People v. McIntyre

• Decision Date: 07 April 1989
• Docket Number: Nos. B029374,B038117,s. B029374
• Citation: 209 Cal.App.3d 548,257 Cal.Rptr. 271
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael McINTYRE, Defendant and Appellant. In re Michael McINTYRE, on Habeas Corpus.

Page 271

257 Cal.Rptr. 271

209 Cal.App.3d 548

The PEOPLE, Plaintiff and Respondent, v. Michael McINTYRE, Defendant and Appellant In re Michael McINTYRE, on Habeas Corpus.

Nos. B029374, B038117.

Court of Appeal, Second District, Division 7, California.

April 7, 1989.

As Modified May 2, 1989.

Review Denied July 20, 1989.

Bernard W. Talmas, Los Angeles, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William T. Harter, Supervising Atty. Gen., Carolyn D. Fuson, Deputy Atty. Gen. for the People.

FRED WOODS, Associate Justice.

Appeal from extension of commitment pursuant to Penal Code section 1026.5, subdivision (b). ¹ Petition for writ of habeas corpus alleging a denial of effective assistance of counsel at the time of plea and sentencing (Super.Ct.No. A449187.)

PROCEDURAL AND FACTUAL BACKGROUND

In 1977 appellant, then 18 years old, having been found not guilty by reason of insanity of voluntary manslaughter, was committed to a state hospital. While there, another patient reportedly stole some of his money. Appellant retaliated by stabbing him with a steak knife.

The District Attorney charged appellant with assault with a deadly weapon ( § 245, subd. (a)) and with causing great bodily injury ( § 12022.7).

On September 19, 1980, appellant, represented by counsel, entered into a plea bargain with the district attorney. The bargain was accepted by the court and implemented that same day. Its terms, memorialized both by a signed written statement and a transcript of the oral proceedings, were: appellant would plead nolo contendere and not guilty by reason of insanity. The "sanity phase to be submitted on The court accepted appellant's pleas, found him not guilty by reason of insanity and ordered him "committed to Patton State Hospital until such time as his sanity has been restored ... period not to exceed the maximum period of time that he could have been imprisoned."

                M.D.'s reports. 2  Court will find defendant NGI and commit him to state hospital at Patton."   The agreement included a chart depicting the "maximum total punishment" appellant could receive as seven years.  (Four years for the assault charge and three years for the enhancement.)   During the court proceedings the district attorney advised appellant "you understand as a consequence of this plea that this carries a maximum term of four years in state prison with an additional subsequent three years for great bodily injury allegation making a total of seven years;  you understand that?"   Appellant stated he did
                

The record is barren of any reference to section 1026.5, subdivision (b) ³ and its authorization of repeated two year commitment extensions.

On February 18, 1987, the district attorney filed a petition pursuant to section 1026.5, subdivision (b) to extend appellant's commitment. Appellant's motion to dismiss the petition was denied, a hearing was held, the petition was found true, and appellant filed a notice of appeal. ⁴

CONTENTIONS

Appellant urges three grounds for invalidating the extended commitment order. All focus on the events of September 19, 1980, the day of his plea bargain and original commitment.

He contends:

1. The extended commitment order violated the terms of his plea bargain.

2. Appellant was improperly advised of the consequences of his plea.

3. Appellant was denied effective assistance of counsel by counsel's failure to advise him his commitment could be extended. ⁵

DISCUSSION

1. The extended commitment order violated the terms of his plea bargain.

In Santobello v. New York (1971) 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 the prosecutor induced the defendant to plead guilty by reducing the charges and by agreeing not to make a sentence recommendation. He then violated that agreement by urging the maximum sentence of one year imprisonment. In reversing the judgment the court held that "... when a plea rests in any significant degree on a promise or agreement of the prosecutor ... such promise must be fulfilled." (Id., at p. 262, 92 S.Ct. at p. 499.)

Similarly, when the court, as part of a plea bargain, said it would obtain a diagnostic report before imposing sentence, and then failed to do so, it committed reversible error. (People v. Mancheno (1982) 32 Cal.3d 855, 187 Cal.Rptr. 441, 654 P.2d 211.) The "integrity of the process [must] be maintained by insuring that the state keep[s] its word when it offers inducements in exchange for a plea of guilty."

(Id., at p. 860, 187 Cal.Rptr. 441, 654 P.2d 211.)

Thus if, as part of the bargain which induced appellant to plead nolo contendere and not guilty by reason of insanity, the prosecutor made some promise which he failed to keep appellant is entitled to specific performance of that promise, to withdraw his pleas, or to some other appropriate relief. (Id., at pp. 860-861, 187 Cal.Rptr. 441, 654 P.2d 211.)

We have examined the signed plea agreement, read the plea proceeding transcript and have found no unkept promise.

The exchanged promises were that appellant would concede his guilt and the district attorney would concede appellant's insanity. The mechanisms for these promises were appellant's nolo contendere and not guilty by reason of insanity pleas and the district attorney's submitting the sanity issue upon doctors' reports. The mechanisms were employed, the promises kept, and the objectives achieved. Appellant avoided prison, the district attorney succeeded in having appellant confined.

The district attorney did state to appellant, both in the signed plea agreement and orally, that the prison term for the enhanced offense was seven years. These statements were not promises nor unkept concessions. They were an accurate statement of maximum punishment. That appellant may have understood, with reason, that he would not and could not be confined in a state hospital for longer than seven years is a separate and different matter (which we next consider). But the district attorney expressly stated, as appellant acknowledges, that there was "no sentence bargain" component to their plea agreement. Thus, appellant could not reasonably believe that the district attorney relinquished any punishment prerogative.

We conclude that the district attorney's petition to extend appellant's commitment did not violate the September 19, 1980 plea bargain nor did the commitment order itself.

2. Appellant was improperly advised of the consequences of his plea.

If People v. Lomboy (1981) 116 Cal.App.3d 67, 171 Cal.Rptr. 812 is retroactive the instant judgment must be reversed.

In Lomboy the defendant was originally charged with murder. She pleaded not guilty and not guilty by reason of insanity and the court advised her that if convicted of murder but found insane she could be confined in a mental institution for life. ⁶

But three months later, pursuant to a plea bargain, the defendant was found guilty of voluntary manslaughter but not guilty by reason of insanity. While the court was determining whether or not the defendant had recovered her sanity the court advised the defendant that her maximum period of confinement was six years. The court did not mention two year extensions. Defendant was found not to have recovered her sanity and was committed to a state hospital.

Lomboy held that the court committed prejudicial error in failing to advise the defendant that being found guilty of manslaughter subjected her to six years confinement but being found not guilty by reason of insanity of manslaughter subjected her to possible confinement for life (six years plus repeated two year extensions).

Lomboy is factually indistinguishable from the instant case except that the defendant in Lomboy, unlike appellant, was initially informed that if found insane she could be committed for life. ⁷ Appellant was never so informed. Like the defendant in Lomboy appellant was misinformed about maximum confinement. Both the prosecutor and the court told him the maximum confinement period was seven years.

Holding that People v. Lomboy is not retroactive is People v. Superior Court (Bannister) (1988) 203 Cal.App.3d 1525, 250 Cal.Rptr. 909. Bannister cites the Concerning the first criterion, purpose, Bannister is silent. About the second, reliance, Bannister states "[the] plea in this case was made according to a procedure 'upon which trial courts and prosecutors had justifiably relied for decades.' " ⁸ (People v. Superior Court (Bannister), supra, 203 Cal.App.3d at p. 1529, 250 Cal.Rptr. 909.) Regarding the third, effect upon the administration of justice, Bannister comments: "We can only guess at the number of individuals who, like Bannister, entered NGI pleas prior to Lomboy, had their commitments extended pursuant to Penal Code section 1026.5, and are still confined in state hospitals or other treatment facilities." (Id., at p. 1530, 250 Cal.Rptr. 909.)

Tahl (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) criteria for determining retroactivity: " '(1) The purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice.' " (Id., at p. 134, 81 Cal.Rptr. 577, 460 P.2d 449.)

An additional reason Bannister gives for holding Lomboy not retroactive is that "in 1980 there was no requirement that individuals ... be advised that they were facing a possible lifetime commitment to the state hospital." (Id., at p. 1529, 250 Cal.Rptr. 909.)

We have considered these reasons for the Bannister holding and find them unsupported and unsupportable and therefore respectfully disagree that People v. Lomboy is not retroactive.

Our analysis begins with Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. That landmark case held that before a court may accept a guilty plea the record must reflect that the defendant has been advised of and has personally waived his self-incrimination, confrontation, and jury trial rights....