P. v. >Griffin>















Filed 5/13/13 P. v. Griffin CA3















NOT TO BE PUBLISHED









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opinion has not been certified for publication or ordered published for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



IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(Sacramento>)

----






>

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY GRIFFIN, Defendant and Appellant.

C068314 (Super. Ct. No. 08F08267)

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

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

FACTUAL AND PROCEDURAL BACKGROUND

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

With cash
in hand, defendant ran into an open garage to hide. When the owners of the house emerged,
defendant stole their car at gunpoint and fled.
Defendant abandoned the stolen vehicle and disposed of all clothing
connecting him to the scene of the crime.
Defendant went to his truck, where he left the gun and submerged the
stolen money underwater in a cooler, thinking there might be a paint bomb in
the money for detection purposes.href="#_ftn1"
name="_ftnref1" title="">[1] Defendant then returned in his truck to the
hotel where he was staying with his
girlfriend and went to the swimming pool.


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

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

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

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

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

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

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

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

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

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


“[DEFENDANT]: Yes, Your Honor.

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

“[DEFENDANT]: Yes, Your Honor.

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

“[DEFENDANT]: Yes, Your Honor.

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

“[PROSECUTOR]: Yes, Your Honor.

“THE
COURT: [Defense counsel]?

“[DEFENSE
COUNSEL]: Yes.

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

“[PROSECUTOR]: Yes, Your Honor, just to clarify the record,
this was the offer that extended from the [superior court readiness conference]
date to Wednesday, January 28th of 2009. What happened on January 28th of
2009, is that shortly before the preliminary hearing, defense counsel and the
District Attorney who had represented—or our office before I had the case
agreed to a slightly lower disposition of 19 years four months with the
understanding that the defendant would resolve before prelim[inary hearing,]
any witnesses were called, anymore time, anymore resources were consumed.

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

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

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

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

“[DEFENSE
COUNSEL]: We have.

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

“[DEFENSE
COUNSEL]: I have.

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

“[DEFENSE
COUNSEL]: Yes. [¶] We
have talked about various permutations of maximum punishment based upon
factual—potential factual interpretations that a Court could come up with, and
as I think we already discussed on the record, . . . there’s a wide
variance between the charge and what could be a maximum depending on what the
Court would find the facts at the end of a sentencing hearing.

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


“[DEFENSE
COUNSEL]: Yes.

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

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

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

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

“[DEFENSE
COUNSEL]: Yes.

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

“[PROSECUTOR]: Yes, Your Honor.

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

“[DEFENDANT]: Yes, Your Honor.”

The court
then advised defendant as to the consequences of a guilty plea and explained
defendant’s Boykin/Tahl constitutional
rights,href="#_ftn2" name="_ftnref2" title="">[2]
all of which defendant waived, including his right to a jury trial. The court took guilty pleas and admissions
for all charges and enhancements.

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

DISCUSSION

I. Sanity Jury
Waiver Was Voluntary Because There

Was No Promise of Benefit or Leniency

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

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

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

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

II. Sanity Jury
Waiver Was Valid Because There Was

No Judicial Plea Bargaining

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

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

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

B. There Was No
Judicial Plea Bargaining

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

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

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


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


Defendant
contends the trial court’s remark that “[t]he Court has extended a 23-year
four-month offer, which is a lid offer” and the prosecutor’s statement later
that he “would submit to the Court on the Court offer” show that this was an
improper plea offer from the court.
However, this is not Woosley. This phrasing was merely an unfortunate way
to refer to the sentence lid—a proper indicated sentence. Significantly, the prosecutor did not object
to the trial court’s actions like the prosecutor in Woosley. (See >Woosley, supra, 184 Cal.App.4th at pp. 1140-1144.) The trial court here did not dismiss any
charges or enhancements like the court in Woosley. Rather, defendant admitted all charges and
enhancements and the court imposed a sentence within the court’s indicated
sentence lid. “[J]udicial plea
bargaining,” as defined in Woosley—“that
is, disposing of charges over the objections of the prosecutor in order to
induce a guilty plea,” did not take place here.
(Woosley, supra, at p. 1146.)href="#_ftn3" name="_ftnref3" title="">[3]

III. There Was
Sufficient Evidence to Support

the Trial Court’s Sanity Finding

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

In this
case, defense witness Kenneth King, a Sacramento County deputy sheriff,
testified about defendant’s prior delusional episode in June 2008
(approximately four months before the incident here). Defendant had called the police because he
believed there were “four to five subjects with guns trying to enter his
warehouse.” When Deputy King and other
officers arrived and found no evidence of intruders, they placed defendant in a
squad car until he calmed down. Paul
Mattiuzzi, Ph.D., the defense’s expert witness on sanity, also mentions this
June 2008 event in his report on defendant.
Dr. Roof based his opinion that defendant had the ability to
differentiate right from wrong (part of the legal test for saneness) in part on
an absence of previous delusional episodes, and stated at trial that if
defendant had had a previous delusional episode, he (Dr. Roof) “would consider”
it but “[w]hether or not it would have an impact on my opinion, I don’t
know.”

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

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

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

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


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

Defendant
testified about multiple stressors he had experienced in the year leading up to
the offenses, including: His contracting
work “just kind of dried up”; he fell behind on bills and child support
payments; his contractor’s license and driver’s license were suspended;
utilities in his home were turned off; his grandmother died; his girlfriend’s
grandmother died; his girlfriend’s daughter was taken into protective custody
because the family was living in a home with no utilities; he was injured as a
victim of an assault and battery; he
accrued traffic tickets for driving with a suspended license; his house went
into foreclosure; he had to give away his dog; and his family moved into the
cramped quarters of his shop where the electricity was turned off at some
point. When defendant was at his lowest,
sitting alone in his shop with his gun in his mouth and voices in his head
telling him to pull the trigger, he suddenly got a “really warm sensation” and
thought “everything was going to be okay.”
Defendant “had this vision . . . that these government
agencies, you know, with the DMV and child support and the banks and all these,
these things out there were like this huge conspiracy just trying to destroy people’s
lives. And . . . it wasn’t
just happening to me. It was happening
to everyone. . . . [¶] Everyone just seemed like they were losing
their homes and their business, and I felt . . . like God was talking
to me. I felt like I was being rescued. I was like plucked from the edge of suicide
to . . . do something about it. . . . [¶] . . . [¶] I decided that I was gonna go to the bank and
rob it.
[¶] . . . ¶]
This is what I’m supposed to do.
God has given me a job, a purpose.
[¶] . . . [¶]
I felt like I needed to . . . be a superhero or Robin Hood, a
hero to do something about it.”

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

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

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

Dr. Roof,
the prosecution’s expert witness, opined that defendant was capable of
distinguishing right from wrong at the time of the offenses. Dr. Roof was unable to conclude that
defendant was malingering—a point defendant emphasizes—but did express concern
about the atypical presentation of the alleged delusions (defendant reported
seeing color changes and face warping, which would generally happen over a
longer time period; defendant was vague about the voices he claimed to hear; he
had no prior treatment).

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

DISPOSITION

The
judgment is affirmed.







BUTZ , J.







We concur:







RAYE , P. J.







NICHOLSON , J.