Opinion
WORK, J. Must the court advise a defendant the maximum possible length of commitment following her plea of not guilty by reason of insanity exceeds the longest term of imprisonment to which she could be sentenced for the underlying crime?
[69]We hold advisement of the disparity in the lengths of possible custodial consequences is essential to insure a defendant knows the true potential of such a plea even though she may be generally aware “some” institutionalization is possible. Finding no such advisement here we remand for further proceedings for the following reasons.
Charged with murder for knifing a friend, Mary Rodena Lomboy personally pleaded not guilty and not guilty by reason of insanity after being advised she could be confined in a mental institution for life if convicted of murder but found insane at the time of the killing.
Three months later she waived jury trial on both phases of trial at which time her counsel alerted the trial court to the probability the guilt phase would be submitted, in part, on the transcript of preliminary proceedings. These submissions were an apparent exchange for the prosecution’s stipulation limiting the trial court to finding Lomboy guilty of no crime greater than voluntary manslaughter. In a commendable effort to keep the record “clear” the court suggested filing an amended complaint.
Although an amended information was then filed no attempt was made to rearraign Lomboy and, following an abbreviated court trial during which the court received the preliminary hearing transcripts and additional testimony, she was convicted of voluntary manslaughter.1
The court then proceeded to the sanity phase without attempting to advise Lomboy of the potential consequences of a finding of insanity in view of the maximum penalty reduction in the underlying charge, i.e., murder — life, to voluntary manslaughter — six years (less one-third for behavioral credits), as contrasted with no reduction as between the institutional commitment on insanity for murder — life, versus insanity for voluntary manslaughter — life. As predicted, the parties submitted the issue totally on reports evidencing Lomboy’s insanity. She was not advised of her right to confront these witnesses because the court (and counsel) agreed there was no need to do so where the sole evidence introduced without cross-examination was presented on her behalf in support of her plea of not guilty by reason of insanity.
[70]The parties then immediately proceeded to determine whether Lomboy had presently recovered her sanity, again submitting the issue solely on the same medical reports. This time Lomboy was advised of, and waived, her legal and constitutional rights. Simultaneously, however, the trial court twice wrongly advised her the maximum consequence of an adverse finding could result in a maximum confinement of six years. Lomboy’s counsel told the court he had discussed the six-year maximum potential commitment with her and, after an off-the-record consultation between court, prosecutor and defense counsel, Lomboy was again advised, and stated she understood the maximum custodial consequence of her plea of not guilty by reason of insanity was six years.
As anticipated the court promptly determined Lomboy had not yet recovered her legal sanity and committed her to the California Department of Mental Health for a period the trial court, defense counsel, prosecutor and, last but not least, Mary Lomboy, expected not to exceed six years.
Lomboy claims shock upon learning that in fact her commitment and custodial confinement may last her lifetime. (The longest term of imprisonment for the underlying charge — six years plus two-year increments for the rest of her life if she does not recover her legal sanity and is found to represent a substantial danger of physical harm to others. Pen. Code, § 1026.5, subd. (b)(1); In re Moye (1978) 22 Cal.3d 457 [149 Cal.Rptr. 491, 584 P.2d 1097].)
Therefore, it is apparent:
(1) Lomboy was correctly advised when arraigned for murder that a finding of not guilty by reason of insanity could result in a lifetime mental commitment.
(2) The maximum consequence of her not guilty by reason of insanity plea, on initial arraignment, would be no more than her possible maximum imprisonment for her conviction of murder and might well be less assuming her earlier restoration to sanity.
(3) Lomboy was never rearraigned at the time of the filing of the amended information charging voluntary manslaughter. Thus, she was never advised the possible maximum custodial consequence of a finding [71]of not guilty by reason of insanity could greatly exceed that of a conviction of voluntary manslaughter. She never personally entered a plea, of not guilty by reason of insanity to the new charge.
(4) After Lomboy’s attorney told her her maximum commitment was six years without contrary advisement from the court and without being told of her right to confront witnesses, she submitted the sanity issue solely on psychiatric reports designed to insure a finding she was legally insane when the crime was committed. It is apparent these same reports concluded she had not yet recovered her sanity and her commitment was inevitable.
(5) The reasonableness of this mentally disturbed layperson’s anticipation of maximum confinement in a mental institution equivalent to the maximum allowable term on conviction of voluntary manslaughter is evident from the joint assurance of the trial court, defense counsel and prosecutor.
A plea of not guilty by reason of insanity must be entered by a defendant personally and not through counsel alone. (People v. Gauze (1975) 15 Cal.3d 709, 717 [125 Cal.Rptr. 773, 545 P.2d 1365].) Although the present insanity of a defendant may make the validity of the decision-making process between a choice of entering or not entering such a plea somewhat suspect, this procedure is legislatively mandated by Penal Code section 1018. Further, the rights of legally insane persons not to enter such a plea is recognized in In re Moye, supra, 22 Cal.3d 457, 468. There the unanimous court recognized pragmatic considerations of length of the mental confinement may well deter persons from entering insanity pleas where their release after a lesser maximum term is guaranteed under the determinate sentencing law.
Where an information is amended, failure to rearraign and require a defendant to plea to the amended pleading is not prejudicial unless substantial rights of a defendant are prejudiced. (Pen. Code, § 1009; People v. Walker (1959) 170 Cal.App.2d 159 [338 P.2d 536].)
It is obvious Lomboy was not prejudiced in the guilt phase of her trial by not being rearraigned since she was afforded all rights to which she was entitled on a plea of not guilty. We, however, find prejudice compelling reversal from the failure to rearraign and properly advise _ [72]Lomboy her prosecution under the reduced charges in the amended pleading did not result in a concomitant reduction in the maximum possible consequences flowing from a commitment under her sanity plea. While the actual unfortunate misrepresentations in this record negate any possible lack of prejudice here, a silent record would equally compel reversal.
The People attempt to distinguish People v. Vanley (1974) 41 Cal.App.3d 846 [116 Cal.Rptr. 446] by noting Vanley never personally entered his sanity plea at any stage, it being entered by his lawyer. Thus, there is no evidence Vanley was ever told of any consequences of a not guilty by reason of insanity plea at any time. Therefore, Vanley and the present case have factual dissimilarities since here, on the original murder information, Lomboy was accurately advised in the context of that charge. They argue there was no duty to give Lomboy any further advisement when the underlying charge was reduced because she fully understood the direct consequences which could flow from her sanity plea, i.e., a six-year confinement equal to the maximum term of the underlying criminal charge. They claim the potential lifetime extensions beyond that term are only “indirect” consequences as to which the court is not required to inform a defendant citing People v. Searcie (1974) 37 Cal.App.3d 204 [112 Cal.Rptr. 265], which sets out examples of collateral consequences in federal cases at page 212, and People v. Flores (1974) 38 Cal.App.3d 484 [113 Cal.Rptr. 272]; People v. Salazar (1979) 96 Cal.App.3d Supp. 8 [157 Cal.Rptr. 834]; and People v. Wright (1979) 96 Cal.App.3d Supp. 17 [157 Cal.Rptr. 484]. None are persuasive on the present facts.
As examples of collateral consequences flowing from entry of a plea, we are cited to: increased penalties on a defendant as a result of a later conviction for the same offense; possibility of probation revocation; possibility of not obtaining parole; possibility of embarrassment and loss of prestige and of voting rights; possibility of undesirable discharge from the armed forces, etc. These collateral consequences fall into two categories: those which are noncustodial and nonpenal in nature and those which are custodial in nature but which may be imposed only after future volitional misconduct on the part of a defendant. Here Lomboy is subject to possible confinement in a mental institution for the rest of her natural life for causes over which she has no control, to wit: her mental condition. (It should be noted the future detention is not because she would be a danger to the public if she were released but [73]because she is such a danger and the mental health care which she received has not been successful in restoring her sanity.)2
The trial on her sanity directly led to Tomboy’s commitment and directly exposes her to the custodial consequences of Penal Code section 1026.5, subdivision (b). Under these circumstances the possible consequences to Lomboy are neither indirect nor collateral. This being the case, failure to correctly advise was error. (In re Yurko (1974) 10 Cal.3d 857, 864 [112 Cal.Rptr. 513, 519 P.2d 516]; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086].)
Because of our holding we do not consider whether the court erred in failing to advise Lomboy of her right to confront witnesses at the time the sanity issue was submitted on doctors’ reports. Pragmatically it appears absurd to find reversible error in a lack of admonishment resulting only in the court making a finding which is knowingly and understandingly desired by a defendant. Also, it is clear Lomboy would not have been aided by such an admonishment since she still would not have known the true potential consequences of these proceedings. (For instance, when she was advised of each right in the present sanity phase of the trial she promptly waived them.)
The case is remanded for further proceedings. After full advisement of the consequences directly flowing from her decision, Mary Lomboy shall be permitted to reaffirm her plea of not guilty by reason of insanity or to withdraw it, as she chooses.
Staniforth, J., concurred.
In spite of the fact Lomboy’s attorney possessed current psychiatric reports clearly attesting to her legal insanity at the time of the offense and the record was replete with evidence of her intoxication at the time of the killing, her counsel elected not to raise a diminished capacity defense to the specific intent element of voluntary manslaughter.
Even dangerous offenders arc eligible for release upon completion of their maximum term, apart from their own plea of insanity. (People v. Moye, supra, 22 Cal.3d 457, 468.)