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Name: People v. Larsen
Case #: A128973
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 04/30/2012

It was instructional error to deny the defense’s request for CALCRIM No. 3428 because substantial evidence supported the defense’s theory that appellant’s Asperger’s Syndrome affected the formation of the relevant intent. While appellant was in custody on charges of unlawful sexual intercourse and oral copulation with a minor, he contacted other inmates to help him kill the victim. At his trial for conspiracy to commit murder and solicitation to commit murder, appellant testified that he had learning disabilities and engaged in role-playing games with another inmate who orchestrated the role playing related to their cases and threatened appellant if he did not play along. A defense expert testified about Asperger’s Syndrome, appellant’s diagnosis, and features of defendant’s disorder that were pertinent to negate the intent element of the solicitation and conspiracy offenses. The trial court erred by failing to give the CALCRIM No. 3428 mental disorder instruction requested by the defense. The evidence that appellant suffered from Asperger’s Syndrome, and its manifested symptoms, directly and materially reflected on his claim that he did not actually intend to solicit the victim’s murder, but instead was engaged in some form of game playing brought on by his mental disorder. The defense was not required to present additional evidence that appellant’s Asperger’s Syndrome impaired his ability to form the requisite criminal intent. Nevertheless, in view of the instructions as a whole, the jury’s findings, and the arguments of counsel, the error in failing to provide the pinpoint instruction was harmless and the judgment was affirmed.