I dissent.

Defendant’s plea of not guilty by reason of insanity was improperly withdrawn. Penal Code section 1018 unequivocally provides that “Unless otherwise provided by law every plea must be put in by the defendant himself in open court. ’ ’ Penal Code section 1016 enumerates the five pleas that may be entered, including ‘ ‘ 5. Not guilty by reason of insanity. ’ ’ Read together these sections set forth a clear statutory procedure: unless otherwise provided by law, the pleas enumerated in section 1016 must be put in by the defendant himself in open court. The purpose of section 1018 is to ensure that the defendant in a criminal action personally puts in issue the issues raised under any of the pleas included in section 1016. Since the withdrawal of a plea removes from litigation an issue that the defendant has personally put in issue, the withdrawal must also be by the defendant personally. Otherwise the issues to be litigated would not include those raised by defendant personally. Defendant had personally put his sanity in issue by his plea in open court of not guilty by reason of insanity. That issue remained in the case, for it was not personally withdrawn by defendant. Counsel’s withdrawal of the plea of not guilty by reason of insanity removed a legal excuse for the crime and was in effect a plea that “whereas before I pleaded that I did not do this act, but if I did, I am to be excused, now I plead that I did not do this act, but if I did, I have no excuse.” Such a plea was not defendant’s own as section 1018 requires.

In People v. Rogers, 56 Cal.2d 301 [ 14 Cal.Rptr. 660 , 363 P.2d 892 ], we reversed a judgment of conviction of murder in the second degree where, after defendant had personally pleaded not guilty pursuant to section 1018, counsel stipulated that the trial court be restricted to finding the defendant guilty of murder in the second degree or of manslaughter and precluded from a finding of first degree murder or a finding of not guilty. We held that the stipulation violated section 1018 “since it purported to eliminate from the trial the question of defendant’s innocence.” ( 56 Cal.2d at 306 .) Similarly, the withdrawal of defendant’s plea of not guilty by reason of insanity eliminated from the trial the question of his sanity *642 at the time of the commission of the offense. If counsel may remove from litigation issues that the Legislature has directed must be personally put in issue by the defendant and that have been personally put in issue by him, the purpose of the statute is frustrated.

There is no merit in the contention that the plea of not guilty by reason of insanity is not one that section 1018 requires the defendant to make himself in open court since "such plea is only an admission of commission of the acts charged, coupled with a denial of guilt . . . resting upon the remaining defense of insanity.” (People v. Pincus, 131 Cal.App. 607, 610 [ 21 P.2d 964 ].) That contention is contrary to the plain mandate of section 1018; nor does the Pineus case support it. That case involved the entry by the defendant’s counsel of a plea of not guilty by reason of insanity after the defendant had entered and withdrawn his plea of not guilty. Thus the defendant was not deprived of a trial on any issue that he had personally put in issue. Moreover, he personally waived a jury trial on the issue of insanity. On the facts of that case, the court correctly held that the plea “was really a plea by defendant himself, and that it did not result, by reason of the form in which it was made, in a miscarriage of justice, nor did it deprive defendant of any right. ...” ( 131 Cal.App. at p. 610 .)

It is immaterial that the plea of not guilty by reason of insanity has been characterized as procedural rather than substantive for the purpose of determining whether the issue of sanity could be constitutionally determined in a separate trial. (See People v. Troche, 206 Cal. 35, 44 [ 273 P. 767 ] ; People v. Leong Fook, 206 Cal. 64, 74-75 [ 273 P. 779 ].) The question in the present case is whether that issue is to be determined at all, for the withdrawal of defendant’s plea deprived him of the right to a jury trial on the issue of his sanity as guaranteed by Penal Code section 1026. Error that results in the deprivation of a basic right necessarily requires reversal to preclude prejudice to the judicial process and to the procedural rights of a litigant even though there might be equally fair alternatives consonant with due process. (People v. Rogers, 56 Cal.2d 301, 307 [ 14 Cal.Rptr. 660 , 363 P.2d 892 ] ; People v. Holmes, 54 Cal.2d 442 [ 5 Cal.Rptr. 871 , 353 P.2d 583 ]; In re Brain, 70 Cal.App. 334, 335 [ 233 P. 390 ].)

In People v. Rogers, supra, we reversed the judgment even though counsel’s improper withdrawal of the plea of not guilty was designed to benefit the defendant. In People v. Holmes, *643 supra, we reversed the judgment on the ground that the defendant had not personally waived his right to a jury trial. “Experience has shown that there is sound reason for this requirement. If the waiver were left to implication from conduct, there would be a danger of misinterpretation with respect to a right the importance of which requires there be certainty. Moreover, appellate courts would be faced with the burdensome task of determining whether the facts of the particular ease warrant such an implication, whereas trial courts, without any difficulty, can eliminate doubt and safeguard the rights of both the defendant and the People by obtaining express statements from the defendant, from his attorney, and from the prosecuting attorney not merely as to whether a trial by jury is desired but specifically that a jury is or is not waived. ’ ’ ( 54 Cal.2d at p. 444 .) “Manifestly the entry of a plea in a prosecution for a felony cannot be said to be less important than the waiver of trial by jury.” (People v. Rogers, 56 Cal.2d 301, 307 [ 14 Cal.Rptr. 660 , 363 P.2d 892 ].)

It is immaterial that until the opinion in this case was filed, defendant made no claim “that his attorney lacked authority to withdraw the plea.” In presenting his appeal, he was entitled to rely on the settled rule that a failure to comply with section 1018 requires reversal on appeal, for the very purpose of that section is to avoid uncertainties as to a defendant’s intent in entering or withdrawing his plea. Moreover, now that the court has stated that such a claim is relevant, defendant has filed an affidavit that he did not authorize the withdrawal of his plea of not guilty by reason of insanity and that he believed at the time of the trial that the issue of sanity was being litigated during the trial on the issue of penalty. 1 His trial *644 counsel has also filed an affidavit that he does not recall discussing the withdrawal of the plea with defendant. If defendant did not authorize the withdrawal of the plea, he has been denied the right to a jury trial on a vital issue in his case, and habeas corpus will lie to determine whether the withdrawal of the plea was in fact authorized. (In re Martinez, 52 Cal.2d 808, 815 [ 345 P.2d 449 ].) The error in permitting defendant’s counsel to withdraw his plea should be corrected on appeal, however, and the problem of collateral attack on the judgment thereby obviated.

There is no merit in the contention that the error was not prejudicial. In In re Brain, supra, the defendant’s attorney had improperly entered a plea of guilty to a charge of burglary. The court held that ‘ ‘ [s] eetion 4% or article VI of the constitution could not be applied in the instant ease even though we considered the error a procedural one, because of the absence of any record upon which we might judge of the guilt or innocence of the petitioner.” ( 70 Cal.App. at p. 335 .) Similarly, the improper withdrawal of defendant’s plea of not guilty by reason of insanity in the present case has deprived this court of a record as to defendant’s sanity from which to determine the effect of the error. How then can it reasonably be said that an examination of the entire record discloses that there has not been a miscarriage of justice, when a record on the crucial issue does not exist because of the withdrawal of defendant’s plea? The only evidence bearing upon defendant’s competency at the time the offense was committed is that introduced in mitigation of the penalty under Penal Code section 190.1. To conclude from a review of this evidence that *645 defendant could not sustain the burden of proving his insanity assumes that the evidence offered in mitigation of the penalty was necessarily identical with the evidence that would have been offered on a sanity hearing. Even if defendant would have introduced the same evidence, his right to a jury determination of his sanity precludes this court from determining that issue for the first time on appeal.

Peters, J., and Tobriner, J., concurred.

Appellant’s petition for a rehearing was denied November 21, 1962. Traynor, J., Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.

“I, Nathaniel Gaines, being first sworn, depose and say: