PEOPLE v. VASQUEZ (1985)

The issue in this original proceeding is whether a criminally insane defendant, faced with an extended commitment (Pen.Code, § 1026.5, subd. (b)), may withdraw a five-year-old plea of not guilty by reason of insanity on the ground that he was not told of the possibility of extended commitment at the time he entered the plea.   We hold that he may not, and accordingly direct issuance of a peremptory writ of mandate.

In 1980, real party Filberto Vasquez was charged with arson after an incident in which he became angry with another resident of a motel over disrespect to a statute of Jesus Christ.   Vasquez apparently argued or fought with the other man, after which he climbed onto the roof of the motel and threw lit matches into the man's room.   Vasquez was found to be not guilty by reason of insanity (NGI) and committed to a state hospital for a term not to exceed six years, at that time the maximum term for arson.¹  Vasquez' maximum term of commitment has been computed to expire on September 6, 1985.

Penal Code section 1026.5, subdivision (b)(1), provides that an individual committed to a state hospital or other treatment facility pursuant to subdivision (a) of that section may be kept in custody beyond the end of his “maximum term of imprisonment” if it is demonstrated the individual “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.”

Penal Code section 1026.5, subdivision (b), sets forth the procedural guidelines which must be followed in order to keep such an individual confined beyond his “maximum term of commitment.”   Not later than 180 days prior to the end of the defendant's maximum term, the medical director of the facility in which he is confined must submit a report setting forth his or her opinion as to whether the defendant still “represents a substantial danger of physical harm to others.”   The prosecuting attorney, no later than 90 days prior to the end of the original commitment (unless good cause is shown), may file a petition for extended commitment with the superior court.   The superior court then conducts a hearing at which the defendant has the right to a jury and the right to be represented by counsel.   If the court or jury finds that the defendant represents a substantial danger of physical harm to others, the court “shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed.   Any such commitment shall be for an additional period of two years from the date of termination of the previous commitment.”  (Pen.Code, § 1026.5, subd. (b)(6).)

In accordance with these procedures, the medical director of Atascadero State Hospital submitted to the Los Angeles District Attorney a recommendation, with supporting report attached, that Vasquez be considered for extended commitment.²

The District Attorney filed a timely petition for extended commitment.   Prior to the date of trial, Vasquez' attorney filed a motion to set aside the original plea of not guilty by reason of insanity because “Mr. Vasquez was not properly advised that he could potentially spend the rest of his life in a state hospital.”   Subsequent to the original plea, it was held in People v. Lomboy, 116 Cal.App.3d 67, 171 Cal.Rptr. 812, that the possibility of lifetime commitment was a direct, rather than indirect or collateral consequence of a plea of not guilty by reason of insanity (see In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561), and the failure to give a proper advisement is prejudicial error.   In this case, Vasquez was told only that he could be confined for a maximum of six years.

Relying on Lomboy, the superior court granted Vasquez' motion to set aside his plea of not guilty by reason of insanity.   The court then entered a plea of guilty, the effect of which was to make Vasquez eligible for release upon the expiration of his six-year term, without the possibility of extended commitment pursuant to Penal Code section 1026.5.

Upon the People's motion, the Public Guardian was appointed to commence a conservatorship investigation (Welf. & Inst.Code, § 5300 et seq.) to determine whether Vasquez suffered from a “grave mental disability” requiring his continued confinement under a so-called “civil commitment.”   Of course, this was a less desirable alternative from the People's point of view, since the case would be removed from the purview of the District Attorney.

 The People then filed an appeal from the court's order setting aside the plea, and also filed the present petition out of a sense of urgency over Vasquez' impending release.³  We granted an alternative writ and ordered that Vasquez remain confined pending a determination on the within petition.   We now hold that the court erred in setting aside the original plea, because (1) Vasquez failed to raise the point on appeal and thus waived his right to challenge the plea five years after his commitment;  and (2) Vasquez did not personally withdraw his plea in open court.

I

In In re Ronald E., 19 Cal.3d 315, 137 Cal.Rptr. 781, 562 P.2d 684, the Supreme Court reaffirmed the general rule that the failure to diligently seek appellate review of an alleged error, absent a showing of circumstances which would justify such failure, precluded the petitioner from obtaining habeas corpus relief.  (In re Walker, 10 Cal.3d 764, 773, 112 Cal.Rptr. 177, 518 P.2d 1129.)

In Ronald E., a minor whose parole from the California Youth Authority had been revoked claimed that he had not been properly advised of his constitutional rights (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) with respect to several petitions filed pursuant to the Juvenile Court Law (Welf. & Inst.Code, § 602).   In response to petitioner's argument, the court stated:

“We are of the view ․ that petitioner is no longer entitled to raise on petition for the writ of habeas corpus the issue of improprieties in proceedings resulting in detention which he has accepted without timely challenge.   We can only assume that petitioner was not unduly distressed by detentions in juvenile hall, in foster homes and in parental custody and that he elected to waive any constitutional defect in such detentions.   Petitioner, moreover, fails to explain his neglect to challenge promptly the validity of any such commitments, the last of which was ordered in 1973 approximately four years after Boykin.   He does not assert, for instance, that his failure to challenge such claimed improprieties was predicated on a lack of knowledge of his constitutional rights at a time when he might have made a timely challenge.   Petitioner cannot now resort to habeas corpus proceedings as a substitute for his failure to take expeditious appeals, absent special circumstances constituting an excuse for such failure.  [Citation.]  In view of such lack of diligence on petitioner's part we conclude that he has waived the constitutional defects he now claims in the initial wardship proceedings and proceedings pursuant to the first and second supplemental petitions.   [Citation.]”  (19 Cal.3d at pp. 321–322, 137 Cal.Rptr. 781, 562 P.2d 684.)

This principle was reaffirmed by our Courts of Appeal in cases which followed Ronald E.

In People v. Davis, 103 Cal.App.3d 270, 163 Cal.Rptr. 22, the defendant attempted to collaterally attack a prior conviction for robbery, contending that the record failed to demonstrate on its face that when he entered a guilty plea to that offense he was advised or personally waived his constitutional rights.   In fact, the record was silent on that issue.   The Court of Appeal held that the defendant had waived the right to assert that issue for lack of diligence:

“Defendant has never challenged the prior on the grounds that he was not advised of or waived his rights.   His argument is restricted to the silence of the record.   The issues which defendant now attempts to raise could have been presented in his appeal from his prior conviction.  ‘He does not assert, for instance, that his failure to challenge such claimed improprieties was predicated on a lack of knowledge of his constitutional rights at a time when he might have made a timely challenge.’  (In re Ronald E. (1977) 19 Cal.3d 315, 322 [137 Cal.Rptr. 781, 562 P.2d 684] ․)  Just as he could not now resort to habeas corpus relief as a substitute for appeal absent special circumstance constituting excuse for such failure could have been, but was not, raised upon a timely appeal from the judgment of conviction [citation], he may not do so here for lack of due diligence.”  (103 Cal.App.3d at p. 276, 163 Cal.Rptr. 22.)

Similarly, in People v. Orozco, 114 Cal.App.3d 435, 170 Cal.Rptr. 604, the court, relying on Ronald E., held that the defendant's right to bring a motion to strike a prior conviction was foreclosed by his failure to show that he had attempted to attack or set aside the judgment of conviction in a timely manner, or that he had any excuse for failing to do so.  (114 Cal.App.3d at p. 446, 170 Cal.Rptr. 604.)

In People v. Gage, 126 Cal.App.3d 918, 179 Cal.Rptr. 171, another case involving a motion to strike a prior conviction, the court held that the burden was on the moving party to “demonstrate any special circumstances that excuse his failure to take an expeditious appeal.”  (126 Cal.App.3d at p. 924, 179 Cal.Rptr. 171.)   Since the defendant had failed to make such a showing, his right to collaterally attack the prior judgment or conviction was foreclosed.

 There is no question in this case but that Vasquez should have been, but was not, advised at the time he entered his NGI plea that he might be faced with a lifetime in a state hospital should he not regain his sanity.   We set forth the necessity for such a warning in People v. Vanley, 41 Cal.App.3d 846, 116 Cal.Rptr. 446:

“As a matter of common sense, any defendant who pleads guilty to a crime knows that some punishment will follow․  By contrast, a person who pleads not guilty by reason of insanity may figure that the plea is simply another way to ‘beat the rap.’   We can hardly impute to the average defendant enough legal sophistication to realize that the very evidence which establishes the truth of the plea can also confine him in a state hospital ․ for the rest of his life.”  (41 Cal.App.3d at p. 856, 116 Cal.Rptr. 446.)

Vanley was decided in 1974.   By the time Vasquez entered his NGI plea in 1980, the required admonition had long been a part of the litany of warnings given to defendants prior to entering such pleas.  People v. Lomboy, on which the court below relied, did not change, but merely clarified the law.   In fact, this warning was apparently so common that at the hearing on the motion to set aside the plea, Vasquez' counsel commented that he was “amazed that [Vasquez] wasn't advised of the additional consequences of the plea.”

Vasquez was represented by the office of the Public Defender both at the time he entered the NGI plea and on the motion to withdraw it.   However, the issue of the faulty plea was not raised in a timely appeal and in fact was not raised at all until the People petitioned for an extended commitment.   In his motion to set aside the NGI plea, Vasquez did not set forth any excuse for the delay but merely asserted that the motion should be granted because the required warning was not given.

Without any supporting authority, Vasquez attempts to distinguish Ronald E. and cases which follow on the basis that this is a direct challenge to the plea and not an attempt to collaterally attack a prior judgment of conviction.   However, the principles enunciated in Ronald E. and other cases are equally applicable here.   Vasquez' failure to timely challenge the validity of his plea precludes him from raising the issue now.   Vasquez has already served a period of commitment in a state hospital which might have been served in state prison had he been found guilty.   Vasquez' belated attempt to challenge his original plea suggests that he is trying to “have his cake and eat it too.”   We can only assume, as did the Supreme Court in Ronald E., that Vasquez was “not unduly distressed” with his original commitment to the state hospital.

II

The transcript of the hearing on the motion to withdraw the NGI plea also reveals that Vasquez did not personally withdraw his plea in open court.   The withdrawal is therefore ineffective.  (Johnson v. Superior Court, 121 Cal.App.3d 115, 175 Cal.Rptr. 272.)

Penal Code section 1018 provides, “Unless otherwise provided by law every plea must be entered or withdrawn by the defendant himself in open court.”   A defendant's personal concurrence in the entry of withdrawal of a plea is necessary to insure that the defendant “not be permitted to take certain fundamental steps without being made aware of their consequences and of the constitutional rights he is waiving by taking them.”  (People v. Vanley, supra, 41 Cal.App.3d at p. 857, 116 Cal.Rptr. 446.)

The transcript of the hearing on the motion to withdraw the NGI plea reveals a spirited discussion between the court, the Public Defender, and the District Attorney, without any participation whatsoever by Vasquez.   The transcript reflects that Vasquez was present in court, yet when all was said and done, and the motion to withdraw was granted, Vasquez was never advised of the consequences of withdrawing his plea nor was he asked whether he concurred in his attorney's motion to withdraw.   The record is silent as to whether Vasquez was advised that the withdrawal of his NGI plea would result in the entry of a guilty plea to the crime of arson, something which would have serious consequences in the future should Vasquez ever be set free to carry out his threats to commit more violent crimes.

III

 In his return to the alternative writ, Vasquez advances a theory that was not articulated in the court below.⁴  Relying on a recent case from Division Six of this District, In re Moss, 170 Cal.App.3d 16, 216 Cal.Rptr. 205, he contends that the NGI plea itself was invalid because his personal statement that he wished to enter the plea does not qualify as a “personal concurrence” in the plea.

Moss could not be more factually different from this case.   In Moss, the defendant, appearing in pro. per., signed a standard Boykin/Tahl waiver form.   The Court of Appeal found both the form and the manner in which the municipal court took the plea to be woefully deficient.   The form failed to list one of the counts on which the defendant elected to plea guilty and stated that the defendant was admitting prior convictions without listing those convictions on the form.   Despite the fact that Moss did “not demonstrate the capacity to represent himself,” the court made no effort to insure that Moss was aware of what constitutional rights he would be giving up by entering a guilty plea.   The court also took a guilty plea to a count that was not listed on the Boykin/Tahl form and took admissions of prior convictions in shotgun fashion despite the fact that the court was not entirely sure of which priors the defendant was admitting.   The court also enticed Moss to admit a probation violation without satisfying even minimal due process requirements (People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313).

The Moss court concluded that in view of Moss' doubtful ability to represent himself, the municipal court should have made a reasonable effort to insure that Moss “understood his predicament and was capable of representing himself effectively at all stages of the proceedings.”   The court held, among other things, that Moss' guilty pleas were invalid.

Vasquez attempts to analogize his situation to that of Mr. Moss by citing a portion of a hearing transcript, (not part of the record in this proceeding), in which Vasquez concurs in his counsel's wish to change Vasquez' plea from guilty to not guilty by reason of insanity.   However, this concurrence satisfies the requirement of Penal Code section 1018.   That section requires only “that a defendant make some expression in open court which authorizes or adopts a motion made on his behalf to withdraw his plea.”   (Johnson v. Superior Court, supra, 121 Cal.App.3d 115, 119, 175 Cal.Rptr. 272.)   Although this requirement was not met with respect to withdrawal of the NGI plea, it was met when Vasquez' original plea of guilty was changed to not guilty by reason of insanity.   The NGI plea is therefore valid.

Let a peremptory writ of mandate issue directing the respondent court to vacate its order of July 8, 1985, in Los Angeles Superior Court case Nos. A–352621 and M–254115, entitled People of the State of California v. Filberto Vasquez, granting the motion of defendant Filberto Vasquez to set aside his plea of not guilty by reason of insanity entered June 5, 1980, and enter a new and different order denying said motion.

The respondent court is further ordered to immediately hold a hearing on the People's petition for extended commitment pursuant to Penal Code section 1026.5.   The court notes that the People's motion was timely filed and would have been timely determined were it not for Vasquez' motion to withdraw the NGI plea.   The statutory time period set forth in Penal Code section 1026.5, subdivision (b)(2) is tolled from June 25, 1985, (the date the motion to withdraw the plea was filed) until the date this order becomes final.⁵

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.

FOOTNOTES

1.   Penal Code section 1026.5, subdivision (a), provides that the “maximum term of commitment” for an individual committed to a state hospital or other treatment facility is “the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted.”

2.   Some excerpts from the doctor's report indicate that his recommendation was well taken:“Since admission to ASH, [Vasquez] has been involved in numerous assaults on peers.   As the result of one such assault, he sustained a fractured jaw․  While recovering from the fractured jaw, he put his fist through a window and severed tendons, vessels and nerves in his right wrist.”“The patient was unable to complete psychological assessment.   On one occasion, he assaulted another patient during the testing session.   On another, he was assaultive just prior to testing and was therefore placed in seclusion.   He was also so delusional he was not able to focus on the various tests․”“The patient continues to be delusional and hallucinates auditorily much of the time.   He follows the direction of his ‘voices' and believes they are real․”“Mr. Vasquez continues to be unpredictably assaultive.   He gives no warnings of his attacks on others and claims he is following directions given by God and Moses․”“Mr. Vasquez said he heard voices inside his head.   He said it was ‘God.   Talks to me, tells me jokes, laughs at me,’ etc.   He said he hears a prophet telling him ‘many bad words.’   The prophet tells him he's crazy and to do many things such as hit others, hurt himself, etc.   He has delusions of persecution and grandiose delusions.   He thinks he is Jesus Christ and that he is being tortured as in the crucifixion.   He became very upset and said, ‘If God doesn't stop molesting me,’ he will ‘beat up God.’ ”

3.   Vasquez raises several procedural challenges to the present petition, all of which lack merit.   Similar challenges were rejected by Division Four of this court in People v. Superior Court (Doran), 170 Cal.App.3d 1255, 216 Cal.Rptr. 902.

4.   This was done in spite of the fact that Vasquez has taken the People to task for “raising new arguments.”

5.   By minute order dated August 26, 1985, the respondent court scheduled this matter for pretrial hearing September 3 and for jury trial September 9.   However, the court did not set aside its order vacating the NGI plea, as directed by our alternative writ.   We have therefore determined that the case is not moot despite the fact that it has been set for trial.

FEINERMAN, Presiding Justice.

ASHBY and HASTINGS, JJ., concur.