Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. MA043617., Kathleen Blanchard, Judge.
Law Offices of Neil J. Fraser and Neil J. Fraser for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Vincent Joe Esposito (Esposito) appeals from the judgment entered against him based on his no contest plea, and also from the denial of his motion to withdraw the plea. He contends that the judgment and subsequent order must be reversed because he was mentally incompetent at the time of his plea and his conviction violated due process.
We lack jurisdiction to consider Esposito’s attack on the judgment. Thus, his attack on the judgment is moot. As for the order denying his motion to withdraw plea, we find no error and affirm.
FACTS
The no contest plea
Esposito was charged with count 1, oral copulation of a person under 16 years of age (Pen. Code, § 288a, subd. (b)(2)), and count 2, failure to register as a sex offender (§ 290, subd. (b)). On October 15, 2008, he initialed and signed a form entitled “Felony Advisement of Rights, Waiver, and Plea Form, ” was advised of his constitutional rights and waived those rights, and entered a plea of no contest to count 1. He was represented by a public defender standing in for the assigned public defender.
All further statutory references are to the Penal Code unless otherwise indicated.
The following colloquy transpired:
“The Court:... [Y]ou will be entering a plea of guilty or no contest on a violation of section 288a[, subdivision] (b)(2). [¶] Do you understand this charge as well as the consequence of your plea?”
“[Esposito]: Yes. [¶]... [¶]
“The Court: Very good. [¶] Do the People have any special things to add to this? I note there is a waiver form.
“[The prosecutor]: Well, he does have to register. [¶]... [¶]
“[Public defender]: That’s included in the waiver form. [¶]... [¶]
“[The prosecutor]: At this time I’m going to advise you of your constitutional rights.... [¶] First of all, you have the right to a preliminary hearing. That means the court would hear the evidence presented against you and determine whether there is enough cause to hold you over for trial in superior court. [¶] Do you understand your right to a preliminary hearing?
“[Esposito]: Yes.
“[The prosecutor]: Do you waive and give up your right to a preliminary hearing?
“[Esposito]: Yes.
“[The prosecutor]: If you are held to answer at the preliminary hearing, you would have the right to a trial. In California, there are two types of trial. The first is a court trial, which mean[s] the judge would hear the evidence against you. The second type is a jury trial, which means 12 members of the community would hear the evidence against you. [¶] Do you understand your right to trial by court or jury?
“[Esposito]: Yes, I do.
“[The prosecutor]: Do you waive and give up the right to a trial by court or jury?
“[Esposito]: Yes, I do.
“[The prosecutor]: At your preliminary hearing and at your trial, you would have the right to confront and cross-examine the witnesses that would testify against you. You would have the right through your attorney to subpoena into court witnesses to testify on your behalf at no cost to you in order to present a defense. [¶] Do you understand these rights?
“[Esposito]: Yes.
“[The prosecutor]: Do you waive and give up these rights?
“[Esposito]: Yes, I do.
“[The prosecutor]: Finally, you have the right and privilege against self-incrimination, which means you can remain silent. By pleading guilty or no contest today, you will be incriminating yourself. [¶] Do you understand this right and privilege?
“[Esposito]: I do.
“[The prosecutor]: Do you waive and give up this right and privilege?
“[Esposito]: Yes.
[The prosecutor]: Now, the charge you are pleading to, which is Penal Code section 288[a, subdivision] (b)(2), carries a maximum sentence of three years in state prison. At this time, the People are offering the mid-term, which is two years in state prison. [¶] Is that your understanding?
“[Esposito]: Yes, it is.
“[The prosecutor]: Now, if you are already on probation or parole in any other case, your plea today may be a violation of that probation or parole and could result in additional time in custody. [¶] Do you understand?
“[Esposito]: Yes, I do. [¶]... [¶]
“[The prosecutor]: If you are not a citizen of the United States, your plea today will result in your deportation, denial of citizenship or naturalization or reentry into the country. [¶] Do you understand?
“[Esposito]: Yes, I do.
“[The prosecutor]: Also, you will need to know that you will have to register as a sex offender with your local police agency. This is a lifetime requirement. Failure to do so is a crime and could result in additional time in custody, and it would be a violation of any probation or parole that you may have. [¶] Do you understand?
“[Esposito]: Yes, I do.
“[The prosecutor]: Are you pleading guilty or no contest today freely and voluntarily because that is what you wish to do?
“[Esposito]: Yes. [¶]... [¶]
“[The prosecutor]:... [¶] At this time I will take your plea. [¶] In case number MA043617 where you have been charged with count 1, violation of [section 288a, subdivision (b)(2)], also known as oral copulation of a person under the age of 16 years on or about the date of September 30, 2008, in the County of Los Angeles, how do you plead to that charge?
“[Esposito]: Guilty. [¶] No contest.
“[The prosecutor]: Do you understand the Court will accept a no contest plea the same as a guilty plea?
“[Esposito]: Yes.”
Esposito’s counsel joined in the waiver, concurred in the plea and stipulated to a factual basis. The trial court accepted Esposito’s plea of no contest, found him guilty and found a factual basis for the plea. The plea form was filed with the trial court. Last, the trial court ordered a probation and sentencing report.
Sentencing; judgment
The probation and sentencing report indicated that Esposito was a paranoid schizophrenic who had not been receiving his antipsychotic medication while he was in custody.
On November 4, 2008, the parties appeared for sentencing. The trial court asked if Esposito understood that he pled no contest to count 1 and was getting two years in state prison. Esposito said he understood. He was sentenced to two years in state prison. The trial court informed him that he would be required to register as a sex offender for life, and he was subject to mandatory AIDS and DNA testing.
The abstract of judgment was filed on November 10, 2008.
The motion to withdraw plea
On July 9, 2009, Esposito filed a motion to withdraw plea on the ground that the judgment violated his right to due process. He asserted that he was a diagnosed paranoid schizophrenic and was not given medication while in custody. Also, he claimed that he did not understand the proceedings on October 15, 2008. He submitted a declaration stating that while he was in custody awaiting trial he did not receive his medication on a regular basis; he became disoriented and confused; at the time of entering his plea, he did not understand what his attorney was saying other than that he should admit the charge. Esposito also stated: “I do not recall being told that admitting this charge would result in my deportation. However, if I was told that, I certainly did not understand the significance of what I was being told because I would never have agreed to plead guilty.”
Esposito’s treating doctor, Doctor Salvador A. Arella, also submitted a declaration, stating that Esposito has been under his care since 1999 for treatment and regulation of paranoid schizophrenia. The only way to treat his illness is by daily dosage of prescribed antipsychotic medication. The failure to comply with his daily medication regimen leads to schizophrenic behavior characterized by an inability to think rationally, the inability to make rational decisions, confusion, disconnection and delusions. The loss of the ability to think clearly and rationally is “usually immediate upon missing the daily medication dosages.” After reviewing the medical records from the jail, Dr. Arella understood that Esposito did not receive any antipsychotic medication from October 1, 2008, until October 16, 2008.
Next, Dr. Arella declared: “[I]t is my understanding that [Esposito] pled no contest to the charges against him on October 15, 2008. It is my professional opinion that [Esposito] would not have been able to competently understand the nature of the proceedings in court on that date without his medications and would have been unable to make rational and competent decisions or competently assent to any actions that may have been advised by his attorney. Simply put, any decision made by [Esposito] that day could not have been made freely and voluntarily because of his mental condition. Without his medication for a period of fifteen days prior thereto, he would have been in a severely psychotic, confused and delusional state.”
In the exhibits to his motion, Esposito provided an arrestee screening form indicating that he suffered a face injury prior to arrest and that he has bipolar disease and schizophrenia. Next, he provided a document entitled “Inmate Medical Documentation.” It revealed that on October 1, 2008, he informed medical personnel at the jail that he was taking Prolixin 5mg and Klonopin 1mg for bipolar disease and schizophrenia and Artane for neuroses. They also revealed that Esposito had been diagnosed with bipolar disorder and schizophrenia.
Prolixin is a brand name for fluphenzine, which is an antipsychotic drug used to treat schizophrenia. ( [as of Oct. 27, 2010].)
Klonopin is a benzodiazepine and is used for panic disorders. ( [as of Oct. 27, 2010].)
Artane, otherwise known as trihexyphenidyl, is a drug used to treat Parkinson’s disease. ( [as of Oct. 27, 2010].)
Esposito provided a document entitled “Scheduled Meds” that he subpoenaed from the Los Angeles County Sheriff’s Department. The first page was missing. Pages 2 to 6 recorded that Esposito was given a drug called buspirone 10 mg starting October 16, 2008. Pages 6 through 11 recorded that he was given fluphenzine 5 mg for the first time on October 16, 2008. Finally, pages 13 through 18 recorded that the first time he was given trihexyphenidyl 2 mg was also on October 16, 2008. Pages 18 through 25 recorded that Esposito was given acetominophen and ibuprofen for pain starting on October 5, 2008, 11 days before the other medications were dispensed. All of these medications were discontinued by December 11, 2008.
Buspirone is used to treat anxiety. ( [as of Oct. 27, 2010].)
The motion included clinical progress notes indicating that on October 2, 2008, Esposito’s brother called the jail to inform the jail’s medical personnel that Esposito takes three kinds of medication and they need to be given three times a day. Esposito was subsequently placed “on Psych line... for follow up evaluation.” The October 10, 2008, entry quotes Esposito as stating: “I have anxiety attack[s], and I am taking psych medication. I take Prolixin 5mg, Artane 2mg and [K]lonopin 1mg, I need my medication.” It was noted that he was at risk “for altered thought process.” By October 27, 2008, he was still awaiting psychiatric evaluation.
Yet another exhibit to the motion set forth “existing orders.” For October 2, 2008, the document identified the “Procedure” as ibuprofen and acetominophen with codeine. On October 16, 2008, the procedure included Prolixin, Artane and buspirone. The entry for October 9, 2008, states: “Routine, Needs Psych meds, Per family, he takes Artane 2mg, Fluphenazine 5 mg.” Then there are entries as follows: “5MG, PO, TAB, .TID, Routine, 10/16, 08 12:00:00, 90 DAYS, 01/14/09 11:59:00”; “2MG, PO, TAB, .TID, Routine, 10/16, 08 12:00:00, 90 DAYS, 01/14/09 11:59:00”; “10MG, PO, TAB, .TID, Routine, 10/16, 08 12:00:00, 90 DAYS, 01/14/09 11:59:00.” The entry for October 27, 2008, states: “Routine, Can’t sleep. Wants meds, Pt states he was on Klonopin. Can’t sleep.”
The inference is that these entries correspond to fluphenazine 5 mg, trihexyphenidy 2mg and buspirone 10mg.
When the parties appeared for argument, the trial court indicated its intent to deny the motion. Esposito’s attorney argued that Esposito was not able to make rational decisions on the day of the plea because it was “without any question that he was not receiving his anti-psychotic medications.” The trial court replied: “I don’t know if I agree with that, counsel. I have to tell you, I’m a little bit concerned by the fact that in Exhibit A where it lists the medications given to him on... at least twice, often three or four times a day by the Sheriff’s Department, I’m quite concerned that this page that starts with the medication that he received on October 16th. If you look at the bottom where it has the state health number and his date of birth, we begin on page two.” The trial court asked: “Where’s page one?”
After counsel argued that he had been given the records by the Medical Services Bureau as complete records, he pointed out that the medical services documentation and clinical progress notes back up the assertion that Esposito did not receive medication prior to his plea.
The trial court stated: “And, again, I note that... I think it’s interesting that we start on page two. But I think that the strongest evidence that I see in this case is that [Esposito] was represented by very competent attorneys both at the taking of the plea and at the sentencing. [Esposito] executed written waiver forms in which he initiated every paragraph including all of the consequences of his plea, all of his rights. He engaged in a colloquy with the court during the taking of the plea and at sentencing in which he was completely responsive. There’s no indication whatsoever from him or his attorney that there’s any doubt as to his competency or his ability to understand what’s going on around him. It seems clear to me from the colloquy that he’s very [cognizant] of everything that goes on around him.
“I believe that this is a case of buyer’s remorse where now he’s going back and asking to withdraw the plea.... But I do not think that the exhibits at this point cause me any doubt as to his competency nor the competency of his attorneys at the time.... I would assume, because the attorneys at the time had conversations with him, if there were any doubt at all about his mental condition at the time, they would have brought it to the court’s attention.... So there’s nothing on its face at all that causes me any concern whatsoever about this plea insofar as-let me do some math here-nine months later this motion is brought on the declaration of [Esposito] and of a physician. It’s just insufficient. And, at this point, I’m going to respectfully deny your motion to withdraw the guilty plea.” Later, the trial court added: “What we have here is a plea that was entered through written waiver forms, through colloquy with the court, and I think it is quite clear to me from the face of all of those documents that [Esposito] understood exactly what was going on. He was advised of the consequences of his plea and that he knowingly and intelligently entered into it. Whether or not he was receiving the medication at the time doesn’t change my view of the voluntariness of the plea.”
The trial court issued a certificate of probable cause for the appeal pursuant to section 1237.5.
DISCUSSION
I. Appellate jurisdiction.
The People argue that we lack jurisdiction to consider an appeal from the judgment or an appeal from the denial of Esposito’s motion to withdraw plea. Esposito contends otherwise.
We turn to these issues below.
A. Appeal from the judgment.
No appeal can be take from a judgment of conviction based on a no contest plea except where: (1) the defendant files a written statement with the trial court showing reasonable grounds undermining the legality of the plea proceeding; and (2) the trial court executes and files a certificate of probable cause for the appeal. (§ 1237.5). California Rules of Court, rule 8.308(a) provides: “Except as... otherwise provided by law, notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” Judgment was entered against Esposito on November 10, 2008. He obtained his certificate more than 60 days later on August 13, 2009, and only then filed his notice of appeal. He stated that he was appealing from the order denying his motion to withdraw plea entered on July 31, 2009. Nonetheless, in his appellate briefs, he purports to attack the judgment. Even if we construed his notice of appeal as an appeal from the judgment, this portion of Esposito’s appeal is barred unless he can establish an exception to the rule.
The notice of appeal stated that Esposito “appeals from the order... entered on July 31, 2009”; “[t]his appeal follows [¶]... [¶] [a] guilty (or no-contest) plea...: [¶]... [t]his appeal is based on the sentence or other matters occurring after the plea.... [¶]... [¶]... [t]his appeal challenges the validity of the plea or admission.”
According to Esposito, his appeal falls within judicially recognized exceptions and is therefore permissible.
He first contends that “the grant of the certificate by the lower court herein is indicative of... recognition on [its] part of reviewable issues inherent in [Esposito’s] submission.” In other words, he implies that if a lower court recognizes a reviewable issue, then jurisdiction is conferred upon the Court of Appeal. But he failed to cite any authority for his contention and the issue is therefore waived. (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1326.) More importantly, it has been held that the “question whether a notice of appeal has been filed in a timely manner presents a jurisdictional issue. Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdictional to determine the merits and must dismiss the appeal. [Citations.]” (In re Jordan (1992) 4 Cal.4th 116, 121.)
Transitioning, Esposito suggests that the judgment against him is void and therefore he can appeal at any time. For authority, he cites People v Thomas (1959) 52 Cal.2d 521 (Thomas). After reading Thomas, we conclude that it is inapposite. It noted that “[o]rdinarily no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment. [Citations.]” (Id. at p. 527.) But there is a limited exception when the motion to vacate challenges the trial court’s jurisdiction and claims that the judgment was void. (Id. at p. 529.) Thomas in no way supports Esposito’s claim that he has a right to appeal from the judgment long after the time to file his appeal expired.
Esposito’s companion argument is constitutional. To build his argument, he reminds us that “the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” (Drope v. Missouri (1975) 420 U.S. 162, 172.) His second building block is People v. Anderson (1987) 43 Cal.3d 1104, 1139, a case that reiterated the rule that ambiguous penal statutes “should be interpreted in favor of the defendant and the rule that statutes should be construed to avoid serious constitutional questions.” With his foundation thus constructed, he argues that section 1237.5-and California Rules of Court, rule 8.308(a) by extension-should be interpreted to permit his appeal in order to avoid a due process violation. His argument, though, is built on a faulty premise, namely that the procedure of allowing a defendant 60 days to appeal is ambiguous and, further, that it is inadequate to protect his rights. In our view, there is nothing ambiguous about the procedure, and his rights were protected because he had adequate time to file an appeal.
Last, Esposito points out that California Rules of Court, rule 8.308(a) permits an appeal as otherwise provided by law. He argues that this is such a case. He cites Thomas, a case which has no application, and Henderson v. Morgan (1976) 426 U.S. 637 (Henderson). But all Henderson stated was that a plea cannot support a judgment “unless it was voluntary in a constitutional sense.” (Id. at pp. 644–645.) The court did not weigh in on the issue of whether a criminal defendant in California may challenge a judgment based on a no contest plea more than 60 days after the judgment was entered. Thus, Henderson offers Esposito no aid.
B. Appeal from the denial of Esposito’s motion.
Whether we may entertain Esposito’s motion is complicated by section 1018. That statute provides: “On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” Esposito’s motion was made after judgment and judgment was not suspended. He spent time in prison. Recognizing that Esposito’s motion was not authorized by section 1018, the trial court treated the motion as a petition for writ of error coram nobis. The trial court’s decision comports with the law. (People v. Grgurevich (1957) 153 Cal.App.2d 806, 810 [when a motion to withdraw plea is permitted after judgment, “it amounts to a motion to vacate the judgment with leave to change the plea... [and] is the equivalent of an application for a writ of error coram nobis”].)
“[T]he cases where the writ has issued or equivalent relief has been afforded are those where the defendant was insane at the time of trial and this fact was unknown to court and counsel; where the defendant was an infant and appeared by an attorney without the appointment of a guardian ad litem;... where the defendant was a slave and was tried and sentenced as a free man; where the defendant was dead at the time judgment was rendered; where default was entered against a defendant who had not been served with summons and who had no notice of the proceeding; where counsel inadvertently entered an unauthorized appearance in behalf of a defendant who had not been served with process; where a plea of guilty was extorted through fear of mob violence; where defendants and their counsel were induced by false representations to remain away from the trial under circumstances amounting to extrinsic fraud; and where by the failure of the clerk to properly file an answer the party was deprived of his defense.” (Mendez v. Superior Court (2001) 87 Cal.App.4th 791, 798, fn. 2.)
A ruling on a petition for writ of coram nobis is appealable. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172 (Gutierrez) [“A motion to vacate the judgment is the equivalent of a petition for writ of error coram nobis... [and] is an appealable order”].) Nonetheless, the People argue that the trial court’s ruling is not appealable, citing People v. Chew (1971) 16 Cal.App.3d 254 (Chew) and People v. Gallardo (2000) 77 Cal.App.4th 971, 981 (Gallardo). But Chew merely holds that a defendant may not avoid the requirements of section 1237.5 by disguising a motion to withdraw a plea as a petition for writ of error coram nobis. (Chew, supra, 16 Cal.App.3d at pp. 257–258.) Here, Esposito complied with section 1237.5. Gallardo stated that a “ruling denying a motion to vacate judgment would qualify semantically as an order after judgment affecting substantial rights, but such an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself. [Citation.]” (Gallardo, supra, 77 Cal.App.4th at pp. 980–981.) Ostensibly, this rule could derail Esposito’s appeal. Gallardo, however, recognizes an exception when the record on appeal would not have shown the error. (Id. at p. 981.) That exception applies here because Esposito’s motion contained declaration evidence regarding his sanity at the time he entered his plea and that evidence would not have been present in an appeal from the judgment.
We conclude that the denial of Esposito’s motion is appealable as though it were the denial of a petition for writ of error coram nobis.
II. The merits of the motion.
We, like the trial court, view Esposito’s motion as the equivalent of a petition for writ of error coram nobis. As we discuss below, Esposito failed to satisfy the elements for relief.
A. The law; standard of review.
Though the parties offer some peripheral discussion of the law governing a petition for writ of error coram nobis, and Esposito acknowledges that the trial court viewed his motion as the equivalent of a petition for writ of error coram nobis, neither party discusses the doctrine in detail. We therefore opt to take a deeper look at the law.
A writ of error coram nobis “is a nonstatutory, common law remedy whose origins trace back to an era in England in which appeals and new trial motions were unknown.... [Citation.]... The grounds on which a litigant may obtain relief via a writ of error coram nobis are narrower than on habeas corpus [citation]; the writ’s purpose ‘is to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court’ [citation].” (People v. Kim (2009) 45 Cal.4th 1078, 1091, fn. omitted (Kim).)
People v. Shipman (1965) 62 Cal.2d 226 (Shipman) is the seminal case for the modern application of a writ of error coram nobis. Moreover, it is analogous to the case at bar. In Shipman, the defendant was charged with assaulting peace officers with a deadly weapon. Upon a guilty plea, judgment was entered on March 9, 1962. He did not appeal. In January 1963, he filed a petition for writ of error coram nobis and alleged that he was insane when he committed the offenses and at the time he pleaded guilty. (Id. at p. 229.) Our Supreme Court explained that a “writ of [error] coram nobis is granted only when three requirements are met. (1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.’ [Citations.] (2) Petitioner must also show that the ‘newly discovered evidence... [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ....’” (Id. at p. 230.) The court concluded that the defendant’s “allegations, if true, would meet the requirements for a writ of [error] coram nobis. His legal sanity at the time of the crime is a material question that was neither put in issue nor tried. [Citations.]” (Id. at p. 233.)
The Kim court confirmed that the “factors set forth in Shipman continue to outline the modern limits of the writ. [Citation.]” (Kim, supra, 45 Cal.4th at p. 1093.) Further, “a nonstatutory motion to vacate has long been held to be the legal equivalent of a petition for a writ of error coram nobis [citations].” (Id. at p. 1096; Shipman, supra, 62 Cal.2d at p. 229, fn. 2.)
The denial of a writ of error coram nobis, like the denial of a motion to withdraw plea, is reviewed for an abuse of discretion. (People v. Ibanez (1999) 76 Cal.App.4th 537, 544; People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A trial court’s finding that a plea was knowing, intelligent and voluntary, however, is reviewed under the substantial evidence test. (Ibid.) Under the substantial evidence test, we resolve all conflicts in the evidence and draw all reasonable inferences in a manner that upholds the challenged order. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) Substantial evidence is evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.” (Ibid.)
B. Existence of a fact that would have prevented judgment.
The parties agree that if Esposito was mentally incompetent when he entered his plea, judgment was improper. (People v. Laudermilk (1967) 67 Cal.2d 272, 282 [“‘conviction of an accused person while he is legally incompetent violates due process’”]; § 1367, subd. (a) [“A person cannot be tried or adjudged to punishment while that person is mentally incompetent”].) The People and Esposito, however, disagree as to whether he was competent on October 15, 2008, when he entered his plea.
A defendant is incompetent to stand trial or enter a plea if he lacks a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and lacks a rational as well as a factual understanding of the proceedings against him. (People v. Rogers (2006) 39 Cal.4th 826, 846–847; People v. Hofferber (1977) 70 Cal.App.3d 265, 269.)
The trial court found that even if Esposito did not receive his medication while in custody, he was mentally competent when he entered his plea. While in custody, Esposito complained that he needed his medication due to anxiety and inability to sleep. There is no record, however, that he complained that he was suffering mental health problems. Indeed, the reporter’s transcript from October 15, 2008, paints a picture of a defendant who was aware of his rights and who, understanding the consequences, entered a no contest plea. Also, he was medicated with buspirone, fluphenzine (the equivalent of Prolixin) and trihexyphenidyl (the equivalent of Artane) on the date of sentencing and does not argue that he was then insane. He stated that he understood that he had previously entered a plea and would be sentenced to two years in prison. Though he had the opportunity at the sentencing, he did not claim that he entered the plea without understanding it or the circumstances. In our view, substantial evidence supported the finding of mental competence.
It is suggested that Dr. Arella’s expert opinion dictated that the trial court find that Esposito was mentally incompetent. But the cases cited by Esposito are inapposite because they arise in the context of the preliminary showing of insanity needed to trigger a hearing to determine whether a defendant is presently competent to stand trial. (See U.S. v. Christensen (9th Cir. 1994) 18 F.3d 822; People v. Ary (2004) 118 Cal.App.4th 1016; People v. Penningston (1967) 66 Cal.2d 508; and People v. Stankewitz (1982) 32 Cal.3d 80.) As the ultimate trier of fact, the trial court was permitted to determine whether Esposito was competent at the time he entered the plea. (See Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360 [a judge ruling on a posttrial motion such as a motion to enforce a settlement acts as the trier of fact].) Moreover, Esposito does not explain why the trial court’s observation of and colloquy with him during the taking of the plea were insufficient to support the ruling.
Based on the trial court’s finding that Esposito was legally competent to enter a plea, there was no abuse of discretion.
C. Due diligence.
The trial court did not reach the issue of due diligence, nor did the parties discuss this issue below or in their appellate briefs. Though moot, we nonetheless point out that Esposito’s declaration provided no explanation for why it took him nine months to file his motion.
DISPOSITION
The order is affirmed.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.