Perhaps you have heard of the “Twinkie Defense.” The term derives from the 1979 trial of Dan White, a former San Francisco Supervisor who, following a dispute with San Francisco Mayor George Moscone and San Francisco Supervisor Harvey Milk, shot and killed both men at the San Francisco City Hall. Mr. White’s defense was that he suffered from “diminished capacity” due to his depression. His defense attorneys argued that among Mr. White’s symptoms of depression was his consumption of unhealthy sugary foods. The press invented the “Twinkie Defense” even though Twinkies were never mentioned at trial.

Mr. White, who was charged with first degree murder, was convicted of the lesser offense of voluntary manslaughter. He was not convicted of murder due to the successful argument that Mr. White suffered from depression and thus acted with diminished capacity. The defense did not argue that Mr. White’s mental state was impaired because he ate Twinkies, as urban legend tells the story; rather the ultimately successful defense was that Mr. White’s state of mind due to his depression negated premeditation, which was a required element to convict on first degree murder. Diminished capacity is something less than insanity.

But that fake news story about the Twinkie Defense took on a life of its own.

Gay San Francisco was angry because the voluntary manslaughter charge was the lightest possible conviction Mr. White could have received and he murdered Harvey Milk, who was San Francisco’s first openly gay supervisor. Following the conviction, San Francisco’s gay community took to the streets. What started as demonstrations turned into riots. These events were the beginnings of the gay community’s rise to power in San Francisco. But they also had another effect: In 1982, the diminished capacity defense was abolished.

California law still allows a defense based on a mental infirmity (such as mental disease or disorder) to negate the mental state of specific intent. But a person’s mental state can only be considered in a criminal trial for the limited purpose of deciding whether the defendant, when he or she committed the crime, had the intent or mental state required by for the offense as distinct from whether the defendant had the mental “capacity.” This defense, now known as “diminished actuality” can be employed as a defense when a “specific intent” crime is charged. Specific intent crimes are crimes where the result was intended. (For example, if I shoot a gun with the intention of killing Joe and do kill Joe, I had both the intent to use the gun and the intent to kill Joe. But if I shoot a gun and kill Joe but I didn’t intend to kill Joe, I had the intent to shoot the gun but did not intend the result.)

But what if a defendant’s diminished mental state at the time of the crime was caused by the defendant’s voluntary intoxication? A defendant who was voluntarily drunk or high on drugs at the time the crime was committed may argue diminished actuality by presenting evidence that he or she was unable to form the specific intent to commit the crime due to the intoxication. However, as in all diminished actuality defenses, this is not a “not guilty” defense; it is merely evidence that may make it harder to prove the case against a defendant.

A diminished actuality defense is not the same thing as an insanity defense. The insanity defense will be the topic for next week’s blog.

Orange County Criminal Defense attorney William Weinberg is available to consult with you regarding any criminal matter. Call Mr. Weinberg at (949) 474-8008 or email him at for a free consultation.