IN RE: James H. MOYE

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Court of Appeal, Second District, Division 1, California.

IN RE: James H. MOYE, on habeas corpus. The PEOPLE, Plaintiff and Appellant, v. James H. MOYE, Defendant and Respondent.

Cr. 29726, 29788, 30323.

Decided: November 02, 1977

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for appellant. Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Dennis A. Fischer, Terry Kohl, and Leighton A. Nugent, Deputy Public Defenders, for respondent.

In the case at bench, we have consolidated a People's appeal with two petitions for habeas corpus filed by James H. Moye. The consolidated cases present issues of: (1) the right of a person committed to the California Department of Health for having been found not guilty of a crime by reason of insanity, and subsequently placed on outpatient status, to a hearing prior to the revocation of that status for reasons other than manifestation of dangerousness; (2) the nature of the hearing and the person's procedural rights if a hearing is required; and (3) whether a person so committed may be held in the custody of the Department of Health for a period beyond the maximum term provided for the crime of which he was acquitted absent subsequent proceedings under the Lanterman-Petris-Short (LPS) Act.

Subsequent to oral argument on the People's appeal and Moye's petitions, Division Five of this court filed its opinion in In re Anderson (1977) 73 Cal.App.3d 38, 140 Cal.Rptr. 546. That opinion, which deals with a trial court ruling identical to that in the case at bench, mandates that the trial court judgment here be affirmed. It also establishes the nature of the hearing to which Moye is entitled. Moye has now again been released on outpatient status. Hence, no writ is required to vindicate his right to a hearing or to establish any form of procedure. If Moye's outpatient status is again threatened, Anderson will govern the process to be followed. We therefore summarily affirm the judgment by reason of Anderson and dismiss Moye's petition which seeks a declaration of his hearing rights. We confine our discussion to the one remaining issue of maximum term of commitment.

We conclude that a person committed to a mental institution because he was found not guilty by reason of insanity of a crime which does not evidence a danger to community security may not be held in commitment for a period in excess of the statutory maximum period of incarceration for the crime with which he was charged absent further civil commitment proceedings.

Facts

On May 14, 1970, James H. Moye was charged with felony hit and run driving in violation of Vehicle Code section 20001. On August 17, 1970, he was found incompetent to stand trial pursuant to Penal Code sections 1367 and 1368 and was committed to Atascadero State Hospital. On January 3, 1972, Moye, having been found to be then competent to stand trial, admitted committing the acts constituting the crime but was found not guilty by reason of insanity. On that date, he was committed to Atascadero State Hospital pursuant to Penal Code section 1026.

In August of 1974, the director of the hospital determined that Moye had improved to such an extent that he was no longer a danger to the health and safety of others and that he would receive benefit from parole. Upon approval of the director's determination by the court as provided in subdivision (c) of Welfare and Institutions Code section 7375, Moye was, on August 28, 1974, released on outpatient status under the control of an outpatient supervisor.

In mid-1976, Moye's outpatient supervisor determined that Moye's condition required inpatient treatment. On July 2, 1976, Moye's outpatient status was terminated and he was returned to Atascadero State Hospital. No administrative or judicial hearing preceded termination of outpatient status.

Moye filed a petition for habeas corpus in the superior court, claiming that the termination of his outpatient status was illegal because he had been denied the pre-termination hearing rights guaranteed by Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313. The trial court ordered that Moye “be afforded parole revocation hearing by the Department of Health within a reasonable time which shall include the following due process procedures: (O) ne, written notice of claimed violations of parole. Two, disclosure to the parolee of evidence against him. Three, opportunity to be heard in person and to present witnesses and documentary evidence(. And four,) the right to confront and cross-examine adverse witnesses.”

The People appealed from the trial court order. Moye responded to the appeal and filed a petition for writ of habeas corpus in this court (2d Crim. No. 29726) asserting that the trial court did not go far enough in that it did not require: (1) a two-step process including a preliminary determination of probable cause for termination of outpatient status; (2) a judicial, as opposed to administrative, hearing; and (3) a right to counsel at the hearing. In a second petition for habeas corpus filed with us (2d Crim. No. 30323), Moye asserts that he may not be confined in Atascadero State Hospital for a period in excess of the pre-1977 five year statutory maximum term of imprisonment for a violation of Vehicle Code section 20001[FN1] unless that confinement is ordered in a civil commitment proceeding.

We issued our orders to show cause on Moye's two petitions for habeas corpus and consolidated hearing on the petitions with hearing on the People's appeal. On February 17, 1977, Moye was again released from Atascadero State Hospital on outpatient status. That release did not itself moot the case at bench because of the continued potential of revocation of outpatient status and the public importance of the issues involved. (In re Bye (1974) 12 Cal.3d 96, 99, fn. 2, 115 Cal.Rptr. 382, 524 P.2d 854, cert. den. 420 U.S. 996, 95 S.Ct. 1437, 43 L.Ed.2d 679.)

People's Appeal and Moye's First Petition

The People's appeal is governed by In re Anderson, supra, 73 Cal.App.3d 38, 140 Cal.Rptr. 546. There an order identical with that present in the case at bench was affirmed. In re Anderson, supra, also delineates the procedural rights to which the person whose outpatient status is threatened is entitled. We therefore affirm the judgment, and because Moye's rights to a hearing and its nature are now established and the public interest in the issue is fully served by In re Anderson, we dismiss Moye's first petition for habeas corpus.[FN2]

Maximum Period of Confinement

Moye's contention that he may not be held in custody by reason of his not guilty by reason of insanity commitment for a period in excess of the maximum statutory period of incarceration for the charged crime of felony hit and run driving raises issues of the constitutional guarantees of procedural due process and equal protection of the law.

Due Process

The due process question revolves about the difference in the definition of “insanity” which is a defense to a criminal act, and “insanity” which subjects the person to restriction on his liberty after he is acquitted.

California follows the M'Naghten rule defining that insanity which is a defense to a crime. (People v. Wolff (1964) 61 Cal.2d 795, 802, 40 Cal.Rptr. 271, 394 P.2d 959.) The finding of not guilty by reason of insanity determines that the defendant, by reason of mental illness, did not “know the nature and quality of the act he was doing” or “that (it) was wrong.” (1 Witkin, Cal.Crimes (1st ed.) Defenses, s 136.) In contrast, a person found not guilty by reason of insanity is committed pursuant to Penal Code section 1026 until his mental condition has improved to the extent that he is no longer a danger to the health and safety of others (In re Jones (1968) 260 Cal.App.2d 906, 911-912, 68 Cal.Rptr. 32) or to himself. (In re Slayback (1930) 209 Cal. 480, 490, 288 P. 769.)

Thus, analysis in terms of procedural due process requires consideration of the validity of the finding in terms of the M'Naghten rule as a basis for confinement measured by a different standard.

Equal Protection

The equal protection issue here involved concerns primarily the difference in the burden of proof governing release from confinement of persons found not guilty by reason of insanity and persons civilly committed for mental illness.

A person committed by reason of having been found not guilty by reason of insanity has a right to review of the continuation of his commitment. If the offense is of a defined violent character, review is deferred 90 days. (Pen.Code, s 1026.) If the offense charged is punishable by death, there is a three-year statutory moratorium on review. (Welf. & Inst. Code, s 7375, subd. (d).) If the first action seeking release is unsuccessful, further petitions seeking relief may be filed at annual intervals. (Pen. Code, s 1026a.) While entitled to a jury trial on the issue of improvement of his condition to the extent that he no longer is a danger to the health and safety of others or to himself (In re Franklin (1972) 7 Cal.3d 126, 148, 101 Cal.Rptr. 553, 496 P.2d 465), the person confined because of the not guilty by reason of insanity determination bears the burden of proof of establishing by a preponderance of evidence that he is no longer a danger. (Pen. Code, s 1026a.)

A person civilly committed pursuant to the LPS Act for an extended period by the conservatorship vehicle provided by that statutory scheme also is entitled to a jury trial on the issues relevant to initial commitment (Welf. & Inst. Code, s 5350, subd. (d)) and to annual review also encompassing a jury trial (Welf. & Inst. Code, ss 5361, 5362). In those proceedings, however, the state bears the burden of establishing that the person should be committed and that his commitment should be continued. (See e.g., Welf. & Inst. Code, s 5361.)

In the context of the case at bench, analysis in terms of equal protection demands consideration of the presence or absence of a constitutionally adequate basis for the differences in burden of proof in the two proceedings related to continuation of restraint on liberty. Because interest in liberty is a fundamental right (In re Gary W. (1971) 5 Cal.3d 296, 306, 96 Cal.Rptr. 1, 486 P.2d 1201), there must be a state interest of sufficient importance to justify the difference. (Comment, In re Franklin The Commitment And Release of Persons Acquitted By Reason Of Insanity (1972-1973) 24 Hastings L.J. 487, 496.)

In re Franklin

Our Supreme Court has faced the due process and equal protection problems but in a different context.

In re Franklin, supra, 7 Cal.3d 126, 101, Cal.Rptr. 553, 496 P.2d 465 deals with the requirement of Penal Code section 1026 that persons acquitted by reason of insanity of a charge of specified violent crimes must be committed for a minimum period of 90 days before they may be released.

Acknowledging the distinction between the M'Naghten basis of acquittal and the standard for continued confinement (In re Franklin, supra, at p. 145, 101 Cal.Rptr. 553, 496 P.2d 465), the high court finds no denial of procedural due process. It justifies the commitment pursuant to Penal Code section 1026 by: (1) the prior determination of insanity; (2) the proposition that the committee had himself elected to prove his insanity as a defense to a criminal charge; (3) the determination at the guilt phase of the trial that the person committed had endangered the public safety (there by a bomb threat); and (4) the need for a reasonable period of institutionalized evaluation to determine the committee's condition of sanity and if further commitment is necessary for “the security of the community and the welfare of the individual.” (In re Franklin, supra, 7 Cal.3d 126, 136-138, 101 Cal.Rptr. 553, 559, 496 P.2d 465, 471, relying upon Chase v. Kearns (Me.1971) 278 A.2d 132, 135.)

Acknowledging the difference in procedural protection afforded civil committees and those persons committed because of a not guilty by reason of insanity determination, the Franklin court finds no denial of equal protection to the latter class through the denial of a jury trial intervening between the criminal acquittal and commitment, or through the increased burden of proof placed upon NGI committees. It reasons that the distinction satisfies equal protection standards because persons found not guilty by reason of insanity are in a special class in which they have placed themselves by their own voluntary action in entering the NGI plea. (In re Franklin, supra, 7 Cal.3d at p. 146, 101 Cal.Rptr. 553, 496 P.2d 465.)

Due Process and Equal Protection in the Case at Bench

The case at bench requires a due process and equal protection analysis not required of the Franklin court. Franklin considers the situation immediately after the adjudication of not guilty by reason of insanity. We must consider the circumstances as they exist after a period equal to the maximum period of time for which Moye could have been imprisoned for the crime had he been found guilty of it here five years. Franklin involved a guilt phase determination of commission of acts constituting a felony dangerous in character. We must consider a not guilty by reason of insanity finding in one of those rare felonies the commission of which does not evidence that the defendant was a danger to himself or to the security of the community.

The difference of the situation in Franklin and in the case at bench is significant.

In terms of procedural due process, the leap from the M'Naghten adjudication to a conclusion of a present state of danger to the community security is much greater here than it was in Franklin. In Franklin, the guilt phase adjudication that the committee had endangered the public safety by a bomb threat preceded the commitment by only a short period. The offense occurred less than three months prior to trial. (7 Cal.3d at p. 131, 101 Cal.Rptr. 553, 496 P.2d 465.) The adjudication of guilt of the recent offense supports an inference that there is a risk, absent institutionalized treatment, that the dangerous conduct manifesting the mental illness will be repeated. Here, some five years ago, the guilt phase of Moye's trial determined that he was the driver of a vehicle involved in an accident causing injury but did not stop his car at the scene and supply identification. (Veh.Code, ss 20001, 20003.) No determination that Moye had driven dangerously was involved. Failure to report an accident five years in the past can hardly be said to support a present inference that the person guilty of the failure is a danger to community security. (See Leary v. United States (1969) 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57; Cleveland Board of Education v. La Fleur (1974) 414 U.S. 632, 644-646, 94 S.Ct. 791, 39 L.Ed.2d 52; Vlandis v. Kline (1973) 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63; Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551; German & Singer, Punishing The Not Guilty (1976) 29 Rutgers L.Rev. 1011, 1020, 1038.)

In terms of equal protection, the presence of Moye in a special class apart from civil committees because he voluntarily entered a not guilty by reason of insanity plea becomes suspect after the expiration of the maximum period of time for which he could have been punished for the crime of which he was acquitted. When tested by the fundamental right standard of equal protection, there is no state interest so strong as to justify it.

The Legislature, when it determined the maximum punishment for the crime, considered the period necessary “ ‘to confine the offender so that he may not harm society.’ ” (People v. Feagley (1975) 14 Cal.3d 338, 376, 121 Cal.Rptr. 509, 534, 535 P.2d 373, 398.) During the legislatively determined period, there is a public interest in deprivation of liberty of a person who committed a criminal act but who was absolved from responsibility because he was insane. That interest may justify placing the person committed in a special class and hence validate placing upon him the burden of establishing that he is no longer dangerous. (See Comment, In re Franklin The Commitment and Release of Persons Acquitted By Reason of Insanity, supra, 24 Hastings L.J. 487, 489-496.) At the expiration of the legislatively determined period, the state interest disappears. The state's interest in confinement beyond the legislatively determined period is fully served by civil commitment under the LPS Act, if that commitment is necessary to protect the public or the individual committed. (Cf. People v. Gray (1977) 72 Cal.App.3d 18, 139 Cal.Rptr. 805.)

Conclusion

We thus conclude that a person committed to a mental hospital pursuant to Penal Code section 1026 must be released from that commitment when the aggregate period of confinement equals the maximum period of time for which the person could have been imprisoned if he had been found guilty of the offense of which he was acquitted where that offense is one that does not evidence a danger to person or property.[FN3] If the individual is to be confined further, that confinement must be the result of appropriate civil commitment proceedings.

Disposition

The judgment (order) of the superior court is affirmed. Because Moye is now at liberty, the hearing ordered by the judgment need not be held. Moye's petition for habeas corpus in 2d Crim. No. 29726 is dismissed. The writ is granted in 2d Crim. No. 30323 and the matter remanded to the superior court for determination of Moye's eligibility for total release or, if appropriate, the institution of civil commitment proceedings.

FOOTNOTES

1.  No issue of the effect of the 1977 determinate sentence law is raised.

2.  We note that In re Anderson, supra, 73 Cal.App.3d 38, 140 Cal.Rptr. 546, is decided upon constitutional grounds without reference to interpretation of Penal Code section 1026.1 as requiring a hearing. We assume the Anderson court considered section 1026.1 preempted by Welfare and Institutions Code section 7375 which is the only controlling statute discussed in the opinion. We assume, also, that the Anderson court did not discuss the issue of retroactivity of its decision on the theory that retroactivity is governed by analogy to In re Bye, supra, 12 Cal.3d 96, 111, 115 Cal.Rptr. 382, 524 P.2d 854.

3.  We need not determine whether our reasoning as applied to Moye is applicable to a person committed after his insanity results in acquittal of a crime evidencing a danger to community security.

THOMPSON, Associate Justice.

WOOD, P. J., and HANSON, J., concur.