When will a defense counsel request a mental impairment instruction?

As a preliminary matter, on this record, it cannot be said "there simply could be no satisfactory explanation" for defense counsel to avoid requesting this instruction. (People v. Burgener, supra, 29 Cal.4th at p. 880.) As the People aptly argue, defense counsel may have believed that adding these instructions on top of a mental impairment instruction would have resulted in "muddying the waters." Defense counsel chose to base his case primarily on the theory that defendant did not use force or fear in committing the alleged crimes. Defense counsel might have felt that drawing too much

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