Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR109127
RIVERA, J.
Defendant Anthony Clark Gore appeals a judgment entered upon a jury verdict finding him guilty of first degree murder. (Pen. Code, § 187, subd. (a).) Defendant, who had pled both not guilty and not guilty by reason of insanity, contends the trial court committed error in the guilt and the sanity phases of his trial.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Wagner’s Death
Defendant was a patient at Napa State Hospital. He shared a room at the hospital with two other patients, Dennis Wagner and Leroy Grigsby. Between 7:00 and 7:30 on the morning of May 3, 2002, another patient, Randy Robertson, found Wagner in his bed, not breathing. His face was swollen, as if he had been in a fight. Defendant was lying on his bed, awake. Robertson asked defendant what was wrong with Wagner, and defendant answered, “the mother fucker’s asleep.” Robertson went to get a nurse, James Miller, who came to the room. Defendant was lying on his bed, on his back, with his arms folded behind his head. He looked at Miller without saying anything. Miller saw that Wagner had no pulse and his neck and upper mouth areas were swollen. He and other medical personnel tried for about 20 to 30 minutes to resuscitate Wagner. During the first 15 minutes of that time, defendant continued to lie fully dressed on his back, shoes on, with his arms folded behind his head, appearing relaxed. He watched the resuscitation attempts and looked at the ceiling without moving. Miller suspected defendant had been involved in Wagner’s death, and told one of the police officers who had come to the room, “ ‘You need to watch him.’ ” He also told a nurse, Judith Boan, that he thought defendant was responsible for Wagner’s death.
He had been found not guilty of an assault in 1999 by reason of insanity, and was committed to Napa State Hospital.
A paramedic who was called around 8:00 or 8:30 pronounced Wagner dead, and concluded he had been dead for an hour or two. Wagner had died of asphyxia due to manual strangulation. His face and neck were bruised, there was redness along the jaw and an abrasion on the chin, and blood had come from his mouth.
B. Aftermath of Wagner’s Death and Investigation
During the resuscitation, Boan asked defendant to leave the room; and at her direction he went with her to a seclusion room without saying anything, accompanied by three uniformed officers. An officer stood at the door of the seclusion room to make sure defendant did not leave. Boan initially decided to have defendant leave the room because the sight of the resuscitation efforts might be traumatic to him. When Miller told Boan he thought defendant might have been Wagner’s killer, Boan wanted to see defendant’s body to see if he had any wounds. Defendant responded to her directions and appeared to know his surroundings, and Boan did not see indications of any psychiatric problems. There were spots of what appeared to be blood on defendant’s shirt, on his sweat pants above the knee, and on his shoes. Boan told defendant to remove his outer clothing, and he did so. She told defendant she needed to search him for wounds. Defendant’s only injury was on his right hand. There was coagulated blood there. Boan asked defendant what had happened to his knuckle, and he did not respond. One of the officers asked defendant how he had injured himself, and he said he had hit a wall the previous day. The officer asked defendant how he had gotten blood on his knee, and he said he had fallen in the courtyard the previous day. He appeared to understand the questions, and answered them calmly and directly, although he had a “blank stare on his face.”
Later that morning, Jon Crawford, a detective from the Napa County Sheriff’s Department, went with another detective to speak with defendant. They wanted to “see where [defendant] was mentally,” and to find out whether he would give a statement. They saw that his hands were swollen, and that his right hand, particularly the knuckle area, was more swollen than the left. Crawford and other officers saw defendant again approximately two hours later. They told him they wanted to collect evidence from his person, and asked if he would be willing to cooperate. Defendant told them he would not cooperate and that he would fight the officers to stop them from collecting evidence. The officers handcuffed defendant, and he struggled as they undressed him and collected evidence. They told him he was under arrest for killing Wagner.
DNA analysis revealed that the blood on defendant’s sweat pants and shirt had come from Wagner. The blood on defendant’s shoe was his own.
C. Defendant’s Prior Dealings with Wagner
A patient at Napa State Hospital, Canada Coburn, testified that she had bought drugs from defendant many times. Defendant sold marijuana cigarettes for $10 cash, or $20 credit. Several weeks before Wagner’s death, Wagner obtained a marijuana cigarette from defendant without paying. At the time, defendant told Wagner he had “better pay up[,] fool.” About three days before Wagner was killed, Coburn spoke with Wagner on the telephone. Wagner told Coburn he feared for his life because he could not pay defendant what he owed for the marijuana. He then handed the telephone to defendant, who told Coburn that Wagner had “fucked up and that he needed to pay up,” and that something was going to happen to Wagner because he could not pay what he owed. When Coburn protested, defendant told her Wagner had “made his own bed” and “had to lay in it.” Around the time that Wagner received the marijuana from defendant, Coburn had noticed defendant becoming more violent. She thought he “wasn’t really thinking straight, he was really religious and really paranoid.”
The day before Wagner died, defendant told his friend Rena Hess, another patient at the hospital, that he was upset about not getting his money from Wagner and that Wagner “was going to be squashed that night if he didn’t get his money.” That evening, defendant told Hess something to the effect that he was going to “take care of the situation, that he was going to . . . do something to him, basically just kill him.” In that conversation, defendant told Hess he was hearing voices. When Hess spoke with defendant after he had been arrested, he initially told her he had killed Wagner, but the next day he indicated he had not been serious. At one point, he told her he felt bad about having killed Wagner.
One or two days before Wagner’s death, defendant told another patient, Forrest Kendrid, that he was upset about Wagner’s not paying him back and that Wagner had to be “dealt with” (which Kendrid testified was slang for killing), or that he was “going to kill that punk mother fucker,” and that Wagner had to be made an example. Kendrid offered to pay the debt himself, but defendant refused, saying “it’s the principle of the thing.”
D. Defendant’s Mental State
In his defense, defendant presented evidence that he was required to take anti psychotic medication at the time of Wagner’s death. A quarterly evaluation of defendant in 2002 indicated that he was not ready to be released to the community because he was not totally in remission. Other hospital residents testified that defendant had been in fights with two other patients, James Foster and Robertson, during April 2002, and one patient had observed that defendant had said odd things and appeared “tripped out” or “psychotic” in the days before those fights. A resident testified that a few days before Wagner’s death, defendant yelled about God in a manner the resident could not understand, behaved bizarrely, and spoke in a disjointed fashion. In the days before Wagner’s death, defendant would stay up all night in his room, praying and pacing, and on at least one occasion, a nurse saw him appearing agitated and delusional.
At trial, defendant did not take the position that he had not killed Wagner, instead arguing that because of his mental illness, he did not form the intent and mental state necessary for murder.
A psychiatric social worker saw defendant in a seclusion room in five-point restraints on April 8, 2002, something that is usually done after an assault. She tried to discuss one of the fights with him; he did not want to talk, but showed no signs of internal stimuli or delirium. Between approximately April 16 and April 24, 2002, defendant was under constant in-sight observation, which is used when a patient is a danger to himself or others, and up until Wagner’s death or the day before it, he was being observed at frequent intervals. On one or both of the two days preceding Wagner’s death, defendant refused his medications. Staff members had asked him to cooperate in taking his medications, but had not forced him to do so. His medications had been ordered “crushed” as of April 29, 2002, to reduce the chances of his “cheeking” them, or failing to swallow them and throwing them out later.
Dr. Bruce Victor, a psychiatrist who testified as an expert witness on defendant’s behalf, was of the opinion that defendant suffered from chronic paranoid schizophrenia, with polysubstance abuse and antisocial personality disorder, and that his condition may have been exacerbated by the use of methamphetamine. He also testified that medications are available to calm the symptoms of schizophrenia, and that withdrawal from the medications can cause agitation and sleeplessness. Less than a month before Wagner’s death, defendant had assaulted two patients, and in both instances there was evidence that defendant had experienced command hallucinations, in one instance through a wall. Defendant had also been increasingly preoccupied with religion and had been praying fervently, in a way that was not characteristic of his behavior when his mental state was healthier. He had been in restraints for four or five days during April, and had been monitored initially every 15 minutes, and then until May 1 every 30 minutes, which takes place when a patient is a danger to himself or others. During the latter part of April, defendant had been cheeking his medications and had told staff members that the medications were poison. Victor also testified that defendant had never given him a psychotic reason for killing Wagner, and in fact had denied having killed him. Defendant had also told him he had not heard voices regarding Wagner.
Dr. Kevin Kappler, a psychologist at Napa State Hospital, testified for the People that he was part of defendant’s treatment team. During 2002, defendant did not cooperate with his treatment plan. He refused medications, refused to go to therapy groups, and sometimes refused to meet with his treatment team. Kappler believed he might be feigning his mental illness. He would refuse his psychotropic medications and request morphine instead. Sometime in the months before killing Wagner, defendant told Kappler he did not want to be in the hospital, that he was “a felon in between crimes,” and that he would rather be in jail, where he could get better drugs. Kappler saw no signs of delusions, and defendant did not tell him of any hallucinations.
Dr. Madeline Andrew, a forensic psychiatrist, testified as an expert witness for the People. She agreed with Victor’s diagnosis of defendant. Although defendant had been trying to “cheek” his medications, Andrew believed the medical records showed that defendant had generally been ingesting them. She testified that crushing medications was effective in preventing a patient from cheeking medications. She also testified that when a patient stops taking medications, it can take some time for the medication to be cleared out of the patient, and symptoms may not recur for days, weeks, or even months. Although defendant seemed to have missed two or three doses of medication on May 1 and 2, 2002, Andrew did not believe the missed doses significantly affected the level of the medications in his blood. She believed the disturbance in defendant’s sleep patterns was voluntary, and that he preferred to sleep during the day and be awake at night.
Andrew also testified about the results of drug tests on defendant. In January 2002, defendant tested positive for cocaine. In February 2002, he tested negative for all drugs. He had a positive drug screen for phenobarbital, a barbiturate, in March 2002, a positive test for amphetamine, methamphetamine, and phenobarbital April 9, 2002, after he had assaulted two other patients, and another positive test for phenobarbital on April 16, 2002. He was placed in constant in-sight observation from that time until April 24, when he was reduced to 15-minute checks. On April 26, the observations were reduced to every 30 minutes, and those observations were discontinued on May 1. A screen on May 3, 2002, after defendant had been arrested for killing Wagner, was negative for all drugs. Although defendant was diagnosed in April with phenobarbital withdrawal, which can cause behavioral changes, agitation, anxiety, paranoia, and delusions, or hallucinations, Andrew concluded that symptoms of withdrawal had ended by April 24, 2002, at the latest. Based in part on defendant’s physical symptoms during April, including elevated blood pressure and heart rate, she believed that the symptoms defendant experienced in April, at the time he was put in restraints, were predominantly due to barbiturate withdrawal, rather than to his schizophrenia. Defendant’s records indicated to Andrew that his condition was generally improving up until the time of the killing. Andrew testified that people with paranoid schizophrenia and antisocial personality disorder were capable of thinking rationally at times and of planning and carrying out crimes.
A doctor’s medical note after the fights with the other inmates stated that defendant boasted of having used deadly force against two peers, and said that “now they will respect him.”
E. Sanity Phase of Trial
The jury found defendant guilty of first degree murder, and the sanity phase of the trial ensued. All evidence from the guilt phase was admitted in the sanity phase. Victor testified again on defendant’s behalf. His review of documents from Napa State Hospital, Ambuscader State Hospital, California Medical Facility at Vacaville, the Napa County jail, and the evaluations and reports of various doctors indicated that defendant had a history of paranoid schizophrenia, psychosis, and polysubstance abuse, and that defendant had been arrested in 1999 for an unprovoked attack committed in a psychotic state under the delusional belief that the victim intended to harm defendant’s family. Before the 1999 attack, defendant had been seen pacing in an agitated way in a parking lot, and his psychiatric records indicated he had been hearing voices and responding to internal stimuli at the time. Records from Ambuscader State Hospital indicated that in late 2000, after defendant had been found not guilty by reason of insanity, the dosage of his anti psychotic medication was decreased, and his behavior and thought processes deteriorated, necessitating a re-increase in his dosage. In April 2002, the month before Wagner’s death, at a time when defendant was abusing drugs and his anti psychotic medications were interrupted, his behavior deteriorated, and he made unprovoked attacks on inmates. In one of those attacks, while in a psychotic state, he attacked a peer who was lying in bed. Victor’s review of defendant’s records indicated that at the time he killed Wagner, defendant had not taken any medication for a little over 40 hours, and he was of the opinion that as a result, the level of medication that protected defendant from psychosis had dropped drastically. As a result, defendant’s delusions would have become worse, he would misperceive events, and his behavior would get out of control. In addition, defendant had been using methamphetamine during April 2002, and Victor testified that those drugs could still have been affecting defendant at the time of the murder.
Section 1026, subdivision (a) provides in part: “When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, the defendant shall first be tried as if only such other plea or pleas had been entered, and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time the offense was committed shall be promptly tried . . . .”
Nothing in defendant’s records indicated he had used methamphetamine after April 9, 2002, although the records indicated he had used phenobarbital on April 16. A blood test on May 3, 2002, the day of the murder, did not show any evidence of methamphetamine or other drugs in defendant’s system.
Victor considered defendant’s expressed motivation to kill Wagner—retribution for an unpaid drug debt—to be consistent with insanity. Victor also testified that defendant’s explanation of how blood got onto his clothing did not contradict a conclusion that he was insane, explaining that people in psychotic states can come up with explanations that they believe are rational. In his opinion, defendant’s later inconsistent accounts of events did not indicate that he was not psychotic at the time he killed Wagner, and in fact it was likely that his accounts would become inconsistent as he had more aggressive anti psychotic treatment. He noted that people with paranoid schizophrenia often have a “flat affect,” as defendant did after Wagner was killed. Although a doctor who saw defendant on April 24, 2002, had noted that defendant was not suffering hallucinations or delusions, in the ensuing days defendant had talked about his medication being poisoned, had been religiously preoccupied, and had been pacing in an agitated manner the night before the murder, indicating decreased control over his paranoia. Victor was of the opinion that defendant most likely understood the nature and quality of his acts when he killed Wagner, but that he was probably hallucinating and delusional at the time he did so, to the extent that he did not know the difference between right and wrong.
Victor testified on cross-examination that defendant had told him in May 2005—at a time he showed signs of psychosis—that everyone had a right to live, and that at the time defendant understood that it was morally wrong to take another person’s life. In the interview, defendant told Victor that he did not have any idea how Wagner had died, he did not give a psychotic explanation for the killing, and he said he had never been a recreational drug user.
Dr. Gregory Soloviev, a court-appointed psychiatrist, testified for the People. In a 2005 interview, defendant told Soloviev he had used marijuana, methamphetamine, and crack cocaine at Napa State Hospital, and that he had made $200 to $300 a day selling items to other patients. He said that in the days leading up to the killing, he was intoxicated, “drugged out,” and not “in his right mind,” but denied having killed Wagner. Sokolov agreed with the diagnoses defendant had received of paranoid schizophrenia, polysubstance dependence, and antisocial personality disorder. People with schizophrenia have periods in which they are not psychotic, in which they do not have acute mental symptoms.
Sokolov had reviewed a test for malingering that defendant had taken in September 2002, and concluded he was faking his psychotic symptoms. Two other court-appointed psychologists and one doctor in the jail in 2003 had also concluded defendant was malingering, or exaggerating his psychiatric symptoms. Sokolov did not think defendant was delusional when he killed Wagner. He based his opinion on the fact that two days before the murder, defendant’s own psychiatrist noted that defendant was doing well and having no behavioral problems; that two days after the murder, jail workers had said defendant was “oriented [and] manipulative,” with no mental health problems. In his interview with defendant, defendant did not show any delusional beliefs or paranoia toward Wagner, and he told Sokolov he was not hearing voices that night and had slept through the night. Sokolov did not believe pacing the floor the night before the murder was a psychotic symptom. Sokolov believed defendant knew right from wrong at the time of the killing, based on the facts that defendant had given a false explanation for the blood on his clothing, he had not been having delusions and could therefore distinguish right from wrong, and he had given conflicting explanations of events, indicating that he was not operating under delusional beliefs and that he understood what he had done was wrong.
Dr. Stephen Donoviel, a psychologist who had been appointed by the court to evaluate defendant’s sanity, also testified as an expert witness for the People. When he interviewed defendant in 2005, defendant told him he knew nothing about the murder. According to defendant, he had gone to sleep, and “woke up” when he was being taken down the hall. He told Donoviel that Wagner was his best friend at the hospital, denied having threatened to harm Wagner because of the drug debt, and denied selling drugs. Defendant said he had attacked two other patients in April 2002 to “teach them a lesson” because they had been “bad mouthing his business,” which he said involved selling candy and coffee. He told Donoviel he was as “mean as a rattle snake.” He also said that he knew that harming or killing someone was morally, legally, and religiously wrong. Donoviel’s review of defendant’s records showed that his physical and mental condition improved over the course of April 2002. In late March, defendant had begun treatment for an abscess in his arm, which was the result of using intravenous drugs. The medical staff was concerned because defendant had not been eating, and petitioned to force feed him. The request was denied in the middle of April, because at that time defendant was thinking rationally. Early in April, there were entries in defendant’s records indicating he was confused, disoriented, and delusional, but those symptoms abated over the course of the month, and defendant’s condition had improved by the end of the month. Near the end of that time, entries indicated that defendant had been heard talking on the phone in a cheerful voice and he was “[c]learly oriented,” and Donoviel concluded he was no longer confused. In Donoviel’s opinion, defendant understood the nature and quality of his acts and could distinguish right from wrong when he killed Wagner.
The jury found defendant was sane when he killed Wagner. Defendant was sentenced to prison for 25 years to life.
II. DISCUSSION
A. Competency Hearing
Defendant contends the trial court denied him due process by failing to order a hearing on his competency to stand trial.
In August 2002, defendant’s counsel expressed a doubt of his competency under section 1368, and the trial court suspended proceedings and appointed two experts to examine him. Both psychologists concluded that defendant was malingering the nature or extent of his psychotic symptoms. At the request of defense counsel, the trial court then appointed a psychiatrist to examine defendant. The psychiatrist concluded defendant was able to understand the charges against him and to assist counsel in presenting a rational defense. In January 2003, the trial court found defendant competent to stand trial.
On April 29, 2005, the Napa County Counsel applied for an order transferring defendant from the Napa County jail to the California Medical Facility in Vacaville (CMF). (§ 4007.) According to the application, defendant had injured himself by hitting his head against a steel bunk and the wall of his cell. He had also assaulted correctional officers, and his outbursts had led officers to use chemical agents against him. He was refusing to take his psychotropic medications. The trial court found defendant was a threat to himself and others in the county jail, and ordered him transferred to CMF. In May 2005, the prosecutor told the court that the court staff should consider “security issues regarding [defendant] during the trial because . . . from the way he has been acting in the jail, . . . that could be a concern for courtroom staff and the participants here and there may be some extraordinary things that may need to be done to secure him in the courtroom.”
The parties and an attorney from the county counsel’s office addressed the question of where defendant should be housed during trial at a hearing on June 1, 2005. The deputy county counsel urged the court to continue housing defendant at CMF, saying that the county jail did not have the facilities to provide 24-hour care to defendant and did not have a policy in place to force him to take his medications. Defendant had refused to take his medications while in jail, and the staff could not handle his behavior when he did not do so. Defendant’s counsel told the court that defendant “[did] well when he’s taking his meds and when he’s properly medicated,” and indicated his need to be able to confer with defendant outside trial hours each day. The court continued defendant’s housing at CMF and ordered him to be brought to Napa County each day he was needed for court proceedings.
At the same hearing, defendant’s counsel told the court that after reviewing videotapes of defendant taken while he was in the Napa County jail within the previous year, in which defendant was agitated and depressed, Victor was of the opinion defendant was not guilty of the alleged offense by reason of insanity. Defendant entered a plea of not guilty and not guilty by reason of insanity.
The prosecutor then asked whether defendant’s counsel or the court was raising a doubt about defendant’s competence to stand trial. Defense counsel said he was not, and the trial court stated: “Th[e] report from Dr. Victor doesn’t raise those issues in my mind, and Mr. Gormy only experience with Mr. Gore is just him coming in this afternoon and nothing has indicated that to me, but, Mr. Lernhart, this is your client so, of course, you have the best insight into that issue.” Defendant’s attorney replied, “Your Honor, I don’t have a doubt at this time.”
The court reviewed Victor’s report, which concluded that defendant was insane at the time he killed Wagner and that at the time his psychotic symptoms were “sufficient to overwhelm his ability to form the requisite mental intent to deliberate and plan the murder of Mr. Wagner.” Victor relied for his analysis on several factors, including defendant’s history of paranoid schizophrenia, his history of assault on others while in a psychotic state, his dehydration shortly before the killing, his positive tests for methamphetamines, the “significant disruptions in his psychotropic drug regimen” due to medications changes and his lack of compliance, and his sleep disruption in the days before the killing.
At the June 1, 2005 hearing, the trial court appointed Sokolov and Donoviel to evaluate defendant’s sanity. Donoviel reported the following month that defendant indicated during their interview that he understood the purpose of the evaluation, he was “fully alert and correctly oriented to time, place, person and situation,” his memory of events in his history was “grossly intact but selective,” he showed a good sense of humor and appropriate range of emotions, his speech was understandable and did not reflect psychotic thought processes, his attention and concentration were good, and he did not appear to be preoccupied or responding to internal stimuli. Sokolov’s report indicated that defendant responded to questions about his history and said he was pleading not guilty by reason of insanity on his lawyer’s advice.
In July 2005, the deputy county counsel informed the court that CMF had informed the jail that defendant had been released from the acute psychiatric ward and was ready to be returned to jail. Defendant’s counsel urged the court to order defendant returned to county jail, and the court did so. Jury selection began in August 2005.
Defendant contends that after his mental health deteriorated to the point that he was removed from the county jail and sent to CMF in 2005, the trial court should have ordered a hearing on whether he was competent to stand trial. “The law on competency is well established. A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence. (§ 1369, subd. (f).) As a matter of due process, the state may not try or convict a mentally incompetent defendant. [Citations.] Under section 1367, subdivision (a), a defendant ‘cannot be tried or adjudged to punishment while he is mentally incompetent.’ Section 1368, subdivisions (a) and (b), respectively, require the trial court to initiate proceedings in order to determine a defendant’s present sanity if ‘a doubt arises in the mind of the judge as to the mental competence of the defendant’ or ‘[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent.’ To be competent to stand trial, defendant must have ‘ “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and ‘a rational as well as factual understanding of the proceedings against him.’ ” ’ [Citations.] [¶] If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. [Citations.] In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant’s ability to stand trial. [Citation.] . . . The court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard.” (People v. Ramos (2004) 34 Cal.4th 494, 507; see also People v. Welch (1999) 20 Cal.4th 701, 737, quoting Dusky v. United States (1960) 362 U.S. 402.) In order to establish incompetence, “a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel.” (Ramos, supra, 34 Cal.4th at p. 508.)
We see no abuse of discretion in the lack of a second competency hearing. Defendant’s own attorney stated that he did not have a doubt as to defendant’s competence. Although defendant’s behavior had deteriorated at the county jail when he was refusing his medications, the record indicates that CMF had the means to ensure he took his medications and that he in fact took them, and his counsel indicated that defendant did well when he was medicated. Furthermore, nothing in the reports of Sokolov and Donoviel, who evaluated defendant during this period in connection with his plea of not guilty by reason of insanity, indicate that he was not competent to stand trial. Victor’s conclusion that defendant was insane at the time he killed Wagner was based in part on videotapes of defendant’s behavior in the county jail during the last week of April 2005; however, it appears that these videotapes were taken at a time that defendant was refusing his medications, and the report does not suggest that defendant would be incompetent when properly medicated. In the circumstances, there was no substantial evidence that defendant was unable to consult with his lawyer with a reasonable degree of rational understanding or that he lacked a rational and factual understanding of the proceedings against him, and the trial court did not abuse its discretion by not holding a competency hearing.
B. Admission of Defendant’s Statements
Defendant contends the statements he made in the seclusion room after Wagner’s death should not have been admitted at trial because they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. “Before a suspect may be subjected to a custodial interrogation, he must be advised that he has the right to remain silent, that his statements can be used against him and that he has a right to consult with or have an attorney present. (Miranda . . . , supra, 384 U.S. at pp. 467-471 . . . .)” (People v. Fradiue (2000) 80 Cal.App.4th 15, 19 (Fradiue).) Erroneous admission of statements made in violation of Miranda requires reversal unless we are satisfied the error was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310 [admission of coerced confession does not require reversal if harmless beyond reasonable doubt]; People v Cahill (1993) 5 Cal.4th 478, 509-510 [admission of confession obtained in violation of federal Constitution subject to harmless error under federal harmless-beyond-a-reasonable-doubt standard].)
Special problems arise in applying the protections of Miranda in a custodial setting. In Mathis v. United States (1968) 391 U.S. 1, 4-5, the United States Supreme Court held that a person under confinement for a separate crime is entitled to Miranda warnings before being questioned as part of an investigation of a new crime. However, both federal and California courts have concluded that “where the interrogation is conducted under circumstances where no restraint is placed over the inmate over and above that associated with his prisoner status,” Miranda warnings are not required. (Fradiue, supra, 80 Cal.App.4th at pp. 19-20 and cases cited therein; Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 427-428.) Recognizing that in a prison setting, the usual test of whether a reasonable person would have believed he or she was free to leave is not useful, the court in Cervantes articulated four factors for determining whether Miranda warning are needed: “(1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him.” (Fradiue, supra, 80 Cal.App.4th at p. 20, citing Cervantes, supra, 589 F.2d at p. 428.)
Defendant, of course, was not confined in a prison or jail. However, he had been committed to Napa State Hospital after having been found not guilty of another offense by reason of insanity. Defendant contends that under the circumstances, the rule of Cervantes applies, and that under that rule, the questioning in the seclusion room was custodial and required Miranda warnings.
We need not decide whether the trial court erred in admitting defendant’s statements given without Miranda warnings because we conclude that he suffered no prejudice from the admission of the statements. The two statements of which he complains were that he had injured his hand by hitting a wall the previous day, and that he had gotten blood on his knee by falling in the courtyard. Defendant contends these statements contradicted his defense in the guilt phase that he was acting under the influence of a schizophrenic episode because a jury could have inferred that his explanations showed a consciousness of guilt, and likewise contradicted his position in the sanity phase of the trial that he did not know right from wrong.
The prosecution relied on defendant’s statements as only a small part of its evidence that defendant was both guilty of the crime and sane at the time he committed it. It is true that defendant’s false statement about the source of the blood on his clothes formed part of the basis for Sokolov’s opinion during the sanity phase of the trial that defendant knew right from wrong at the time of the crime. Sokolov explained that “[p]eople that feel they have done the right thing for psychotic reasons don’t come up with excuses for their behaviors.” However, he also relied for his opinion on the absence of reported or observed delusions in the days before and after the event, and explained, “if somebody is not delusional, they’re able to understand right from wrong.” Furthermore, defendant had made changing explanations of the events both to Sokolov and to other evaluators. In Sokolov’s opinion, “somebody who has a delusional conviction that they did something, they stick with it. They don’t change their story over time. And his changing of his story over time indicates he understood the wrongfulness and continues to understand the wrongfulness.”
In both the guilt and sanity phases of the trial, there was plentiful other evidence of defendant’s state of the mind shortly before and after the time of the crime. That evidence included defendant’s threats against Wagner in the previous several days due to his drug debt, his statement the previous evening that he would kill Wagner that night, his statement to the patient who discovered Wagner that “the mother fucker’s asleep,” his calm demeanor and cooperative manner in the aftermath of Wagner’s discovery, his apparent understanding of his surroundings and Boan’s directions, the absence of reported delusions around the time of Wagner’s death and the fact that defendant himself denied having delusional beliefs on the night of the murder, the reports that his mental state had improved by the end of April, and his changing story over time. Moreover, the prosecutor only briefly mentioned defendant’s statements in his closing in each phase of the trial.
In summarizing for the jury the evidence of each witness in turn in the closing statement in the guilt phase of the trial, the prosecutor stated, “[one of the officers] asked him, Mr. Gore, in the seclusion room . . . how did you hurt your hand? He hit the wall. I believe there may have been testimony that he told him he hit the wall in the courtyard. At the same time that he got blood on his knee, how did you get blood on his knee [sic], and he said he fell down in the courtyard.” In the sanity phase, he noted on two occasions that the fact defendant had given an alternative explanation for the blood showed he knew what he had done was wrong, and that the statement was made shortly after the murder, as one among several grounds to conclude defendant knew right from wrong.
Defendant argues, however, that a question the jury asked during deliberations for the guilt phase of the trial indicates the evidence of his statements may have affected the jury deliberations. The jury asked the court: “ ‘Should Gore’s diagnosis of . . . paranoid schizophrenia in any way be a contributing factor to determining between murder one or murder two?’ ” The court answered that evidence of defendant’s diagnosis, “along with all the other evidence, may be considered by you in determining your verdict(s) on the charged offenses of first degree murder and the lesser included offenses of second degree murder and involuntary manslaughter.” Later, the jury informed the court that 11 jurors had voted for first degree murder and one juror was still confused as to whether the correct verdict was second degree murder, and asked the court for guidance. The court encouraged the jury to continue its deliberations. The following day, one of the jurors disclosed that she had looked up the word “murder” in the dictionary to see if it defined the difference between first and second degree murder.
Over the prosecution’s objection, the trial court decided not to excuse the juror from the panel due to her conduct in looking up the word “murder.”
We see no likelihood that the challenged evidence encouraged the jury to find defendant guilty of first degree murder, rather than second degree murder. As to the distinction between first and second degree murder, the jury was instructed: “Murder of the second degree is also the unlawful killing of the human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” Defense counsel argued in his closing in the guilt phase of the trial that defendant was in a psychotic state at the time of Wagner’s death and did not form the intent to kill, deliberate, or premeditate. Nothing in the evidence suggests that defendant’s mental state would have allowed him to form the intent to kill but not to premeditate or deliberate, as the jury would have had to find in order to conclude defendant committed only second degree murder based on the jury instructions. Moreover, we have already noted the ample other evidence of defendant’s mental state at the time of the killing, including the testimony of fellow patients Hess, Coburn, and Kendrid that defendant had threatened to harm or kill Wagner because he had not paid his drug debt.
In closing argument in the guilt phase, defendant’s counsel said of second degree murder: “If there is not deliberation and premeditation then you must look to see if there is second degree murder. The difference is—there is instructions that tell you, but basically the difference is that whereas to first degree murder you have to have deliberation, premeditation, and intent to kill[, f]or second degree murder it’s sufficient if there is intent to kill. No premeditation or deliberation is required. [¶] So was Mr. Gore under those circumstances the circumstantial evidence that led up to that event and his conduct immediately following that event, did he have the—could he form the specific intent to kill? Did he? Or did he snap? Or did he do what he did with Randy Robertson? Did he do what he did when he hit the person with the bottle in Vallejo? Is it the same thing? [¶] I submit to you that it’s all of the product and artifact of his paranoid schizophrenia. His paranoid behavior which manifested itself in violence.”
In the circumstances, we are confident that any error in admitting defendant’s statements was harmless beyond a reasonable doubt.
C. Instruction on Effect of Mental Disorder on Mental State
Defendant contends the trial court impermissibly shifted the burden of proof in instructing the jury before its deliberations in the guilt phase of the trial according to a modified version of CALJIC No. 4.21.1 as follows: “It is the general rule that no act committed by a person with a mental disorder is less criminal by reason of that condition. Thus in the crime of first degree murder as charged in Count One, or the crime of second degree murder, which is a lesser thereto, the fact that the defendant had a mental disorder is not a defense and does not relieve defendant of responsibility for the crime. However there is an exception to this general rule, namely where a specific intent or mental state is an essential element of the crime. In that event you should consider the defendant’s mental disorder in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. [¶] Thus in the crime of first degree murder charged in Count One or the lesser crime of second degree murder, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crime set forth elsewhere in these instructions. If the evidence shows that a defendant had a mental disorder at the time of the alleged crime you should consider that fact in deciding whether or not defendant had the required specific intent or mental state. If from all the evidence you have a reasonable doubt whether the defendant had a required specific intent or mental state you must find that the defendant did not have that specific intent or mental state.”
This instruction was derived from CALJIC No. 4.21.1, which uses virtually identical language to instruct that no act is less criminal because committed in a state of voluntary intoxication, but that such intoxication should be considered in deciding whether the defendant possessed the required specific intent or mental state, and that if from all the evidence the jury has a reasonable doubt about whether the defendant had the required intent or mental state, it must find that the defendant did not do so.
Defendant contends this instruction lowered the prosecution’s burden of proof as to whether he had the required intent or mental state. The court in People v. Aguirre (1995) 31 Cal.App.4th 391, 401-402, rejected a similar challenge to CALJIC No. 4.21.1. The defendant there argued that the jurors could reasonably have interpreted the instruction as “ ‘shifting the burden of persuasion to the “defense” unless defendant proved intoxication by a sufficient quantum of proof to invoke an exception to the general rule that voluntary intoxication was not a defense.’ ” (Aguirre, at p. 401.) The Court of Appeal rejected the argument, concluding that nothing in CALJIC No. 4.21.1 directed the jury to find the defendant acted with specific intent to kill, and that the instructions as a whole instructed the jury properly that the People had the burden of proving, beyond a reasonable doubt, that the defendant had such intent. (Aguirre, at pp. 401-402.)
As noted in People v. Steele (2002) 27 Cal.4th 1230, 1253, “[T]he jury may generally consider evidence of . . . mental condition in deciding whether defendant actually had the required mental states for the crime.” (See also § 28, subd. (a) [“[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged”].)
The same is true here. The jury was instructed in the challenged instruction that if it had a reasonable doubt whether defendant had the required specific intent or mental state, it must find that he did not have it. Almost immediately before giving this instruction, the trial court instructed the jury that a defendant is presumed to be innocent until the contrary is proven, that in the case of a reasonable doubt of his guilt he is entitled to a verdict of not guilty, and that this presumption placed on the People the burden of proving him guilty beyond a reasonable doubt. The jury was also instructed that each fact necessary to establish defendant’s guilt must be proved beyond a reasonable doubt, and that it could not find defendant guilty of first degree murder unless the proved circumstances could not be reconciled with any other rational conclusion but that he had the required mental state. We see no reason to conclude the jury would have understood the challenged instruction to shift to defendant the burden of proving he did not have the required mental state.
Defendant points out, however, that he had been committed to Napa State Hospital after being found not guilty of a 1999 assault by reason of insanity. He argues that the instruction deprived the jury of the opportunity to consider the effect of his legal insanity and that it “created an unconstitutional rebuttable presumption of [his] sanity.” The issue in the guilt phase of the trial was not whether defendant was legally sane—that is, whether he knew and understood the nature and quality of his actions and could distinguish right from wrong at the time of the offense—but whether he killed Wagner with malice aforethought and with the requisite mental state. (§§ 25, subd. (b), 1026, subd. (a), 187, subd. (a), 188, 189; People v. Kelly (1992) 1 Cal.4th 495, 532-533.) The jury was instructed that it should consider the evidence of defendant’s mental disorder in deciding whether he had the required intent or mental state, and that it was the People’s burden to prove all facts necessary to show his guilt beyond a reasonable doubt. Nothing in the challenged instruction could have given the jury the impression that it must presume defendant intended to kill, premeditated, or deliberated.
D. Instructions During Sanity Phase
Defendant contends the trial court committed instructional error during the sanity phase of the trial. First, he challenges the court’s use of CALJIC No. 4.00 (Jan. 2005 ed.), which informed the jury that defendant had the burden of proving legal insanity by a preponderance of the evidence. As defendant acknowledges, insanity is an affirmative defense to a criminal charge, and the defendant has the burden of proving it by a preponderance of the evidence. (§ 25, subd. (b); People v. Drew (1978) 22 Cal.3d 333, 348-349 (Drew), superseded by statute as noted in People v. Skinner (1985) 39 Cal.3d 765, 768-769; People v. Miller (1972) 7 Cal.3d 562, 574; People v. Hernandez (2000) 22 Cal.4th 512, 522.)
Defendant contends, however, that the normal rule does not apply here, and that he should not have borne the burden of proving his insanity because he had already been adjudged insane as a result of a prior assault. He relies in part on In re Franklin (1972) 7 Cal.3d 126. There, our Supreme Court considered a petition for habeas corpus made by a petitioner who had been committed to a state hospital after being acquitted of a crime by reason of insanity. The court concluded that California’s procedures, which required a person in his situation to be confined in a state hospital for a minimum of 90 days pending a hearing on whether he should be released, fulfilled the requirements of due process, and that thereafter he was entitled to a full jury hearing on whether he had recovered his sanity and was no longer a danger to the health and safety of himself or others. (Id. at pp. 130-131.) In doing so, the court noted the rule that “when insanity has been adjudicated it is ‘presumed to continue unless the contrary is shown.’ ” (Id. at p. 141, fn. 9.) Thus, the court in In re Franklin did not consider the question raised here—whether a prior finding of legal insanity shifted the burden of proof of insanity to the People in a later criminal trial on an unrelated crime.
Our Supreme Court considered the effect of evidence of prior insanity in People v. Baker (1954) 42 Cal.2d 550. After being charged with the murder of his wife, but before his trial, the defendant had been found insane and committed to a state hospital. After the superintendent of the hospital certified that he had recovered his sanity, the defendant was tried for murder. The jury found him guilty of murder and sane at the time of the offense. (Id. at p. 554.) Before the killing, the defendant had been thrice committed to a state mental hospital, and was on parole from the state hospital when he killed his wife. (Id. at p. 556.) On appeal, he contended the evidence was insufficient to support the verdict that he was sane at the time of the offense. (Id. at p. 563.) The court first noted the overwhelming evidence that he was not sane at the time. (Ibid.) It then rejected the People’s reliance on the rebuttable presumption of sanity, stating, “Proof that defendant was afflicted with a permanent insanity, as distinguished from a temporary or transient insanity, prior to the commission of the crime charged will, however, dispel the presumption of sanity and raise a presumption that his insanity continued to exist until the time of the commission of the crime.” (Id. at p. 564.) The court concluded that the jury should have been so instructed. (Id. at pp. 564-565.) However, the defendant retained the burden of proving his insanity. (Id. at p. 565.)
Ten years later, our Supreme Court further explained the rule of Baker. (People v. Wolff (1964) 61 Cal.2d 795, 816-818 (Wolff), superseded by statute on other grounds as stated in People v. Smithey (1999) 20 Cal.4th 936, 979.) As to the first branch of the Baker rule—that proof of a permanent insanity prior to the commission of the crime charged will dispel the presumption of sanity—the court stated that its purpose “was only to overcome in such cases this evidentiary effect of the presumption of sanity; it did not ‘dispel’ or in any degree shift the defendant’s burden of proving insanity by a preponderance of the evidence.” (Wolff, supra, 61 Cal.2d at p. 817.) As to the second branch of the Baker rule—that proof of prior permanent insanity would raise a presumption that insanity continued to exist until the time of the commission of the crime—the court stated: “At most it is a device to justify the admission of evidence of defendant’s mental capacity at times prior to the commission of the crime; but in a proceeding of this nature such evidence would be admissible in any event, if within the bounds of materiality. ‘Strictly, it is not a legal presumption at all, but is only an inference of fact.’ ” (Wolff, at pp. 817-818.) The defendant retained the burden of proving his insanity, which could be discharged by proof of his prior permanent insanity. (Id. at p. 818.)
Thus, it appears that proof of prior insanity does not act to shift to the People the burden of proving a defendant’s sanity, and we reject defendant’s contention that the jury should not have been instructed pursuant to CALJIC No. 4.00 (Jan. 2005 ed.).
Defendant did not contend in his briefs on appeal that the jury should have been instructed on the evidentiary effect of his prior insanity finding. (See Wolff, supra, 61 Cal.2d at pp. 817-818.) At oral argument, defendant argued, citing Baker, that the jury should have been instructed that his insanity should be presumed. To the extent that he was advancing at oral argument a new argument that the jury should have been instructed on the evidentiary effect of the finding—as opposed to making an argument about the proper burden of proof—we will not consider it here. (In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1047, fn. 1; Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226.)
Defendant’s contention that the trial court erred in instructing the jury on the burden of proof he shouldered in establishing his insanity has more merit. As we have noted, defendant was required to prove his insanity by a preponderance of the evidence. (Evid. Code, § 522; Drew, supra, 22 Cal.3d at pp. 348-349.) The trial court instructed the jury on the use of circumstantial evidence as follows: “Each fact which is essential to complete a set of circumstances necessary to establish the defendant’s insanity must be proved by a preponderance of the evidence. In other words, before an inference essential to establish insanity may be found to have been proved by a preponderance of the evidence, each fact or circumstance on which the inference necessarily rests must be proved by a preponderance of the evidence. [¶] Also if the circumstantial evidence permits two reasonable interpretations, one which points to the defendant’s insanity, the other to his sanity, you must adopt the interpretation that points to the defendant’s sanity and reject the interpretation that points to his insanity. If, on the other hand, one interpretation of the evidence appears to you to be reasonable, the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (Italics added.)
Defendant contends, and we agree, that the italicized language misstates the burden of proving a fact through circumstantial evidence by the preponderance of the evidence. The instruction was adapted from CALJIC No. 2.01, which informs the jury of how to evaluate circumstantial evidence when determining whether the prosecution has met its burden to prove a defendant’s guilt beyond a reasonable doubt. In this context, the jury is correctly informed that a defendant’s guilt has not been proven by circumstantial evidence beyond a reasonable doubt if one reasonable interpretation of the evidence points to innocence. (See People v. Perez (1992) 2 Cal.4th 1117, 1124.) To prove a fact by the preponderance of the evidence, however, it is not necessary to show that there is no reasonable interpretation of the evidence that points to the fact not being proven, but only that it is more likely than not that the fact is true. (See Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878-879.) In evaluating circumstantial evidence, the fact finder may well decide that there are two reasonable interpretations of the evidence, but that one—such as defendant’s insanity—is more likely true than not. The challenged instruction told the jury that in such a case, it must adopt the interpretation consistent with defendant’s sanity. In doing so, it effectively raised defendant’s burden of proof beyond a preponderance of the evidence. The trial court erred by so instructing the jury.
CALJIC No. 2.01 provides: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”
Defendant contends the error implicates his right to due process under the United States Constitution because it required him to “shoulder a burden greater than the preponderance-of-the-evidence standard which is constitutionally permissible,” and as a result we must reverse the judgment unless we believe the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) For this standard of prejudice, he relies on People v. Johnwell (2004) 121 Cal.App.4th 1267. The court in Johnwell considered not the standard of proof for insanity, but that for incompetence to stand trial. The trial court there had instructed the jury according to CALJIC No. 2.01. The Court of Appeal concluded that although the instruction may be mandated in civil or quasi-civil cases in which proof beyond a reasonable doubt is required, it has “no application when the standard of proof is preponderance of the evidence.” (Johnwell, at p. 1274.) Noting the United States Supreme Court had ruled California’s competency scheme, which presumed the defendant was competent and placed on him the burden of proving incompetence by a preponderance of the evidence, comported with due process (id. at p. 1273, citing Medina v. California (1992) 505 U.S. 437, 446-453; § 1369, subd. (f)), the court stated a scheme that required a higher standard of proof would violate due process because it would allow the state “ ‘to put to trial a defendant who is more likely than not incompetent.’ ” (Id. at p. 1273, quoting Cooper v. Oklahoma (1996) 517 U.S. 348, 350, 369). Because the right of a defendant who is more likely than not incompetent not to be put on trial is constitutional, the court concluded the appropriate standard of prejudice was the harmless-beyond-a-reasonable-doubt standard of Chapman. (Johnwell, supra, 121 Cal.App.4th at p. 1276.)
Unlike the standard for competence, however, the preponderance-of-the-evidence standard for a finding of insanity is a matter of state law, and is not of federal constitutional dimensions. More than 50 years ago, the United States Supreme Court ruled that a state law requiring a defendant to prove his insanity beyond a reasonable doubt did not offend due process. (Leland v. Oregon (1952) 343 U.S. 790, 798-799; see also Clark v. Arizona (2006) 548 U.S. ___ [165 L.Ed.2d 842, 872; 126 S.Ct. 2709, 2731] citing Leland [“a jurisdiction may place the burden of persuasion on a defendant to prove insanity as the applicable law defines it, whether by a preponderance of the evidence or to some more convincing degree”].) In evaluating error under state law, we apply the Watson test for prejudice—that we reverse “if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.” (People v. Guiton (1993) 4 Cal.4th 1116, 1130, citing People v. Watson (1956) 46 Cal.2d 818, 836.) As our Supreme Court explained in People v. Breverman (1998) 19 Cal.4th 142, 177, “Appellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.”
Applying this rule, we conclude the error was harmless under the Watson test. Defendant relied for his claim of insanity on his expert, Victor, who testified that although defendant most likely understood the nature and quality of his acts when he killed Wagner, his hallucinations and delusions prevented him distinguishing right from wrong. The evidence that defendant knew right from wrong, however, was strong. Victor himself acknowledged that defendant had told him at a time he was showing psychotic symptoms that he understood it was morally wrong to take another person’s life, and he did not give a psychotic explanation for killing Wagner. Two court-appointed mental health experts reviewed defendant’s records and interviewed him, and testified that he was sane when he killed Wagner. Donoviel in particular testified that defendant’s records indicated that by the middle of April 2002, defendant was thinking rationally, that he told Donoviel he had attacked two other patients to teach them a lesson, and that he knew killing someone was legally and morally wrong. Defendant told at least three people in the days before the killing that he intended to harm or kill Wagner for failure to pay a drug debt. He behaved calmly when Wagner’s body was discovered, and gave a false explanation of the event to the patient who found him. Although there was evidence defendant had been in an agitated state in the days before killing Wagner, there was no indication he offered a psychotic explanation for the killing.
Moreover, although the challenged instruction erroneously stated the standard the jury should apply in evaluating circumstantial evidence, the jury was elsewhere correctly instructed that defendant was required to prove insanity only by a preponderance of the evidence. Bearing in mind both the relative strength of the evidence of defendant’s sanity and the other instructions on defendant’s burden of proof, we cannot conclude it was reasonably likely the jury would have found defendant insane in the absence of the erroneous instruction.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.