P. v. Franco

Filed 5/15/07 P. v. Franco CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed and remanded with directions.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan S. Pithey, Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant David Franco (defendant) set fire to the interior of a parked motor home that was occupied by two women who were strangers to him. He was charged with and convicted on five felony counts, including two counts of attempted premeditated murder, following a court trial.

On appeal, defendant contends that the trial court erroneously applied the transferred intent doctrine to the two attempted murder counts. He further contends that the trial court applied an incorrect standard in determining his insanity defense and that the trial courts sanity finding was not supported by substantial evidence.

We hold that in finding defendant guilty on the attempted murder counts, the trial court correctly applied the concurrent intent or kill zone doctrine, not the transferred intent doctrine. We further hold that the trial court applied the correct standard in determining defendants insanity defense and that there was sufficient evidence to support the trial courts sanity finding. We therefore affirm the judgment.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney charged defendant in an information with two counts of attempted premeditated murder, in violation of Penal Code sections 187, subdivision (a), and 664;^[1] one count of arson of an inhabited structure, in violation of section 451, subdivision (b); and two counts of criminal threats, in violation of section 422.

Defendant waived his right to a jury trial, and a court trial commenced. At the close of the prosecutions case-in-chief, defendant entered an additional plea of not guilty by reason of insanity. The trial court appointed two psychiatrists to examine defendant pursuant to section 1026, and suspended proceedings pending completion of those examinations and submission of reports to the court. After the psychiatrists filed their respective reports in the trial court, trial resumed with the testimony of the psychiatrists. Defendant waived a bifurcated trial on the issues of guilt and not guilty by reason of insanity. The trial court found defendant guilty on all five counts and found that he was sane at the time he committed the offenses.

The trial court denied probation and sentenced defendant as follows: concurrent life sentences with the possibility of parole on Counts 1 and 2[2]―attempted premeditated murder in violation of sections 187, subdivision (a), and 664; a concurrent five-year sentence on Count 3―arson in violation of section 451, subdivision (b); and concurrent two-year sentences on Counts 4 and 5―criminal threats in violation of section 422. The trial court stayed the sentences on Counts 3 through 5,[3]and awarded defendant 722 days of custody credit comprised of 628 days of actual custody credit and 94 days of conduct credit.

FACTUAL BACKGROUND

A. The Incident

On September 30, 2004, Janie Young (Young) and Kathleen Robertson (Robertson) were sleeping in Youngs parked motor home on Penrose Avenue, near the 5 Freeway, in Los Angeles County. Around 7:30 a.m., Young awoke and noticed that the front drivers side of the interior of the motor home was on fire. The carpeted drivers door was involved, as were the dome light and some clothes on the drivers seat. She saw defendant standing outside the motor home lighting clothes and stuff through the window. He was lighting clothes and paper on fire and placing the flaming items inside the vehicle through the partially open drivers side window. Young awakened Robertson and rushed to the front of the motor home. Robertson took a few minutes to compose herself. She made sure her cats and dogs were to the rear of the motor home, and then tried to extinguish the fire with her hands and feet.

In the meantime, Young exited the motor home on the passenger side, fell to the ground, and injured her foot. She got up, walked around the front of the motor home to the drivers side door where defendant was standing, and told him to stop because there were people and animals inside the vehicle. Defendant continued to light items on fire with a lighter and stuff them through the drivers side window of the motor home.

In response to Youngs request to stop and advice that a woman and animals were inside the vehicle, defendant told her not to worry . . . he hadnt killed anyone in six months and that he was going to burn the motor home down and kill everyone inside. As defendant made those statements, he still was lighting items on fire and stuffing them through the window. Young asked defendant for whom he was looking, and he responded Mike because Mike had stolen his motor home.

To make defendant move away from the motor home, Young asked him to stop and come with her to breakfast. Defendant stopped putting flaming items into the vehicle. He then handed Young a plastic bag with eggs and cockroaches inside of it. Young put the bag down and told defendant that her friend was going to come out of the motor home and get the car so they could go to breakfast.

Defendant went to the passenger side door, opened it, and attempted to enter the motor home. Young grabbed him by the back of his shirt and pulled him away. Defendant said Mike was inside the motor home and that he was going to go inside and kill everyone. Young responded by telling defendant that he looked nice, he was a very nice person, and he did not have to do that. Defendant followed her to the back of the motor home.

Robertson jumped out of the motor home and Young handed her a cellular telephone. Young told Robertson to distract defendant by asking him for a cigarette and telling him that she was going to make reservations for breakfast. Robertson walked away from Young, and Young saw a fire truck exiting the freeway that she flagged down. She explained to the firemen what had happened. Defendant was being distracted by Robertson, who was pretending to make reservations for breakfast, while actually trying to call 911 on Youngs cellular telephone. The firemen made defendant sit down behind the motor home. Defendant told the firemen that the motor home belonged to him and that Young was his girlfriend.

Los Angeles County Arson Investigator John Little, who was a sworn peace officer and assigned to the Arson/Counter-Terrorism section of the County Fire Department, arrived at the scene. Several units from the Los Angeles Police Department had taped off the area, and an engine from the Los Angeles City Fire Department was also on scene.

Investigator Little saw three motor homes parked beneath the freeway overpass on Penrose. The last one in the series of parked vehicles had fire damage. Investigator Little noticed defendant being watched by firefighters. Defendant was not in handcuffs or being detained at that point. When he arrived at the scene, Investigator Little spoke with the fire captain and was briefed on the situation. After briefly inspecting the fire-damaged motor home, he introduced himself to defendant and told him that he was investigating the fire. Defendant responded spontaneously that he had set fire to the motor home. He further volunteered that he had nothing to hide and that, if he had had a gun, he would have shot them.

The Los Angeles Police Officers on the scene took defendant into custody. Investigator Little subsequently conducted a thorough interview of defendant after defendant waived his rights under Miranda.[4] Defendant admitted setting fire to the motor home. He stated that he approached the motor home and saw a friend of his, whose name he could not recall, sitting in the drivers seat. Defendant tried to get his friend to move the vehicle, but the friend would not respond. Defendant then began lighting material and putting it through the partially open drivers window. He also pulled material out of the vehicle and was lighting it.

Investigator Little asked defendant if he knew a Mike, and defendant responded that Mike was the brother of the black girl that owns the motor home. Defendant then stated that he owned the motor home and that his father had bought it for him. Defendant admitted that he threatened to kill the occupants of the motor home and that he would have killed them.

Investigator Little also conducted an examination of the motor home. He observed fire damage on the drivers side, including minor charring on the exterior and the upper and lower window frame of the drivers door, as well as burn damage to the interior of the drivers cab. Investigator Little formed the opinion that the fire was intentionally set.

B. The Testimony of the Expert Psychiatrists

As noted above, at the close of the prosecutions case, defendant entered a plea of not guilty by reason of insanity. The trial court accepted the plea, and appointed two psychiatrists―Dr. Miles for the defense and Dr. Markman for the prosecution―to evaluate defendant and report to the court. Because the experts reports disclosed a difference of opinion on the sanity issue, they each were called to testify in court.

1. Dr. Miles Testimony

After examining defendant for an hour, and reviewing police reports, reports of family members, medical records, and the transcript of the trial testimony, Dr. Miles concluded that [defendant] suffers from an affective disorder which may be either organic or bipolar disorder; alcohol abuse and dependence, which is in remission in the controlled environment of the jail; opiate dependence and remission in that controlled environment. [] He has diabetes, cerebral vascular disease -- which is significant -- coronary artery disease and chronic obstructive lung disease.

In response to a request for his opinion about whether defendant could appreciate the wrongfulness of his acts in setting the motor home on fire, Dr. Miles responded, I couldnt fully determine the issue regarding the setting of the vehicle on fire because he denied any memory of that. [] He said what he was concerned with was protecting his home; that this was an RV that belonged to him, he believed; and that he just wanted to get these intruders out of there and he was protecting his place; and he didnt believe that he had set the fire because he said it didnt make sense to be setting fire to your own home. [] Regarding other aspects of his conduct at that time, [defendant] didnt see that he was doing anything wrong, that he was just protecting his place and he just wanted those intruders out of there.

Dr. Miles also testified that defendants behavior during the incident was consistent with his being in a confused, disorganized state at the time and one in which he did not feel he was doing anything wrong. [] There was no need to flee the scene. [] He did some bizarre things with these ladies, talking about the breakfast, giving them -- I think he gave one of them a bag that had eggs and cockroaches in it. [] These were all consistent with a disorganized state.

In response to the question of whether defendant was able to distinguish right from wrong at the time of the incident, Dr. Miles opined that [f]rom the description . . . the distinction [between right and wrong] would be difficult. [] I mean there would be some things that Im pretty sure he would know [were] wrong at that point, but that he was confused. [] He couldnt distinguish one thing from another. [] . . . [] He was suffering from his psychiatric illness and was intoxicated at the time and [was] neurologically impaired.

And, in response to the question of whether defendant understood the nature and quality of his actions, Dr. Miles stated, I dont believe that he understood that he was potentially hurting somebody. [] I dont believe that he understood that he was threatening somebody who was not threatening him. He wasnt aware of that. [] He believed that what he was doing initially was going to his van and trying to convince some intruders to leave, and then afterward I dont know what he was doing with the idea about going to breakfast with the lady.

2. Dr. Markmans Testimony

Dr. Markman examined defendant for approximately an hour and a half. He also reviewed police reports, the probation report, and the transcript of the trial testimony. Dr. Markman concluded that defendant conversed in a very rational manner and interacted well and demonstrated a knowledge of why he was in custody and what he was facing from a legal perspective, and seemed to grasp the import and severity of the issues. Defendant admitted to an extensive alcohol problem since age 17, and Dr. Markman concluded that it was clear that extensive alcohol and substance abuse [were] the primary issue[s] that had to be addressed. Dr. Markman didnt see any evidence that would suggest that [defendant] suffered from a mental deterioration or some kind of brain injury or some kind of difficulty that precluded rational or reasonable behavior. [] He was able to answer [Dr. Markmans] questions directly, provided rational responses in a very coherent manner. [] His grasp of current events was adequate. [] His fund of knowledge was good. [] He was able to interpret proverbs and similarities, which was indicative of the absence of a thought disorder, which is one of the ways we evaluate whether a person has or doesnt have a thought disorder; . . .

When asked if he disagreed with Dr. Miles assessment that defendant did not appreciate the wrongfulness of his conduct when he committed the crimes, Dr. Markman replied, Well, no. Its a disagreement to a degree. [] Its conceivable that [defendant] was so intoxicated that he didnt take wrongfulness into consideration because people do bizarre things when theyre intoxicated and under the influence of drugs. [] Certainly alcohol can do that and cocaine can do that and make you very paranoid and make you misinterpret events in society; but its my understanding that the law does not allow that interpretation to intrude into the issue of insanity or criminal responsibility if you get there by the intervening use of drugs or alcohol or some substance that you take voluntarily. On cross-examination, Dr. Markman summarized his opinion as follows: Im saying that his thinking was sufficiently disorganized, but that that is clearly reflective of an altered state of mind associated with alcohol and substance abuse.

DISCUSSION

A.                 Standards of Review

Defendants assertion that the trial court improperly applied the transferred intent doctrine to the attempted murder charges raises an issue of law that we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [contentions on appeal which involve the determination of applicable legal principles reviewed under a de novo standard]; see also People v. Belcher (1969) 269 Cal.App.2d 215, 220 [when judge is trier of fact, his determination as to the ultimate facts is to be made under the same legal guidelines as those for a jury].) Defendants assertion that the trial court misinterpreted and misapplied the legal standard for determining defendants insanity defense also raises a legal issue subject to a de novo standard of review. (Ibid.) Defendants contention that the trial courts sanity determination is not supported by the evidence is subject to a sufficiency of the evidence standard of review. (See People v. Severance (2006) 138 Cal.App.4th 305, 319, citing People v. Belcher, supra, 269 Cal.App.2d at p. 220.) [T]he question for us to decide is whether there is any reasonable hypothesis upon which the trial judge could have found the defendant legally sane during the commission of the crime. (Ibid.)

B.                The Trial Court Properly Applied the Concurrent Intent or Kill Zone Doctrine to the Attempted Murder Charges

Defendant contends that the trial court relied upon the transferred intent doctrine in finding defendant guilty of the attempted premeditated murders of Young and Robertson. According to defendant, even though the trial court expressly referred to the kill zone aspect and defendants intent to kill everyone in the van, the trial court made no express finding that defendant acted with the specific intent to kill Young and Robertson. Instead, defendant asserts that the trial court found malice simply because the alleged attempt was made by fire, which can spread and kill more than one person. We disagree with defendants characterization of the trial courts ruling on the attempted murder charges.

Defendant was charged in Counts 1 and 2 with the attempted murder of Young and Robertson, respectively. In People v. Smith (2005) 37 Cal.4th 733, the court considered the mental state required for a conviction of attempted murder. The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice―a conscious disregard for life―suffices. [Citation.] People v. Bland (2002) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 546, 48 P.3d 1107] (Bland).) In contrast, [a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623 [3 Cal.Rptr.3d 402, 74 P.3d 176]; see People v. Swain (1996) 12 Cal.4th 593, 604-605 [49 Cal.Rptr.2d 390, 909 P.2d 994].) (Smith, supra, 37 Cal.4th at p. 739.)

The mental state required for attempted murder is further distinguished from the mental state required for murder in that the doctrine of transferred intent applies to murder but not attempted murder. (Bland, supra, 28 Cal.4th at pp. 328-329.) In its classic form, the doctrine of transferred intent applies when the defendant intends to kill one person but mistakenly kills another. The intent to kill the intended target is deemed to transfer to the unintended victim so that the defendant is guilty of murder. (Id. at p. 317.) In contrast, the doctrine of transferred intent does not apply to attempted murder: To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. (Bland, supra, 28 Cal.4th at p. 328.) Whether the defendant acted with the specific intent to kill must be judged separately as to each alleged victim. (Id. at p. 331.) (Smith, supra, 37 Cal.4th at pp. 739-740.)

In Smith, supra, 37 Cal.4th 733, the defendant fired a single shot at a fleeing vehicle occupied by a male passenger, a female driver acquainted with the defendant, and a baby in a rear-facing car seat directly behind the driver. (Id. at p. 737.) The bullet shattered the rear windshield, narrowly missing both [the female driver] and [her] baby, passed through the drivers headrest, and lodged in the drivers side door. (Ibid.) The defendant was convicted of, inter alia, the attempted murder of the female driver and the attempted murder of her baby. (Id. at p. 738.)

On appeal, the defendant argued that there was only proof of his specific intent to kill the female driver, but no proof of his specific intent to kill the baby. (Smith, supra, 37 Cal.4th at p. 738.) In rejecting that argument, the court explained that in order for the jury to convict defendant of the attempted murder of the baby, it had to find, beyond a reasonable doubt, that he acted with intent to kill that victim, i.e., that he purposely shot into the vehicle with a deliberate intent to unlawfully take away [the babys] life [citation] or knowledge that his act of shooting into the vehicle would, to a substantial certainty, result in the babys death. [Citation.] . . . Under the case law surveyed above, evidence that the defendant purposefully discharged a lethal firearm at the victims, both of whom were seated in the vehicle, one behind the other, with each directly in his line of fire, can support an inference that he acted with the intent to kill both. [Citations.] (Id. at p. 743.)

In support of its holding, the court in Smith, supra, 37 Cal.4th 733, relied upon and explained the earlier holding in People v. Bland (2002) 28 Cal.4th 313 (Bland). In that case, the defendant fired several rounds into a fleeing car occupied by the driver and two passengers, killing the driver and wounding both passengers. (Id. at p. 318.) The defendant was convicted of the murder of the driver and the attempted premeditated murders of the passengers. (Ibid.) On appeal, the defendant argued that the trial court erroneously instructed the jury on the doctrine of transferred intent, and the Court of Appeal agreed. (Ibid.)

The Supreme Court in Bland, supra, 28 Cal.4th 313, granted review and reversed the judgment of the Court of Appeal. (Id. at pp. 318, 334.) Although the court in Bland concluded that the transferred intent doctrine did not apply to the attempted murder convictions, the court nevertheless held that [t]he conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them. As to the nontargeted members of the group, the defendant might be guilty of crimes such as assault with a deadly weapon or firing at an occupied vehicle. [Citation.] More importantly, the person might still be guilty of the attempted murder of everyone in the group, although not on a transferred intent theory. (Id. at p. 329.) Citing a Maryland state court decision,^[5] the court in Bland explained that although the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what is termed the kill zone. The intent is concurrent . . . when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victims vicinity. (Id. at p. 329.) Accordingly, the court in Bland held that even if the defendant primarily wanted to kill [the driver] rather than [the drivers] passengers, [the jury] could reasonably also have found a concurrent intent to kill those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers. (Id. at pp. 330-331.)

Here, contrary to defendants assertion, it appears that the trial court properly applied a concurrent intent theory to the facts before it, and concluded that, by setting fire to the interior of the motor home, defendant intended to kill, not just Mike, but all those inside. Defendant admitted to setting the fire, and both Young and Robertson observed him in the act of lighting paper and other material and stuffing it through the partially open drivers window. Although defendant stated that he was looking for Mike and that Mike was inside the motor home, he also repeatedly stated that he wanted to kill everyone in the motor home. As the flurry of bullets fired into the interior of the fleeing car in Bland, supra, 28 cal.4th 313, the flaming pieces of paper and other material that defendant stuffed through the window of the motor home in this case supported a reasonable inference that he intended to kill everyone inside, i.e. within the kill zone, in order to ensure that he killed his primary target―Mike.

Defendant suggests that because the trial court did not make express findings that defendant acted with the specific intent to kill both Young and Robertson, it may have misapplied the concurrent intent or kill zone doctrine, and instead applied a transferred intent theory, i.e. transferred defendants specific intent to kill Mike to the unintended victims, Young and Robertson. The transcript, however, does not support that assertion. After discussing Smith, supra, 37 Cal.4th 733 and Bland, supra, 28 Cal.4th 313, the trial court concluded: I think Bland and Smith dont create any problems for this court because fire really doesnt require a target. Its just a kill zone; and thats the paragraph in CALCRIM [No.] 600 that says a person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or kill zone. [ . . . ] So its pretty clear that even though the defendant wanted to kill Mike -- assuming thats true and that was delusional -- in most respects he still also intended to kill everyone in the [motor home] because of the kill zone aspect.^[6]

Based on the trial courts comments, it is evident the court understood the concurrent intent or kill zone doctrine, and that it drew a reasonable inference from the evidence that defendant intended to create a zone of harm inside the motor home by setting the interior on fire, and thereby ensure that he would kill Mike, whom he believed was inside. Thus, under the concurrent intent doctrine, the trial court could have reasonably concluded that defendant harbored the specific intent to kill any and all of the occupants of the motor home, including Young and Robertson.

C.                The Trial Court Applied the Correct Standard to the Determination of Defendants Sanity

Defendant contends that the trial court applied an incorrect legal standard in determining the issue of his sanity. According to defendant, the trial court believed that defendant was required to show that he did not know or understand the nature of his act and was incapable of distinguishing right from wrong, when, in fact, defendant was required to prove one or the other, but not both of those elements. The record, however, does not support defendants argument.

During oral argument on the insanity defense, the prosecutor argued that [i]n CALCRIM [No.] 3450 essentially the two elements are this: Defendant was legally insane if, one, when he committed the crimes had a mental disease or defect; and, two, because of that disease or defect he did not know or understand the nature and quality of his act and did not know or understand that his act was morally or legally wrong. (Italics added.) Defense counsel did not object or otherwise seek to correct that statement. Defendant suggests that the trial court accepted the prosecutors characterization of the legal standard applicable to defendants insanity defense, and used that incorrect standard in determining the issue of defendants sanity.

As defendant correctly points out, CALCRIM No. 3450 sets forth the second element of the sanity instruction in the disjunctive: Because of that disease or defect, (he/she) did not know or understand the nature and quality of (his/her) act or did not know or understand that (his/her) act was morally or legally wrong. (CALCRIM No. 3450, italics added.) It therefore appears that the prosecutor misstated the legal standard applicable to the insanity defense by stating the second element in the conjunctive. But it does not follow that the trial court accepted and applied that misstated legal standard. As a general rule, we presume that the trial court has properly followed established law. (People v. Diaz (1992) 3 Cal.4th 495, 567, citing Evid. Code 664; People v. Froom (1980) 108 Cal.App.3d 820, 831 [[I]t is to be presumed that a trial court rendering a decision knew and applied the proper legal guidelines].) Defendant must therefore affirmatively demonstrate error; and any uncertainty in the record is resolved against him. (People v. Clifton (1969) 270 Cal.App.2d 860, 862.)

Defendant has failed to link the prosecutors misstatement of the legal standard governing the insanity defense to any portion of the record showing that the trial court accepted and applied that misstatement of the law. Nowhere in the record of the hearing on the insanity defense does the trial court state or imply that it was accepting and relying upon the prosecutors characterization of the legal standard in making its sanity determination. To the contrary, the record reflects that the trial court had a copy of CALCRIM No. 3450 before it during the oral argument on the insanity defense. Moreover, the record shows that the trial court reviewed the trial transcript and the jury instructions prior to hearing oral argument and making its sanity determination: I read this carefully. [] I read everything and outlined it again yesterday so that I would not in any way overlook anything; and I read all the instructions again yesterday and made extensive notes for today; . . . . Defense counsel did not indicate that the trial court was under any misapprehension as to the correct legal standard. Because the record does not support the defendants assertion that the trial court applied an incorrect legal standard in making its sanity determination, we must presume that the trial court knew and applied the correct legal standard, and defendant has failed to demonstrate that the trial court did otherwise.

D.                Substantial Evidence Supports the Trial Courts Finding That Defendant Was Sane

Defendants final assertion is that the trial courts sanity determination was based, in part, on a finding that defendant was intoxicated at the time of the incident. Defendant argues that because there was no admissible evidence to support that finding, the trial courts sanity determination was not supported by sufficient evidence.

The record shows that the trial court did not make a factual determination that defendant was intoxicated at the time of the incident. Rather, the trial court accepted Dr. Markmans opinion on the sanity issue―that defendant was not suffering from any apparent mental disease or defect at the time of the incident, but rather was suffering from the effects of drug and alcohol intoxication―and rejected Dr. Miles opinion as not credible.

Specifically, in response to defense counsels argument that there was no admissible evidence of defendants intoxication at the time of the incident, the trial court stated, I know that. [] There is no evidence because there has [been] no testimony [from] any witness [for] the defense except the doctor, whos allowed to rely upon the hearsay told to him to formulate his opinion. The trial courts comments placed the intoxication issue in proper context by acknowledging that it was an appropriate basis upon which to form an expert opinion, regardless of whether defendants intoxication at the time of the incident had been independently proved by admissible evidence.

The trial court also explained the credibility issues it perceived in Dr. Miles testimony. Heres what bothers me about Dr. Miles[] testimony . . . - - this is what I think creates the problems for Dr. Miles. [] He said to the question . . . . by the defense [concerning whether defendant appreciated the wrongfulness of setting the motor home on fire] [] . . . [] I couldnt fully determine the issue regarding the setting of the vehicle on fire because he denied any memory of that. [] Then Dr. Miles states, [Defendant] said he was concerned with protecting his home. This RV . . . belonged to him, he believed and he just wanted to get these intruders out of there; and he was protecting his place; and he didnt believe he had set the fire because he said it didnt make sense to be setting fire [to] your own home. [] All of that causes me to believe that the defendant is using selective memory or Dr. Miles is doing a broken field run to get to a result. [] I cant believe defendant could have actual memory [or] recall of what his intent was and everything he was doing, but not remember setting the fire. [] I find that hard to believe; and then later . . . Dr. Miles says that the defendant said that his intent wasnt to kill them, and yet the defendant doesnt remember setting the fire. [] So how could he remember what his intent was? I think there is a little slipping and sliding here. [] He has no memory of the fire, no memory of setting it; but he can tell us about his intentions in talking to the doctor not subject to cross-examination in open court. [] Then . . . Dr. Miles says that the defendant acted willfully and maliciously regarding the arson, but he was only trying to scare them. [] How could he possibly know he was only trying to scare them if he doesnt remember ever setting the fire? [] It just doesnt ring true. [] It seems like there is some real selective imagining going on to reach a result.

Based on the trial courts statements about Dr. Miles testimony, it appears that the trial court did not find his expert opinion persuasive in this case. That testimony was the only evidence defendant submitted in support of his insanity defenseother than, of course, defendants troubling behavior. Defendant had the burden of proving that affirmative defense by a preponderance of the evidence. (People v. Coddington (2000) 23 Cal.4th 529, 608, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Because the trial court did not accept Dr. Miles opinion on the sanity issue, defendant failed to establish his insanity defense, regardless of whatever opinions Dr. Markman may have given. And, as noted, Dr. Markmans opinion could properly be based on defendants out of court statements concerning his intoxication at the time of the incident. Therefore, his opinion was sufficient to support the trial courts sanity determination. Based on the applicable standard of review, we must affirm the judgment.

DISPOSITION

The judgment of the trial court is affirmed and the matter is remanded to the trial court with directions to correct the abstract of judgment to reflect in Item number 1 the sentence on Count 2, and to reflect the stay order as it relates to the sentences on Counts 3 through 5.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The reporters transcript shows that the trial court sentenced defendant on Count 2 to a life sentence with the possibility of parole to run concurrently with the life sentence on Count 1. But the abstract of judgment does not accurately reflect the sentence on Count 2 in Item number 1, although it does in Item number 5. The trial court is ordered to correct this clerical error in the abstract of judgment so that it accurately reflects in Item number 2 the sentence on Count 2. (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101 [The rule is well settled in this state that every court of record has the inherent power to correct its records so that they shall conform to the facts and speak the truth, and likewise correct any error or defect occurring in a record through acts of omission or commission of the clerk in entering of record the judgments or orders of the court, and such correction may be made at any time by the court on its own motion].)

[3] The abstract of judgment also does not reflect the stay order relating to the sentences on Counts 3 through 5. The trial court is ordered to correct this additional clerical error in the abstract of judgment so that it accurately reflects the stay order as it relates to the sentences on Counts 3 through 5.

[4]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed. 694, 86 S.Ct. 1602].)

[5]Ford v. State (1993) 330 Md. 682.

[6] At a scheduling hearing prior to the testimony of the experts and oral argument, the trial court also discussed the holdings in Smith and Bland, and specifically referenced that doctrine of concurrent intent.