Code, section 22, subdivision (b) contains a similar provision regarding evidence of voluntary intoxication.

In the case before us, Markarian was convicted of crimes requiring a particular mental state—malice aforethought.   In addition, first degree murder, of which Markarian was convicted, is willful, deliberate and premeditated.  (Pen.Code, §§ 187, 189.) “In a criminal trial, the burden is upon the prosecution to prove beyond any reasonable doubt every essential element of the crime of which a defendant is to be convicted.”  (People v. Borchers (1958) 50 Cal.2d 321, 328, 325 P.2d 97.)   Thus, the burden was on the People to prove beyond a reasonable doubt that Markarian possessed the required state of mind when he committed the overt acts.

 The defense of diminished mental state is not an affirmative defense, such as insanity, on which the defendant bears the burden of proof.  (Evid.Code, § 522;  People v. Drew (1978) 22 Cal.3d 333, 349, 149 Cal.Rptr. 275, 583 P.2d 1318.) 4  It is a defense which seeks to create a reasonable doubt the defendant possessed the requisite mental state to commit the crime charged.  (People v. Jackson (1984) 152 Cal.App.3d 961, 968, 199 Cal.Rptr. 848;  People v. Whitler (1985) 171 Cal.App.3d 337, 343, 214 Cal.Rptr. 610 (Sims, J., conc.).)  “When diminished capacity is the issue, the defendant need only create a reasonable doubt of his capacity to form the requisite intent to commit the crime or degree of crime of which he is charged.”  (People v. Yanikian (1974) 39 Cal.App.3d 366, 375– 376, 114 Cal.Rptr. 188, disapprov'd on other grounds, People v. Wetmore (1978) 22 Cal.3d 318, 327, 149 Cal.Rptr. 265, 583 P.2d 1308.)

 The Due Process Clause of the Fourteenth Amendment prevents a state from convicting a defendant except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.  (In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368.)  “This ‘bedrock, axiomatic and elementary’ [constitutional] principle ․ prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt.  [Citations omitted.]”  (Francis v. Franklin (1985) 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d 344.)   This prohibition applies to all mandatory presumptions whether rebuttable or irrebuttable.  (Sandstrom v. Montana (1979) 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39.)   A rebuttable presumption which relieves the state of the burden of proving intent beyond a reasonable doubt falls within the prohibition.   (Id., at pp. 522–524, 99 S.Ct. at pp. 2458–2459.)

Requiring the defendant to prove his intoxication prevented him from forming the necessary intent is unconstitutional because it relieves the State's burden of proving intent beyond a reasonable doubt.   In Sandstrom v. Montana, supra, the defendant, like Markarian in the case before us, argued evidence of a personality disorder aggravated by alcoholic consumption demonstrated he did not act with the mental state required to commit the crimes charged.  (442 U.S. at p. 512, 99 S.Ct. at p. 2453.)   Over defendant's objection, the trial court instructed the jury “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.”  (442 U.S. at p. 513, 99 S.Ct. at p. 2453.)   The United States Supreme Court held this instruction unconstitutionally relieved the state from the burden of proving intent—an element of the crime.  (442 U.S. at p. 521, 99 S.Ct. at p. 2458.)

Our Supreme Court has recognized, albeit in dictum, that requiring the defendant to prove diminished mental state would constitute an unconstitutional shifting of the burden of proof of intent.   In People v. Wetmore, supra, 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308 the Court disapproved dictum in People v. Wells, supra, 33 Cal.2d 330, 202 P.2d 53 expressing the view evidence of diminished capacity was not admissible at the guilt phase of a trial if that evidence might also be probative of insanity (the “Wells dictum”).  (22 Cal.3d at p. 327, 149 Cal.Rptr. 265, 583 P.2d 1308.)   In a footnote in Wetmore the Court made the following observation:  “Recent court decisions, moreover, suggest that the Wells dictum, because it excludes evidence probative of defendant's innocence from the guilt phase, may be unconstitutional.   In Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881], the United States Supreme Court implied broadly that the state must prove beyond a reasonable doubt every fact critical to the guilt of the offender or the severity of the offense.   Although the court subsequently limited the broad language of Mullaney in Patterson v. New York (1977) 432 U.S. 197 [53 L.Ed.2d 281, 97 S.Ct. 2319], Patterson explained that the state has at least the constitutional duty to prove beyond a reasonable doubt all traditional elements of the crime․  [¶] The Wells dictum limits the defendant's ability to rebut the element of specific intent by barring evidence at the guilt phase that, owing to mental illness, he lacks the requisite intent if such evidence would also tend to prove insanity.   Although defendant can present that evidence later to prove insanity, defendant bears the burden of proof on the issue of sanity.  (Evid.Code, § 522.)   To deny the defendant the opportunity to present that evidence at a time when the state still bears the burden of proof beyond a reasonable doubt may deny him due process of law.”  (22 Cal.3d at p. 326, fn. 6, 149 Cal.Rptr. 265, 583 P.2d 1308;  emphasis added.)

The Oregon Supreme Court has applied In re Winship and Mullaney v. Wilbur in holding unconstitutional a state statute which placed the burden of proving diminished mental state on the defendant.  (State v. Stockett ) (1977) 278 Or. 637, 565 P.2d 739.)  [In Mullaney the United States Supreme Court had struck down a statute requiring the defendant to affirmatively prove heat of passion in order to reduce the crime of murder to manslaughter.  (421 U.S. at pp. 703–704, 95 S.Ct. at p. 1892.) ]   The Oregon Supreme Court reasoned:  “As in Mullaney v. Wilbur, supra, the issue in this case relates to defendant's mens rea:  whether he entertained the requisite mental intent to be guilty of the offense charged.   Also as in Mullaney, the state ․ has attempted to shift the burden of proof on this issue to the defendant․   Therefore, we hold [the Oregon statute] is unconstitutional insofar as it places the burden of proving partial responsibility or diminished intent on the defendant.”  (565 P.2d at p. 743.)

 Based on the foregoing authorities, we conclude a jury instruction that has the effect of requiring the defendant to prove his intoxication prevented him from forming the necessary intent is unconstitutional because it relieves the State of its burden of persuasion beyond a reasonable doubt.

We turn now to the question how a reasonable juror would interpret the conflicting instructions given in the case before us.  (See Sandstrom v. Montana, supra, 442 U.S. at p. 514, 99 S.Ct. at p. 2454.)   Assuming the jury followed the court's direction not to ignore any instructions but to consider them as a whole and regard each in the light of all the others, it still is quite possible the jurors interpreted the instructions to require Markarian to prove that he acted under a diminished mental state.   Even Wingo suggests such a requirement can reasonably be inferred from the instructions.   As interpreted in Wingo, the jurors were to “assume that defendant was of sound mind ․ unless they concluded from the evidence” that he was intoxicated (or suffering from a mental disturbance) in which case they were “to determine ” whether such intoxication or mental disturbance “prevented defendant from entertaining the specific intent to commit the crime charged.”  (34 Cal.App.3d at p. 979, 110 Cal.Rptr. 448;  italics added.)

The jury is likely to view with considerable skepticism the defendant's claim he did not function as an ordinary person would under the circumstances. (See Bonnie & Slobogin, The Role of Mental Health Professionals in the Criminal Process (etc.) (1980) 66 Va.L.Rev. 427, 477.)   If the jurors had been properly instructed they would have understood Markarian need only create a reasonable doubt that he was functioning as an ordinary person would under the circumstances.   Instead, the jury was instructed it “must assume” Markarian was of sound mind.   This instruction only reinforced the jury's natural skepticism.   Therefore, it is quite possible the instruction had the practical effect of placing the burden on Markarian to prove he did not perceive, believe, expect or understand what an ordinary person would have perceived, believed, expected or understood under the same circumstances.

 It is possible, though unlikely, the jurors could have interpreted the “must assume” instruction together with the instructions about considering evidence of Markarian's intoxication and mental disturbance as creating a presumption which merely placed the burden on Markarian to produce evidence creating a reasonable doubt about the soundness of his mind.   However, the fact that the jurors were correctly instructed on the presumption of innocence, proof beyond a reasonable doubt, intoxication and mental state has been held not to “cure” a persuasion-shifting instruction.  (Sandstrom v. Montana, supra, 442 U.S. at p. 518, fn. 7, 99 S.Ct. at p. 2456, fn. 7;  Engle v. Koehler (6th Cir. 1983) 707 F.2d 241, 244–245.)   The jury could still understand the burden was on the defendant to prove he had a diminished mental state which prevented him from forming the necessary intent.   The fact that the jurors could have given the instructions an unconstitutional interpretation renders the instructions invalid.  (Sandstrom v. Montana, supra, 442 U.S. at p. 519, 99 S.Ct. at p. 2456;  People v. Bounds (1985) 171 Cal.App.3d 802, 807, 217 Cal.Rptr. 718.)

 The instructions in our case are similar to the ones in People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302.   There the trial court instructed the jury, “[Y]ou shall presume that defendant [ ] bought or received such property knowing it to have been stolen unless from all the evidence you have reasonable doubt that defendant [ ] knew the property was stolen.”  (Id., at p. 496, 189 Cal.Rptr. 501, 658 P.2d 1302.)   In the case before us the trial court instructed the jury, “[Y]ou must assume that the defendant was of sound mind at the time of his alleged conduct․   If from all the evidence you have a reasonable doubt whether defendant formed such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.”   Our Supreme Court described the instruction in Roder as “a classic example” of a mandatory presumption because it “ ‘tells the trier [of fact] that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.’ ”  (Id., at p. 501, 189 Cal.Rptr. 501, 658 P.2d 1302 quoting from Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (emphasis in original).   The instructions in the case before us suffer from a similar defect.   They tell the jury it “must assume” the defendant was of sound mind unless he proves to the contrary.

 Instructions that unconstitutionally shift the burden of proof to the defendant are judged under the prejudicial error standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 3108–3109, 92 L.Ed.2d 460, 473–474.)   The error here is not harmless beyond a reasonable doubt.   The presumption in question directly affected the only element of the offenses that was in doubt—the defendant's state of mind.  (People v. Roder, supra, 33 Cal.3d at p. 505, 189 Cal.Rptr. 501, 658 P.2d 1302.)   Construing the evidence on mental state most favorably to Markarian we find a reasonable juror, if properly instructed, could entertain a reasonable doubt about whether Markarian intended to kill Orlando and Maria Lazabal.   Therefore, the error was prejudicial and the convictions on counts I and III must be reversed.

II. GUIDANCE FOR THE TRIAL COURT ON REMAND

Because we reverse the murder and attempted murder convictions on other grounds we do not reach defendant's claims of error as to Miranda and the specific instructions on attempted murder.   However, we add the following observations for the guidance of the trial court on remand.

The Miranda issue turns on what was said by the police and Markarian about Markarian's right to an attorney during questioning in the course of the second interview on September 11, 1984, at approximately 2 p.m.   We were provided no transcript of this conversation, only the tape recording.   We gather from the record this tape is the source of the controversy over what was said in the interview.

In order to facilitate appellate review, if Markarian's statements during the second interview are used in a new trial, counsel for the parties and the court should make a serious effort to agree on what was said about the right to counsel and include those statements in the reporter's transcript.   If no agreement can be reached the court should find as a fact and state on the record what was said by the police and Markarian.

The People concede the court erred in its instructions on the intent element of attempted murder.   On re-trial the court must exercise care to instruct the jury attempted murder is a specific intent offense requiring express malice.  (See People v. Young, (1987) 189 Cal.App.3d 891, 909–910, 234 Cal.Rptr. 819.)

DISPOSITION

The judgment is reversed as to count I (murder) and count III (attempted murder).   The judgment is affirmed in all other respects.

FOOTNOTES

1.   Neither psychiatrist's opinion should have been admitted as evidence.  (Pen.Code, § 29.)   However, for purposes of determining the prejudicial effect to the jury instructions, it is significant Dr. Stalberg testified the defendant was “able” to form the requisite mental state while Dr. Skrdla testified the defendant did not in fact form the requisite mental state.

2.   This instruction has been withdrawn.  (See CALJIC (4th ed. July 1986 Pocket Part) at p. 41.)

3.   In the case before us the trial court gave the following instructions:“You are not to single out any single sentence or any individual point or instruction and ignore the others.   You are to consider all the instructions as a whole and are to regard each in the light of all the others.”“The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act, but you may not find the defendant guilty of the offense charged in Counts I, II, and III unless the proved circumstances not only are consistent with the theory that he had the required specific intent, but cannot be reconciled with any other rational conclusion.”“Also, if the evidence as to such specific intent is susceptible of two reasonable interpretations, one of which points to the existence of a specific intent and the other to the absence of the specific intent, it is your duty to adopt that interpretation which points to the absence of the specific intent.”“A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.   This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt.”“In determining whether reasonable doubt exists, as that term has been defined for you, you may consider the following:“1. Evidence that Mr. Markarian was motivated by love for his wife and daughter.“2. Evidence that the decedent fired at least two shots at Mr. Markarian.“3. Evidence of Dr. Skrdla that Mr. Markarian did not harbor malice.“4. Evidence of Dr. Skrdla that Mr. Markarian did not have the specific intent to kill.”“Evidence has been received regarding the mental condition and intoxication of the defendant at the time of the offense charged in all counts.   You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crimes charged in all counts.”“In the crimes in the Information of which the defendant is accused, a necessary element is the existence in the mind of the defendant of the specific intent to kill.”“If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such specific intent.”“If from all the evidence you have a reasonable doubt whether defendant formed such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.”

4.   Effective January 1, 1982, the Legislature did away with diminished “capacity” as a defense while still permitting evidence of voluntary intoxication or mental disorder on the issue of whether the defendant “actually formed” the requisite mental state.  (§§ 22, 28, supra.)   For purposes of our analysis of the court's instructions this is a distinction without a difference and cases involving evidence of mental capacity continue to be relevant.  (See In re Thomas C. (1986) 183 Cal.App.3d 786, 786, 798, fn. 4, 228 Cal.Rptr. 430.)

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.

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