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A defendant’s last-minute claim of mental retardation has thrown a wrench into an ongoing Santa Clara County death penalty case. The lawyer representing Pov Touch — one of two men convicted last month of the 1998 gang-related murder of a San Jose man — said Friday that testing conducted midtrial shows Touch has an IQ of between 66 and 69, making him “borderline mentally retarded.” Touch’s penalty phase is set to begin Tuesday. His lawyer, alternate Public Defender John Breidenthal, said Touch was undergoing an examination with prosecution experts Friday. Breidenthal said he is asking the prosecution to call off the penalty phase, which would leave Touch — already imprisoned under the Three Strikes law — with a life sentence. Deputy District Attorney Lane Liroff didn’t return calls seeking comment. But even if the prosecution’s experts find similar impairment, it isn’t clear that it would put the brakes on the penalty phase. A year ago, the U.S. Supreme Court said executions of the mentally retarded violate the prohibition on cruel and unusual punishment. But the decision in Atkins v. Virginia, 536 U.S. 584, didn’t define mental retardation, leaving that to state legislatures. Senate President pro tem John Burton, D-San Francisco, has proposed legislation that would define it as “significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.” The measure doesn’t include a specific IQ cutoff. Touch and 25-year-old Van Hang Heang, members of the Los Angeles-area Asian Boyz gang, were convicted of the first-degree murder of Dong Dinh, who was killed while his son was testifying against gang members on trial in L.A. With little physical evidence, Liroff relied on police testimony, gang interviews with police and a jailhouse informant. Santa Clara County Superior Court Judge Alden Danner tried Touch and Heang — the alleged shooter — together for the guilt phase, but severed the penalty phases. Danner declared a mistrial in Heang’s penalty phase Wednesday after jurors deadlocked. Prosecutors haven’t yet said whether they will seek to retry Heang’s penalty phase. Breidenthal said Friday that Touch had never been diagnosed as developmentally disabled, but didn’t finish high school. “I don’t think the family had a sense of it. They were too busy surviving,” said Breidenthal about Touch’s family, who lived in Valerio Gardens, a Van Nuys public housing complex that was home to Cambodian refugees. “There is nothing in his records to suggest this, but he was booted from one school to another. He masked his problems with this machismo outward appearance.” Breidenthal declined to release the name of the defense psychologist or any details about the findings. But he said the diagnosis probably explains why it seemed as though Touch was smiling throughout the murder trial. During opening statements, Liroff had pointed out the smirk to the jury, drawing a defense objection. “He has this involuntary response where he gets nervous or scared, he sort of laughs,” Breidenthal said. Breidenthal said he didn’t test Touch until trial because the defense was overwhelmed with discovery. “We told the judge long ago we were not ready to go,” Breidenthal said.

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