Filed 4/18/13 P. v. Hardy CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B234990

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA358469)
         v.

DARRIS DONNELL HARDY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Alex
Ricciardulli, Judge. Affirmed.
         Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for
Plaintiff and Respondent.
                                          _______________________
          A jury found Darris Donnell Hardy guilty of attempted premeditated murder,
torture, and aggravated mayhem, and found true that the victim suffered great bodily
injury. The trial court found that Hardy was legally sane, and sentenced Hardy to 38
years to life on the attempted murder conviction, staying the sentences on the other
counts. Hardy appeals, arguing that the trial court erred in reopening the evidence during
jury deliberations, in failing to instruct on lesser included offenses, and in concluding that
there was sufficient evidence that Hardy was legally sane. We find no error, and we
affirm.
                                         BACKGROUND
          An information filed August 12, 2009 charged Hardy with attempted premeditated
murder in violation of Penal Code1 sections 187, subdivision (a), and 664; torture in
violation of section 206; and aggravated mayhem in violation of section 205, all in regard
to Alafia Robinson. As to all three counts, the information alleged that Hardy inflicted
great bodily injury on Robinson. The information also alleged that Hardy had three
serious or violent felony convictions under sections 667, subdivisions (b)-(i), and
1170.12, subdivisions (a)-(d) (the “Three Strikes” law), and three prior serious felony
convictions under section 667, subdivision (a)(1).
          Hardy pleaded not guilty and denied the special allegations. He later withdrew his
plea and pleaded not guilty and not guilty by reason of insanity. The trial court appointed
experts to examine Hardy for legal insanity. Hardy waived a jury trial on the issue of his
sanity, and his motion to bifurcate the enhancement allegations was granted.
          After trial, the jury found Hardy guilty on all counts and found true the great
bodily injury allegation. After hearing the evidence in a bifurcated proceeding, Hardy
admitted the truth of the enhancement allegations. Following a court trial, the court
found Hardy legally sane as to all the charges.
          The court sentenced Hardy to 38 years to life with a possibility of parole for
attempted murder, consisting of 25 years to life under the Three Strikes law, two five-

          1   Further statutory references are to the Penal Code unless otherwise indicated.

                                                  2
year enhancements under section 667, subdivision (a)(2), and three years for the great
bodily injury enhancement. The court stayed sentencing for torture and aggravated
mayhem under section 654. Hardy was awarded presentence custody credit and ordered
to pay fines. He filed this timely appeal.
Testimony at trial
       A firefighter and paramedic for the Los Angeles Fire Department testified that
around 2:42 a.m. on April 11, 2009, he responded to an alarm call at Wall and Vernon,
where he saw a flaming pile of clothing in the middle of the street, with Robinson
distraught and screaming nearby. Robinson’s body had been burned from his mid
abdomen to his face, with his skin red and blistering. Some of his skin had begun to
come off. The paramedics put Robinson on a gurney and put him into the ambulance,
pouring water on him to stop the burning and cool the skin. Robinson continued to
scream in pain. At the hospital, Robinson was immediately sedated and intubated to keep
his airway open. A police officer who responded to the scene found some clothes still
smoldering in the street, and Robinson’s jeans were on the sidewalk with his wallet in the
pocket, smelling of gasoline.
       A neighbor testified that she was awake and watching television at around
2:30 a.m. on April 11, 2009 and heard someone arguing outside. That “seemed like an
everyday occurrence,” as people were always arguing and yelling out there. She looked
out only when she saw light and flames through the window. A tall, heavy dark-skinned
man was “completely burned,” saying, “Oh God, oh God,” and trying to put the flames
out on the grass; his skin was melting. She called the police. She did not see anyone set
the man on fire, “just heard him and someone else arguing,” and although she did not
know much English, she heard very loud yelling and “some cuss words.” On cross-
examination, she explained she couldn’t say how many there were, but she heard men
arguing very loudly.
       Robinson testified that on April 11, 2009, he was visiting his father. Early that
morning, at 12:30 a.m. or 1:00 a.m., he had gone to a liquor store across the street.
Hardy, who Robinson had seen before, was standing in front of the store asking those

                                             3
entering for money. Hardy asked Robinson for money, and Robinson said, “Not today
bro.” Hardy kept panhandling, acting strange and talking to himself, “kind of a little
psychotic,” and seemed angry. Robinson bought a 12 pack and took it back to his
father’s house to have a few beers.
       Robinson returned to the liquor store and was hanging out in the parking lot with
some friends, including an acquaintance nicknamed Blue, who was working as a security
guard for the parking lot. Blue chased Hardy into the street. Hardy then returned to the
parking lot for 15-20 minutes before leaving. Robinson, who used to live in the area, had
seen Hardy pushing a shopping basket, and assumed he was homeless. Robinson had
never had a confrontation with Hardy, that night or at any other time.
       Robinson went back across the street and sat on the porch drinking beer. He left at
1:30 a.m. or 2:00 a.m. to go to a girlfriend’s house, and was walking down the street
alone when Hardy walked toward him. Robinson could hear people in the neighborhood
talking, and then he heard Hardy say, “‘I’m going to squash this’” once or twice. Hardy
had his hand behind his back, and when he got close to Robinson he pulled out a plastic
milk gallon and threw it at Robinson, and then turned and ran. The gallon contained
something like kerosene and was already lit.
       Robinson heard a boom and was engulfed in flames. The liquid hit his arms,
splashed his face, and ignited his clothes. When he breathed, he inhaled fire, and
although he tried taking his clothes off, the liquid was sinking into his skin and burning.
He ran to one house but found no water, and ran to another. A few people in the area
called 911. Robinson looked down and saw that his skin was falling off his arms.
       By the time the ambulance arrived, Robinson was hysterical. At the hospital, he
was unable to breathe and went into a coma. He was burned all over his face, torso, back,
and stomach. He remained in a coma for six to eight weeks, and then was on a breathing
machine. Robinson was in the hospital for three months, a rehabilitation center to learn
to walk again, and then continued with outpatient therapy. He was still in pain at the time
of trial, had undergone a number of surgeries, and might need more. He had trouble
breathing, his legs were weak, he no longer drove, and he was legally disabled.

                                             4
       Two and a half months later, Robinson was near Los Angeles County U.S.C.
Medical Center after leaving a doctor’s appointment, with his mother driving. As his
mother came back to the parked SUV with some chicken from a Popeye’s, Robinson
(who was in the passenger seat) saw Hardy “in the same state of mind and not paying
attention to what was going on.” Robinson told his mother “that’s the guy right there.”
She drove up by the store as Hardy walked in, and pulled over while waiting for him to
exit. Hardy came out, and put his hand out to beg for money. He did not recognize
Robinson through the tinted windows of the SUV. Hardy walked off and continued to
panhandle. Robinson called the police. His mother ran across the street to an officer on a
Segway, and told him, “‘We need to apprehend this guy.’” As Robinson’s mother came
back to the SUV, Hardy walked away.
       The police caught Hardy on a bridge some distance away, and then drove
Robinson (who was using a walker) in a police car to the bridge, where he identified
Hardy. Robinson was “120 percent” certain that Hardy was the person who set him on
fire. Robinson remembered from the night of the incident that Hardy “has a gap in his
mouth, a big gap,” and he noticed the gap in Hardy’s teeth again on the day Hardy was
arrested.
       Robinson admitted he had a 2008 felony conviction for selling cocaine. On cross-
examination, Robinson stated that on the night of the attack he had four or five beers at
his father’s house, and could have smoked “a couple joints.” Blue and another security
guard, not Robinson, had chased Hardy away from the store. Robinson did not recall
telling the police that Hardy had jumped out of the bushes at him as he walked down the
street (although there were bushes on the opposite sides of both streets), or that he
participated in chasing Hardy away from the liquor store. Robinson denied arguing with
anyone just before he was attacked.
       Los Angeles Police Department Lieutenant Michael Oppelt was the investigating
officer. On the morning of the attack, he attempted to interview Robinson, but was
denied access by medical personnel at the burn unit because Robinson was intubated and
unable to speak. Six weeks later, on May 26, he interviewed Robinson.

                                             5
       Robinson told Lieutenant Oppelt that an employee of the liquor store had told
Robinson and Blue to run off a transient who was outside harassing customers. They ran
the person off, and he came back. Robinson said the assailant came out of nowhere, and
told him, “they were going to settle it.” Robinson said the assailant came out of the
bushes as if “he was characterizing just the suddenness of it.” In his report, Lieutenant
Oppelt used quotation marks around the phrase “jump out of the bushes.” Robinson said
he did not know his assailant by name or otherwise. The police were never able to locate
Blue. Robinson described the suspect as “a black male . . . 37 to 40 years old, 6 feet tall,
190 pounds, with a gap in his teeth, always wears a black baseball cap and prescription
glasses.”
       The defense did not present evidence.
Jury request to view Hardy’s teeth
       During deliberations, the jury requested a readback of Lieutenant Oppelt’s
testimony “especially the part regarding the description mentioning bushes,” and the
court complied. The jury then asked to see Hardy “smile and stand up. They want to
confirm the gap in the defendant’s front teeth.” The defense objected: “that is additional
evidence that should have been presented to the jury before the people closed and before
argument. So essentially what they are asking is for additional evidence to be presented
to them.” The court agreed that it was new evidence, but “since it seems not to be
something that is subject to dispute, I’m going to allow it.” The court permitted both
counsel to reopen to present additional argument “based on the new evidence, which is
going to consist of the jury inspecting the defendant’s teeth.” The court also offered, in
the alternative, that counsel could stipulate that Hardy had a gap in his teeth, but counsel
declined.
       Hardy smiled for the court and counsel, and the court commented: “Now, from
the court’s perception, it appears that there is a large gap in the defendant’s upper front
teeth.” Counsel argued that the gap was from a missing tooth, and “the argument under
[Evidence Code Section] 352 is we don’t know when he lost that tooth. And now having
him display, over two years later, a missing tooth is prejudicial to him, because that

                                              6
evidence was not presented at the time of trial so that it could be refuted or contradicted
that this missing tooth occurred either while he was in jail or prior to him being arrested.”
The court responded that there was no Fifth Amendment privilege regarding a
defendant’s physical appearance, and allowed the evidence with argument by both sides.
“All I want to know is, once we bring in the jury and the alternates, that we are not going
to have a problem with the defendant opening his mouth, because then that would be, in
effect, another new type of evidence which would be a type of consciousness of guilt and
both sides could argue it.”
       After conferring with counsel, Hardy refused to cooperate or to be present before
the jury. The court stated that it would instruct the jury on withholding evidence, and
defense counsel objected to the instruction because the defense had not had the
opportunity to cross-examine Robinson about the location or size of the gap. The court
denied the objection.
       In the presence of the jury, the court explained that it had ordered Hardy to stand
up and open his mouth and he refused to do so or to be present. The court gave the
additional instruction: “If the defendant tried to hide evidence, that conduct may show
that he is aware of his guilt. If you conclude that the defendant made such an attempt, it
is up to you to decide its meaning and importance. However, evidence of such an attempt
cannot prove guilt by itself.” The prosecutor argued that Robinson testified that the
defendant had a gap in his teeth, Lieutenant Oppelt testified that Robinson described the
gap, and the defense had had the opportunity to cross-examine them both. Hardy’s
refusal was evidence of his guilt. Hardy’s counsel argued that Hardy cooperated when he
was detained and thereafter, and if the jury had a reasonable doubt whether he had a gap
in his teeth, the jury had a duty to acquit. The prosecution had the opportunity during
trial to ask Hardy to show his teeth, and Hardy’s refusal to cooperate now was not
necessarily evidence of guilt.
       The jury resumed deliberations. After asking for and receiving a readback of
Robinson’s testimony, the jury rendered a guilty verdict on all three counts and found the
allegation of great bodily injury to be true.

                                                7
The sanity phase
       Following Hardy’s admission of the truth of the enhancement allegations, a court
trial on his sanity began. The parties stipulated to the admission of a report by
Dr. Mark E. Jaffe, the defense psychiatrist. Dr. Jaffe’s report concluded that while Hardy
suffered from “Bipolar disorder, Polysubstance Dependence and Antisocial Personality
disorder,” he was not legally insane at the time of the crime. Hardy drank liquor daily
and used cocaine. Hardy also had a long history of psychiatric hospitalizations and had
attacked police and patients during his hospital stays. About two weeks before the crime,
he had been admitted on an involuntary hold and “was thinking of overdosing on
medication or burning an unspecified person.” Hardy believed Robinson had called him
a snitch and acted with the desire for revenge; “[e]ven if this were a delusion, it would
not provide justification for committing the controlling offense.” Further, Hardy ran
away after the crime and then denied any involvement, which showed that he understood
the wrongfulness of his action.
       The defense called as a witness Dr. Barry T. Hirsch, the prosecutor’s expert, and
moved Dr. Hirsch’s report into evidence.2 Dr. Hirsch testified that he had concluded that
Hardy acted out of vengeance. The standard for showing that a defendant was not guilty
by reason of insanity was that he did not know and understand the nature and quality of
his actions, due to a mental disorder. Hardy had been diagnosed with a variety of
different mental disorders, including paranoia and schizophrenia. Medication would


       2 The report concluded that Hardy “has a long history of functioning in a psychotic
manner,” and suffered from paranoid schizophrenia with auditory hallucinations
(including of a command type), which were exacerbated by abuse of alcohol and cocaine.
Nevertheless, “this disorder did not prevent him from having a state of mind that allowed
him to plan, in a goal directed manner, to allegedly engage in actions [fns. omitted]” that
threatened Robinson’s life and could cause Robinson great bodily injury. Dr. Hirsch
believed that Hardy “engaged in revenge motivated, retaliatory behaviors that were not
based upon present self-defense needs,” knowing that his behavior was morally wrong.
Hardy knew and understood the nature and quality of his acts, and was able to distinguish
whether they were right or wrong, at the time of the commission of the attack on
Robinson.

                                             8
reduce his symptoms. Hardy had been discharged from a psychiatric hospital on April 6,
2009, five days before his encounter with Robinson. Hardy had flammable materials
which he lit to set Robinson on fire, which required the ability to plan, and “planned,
goal-directed behavior . . . is not a hallmark of someone who is insane.” While Hardy
had stated he heard voices that commanded him to do certain things, he had also had an
altercation of some kind with Robinson, and after his discharge he proceeded with “a line
of behavior that is planned and goal-directed that is not in accord with the way psychotic
people generally function.” “[H]e made a plan to approach the man and dump an
accelerant on him, which he did.” Dr. Hirsch’s conclusion remained that Hardy was
legally sane at the time of the commission of the attack on Robinson.
       Hardy testified in his own behalf. After his release from prison in early 2009, he
suffered from depression and paranoia because he had not been properly medicated while
incarcerated. He had no medication in his system when he was admitted to the
psychiatric hospital in March 2009, where he stayed for eight days. He was struggling at
the time and stated: “I don’t know where I was at and what I was really doing.” When
he attacked Robinson with flammable liquid, he was “delusionary” and psychotic, and
could not say what led him to do it. Hardy stated: “I was not in my . . . right mind” and
further added: “I don’t know what was the purpose of it.” He was pushing his shopping
basket, and he had “these type of things in [his] basket.” He did not remember walking
down the street with a firebomb in his hand, but he did know how to make one from
watching “cowboy movies.” He probably had a confrontation with Robinson.
       In closing, Hardy’s counsel discounted Dr. Jaffe’s report and disputed the
conclusion of Dr. Hirsch’s report. The prosecution argued that both experts had reached
the conclusion that Hardy was legally sane at the time of the crime.
       The court concluded that the defense had failed to prove that Hardy was insane at
the time of the offense. Although Hardy had a mental disease or defect (paranoid
schizophrenia and antisocial personality disorder), the evidence showed that Hardy felt
picked on by Robinson and “he set the victim on fire in revenge or in retaliation to
‘squash this.’” Hardy “was capable of knowing or understanding the nature and quality

                                             9
of the act in question and . . . was capable of knowing and understanding that the act was
morally and legally wrong.”
                                       DISCUSSION
I.     Hardy’s due process rights were not violated by reopening evidence.
       Hardy argues that his due process rights were violated when the trial court
reopened the evidence in response to the jury’s request to see Hardy smile and stand up
“to confirm the gap in the defendant’s front teeth.” We disagree.
       The trial court has authority to order a case reopened for good cause even after
jury deliberations have begun. (§ 1094; People v. Green (1980) 27 Cal.3d 1, 42.) We
review the court’s decision for an abuse of discretion. (People v. Funes (1994) 23
Cal.App.4th 1506, 1520.) “[W]e consider the following factors: (1) the stage the
proceedings had reached when the motion was made; (2) the [party’s] diligence (or lack
thereof) in presenting the new evidence; (3) the prospect that the jury would accord the
new evidence undue emphasis; and (4) the significance of the evidence. [Citations.]”
(Ibid; People v. Jones (2003) 30 Cal.4th 1084, 1110.)
       First, the request to reopen came during the first day of jury deliberations, late in
the proceedings. The reopening came from a question by the jury, and the prosecution
did not object.
       Second, although the prosecution did not request that Hardy display his open
mouth to the jury during testimony, the prosecution cannot be charged with a lack of
diligence. Robinson testified that Hardy had a gap in his teeth and Lieutenant Oppelt
testified that Robinson described his assailant as gap-toothed.3 The defense did not
dispute that description, or attempt to show that Hardy did not match that description.
The prosecution could have reasonably taken the strategic view that proving the gap in
Hardy’s teeth was not pivotal to its case. Therefore, whether Hardy had a gap in his teeth

       3 We note that the jury merely asked to confirm the gap. Although Hardy was not
asked to show his teeth during trial, that omission does not necessarily mean that no one
on the jury observed whether Hardy had a gap in his teeth, although the jury’s request for
Hardy to smile indicates that his appearance was at least in dispute.

                                             10
at the time of trial was not an issue until the jury asked to see him smile. The court
reopened the evidence on its own initiative, without a request from the prosecution.
       Third, “‘one of the reasons underlying the requirement of diligence is that a jury
may accord undue weight to evidence which is admitted close to the time deliberations
begin.’” (People v. Funes, supra, 23 Cal.App.4th at p. 1521.) Because Hardy refused to
show his teeth, however, the jury could not have given undue weight to whether or not he
had a gap. Although respondent argues that as a result there was no actual new,
additional evidence and the case was not “reopened,” the judge’s decision to allow
reopening resulted in Hardy’s refusal and an instruction to the jury that his refusal served
as evidence of awareness of guilt. Before Hardy’s refusal, the court warned that if Hardy
did refuse, “another new type of evidence which would be a type of consciousness of
guilt” would result. The risk that the jury, already engaged in deliberating, would be
unduly affected by the implication that Hardy was aware of his guilt is real.
       Fourth, “we must consider the significance of the evidence to the issues at trial.”
(People v. Funes, supra, 23 Cal.App.4th at p. 5121.) The evidence of the gap in Hardy’s
teeth, while relevant, was not critical. (See ibid.) Robinson, who knew Hardy from
other, earlier contacts, had identified Hardy conclusively (at the time of Hardy’s arrest,
and at trial) without regard to his teeth.
       We conclude that the trial court did not abuse its discretion. The jury request was
late in the proceedings, but the prosecution did not seek to reopen and thus did not show a
lack of diligence. While Hardy’s refusal to show his teeth (resulting in the instruction on
consciousness of guilt) likely carried additional weight because it occurred during jury
deliberations, the evidence was only cumulative to the considerable evidence identifying
Hardy as Robinson’s assailant. Weighing these factors, it was within the trial court’s
discretion to reopen the evidence, particularly in response to a direct request by the jury.
       The trial was not thereby rendered fundamentally unfair, and it was not reasonably
probable that without the reopening, Hardy would have been acquitted. (See People v.
Partida (2005) 37 Cal.4th 428, 439.) Hardy’s due process rights were not violated.
Further, on direct appeal, Hardy’s claim of ineffective assistance of counsel fails. “If the

                                             11
record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an
appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.’” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Hardy
suggests his counsel should have attempted to recall Robinson for cross-examination.
The record does not reveal why counsel did not, nor was he asked to provide a reason. In
any event, there is a readily satisfactory explanation: cross-examination of Robinson
would have yielded little, given that as the judge observed Hardy did have a gap in his
teeth.
II.      The court did not err in failing to give jury instructions on mayhem, and any
error in failing to instruct sua sponte on voluntary manslaughter was harmless.
         Hardy argues that his due process rights were violated when the trial court denied
his request to instruct the jury on mayhem and assault with intent to commit mayhem,
and failed to sua sponte instruct the jury on attempted voluntary manslaughter. Hardy
made his request during the discussion of jury instructions, and the court refused stating:
“I don’t think that there is substantial evidence to believe that if the jury finds the
defendant guilty of anything that it’s going to find him guilty of anything less than
aggravated mayhem.” No due process violation occurred.
         “‘The court must instruct on a lesser included offense, even if not requested to do,
when the evidence raises a question as to whether all of the elements of the charged
offense are present and there is evidence that would justify a conviction of such a lesser
offense.” [Citations.]’ [Citation.]” (People v. Turner (1990) 50 Cal.3d 668, 690.) Weak
evidence will not suffice. (People v. Valdez (2004) 32 Cal.4th 73, 116.)
         “Aggravated mayhem requires proof the defendant specifically intended to
maim—to cause a permanent disability or disfigurement. [Citation.]” (People v.
Szadeziewicz (2008) 161 Cal.App.4th 823, 831.) Aggravated mayhem requires specific
intent to cause a disfiguring injury; by contrast, simple mayhem is a general intent crime,
requiring only general intent to cause the maiming injury. (People v. Newby (2008) 167
Cal.App.4th 1341, 1347; §§ 203, 205.)

                                              12
       The evidence did not justify a conviction of simple mayhem. Robinson testified
that after walking toward him muttering, “‘I’m going to squash this,’” Hardy threw a
gallon bottle of flaming liquid at Robinson from less than two feet away, lighting him on
fire, and then turned and ran. A jury could not find that Hardy did not have the specific
intent to maim or disfigure Robinson and instead engaged in an indiscriminate attack, so
as to be guilty of simple mayhem; instead, the evidence supported only a conclusion that
the attack was “directed and controlled,” for a finding of specific intent and aggravated
mayhem. (People v. Ferrell (1990) 218 Cal.App.3d 828, 835–836; People v. Lee (1990)
220 Cal.App.3d 320, 325.)
       Hardy does not attempt to explain how the evidence justified convicting him of
assault with intent to commit mayhem under section 220, subdivision (a)(1), so as to
require an instruction on that offense, and we see no justification for that instruction. The
only logical outcome of Hardy’s arms-length attack on Robinson with a gallon bottle of
flaming liquid was disfigurement, and the nature and extent of Robinson’s injuries
support only a conviction of completed aggravated mayhem.
       As to attempted voluntary manslaughter, Hardy argues that the neighbor’s
testimony that she heard men “arguing,” before she looked out her window to see
Robinson aflame, supported the giving of an instruction regarding voluntary
manslaughter under a theory that Hardy acted in a heat of passion or unreasonable self-
defense. The neighbor, however, testified that she heard arguing every day, that she
never saw Hardy outside, and she did not know how many men were arguing.
Nevertheless, her testimony is some evidence that the sound of arguing preceded the
attack on Robinson. While an instruction on attempted voluntary manslaughter may have
been appropriate, “the failure to instruct sua sponte on a lesser included offense in a
noncapital case . . . is not subject to reversal unless an examination of the entire record
establishes a reasonable possibility that the error affected the outcome.” (People v.
Breverman (1998) 19 Cal.4th 142, 165.) It is not reasonably possible that a jury would
have found Hardy guilty of attempted voluntary manslaughter rather than attempted
premeditated murder. The method in which Hardy set Robinson on fire—throwing from

                                             13
close range a prepared and lighted firebomb—is inconsistent with acting hastily in a heat
of passion or imperfect self-defense.
III.   Substantial evidence supported the finding that Hardy was not legally insane.
       Hardy contends that there was insufficient evidence to support the trial court’s
conclusion that he was legally sane. We disagree.
       When a defendant pleads not guilty and not guilty by reason of insanity, the trial
takes place in two phases. First, the issue of guilt is tried, and the defendant is presumed
sane. (§ 1026, subd. (a); People v. Guillebeau (1980) 107 Cal.App.3d 531, 542–543.) If
the defendant is found guilty, the issue of insanity is then tried separately to the same jury
or to a different jury, in the discretion of the trial court. (§ 1026, subd. (a); People v.
Phillips (1979) 90 Cal.App.3d 356, 362.) In this case, Hardy waived a jury on the sanity
phase of trial, agreeing to a court trial.
       “[A] defendant may suffer from a diagnosable mental illness without being legally
insane.” (People v. Mills (2012) 55 Cal.4th 663, 672.) To establish an insanity defense,
the defendant has the burden to prove that when he committed the offense, “he . . . was
incapable of knowing or understanding the nature and quality of his . . . act [or] of
distinguishing right from wrong.” (§§ 25, subd. (b), 29.8; People v. Skinner (1985) 39
Cal.3d 765, 768.) Insanity cannot be based upon an “abuse of or addiction to intoxicating
substances,” even if the substances caused organic damage or a mental defect or disorder
persisting after the immediate effects have worn off. (People v. Robinson (1999) 72
Cal.App.4th 421, 427.)
       We review a jury’s determination of sanity under the substantial evidence test.
(People v. Belcher (1969) 269 Cal.App.2d 215, 220.) Hardy had the burden of proving
by a preponderance of the evidence that he was insane; to overturn the court’s contrary
finding, “we must find as a matter of law that the court could not reasonably reject the
evidence of insanity.” (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.)
       Such is not the case here. Both the expert witnesses for the prosecution and for
the defense concluded that although he had been diagnosed with various mental
disorders, Hardy was legally sane at the time of the crime. Dr. Jaffe, the defense expert,

                                               14
concluded that Hardy burned Robinson in revenge for calling him a snitch, and his
running away after he threw the firebomb showed that he understood his actions were
wrong. Dr. Hirsch, the prosecution expert, concluded that Hardy planned his attack on
Robinson out of vengeance. Dr. Hirsch testified that although Hardy had been diagnosed
with a variety of mental disorders, he understood that his behavior was wrong. Hardy’s
own testimony that he was not in his right mind was self-serving, and he admitted that he
probably had a confrontation with Robinson.
       This is ample evidence to support the sanity finding. Two experts found Hardy
legally sane, contradicting and outweighing Hardy’s own testimony. We will not
overturn the court’s finding of sanity.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                JOHNSON, J.


  We concur:


                     MALLANO, P. J.


                     ROTHSCHILD, J.




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