Supreme Court of California Justia
Docket No. S134901
People v. Super. Ct. (Vidal)

Filed 4/12/07


) Ct.App.
) Tulare
Super. Ct. No. 69782-C
Real Party in Interest.

The Eighth Amendment to the United States Constitution, prohibiting cruel
and unusual punishments, bars the execution of mentally retarded persons for
criminal offenses. (Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins).)
California law, implementing the constitutional command of Atkins, provides a
substantive standard and a set of procedures for determining, at the time of trial,
whether a person against whom the prosecution seeks the death penalty is mentally
retarded. (Pen. Code, § 1376.)1 This case presents two issues relating to the
prejudgment determination of mental retardation: (1) May the People obtain
pretrial appellate review of a trial court’s determination that the defendant is

All further unspecified statutory references are to the Penal Code.

mentally retarded? (2) If such review is available, did the trial court here employ an
incorrect legal standard in finding that defendant (real party in interest Jorge Junior
Vidal) is mentally retarded?
On the question of reviewability, we conclude a pretrial finding of mental
retardation is appealable under section 1238, subdivision (a)(8), as an order
“terminating . . . any portion of an action . . . before the defendant has been placed
in jeopardy.” On the substantive question, we conclude the trial court did not use
an incorrect legal standard in making the finding of retardation. That Vidal’s Full
Scale Intelligence Quotient on Wechsler IQ tests (Full Scale IQ) has generally been
above the range considered to show mental retardation does not, as a matter of law,
dictate a finding he is not mentally retarded. The legal definition of mental
retardation for purposes of Atkins’s constitutional rule does not incorporate a fixed
requirement of a particular test score. (§ 1376, subd. (a); see People v. Hawthorne
(2005) 35 Cal.4th 40, 48-49 (Hawthorne).) The trial court, therefore, did not
commit legal error in giving less weight to Vidal’s Full Scale IQ scores and greater
weight to other evidence of significantly impaired intellectual functioning,
including Verbal Intelligence Quotient scores on Wechsler IQ tests (Verbal IQ) in
the mental retardation range.
Vidal is charged, along with other defendants, with the January 2001 killing
of Eric Jones in Tulare County. The information alleges murder with special
circumstances (§§ 187, 190.2), torture (§ 206), forcible sexual penetration (§ 289,
subd. (a)(1)) and other crimes. Vidal pleaded not guilty to all counts and denied the
special circumstance allegations. After the prosecutor announced his intent to seek
the death penalty, Vidal moved under Atkins, supra, 536 U.S. 304, and section 1376
to preclude imposition of that sentence because of his mental retardation. Before a

jury had been sworn or selected, the trial court held an evidentiary hearing on the
question of retardation.2
At the evidentiary hearing, Vidal called two psychologists, Eugene Couture
and Keith Widaman, who opined that he was mentally retarded. The People called
one psychologist, Ronald McKinzey, who opined that Vidal was not retarded. A
few lay witnesses testified to aspects of Vidal’s observed behavior in his childhood
home and in jail. The expert testimony encompassed the subject of “deficits in
adaptive behavior,” as well as “significantly subaverage general intellectual
functioning” (§ 1376, subd. (a)),3 but as the substantive issue under review here
relates to the latter topic, we summarize only the evidence relating to intelligence.
Vidal, who was born in 1969, had received several IQ tests through the
public school system. Couture tested Vidal’s intelligence in 2003 and reviewed his
results on earlier tests. The results of all the IQ tests are summarized in the
following table, adapted from an exhibit prepared by Couture and introduced during
his testimony (the range assignments are Couture’s):

Section 1376 provides, at the defendant’s choice, for either a nonjury hearing
on the issue before trial or a jury hearing after the guilt/special circumstance phase
of trial. (Id., subd. (b)(2).)
Section 1376, subdivision (a) defines mental retardation as “the condition of
significantly subaverage general intellectual functioning existing concurrently with
deficits in adaptive behavior and manifested before the age of 18.”

Verbal IQ
Mental Retardation
Performance IQ
Scale for
Full Scale IQ
Low Average/Borderline
Mental Retardation


Verbal IQ
Mental Retardation
Performance IQ
High Average

Verbal IQ
Mental Retardation
Performance IQ
High Average
Full Scale IQ
Scale, Revised

Verbal IQ
Mental Retardation
Performance IQ
Full Scale IQ
Borderline Mental
Verbal IQ
Mental Retardation
Performance IQ
Scale of
Full Scale IQ
Borderline Mental
Couture also administered to Vidal the Peabody Picture Vocabulary Test,
which assesses the ability to understand spoken language. Vidal’s scores (on both
English and Spanish versions of the test) were in the lowest percentile of the
population, as they had been on previous applications of the test in 1980 and 1989.
Couture and Widaman, the two defense psychologists, both testified that the
large differentials between Vidal’s Verbal and Performance IQ scores were unusual
and that in such a case the Full Scale IQ score (produced by a mathematical process
from the two subtests) was not a fully reliable measure of general intelligence.

According to a passage Couture quoted from the current edition of the American
Psychiatric Association’s Diagnostic and Statistical Manual (4th ed. 2000) (the
DSM-IV-TR), “[w]hen there is a marked discrepancy across verbal and
performance scores, averaging across the two scores to obtain a full scale I.Q. score
can be misleading.”
Couture testified Vidal’s low scores on the Verbal IQ tests indicate
impairment in “verbal problem solving, comprehension and judgment, etc.” His
average Performance IQ scores indicate that his “skills of putting things together in
a functional way in this case appear to be unimpaired. In other words, putting
puzzles together and doing so quickly appears to be a functional skill.
Understanding why one would do that or necessarily following verbal commands to
do that, however, would not be available in this case.” In this circumstance, the
assessment of intelligence requires an exercise of clinical judgment, both as to
“what you call the IQ and . . . what you do about it.”
Couture believed that Verbal IQ tests measure “the skills that are . . . primary
in getting along in life.” Combined with Vidal’s low scores on the Peabody Picture
Vocabulary Test and his poor progress in school (Vidal’s academic testing showed
that except for some improvement in arithmetic, he never improved beyond the
second or third grade level), Vidal’s severe difficulty in processing verbal
information demonstrated subaverage intellectual functioning originating in
Widaman, similarly, testified that the “crystallized” intelligence measured by
Verbal IQ tests (“knowledge and procedures for working in [a] domain”) is a
“general area” of intelligence of particular importance to adjustment “in most areas
of adult functioning.” Widaman further opined that the Verbal IQ score is
particularly important because “verbal facility is an important aspect of social
interaction,” without which a mentally retarded person may “tend not to be able to

interpret the cues in these social situations well” and may be relatively gullible and
“tend to go along with the group.” Together with his historical and current
impaired performance on the Peabody test and the borderline Full Scale IQ scores
of 77 and 78 in 2003,4 Vidal’s low Verbal IQ scores justified a conclusion his
intelligence in a “major area of functioning” is in the range of mental retardation.
McKinzey, the prosecution psychologist, disagreed. In his view, the
Wechsler test’s “best estimate of general intelligence, that is to say the overall
intelligence, is [Full Scale IQ].” General intelligence “refers to a person’s overall
abilities, not some splinter skill . . . or one isolated weakness in intellectual
abilities.” McKinzey believed that Couture, by relying heavily on the Verbal IQ

An IQ score of 70, which is two standard deviations below the mean score of
100, is generally understood to lie at or near the border between low average
intelligence and mild mental retardation. (See Atkins, supra, 536 U.S. at p. 309,
fn. 5; Hawthorne, supra, 35 Cal.4th at p. 48.) According to the defense experts,
however, two factors―measurement error and the Flynn effect―could together or
separately result in a score as high as 78 from a mildly retarded person.

Every intelligence test has a standard error of measurement (SEM), a range
lying around the tested score within which the true IQ is likely to lie. The 95
percent confidence interval around a measured IQ score is two SEM’s. Widaman
testified the SEM for the Wechsler Full Scale IQ was approximately three points,
and a text produced by the American Association on Mental Retardation, introduced
at the hearing, refers generally to SEM’s of “three to four points” on IQ tests. (Am.
Assn. on Mental Retardation, Mental Retardation: Definition, Classification, and
Systems of Supports (10th ed. 2002) p. 57.) (The American Association on Mental
Retardation recently changed its name to the American Association on Intellectual
and Developmental Disabilities. We use the organization’s name at the time of

The Flynn effect is the observed tendency of mean scores on a given IQ test
to increase slowly over time. According to Widaman, mean scores tend to rise by
about 3.3 points per decade, so that a test for which the original norm was 100
points will yield a mean score of 103.3 if given 10 years later. The Wechsler Adult
Intelligence Scale, Revised, with which Vidal was tested in 2003, was first
published in 1982.

scores, “invites us to look at one weakness without understanding that there is a
great and ameliorative strength.” According to McKinzey, the DSM-IV-TR’s
statement that the Full Scale IQ could be misleading when there is a large
discrepancy between Verbal and Performance IQ’s, cited by Couture, “has never
had the accuracy studied. It’s been suggested. I certainly have seen plenty of folks
suggest that. But we really don’t know.”
The trial court found Vidal met the statutory standard of “significantly
subaverage general intellectual functioning.” (§ 1376, subd. (a).) His “very low
scores in terms of verbal I.Q.,” even if due to a deficit in auditory processing rather
than to low intellectual functioning “across the board,” demonstrated a significant
deficit in his “ability to process information and handle it adequately and to think
logically.” Moreover, the court found, his low test scores were not due to his
speaking Spanish in the family home as a child, lack of diligence or early antisocial
behavior, but to “something far deeper,” “his severe lack of verbal ability.” The
court further observed that Verbal IQ was particularly relevant in applying Atkins
because “[w]e are talking about issues of premeditation, deliberation, appreciation
of concepts of wrongful conduct, ability to think and weigh reasons for and not for
doing things and logic, foresight, and all of those are related to verbal I.Q.”
Accepting the existence of the Flynn effect (see fn. 4, ante), the court also noted
that “one or two point” gaps between IQ scores and the theoretical cutoff were not
persuasive. Finding Vidal also met the remainder of the statutory definition of
mental retardation, the court ordered the prosecution precluded, under section 1376,
from seeking the death penalty.
The People petitioned the Court of Appeal for a writ of mandate or
prohibition and for a stay of the trial proceedings, contending the superior court
“exceeded its jurisdiction by using the verbal IQ score coupled with the defendant’s
adaptive behavior scores in lieu of the full scale IQ score as the basis for its decision

that defendant is mentally retarded.” In response, Vidal argued, inter alia, that the
trial court’s finding was not reviewable before trial because no appeal was provided
for by section 1238. After ordering cause shown and receiving briefing, the Court
of Appeal issued the requested writ.
The Court of Appeal rejected Vidal’s argument against review, holding the
superior court’s finding was appealable under section 1238, subdivision (a)(8). On
the substantive issue, the Court of Appeal, in a divided decision, agreed with the
People’s claim. According to the majority, “general intellectual functioning is
primarily determined by the defendant’s FSIQ [Full Scale IQ] score. It is this score
which best represents the ‘functional’ or ‘operational’ IQ―the defendant’s overall
general intellectual functioning.” The majority held the superior court “afforded
insufficient significance to Vidal’s pre-age-18 FSIQ score, inappropriately rejecting
that score in favor of the VIQ [Verbal IQ] score as the measure of general
intellectual functioning.”
The dissenting justice observed that “[i]n this case . . . two experts testified
that FSIQ was not the better measure, and they supported their opinions with facts
and logic.” In the dissenter’s view, this testimony, together with Vidal’s Verbal IQ
scores in the mental retardation range and his poor learning performance as a child,
constituted substantial evidence to support the superior court’s finding of
significantly substandard intelligence.
The majority responded that it was not purporting “to second-guess the trial
court’s factual determinations” but was instead holding that the trial court had made
its finding using “the wrong legal standard.” The Court of Appeal therefore
mandated that the superior court vacate its order precluding the death penalty and
reconsider the matter in light of the Court of Appeal’s opinion. The court also
continued in place a previously issued stay of trial proceedings.
We granted Vidal’s petition for review and request for stay of trial.

I. Appealability
As a general rule, the People may not seek an extraordinary writ in
circumstances where the Legislature has not provided for an appeal. (People v.
Williams (2005) 35 Cal.4th 817, 833-834; People v. Superior Court (Howard)
(1968) 69 Cal.2d 491, 499.) Although the People sought relief in the Court of
Appeal by writ rather than appeal, therefore, the issue as framed in that court and in
Vidal’s petition to this court is one of appealability.
Section 1238 provides, in relevant part: “(a) An appeal may be taken by the
people from any of the following: [¶] . . . [¶] (8) An order or judgment dismissing
or otherwise terminating all or any portion of the action including such an order or
judgment after a verdict or finding of guilty or an order or judgment entered before
the defendant has been placed in jeopardy or where the defendant has waived
jeopardy.” The People contend, and the Court of Appeal held, that where first
degree murder with special circumstances has been charged, a pretrial order under
section 1376 precluding the prosecution from seeking the death penalty is an order
“terminating,” before the defendant has been placed in jeopardy, one “portion of the
action” (§ 1238, subd. (a)(8))―to wit, the penalty phase portion.
While section 1238, subdivision (a)(8) does not expressly refer to an order
terminating a “phase” of trial, its broad reference to “any portion of” an action can
reasonably be read as including the penalty phase of a capital trial. This reading
furthers the goal of the legislation adding “any portion of” to the statute (Stats.
1998, ch. 208, § 1), which was to provide a means for appellate correction of
erroneous rulings even when those rulings do not entirely preclude prosecution.
(See Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1850 (1997-1998 Reg.
Sess.) as introduced, pp. 3-4; Assem. Com. on Public Safety, Rep. on Sen. Bill No.

1850 (1997-1998 Reg. Sess.) as amended May 12, 1998, pp. 1-2.) The legislative
history indicates the concern motivating the change arose primarily “[w]hen some,
but less than all, criminal counts are dismissed prior to trial” (Sen. Com. on Public
Safety, Rep. on Sen. Bill No. 1850, supra, p. 3), but nothing in the history suggests
an intent to exclude other partial terminations. The Legislature’s choice of general
language (“any portion of”) suggests, to the contrary, that the intent was to include
all partial terminations of an action.
That the Legislature did not expressly provide for an appeal in section 1376
does not necessarily reflect the intent to preclude appeal or review by writ petition.
Having covered the subject of pretrial prosecution appeals by generally applicable
provisions in section 1238, the Legislature would not be expected to put appeal
provisions into each statute that concerns a pretrial motion. Thus, that section 1376
does not itself authorize (or prohibit) appellate review provides little, if any, clue as
to whether section 1238, subdivision (a)(8) covers this situation. Allowing an
appeal is consistent with the language of both statutes and would further the
purpose of section 1238, subdivision (a)(8).
Against the conclusion that an appeal is permitted under section 1238,
subdivision (a)(8), Vidal maintains, first, that because the defendant’s amenability
to the death penalty is a “condition precedent” to holding a penalty trial, an order
under section 1376 does not terminate the penalty phase. He appears to argue that a
penalty phase that is “preclude[d]” (§ 1376, subd. (c)(1)) prior to trial due to the
defendant’s mental retardation can never legally begin and thus cannot be
“terminat[ed]” within the meaning of section 1238, subdivision (a)(8). But the
statute’s language does not justify such a narrow reading. It expressly includes
pretrial orders dismissing “or otherwise terminating” a portion of the action,
suggesting that, as the term is used here, proceedings on a charge can be
“terminat[ed]” before trial on it has begun.

Second, Vidal compares mental retardation to minority at the time of the
capital offense, also a categorical exclusion from the death penalty (§ 190.5, subd.
(a); Roper v. Simmons (2005) 543 U.S. 551, 578), and observes that he has found no
reported decisions that “allow prosecution appeal or review of a finding that the
defendant is a minor.” We need not decide here, of course, whether a pretrial ruling
of minority under section 190.5 is appealable under subdivision (a)(8) or any other
part of section 1238; suffice to say that if no reported cases have addressed such an
appeal, it is most likely because the defendant’s age is ordinarily established by
undisputed documentary evidence and hence would rarely if ever be the subject of a
contested hearing in the trial court.
Third, Vidal relies on our recent decision in People v. Williams, supra, 35
Cal.4th at pages 830-834, in which we held a magistrate’s pretrial determination
that a “wobbler” offense charged as a felony is to be treated as a misdemeanor
(§ 17, subd. (b)(5)) was not appealable under subdivision (a)(1) or (a)(8) of section
1238. As we explained, however, the magistrate’s order did not terminate or
preclude the People from pursuing any part of the action, but only modified the
charges: the order “did not preclude the People from prosecuting the wobbler
offenses charged against defendant; it simply determined that these offenses were
misdemeanors rather than felonies.” (Williams, at p. 830.) In contrast, the superior
court’s order here precluded the People from pursuing a distinct portion of the
action, the trial on penalty.
Finally, although not disputing the trial court’s order was made before he
was placed in jeopardy, Vidal contends the Court of Appeal’s interpretation of
section 1238, subdivision (a)(8), taken to its logical end point, would also allow the
prosecution to appeal from a penalty jury’s decision to recommend life
imprisonment rather than death, a result that would assertedly create “constitutional
complications.” First, the Court of Appeal’s holding does not imply that a jury’s

verdict of life imprisonment would, like the trial court’s pretrial ruling here, be
deemed an order or judgment terminating the penalty phase for purposes of section
1238, subdivision (a)(8). Second, double jeopardy protections have (albeit in
somewhat different circumstances) been held to apply to the capital defendant who
obtains a verdict rejecting the death penalty. (See People v. Henderson (1963) 60
Cal.2d 482, 495-497.) As section 1238, subdivision (a)(8) does not authorize an
appeal once jeopardy has attached, except from orders after a guilty verdict or
where jeopardy has been waived, the subdivision may be inapplicable to a
prosecution appeal from a life without parole verdict on this ground as well.
We conclude the Court of Appeal correctly held the trial court’s ruling
precluding the death penalty is appealable under section 1238, subdivision (a)(8).5
II. Whether the Trial Court Used the Wrong Legal Standard
Section 1376 provides the following substantive standard for determining
mental retardation: “(a) As used in this section, ‘mentally retarded’ means the
condition of significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested before the age of
18.” As we have previously noted (see Hawthorne, supra, 35 Cal.4th at pp. 47-48),
the statutory standard is derived from, and is consistent with, widely used clinical

In support of review by way of writ petition, the Court of Appeal held that
appeal was an inadequate remedy in these circumstances because it would
significantly delay trial. (Accord, People v. Superior Court (Bolden) (1989) 209
Cal.App.3d 1109, 1112.) Although we ultimately conclude on the merits that the
writ should not have issued on the grounds stated by the Court of Appeal, we agree
that writs of mandate or prohibition may, where all the requirements for a writ are
met (see Code Civ. Proc., §§ 1102, 1103; 6 Witkin, Cal. Criminal Law (3d ed.
2000) Criminal Writs, §§ 83-98, pp. 615-630), provide an appropriately speedy
mode of review for pretrial rulings of mental retardation under section 1376.
Whether review is by writ or appeal, Courts of Appeal should complete their review
expeditiously to avoid unnecessarily delaying or disrupting the trial.

standards cited by the United States Supreme Court in Atkins. (See Atkins, supra,
536 U.S. at p. 308, fn. 3.)
In finding Vidal to be mentally retarded, the superior court expressly found
he satisfied the statutory requirement of “significantly subaverage general
intellectual functioning.” As to this intellectual-functioning prong of the definition,
then, the court appears at least facially to have employed the correct standard.
Nevertheless, the Court of Appeal held the superior court used the wrong legal
standard by failing to give primary weight or consideration to Vidal’s Full Scale IQ
scores, which generally lay above the range considered to show mental retardation.
The People, similarly, urge us to hold as a matter of law that in applying section
1376 trial courts “should be limited in their use of IQ scores to the full scale IQ
score, rather than have the discretion to substitute subtest scores which fail to
provide a picture of general intellectual functioning.” Here, the People argue, the
trial court “relied too heavily on the petitioner’s subtest IQ score and failed to give
appropriate weight to his full scale IQ score.”
We disagree that section 1376 dictates primary reliance on the Full Scale IQ
score of a Wechsler intelligence test. The statute itself makes no reference to one or
another clinical test of intelligence, any more than it refers to a particular score as
the cutoff point for mental retardation. (See Hawthorne, supra, 35 Cal.4th at p. 48
[“unlike some states, the California Legislature has chosen not to include a
numerical IQ score as part of the definition of ‘mentally retarded’ ”].) As we
further explained in Hawthorne, mental retardation, as a question of fact, “is not
measured according to a fixed intelligence test score or a specific adaptive behavior
deficiency, but rather constitutes an assessment of the individual’s overall capacity
based on a consideration of all the relevant evidence.” (Id. at p. 49.) To impose an
absolute rule that a trial court’s finding of mental retardation must be based
primarily on Wechsler Full Scale IQ scores would be to read into the statute a

criterion the Legislature chose to omit and would be inconsistent with the principle
that a factual finding of retardation must be based on all the relevant evidence. (See
People v. Stoll (1989) 49 Cal.3d 1136, 1154 [“No precise legal rules dictate the
proper basis for an expert’s journey into a patient’s mind”].)6
In assessing the role the Full Scale IQ score (or any other single test score)
plays in determining mental retardation, we must distinguish between rules of law
and diagnostic criteria of psychology. The expert testimony below included a
vigorous scientific debate as to whether Vidal’s Full Scale IQ scores should rule out
a diagnosis of mental retardation. While one psychologist, McKinzey, gave his
opinion that Full Scale IQ scores are, in all circumstances, the “best measure of
general intelligence,” two other psychologists, Couture and Widaman, testified that
where testing showed an extraordinarily wide divergence between Performance and
Verbal IQ scores, the Full Scale measure was not a fully reliable measure. In
support of their views, both sides gave scientific, not legal, reasons and cited
scientific, not legal, authority.7

Because, as we held in Hawthorne, mental retardation is a question of fact
(Hawthorne, supra, 35 Cal.4th at p. 49), we reject the People’s suggestion that a
trial court’s finding on the issue should be reviewed independently on appeal as a
mixed question of fact and constitutional law. Contrary to the People’s argument,
deciding as a matter of fact whether an individual is mentally retarded is not
comparable to deciding whether a search was reasonable under the Fourth
Amendment to the United States Constitution (see People v. Glaser (1995) 11
Cal.4th 354, 362) or whether the prosecutor has deprived a criminal defendant of
due process by suppressing favorable material evidence (see People v. Salazar
(2005) 35 Cal.4th 1031, 1042).
Vidal has requested we take judicial notice of additional scientific
publications, not relied upon by the expert witnesses and not before the trial court at
the time of its decision. We deny the requests on grounds of irrelevance. (See
Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

The Court of Appeal sided squarely with McKinzey in this debate over
psychological standards, stating flatly that “general intellectual functioning is
primarily determined by the defendant’s FSIQ score.” Like the psychologists who
testified at the hearing, the lower court majority cited scientific sources (references
published by the American Psychiatric Association and the American Association
on Mental Retardation) rather than legal authority in support of its view.
The Court of Appeal majority erred in thus purporting to resolve a factual
question―the best scientific measure of intellectual functioning―as a matter of
law. In finding the facts of a particular case, courts and juries untrained in science
are sometimes called upon to resolve contested scientific issues, but such factual
findings do not establish generally applicable rules of law. The superior court here,
for example, found on the basis of Couture’s and Widaman’s testimony that in
Vidal’s case his Full Scale IQ scores in the low average to average range did not
preclude a finding of mental retardation. In a given case an appellate court might,
within its proper role, hold that such a finding was not supported by substantial
evidence in the hearing record.8 But an appellate court cannot convert a disputed
factual assertion into a rule of law simply by labeling it a “legal standard,” as the
Court of Appeal purported to do here.

We are not asked in this case to decide the substantial evidence question.
The Court of Appeal denied it was granting writ relief because of an absence of
substantial evidence, and the People do not contend in this court that they are
entitled to relief on that basis. Because we do not address any question of
substantial evidence, we also do not address Vidal’s argument that a writ of
mandate does not lie to correct ordinary, nonjurisdictional error in finding facts.
(See People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 626.) We also do
not decide what role proof of the defendant's conduct in the charged offense
properly plays in a pretrial hearing on mental retardation.

Courts also must sometimes evaluate disputed scientific assertions in the
course of determining the admissibility of expert scientific testimony. In
determining the evidentiary reliability of a new scientific technique, California
courts look primarily to the technique’s general acceptance in the relevant scientific
community, an approach designed to ensure “ ‘that those most qualified to assess
the general validity of a scientific method will have the determinative voice.’ ”
(People v. Kelly (1976) 17 Cal.3d 24, 31, italics omitted.) Even under the arguably
more searching federal court inquiry described in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579, “the focus, of course, must be solely on
principles and methodology, not on the conclusions that they generate.” (Id. at
p. 595.) The courts’ evidentiary gatekeeping function is thus not a warrant for
judicial intervention in genuine scientific debates over substantive principles. In
any event, we are not faced here with a question of admissibility of disputed
evidence but with the question whether, when both sides of a scientific dispute have
been presented by expert testimony, an appellate court may declare the debate’s
winner as a matter of law.
The Legislature has mandated that trial courts, in determining mental
retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the
individual’s “general intellectual functioning” is significantly impaired (§ 1376,
subd. (a)), but has not defined that phrase or mandated primacy for any particular
measure of intellectual functioning. The question of how best to measure
intellectual functioning in a given case is thus one of fact to be resolved in each case
on the evidence, not by appellate promulgation of a new legal rule.

The Court of Appeal incorrectly granted writ relief on the ground that the
trial court erred legally by failing to give primary consideration to Vidal’s Full
Scale IQ scores. We therefore reverse the lower appellate court’s judgment. In
light of the possibility that the People timely and properly presented the Court of
Appeal with other grounds for relief the Court of Appeal has not already addressed,
we remand the matter to that court for further proceedings. In deciding whether to
seek additional briefing or address additional issues, the Court of Appeal should
bear in mind the substantial delay of trial already incurred.
The judgment of the Court of Appeal issuing a writ of mandate is reversed,
and the cause is remanded to that court for proceedings consistent with this opinion.
The stay of trial proceedings previously entered is continued pending action by the
Court of Appeal.

Associate Justice, Court of Appeal, Second Appellate District, Division
Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Superior Court (Vidal)

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 129 Cal.App.4th 434
Rehearing Granted


Opinion No.

Date Filed: April 12, 2007


County: Tulare
Judge: William Silveira, Jr.


Attorneys for Appellant:

Phillip J. Cline, District Attorney, Carol B. Turner and Don H. Gallian, Assistant District Attorneys, and
Barbara J. Greaver, Deputy District Attorney, for Petitioner.

Michael A. Ramos, District Attorney (San Bernardino), Mark Vos, Lead Deputy District Attorney, Mary L.
Andonov, Deputy District Attorney; and David R. LaBahn for California District Attorneys Association as
Amicus Curiae on behalf of Petitioner.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janet Neely, John G. McLean and
George M. Hendrickson, Deputy Attorneys General, as Amici Curiae on behalf of Petitioner.


Attorneys for Respondent:

No appearance for Respondent.

Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, Berry Robinson and
William G. Mueting, Deputy Public Defenders, for Real Party in Interest.

John T. Philipsborn and Charles D. Weisselberg for California Attorneys for Criminal Justice as Amicus
Curiae on behalf of Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Barbara J. Greaver
Deputy District Attorney
221 South Mooney Boulevard, Room 224
Visalia, CA 93291
(559) 733-6411

William G. Mueting
Deputy Public Defender
County Courthouse, Room G-35
Visalia, CA 93291
(559) 733-6693

Opinion Information
Date:Docket Number:
Thu, 04/12/2007S134901

1Vidal, Jorge Junior (Real Party in Interest)
Represented by William G. Mueting
Tulare County Public Defender
221 S. Mooney Boulevard, Courthouse #G35
Visalia, CA

2The People (Petitioner)
Represented by Barbara J. Greaver
Office of the District Attorney
221 S. Mooney Boulevard, Room 224
Visalia, CA

3The People (Petitioner)
Represented by Phillip J. Cline
Office of the District Attorney
221 S. Mooney Boulevard, Suite 224
Visalia, CA

4Superior Court Of Tulare County (Respondent)
3rd Floor, Dept. 3
Visalia, CA 93291

5California Attorneys For Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, #250
San Francisco, CA

6California District Attorneys Association (Amicus curiae)
Represented by Mary L. Andonov
Ofc District Attorney--Appellate Srvs Unit
412 W. Hospitality Lane
San Bernardino, CA

7Lockyer, Bill (Amicus curiae)
Represented by George M. Hendrickson
Office of the Attorney General
1300 "I" Street
Sacramento, CA

Apr 12 2007Opinion: Reversed

Jun 21 2005Petition for review with request for stay filed (criminal)
  in Fresno by counsel for RPI (Jorge Vidal, Jr.). Requesting immediate stay of trial.
Jun 21 2005Record requested
Jun 23 2005Received Court of Appeal record
  two doghouses
Jul 27 2005Petition for review granted (criminal case)
  Petition for review GRANTED. Pending further order of this court, trial in People v. Jorge Junior Vidal, Tulare County Superior Court Number 69782-C, is hereby stayed. Baxter, J., was recused and did not participate. Votes: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ.
Aug 9 2005Request for extension of time filed
  Counsel for petitioner requests extension of time to November 25, 2005 to file the opening brief on the merits. **** 60-day extension granted to 10-25-2005 *****
Aug 24 2005Extension of time granted
  Real Party in Interest time to serve and file the opening brief on the merits is extended to and including October 25, 2005.
Oct 25 2005Opening brief on the merits filed
  by counsel for RPI (Jorge Vidal, Jr.)
Nov 7 2005Request for extension of time filed
  Counsel for petitioner requests extension of time to December 30, 2005, to file the reply brief on the merits.
Nov 14 2005Extension of time granted
  Petitioner's time to serve and file the reply brief on the merits is extended to and including November 28, 2005.
Nov 17 2005Extension of time granted
  Petitioner's time to serve and file the answer brief on the merits is extended to and including December 30, 2005.
Dec 22 2005Request for extension of time filed
  Counsel for petitioner requests extension of time to January 30, 2006, to file the answer brief on the merits.
Dec 28 2005Extension of time granted
  To January 30, 2006 to file petitioner's answer brief on the merits.
Jan 26 2006Answer brief on the merits filed
  counsel for petnr. (People)
Jan 30 2006Request for extension of time filed
  Counsel for RPI requests extension of time to March 8, 2006, to file the reply brief on the merits.
Feb 6 2006Extension of time granted
  Real Party in Interest time to serve and file the reply brief on the merits is extended to and including March 8, 2006.
Mar 8 2006Reply brief filed (case fully briefed)
  Jorge Vida, Real Party in Interest by William G. Mueting, counsel filed in Fresno.
Mar 8 2006Request for judicial notice filed (granted case)
  Jorge Vidal, Real Party in Interest by William G. Mueting, counsel.
Mar 9 2006Received application to file Amicus Curiae Brief
  California Attorneys for Criminal Justice in support of petitioner
Mar 14 2006Permission to file amicus curiae brief granted
  California Attorneys for Criminal Justice in support of petitioner.
Mar 14 2006Amicus curiae brief filed
  The application of California Attorneys for Criminal Justice for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 7 2006Amicus curiae brief filed
  Bill Lockyer, Atty. General in support of petitioner.
Apr 10 2006Received application to file Amicus Curiae Brief
  Calif. District Attorneys Association (non-party) (40.1(b))
Apr 13 2006Permission to file amicus curiae brief granted
  Calif. District Attorneys Association in support of petitioner.
Apr 13 2006Amicus curiae brief filed
  California District Attorneys Association in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 3 2007Case ordered on calendar
  to be argued Tuesday, January 30, 2007, at 2:00 p.m., in Sacramento
Jan 19 2007Filed:
  counsel for Real Party in Interest, Additional Authorities for Oral Argument and Request for Judicial Notice
Jan 25 2007Opposition filed
  counsel for petitoner to RPI Request for Judicial Notice and Additional Authorities.
Jan 30 2007Cause argued and submitted
Apr 11 2007Notice of forthcoming opinion posted
Apr 12 2007Opinion filed: Judgment reversed
  and Remanded for proceedings consistent with this opinion. OPINION BY: Werdegar, J. --- joined by: George, C.J., Kennard, Chin, Moreno, Corrigan, Johnson, JJ. (assigned by the Chief Justice pursuant to Article VI, section 6 of the Calif. Constitution)
May 17 2007Remittitur issued (criminal case)
May 23 2007Received:
  receipt for remittitur from CA/5

Oct 25 2005Opening brief on the merits filed
Jan 26 2006Answer brief on the merits filed
Mar 8 2006Reply brief filed (case fully briefed)
Mar 14 2006Amicus curiae brief filed
Apr 7 2006Amicus curiae brief filed
Apr 13 2006Amicus curiae brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website