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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of Los Angeles County, Respondent; Richard A. KEITH, Real Party in Interest.

B 019920.

Decided: May 28, 1986

Ira Reiner, Dist. Atty., and Donald J. Kaplan and Brent Riggs, Deputy Dist. Attys., for petitioner. No appearance for respondent. Potter & Cohen and Stephen E. Webber, Pasadena, for real party in interest.


This petition for a writ of mandate presents the issue whether a defendant considering entering a plea of not guilty by reason of insanity must be informed of the possibility that the People may later petition the court for an extension of commitment if he is not restored to sanity within the maximum period of commitment provided by Penal Code section 1026.5, subdivision (a)(1).

Real party in interest was arraigned on October 29, 1981, on charges of attempted murder, assault by means of force likely to cause great bodily injury, and failure to stop at a traffic accident.   These charges resulted from an allegation that real party, while driving his car, had deliberately run down a bicyclist.   Real party suffered from the delusion that other people steal the color from his clothes, causing their clothes to seem brighter than his own.   He also had a history of auditory hallucinations and paranoid delusions.   On February 1, 1982, he entered a plea of not guilty by reason of insanity, and the court found that at the time of commission of the offense he was not sane within the meaning of Penal Code section 1026, subdivision (a).   Real party was committed to the Department of Mental Health “until such time as his sanity is restored.   Confinement may not exceed four years, the maximum state prison sentence possible in this case.”

Real party remained hospitalized, upon the Department's recommendation and by court orders of April 27, 1983, July 24, 1984, and February 27, 1985.

On October 18, 1985, petitioner filed a Petition for Extended Commitment pursuant to Penal Code section 1026.5, subdivision (b).   This petition alleged that real party, “by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others.”   The petition was supported by a medical report showing, in part, that therapy for real party's delusions had progressed to the point that he “is able to say that these ideas are odd but continues to believe them.” 1

Real party denied the allegations of the petition, and after several continuances, the petition was set for jury trial on February 26, 1986.   Real party's counsel requested additional time to prepare, and the trial was reset for March 24, 1986.   On that date real party filed a motion to dismiss the petition, on the ground that his original plea was invalid because he was not advised of the possibility of a lifetime commitment as a consequence of his plea.

Respondent court granted the motion to dismiss on March 27, 1986, and, since real party had already spent over four years confined in a state hospital, ordered him released.   Upon the People's petition, we issued an alternative writ on April 16 and stayed real party's release pending resolution of this proceeding.

In informing real party of the consequences of his plea, the court receiving the plea explained that he would determine whether real party was not guilty by reason of insanity;  would determine whether he had recovered his sanity to the extent that he was no longer a danger to himself or others;  and would commit him to the Department of Mental Health “until such time as you have regained your sanity, good judgment, to the extent that some other disposition could be made.”   The court then explained that “under ordinary circumstances” a person found not guilty by reason of insanity and committed to the Department of Mental Health cannot be committed for a longer period than he could be confined in state prison for the offense, namely, four years.   He then added:  “It is possible that a person might remain in an institution for a longer period of time than that ․ and I believe it is also possible for the institution itself to conduct certain hearings and extend the possible period of hospitalization for limited increments of time.   How long this can go on, I do not know․”

Real party argues that his plea was invalid because he was not specifically informed that a lifetime of court extension proceedings was a possible consequence of a plea of not guilty by reason of insanity.   He relies upon People v. Lomboy (1981) 116 Cal.App.3d 67, 171 Cal.Rptr. 812.

In Lomboy, the court held that a person pleading not guilty by reason of insanity must be advised that “the possible maximum custodial consequence of a finding of not guilty by reason of insanity could greatly exceed that of a conviction” of the charged offense.  (People v. Lomboy, supra, 116 Cal.App.3d, at pp. 70–71, 171 Cal.Rptr. 812.)   Justice Cologne dissented, arguing in part that the possibility of extensions is a collateral, not a direct, consequence of the plea, and therefore admonishment about them is unnecessary under the rule of People v. Flores (1974) 38 Cal.App.3d 484, 113 Cal.Rptr. 272.

We agree with Justice Cologne's opinion.   As he explained, many events must occur before a commitment term can be extended under Penal Code section 1026.5.   The court must have found, after semiannual reviews throughout the maximum commitment period, that the defendant's sanity has not been restored (Pen.Code, § 1026, subds. (b), (e));  a new jury trial, with a full panoply of rights accorded, must be held, at which the People must prove beyond a reasonable doubt that the defendant at that time represents a substantial danger of physical harm to others, by reason of a mental disease, defect, or disorder.  (Pen.Code, § 1026.5, subd. (b).)  Even then the extension has a duration of no more than two years.  (Pen.Code, § 1026.5, subd. (b)(6).)   The “lifetime commitment” real party asserts he should have been warned of could result only if this procedure were followed every two years for the remainder of his life.

Real party also relies on People v. Vanley (1974) 41 Cal.App.3d 846, 856, 116 Cal.Rptr. 446, which states that “any defendant who pleads not guilty by reason of insanity [must] be advised that he thereby runs a risk of a possible lifetime commitment.”   This statement, however, went far beyond the facts of the case, and must therefore be regarded as dictum.   Unlike real party here, Vanley was not told anything at all about the confinement that might result from his plea;  and other, unrelated infirmities of a substantial nature contributed to the court's decision reversing his commitment to a state hospital.   In addition, the possibility of a lifetime commitment was much greater, and absolutely direct, at the time;  Vanley predated In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097, in which the Supreme Court invalidated, on constitutional grounds, the practice of keeping such defendants confined for indefinite periods without further judicial process after the initial confinement order.   This decision was followed by the enactment in 1979 of Penal Code section 1026.5, setting an upper limit on the initial confinement of a period equal to the maximum prison term that could follow conviction of the charges, and establishing a judicial procedure for extension of commitment.   In other words, the consequences of an insanity plea have changed substantially since the Vanley decision.

Real party was informed, in sufficient terms, of the possibility of extensions after four years' confinement.   This was sufficient under the circumstances to enable him to make a voluntary, informed decision on his plea.   To admonish this or any defendant that a direct consequence of his plea would be the possibility that he would spend the remainder of his life in mental institutions would surely deter many, if not most, from pleading not guilty by reason of insanity.   The result would be that many defendants would elect to go to prison instead, where they would be deprived of much-needed treatment for their psychological disorders.  (See In re Moye, supra, 22 Cal.3d 457, 468, 149 Cal.Rptr. 491, 584 P.2d 1097.)

We conclude that the plea was validly entered, and that respondent court abused its discretion in permitting real party to withdraw it and in dismissing the petition for extended commitment.

Let a peremptory writ of mandate issue, directing respondent court to vacate its order of March 27, 1986, granting real party's motion to dismiss the petition for extended commitment and for leave to withdraw his plea of not guilty by reason of insanity, and to enter a new and different order denying the motion.   The alternative writ, having served its purpose, is discharged.   The stay order entered by this court on April 16, 1986, shall remain in effect until this decision is final as to this court.  (Cal.Rules of Court, rule 24(a).)


1.   Penal Code section 1026.5 was enacted in 1979 as an urgency measure following the Supreme Court's decision in In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097, holding that the duration of institutionalization, following a finding of not guilty by reason of insanity, cannot constitutionally exceed the maximum prison term for the underlying offense.  Section 1026.5, subdivision (a) embodies this holding;  subdivision (b) created a new judicial procedure for extension of the mental health commitment beyond the maximum confinement period.   The procedure entails a trial, encompassing the procedural protections of criminal law—including the right to jury trial and to discovery.   The standard for extension is that the defendant “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.”   Upon such a finding, the court orders a two-year additional commitment “to the facility in which the patient was confined at the time the petition was filed.”   A person confined under such an extension order has the same right as a person subject to an initial section 1026 confinement to be placed on outpatient status, if the hospital director and community program director advise the court that the defendant would no longer be a danger to the health and safety of others and would benefit from outpatient status, and the court approves the recommendation.  (Pen.Code, §§ 1026.5, subd. (b)(7);  1600–ff.)   Successive two-year extension proceedings are possible.  (Id., § 1026.5, subd. (b)(8).)Apart from this extension procedure, and after the Moye decision, the only public remedy at the end of the initial confinement period would be a confinement under the Lanterman-Petris-Short Act, Welfare and Institutions Code sections 5000 ff., where the standard for a 180-day confinement is that the person has seriously threatened, attempted, or inflicted substantial physical harm on another person and presents, as a result of a mental disorder or defect, a demonstrated danger of inflicting substantial physical harm on others.  (Welf. & Inst. Code, § 5300.)

COMPTON, Acting Presiding Justice.

BEACH and GATES, JJ., concur.

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