Filed 7/26/16




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                        F069487
         Plaintiff and Respondent,
                                                            (Super. Ct. Nos. BF144483A &
                  v.                                                 BF151668A)

ARMANDO T. LOYA,                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                            -ooOoo-


*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
                                    INTRODUCTION
       On the day set for jury trial, appellant Armando T. Loya contemplated a plea
agreement negotiated with the prosecution for a principal four-year prison term that
involved disposition of both cases summarized below. He entered into a protracted and
mutually frustrating discussion with the trial judge, who asked multiple times if appellant
wanted to plead or proceed to trial. Appellant, however, principally questioned why he
could not enter a plea of not guilty by reason of insanity (NGI), which was a question he
had raised on previous occasions. Without stating any reason, and just after appellant
indicated his desire to take the plea agreement, the court said it would not approve the
plea and withdrew it from further consideration. Trial commenced.
       In Bakersfield Superior Court case No. BF151668A1 (the present matter), a jury
convicted appellant of reckless evasion of a peace officer (Veh. Code, § 2800.2; count 1);
hit and run resulting in property damage (Veh. Code, § 20002, subd. (a); count 2); driving
under the influence of a drug (Veh. Code, § 23152, former subd. (a); count 3); being
under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a);
count 4); resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)(1); count 6);
and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 7). The
jury found him not guilty of vandalism (Pen. Code, § 594, subd. (b)(2)(A); count 5). The
trial court found true that appellant had suffered a prior strike and four prior prison terms.
Appellant was sentenced to an aggregate term of 10 years in state prison.
       In companion case No. BF144483A, appellant was found in violation of probation
and was sentenced to six years in state prison, to be served concurrently with the 10 years
imposed in the case above.




1      Further references to case numbers are to Bakersfield Superior Court case numbers unless
otherwise indicated.


                                              2.
       On appeal, appellant raises four issues. We find merit to his claim that the trial
court abused its discretion in rejecting the plea bargain in the absence of any stated
justification. We reverse the judgment and remand for further proceedings consistent
with this opinion. However, due to a lack of prejudice, we reject appellant’s contentions
that he was denied his statutory right to plead NGI or that the trial court abused its
discretion in denying two motions pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden). Finally, in light of the remand, we do not reach appellant’s last issue that he
was denied the effective assistance of counsel and due process.
                                     BACKGROUND
I.     Trial facts from the present matter
       Appellant did not present any evidence. The prosecution established the following
relevant facts.
       On November 9, 2013, appellant drove through a stop sign in Bakersfield, and
then failed to yield when police officers pursued him in marked police vehicles with
flashing emergency lights and sirens. During the pursuit, appellant drove through four
red lights, travelled 60 to 70 miles per hour, and swerved around other vehicles. Officers
observed appellant “bouncing up and down” on his driver’s seat, and he was gesturing
with his hands as if he was waving at the pursuing officers. When the chase entered a
residential neighborhood, officers cancelled the high-speed pursuit, turned off their lights
and sirens, and reduced their speeds. They continued to follow appellant at a safe speed.
Appellant initially pulled away, but then began to slow down. During a turn, appellant
lost control of his vehicle and struck a chainlink fence. He ran from his vehicle.
       Officers chased appellant on foot. He ignored officers’ commands to stop and
continued to flee. At one point, appellant looked back at an officer after the officer yelled
for him to stop, but appellant continued to run away. Officers lost sight of appellant after
he jumped a fence. Law enforcement established a perimeter. About 30 to 40 minutes
later, officers located appellant hiding in a parked car in a nearby apartment complex. He

                                              3.
was lying on the floorboard on his chest and side, trying to be as low as possible between
the back passenger seat and the front seats. He was hiding under articles of clothing. He
failed to comply with officers’ commands and resisted efforts to be arrested. After a brief
struggle, appellant was removed from the vehicle and handcuffed. After he was
restrained, appellant’s face began to appear pale and he was sweating profusely. He
became unresponsive and was transported to a hospital.
       A physician determined appellant was unresponsive due to a methamphetamine
coma. A blood test confirmed that appellant was impaired due to this drug in his system.
       After his arrest, appellant placed a telephone call from county jail to an
acquaintance. The call was recorded and played for the jury. Appellant said he fled from
police because he had “shit” in his car.
II.    Procedural history of the present matter
       Given the importance to the issues on appeal, we set out in some detail the
procedural history.
       A.     Competency questions arise
       On November 26, 2013, criminal proceedings were suspended for the purpose of
determining if appellant was competent to stand trial and cooperate with defense counsel.
On January 3, 2014, the court found appellant competent and criminal proceedings were
reinstated.
       B.     The Marsden hearings
       Four Marsden hearings occurred prior to trial. Each is summarized below as
relevant to the issues raised in the present appeal.
              1.      The first hearing
       The first Marsden hearing occurred on November 26, 2013 (on the same day
defense counsel requested a competency evaluation). Appellant raised claims regarding
his appointed counsel that are not relevant to the present appeal. The court found no
basis to substitute counsel and denied appellant’s motion.

                                              4.
              2.     The second hearing
       The second Marsden hearing occurred on January 3, 2014, during which defense
counsel said appellant had been diagnosed with paranoid schizophrenia and bipolar
disorder, and had been previously found incompetent and sent to Patton State Hospital
during his previous case.2 Defense counsel stated:

               “[Appellant] also told me he wanted to plea [NGI] at the prelim, and
       I told him I wouldn’t—I didn’t want to do that at the prelim because I
       didn’t think it would be—I didn’t think it would change the prelim, that
       would be a call the trial attorney would have to make.

              “But that, combined with him telling me he had paranoid
       schizophrenia issues combined with him believing that I lied to him when I
       don’t believe I ever lied to him, and his not wanting to communicate with
       me, made me believe that there was enough information to declare a
       doubt.”
       After hearing further comments, the court denied the Marsden motion.
              3.     The third hearing
       On January 16, 2014, a third Marsden hearing took place. During the hearing,
defense counsel stated the following:

               “[Appellant] also told me that he was schizophrenic which when I
       interviewed him before the first setting of the case, at which time I—it
       seemed that we could have communication and he seemed lucid and I
       didn’t think I needed to do a [Penal Code section] 1368 [motion]. But he
       told me he wanted to plead NGI after the Marsden and because he seemed
       irrational and I had doubts about—if—I began to have doubts about his
       ability to help—to help—to help with his representation and I spoke with
       my supervisor and I thought that I should [file a Penal Code section 1368
       motion for] him at that time.”


2      In companion case No. BF144483A, appellant was found incompetent to stand trial or
cooperate with counsel and, on or about December 19, 2012, he was committed to Patton State
Hospital. On May 31, 2013, he was found competent to stand trial and able to cooperate with
counsel. Criminal proceedings were reinstated. After his competency was deemed restored, his
appointed counsel asked for an additional evaluation pursuant to Penal Code section 1368, which
was denied.


                                              5.
      After hearing further comments, the court granted the Marsden motion, finding
that the attorney-client relationship had broken down.
             4.     The fourth hearing
      On April 16, 2014, the matter was transferred from the presiding department to the
trial court. At approximately 10:13 a.m., appellant’s fourth Marsden hearing
commenced. Appellant made the following comments:

             “I asked [my new defense counsel] about an NGI plea. He told me
      there’s no way he would change my plea to an NGI plea because a judge
      wouldn’t accept it, which isn’t right, because that’s a plea—you can change
      your plea to that anytime because there’s four pleas, and he lied to me about
      that.”
      The court later informed appellant that defense counsel’s statement that the judge
would not accept an NGI plea at this time was true. The following exchange occurred:

              “[APPELLANT]: So you’re telling me that I cannot change my plea
      to an NGI plea, never, because I went to Patton State Hospital, and they
      taught us that there’s four pleas. They told us that we could change our
      plea at any time to an NGI. You’re telling me that Patton State Hospital—I
      went there—that they lied to me and they told me a lie, then, because we
      went there—I went there so they could teach me about the court; right?
      They taught me who the judge is, who my attorney is, and about the four
      pleas. So you’re telling me that they lied to me?

            “THE COURT: I’m not telling you—I’m not telling you anything
      about what they told you. I’m telling you that [defense counsel]—

             “[APPELLANT]: That’s what he taught me—

             “THE COURT: [Appellant]. [Appellant].

             “[APPELLANT]: —when I was at Patton State Hospital for a
      [Penal Code section] 1368; so then they’re reteaching me all this stuff. I
      don’t understand.

             “THE COURT: [Appellant], you’re going to have to be quiet for a
      second. When I’m talking, you don’t talk. The young lady before me is
      tasked with writing down everything that’s said in court. She can’t do it if



                                            6.
      two of us are talking at the same time. [¶] Do you understand that? Do
      you understand that?

             “[APPELLANT]: If I say I understand, are you going to—are you
      going to listen to me, are you going to tell me bullshit? Are you a fake
      judge or a real judge? Because everything is fake in this court. Every court
      I been to is fake, it’s been fake stuff.

             “THE COURT: [Appellant], listen. I’m trying to be as patient as
      possible with you.

             “[APPELLANT]: You know, when I’m the only innocent one in
      this courtroom.

             “THE COURT: Okay.

             “[APPELLANT]: And I don’t care. I don’t care what you do. I
      don’t care what these bailiffs do. I don’t care what she does. I don’t care.
      It don’t reflect on me, you know what I mean? I’m my own man, you’re
      your own man, she’s her own woman.

             “THE COURT: [Appellant], are you done?

             “[APPELLANT]: No. I’m trying to explain to you.

             “THE COURT: I understand it. Are you done?

             “[APPELLANT]: And then I got these motherfuckers right here,
      these people against me.

             “THE COURT: [Appellant,] we’re going to take a brief break. I’m
      going to order you [to] leave the courtroom until you’re ready to behave
      appropriately in this courtroom. We’ll be in recess five minutes.”
      After a recess, appellant’s counsel explained why he believed appellant was
confused, and defense counsel indicated a possible plea agreement had been discussed
with the prosecution. Appellant had counteroffered a four-year prison term on the felony
evasion charge, concurrent time for the misdemeanors, and the four years would be
served concurrently with the six-year probation revocation case. The prosecution had
accepted that offer, but then appellant had concerns regarding how the time would be
served and how his credits in the underlying revocation matter would be applied.



                                            7.
       The following relevant comments occurred:

              “[DEFENSE COUNSEL]: Your Honor, [appellant’s] charged with a
       variety of offenses. I would suggest that perhaps Count 1 there may be a
       legal basis for an NGI plea if he were, at the time of the alleged incident,
       unable to form the intent to evade or avoid the police or elude capture.

             “The context of this request, however, was—it initiated—originated
       when I had a conversation with [appellant] at the county jail, and he was
       seeking potential ways to prolong or delay the conclusion of this case.

              “He has expressed to me on repeated occasions that he does not wish
       to go to prison and he would do anything he can to avoid going to prison.
       Then he suggested to changing his plea to [NGI].

               “I explained to him that that does not apply to all these charges, and
       I’m not even certain it would apply to Count 1, although there may be a
       plausible legal theory that he could not have formed the intent at the time.
       But many of these charges are simply general intent charges, it would not
       be an applicable plea. I also did not believe that that would be a genuine
       legal strategy to deliberately attempt to delay the proceedings in this court
       by manipulating the process and changing the plea on one or two charges to
       NGI for that stated purpose.”
       Appellant countered that a psychiatrist, and not his defense counsel, had to make
the determination of his mental state. Appellant noted he had a mental health history and
stated he had a mental illness.
       The judge spoke with appellant at length regarding the mechanics of the pending
plea offer and whether appellant was interested in accepting it. Appellant indicated a
willingness to accept it. The court concluded that defense counsel had reasonably
represented appellant and would continue to do so during the proceedings. The court
determined that defense counsel was ready and able to proceed with trial, appellant was
responsible for any breakdown in communication, and appellant could still be represented
effectively by his defense counsel. The court found that appellant’s stated
dissatisfactions with his counsel’s performance had not met the required burden of proof.
The court denied the Marsden motion.



                                             8.
         C.       The April 16, 2014, open court proceeding
         Upon conclusion of the fourth Marsden hearing, and at approximately 10:56 a.m.,
appellant and counsel were present in open court, and a possible change of plea was
discussed. A brief recess was taken to allow defense counsel and appellant to discuss that
further. At approximately 11:37 a.m., appellant and counsel were again present in open
court.
         Appellant complained that defense counsel was lying to him about custody credits.
Defense counsel explained the custody credit issues to the court, and the court tried to
explain the calculations. When those discussions ended, appellant, through his counsel,
asked the court for an indication whether it would strike a prior strike, which the court
declined to do. The court, however, stated it would entertain a formal Romero3 motion.
Appellant asked if his prison priors would be used against him if he went to trial and lost.
The court stated that the prosecution would likely prove all of the prison priors alleged,
and the judge would consider them at sentencing. The following relevant exchange then
occurred:

                  “[APPELLANT]: Why can’t I change my plea to NGI?

               “THE COURT: It wouldn’t help you at all with those allegations.
         The Court would require more than just the plea. Procedurally—

                 “[APPELLANT]: I want to change my plea to NGI, and I would
         like to go to trial, that’s what I would like to do, but he’s telling me that I
         can’t. That’s why I wanted to fire my attorney.

                  “THE COURT: [Appellant]—

                  “[APPELLANT]: Other than that, I have to sign this deal and—

                  “THE COURT: [Appellant], if you want to go to trial, we can go to
         trial.

                  “[APPELLANT]: But I want to change my plea to an NGI plea.

3        People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


                                                 9.
       “THE COURT: That’s not going to happen. Procedurally it would
be a different format, for one; and two, the Court would require more—

     “[APPELLANT]: Why do they teach you that in Patton about NGI?
Why do they [t]each you that at Patton, NGI?

       “THE COURT: [Appellant], I’m going to ask you one time.
You’ve had a quite a bit of time to consider whether to plea in this case or
not. You’ve certainly asked [defense counsel] questions involving a
negotiated disposition, you’ve also asked the Court on the record questions
involving the potential disposition; so I’m going to ask you this one time.
Do you want a plea in this case?

       “[APPELLANT]: I want to plea NGI.

      “THE COURT: All right. Do you want to take the deal that you
have counteroffered in this case?

       “[APPELLANT]: If I can’t plead NGI—I mean, I want to plead
NGI, really, that’s the plea that I want to give, an NGI plea, but since I
don’t got a crooked smile and I can’t spit right now ‘cause, you know,
that’s what everybody wants, I’m going to spit or do a crooked smile, I
mean, somebody behind me is telling me what to say, you know—

       “THE COURT: [Appellant], I’m asking you, do you want to sign
the paperwork—

       “[APPELLANT]: I thought you were the judge. I thought this was
your courtroom, you know.

       “THE COURT: It is. [¶] Do you want to plea in this case and
resolve the case or do you not?

        “[APPELLANT]: If I have to. I mean, I can’t plead NGI. I’m
trying to plead NGI. I mean, that’s why—

       “THE COURT: [Appellant], not guilty by reason of insanity is not
before me at this time.

       “[APPELLANT]: But it’s a plea. It’s a plea. It says on the thing I
can change my plea at any time. That’s like a not guilty plea because it’s
not guilty by insanity, isn’t it? Can you explain that for me? I’m already
done signing it. Look, I’m initialing it right now, but I feel that—I feel
that—



                                     10.
              “THE COURT: [Appellant], it’s up to you as to whether you want
       to plea in this case.

                “[APPELLANT]: I feel that I’m not getting the—

               “THE COURT: If you don’t want to plea in this case, that’s your
       right, you don’t have to. You can go to jury trial, that is an absolute right
       you have. No one will hold it against you. Do you want to go to jury trial?
       It’s up to you and only you.

              “[APPELLANT]: How does an NGI work, though? Why can’t I
       plead that, though?

                “THE COURT: NGI is not before me. I’m not discussing that with
       you.

                “[APPELLANT]: What do you mean it’s not before you?

              “THE COURT: That is not an issue before me right now. This
       matter was sent here for jury trial; so we are either going to have a jury trial
       or you’re going to plea. If you’re not going to plea—

                “[APPELLANT]: That is a plea, though.

                “THE COURT: Yeah, okay. [Appellant], I can appreciate—

                “[APPELLANT]: Here, I’ll sign.

              “THE COURT: I can appreciate your efforts. The Court’s not going
       to accept the plea in this case, counsel, we’re going to go forward with trial.

                “[APPELLANT]: I already filled it out, look.

              “THE COURT: [Appellant], part of that plea negotiation is the
       Court has to accept it. I’m not going to accept it. We’re done.

                “[APPELLANT]: I want to take it. I mean, I’m signing for it right
       now.

                “THE COURT: Too bad. [¶] Counsel, I’ll see you both back at
       1:30.”
       After the lunch recess and back on the record, defense counsel indicated appellant
wanted to accept the plea bargain and was prepared to address the court regarding his
conduct just prior to the court rejecting the plea bargain. The judge responded that the


                                             11.
plea had been “taken off the table. We’re going to go forward with a trial.” Appellant
attempted to speak, but the court admonished him to speak to his defense counsel if he
wished to be heard. The proceeding continued with a discussion on motions in limine.
                                      DISCUSSION
I.     Prejudice Did Not Result From Appellant’s Inability To Plead NGI*
       Appellant contends he was prejudicially denied his statutory right to plead NGI.
He maintains his sentence is void or, in the alternative, it must be vacated and the matter
remanded for a trial regarding his sanity.
       A.     Standard of review
       The denial of the statutory right to plead NGI is an error of state law requiring
reversal only if it is reasonably probable the appealing party would have obtained a more
favorable result in the absence of the error. (People v. Henning (2009) 178 Cal.App.4th
388, 398 (Henning), citing People v. Watson (1956) 46 Cal.2d 818, 836.) However, a
federal due process violation can occur when a defendant is unable to receive full
consideration of the facts regarding his desired insanity defense. In such a situation,
reversal is required unless the error was harmless beyond a reasonable doubt. (Henning,
supra, at p. 398, citing Chapman v. California (1967) 386 U.S. 18, 23–24 (Chapman).)
       B.     Analysis
       There are six kinds of pleas to an indictment or information, including not guilty
and/or NGI. (Pen. Code, § 1016, subds. 1–6.) “A defendant who does not plead [NGI]
shall be conclusively presumed to have been sane at the time of the commission of the
offense charged; provided, that the court may for good cause shown allow a change of
plea at any time before the commencement of the trial.” (Id., subd. 6.)
       Although defense counsel generally has the right to make tactical choices
regarding the formation and presentation of a defense, the defendant ultimately controls

*      See footnote, ante, page 1.


                                             12.
the decision to plead guilty or not guilty. (Henning, supra, 178 Cal.App.4th at p. 397.)
As a result, Penal Code section 1018 requires every plea to be personally entered or
withdrawn by a defendant in open court. The defendant, and not defense counsel,
controls the decision to enter or withdraw a plea of NGI, even if that decision is tactically
unwise. (People v. Clark (2011) 52 Cal.4th 856, 963 (Clark).)
       The parties dispute whether appellant unequivocally informed the trial court that
he wanted to enter an NGI plea. The parties also dispute whether the trial court was
required to accept appellant’s NGI plea or whether it was necessary to establish “good
cause” for a change in plea pursuant to Penal Code section 1016 (“the court may for good
cause shown allow a change of plea at any time before the commencement of the trial”).
We need not, however, resolve these issues. Even when we presume error occurred,
prejudice is lacking.
       “‘A plea of [NGI] refers to the defendant’s mental state at the time of the
commission of the crime, a mental state which is distinguishable from that which is
required of a defendant before he may be allowed to stand trial.’ [Citation.]” (Henning,
supra, 178 Cal.App.4th at p. 396.) Under California law, insanity means the defendant
was incapable of distinguishing right from wrong, or knowing or understanding the
nature of his act. A bifurcated trial occurs when simultaneous pleas of not guilty and
NGI are entered. It is first determined whether the defendant committed the charged
offenses and, if so, whether he was insane at that time. (Ibid.) “The defendant bears the
burden of proving insanity at the time of the offense by a preponderance of the evidence.
[Citation.]” (Id. at p. 401.)
       As an initial matter, an NGI defense does not apply when it is based solely on an
addiction to, or abuse of, intoxicating substances. (Pen. Code, § 29.8; CALCRIM
No. 3450.) Further, an insanity defense is not available in a probation revocation
proceeding. (People v. Harrison (1988) 199 Cal.App.3d 803, 809–810.) Accordingly,
appellant could not raise an NGI defense solely based on any addictions to or abuse of

                                             13.
intoxicating substances, and he was unable to use an NGI defense in companion case
No. BF144483A.
       Appellant relies on Clark, supra, 52 Cal.4th 856, and People v. Clemons (2008)
160 Cal.App.4th 1243 (Clemons) to establish prejudice. In Clark, the defendant asserted
that the trial court erred when he was allowed to plead NGI over his attorney’s objection.
(Clark, supra, at p. 962.) He argued on appeal that no credible evidence supported his
plea. The Supreme Court disagreed, determining the record showed an NGI defense was
not necessarily futile. Although defense counsel had represented in the trial court that
none of the defense experts found a viable sanity defense, all but one expert evaluated the
defendant for a purpose other than his sanity at the time of the crimes. The defendant
claimed a loss of memory of the events surrounding the crimes. Finally, the Supreme
Court noted the defense experts’ reports “undoubtedly cataloged” the defendant’s history
of numerous admissions to psychiatric facilities. (Id. at p. 964.) Clark determined the
trial court properly permitted the defendant to enter the plea against his counsel’s advice.
(Id. at p. 963.)
       Similarly, in Clemons, the defendant possessed a razor blade while in custody on
other charges at the courthouse. He cut his arm deeply, exposing muscle, and the
laceration required 18 stiches. His arms were scarred from similar wounds. (Clemons,
supra, 160 Cal.App.4th at pp. 1245–1256.) During criminal proceedings regarding his
possession of the razor blade, the defendant unequivocally told the trial court that he
wanted to plead NGI and his counsel would not let him. The trial court informed the
defendant that was an issue for defense counsel to raise. (Id. at p. 1251.) On appeal, the
Clemons court found error, noting the defendant had the right to enter the plea of his
choice. (Id. at p. 1252.) The Court of Appeal noted that doctors had examined the
defendant, but did so to determine present competency to stand trial and not regarding his
sanity at the time of the crime. The reports failed to address the defendant’s mental
condition at that time or what medication he had taken. The defendant had a history of

                                            14.
diagnoses of and hospitalizations for mental illness. Moreover, the Clemons court
determined that the defendant’s abnormal behavior provided some evidence of insanity
even if no experts supported an NGI defense. He self-inflicted a deep wound to his arm
and “grinned sheepishly” at sheriff’s deputies when his wound was discovered. (Id. at
p. 1253.) Clemons held that the defendant was entitled to a new trial because his right to
enter the plea of his choice was infringed and there was evidence to support that choice.
(Ibid.)
          Here, the circumstances of appellant’s flight indicate he understood the wrongful
nature of his actions. When officers turned off their lights and sirens and reduced their
speeds upon entering a residential neighborhood, appellant initially pulled away but then
began to slow down. When appellant lost control of his vehicle, he ran from officers and
ignored commands to stop. At one point, appellant looked back at a pursuing officer who
had ordered him to stop, but appellant continued to run away. He jumped over a fence
and hid in a parked car in a nearby apartment complex. Inside the car, appellant was
observed laying on the floorboard on his chest and side, trying to be as low as possible
between the back passenger seat and the front seats. He was concealed under several
articles of clothing. After he was taken into custody, appellant made a telephone call
from the county jail and informed an acquaintance that he fled from police because he
had “shit” in his car.
          Unlike the defendant in Clemons, appellant’s behavior during this crime did not
demonstrate insanity, but rather a strategic effort to avoid capture that showed intentional
thinking. His subsequent telephone call confirmed he knowingly fled from police.
Unlike the defendant in Clark, appellant did not claim a loss of memory of the events
surrounding the crimes, but offered an explanation regarding why he fled from officers.
The circumstances surrounding appellant’s crime establish he was capable of
distinguishing right from wrong, and knew or understood the nature of his act. Both
Clark and Clemons are distinguishable.

                                              15.
          Appellant’s additional arguments are not persuasive. He points to his lack of
competency in companion case No. BF144483A and the competency request that
occurred during the pendency of the present matter. He notes he made strange comments
during the pendency of this prosecution and the postconviction probation report states he
suffers from “bi-polar and schizophrenia and is taking medication for these ailments.”
He argues his behavior during this crime may have indicated mental illness when he was
“bouncing up and down” on his driver’s seat and gesturing with his hands at the pursuing
officers.
          Although an NGI plea had evidentiary support, appellant’s behavior during the
commission of the crime and his postarrest statement establish a rational and knowing
attempt to avoid police and detection. Based on this record, any error associated with the
failure to permit appellant to plead NGI was harmless beyond a reasonable doubt.
Accordingly, the judgment will not be reversed for this claim of error.
II.       Prejudice Did Not Result From The Denial Of The Marsden Motions
          Appellant argues the trial court abused its discretion when it failed to grant two of
his requested Marsden motions to appoint new counsel after counsel refused to allow an
NGI plea. He contends the error was prejudicial, requiring reversal.
          A.     Standard of review
          The denial of a Marsden motion is reviewed on appeal for an abuse of discretion.
(People v. Streeter (2012) 54 Cal.4th 205, 230 (Streeter).) In this context, an abuse of
discretion does not exist unless the defendant’s right to assistance of counsel was
substantially impaired from the failure to replace the defendant’s attorney. (Ibid.)
          The standard for prejudice regarding a denied Marsden motion is under Chapman,
supra, 386 U.S. 18. (People v. Solorzano (2005) 126 Cal.App.4th 1063, 1071.) Under
that standard, we must ask whether the denial was harmless beyond a reasonable doubt.
(Ibid.)



                                               16.
       B.     Analysis
       When a defendant seeks to discharge appointed counsel pursuant to Marsden, the
trial court must permit an opportunity for the defendant to explain the reasons and
provide specific instances of inadequate performance. (Streeter, supra, 54 Cal.4th at
p. 230.) The requested relief should be granted if appointed counsel is not providing
adequate representation. Relief should also be granted if the defendant and counsel have
an irreconcilable conflict so that ineffective representation is likely to occur. (Ibid.) A
trial court should substitute new counsel upon learning in a Marsden hearing that defense
counsel refuses to allow a defendant to exercise his or her right to enter an NGI plea.
(Henning, supra, 178 Cal.App.4th at p. 404.)
       Appellant asserts his Marsden motions in the second and fourth hearings should
have been granted because his attorneys would not permit an NGI plea. He argues the
record does not demonstrate that his counsel consulted with experts or otherwise
investigated his sanity at the time of this crime. He maintains it cannot be determined
that the trial court’s denial of his Marsden motions was harmless beyond a reasonable
doubt in light of his history of diagnosed mental illness, his strange behavior during the
proceedings, and his conduct during the crime’s commission. He relies upon Henning,
supra, 178 Cal.App.4th 388, to establish prejudice.
       Respondent contends the trial court did not abuse its discretion in denying the two
challenged Marsden motions, also citing Henning, supra, 178 Cal.App.4th 388.
Respondent asserts neither counsel in both disputed Marsden hearings “refused to allow
appellant to enter an NGI [plea] over his unequivocal request.” Respondent notes that
defense counsel raised concerns in the fourth Marsden hearing that appellant sought the
plea only to delay the proceedings and the merits of that defense were unclear. In the
alternative, respondent maintains no prejudice resulted even if error occurred.
       We need not resolve the parties’ dispute regarding whether or not an abuse of
discretion occurred in the trial court’s denial of the two challenged Marsden hearings.

                                             17.
Even when we presume, without so deciding, that error occurred in one or both hearings,
this record does not establish prejudice. As discussed in part I above, appellant was
unable to use an insanity defense in the probation revocation proceedings in companion
case No. BF144483A. (People v. Harrison, supra, 199 Cal.App.3d at pp. 809–810.)
Further, his actions during the commission of this crime showed a strategic effort to
avoid capture. His subsequent telephone call confirmed he knowingly fled from police.
         Henning does not alter our conclusion. In Henning, the Court of Appeal found
error when the trial court failed to replace appointed counsel following a Marsden
hearing. Counsel refused to allow an NGI plea despite the defendant’s wish to do so.
(Henning, supra, 178 Cal.App.4th at pp. 397–398.) However, the Henning court
determined the record did not establish a credible basis for an insanity defense. (Id. at
p. 401.) The defendant’s behavior during the crime established he understood his actions
were wrong, and the record did not demonstrate any evidence of a mental defect or
condition rendering him unable to appreciate the wrongfulness of his conduct. Defense
counsel consulted with multiple experts, all of whom concluded the defendant was not
insane at the time of the offense. (Ibid.) As such, the trial court’s error was deemed
harmless. (Id. at p. 402.)
         Here, although this record does not reflect that appellant’s counsel pursued an NGI
defense, appellant’s behavior and postarrest statement establish he was capable of
distinguishing right from wrong, and knew or understood the nature of his actions. It is
beyond a reasonable doubt that any presumed error associated with the Marsden hearings
was harmless. Accordingly, appellant’s convictions will not be reversed for this claim of
error.




                                             18.
III.   The Trial Court Abused Its Discretion When It Rejected The Proposed Plea
       Bargain In The Absence Of Any Justification
       Appellant asserts the trial court abused its discretion when it refused to accept the
plea bargain. He contends the court’s refusal was not based on any disagreement about
the substance of the plea deal, but over frustration with his equivocating.
       A.     Standard of review
       Without citing any specific authority, both parties take the position that an abuse
of discretion standard is appropriate in analyzing this claim. We agree because a
deferential abuse of discretion standard is used to analyze whether a trial court properly
accepted a conditional plea of guilty or no contest pursuant to Penal Code section 1192.5.
(People v. Holmes (2004) 32 Cal.4th 432, 443.) Similarly, and by analogy, a deferential
abuse of discretion standard is also used to review a trial court’s ruling denying a mistrial.
(People v. Bolden (2002) 29 Cal.4th 515, 555.) An abuse of discretion is present when a
court’s ruling is “‘outside the bounds of reason.’” (People v. Ochoa (1998) 19 Cal.4th
353, 408.)
       B.     Analysis
       Appellant argues the court initially intended to approve the plea bargain because it
discussed the plea agreement with appellant during the fourth Marsden hearing, and the
court gave appellant and defense counsel additional time to confer about it. Following
that recess, the court responded to appellant’s inquiries about time credits, about whether
the court would consider a Romero motion, and the court confirmed with the prosecution
that the People were still in agreement with the pending offer. Appellant contends the
trial court’s abrupt decision to reverse itself and refuse the plea bargain was an abuse of
discretion. He maintains the court’s refusal did not arise over concerns of the bargain’s
terms or because the plea interfered with a court policy, but rather over “exasperation”
regarding appellant’s “incessant questions about pleading NGI.”




                                             19.
       Respondent contends neither appellant nor the trial court accepted the plea
bargain, and the court did not withdraw the plea from consideration because of prejudice
against appellant. Instead, respondent asserts the court withdrew the offer because
appellant continued to equivocate regarding its acceptance. Respondent maintains that
“appellant’s issues with the plea bargain had nothing to do with an NGI plea, but rather
pertained to custody credits and whether the court would strike his strike and prison
priors.” We find merit to appellant’s concerns and reject respondent’s contentions.
       Plea negotiations and agreements are an integral, essential and accepted
component of our criminal justice system. (People v. Segura (2008) 44 Cal.4th 921, 929
(Segura).) Such agreements promote speed, economy and the finality of judgments.
(Ibid.) The process involves an agreement negotiated by the People and the defendant,
which requires judicial approval as an essential condition precedent to the bargain’s
effectiveness. (Id. at pp. 929–930.)
       A court may set a deadline in the pretrial process for the acceptance of a plea
bargain to facilitate effective calendar management. (People v. Cobb (1983) 139
Cal.App.3d 578, 581.) A “trial court may decide not to approve the terms of a plea
agreement negotiated by the parties.” (Segura, supra, 44 Cal.4th at p. 931.) If the court
believes the agreed-upon disposition is not fair, it may reject the bargain, but it cannot
change the agreement without the consent of the parties. (Ibid.) “[Penal Code]
section 1192.5 impliedly vests a court with ‘broad discretion to withdraw its prior
approval of a negotiated plea.’” (People v. Stringham (1988) 206 Cal.App.3d 184, 199.)
       “‘Judicial discretion’” in this context has been described by our Courts of Appeal
as a power exercised to award justice based upon reason and law. (People v. Stringham,
supra, 206 Cal.App.3d at p. 199.) When either law or a fixed rule are lacking, a judge is
to decide a question with a view of expediency, or in the interests of equity and justice.
“‘The term implies absence of arbitrary determination, capricious disposition or
whimsical thinking. It imports the exercise of discriminating judgment within the bounds

                                             20.
of reason. Discretion in this connection means a sound judicial discretion enlightened by
intelligence and learning, controlled by sound principles of law, of firm courage
combined with the calmness of a cool mind, free from partiality, not swayed by sympathy
or warped by prejudice or moved by any kind of influence save alone the overwhelming
passion to do that which is just.’” (Id. at p. 200.)
        Our Supreme Court has stated that trial courts, when exercising discretion to
approve or reject proposed plea bargains, are charged to protect and promote the public’s
interest in protecting victims of crimes, vigorous prosecution of the accused, and
imposing an appropriate punishment. (In re Alvernaz (1992) 2 Cal.4th 924, 941
(Alvernaz.) As a result, “a trial court’s approval of a proposed plea bargain must
represent an informed decision in furtherance of the interests of society [citation]; as
recognized by both the Legislature and the judiciary, the trial court may not arbitrarily
abdicate that responsibility.” (Ibid.)
        Here, appellant made it clear he was accepting the plea agreement. First, appellant
stated “I’ll sign” before the court said it was not going to accept the plea. After the
court’s statement, appellant said he had already filled out the change of plea form, and
said, “I want to take it. I mean, I’m signing for it right now.” The court responded, “Too
bad.”
        Second, after the lunch recess, appellant stated through defense counsel that he
sincerely desired to take advantage of the plea bargain. The court said “that option has
been taken off the table. We’re going to go forward with a trial.”
        At no point did the trial court state that appellant’s negotiated plea agreement was
unfair or contrary to the public interest. The trial court did not indicate why the plea
bargain was unacceptable. According to the record, the jury pool was not present in the
courtroom that day until approximately 3:59 p.m., after the parties concluded motions in
limine. This record shows an arbitrary rejection of the plea agreement and a failure to
exercise the required judicial discretion. (Alvernaz, supra, 2 Cal.4th at p. 941.)

                                              21.
Accordingly, the trial court abused its discretion. We now turn to the subject of the
appropriate remedy.
       Appellant requests a remand so he can decide whether to accept the previously
negotiated agreement and, if he accepts it, the trial court should impose that sentence
unless a finding is made that the disposition is unacceptable based on legitimate grounds.
If he does not wish to accept the plea bargain, or if the court declines to approve it for
valid reasons, his conviction should be entirely vacated and the proceedings restored to
the original status quo. He asserts that the probation case should be incorporated within
this remedy as the negotiated disposition included both cases. He cites People v.
Kaanehe (1977) 19 Cal.3d 1, 13 (Kaanehe) to support his approach.
       Respondent contends specific performance of the plea bargain is not an
appropriate remedy even if error occurred. Respondent generally cites Alvernaz, supra, 2
Cal.4th 924. Although neither party’s Supreme Court case is on point, we take guidance
from these opinions as they discuss how and under what circumstances a previous plea
agreement should be enforced.
       In Kaanehe, the defendant appealed from a judgment entered upon negotiated
pleas of guilty. The Supreme Court determined that the prosecution breached the plea
bargain agreement and concluded that the defendant was entitled to be rearraigned for
resentencing or, at his option, to withdraw his guilty pleas and be arraigned again on all
charges. (Kaanehe, supra, 19 Cal.3d at pp. 5–6.) The breach occurred when the
prosecutor made recommendations to the trial court regarding the imposition of a prison
sentence despite agreeing to give up that right. (Id. at pp. 11–13.)
       Both the People and a defendant may seek specific enforcement. The remedy
depends on the nature of the breach and which party seeks to enforce it. When the
prosecutor refuses to comply with the agreement, specific enforcement would be an order
directing the prosecutor to fulfill the bargain. When the trial court refuses to sentence
according to the agreement, specific enforcement would direct the judge to resentence the

                                             22.
defendant according to the plea bargain. “The effect is to limit the remedy to an order
directing fulfillment of the bargain. In such instances, the defendant is not allowed to
withdraw his guilty plea.” (Kaanehe, supra, 19 Cal.3d at p. 13.)
       Kaanehe cautioned “that a defendant should not be entitled to enforce an
agreement between himself and the prosecutor calling for a particular disposition against
the trial court absent very special circumstances.” (Kaanehe, supra, 19 Cal.3d at p. 13.)
Instead, the preferred remedy is to allow a defendant to withdraw the plea and restore the
proceedings to the status quo. (Id. at pp. 13–14.) “Specific enforcement of a particular
agreed upon disposition must be strictly limited because it is not intended that a
defendant and prosecutor be able to bind a trial court which is required to weigh the
presentence report and exercise its customary sentencing discretion.” (Id. at p. 14.)
       Kaanehe determined specific enforcement was inappropriate because a substantial
possibility existed that the remedy would not completely repair the harm caused by the
prosecutor’s breach, and the breach was done willfully and deliberately. The Supreme
Court held that, because the breach was so glaring, the defendant needed the option of
either “rearraignment” for sentencing with the prosecutor’s previous communications
stricken from the record, or the right to withdraw his guilty pleas with the restoration of
all charges and resumption of trial proceedings. (Kaanehe, supra, 19 Cal.3d at pp. 14–
15.) Further proceedings had to occur before a new judge. (Id. at p. 15.)
       In Alvernaz, the Supreme Court decided under what circumstances a criminal
defendant could challenge a conviction and sentence when claiming a pretrial plea
bargain was rejected due to ineffective assistance of counsel. (Alvernaz, supra, 2 Cal.4th
at p. 928.) Alvernaz held a Sixth Amendment violation is present when a defendant
demonstrates that ineffective representation at the pretrial stage of a criminal proceeding
caused the defendant to proceed to trial even if a fair trial resulted. When such a
constitutional violation occurs, the judgment must either be modified consistent with the
terms of the offered plea bargain, or a new trial is required with resumption of the plea

                                             23.
negotiation process. (Alvernaz, supra, at p. 928.) To establish prejudice, a defendant
must prove he or she would have accepted the plea bargain, and it would have been
approved by the trial court. (Id. at pp. 940–941.)
       It was noted in Alvernaz that the remedy of specific enforcement of a failed plea
bargain is generally disfavored when it will limit the judge’s sentencing discretion in
light of changed circumstances between the acceptance of the plea and sentencing.
“Specific enforcement of a failed plea bargain is not a remedy required by the federal
Constitution.” (Alvernaz, supra, 2 Cal.4th at p. 942.) As a result, Alvernaz held that
specific enforcement of a plea offer following trial and conviction is neither
constitutionally required nor consistent with the trial court’s broad discretion in
determining the appropriate sentence for a defendant’s criminal conduct where
ineffective assistance of counsel causes a defendant to reject the pretrial plea bargain.
(Id. at p. 943.) Moreover, the Supreme Court noted that mandatory reinstatement of the
plea bargain would be inconsistent with the legitimate exercise of the prosecutorial
discretion involved in the negotiation and withdrawal of offered plea bargains. The
prosecution could view the case very differently following a fair trial and conviction.
The sentencing contemplated in the pretrial plea offer could no longer be consistent with
the public interest and a prosecutor should not be locked into the proposed pretrial
disposition. (Ibid.) Accordingly, “the appropriate remedy for ineffective assistance of
counsel that has resulted in a defendant’s decision to reject an offered plea bargain (and
to proceed to trial) is as follows: After the granting of relief by the trial court (on a
motion for new trial or in a habeas corpus proceeding) or by an appellate court, the
district attorney shall submit the previously offered plea bargain to the trial court for its
approval, unless the district attorney within 30 days elects to retry the defendant and
resume the plea negotiation process. If the plea bargain is submitted to and approved by
the trial court, the judgment shall be modified consistent with the terms of the plea
bargain.” (Id. at p. 944.) If plea negotiations are resumed, “the prosecution has acquired

                                              24.
as substantial bargaining leverage the circumstance of having obtained a conviction of the
defendant following a trial. The right to a new trial, however, does not leave the
defendant with an ‘empty’ remedy. A defendant is in a better position, in preparing for a
new trial following trial and conviction, to evaluate the strengths and weaknesses of both
the prosecution’s case and the defense’s case. Furthermore, such a defendant is restored
the bargaining leverage often afforded by the prosecutor’s desire to avoid the time and
expense of a new trial and the accompanying uncertainty as to the outcome of the
proceedings.” (Ibid.)
       Here, consistent with the reasoning in these opinions, it is apparent we cannot
divest the trial court of its sentencing discretion. (Alvernaz, supra, 2 Cal.4th at p. 942;
Kaanehe, supra, 19 Cal.3d at p. 14.) Although the present matter does not involve a
finding of ineffective assistance of counsel, the remedy discussed in Alvernaz appears
appropriate as it implements the dual concerns of protecting appellant’s rights while also
providing prosecutorial discretion. (Alvernaz, supra, at p. 943.)
       Accordingly, upon remand, the district attorney shall submit the previously
negotiated plea bargain to the trial court for its approval, unless the district attorney
within 30 days elects to retry appellant and resume the plea negotiation process. Because
the previously offered plea bargain included both cases, we agree with appellant that the
probation case should be included within this remedy. If the plea bargain is submitted to
and approved by the trial court, the judgment shall be modified consistent with the terms
of the plea bargain. (Alvernaz, supra, 2 Cal.4th at p. 944.) If the plea bargain is either
not submitted to the trial court or is not approved, then appellant shall be retried.4




4      In light of the remand, we will not address appellant’s final contention that he was denied
his constitutional right to effective assistance of counsel and due process. We take no position
regarding the merits of appellant entering an NGI plea if appellant is retried.


                                               25.
                                       DISPOSITION
       The judgment is reversed. The sentences in both cases (case No. BF151668A &
case No. BF144483A) are vacated. These matters are remanded to the trial court for
further proceedings. The district attorney shall submit the previously negotiated plea
bargain to the trial court for its approval, unless the district attorney within 30 days elects
to retry appellant and resume the negotiation process. If the previously negotiated plea
bargain is submitted and approved by the trial court, judgment shall be entered consistent
with the terms of the plea bargain. If the previously negotiated plea bargain is either not
submitted to the trial court or not approved, then appellant shall be retried.


                                                           ___________________________
                                                                              KANE, J.

WE CONCUR:


___________________________
HILL, P.J.


___________________________
GOMES, J.




                                              26.
