P. v. Wilcox

Filed 1/27/09 P. v. Wilcox CA4/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.

Nicole Kathleen Wilcox was convicted following a court trial of one count of arson (Pen. Code,^[1] 451, subd. (b)). The court suspended imposition of sentence and placed Wilcox on probation for three years, subject to treatment and restitution conditions.

Wilcox appeals contending the trial court erred in allowing the case to proceed without a not guilty by reason of insanity plea, and in excluding evidence of mental disease or defect as a defense to the crime of arson. We will reject both contentions and affirm.

PROCEDURAL BACKGROUND

This appeal addresses questions of law and does not challenge the sufficiency of the evidence. Accordingly we will omit a statement of facts and deal with such facts as are relevant to the analysis of legal questions in the discussion section of this opinion.

Wilcox was originally charged with arson in August 2006. She was found incompetent to stand trial in September 2006 and committed to a state hospital. When she was returned and found competent in March 2007, the prosecution dismissed the case and filed the current case.

When the case was called for trial in November 2007, the prosecution dismissed all counts in the information except the arson count. The parties waived the right to a jury trial. After a court trial Wilcox was convicted of arson. Wilcox has filed a timely notice of appeal.

DISCUSSION

1. The Record Does Not Demonstrate That Wilcox Was Denied the Opportunity toPersonally Decide Whether to Enter a Plea of Not Guilty by Reason of Insanity (NGI).

Wilcox first contends the trial court erred in permitting the trial to go forward based on trial counsel's decision not to enter a NGI plea. Wilcox argues that she has the personal right to enter or not enter such plea and that trial counsel could not make such decision for her. The record in this case does not show that Wilcox desired to enter a NGI plea, nor does it show she was denied the opportunity to do so.

At the time this case was called for trial, Wilcox had not entered a NGI plea, nor is there any record of discussion before that date as to whether such plea would be in her best interest. During the presentations of the in limine motions the parties discussed defense counsel's request to introduce evidence of mental disability on the question of whether Wilcox had the requisite mental state for the crime of arson. In those discussions the court noted the defense witness was prepared to testify that Wilcox did not know right from wrong at the time of the offense. The trial court inquired of defense counsel about the absence of a NGI plea. The record demonstrates that Wilcox was present during those discussions. The discussion between court and counsel was:

"The Court: Based on what you've just told me the doctor says about her mental state, why aren't you raising an NGI plea, or defense? I mean, what you just told me that doctor says is that she was legally insane.

"[Defense counsel]: That's true. He did say that in his report, but I'm not raising that defense and -- I'm not raising that defense because I don't want to see her go away to a mental institution for the rest of her life. That's why I'm not raising that defense.

"The Court: And I don't mean to raise a kink in here at all, but since the issue has been raised, have you discussed that with your client?

"[Defense counsel]: That's my purview entirely.

"The Court: I actually think that there is a case that says that it's the defendant's personal right --

"[Defense counsel]: Can I have a moment to call my appellate unit?

"The Court: I probably should have pulled that case when I read it. It was also a local case. It was a local San Diego case. And let's make sure that it's not in this [People v. Geddes (1991) 1 Cal.App.4th 448 (Geddes)]. [] Yes, it is. It's right here. [] Recognizing that the decision to enter an NGI plea is a personal one for the competent defendant, the judge in that case directly spoke with the defendant to assure herself that the defendant fully understood the nature of the NGI plea and the reasons, tactical and whatever, for not proceeding with it. [] So given -- I actually didn't read your doctor's reports because I wasn't sure, again, whether this was going to be an issue for me as a trier of fact or whether they were for sentencing. So -- but now that you've indicated that, I think that maybe we should take a moment so that you can talk with your client.

"[Defense counsel]: Well, I know that when you take an NGI plea the defendant has to personally give the NGI plea, but I still-- can I have a minute just to --

"The Court: Sure.

"[Defense counsel]: Yeah.

"The Court: All right. We'll be in recess for a few minutes.

(Recess)

"The Court: We're back on the record. [] And I think we got sort of sidetracked, but I was asking you based on what you had just told me about the fact that -- or questioning why an NGI plea wasn't entered. And you were indicating to me that that is your tactical decision --

"[Defense counsel]: Right.

"The Court: -- on behalf of your client. [] But be that as it may, when you make those types of tactical decisions, the court has to rule then based on what the law is in a noninsanity case."

There is no dispute that Wilcox had the right to enter a NGI plea, even over her counsel's objection. (People v. Clemons (2008) 160 Cal.App.4th 1243, 1251.) A defendant would also have a right to withdraw such a plea. (People v. Redmond (1971) 16 Cal.App.3d 931, 938.) The question in this case, however, is whether the trial court had an obligation to inquire as to whether Wilcox personally wanted to enter a NGI plea, notwithstanding her counsel's advice. There is no authority cited, nor have we found any requiring a trial court to bypass defense counsel and inquire of the defendant to determine why a NGI plea has not been entered. This court addressed the question briefly in a footnote in Geddes, supra, 1 Cal.App.4th 448, 454, footnote 4. There we rejected an argument that Redmond, supra, 16 Cal.App.3d 931, required an advisement to determine if a defendant wished to enter such a plea. Nothing has occurred since Geddes to cause us to hold a different view.

Certainly this case does not present any reason to establish an advisement rule where a defendant has not entered a NGI plea and counsel has informed the court of the reasons for the decision. Here Wilcox was present when the court first raised the question of why no NGI plea had been entered. Counsel explained the tactical reasons to the court in the presence of the defendant. When the court questioned the decision, counsel requested time off the record, which was granted by the court. When proceedings were resumed there was no further mention of a NGI plea. Wilcox has not raised a claim of ineffective assistance of counsel, and cannot do so on this record. Defense counsel offered a sound reason why Wilcox would be better served by avoiding a NGI plea and the possible civil commitment that could follow. As we have indicated the discussion occurred in the presence of the defendant and there is no reason on this record to assume such tactical decision was contrary to any personal desire Wilcox may have had to enter a NGI plea. Accordingly, we conclude no error is shown on this record.^[2]

2. The Court Properly Excluded Evidence of Mental Disease on the Mental State

for Arson.

Wilcox contends the trial court erred in precluding her from introducing evidence of mental illness in order to raise a reasonable doubt that she entertained the necessary mental state for the crime of arson. The resolution of this contention is controlled by the decision in People v. Atkins (2001) 25 Cal.4th 76 (Atkins). There the court determined that arson is a so-called general intent crime and the evidence of mental impairment is not admissible on the question of whether the defendant harbored the requisite intent for that crime. Wilcox recognizes the controlling authority of Atkins but seeks to distinguish this case from Atkins on the basis that the mental impairment at issue in Atkins was voluntary intoxication whereas this case involved evidence of mental disease or defect. We find the proposed distinction is not persuasive and that Atkins compels a determination that the offered evidence was not admissible.

At trial Wilcox offered testimony of mental health experts that she set fire to the chair in her apartment as a result of both auditory hallucinations and delusions about voices coming from the chair. The evidence was not offered to establish unconsciousness. The evidence was offered on the theory it would raise a reasonable doubt that she acted "willfully and maliciously" as required by statute.

In Atkins, supra, 25 Cal.4th 76, 81-86, the court determined that arson was a general intent crime, which requires only the intent to do the act that is the basis of the crime. The court concluded that "willfully and maliciously" is established by proof of the intent to do a wrongful act. Thus, evidence of a defendant's impaired mental state due to voluntary intoxication was not relevant to prove or disprove the necessary mental state.

Wilcox argues that we should resolve this case differently because the public policy issues limiting the availability of the voluntary intoxication defense are not present when the impairment is based on mental disease or defect. Wilcox misunderstands the impact of the court's decision in Atkins, supra, 25 Cal.4th 76.

While the impairment in Atkins, supra, 25 Cal.4th 76,was due to voluntary intoxication, the principal basis of the court's decision was its conclusion that arson was a general intent crime and that it did not require any specific mental state, purpose or knowledge. Thus the question of admissibility of evidence of mental impairment is controlled by section 28.

Section 28, subdivision (a) provides in part: "Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."

Case law establishes that evidence of a defendant's mental disease is not admissible on the question of whether a defendant acted with "general intent." (People v. Jefferson (2004) 119 Cal.App.4th 508, 519; People v. Guiterrez (1986) 180 Cal.App.3d 1076, 1080-1082.). Thus, once it is determined that arson does not require a specific intent, knowledge or purpose, section 28 renders evidence of mental disease or defect irrelevant. The combination of the Atkins conclusion that arson is a general intent crime and section 28 support the trial court's decision in this case. The court correctly found the proffered evidence to be inadmissible .

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Wilcox is certainly free to seek appropriate writ relief in the superior court if she believes there is some basis for a claim of ineffective assistance of counsel. (People v.Mendoza Tello (1997) 15 Cal.4th 264, 267-268.)