Opinion
A146663
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. KARL GEORGE SANFT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H50443)
Defendant Karl George Sanft does not dispute that sometime after midnight on February 2, 2010, in Hayward, he stabbed Angelito Erasquin 22 times, and James Wightman 48 times. When, several hours later, he was approached by Sunnyvale police, his behavior was sufficiently strange that he was taken into custody and evaluated in accordance with the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5150). On February 4, defendant was released by the hospital into the custody of Hayward police. Defendant was transported to another psychiatric facility, and then to the Hayward jail, where he was interviewed later in the evening of that day. After being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436, during the course of a lengthy interrogation, defendant admitted to killing Erasquin and Wightman.
At the conclusion of a bench trial by the Honorable Joseph Hurley, defendant was found guilty of two counts of first degree murder, each with a special circumstance finding and a determination that had personally used a deadly weapon during the commission of the offense. Judge Hurley then conducted a hearing on defendant's alternate plea of not guilty by reason of insanity, and determined that defendant was sane at the time he committed the murders. Defendant was thereafter sentenced to state prison for the terms prescribed by law. On this timely appeal, defendant contends that Judge Hurley (1) erred in denying his motion to suppress evidence of his custodial interrogation, and (2) misapplied the law in finding him sane. We conclude both contentions are without merit, and thus affirm.
There was No Miranda Error
Defendant's jailhouse interview was conducted by Hayward Police Inspectors Woods and Guimares. It was recorded. Defendant's suppression motion was submitted for Judge Hurley's decision on the basis of the recording, a transcript of the interrogation, and brief testimony by Woods concerning events antecedent to commencement of the interrogation.
After hearing argument on the motion, Judge Hurley denied it on the ground that "this is not a Miranda violation." It was not a situation where the interrogating officers were "softening [defendant] up too much" because "[t]hey're . . . dealing with him in shackles. That's not the best way to soften people up." In addition, defendant was "pretty clear that he wants to talk." This was not a situation where "he's done talking," but questioning had improperly continued. There was "the one time" defendant might have given an indication he wanted questioning stopped, but it was defendant who "volunteer[ed] talking without a real question being put to him." Judge Hurley concluded this did not "rise to [a] violation of his Constitutional Rights." Defendant's "state of mind" during the interview, "even if not fully balanced, . . . clearly appreciates his situation; his remorse reflects that."
As stated in the initial caption of his opening brief: "In view of Mr. Sanft's patent delusions at the time of his interrogation by police, this court should conclude that his Miranda waiver and confession were involuntary, and that Mr. Sanft made a sufficient assertion of his Fifth Amendment privilege which was not 'scrupulously honored.' " The word "coercion" appears nowhere in defendant's brief. Defendant believes that his delusions were sufficiently obvious and of such magnitude that this court should decide, as a matter of law, that the interrogation should never have happened. Defendant asks too much of us.
"The Fifth Amendment to the United States Constitution, which applies to the states by virtue of the Fourteenth Amendment, provides that no person may be compelled to be a witness against himself or herself. [Citations.] In Miranda, . . . the United States Supreme Court 'adopted a set of prophylactic measures to protect a suspect's Fifth Amendment right from the "inherently compelling pressures" of custodial interrogation.' [Citation.] Pursuant to Miranda, a suspect 'must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' [Citation.] [¶] It is well settled, however, that after the familiar Miranda advisements are given, a suspect can waive his or her constitutional rights. [Citation.] To establish a valid Miranda waiver, the prosecution bears the burden of establishing by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary under the totality of the circumstances of the interrogation." (People v. Linton (2013) 56 Cal.4th 1146, 1170-1171.)
"[A]ll that is required for a valid waiver of [Miranda] rights is that the defendant understand that he could stand mute, request a lawyer and that anything he did choose to say could be used against him to secure a conviction." (People v. Clark (1993) 5 Cal.4th 950, 991-992.) For that reason, "[u]nadorned Miranda warnings . . . sufficed to give defendant all the information necessary for him to make a knowing and intelligent choice to waive or invoke his right to counsel." (People v. Clark, supra, at p. 992.)
"In general, if a custodial suspect, having heard and understood a full explanation of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, he or she has thereby knowingly, voluntarily, and intelligently waived them. [Citation.] Law enforcement officers are not required to obtain an express waiver of a suspect's Miranda rights prior to a custodial interview. [Citation.] Rather, a valid waiver of Miranda rights may . . . be inferred from the defendant's words and actions." (People v. Cunningham (2015) 61 Cal.4th 609, 642.) "A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.)
" 'On review of a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda.' " (People v. Hensley (2014) 59 Cal.4th 788, 809.)
Here, there is no genuine dispute about the historical facts, plus the interview was recorded, making any Miranda issues for our independent review issues of law. (E.g., People v. Jackson (2016) 1 Cal.5th 269, 339; People v. Vance (2010) 188 Cal.App.4th 1182, 1211.) As for the issue of voluntariness, which is based upon considerations of due process, the standard of review is the same. (E.g., People v. Peoples (2016) 62 Cal.4th 718, 740; People v. McCurdy (2014) 59 Cal.4th 1063, 1086.)
A defendant's mental ability is certainly appropriate to consider, but only as one of the totality of the circumstances. (E.g., People v. Duff (2014) 58 Cal.4th 527, 555-556; People v. Gonzales (2012) 54 Cal.4th 1234, 1269.) Defendant is not so implicitly asking that we elevate that one factor into one that is more important than all others. Such an approach has generally been rejected in other jurisdictions as a distortion of the totality of the circumstances standard. (E.g., Colorado v. Connelly (1986) 479 U.S. 157, 164 [rejecting "conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional 'voluntariness.' "], 169-170 ["There is obviously no reason to require more in the way of a 'voluntariness' inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context."]; Rychtarik v. State (Ark. 1998) 976 S.W.2d 374, 376; Com. v. Bracey (Pa. 1983) 461 A.2d 775, 778-782; Forster v. State (Alaska App. 2010) 236 P.3d 1157; McGregor v. State (Okla.Crim.App. 1994) 885 P.2d 1366, 1378; State v. Turner (Tenn.Crim.App. 1999) 1999 WL817690 *6-*8.)
According to the United States Supreme Court, "while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry" into whether confession was voluntarily obtained. (Colorado v. Connelly, supra, 479 U.S. 157, 165.) Our own Supreme Court appears to following this approach. (People v. Bradford (1997) 14 Cal.4th 1005, 1045 ["we cannot conclude that defendant's statement was involuntary solely because of any alleged physical or mental condition."]; accord, People v. Hensley, supra, 59 Cal.4th 788, 814.)
And in 2007, our Supreme Court held: "Insofar as a defendant's claims of involuntariness emphasize that defendant's particular psychological state rendered him open to coercion, this court has noted that '[t]he Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion." ' (People v. Bradford, [supra,] 14 Cal.4th [at p.] 1041 . . . ; see also Colorado v. Connelly, [supra,] 479 U.S. [at p.] 165 [while mental condition is relevant to an individual's susceptibility to police coercion, a confession must result from coercive state activity before it may be considered involuntary].) The record does not convince us that the interrogating officers were aware of, or exploited, defendant's claimed psychological vulnerabilities in order to obtain statements from him." (People v. Smith (2007) 40 Cal.4th 483, 502.)
The record here is, if anything, even stronger. The interrogation did not begin until the officers knew than defendant had in effect been released from two facilities at which his mental state had been at issue. No member of the staff at either institution communicated information concerning defendant's mental condition that reached Inspector Woods. Thus, there was no exploitation. (Cf. Colorado v. Connelly, supra, 479 U.S. 157, 164-165 [discussing a case where the police learned during the interrogation that the defendant "had a history of mental problems" and "exploited this weakness with coercive tactics"].)
The interrogation did not begin until defendant was given the Miranda admonitions and signed a waiver form, and that did not occur until after Inspector Woods had talked with defendant getting background information for approximately 15 minutes. Defendant was interviewed while in shackles, but this restraint was by order of Inspector Woods's superior, who was motivated by concern of the interrogating officers' safety. At no time during the lengthy interview did defendant complain about them or ask to be released from them. Defendant was under arrest, but not for the murders.
During this period defendant made a number of statements which his counsel at the suppression hearing characterized as "rather bizarre assertions." The transcript (with minor nonsubstantive editorial modifications) shows them as following defendant telling the officers that one of his brothers had been "murdered by . . . Surenos":
"Q1: You doing alright man? We're pretty tired. It's been a long day for you?
"A. No, it's just that this is all supposed to be taken care of by the Feds and the Feds were. They were supposed to be, I don't know. This shit is crazy.
"Q1: The Feds? I don't understand.
"A. Yeah, cause you [k]now the federal government is owned by families, right? And we're related directly to the King of Tonga. And all this shit is just my brother and his, he's . . . big time. He runs all—all the others and he runs the scraps and shit like that and he just play games. Just trying, and instead of murdering me, they're probably gonna put me in jail for life.
"Q1: The Feds are you said?
"A. Nah, the Feds were on my side.
"Q1: Oh, okay.
"A. They were hookin' me up but, I know it sounds all crazy and stupid but.
"Q1: Well, explain it to me, I don't. Okay.
"A. I just sound crazy every time I explain it.
"Q1: Well, you know, we sit in here and believe you me, we've heard some things that may, people may think sound crazy, and it's not. It's just all, it's just somebody getting the chance to explain what they're talkin[g] about. Sometimes people just cut 'em too short and then, it may, the little bit that you do hear, ah that sounds crazy, well explain it, so. You said that the Feds are on your side?
"A. Um-hmm.
"Q1: In regards to what?
"A. Cause the Federal government had an agreement with um the fourteenth (unintelligible). And that was for them to take over the drug, the drug (unintelligible) gang. Over methamphetamines, cocaine and heroin. They wanted to start doing all the drugs here in um the United States. And, well they wanted me and you know, eventually I was supposed to become King of Tonga. Get outta my family, and ah they're gonna lock away all these people who were doing insurance scams. And you know it's all about how they got into thirteen—the terrorists. Alright, and they were filtering out all the money through the drug gang. That's why also, the economy was being messed up and I was also working through insurance scams. Which also, man this thing is bigger than big. I just keep telling myself that, man. Well, that's why, when Obama took office his whole purpose was just to go on ahead and cut the international community off and not give them any sort of anything. And he was giving the power to certain people inside the United States to go ahead and manufacture whatever was possible. And also exempted them from anything. From any police, FTI, any police uh, you know like if the police pulled you over, they'd be forced to let you go. You know? And, but the whole purpose was to exit out, ex out the International community and start our own community tight knit, and start getting our communities together. I was also supposed to be given to the XIB. It still is gonna be given. I know I played a major role in it. 'Cause they want to (unintelligible) from me, to go ahead and go to Tonga and, you know, and we were supposed to go over there and take over them, they're still the fifteen richest in the world. (Unintelligible) you know, in, in money-wise. But um, I guess um by me being in jail right now I failed them. I did something wrong.
"Q1: Do you know why you're here?
"A. No one ever told me yet.
"Q1: Ah, let's see. Give me a sec, excuse me. You were stopped over in Sunnyvale, correct?
"A. Mhmm.
"Q1: Okay. I wanna talk to you about how you ended up over there. . . . [¶] . . . [¶] Okay Karl I wanna talk to you about why you're in jail. Um, but because you are in custody I have to read you your rights, okay, by law." Once the actual interrogation began, defendant made further "bizarre" comments.
E.g., referring to the transcript, ["I was supposed to be like an economic hit man for the . . . FBI"; asked "what did you do?" defendant answered "Well, Taliban hooked up with Thirteen. Thirteen already has the international community. They have all the Chinese, the Philippines, everyone that's working for them. All of them wanted to get—they would send me outta here. So, the whole point was to get the money back from all of them and bring it back here"], ["There's no federal guys that could come over here too? [¶] . . . [¶] I feel like they left me out. They just said 'bye.' "], [driving from his home to Sunnyvale, the "Feds" provided license plates "I would change them and then when the police ran my license plate they would . . . leave me alone"], ["I was supposed to be doing God's work. [¶] . . . [¶] I'm from the bloodline of Jesus. And that's why they chose me" "I just did what I thought they told me to do"], ["what happened to that sweatshirt?" "I left it over there with those guys, . . . because they're all Feds"], ["I'm sorry that what happened. I have insanity words."].
When Inspector Woods was asked by defendant's counsel at the suppression hearing whether defendant's remarks "cause you to be concerned, before you did Miranda, that maybe Mr. Sanft was mentally unstable at the time he was speaking to you?," Woods replied: "I didn't know what to think, honestly. I didn't know if he was playing a game or not. That's why we continued to speak with him." Counsel then asked whether Woods inferred that defendant "either . . . was playing crazy . . . or that in fact he was mentally unstable?," to which the inspector repeated: "I, honestly . . . I really didn't know. I just wanted to play it out. As long as he was talking, I wanted him to continue to talk." With respect to defendant's remark that he was related to the king of Tonga, Judge Hurley asked, "If it were true, do you think that would be some sign of irrationality?" Inspector Woods answered, "No."
It may be readily conceded that some of defendant's remarks do qualify as "bizarre." But the Inspectors Woods and Guimares are not mental health professionals, and the law does not require that interrogating officers "make difficult decisions about an accused's unclear intent." (Berghuis v. Thompkins (2010) 560 U.S. 370, 382.) Accordingly, and in keeping with the concept of independent review on appeal, "admissibility depends on what 'a reasonable police officer in the circumstances would understand' " (People v. Bacon (2010) 50 Cal.4th 1082, 1105), employing an objective standard. (People v. Nelson (2012) 53 Cal.4th 367, 376.) And, defendant's mental state is not by itself determinative, but simply one of the totality of relevant circumstances. (People v. Hensley, supra, 59 Cal.4th 788, 814.)
There is no suggestion of physical or mental coercion. Nothing in defendant's tone of voice differentiated his "bizarre" remarks from his other answers. After defendant had finished expounding his grandiose theory, the first follow-up question asked—and remembering that defendant had not yet been admonished with, and waived, his Miranda rights—was the innocuous and non-accusatory "Do you know why you're here?" The next question, "You were stopped over in Sunnyvale, correct?" These questions can be viewed as checking defendant's orientation and awareness of his situation. Receiving responses he deemed satisfactory, Inspector Woods proceeded to administer the admonitions and have defendant execute the written waiver. Thereafter, with rare and brief exceptions, defendant's answers were responsive to the questions put to him. His "bizarre assertions" stand out as islands in a sea of lucidity. The record shows that defendant was fully aware of both his surroundings and his situation, capable of making a knowing and voluntary decision to answer questions. (People v. Linton, supra, 56 Cal.4th 1146, 1171; People v. Clark, supra, 5 Cal.4th 950, 991-992.) Even with plenary independent review, we do not differ from Judge Hurley's conclusion on both grounds of Miranda (People v. Jackson, supra, 1 Cal.5th 269, 339) and voluntariness (People v. Peoples, supra, 62 Cal.4th 718, 740; Colorado v. Connelly, supra, 479 U.S. 157, 165, 169-170).
Again referring to exhibit 10A, ["I'm gonna be left alone in this one. You two are gonna go home to your families, not me"], ["So are you gonna tell me what my charges are?"], ["when you guys take me to jail"], ["if I do go to Santa Rita, when time comes, I don't want to be put on main line"].
With respect to defendant's claim that the inspectors ignored his stated desire to halt the interview, the undisputed record shows that shortly after receiving the Miranda admonitions, defendant answered "I don't even know if I should be talkin' right now." Inspector Woods told Judge Hurley that he (Woods) paused before resuming "asking questions about his [defendant's] son" because he "figured if he meant it he would just stop and make it clear." Judge Hurley resumed:
"There were several references where he [defendant] said I'm done.
"[A]: Yes.
"[Q]: Did you ever take any of those to mean that's it, he's not going to talk anymore?
"[A]: No. As I wrote in my report, the way he said he was done was that he was, he was finished. He was caught."
Custodial interrogation must cease if the suspect expresses the unambiguous, unequivocal intent to answer no further questions. (E.g., Berghuis v. Thompkins, supra, 560 U.S. 370, 380-381.) Qualifying words do not count. (People v. Bacon, supra, 50 Cal.4th 1082, 1105.) And " 'expressions of passing frustration or animosity towards the officers' " likewise do not qualify as an unequivocal invocation of the suspect's right of silence. (People v. Williams (2010) 49 Cal.4th 405, 433.) "It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . either to ask clarifying questions or to cease questioning altogether. [Citation.] Of course, such an approach may disadvantage suspects who, for emotional or intellectual reasons, have difficulty expressing themselves. [Citation.] However, a rule requiring a clear invocation of rights from someone who has already received and waived them 'avoid[s] difficulties of proof.' " (People v. Stitely (2005) 35 Cal.4th 514, 535, citing and quoting Davis v. United States (1994) 512 U.S. 452, 459-461.)
On this point, too, "[i]f an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and the consequence of suppression 'if they guess wrong,' " (Berghuis v. Thompkins, supra, 560 U.S. 370, 382.) "I don't even know if I should be talkin' right now" is hardly unambiguous. On the contrary, it is loaded with qualification. (People v. Bacon, supra, 50 Cal.4th 1082, 1105.) The inspectors did not cross a constitutional line in continuing the interview. (People v. Stitely, supra, 35 Cal.4th 514, 535.)
There Was No Sanity Phase Error
"For over a century prior to the decision in People v. Drew (1978) 22 Cal.3d 333, California courts framed this state's definition of insanity, as a defense in criminal cases, upon the two-pronged test adopted by the House of Lords in M'Naghten's Case (1843) 10 Clark & Fin. 200, 210: '[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.' (Italics added . . . .)" (People v. Skinner (1985) 39 Cal.3d 765, 768.)
"In 1978, this court abandoned the M'Naghten test in favor of the test proposed by the American Law Institute . . . : ' "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law." ' (People v. Drew (1978) 22 Cal.3d 333, 345.)
"In June 1982, the electorate passed an initiative measure that, among other things, established the state's first statutory definition of insanity: 'In any criminal proceeding . . . in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' ([Pen. Code,] § 25(b), italics added; see People v. Skinner, supra, 39 Cal.3d at p. 768.)
Which provides: "In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." --------
"Despite the use of the conjunctive 'and' instead of the disjunction 'or' to connect the two prongs, we held in Skinner, supra, 39 Cal.3d at page 769, 'that section 25(b) was intended to, and does, restore the M'Naghten test as it existed in this state before Drew,' and that 'under that test there exist two distinct and independent bases upon which a verdict of not guilty by reason of insanity might be returned.' " (People v. Kelly (1992) 1 Cal.4th 495, 532-533.)
Before rendering his decision on defendant's plea of not guilty by reason of insanity, Judge Hurley heard testimony from three experts, Dr. Watt for the defense, and Dr. Howard and Dr. Meyers for the prosecution. That testimony is admirably summarized in defendant's opening brief. In addition, both sides agreed that all evidence received on the issues of guilt could also be considered on the sanity issue. Defendant does not contend the record lacks substantial evidence to support Judge Hurley's decision that he was sane.
During the defense closing argument, the following occurred:
"[MR. LINEHAN]: . . . I believe that we have carried the burden based upon all of the evidence, including the psychologist, to demonstrate to this Court that on the day of these homicides, . . . Mr. Sanft had a preexisting psychosis of PTSD, depression, methamphetamine-induced psychosis, coupled with copious amounts of methamphetamine. That's insanity in the State, if . . . because of those mind sets, . . . you don't truly understand the nature and quality of your actions even if you think what you did was illegal and against the laws of the State of California, the Federal government, the world of court—
"THE COURT: If the defendant has alluded to who he's working for
"MR. LINEHAN: Yes.
"THE COURT: —but does he not believe what he did is actually lawful or morally justified, are you telling me that makes him insane?
"MR. LINEHAN: Yes.
"THE COURT: Don't you think this Drew case is just the opposite?
"MR. LINEHAN: No, because—because he also has to understand the nature and quality. It's not a combination of the two. It's not a com—and my argument to you is that right and wrong is part of the nature and quality. And you can pass the right and wrong. You can pass that without passing the nature and quality.
"THE COURT: What do you do with somebody who's supposedly so deluded and right and wrong is part of the equation and so it clearly demonstrates how he knows it was wrong and he deserves to be punished? What do I do with all of that attitude?
"MR. LINEHAN: Okay, I'm—let me address it exactly as you posed it . . . ."
Based on what he concedes is "apparently a reference" to Drew, and the single question to defense counsel during closing argument, defendant insists that Judge Hurley was operating from a legally erroneous understanding of the insanity defense. He reasons:
"First, the trial court's reference to People v. Drew . . . standing alone . . . would call the sanity verdict into serious question. In Drew, the California Supreme Court rejected the M'Naghten rule in favor of the Model Penal Code definition of legal insanity. The Supreme Court also found that the jury was not obligated to render a verdict under the M'Naghten rule that conformed with unanimous expert opinion. Mr. Sanft can identify nothing in Drew which should logically have informed the trial court's resolution of the issue of sanity under either prong of section 25(b), and the reference to Drew, in and of itself, should cause this court to question the sanity verdict.
"Second, the trial court in its query of defense counsel revealed that it was not following the lessons of [specific decisions]. The trial court's question concerned whether Mr. Sanft 'does not believe that what he did is actually lawful or morally justified . . . ,' in reference to what Mr. Sanft had expressed to the detectives regarding remorse. However, Mr. Sanft had clearly expressed to the detectives that his actions in entering the auction yard and taking property were legally justified as to the specific acts, albeit not lawful in the abstract. Equally importantly, Mr. Sanft's evaluation of matters many hours later, in post-arrest hindsight, differs from his delusional beliefs at the time he acted.
"In short, the reference to the Drew case, and the references to 'actually lawful or morally justified' instead of legally justified as to the specific acts, undermines the trial court's sanity verdict. That finding should be set aside."
We do not agree.
The underlying premise of this claim is highly problematic. Defendant is looking to questions asked by Judge Hurley of counsel during closing argument, not a written decision (such as Judge Hurley filed for the guilt phase of defendant's trial) or even the oral decision made at the end of the sanity phase. Probing or even provocative questions may be meant to test or explore an advocate's position. Interlocutory remarks, comments, and questions are not scientifically reliable reflectors of the ultimate judicial ruling, order, or judgment. Hence the established principle of appellate practice that " 'a judge's comments in oral argument may never be used to impeach the final order, however valuable to illustrate the court's theory they might be under some circumstances.' " (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 300.)
This is one application of the principle that it is what the lower court did—as opposed to what it said—that an appellate court reviews. "[I]t is well settled that it is judicial action and not judicial reasoning or argument which is the subject of review [citation] and oral opinions or statements of the court may not be considered to reverse or impeach the final decision of the court which is conclusively merged in its findings and judgment." (Selfridge v. Carnation Co. (1962) 200 Cal.App.2d 245, 249.) " ' "No antecedent expression of the judge, whether casual or cast in the form of an opinion, can in any way restrict his absolute power to declare his final conclusion . . . ." ' " (Taormino v. Denny (1970) 1 Cal.3d 679, 684.)
"As an aspect of the presumption that judicial duty is properly performed, we presume . . . that the court knows and applies the correct statutory and case law . . . ." (People v. Coddington (2000) 23 Cal.4th 529, 644.) This presumption is especially potent in light of Judge Hurley's extensive experience overseeing a criminal trial department, and we would be particularly hesitant to see it rebutted by offhand or incidental expressions.
In any event, defendant's attack is only against the possible application of one of the two statutory tests for insanity. (See Pen. Code, § 25, subd. (b), quoted at fn. 3, ante.) Moreover, it is clear from Judge Hurley's actual oral pronouncement of his decision that it was largely dictated by the evidence. He rejected the argument of defendant's counsel because "I do not agree with how the evidence fit in those arguments." He rejected the conclusion of the defense sanity expert because of its relation to the undisputed circumstances: "her opinion that the defendant was insane but possibly brought [back] to his sanity by the bloody aftermath of his conduct and then was back to insanity during questioning is nothing any psychiatrist or psychologist could be that good at without some supernatural abilities."
An additional factual point is that defense counsel's argument was to a large extent intertwined with defendant's consumption of methamphetamine, but, as cogently noted by the Attorney General, this factor is statutorily excluded from a sanity determination. (See Pen. Code, § 29.8.) Moreover, defendant had no history of mental illness, a point extensively developed by the prosecution's sanity expert, Dr. Howard. Most pertinently, Dr. Howard noted that at the time of defendant's release from the hospital where he had been committed for psychiatric observation, the treating professionals noted only that defendant had been seen suffering from a "drug-induced psychosis," or possibly even "malingering," that is, "[l]ying, feigning." The latter possibility would, of course, cast severe doubt upon the legitimacy of defendant's claimed delusions. A psychotic episode caused by the voluntary ingestion of intoxicants makes a finding of insanity extremely unlikely in these circumstances. (See People v. Cabonce (2009) 169 Cal.App.4th 1421, 1433-1434 [text & fn. 5], 1436-1437; People v. Robinson (1999) 72 Cal.App.4th 421, 426-427.)
The judgment of conviction is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.