PEOPLE v. CATRON

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. James Roy CATRON, Defendant and Appellant.

No. E004184.

Decided: March 21, 1988

Gary A. Myers, Redlands, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Steven H. Zeigen and Janelle B. Davis, Supervising Deputy Attys. Gen., for plaintiff and respondent.

OPINION

In 1985 defendant pled guilty to charges of assault with a firearm on a peace officer (Pen.Code, § 245, subd. (c)) and assault with a firearm (Pen.Code, § 245, subd. (a)(2)).1  Defendant then entered a plea of not guilty by reason of insanity.   The trial court found defendant not guilty by reason of insanity (an “NGI”) and committed him to a state mental hospital for a period not to exceed twelve years, pursuant to section 1026.

One year after his commitment to the mental hospital, defendant made a “PETITION AND APPLICATION FOR HEARING ON RESTORATION OF SANITY” to the superior court under section 1026.2, subdivision (e).   In the body of his petition, defendant made the following prayer for relief:  “The Petitioner does hereby apply for a hearing in the above-entitled court, ․ and prays for the granting of appropriate orders under said code section, for your Petitioners [sic] placement in an appropriate local mental health program.”

After a contested hearing, the superior court judge determined that defendant had not met his burden under section 1026.2, subdivision (e), of showing that he was not a danger to the health and safety of himself or others while under community supervision and treatment, and denied defendant's petition for local placement.

On appeal, defendant contends that section 1026.2, as amended operative on January 1, 1986, violates his constitutional right, recognized in former section 1026.2 and In re Franklin (1972) 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465, to a prompt jury trial within a limited time after commitment on the issue of his complete release from treatment due to restoration of sanity.   He further contends that this constitutional defect can be cured by mandating that NGI's be afforded the right to a jury at the hearing on the issue of suitability for local placement provided in present section 1026.2, subdivision (e).   Defendant also contends that the 1986 amendment to section 1026.2 is an ex post facto law as applied to him.

I

APPEALABILITY OF RULING

 The People contend that the superior court's ruling is not appealable because it is neither specifically authorized by statute nor an “order made after judgment, affecting the substantial rights of the party” under section 1237, subdivision (b).   We disagree.

In People v. Coleman (1978) 86 Cal.App.3d 746, 150 Cal.Rptr. 415, an appellate court held NGI's have a right to appeal from orders denying their petitions for release from commitment due to restoration of sanity.   The court reasoned that “[s]ince an order denying release following restoration proceedings results in continued indefinite commitment to a state hospital or other medical facility, a fortiori it must be construed as an appealable ‘order made after judgment, affecting the substantial rights' of the defendant.  (§ 1237, subd. 2.)”  (Id., at p. 750, 150 Cal.Rptr. 415.)

In the instant case, the order denying release to local placement has a result similar to the order in Coleman—continued indefinite commitment in the state hospital.   Indeed, the result in this case is harsher because in Coleman's position a defendant whose petition was denied was entitled to another jury trial on the same issue after one year.   Because defendant cannot be released from commitment as an NGI unless he prevails at the hearing on local placement, his important liberty interests are seriously affected.   Consequently, we hold that he is entitled to appeal from the within ruling under section 1237, subdivision (b).  (See also Gross v. Superior Court (1954) 42 Cal.2d 816, 820, 270 P.2d 1025.)

II

EX POST FACTO EFFECT OF AMENDED SECTION 1026.2

 Defendant contends that section 1026.2 as amended in 1986 is an ex post facto law as applied to him.   He argues that, in omitting the right to a jury trial on the issue of release due to restoration of sanity to be held after 90 days of commitment provided in former section 1026.2, the Legislature unconstitutionally deprived him of a protection which was previously available to him.

The ex post facto clauses of the state and federal constitutions prohibit retrospective laws which “(1) impose criminal liability for conduct innocent when it occurred, (2) increase the punishment prescribed for a crime at the time it was committed,” or (3) alter the accused person's situation to his or her disadvantage.  (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836.)   These clauses apply only to statutes which are punitive in nature.  (Id., at pp. 181–182, 167 Cal.Rptr. 854, 616 P.2d 836;  People v. Superior Court (John D.) (1979) 95 Cal.App.3d 380, 393–394, 157 Cal.Rptr. 157.)

Several appellate court cases have dealt with the question of whether procedural changes in statutes governing the commitment of NGI's to mental hospitals for treatment were ex post facto in nature.   In each of these cases, the court has concluded that these statutes were not ex post facto laws because they did not mete out punishment at all, but instead were curative and protective measures.  (People v. Juarez (1986) 184 Cal.App.3d 570, 575, 229 Cal.Rptr. 145;  People v. Buttes (1982) 134 Cal.App.3d 116, 128–129, 184 Cal.Rptr. 497;  People v. Superior Court (John D.), supra, 95 Cal.App.3d at pp. 392–394, 157 Cal.Rptr. 157.)   We agree with this analysis and hold that section 1026.2 is not an ex post facto law as applied to defendant because it governs, not punishment for commission of a crime, but the condition of his treatment as a person who has been adjudged to be a danger to himself and others because of his mental condition.

CONSTITUTIONALITY OF SECTION 1026.2 UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSES

 Defendant contends that section 1026.2, as amended effective January 1, 1986, violates his constitutional right to a trial, before a jury if requested, on the issue of his complete release from treatment due to restoration of sanity within a limited time after his initial commitment.   He points out that under In re Franklin, supra, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465, and former section 1026.2, he was entitled to such a determination after a 90–day commitment period for evaluation of his condition.   He also contends that this unconstitutional omission can be cured by affording the right to a jury at the hearing on suitability for local placement provided for in section 1026.2, subdivision (e).

Former section 1026.2 (designated as section 1026a until it was renumbered in 1979) provided that a person committed to a state mental hospital under section 1026 pursuant to a finding of not guilty by reason of insanity might make an application to the superior court for release due to restoration of sanity, and that a hearing must be held on the application once the applicant had been committed for a period of not less than 90 days.  (See Historical Note, 50A West's Ann.Pen.Code (1985 ed.) § 1026.2, p. 653.)

In In re Franklin, supra, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465, an NGI who had been committed pursuant to former section 1026a challenged the constitutionality of the procedures laid out in that statute on grounds of equal protection and due process.2  The NGI contended that the statute was unconstitutional because it failed to provide him with a precommitment hearing on the issue of whether he was sane, as provided under the statutes governing involuntary civil commitment of persons due to their mental conditions.

The Franklin court concluded that a precommitment hearing on the issue of sanity was not necessary to afford the NGI equal protection with those persons hospitalized through civil commitment procedures, because the finding that defendant was an NGI had already required the trier of fact to determine by a preponderance of the evidence that defendant was insane when he committed the crime which gave rise to the NGI proceeding.  (Id., at pp. 137, 142, 144, 101 Cal.Rptr. 553, 496 P.2d 465.)   The court reasoned that after such a determination it would be necessary for there to be an institutional examination period in order for experts to evaluate the NGI's progress in recovering his or her sanity.  (Id., at pp. 142, 144, 101 Cal.Rptr. 553, 496 P.2d 465.)   Thus, it was not a violation of equal protection principles for NGI's to be treated as a special class for purposes of commitment for evaluation and observation without a precommitment sanity hearing because, unlike civilly committed persons, they had already been found, at their own request, to be dangerous to themselves and to society.  (Id., at p. 138, 101 Cal.Rptr. 553, 496 P.2d 465.)   The court held, therefore, that “constitutional principles do not prohibit the automatic commitment of a person acquitted by reason of insanity, so long as the prehearing commitment period extends no longer than reasonably necessary for institutional examination of his mental condition, and thereafter reasonable opportunity is provided for a full hearing on the question whether he should be released to society.”  (Id., at p. 135, 101 Cal.Rptr. 553, 496 P.2d 465.)

The court in Franklin next turned to the question of whether the provision in section 1026a that the NGI must wait 90 days after commitment before being afforded a hearing on his or her application for release to society was so arbitrary or unreasonable as to deny the NGI equal protection and due process of law.  (Franklin, supra, at p. 135, 101 Cal.Rptr. 553, 496 P.2d 465.)   The court examined the Model Penal Code and found that it recommended six months as the period “ ‘thought to be ․ necessary to observe him [the patient] initially․’ ”  (Id., at p. 143, 101 Cal.Rptr. 553, 496 P.2d 465.)   It also examined a survey of hospital superintendents and other commentators and determined that the “ ‘recommended period of observation and examination necessary for accurate diagnosis' ” ranged from 90 days to one year.  (Ibid.)  The court also pointed out that in In re Slayback (1930) 209 Cal. 480, 288 P. 769, it had concluded that an earlier version of section 1026a which provided for an observation and evaluation period of one year before an application for release might be entertained did not set up an unreasonable time period for appraising an NGI's present sanity.  (Franklin, supra, 7 Cal.3d at pp. 136, 143, 101 Cal.Rptr. 553, 496 P.2d 465.)   Based on this data, the court held “that the 90–day period ․ was within the range of permissible choices from which our Legislature could properly select.”   (Id., at p. 143, 101 Cal.Rptr. 553, 496 P.2d 465.)

Finally, the Franklin court took up the issue of whether the NGI was entitled to a jury, if he or she requested it, at the hearing to determine whether he or she should be released to society.   The court endorsed the view, expressed in a case which held that an NGI had a right to appointed counsel at a 1026a hearing, that at the hearing succeeding the NGI's initial 90–day commitment an NGI must be afforded full constitutional rights.  (Franklin, supra, at p. 149, 101 Cal.Rptr. 553, 496 P.2d 465, citing In re Jones (1968) 260 Cal.App.2d 906, 911, fn. 3, 68 Cal.Rptr. 32.)   The court stated that, though NGI status justified certain differences in commitment procedures from those utilized for civil commitments, there was no rational justification for denying the NGI the “jury hearing available to other persons committed to state hospitals.”  (Franklin, supra, at p. 148, 101 Cal.Rptr. 553, 496 P.2d 465.)   It pointed out that mentally disordered persons proposed to be committed for treatment following a 72–hour evaluation and 14 days of certification treatment were entitled to a jury hearing on the issue of whether they presented an imminent threat of serious harm to others, as were persons for whom a conservatorship was proposed after the 14–day certification treatment period on the ground that they were gravely disabled.  (Ibid.)  The court concluded that the essential safeguard afforded to a person who had been civilly committed was the right to a trial by jury on the question of present mental illness, and held that equal protection required that the NGI be given the right to a jury, if requested, at his hearing on the issue of release to society after his 90 days of initial commitment.  (Id., at pp. 148–149, 101 Cal.Rptr. 553, 496 P.2d 465.)

In 1984 the Legislature enacted present section 1026.2, operative January 1, 1986.3  It provides, as did the former section, that an NGI may make an application for release from commitment due to restoration of sanity.  (§ 1026.2, subd. (a).)  However, it allows for a hearing on the application after an initial commitment period of 180 days, rather than the 90–day period found in the former section.  (§ 1026.2, subd. (d).)  Its hearing procedures di fer markedly from those in the former section.   After the first 180 days, the NGI is entitled, not to a jury hearing on the issue of his release to society, but to a court hearing on whether he or she will be a danger to self and others if placed under supervision and treatment in a local mental health program for one year.  (§ 1026.2, subd. (e).)  If the NGI is found suitable for such placement and completes a year in a local mental health program, he or she is allowed a trial on the issue of release to society due to restoration of sanity.  (Ibid.)  An NGI who is denied local placement may reapply for such placement after one year has passed.  (§ 1026.2, subd. (j).)  Likewise, one who has successfully completed a year of local placement and is denied full release may reapply for release to society after one year.  (Ibid.)

The effect of these new hearing procedures is that the NGI no longer receives a trial, before a jury if requested, on the issue of his release to society, after an initial reasonable commitment period for observation and evaluation, as mandated by In re Franklin, supra, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465.   Instead, he or she receives a court hearing on the question of qualification for local placement.   If the NGI does not convince the court that he or she is qualified for such placement, then the NGI is not entitled to a trial on the issue of release to society.   If the NGI is denied local placement year after year, then he or she will have no opportunity for a trial, on the issue of release to society for restoration of sanity, before a jury if requested, during the entire term of commitment pursuant to section 1026.

As discussed above, the Franklin court held that NGI's could be treated as a special class of persons different from others sought to be involuntarily committed to a mental hospital, only for the reason that they had already been found insane and thus dangerous to self or others in a recent trial on the issue of whether they were not guilty by reason of insanity at time of commission of an offense, and only to the extent that they might be committed to an institution for a time period necessary for expert medical evaluation and observation before receiving a full hearing on the question of their readiness for release to society.   The full hearing, with appointed counsel and a jury if requested, mandated by Franklin, was meant to take the place of the right to a precommitment jury trial on the issue of sanity afforded to those sought to be civilly committed.   The hearing provisions in the 1986 version of section 1026.2 do not comply with this mandate.   They require only that after the initial period of observation an NGI be allowed a hearing on the question of whether he or she is suitable for local placement.   Such a hearing is not the equivalent of a full precommitment trial on the issue of insanity.   It is not intended to, nor does it, protect an NGI's liberty interest;  rather, it determines the treatment modality most appropriate for the NGI.   Under the new hearing scheme, an NGI is never unconditionally entitled to a full trial on the issue of his or her sanity.

Equal protection considerations require that an NGI be afforded a full trial on the issue of release to society after the initial period of institutional commitment for observation and evaluation.4  The civil commitment statutes still provide, as they did at the time of Franklin, that persons sought to be civilly committed after the certification period due to their imminent dangerousness, or for whom a conservatorship is sought after the certification period due to grave disability, must be provided with a full hearing, before a jury if requested, in the issue of their sanity.  (Welf. & Inst. Code, §§ 5300 et seq., & 5350 et seq.)   Persons found to be incompetent to stand trial must be given a trial, by jury if requested, on the issue of whether, after an initial commitment period necessary for evaluation, they should be retained in a mental hospital due to their continued dangerousness.  (Conservatorship of Hofferber, supra, 28 Cal.3d at pp. 174–180, 167 Cal.Rptr. 854, 616 P.2d 836.)   In another context, the court in Hofferber noted that the NGI provisions were “closely analogous” to the provisions applied to those incompetent to stand trial.  (Id., at p. 176, 167 Cal.Rptr. 854, 616 P.2d 836.)   Mentally disordered sex offenders, inebriates, and narcotics addicts must be given a jury trial on the issue of whether they are mentally disordered or addicted before they can be committed involuntarily.  (Welf. & Inst.Code, former §§ 6318, 6321, present §§ 5230, 3050, 3051, 3108;  In re Gary W. (1971) 5 Cal.3d 296, 305, 96 Cal.Rptr. 1, 486 P.2d 1201.)   Only NGI's are not afforded an unconditional right to a full hearing, before a jury if requested, either before commitment or after brief institutional confinement for evaluation, on the issue of whether they should be released to society.

As our Supreme Court stated in In re Gary W., supra, 5 Cal.3d at page 304, 96 Cal.Rptr. 1, 486 P.2d 1201, “although the procedures leading to the commitment of various classes of people for treatment or to protect society from them need not be identical in all respects, none may deny to one such class fundamental rights or privileges accorded to another unless a rational basis for the distinction exists.”   The People have not presented us with, nor have we discovered in our research, any rational basis for denying NGI's the right to prompt protection of their liberty interest through a jury trial on the issue of release to society, while affording such protection to all other similarly situated classes.5

“If feasible within bounds set by their words and purpose, statutes should be construed to preserve their constitutionality.”  (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 175, 167 Cal.Rptr. 854, 616 P.2d 836;  Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253–254, 158 Cal.Rptr. 330, 599 P.2d 636.)   We now consider whether section 1026.2, as amended operative January 1, 1986, may be given a construction which renders it constitutional as presently written.

Defendant argues that the statute may be rendered constitutional by construing it to provide for a jury trial, if requested, at the hearing on the issue of whether the NGI is suitable for local placement.   Such a construction, however, would not solve the problem before us.   A local placement hearing does not substitute for a hearing on the issue of complete release to society after a reasonable time for expert evaluation of the NGI.   Indeed, the local hearing provision is in effect based on a presumption that the NGI is presently dangerous and must be treated in order to provide no threat to himself, herself, or others.   Commitment for a lengthy time period based on such a presumption is forbidden by In re Franklin, supra, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465.   Thus, provision of a jury at the local placement hearing would be irrelevant to the problem before us.   Moreover, as the appellate court determined in Barnes v. Superior Court, supra, 18 Cal.App.3d at pages 975–976, 231 Cal.Rptr. 158, matters concerning treatment are routinely decided without a jury, sometimes without a judicial hearing, and no other similarly situated applicant for outpatient treatment has been given the right to trial by jury on that issue.  (See also People v. Wymer (1987) 192 Cal.App.3d 508, 237 Cal.Rptr. 301.)

We conclude that the problem of preserving the constitutionality of amended section 1026.2, operative January 1, 1986, can be solved by construing it to provide for a full hearing, after the initial 180–day evaluation and observation period, with a jury if requested, on the issue of release to society due to restoration of sanity.   Reading such a provision into the statute would satisfy the requirement, established in In re Franklin, supra, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465, that an NGI, like all other classes sought to be committed involuntarily to a mental hospital, for protection of his or her liberty interest, have the right to a hearing with full constitutional protections on the issue of release to society either before commitment or after an initial institutional evaluation of his or her mental condition.   There would be no difficulty as to the standard or burden of proof to be applied at such a hearing, since these are also mandated by Franklin, supra, at pages 145–149, 101 Cal.Rptr. 553, 496 P.2d 465.   Such a provision would not vitiate the public policy of providing a “bridge between life in a state institution and unsupervised life in the community.”   (Barnes v. Superior Court, supra, 186 Cal.App.3d at pp. 976–977, 231 Cal.Rptr. 158):  If the trier of fact in the full hearing concludes that the NGI is presently insane under the Franklin standard of dangerousness to self and others, then the NGI will be retained in commitment pursuant to section 1026, and will be subject to the local placement provisions of section 1026.2, subdivision (e).

Defendant in the instant case, in his application for release due to restoration of sanity, requested only that he be released to local placement;  he did not ask for immediate release to society.   Thus, the court's order that he be denied local placement must be affirmed.   However, should defendant file another application for release due to restoration of sanity and pray for immediate release from commitment upon a determination that he is no longer a danger to himself or others, he must be afforded a full hearing on the issue, before a jury if he so requests.

DISPOSITION

The ruling is affirmed.

I concur in the opinion of the court insofar as it affirms the judgment.   I do separate myself from the majority opinion wherein the defendant is told that should he pray for release from his commitment in the future, he is entitled to a jury trial upon request.   However well-motivated that statement may be, unfortunately it has no binding effect since it is obiter dictum.   I would wait for the appropriate case to decide the jury trial issue.

FOOTNOTES

1.   All future code references are to the Penal Code, unless otherwise indicated.

2.   Former section 1026a contained the following provisions in 1972:  “An application for the release of a person who has been committed to a state hospital, as provided in Section 1026, upon the ground that his sanity has been restored, may be made to the superior court of the county in which he is confined or of the county from which he was committed, either by such person or by the superintendent of the hospital in which the said person is confined.   No hearing upon such application shall be allowed until the person committed shall have been confined for a period of not less than 90 days from the date of the order of commitment.   If the finding of the court be adverse to releasing such person upon his application for release, on the ground that his sanity has not been restored, he shall not be permitted to file a further application until one year has elapsed from the date of hearing upon his last preceding application.   In any hearing authorized by this section the burden of proving that his sanity has been restored shall be upon the applicant.”

3.   Present section 1026.2 provides in pertinent part:“(a) An application for the release of a person who has been committed to a state hospital or other treatment facility, as provided in Section 1026, upon the ground that sanity has been restored, may be made to the superior court of the county from which the commitment was made, either by the person, or by the medical director of the state hospital or other treatment facility to which the person is committed or by the community program director where the person is on outpatient status under Title 15 (commencing with Section 1600).   The court shall give notice of the hearing date to the prosecuting attorney, the community program director or a designee, and the medical director or person in charge of the facility providing treatment to the committed person at least 15 judicial days in advance of the hearing date.“(b) Pending the hearing, the medical director or person in charge of the facility in which the person is confined shall prepare a summary of the person's programs of treatment and shall forward the summary to the community program director or a designee and to the court.   The community program director or a designee shall review the summary and shall designate a facility within a reasonable distance from the court in which the person may be detained pending the hearing on the application for release.   The facility so designated shall continue the program of treatment, shall provide adequate security, and shall, to the greatest extent possible, minimize interference with the person's program of treatment.“․“(d) No hearing upon the application shall be allowed until the person committed shall have been confined or placed on outpatient status for a period of not less than 180 days from the date of the order of commitment.“(e) The court shall hold a hearing to determine 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 at the hearing determines the applicant will not be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, the court shall order the applicant placed with an appropriate local mental health program for one year.   All or a substantial portion of the program shall include outpatient supervision and treatment.   The court shall retain jurisdiction.   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.   The court shall notify the persons required to be notified in subdivision (a) of the hearing date.“․“(j) If the court denies the application to place the person in an appropriate local mental health program or if restoration of sanity is denied, no new application may be filed by the person until one year has elapsed from the date of the denial.”

4.   The issue of the reasonableness of the 180–day evaluation period provided in amended section 1026.2, subdivision (d) is not before this court.   However, we note that such a period falls within the range of reasonable time choices recognized in In re Franklin, supra, 7 Cal.3d at page 143, 101 Cal.Rptr. 553, 496 P.2d 465.

5.   The People urge that Barnes v. Superior Court (1986) 186 Cal.App.3d 969, 231 Cal.Rptr. 158, is controlling on this issue.  Barnes is inapposite, however;  it dealt with the question of whether an NGI is entitled to a jury at his local placement hearing, and concluded that the NGI is not so entitled.  (Id., at pp. 975–977, 231 Cal.Rptr. 158.)   It does not engage the issue of whether the NGI is entitled under Franklin to a jury trial on the issue of release at the end of the institutional evaluation and observation period, though the Franklin issue is discussed in the dissent.  (Id., at pp. 977–980, 231 Cal.Rptr. 158.)

THE COURT

CAMPBELL, P.J., and HEWS, J., concur.

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