Filed 7/26/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO T. LOYA,

Defendant and Appellant.

F069487

(Super. Ct. Nos. BF144483A & 

BF151668A)

OPINION

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.
2.

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.
3.

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 
4.

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.
5.

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.
6.

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 
7.

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.
8.

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.
9.

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).
10.

“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—
11.

“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 
12.

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.
13.

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 
14.

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 
15.

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.
16.

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.)
17.

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. 
18.

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.
19.

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.”
20.

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 
21.

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.) 
22.

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 
23.

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 
24.

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 
25.

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.
26.

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.