# People v. Jones > California Supreme Court · March 10, 1997 · 15 Cal. 4th 119 URL: https://www.frixlaw.com/law-library/cases/5452196 ## Case - **Full name:** THE PEOPLE, and v. JEFFREY GERARD JONES, and - **Court:** California Supreme Court - **Decided:** March 10, 1997 - **Citations:** 15 Cal. 4th 119; 97 Daily Journal DAR 3301; 61 Cal. Rptr. 2d 386; 931 P.2d 960; 97 Cal. Daily Op. Serv. 1760; 1997 Cal. LEXIS 632 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennard - **Judges:** George, Kennard, Mosk, Werdegar - **Cited by:** 99 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5452196 ## How later opinions describe it (automated extraction) - holding that defendant may not raise involuntary medication issue for first time on appeal where defendant did not move to suspend medication or otherwise assert in trial court that medication was involuntary - holding that the state does not have to demonstrate that a criminal defendant has furnished informed consent for any anti-psychotic medication provided by the state - holding that Riggins did not apply because defendant did not move to terminate his medication and his refusals on prior occasions were honored ## Opinion text KENNARD, J., Concurring and Dissenting. I concur in the reasoning of the plurality opinion except for its analysis of two issues. First, I conclude, contrary to the plurality, that the prosecutor violated defendant’s constitutional right to remain silent by presenting evidence of defendant’s invocation of that right. As Justice Werdegar notes in her concurring and dissenting opinion, the prosecutor’s purpose in eliciting the *197 fact that defendant had invoked his right to remain silent on the day of his arrest was not simply to negate the use of defendant’s silence as evidence of insanity, but to use it affirmatively as evidence of defendant’s sanity by showing that his silences were calculated and not the product of mental illness. The prosecutor said so when arguing for the admission of defendant’s invocation of his rights: “[T]here is evidence from day one where he was lucid, where he tells these people, ‘My lawyer told me not to talk to you. I’m not going to talk to you.’ ” In questioning Dr. Mertz, the prosecutor preceded the question concerning defendant’s invocation of his rights with more general questions concerning the possibility that defendant’s silences were part of a calculated attempt to malinger, thus presenting defendant’s invocation of his rights as another incident of calculated silence showing defendant’s lucidity. He then went on to question Dr. Mertz about other specific acts of potential malingering (not involving the invocation of defendant’s rights). Likewise, his questioning of Dr. Thomson regarding defendant’s invocation of his right to remain silent occurred in the context of an inquiry into defendant’s malingering. This affirmative use of defendant’s invocation of his right to remain silent as evidence of his “lucidity” is prohibited by Wainwright v. Greenfield (1986) 474 U.S. 284 [ 106 S.Ct. 634 , 88 L.Ed.2d 623 ], as Justice Werdegar explains. Moreover, even if the prosecutor’s use of the evidence here is characterized not as affirmative proof of lucidity but only as a negation of the inference that his silence was evidence of insanity, the plurality’s classification of the evidence as rebuttal seems questionable. There was only one occasion when defendant invoked his right to remain silent, the day of his arrest (Jan. 23, 1985). It does not appear that any of defendant’s witnesses relied particularly on his silence on that day for their conclusion that he was mentally ill. Rather, they relied on later periods of much more acutely disturbed behavior; for example, episodes in March and July 1985 when defendant was not only uncommunicative but hallucinatory and engaging in bizarre acts. I conclude, however, that the error was harmless for the reasons stated by Justice Werdegar. The second issue on which I disagree with the plurality opinion is its conclusion that the trial court did not err in considering defendant’s mental disease or defect as a factor in aggravation under factor (h) of Penal Code section 190.3. It is settled that factor (h), which asks whether “the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect” (ibid.), can only be a factor in mitigation and not an aggravating factor. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184 [ 259 Cal.Rptr. 701 , 774 P.2d 730 ].) Here, the trial court stated to the contrary, in *198 the specific context of addressing factor (h), that “the court finds this is not a factor in mitigation but rather a factor in aggravation.” Nonetheless, unlike Justice Werdegar, I conclude that this error was harmless as well. The clear import of the trial court’s remarks was that defendant’s appreciation of the wrongfulness of his conduct was not clouded by his mental illness, and that it was this appreciation of wrongfulness by defendant that the trial court considered an aggravating factor. The trial court could properly consider this fact to be aggravating, albeit under factor (a) of Penal Code section 190.3 as one of the circumstances of the crime, rather than under factor (h). Its misclassification was not prejudicial. (People v. Howard (1992) 1 Cal.4th 1132, 1194-1195 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ].) In all other respects, I concur in the plurality opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5452196. Public record. Not legal advice.