People v. Gregory

• Decision Date: 04 September 2002
• Docket Number: No. F037202.,F037202.
• Citation: 124 Cal.Rptr.2d 776,101 Cal.App.4th 1149
• Parties: The PEOPLE, Plaintiff and Appellant, v. Edwin Mark GREGORY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

124 Cal.Rptr.2d 776

101 Cal.App.4th 1149

The PEOPLE, Plaintiff and Appellant, v. Edwin Mark GREGORY, Defendant and Respondent.

No. F037202.

Court of Appeal, Fifth District.

September 4, 2002.

Review Granted November 26, 2002.

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

Eric S. Multhaup, Mill Valley, for Defendant and Respondent.

OPINION

ARDAIZ, P.J.

In September 1993, respondent Edwin Mark Gregory (Edwin) pled not guilty and not guilty by reason of insanity (NGI) to a charge that, on September 5, 1993, he murdered Jack Burrow (Pen.Code, § 187).¹ He also denied personally using a firearm in commission of the offense (§ 12022.5, subd. (a)). Edwin was subsequently found incompetent to stand trial and committed to Atascadero State Hospital. Following restoration of his competence, he pled no contest to second degree murder and admitted the gun use allegation. A jury subsequently found him legally sane at the time of the offense. He was sentenced to 15 years to life in prison for the murder, plus 3 years for the firearm use enhancement, with a recommendation that he be allowed to serve his sentence at Atascadero. We affirmed the conviction on direct appeal. (People v. Gregory (Nov. 1, 1995, F021997 [nonpub. opn.].))²

Following two unsuccessful petitions, the instant habeas action was filed in superior court on April 12, 2000. An order to show cause issued and an evidentiary hearing was held. On November 20, 2000, the petition was granted on the basis that Edwin's no contest plea was not knowing, intelligent, and voluntary. The trial court found Edwin was not advised of, and could not appreciate, the possible defenses he was waiving, specifically so-called imperfect self-defense. Accordingly, the trial court vacated the judgment of conviction and sentence, and ordered Edwin's no contest plea set aside. This appeal, which is authorized by section 1506, followed. As we shall explain, we disagree with the trial court and reverse.

BACKGROUND

I. The 1994 Trial

Evidence elicited at the 1994 trial on Edwin's sanity showed that at the conclusion of a meeting on September 5, 1993, Edwin shot and killed Jack Burrow, a business associate of Edwin and his father, without provocation. In a rambling statement given to police that evening, Edwin complained of Burrow's double-dealing business practices, which Edwin said had created "tremendous amounts of pressure" that were "killing" Edwin and destroying the relationship between his parents. Edwin claimed to have shot Burrow to protect himself and his family, because he could no longer handle the pressure.

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 Edwin's 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 Morse's 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.

II. The Instant Petition

The instant petition for writ of habeas corpus asserted 10 separate claims. The Honorable John P. Moran issued an order to show cause on two of them and subsequently ordered an evidentiary hearing on the claim that Edwin's no contest plea was involuntary.³ Judge Moran found a reasonable likelihood the plea was involuntary because, due to Edwin's mental illness, medication, and misadvice, he was not aware of the consequences of his plea and thought he would be placed in a mental hospital and not sent to prison. Judge Moran found the renewed petition proper, despite the lapse of time since Edwin's conviction and the prior unsuccessful petitions, based on the presentation of important additional evidence. Judge Moran's order concluded: "Further, the court is troubled by the fact that the plea bargain was of no real benefit to the petitioner— that he would be convicted of first degree murder under the circumstances—and there was strong evidence negating second degree murder, evidence that he acted under the delusion that he was in imminent peril."

The People subsequently disqualified Judge Moran for bias, and the Honorable William Silveira, Jr., presided at the evidentiary hearing.

Evidence presented at that hearing showed that while confined at Atascadero due to his incompetence to stand trial, Edwin related to his mother that at the time of the shooting, he was extremely frightened and confused. He believed that Frank Lisney was directing, through Burrow and through the Russians, that Edwin and his father be killed and their family destroyed. Edwin believed he had to kill Burrow or Burrow was going to kill him.

While Edwin was at Atascadero, his parents, Dr. and Mrs. Gregory, met with Deputy District Attorney Bartlett. Although Bartlett denied agreeing to any such stipulation, Edwin's parents understood him to say that if two psychiatrists opined that Edwin was insane at the time of the crime, Edwin would "go to Atascadero NGI." The Gregorys communicated this belief to John Smurr, Edwin's 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 told them that the prosecutor was insisting on a jury trial on the sanity issue, but Smurr did not see how it could go to trial with so many experts saying Edwin was insane. Smurr 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 told them that Edwin would have to plead guilty to second degree murder, however. When Mrs. Gregory asked why second degree, Smurr told her about a case "with someone with a hair spray can that was mistaken for a gun or something."⁴ This caused Mrs. Gregory to recall Edwin asking a question, while he was at Atascadero, concerning whether Burrow was wearing a bulletproof vest. Mrs. Gregory informed Smurr that Frank Lisney had arranged for Edwin to visit a gun factory in Russia, and that Edwin had seen bulletproof vests manufactured. She further related that Edwin had mentioned that Burrow was carrying his briefcase, and that Edwin was afraid he had a gun in it.

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 Smurr's assurances, that the case would settle at the last minute. In addition, Edwin was "very fragile" and she did not want to scare him. Dr. Gregory also continued to tell Edwin that if doctors reported he was insane, he would be found not guilty by reason of insanity. Dr. Gregory recalled Smurr telling him that Edwin would plead to second degree murder, after which they would proceed to the sanity phase. Dr. Gregory conveyed this information to Edwin sometime between April 29 and May 16. Dr. Gregory believed it was in Edwin's best interest to plead guilty to second degree murder. 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."

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. The next day, however, she spoke to him by telephone. He sounded confused, nervous, and scared.

On May 16, prior to entering his plea, Edwin met with Smurr and Edwin's 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, such as imperfect self-defense. 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, Edwin's 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. 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.

Dr. Gregory was aware...