P v. Herrera (2nd Dist., Div.6) Erroneous Prohibition of Defendant's Mental Health Expert Is Prejudicial.

Mr. Herrera stabbed his friend 21 times, killing him.  Herrera admitted killing his friend, but claimed he did so in a rage of self defense after his friend reached for a knife after Herrera had rejected his friend's sexual advances.  

Herrera presented evidence that he had been molested by his dance-team coach (who had been convicted of same as to other boys) at least 200 times beginning when he was eight and ending when he was eleven.  He had also been plied with alcohol then raped at age 15 by a 25 year old.  Herrera had tried to top himself thrice in the past before getting medical help for post traumatic stress disorder (PTSD).  

At trial, Herrera had a mental health expert, Dr. Kaser, testify on his behalf.  Prior to Dr. Kaser testifying, the trial court ruled that Dr. Kaser could not "testify as to anything related to mental state at the time of the offense".  Subsequently, the doctor testified that Herrera suffered from PTSD and major depressive disorder.  She testified that PTSD can result in a peritraumatic dissociative state (PDS).

When Herrera asked Dr. Kaser whether she believed Herrera was in a PDS on the day he killed his friend, the trial court sustained the state's objection.  Likewise when Herrera asked the doctor whether Herrera suffered from PTSD  and whether Herrera was psychiatric impaired the day of the killing.  The jury convicted Herrera of first degree murder.  He appealed.

A panel from the Second District reverses in a 2-1 ruling.

The issue is whether the trial court committed a prejudicial error when it ruled Dr. Kaser could not testify as to anything related to Herrera's mental state on the day he killed his friend.  California Evidence Code sections 28 and 29 prohibit mental health experts from testifying as to specific matters.  Whether those prohibitions apply to the testimony excluded here forms the controversy.  

Section 28 prohibits "[e]vidence of mental disease, mental defect, or mental disorder . . . to show or negate the capacity to form any mental state . . . [such] is admissible solely on the issue of whether or not the accused actually formed a required [mental state]". 

Section 29 prohibits "any expert testifying about a defendant's mental illness, mental disorder, or mental defect" from discussing "whether the defendant had or did not have the required mental states ... for the crimes charged." 

The majority reads the prohibitions narrowly, agreeing with P v. Cortez (2011) 292 Cal App 4th 873.  While an expert cannot discuss whether a defendant had or did not have a specific mental state, there is nothing improper about testimony as to a defendant's mental illness and what the symptoms of that mental illness may be.  Actually a defendant has a right to introduce such testimony as part of a defense that he did not have the required intent for the charged crime(s).  Per the majority, an opinion as to whether Herrera was suffering from PTSD or in a PDS was not tantamount to an opinion as to whether Herrera premeditated and deliberated the killing.  As long as the testimony steers clear of opining as to Herrera's mental state, evidence as to his mental illness and symptoms common to those illnesses is not prohibited by Section 29.

The dissent doesn't like P v. Cortez and doesn't follow it.  It equates testimony as to Herrera's mental health on the day in question with an opinion that Herrera did not possess the required mental state.  This seems a stretch absent testimony that persons suffering from PTSD lack the capacity to form the required mental state (violating Section 28) or that Herrera, because of his PTSD, did not form the required mental state (violating Section 29).  But I leave it to you to judge for yourself the validity of the dissent's characterization of the proferred evidence as an identity to the prohibited opinions.