P. v. Duke

Filed 2/9/06 P. v. Duke CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant was charged with, among other crimes, first-degree murder (Pen. Code, § 187).^[1] Defendant initially pled not guilty and then entered an additional plea of not guilty by reason of insanity (NGI). Subsequently, defendant requested to withdraw his NGI plea, which the trial court granted.

While the jury was deliberating, defendant requested the trial court to reenter his NGI plea. He also filed a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court denied the request to reinstate the NGI plea and it also denied the Marsden motion.^[2]

The jury returned its verdicts and found defendant guilty of first-degree murder (§ 187) and found true that he used a deadly weapon (§§ 190.2, subd. (a)(17) & 12022, subd. (b)(1)) in the commission of this offense and during the course of a robbery (§§ 211 & 212.5) and a burglary (§§ 459-460). The jury also found defendant guilty of elder abuse with a deadly weapon. (§§ 368, subd. (b)(1) & 12022, subd. (b)(1).) Defendant was also convicted of residential robbery (§§ 211 & 212.5, subd. (a)) and residential burglary (§§ 459 & 460, subd. (a)).

The trial court sentenced defendant to life without the possibility of parole for murder, plus a one-year enhancement for use of a deadly weapon. The court imposed mid-term sentences on the other counts, which it stayed pursuant to section 654.

On appeal, defendant argues that the trial court erred in accepting his withdrawal of his NGI plea. He maintains that his withdrawal was not made voluntarily, knowingly, and intelligently because the court failed to instruct his counsel that it disagreed with counsel's understanding of People v. Guillebeau (1980) 107 Cal.App.3d 531 (Guillebeau) that he could later automatically reinstate his NGI plea. In addition, he contends the court should have granted his Marsden motion because his motion for a new trial should have been based on ineffective trial counsel and his current counsel could not make such an argument. We reject defendant's challenges and affirm the lower court's judgment.

BACKGROUND

The facts regarding the underlying crimes are only briefly set forth as the details are not relevant to the issues raised by this appeal. Between 9:00 a.m. and 10:00 a.m. on July 18, 2000, a housekeeper at Bay Park Retirement Home (Bay Park) entered the apartment of the 87-year-old victim. The apartment was in disarray and she alerted the manager.

Two police officers arrived and entered the apartment. The apartment had been ransacked and there were bloodstains . The officers forced open a trunk, which contained the victim's dead body underneath neatly folded clothes. An autopsy determined that the victim had died from blunt force trauma, and multiple stab wounds to her face and head. Investigators found one fingerprint from defendant's left index finger on a crumpled photograph in the apartment.

Two residents of Bay Park had seen defendant go to the victim's door on the weekend before her body was found. The landlord of defendant's apartment building lived at Bay Park. Prior to the finding of the victim's body, defendant had called his landlord and told her not to mail his receipt and asked if he could personally get a rent receipt from her.

On July 17, 2000, the police were called when defendant attacked his friend with a knife while the two men were installing an appliance in an apartment; the police arrested defendant. The clothing of defendant was tested and it contained the extremely rare DNA profile of the 87-year-old deceased victim. In addition, items belonging to the elderly victim were found at defendant's home. In an interview with the police officers, defendant admitted killing the victim, but maintained that he did not have any control over his mind.^[3]

An information filed on July 5, 2001, charged defendant with the following four felony counts: count 1, murder with allegations that defendant used a deadly weapon and committed the murder during the course of a robbery and a burglary (§§ 187, 190.2, subd. (a)(17) & 12022, subd. (b)(1); count 2, elder abuse with use of a deadly weapon (§§ 368, subd. (b)(1) & 12022, subd. (b)(1); count 3, residential robbery (§§ 211 & 212.5, subd. (a)); and, count 4, residential burglary (§§ 459 & 460, subd. (a)).

On July 6, 2001, defendant entered a not guilty plea. Subsequently, on March 24, 2003, he also entered an NGI plea. The trial court appointed two doctors pursuant to Evidence Code section 730 to examine defendant.

During the jury selection proceedings, the prosecutor expressed concern to the court that defendant was not fully advised of the consequences of an NGI plea. With the court's permission, the prosecutor explained those consequences. Defendant reaffirmed his NGI plea and defense counsel concurred in the plea.

The trial court stated that it intended to inform prospective jurors of the NGI plea to allow counsel to voir dire on that subject. Defense counsel objected. He maintained that jurors would be prejudiced against the defense regarding defendant's mental state in the guilt phase, which would adversely impact his chances for a conviction of manslaughter rather than homicide. The court responded that, on appeal, it could be argued that defendant was deprived of having an opportunity to have a â€