Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C155529
Richman, J.
Defendant Carlos Caicedo entered pleas of not guilty and not guilty by reason of insanity to charges of murder and attempted murder. At the conclusion of the guilt phase of the trial, the jury found him guilty of the 2004 first degree murder of Charleston William Roberts, and of the attempted deliberate premeditated murder, also in 2004, of Gary Jones. The jury also found true enhancement allegations that defendant had personally used a firearm and committed great bodily injury or death during the commission of each of the offenses (Pen. Code, §§ 187, 664, 12022.53, subd. (d) ). As the sanity phase was about to commence, defendant’s counsel withdrew the plea of not guilty by reason of insanity. Defendant was sentenced to state prison for a total term of 50 years to life.
Statutory references are to the Penal Code.
Defendant’s sole contention on this timely appeal is that the trial court erred in granting the motion to withdraw his not guilty by reason of insanity, because it was made by counsel alone, and was not accompanied by an examination by the trial court to satisfy itself that defendant concurred in the withdrawal of the plea and understood the consequences of doing so. We conclude there was no error and affirm.
BACKGROUND
The limited nature of defendant’s sole claim of error does not require summarization of the evidence heard by the jury in the guilt phase of the trial. All we need recount here is the circumstances in which the not guilty by reason insanity plea was withdrawn.
Defendant entered his plea of not guilty on May 30, 2007, and his plea of not guilty by reason of insanity on June 20, 2007. As required by section 1027, the court appointed a psychiatrist and a psychologist to examine defendant to determine whether he was sane. On July 16, 2007, the trial court suspended criminal proceedings in accordance with section 1368 for evaluation—by a different psychologist—as to whether defendant was competent to stand trial. After the evaluation was completed, on September 25, 2007, defendant was found competent to stand trial. The psychiatrist Dr. Fort and the psychologist Dr. Shields subsequently reported to the court that defendant was sane.
As best we can gather from a report of this psychologist, Dr. Hoey, defendant was previously examined in 2005 and 2006 to determine if he was competent to stand trial. The report also indicates that defendant spent almost a year in 2005-2006 at Napa State Hospital.
The following occurred on December 11, 2007, the day after the jury had returned its verdicts in the guilt phase of the trial:
“THE COURT: This is the matter of Mr. Caicedo. We are outside the presence of the jury. [¶] State appearances for the record, please.
“MS. FARRELL: Sabrina Farrell for the People.
“MR. KEEP: William Keep on behalf of Mr. Caicedo. [¶] I mentioned to the court that Mr. Caicedo in talking to him this morning indicated that he felt he was incompetent to proceed further with regards to this case. [¶] Mr. Caicedo, would you like to address the court as to why you think you’re incompetent?
“THE DEFENDANT: I can’t remember any of my competency stuff, and voices have been making me to believe stuff.
“THE COURT: Let’s address both of those. You said you can’t remember any of your competency stuff. What competency stuff are you referring to?
“THE DEFENDANT: Stuff I was supposed to have learned at Napa to become competent, I can’t remember any of that stuff.
“THE COURT: Let me ask you—then the second aspect of this?.
“THE DEFENDANT: Voices have been making me believe stuff out of the ordinary like people can read my mind and stuff.
“THE COURT: What are they telling you?
“THE DEFENDANT: People can read my mind.
“THE COURT: You said that at the very outset of this trial, as I recall.
One the first day of trial, the court had denied defendant’s apparent request to dispense with Mr. Keep because, as defendant told the court, “I been hearing voices. Him [Mr. Keep] and everybody else knows what I’m thinking and he is out to kill my family. I can’t understand him defending me and I can’t understand how I can help him defend me.”
“THE DEFENDANT: You didn’t do anything about that.
“THE COURT: No, Sir, because I, number 1, do not believe that there are voices—that anybody can read your mind and, secondly, I am not convinced that you actually believe that, Sir.
“Let me ask you some questions here. You understand that yesterday you were sitting right here and the jury found you guilty of first degree murder.
“THE DEFENDANT: I don’t understand any of that stuff.
“THE COURT: Mr. Caicedo, you were sitting here and the jury came back with a verdict and you were sitting here, and I was watching you, Sir, and you were listening when the jury came back with their verdict.
“THE DEFENDANT: You’re not meaning to say when I was listening or when I heard something?
“THE COURT: You were sitting there, the jury came back with a verdict. You were sitting there at the time they came back with the verdict. Is it your contention you did not hear the verdict?
“THE DEFENDANT: I believe I heard some stuff they said yesterday but I’m not familiar with anything that it means, and I’m just wondering how can you determine what I believe in?
“THE COURT: I’m not saying I determined what you believe in, Sir.
“THE DEFENDANT: You’re saying you don’t believe what you believe.
“THE COURT: I did not believe that you genuinely think that People can read your mind. I do not believe that.
“THE DEFENDANT: I do not believe that.
“THE COURT: Because, Sir, I’ve been observing you for the last two to three weeks and I have noted that you have been talking to counsel, you have been cooperative.
“THE DEFENDANT: You need for me to show aggression in order to believe me?
“THE COURT: No, Sir, in fact quite the opposite. Quite the opposite. I have to make the determination as to whether or not you are competent to proceed. And at the present time, the two things that I am looking at are do you understand the nature of the proceedings and are you able to cooperate with counsel. Up until yesterday, when you displayed absolutely no signs of incompetence at all, I have been watching you for approximately three and a half to four weeks and all through this trial you have displayed nothing but ability to understand the proceeding and ability to cooperate with counsel.
“THE DEFENDANT: I haven’t been understanding anything.
“THE COURT: I find it highly suspicious that when you are suddenly found guilty of first degree murder that you are alleging that all these things have occurred in your brain.
“THE DEFENDANT: I alleged my incompetency about a year ago about this time and nothing was done about it. People were saying I was competent. I don’t understand how you can make that determination when you’re not me, you’re not going through the things I’m going through. I’m incompetent. That’s what I’m telling you and you don’t believe it.
“THE COURT: Mr. Caicedo, the mere fact that we’re having this conversation in a dialogue in which I am able to communicate to you and you are able to communicate to me tells me and further fortifies my position that I believe that you are competent.
“THE DEFENDANT: I don’t understand what you talking about. You saying you believe I am competent. How could you do that when you’re not me. You don’t know what I believe.
“THE COURT: Mr. Caicedo, you and I are talking. I have had 25 years of experience on the bench. I have dealt with numerous people who have been found not competent. In my opinion, at the present time, I do not harbor a doubt as to your competence no matter how much you tell me that you believe
“THE DEFENDANT: So in other words, you’re not going to believe what I’m telling you.
“THE COURT: I’m not believing that.
“THE DEFENDANT: Regardless of what voices I’m hearing, regardless of what I believe you think I’m competent. Can I waive time?
“THE COURT: We are in the process of having the portion of your trial concerning whether or not you were insane at the commission of this crime
“THE DEFENDANT: Being that I’m incompetent I can’t move forward defending myself.
“THE COURT: Mr. Keep has already indicated to me that we were ready to go [this] morning. I have made the determination that you are competent to proceed. It was my understanding that you were potentially going to be testifying as to your state of mind at the time of the offense that was committed of which you have been convicted. You at this time suddenly are telling me that you are not competent. I do not believe that. We are not going to continue this matter. We have a jury sitting upstairs.
“THE DEFENDANT: Can I waive time?
“THE COURT: You can waive time all you want but that’s not going to continue the trial.
“THE DEFENDANT: That’s not going to what? I’d like to waive time.
“THE COURT: Time is waived. However, we are going to be proceeding.
“THE DEFENDANT: How do I waive time?
“THE COURT: Sir, you just waived time. Waiving time does not continue the trial. Are you asking for a continuance of the trial? Is that what you are asking for?
“THE DEFENDANT: I’m asking can I waive time.
“THE COURT: I have granted that motion. You have now waived time. Now we will proceed with the trial.
“THE DEFENDANT: Waiving time means putting things off for a minute.
“THE COURT: No, sir, that’s moving for a continuance. Are you asking to continue this.
“THE DEFENDANT: What do I need to ask in order to put things off for a minute?
“THE COURT: You are asking for a continuance. I’m denying that. We have the jury sitting here
“THE DEFENDANT: Can I talk to somebody—is there a task force for you or something some.
“THE COURT: I’m sorry, is there a task force
“THE DEFENDANT: I heard of something called the Black Race Task Force. A task force for the courtroom when the judge is not doing her job or something like that.
“THE COURT: I know nothing of that, Sir.
“THE DEFENDANT: I know from what I know when I say I’m incompetent you have to order a hearing on that or demand a jury trial on that.
“THE COURT: Only if I harbor a doubt or your counsel harbors a doubt as to your competence. I do not harbor that doubt. I have observed you for the past three weeks or so. I never harbored a doubt as to your competence. Just because you are now claiming that you are not competent doesn’t mean that I have to order a hearing to that effect. It is solely within my discretion and I choose not to exercise that discretion in light of the fact I am persuaded beyond a reasonable doubt that you are competent.
“THE DEFENDANT: I can’t move forward with the proceedings, and you go ahead and do what you’re going to do.
“THE COURT: Mr. Keep, you probably want to speak to your client for a few more minutes and then we’ll call the jury down.
“(Recess taken.)
“MR. KEEP: Your Honor, I’ve had a chance to talk to Mr. Caicedo with regards to proceeding further. I have indicated to him previously that the only witness we have with regards to the insanity plea was himself and he indicates to me that he will not testify. Therefore, I feel motivated to withdraw the not-guilty-by-reason-of-insanity plea.
“THE COURT: Mr. Caicedo, you have heard the statement of your counsel. Is it your position, Sir, that you will be refusing to testify concerning the sanity phase of your trial?
“THE DEFENDANT: I don’t understand.
“THE COURT: We are at the sanity phase of your trial, Sir. Your attorney has told me that you are refusing to testify. Is that correct?
“THE DEFENDANT: I don’t understand.
“THE COURT: I think you do understand.
‘THE DEFENDANT: I think I don’t understand.
“THE COURT: Mr. Caicedo, I think you are malingering and
“THE DEFENDANT: That’s your thought. You not me. You don’t live in this body to know what I’m doing in this body. You make your decision. Go ahead. I don’t understand.
“THE COURT: Mr. Caicedo, given your reluctance to answer a simple question, and I do not believe that you are genuinely not understanding my question
“THE DEFENDANT: I just told you I’m not understanding.
“THE COURT: I will take your counsel’s representation that you are not intending to testify. [¶] Mr. Keep, this is after full discussion with your client?
“MR. KEEP: Yes.
“THE COURT: You have apprised your client, I take it, that it is his testimony under which you had planned to proceed on the issue of his sanity, correct?
“MR. KEEP: Correct. I explained to him the results of the two doctors’ examinations and that they were not favorable with regards to that issue, and with the only witness I could see calling was himself, we discussed a little bit about whether or not we should call his mother and I believe we had reached the decision that we would not call his mother.
“THE COURT: For the record, then, I would like to lodge as court exhibits both reports of Dr. Fort and Dr. Shields so that the record is complete. These reports have come in from these two doctors and have been provided to both counsel, and, Mr. Keep, you have read through both reports and you’ve shared their conclusions with Mr. Caicedo, correct?
“MR. KEEP: Yes.
“THE COURT: Just for the record, I would like to read into the record Dr. Shields’s assessment. The summary by Dr. Shields was quote it is this evaluator’s opinion that the defendant has not demonstrated that he lacked knowing or understanding of the nature or quality of his behavior or that he lacked understanding of its wrongfulness due to a genuine mental disorder. In other words, Dr. Shields, in a lengthy and 16-page report which will be made part of the record,... found that you were sane at the commission of the offense, Mr. Caicedo, and in fact has given a strong suggestion that your contention that you were insane is due to malingering.
“I need Dr. Fort’s report also. Do we have that? Dr. Fort’s report reads as follows: This is just merely the summary. ‘As directed by the court order re Penal Code section 1027 and in accordance with my decades of experience I am focusing on his mental state at the precise time of the offenses, I find that he was sane at that time and that his actions then and in the period preceding and following show that he was aware of their nature and quality and knew that they were wrong.’
“Both of these reports now are being made part of the record.
“You are granted permission to withdraw the not-guilty-by-reason-of-insanity pleas, and the conviction stands then as first degree murder as to Count 1 with the relevant use clauses and willful, deliberate and premeditated attempted murder as to Count 2 with the appropriate use clauses.
“I think what I will do at this time—given this I will at this time refer your client, Mr. Keep, to probation for report and sentence.
“MR. KEEP: Correct.
“THE COURT: Mr. Caicedo indicated he wanted to waive time, but I am not sure that he intended that to be a time waiver for purpose of sentencing.
“MR. KEEP: From what he said I don’t think so. I think the 20 days or whatever—is that 20 court days?
“THE COURT: Today is the 11th? We’ll put this over then for report and sentence in this department—I believe January 8th would work. Is that agreeable to you?
“MR. KEEP: Yes.
“THE COURT: Mr. Caicedo, you’ve been convicted of first degree murder as well as attempted first degree murder, you are referred to the Probation Department for report and sentence in this department on January 8th at 9:00[a.m.]. [¶] After Mr. Caicedo is taken upstairs I would like to bring the jury down and call off the jury.
“THE DEFENDANT: I want to waive time for sentencing.
“THE COURT: Mr. Keep, does your client wish to waive time for sentencing?
“MR. KEEP: That’s what he said.
“THE COURT: The 8th is still fine for me.
“MR. KEEP: It’s fine for me too.
“THE COURT: Does your client wish to put it over past the 8th? I don’t know.
“THE DEFENDANT: Yeah.
“MR. KEEP: How far over do you want to put it?
“THE DEFENDANT: The 20th.
“THE COURT: Mr. Caicedo, you have the right to be sentenced within 20 court days. Do you give up that right? That’s called waiving time.
“THE DEFENDANT: I can’t do the math how many days it is from now, but I would like to be sentenced around the 20th of January.
“THE COURT: That means you would be going beyond the 20 days. Is that agreeable to you?
“THE DEFENDANT: Yeah.
“THE COURT: So you did understand that. I’ll put this over then—you want it after the 20th, right?
“THE DEFENDANT: Yeah.
“THE COURT: 23rd of January at 9:00 [am.] in this department. Is that agreeable to both counsel?
“MS. FARRELL: Yes.
“MR. KEEP: Yes.”
DISCUSSION
Section 1016 sets out the six kinds of pleas that may be entered by a criminal defendant, the last enumerated of which is “Not guilty by reason of insanity.” Section 1017 specifies the form in which the pleas must be entered—“in open court... oral or in writing.” Section 1018 directs that “Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.”
Notwithstanding that seemingly absolute language, it is accepted that “The nature of the right provided by Penal Code section 1018 is not such that the plea must be expressed in person under any and all circumstances.” (People v. Gibbs (1961) 188 Cal.App.2d 596, 598-599; accord, People v. Niendorf (1961) 197 Cal.App.2d 594, 599-600.) When the defendant is represented by counsel, a plea or change of plea is effective if made by counsel with the defendant’s express or tacit agreement. (E.g., People v. Reeves (1966) 64 Cal.2d 766, 772; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 262, pp. 471-472.)
With respect to sections 1016, 1017, and 1018, our Supreme Court has held: “The code sections, however, relate only to the making of the plea; they do not require that a withdrawal of it be made by the defendant personally, and we should not read such a requirement into the statutes. In the absence of a statute requiring that the withdrawal of a plea of ‘not guilty by reason of insanity’ be made by a defendant himself, or the presence of some compelling circumstance not shown here, we should not depart from the customary practice by which an attorney acts for his client throughout the trial. [¶] The fact that section 1018 refers only to the making of pleas may have led many attorneys and judges to believe that pleas could properly be withdrawn by the attorney, and under these circumstances it would seem improper to reverse convictions merely because such a procedure had been followed, and in the present case no claim is made by defendant that his attorney lacked authority to withdraw the plea.” (People v. Gaines (1962) 58 Cal.2d 630, 636, overruled on another point in People v. Morse (1964) 60 Cal.2d 631, 637-638, fn. 2.)
We do note that the Gaines reasoning evoked a powerful dissent by Justice Traynor that was concurred in by Justices Peters and Tobriner. Defendant’s reasoning bears a strong resemblance to the dissent.
Defendant does not revisit the issue of the trial court treating him as competent. Nor does he challenge his trial counsel’s statement that the defense had no evidence to present at a sanity phase. What he does is invoke this principle from People v. Medina (1990) 51 Cal.3d 870, 899-900: “Initially, we observe that prior cases generally have stressed that the decision to plea, or to change or withdraw a plea, is a matter lying within the defendant’s rather than counsel’s, ultimate control, regardless of tactical considerations.” Cited for this principle were People v. Gauze (1975) 15 Cal.3d 709, and People v. Redmond (1971) 16 Cal.App.3d931, which the Medina court then summarized:
“As we noted in Gauze,... under the rule in Redmond,... ‘a presently sane defendant may withdraw an insanity plea, provided the court is satisfied that the defendant is making a free and voluntary choice with adequate comprehension of the consequences. [Citations.] If a defendant may withdraw an insanity plea, certainly he cannot be compelled to present such a plea.... [¶] [He] made a free and voluntary choice with knowledge of its consequences. Neither counsel nor the court had the power to contravene that choice.’ [Citations.] [¶] By analogy to Gauze, if a defendant cannot be compelled by counsel to present an insanity defense, he cannot be compelled by counsel to abandon one merely because counsel disagrees with the tactics of that decision.” (People v. Medina, supra, 51 Cal.3d 870, 900.)
From Medina, Gauze, and Redmond, defendant distills this argument: “This evolution of the case law makes it clear that it is the defendant who has the final decision as to whether to proceed on an insanity defense and not counsel. In the instant case, since withdrawal of the NGI plea at that stage was tantamount to accepting the convictions for murder and attempted murder, the trial court had an obligation to insure that appellant personally desired to withdraw the plea and understood the consequences.”
This is creative, but not persuasive. Defendant’s argument breaks down because this was not a situation where counsel and client had an overt strategic disagreement. The inquiry authorized by Redmond was not required because the trial court, as it repeatedly stated, did not doubt defendant’s present sanity. (See People v. Redmond, supra, 16 Cal.3d 931, 939 [“What we state in this opinion... is not intended to apply to situations where there is no doubt of defendant’s sanity in the mind of the trial court and the reports of examining psychiatrists unanimously indicate that such defendant was sane at the time of the offense.”]; see also People v. Guerra (1985) 40 Cal.3d 377, 384; People v. Huffman (1977) 71 Cal.App.3d63, 81.)
Here, the trial court was convinced that defendant was sane and competent. (Cf. People v. Merkouris (1956) 46 Cal.2d 540, 552-553 [trial court improperly allowed withdrawal of insanity plea despite doubts as to defendant’s competence].) What defendant is seeking was plainly unattainable in the circumstances confronting the trial court. Convinced that defendant was only feigning insanity, the trial court saw the situation as one where defendant, unhappy at the result of the guilt phase, was clearly trying to derail—or at least postpone—the day of reckoning with the sanity trial. Consistent with the pose he was maintaining, defendant almost certainly would have refused to be questioned by the court about whether he “personally desired to withdraw the plea and understood the consequences.” Assisting the court with the inquiry defendant now asserts should have been made would have frustrated defendant’s purpose of stymieing completion of the trial. We see no point in faulting the court for not undertaking such a sterile exercise.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J., Haerle, J.