Opinion
C055873
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JESSIE ALBERT GIGER, Defendant and Appellant.
Not to be Published
Following a bench trial, the trial court convicted Jessie Giger of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) and misdemeanor vandalism (§ 594, subd. (a)) while sustaining two prior prison term enhancements (§ 667.5, subd. (b)). The court sentenced defendant to six years in prison.
On appeal, defendant claims error in the denial of his motion to enter an additional plea of not guilty by reason of insanity and ineffective assistance of counsel. We shall reverse the judgment and remand for a hearing on defendants tender of his plea of not guilty by reason of insanity.
BACKGROUND
The facts of defendants crimes are not relevant to this appeal and can be briefly summarized. Defendant was angry with his girlfriend for visiting a friend and not coming home. Thinking she was having sex with the husband of the friend, defendant broke the window of that mans car. Defendant argued with his girlfriend when she came home. During the argument, defendant charged and ran into her feet as she was sitting in a recliner, knocking her off of the chair. Defendant dragged her by the hair to the bathroom, where he threw her in the shower and turned on the water. She fought to get away, but defendant restrained her until he heard a knock on the door.
DISCUSSION
Defendant was initially found incompetent to stand trial based on the recommendation of the examining psychologist. He was placed at Napa State Hospital for competency training and was eventually found competent to stand trial.
On January 30, 2007, defendant entered a not guilty plea and waived a jury trial with the prosecutions consent. On March 20, 2007, at a trial readiness conference held eight days before trial, counsel informed the court defendant wished to add a plea of not guilty by reason of insanity (NGI) and withdraw his jury trial waiver. The prosecutor replied, "He has to file a motion and give the Court Points and Authorities and my office notice so we can respond to that. I dont believe he has the grounds for that withdrawal."
Counsel told the court defendant wanted to enter dual pleas of not guilty and NGI, but he had explained to defendant his belief it was "too late at this point in time." The prosecutor told the court "there is a procedure to the plea NGI in this state and defendant has gone [sic] passed all of those required dates. I dont believe that he has standing at this time to file that. Also, I dont see any factual basis for it as well."
The court replied with the following ruling: "I have nothing in writing at this time. As to the motion with regard to finding not guilty and not guilty by reason of insanity, hes already entered not guilty pleas. Anything else is denied." The court also denied the motion to withdraw the jury trial waiver as untimely. No further mention was made of the NGI plea.
Defendant contends the court erred in failing to exercise discretion regarding the NGI plea, if the court exercised discretion then the ruling was an abuse of discretion, and trial counsel was ineffective for failing to present adequate grounds for the NGI plea in a timely manner. The Attorney General concedes the courts failure to exercise discretion. We accept the concession.
Section 1016 states in pertinent part: "A defendant who does not plead guilty may enter one or more of the other pleas. A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged; provided, that the court may for good cause shown allow a change of plea at any time before the commencement of the trial."
A courts decision to deny a motion to add an NGI plea is reviewed for abuse of discretion. (People v. Montiel (1985) 39 Cal.3d 910, 923 (Montiel).) "Under normal circumstances, the courts discretion in denying permission will be upheld." (People v. Herrera (1980) 104 Cal.App.3d 167, 172 (Herrera).) However, a courts failure to exercise discretion at all in denying the motion "is patently prejudicial and reversible error which cannot be considered as harmless." (Id. at p. 175.)
The motion was not unfounded on its face as the court had previously found defendant incompetent to stand trial. Nor was it per se untimely. Section 1016 clearly contemplates adding an NGI plea after the original plea is entered, and decisions allow for an NGI plea to be entered once the trial begins so long as good cause is shown. (See Montiel, supra, 39 Cal.3d at p. 921; People v. Boyd (1971) 16 Cal.App.3d 901, 908 (Boyd).) Since defendants motion was entered over a week before the trial date, the court could not dismiss the motion as untimely without first determining whether defendant established good cause for adding an NGI plea. (See Herrera, supra, 104 Cal.App.3d at p. 172 [denial of motion on the ground it was made just before trial when it was made seven days before trial was a refusal to consider the motion].)
"`A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination."" (People v. Chavez (1980) 26 Cal.3d 334, 347.) The court never considered the merits of defendants motion, dismissing it by erroneously ruling the motion was untimely without giving defendant the opportunity to establish good cause. "`The failure to exercise discretion is an abuse of discretion. [Citation.]" (Kahn v. Lasordas Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124.) The remedy in such a case is to remand the matter to the trial court to exercise its authority in the first instance. (Ibid.)
We shall reverse the judgment and remand the case for a hearing on defendants motion to enter an NGI plea and to hold a trial on the NGI issue if the motion is granted. (See Boyd, supra, 16 Cal.App.3d at pp. 908-909.) If defendant is found not guilty by reason of insanity, the court shall take the appropriate steps under the circumstances. If the court refuses the plea or defendant is found sane on the insanity issue, then the court shall reinstate the judgment.
Since our ruling cures any prejudice to defendant, we shall not consider his contentions of ineffective assistance of counsel or abuse of discretion. (Boyd, supra, 16 Cal.App.3d at p. 908.)
DISPOSITION
The judgment is reversed and the case remanded for proceedings consistent with this opinion.
We concur:
NICHOLSON, J.
HULL, J. --------------- Notes: Undesignated section references are to the Penal Code.