Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM7291. Thomas DeSantos, Judge.
Thea J. Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P.J.
A jury found appellant James Hamilton guilty of possessing a sharp instrument while confined in a state penal institution (Pen. Code, § 4502, subd. (a)), and returned true findings on allegations that he suffered four prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior prison term (§ 667.5, subd. (b)). The trial court sentenced appellant to 25 years to life under the three strikes law, consecutive to the sentence he was already serving, plus one year for the prior prison term. On appeal, appellant contends: (1) the trial court erred in allowing defense counsel to withdraw his plea of not guilty by reason of insanity (NGI) over his objection; and (2) the trial court abused its discretion by denying his motion to dismiss his prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). For reasons discussed below, we conclude the trial court’s error in allowing defense counsel to withdraw the NGI plea over appellant’s objection cannot be said to be harmless. Accordingly, we reverse the judgment and remand the cause for a trial on appellant’s NGI plea. If appellant is found NGI, the trial court shall take the proper steps under section 1026. If appellant is found sane, the court shall resentence him as provided by law. Our opinion today leaves undisturbed the jury’s guilty verdict on the substantive offense and true findings on the enhancement allegations.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On January 25, 2006, around 6:15 p.m., Richard Tait was working as a medical technical assistant in the medical clinic at Corcoran State Prison. Tait was running the “pill line, ” handing out medications, and attending to diabetic inmates. Inmates could interact with Tait through a window to his office. There was also a door authorized diabetics could enter to receive injections inside the office.
As Tait was monitoring an inmate who was injecting insulin, appellant appeared in the doorway to his office. Tait immediately told appellant that he was in an “out of bounds area” and instructed him to exit the clinic. Appellant told Tait he had an emergency. Tait performed a quick visual inspection of appellant. Not finding any obvious signs of trauma, Tait told appellant to have a seat on the other side of the hallway, which was approximately 12 feet away.
Appellant sat down as directed and Tait continued to run the pill line. While Tait was working, he heard appellant ask, “Tait, why are you putting me off?” Appellant’s presence was distracting to Tait, who was working alone and needed to keep the medications and syringes secure.
Tait was about to instruct appellant to leave, when appellant came across the hall and walked inside the office. Appellant told Tait that he was going to kill himself. Tait saw that appellant had a razor blade in his left hand. Appellant displayed his right wrist and held the razor blade over it.
Tait activated his personal alarm device, pulled out his pepper spray, and instructed appellant to get down. Appellant stepped out of Tait’s office and lay face down (“proned out”) in the hallway. Additional staff arrived and placed appellant in restraints. Tait found the razor on the floor and secured it.
DISCUSSION
Appellant contends that the trial court erred in allowing defense counsel to withdraw his NGI plea over his objection and that the cause should be remanded “so that appellant can renew his plea and go forwards with his NGI trial.” Respondent essentially concedes the error but claims it was harmless. Because the record does not affirmatively demonstrate that there was no credible basis for an NGI plea or that an NGI plea necessarily would have been futile in this case, we cannot conclude the error was harmless under the relevant case authorities discussed by the parties.
A. Background
After the amended information was filed, appellant personally entered a dual plea of not guilty and NGI. The trial court appointed two psychiatrists—Dr. S. Miles Estner and Dr. Luis H. Velosa—to examine appellant pursuant to section 1027. Subsequently, the psychiatrists provided the court with letter reports, expressing the opinion that appellant was legally sane at the time of the offense, although he did suffer from mental illness for which he received stabilizing psychotropic medications.
Based on the psychiatrists’ opinion that appellant was sane at the time of the offense, defense counsel informed the trial court on the first day of appellant’s two-day jury trial, that he was seeking to withdraw appellant’s NGI plea “over my client’s objection.” The trial court then questioned appellant, who agreed with the court’s statements that defense counsel was withdrawing the NGI plea over his objection and that he wanted to make a record of that. The court allowed defense counsel to withdraw the NGI plea, and the trial proceeded. The next day, the jury returned its guilty verdict on the charge of possessing a sharp instrument while confined in a state penal institution and thereafter found the prior strike conviction and prior prison term allegations to be true.
Withdrawal of appellant’s NGI plea occurred as follows: “[DEFENSE COUNSEL]: I am [ready to go to trial], your Honor, and in this matter, just to clarify with the Court, previously [appellant] had entered a personal NGI plea, not guilty and dual plea by reason of insanity. [¶] He was examined by several doctors, all of which returned a 1026 report that did not support the allegation of NGI, and I have no legal basis at this time to go forward with an NGI plea. [¶] THE COURT: Okay. [¶] So at this point you’re abandoning that situation, then? [¶] [DEFENSE COUNSEL]: Yes, your Honor. [¶] THE COURT: Okay. [¶] [DEFENSE COUNSEL]: Over my client’s objection. [¶] THE COURT: Okay. [¶] And do you understand, [appellant], your attorney has informed the Court that it has -- that he has no legal basis to pursue the NGI, and that he’s withdrawing that over your objection? [¶] THE DEFENDANT: Yes. [¶] THE COURT: And that’s fine with you? [¶] THE DEFENDANT: Yes, sir. [¶] THE COURT: Okay. [¶] And I assume your objection to that is just that you want to make a record; is that correct? [¶] THE DEFENDANT: Yes, sir. [¶] THE COURT: Okay. [¶] Then that portion of it will be withdrawn.”
B. Applicable Legal Principles
A defendant may claim legal insanity as an affirmative defense to a criminal charge. (People v. Hernandez (2000) 22 Cal.4th 512, 522 (Hernandez); § 25, subd. (b).) “It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane.” (People v. Kelly (1973) 10 Cal.3d 565, 574.) When, as here, a defendant enters a plea of not guilty by reason of insanity and joins with it a plea of not guilty, he or she must be tried first as to guilt; only if the defendant is found guilty does the sanity phase of the trial begin. (§ 1026, subd. (a).) In the sanity phase, the defendant bears the burden of proof by a preponderance of the evidence. (Hernandez, supra, 22 Cal.4th at p. 521; Pen. Code, § 25, subd. (b); Evid. Code, § 522.) As in the determination of guilt, the verdict of the jury as to sanity must be unanimous. (Hernandez, at p. 521.) A defendant is legally insane if “he or she was incapable of knowing or understanding the nature and quality of his or her act” or “of distinguishing right from wrong at the time of the commission of the offense.” (§ 25, subd. (b); People v. Skinner (1985) 39 Cal.3d 765, 776-777 [the test is in the disjunctive, despite the literal wording of the statute].)
Under California law, every plea must be entered or withdrawn personally by the defendant in open court. (§ 1018.) Generally, defense counsel controls trial tactics. However, a defendant has a personal right to enter whatever plea he or she wants, even if counsel believes that the plea is a poor tactical choice. (§ 1018; People v. Henning (2009) 178 Cal.App.4th 388, 397 (Henning); People v. Clemons (2008) 160 Cal.App.4th 1243, 1251 (Clemons).) If the defendant is competent and makes an unequivocal request to enter an NGI plea, he or she has a statutory right to do so. (§ 1018; People v. Weaver (2001) 26 Cal.4th 876, 963; People v. Gauze (1975) 15 Cal.3d 709, 717; Henning, supra, 178 Cal.App.4th at pp. 397-398.) “[A] defendant … cannot be compelled by counsel to abandon [an insanity defense] merely because counsel disagrees with the tactics of that decision.” (People v. Medina (1990) 51 Cal.3d 870, 900.)
C. Analysis
As noted above, the parties essentially agree that the trial court erred in allowing defense counsel to withdraw the NGI plea over appellant’s objection. They disagree on whether the error was harmless. Two cases they discuss that are instructive on this issue are Clemons, supra, 160 Cal.App.4th 1243 and Henning, supra, 178 Cal.App.4th 388. For reasons discussed below, we find the circumstances in this case are closer to those in Clemons than in Henning, and therefore reject respondent’s argument that the error was harmless in this case under the state standard of prejudice.
Respondent suggests there is some ambiguity in the record as to whether appellant actually opposed defense counsel’s withdrawal of his NGI plea and cites to the colloquy set forth in footnote 2, ante, up to the point where the court asked appellant, “And that’s fine with you?” and appellant answered, “Yes, sir.” Respondent, however, omits the portion where appellant agreed with the trial court that he wants to make a record of his objection, and cites only the court’s comment withdrawing the plea. We agree with appellant, that when appellant’s statements are viewed in context of the entire colloquy, they show he was opposed to withdrawal of his NGI plea.
In Clemons, the Court of Appeal held that the trial court committed reversible error in failing to allow the defendant to enter an NGI plea, when the defendant “unequivocally expressed his desire to do so, even though his counsel was opposed to entry of that plea.” (Clemons, supra, 160 Cal.App.4th at p. 1245.) Like appellant, the defendant in Clemons was convicted of violating section 4502, subdivision (a), based on his possession of “the razor blade portion of a disposable razor” that “must have come from one of the razors that jail inmates are given for personal hygiene.” (Clemons, at p. 1246.) The defendant’s possession of the razor blade was discovered due to a “self-inflicted … wound to his arm that was deep enough to require 18 stitches and [he] grinned sheepishly at the sheriff’s deputies when they discovered what he had done.” (Id. at p. 1253.)
The Clemons court rejected the respondent’s contention that “counsel did not have to pursue an NGI plea when there was no evidence to back up such a plea, since the experts confirmed defense counsel’s opinion that appellant was malingering.” (Clemons, supra, 160 Cal.App.4th at p. 1252.) The court explained:
“…Respondent relies on the principle that ‘defense counsel was not obliged to pursue futile lines of defense simply because defendant demanded them, and his refusal to do so did not justify his removal as counsel.’ [Citations.] However, those cases concerned decisions about trial tactics and do not relate to a defendant’s personal right to enter the plea of his or her choice. That right is analogous to a defendant’s right to elect whether or not to testify, which is not something that defense counsel can control. [Citation.]
“Significantly, the doctors’ reports went to the issue of present competency to stand trial and not to appellant’s sanity at the time of the crime. There is nothing in the reports about what appellant’s mental condition was, or what medication he had taken, on the specific day he cut his arm with the razor. Also, the reports document a history of diagnoses of and hospitalizations for mental illness, combined with questions about whether he was using mental health issues to manipulate the justice system. Moreover, even if there were no experts to support an NGI defense, appellant’s abnormal behavior at the time of the incident provided some evidence for it, since he self-inflicted a wound to his arm that was deep enough to require 18 stitches and grinned sheepishly at the sheriff’s deputies when they discovered what he had done. We therefore are not convinced that the NGI defense was necessarily a ‘futile line of defense.’” (Clemons, supra, at 160 Cal.App.4th at pp. 1252-1253, italics added.)
Because there was evidence from which the jury might have found the defendant was NGI if it had been presented with the issue, the Clemons court rejected the respondent’s argument that “because trial counsel believed that an NGI defense would be meritless, the trial court’s refusal to allow appellant to plead NGI was necessarily harmless.” (Clemons, supra, 160 Cal.App.4th at p. 1253.)
Similarly, in this case, the record does not allow us to conclude that the court’s error in allowing defense counsel to withdraw the NGI plea over appellant’s objection was necessarily harmless. Although the circumstances of the offense were not as dramatic as those in Clemons, where the defendant actually cut himself, they nonetheless provided evidentiary support for an NGI defense, as they involved appellant threatening self-harm with a razor blade and behaving erratically (sometimes complying with and sometimes defying Tait’s directions during the incident). The psychiatrists’ reports reveal that appellant did suffer from mental illness for which he was treated with medication. Moreover, appellant reported to Dr. Velosa that, at the time of the offense, his “mind was not working well” and he heard voices that were directing him to kill himself. Although Dr. Velosa and Dr. Estner ultimately concluded that appellant was sane at the time of the offense, their opinions in this regard were fairly brief and conclusory and we can only speculate as to whether jurors would have accepted or rejected the doctors’ conclusions had the issue been explored in more detail in a trial on the sanity issue. On this record, we cannot say that an NGI defense necessarily would have been futile or that there is no reasonable probability the jury would have reached a different result had the trial court not erroneously allowed defense counsel to withdraw the NGI plea over appellant’s objection.
Dr. Estner reported that when he previously examined appellant in the state hospital in 2006, in connection with competency proceedings, appellant talked about the circumstances of the present offense, “saying that he was not hearing voices or in a depressed mood at the time.” Dr. Estner did not state whether, during the more recent examination, appellant claimed to hear voices and how that affected his opinion. The psychiatrist did, however, note that appellant’s answers during the examination indicated “Actual Ganser’s syndrome of ‘approximate answers’ suggestive of Malingering.”
As appellant’s counsel correctly pointed out during oral argument, a jury would not have been required to accept the experts’ conclusions. “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.” (§ 1127b [instructions as to expert testimony].)
This case is distinguishable from Henning, supra, 178 Cal.App.4th 388. In Henning, the defendant, “[a]fter a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of illicit drugs, … donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business.” (Id. at p. 392.) The defendant was charged with multiple felonies stemming from the incident, including burglary, attempted robbery, assault with a firearm, evading a police officer, and possession of a sawed-off shotgun. (Id. at pp. 393-394.) Despite unequivocal requests by the defendant to enter an NGI plea, defense counsel refused to allow him to enter an NGI plea. (Id. at p. 397.) Consequently, the defendant “did not receive a trial on the issue of sanity after he was convicted of the charged offenses.” (Ibid.)
The Henning court concluded that the trial court’s failure to allow the defendant to enter an NGI plea over defense counsel’s objection violated the defendant’s “statutory right under section 1018 to personally enter the plea of his choice.” (Henning, supra, 178 Cal.App.4th at pp. 397-398.) However, the court found “the error harmless because the record affirmatively demonstrates the lack of credible evidence for an insanity defense.” (Id. at p. 394, fn. omitted.) In reaching this conclusion, the court applied the Watson test for prejudice, rejecting the defendant’s contention that the more stringent Chapman test was applicable. (Henning, supra, at 178 Cal.App.4th at pp. 398, 402.)
People v. Watson (1956) 46 Cal.2d 818, 836.
Chapman v. California (1967) 386 U.S. 18, 23-24.
The circumstances in Henning were quite different from those in the instant case. There was no evidence that the defendant suffered from mental illness; rather, “intoxication due to illicit drugs was the sole basis of his claim of insanity.” (Henning, supra, 178 Cal.App.4th at p. 401.) The court explained that section 25.5 precluded the defendant from relying solely on “the hallucinogenic effects of the drugs he ingested” to support an insanity defense. (Henning, at p. 401.) “Moreover, defense counsel consulted four independent experts, all of whom concluded defendant was not insane at the time of the offenses.” (Ibid.) The court also found that the circumstances of the offenses themselves did not lend support to an insanity defense:
Section 25.5 provides, in part: “In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of … an addiction to, or abuse of, intoxicating substances.”
“The circumstances of defendant’s armed offenses and subsequent flight indicate that he understood the wrongful nature of his acts. Defendant wore a black ski mask to avoid recognition, gloves to avoid leaving fingerprints, and placed duct tape over his license plate to preclude identification. Moreover, defendant’s attempt to conceal his shotgun inside his backpack while trying to evade the police further indicated he was aware of the wrongfulness of his attempted robbery. Thus, the circumstances show intentional strategic thinking rather than insanity.” (Ibid.)
Finally, the Henning court distinguished the circumstances before it from those in Clemons:
“The affirmative showing on the record that an insanity defense was baseless distinguishes it from … [Clemons, supra, ] 160 Cal.App.4th 1243.… [¶] As we have recounted in detail, the record in this case shows that an insanity defense would have been futile. Reversal would serve no purpose other than to require the trial court to conduct a sanity trial on a doomed defense. [¶] The refusal of the trial court to allow defendant to enter an NGI plea was harmless error. It was not reasonably probable that defendant would have obtained a different result at trial if he had entered an NGI plea. [Citations.]” (Henning, supra, 178 Cal.App.4th at p. 402.)
The utter absence of credible evidence supporting an NGI defense distinguishes Henning from the instant case, where, as in Clemons, evidence the defendant suffered from mental illness and the particular circumstances of the offense, provided evidentiary support for an NGI defense, notwithstanding the contrary opinion of the court-ordered psychiatrists. On the unique facts of this case, we cannot say there is no reasonable probability that one or more jurors would have rejected the psychiatrists’ opinion and concluded that appellant did not know or could not understand the nature of his acts or was unable to distinguish right from wrong at the time of the offense. Thus, the court’s error in allowing defense counsel to withdraw appellant’s NGI plea over appellant’s objection cannot be said to be harmless.
Because we conclude that state law requires the judgment to be reversed and the cause remanded for a trial on the sanity issue, we need not reach appellant’s contention that the trial court’s action violated his federal constitutional rights. We note, however, that we find inapposite People v. Ceja (2003) 106 Cal.App.4th 1071 (Ceja), a case cited in respondent’s supplemental letter brief and discussed during oral argument. The Ceja court held that “there is no constitutional infirmity, either under the [state or the federal constitution], for a judge to remove the issue of sanity from the jury where the defendant has failed to present sufficient evidence to support the special plea.” (Ceja, supra, at p. 1089.) The evidence the defendant in Ceja relied on to support his insanity plea “was that he took illegal drugs which may have caused his temporary blackouts.” (Id. at p. 1091, italics added.) The court explained that, even assuming there was evidence establishing that the defendant’s use of illegal drugs did, in fact, cause his blackouts, “under section 25.5, it would be insufficient to establish the defense.” (Ceja, supra, at p. 1091) Ceja is both procedurally and factually distinguishable from the instant case. Here, the trial court improperly permitted defense counsel to withdraw appellant’s NGI plea over appellant’s objection; the court did not take the issue away from the jury after appellant had already been given the opportunity to present evidence in support of the plea. There was also evidence in this case that appellant was diagnosed as suffering from an organic mental disorder (not one induced by illegal drug use) for which he was being treated with psychotropic drugs. In short, Ceja does not alter our conclusion that the trial court erred in this case and that appellant is entitled to a trial on his NGI plea.
We find guidance for the proper disposition of this appeal in People v. Lyons (1971) 18 Cal.App.3d 760 at pages 780-781:
“It is well established that, where an insanity plea is joined with a plea of not guilty, the trial and the verdict are not complete, and the court cannot impose a sentence after a verdict of guilty until and unless the insanity issue is first tried and the defendant found to be sane at the time the offenses were committed. It is irrelevant that the defendant may have failed to object to the entry of judgment before determination of his insanity plea. A sentence before both of such verdicts have been returned is void. [Citations.] It will be necessary, therefore, to remand the case to the trial court for trial of defendant’s plea of not guilty by reason of insanity. [¶] … [¶] The judgment is reversed and the cause remanded for trial upon the remaining issue of not guilty by reason of insanity. If defendant is found not guilty by reason of insanity, the court will then take proper steps in the premises. If he is found sane, the court will resentence him as provided by law. [Citation.]”
Because appellant’s sentence must be vacated under the forgoing principles, it is unnecessary for us to resolve his contention that the trial court erred in denying his Romero motion before sentencing him to a three strikes sentence of 25 years to life. After a trial on the sanity issue on remand, if appellant is found NGI, the court shall take proper steps under section 1026. If he is found sane, the court shall resentence him as provided by law.
Section 1026, subdivision (a), provides, in pertinent part: “If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility approved by the community program director, or the court may order the defendant placed on outpatient status pursuant to Title 15 (commencing with Section 1600) of Part 2.”
DISPOSITION
The judgment is reversed and the cause is remanded for trial of appellant’s NGI plea. If appellant is found NGI, the trial court shall take the proper steps pursuant to section 1026. If appellant is found sane, the court shall resentence him as provided by law.
WE CONCUR: WISEMAN, J., DETJEN, J.