When a defendant is convicted of possession of a deadly weapon with intent to commit an assault on another defendant, what is the diminished capacity defense?

California, United States of America


The following excerpt is from People v. Stevenson, 145 Cal.Rptr. 301, 79 Cal.App.3d 976 (Cal. App. 1978):

18] Defendant was convicted of the lesser included offense in count II of possession of a deadly weapon with intent to commit an assault on [79 Cal.App.3d 988] another, a misdemeanor in violation of Penal Code section 467. The trial court gave CALJIC 4.20 (voluntary intoxication not a defense) as to the offense in count II of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a). This charged offense is a general intent crime; diminished capacity has no effect on the general intent and CALJIC 4.20 does apply to it. (People v. Hood (1969) 1 Cal.2d 444, 82 Cal.Rptr. 618, 462 P.2d 370.) CALJIC 4.20 should have been limited to the main charge and to the lesser included offenses which were general intent crimes. CALJIC 3.35 on diminished capacity should have been given as to the lesser offense of violating Penal Code section 467. Since defendant was thus deprived of a defense to the lesser included offense he was convicted of, we reverse that conviction also.

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