When a defendant enters a plea of not guilty by reason of insanity at trial for a first-degree murder, can he still be found guilty of first degree murder?

The holding in Jackson was not intended, as appellant infers, to breathe new life into a waiver of right to trial on the "not guilty" plea. Here the trial court correctly presumed appellant was sane for purposes of fixing the degree and allowed all evidence either side wished to present. The evidence disclosed that appellant purchased ammunition, loaded his gun, sharpened his knife, concealed himself in a darkened room and waited for the victim, shot him eight times, stabbed him 41 times, and that he told his sister the day before the murder that he was going to kill Galvan. [167 Cal.App.3d 455] There was substantial evidence to support the trial court's finding of first degree murder on theories of "lying-in-wait", or "willful, deliberate and premeditated." ( 189; People v. Johnson (1980) 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738.)

Appellant contends, however, that since he was originally adjudged insane at the time of the offense, he could not have the requisite state of mind for first degree murder; i.e., to premeditate, deliberate, or harbor malice aforethought. In essence, appellant asks us to hold that an insane person, as a matter of law, cannot commit first degree murder. We decline to do so. When both "not guilty" and "not guilty by reason of insanity" pleas are entered, a defendant is first tried as if only the "not guilty" plea had been entered, and is conclusively presumed to have been sane at the time the offense was committed. ( 1026, subd. (a).) Since legal sanity is presumed at the first phase of the trial, evidence to show the existence of legal insanity is barred on that issue at that stage. (People v. Wells (1949) 33 Cal.2d

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