Phillips

Appellant was convicted after a bifurcated jury trial of murder in the second degree (Pen. Code, §§ 187, 189) with the finding that he used a firearm under Penal Code section 12022.5. The same jury found he was sane at the time the offense was committed. The court denied probation, struck the jury’s finding on the use of a firearm, and sentenced appellant to state prison for the term prescribed by law.

Phillips asserts three grounds for reversal: (1) denial of due process in the guilt phase when the court informed the prospective jurors in voir dire that appellant also had pleaded not guilty by reason of insanity; (2) the jury should not have been instructed that defendant had the burden of proof on the sanity issue; and (3) the court erroneously instructed on the M’Naghten rather than the American Law Institute (ALI) test as a standard of mental incapacity in the sanity phase of the trial.

Statement of the Facts

The basic facts concerning the homicide were not in dispute except for the identity of appellant as the assailant. In the late evening of July 9, 1976, the victim, Cardell Edwards, and appellant had an altercation outside the Elks Lodge in Bakersfield,…