P. v. Gregory

Filed 4/5/07 P. v. Gregory CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Elisabeth Krant, Judge.

Phillip J. Cline, District Attorney, Don H. Gallian and Carol B. Turner, Assistant District Attorneys, and Barbara J. Greaver, Deputy, for Plaintiff and Appellant.

Eric S. Multhaup, for Defendant and Respondent.

-ooOoo-

PROCEDURAL HISTORY

On September 5, 1993, respondent Edwin Gregory (Edwin) shot and killed Jack Burrow.^[1] He subsequently pled not guilty and not guilty by reason of insanity (NGI) to a charge of murder (Pen. Code,^[2] 187) and denied personally using a firearm in commission of the offense ( 12022.5, subd. (a)). Edwin later was found incompetent to stand trial and was committed to Atascadero State Hospital. On May 16, 1994, following restoration of his competency, he pled no contest to second degree murder with the use of a firearm, and submitted the issue of his sanity to a jury. Three psychiatrists Drs. Terrell, Velosa, and Mills testified as expert witnesses for the defense. All opined that Edwin suffered from schizophrenia manifested most significantly by a paranoid delusion that persons acting through Burrow (notably Frank Lisney, a business contact in Russia) were intent on killing Edwin and his family. All three concluded Edwin was suffering from the disorder when he shot Burrow, such that he was incapable of appreciating the wrongfulness of his actions and thus was legally insane. Psychologist and law professor Steven Morse appeared for the prosecution. Morse questioned whether Edwins behavior prior to the shooting could be considered evidence of incipient schizophrenia; instead, he suggested its interpretation as such was the product of retrospective bias. In Morses opinion, Edwin was not manifestly psychotic until after he was jailed. Morse declined to express an opinion about whether, at the time of the shooting, Edwin was legally sane in the sense that he understood the difference between right and wrong; however, he did testify that Edwin was not so detached from reality at the time as to be considered legally insane.

The jury found Edwin to have been sane at the time of the offense. Consequently, he was sentenced to 15 years to life in prison for the murder, plus 3 years for the enhancement, with a recommendation that he be allowed to serve his sentence at the state hospital at Atascadero. We affirmed the conviction on direct appeal. (People v.Gregory (Nov. 1, 1995, F021997) [nonpub. opn.] (Gregory I).)

Following two unsuccessful petitions, the instant habeas corpus action was filed in Tulare County Superior Court case No. 53294 on April 12, 2000. Following issuance of an order to show cause and an evidentiary hearing, the trial court granted relief on the theory that Edwins no contest plea was not knowing, intelligent, and voluntary, in that he was not advised of, and could not appreciate, the possible defenses he was waiving, specifically so-called imperfect self-defense.^[3] Accordingly, that court vacated the judgment of conviction and sentence, and ordered the no contest plea set aside. The People appealed and this court reversed, holding that, as a matter of law, a claim of imperfect self-defense cannot be based on delusion alone; hence, such a claim was not available to Edwin, and so a lack of advice thereon, either to Edwin or his parents, could not have rendered his plea unknowing, unintelligent, or involuntary. We recognized, however, that other bases for relief were presented to the trial court, but not ruled upon. Accordingly, we remanded the matter for further proceedings, to permit determination of those grounds. (People v.Gregory (Sept. 4, 2002, F037202) review granted Nov. 26, 2002, S110450, review dism., Jul. 27, 2005 (Gregory II).)^[4]

On November 26, 2002, the California Supreme Court granted review in Gregory II, S110450, and subsequently deferred further action pending consideration and disposition of the appeal in another matter. While the cause was still pending before the California Supreme Court, the trial court held a further evidentiary hearing on Edwins petition and again granted relief. The trial court set aside the no contest plea and sanity verdict, found the evidence insufficient to prove malice aforethought, ruled the People could only retry Edwin on a charge of manslaughter, and directed them to file an appropriately amended information if they chose retrial. Upon the Peoples petition for writ of mandate and/or prohibition, we concluded that the trial court lacked jurisdiction to enter any further order on the merits in Tulare County Superior Court case No. 53294, while the cause was pending before the California Supreme Court and until remittitur issued. (People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324 (Gregory III).

The California Supreme Court dismissed review in Gregory II on July 27, 2005, S110450. With the case again properly before it, the trial court conducted further proceedings on Edwins petition, granted the writ, and deemed the plea of no contest withdrawn. Once again the People appeal. For the reasons that follow, we will reverse and remand the matter to the trial court with directions to reinstate Edwins no contest plea and the judgment and sentence.

THE PRESENT PROCEEDINGS

In accordance with Judge Morans order for evidentiary hearing and this courts remand order in Gregory II, Edwin asked the trial court to consider the three contributing factors to the involuntariness of the plea mental illness, medication, and mis-advice [sic], the latter encompassing mis-advice [sic] from defense counsel as to available defenses and mis-advice [sic] from family members as to the consequences of the plea. He subsequently moved for judgment on those issues, in the course of which he expressly stated he was not claiming he was incompetent, but instead that he did not actually understand the significance and consequences of the plea. The People opposed any grant of relief, arguing that Edwin was competent because he had the ability to understand the plea being entered, and that no external influence overcame his ability otherwise to understand. The People framed Edwins contention as being that he lacked the capacity to appreciate his plea, notwithstanding his competence to enter it. In part, the People claimed that, by advancing arguments about the combined effects of his mental illness and medication, Edwin was improperly conflating the distinction between competence and actual appreciation, and attempting to place evidence of mental incapacity before the court despite his concession of competence. In response, Edwin countered that the People were misstating his claim, which was that he did not in fact understand the nature and consequences of his plea. As stated by Edwin, his claim was that, as Dr. Terrell testified, he was marginally competent, but under the specific circumstances of this case, did not actually understand the nature and consequences of the plea.

The trial court considered all of the evidence that was presented during the 2000 evidentiary hearing, including the transcripts of the testimony that was given then. We synopsize the evidence considered at that hearing as follows.

Edwin was confined at Atascadero, due to his incompetence to stand trial, from October 25, 1993, to January 24, 1994. During that period, Edwin related to his mother that, at the time of the shooting, he believed Frank Lisney was directing the killing of Edwin and his father, and the destruction of their family, through Burrow and the Russians. Edwin believed he had to kill Burrow or Burrow was going to kill him.

In November 1993, Edwins parents, Dr. and Mrs. Gregory, met with Deputy District Attorney Bartlett. They understood him to say that, if two psychiatrists opined Edwin was insane at the time of the crime, Edwin would go to Atascadero NGI.^[5] The Gregorys communicated this belief to John Smurr, Edwins attorney, and they also told Edwin himself many times between their meeting with Bartlett and the April 29, 1994, pretrial conference. Smurr subsequently told Mrs. Gregory that he would negotiate to close the case before the pretrial conference if he had the doctors reports, which Mrs. Gregory understood to mean that if two psychiatrists said Edwin was insane, Smurr will negotiate to go through the procedures of Edwin getting his NGI. Mrs. Gregory told Edwin this.

By April 29, 1994, reports had been received from Drs. Pitts and Velosa, stating that Edwin was insane at the time of the shooting. On that day, Dr. and Mrs. Gregory waited in the court hallway while the pretrial conference was held in chambers. Afterward, Smurr said the prosecutor was insisting on a jury trial on the sanity issue, but he told the Gregorys not to worry because the prosecutor had no experts, and he assured them the case would settle at the eleventh hour. He also said, however, that Edwin would have to plead guilty to second degree murder.

While Mrs. Gregory was aware the People had the right to insist on a jury trial, she did not tell Edwin about the trial because she still believed, based on Smurrs assurances, that the case would settle at the last minute. In addition, Edwin was very fragile and she did not want to scare him.^[6] On May 2, 1994, Mrs. Gregory told Edwin he would have to plead guilty to second degree murder. She explained to him that this was a matter of formality, that we have to get through this stage for [Edwin] to get his NGI. Dr. Gregory also continued to tell Edwin that if doctors reported he was insane, he would be found not guilty by reason of insanity.

On May 14, 1994, Mrs. Gregory explained to Edwin the procedure for the entry of his plea. She felt Edwin understood, as he asked appropriate questions. When she spoke to him the next day, however, he sounded confused, nervous, and scared.

On May 16, prior to entering his plea, Edwin met with Smurr and Edwins cousin, Attorney Gregory Altounian, a civil law practitioner. Altounian did not recall Smurr telling Edwin the maximum time he could spend in a locked institution if a jury found him sane, although he did tell Edwin that if he were found sane at the time of the offense, he would go to prison instead of a mental hospital. Altounian did not hear Smurr advise Edwin of any defenses; instead, Smurr simply told Edwin that he was going to plead guilty to second degree murder that morning, and then they were going to go to the sanity phase and put on the witnesses. Similarly, although Smurr told Edwin that the judge was going to take a waiver of his constitutional rights, he did nothing to explain the various rights Edwin would be giving up, or to make sure Edwin understood them. Based on his lifelong familiarity with Edwin and Edwins demeanor and lack of response, Altounian did not believe that Edwin understood the information Smurr conveyed to him. After the meeting, Altounian told Smurr that in his opinion, Edwin had no clue as to what Smurr was telling him. Smurr did not respond, but continued into the courtroom.

Dr. and Mrs. Gregory, Edwins brother Eric, and Altounian all felt, based on how Edwin acted in court during the change of plea proceedings, that Edwin did not understand what was occurring. For instance, when the judge asked him questions, Edwin did not respond promptly, but frequently asked the judge for clarification or to repeat what he had said. On a number of occasions, Edwin looked to Smurr, then answered affirmatively after Smurr nodded or whispered something to him. The next day, Edwin appeared to Mrs. Gregory to be totally confused as to what had happened the day before. No one mentioned anything to Smurr or the court because they wanted to get through the plea and into the sanity trial, as all of the doctors were saying Edwin was insane.

Edwin testified that while he was at Atascadero following his arrest, he understood there was a criminal charge pending against him, and he probably knew it was murder. He also understood there were different possible outcomes of the criminal charge, including not guilty by reason of insanity. Edwin understood that if he were to be found not guilty by reason of insanity, he would be sent to Atascadero and would be given better medical treatment there than at a prison. He also understood that if he were just found guilty of the charge, he would be sent to prison. While he was at Atascadero, Edwins parents told him that if two doctors were to find him insane at the time of the crime, he would go to Atascadero. They continued to tell him this after he was returned to Tulare County to stand trial.

Edwin returned from Atascadero in fairly good shape, mentally. When he was housed in the infirmary at the jail upon his return, however, he started having ups and downs. He had tremendous problems retaining information. When asked if he recalled anyone explaining to him, outside of court before the date of the plea, about the process of him pleading guilty and going on to an insanity trial, Edwin responded, Well, I remember my parents trying to explain to me something, but what mostly I remember is me not understanding what they were trying to say. [] Mostly I do remember them saying that I had to get past this next phase as a formality. Thats what I understood from my parents. And anything else was not clear to me.

Edwin recalled meeting with Smurr prior to the change of plea proceedings, but was unable to make sense out of what Smurr was telling him, as it seemed Smurr was not speaking English.^[7] Edwin did not ask Smurr for clarification because he believed, from what his parents had told him, that the plea was a formality so he would be found not guilty by reason of insanity. He was concerned that if he told Smurr his difficulty, Smurr would call off the court proceedings. When he entered the courtroom, Edwin still felt confused and did not know what was to happen. As the judge began to explain to him the rights he was giving up by entering a plea, he finally realized that he was to plead guilty to second degree murder. When the judge began asking him questions, Edwin initially was honest and said he did not understand. He stopped asking for clarification, however, because he remembered his parents telling him that he needed to get past this stage as a formality, and he thought he would not be able to do that if he kept telling the judge that he did not understand the questions. Edwin then answered the questions in a manner he thought would be appropriate, even though he did not understand them. Edwin believed he would be found not guilty by reason of insanity if he pled guilty. When the judge informed him of the maximum punishment for second degree murder, it did not sink in. Edwin did not truly understand the punishment he was facing until he was sentenced.

Edwin testified that before he entered his plea, no one told him that there had never been a jury verdict of insanity in Tulare County, or that his chances of being found insane by a jury were slim to none. He had no recollection of Smurr discussing with him any alternative to second degree murder or any basis for manslaughter. Had someone told him how low his chances were of obtaining an insanity verdict at a jury trial, and about the alternative possibility of manslaughter, he would not have pled guilty to second degree murder.

Smurr testified that he began representing Edwin shortly after the homicide. From January 1994 on, Smurrs focus, with the agreement of Edwin and his parents, was on developing an insanity defense. Edwins parents were concerned that Edwin be hospitalized and not go to prison. Smurr retained Drs. Mills and Terrell to assist him in developing the insanity defense. By the spring of 1994, all of the court-appointed and retained doctors had concluded Edwin was insane at the time of the killing, and Smurr was relatively optimistic about the prospects for a disposition of the case, as the prosecutor had not presented him with any evidence to the contrary.

At the April 29, 1994, pretrial conference, Judge Moran agreed with Smurrs theory that Edwin was not guilty by reason of insanity, but alerted Smurr to the fact that a Tulare County jury had never accepted such psychiatric testimony. Smurr was certain he told Edwins parents about the purported propensity for Tulare County juries not to return insanity verdicts, and was also sure he told Edwin, although he had no independent recollection of relating to Edwin what occurred in chambers at the pretrial conference. He was not sure Edwin was able to process what the information would mean as far as his fate was concerned. During this period of time, Smurr was concerned Edwin would overload, and he was always sort of tiptoeing around because [he] didnt want [Edwin] to decompensate. While Smurr would tell Edwin certain things, he never wanted to overwhelm Edwin with too much information because, upon reflection, Edwin did not process like a normal human being.

Between the pretrial conference and plea, Smurr expressed optimism to the family about the outcome of the sanity trial. After the pretrial conference, Smurr reached an agreement with the prosecutor about Edwin pleading to second degree murder. Smurr was sure he conveyed this information to Edwins parents. He was also sure he immediately told Edwin, but did not discuss it with him in earnest until the date of the plea.

On the day of the plea, Smurr told Edwin what would occur and addressed the rights that were to be articulated in the courtroom, but, looking back, he was not satisfied that [Edwin] processed them. Edwin appeared to be medicated. In retrospect, Smurr would have had a psychiatrist with him to assure that Edwin had processed the information and knew he was waiving certain rights. At the time of the plea, however, he did not feel it was necessary. Although, on the day of the plea, Smurr believed it to be in Edwins best interest to enter a guilty plea to second degree murder, Smurr could not presently assure the trial court that on May 16, 1994, Edwin actually understood his legal options, the upside and downsides of the different possibilities and [that Edwin] independently concluded that second degree murder plea was the best thing for him to do. Smurr did feel, however, that Edwin most likely was competent to stand trial.

Dr. Terrell examined Edwin on several occasions. From his October 9, 1993, examination, Terrell formed the opinion that, at the time of the shooting, Edwin believed Frank Lisney was directed by the devil and meant to commit considerable harm to Edwin and his parents, and that Lisney could channel himself through Jack Burrow. As Edwin was acting in what he sincerely believed, due to his paranoid and psychotic mental disorder, to be self-defense, Terrell opined that Edwin did not fully comprehend the wrongfulness of his action and qualified for a plea of not guilty by reason of insanity.

Terrell interviewed Edwin on May 15, 1994, in preparation for Terrells sanity trial testimony. He was unaware Edwin was going to plead guilty the next day, and was not there to determine competency to enter a plea. Edwin informed Terrell that he was on a daily regimen of four medications, which Terrell was aware could cause side effects, such as confusion, either alone or in combination with each other. Based on his interview with Edwin (which revealed abnormalities in his thought processes and evidence of remaining mental illness, as well as thought blocking, which is very common in people who are severely mentally ill with psychotic disorders such as schizophrenia), the transcript of the plea proceedings, and his observation of Edwin testifying at the evidentiary hearing, Terrell had serious doubts about whether Edwin understood the consequences of his plea on May 16, 1994, although Terrell did feel Edwin was competent to stand trial. Terrell felt Edwin was at least basically competent to go to trial for something such as whether he was insane, but not to enter into a complex plea bargain that would have required him to have a greater degree of insight and understanding. Given Edwins mental state on May 15, which in all likelihood would not have substantially improved by May 16, it would have been virtually impossible for Edwin to understand and adequately comprehend the possible sentences attached to first and second degree murder and manslaughter that he faced depending on whether he pled guilty or went to trial and was convicted, or adequately to understand his various options had they been explained to him. Terrell believed the only way to explain Edwins serious comprehension problems was his mental illness or the medications he was on or a combination of both. It appeared to Terrell from the transcript of the change of plea proceedings that Edwins mental illness was worse that day than on May 15, and that he was quite impaired at that time.

Dr. Mills, who examined Edwin on May 11, 1994, testified that on that date, Edwin appeared significantly ill. In Millss opinion, he was toxic on one or a combination of medications, or he was confused because of his psychosis, or both. Mills found Edwins thought process to be very remarkable for blocking. If Mills had been asked his opinion on that date of Edwins competence to stand trial, he would have found him marginally competent because Edwin, being intelligent, knew the various courtroom personnel and the crime with which he was charged, and he seemed willing to cooperate with his attorney. He did not seem to have much beyond that, however, and frequently seemed fairly confused during the evaluation.

In Millss opinion, Edwin did not understand the consequences of his plea.^[8] Mills felt Edwin may have placed undue emphasis on the information given him by his parents, because people with paranoid schizophrenia tend to trust very few people and, hence, the people they do trust have a disproportionately large effect on their opinions and beliefs. Ideally, Edwin should have been asked on several occasions, including immediately before he was going to change his plea, what his alternatives were, which one he had chosen, and why. This would have tested his ability to reason through to a particular outcome and would have demonstrated whether he actually knew and understood the consequences of entering a no contest plea. Mills believed it was possible that, had Edwins parents gone over with him, on a daily basis, information about the consequences of his plea, and had they not viewed it as a formality to get to the NGI, Edwin might have learned the necessary information. At the time he changed his plea, however, Edwins mental state was suspect; he was suffering from thought process disruptions that included memory retention difficulty, thought blocking, and confusion. The questions asked by the court during the change of plea proceedings would have been appropriate for most defendants. For Edwin, however, those questions were inadequate because they allowed him, with apparent prompting from his attorney, to answer yes and no without reflecting his degree of confusion.

The People presented testimony from Dr. Estner, a forensic psychiatrist who had reviewed numerous materials in connection with this case. Estners reading of Terrells notes indicated to him that Terrell and Edwin discussed the fact there was going to be a no contest plea, and that the charge would be dropped from first degree murder to second degree murder.^[9] The notes also indicated Edwin had said a jury would be picked the day after the interview to decide whether he was insane at the time, suggesting he was aware the outcome on the sanity issue was uncertain. The notes further showed Edwin was aware that, if found NGI, he would go to a state hospital until he got well, while if found guilty, he would go to prison. In Estners opinion, this covered the issue of competency to enter a plea. In addition, the transcript of the change of plea proceedings showed that Edwins answers indicated he understood he was in court, that a judge was asking him questions, and that he could agree or disagree. His asking of questions could be taken as a symptom of confusion or mental illness, but it could also indicate someone who was truly competent to enter the plea, and who asked for clarification if he did not understand.

The People also presented testimony from Kenneth Clark, a psychiatric social worker with the Tulare County Health and Human Services Agency who provided mental health services to Edwin at the jail. Clarks notes of his contacts with Edwin, which occurred between January 31, 1994, and May 25, 1994, showed Edwin to have been fairly rational and well-oriented, even during the time in early March when he was having a reaction to his medication.

In its ruling giving rise to the instant appeal, the trial court applied the standard of clear and convincing evidence. It stated:

In reviewing Judge Morans order for the evidentiary hearing, the Court finds that the Judge found a basis for the hearing on more than one point. First, that based on the declarations of Dr. Terrell and Dr. Mills that the Defendants plea was not voluntary and, secondly, due to mental illness, medication and misadvice with respect to his plea of insanity, the Defendant was unaware of the consequences of his plea. []  []

And the People have argued that the Court should not consider any arguments concerning ineffective assistance of counsel. This Court rejects that argument, for there is evidence that permits this Court into believing that this is exactly the situation in this matter.

The Court finds most disturbing in reviewing the evidence was Mr. Smurrs assertion during the plea that after having spent an hour with the Defendant prior to his plea and with the assistance of Mr. Altounian that he, Mr. Smurr, reviewed each and every element that the Court articulated in the courtroom and that the Defendant was making a knowing and intelligent waiver of his rights.

During the hearing in 2000, Mr. Smurr testified that the Defendant seemed medicated and never, quote, never adopted wholeheartedly what was being said. He goes on to state that he prompted and encouraged him during the plea, and that he could not assure the Court the Defendant understood everything.

Mr. Altounians testimony was that he actually told Mr. Smurr that the Defendant had no clue as to what was being said. The Defendant just stared at Mr. Smurr during that one-hour time period prior to the hearing and there was no discussion regarding consequences, no discussion of defenses, no discussion regarding parole consequences.

Mr. Altounian noted that Judge Kalashian during the taking of the plea ultimately looked at Mr. Smurr rather than the Defendant; Mr. Smurr then looked at the Defendant and whispered into his ear when at this point the Defendant would answer Judge Kalashians questions.

The most compelling evidence presented at the hearing on the writ of habeas corpus was that of Dr. Terrell. Dr. Terrell adequately and convincingly testified that just prior to the date of the Defendants no contest plea, the Defendant presented himself as confused and depressed. He described how the side effects of the improperly given medication could have had an effect on his mental functioning.

He further testified that people like Mr. Gregory who suffer from schizophrenia usually have preserved intelligence, but that their perceptions of reality are distorted. He testified that the Defendant was still showing evidence of mental illness and was experiencing thought-blocking. All of the evidence regarding the thought-blocking symptomatology is relevant to the issue before this Court.

The doctor went on to state that after he read the transcript of the plea that the reason the Defendant needed further explanation of what the judge was saying was most likely due to his medications.

Most significantly, the doctor reaches the conclusion and testifies as to his professional opinion that the Defendant could not have voluntarily entered his plea, and that the Defendant due to his schizophrenia just went along with the proceedings, and that there was great compromise in the Defendants ability to comprehend and understand the questions from Judge Kalashian. And this issue is further substantiated by what was already discussed concerning the demeanor of the Defendant and the exchange between Judge Kalashian, Mr. Smurr and Mr. Smurr during the taking of the plea. []  []

Dr. Mills further provided the Court with evidence that portrayed the Defendant as significantly ill, confused and that his thought process was remarkable for thought-blocking.

Dr. Mills saw the Defendant the day after the plea noting confusion, distrust and paranoia.^[[10]] Dr. Mills testified that he believed that the Defendant was simply compliant during the plea and did what the attorney instructed him to do.

He further went on to testify that the questions asked during the plea were inadequate for this Defendant, because the questions allowed him to simply answer yes or no; in order to determine whether a person with a history of psychosis makes a knowing and intelligent waiver, this essentially means that more needs to be done.

Let me state here that this Court did not find the testimony of Dr. Estner to render any value to the Peoples position. What the jury found at the time of the sanity trial is of no consequence to this Court. What Judge Silveira found or what he thought is further of no consequence to this Court, and this Court did not evaluate those findings in rendering this decision. The substantial amount of testimony in what the Defendant knew or didnt know in Atascadero is of little importance or consequence to this Court, including what family members may or may not have shared with him. The Petitioners argument with respect to promises made by the District Attorneys Office also adds little to no value to this case.

For the purposes of this motion, what the Defendant understood or didnt understand on the day of the plea is most paramount. In reading the transcript of the plea proceedings, it sounded familiar to the many many pleas this Court has taken. Reading that transcript without the benefit of the substantial other evidence by itself would cause the Court to deny the writ. It is a good reminder to this Court and all attorneys representing Defendants with mental health issues that it is never wise to seek a quick resolution to what a Court or counsel believe may be in a Defendants best interest.

This Court is convinced that had Judge Kalashian had any information before him that this Court has had the benefit to have and read that he would have not proceeded in taking this plea in the fashion in which it was taken. There is more than sufficient evidence to compel this Court to grant the writ and the plea of no contest is withdrawn.

DISCUSSION

Preliminarily, we note some confusion concerning the nature of these proceedings. At all times, Edwin has proceeded by way of a petition for writ of habeas corpus. In Gregory II, we remarked that the trial court and parties had treated the matter as a standard motion to withdraw the plea or set aside the judgment, and that we would do the same. (Gregory II, supra, F037202.) This comment did not somehow transform the underlying proceedings; it simply acknowledged that the trial court and parties had proceeded upon the assumption that the usual requirements for withdrawal of a plea (viz., that mistake, ignorance, duress, fraud, or any other factor overcoming the exercise of free judgment constitutes good cause for withdrawal if established by clear and convincing evidence ( 1018; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208)) had to be shown, and that we would do the same without delving into the technicalities of habeas corpus versus, for example, coram nobis (see People v. Totari (2003) 111 Cal.App.4th 1202, 1206; People v.Castaneda, supra, at pp. 1618-1619). Since the matter is again before us following the trial courts grant of habeas relief, the Peoples appeal is authorized by section 1506, not, as they claim, section 1238.

[H]abeas corpus is a collateral proceeding that attacks a presumptively valid judgment. For purposes of collateral attack, all presumptions favor the truth, accuracy and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. (People v. Ault (2004) 33 Cal.4th 1250, 1268, italics omitted.) Accordingly, [a] habeas corpus petitioner bears the burden of establishing that the judgment under which he or she is restrained is invalid. [Citation.] To do so, he or she must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus. [Citation.] [Citation.] (In re Cudjo (1999) 20 Cal.4th 673, 687.)

Where, as here, a trial court has granted a petition for writ of habeas corpus following an evidentiary hearing and the People have appealed, this court applies the substantial evidence test to the trial courts resolution of pure questions of fact and independently reviews questions of law, such as the selection of the controlling rule. With respect to mixed questions of law and fact, this court reviews the trial courts application of law to fact under a deferential clearly erroneous standard if the inquiry is predominantly factual. But when the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, this courts review is de novo. [Citations.] (In re Collins (2001) 86 Cal.App.4th 1176, 1181; see also In re Pratt (1999) 69 Cal.App.4th 1294, 1314.)

Whether Edwin was advised of possible defenses to the charge or the consequences of a no contest plea, and, to the extent resolution turns on credibility determinations, whether Edwin actually understood something, are questions of fact. Whether his plea was knowing, intelligent, and voluntary in the absence of such advice or understanding, however, is a mixed question of law and fact that is predominantly legal, since the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values . (In re Pratt, supra, 69 Cal.App.4th at p. 1314.)^[11] Accordingly, we accept the trial courts resolution of evidentiary conflicts when supported by substantial evidence, independently assess the uncontradicted facts, and independently apply the law to the facts. (See In re Carpenter (1995) 9 Cal.4th 634, 646-647.)^[12]

The longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Citations.] (Hill v. Lockhart (1985) 474 U.S. 52, 56, citing North Carolina v. Alford (1970) 400 U.S. 25, 31; Boykin v. Alabama (1969) 395 U.S. 238, 242.)^[13] Waivers of constitutional rights [given up in the process of entering such a plea] not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. (Brady v. United States (1970) 397 U.S. 742, 748, fn. omitted.) What is at stake for an accused facing imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. (Boykin v. Alabama, supra, 395 U.S. at pp. 243-244.) In short, the pertinent inquiry is whether the record affirmatively shows the admission was voluntary and intelligent under the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 360; People v. Howard (1992) 1 Cal.4th 1132, 1175.)

As the trial court here acknowledged, if only the transcript of the change of plea proceedings was considered, there would be little doubt that Edwins no contest plea was valid. Edwin gave appropriate answers to the courts questions and asked for clarification when he did not understand. Although he may have been prompted or encouraged by defense counsel, such a situation is not unusual. Moreover, experienced defense counsel expressed the opinion that Edwin had the capacity, at that juncture, to knowingly and intelligently waive his rights. (See People v. Ravaux (2006) 142 Cal.App.4th 914, 917-918.)^[14]

Unlike the usual case, however, here the trial court was presented with the argument and supporting evidence that, despite the seeming regularity of the change of plea proceedings, Edwin did not understand the nature and consequences of his plea, hence his no contest plea was not knowingly and intelligently made. At argument, appellants counsel expressly acknowledged that Edwin was competent and that he was not arguing he was not competent. His argument was specifically limited to the question of whether the plea was knowing and intelligent. The fundamental problem with that argument, as we see it, is that given the nature of the evidence presented here, Edwins lack of actual understanding cannot be separated from the issue of his competence.

A criminal defendant may not be tried unless he is competent [citation], and he may not plead guilty unless he does so competently and intelligently [citations]. (Godinez v. Moran (1993) 509 U.S. 389 (Godinez).) In Dusky v. United States (1960) 362 U.S. 402 (Dusky), the United States Supreme Court stated that, for a finding of competency to stand trial, it is not enough that the defendant [is] oriented to time and place and [has] some recollection of events, but that the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational as well as factual understanding of the proceedings against him. (Ibid.; accord, Drope v. Missouri (1975) 420 U.S. 162, 172.) California statutory law defines an accused as mentally incompetent if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. ( 1367, subd. (a).) The standards, although not matching word for word, are identical. (People v. Jablonski (2006) 37 Cal.4th 774, 808; see People v. Ramos (2004) 34 Cal.4th 494, 507.)

In People v. Wharton (1991) 53 Cal.3d 522, the California Supreme Court rejected the notion that a higher degree of competence is required to plead guilty than merely to stand trial. (Id. at pp. 583-584.) In Godinez, supra, the United States Supreme Court agreed that the competency standard for pleading guilty or waiving the right to counsel is no higher than the competency standard for standing trial. (Godinez, supra, 509 U.S. at p. 391.) Reiterating the Dusky benchmark as the appropriate one for competence to stand trial (id. at p. 396), the court stated that, while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. This being so, we can conceive of no basis for demanding a higher level of competence for those defendants who choose to plead guilty. If the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty. (Id. at pp. 398-399.)

The court went on to explain, however, that [a] finding that a defendant is competent to stand trial is not all that is necessary before he may be permitted to plead guilty . In addition to determining that a defendant who seeks to plead guilty is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. [Citations.] In this sense there is a heightened standard for pleading guilty , but it is not a heightened standard of competence.^[15] (Godinez, supra, 509 U.S. at pp. 400-401, fn. omitted.) In a footnote, the court elaborated: The focus of a competency inquiry is the defendants mental capacity; the question is whether he has the ability to understand the proceedings. See Drope v. Missouri, supra, [420 U.S. at p. 171] (defendant is incompetent if he lacks the capacity to understand the nature and object of the proceedings against him) (emphasis added). The purpose of the knowing and voluntary inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. See Faretta v. California [(1975) 422 U.S. 806, 835] (defendant waiving counsel must be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open) [citation]; Boykin v. Alabama, [supra, 395 U.S. at p. 244] (defendant pleading guilty must have a full understanding of what the plea connotes and of its consequence). (Godinez, supra, 509 U.S. at p. 401, fn. 12.)

We read Godinezs two-part inquiry (Godinez, supra, 509 U.S. at p. 401) as requiring, first, that in order to be competent, a defendant must be capable of entering a plea that is valid. In other words, he or she cannot merely be oriented to time and place and have some recollection of events, but must have a present ability to consult with his or her attorney with a reasonable degree of rational understanding, and have a rational and factual understanding of the proceedings. He or she must be capable of comprehending the rights being given up and of understanding the proceedings, and of making a choice among the alternative courses of action open to him or her with a reasonable degree of rationality. In short, the defendant must have a sufficient level of intellectual functioning to be able to understand what is being said, both by his or her attorney and by the court, and to process that information.^[16] Second, the defendant must not only have the capacity or ability to understand, he or she must actually understand what he or she is doing and the significance and consequences of that decision.

We can envision a situation in which a defendant, although competent since he or she was capable of understanding and processing information, nevertheless did not actually understand because, for example, one of the rights being waived or consequences of the plea being entered was incorrectly explained or stated or there was some other physical infirmity such as deafness or linguistic disability that required accommodation which was not made. However, there is no accommodation proffered in the argument before us except further explanation. We can also envision circumstances where an otherwise normally competent defendant has, as a result of ingestion of medication, become temporarily unable to understand and process information. However, the latter circumstance would make the defendant incompetent if he was being asked to enter a plea while under the influence of such medication. Appropriately, such a defendant would in fact be incompetent for purposes of entering a plea and the accommodation would be to delay the plea until the effects of the medication diminished. Again, this is not the argument before us.

Here, all the evidence proffered by Edwin was offered to prove that Edwin did not actually understand because he could not understand: He was incapable of understanding, and thus of entering a knowing and voluntary plea, because he could not process what was being said to him and could not retain information, almost certainly because of his mental illness, the effects of his medication, or both. On appeal, counsel argues that even though competent he was significantly impaired, and yet Edwin would have been able, somehow, to see through a fog of medication and understand, for purposes of a knowing and intelligent waiver, if some further explanation had been given. Yet, no explanation is proffered as to what that explanation could be if, indeed, Edwins capacity was as limited as he argues. Although the evidence could be argued as demonstrating Edwins lack of actual understanding, it afforded no basis upon which to differentiate capacity to understand competence from actual appreciation. Stated another way, the evidence did not support a finding that Edwin was capable of understanding and knowingly, intelligently, and voluntarily entering a no contest plea, and yet did not actually understand for reasons not amounting to incompetence.^[17] The evidence established that Edwin was intelligent, and it is virtually certain that, had he been called upon to make a decision about entering a plea at a time when he was as well as he was when he testified at the evidentiary hearing, he would have been capable of entering a valid plea. However, the evidence presented is only relevant to the argument and conclusion that, if indeed Edwin lacked actual understanding at the time he entered his no contest plea, his level of mental illness, the effects of his medication, or a combination of both, were such that no amount of explanation by his counsel, the court, a psychiatrist, or anyone else would have rendered Edwin capable of entering a valid plea because he was not adequately processing language or information.

In our view, the consequence of the argument has one of two effects: If Edwin was competent, then necessarily he had the capacity to enter a valid plea and he limits the issues accordingly; if Edwin could not understand what was being said to him or process it, then he was not competent and he likewise places a different perspective on the issues.

Edwin has repeatedly and expressly refused to place his competence in dispute, both in the trial court and before this court. We may speculate that this concession was made because the psychiatric evidence available is that he was in fact competent, therefore limiting the argument that properly could be made to whether he actually understood. It does appear, on the record before us, that the expert testimony confused the issues of competency to enter a plea and the level of understanding to enter a plea. Nevertheless, Edwins attempt to parse the standards of competence and the concepts of knowing and intelligent waiver into distinct aspects that utilize the same standards to reach different results cannot be logically reconciled. Edwin was either competent or he was not. The effectiveness of his argument necessarily rests upon us concluding that while competent at the time he entered his plea, he did not make a knowing and intelligent waiver because he was not competent at the time he entered his plea. Edwins argument does not carve out any legally credible middle ground. To conclude on this evidence that Edwin did not understand or process what was said to him, but was capable of doing precisely that, is inherently inconsistent and would be legal sophistry. Edwins argument would place a trial court in the untenable position of never being able to achieve a level of confidence in his understanding, which is the precise purpose of a competency proceeding under section 1368.

At argument, counsel was pressed for an explanation of what could have been done to achieve a knowing and intelligent waiver given his evidentiary allegations. Counsel simply responded that more of an explanation could have been made; more probing by the trial judge could have been done to make sure Edwin was clearly understanding what was being said. Such an argument necessarily assumes there is some basis to conclude that a further explanation would have been availing. By that argument, we are relegated to the issue of what more could have been done, assuming Edwin was competent. In hindsight, other judges are being asked to accept the credibility of the evidence presented and to conclude that an adequate plea could have been taken, but just was not.

In our view, the appropriate analysis of this case requires us to look to the issues in dispute and utilize standards of analysis consistent with evaluating those issues in dispute. We have carefully reviewed Edwins plea. While he personally did indicate that he did not understand certain questions, the trial court made specific efforts to ensure that he understood and after further explanations elicited specific concessions from Edwin that he understood. Not only was there absolutely nothing in the plea record to indicate Edwin did not understand the rights he was waiving or the nature of the process, his attorney specifically was asked about his competency and stated he was satisfied for purposes of entering the plea. Accepting the concession of competence, we look at the issue of whether the explanation was legally inadequate, whether there was a failure to give a specific waiver, or whether there was some basis to conclude Edwin did not understand other than competency to understand. The difficulty is that Edwins evidence can only be utilized to support a conclusion that he was not competent at the time of the plea. This was not found by the trial court, was expressly not argued and has been expressly denied by Edwin, and is not proffered as a basis for finding the change of plea proceeding to be invalid. No evidence has been presented that any misrepresentation was made to Edwin, expressly or impliedly, or that he was unable to understand the English language in a way that did not render him incompetent, or that the explanations were so perfunctory as not to adequately inform.

In our view, Judge Kalashian, an experienced jurist, made every effort to ensure that an adequate plea was taken. He clearly was aware of the issue of mental competency, and made appropriate and express inquiries. Defense counsel is a highly experienced criminal lawyer who expressly represented that in his view his client was competent to enter a plea. In argument before this court, Edwins counsel specifically acknowledged that he was not attacking Judge Kalashians actions, but rather was placing before the court matters Judge Kalashian could not see concerning whether Edwin really understood. While we appreciate that under certain circumstances such a distinction might be drawn, the argument as to its applicability here is interdicted by the concession made both in front of the trial court and us. There is no real question that Edwin suffered from significant mental infirmities. However, Edwin has made a legal choice which we accept, while at the same time urging an analysis we cannot accept based on his legal choice.

What is clearly evident in this case is that there was a reasonably understandable expectation by defense counsel that Edwin would be found not guilty by reason of insanity. Still, defense counsel negotiated a plea to a lesser offense than might otherwise have been argued from the evidence in order to limit liability in the event that Edwin was found sane. Expectations aside, a jury rejected the conclusion that Edwin was insane, thus leaving his plea of no contest to second degree murder and its consequences. Necessarily then, Edwins concession that he was competent to enter a plea means there is no basis, on the record before us, upon which to find his plea was not knowing, intelligent, and voluntary if he was indeed competent. Edwins argument simply becomes that, even though at the time of the plea he said he understood what he was being asked, and even though he expressly waived the rights that were explained, he did not really understand what was being explained and did not really understand that he was giving up certain rights, but at the same time he was legally capable of understanding; he was simply not mentally capable of understanding without further efforts that expressly call into question his ability to understand.

In other words, the argument is that Edwin had the technical legal ability to plead guilty, but his mental ability to understand because of his mental infirmity and ingestion of drugs was so impaired that significant efforts would have to have been made to ensure that he understood what he was doing. As we see it, that distinction effectively mandates a conclusion he was not competent. Edwins argument creates a distinction that cannot viably exist legally. As argued by the People and, as noted at the time of the most recent hearing, the concession of competency necessarily limited the basis of attack on the plea. In our view, given the concession of competency, much, if not all, of the evidence offered by Edwin had minimal, if any, relevance to the issue of a knowing and intelligent plea. It did have significant relevance to the issue of competency, which was not in dispute.^[18] Given that Edwin was competent to enter a plea, the record does not support the conclusion that the plea was not knowing and intelligent for purposes of understanding or waiver. The trial courts contrary conclusion can only be reconciled by blurring the distinctions drawn by Edwins concession. Accordingly, the trial court erred by granting the writ and deeming the plea withdrawn.^[19]

DISPOSITION

The judgment (order granting the writ and deeming the plea withdrawn) is reversed. The matter is remanded to the trial court with directions to reinstate Edwins no contest plea and the judgment and sentence. Edwins request for sanctions is denied.

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Ardaiz, P.J.

WE CONCUR:

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Dawson, J.

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Kane, J.

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^[1] For sake of clarity, we refer to Edwin by his first name. No disrespect is intended.

^[2] All statutory references are to the Penal Code unless otherwise stated.

^[3] Although we refer generically to the trial court, we recognize that the Honorable Joseph A. Kalashian presided over the change of plea proceedings and sanity trial; the Honorable John P. Moran issued the order to show cause in Tulare County Superior Court case No. 53294; the Honorable William Silveira, Jr., presided over the writ proceedings that were the subject of our prior opinions; and, following his disqualification by the People pursuant to Code of Civil Pr