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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Gordon TILBURY, Defendant and Appellant.

No. G006217.

Decided: October 17, 1989

Charles R. Khoury, Jr., under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr. and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

Previously found not guilty by reason of insanity, Michael Tilbury sought release from a state hospital commitment, claiming his sanity had been restored.   The superior court denied his request for a jury trial on the sanity issue because he had not previously been placed in an outpatient program for one year as required by Penal Code section 1026.2 and declined to impanel a jury to consider whether he should be transferred to outpatient status.   The court then refused to order such a placement after a hearing on the merits, specifically finding Tilbury was still a danger to himself and others.   Although the Legislature has not spoken on the point, we hold the outpatient treatment decision is a critical procedural juncture in the current statutory scheme and a patient must be accorded the right to have a jury decide his or her suitability for placement in a local program.   We reverse for a new hearing accordingly.


A veteran of several mental hospitals, Tilbury often complained that CIA agents were bombarding his brain with microwaves and poisoning his drinking water.   His delusions apparently overwhelmed him in April 1984, and he fired a rifle at several citizens and peace officers.   Charged with multiple assaultive offenses and attempted murder, court-appointed psychiatrists determined he was not competent to stand trial initially;  and he was committed to Patton State Hospital.   He was later returned for trial and found not guilty by reason of insanity.   He was committed to a state hospital for a term not to exceed 23 years and 8 months.

Three times over the next two years, the hospital recommended that Tilbury be placed in a local outpatient program.  (Pen.Code, § 1603, subd. (a)(1).)   The community program director in Orange County disagreed on each occasion, and the court rejected any change in status.   Tilbury then petitioned for his release under Penal Code section 1026.2, claiming his sanity had been restored.1

He requested a jury trial on that issue.   Citing Barnes v. Superior Court (1986) 186 Cal.App.3d 969, 231 Cal.Rptr. 158, the prosecutor opposed the motion:  “[T]he patient in this case hasn't been on community out-patient treatment for any time at all yet, and we don't think ․ he is entitled to that.”   The trial court agreed, ruling “under the current state of the law [ ] Mr. Tilbury would not be entitled to a jury trial.” 2  The court then denied Tilbury outpatient status, finding he still posed “a danger to himself and others, particularly to others.”


 Before 1986 the statutory scheme mandated a minimum 90–day commitment for an individual found not guilty by reason of insanity.   After this initial evaluation period, and with the recommendation of the state hospital director, the individual was entitled to a hearing on the issue of whether his or her sanity had been restored.  (See former Pen.Code, §§ 1026a, 1026.2.) 3  These statutory provisions have all been reenacted, but are not effective until January 1, 1994.

Since January 1, 1986, however, section 1026.2 has mandated a more complex scheme.   An individual committed to a state hospital after being found not guilty of a crime by reason of insanity must be confined for a minimum of 180 days before a court may consider whether his or her sanity has been restored.   (Pen.Code, § 1026.2, subd. (d).)  The medical director of the state hospital who initiates a petition for an individual's release first prepares “a summary of the person's programs of treatment and [ ] forward[s] [it] to the community program director or a designee and to the court.” 4  (Pen.Code, § 1026.2, subd. (b).)  The court is then required to “hold a hearing to determine [by a preponderance of the evidence] if the person applying for restoration of sanity would no longer be a danger to the health and safety of others, including himself or herself, if under supervision and treatment in the community.   If the court [so] determines ․ [it] shall order the applicant placed with an appropriate local mental health program for one year․  The court at the end of the one year, shall have a trial to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, including himself or herself.   The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate local mental health program․”  (Pen.Code, § 1026.2, subd. (e).) 5

The pre–1986 law, the current law, and the statute which will take effect in 1994 are silent with respect to a committed individual's entitlement to a jury determination on the question of restoration of sanity.   Nevertheless, as mentioned above, in 1972 the Supreme Court held an individual found not guilty of a crime by reason of insanity and committed to a state hospital “was [constitutionally] entitled to a jury trial and three-fourths verdict [on the issue of restoration of sanity, i.e.,] that [he] no longer constitute[s] a danger to the health or safety of themselves and other persons.”  (In re Franklin, supra, 7 Cal.3d at p. 149, 101 Cal.Rptr. 553, 496 P.2d 465, emphasis omitted.)

 The Supreme Court has not yet decided whether a committed individual has the right to a jury at the first stage of the process under the current provisions of Penal Code section 1026.2, i.e., the transfer to outpatient status.   In a divided opinion, one Court of Appeal decided, “Franklin compels a jury trial at the second proceeding, when the issue is whether the applicant has been restored to sanity.”  (Barnes v. Superior Court, supra, 186 Cal.App.3d at p. 974, 231 Cal.Rptr. 158.) 6  But the Barnes majority refused to extend this rule to the earlier stage, characterizing the question to be resolved there merely as “suitability for placement in a local mental health program [and] different from the issue of restoration of sanity.”  (Ibid.) The majority explained the test at the placement hearing is “a significantly lesser [one] than [the applicant] must meet at the second proceeding, when the issue is whether [he or she] would not be dangerous if unconditionally released.”  (Ibid.)  The lead opinion then dismissed the applicant's due process challenge on the basis that the applicant who fails to advance beyond the initial stage may file unlimited annual applications followed by habeas petitions to appellate courts.  (Id., at pp. 975–976, 231 Cal.Rptr. 158.)

The equal protection claim, argued the majority, was an attempt “to mix apples and oranges”:  “Franklin and the cases cited in it involve restoration of sanity questions, not placement issues.”  (Id., at p. 975, 231 Cal.Rptr. 158.)   The majority then considered the rather compelling objection (aptly labeled a catch–22 by Tilbury) that its “decision may prevent an applicant from [ever] reaching a jury on the issue of restoration of sanity—if he or she cannot satisfy the court at the initial hearing of his or her lack of dangerousness, the applicant would not be placed into a local program and would not eventually go before a jury.”  (Id., at p. 976, 231 Cal.Rptr. 158.)   The point was rejected, however, in a brief reiteration of the earlier analysis:  “[T]he test to be applied at the initial hearing is less than that applied at the second.   One who cannot satisfy the lesser standard cannot reasonably hope to satisfy the second one.  [Also], a court's adverse ruling at the first proceeding would be subject to review.”  (Ibid.) 7

Justice Poche disagreed with his colleagues in a dissent which begins, “Unlike the Gulag, in our constitutional system the key to the door of the mental hospital is entrusted solely to a jury.”  (Id., at p. 977, 231 Cal.Rptr. 158 (dis. opn. of Poche, J.).)   He then took the majority to task for being “content with the possibility that petitioner may someday qualify for a jury trial.”  (Id., at p. 979, 231 Cal.Rptr. 158.)   In his view, the procedural protections which the majority declared adequate to protect a committed individual's constitutional rights are not sufficient;  they “amount [ ] to reminding petitioner that when he is denied his constitutional right he may ask again and again and again.   Not unlike the Gulag.  [¶] The additional procedural safeguard relied upon by the majority is that the judge's factual determination is subject to review by habeas corpus.  [Citation.]  So far as I am aware this is the first time in the history of California constitutional jurisprudence that judicial review of a judge's factual findings has been equated with a right to trial by jury.”  (Ibid.)

The critical flaw in the majority's reasoning, Justice Poche concluded, was “what the majority euphemistically describe[d] as a ‘placement’ decision.”  (Ibid.)  The label is unfair, he added, because at this stage section 1026.2 requires the trier of fact to determine “whether ‘the applicant will ․ be a danger to the health and safety of others, including himself or herself, if under supervision and treatment in the community․’ ”  (Ibid.)   And “the determination made by the trier of fact at this initial hearing is itself the condition precedent to the right that even the majority opinion recognizes to be of a constitutional dimension․  [¶] [Yet] [u]nder the 1984 amendments [which became operative on January 1, 1986] petitioner has no chance of being restored to society until he has successfully completed one year of treatment in a local mental health program.   Getting into that program becomes the sine qua non to freedom—the key to the door.   Such questions are thus not merely questions of ‘treatment’ or ‘placement’ although they certainly partake of both.   They are questions that condition freedom.”  (Ibid.)

This, as Justice Poche noted, is the logical short in the wiring of the Barnes majority opinion:  The applicant can never get to a jury under the statutory scheme unless outpatient status is first obtained.   That must be denied if the court makes a finding of continued dangerousness.   Thus, it is disingenuous to view the first proceeding merely as one for placement:  The placement issue itself is inextricably bound to the restoration of sanity issue.   There is no reason in logic or policy to recognize the right to a jury trial at the second stage but not the first.

Persons subjected to involuntary civil commitments for mental illness “are entitled to an immediate hearing on the question [of] whether they pose ‘an imminent threat of substantial physical harm to others'․  (See Welf. & Inst.Code, §§ 5300–5304;  [citation].)”  (In re Franklin, supra, 7 Cal.3d at p. 138, fn. 7, 101 Cal.Rptr. 553, 496 P.2d 465.)   Not so the individual found not guilty by reason of insanity.   This disparate treatment is permitted because “persons acquitted by reason of insanity are reasonably deemed to fall within a special or exceptional class, having committed a criminal offense, and having proved themselves insane by a preponderance of the evidence.”  (Id., at p. 143, 101 Cal.Rptr. 553, 496 P.2d 465.)   But the disparity in treatment is justified only to the extent it is necessary to obtain expert medical evaluation with respect to an individual's mental condition before a full hearing on the question of the restoration of his or her sanity.   That hearing should duplicate precommitment proceedings in civil cases, including the appointment of counsel and a jury if requested.  (Cf. Welf. & Inst.Code, § 5350 et seq.)

We believe, like Justice Poche, that fundamental constitutional considerations of due process and equal protection entitle a patient committed to a state mental hospital, upon request, to a full sanity hearing on the issue of transfer to outpatient status at least by the end of the 180–day evaluation and observation period.   This is “the clear, unmistakable and repeated holding and rationale of Franklin, once the initial treatment and evaluation period has ended—as it has here—petitioner has an unconditional immediate right to have a jury determine [whether he is a danger to himself or others].”  (Barnes v. Superior Court, supra, 186 Cal.App.3d at p. 980, 231 Cal.Rptr. 158 (dis. opn. of Poche, J.).)   Those sentiments are no less compelling now than when the Supreme Court uttered them seventeen years ago.   Accordingly, we hold Penal Code section 1026.2 must be construed to provide that right in order to survive constitutional scrutiny.

The orders are reversed and the matter is remanded to the trial court with directions to provide a jury trial to determine whether Tilbury is eligible for placement in a community program.


1.   An individual committed to a state hospital may be released in one of several ways.  (Pen.Code, § 1026.1.)   He or she may achieve outpatient status under the scheme set forth in Penal Code section 1600 et seq.   These provisions apply to mentally disordered sex offenders and developmentally disabled offenders, as well as to those found not guilty by reason of insanity.  Penal Code section 1603, subdivision (a)(1) provides for the transfer of a committed person to an outpatient treatment program if the directors of both the state hospital and the community program recommend the move and the hospital director advises the court “the defendant would no longer be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community․”  Tilbury's first three unsuccessful efforts to gain release were apparently processed under this provision.Alternatively, Penal Code section 1026.1 et seq. governs the release of individuals found not guilty of crimes by reason of insanity.   The attainment of outpatient status is a critical first stage under this set of procedures, whose goal is the complete release of a committed person after restoration of his or her sanity.Penal Code section 1026.2 is similar to, but not wholly consistent with, Penal Code sections 1602 and 1603.   One significant difference is that the latter sections require the concurrence of the directors of both the state hospital and community treatment program before the court even holds a hearing on an application for outpatient placement.   Section 1026.2, subdivision (l ) authorizes the court to consider an application for outpatient transfer if the director of either the state hospital or community program so recommends.   When the recommendation is made by the state hospital director, the community program director's prehearing role is limited to designating a facility near the court for interim placement pending the court's decision.  (Pen.Code, § 1026.2, subd. (b).)  If the application is approved, the community program director is then charged with “mak[ing] the necessary placement arrangements.”   (Pen.Code, § 1026.2, subd. (h).)

2.   Although the record is murky on the point, it appears, and we assume that, Tilbury sought a jury determination of his present mental status in the alternative, i.e., as a precursor either to outpatient status or outright release.

3.   Hospitalized individuals have a constitutional right to a jury determination of the issue of restoration of sanity.  (In re Franklin (1972) 7 Cal.3d 126, 149, 101 Cal.Rptr. 553, 496 P.2d 465.)   The patient has the burden of proof on that question by a preponderance of the evidence, and only three-fourths of the jurors need agree.  (Ibid.)

4.   If the application for release from the state hospital commitment comes from the patient, a threshold step is added:  Subdivision (l ) of section 1026.2 precludes the court from acting on a committed individual's petition “without first obtaining the written recommendation of the medical director of the state hospital or other treatment facility or of the community program director where the person is on outpatient status under Title 15 (commencing with Section 1600).”  (Emphasis added, see fn. 1, ante.)   From that point, the procedure is as outlined in the body of the opinion.

5.   Subdivision (i) appears somewhat out of sync with the balance of section 1026.2.   That subdivision provides, “If at the trial for restoration of sanity the court rules adversely to the applicant, the court may place the applicant on outpatient status, pursuant to Title 15 (commencing with Section 1600) of Part 2, unless the applicant does not meet all of the requirements of Section 1603.”  (Emphasis added.)   But subdivision (e) of section 1026.2 unequivocally decrees that the issue of “restoration of sanity” may not even be considered by the court until the applicant has been on outpatient status for one year.   Also, one requisite of Penal Code section 1603 is that the directors of both the state hospital and the community treatment program must agree outpatient status is warranted.   The community director's role is more limited under section 1026.2.  (See fn. 1, ante.)

6.   The majority insisted, however, that the Legislature did not intend to involve a jury on the restoration of sanity issue.  (Id., at p. 974, fn. 4, 231 Cal.Rptr. 158.)

7.   Two recent appellate decisions challenging or distinguishing Barnes have been depublished by the Supreme Court.  (People v. Catron (1988) 200 Cal.App.3d 546, 246 Cal.Rptr. 303;  People v. Hart (1987) 191 Cal.App.3d 1284, 237 Cal.Rptr. 73.)   Thus, it is probably futile to publish our kindred views on this issue.   We do so because our opinion obviously meets the standards for publication in that it disagrees with and criticizes existing law (see Cal. Rules of Court, rule 976(b)(1)) and because, like Justice Poche and the Supreme Court in Franklin perhaps, we are fearful of the potential for abuse in the monitoring of open-ended commitments for allegedly insane individuals.Such commitments are, as we have seen frequently in the history of many countries, and occasionally our own, subject to misguided or malicious manipulation.   Those confined for potentially lengthy periods in institutions populated with the criminally insane should be accorded a reasonable opportunity for periodic citizen review for this, if no other, reason.

CROSBY, Acting Presiding Justice.