Reset A A Font size: Print

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Larry HAZELAAR, Defendant and Appellant.

Cr. 21073.

Decided: November 24, 1981

Ann J. Howell, Carmel (court-appointed), for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On March 14, 1978, defendant was charged by information with the crimes of burglary (Pen.Code, § 459), receiving stolen property (Pen.Code, § 496) and grand theft (Pen.Code, § 484); the information further alleged that defendant had suffered two prior felony convictions for burglary within the meaning of Penal Code section 667.5, subdivision (b). Defendant entered a plea of not guilty and denied the priors. Thereafter defendant was released on his own recognizance (OR) (Pen.Code, § 1318).

On April 20, 1978, defendant was arrested on unrelated drug charges; as a result of that arrest and an earlier arrest for misdemeanor offenses, the office of pretrial services to the superior court recommended that defendant's supervised OR release be revoked and that defendant be remanded into custody.

On May 3, 1978, the court notified the sheriff that defendant's OR release was revoked and that he was remanded to custody without bail. Thereafter, the date for trial was continued on four separate occasions at defendant's request.

On July 3, 1978, defendant pled guilty to the grand theft charge on condition that the court invoke the provisions of Penal Code section 1203.03 (90 day diagnostic study and evaluation) before imposing a prison sentence and that he be allowed an OR release pending sentencing. The remaining charges, including those related to the April 20, 1978, arrest, were thereupon dismissed and the allegations of prior felony convictions ordered stricken.

On July 5, 1978, defendant's earlier motion to reinstate OR release was ordered off calendar, apparently as a result of his failure to appear.

Following further continuances, the matter was set for sentencing on February 21, 1979.

On February 9, 1979, defendant moved to withdraw his guilty plea. At the conclusion of the evidentiary hearing, the motion was denied and the matter reset for sentencing on April 13, 1979; actual sentencing was delayed, however, until January 15, 1980, at which time a suspended state prison sentence for the upper term of three years was imposed and defendant placed on probation.1

Defendant now appeals under the provisions of Penal Code section 1237.5.


Defendant contends that denial of his motion to withdraw his guilty plea based upon coercion and a claim of involuntariness constituted an abuse of discretion. Defendant further contends that the trial court improperly considered a dismissed prior felony conviction in imposing the aggravated term.

Denial of Motion to Withdraw Plea

We first review established principles governing examination of defendant's initial contention.

The statutory remedy permitting withdrawal of a guilty plea “for a good cause shown” (Pen.Code, § 1018) is committed to the sound discretion of the court. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636.) The burden is upon the defendant to establish by clear and convincing evidence that the guilty plea was the result of “[m]istake, ignorance or any other factor overcoming the exercise of [his] free judgment ․” (People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242, 526 P.2d 250.) Moreover, a validly entered plea may not be arbitrarily withdrawn (People v. Urfer (1979) 94 Cal.App.3d 887, 892, 156 Cal.Rptr. 682), and the court may consider—inter alia—the delay of the defendant in asserting his withdrawal claim. (People v. Brotherton (1966) 239 Cal.App.2d 195, 202, 48 Cal.Rptr. 513, and cases there cited.) The decision of the trial judge granting or denying the motion will not be disturbed on appeal unless an abuse is clearly demonstrated. (In re Brown (1973) 9 Cal.3d 679, 685, 108 Cal.Rptr. 801, 511 P.2d 1153.)

Defendant first argues that his plea was coerced due to his incarceration resulting from the improper revocation of his OR status and the lack of automatic review of his no-bail status. Defendant bases his argument on the trial court's failure to comply with the statutory requirement that “a finding, [be] made in open court” (former Pen.Code, § 1318.6, see now § 1289, subd. (b)) in support of its order revoking an OR release (In re Noland (1978) 78 Cal.App.3d 161, 144 Cal.Rptr. 111) and in neglecting to conduct an “automatic review” of his bail status (former Pen.Code, § 1320, see now § 1271).2 The argument is unavailing.

As Noland instructs, the purpose of former Penal Code section 1318.6 is “to limit the court's discretion by specifying the grounds upon which a prior release may properly be revoked. The statutory requirement that a finding be made in open court … serves to assure that a release is not revoked for improper reasons and to facilitate meaningful appellate review.” (In re Noland, supra, 78 Cal.App.3d at p. 165, 144 Cal.Rptr. 111.) Although the requisite finding was not articulated herein, the record clearly reflects sufficient reasons supporting the order of revocation permitting meaningful review consistent with the legislative purpose.3 Unlike People v. Arnold (1976) 58 Cal.App.3d Supp. 1, 132 Cal.Rptr. 922, upon which defendant relies, there was no abdication of discretion whether to reconsider the matter of OR release or set bail, particularly in view of the absence of request by defendant. The record demonstrates that the court followed its customary practice of deferring the setting of bail upon the issuance of a bench warrant until such time as an order fixing bail was thereafter requested.4 At no time during defendant's successive court appearances while in custody did he seek either reconsideration of an OR release or an order fixing bail. Although defendant was entitled to bail as a matter of right (Cal.Const., art. I, § 12; former Pen.Code, § 1271, see now § 1268a, subd. (a)), under the circumstances shown his failure to request bail constituted an effective waiver of the right to automatic review. (Cf. People v. Thomas (1974) 43 Cal.App.3d 862, 871, 118 Cal.Rptr. 226.) Thus, we conclude the plea was neither tainted nor coerced as the result of the order revoking defendant's OR release and remand into custody without bail.

Nor do we find any merit in defendant's subsidiary Sixth Amendment claim grounded upon trial counsel's failure to seek bail or restoration of an OR release. As the People correctly observe, ordinarily a claim of ineffective counsel must be collaterally raised unless such ineffectiveness is clearly shown by the record. (See People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.) Direct review is available only upon a showing in the record of both inadequate assistance and a satisfactory explanation in order that a reviewing court may determine “whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.” (People v. Pope, supra, at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.) The record fails to disclose that either condition was satisfied. First, the minute order dated July 5, 1978, ordering the pending motion to reinstate OR release off calendar, supports a finding that the motion was timely made and thereafter mooted by reason of defendant's OR release two days earlier. In addition, counsel's request on April 18, 1978, for a court appointed psychotherapist may have entered into a tactical decision to forego a request for immediate release in light of defendant's apparent mental condition. Under such circumstances we should not attempt to “second guess” counsel's reasons in failing to seek bail. (People v. Pope, supra, at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

Defendant's alternate challenge is based upon a claim of involuntariness due to mental illness. Defendant argues that in light of the uncontroverted medical testimony that he suffered from a chronic impairment of judgment affecting the exercise of free volition, the plea was rendered involuntary. Defendant's claim of disabling mental illness is two-pronged: 1) that he was mentally incompetent to enter the plea; and 2) if not, he was nonetheless volitionally impaired at the time the plea was entered.

Unquestionably, a trial court must permit withdrawal of a guilty plea entered by an accused who was legally insane or mentally incompetent at the time of the plea. (See, e. g., People v. Scott (1881) 59 Cal. 341; People v. Gallantier (1941) 47 Cal.App.2d 148, 150, 117 P.2d 431.) In passing upon such question of competency, the courts have consistently applied a standard similar to that traditionally used in determining an accused's mental competency for purposes of standing trial. (See Pen.Code, § 1367; cf. People v. Scott, supra; People v. Hofferber (1977) 70 Cal.App.3d 265, 269, 137 Cal.Rptr. 115; People v. Avilez (1948) 86 Cal.App.2d 289, 298, 194 P.2d 829; People v. Gallantier, supra.) Under that standard, the record adequately supports the trial court's determination that defendant was mentally competent to enter the now challenged guilty plea.5

Relying principally upon People v. Drew (1978) 22 Cal.3d 333, 149 Cal.Rptr. 275, 583 P.2d 1318, defendant urges that the more appropriate test of mental competency requires application of a “higher standard” incorporating a volitional aspect reflecting contemporary concepts of mental illness.6 In Westbrook v. Arizona (1966) 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429, the Supreme Court concluded that a defendant's hearing for trial competency purposes was insufficient to determine competency to waive the right to counsel in order to proceed pro se, resulting in a remand for further proceedings. (Id., at p. 151, 86 S.Ct. at p. 1320.) Westbrook has since been interpreted as authority for the proposition that, unlike the standard used in determining mental competency for purposes of trial, the applicable standard governing the validity of a waiver of the right to counsel requires a finding that defendant is “‘free of mental disorder which would so impair his free will that his decision to waive counsel would not be voluntary.”’ (Curry v. Superior Court (1977) 75 Cal.App.3d 221, 227, 141 Cal.Rptr. 884; accord People v. Zatko (1978) 80 Cal.App.3d 534, 544-545, 145 Cal.Rptr. 643; see also People v. Teron (1979) 23 Cal.3d 103, 113, 151 Cal.Rptr. 633, 588 P.2d 773.)7

Assuming, arguendo, that the standard for the waiver of the right to counsel includes an assessment of the volitional quality of such waiver, the question remains whether such higher standard applies in considering the voluntariness of a guilty plea. While we have found no California cases in point, at least one reviewing court has answered the question affirmatively. In Sieling v. Eyman (9th Cir. 1973) 478 F.2d 211, the court—having concluded that the Westbrook rationale applied to the entry of a guilty plea—formulated the test of competency in the following language: “‘A defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature and consequences of his plea.”’ (Id., at p. 215.) The Sieling court reasoned that once the defendant's competency was placed in issue “the trial court must look further than to the usual ‘objective’ criteria in determining the adequacy of a constitutional waiver.” (Id., at p. 214.)8

Since the formal entry of a guilty plea uniformly requires a free and intelligent waiver of a panoply of other fundamental rights of constitutional dimension (see Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449), the conclusion seems inescapable that a similar standard—focusing upon the existence of free and unimpaired volition—should likewise apply whenever the defendant's competency to plead guilty based upon a claim of involuntariness due to mental illness or disorder is placed in issue, as here.

While the record is unclear as to the standard actually applied in determining the merits of defendant's claim, the court's express recognition of the standard advanced in Sieling-Curry supports a finding and conclusion that the more rigorous standard was likewise considered.9 Where the court's determination under such appropriate standard is supported by substantial evidence, as here, it must be respected on appeal. (People v. Savin (1940) 37 Cal.App.2d 105, 108, 98 P.2d 773.) In light of all the relevant factors reflected in the record, we find no clear and convincing evidence that defendant's guilty plea was not the result of a free and voluntary exercise of judgment. (People v. Waters (1975) 52 Cal.App.3d 323, 331, 125 Cal.Rptr. 46.) Accordingly, the trial court did not abuse its discretion in denying the motion.

Sentencing Error

Defendant's final contention challenges the use of a prior felony conviction stricken as a part of the plea bargain in imposing the aggravated term of three years. Relying on People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, defendant contends that the use of a dismissed prior to increase the term of his prison sentence would effectively deprive him of the benefit of his plea bargain. In response, the People counter that notwithstanding dismissal of the prior felony convictions, the court properly could (and did) consider as a circumstance in aggravation the fact that the defendant has served a prior prison term “whether or not charged or chargeable as an enhancement under section 667.5.” (Cal. Rules of Court, rule 421(b)(3).) Moreover, it is argued, Harvey's prohibition is limited to a dismissed count as distinguished from a stricken enhancement. Such a distinction seems superficial at best.

In prohibiting the sentencing use of circumstances pertaining to an unrelated count dismissed pursuant to a plea bargain, the Supreme Court reasoned that: “Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” (People v. Harvey, supra, 25 Cal.3d at p. 758, 159 Cal.Rptr. 696, 602 P.2d 396.) We interpret that language to mean what it plainly says: absent contrary agreement, the bargained dismissal implies that defendant will experience “no adverse sentencing consequences” arising from wholly separate factual circumstances solely related to the dismissed charge. The crux of that holding, we believe, concerns the nature of the bargain and not the nature of the dismissed charge. To conclude otherwise would exalt form over substance creating the harsh result that the relief expected as part of the bargain could be nonetheless converted into an aggravating circumstance. In short, the suggested distinction unwittingly would license a semantical “shell game”: the potential one year enhancement would vanish only to reappear in the form of a one year aggravating circumstance. Obviously, the same fact could not be used for both purposes. (Pen.Code, § 1170, subd. (b); Cal.Rules of Court, rule 441(c).)

However, we need not and do not rest our decision on that basis, where, as here, the record clearly manifests a contrary understanding. During the voir dire examination preceding the negotiated plea, the court adequately explained, and the defendant expressly acknowledged that he understood, the maximum sentence attendant upon his plea.10 Thus, we find no error as contended.

Judgment affirmed.


1.  Six months of the additional delay was attributable to defendant's failure to appear until apprehended upon a bench warrant; thereafter, sentencing was continued at defendant's request and upon the court's own motion.

2.  Section 1271 provides as follows: “When a person is detained in custody on a criminal charge prior to conviction for want of bail, such person is entitled to an automatic review of the order fixing the amount of bail by the judge or magistrate having jurisdiction of the offense. Such review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading. The defendant may waive such review.” (Emphasis added.)

3.  At the February 27, 1979, hearing, the court reviewed at length the written reasons submitted by its pretrial services division in recommending revocation and custodial remand, including defendant's subsequent arrests for multiple offenses.

4.  The court's reasoning expressed at the hearing is eminently sound: rather than fix bail in an arbitrary amount at the time of issuing the bench warrant, the “routine procedure” followed by the court to fix a reasonable bail in the first instance upon defendant's timely request relieved the defendant of any burden of seeking a bail reduction.

5.  Our view of the record of defendant's voir dire examination in connection with the plea unmistakably demonstrates that defendant possessed the intellectual capacity to understand the nature of those proceedings and the consequences of the guilty plea fortifying the trial court's conclusion that defendant knew “exactly what he is doing.” That conclusion was supported by the medical testimony presented during the hearing. Moreover, although trial counsel had obtained the appointment of a psychiatrist to examine defendant at an early stage of the proceedings, no doubt or belief concerning defendant's present sanity or mental competency was ever raised or suggested below. (See Pen.Code, § 1368, subds. (a) and (b).)

6.  In People v. Drew, supra, the California Supreme Court abandoned the long standing M'Naghten rule applicable to an insanity defense in favor of the standard proposed by the American Law Institute relieving responsibility for criminal conduct “‘if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.”’ (Id., at p. 345, 149 Cal.Rptr. 275, 583 P.2d 1318.)

7.  One commentator suggests that Westbrook may be read as merely requiring an additional finding of competency at the time of waiving counsel rather than a different degree of competency. (Comment, Competence to Plead Guilty: A New Standard (1974) Duke L.Rev. 149, 165-166.)

8.  Sieling has provoked critical comment questioning its reliance on Westbrook in creating a class of “semi-competent” defendants able to stand trial though incompetent to waive trial in conjunction with negotiated pleas. (See Silten and Tullis Mental Competency in Criminal Proceedings (1977) 28 Hastings L.J. 1053, 1072-1073; see also Duke L.Rev., pp. 165-174, passim.)

9.  In denying defendant's motion, the court stated: “There is no suggestion whatsoever applying any standard of evidence that the court might devise, that he was volitionally impaired, or mentally incompetent to enter this plea of guilty․ [¶] As I say, you can apply any standard you want. I have seldom seen a plea of guilty that is better taken with less evidence of impairment of his intellectual capacity, or his free will, or his ability in a sense of insanity to enter a plea.”

10.  The pertinent colloquy is reported as follows:“THE DEFENDANT: The second question is, I am sure you do not have the time to go into any legal interpretation or anything. I tried—attempted to read SB 42. By the way, it was the District Attorney's crossbook, the three years, that is the question I had.THE COURT: That is the maximum.THE DEFENDANT: Well, they gave three different times.THE COURT: 16 months, two years and three years. The maximum is three.THE DEFENDANT: I know you are very busy. I know the case load is probably very heavy. They had words like enhancements.THE COURT: There are no enhancements charged. The priors will be stricken.THE DEFENDANT: But I still would be eligible for the three years?THE COURT: That is the maximum.THE DEFENDANT: The minimum would be 16 months.THE COURT: That is correct, the median is two. Does that answer all your questions? …THE COURT: Mr. Hazelaar, having these entire discussions in mind, what is your plea to the felony charge of grand theft?THE DEFENDANT: I plead guilty, Your Honor.THE COURT: Counsel concur in the plea?MISS STORY: Yes, Your Honor.”Nonetheless, a sentencing court would be well advised—in light of the rationale in Harvey—to inform a defendant that the facts relating to a prior felony conviction to be stricken pursuant to a plea bargain may be considered as a circumstance in aggravation justifying imposition of an upper term of imprisonment.

RACANELLI, Presiding Justice.

NEWSOM and GRODIN, JJ., concur.