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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Gregory DORAN, Real Party in Interest.

No. B015092.

Decided: August 12, 1985

Ira Reiner, Dist. Atty., Donald J. Kaplan and Brent Riggs, Deputy Dist. Attys., for petitioner. No appearance for respondent. Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Kenneth S. Star, and John Hamilton Scott, Deputy Public Defenders, for real party in interest.

This is a proceeding in mandate commenced by a People's petition seeking immediate review of a July 2, 1985 order by respondent setting aside a 1980 plea of “not guilty by reason of insanity” on the ground that defendant did not personally enter such plea.

We issued the alternative writ on the basis that prompt determination of the People's motion to extend defendant's resulting commitment to the State Hospital pursuant to Penal Code section 1026.5, subdivision (b), would possibly be foreclosed if not heard prior to August 14, 1985.  (See Pen.Code, § 1026.5, subd. (b)(4).)


The determinative issue is whether defendant at the proceedings of January 9, 1980, personally entered or adopted his counsel's entry of the plea of “not guilty by reason of insanity.”   Resolution of this issue will determine whether the People may seek extension of defendant's commitment to the State Hospital under the judgment resulting from the disputed plea.


The material history of the underlying proceedings is as follows:

In July 1979, a felony information was filed against defendant charging arson in violation of former Penal Code section 447a.   He was arraigned and entered a plea of not guilty.

After suspension of proceedings due to a determination that defendant was incompetent (under Pen.Code, §§ 1368 and 1370) to participate in the defense of his action, proceedings were resumed upon restoration of competency.

On January 9, 1980, the disputed plea of “not guilty by reason of insanity” was entered.   The transcript of those proceedings reveal, in pertinent part, as follows:

“THE COURT [Leslie W. Light, Judge]:  The defendant is present with counsel, Mr. Carney, and the People are represented by Mr. Sweeters.

“This matter is on calendar following the defendant's return from the Department of Mental Health, being deemed competent to now stand trial.

“Do you concur in that assessment, Mr. Carney?

“MR. CARNEY:  Yes, Your Honor, I do.

“THE COURT:  All right.   I don't think we've ever had a pretrial, have we?

“MR. CARNEY:  Not really.

“THE COURT:  Do you think there's any possible benefit to that?

“MR. CARNEY:  No, Your Honor.   At this time we would ask leave of court to enter an additional plea of not guilty by reason of insanity.

“THE COURT:  If I remember correctly, I think one of the reports we got in this case wasn't so good qualitywise, or is that another case?

“MR. CARNEY:  The only one I have a copy is Dr. Coodley's.   I remember reading Dr. Skrdla's and Dr. Moskowitz, but I really can't recall whether the quality of those was good or not.

“THE COURT:  Do you have any objection to reinstatement of any of the doctors that previously examined this defendant?

“MR. CARNEY:  No, Your Honor.   Probably be advantageous to do so.

“THE COURT:  All right.   Mr. Doran, do you understand entry of a plea of not guilty by reason of insanity, that that issue could very well be decided by a judge or jury;  if ultimately found to be true, you could spend a minimum of 90 days in custody or a maximum of life in the hospital?

“THE DEFENDANT:  Maximum of life?

“THE COURT:  That's right.

“THE DEFENDANT:  See, at the time of the trial I was doing—at the time of the crime I was on acid.

“THE COURT:  We are not litigating that, sir.   I just want you to know the legal consequences of a plea of not guilty by reason of insanity.   It could result in your being committed to a State Hospital for life.

“Do you understand that?

“THE DEFENDANT:  I understand that, yes.

“THE COURT:  Okay.   The court will order that the additional plea of not guilty by reason of insanity personally and knowingly entered by the defendant be accepted.”  (Emphasis added.)

By defendant's personal stipulation, the issue of guilt was submitted to the trial court on the basis of the preliminary hearing transcript.   On February 28, 1980, the court found defendant guilty as charged but not guilty by reason of insanity.

Defendant was ordered committed to the State Hospital for the term of five years, three months and 17 days, with a release date of June 27, 1985, absent an extended commitment pursuant to Penal Code section 1026.5, subdivision (b).

On or about March 25, 1985, the People filed a motion pursuant to section 1026.5, subdivision (b), to extend defendant's commitment on the ground the Director of the State Hospital had transmitted a letter recommending extended commitment due to his opinion that defendant's continued mental condition presents a substantial danger of physical harm to others.

Defendant obtained a continuance of the original June 14, 1985 hearing on the People's petition and waived time for that hearing to and including August 14.

On or about June 7, 1985, defendant noticed a motion to set aside the judgments of conviction and insanity on the ground that they were taken in violation of his constitutional guarantee against self-incrimination.   He asserted that there was no admonition or waiver of this right, as required by law, when he stipulated that the issue of guilt be submitted to the court on the basis of the preliminary hearing transcript.

This motion was denied on June 13, but the court suggested that there might be merit to a future motion to set aside based upon a lack of personal entry of the “not guilty by reason of insanity” plea on January 9, 1980.

Defendant filed a second motion to set aside the judgment, based this time on the absence of personal entry of the plea.

The People filed written opposition, and the motion was granted on July 2.

Respondent ruled that the statutory requirement, as construed by People v. Vanley (1974) 41 Cal.App.3d 846, 116 Cal.Rptr. 446, requires “a personal direct entry of the plea by the defendant himself.”   Accordingly, the responses of defendant to the trial court's inquiries on January 9, 1980, were deemed not to constitute the requisite personal entry or adoption of the plea on the record.

The People's petition was filed July 12.   We issued the alternative writ and placed the matter on a special July 26 calendar in view of the apparent urgency presented.


Before discussing the determinative issue raised by petitioner, it is necessary to dispose of the four technical objections raised in defendant's return.   The substantive issue of personal entry of the plea is discussed in Part II.


Defendant's Technical ObjectionsA. Standing to Seek Writ Relief.

 Defendant raises the preliminary technical objection that the People have no standing to seek mandate because they have no legal right to appeal the subject order, and the Legislature intends to bar the People in criminal actions from obtaining review by writ where they have no right of appeal.   (Pen.Code, § 1238.)

The argument advanced is that a People's appeal under Penal Code section 1238 could only be provided for by subdivision (a)(5) of that statute which allows a People's appeal from “An order made after judgment, affecting the substantial rights of the people.”   Defendant advances the sophistic reasoning that because the presently challenged order setting aside the prior plea and judgment places the parties in a situation they would have occupied had no judgment ever been entered, the challenged order may not be characterized as “an order made after judgment” within the contemplation of section 1238, subdivision (a)(5).   Defendant relies upon People v. Rivera (1984) 157 Cal.App.3d 494, 497, 203 Cal.Rptr. 722, which held that a People's appeal is not authorized by section 1238, subdivision (a)(5), where the trial court “recalled the previously ordered sentence and commitment order,” after remand by the appellate court, to resentence defendant under the procedural requirements of Penal Code section 1170, subdivision (f)(1).   The Rivera court reasoned that the resentencing was not an “order” but, instead, constituted the “judgment” and is not subject to a People's appeal as “an order made after judgment.”

Defendant's argument is without merit.   First, it is illogical to reason that an order actually made after judgment is nonexistent for purposes of appellate review simply because that post-judgment order vacates a plea upon which the prior judgment was rendered.

The second fatal defect in defendant's argument is that the Rivera opinion is distinguishable upon and limited to its peculiar facts.  Rivera dealt with the unique statutory procedure provided by Penal Code section 1170, subdivision (f)(1), which provides for recalling sentence and “resentenc[ing] the defendant in the same manner as if the defendant had not been sentenced previously, ․”  Rivera determined that under this statutory language, the resentencing which by definition constitutes the judgment, was the judgment in the action rather than a post-judgment order affecting the judgment.

The rationale of Rivera does not apply to the underlying circumstances where a post-judgment order issues to set aside a plea upon which the judgment was rendered.   While the judgment might not be an existent judgment after the order is entered, it does not follow that for purposes of section 1238, subdivision (a)(5), the order is not one made “after judgment, affecting the substantial rights of the people.”   Post-judgment orders granting a defendant additional conduct credits (People v. Minjarez (1980) 102 Cal.App.3d 309, 312, 162 Cal.Rptr. 292) and staying execution of sentence (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63) have been held subject to an appeal by the People under section 1238, subdivision (a)(5).   While these cases are not strictly analogous to the present case, where the judgment is vitiated except to the extent it pronounced sentence on the verdict of guilty, they illustrate the intent to give the People appellate review of orders made after entry of judgment that negatively impact on the People's interest in the fair and protective administration of justice.

 Although not placed at issue by defendant, we believe that the 1980 pronouncement of a verdict of guilty, with the related determination of “not guilty by reason of insanity,” and the resulting order for commitment to the State Hospital constitute a judgment for purposes of Penal Code section 1238, subdivision (a)(5).  Penal Code section 1237, which controls what matters may be appealed by defendants in criminal actions, was amended in 1968, to provide that with regard to the term “final judgment of conviction” as used therein “․ the commitment of a defendant for insanity ․ shall be deemed to be a final judgment within the meaning of this section.”   In contrast, Penal Code section 1238, which controls which matters may be appealed by the People in criminal actions, has always employed the general term “judgment” in its subdivision (a)(5).   This comparison suggests a legislative intent that a commitment of a defendant to the State Hospital is a “judgment” for purposes of that subdivision.

Because the People have a right of appeal under Penal Code section 1238, subdivision (a)(5), we need not reach the additional question of whether the People would nevertheless have standing to seek extraordinary writ relief under the doctrine that the trial court's order was an act in excess of its jurisdiction and thus an exception to the general rule that the absence of a right of the People to appeal precludes granting the relief by writ.

B. Appeal is Adequate Remedy.

Defendant raises a second preliminary objection to the propriety of relief by extraordinary writ by contending that if the People have a remedy by appeal that remedy is adequate and extraordinary relief is inappropriate.

 The answer to this is that issuance of the alternative writ is a conclusive determination that the remedy of appeal is inadequate.  (Brown v. Superior Court (1971) 5 Cal.3d 509, 515, 96 Cal.Rptr. 584, 487 P.2d 1224;  Rosemont v. Superior Court (1964) 60 Cal.2d 709, 36 Cal.Rptr. 439, 388 P.2d 671.)

C. Insufficient Record.

A third procedural objection raised in defendant's return is that the People's petition does not provide a copy of the July 2, 1985 proceeding wherein the 1980 judgment was ordered set aside.

This assertion is incorrect.   A copy of that transcript was lodged with the petition on July 12.   Apparently, the People did not serve defendant with a copy of that transcript when the petition was served.

D. Other Grounds For Setting Aside The Plea.

 A fourth preliminary point raised by defendant in his return is that irrespective of the correctness of the July 2, 1985 order setting aside the judgment, extraordinary relief is inappropriate here because defendant's 1980 guilty plea was what is commonly referred to as a “slow plea,” the issue of guilt on the basis of the preliminary hearing transcript, without a proper advisement and waiver of the right against self-incrimination.   He thus asserts that it would be a useless act for this court to compel reinstatement of the judgment because the judgment is constitutionally invalid on this other ground.

This contention must be rejected because the sole claim of error raised by the present petition is the trial court's ruling of July 2, 1985, that defendant did not personally enter the plea.   Defendant concedes that the trial court denied his original motion to set aside the judgment on the ground that he was not admonished of and did not personally waive his right against self-incrimination when he stipulated to submit the issue of guilt on the basis of the preliminary hearing transcript which contained only inculpatory evidence.   Defendant asserts that this earlier June 16, 1985 order is clearly wrong but does not state that any appellate review thereof has been sought.   Defendant was at liberty to seek such review of that prior separate order as of June 17, 1985, and apparently has not done so.   This failure to act reflects negatively upon the believed merit of defendant's claim of error and does not require this court to indulge in review of that prior order to determine whether the judgment was erroneously set aside on the grounds stated by the July 2 order under review.


Was The Plea Personally Entered By Defendant?

We finally reach the merits of whether the July 2, 1985 order correctly determined that defendant did not personally enter the plea of not guilty by reason of insanity on January 9, 1980.

The question is whether defendant personally entered the plea of “not guilty by reason of insanity.”   Given the circumstances of the entry of the plea set forth in the reporter's transcript of the January 9, 1980 proceedings, the question turns upon defendant's objective manifestation of intent.

Penal Code section 1018 requires that “[u]nless otherwise provided by law every plea must be entered or withdrawn by the defendant himself in open court.”   This requirement applies to pleas of not guilty by reason of insanity.  (People v. Vanley, supra, 41 Cal.App.3d at pp. 854–855, 116 Cal.Rptr. 446.)

Case law has construed the requirement of section 1018 as meaning that the defendant must either personally voice his entry of the plea or desire to enter a plea or he must voice his adoption or ratification of the plea entered by counsel in an unequivocal matter.   The rationale of this requirement is to serve the statutory purpose “to assure that the plea is the defendant's own.”   (People v. Martin (1964) 230 Cal.App.2d 62, 63, 40 Cal.Rptr. 700, Accord.   In re Martinez (1959) 52 Cal.2d 808, 815, 345 P.2d 449.)

In their petition, the People contend that defendant voiced his personal adoption of his counsel's statement of desire to enter the plea when he responded to the court's inquiries of his knowledge of the potential consequences of the plea and did not volunteer any objection to the plea.   The People urge that he thus entered the plea under the recognized “adoption” exception to the general rule of a direct personal statement of intent.  (People v. Hofferber (1977) 70 Cal.App.3d 265, 268, 137 Cal.Rptr. 115;  People v. Martin, supra, 230 Cal.App.2d at p. 64, 40 Cal.Rptr. 700;  People v. Reeves (1966) 64 Cal.2d 766, 772, 51 Cal.Rptr. 691, 415 P.2d 35.)   The People acknowledge that such adoption may not be inferred from defendant's silence.  (Johnson v. Superior Court (1981) 121 Cal.App.3d 115, 119, 175 Cal.Rptr. 272;  People v. Martin, supra, 230 Cal.App.2d at p. 64, 40 Cal.Rptr. 700.)

In response, defendant contends that the cases require a direct, express, oral affirmation of defendant's adoption of the plea indicated by his counsel.   He submits that the facts disclosed by the transcript of the plea do not meet this standard.   Instead, his statements show only recognition of the potential consequence of a life commitment on the type of plea being explained to him.   If he is correct, then the five year commitment term would appear to constitute his criminal sentence on the remaining verdict of guilty pronounced upon submission of the preliminary hearing transcript.

The only two reported cases which address similar situations where a defendant does not expressly voice entry of a plea or expressly voice adoption of the plea entered by counsel are People v. Vanley, supra, 41 Cal.App.3d 846, 116 Cal.Rptr. 446, and People v. Martin, supra, 230 Cal.App.2d 62, 40 Cal.Rptr. 700.   Neither of these cases is on all fours with the facts in the present case, but they do represent essentially all the cases in this area and provide some guidelines.

In People v. Vanley, supra, 41 Cal.App.3d 846, 116 Cal.Rptr. 446, defense counsel, in open court stated to the court at the outset of the proceedings:  “Your honor, the case is here on a 1368.   I believe, your Honor, also that a not guilty by reason of insanity plea has been entered at sometime during the proceedings;  however, if the record does not so reflect, such a plea will be entered at this time.   ¶   I have talked to my client, and also [the prosecutor], and there will be a submission on all issues, the 1368 issue, the guilt phase, and also the insanity phase will be a submission.   ¶   May the record show the defendant is in court with counsel.”   Counsel then advised the court that he had discussed with the defendant, and the defendant desired to submit the issue of guilt on the basis of the inculpatory preliminary hearing transcript.   The prosecutor then gave defendant the required admonishments in detail and took personal waivers of constitutional rights of the defendant relative to submission of the issue of guilt on the preliminary hearing transcript.   Both sides rested and waived argument.   The court found defendant guilty on one count and not guilty on the other.

The court then turned to the sanity phase and defense counsel advised the court of defendant's desire to submit that issue on the basis of the “doctors' reports.”   The prosecutor elicited defendant's personal waiver of the right to a jury trial relative to the sanity issue.

The Vanley court held that there had been no personal entry of the insanity plea by defendant because he did not “voice concurrence with the plea that had been entered by his attorney.   His cooperation with respect to the insanity plea was not requested until much later when it was pointed out to him that in submitting the issue of insanity on the doctor's reports, he would be waiving his right to a jury trial on that issue.”  (Id., at p. 855, 116 Cal.Rptr. 446;  emphasis added.)  Vanley determined that case law requires that the record reflect an express authorization or adoption of the plea so as to assure that the plea “is the defendant's own.”  (Id., at p. 855, 116 Cal.Rptr. 446.)

The second case involving somewhat similar facts is People v. Martin, supra, 230 Cal.App.2d 62, 40 Cal.Rptr. 700.   There a defendant's counsel entered a plea of guilty, in open court and in defendant's presence, to one count of robbery.   One week later, counsel advised the court that defendant wished to stipulate to the question of degree.   In so advising, counsel inquired of defendant by referring to “the offense to which the Defendant has entered a plea as of last week” and “the admitted offense.”   Defendant expressed his desire to enter the stipulation in open court by replying “Yes.”  (Id., at p. 63–64, 40 Cal.Rptr. 700.)

The Martin court held on appeal that defendant's affirmative response to his counsel's inquiry was an unequivocal adoption of the plea that had been entered by counsel.

Martin clearly acknowledges that a defendant may adopt the plea entered by counsel without directly stating “Yes, I adopt the plea of _.”

While it is logical to conclude that a defendant's stipulation to the degree of an “admitted offense” is an unequivocal adoption of that prior admission (e.g., Martin ) it does not similarly follow that acknowledgement of understanding, as to the potential consequences of a plea is an unequivocal adoption of the plea.

 The People contend that the judge who took the plea as to defendant's personal entry of the plea made a finding of fact that is not subject to reevaluation by a court five years later.   However, the question is one of law turning upon the objective transcript.  (People v. Vanley, supra;  People v. Martin, supra.)

 Comparing the facts of Vanley, supra, and Martin, supra, we must conclude that defendant Doran did not voice a personal entry of the “not guilty by reason of insanity” plea.   His participation in the plea is at least as insufficient as that found deficient in Vanley.   The circumstances of Doran's plea taking are materially distinguishable from those in Martin where the defendant expressly answered “Yes” to his counsel's inquiry.


The Untimeliness of Defendant's Motion.

 Defendant is nevertheless not entitled to the setting aside of the January 1980 plea because under a recent decision of the Supreme Court, his request for relief is untimely.

In People v. Sumstine (1984) 36 Cal.3d 909, 919–922, 206 Cal.Rptr. 707, 687 P.2d 904, the Supreme Court determined that convicted defendants are not entitled to habeas corpus relief on collateral challenges to their convictions after waiting for substantial periods (eight years in Sumstine ) after their time for appeal has lapsed.  Sumstine distinguished the rule of timeliness as between habeas petitions seeking to vacate the judgment under which the defendant is still serving his sentence and motions to strike the allegation of a prior completed prison term prior to trial in a subsequent prosecution on a new offense.   Petitions seeking the former relief are barred by stricter time requirements because of the resulting prejudice to the People in attempting to refile the charges and garner witnesses and evidence for retrial several years after the original judgment of conviction.   In contrast, a motion to strike a prior conviction that resulted from a plea unconstitutionally taken has the effect only of preventing an enhancement of punishment upon conviction of the new offense;  the defendant does not escape the full measure of punishment imposed upon his prior conviction.

Defendant Doran's situation of potential extended commitment pursuant to the recently initiated Penal Code section 1026.5 proceedings is not precisely analogous to either the vacation of his original commitment for all purposes (i.e., he does not escape any of the original maximum commitment time imposed on his 1980 “not guilty by reason of insanity” plea) or to merely strike the enhancement potential of his original commitment in setting punishment for a new offense.   However, we conclude that the guidelines set forth in Sumstine encompass the situation now occupied by defendant, and that he is accordingly not entitled to the relief requested in his March 1985 motion because that motion was not made in a timely manner upon a showing of excusable delay.

Defendant was represented by the same legal office from the time of the plea in January 1980 until present.   At no time prior to the filing by the People of the petition to extend the commitment did defendant make any challenge to that plea or the submission of the guilt issue on the preliminary hearing transcript.   He is not in a position, on the present showing, to collaterally attack the basis of his original commitment at this time.

Defendant contends that irrespective of Sumstine, supra, and In re Ronald E. (1977) 19 Cal.3d 315, 321–323, 137 Cal.Rptr. 781, 562 P.2d 684, barring long belated collateral attacks upon judgments resulting in original commitment, the earlier decision in In re J.D.W.B. (1970) 8 Cal.App.3d 103, 109–110, 87 Cal.Rptr. 178, creates an exception to the general rule that survives the more recent Supreme Court decisions.

Specifically, defendant asserts that J.D.W.B., supra, authorizes a defendant's long delay in collaterally attacking a judgment of conviction if that challenge is a defensive response to some new proceeding by the People to extend the original commitment period.   In this exclusive context, defendant contends, the defendant may always attempt to defeat the new effort to extend his confinement period by demonstrating that the very basis of his confinement is invalid.

However, defendant's argument must be rejected in view of the fact that J.D.W.B. derived its “defensive use” exception directly from In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913.   The more liberal rule enunciated in In re Woods was expressly replaced by the stricter rule of People v. Coffey (1967) 67 Cal.2d 204, 215, 60 Cal.Rptr. 457, 430 P.2d 15.   The vitality of the Coffey rule as to timeliness, and the demise of the In re Woods rule was expressly emphasized in Sumstine, 36 Cal.3d at page 921, 206 Cal.Rptr. 707, 687 P.2d 904, in its delineation of the two sets of timeliness rules described in the discussion above.

Accordingly, whatever application J.D.W.B. might have had to the present issue of timeliness has been abrogated by Sumstine.


Conclusion and Order

Let a peremptory writ of mandate issue directing respondent to vacate its order of July 2, 1985, in Los Angeles Superior Court case No. A 351660, entitled People v. Gregory Doran, granting the defendant's motion to set aside his January 9, 1980 plea of “not guilty by reason of insanity” and placing off-calendar the trial on the People's application for extension of defendant's commitment pursuant to Penal Code section 1026.5, and to make a new and different order denying defendant's motion and setting trial on the People's section 1026.5 application for a date prior to August 14, 1985.

It is further ordered that pursuant to California Rules of Court, rule 24(c), this order shall become final as to this court immediately upon its filing in order to prevent mootness and the frustration of the relief granted herein.

WOODS, Presiding Justice.

McCLOSKY and ARGUELLES, JJ., concur.