WHITTEMORE, District Judge:

Marcus Barrington appeals his convictions for conspiracy to commit wire fraud using a protected computer, accessing a protected computer without authorization with intent to defraud, and three counts of aggravated identity theft. Barrington also appeals his sentence, contending that his 84 month prison sentence is procedurally and substantively unreasonable.1

Barrington challenges the admission of Rule 404(b) evidence at trial, the district court’s restriction on cross-examination of a cooperating co-defendant, and the sufficiency of the evidence supporting his aggravated identity theft convictions. Additionally, he contends the conspiracy count in the indictment was duplicative and the jury instructions on conspiracy and aggravated identity theft were erroneous.

As for his sentence, he contends that the district court erred in calculating his base offense level, infringed on his right against self-incrimination at sentencing, erred in calculating loss, and erred in applying Guidelines enhancements for use of sophisticated means, leadership role, device-making equipment, and production of unauthorized access devices.

For the reasons discussed below, we affirm Barrington’s convictions and sentence.

I

Barrington and his co-defendants, Christopher Jacquette and Lawrence Secrease, all undergraduate students at Florida A&M University (“FAMU”), were indicted and charged in a five count indictment with conspiracy to commit wire fraud using a protected computer in violation of 18 U.S.C. §§ 371 and 1349; fraud using a protected computer in violation of 18 U.S.C. §§ 1030(a)(4) and (c)(3)(A) and 2; and three counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A and 2. Jacquette and Secrease pleaded *1184guilty pursuant to plea agreements, received substantial assistance departures pursuant to U.S.S.G. § 5K1.1, and were each sentenced to 22 months in prison and 3 year terms of supervised release.

The offense conduct

Barrington’s convictions arose from a scheme he and his co-conspirators concocted to access FAMU’s internet-based grading system. The scheme was developed after Secrease and Barrington, roommates at the time, began discussing how to change grades for friends who were applying to graduate school. During the summer of 2007, Barrington changed grades for himself, Jacquette and several fraternity brothers using forged University grade change slips. When that method became ineffective in part because they ran out of blank grade change slips, they developed a plan to access the system using keylogger software.2

Secrease was with Barrington in the Registrar’s Office in August 2007 when they attempted to install the first keylogger. They eventually installed keylogger software on various University computers, including an office computer used by a Registrar employee and four terminals placed in the University’s grand ballroom during registration. The keyloggers covertly recorded the keystrokes made by Registrar employees as they signed onto their computers, capturing their user-names and passwords. That data was automatically transmitted to various email accounts, including Barrington’s personal email address.

Using the surreptitiously obtained user-names and passwords, the conspirators accessed FAMU’s grading system, changed grades, added credits for courses which had been failed or not taken, and changed the residencies of several non-resident students to qualify them for in-state tuition.3 The changes were made via the Internet from the conspirators’ home computers, campus computers at FAMU and Florida State University, and from several wireless laptops.

A joint investigation by FAMU’s Police Department and the FBI determined that FAMU’s protected grading system had been accessed by unauthorized means. The investigation was triggered after a FAMU professor discovered that one of his students, Barrington’s sister, had received two unauthorized grade changes. The University subsequently discovered that between August and October 2007, approximately 30 to 35 unauthorized changes were made to Barrington’s grades, all but one from a lower grade to an A. Barrington’s sister received 5 grade changes from F or C to A. Jacquette received approximately 43 grade changes and Secrease received approximately 36. Ultimately, the investigation revealed that in excess of 650 unauthorized grade changes had been made, involving at least 90 students. As a result of the grade changes and residency changes, the Uni*1185versity incurred a loss of $137,000 in tuition it otherwise would have received.

In September 2007, Barrington and his sister were questioned by FAMU police. Barrington denied any knowledge of the grade changes. Within hours, and after learning that the University had reversed the grade changes, Barrington organized a meeting at his house with Jacquette, Secrease, and some of the students whose grades had been changed. Barrington instructed them to deny all knowledge of the scheme if questioned by police. They agreed to re-install keyloggers on the Registrar’s computers so that the grades could be changed a second time. Barrington drew a map and directed students where to go to carry out the plan. Some of them went to the Registrar’s Office where they distracted employees so that others could install keyloggers using flash drive devices. Afterwards, the group celebrated at a local Chili’s restaurant.

At some point, Secrease was terminated from his job at the University, losing access to the University’s computer lab. Barrington provided funds to Jacquette for the purchase of a laptop computer. Notwithstanding that law enforcement had discovered the scheme and the University was reversing the grade changes, the conspirators continued to make grade changes using the laptop.

In an effort to conceal their involvement, the conspirators made random grade changes for students who had not been involved originally. Jacquette explained that this was done to “throw things off by broadening the list of names” of students whose grades had been changed. Barring-ton told Jacquette that random grade changes would indicate that either there was a “flaw or hiccup” in the computer system, or that another group of students was responsible. According to Jacquette, Barrington’s “logic was, if grade changes continue[d], there [was] no way the police would think that [he did it because] he had to be an absolute idiot to continue doing it after they’ve already contacted him. But if it continued, they would think that it must be someone else.”

In November 2007, search warrants were executed at the conspirators’ residences, resulting in the seizure of documents containing the usernames and passwords of seven FAMU Registrar employees, handwritten notes outlining classes and grades and directing certain grade changes, FAMU student transcripts, restricted student enrollment documents, and student class information and ID numbers. In Barrington’s room, the officers found an index card with user-names and passwords of Registrar employees written on it. They did not find the laptop that had been used to make the grade and residency changes. It was later determined that Barrington had taken it for safekeeping to the home of another student, who ultimately turned it over to the police. An analysis of the laptop confirmed that it had been used to effect grade and residency changes.

Jacquette consented to a search of his cell phone. On his phone were the user-names and passwords of several Registrar employees. Jacquette testified that this information came from an index card written by Barrington.

Barrington testified at trial. He essentially denied any involvement in the scheme, claiming that he was merely present during the installation of the keyloggers, the grade changing and the concealment activities. In rebuttal, an FBI agent who took Barrington’s Rule 11 proffer testified that Barrington admitted to having participated in the scheme to obtain the usernames and passwords, acting as a lookout while Secrease and Jacquette installed the keyloggers on Registrar computers, having used the passwords, and *1186having asking to have his sister’s and another female student’s grades changed. The Government also called Sheerie Edwards, a friend of Barrington’s. She testified that after discussing with Barrington that she had not done well in certain classes, he told her that her grades could be “fixed.” She gave him a list of the classes. Later, Barrington called her and told her to look at her grades online. When she did, she saw that her grades had been changed.

Barrington was convicted on all counts.

II

Barrington first contends that the district court erred in admitting into evidence testimony from Jacquette describing how Barrington had previously changed grades using forged instructor signatures on University grade change slips. Barrington contends that this testimony was inadmissible under Fed.R.Evid. 404(b). We disagree. Such rulings are reviewed for abuse of discretion. See United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003); United States v. West, 898 F.2d 1493, 1499 (11th Cir.1990).

Prior to trial, the Government filed a notice of its intent to introduce testimony that Barrington had fraudulently changed student grades by “forging legitimate student grade change forms and submitting them for processing.” Barrington objected and before Jacquette testified, the district court considered the Government’s proffer of the challenged evidence. It found that the evidence was relevant to Barrington’s intent, that Jacquette’s testimony sufficiently established that Barring-ton had engaged in the activity, and that the probative value was not outweighed by unfair prejudice.

Extrinsic evidence of prior bad acts is admissible under Rule 404(b) to show, among other things, motive, preparation, knowledge, and intent. United States v. Perez, 443 F.3d 772, 779 (11th Cir.2006). Rule 404(b) evidence, “like other relevant evidence, should not lightly be excluded when it is central to the prosecution’s case.” Jernigan, 341 F.3d at 1280 (quoting United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir.1994)). A three step test is applied in determining the admissibility of extrinsic 404(b) evidence: (1) the evidence must be relevant to an issue other than the defendant’s character; (2) there must be sufficient proof so that the jury could find that the defendant committed the extrinsic act; and (3) the evidence must possess probative value that is not substantially outweighed by undue prejudice. Id.

By pleading not guilty, Barrington placed his intent to participate in the grade changing scheme in issue. See United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir.2007). The Government could accordingly introduce qualifying 404(b) extrinsic act evidence to prove intent. Id. And because he raised the “mere presence” defense, qualifying extrinsic act evidence became “highly probative.” United States v. Delgado, 56 F.3d 1357, 1366 (11th Cir.1995).

Where extrinsic act evidence is offered to prove intent, “its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses.” United States v. Dorsey, 819 F.2d 1055, 1060 (11th Cir.1987). Where, as here, the state of mind required for the charged offense and the extrinsic act is identical, the first prong of the Rule 404(b) test is satisfied. Id.

According to Jacquette, in the summer of 2007, the subject of changing grades came up in a discussion with Barrington. Legitimate but blank University grade change slips were filled out with the student’s information, class, and grade to be *1187changed. The instructor’s and chairman’s signatures were forged, and the form was submitted to the Dean’s office for processing by the Registrar’s office. Barrington changed two or three of his own grades, Jacquette’s Economics grade, and a “couple of more” for fraternity brothers.

This grade changing activity was essentially a precursor to the charged scheme. One reason Barrington switched from hard copy forgery of the grade change slips to the keylogger scheme was that a grade change for his sister Mia had been rejected. Barrington explained to Jacquette that the forms were numbered and he could not obtain any additional slips. Subsequent discussions led to the idea of using passwords of Registrar employees to access the University’s system to change grades. When their effort to obtain passwords by “eyeballing” the employees failed, Jacquette mentioned the use of key-logger programs, which eventually became the operational method of the charged scheme.

Jacquette’s testimony describing Barrington’s grade changing through forgery was properly admitted under Rule 404(b). First, both the extrinsic and charged conduct involved the same intent. Barring-ton’s conduct was therefore highly probative of his intent to participate in the charged scheme. Second, there was an adequate basis for the jury to find that Barrington actually committed the extrinsic acts. Jacquette’s uncorroborated testimony was sufficient, since he had personal knowledge of Barrington’s conduct. United States v. Duran, 596 F.3d 1283, 1298 (11th Cir.2010) (citing United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001); United States v. Bowe, 221 F.3d 1183, 1192 (11th Cir.2000) (“In this circuit, the uncorroborated word of an accomplice ... provides a sufficient basis for concluding that the defendant committed extrinsic acts admissible under Rule 404(b).”)), cert. denied, — U.S. -, 131 S.Ct. 210, 178 L.Ed.2d 46 (2010).

Finally, the probative value of the extrinsic evidence was not outweighed by unfair prejudice. The extrinsic act evidence was not only similar to the charged scheme in its objectives, but explained the events immediately preceding the formation of the charged conspiracy and the reason the scheme evolved as it did.4

The district court did not abuse its discretion in admitting the challenged 404(b) evidence.

Ill

Barrington also contends that the district court erred in preventing him from cross-examining Jacquette on a pending state burglary charge. A district court’s decision limiting cross-examination is likewise reviewed for abuse of discretion. United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir.1996).

The district court disallowed cross-examination into Jacquette’s pending state burglary charge because it was unrelated to the case, had not been reduced to a conviction for purposes of Rule 609, and there was no basis on which to believe that Jacquette’s testimony would result in a favorable disposition of his burglary charge. Barrington argues that this ruling prevented him from demonstrating that Jacquette was testifying in an attempt to resolve the burglary charge “and his responsibility for a burglary.” Barring-ton’s argument is unpersuasive.

The Sixth Amendment guarantees a criminal defendant the right to im-

*1188peach adverse witnesses through cross-examination. United States v. Añas-Izquierdo, 449 F.3d 1168, 1178 (11th Cir. 2006). “A defendant is entitled to cross-examine government witnesses as to any possible motivation for lying or bias, including plea agreements.” United States v. De Pañas, 805 F.2d 1447, 1452 (11th Cir.1986), overruled on other grounds by United States v. Kaplan, 171 F.3d 1351 (11th Cir.l999)(en banc). Where the witness is a chief government witness, the right to full cross-examination increases in importance. Añas-Izquierdo, 449 F.3d at 1178. And the importance of such cross-examination is not dependent on whether or not “some deal in fact exists between the witness and the government.” United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir.1992).

The right to cross-examine is not unlimited, however. A defendant is not entitled to cross-examine “in whatever way, and to whatever extent, the defense might wish,” see Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)(per curiam), or to conduct unlimited inquiry into the potential bias of a witness, De Pañas, 805 F.2d at 1452 (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The Sixth Amendment is satisfied so long as a defendant is permitted cross-examination which “exposes the jury to facts sufficient to evaluate the credibility of the witness and enables defense counsel to establish a record from which he properly can argue why the witness is less than reliable.” United States v. Baptistar-Rodñguez, 17 F.3d 1354, 1371 (11th Cir. 1994) (citing United States v. Bennett, 928 F.2d 1548, 1554 (11th Cir.1991)).

A district court retains wide latitude to impose reasonable limits on cross-examination. United States v. Williams, 837 F.2d 1009, 1015 (11th Cir.1988); Baptista-Rodriguez, 17 F.3d at 1370-71. While cross-examination of a key government witness is important and free cross-examination on possible bias and motive is presumptively favored, “the mere fact that defense counsel sought to explore a prosecution witness’s bias does not automatically invalidate ‘the court’s ability to limit cross-examination.’ ” United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007) (quoting United States v. Lyons, 403 F.3d 1248, 1256 (11th Cir.2005)).

“The test for the Confrontation Clause is whether a reasonable jury would have received a significantly different impression of the witness’ credibility had counsel pursued the proposed line of cross-examination.” “As long as sufficient information is elicited from the witness from which the jury can adequately assess possible motive or bias, the Sixth Amendment is satisfied.”

Orisnord, 483 F.3d at 1179 (citations omitted).

Cross-examination of Jacquette on his pending state burglary charge would not have presented a significantly different impression of his credibility. On direct examination, Jacquette told the jury he was in jail, charged with battery, violation of probation and contempt of court as a result of a fight he had with Barrington. The jury understood that Jacquette had been indicted as a co-defendant with Barrington, had pleaded guilty and was testifying pursuant to a Plea and Cooperation Agreement with the United States Attorney’s Office, in which the government agreed not to file any additional criminal charges against him in exchange for his cooperation. During cross-examination, Jacquette acknowledged that he hoped to receive a sentence below the Guidelines through a substantial assistance motion from the U.S. Attorney’s Office pursuant to U.S.S.G. § 5K1.1. From this line of inquiry, a reasonable juror would appreci*1189ate that Jacquette was motivated to testify favorably for the government in hopes of receiving a reduced sentence.

Further, Jacquette acknowledged that Barrington had obtained a state-court restraining order against him and that he had knowingly violated the restraining order by fighting with Barrington, resulting in his contempt of court charge. Cross-examination also brought out that Jacquette harbored ill feelings toward Barrington, and that there had been issues between them which had escalated into arguments and a fight, pitting one against the other as the criminal investigation progressed.

Jacquette explained that when it became clear that criminal charges would be brought against them for the grade changing scheme, he and Barrington argued and had a “falling out” because Barrington told him “since he and I were close, and we were smarter than [Secrease], that he and I should collaborate our stories and place blame on Lawrence, and let Lawrence take the fall for it.” Jacquette explained that a couple of days later, Secrease called him and shared that Barrington had approached him and suggested that “him and Lawrence should make sure that I take the blame.”

In sum, through cross-examination, Barrington’s counsel elicited sufficient information from Jacquette to enable the jury to assess his credibility, including possible motives and personal bias he held against Barrington. Considering that Jacquette was testifying pursuant to a cooperation agreement with the government and hoped to receive a reduced sentence as a result, questioning him about the pending state burglary charge would not have presented a significantly different impression of his credibility to the jury. At most, Jacquette’s unrelated pending state burglary charge was only marginally relevant, particularly since there was no showing that he had any agreement, understanding, or “deal” with the government to have that charge favorably disposed of. See Francis v. Dugger, 908 F.2d 696, 702 (11th Cir.l990)(per curiam). Accordingly, the district court did not abuse its discretion by preventing cross-examination on his pending state burglary charges.5 See United States v. Farmer, 923 F.2d 1557, 1567 n. 23 (11th Cir.1991).

IV

Barrington next contends that Count One of the indictment was duplicative in that it charged two distinct statutory conspiracies, resulting in an improper joinder of offenses. He correctly points out that Count One alleged a conspiracy which violated two statutes, sections 371 and 1349 of Title 18 of the United States Code. Barrington contends that the district court erred in failing to require the Government to elect between the two conspiracy statutes and that the jury should have been instructed on the duplicative nature of Count One and the substantive law of 18 U.S.C. § 1349.

Generally, a defendant must object before trial to defects in an indictment and the failure to do so waives any claimed defects. Fed. R. Cr. P. 12(b)(3)(B), (e); United States v. Ramirez, 324 F.3d 1225, 1227-28 (11th Cir.2003)(per curiam). Barrington did not challenge the indictment in the district court or seek to have the Government elect under which of the two conspiracy statutes to proceed. Indeed, in his Rule 29 motion for judgment of acquittal on Count One, he confined his argument to alleged evidentiary deficiencies in the *1190charged § 371 conspiracy, never mentioning § 1349 or any of the contentions he now raises.

Barrington concedes that he did not raise these contentions in the district court. Accordingly, he is deemed to have waived them, absent “good cause.” United States v. Seher, 562 F.3d 1344, 1359 n. 15 (11th Cir.2009).6 See Fed.R.Crim.P. 12(e) (“For good cause, the court may grant relief from this waiver.”). And he has not demonstrated “good cause” to exempt him from application of this waiver rule. Seher, 562 F.3d at 1359 n. 15 (“Good cause is not shown where the defendant had all the information necessary to bring a Rule 12(b) motion before the date set for pretrial motions, but failed to file it by that date.”).

Nor did Barrington object to the district court’s use of the Eleventh Circuit’s pattern jury instruction on a § 371 conspiracy or request “an instruction on the duplicitous nature of the indictment” as he now urges should have been given. In fact, defense counsel requested that Eleventh Circuit Pattern Jury Instruction 13.1 (General Conspiracy Charge, 18 U.S.C. § 371) be used.

Barrington’s failure to object to the instruction or submit an alternative instruction results in a waiver unless the instructions which were given constitute plain error. Fed. R. Cr. P 30(d); United States v. Belfast, 611 F.3d 783, 822 (11th Cir.2010). Before an error which was not raised below will be rectified, Barrington must establish (1) error, (2) that is plain, and (3) which affected his substantial rights. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1600, 179 L.Ed.2d 499 (2011). If those three conditions are met, we may exercise our discretion to correct the forfeited error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

The jury was correctly instructed on the single conspiracy charged in Count One and the two objects of that conspiracy.7 Moreover, Barrington agreed to Count One being submitted to the jury as a violation of 18 U.S.C. § 371.8 There was no error, much less error giving rise to a likelihood of a miscarriage of justice or error which affected the fairness of the trial.

Finally, Barrington contends that he was prosecuted on a “legally erroneous fraud theory.” Although his argument is not fully developed, he essentially contends that the grades which were changed do not constitute a property interest and therefore the Government’s proof did not establish the requisite financial deprivation un*1191der the wire fraud statute, 18 U.S.C. § 1343. He argues that the jury “was permitted to convict the defendant merely on the theory that he sought to obtain grade changes.”

We construe Barrington’s argument as a contention that the jury’s verdict on Count One rests on an insufficient legal theory. See United States v. Shotts, 145 F.3d 1289, 1293 n. 3 (11th Cir.1998). Notwithstanding that Barrington waived this contention by failing to raise it in the district court, we have reviewed for plain error. Finding no plain error, we affirm Barrington’s conviction on Count One.

Count One properly alleged a conspiracy with two objects, the commission of a scheme to defraud by wire and computer fraud. See United States v. Woodard, 459 F.3d 1078, 1084 (11th Cir. 2006)(per curiam)(single conspiracy with two unlawful objects). The jury expressly found Barrington guilty of conspiring to commit both objects of the charged conspiracy.

The wire fraud statute, 18 U.S.C. § 1343,9 like the mail fraud statute, protects property rights, and the “words ‘to defraud’ signify the deprivation of something of value by trick, deceit, chicane or overreaching.” United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir.2003) (quoting McNally v. United States, 483 U.S. 350, 358, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987)). Similarly, the computer fraud statute, 18 U.S.C. § 1030(a)(4), protects “things of value” by prohibiting unauthorized access to protected computers with the intent to defraud.10

We have no hesitation in concluding that the Government’s theory rested on a legally cognizable theory of conspiracy to defraud by wire and computer, through which the conspirators deprived FAMU of its property interest in tuition. Count One expressly alleged that the changing of student grades from failing to passing “had the effect of awarding the students who had received the ‘F’ grades thousands of dollars in credit hours to which they were not entitled” and that the change in residency of out-of-state students reduced “the total tuition owed by these students to FAMU by thousands of dollars.”

Barrington’s focus on whether a student’s grade constitutes a property interest is far too narrow.11 Although changing grades was the manner in which the scheme was carried out, the “money or *1192property” of which FAMU was deprived was the lost tuition resulting from the unearned hours credited to the students, rather than the actual grades. Moreover, Barrington ignores the demonstrated financial loss FAMU suffered as a result of the companion aspect of the scheme, the reimbursement of tuition to the out-of-state students whose residencies had been changed.

FAMU undeniably has a property right in tuition generated by class hours a student registers for, as well as the higher tuition paid by non-resident students. By changing failing grades to passing grades, the conspirators endeavored to obtain unearned credit hours for students who were not entitled to them. Had their grades not been changed, those students would have had to repeat the failed classes or take equivalent hours, either of which would have generated additional tuition for FAMU. By changing the residencies of out-of-state students, the conspirators sought to obtain tuition reimbursement for those students, who otherwise would have been required to pay higher, non-resident tuition. The unearned credit hours and reimbursed tuition constitute “money or property” obtained by wire fraud, as well as “things of value” obtained through computer fraud. No plain error is shown.

Y

Barrington next contends that the evidence was insufficient to support his convictions on Counts Three, Four and Five for aggravated identity theft. He argues that the passwords the conspirators used to access the Registrar’s computer system belonged to the university and do not constitute personal identity information of the individual university employees.

Although Barrington moved for judgment of acquittal pursuant to Rule 29, he did not move for judgment of acquittal on the aggravated identity theft counts. Accordingly, we review the sufficiency of the evidence supporting these convictions for plain error. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Snipes, 611 F.3d 855, 867 n. 7 (11th Cir. 2010).

There is no plain error. To prove a violation of 18 U.S.C. § 1028A,12 the evidence must establish “that the defendant: (1) knowingly transferred, possessed, or used; (2) the means of identification of another person; (3) without lawful authority; (4) during and in relation to a felony enumerated in § 1028A(c).” United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007)(per curiam)(footnote omitted), abrogated on other grounds by Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). Wire fraud is one of the enumerated felonies in § 1028A(e).

To gain access to the Registrar’s protected grading system, the conspirators targeted specific “higher up” Registrar employees who they knew had access to the system through their individualized usernames add passwords, which the employees changed every thirty days. Seerease identified the targeted employees and explained that the group established “very close relationships” with these individuals so that “they could get access to their computers.”13 The keyloggers were *1193installed on the computers of these targeted employees to obtain their confidential and unique passwords.

Each of the key elements required for a conviction under § 1028A was proven. The Government proved that Barrington, without authority, knowingly used the usernames and passwords of the Registrar employees during and in relation to the wire fraud conspiracy. The conspirators knew that the usernames and passwords were unique to the employees and would enable them to access the protected grading system. Barrington and his co-conspirators targeted them for that very purpose.

The usernames and passwords were sufficient to identify the specific Registrar employees who had authority to access FAMU’s protected grading system. By statutory definition, a “means of identification” includes “any name or number” when used in conjunction with any other information “to identify a specific individual.” 18 U.S.C. § 1028(d)(7); United States v. Mitchell, 518 F.3d 230, 234 (4th Cir.2008). The “overriding requirement” of the definition is that the means of identification “must be sufficient to identify a specific individual.” Mitchell, 518 F.3d at 234(internal quotation marks omitted).

Clearly, the usernames and passwords, considered together, constituted a “means of identification” for those specific individuals and Barrington knew that. Flores-Figueroa, 129 S.Ct. at 1894 (“We conclude that § 1028A(a)(l) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person.”). In sum, the evidence was sufficient to support Barring-ton’s convictions for aggravated identity theft. There is no plain error.

Next, Barrington contends that the district court erred (1) in failing to instruct the jury that the Government must prove that he “knowingly” used a means of identification that he knew “belonged” to another person and (2) failed to instruct the jury on the term “means of identification,” citing Flores-Figueroa v. United States, supra. We review for plain error because Barrington did not object to the district court’s instructions. Fed.R.Crim.P. 30(d); United States v. Belfast, supra; United States v. Sanchez, 269 F.3d 1250, 1280-81 (11th Cir.2001) (en banc), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed.2d 234 (2002).14

The district court instructed the jury that it could find Barrington guilty

“only if all of the following facts are proved beyond a reasonable doubt:

First: That the defendant knowingly possessed a means of identification of another person; and

Second: That the defendant possessed the means of identification without lawful authority; and

Third: That the defendant possessed the means of identification during and in relation to a violation of Title 18, United States Code, Section 1343, namely wire fraud.

While the district court did instruct the jury that Barrington must “knowingly” possess a means of identification, the court did not instruct the jury that Barrington must know that the identification belonged to another person or define the term “means of identification.”

However, even assuming there was arguably plain error in the instructions, Barrington has not carried his burden to show his substantial rights were affected. The evidence was overwhelming that Barring-*1194ton and his co-conspirators knew that the usernames and passwords they surreptitiously obtained were unique to specific employees of the Registrar’s office. Likewise, the evidence demonstrated beyond all reasonable doubt that they knew that the passwords were a means of verifying those employees’ identities and their authority to access the grading system and therefore belonged to the specific employee. Considering the strength of the evidence and the instruction which was given, we find that the failure of the district court to define the term “means of identification” did not affect Barrington’s substantial rights. Nor, in the context of this case, did the absence of an instruction on the knowing use of a means of identification belonging to another person affect his substantial rights.

In this day and age of protected computer access, jurors are well equipped to apply a common sense definition to the term “means of identification” in the context of this case. No reasonable juror would fail to appreciate that the unique passwords of the targeted Registrar employees belonged to them in the sense that they were “sufficient to identify a specific individual.” Any error in the instructions did not adversely affect the outcome of the trial or the substantial rights of Barrington.

VI

Barrington contends that his 84 month sentence was procedurally and substantively unreasonable. Specifically, he argues that the district court (1) erred in calculating his base offense level under U.S.S.G. § 2Bl.l(a)(l); (2) infringed on his right against self incrimination during sentencing by inquiring and commenting on his failure to admit guilt; (3) erred in calculating the loss amount under U.S.S.G. § 2Bl.l(b)(l)(F) by including the value of fraudulently received academic credit obtained as a result of grade changes; (4) erred in applying enhancements for the use of sophisticated means under U.S.S.G. § 2Bl.l(b)(9)(C) and for a leadership role under U.S.S.G. § 3Bl.l(c); and (5) erred in finding that he used device-making equipment and produced unauthorized access devices to support the enhancement under U.S.S.G. § 2Bl.l(b)(10)(A)(i) and (B)(i). He also contends that his sentence was unnecessarily harsh and punitive, considering the sentences of his co-conspirators and those who had participated in the conspiracy but were not charged.

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “a sentence may be reviewed for procedural or substantive unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir.2008) (internal quotation marks omitted). We first review for procedural unreasonableness, to

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.) (internal quotation marks omitted), cert. denied, — U.S. -, 129 S.Ct. 2847, 174 L.Ed.2d 566 (2009).

The procedural reasonableness of a sentence is reviewed for abuse of discretion, “but the degree of deference that is due varies with the type of procedural error alleged.” Ellisor, 522 F.3d at 1273 n. 25. For example, “[a] district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Id. (internal quotation marks omitted). Therefore, “[w]e review de novo *1195the district court’s interpretation of the Guidelines and its application of the Guidelines to the facts,” and we review the district court’s findings of fact for clear error. United States v. Campbell, 491 F.3d 1306, 1315 (11th Cir.2007) (internal quotation marks omitted). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ellisor, 522 F.3d at 1273 n. 25 (internal quotation marks omitted).

Base offense level

Barrington contends that his conviction under 18 U.S.C. § 1349 was unlawful and therefore the district court erred in relying on that conviction to set the base offense level at 7. Barrington did not object to the calculation of his base offense level in the district court. We review sentencing arguments raised for the first time on appeal for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000)(per curiam).

The district court correctly set the Base Offense Level at 7 pursuant to U.S.S.G. § 2Bl.l(a)(l), since the substantive offense Barrington was convicted of conspiring to commit, wire fraud, carries a maximum statutory penalty of 20 years.15 There is no error, much less plain error.

Infringement on right against self incrimination

Nor do we find plain error in the district court’s query to Barrington during sentencing as to whether he maintained that he did nothing wrong. Near the end of the sentencing hearing, after Barring-ton’s allocution, the district court addressed him:

Mr. Barrington, I sat through your trial. As you know, I was the trial judge. I heard all- of the testimony, including yours. And I have yet to hear you say you did wrong. Do you still maintain that you did nothing wrong?

Through counsel, Barrington declined to respond. Counsel explained that if Barrington had not made a showing of remorse, “it’s because of my advice, not that it’s not coming from him, Your Honor.” Barrington did not object under the Fifth Amendment to the district court’s question. Accordingly, we review for plain error. Aguillard, 217 F.3d at 1320.

Barrington contends that the district court’s question infringed upon his Fifth Amendment privilege against self-incrimination. Since Barrington cites Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), we construe his contention to be that the district court impermissibly drew an adverse inference from Barrington’s refusal to answer the question and considered that inference in determining the appropriate sentence. See Mitchell, 526 U.S. at 328-330, 119 S.Ct. 1307 (determining, in cocaine conspiracy case where the defendant pled guilty, no negative factual inference may be drawn from a defendant’s silence during sentencing with respect to the extent of her participation in the cocaine offense and the amount of cocaine attributable to the defendant).16

*1196The privilege against self-incrimination applies in a sentencing hearing, and any effort to compel a defendant to testify against his will during sentencing “clearly would contravene the Fifth Amendment.” Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359 (1981). And when a defendant shows some sign of remorse but exercises constitutional or statutory rights to remain silent, “the sentencing judge may not balance the exercise of those rights against the defendant’s expression of remorse to determine whether the ‘acceptance’ [of responsibility] is adequate.” United States v. Rodriguez, 959 F.2d 193, 197 (11th Cir.l992)(per curiam)(determining, in a cocaine conspiracy case, that the district court erred in denying the defendant a reduction in the offense level calculations for acceptance of responsibility based on consideration of defendant’s intention to appeal verdict and refusal to admit guilt in open court). Mitchell and Rodriguez, however, are factually different because they involve specific Guidelines calculations and other matters, and did not directly address whether the defendant’s silence, after some allocution, can bear generally upon a lack of remorse.17 We need not address that question because the alleged error did not affect Barrington’s substantial rights in any event.

While Barrington did not expressly address his involvement in the offense when he allocuted, Barrington certainly attempted to portray himself in a favorable light, alluding to what he had learned from his experience in custody, his attempts to assist other prisoners in attaining their GEDs, and his plan to leave prison a better person. Conspicuously absent from his allocution was any acknowledgment of the offenses for which he had been convicted, or any semblance of remorse. That, coupled with Barrington’s trial testimony, apparently prompted the district court to pose the challenged query.

We acknowledge that the district court’s question (“Do you still maintain that you did nothing wrong?”) and subsequent observation that Barrington had not accepted responsibility might otherwise suggest that it engaged in an impermissible balancing of Barrington’s lack of acceptance of responsibility against his exercise of his Fifth Amendment rights. Considered in the proper context, however, the question and comment, even if error, did not affect Barrington’s substantial rights.

In alloeuting, Barrington offered nothing by way of remorse, apologizing only to his mother. And it was undisputed that Barrington did not qualify for a downward adjustment for acceptance of responsibility under § 3E1.1 of the Guidelines. During his trial testimony, despite overwhelming evidence against him, Barrington maintained that he had done nothing wrong.

Barrington’s trial testimony impacted his sentence in two ways. First, the district court found that Barrington’s trial testimony was “materially false” and imposed a two-level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1.18 Second, contrasting the evi*1197dence of good character Barrington presented at sentencing with his lack of acceptance of responsibility during the trial, the district court noted the overwhelming evidence of guilt “displayed an arrogance and contempt for the law.”

It is apparent that the district court’s question, considered in light of the overwhelming evidence and Barrington’s demeanor at trial, was simply an attempt to determine whether Barrington, having had time to reflect, was the least bit remorseful. He was not.

Further, Barrington’s failure to accept responsibility was an appropriate consideration in the determination of his sentence. Rodriguez, 959 F.2d at 197 (“The sentencing court is justified in considering the defendant’s conduct prior to, during, and after the trial to determine if the defendant has shown any remorse through his actions or statements.”). His lack of remorse, coupled with his false trial testimony, obstructive conduct during the investigation, and what the district court described as his “arrogance and contempt for the law,” certainly justified the sentence imposed, which we note was at the low-end of the Guidelines range.

Finally, Barrington’s contention that the district court drew an adverse inference-from his silence is entirely speculative. Nothing in the district court’s comments evinced an intent to impose a more severe sentence based on Barrington’s failure to respond to the district court’s question.19 Barrington merely assumes that the district court relied on an adverse inference in view of the perceived harshness of his sentence. However, his low-end Guidelines sentence belies any such inference having been drawn by the district court. We find no plain error which affected Barrington’s substantial rights.

Calculation of financial loss

The district court’s determination of loss is reviewed for clear error. United States v. Bonilla, 579 F.3d 1233, 1239 (11th Cir.2009); United States v. Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir.2001) (per curiam). And we review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.2005).

The Guidelines do not require a precise determination of loss. United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.1999). “A sentencing court need only make a reasonable estimate of the loss, given the available information.” United States v. Lee, 427 F.3d 881, 893 (11th Cir.2005). Nevertheless, a sentencing judge may not speculate about the existence of a fact that would result in a higher sentence, and the government must support its loss calculation with “reliable and specific evidence.” Cabrera, 172 F.3d at 1292(internal quotation marks omitted).

The Guidelines provide that “loss is the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1. cmt. n. 3(A). “Intended loss” is the pecuniary harm that was intended to result from the offense. Id., at cmt. n. 3(A)(ii). The Guidelines acknowledge that a sentencing judge is in a unique position to assess the evidence and estimate the loss and therefore “the court’s loss determination is entitled to appropriate deference.” Id. at cmt. n. 3(C). And the Guidelines allow consideration of the fair market value or replacement cost of the lost property. Id. at cmt. n. 3(C)(i).

Barrington contends that the district court erred in calculating financial loss based on the value of changed grades. *1198The only aspect of intended loss Barring-ton challenges is the loss attributed to courses in which failing grades were changed to passing grades. He argues that there was no evidence that FAMU either lost or gained money as a result of failing grades being changed to passing grades and the district court’s calculation of loss was therefore speculative. Barrington’s contentions are unpersuasive, and we find no clear error in the district court’s loss calculation.

The Guidelines acknowledge the difficulty in accurately calculating the amount of loss caused by fraud and therefore require only a reasonable estimate of loss. United States v. Miller, 188 F.3d 1312, 1317 (11th Cir.l999)(per curiam); U.S.S.G. § 2B1.1, cmt. n. 3(C). Upon review of the record, we find that the district court’s estimate of loss was reasonable.

The district court correctly noted that the Guidelines “allow[ ] the Court to consider the revenue that would have been generated, as well as the fair market value and replacement cost.” It found that passing grades were assigned “to students who did not earn them, and these grades could not have been obtained by students without retaking the classes.” Further, it found that the “value of the grade change is the cost for retaking the class, which is the figure that has been used to calculate the loss amount.” This finding was based on reliable, specific evidence.

The district court calculated intended loss at $ 141,830.42, noting that the loss amount was a “conservative and reasonable estimate of the value of the grades.”20 Of that amount, $ 87,579.52 represented lost tuition for changes from out-of-state to in-state student residencies and $ 54,250.90 represented 319 credit hours lost for 119 courses for which grades had been changed from failing to passing or had been awarded for classes never taken or from which students had withdrawn.21 The loss for each credit hour was determined based on whether the student would have paid in-state or out-of-state tuition.

The district court reasonably concluded that a fraudulent grade represented an academic credit which had a calculable monetary value. The value of the credit hours fraudulently received by the students could be accurately calculated, and the district court’s calculation of loss based on the value of those credit hours was a reasonable estimate based on the evidence. Testimony established that grades were changed to enhance students’ GPAs and qualify them for the next step in their respective academic progressions, including graduate school. Estimating intended loss for those credit hours was hardly speculative, since the students would have had to retake the failed course and pay tuition for the credit hours in order to accomplish their academic goals.22

In sum, we find that the district court’s findings were not clearly erroneous and its determination of intended loss under U.S.S.G. § 2B1.1 was a correct application of the Guidelines.

Sophisticated means enhancement

Barrington next challenges the two-level enhancement for use of sophisticated *1199means. A district court’s finding that sophisticated means were used is a finding of fact reviewed for clear error. United States v. Barakat, 130 F.3d 1448, 1456-57 (11th Cir.1997). After careful review, we affirm.

The Guidelines provide for a two-level enhancement if an offense involves “sophisticated means.” U.S.S.G. § 2B1.1(b)(9)(C). The commentary to § 2B1.1(b)(9)(C) instructs that “ ‘sophisticated means’ means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” Id. at cmt. n.8 (B). Each action by a defendant need not be sophisticated in order to support this enhancement. It is sufficient if the totality of the scheme was sophisticated. See United States v. Finck, 407 F.3d 908, 915 (8th Cir.2005) (“Repetitive and coordinated conduct, though no one step is particularly complicated, can be a sophisticated scheme.”).

The district court found that Barrington “used sophisticated means in the execution and attempted concealment of the offense.” Referring to the evidence, the judge noted that after the conspirators failed to obtain the unique Registrar employee passwords by simply watching employees log in to the system, they installed keyloggers on Registrar computers “using stealthy means and personal contacts to do so.” When passwords were changed, the conspirators surreptitiously gained after-hours access to the Registrar computers, installed keyloggers and retrieved the new passwords. When the investigation began and passwords were changed back by the University, the conspirators installed key-loggers again.

As the district court found, “[e]ach of these attempts involved a great deal of planning and inside information,” and “[o]nee the passwords were obtained, the defendants had to learn how to negotiate the FAMU computer system” and “logged on on multiple occasions to practice and learn.” The district court noted that when the investigation was underway, “the defendants changed random grades in an effort to throw off the investigation, or throw it off track,” and the execution of the scheme and the attempted concealment “involved more than minimal planning and was sophisticated.”

The district court’s findings were supported by the evidence and therefore are not clearly erroneous. The evidence established that Barrington and his co-conspirators repeatedly accessed FAMU’s protected computer grading system using log-in information retrieved through the keyloggers. The hacking involved multiple, repetitive and coordinated steps to deceive and exploit FAMU’s protected system. Even if each step in the scheme was not necessarily sophisticated, suffice it to say that the scheme as a whole used sophisticated means to obtain the unique usernames and passwords and access the Registrar’s protected computer system. See Campbell, 491 F.3d at 1315-16.

On this record, we discern no clear error in the district court’s factual findings. Barrington’s fraud scheme involved sophisticated means, considering that it involved repetitive and coordinated activities by numerous individuals who used sophisticated technology to perpetrate and attempt to conceal the scheme. The two level enhancement for use of sophisticated means was a correct application of the Guidelines under the circumstances.

Leadership role enhancement

Barrington also challenges his two-level leadership-role enhancement under U.S.S.G. § 3B1.1 (c). He contends that the scheme consisted of a “group of students conducting a loosely coordinated college grades offense,” without a “hierarchy *1200among the college students, who neither worked for each other nor acted as persons subject to the orders of others.” Barrington seemingly ignores the evidence from which the district court made its findings in support of this enhancement.

“A defendant’s role as an organizer or leader is a factual finding that we review for clear error to determine if the enhancement under § 3B1.1 was applied appropriately.” United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.2005)(per curiam); United States v. De Varon, 175 F.3d 930, 937 (11th Cir.1999) (en banc). The leadership-role enhancement applies if “the defendant was an organizer, leader, manager, or supervisor in any criminal activity....” U.S.S.G. § 3Bl.l(c). The defendant does not have to be the sole leader of the conspiracy for the enhancement to apply, and the decision of the district court on this issue is entitled to deference on appeal. Ramirez, 426 F.3d at 1355.

The district court articulated several findings in support of the leadership-role enhancement, including that Barring-ton “led the scheme to change grades by first using paper grade change forms to change his own grades, his sister’s grades, Christopher Jacquette’s grades and the grades of his fraternity brothers,” and “[w]hen that plan did not work, [he] developed another plan to change grades by accessing the FAMU computer system” and “solicited his co-defendants and others to help;” that Barrington organized a meeting at his residence “and outlined the plan to reinstall keyloggers on the Registrar’s computers, change back the corrected grades and change other grades to throw the investigation off’; that Barring-ton convinced Jacquette to continue with the grade changing after Jacquette expressed reluctance to continue; and that most of the grade changes were “made from the defendant’s laptop computer.”

We find no error in these findings, much less clear error. Application of the leadership-role enhancement pursuant to § 3Bl.l(c) was correct, as demonstrated by the district court’s summary of its findings and justification: “... because the defendant initiated the scheme, solicited others to help, and was a driving force behind the attempt to throw off the investigation and continue making grade changes.”

Enhancement for device-making equipment and production of access devices

Barrington’s next challenge is directed to the two-level enhancement for use of “device-making equipment” (keyloggers) and the production of unauthorized access devices (usernames and passwords) under U.S.S.G. § 2Bl.l(b)(10). This section authorizes a two-level enhancement if the offense involved (A) “the possession or use of any (i) device-making equipment ...” or (B) “the production or trafficking of any (i) unauthorized access device.... ”

Section 2Bl.l(b)(10)(A) applies to an offense involving “the possession or use of any (i) device-making equipment .... ” For purposes of § 2Bl.l(b)(10), “ ‘Device-making equipment’ has the meaning given that term in 18 U.S.C. 1029(e)(6); and (ii) includes (I) any hardware or software that has been configured as described in 18 U.S.C. 1029(a)(9); and (II) a scanning receiver referred to in 18 U.S.C. 1029(a)(8).” U.S.S.G. § 2B1.1 cmt. n.9(A). “ ‘Scanning receiver’ has the meaning given that term in 18 U.S.C. 1029(e)(8).” Id.

“Device-making equipment” is defined to include “any equipment, mechanism, or impression designed or primarily used for making an access device .... ” 18 U.S.C. § 1029(e)(6). “Scanning receiver” is defined as “a device or apparatus that can be used to intercept a wire or electronic com*1201munication in violation of chapter 119 [the Federal Wiretap Act, 18 U.S.C. §§ 2510-2522] or to intercept an electronic serial number, mobile identification number, or other identifier of any telecommunications service, equipment, or instrument.” 18 U.S.C. § 1029(e)(8).

Section 2Bl.l(b)(10)(B) applies to an offense involving “the production or trafficking of any (i) unauthorized access device....” U.S.S.G. § 2B1.1(10)(B). “ ‘Production’ includes manufacture, design, alteration, authentication, duplication, or assembly.” Id. at cmt. n.9(A). “Unauthorized access device” means “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” 18 U.S.C. § 1029(e)(3); see also U.S.S.G. § 2B1.1 cmt. n.9(A) (“ ‘Unauthorized access device’ has the meaning given that term in 18 U.S.C. 1029(e)(3).”).

For purposes of both the statutory definition of “device-making equipment” and the text of U.S.S.G § 2Bl.l(b)(10)(B), an “access device” means “any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument).” 18 U.S.C. § 1029(e)(1).23

Barrington objected to the Presentence Investigation Report on the ground that “use of key logger software ... does not satisfy the definition of an apparatus for intercepting the ‘communication’ of identification data.” (Dkt. 140 at 4). Similarly, Appellant now contends that the district court erred in treating the keylogger software as equivalent to a scanning receiver. Without citing any authority, he also argues that the enhancement in § 2Bl.l(b)(10)(A) applies only where the defendant employs an apparatus that remotely intercepts “the ‘communication’ of identification data.”

Appellant did not contend below and does not now contend that the usernames and passwords obtained through use of the keylogger were not a “means of account access” within the meaning of 18 U.S.C. § 1029(e)(1). As explained during trial by FAMU’s Network Infrastructure manager, a keylogger is a device, either hardware-or software-based, that captures “everything a user does, including keystrokes typed or entered on the computer.” He explained that data captured by a keylogger can be retrieved through automatic email, which transmits the keystrokes to a remote email address without the knowledge of the user.

Further, Special Agent Ed Waters described the forensic examination of the Registrar computers and Barrington’s laptop. Agent Waters confirmed that the keyloggers installed on the Registrar computers had captured the usernames and passwords typed into the Registrar computers and that the data had been stored in keylogger logs. The keylogger was configured to send the data to two email addresses associated with Barrington and his co-conspirators, and the keylogger logs reflected that the data had been transmitted to those email addresses.

The explanations of these witnesses support the district court’s finding that the *1202keyloggers used by Barrington and his co-conspirators constituted device-making equipment. The keyloggers captured, stored and were configured to transmit the username and password of an authorized user, and were therefore designed to capture and transmit, and thereby “make” the access device which enabled the conspirators to access identifiable student accounts.24

The username and password combinations could be used to access FAMU’s protected computer system and the students’ accounts to obtain credit hours for classes either failed or not taken and to obtain partial refunds of tuition payments. As discussed, those credits are unquestionably things of value.

Additionally, the conspirators obtained the usernames and passwords with intent to defraud FAMU, thereby rendering them “unauthorized access devices” as defined in 18 U.S.C. § 1029(e)(3) (“any access device that is ... obtained with intent to defraud.”).

In sum, the record evidence sufficiently supports a finding that keyloggers constitute device-making equipment as defined in 18 U.S.C. § 1029(e)(6). However, the district court apparently based its conclusion that the keylogger software constituted device-making equipment on the finding that the keylogger software constituted a “scanning receiver.” See Dkt. 169 at 46 (“I find that the keylogger software that defendants installed constitutes a scanning receiver and therefore meets the definition of device making equipment.”) (emphasis added). We do not believe this finding is adequately supported by the record.

“Scanning receiver” is defined to include any “device or apparatus that can be used to intercept a wire or electronic communication in violation of [the Wiretap Act]....” 18 U.S.C. § 1029(e)(8). The Wiretap Act provides criminal and civil sanctions for the unlawful interception of electronic communications. See id. §§ 2511(1), 2520. “Intercept” means “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4). With exceptions not relevant here, “electronic communication” is defined as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce .... ” Id. § 2510(12) (emphasis added).

We have held that, to violate the Wiretap Act, an interception of electronic communications must occur contemporaneously with their transmission. United States v. Steiger, 318 F.3d 1039, 1048-49 (11th Cir.2003). Accordingly, use of a keylogger will not violate the Wiretap Act if the signal or information captured from the keystrokes is not at that time being transmitted beyond the computer on which the keylogger is installed (or being otherwise transmitted by a system that affects interstate commerce).25

*1203Conceivably, the keylogger software at issue here could be used to contemporaneously capture information or signals being transmitted beyond the user’s computer. If so, this would bring the keylogger software within the definition of a scanning receiver as “a device or apparatus that can be used to intercept a wire or electronic communication in violation of [the Wiretap Act].” 18 U.S.C. § 1029(e)(8) (emphasis added). However, the Government points to no evidence in the record showing that the keylogger at issue here had that capacity and we have found none.

Arguably, the district court’s inadequately supported characterization of the keylogger software as a scanning receiver was merely an aspect of a more fundamental finding that the keylogger software constituted device-making equipment, which is fully supported by the record. We need not decide the point because the two-level enhancement was independently supported under U.S.S.G. § 2B1.1(10)(B).26

Appellant contends that “viewing or recording of personal identification data” does not constitute “production” of such data within the meaning of U.S.S.G. § 2B1.1(10)(B). That is, Appellant contends that the conspirators did not “produce” an access device within the meaning of the Guideline by acquiring the Registrar employees’ passwords and usernames because those passwords and usernames already existed.

Appellant is mistaken. The contention that a preexisting means of account access cannot be “produced” is contradicted by the plain language of the Guideline application note, which defines the term “production” to include “duplication” or “assembly” of preexisting items. See U.S.S.G. § 2B1.1 cmt. n.9(A) (“ ‘Production’ includes manufacture, design, alteration, authentication, duplication, or assembly.”). The capture, storage, and transmittal of the Registrar employees’ usernames and passwords was at least a duplication or assembly of the usernames and passwords. That the usernames and passwords already existed when they were duplicated or assembled does not matter.

The district court expressly found that the “defendants produced unauthorized access devices when they retrieved the passwords and user names from the data on the keyloggers.” That finding was not clear error and the application of the two-level enhancement for production of an unauthorized access device under U.S.S.G. § 2B1.1(10)(B) was proper.

In conclusion, the district court did not abuse its discretion with respect to any of Barrington’s claimed procedural errors. None of the issues have merit and his sentence was procedurally reasonable.

Substantive Reasonableness

Having concluded that the district court’s sentence was procedurally sound, we turn to Barrington’s challenge to the substantive reasonableness of his sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The substantive reasonableness of a sentence is reviewed for abuse of discretion, based on the totality of the circumstances. *1204 United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir.2008).

In arriving at a substantively reasonable sentence, the district court must consider the sentencing factors listed in 18 U.S.C. § 3553(a), including (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005)(per curiam)(eiting 18 U.S.C. § 3553(a)).

Although the district court must consider the § 3553(a) factors, it need not “state on the record that it has explicitly considered each of the § 3553(a) factors or ... discuss each of [them].” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005). It is sufficient for the district court to explicitly acknowledge that it considered the parties’ arguments at sentencing which were based on the sentencing factors, and that it considered the factors in § 3553(a). Id. The weight given to each factor in § 3553(a) is “a matter committed to the sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir.2007) (internal quotation marks omitted). “The fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51, 128 S.Ct at 597.

We review for reasonableness in light of the § 3553(a) factors, including whether the sentence “fail[ed] to achieve the purposes of sentencing as stated in section 3553(a).” Id. Barrington bears the burden of showing that his sentence was unreasonable. Talley, 431 F.3d at 788; United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.), cert. denied, — U.S. -, 131 S.Ct. 674, 178 L.Ed.2d 502 (2010). He has not met his burden.

In announcing its sentence, the district court explicitly considered the § 3553(a) factors, expressly noting the “facts and circumstances surrounding this particular case,” and the seriousness of the offense. Barrington’s sentence was at the low end of the advisory Guidelines, suggesting that the district court considered Barrington’s mitigation arguments. While a range of reasonable sentences is available to the district court, ordinarily a sentence within the advisory Guidelines range is reasonable. United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir.2009), cert. denied, — U.S. -, 131 S.Ct. 436, 178 L.Ed.2d 338 (2010).

Upon consideration of the parties’ briefs and a review of the record, we conclude, based on the totality of the circumstances, that Barrington’s low-end Guideline range sentence was consistent with the § 3553(a) factors and therefore reasonable. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.2008). Accordingly, we affirm.

AFFIRMED.

Botsford, J.

At issue is whether G. L. c. 272, § 105 (b) (§ 105 [b]), which prohibits secretly photographing or videotaping a person “who is nude or partially nude” in certain circumstances, includes “upskirting.”1 The Commonwealth *372alleged in two criminal complaints that the defendant, Michael Robertson, while riding as a passenger on the Massachusetts Bay Transportation Authority (MBTA) trolley on two occasions, aimed his cellular telephone camera at the crotch area of a seated female passenger and attempted secretly to photograph or videotape a visual image of the area in violation of § 105 (b). The defendant sought relief from the denial of his motion to dismiss the two complaints. He contends that § 105 (b) does not criminalize the conduct he is charged with having committed. We agree and reverse the order of the Boston Municipal Court judge denying the defendant’s motion to dismiss.

1. Facts and procedural history. We summarize the facts as alleged by the Commonwealth.2 At approximately 8:30 a.m. on August 11, 2010, while the defendant was a passenger on an MBTA trolley in Boston, he turned on his cellular telephone camera and held it by his waist. A woman wearing a skirt was seated across from him, and an image of the woman’s upper leg appeared on the screen of the defendant’s cellular telephone. A passenger who observed the defendant’s actions reported the incident to the MBTA transit police (transit police) and stated that the woman being photographed appeared to be unaware that she was being photographed. At approximately 5 p.m. that same day, a second MBTA passenger reported to the transit police that she saw the defendant attempting to photograph a woman’s crotch area. With her own cellular telephone, she captured images of the defendant taking those photographs and forwarded them to the transit police.

As a result of these two reports, transit police officers initiated a decoy operation the next day at around 5 p.m. When the officers saw a man whom they identified as the defendant3 board the MBTA trolley, the officers boarded as well. The defendant stood in a stairwell of the trolley, and the female decoy officer, who was wearing a dress, sat across from him. *373Between the Park Street and Government Center MBTA stations, the defendant directed his cellular telephone camera lens to within two to three feet of the decoy officer, focusing on her crotch area, and steadily held the telephone in that position for approximately one minute. In addition, a red light on the defendant’s telephone was illuminated, indicating that it was videotaping.

After observing this event, the other transit police officers approached the defendant, advised him to stop, and attempted to seize his cellular telephone, an attempt that the defendant resisted. Ultimately, the officers succeeded in securing the telephone and noted that it had been recording until the officers turned off the recording function. The defendant was placed under arrest.

On December 8, 2011, two criminal complaints issued charging the defendant under G. L. c. 274, § 6, with attempting to commit the offense of photographing, videotaping, or electronically surveilling a nude or partially nude person in violation of § 105 (b).4,5 On March 6, 2012, the defendant filed a motion to dismiss the complaints, which a Boston Municipal Court judge denied on August 3. Thereafter, the defendant filed a petition *374under G. L. c. 211, § 3, in the county court, seeking interlocutory review of the denial of his motion to dismiss. On December 21, 2012, the single justice reserved and reported the case to the full court.

2. Discussion, a. Relief under G. L. c. 211, § 3. The Commonwealth contends that relief under G. L. c. 211, § 3, is unavailable to the defendant here because the denial of a motion to dismiss is an interlocutory ruling, and the defendant has failed to satisfy his burden to “demonstrate both a substantial claim of violation of his substantive rights and irremediable error, such that he cannot be placed in statu quo in the regular course of appeal.” Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980). It is true, as the Commonwealth asserts, that our power under G. L. c. 211, § 3, is to be used sparingly. See, e.g., Burke v. Commonwealth, 373 Mass. 157, 158 (1977). However, “[w]here the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported.” Martin v. Commonwealth, 451 Mass. 113, 119 (2008). See Commonwealth v. Goodwin, 458 Mass. 11, 14-15 (2010); Burke, supra at 159. Accordingly, we consider the merits of this case.6

b. Scope of§ 105 (b). General Laws c. 272, § 105 (§ 105),7 begins with a brief definitional subsection, § 105 (a); has two *375separate provisions defining crimes, § 105 (b)-(c); and also has two exemption provisions, see § 105 (d)-(e). 8 Section 105 (b), at issue here, provides as follows:

“Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 V2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.”

As its text indicates, § 105 (b) has five elements that the Commonwealth must prove: (1) the defendant willfully photographed, videotaped, or electronically surveilled;9 (2) the subject was another person who was nude or partially nude; (3) the defend*376ant did so with the intent to secretly conduct or hide his photographing activity; (4) the defendant conducted such activity when the other person was in a place and circumstance where the person would have a reasonable expectation of privacy in not being “so photographed”; and (5) the defendant did so without the other person’s knowledge or consent.

At least for purposes of the motion to dismiss, the defendant does not contest that the conduct alleged by the Commonwealth in each complaint satisfies the first, third, and fifth of these elements — i.e., that (1) he attempted willfully to photograph a person with his cellular telephone camera; (3) he did so secretly with the intent to hide such conduct; and (5) he did so without the knowledge or consent of the person being photographed. He argues, however, that insofar as the Commonwealth’s specific claim here is that his attempt was to photograph up the skirt of a clothed female passenger on the MBTA trolley, the charged conduct does not come within the scope of either the second or fourth element of the § 105 (b) offense because the female passenger was not “nude or partially nude,” and also was not in a place where she had a reasonable expectation of privacy not to be “so photographed.”10 We turn to the two challenged elements.

i. “Another person who is nude or partially nude. ” Section 105 (b) focuses on a person who “willfully photographs, videotapes or electronically surveils another person who is nude or partially nude” (emphasis added).11 In seeking to determine the meaning of this provision, we consider first the meaning of the actual language used by the Legislature. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983) (“the primary source of insight into the intent of the Legislature is the language of the statute”). Accord Commonwealth v. Rahim, 441 Mass. 273, 274 (2004).

Section 105 (a) defines “[p]artially nude” as “the exposure *377of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.” “Exposure” is not defined in the statute, but is generally defined as “an act of exposing,” “a condition or instance of being laid bare or exposed to view.” Webster’s Third New International Dictionary 802 (2002). “Expose,” in turn, means “to lay open to view; lay bare; make known,” with “display” and “exhibit” noted as synonyms. Id. See American Heritage Dictionary of the English Language 626 (4th ed. 2006) (defining “expose” as “to make visible”).12 With these two definitions in mind, the defendant argues that “partially nude” refers to having one or more private parts of the body uncovered by any clothes and exposed or openly visible to another person’s eyes; and that in proscribing the secret photographing of “a person who is . . . partially nude,” the Legislature sought to protect against “Peeping Toms,” that is, to punish secret photographing — by electronic means or otherwise — of such persons. The Commonwealth disagrees. It focuses on the definition of “exposure” or “expose” as “to cause to be visible or open to view,” and appears to contend that the term “partially nude” includes the “exposure” “caused” by one person of an otherwise private part of another person’s body through the creation of a photographic image; the fact that this other person was wearing some layer of clothing over that otherwise private body part is irrelevant. In essence, the Commonwealth reads § 105 (b) to apply to one who secretly photographs another person’s partial nudity, whether the nudity is openly exposed and visible or only becomes exposed and visible by virtue of the photograph.

This interpretation of § 105 (6)’s language and reach is flawed. Contrary to the Commonwealth’s view, § 105 (b) does not penalize the secret photographing of partial nudity, but of “a person who is .. . partially nude” (emphasis added). “Is” denotes a state of a person’s being, not a visual image of the *378person. Moreover, this person who is partially nude should be defined with reference to the other category of person included in the same sentence, namely, “a person who is nude.” See 2A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:16, at 352-353 (7th ed. 2007) (“ordinarily the coupling of words denotes an intention that they should be understood in the same general sense”). See also Commonwealth v. Brooks, 366 Mass. 423, 428 (1974) (“words in a statute must be considered in light of the other words surrounding them”). Just as “a person who is nude” is commonly understood to mean a person who is not wearing any clothes,13 so, in this context, we understand “a person who is . . . partially nude” to denote a person who is not wearing any clothes covering one or more of the parts of the body listed in the definition of that term, specifically, “the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.” G. L. c. 272, § 105 (a).

In sum, we interpret the phrase, “a person who is . . . partially nude,” in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her.14 A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is “partially nude,” no matter what is or is not underneath the skirt by way of underwear or other clothing.15

*379ii. “In such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed.” Our interpretation of § 105 (b)’s phrase, “a person who ... is partially nude,” essentially disposes of this case: as just indicated, under our interpretation, the two women the defendant is alleged to have attempted to secretly photograph on the MBTA were not “partially nude.” However, we discuss briefly the fourth statutory element of the crime, namely, that the person being photographed “in such place and circumstance would have a reasonable expectation of privacy in not being so photographed.” Id. The defendant argues that this language means that the person must be in a private place or a location where a person “would normally have privacy from uninvited observation.” As such, because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy. The Commonwealth argues that the defendant’s proffered interpretation restricts § 105 (b’s) application to private places, and there is no such limiting language in the statute. It reads the statutory phrase, “reasonable expectation of privacy in not being so photographed” (emphasis added), as focusing less on the location where the photographing occurs than the location on the body that is the subject of that photograph. It argues that because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt, the defendant’s conduct falls within § 105 (b).

We disagree with the Commonwealth’s reading. The word “so” in the phrase, “so photographed,” clearly is used referentially — that is, it serves to refer back to preceding language in the subsection addressing or describing the act of photographing. The preceding descriptive language in the section is the following: “Whoever willfully photographs . . . another person who is nude or partially nude, with the intent to secretly conduct or hide such activity . . . .” G. L. c. 272, § 105 (b). *380See Commonwealth v. Daley, 463 Mass. 620, 624 (2012) (applying rules of grammar to interpret statute). Thus, it follows that the “so photographed” language in connection with the “place and circumstance” language requires that the person being photographed be in a state of complete (“nude”) or partial (“partially nude”) undress, and present in a place, private or not, where in the particular circumstances she would have a reasonable expectation of privacy in not being wilfully and secretly photographed while in that state.16

iii. Conclusion. For the reasons we have discussed, we conclude that § 105 (b), as written, as the defendant suggests, is concerned with proscribing “Peeping Tom” voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. Section 105 (b) does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA.

At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b) in its current form does not address it.17

c. Constitutional challenges to § 105 (b). The defendant *381argues that if § 105 (b) criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad. Where “a particular construction of a statute is the premise of a constitutional claim, [the court] must resolve any issues of statutory interpretation . . . prior to reaching any constitutional issue.” Commonwealth v. Suave, 460 Mass. 582, 586-587 (2011), quoting Santos, petitioner, 78 Mass. App. Ct. 280, 284 (2010). Because we have concluded that § 105 (b) does not criminalize the defendant’s alleged conduct, we need not reach the constitutional questions he raises. See, e.g., Suave, supra at 589; Commonwealth v. Raposo, 453 Mass. 739, 743 (2009).

Order denying motion to dismiss reversed.

SCHAUER, J.

Defendant appeals from a judgment imposing a sentence of life imprisonment (with recommendation that he be placed in a hospital for the criminally insane) after he pleaded not guilty by reason of insanity to a charge of murder, the jury found that he was legally sane at the time of the commission of the offense, and the court determined the killing to be murder in the first degree.

Defendant contends that the evidence is insufficient to support the verdict of sanity, that the court gave conflicting *799instructions on the presumptions of sanity and of the continuance of prior “permanent” insanity, and that his crime should have been determined to be second degree rather than first degree murder. Upon a comprehensive view of all the evidence we have concluded that the first two of these contentions are without merit, but that the judgment should be reduced to murder of the second degree.

Defendant, a 15-year-old boy at the time of the crime, was charged with the murder of his mother. The juvenile court found him to be “not a fit subject for consideration” under the Juvenile Court Law, and remanded him to the superior court for further proceedings in the criminal action. To the information accusing him of murder defendant entered the single plea of “not guilty by reason of insanity,” thereby admitting commission of the basic act which, if not qualified under the special plea, constitutes the offense charged. (Pen. Code, § 1016.) After considering reports of three alienists appointed to examine defendant (Pen. Code, § 1027) the court declared a doubt as to his mental capacity to stand trial (§§ 1368 et seq.). At a hearing on that issue, however, the court found defendant to be “mentally ill but not to the degree that would preclude him from cooperation with his counsel in the preparation and presentation of his defense. ’ ’ The plea of not guilty by reason of insanity was then tried to a jury and resulted in a verdict that defendant was legally sane at the time of the commission of the jurisdictional act of killing. Defendant’s motion for new trial on the ground of insufficiency of the evidence was heard and denied, and by stipulation the question of the degree of the crime was submitted to the court on the basis of the evidence introduced at the trial and the report of the probation officer. The court determined the crime to be murder in the first degree; sentenced defendant to life imprisonment; and to the judgment added, “Placement in hospital for criminally insane recommended.”

The California M’Naughton Rule

On the issue of insanity the jury were instructed in terms of the California rule; i.e., the so-called M’Naughton rule as that rule has been developed by statute and decision in California. In hereinafter discussing and ruling upon the sufficiency of the evidence to support the finding (a) that defendant was legally sane and (b) that the murder was of the first degree, the liberality of the California rule, and the sometimes dual materiality (where the crime is divided into *800degrees) of evidence admitted thereunder, will become apparent.

The original M’Naughton language from which the California rule has been evolved is set out in the margin.1 Under that language a mentally ill defendant could be found sane even though his “knowledge” of the nature or wrongfulness of his act was merely a capacity to verbalize the “right” (i.e., socially expected) answers to questions put to him relating to that act, without such “knowledge” having any affective meaning for him as a principle of conduct. Such a narrow, literal reading of the M’Naughton formula has been repeatedly and justly condemned. (2 Stephen, History of the Criminal Law of England (1883) pp. 170-171; Weihofen, Mental Disorder as a Criminal Defense (1954) pp. 76-77; Hall, General Principles of Criminal Law (2d ed. 1960) pp. 481, 494, 520; Diamond, Criminal Responsibility of the Mentally Ill (1961) 14 Stan.L.Rev. 59, 62; Glueck, Law and Psychiatry (1962) p. 49, fn. 14.) Rather, it is urged by many that the word “know” as used in the formula be given “a wider definition so that it means the kind of knowing that is relevant, i.e., realization or appreciation of the wrongness of seriously harming a human being” (Hall, op. cit. supra, at p. 520). “If the word ‘know’ were given this broader interpretation, so as to require knowledge ‘fused with affect’ and assimilated by the whole personality—so that, for example, the killer was capable of identifying with his prospective victim—much of the criticism of the knowledge test would be met.” (Weihofen, op. cit. supra, at p. 77.)

The California courts have not been unresponsive to such proposals for liberalization of the original language of the M’Naughton rule (ante, fn. 1); in evolving our own rule to meet statutory requirements, apply humane concepts, and at the same time protect society, we have reformulated the test with a variety of specifications to achieve this end. (See e.g., People v. Willard (1907) 150 Cal. 543, 554 [83 P. 124] [“if he understands the nature and character of his action and its consequences”]; People v. Harris (1914) 169 Cal. 53, *80161 [145 P. 520] [“having mental capacity to know and understand the nature and character of the act he was committing”]; People v. Oxnarn (1915) 170 Cal. 211, 213 [149 P. 165] [“If appellant . . . had sufficient mental capacity to appreciate the character and quality of his act, knew and understood that it was a violation of the rights of another . . . , if he had the capacity thus to appreciate the character and comprehend the possible or probable consequence of his act”]; People v. Morisawa (1919) 180 Cal. 148, 150 [179 P. 888] [“if the defendant . . . did not appreciate the act he was committing”]; People v. Gilberg (1925) 197 Cal. 306, 314 [3] [240 P. 1000] [“he appreciated the nature and the quality of the act”]; People v. Wells (1949) 33 Cal.2d 330, 351 [20] [202 P.2d 53] [“to know the nature of his act and appreciate that it was wrongful and could subject him to punishment”]; People v. Gorshen (1959) 51 Cal. 2d 716, 735 [18] [336 P.2d 492] [relative to identity or degree of a crime].) (Italics added.) Guided by such decisions, our trial courts place a eommendably broad interpretation upon the M’Naughton “knowledge” test: in the case at bench, for example, the jury were given the now standard instruction (CALJIC No. 801 Rev.) that “Insanity, as the word is used in these instructions, means a diseased and deranged condition of mind which renders a person incapable of knowing or understanding the nature and quality of his act, or to distinguish right from wrong in relation to that act.

“The test of sanity is this: First, did the defendant have sufficient mental capacity to know and understand what he was doing, and second, did he know and understand that it was wrong and a violation of the rights of another? To be sane and thus responsible to the law for the act committed, the defendant must be able to know and understand the nature and quality of his act and to distinguish between right and wrong at the time of the commission of the offense.” (Italics added.)2 Reviewing similar instructions, the Special Commission on Problems of Insanity Relating to Criminal Offenders concludes that “In any event, regardless of how the M’Naghten [3] [sic] test is applied elsewhere, the California courts have attempted to give a psychologically sound recog*802nition to the depth and insight required of a defendant’s knowledge.” (First Report, Special Commissions on Insanity and Criminal Offenders (1962) p. 23, fn. 6.)

Nevertheless, amicus curiae contends that the California rule is unconstitutional in that it assertedly deprived defendant of due process and equal protection of the law. Similar arguments as to the M’Naughton rule were rejected by the United States Supreme Court in Leland v. Oregon (1952) 343 U.S. 790, 800-801 [72 S.Ct. 1002, 96 L.Ed. 1302], Quoting the high court (ibid.) to the effect that “The science of psychiatry has made tremendous strides since that test was laid down in M’Naghten’s [sic] Case, but the progress of science has not reached a point where its learning would compel us to require the states to eliminate the right and wrong test from their criminal law [fns. omitted],” amicus curiae urges that now, 12 years after Leland, scientific knowledge has reached that point. But the extent and nature of advances in psychiatric knowledge during the past decade are not shown, and we are not persuaded that they have been of such a revolutionary scope as to undermine the holding in Leland.4

Moreover, as the United States Supreme Court further observed in Leland (at p. 801 of 343 U.S.), “choice of a test of *803legal sanity involves not only scientific knowledge but questions of basic policy as to the extent to which that knowledge should determine criminal responsibility. [Pn. omitted.] This whole problem has evoked wide disagreement among those who have studied it.” While attacking the M’Naughton rule (and not differentiating the California rule) amicus curiae does not offer a more workable test in its stead, and in any event fails to demonstrate that the issue is now a judicial rather than a legislative one. As we have repeatedly stated in recent years, the M’Naughton test (of course, as evolved and applied in the California rule) has become “an integral part of the legislative scheme for the appraisal of criminal responsibility in California and any change therein should come from the Legislature.” (People v. Darling (1962) 58 Cal.2d 15, 23 [9] [22 Cal.Rptr. 484, 372 P.2d 316]; People v. Rittger (1960) 54 Cal.2d 720, 732 [9] [7 Cal.Rptr. 901, 355 P.2d 645]; People v. Nash (1959) 52 Cal.2d 36, 43 [1] - 49 [4] [338 P.2d 416], and cases there cited.) Indeed, the entire problem is currently under consideration by that body.5

The Sufficiency of the Evidence of Sanity

Turning now to defendant’s more specific contentions, it is first urged that “As a matter of law, [defendant] was legally insane at the time of the commission of the offense.” In support of this proposition defendant stresses the fact that each of the four psychiatrists who testified at the trial stated (1) that in his medical opinion defendant suffers from a permanent form of one of the group of mental disorders generically known as “schizophrenia” and (2) that defendant was also legally insane at the time he murdered his mother. Much confusion has been engendered in this and similar cases by failure to distinguish between these two branches of the testimony and by uncritical acceptance of *804both as equally “expert.” The bases of the psychiatrists’ “legal” opinion will be explored hereinafter; on the purely medical question these witnesses agreed (and in this litigation no one disputes their findings) that defendant’s illness is characterized by a “disintegration of the personality” and a “complete disassoeiation between intellect and emotion,” that defendant “is not capable of conceptual thinking” but only of “concrete” thinking, and that although his memory is not impaired his judgment is affected “to a considerable degree. ’ ’

However impressive this seeming unanimity of expert opinion may at first appear (and we give it due consideration not only on the issue of sanity, but also in a subsequent portion of this opinion wherein we discuss the degree of the crime), our inquiry on this just as on other factual issues is necessarily limited at the appellate level to a determination whether there is substantial evidence in the record to support the jury’s verdict of sanity (and the trial court’s finding as to the degree of the murder) under the law of this state. (People v. Rittger (1960) supra, 54 Cal.2d 720, 733 [9] - 734 [10]; People v. Berry (1955) 44 Cal.2d 426, 432 [6] [282 P.2d 861]; People v. Dennis (1960) 177 Cal.App.2d 655, 660 [la] - 661 [lb] [2 Cal.Rptr. 393].) It is only in the rare case when “the evidence is uncontradicted and entirely to the effect that the accused is insane ” (In re Dennis (1959) 51 Cal.2d 666, 674 [12] [335 P.2d 657]) that a unanimity of expert testimony could authorize upsetting a jury finding to the contrary. While the jury may not draw inferences inconsistent with incontestably established facts (People v. Holt (1944) 25 Cal.2d 59, 70 [6] [153 P.2d 21]), nevertheless if there is substantial evidence from which the jury could infer that the defendant was legally sane at the time of the offense such a finding must be sustained in the face of any conflicting evidence, expert or otherwise, for the question of weighing that evidence and resolving that conflict “is a question of fact for the jury’s determination” (People v. Berry (1955) supra, 44 Cal.2d 426, 432 [6]). Indeed, the code specifically requires that the jury be instructed (and they were so instructed in the ease at bench) that "The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion if it shall be found by them to be unreasonable.” (Pen. Code, § 1127b.)

The question of what may constitute substantial evi*805deuce of legal sanity cannot be answered by a simple formula applicable to all situations. To begin with, in In re Dennis (1959) supra, 51 Cal.2d 666, 674 [12], we disapproved an implication in People v. Chamberlain (1936) 7 Cal.2d 257, 260 [1] - 261 [3] [60 P.2d 299], to the effect that the presumption of sanity alone might be sufficient in the face of uncontradicted evidence of insanity introduced by the defendant. The court in Chamberladn also stressed such factors as “The personal appearance, mannerisms and actions of the defendant before the jurors during the trial, and the character of his testimony and manner of giving it” (ibid.); but evidence of that nature would seem to be of doubtful sufficiency in a ease where, as here, defendant’s mental illness is not of a type characterized by continual maniacal activity or obvious physical symptoms.

Beyond this point, however, it is settled that “the conduct and declarations of the defendant occurring within a reasonable time before or after the commission of the alleged act are admissible in proof of his mental condition at the time of the offense.” (People v. David (1939) 12 Cal.2d 639, 649 [13] [86 P.2d 811]; accord, People v. Kimball (1936) 5 Cal.2d 608, 610-611 [3] [55 P.2d 483]; People v. Harris (1914) 169 Cal. 53, 63 [145 P. 520]; People v. Dennis (1960) supra, 177 Cal.App.2d 655, 660-661 [6]; see generally Note 8 A.L.R. 1219 et seq.) In the present case such evidence was introduced, both of defendant’s conduct and of his declarations.

Conduct of Defendant as Evidence of Legal Sanity. Among the kinds of conduct of a defendant which our courts have held to constitute evidence of legal sanity are the following: “an ability on the part of the accused to devise and execute a deliberate plan” (People v. David (1939) supra, 12 Cal.2d 639, 647 [9]); “the manner in which the crime was conceived, planned and executed” (People v. Darling (1962) supra, 58 Cal.2d 15, 21 [9]); the fact that witnesses “observed no change in his manner and that he appeared to be normal” (People v. Caetano (1947) 29 Cal.2d 616, 620 [5] [177 P.2d 1]); the fact that “the defendant walked steadily and calmly, spoke clearly and coherently and appeared to be fully conscious of what he was doing ” (People v. Van Winkle (1953) 41 Cal.2d 525, 529 [2] [261 P.2d 233]) ; and the fact that shortly after committing the crime the defendant “was cooperative and not abusive or combative” (People v. Dennis (1960) supra, 177 Cal.App.2d 655, 658), that “ques*806tions put to "him . . . were answered by him quicHy and promptly” (People v. Loomis (1915) 170 Cal. 347, 349 [149 P. 581]), and that “he appeared rational, spoke coherently, was oriented as to time, place and those persons who were present” (People v. Fraters (1956) 146 Cal.App.2d 305, 306 [1] [303 P.2d 588]).

In the case at bench there was evidence that in the year preceding the commission of the crime defendant “spent a lot of time thinking about sex.” He made a list of the names and addresses of seven girls in his community whom he did not know personally but whom he planned to anesthetize by ether and then either rape or photograph nude. One night about three weeks before the murder he took a container of ether and attempted to enter the home of one of these girls through the chimney, but he became wedged in and had to be rescued. In the ensuing weeks defendant apparently deliberated on ways and means of accomplishing his objective and decided that he would have to bring the girls to his house to achieve his sexual purposes, and that it would therefore be necessary to get his mother (and possibly his brother) out of the way first.6

The attack on defendant’s mother took place on Monday, May 15, 1961. On the preceding Friday or Saturday defendant obtained an axe handle from the family garage and hid it under the mattress of his bed. At about 10 p.m. on Sunday he took the axe handle from its hiding place and approached his mother from behind, raising the weapon to strike her. She sensed his presence and asked him what he was doing; he answered that it was “nothing,” and returned to his room and hid the handle under his mattress again. The following morning defendant arose and" put the customary signal (a magazine) in the front window to inform his father that he had not overslept. Defendant ate the breakfast that his mother prepared, then went to his room and obtained the axe handle from under the mattress. He returned to the kitchen, approached his mother from behind and struck her on the back of the head. She turned around screaming and he struck her several more blows. They fell to the floor, fighting. She called out her neighbor’s name and defendant began choking her. She bit him on the hand and *807crawled away. He got up to turn off the water running in the sink, and she fled through the dining room. He gave chase, caught her in the front room, and choked her to death with his hands. Defendant then took off his shirt and hung it by the fire, washed the blood off his face and hands, read a few lines from a Bible or prayer book lying upon the dining room table, and walked down to the police station to turn himself in. Defendant told the desk officer, “I have something I wish to report.... I just killed my mother with an axe handle.” The officer testified that defendant spoke in a quiet voice and that “His conversation was quite coherent in what he was saying and he answered everything I asked him right to a T.”

Defendant’s counsel repeatedly characterizes as “bizarre” defendant's plan to rape or photograph nude the seven girls on his list. Certainly in common parlance it may be termed “bizarre”; likewise to a mature person of good morals, it would appear highly unreasonable. But many a youth has committed—or planned—acts which were bizarre and unreasonable. This defendant was immature and lacked experience and judgment in sexual matters. But it does not follow therefrom that the jury were precluded as a matter of law from finding defendant legally sane at the time of the murder. Prom the evidence set forth hereinabove the jury could infer that defendant had a motive for his actions (gratification of his sexual desires),7 that he planned the attack on his mother for some time (obtaining the axe handle from the garage several days in advance; abortive attempt to strike his mother with it on the evening before the crime), that he knew that what he was doing was wrong (initial concealment of the handle underneath his mattress; excuse offered when his mother saw him with the weapon on the evening before the crime; renewed concealment of the handle under the mattress), that he persisted in the fatal attack (pursuit of his *808fleeing mother into the front room; actual infliction of death by strangling rather than bludgeoning), that he was conscious of having committed a crime (prompt surrender to the police), and that he was calm and coherent (testimony of desk officer and others). We need not determine whether such conduct would alone constitute substantial evidence from which the jury could find defendant legally sane at the time of the murder, for as will next be shown the record contains further evidence on this issue.

Declarations of Defendant as Evidence of Legal Sanity. Oral declarations made by a defendant during the period of time material to his offense may constitute evidence of legal sanity. (People v. David (1939) supra, 12 Cal.2d 639, 649 [12].) In People v. Darling (1962) supra, 58 Cal.2d 15, 21 [9], we referred inter alia to statements made by a defendant relating to his “reason for first committing the homicide and later surrendering himself,” and held that “such evidence firmly establishes that defendant was aware at all times that his actions were wrong and improper.” (See also People v. Fraters (1956) supra, 146 Cal.App.2d 305, 306 [1] [defendant “knew that he had committed the offense and knew the consequences of his act”]; People v. Harmon (1952) 110 Cal.App.2d 545, 553 [3b] [243 P.2d 15] [“certain portions of defendant’s confession tended to indicate a consciousness of guilt and an awareness of the rightness or wrongness of his conduct”].8)

In the ease at bench defendant was questioned by Officers Stenberg and Hamilton shortly after he came to the police station and voluntarily announced that he had just killed his mother. The interrogation was transcribed and shown to defendant; he changed the wording of a few of his answers, then affixed his signature and the date on each page.9 *809When asked by Officer Hamilton why he had turned himself in, defendant replied, “Well, for the act I had just committed.” Defendant then related the events leading up to and culminating in the murder, describing his conduct in the detail set forth hereinabove. With respect to the issue of his state of mind at the time of the crime, the following language is both relevant and material: When asked how long he had thought of killing his mother, defendant replied, “I can’t be clear on that. About a week ago, I would suppose, the very beginning of the thoughts. First I thought of giving her the ether. . . . Then Thursday and Friday I thought of it again. Q. Of killing your mother ? A. Not of killing. Well, yes, I think so. Then Saturday and Sunday the same.” After stating that he struck her the first blow on the back of the head, defendant was asked: “ Q. Did you consider at the time that this one blow would render her unconscious, or kill her ? A. I wasn’t sure. I was hoping it would render her unconscious. Q. Was it your thought at this time to kill her? A. I am not sure of that. Probably kill her, I think.” Defendant described the struggle in which he and his mother fell to the floor, and was asked: “Q. Then what happened .... A. She moved over by the stove, and she just laid still. She was breathing, breathing heavily. I said ‘I shouldn’t be doing this’—not those exact words, but something to that effect, and laid down beside her, because we were on the floor. Q. Were you tired? A. Yes.” After defendant had choked her to death he said, “God loves you, He loves me, He loves my dad, and I love you and my dad. It is a circle, sort of, and it is horrible you have done all that good and then I come along and destroy it. ’ ’

*810Detective Stenberg thereafter interrupted Officer Hamilton’s interrogation, and asked the following questions: “Q. (Det. W. ft. Stenberg) You knew the wrongfulness of killing your mother? A. I did. I was thinking of it. I was aware of it.[10] Q. You were aware of the wrongfulness. Also had you thought what might happen to you? A. That is a question. No. Q. Your thought has been in your mind for three weeks of killing her? A. Yes, or of just knocking her out.[11] Q. Well, didn’t you feel you would be prosecuted for the wrongfulness of this act ? A. I was aware of it, but not thinking of it.” Officer Hamilton asked: “Q. Can you give a reason or purpose for this act of killing your mother ? Have you thought out why you wanted to hurt her ? A. There is a reason why we didn’t get along. There is also the reason of sexual intercourse with one of these other girls, and I had to get her out of the way.[12] Q. Did you think you had to get her out of the way permanently ? A. I sort of figured it would have to be that way, but I am not quite sure.”

Thus, contrary to the misunderstanding of counsel and amicus curiae, Officer Stenberg’s question (“You knew the wrongfulness of killing your mother?”) related unequivocally to defendant’s knowledge at the time of the commission of the murder and defendant’s equally unequivocal answer (“I did. I was thinking of it. I was aware of it.”) related to the same period of time. This admission, coupled with defendant’s uncontradicted course of conduct and other statements set forth hereinabove, constitutes substantial evidence from which the jury could find defendant legally sane at the time of the matricide.

It is contended that the foregoing evidence of defendant’s conduct and declarations is equally consistent with the type of mental illness (i.e., a form of “schizophrenia”) from which, according to the psychiatric witnesses, defendant is said to be suffering. But this consistency establishes only that *811defendant is suffering from the diagnosed mental illness—a point that the prosecution readily concedes; it does not compel the conclusion that on the very different issue of legal sanity the evidence is insufficient as a matter of law to support the verdict. To hold otherwise would be in effect to substitute a trial by “experts” for a trial by jury, for it would require that the jurors accept the psychiatric testimony as conclusive on an issue—the legal sanity of the defendant—which under our present law is exclusively within the province of the trier of fact to determine.

To guard against misunderstanding of our rules it is pertinent to observe that we do not reject expert testimony simply or solely because it may also answer the ultimate question the jury is called upon to decide (see, e.g., People v. Cole (1956) 47 Cal.2d 99, 105 [3] [301 P.2d 854, 56 A.L.R.2d 1435]); but, strictly speaking, a psychiatrist is not an “expert” at all when it comes to determining whether the defendant is legally responsible under the terms of the California rule. Thus Dr. Alfred K. Baur, psychiatrist and Chief of Staff of the Veteran’s Administration Hospital at Salem, Virginia, has recently warned that the question of a defendant’s “insanity” (which he defines as legal irresponsibility) should not even be asked of members of his profession: “As psychiatrists, we can testify as to our findings regarding the ‘mental condition’ of the person in question . . . ; but, to ask the psychiatric witness, ‘Doctor, in your opinion is this person insane (or sane) V is the same as asking an expert witness in a criminal trial, ‘In your opinion, is the accused guilty or not guilty V Yet, many lawyers ask psychiatrists to state opinions on the sanity of the accused and, unfortunately, many psychiatrists perpetuate the problem by accepting the role of oracle and answering the question, even thinking it properly within their functions.” (Baur, Legal Responsibility and Mental Illness (1962) 57 Nw.L.Rev. 12, 13; for similar views, see Address of Dr. Karl Menninger to the Judicial Conference of the 10th Circuit (1962) 32 F.R.D. 566, 571; Glueck, Law and Psychiatry (1962) pp. 65-67; cf. People v. O’Brien (1932) 122 Cal.App. 147, 150-154 [2] [9 P.2d 902].)

In the light of the authorities which have been brought to our attention it thus appears that a psychiatrist's conclusion as to the legal insanity of a schizophrenic is inherently no more than tentative. As Dr. Manfred S. Guttmaeher observes, “in the most malignant type of psychosis, schizophrenia, the decision is often extremely difficult and the psychiatrist, *812conscientiously attempting to assay the individual’s capacity to distinguish right and wrong will be able to do little more than conjecture. Much, indeed, is known about the schizophrenic disorders at a descriptive level and valid generalizations about the symptomatology can be made. But our methods of examination do not permit us to particularize convincingly in regard to the individual patient.” (Guttmacher, Principal Difficulties with the Present Criteria of Responsibility and Possible Alternatives, in Model Pen. Code, Tent. Draft No. 4 (1955) p. 171.) In this uncertain state of knowledge, the fact that the four psychiatrists in the case at bench happened each to diagnose defendant’s medical condition as “schizophrenia”13 did not preclude the jury from weighing, as they were required to do, these witnesses' further opinion that defendant was legally insane at the time of the murder. Nor is this case unusual in this respect: in accordance with the just mentioned principle, jury verdicts of legal sanity have been upheld in a long line of cases in which the expert medical testimony was unanimous that the defendant was suffering from schizophrenia (e.g., People v. Dennis (1960) supra, 177 Cal.App.2d 655, 660 [4], and cases there cited) and was insane at the time of the offense of which he was convicted (People v. Fraters (1956) supra, 146 Cal. App.2d 305, 306 [1] ; People v. Harmon (1952) supra, 110 Cal.App.2d 545, 553 [3a]; People v. Darling (1951) 107 Cal.App.2d 635, 641 [6] [237 P.2d 691] People v. Martin (1948) 87 Cal.App.2d 581, 588-589 [9] [197 P.2d 379]; People v. Denningham (1947) 82 Cal.App.2d 117, 119-120 [5] [185 P.2d 614]; People v. Babcock (1943) 57 Cal.App.2d 54, 55-58 [1] [134 P.2d 54]).

To the extent, moreover, that the psychiatric witnesses in the case at bench were asked their opinion as to defendant’s legal sanity, a close examination of their responses discloses still further grounds in support of the verdict. The jury were entitled, of course, to consider on this issue the entire testimony of each such witness, including the reasons given *813for Ms concMsion that defendant was legally insane. Dr. Nielsen testified on direct examination that at the time of the murder defendant “knew right from wrong” but was “acting impulsively” and “didn’t think it through”; that during the period of the final outburst ‘ He knew what he was doing after all. He studied his mother to see whether she was dead and when she wasn’t, he went ahead and finished it.” On cross-examination Dr. Nielsen was asked whether defendant's compulsion to kill his mother resembled an “irresistible impulse”; he replied, “It was not resisted and it was an impulse.” The doctor further agreed that defendant “was capable at the time, of knowing the difference between right and wrong, but that he didn’t bother to think about it”; that defendant "could have and did appreciate what he did, ’' and that “he knew what he did was wrong.” The doctor testified that ordinarily a schizophrenic’s description of his state of mind during an “outburst” is no more than his own interpretation or rationalization of what happened; but when asked whether a schizophrenic “know[s] in terms of right and wrong what he is doing” during an outburst, the doctor replied: “ I don't want to answer that for every case but in this ease, yes. ” Dr. Nielsen further stated that defendant “was hoping to escape by the plan that had been evolved by his father [i.e., by a successful plea of not guilty by reason of insanity] and he may have thought all the time that he could escape’ ’; that while in custody defendant had been reading about schizophrenia in books that his father had furnished him on the subject.

The next psycMatrie witness, Dr. Smith, testified that when defendant killed his mother “He was acting on an impulse”; that “his expressions of intention to go out and have intercourse and his intention to knock out his mother and the aunt, if she came, are evidence of his ability to think because of his ability to plan. Now beyond that point of having struck his mother, this is an impulsive schizophrenic piece of behavior which is entirely separated in my opinion from some planned piece of activity. ’ ’

The final psychiatric witness, Dr. Skrdla, testified on direct examination that at the time of the killing defendant “knew that he had committed a wrong act, at least morally wrong, and possibly legally wrong, because, according to the story he gave me, he washed the blood from himself and changed his clothes, and, a few minutes after the murder, went to the police station to report it. This would indicate that he *814recognized that his act was wrong.” On cross-examination Dr. Skrdla testified that when defendant killed his mother “he probably did know the difference between right and wrong” but that he was one of those schizophrenics who “because of their emotional problems, their own conflicts, . . . are not able to prevent themselves from going ahead and acting on whatever ideas or compulsions they may have.” The doctor agreed that the fact that defendant hid the axe handle under his mattress would indicate that “he didn’t want to be caught with that axe handle before he was able to go ahead with the plan” and that “He had appreciation of the fact, perhaps, that it wasn’t entirely right, however, he still planned to do it.” Dr. Skrdla termed the killing “an automatic act,” and explained that “once [defendant] attempted to get his mother out of the way ... he went on as was described and couldn’t stop until she was in fact dead.”

The doctrine of “irresistible impulse” as a defense to crime is, of course, not the law of California; to the contrary, the basic behavioral concept of our social order is free will.14 (People v. Nash (1959) supra, 52 Cal.2d 36, 45-46 [1] fn. 5, 53-54; People v. Walter (1936) 7 Cal.2d 438, 440 [2] *815[60 P.2d 990]; People v. Morisawa (1919) supra, 180 Cal. 148, 150, and cases there cited.)

It is true that certain other psychiatric testimony was to the effect that at the time of the murder defendant did not know the nature and quality of his acts and that what he was doing was wrong. But this created only a conflict in the evidence, which was for the jury to resolve. From the testimony quoted above the jury could infer that even though some or all of the psychiatric witnesses concluded that defendant was “legally insane,” there was no basis for that conclusion under the California M’Naughton rule.

Finally, to accept defendant’s thesis would be tantamount to creating by judicial fiat a new defense plea of “not guilty by reason of schizophrenia.” To do so (assuming arguendo that it were within our power) would be bad law and apparently still worse medicine. It would require the jurors to accept as beyond dispute or question the opinions of the psychiatric witnesses as to the defendant’s legal sanity. But it is doubtful that any reputable psychiatrist today would claim such infallibility;15 clearly the four who testified in the case at bench did not do so. Thus, Dr. Daryl D. Smith agreed with counsel’s assertion with respect to schizophrenia that “there is quite a bit of divergence of [psychiatric] opinion relative to this disease.” Indeed, it is often acknowledged that the causes and cure of schizophrenia are unknown (e.g., Diamond, From M’Naughton to Gurrens, and Beyond (1962) 50 Cal.L.Rev. 189, 195; Weihofen, Mental Disorder as a Criminal Defense (1954) p. 16), and that “schizophrenia” is not even a single disease as such but merely a label or term of convenience encompassing a variety of more or less related symptoms or conditions of mental disorder; thus in the case at bench Dr.. J. M. Nielsen agreed that “schizophrenia” is “just a psychiatric classification, . . . simply an abstract definition as applied to the behavior pattern.”

*816Such a classification covers a broad spectrum of mental conditions. As Dr. Alfred K. Baur emphasizes, "Some people are sophisticated enough to know that schizophrenia is one of the ‘major psychoses’ and contributes to many in the ‘insane’ category. But it is very difficult to get across to lay people the idea that a person diagnosed schizophrenic may be quite competent, responsible, and not dangerous, and, in fact, a valuable member of society, albeit at times a personally unhappy one. The same can be said of every psychiatric diagnosis or so-called mental illness.” (Baur, Legal Responsibility and Mental Illness (1962) 57 Nw.U.L.Rev. 12, 16-17.) The argument for defendant, in short, ignores our often-repeated admonition that “ ‘Sound mind’ and ‘legal sanity’ are not synonymous.” (People v. Baker (1954) 42 Cal.2d 550, 568 [9] [268 P.2d 705]; accord, People v. Gorshen (1959) supra, 51 Cal.2d 716, 729 [7]; People v. Nash (1959) supra, 52 Cal.2d 36, 45, fn. 4.)

The Instructions to the Jury

Defendant’s second contention is that the trial court gave conflicting instructions on the presumptions of sanity and insanity. The jury were first given the standard instruction (CALJIC No. 801 rev.) that “The burden of proving insanity is on the defendant. The law presumes that the defendant was sane. The effect of this presumption is to place on the defendant the burden of proving insanity by a preponderance of the evidence.” The jury were thereafter instructed (CALJIC No. 808) that “Proof that defendant, before the time when the crime in question was committed, was afflicted with permanent insanity, as distinguished from temporary or transient insanity, will dispel the presumption of sanity and raise a presumption that defendant’s insanity continued to exist until the time of the commission of the crime. This presumption is not conclusive but rebuttable, and exists only until the contrary is shown.” It is argued that these two instructions are in conflict, and that the latter alone should have been given because “there can be no contention that [defendant] was not suffering from a permanent insanity, to wit: schizophrenia.”

The argument is without merit, for it is based upon a misunderstanding of the different purposes of the two instructions in question. Part of that misunderstanding, it is true, is caused by the language of the “permanent insanity” instruction (CALJIC No. 808), which we now examine more closely. This instruction is taken from the following Ian*817guage of People v. Baker (1954) 42 Cal.2d 550, 564 [5] [268 P.2d 705] : “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. . . [1] dispel the presumption of sanity and [2] raise a presumption that his insanity continued to exist until the time of the commission of the crime.”16 The purpose of the first branch of the just quoted rule may be easily explained: up to the time of the Balter decision it was thought to be the law that the presumption of sanity alone was sufficient evidence, even in the face of uncontradicted evidence of insanity introduced by the defendant, to support a finding that the defendant was legally sane. (People v. Chamberlain (1936) supra, 7 Cal.2d 257, 259, 260 [1] - 261 [3].) The purpose of the first branch of the Balter rule—i.e., that proof of prior permanent insanity “will . . . dispel the presumption of sanity”—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 (People v. Baker (1954) supra, at p. 565 [6] of 42 Cal.2d; People v. Grace (1928) 88 Cal.App. 222, 235 [11] [263 P. 306]). As noted herein-above, in In re Dennis (1959) supra, 51 Cal.2d 666, 674 [11-12], we specifically disapproved Chamberlain and held that “Where . . . the evidence is uncontradicted and entirely to the effect that the accused is insane, the presumption of sanity may not be permitted to prevail.” Thus the Dennis decision removed the need for that portion of the Balter rule declaring that proof of prior permanent insanity “will . . . dispel the presumption of sanity.” Since the reason for the rule has disappeared, in the interest of clarity an instruction embodying the just quoted words should no longer be given. In the case at bench, however, defendant joined in the request that the court give an instruction thus worded, and in any event it was favorable to him.

Since the Chamberlain doctrine has been disapproved it becomes apparent that the second portion of the Balter rule—i.e., that proof of prior permanent insanity “will . . . raise a presumption that [defendant’s] insanity continued to exist until the time of the commission of the crime”-—now verges on a redundancy, for in effect it says that permanent insanity is presumed to be permanent. (See 1 Wharton’s *818Criminal Evidence (11th ed. 1935) § 152, where it is called a “mere petitio prineipii.”) 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. It is merely one illustration of the broader proposition that ‘when the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period. ’ [Wigmore, Evidence (3d ed. 1940) § 437.] ” (Weihofen, Mental Disorder as a Criminal Defense (1954) p. 230 (fns. omitted).) The latter proposition is codified in our law as a “disputable presumption” (Code Civ. Proc., § 1963, subd. 32 [“That a thing once proved to exist continues as long as is usual with things of that nature”]).

It follows that there was no conflict in the case at bench with the instruction on the presumption of sanity (CALJIC No. 801 rev.) for as the jury were correctly told, “The effect of this presumption [of sanity] is to place on the defendant the burden of proving insanity by a preponderance of the evidence.” (Italics added.) That burden is a rule of procedure; it is in no way eliminated—but its onus may be discharged—by the introduction of proof of prior “permanent” insanity, and hence the instruction now challenged was properly given regardless of whether or not there was also evidence of such “permanent” insanity.17

The Degree of Murder

Prom what has been said it follows that there was no substantial error in the trial on the issue raised by the plea of not guilty by reason of insanity and that the evidence adequately supports the jury’s verdict. But another and more substantial problem remains to be considered: the contention that the evidence is insufficient to support the trial court’s finding that the murder was of the first, rather than the second, degree. This problem, however, is by no means new to us. In dealing with it we recognize that every relevant and tenable presumption is to be indulged in favor of sus*819taming the judgment of the trial court; but when a proper case appears (Pen. Code, § 1181, subd. 6) we do not hesitate to modify the judgment to murder of the second degree and affirm it as modified.

As hereinabove mentioned, by stipulation of the parties the question of the degree of the crime was submitted to the court on the basis of the evidence introduced at the trial on the plea of not guilty by reason of insanity, as augmented by the report of the probation officer. To confidently resolve the issue it is essential that we identify the elements which (insofar as relevant to the facts of this case) should as a matter of law be given weight as characterizing, distinguishing, or differentiating, the two degrees of murder. In People v. Holt (1944) supra, 25 Cal.2d 59, 83 [9], we said “Murder, and this, of course, includes murder of the second degree as well as murder of the first degree, is defined as ‘the unlawful killing of a human being, with malice aforethought. ’ (Pen. Code, § 187.) . . .

“The legislative definition of the degrees of murder leaves much to the discretion of the jury in many eases. That discretion, however, must have a sound factual basis for its exercise, as hereinafter is more particularly discussed. The Penal Code (section 189) declares that ‘All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. ’

[And on p. 84 [10-11] : “Obviously the homicide in this case was not perpetrated by means of poison, or lying in wait, or torture, nor was it committed in the perpetration of or attempt to perpetrate any of the enumerated felonies. Hence, if it is first degree murder it must come within the classification of ‘any other kind of willful, deliberate, and premeditated killing. ’ But homicide to amount to even second degree murder must be ‘the unlawful killing of a human being, with malice aforethought. ’ The malice which is one of the two essential elements of the offense—whether of the first or of the second degree—is defined by section 188 of the Penal Code. ‘Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when *820the circumstances attending the killing show an abandoned and malignant heart.’ ”

As noted in Holt (p. 86 of 25 Cal.2d) there has sometimes appeared to be a tendency to emasculate the distinction between the two degrees of murder. In Holt we declared firmly against any such emasculation (id. at pp. 89 [12]-90 [14]) : “Regardless of imperfection of academic concept either in the statutory law as enacted or in some of the decisions interpreting it, we are faced with the task of making practical application of that law to actual facts. In such application certain principles are entitled to recognition. Dividing intentional homicides into murder and voluntary manslaughter was a recognition of the infirmity of human nature. Again dividing the offense of murder into two degrees is a further recognition of that infirmity and of difference in the quantum of personal turpitude of the offenders. . . . The victim of manslaughter or second degree murder is just as dead as is the victim of first degree murder. The law has fixed standards by which such personal depravity of the offender-, i.e., the character of the particular homicide, is to he measured. When the homicide is perpetrated by means of poison, or lying in wait, or torture, or in the perpetration of or attempt to perpetrate the enumerated felonies the standard is definite and no difficulty in fixing the degree ensues. But when it is claimed that the homicide is by 'any other kind of willful, deliberate, and premeditated killing’ there is necessity for an appraisal which involves something more than the ascertainment of objective facts. This appraisal is primarily a jury [or trial court] function and within a wide field of discretion its determination is final. But as is true as to all factual issues resolved by a jury [or trial court], the evidence upon which the determination is made is subject to review on the question of its legal sufficiency to support the verdict. To the extent that the character of a particular homicide is established by the facts in evidence the jury is bound, as are we, to apply the standards fixed by law.” (Italics added.)

Holt had been convicted of first degree murder and sentenced to death. After reviewing the governing law as above set forth we scrutinized the evidence and pointed out that, as analyzed, it demonstrated that the defendant at the time of the shooting did not have a premeditated specific intent to kill. Accordingly, we modified the judgment to murder of the second degree and affirmed as modified. In the case at bench there is no question that the defendant had the *821intent to kill; but the mental infirmity of this defendant presents a very serious factual problem as to the quantum of his personal turpitude and depravity as inherently related to the degree of the murder.

Again, in People v. Thomas (1945) 25 Cal.2d 880 [156 P.2d 7], we were required to discuss the import of the language used in Penal Code section 189, and after quoting it, said at pages 899 [14]-900 [15]: “In construing criminal statutes the ejusdem generis rule of construction is applied with stringency. (Matter of La Societe Francaise (1899) 123 Cal. 525, 531 [56 P. 458, 787]; People v. McKean (1925) 76 Cal.App. 114, 121 [243 P. 898].) Hence, the more general words ‘or any other kind of willful, deliberate, and premeditated killing, ’ following the specifically enumerated instances of killing which are expressly declared to constitute murder of the first degree, must be construed in the light of such specifically listed types and be held to include only killings of the same general kind or character as those specifically mentioned. By conjoining the words ‘willful, deliberate, and premeditated, ’ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill. . . .

“. . . Neither the statute nor the court undertakes to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent which is truly deliberate and premeditated. The time would vary with different individuals and under different circumstances. The true test is not the duration of time as much as it is the extent of the reflection.” (Italics added.) In the case now at bench, in the light of defendant’s youth and undisputed mental illness, all as shown under the California M’Naughton rule on the trial of the plea of not guilty by reason of insanity, and properly considered by the trial judge in the proceeding to determine the degree of the offense, the true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act. In Thomas, we found prejudicial error but concluded that (p. 905 [22b] of 25 Cal.2d) “Having examined the record ... we do not feel constrained to hold that the evidence is legally inadequate to support a verdict of murder *822of the first degree. Hence, we are not authorized to reduce the judgment under our view of section 1181, subdivision 6 of the Penal Code.” Accordingly, we reversed the judgment.

In People v. Bender (1945) 27 Cal.2d 164 [163 P.2d 8], we again considered the elements of proof essential to sustain a finding (on the theory of premeditation and deliberation) that a murder was of the first, rather than the second degree. We reiterated that in the circumstances of that case (p. 185 [21] of 27 Cal.2d), “The true test is not the duration of time as much as it is the extent of the reflection.” We held that the evidence was insufficient to sustain a finding of first degree murder, modified the judgment by reducing it to murder of the second degree, and affirmed it as modified.

Certainly in the case now at bench the defendant had ample time for any normal person to maturely and appreciatively reflect upon his contemplated act and to arrive at a cold, deliberated and premeditated conclusion. He did this in a sense—and apparently to the full extent of which he was capable. But, indisputably on the record, this defendant was not and is not a fully normal or mature, mentally well person. He knew the difference between right and wrong; he knew that the intended act was wrong and nevertheless carried it out. But the extent of his understanding, reflection upon it and its consequences, with realization of the enormity of the evil, appears to have been materially—as relevant to appraising the quantum of his moral turpitude and depravity—-vague and detached. We think that our analysis in Holt of the minimum essential elements of first degree murder, especially in respect to the quantum of reflection, comprehension, and turpitude of the offender, fits precisely this case: that the use by the Legislature of “wilful, deliberate, and premeditated” in conjunction indicates its intent to require as an essential element of first degree murder (of that category) substantially more reflection; i.e., more understanding and comprehension of the character of the act than the mer(e amount of thought necessary to form the intention to kill. It bears repeating (People v. Holt (1944) supra, 25 Cal.2d 59, 89 [12]) that “Dividing intentional homicides into murder and voluntary manslaughter was a recognition of the infirmity of human nature. Again dividing the offense of murder into two degrees is a further recognition of that infirmity and of difference in the quantum of personal turpitude of the offenders. The difference is basically in the offenders ...”

*823The foregoing discussion disposes of any basis for urging that defendant’s preparations and procedures might be deemed to constitute a form of “lying in wait” (see People v. Thomas (1953) 41 Cal.2d 470 [261 P.2d 1]) and that therefore he is necessarily guilty of first degree murder. It must be remembered that “lying in wait” is simply evidence which, if unexplained and unqualified by other evidence, would ordinarily establish that the perpetrator was guilty of a “wilful, deliberate, and premeditated killing” (Pen. Code, § 189). But here, as emphasized above, the controlling issue as to degree depends not alone on the character of the killing but also on the quantum of personal turpitude of the actor. And in this case, as in Holt, the difference is basically in the offender.

Upon the facts, upon the law, and for all of the reasons hereinabove stated we are satisfied that the evidence fails to support the finding that the murder by this defendant, in the circumstances of his undisputed mental illness, was of the first degree, but that it amply sustains conviction of second degree murder.

The fact that we reduce the degree of the penal judgment from first to second degree murder is not to be understood as suggesting that this defendant’s confinement should be in an institution maintaining any lower degree of security than for persons convicted of murder of the first degree. To the contrary, we approve of the trial court’s recommendation that defendant be placed in a hospital for the criminally insane of a high security character, such as the California Medical Facility at Vacaville where he is presently confined.

For all of the reasons above stated, the judgment is modified by reducing the degree of the crime to murder of the second degree and, as so modified, is affirmed. The cause is remanded to the trial court with directions to arraign and pronounce judgment on defendant in accordance with the foregoing ruling.

Gibson, C. J., Traynor, J., McComb, J., Peters, J., Tobriner, J., and Peek, J., concurred.