People v. Hunsaker

ASHBURN, J. Defendant was charged with three counts of burglary. He pleaded guilty to the first two counts and the third was dismissed. He also admitted two prior felony convictions which were alleged in the information. The offense was thereupon fixed as first degree with the approval of his counsel;1 defendant was adjudged an habitual criminal and sentenced to imprisonment in state prison for the term prescribed by law. The sentences were ordered to run concurrently with each other and with any sentence defendant then was serving. He has been at all times represented by counsel of his own choosing and hiring.

His notice of appeal, apparently in an effort to avoid the effect of cases which hold that, in the absence of extraordinary circumstances, an appeal upon the merits will not [477]lie from a judgment based upon a plea of guilty (Stephens v. Toomey, 51 Cal.2d 864, 870 [338 P.2d 182]; People v. Mullane, 182 Cal.App.2d 765, 768 [6 Cal.Rptr. 341]; People v. Emigh, 174 Cal.App.2d 392, 393 [344 P.2d 851]), contains the following: “This appeal is based upon the ground that the trial court had no jurisdiction to accept a plea of Guilty from the Defendant or enter Judgment on the Plea for the reason that the Defendant was prior to trial, at the time of trial and is presently insane within the eyes of the law. That the trial court was informed at the trial and prior to the trial that Defendant was and is insane and that the court erred in the failing to halt all criminal proceedings in order to determine the issue of insanity.” The opening brief says: “The Probation Officer’s Report on file in this ease shows the Defendant was an inmate in a mental institution and gives forth other good reasons showing a doubt as to the Defendant’s sanity.” All of this was and is an attempt to eome within the exceptions to the general rule above stated, namely, “ ‘irregularities . . . going to the jurisdiction or legality of the proceedings. . . .’ ” (Stephens v. Toomey, supra, at p. 870.) But the record does not sustain counsel’s claim that an appeal from the instant judgment has a legitimate appellate objective—is not frivolous.

He asserts that the hearing upon probation “brought certain facts to the Court’s attention which clearly raised a doubt as to Defendant’s sanity,” and hence the “trial court should not have sentenced defendant until the question of his sanity had been determined by appropriate proceedings.” In support of this contention reliance is placed upon section 1368, Penal Code, which says: “If at any time during the pendency of an action and prior to judgment a doubt arises as to the sanity of the defendant, the court must order the question as to Ms sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; and, from the time of such order, all proceedings in the criminal prosecution shall be suspended until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.” The term “sanity” as used in the statute means “that if the pérson whose sanity is in question is capable of understanding the nature and object of the proceedings against him and can conduct his defense in a rational manner, he should be deemed