Filed 11/25/13 P. v. O’Rourke CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062132

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN283429)

BRENDAN LIAM O'ROURKE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Aaron

Katz, Judge. Affirmed.


         Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

         Brendan Liam O'Rourke, who suffers from a mental illness causing delusions,

opened fire at an elementary school. At the guilt phase of his trial, the jury found him

guilty of numerous counts of premeditated attempted murder and other offenses.
Defendant raises no challenges to the guilt phase verdict. At the sanity phase of his trial,

the jury rejected his claim of not guilty by reason of insanity. On appeal, he argues the

record does not support the jury's sanity phase verdict. We reject this contention and

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

                                         Guilt Phase

          On October 8, 2010, defendant went to an elementary school during the lunch

recess when there were many children on the playground. He had a gun in one hand and

a gas can in his other hand. As he walked across the playground, defendant said "This is

just a drill. These are not real bullets." He then started shooting at the children. As the

children ran away from him, he chased them and continued shooting at them. When a

noon duty employee confronted him, he pointed the gun at her and she heard it click.

When the gun did not fire, defendant put down the gas can and tried to reload the gun.

School employees continued to direct children to run to safety into classrooms. When a

campus monitor approached defendant and asked, "What the hell are you doing?"

defendant responded, " 'This is a drill, and these are blanks.' "

          Several construction workers at the school intervened in the incident. Defendant

was still trying to reload his weapon, and the workers were trying to corner him and

yelling at him to stop and put the gun down. Defendant aimed the gun at the workers and

moved towards them. A worker heard the gun click. Another worker was moving crying

children inside the jobsite to get them away from defendant. Defendant starting running

away across a field; he continued trying to load his gun as he was being chased by the

                                               2
construction workers. Defendant exited the playground by climbing over a fence, and

went towards his vehicle. Meanwhile, a construction worker ran to his truck, drove by

defendant's vehicle, and told defendant to stop and put the gun down. When defendant

pointed his gun at the construction worker, the worker ran into defendant with his truck.

The workers kicked and hit defendant, grabbed the gun, and held defendant until the

police arrived.

       Defendant had ammunition and a gun speedloader in his jacket pockets. There

was a propane tank on the sidewalk by defendant's vehicle. Defendant's gas can, along

with long matches, were found on the school grounds. An FBI bomb technician testified

that a gas can, matches, and a propane tank are common materials used to create a large

"fireball" explosion; i.e., by spreading the gas on the ground, lighting the gas, putting the

propane tank in the middle of the gas, and then shooting the propane tank.

       During the incident, witnesses observed that defendant looked "crazed," "distant,

far-off" and "disconnected." He was yelling "something about Christians," and " 'Fuck

Barack Obama' "; " 'Kill Obama' "; " 'Kill all the little fags' "; and " 'Fuck A.I.G.' "

       Two children suffered nonfatal gunshot wounds from the attack. The jury

convicted defendant of numerous counts of premeditated attempted murder and assault

with a firearm, with true findings on personal firearm use and great bodily injury

enhancements.

                                         Sanity Phase

       Four psychiatrists (Drs. Jaga Glassman, Richard Rappaport, David Naimark, and

Park Dietz) testified at the sanity phase of the trial. These experts summarized

                                               3
defendant's history of mental illness and his expressed motivations for the attack, and

opined on the issue of his sanity at the time of the offense. All the doctors agreed that at

the time of the offense defendant suffered from a serious mental illness involving

delusional beliefs. There was also no dispute that he understood the nature and quality of

his acts, and that he understood his acts were legally wrong. However, the experts were

not unanimous on whether defendant understood his acts were morally wrong. Dr. Dietz

(retained by the prosecution) opined defendant understood the immorality of his conduct,

whereas the other three doctors opined he did not.1

       Evidence presented at the sanity phase showed that defendant had long-standing

delusions that members of a conspiracy were persecuting him, including by torturing him,

holding him captive in a basement, threatening his life, preventing him from dating

younger women, making false claims that he had committed rape, and telling women that

he was homosexual. In the months prior to the offense, defendant sent e-mails to his

half-brother (Larry) and made lengthy journal entries that set forth his beliefs and

perceptions. In these writings, as well as in his statements after the offense, he stated that

the members of the conspiracy (who were part of "AIG insurance" and the "Illinois

Underground Political Weathermen") did not trust him because he knew about their illicit

activities; they thought he might "narc" on them; the only way he could escape their

persecution was to join them and commit a horrible terrorist act so that he would be




1      Drs. Glassman and Naimark were appointed by the court, and Dr. Rappaport was
hired by the defense.
                                         4
discredited; and he had decided that he had no choice but to commit a terrorist attack in

order to stop the persecution and to save and improve his life.

       In 2009 and 2010, defendant sent e-mails to Larry stating he needed to commit a

"horrible act against rich people . . . ." and he intended to join the "Illinois Underground

Political Weathermen to go around and slaughter rich people's families. . . ." In a March

5, 2009 e-mail, he told Larry that "his two options were to join the Peace Corps and help

humanity, where he . . . might meet a nice young woman, or to do a horrible criminal act

for the organization so they will no longer file false rape and/or sexual harassment

claims, harass or torture [him], and [he] can lead a successful life." In another e-mail,

defendant wrote that he "was being harassed to commit . . . a horrible act . . . for the

Illinois Underground Political Weatherman terrorist organization by taking someone

else's happiness away from them and that doing so could give him happiness and

success." In a February 5, 2010 diary entry, defendant wrote that a neighbor told him that

"AIG Insurance and Illinois Political Weatherman . . . will be watching him . . . to make

sure [he] commit[s] the act of terror for them . . . by . . . killing Christian elementary

school children." The journal entry states that he should put gas grill propane tanks under

elementary school buses; shoot a flare gun at the propane tank to mark it; shoot the flare

on the tank with a gun; and if the school bus does not explode he should shoot the

children and pour gasoline on them.

       In a July 25, 2010 e-mail to Larry, defendant wrote: "I'm going to join AIG

insurance and destroy people's lives, and I will get paid for it. By me destroying

American citizens' lives, I will be exposing AIG insurance and Illinois politicians in the

                                               5
news for what they are all about, and that is cocaine and corruption for the money . . . ."

In August 2010, defendant received a 60-day eviction notice to vacate his apartment, and

he wrote in his diary that he believed the conspirators had caused this problem.2 In an

August 24, 2010 e-mail to Larry, he wrote that a woman must have filed a false rape

claim with his apartment manager; it looked like AIG insurance was determined that he

commit the terrorist attack because they were continuing to file false rape claims against

him and making sure no women would date him; and he had no other choice now but to

commit the terrorist attack.

       In a diary entry, defendant wrote that if he committed the terrorist attack he would

be able to collect unemployment from Illinois and California and receive a "lavish

retirement" because "everybody who does crimes on behalf of the Illinois' corrupt

politicians gets taken care of." In an August 30, 2010 e-mail to Larry, he wrote: "you

were the one who said if you could not beat them, then join them. Therefore, that is

exactly what I am going to do. I want to destroy some lives, in fact many lives, and laugh

in their faces while being paid by AIG insurance and Illinois political Weathermen,

because life is all about [greed], money, cocaine, torture, and corruption . . . ." In a

September 27, 2010 e-mail to Larry, he wrote: "once I do what AIG insurance and the

Illinois Political Weathermen tortured me to do, then they will pay me handsomely for

doing it and they will leave me alone. Like you said, if you can't beat them, then join




2     He was being evicted from his apartment due to repeated complaints of
harassment from his neighbors.
                                          6
them, because in this cruel world called life, there is no justice at all, and the only thing

that pays is crime . . . ."

       While at the police station after his arrest on October 8, 2010, defendant told the

police he went to the school to "kill white Christian children in an act of terrorism,

intending to blow up a school bus occupied by children." Defendant told detectives that

there were Illinois political leaders involved in cocaine trafficking, corruption, and fraud;

they did not trust him and thought he would "narc on them"; and these political leaders

(and persons associated with AIG insurance) told him to commit a "terrorist act" so they

"would have nothing against [him] and they would leave [him] alone." He told detectives

he was directed "by AIG and Illinois political Weatherman" to commit the attack to send

a message; he "just didn't want to be tortured no more"; and he "figured no one would

help" him. When a detective asked if he thought what he did was wrong, he said, "I had

no choice. I was tortured and harassed for years . . . ." During a jail psychiatric

evaluation the day after the attack, defendant reiterated that he "was trying to commit a

terrorist attack and kill white Christian children . . . ." On October 12, 2010, when asked

by Secret Service investigators if he knew he could have killed children, he answered that

he did not care and he carried out the attack to stop the harassment and torture.

       After personally examining defendant and reviewing his history and writings, Dr.

Dietz assessed that defendant thought he was "doing the bidding of a group he thought of

as a terrorist organization, and he saw them as urging him to commit a terrorist act so that

he would be discredited and would be unable to narc on them by telling the authorities of

their crimes." Dr. Dietz testified that defendant "felt as though he could not escape the

                                               7
persecution from these delusional persecutors and that the way to get them off his

back . . . was to commit some terrorist act or horrific crime at their behest. And the

reason that would get them off his back is that once he was declared a felon or thought to

be crazy, that he would be discredited and so they wouldn't have to worry that he'd tell

the authorities about their wrongdoing."

       Dr. Dietz opined that defendant knew his acts were morally, as well as legally,

wrong. Dr. Dietz testified that in the months prior to the offense even though he was

experiencing daily delusions of persecution, he nevertheless made statements indicating

that he had "sufficient moral reasoning to know that it's wrong to hurt children." For

example, he addressed moral and ethical issues in papers he wrote for college classes,

including expressing concern for children in the community. In the same year of the

offense, he repeatedly told a coworker that "anyone who hurts children is a coward and

ought to be killed." Dr. Dietz opined that although these statements did not necessarily

illuminate his moral reasoning at the time of the offense, they showed that "his moral

reasoning in general remained intact despite his delusional beliefs."

       Dr. Dietz also testified that defendant showed he was engaging in moral

judgments when he made numerous statements, both before and after the offense,

referring to the conspirators as part of a terrorist organization, and characterizing his

conduct as a horrible terrorist act. When he mentioned to his half-brother in March 2009

that his two options were the Peace Corps or doing a horrible criminal act, this showed he

understood there was a choice between doing good deeds or a horrible criminal act.



                                              8
       Dr. Dietz noted that defendant continued to use language of moral condemnation

in his February 2010 diary entry describing his anticipated conduct as an "act of terror,"

and in his August 2010 e-mail stating he had no other choice but to commit the terrorist

act. His two e-mails in August and September 2010 shortly before the offense—stating

that he planned to destroy lives and laugh in their faces while being paid because the only

thing that pays is crime—reflected that he was "resigning himself to becoming a terrorist,

to becoming a criminal, to harming people, to doing bad things that he doesn't believe are

morally right, he knows they're morally wrong, in order to escape his persecutors." Also,

when interviewed by the authorities after the offense, he described his conduct as a

terrorist attack, and upon inquiry he did not deny his conduct was wrong but instead said

he had no choice. According to Dr. Dietz, defendant's statement that he did not care if he

could have hurt children reflected that even though he knew his conduct was legally and

morally wrong, "he thought that it was worth it if it would make things better for him."

       Unlike Dr. Dietz, the three other testifying psychiatrists opined that defendant did

not know that his conduct was morally wrong because he believed that conspirators had

forced him to engage in the terrorist attack; he would be killed if he did not commit the

attack; the attack was the only way to stop the torture he was enduring; and anyone in a

similar circumstance would have done the same thing to try to be freed from the torture.

       The jury rejected defendant's insanity defense, finding him sane at the time of the

offenses. The court sentenced him to a determinate term of 90 years and an

indeterminate term of 99 years to life.



                                             9
                                      DISCUSSION

       Defendant argues the jury could not reasonably reject the evidence that he was

insane when he committed the attack at the school. In support, he contends there was

uncontradicted evidence that he had a mental defect that produced delusions of

persecution, and he believed the attack was the only way to stop the persecution. He

acknowledges he knew the attack was legally wrong, but argues he carried his burden to

show he did not know it was morally wrong.

       A person is legally insane when due to a mental disease or defect, the person was

" 'incapable of knowing or understanding the nature and quality of his act or incapable of

distinguishing right from wrong at the time of the commission of the offense.' " (People

v. Coddington (2000) 23 Cal.4th 529, 608.) The concept of " 'wrong' " includes both

legal and moral wrong; thus, a person " 'who is incapable of distinguishing what is

morally right from what is morally wrong is insane, even though he may understand the

act is unlawful.' " (Ibid.) Morality in the context of the insanity defense means generally

accepted moral standards, and not distorted standards devised by the accused. (Id. at pp.

608-609.) Thus, a "defendant is sane if he knows his act violates generally accepted

standards of moral obligation whatever his own moral evaluation may be." (People v.

Stress (1988) 205 Cal.App.3d 1259, 1274.) The defendant bears the burden of proving

insanity by a preponderance of the evidence. (Coddington, supra, at p. 608; Pen. Code,

§ 25, subd. (b).) On appeal, we apply the substantial evidence test, drawing all

reasonable inferences in favor of the judgment. (People v. Chavez (2008) 160

Cal.App.4th 882, 891; People v. Belcher (1969) 269 Cal.App.2d 215, 220.) We may not

                                            10
reject the jury's sanity finding unless "as a matter of law [the jury] could not reasonably

reject the evidence of insanity." (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.)3

       The record supports the jury's finding that defendant understood the immorality of

his conduct at the time of the offense. Although the evidence showed he thought he had

to commit the acts to stop the persecution he believed he was suffering, the jury was not

compelled to find that he did not understand that it was immoral to shoot at innocent

people at an elementary school, including children, notwithstanding his desperation to

free himself from the perceived persecution. When writing and talking about the offense

before and after its commission, he repeatedly described it as a horrible terrorist attack

and stated he was doing it to save himself and improve his life. Because defendant stated

that the attack was horrible and that his motive for committing the attack was to protect

himself, the jury could reasonably infer that he understood the immorality of his decision

to jeopardize the lives of innocent people in order to save himself.

       This is not a case where a defendant attacked his perceived persecutors; rather,

defendant attacked people at an elementary school with no indication that he thought they

had anything to do with his suffering. Nor is this a case where the defendant's thought

3       Defendant's contention that traditional substantial evidence principles do not apply
to sanity verdicts is unavailing. Statements by reviewing courts that focus appellate
review on the weight of the insanity evidence, rather than on the evidence in support of
sanity, do not alter these principles, but merely underscore that the prosecution need not
establish sanity. (See, e.g., People v. Drew (1978) 22 Cal.3d 333, 351 ["The prosecution
presented no evidence at the sanity trial. Defendant, however, has the burden of proof on
the issue of insanity; if neither party presents credible evidence on that issue the jury
must find him sane. Thus the question on appeal is not so much the substantiality of the
evidence favoring the jury's finding as whether the evidence contrary to that finding is of
such weight and character that the jury could not reasonably reject it."]; People v.
McCarthy (1980) 110 Cal.App.3d 296, 300.)
                                               11
processes were essentially focused on committing a crime to serve some greater public

good that could provide subjective moral justification for the misconduct. Given

defendant's repeated acknowledgement that his conduct was horrible and terroristic and

that he was acting to save himself, the jury could reasonably conclude that he knew his

conduct was morally wrong because he was acting to protect himself without regard to

the severe trauma inflicted upon innocent people, including children.4 Moreover, even if

the jury thought that defendant sincerely believed he was acting to expose corruption and

to save his life, the jury could also find that his recognition of the horrific nature of his

conduct reflected his understanding that under generally accepted moral standards, the

exposure of corruption and even the saving of one's own life would never justify opening

fire on innocent children at an elementary school.

       To support his challenge to the jury's rejection of his insanity claim, defendant

asserts Dr. Dietz's opinion that he knew his act was morally wrong was not based on

sound reasoning. He delineates various aspects of Dr. Dietz's testimony that he finds

deficient for a variety of reasons. We are not persuaded. As set forth above, Dr. Dietz's

opinions were well reasoned and supported by the evidence. Further, the record does not

support defendant's contention that Dr. Dietz's testimony failed to differentiate between

4       Some of defendant's statements could suggest that he felt his terrorist act would
expose the corruption he perceived was being committed by his persecutors.
Notwithstanding this evidence, the jury was not required to conclude that his driving
motive was a selfless intent to expose corruption. Rather, the jury could reasonably find
that his repeated statements that he wanted to stop the persecution being inflicted upon
himself showed that he felt he was acting primarily for his own interests and not for the
greater common good. Indeed, one of the experts who opined defendant was insane
conceded that defendant did not think he was acting for a higher purpose apart from his
own interests.
                                             12
the moral component and the legal component of the right/wrong awareness standard.

Dr. Dietz frequently focused his opinions on whether defendant understood the

immorality of his conduct, and he did not simply address in unitary fashion the question

of defendant's awareness of the wrongfulness of his conduct.

       It was the jury's task to evaluate the experts' differing opinions, and the jury was

not required to reject Dr. Dietz's reasoned opinion merely because three other experts

disagreed with him. (People v. Wolff (1964) 61 Cal.2d 795, 804 ["if there is substantial

evidence from which the jury could infer that the defendant was legally sane at the time

of the offense such a finding must be sustained in the face of any conflicting evidence,

expert or otherwise, for the question of weighing that evidence and resolving that conflict

'is a question of fact for the jury's determination' "]; People v. Chavez, supra, 160

Cal.App.4th at p. 891 [jury may reject expert opinion on insanity unless defendant

demonstrates it "was of such weight that the jury could not reasonably reject it"].)

       In support of his assertion the jury could not reasonably reject his insanity claim,

defendant points to his various statements that reflected his sense of desperation. For

example, he cites his statements to Dr. Dietz, "I had nowhere else to go," and to a police

officer, " 'What was I supposed to do, Dude?' " and contends these statements

demonstrated his inability to distinguish moral right from wrong by showing that he

thought "anyone in his position would have done what he did," and he "felt he had no

choice and he acted correctly based on the situation he was in." Although the jury could

have reached such a conclusion, it was not required to do so. Even though defendant may

have felt desperate to stop the perceived persecution, the jury could reasonably find that

                                             13
he knew he was acting immorally based on his acknowledgement that his conduct was

horrible and designed to save himself at the expense of innocent people.

       Defendant further posits that, in his mind, he was in a position similar to a starving

person who steals food, which would be legally, but not morally, wrong. The contention

is unavailing. When evaluating moral awareness of the defendant, food theft is not akin

to a violent attack on innocent people.

       Finally, defendant cites People v. Stress, supra, 205 Cal.App.3d 1259, a case in

which the appellate court noted that an inability to distinguish moral right from wrong

could be based on the defendant's belief that his act of killing his elderly, ailing wife did

not violate accepted moral standards because it was the only way to obtain a public forum

to communicate information vital to public safety. (Id. at pp. 1263-1267, 1271-1276.)

Defendant asserts that, akin to the scenario described in Stress, he believed his conduct

would be considered morally acceptable once the reasons for his actions were known.5

The record does not compel this finding. As stated, the jury could reasonably find that

defendant understood he was not acting to serve a higher common good, or even if he

thought he was, he knew a random shooting attack on elementary school children would

not be viewed as justifiable under generally accepted standards of morality.

       The record supports the jury's rejection of defendant's insanity claim.

5      The appellate court in Stress reversed and remanded the case because the trial
judge, who was conducting a bench trial, had not understood that an insanity defense can
be based on the inability to distinguish moral right from wrong, as well as legal right
from wrong. The appellate court concluded it was reasonably probable the trial judge
would have found the defendant insane had the judge been aware of the morality
component of the right/wrong distinguishment standard. (People v. Stress, supra, 205
Cal.App.3d at pp. 1261, 1271-1276.)
                                            14
                                  DISPOSITION

      The judgment is affirmed.




                                                HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



IRION, J.




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