Filed 5/13/13 P. v. Griffin CA3
                                          NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C068314

                   Plaintiff and Respondent,                                (Super. Ct. No. 08F08267)

         v.

TIMOTHY GRIFFIN,

                   Defendant and Appellant.




         During bifurcated guilt and sanity proceedings before the trial court, defendant
Timothy Griffin pleaded guilty to all charges—four counts of robbery, seven counts of
assault with a firearm, and two counts of carjacking—received a sentencing lid of 23
years four months, and waived his right to a jury trial on the issue of sanity. After the
sanity phase, the court found defendant failed to meet his burden of proof to show he was
insane at the time of the offenses.



                                                             1
       Defendant appeals his conviction, alleging (1) his jury waiver for the sanity trial
was procured involuntarily due to judicial involvement, (2) this judicial involvement
constitutes judicial plea bargaining that renders the sanity jury waiver invalid, and (3)
there was insufficient evidence to support the trial court‟s finding that defendant failed to
meet his sanity burden of proof. We find the trial court did not engage in judicial plea
bargaining, and the trial court‟s sanity finding was supported by sufficient evidence.
Therefore, we shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On October 4, 2008, defendant, with a getaway bicycle waiting outside, armed
with a loaded semiautomatic handgun and wearing a hoodie and a mask, went into a
Wells Fargo Bank. Holding his gun, defendant jumped over the counter and said,
“ „Now, everyone is going to cooperate with me, right?‟ ” Defendant took money from
each cash drawer. A bank customer, who had retrieved his own gun from his car, pointed
the gun at defendant, demanding that defendant drop his gun. Defendant ducked below
the counter, stood back up pointing his gun at the armed customer, and fled out the back
door of the bank, leaving his escape bicycle behind.

       With cash in hand, defendant ran into an open garage to hide. When the owners of
the house emerged, defendant stole their car at gunpoint and fled. Defendant abandoned
the stolen vehicle and disposed of all clothing connecting him to the scene of the crime.
Defendant went to his truck, where he left the gun and submerged the stolen money
underwater in a cooler, thinking there might be a paint bomb in the money for detection
purposes.1 Defendant then returned in his truck to the hotel where he was staying with
his girlfriend and went to the swimming pool.



1 Included within the cash taken were three “ETS”—electronic transmitting system—
tags attached to $20 bills.

                                              2
       Police officers located defendant‟s truck in the hotel parking lot after tracking the
signal from the electronic transmitter and, with the help of a police dog, tracked the
driver of the truck to the hotel‟s pool area. The police dog honed in on defendant and the
officers arrested him.

       Defendant claimed he had been at the hotel all day and had only left his room to
buy a cup of coffee. Defendant described a woman who had served him; however, the
person working at that particular coffee shop did not match defendant‟s description.
Defendant subsequently admitted to robbery and carjacking, and the money and handgun
were recovered from defendant‟s truck.

       On January 24, 2011, defendant pleaded guilty to four counts of robbery, two
counts of carjacking, and seven counts of assault with a firearm, and the trial court
indicated a sentencing lid of 23 years four months. The relevant part of the plea colloquy
follows:

       “THE COURT: . . . Counsel, it‟s my understanding that there has been a
resolution to the first phase of the trial, that is, the guilt phase, and there will be a court
trial as it relates to the sanity phase.

       “The previously offered 19 years four months [by the prosecutor], there were
certain conditions that attached to that. The Court has extended a 23-year four-month
offer, which is a lid offer that gives [defense counsel] an opportunity to make additional
arguments to the Court if and when we have a sentencing hearing in this matter.

       “But in any event, it‟s my understand[ing], [defense counsel], that your client is
prepared at this time to enter pleas of guilty and admit all the allegations to each and
every count, correct? [¶] . . . [¶]

       “THE COURT: . . . [I]s that the proposed disposition, your client is going to plead
to all charges, admit all allegations?


                                                3
       “[DEFENSE COUNSEL]: Is that correct, [defendant]?

       “[DEFENDANT]: Yes, Your Honor. [¶] . . . [¶]

       “THE COURT: You understand that you are going to be waiving your right to
have a jury trial decide whether or not you were sane at the time these offenses were
committed?

       “[DEFENDANT]: Yes, Your Honor.

       “THE COURT: You understand you have a right to have a jury make that
decision?

       “[DEFENDANT]: Yes, Your Honor.

       “THE COURT: Understanding that right, do you waive it so that this Court,
myself, will be making that determination after hearing all of the evidence in that regard?

       “[DEFENDANT]: Yes, Your Honor.

       “THE COURT: Do you join in that waiver, [prosecutor]?

       “[PROSECUTOR]: Yes, Your Honor.

       “THE COURT: [Defense counsel]?

       “[DEFENSE COUNSEL]: Yes.

       “THE COURT: [Prosecutor], this was a prior offer by the People, 23 years four
months. Do the People have any position on this at this time?

       “[PROSECUTOR]: Yes, Your Honor, just to clarify the record, this was the offer
that extended from the [superior court readiness conference] date to Wednesday,
January 28th of 2009. What happened on January 28th of 2009, is that shortly before the
preliminary hearing, defense counsel and the District Attorney who had represented—or
our office before I had the case agreed to a slightly lower disposition of 19 years four



                                             4
months with the understanding that the defendant would resolve before prelim[inary
hearing,] any witnesses were called, anymore time, anymore resources were consumed.

         “We are now almost two years later, we‟ve done significant prep work for trial in
terms of law and motion as well as the inconvenience upon the witnesses to be served
subpoenas over and over again.

         “While we recognize this is the defendant‟s first offense, this is a very serious
offense and there are a number of real victims, the defendant pointed a gun at different
points and took property from.

         “We feel this is a serious crime, but we would submit to the Court on the Court
offer.

         “THE COURT: The record should also reflect over the weekend the People had
agreed to extend a 19-year four-month offer to the defendant, and the defendant today
now is pleading 23 years and four months. [¶] [Defense counsel], have you discussed
with your client the elements of the charged offenses and the possible defenses which he
may have?

         “[DEFENSE COUNSEL]: We have.

         “THE COURT: Have you explained to him his rights?

         “[DEFENSE COUNSEL]: I have.

         “THE COURT: Have you explained the direct consequences which will result
from a plea of guilty to the charged offenses?

         “[DEFENSE COUNSEL]: Yes. [¶] We have talked about various permutations
of maximum punishment based upon factual—potential factual interpretations that a
Court could come up with, and as I think we already discussed on the record, . . . there‟s a




                                               5
wide variance between the charge and what could be a maximum depending on what the
Court would find the facts at the end of a sentencing hearing.

       “THE COURT: And my understanding that at least it would be 41 years and four
months.

       “[DEFENSE COUNSEL]: Yes.

       “THE COURT: All right. Are you satisfied that your client understands all of
these matters?

       “[DEFENSE COUNSEL]: I believe he understands that.”

       The prosecutor proceeded to state a factual basis for all charges. Defendant agreed
a factual basis existed for the charges.

       “THE COURT: Again, [defense counsel], you would agree that the potential
sentence for a plea to all of these counts and special allegations is at least 41 years four
months, would you agree with that?

       “[DEFENSE COUNSEL]: Yes.

       “THE COURT: Do the People agree . . . as well?

       “[PROSECUTOR]: Yes, Your Honor.

       “THE COURT: However, the understanding today, [defendant], is that you would
receive no more than 23 years and four months in state prison as a result of your pleas.
[¶] Do you understand that?

       “[DEFENDANT]: Yes, Your Honor.”

       The court then advised defendant as to the consequences of a guilty plea and
explained defendant‟s Boykin/Tahl constitutional rights,2 all of which defendant waived,


2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Tahl).


                                              6
including his right to a jury trial. The court took guilty pleas and admissions for all
charges and enhancements.

        At a trial to the court in the sanity phase, defendant testified and offered expert
testimony opining that he lacked the capacity to distinguish right from wrong at the time
of the robbery (part of the legal test for sanity). Defendant also offered, through
testimony, some evidence of a prior delusional episode. Through expert testimony and
cross-examination of defendant, the People offered evidence indicating that defendant
had the capacity to distinguish right from wrong. After the trial to the court, the court
found defendant failed to prove insanity by a preponderance of the evidence and
sentenced him to 19 years eight months.

                                        DISCUSSION

                   I. Sanity Jury Waiver Was Voluntary Because There
                          Was No Promise of Benefit or Leniency

        Defendant argues that his jury trial waiver regarding sanity was involuntary
because it was conditioned on a sentencing lid promised by the trial court, which
constitutes judicial plea bargaining. We disagree.

        “The right to a trial by jury is . . . a „fundamental constitutional right‟ ” pursuant to
the Sixth Amendment of the federal Constitution. (People v. Collins (2001) 26 Cal.4th
297, 304 (Collins).) A defendant may waive the right to a jury trial if the waiver “is
knowing and intelligent” (id. at p. 305), and if it is an “express waiver on the record”
(Tahl, supra, 1 Cal.3d at pp. 132-133). Moreover, “the state may not punish a defendant
for the exercise of a constitutional right, or promise leniency to a defendant for refraining
from the exercise of that right.” (Collins, supra, 26 Cal.4th at p. 306.) If a trial court
does induce a jury trial waiver through some promise of benefit, the waiver “amounts to a
„structural defect in the proceedings‟ requiring that the judgment of conviction be set
aside . . . .” (Id. at p. 312.)


                                                7
       Defendant likens his case to Collins. The defendant in Collins had indicated his
intention to waive a jury trial when the court asked whether the defendant understood that
the court was “not promising [him] anything just to get [him] to waive jury?” (Collins,
supra, 26 Cal.4th at p. 302, italics omitted.) The defendant responded, “I was told that it
would—that it was some reassurance or some type of benefit.” (Ibid.) The court stated,
“Okay. I think that—I think what [defense counsel] may have been referring to is that I
indicated to counsel when somebody mentioned that this issue is going to be discussed
with you that there might well be a benefit in it. Just by having waived jury, that has
some effect on the court. Do you understand that? By not taking up two weeks‟ time to
try the case, but rather giving—just having it in front of a judge alone. . . . Do you
understand that?” (Ibid.) In Collins, the defendant‟s jury trial waiver was conditioned on
“a benefit” offered by the court; therefore, the defendant‟s waiver was not “knowing,
intelligent, and voluntary. The form of the trial court‟s negotiation with defendant
presented a „substantial danger of unintentional coercion.‟ ” (Id. at p. 309.) This
constituted a “ „structural defect in the proceedings‟ ” and required the judgment be set
aside. (Id. at p. 312.)

       Despite defendant‟s contentions here, such a factual scenario is not before us.
Here, the trial court indicated a sentencing lid that was based in part on a prior
prosecution offer; defendant indicated his intention to plead guilty to all charges and to
waive his right to a jury trial; the court explained the consequences of pleading guilty
including relinquishment of the right to a jury trial; and defendant waived his jury trial
right and pleaded guilty. Defendant‟s waiver was thus an “express waiver on the record.”
(Tahl, supra, 1 Cal.3d at pp. 132-133.) There was no reference to a “benefit” or that
defendant‟s waiver may have “some [beneficial] effect on the court.” (Collins, supra,
26 Cal.4th at p. 302.) As there was no offer of a benefit or leniency by the trial court, the
jury trial waiver was voluntary unless the sentencing lid constitutes a judicial plea



                                              8
bargain. As it does not (as we explain in pt. II of the Discussion that follows),
defendant‟s jury trial waiver was voluntary.

                 II. Sanity Jury Waiver Was Valid Because There Was
                              No Judicial Plea Bargaining

       Defendant argues that his sanity jury waiver is invalid because either (1) the sanity
jury waiver was “the trial court‟s doing” (not initiated by the prosecution) and therefore
not part of the plea agreement or (2) even if the sanity jury waiver is deemed part of the
plea agreement, it must nonetheless be severed due to judicial plea bargaining. Under
either theory, defendant does not seek reversal of the guilty plea, but seeks remand for a
subsequent jury trial on the issue of sanity. In response, the People contend that
defendant “wants his proverbial cake and to eat it too. He wants to leave intact the „lid‟
disposition that he received by entering guilty pleas, yet have another bite at an insanity
verdict, now that he was found sane by the trial court.” We agree with the People.

      A. The Guilt Phase and Sanity Phases Are Bifurcated Parts of One Trial

       Defendant concedes that he waived a jury trial when he pleaded guilty. Defendant
argues, however, that this waiver does not extend to the sanity phase: “Here, however,
we are talking about the trial court‟s solicitation of a jury waiver in a different trial, one
that was not resolved by the defendant‟s pleas and admissions.” This argument is
without merit. Case law has concluded, relying on the “one trial” principle, that a
defendant‟s waiver of jury on the issue of guilt extends to the issue of sanity as a defense,
unless the defendant “specifically demands” a jury on the issue of sanity. (People v.
Jarmon (1992) 2 Cal.App.4th 1345, 1355.) Here, defendant never “specifically
demand[ed]” a jury on the sanity issue; indeed, he expressly agreed to a court trial.
Therefore, when defendant waived his jury trial by pleading guilty, he also waived his
jury trial in the sanity phase.




                                               9
                       B. There Was No Judicial Plea Bargaining

       This court, in People v. Woosley (2010) 184 Cal.App.4th 1136 (Woosley),
distinguished between a court that improperly engages in plea bargaining and a court that
properly indicates a sentence or a sentence lid. As to the former, “The process of plea
bargaining . . . contemplates an agreement negotiated by the People and the defendant
and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees
to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe
punishment than that which could result if he were convicted of all offenses charged.”
(Woosley, at p. 1145.) “However, the court has no authority to substitute itself as the
representative of the People in the negotiation process and under the guise of „plea
bargaining‟ to „agree‟ to a disposition of the case over prosecutorial objection.” (People
v. Orin (1975) 13 Cal.3d 937, 943.) Such conduct “implicates the separation of powers
doctrine” and constitutes “judicial plea bargaining—that is, disposing of charges over the
objections of the prosecutor in order to induce a guilty plea”; such conduct “may
„contravene express statutory provisions requiring the prosecutor‟s consent to the
proposed disposition, would detract from the judge‟s ability to remain detached and
neutral in evaluating the voluntariness of the plea and the fairness of the bargain to
society as well as to the defendant, and would present a substantial danger of
unintentional coercion of defendants who may be intimidated by the judge‟s participation
in the matter.‟ ” (Woosley, supra, at pp. 1145-1146.)

       In contrast to improper judicial plea bargains, says Woosley, are proper indicated
sentences. “ „In an indicated sentence, a defendant admits all charges, including any
special allegations and the trial court informs the defendant what sentence will be
imposed. No “bargaining” is involved because no charges are reduced.‟ ” (Woosley,
supra, 184 Cal.App.4th at p. 1146.) Therefore, indicated sentences “ „fall[] within the
“boundaries of the court‟s inherent sentencing powers,” ‟ ” and do not implicate the
separation of powers doctrine as judicial plea bargains do. (Id. at pp. 1145-1146.)

                                              10
       In Woosley, the trial court offered a plea resolution over the prosecutor‟s repeated
explicit objections. (Woosley, supra, 184 Cal.App.4th at pp. 1140-1144.) The offer
appeared to be an indicated sentence because no charges had been reduced. (Id. at
pp. 1140-1141, 1147.) However, the “sentence could be imposed only if the trial court
dismissed the on-bail enhancement. Therefore, it was more than just an indicated
sentence; it included, anticipatorily, the dismissal of the on-bail enhancement.” (Id. at
p. 1147.) By dismissing an on-bail enhancement, the court took on the role of the
executive branch, thereby breaching the separation of powers doctrine and resulting in an
illegal judicial plea bargain. (Ibid.)

       Here, defendant likens his case to Woosley, focusing on language in the plea
colloquy to support his position. In so doing, however, defendant ignores the bigger
picture the record provides. Rather than making a plea offer like the trial court in
Woosley, it is apparent the trial court here referred to a previous off-the-record plea
bargain between the prosecutor and the defense: “THE COURT: . . . Counsel, it‟s my
understanding that there has been a resolution to the first phase of the trial, that is, the
guilt phase, and there will be a court trial as it relates to the sanity phase. [¶] . . . The
Court has extended a 23-year four-month offer, which is a lid offer . . . . [¶] But in any
event, it‟s my understand[ing], [defense counsel], that your client is prepared at this time
to enter pleas of guilty and admit all the allegations to each and every count, correct?”

       Defendant contends the trial court‟s remark that “[t]he Court has extended a 23-
year four-month offer, which is a lid offer” and the prosecutor‟s statement later that he
“would submit to the Court on the Court offer” show that this was an improper plea offer
from the court. However, this is not Woosley. This phrasing was merely an unfortunate
way to refer to the sentence lid—a proper indicated sentence. Significantly, the
prosecutor did not object to the trial court‟s actions like the prosecutor in Woosley. (See
Woosley, supra, 184 Cal.App.4th at pp. 1140-1144.) The trial court here did not dismiss


                                               11
any charges or enhancements like the court in Woosley. Rather, defendant admitted all
charges and enhancements and the court imposed a sentence within the court‟s indicated
sentence lid. “[J]udicial plea bargaining,” as defined in Woosley—“that is, disposing of
charges over the objections of the prosecutor in order to induce a guilty plea,” did not
take place here. (Woosley, supra, at p. 1146.)3

                    III. There Was Sufficient Evidence to Support
                           the Trial Court’s Sanity Finding

       Defendant initially argues that psychiatrist Jason Roof, M.D., the People‟s expert
witness on sanity, failed to review “independently verifiable” evidence of a prior delusion
of defendant‟s, and therefore the doctor‟s expert opinion lacks foundation and the
judgment must be reversed for lack of substantial evidence. We disagree.

       In this case, defense witness Kenneth King, a Sacramento County deputy sheriff,
testified about defendant‟s prior delusional episode in June 2008 (approximately four
months before the incident here). Defendant had called the police because he believed
there were “four to five subjects with guns trying to enter his warehouse.” When Deputy
King and other officers arrived and found no evidence of intruders, they placed defendant
in a squad car until he calmed down. Paul Mattiuzzi, Ph.D., the defense‟s expert witness
on sanity, also mentions this June 2008 event in his report on defendant. Dr. Roof based


3 A recent decision from the California Supreme Court, People v. Clancey (Apr. 18,
2013, S200158) ___ Cal.4th ___, ___ [2013 Cal. Lexis 3315 at pp. *1, *27], concluded
that an indicated sentence may contemplate the trial court‟s exercise of its sentencing
discretion, including exercise of its discretion under Penal Code section 1385 to strike
offenses or allegations in the interests of justice. The Clancey court perceived no
statutory or constitutional basis for Woosley‟s objection that a trial court‟s ordinary
sentencing discretion necessarily excludes the power to dismiss under section 1385 in the
context of an indicated sentence. (People v. Clancey, supra, ___ Cal.4th at p. ___ [2013
Cal. Lexis 3315 at p. *30].) Consequently, Clancey viewed a trial court‟s power to
indicate a sentence as even broader than Woosley did, and therefore Clancey poses no
problem to our resolution here.


                                             12
his opinion that defendant had the ability to differentiate right from wrong (part of the
legal test for saneness) in part on an absence of previous delusional episodes, and stated
at trial that if defendant had had a previous delusional episode, he (Dr. Roof) “would
consider” it but “[w]hether or not it would have an impact on my opinion, I don‟t know.”

       Relying on Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113
(Zuckerman), defendant argues that because there was some evidence of a prior
delusional episode and Dr. Roof admits that he would have considered such an episode in
reaching his expert opinion, his opinion lacks foundation and “the judgment must be
reversed for lack of substantial evidence.” However, defendant‟s argument is misplaced.
Zuckerman involved an expert‟s valuation of real property, where the expert used a
comparative property that “include[ed] various fixtures, rights, improvements, and
personal property which the property being [valued did] not include.” (Id. at p. 1130.)
Therefore, the Zuckerman expert‟s opinion was based on facts wholly unsupported by the
record. (Ibid.) Here, in contrast, Dr. Roof based his opinion on the police report, witness
statements, statements by defendant to the police, psychiatric treatment records, Dr.
Roof‟s own interview with defendant, and psychiatric testing. Evidence of a prior
delusional episode was one factor to consider in reaching his opinion, and Dr. Roof‟s
ignorance of this evidence goes to the credibility of his testimony rather than to its
admissibility. (See People v. Bassett (1968) 69 Cal.2d 122, 146 & fn. 22 [“Assuming
the necessary minimum acquaintance with the case in which he is called to testify, „the
extent of an expert‟s knowledge goes to the weight of his testimony, rather than to its
admissibility.‟ ”].) Therefore, unlike the expert in Zuckerman, Dr. Roof‟s opinion was
based on facts supported by the record of the case and did not lack foundation.

       Defendant then argues, more generally, that there is insufficient evidence to
support the trial court‟s finding that defendant failed to show he was insane at the time of
the offense. We disagree.


                                             13
       To prove not guilty by reason of insanity, a defendant must establish “by a
preponderance of the evidence that he or she was incapable [(1)] of knowing or
understanding the nature and quality of his or her act and [(2)] of distinguishing right
from wrong at the time of the commission of the offense.” (Pen. Code § 25, subd. (b).)
Defendant concedes there is substantial evidence showing that he was capable of
knowing or understanding the nature and quality of his acts at the time of the offenses, so
the only issue of evidentiary sufficiency on appeal regarding this standard of legal
insanity was whether defendant was capable of distinguishing right from wrong.

       In reviewing this evidentiary sufficiency issue, we must determine whether, after
viewing all of the evidence in the light most favorable to the judgment, there is
substantial evidence to support the trier of fact‟s findings. (People v. Johnson (1980)
26 Cal.3d 557, 562.) Substantial evidence is that “which is reasonable, credible, and of
solid value.” (Id. at p. 578.) Furthermore, if “the circumstances reasonably justify the
[trier of fact‟s] findings, the reviewing court may not reverse the judgment merely
because it believes that the circumstances might also support a contrary finding.”
(People v. Ceja (1993) 4 Cal.4th 1134, 1139.)

       In finding defendant had not proven insanity by a preponderance, the trial court
relied on defendant‟s testimony, the testimony of the two expert witnesses, these
witnesses‟ curricula vitae and reports, defendant‟s interrogation by law enforcement, and
the police reports. Based on a review of the entire record, substantial evidence supports
the court‟s sanity finding.

       Defendant testified about multiple stressors he had experienced in the year leading
up to the offenses, including: His contracting work “just kind of dried up”; he fell behind
on bills and child support payments; his contractor‟s license and driver‟s license were
suspended; utilities in his home were turned off; his grandmother died; his girlfriend‟s
grandmother died; his girlfriend‟s daughter was taken into protective custody because the


                                             14
family was living in a home with no utilities; he was injured as a victim of an assault and
battery; he accrued traffic tickets for driving with a suspended license; his house went
into foreclosure; he had to give away his dog; and his family moved into the cramped
quarters of his shop where the electricity was turned off at some point. When defendant
was at his lowest, sitting alone in his shop with his gun in his mouth and voices in his
head telling him to pull the trigger, he suddenly got a “really warm sensation” and
thought “everything was going to be okay.” Defendant “had this vision . . . that these
government agencies, you know, with the DMV and child support and the banks and all
these, these things out there were like this huge conspiracy just trying to destroy people‟s
lives. And . . . it wasn‟t just happening to me. It was happening to everyone. . . . [¶]
Everyone just seemed like they were losing their homes and their business, and I felt . . .
like God was talking to me. I felt like I was being rescued. I was like plucked from the
edge of suicide to . . . do something about it. . . . [¶] . . . [¶] I decided that I was gonna
go to the bank and rob it. [¶] . . . ¶] This is what I‟m supposed to do. God has given me
a job, a purpose. [¶] . . . [¶] I felt like I needed to . . . be a superhero or Robin Hood, a
hero to do something about it.”

       Defendant testified that at the time of the robbery, he did not believe he was doing
anything wrong. On cross-examination, however, defendant acknowledged that he was
able to distinguish right from wrong as to certain acts: Shooting an eyewitness would be
wrong, shooting the bank clerks would be wrong, murder would be wrong, and hurting
someone would be wrong. Defendant also indicated he knew that pointing a gun at
people would be wrong (when asked if he pointed the gun at the people in order to scare
them, defendant stated, “I never pointed the gun at them”), that scaring people would be
wrong (stating that he did not want to scare anyone with the gun and that he would feel
badly if they were scared), and that others would think his actions were wrong.




                                               15
       Dr. Mattiuzzi, the defense‟s expert witness, testified that at the time of the
robbery, defendant suffered from severe depressive disorder, a major mental illness
caused by his stressful life experiences and the incapacity to adapt and change. As to
defendant‟s stressful experiences, listed previously, Dr. Mattiuzzi testified that “[t]hese
are the types of stressors that drive people nuts. I mean it‟s significant episodes of
serious life stress that would be difficult for most anyone to cope with and adjust to.
[¶] . . . [¶] [I]t‟s very common for people who have stressors like this [sic] resulting in
major depressive episodes resulting in psychotic level thinking to do erratic and
impulsive behaviors trying to solve the situation.” Dr. Mattiuzzi opined that at the time
of the offenses, “[i]t appears quite probable . . . that . . . [defendant] did not have the
capacity to know that his behavior was wrong.”

       On cross-examination, Dr. Mattiuzzi testified that if defendant had told people in
the bank to remain calm and cooperate and no one would get hurt (defendant testified as
much at trial), this would show that he knew he was scaring people. Dr. Mattiuzzi
indicated that this, when coupled with defendant‟s statement that scaring people is wrong,
could indicate that defendant knew that threatening people is wrong. Furthermore, as
defendant did not want to shoot anyone and did not want anyone to get hurt, this indicates
that he understood a moral component to murder during a bank robbery. This supports
the conclusion that defendant had some ability to distinguish right from wrong at the time
of the offenses.

       Dr. Roof, the prosecution‟s expert witness, opined that defendant was capable of
distinguishing right from wrong at the time of the offenses. Dr. Roof was unable to
conclude that defendant was malingering—a point defendant emphasizes—but did
express concern about the atypical presentation of the alleged delusions (defendant
reported seeing color changes and face warping, which would generally happen over a




                                               16
longer time period; defendant was vague about the voices he claimed to hear; he had no
prior treatment).

       Based on a review of the entire record in the light most favorable to the judgment,
there is sufficient evidence for the trial court to have concluded that defendant was
capable of distinguishing right from wrong at the time of the offenses, and therefore had
not met his burden of proof as to sanity.

                                      DISPOSITION

       The judgment is affirmed.




                                                              BUTZ                      , J.



We concur:



         RAYE                      , P. J.



         NICHOLSON                 , J.




                                             17
