Ronald Pennywell v. Ruth Rushen, Director, California Department of Corrections, Respondent

The government’s petition for rehearing is granted. The memorandum decision, filed January 3, 1983, is withdrawn. The suggestion for en banc review has been circulated to all active circuit judges, and none has called for a vote on the en banc suggestion. Review en banc is denied.

The following opinion is the decision of the court after rehearing.

In this appeal from a denial of a habeas corpus petition, we consider whether the failure of California courts to give Penny-well a trial on his insanity plea violated federal due process. We conclude it did not and affirm the district court’s judgment.

FACTS

Pennywell was convicted in 1976 of first 'degree murder and attempted first degree murder. His conviction was affirmed on direct appeal in 1978. His state habeas corpus petitions were denied in 1980, satisfying the requirement of exhaustion of state remedies.

At his arraignment in state court, Penny-well appeared pro se and attempted to plead not guilty and not guilty by reason of temporary insanity. The court informed him that “temporary insanity” was not a plea under California law. When he persisted in the plea, the court on its own motion entered pleas of not guilty and not…