P. v. Purcaro

Filed 10/25/06 P. v. Purcaro CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant William Purcaro waived jury trial and the trial court found him guilty of first degree burglary, receiving stolen property, and attempted vehicle taking. The court also found true six prior convictions within the meaning of the three strikes law and two prior convictions for purposes of a five-year enhancement. Defendant was sentenced to 35 years to life, consisting of 25 years to life for the burglary plus two five-year enhancements. Sentences on the remaining counts were stayed.

Defendant’s sole contention on appeal is that the trial court abused its discretion and violated his right to due process in denying his motion to add a plea of not guilty by reason of insanity after rendition of the verdict. We shall affirm.

DISCUSSION^[1]

I

The Motion To Plead Not Guilty By

Reason Of Insanity Was Untimely

Penal Code section 1016 states in pertinent part: “A defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged; provided, that the court may for good cause shown allow a change of plea at any time before the commencement of the trial.” While case law has expanded a defendant’s right to request to change his plea until after the commencement of trial, where good cause is shown, “a motion to enter a plea of not guilty by reason of insanity is not timely when the motion is first made after the rendition of a jury verdict.” (People v. Hagerman (1985) 164 Cal.App.3d 967, 977.) As the court of appeal explained, to hold otherwise “would encourage defendants to gamble, waiting upon the outcome of a ‘guilt phase’ trial before entering their plea of not guilty by reason of insanity. The court and prosecution would be kept in the dark about defendant’s secret defense until after he had lost. A great deal of time would then necessarily be consumed in obtaining the requisite psychiatric reports, impaneling a new jury, and again presenting factual evidence pertaining to those crimes.” (Ibid.)

Arguably, allowing a defendant to change his plea after the rendition of the verdict may consume less time where, as here, the case is tried to the court as opposed to a jury. Nevertheless, there would still be considerable delay between the guilt and sanity phases of the trial. At a minimum, the People would have to obtain the requisite psychiatric reports and prepare for the sanity phase of the trial. Thus, contrary to defendant’s assertion, the “cost of the ‘late’ plea” is not “zero.”

Accordingly, we conclude defendant’s motion to add a plea of not guilty by reason of insanity, made after the rendition of the verdict, is procedurally barred.

II

There Was No Good Cause Supporting The Motion

Even were we to find defendant could make a timely motion to add a plea of not guilty by reason of insanity after the rendition of the verdict, the trial court did not abuse its discretion in concluding defendant’s motion was not supported by good cause.

In order to establish good cause to add a plea of not guilty by reason of insanity after the commencement of trial, a defendant must show he was diligent in seeking to change his plea. (People v. Montiel (1985) 39 Cal.3d 910, 921-923 (Montiel); People v. Lutman (1980) 104 Cal.App.3d 64, 68.) We review the trial court’s ruling for abuse of discretion. (Montiel, supra, at p. 923.)

Defendant was arrested on July 8, 2004, and was charged on July 13, 2004. On July 30, 2004, defense counsel declared doubt as to defendant’s competency, and the court suspended criminal proceedings and appointed two doctors to evaluate defendant. On January 7, 2005, defendant was found to be competent and criminal proceedings were reinstated. On March 28, 2005, the matter was continued at defense counsel’s request so that “a confidential psych evaluation” could be performed to determine whether “there may be a mental defense.” No mental defense was asserted prior to trial, which commenced on September 28, 2005.

On September 29, 2005, the trial court found defendant guilty of the charged offenses and found true the prior conviction allegations. After the court set a date for sentencing, defense counsel indicated defendant wanted to add “a second plea . . . of not guilty by reason of insanity.” The trial court denied the motion, explaining in part: “With respect to timeliness, it appears that there is nothing new that has been presented to the [c]ourt. The various reports all predate the trial and no new evidence, testimony, declarations, affidavits, anything of substance -- anything, period, have been brought forward. So based upon that record, the [c]ourt denies the motion.”

As the trial court noted, defendant failed to offer any explanation for his delay in seeking to add a not guilty by reason of insanity plea. Nor does the record suggest any basis for his delay. To the contrary, his mental state was placed at issue throughout the proceedings. Significantly, the defense was granted a continuance in March 2005 so that defendant could be evaluated to determine whether “there may be a mental defense.” Thus, the defense specifically considered the possibility of a “mental defense” months before the trial, and apparently decided not to pursue one at that time. There is no indication in the record the defense subsequently received information that gave it reason to question defendant’s sanity at the time he committed the offenses. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion as untimely. (Montiel, supra, 39 Cal.3d at pp. 920, 923 [trial court did not abuse its discretion in denying a motion to enter a plea of not guilty by reason of insanity on the third day of trial where none of the information cited by the defendant in support of the motion was new].)^[2]

III

This Court Must Follow People v. Montiel

Anticipating this result, defendant argues “the rule stated in Montiel is not based on a sensible analysis of the Penal Code” and suggests it should be changed to allow a defendant to add a not guilty by reason of insanity plea “any time before the court has set a post-trial hearing“ and to give the trial court “no discretion to refuse to accept such a plea.”^[3] As defendant acknowledges, we are bound to follow our Supreme Court’s decision in Montiel, supra, 39 Cal.3d at page 910. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He “advances the argument here in order to preserve it for review in the Supreme Court.”

IV

There Was No Due Process Violation

Finally, we reject defendant’s claim the trial court violated his right to due process under the Fourteenth Amendment to the United States Constitution by refusing to allow him to add a plea of not guilty by reason of insanity. While we agree with defendant’s general assertion that “a defendant has a right to enter a plea of insanity and have the issue of insanity tried,” he must exercise that right in a timely fashion. As previously discussed, he failed to do so.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] The facts of the offenses are irrelevant to the issue on appeal.

^[2] Defendant claims the trial court erroneously denied his motion on the ground there was an insufficient showing on the merits of his proposed defense. We need not decide whether the trial court erred in considering the merits of the defense in denying the motion because the court also considered defendant’s diligence in seeking to change his plea and concluded it was lacking. (See Montiel, supra, 39 Cal.3d at p. 922.)

^[3] As the People point out, even under the rule urged by defendant, defendant’s claim would fail because he did not move to change his plea until after the trial court set a date for sentencing.