Filed 3/24/16 P. v. Cook CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144404
v.
NATHANAEL JOSEPH COOK,                                               (Alameda County
                                                                     Super. Ct. No. 172254)
         Defendant and Appellant.


         Appellant Nathanael Joseph Cook1 stole a bicycle, fired several shots at a man
who tried to take the bicycle back, fled from police, pointed his gun at a passing motorist,
and hid between parked cars before firing several shots at a pursuing officer, hitting him
once in the leg. He was charged with numerous counts with special allegations, including
two counts of attempted murder with firearm use, and entered pleas of not guilty and not
guilty by reason of insanity. During the guilt phase of the proceedings, a jury convicted
appellant as charged and found all special allegations to be true. During the sanity phase,
the court directed a verdict in favor of the prosecution and found appellant to be sane.
         Appellant contends the trial court committed prejudicial error by (1) rejecting
instructions on attempted voluntary manslaughter based on imperfect self-defense as a
lesser included offense of the attempted murder counts; (2) denying his motion for an in


         1
         We note that appellant’s first name is spelled “Nathaniel” and “Nathanael”
throughout the record. It appears from pleadings and other reliable documentation that
the correct spelling is “Nathanael,” and we therefore adopt that spelling throughout this
opinion.


                                                             1
camera review of police personnel records under Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess); and (3) directing a verdict in favor of the prosecution on the
issue of insanity.2 We affirm.
                                   I. BACKGROUND
       A. Trial Evidence—Guilt Phase
       On the afternoon of January 25, 2013, Hector Arriola was walking his bicycle
along 48th Avenue in Oakland. Appellant forcibly took the bicycle and rode away.
Arriola’s friend, Jose Atunez, yelled at appellant, “Hey, what you doing” and said, “Hey,
the bike. The bike.” Appellant stopped, dismounted, pulled a black semiautomatic
handgun from his waistband, and fired several shots at Atunez from a distance of about
15 feet. None of the shots hit Atunez. Appellant abandoned the bicycle and ran toward
12th Street.
       Oakland Police Department officers were investigating a hit-and-run accident
nearby when they heard the gunshots. Officer D’Vour Thurston got into his patrol car
and followed appellant, who was running very quickly down 48th Avenue. Officer
Richard Holton followed in a separate patrol car. Appellant turned on East 12th Street
and ran north on 49th Avenue.
       Officer Thurston lost sight of appellant after he turned onto 49th Avenue. He
stopped his patrol car and started to get out to look for appellant, meanwhile updating
police dispatch on the developing situation. As soon as Thurston opened the driver’s side
door and placed his foot down on the street surface, appellant rose up from behind a
parked car and began shooting at him. Appellant fired five to eight shots, then tried to
fire more, but the gun appeared to be empty. One of the shots hit Thurston in the leg.
Though in great pain, Thurston chased appellant toward 50th Avenue. Thurston never
drew his service weapon or fired it during the pursuit.




       2
         In his reply brief, appellant has withdrawn a claim that the evidence was
insufficient to support one of the attempted murder convictions.


                                             2
       Officer Holton stopped his patrol car at the intersection of 49th Avenue and East
12th Street and saw appellant running away from Officer Thurston. He did not see
appellant fire his gun at Thurston. Thurston yelled at Holton to “get” appellant, and as
Holton gave chase, Thurston yelled at him to “shoot” appellant. As Holton began to
unholster his gun, he saw appellant draw a gun from his right waistband. Fearing that
appellant would shoot him or Thurston, Holton fired three shots at appellant but did not
hit him. Appellant tossed his gun to the ground and ran around to the back of a parked
car, lying on his back and placing his arms straight into the air. Backup officers soon
arrived, and appellant continued to lie on the ground and comply with the officers’
commands. Appellant understood the commands and offered no resistance. He said, “It
wasn’t me” and “It was a setup.”
       At some point during the chase appellant had passed a car driven by Robert Jordan
and pointed his gun at Jordan for five to ten seconds.
       A video surveillance camera captured part of the incident, including the shots fired
at Atunez. The tape was played for the jury.
       Appellant testified that he had been using drugs and alcohol since his early teens
and, after a period of sobriety, he was essentially homeless and using drugs again.
Sometimes he had panic attacks or became paranoid after using drugs. Since being
incarcerated for the charged offenses, appellant had taken psychotropic drugs including
lithium, Lexapro, Risperdal and Zoloft, which helped him think more clearly.
       On the day of the shooting, appellant smoked some marijuana and left the home of
his girlfriend to look for a place to stay. He was carrying a gun he had stolen for
protection because living on the streets was dangerous and he had been assaulted.
Appellant felt an intense paranoia, like someone was going to kill him, and he was
desperate to leave Oakland. When it started getting dark he panicked and took a bicycle
to get to the BART station. A man (Atunez) yelled at him, and appellant thought the man
had a weapon, so he dropped the bicycle and started to run. He was “panicked” and only
remembered about 10 percent of the incident. Appellant did not remember shooting at
Atunez. He did not remember seeing Atunez with a weapon. He did not remember


                                             3
running from the scene, hiding behind a car, or shooting a gun at a police officer. He
“vaguely remember[ed] being shot at,” but was only concerned for his safety and did not
mean to shoot or kill anyone.
       David Berke, Ph.D., a psychologist who interviewed appellant at the jail after he
was arrested for the offenses, testified on rebuttal that appellant admitted stealing a
bicycle, firing a gun at Atunez, and shooting at the police.
       B. Verdict
       The jury convicted appellant of the following offenses and special allegations:
attempted murder of D’Vour Thurston, a peace officer, with firearm and great bodily
injury allegations (Pen. Code, §§ 187, subd. (a), 664, subd. (e), 12022.5, subd. (a),
12022.53, subds. (b)–(d), (g), 12022.7; count one);3 assault with a semiautomatic firearm
upon D’Vour Thurston, a peace officer, with firearm and great bodily injury allegations
(§§ 245, subd. (d)(2), 12022.5, subd. (a), 12022.53, subds. (b)–(d), (g), 12022.7; count
two); shooting at a motor vehicle (Thurston’s patrol car) with firearm and great bodily
injury allegations (§§ 246, 12022.5, subd. (a), 12022.53, subds. (b)–(d), (g), 12022.7;
count three); attempted murder of Jose Atunez with firearm allegations (§§ 187, subd. (a),
664, subd. (a), 12022.5, subd. (a), 12022.53, subds. (b),(c) & (g); count four); assault
with a semiautomatic firearm on Jose Atunez with a firearm allegation (§§ 245, subd. (b),
12022.5, subd. (a); count five); robbery of Hector Arriola with firearm allegations
(§§ 211, 12022.5, subd. (a), 12022.53, subds. (b) & (g); count six); and brandishing a
firearm at Robert Jordan (§ 417, subd. (a)(2)).
       C. Sanity Phase and Directed Verdict
       The case proceeded to the sanity phase, at which time the defense did not call any
expert witnesses and appellant declined to testify. After hearing defense counsel’s
opening statement and ruling that evidence presented at the guilt phase would be
admissible on the issue of sanity, the court granted the prosecution’s motion for a
directed verdict in its favor and found appellant to have been sane as to all counts.

       3
           Further statutory references are to the Penal Code unless otherwise indicated.


                                               4
       D. Sentence Imposed
       The trial court sentenced appellant to a life term in prison for the attempted murder
of Officer Thurston, plus a consecutive term of 25 years to life for the most serious
firearm enhancement allegation attached to that count. (§§ 187, subd. (a), 664, subd. (e),
12022.53, subd. (d).) It imposed the five-year lower term for the attempted murder of
Atunez, plus 20 years for the most serious firearm enhancement allegation attached to
that count, with the sentence for the attempted murder of Atunez to be served consecutive
to the sentence for the attempted murder of Officer Thurston.4 (§§ 187, subd. (a), 664,
subd. (a), 12022.53, subd. (c).) Sentences on the remaining counts and allegations were
run concurrently or stayed pursuant to section 654.
                                      II. DISCUSSION
       A. Attempted Voluntary Manslaughter as a Lesser Included Offense
       Appellant argues the trial court committed prejudicial error when it refused his
request for jury instructions on imperfect self-defense and attempted voluntary
manslaughter as a lesser included offense of the two counts of attempted murder. We
disagree.
              1. General Principles
       Even without a request, a trial court must instruct the jury on general principles of
law that are closely connected to the facts before the court and that are necessary for the
jury’s understanding of the case, including all lesser included offenses supported by
substantial evidence. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833–834
(Szadziewicz).) The court need not instruct on a lesser included offense when there is no
evidence the offense was less than that charged. (Ibid.)



       4
        Although the trial court characterized the sentence for attempted murder of a
peace officer as “seven years to life,” the statutorily specified punishment for this crime
is “imprisonment in the state prison for life with the possibility of parole,” with appellant
becoming eligible for parole after seven calendar years. (See People v. Mejia (2008)
159 Cal.App.4th 1081, 1083, fn. 3, overruled on other grounds in People v. Sanchez
(2011) 53 Cal.4th 80, 90, fn. 3; § 3046, subd. (a).)


                                              5
       A person who kills or attempts to kill someone because he actually, but
unreasonably, believes he needs to defend himself from imminent death or great bodily
injury is deemed to have acted without malice. (People v. McCoy (2001) 25 Cal.4th
1111, 1116; In re Christian S. (1994) 7 Cal.4th 768, 783; Szadziewicz, supra,
161 Cal.App.4th at pp. 833–834.) “ ‘Unreasonable self-defense, also called imperfect
self-defense, “obviates malice because that most culpable of mental states ‘cannot
coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or
serious injury at the victim’s hand.” ’ ” (People v. Elmore (2014) 59 Cal.4th 121, 129–
130 (Elmore).) In such cases, the crime committed is manslaughter or attempted
voluntary manslaughter, not murder or attempted murder. (Szadziewicz, at p. 834.)
       Imperfect self-defense is not available in all cases in which a defendant presents
evidence he subjectively feared for his life. A defendant who, through his own wrongful
conduct, has created circumstances under which his adversary’s attack or pursuit is
legally justified may not invoke imperfect self-defense. (Szadziewicz, supra,
161 Cal.App.4th at p. 834.) Additionally, imperfect self-defense is unavailable where the
belief in the need to defend oneself is entirely delusional, a delusional belief being
properly addressed under the rubric of an insanity defense. (Elmore, supra, 59 Cal.4th at
p. 130.)
              2. Analysis
       Appellant was not entitled to an instruction on attempted voluntary manslaughter
based on imperfect self-defense because the evidence presented at trial did not support a
determination he feared imminent death or great bodily injury when he shot at Atunez
and Officer Thurston. Though appellant testified that he thought Atunez had a weapon
when Atunez approached him, he also testified that he did not remember firing his own
gun or seeing Atunez with a gun, and there was no evidence Atunez actually had a
weapon of any kind. With respect to Thurston, appellant testified, “I don’t remember that
incident, but I know for sure that I did not intend to shoot anybody, much less kill
anybody.” There was simply no evidence from which a reasonable jury could be
persuaded that appellant shot at either Atunez or Thurston in “ ‘the actual but


                                              6
unreasonable belief in the necessity to defend against imminent peril to life or great
bodily injury.’ ” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1165–1166.)
       Appellant testified that on the day of the shooting, he believed someone was going
to kill him. But, other than noting that Oakland can be a dangerous place, he did not
describe a belief in any specific facts that would give rise to a subjective fear of imminent
death or great bodily injury, and the fear he did describe was purely a product of his
paranoia. “[I]mperfect self-defense remains a species of mistake of fact [citation]; as
such, it cannot be founded on delusion. In our view, a mistake of fact is predicated upon
a negligent perception of facts, not, as in the case of a delusion, a perception of facts not
grounded in reality. A person acting under a delusion is not negligently interpreting
actual facts; instead, he or she is out of touch with reality. That may be insanity, but it is
not a mistake as to any fact.” (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437,
1453–1454.) “[U]nreasonable self-defense involves a misperception of objective
circumstances, not a reaction produced by mental disturbance alone.” (Elmore, supra,
59 Cal.4th at pp. 134–135, fn. omitted.)
       Even if the jury could have concluded that appellant subjectively feared for his
life, and that such fear was not purely the product of mental illness or delusion, he was
not entitled to invoke imperfect self-defense. The incident leading to both of the
attempted murder charges began when appellant robbed Arriola and took his bicycle.
Having witnessed this felony, Atunez pursued appellant in an effort to recover the bicycle
on behalf of Arriola, which he had the right to do so long as he did not use unreasonable
force. (See §§ 835 [reasonable restraint may be used in making an arrest]; 837, subds. 1
& 3 [arrest may be made by private person “[f]or a public offense committed or
attempted in his presence” or “[w]hen a felony has been in fact committed, and he has
reasonable cause for believing the person arrested to have committed it”]; People v.
Fosselman (1983) 33 Cal.3d 572, 579 [felon has no right to resist valid citizen’s arrest].)
Atunez did not use unreasonable (or any) force to stop appellant, but rather than
submitting to Atunez or returning the bicycle, appellant shot at him. Officer Thurston
had just heard shots and saw appellant running from a potential crime scene, giving him


                                               7
reasonable suspicion to detain appellant, but rather than submitting, appellant fled and
then shot the officer. Having created the circumstances under which Atunez and
Thurston were legally justified in pursuing him, appellant cannot invoke unreasonable
self-defense to mitigate his culpability for the shootings. (People v. Seaton (2001)
26 Cal.4th 598, 664; In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1; Szadziewicz,
supra, 161 Cal.App.4th at p. 823.)
       B. Denial of Pitchess Motion
       Appellant argues that the trial court erred by denying his Pitchess motion seeking
to discover information contained in the personnel records of three police officers.
Appellant argues the case should be remanded to the trial court to conduct an in camera
review of the records requested. (See People v. Hustead (1999) 74 Cal.App.4th 410,
421–423 [remedy for improper denial of Pitchess motion].) We reject the claim.
              1. General Legal Principles
       In Pitchess, supra, 11 Cal.3d 531, our Supreme Court recognized that a criminal
defendant may, under some circumstances, compel the discovery of information
contained in a police officer’s confidential personnel file that is relevant to the defense.
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick); People v. Mooc
(2001) 26 Cal.4th 1216, 1219.) These procedures have since been codified in the
Evidence and Penal Codes. (Mooc, at pp. 1219–1220.)
       Generally, peace officer personnel records “are confidential and shall not be
disclosed in any criminal or civil proceeding except by discovery pursuant to
Sections 1043 and 1046 of the Evidence Code.” (§ 832.7, subd. (a).) Section 1043 of the
Evidence Code requires a defendant to file a written motion for discovery of peace officer
personnel files that includes “[a]ffidavits showing good cause for the discovery or
disclosure sought, setting forth the materiality thereof to the subject matter involved in
the pending litigation . . . .” (Evid. Code, § 1043, subd. (b)(3).) Once good cause has
been established, the trial court must examine the material in camera to determine its
relevance to the case. (Evid. Code, § 1045.)



                                               8
       The affidavit in support of a Pitchess motion “must propose a defense or defenses
to the pending charges. The declaration must articulate how the discovery sought may
lead to relevant evidence or may itself be admissible direct or impeachment evidence
[citations] that would support those proposed defenses.” (Warrick, supra, 35 Cal.4th at
p. 1024.) A showing of good cause requires a defendant “to establish not only a logical
link between the defense proposed and the pending charge, but also to articulate how the
discovery being sought would support such a defense or how it would impeach the
officer’s version of events.” (Id. at p. 1021.) The affidavit must describe “a factual
scenario supporting the claimed officer misconduct,” but the defendant “need only
demonstrate that the scenario of alleged officer misconduct could or might have
occurred.” (Id. at pp. 1016, 1024–1025.) It is not the court’s role to weigh or assess the
evidence or to determine whether the scenario is reasonably probable or apparently
credible. (Id. at pp. 1025–1026.)
       “A motion for discovery of peace officer personnel records is ‘addressed solely to
the sound discretion of the trial court.’ ” (People v. Gill (1997) 60 Cal.App.4th 743,
749.) We review a trial court’s ruling for abuse of discretion. (Ibid.)
              2. Procedural Background
       The Pitchess motion filed by appellant sought the discovery of the police
personnel records of Officers Thurston and Holton, who were involved in the events
leading to appellant’s arrest, and Sergeant James Gantt, who was alleged to have
interviewed Officers Thurston and Holton regarding those events. The motion sought to
discover complaints and reports about “acts indicating or constituting racial or ethnic
prejudice, dishonesty, false arrest, illegal search and seizure, the fabrication of charges
and/or evidence, planting evidence, or any act demonstrating a morally lax character” as
well as “unnecessary acts of aggressive behavior, acts of violence and/or attempted
violence, acts of excessive force and/or attempted excessive force.”
       The initial affidavit filed by defense counsel in support of the Pitchess motion
alleged that appellant was Hispanic; all three police officers were African-American; a
federal district court in a separate proceeding had awarded damages for illegal detentions,


                                              9
arrests and searches by Officer Thurston and had determined he was not a credible
witness; and “Officer . . . Holton may be a percipient witness as will Sgt. Gantt as to the
results of the investigation.”
       A second affidavit submitted by defense counsel stated: “The evidence may show
that Officer Thurston’s [sic] failed to adequately identify himself as a police officer, that
he gave no warning before pulling his own weapon and aiming it in the general direction
of [appellant], and that [appellant] feared for his life, rightfully so after Thurston did so;
and that [appellant’s] actions were fully justified by Thurston’s illegal activity; Officer
Thurston was inadequately trained in how to conduct police business with mentally ill or
hearing impaired persons, that Thurston acted improperly due to this inadequate
training . . . that [Officer] Holton will lie and say he was [a] percipient witness and on the
scene when Officer Thurston so behaved; and that Holton is an employee of OPD
[(Oakland Police Department)] and will lie to protect his employer; that Sgt. Gantt is
specially trained by OPD to cover up illegal activity such as that by Officer Thurston; and
that instead of punishing Thurston, he is being allowed to retire on a full pension due to
his own illegal conduct.”
       A third affidavit detailed Officer Thurston’s pursuit of appellant after he heard
shots fired, as well as Officer Holton’s firing of three shots, and alleged that Thurston
told Holton to “Shoot that motherfucker[,] he just shot me.” “[T]he thrust of this case is
the stop and detention of [appellant] by first on the scene Officer Thurston; Officer
Thurston’s actions, and statements to [appellant] will be crucial to a defense that
[appellant] was either shot or mentally impaired due to [a] 5150 call; he was then
approached without due caution in a manner that constituted an improper stop under the
circumstances, and when [appellant] hid behind a car due to extreme fear of a man
jumping out of a car and running in his direction, he perceived the man to be increasingly
threatening by drawing a weapon, and [appellant] responded, perhaps imperfectly. . . on
self-defense shot first. [Sic.] The officer did not identify himself as a police officer nor
did he ask for appropriate medical help for [appellant].” The affidavit asserted that



                                              10
Thurston, Holton, and Gantt “will be motivated to paint a picture with testimony, that
[appellant] initiated the incident without justification; the opposite is true. . . .”
       The court held a hearing on the Pitchess motion. After a thorough discussion with
defense counsel concerning the facts of the case and the nature of appellant’s proposed
defense, the court determined the allegations in the affidavits did not supply good cause
for disclosure of the police personnel records. It denied the Pitchess motion without
prejudice, and the motion was not renewed.
               3. Analysis
       The trial court did not abuse its discretion in concluding there was no good cause
for disclosure of the police personnel records sought by appellant. We observe at the
outset that while the affidavits suggested the three African-American officers might have
a bias against appellant, who is Hispanic, nothing in this case hints that race or ethnicity
were factors in the decision to pursue appellant.5
       Although the Pitchess motion and supporting affidavits repeatedly assert that
Officer Thurston had a history of making unreasonable detentions, arrests and searches,
the misconduct alleged in this case was Thurston’s approach “without due caution” of a
mentally ill suspect who had just fired a gun, at which point the suspect (appellant) shot
Thurston. The initial gunshots and appellant’s flight from the area gave Thurston
sufficient cause to pursue appellant and use reasonable force if necessary to detain him.
Approaching appellant “without due caution” would not be a defense to the attempted
murder or assault charges involving Thurston. Moreover, the affidavits do not explain
how Thurston could have been expected to know that appellant was mentally ill, or how
he could have taken a different course of action to avoid the confrontation, other than
giving up the chase and allowing appellant to escape. (See People v. Thompson (2006)
141 Cal.App.4th 1312, 1316 [Pitchess motion properly denied in case where affidavit did
not “present a factual account of the scope of the alleged police misconduct” or explain


       5
         Officer Thurston testified at trial that he had broadcast a description of the
fleeing suspect as a “light-black male” rather than Hispanic.


                                               11
the defendant’s actions in a manner that supported his defense].) Any prior misconduct
by Thurston or deficiencies in his training were immaterial given the nature of the
charges against appellant and the circumstances of the case.
       The allegations were even weaker with respect to Officer Holton and Sergeant
Gantt. The affidavits did not allege any specific misconduct by these officers, but made
only speculative assertions that by virtue of their employment with the Oakland Police
Department, they would lie to cover up any illegal activity by Officer Thurston. These
allegations fall short of establishing a “plausible factual foundation” of police
misconduct, such that the discovery sought was material to the litigation. (See City of
San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146–1147.)
       Even if we were to conclude the affidavits demonstrated good cause for an in
camera review of the officers’ personnel records, the failure to conduct such a review was
harmless. Officer Holton testified at trial that he did not see the events leading to
appellant shooting Officer Thurston, so the speculation in the Pitchess motion that he
would lie to protect Thurston was not borne out. Sergeant Gantt did not even testify at
trial. Thurston’s testimony that he was essentially ambushed by appellant while getting
out of his patrol car was not contradicted and there was no evidence suggesting he
unlawfully detained appellant or used unreasonable force in effecting a detention or arrest
so as to warrant appellant’s use of deadly force to resist. Even if we assume the
personnel records contained some matter that might have been admissible to impeach the
testifying officers’ general credibility or show a lack of proper training in approaching
mentally ill subjects, there is no reasonable probability appellant would have obtained a
more favorable outcome had those records been disclosed. (See People v. Samuels
(2005) 36 Cal.4th 96, 110.)
       C. Directed Verdict on Sanity
       Appellant finally argues the case must be remanded for a new trial on the issue of
sanity because the trial court erred in granting a directed verdict in favor of the
prosecution. We disagree.



                                              12
              1. Procedural Background
       After the case was submitted to the jury at the conclusion of the guilt phase,
appellant advised the court he was dissatisfied with his defense counsel and the court held
a hearing to consider appointing substitute counsel under People v. Marsden (1970)
2 Cal.3d 118. The court denied the motion and appellant does not challenge that ruling in
this appeal. At the commencement of the sanity phase, appellant would not talk to his
defense counsel and indicated he wished to speak to the court about testifying. The court
explained that the burden of proof was on appellant to show insanity by a preponderance
of the evidence (“more likely than not”), that it was up to appellant to decide whether to
take the stand, and that if he did not take the stand the jury could consider evidence from
the guilt phase to determine whether he was insane at the time of his crimes, assuming
there was sufficient evidence of insanity for the case to go to the jury.
       After the court spoke to appellant, defense counsel gave her opening statement to
the jury. Appellant declined to testify and counsel did not call any other witnesses. The
court indicated it would allow the jury to consider evidence presented during the guilt
phase of the trial, and the prosecutor made a motion for a directed verdict, arguing the
guilt phase evidence would not support a determination that appellant was legally insane
when he committed the offenses. The trial court granted the motion.
              2. General Principles
       “ ‘ “The test of legal insanity in California is the rule in M’Naghten’s Case (1843)
10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722], as adopted by the electorate in
June 1982 with the passage of Proposition 8. That measure added section 25,
subdivision (b) [to the Penal Code], which provides: ‘In any criminal proceeding . . . in
which a plea of not guilty by reason of insanity is entered, this defense shall be found by
the trier of fact only when the accused person proves by a preponderance of the evidence
that he or she was incapable of knowing or understanding the nature and quality of his or
her act and of distinguishing right from wrong at the time of the commission of the
offense.’ Despite the use of the conjunctive ‘and’ instead of M’Naghten’s disjunctive
‘or,’ this court has interpreted the statute as recognizing two distinct and independent


                                             13
bases on which a verdict of not guilty by reason of insanity might be returned.” (People
v. Lawley (2002) 27 Cal.4th 102, 169–170, fn. omitted.) “The incapacity must be based
on a mental disease or defect even though that requirement is not specifically mentioned
in [section] 25, subd[ivision] (b).” ’ ” (People v. Blakely (2014) 230 Cal.App.4th 771,
774 (Blakely).)
       Section 29.8 (formerly section 25.5) provides the following limitation on an
insanity defense: “In any criminal proceeding in which a plea of not guilty by reason of
insanity is entered, this defense shall not be found by the trier of fact solely on the basis
of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of,
intoxicating substances.” “This limitation has been interpreted to establish ‘an absolute
bar prohibiting use of one’s voluntary ingestion of intoxicants as the sole basis for an
insanity defense, regardless of whether the substances caused organic damage or a settled
mental defect or disorder which persists after the immediate effects of the intoxicant have
worn off.’ [Citation.] Thus, there can be no insanity defense when the inability to tell
right from wrong derived (1) solely from an addiction or abuse of intoxicating
substances, or (2) from a mental defect or disorder that itself was caused solely by such
addiction or abuse.” (People v. Cabonce (2009) 169 Cal.App.4th 1421, 1433–1434, fn.
omitted, italics added by Cabonce.)
       A trial court has the inherent ability to direct a verdict and remove an insanity
defense from the jury when there is no evidence to support it. (Blakely, supra,
230 Cal.App.4th at p. 775; People v. Severance (2006) 138 Cal.App.4th 305, 315–318
(Severance); People v. Ceja (2003) 106 Cal.App.4th 1071, 1089.) This is because “[a]
plea of not guilty by reason of insanity ‘is a statutory defense that does not implicate guilt
or innocence but, instead, determines “whether the accused shall be punished for the guilt
which has already been established.” ’ ” (Blakely, at p. 775.) Taking the issue of sanity
away from the jury does not violate the federal constitution. (Severance, at p. 318.)
       We review de novo a directed verdict on the issue of sanity. (Severance, supra,
138 Cal.App.4th at p. 319.) “ ‘A nonsuit or a directed verdict may be granted “only
when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to


                                              14
which it is legally entitled, herein indulging in every legitimate inference which may be
drawn from that evidence, the result is a determination that there is no evidence of
sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were
given.” ’ ” (Blakely, supra, 230 Cal.App.4th at p. 775.) “[W]e do not look for substantial
evidence in support of the trial court’s ruling that defendant was sane; rather, we look for
substantial evidence from which the jury reasonably could have found defendant was not
sane. If we find such evidence, then a directed verdict of sanity was improper.”
(Severance, supra, 138 Cal.App.4th at p. 320.)
              2. Analysis
       Appellant argues that a reasonable jury could have determined from his testimony
during the guilt phase that he was legally insane when he committed the charged
offenses. He notes that he chronicled a long history of substance abuse resulting in
paranoia, delusions, hallucinations and panic attacks, and testified that psychotropic
drugs administered in jail had alleviated these symptoms. In particular, appellant
described feelings of paranoia on the day of the shooting and an overwhelming desire to
leave Oakland because he believed someone was going to kill him.
       We are not persuaded. Appellant’s testimony would support a determination he
suffered from a mental disease or defect that caused him to be paranoid. But no
substantial evidence was presented that as a result of this mental disease or defect,
appellant was incapable of “knowing or understanding the nature and quality of his acts”
or “distinguishing right from wrong” at the time he committed his crimes. (Blakely,
supra, 230 Cal.App.4th at p. 779.) Appellant never testified to this effect and no expert
witness offered an opinion regarding appellant’s mental state, much less an opinion that
he was insane at the time of the offenses. (Ibid. [directed verdict for prosecution properly
granted on issue of sanity where defendant did not testify that what he was doing was
morally correct or that he did not understand the difference between right and wrong and
the only expert to testify did not form an opinion].) As in Severance, supra,
138 Cal.App.4th at page 323, in which the court upheld a directed verdict on the issue of
sanity, “the evidence simply did not speak to that point.”


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       Nor was any evidence presented from which a jury could determine that appellant
suffered from a mental disease or defect that was not the product of addiction or the use
of intoxicating substances. The only mental health professional called as a witness
during the guilt phase was Dr. Berke, and his testimony on rebuttal was limited to
describing prior interview statements made by appellant that tended to show appellant
remembered the shootings, contrary to his testimony at trial. Appellant testified that he
had used a number of different drugs from the time he was a teenager, and indicated his
paranoia had set in when he started using crack cocaine. He also described having
delusions and hallucinations “[o]nly when I was on drugs and up for a few days.”
       The recent decision in People v. Leeds (2015) 240 Cal.App.4th 822 , to which
appellant directs our attention, is inapposite. In Leeds, five mental health professionals
testified that the defendant had been insane when he committed four murders because he
had been operating under a delusion that the victims were part of a Mexican drug cartel
that wanted to kill him. (Id. at p. 827.) The jury found the defendant sane as to all four
counts, but the appellate court reversed as to one count for which evidence was presented
that the defendant shot the victim in response to a perceived imminent lethal threat. The
court concluded the jury instructions were erroneous because they suggested the
defendant’s belief in an imminent threat must be reasonable for the insanity defense to
apply, whereas the appropriate question was whether, due to his mental disease or defect,
the defendant actually believed he was in imminent danger of suffering death or great
bodily injury. (Id. at pp. 832–833.) The analysis in Leeds, which involved an
instructional error in a case where five experts testified the defendant was insane, does
not assist appellant in his effort to show that the evidence in his case was sufficient to
withstand a directed verdict.
                                    III. DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 NEEDHAM, J.


We concur:


_________________________
SIMONS, Acting P.J.


_________________________
BRUINIERS, J.




(A144404)


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