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[No. D011858. Fourth Dist., Div. One. Sept. 20, 1990.]

THE PEOPLE,

                                Plaintiff and Appellant,
v.

ROBERT HENRY HACKETT,

                                Defendant and Respondent.
_________________________________________________

In re ROBERT HENRY HACKETT on Habeas Corpus.
_________________________________________________/

SUMMARY

    On petition of a defendant convicted of arson, the trial court granted a writ of allowing defendant to withdraw his guilty plea based on evidence of a defense to the crimes discovered after the plea. Defendant had been taking prescribed drugs prior to the crimes, and claimed to have no memory of doing so. While he was in prison, prescription drugs were found in his belongings dated near the time of the offenses and of a type that an expert testified could cause anterograde amnesia. (Superior Court of San Diego County, Nos. CR89919, CR89636, Milton Milkes, Judge.)

    The Court of Appeal affirmed, and dismissed the consolidated petition for writ of habeas corpus as moot. The court held the writ of may be used to vacate a judgment and allow a criminal defendant to withdraw a guilty plea which was based on a justifiable misunderstanding of crucial facts relevant to the offense. It further held the court should grant the writ based on newly discovered evidence if the presentation at the hearing establishes that a reasonable person in the defendant's position, had he been aware of the new evidence, would not have entered a guilty plea and forfeited his "substantial right" to a trial. Applying that standard, the court held the trial court properly granted the writ. (Opinion by Wiener, Acting P. J., with Work, J., concurring. Separate dissenting opinion by Benke, J.)

COUNSEL

Edwin L. Miller, Jr., District Attorney, Thomas F. McArdle and Robert C. Phillips, Deputy District Attorneys, for Plaintiff and Appellant.

Paul J. Spiegelman, under appointment by the Court of Appeal, for Defendant and Respondent.

WIENER, Acting P. J.-In this People's appeal we consider whether the trial court acted properly in granting a writ coram nobis allowing defendant Robert Henry Hackett to withdraw his guilty plea based on significant evidence of a defense to the charged crimes discovered after the plea. We conclude substantial evidence supports the trial court's determination and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

    Between August 13 and August 20, 1987, a number of brush fires were intentionally set by means of combination matchbook/cigarette incendiary devices at various locations in eastern and southern San Diego County. On August 20, Hackett was observed throwing such a device out the window of his van. Following his arrest, a search of Hackett’s van yielded other similar devices.

    Hackett, who had no prior criminal record, was charged with 10 counts of arson. (Pen. Code, § 45 1, subd. (c).) He did not deny setting the fires but claimed to have no memory of doing so. He also complained generally of blackouts.

    In the months preceding his arrest, Hackett's wife had divorced him and forced him to move from the family home, he had lost custody of his children and lost his job. He lived either with family members or most often in his van. In response to these events, Hackett became extremely despondent and drank excessive amounts of alcohol. He was treated by psychiatrists at Kaiser Permanente Medical Group.

    Investigating a possible unconsciousness defense, Hackett's court-appointed counsel Alan Fenton obtained Hackett’s medical records from Kaiser and consulted one of Hackett's psychiatrists, Dr. James Moodie. Although Moodie was no longer treating Hackett, he confirmed that psychiatrists at Kaiser had prescribed two similar tranquilizers, Halcion and Xanax, beginning in February 1986. The Kaiser records indicated that the last prescription was for Xanax (30 pills) and was filled on April 27, 1987. The last prescription for Halcion had been written in January of that year.

    In his discussions with Fenton, Moodie rejected any connection between the drugs and Hackett's claimed blackout symptoms, attributing them instead to excessive consumption of alcohol. He explained that the tranquilizers would simply slow Hackett down. Moodie also dismissed the possibility there would be drugs left from a prescription which had been filled three and one-half months before the first arson incident.

    Fenton obtained the appointment of a psychiatrist and neurologist to examine Hackett and provided each with a copy of Hackett's Kaiser records. Neither could provide any support for Hackett's blackout claims and neither mentioned the tranquilizers as a possible foundation for an unconsciousness defense.

    Based on his investigation, Fenton advised Hackett to accept an offered plea bargain to three counts of arson. Hackett pled guilty in December 1987 and was later sentenced to six years in state prison.

    In January 1989, Hackett's sister Deanna Jarvis was allowed to take possession of Hackett's personal belongings which the police had discovered when they impounded Hackett's van at the time of his arrest. Among the items returned to her was a shaving kit. Inside she found four prescription bottles. One bottle, a prescription for thirty pills of Xanax, now contained only three pills. The label showed that the prescription had been refilled on August 7, 1987, 13 days before Hackett's arrest. [FOOTNOTE 1] The kit also included prescriptions for Trazodone, an antidepressant, and Dephenoxylate w/atropine, an antidiarrhea medication which, when taken with a tranquilizer, can increase the effects of both drugs.

    Jarvis sent copies of the prescription labels to Fenton along with tile transcript of an "Hour Magazine" television show which aired on June 20, 1988, and featured Dr. Martin Scharf, associate clinical professor of psychiatry at the University of Cincinnati and director of the Center for Research and Sleep Disorder at Mercy Hospital in Cincinnati. On the show, Scharf discussed the possible side effects of the drug Halcion which include "anterograde amnesia" which he explained as "forgetting things that happen forward in time after one takes the medicine." Scharf also mentioned the possibility that the drug could cause personality changes.

    Armed with this information, Fenton filed a petition for writ of coram nobis on Hackett's behalf, seeking to withdraw the guilty plea. Dr. Scharf testified at the evidentiary hearing on the petition. He explained that Xanax and Halcion belong to the family of drugs known as benzodiazepines as do other common tranquilizers such as Valium and Librium. Although they have traditionally been marketed differently-Halcion as a sleeping pill and Xanax as a tranquilizer-Scharf stated that the prescription of both to the same patient "suggests a lack of appreciation or understanding of what the drugs are. One is marketed as a sleeping pill and one is marketed as it tranquilizer. But the fact is that the tranquilizer can sedate you and help you sleep. And there is never a justification for prescribing more than one benzodiazepine at the same time."

    Scharf testified that both Halcion and Xanax can cause anterograde amnesia and disinhibition, which he defined as "doing things that they would not normally do; doing things that they have never done before, doing things that there was no basis in their past history to explain." Although he was unaware of any reports claiming that persons suffering from benzodiazepine intoxication had started fires, he related examples where persons under the influence of benzodiazepines-principally Halcion-have engaged in a wide range of antisocial behavior including sexual aggression and even homicide.

    Scharf also commented that the potential for such side effects call be affected by other circumstances. For instance, when benzodiazepines are taken together with alcohol or other benzodiazepines, the potential for disinhibition is increased. The danger is also increased if benzodiazepines are administered to an individual suffering from depression because benzodiazepines, as tranquilizers, generally exacerbate depression. In addition, antidiarrhea medications which reduce the motility of the digestive system serve to retard the absorption of benzodiazepines and therefore increase the period of time during which an individual may be subject to side effects.

    Because Scharf is not a psychiatrist and had not examined Hackett, he was careful to limit his testimony. "The question in my mind is would he have done this, [if] not for this combination of medications . . . . [W]hat I bring to this courtroom is experience that suggests that benzodiazepines can cause this type of disinhibition and cause amnesia and what the court has to decide is whether or not this patient or this individual is telling the truth."

    Two psychiatrists and a psychologist testified on behalf of the People at the hearing including Dr. Moodie from Kaiser. In varying ways they related their opinions that the arson incidents were not a product of Hackett having taken Xanax alone or in combination with alcohol and other drugs.

    In an 11-page opinion following the hearing, the trial court explained its reasons for granting the writ coram nobis to allow Hackett to withdraw his guilty plea. After reviewing in some depth the evidence presented at the hearing, the court summarized as follows: "Since the defendant's theory under the writ is anitiesia, he cannot be expected to testify as to his recollection of taking medication, the combination and dosage, at or around the time of the fire. There is a hiatus in the testimony. Circumstantially, there is an inference by the refilling of the Xanax prescription on August 7, 1987 shortly before the fires, with only 3 remaining pills out of 30, tends to establish the petitioner was medicated . . . . The defendant [also] requested the refilling of Halcion in March of 1987. The Kaiser records do not show any refill. (However, the records also fail to show the Xanax refill.) The evidence is inconclusive as to number of pills, if any; the combination of drugs the defendant ingested it or near the time of the setting of' the fires in East County and South Bay. An inference can be drawn doubting amnesia; however, an inference can also be drawn supporting the defendant's claim of anteriograde [sic] amnesia.

    "If the defendant were feigning amnesia it would appear to be against his own self interest. There is only one year left of his sentence until his release date. By setting aside the negotiated plea and reinstating the original charges, defendant, if found guilty by the jury, faces a long-term prison commitment thwarting the benefits of the plea bargain.

. . . . . . . . . . . . . . . . . . . .

    "In the instant case: (i) The Court accepts Mr. Fenton’s (trial counsel) testimony under oath that he did not know at the time of the plea-defendant's use or potential use of drugs causing amnesia at the time of the fires; that had he known, he would have presented the case differently or attempted a defense before a jury. (ii) The guilty plea did not go to the merits of the newly-discovered evidence: Xanax, Halcion and Trazodone. (iii) The petitioner used due diligence in petitioning the Court for relief at the earliest possible time . . . . Thus, the burden of satisfying the three requirements as set forth in People v. Shipman, (1965) 62 C[al.]2d 226, has been met by clear and convincing evidence.

". . . . . . . . . . . . . . . . . .

    "Here, in this matter, had the sentencing Court known of the evidence presented during this hearing, a different sentence, more receptive to probation or a mitigated term would have been rendered." [FOOTNOTE 2] (Italics in original.)

DISCUSSION

    Although more commonly invoked to invalidate a guilty plea alleged to have been procured by fraud or duress (see generally 6 Witkin, Cal. Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court, § 3124, p. 3856), writs of error coram nobis or coram vobis [FOOTNOTE 3] have been successfully utilized to vacate a judgment and allow a criminal defendant to withdraw a guilty plea which was based on a justifiable misunderstanding of crucial facts relevant to the offense. (See People v. Welch (1964) 61 Cal.2d 786 [40 Cal.Rptr. 238, 394 P.2d 926]; People v. Shipman (1965) 62 Cal.2d 226, 233 [42 Cal.Rptr. 1, 397 P.2d 993]; see also People v. Wiedersperg (1975) 44 Cal.App.3d 550 [118 Cal.Rptr. 755].)  As the Supreme Court summarized in Shipman, "[t]he writ of coram nobis is granted only when three requirements are met. (1) Petitioner must 'show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.' [Citations.] (2) Petitioner must also show that the 'newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.' [Citations.] . . . (3) [Finally, [p]etitioner 'must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ . . . .' [Citations.]" (62 Cal.2d at p. 230.)

    The Supreme Court decisions in both People v. Welch and People v. Shipman present facts analogous to this case. In Welch, the defendant was alleged to have committed a robbery and two murders after having consumed substantial quantities of beer. He pled guilty. An electroencephalographic examination conducted at San Quentin prison nearly a year after sentencing revealed significant brain damage. Later investigation disclosed that defendant had suffered an acute case of encephalitis when he was five years old which caused the brain damage. Although defendant knew he had been ill as a child, he did not know the nature of the illness before the prison tests. Prior criminal conduct by the defendant also occurred after he consumed alcohol. A psychiatrist theorized "that defendant's reactions to such beverages 'indicate to me that he experienced episodes of automatic behavior when drinking followed by amnesia’ . . . ." (61 Cal.2d at p. 789.) Although recognizing the limited nature of the coram nobis procedure, the court concluded that the writ should be granted allowing the defendant to withdraw his plea. (Id. at pp. 793-795.)

    Similarly in People v. Shipman, the defendant contended that due to the consumption of drugs, he was legally insane at the time he assaulted two police officers with a deadly weapon. He further asserted he was in at drugged state at the time he entered his plea. The Supreme Court approved the trial court's decision to hold a hearing on the petition for writ coram nobis, noting that "[a]lthough the psychiatrist's report casts some doubt oil whether the effects of the drug were present at the time defendant pleaded guilty, we cannot say that the trial court erred in setting the petition for hearing. Defendant's allegations, if true, would meet the requirements for a writ of coram nobis." (62 Cal.2d at p. 233.)

    The People argue this case is distinguishable from Welch and Shipman because Hackett and his appointed counsel Fenton should have known of the facts on which a defense of drug-induced unconsciousness could have been based. As the trial court pointed out in its ruling, however, at and since the time of his arrest Hackett has claimed amnesia and could not be expected to testify to what drugs he was taking at what times in what amounts. The People place primary emphasis, in any event, on Fenton’s conduct, asserting he should have checked standard medical reference texts such as the Physician’s Desk Reference which would have disclosed anterograde amnesia as a possible side effect of Halcion. They also fault Fenton for failing to check Hackett's van himself and failing to investigate the August 7 prescription receipt (see ante, fn. 1). [FOOTNOTE 4]

    The question of whether trial counsel has exercised reasonable diligence in investigating a case is a fundamentally factual inquiry as to which the trial court must be accorded substantial deference. As the Supreme Court has observed in a different context, "the prosecution or defense of a lawsuit involves the difficult problem of balancing the effectiveness of any given tactic or procedure against its costs in terms of time and expense." (Hocharian v. Superior Court (1981) 28 Cal.3d 714, 720 [170 Cal.Rptr. 790, 621 P.2d 829].) The practical leeway which this observation implicitly allows for is no less applicable to criminal defense counsel than it is to the People. (See People v. Harvey (1984) 163 Cal.App.3d 90, 108 [208 Cal.Rptr. 910].) Here, the trial court heard testimony from both Fenton and Dr. Moodie and concluded that a reasonable attorney would not necessarily have pursued further inquiry after learning Moodie's opinions on the matter. We think substantial evidence supports the trial court's conclusion. [FOOTNOTE 5]

    In a broadly based attack, the People also contend the trial court misunderstood or misapplied the standard to determine whether the evidence presented at the hearing established that Hackett had been deprived of a significant defense. Although they acknowledge the trial judge's ruling indicates he was aware that Hackett bore the burden of making his case by clear and convincing evidence (ante, p. 1494; see People v. Tucker (1957) 154 Cal.App.2d 359, 362 [316 P.2d 417]; People v. Shorts (1948) 32 Cal.2d 502, 508 [197 P.2d 330]), they assert the evidence is insufficient to meet this exacting standard in demonstrating Hackett was "deprived of substantial legal rights by extrinsic causes." (Tucker, supra, 154 Cal.App.2d at p. 362.) In particular, they seek to derogate Dr. Scharf's hypothetical testimony while emphasizing that the mental health professionals who examined Hackett found his claims of amnesia incredible. In effect, the People claim it is unlikely a jury trial on the merits will result in Hackett's acquittal. Hackett responds that in seeking to withdraw his guilty plea he should not be required to prove his factual innocence.

    The few cases which have dealt with the withdrawal of a guilty plea based on newly discovered evidence have not been explicit as to the necessary effect of the new evidence. Must the trial court simply determine the defendant would not have entered the plea had he known of the evidence? Or must the defendant show he would not have been convicted had he taken the matter to trial? Or is some other standard appropriate?

    While a totally subjective standard has some theoretical appeal because it returns the parties to the status quo ante, it is outweighed by the practical drawback that it would render plea bargains virtually unenforceable at the defendant's option whenever it could be claimed that some new fact "would have made me change my mind" about the decision to plead. On the other hand, a standard which required the defendant to prove his defense in the coram nobis proceeding would effectively compel him to accept a judge as the trier of fact and deny him his right to a jury.  Our reading of the limited precedent in this area convinces us a court should grant a coram nobis petition based on newly discovered evidence if the presentation at the hearing establishes that a reasonable person in the defendant's position, had he been aware of the new evidence, would not have entered a guilty plea and forfeited his "substantial right" to a trial. [FOOTNOTE 6] (See People v. Tucker, supra,154 Cal.App.2d at p. 362.) This objective standard allows the court to independently evaluate the materiality of the new evidence instead of relying on the defendant's sometimes self-serving assertions. It also dovetails with recently articulated standards for assessing the effectiveness of counsel since in most cases of newly discovered evidence, a reasonable defendant will not seek to withdraw a negotiated plea unless there is a "reasonable probability" of a more favorable result following a full trial. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698, 104 S.Ct. .2052]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [233 Cal.Rptr. 404, 729 P.2d 839]; see generally People v. Howard (1987) 190 Cal.App.3d 41 [235 Cal.Rptr. 223]; compare ante, fn. 5.)

    The People recognize that in addressing their sufficiency-of-the-evidence arguments, we are bound by the substantial evidence standard of review. Here, the newly discovered evidence effectively established that Hackett was taking significant amounts of Xanax in the 13 days before his arrest on arson charges. He may have been taking other medications as well. It is apparently undisputed that he was drinking large amounts of alcohol during this period. The real question to be answered is what is the psychological significance of these substances, singly and together, in affecting Hackett's behavior and mental state. The trial court heard testimony from Dr. Scharf, a nationally recognized expert on the psychopharmacology of benzodiazepines, and compared it with the opinions of two psychiatrists and a psychologist who had examined Hackett at various points in time. The credibility of experts and the weight to be accorded their testimony is a quintessential question of fact for the trial judge. While Dr. Scharf did not offer an opinion on whether Hackett was being truthful, he was able to state that many of the factors the People's witnesses relied on were not necessarily inconsistent with aberrant drug-induced behavior. It may have been that Dr. Scharf’s mastery of the subject matter and breadth of experience with the drugs at issue made his testimony particularly believable. Moreover, as the trial court pointed out, it seems unlikely Hackett would pursue the withdrawal of his plea based on a fabricated claim of drug-induced amnesia and disinihibition where his sentence has almost been completed and reinstated charges would create the possibility of a longer prison term. In any event, we cannot say the evidence is insufficient to support the conclusion that a reasonable defendant in Hackett's position would not have entered a guilty plea had he known of the newly discovered evidence. [FOOTNOTE 7]

DISPOSITION

    Judgment affirmed. In light of this disposition, the consolidated petition for writ of habeas corpus (No. D011858) is dismissed as moot.

Work, J., concurred.

BENKE, J., Dissenting.-Coram nobis relief will lie only where it can be demonstrated the facts on which petitioner relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of the motion for the writ. (People v. Shipman (1965) 62 Cal.2d 226, 230 [42 Cal.Rptr. 1, 397 P.2d 993].) There is little doubt in my mind that had there been a search of all of petitioner's personal effects, including those in his vehicles, the existence of the drugs now forming the basis for relief would have become known. These drugs were not hidden. They were in his shaving kit, a place where one might have reasonably expected such items to be found.

    I believe the proper resolution of this case and ultimate withdrawal of' petitioner's plea rest upon whether defense counsel adequately investigated and prepared this case. Thus, I would deny the writ of coram nobis and address the issue of whether petitioner received adequate representation by counsel below.

Footnote 1: An inventory which was completed after the search of Hackett's van fails to list any of the prescription bottles. It does include a Kaiser prescription receipt for an unknown substance dated August 7, 1987. Fenton apparently was aware of the inventory list.

Footnote 2: The judge concluded with the following notation: "The Court is not Opposed to vacate the sentence with a hearing to resentence, at which time the Court will consider an application for probation or a mitigated term. However, it is the Court's understanding that the defendant chooses to proceed with a jury trial after a not guilty plea. Fairness and justice are best served by the granting of this Writ." (Italics in original.)

Footnote 3: The variance in labels has significance only with regard to where the relief is sought. Coram nobis is directed to the trial court which entered the judgment; coram vobis is directed to the appellate court. (Sec In re Lindley (1947) 29 Cal.2d 709, 726 [177 11.2d 918].)

Footnote 4: In a separately captioned argument in their opening brief, the People assert that coram nobis relief is inappropriate because of a lack of state involvement. In their reply brief, the People appear to concede Hackett is correct that such a requirement applies only in situations where the defendant seeks to withdraw his plea based on mistake) advice provided by defense counsel. (See, e.g., In re Nunez (1965) 62 Cal.2d 234, 236 [42 Cal.Rptr. 6, 397 P.2d 998].) They go on to argue that this is not a case of newly discovered evidence, only negligence by counsel in investigating a potential defense.

    If the latter is the sole remaining contention, we have addressed it in our conclusion that substantial evidence supports the trial court's determination that defense counsel acted reasonably. To the extent the People continue to assert that state involvement is a necessary predicate where the defendant seeks coram nobis relief based on newly discovered evidence, such an argument is inconsistent with the Supreme Court's decisions in People v. Welch and People v. Shipman.

Footnote 5: Even if we were to conclude Fenton was negligent in conducting his factual investigation, we would then have to address Hackett's consolidated petition for writ of habeas corpus alleging ineffective assistance of counsel in failing to discover the relevant facts before Hackctt entered his plea. We have difficulty seeing how the result in this case would change depending on which procedural avenue our conclusions lead us down.

Footnote 6: In Welch, for example, the court ordered reinstatement of defendant's pleas of not guilty and not guilty by reason of insanity. The case was then remanded to the superior court for further proceedings, presumably a trial by jury.

    Support for the conclusion that defendant need not establish his factual innocence in a coram nobis proceeding is also provided by People, v. Wiedersperg, supra 44 Cal.App.3d 550. There the defendant, a citizen of Austria, alleged that at the time he pled guilty he was unaware the conviction might result in his deportation from the United States. He further alleged on information and belief that the trial judge was unaware of the deportation possibility and would not have sentenced the defendant in the same way had he known. The court held that the petition stated facts which would justify the grant of coram nobis relief. (Id. at pp. 554-555.) Clearly under such circumstances, the Wiedersperg court did not believe that proof of a defense to the underlying charge was a prerequisite to writ relief.

Footnote 7: The People also take issue with the suggestion in the trial court's written decision that the writ could be granted solely to allow the court to resentence Hackett to probation or a shorter term of imprisonment. (See ante, p. 1494.) That discussion, however, is entirely hypothetical because Hackett has continually sought the opportunity to withdraw his plea. Assuming the People are correct and the court has no power to implement the hypothetical suggestion, that certainly provides no basis for us to reverse the court's entirely supported decision to allow Hackett to withdraw his plea.