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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Lonnie James MESSICK, Defendant and Appellant.

Cr. 15306.

Decided: January 26, 1984

Appellate Defenders, Inc. and Barbara A. Smith, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Jay M. Bloom and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

 Lonnie James Messick appeals from the judgment entered on his negotiated guilty pleas to kidnapping with use of a knife, robbery and robbery with use of a firearm.   Messick also admitted a prior conviction.   Before the court imposed a prison sentence of 11 years and 8 months, Messick's counsel asked the court to set aside Messick's plea of not guilty by reason of insanity (NGI) (Pen.Code, § 1016, subd. 6).1  The court did not respond to this request and nowhere in the record is there a withdrawal of the NGI plea.   The issue raised is whether the court had jurisdiction to impose sentence.

Section 1018 states:  “Unless otherwise provided by law every plea must be entered or withdrawn by the defendant himself in open court.”  (Italics supplied.)   The written plea bargain form which Messick initialed and signed does not refer to his NGI plea.

There is a substantial difference between the statutory plea of not guilty under section 1016, subdivision 2 and the special plea of NGI under section 1016, subdivision 6.  (See Witkin, Cal.Criminal Procedure (1963) Proceedings Before Trial, § 246 et seq., p. 228.)   A guilty plea to the offenses admits all matters essential to the conviction (see People v. DeVaughn (1977) 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872) but is not determinative of the distinct issue of a defendant's sanity at the time the offenses were committed.   An NGI plea permits a defendant to have a trial on that separate issue.   Under sections 1016, 1017 and 1026, where the defendant merely pleads not guilty, he is “conclusively presumed to have been sane at the time of the commission of the offense charged.”  (§ 1016.)   Where, however, a defendant enters an NGI plea, but pleads guilty to the commission of the charged offenses, he avoids the conclusive presumption of sanity and preserves his right to either a court or jury trial on whether he was sane or insane at the time he committed the offenses.   Thus the only inference that can be made on this record is that Messick intended to change his plea from not guilty to guilty to certain of the charged offenses.   We may not construe his change of plea as reflecting his implied renunciation of his NGI plea.   Accordingly, on this silent record under section 1018, we must vacate the sentence and remand for further proceedings to allow Messick either to personally withdraw his NGI plea or for a trial on the issue of his sanity at the time he committed the offenses to which he has pleaded guilty.  (§ 1026, subd. (a).)


The sentence is vacated and the case is remanded for further proceedings consistent with this opinion.


1.   All statutory references are to the Penal Code.

WIENER, Acting Presiding Justice.

WORK and BUTLER, JJ., concur.