People v. Lutman

CHRISTIAN, J.

I respectully dissent.

An additional or different plea may be received by the court for good cause shown “at any time before the commencement of the trial.” (Pen. Code, § 1016.) Strictly speaking, trial of the present action had not commenced when the defense made its motion; selection of the jury had not been completed. Moreover, upon a sufficient showing of good cause, a change of plea may be received even after a trial has commenced. (In re Kubler (1975) 53 Cal.App.3d 799 [126 Cal.Rptr. 25].) It lies within the discretion of the trial court to determine whether to allow a change of plea (Magee v. Superior Court (1973) 34 Cal.App.3d 201 [109 Cal.Rptr. 758]), and the responsibility rests upon the defense to show good cause for a change of plea. (People v. Boyd (1971) 16 Cal.App.3d 901 [94 Cal.Rptr. 575].) The question is whether in the present case the defense made a sufficient showing in support of the motion that, under the new test, appellant was legally insane at the time of the commission of the crime. (People v. Morgan (1935) 9 Cal.App.2d 612 [50 P.2d 1061].) The testimony of Dr. Lerner was that appellant “might” fit within the broader definition of insanity adopted in the Drew decision. Review of Dr. Lerner’s testimony does not disclose any substantial showing that appellant was insane under the American Law Institute test. Moreover, by terms of the Drew decision, the new test was not applicable until Drew became final on November 1, 1978, after the conclusion of appellant’s trial. It was not an abuse of discretion to deny the motion to enter a plea of not guilty by reason of insanity.

I would affirm the judgment.

A petition for a rehearing was denied April 14, 1980. Christian, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied May 28, 1980. Clark, J., was of the opinion that the petition should be granted.