PEOPLE v. HERNANDEZ

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

The PEOPLE of the State of California, Petitioner and Respondent, v. Juan T. HERNANDEZ, Appellant.

Cr. 42572.

Decided: September 14, 1982

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Charles M. Bonneau and Anna Jovanovich, Deputy State Public Defenders, for appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and Jana L. Tuton, Deputy Attys. Gen., for petitioner and respondent.

 The Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000 et seq.) 1 was enacted for the purpose, inter alia, of ending “the inappropriate, indefinite, and involuntary commitment of mentally disordered persons.”  (§ 5001, subd. (a).)  To that end, the Legislature intended ‘ [t]o safeguard individual rights through judicial review.”  (§ 5001, subd. (d).)  In this case, we hold that adverse determinations made pursuant to section 5300 are not appealable.2  The sole and appropriate manner of judicial review is by a petition for writ of habeas corpus, and only this remedy effectuates the legislative intent for prompt and meaningful judicial review of orders made pursuant to section 5300.   Accordingly, we dismiss the purported appeal.3

On January 13, 1981, Juan T. Hernandez was committed to the State Department of Mental Health for a period not to exceed 90 days after a jury determined that he fell within the purview of section 5300.   He filed a notice of appeal, and two months later the clerk's and reporter's transcripts were filed with the Court of Appeal, Fifth Appellate District.   That court appointed counsel to represent him.4

As far as disclosed by the present record, the instant matter had its judicial genesis in a “Petition for Postcertification Treatment of Imminently Dangerous Person” filed in the superior court pursuant to section 5301.   Pursuant to section 5302, the court appointed counsel and a jury was selected to determine the truth of the petition.   Based upon what can only be characterized as overwhelming evidence, the jury determined that appellant was in need of treatment for a period not to exceed 90 days.

 “ ‘[U]nder the general rule, an order is not appealable unless declared to be so by the Constitution or by statute.’  [Citations.]”  (People v. Succop [1966] 65 Cal.2d 483, 486, 55 Cal.Rptr. 397, 421 P.2d 405.)   The Legislature has not expressly provided that adverse determinations pursuant to section 5300 are appealable.   However, it is well settled that “habeas corpus will issue to release from custody one who has been subjected to defective proceedings leading to an order of civil commitment.”  (People v. Succop, supra, at p. 488, 55 Cal.Rptr. 397, 421 P.2d 405;  see also §§ 5275, 7250;  Pen.Code, § 1473.) 5

Appellant contends that an adverse section 5300 determination is appealable by reason of Code of Civil Procedure section 904.1, which, in pertinent part, provides:  ‘An appeal may be taken from a superior court in the following cases:  [¶ ] (a) From a judgment, except (1) an interlocutory judgment ․”

The intent of this statute ‘is to codify the final judgment rule, or rule of one final judgment, a fundamental principle of appellate practice in the United States.”  (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 36, p. 4050.)   There is little question but that the section 5300 order for treatment not to exceed 90 days leaves no further judicial act to be done and is “final” as to itself.   It must be emphasized that the commitment is of an indeterminate nature and may be terminated administratively at any time prior to the expiration of the 90-day period.  (§ 5305.)   Each of the escalating periods of involuntary confinement pursuant to the Lanterman-Petris-Short Act, 72 hours (§ 5150), not more than 14 days (§ 5250), and not more than 90 days (§ 5300), is usually a progressive step toward the establishment of a one-year conservatorship (§§ 5350, 5361), which is an appealable order (Prob.Code, § 2750, subd. (a)).  While final as to themselves, the precedent steps are interlocutory when considered in the context of the entire scheme.   Were we to hold that confinement for a period not to exceed 90 days is a final judgment within the meaning of Code of Civil Procedure section 904.1, subdivision (a), an automatic stay pending the outcome of the appeal would result.   (Code Civ.Proc., § 916, subd. (a).)  We cannot believe that the Legislature intended that those judicially determined to be imminently dangerous within the meaning of section 5300 are to be at liberty pending appeal and it would be the paradigm of folly for us to so hold.6  “ ‘ “It is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” ’  [Citations.]”  (Younger v. Superior Court [1978] 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)   We eschew the absurd consequence and hold that an adverse section 5300 order is not a final and appealable order within the meaning of Code of Civil Procedure section 904.1, subdivision (a).7

Those committed pursuant to section 5300 may obtain timely judicial review by way of habeas corpus.   The very facts of this case demonstrate the wisdom of this procedure.   It has been over one and a half years since appellant was adjudged in need of treatment not to exceed 90 days.   The appeal is, in essence, moot.   Whether appellant responded to treatment or is confined pursuant to some subsequent order of commitment is not known.   What is apparent, however, is that any review which we could here provide is simply not timely.   Had he sought relief from the adverse order by way of habeas corpus, he could have at least had the opportunity to receive a ruling which would have terminated his involuntary confinement.   As it was, the record on appeal was not filed until two-thirds of the potential maximum period of confinement had already expired.   Appellant's opening brief was filed more than three months after his potential maximum period of potential confinement had expired.   The remedy of appeal is not only inadequate and illusory, it is simply no remedy at all.   Having concluded that a section 5300 order “is not an appealable order, it is the duty of this court on its own motion to dismiss the appeal.   [Citations.]”  (Collins v. Corse [1936] 8 Cal.2d 123, 124, 64 P.2d 137;  see also DeGrandchamp v. Texaco, Inc. [1979] 100 Cal.App.3d 424, 430, 160 Cal.Rptr. 899.)

In any event, we have considered the entire record on appeal and the arguments advanced by court-appointed counsel.   We share the Legislature's concern for the inappropriate commitment of mentally disordered persons.   The instant commitment, however, was not inappropriate by any standard of review.   At the time the adverse order was here made, appellant was in dire need of intensive treatment and he does not here claim to the contrary.8  Even if we were to consider the purported appeal as a petition for writ of habeas corpus, it is readily apparent that no relief would be forthcoming.

The appeal is dismissed.

FOOTNOTES

1.   All references are to the Welfare and Institutions Code unless otherwise indicated.

2.   Section 5300 provides:  “At the expiration of the 14-day period of intensive treatment [§ 5250], a person may be confined for further treatment pursuant to the provisions of this article for an additional period, not to exceed 90 days if he:  [¶ ]  (a) Has threatened, attempted, or inflicted physical harm upon the person of another after having been taken into custody for evaluation and treatment, and who, as a result of mental disorder, presents an imminent threat of substantial physical harm to others, or [¶ ]  (b) Had attempted or inflicted physical harm upon the person of another, that act having resulted in his being taken into custody and who presents, as a result of mental disorder, an imminent threat of substantial physical harm to others.  [¶ ]  For purposes of this article ‘custody’ shall be construed to mean involuntary detainment under the provisions of this part uninterrupted by any period of unconditioned release from a facility providing involuntary care and treatment.”

3.   The issue of appealability was raised sua sponte by this court.   Given the delays inherent in the appellate process, it seemed most unlikely, indeed somewhat absurd, that the Legislature could have intended that adverse section 5300 orders be appealable.   The parties have filed briefs on the issue at our request.

4.   This appeal was transferred to this division by order of the California Supreme Court on May 10, 1982.  (Cal. Rules of Court, rule 20.)

5.   ‘The denial of a petition for habeas corpus is not appealable.   [Citations.]”  (People v. Manson [1976] 61 Cal.App.3d 102, 170, 132 Cal.Rptr. 265.)   Upon an adverse determination by the trial court, the remedy is the filing of a new habeas corpus petition in the reviewing court.  (People v. Manson, supra, at p. 170, 132 Cal.Rptr. 265.)

6.   Respondent submits that an adverse section 5300 determination is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a), but asks that we “engraft” the stay provision for a conservatorship (§ 5352.4) to a section 5300 commitment.   In light of our determination that such an order is not appealable, we need not address respondent's request that a stay provision should be judicially declared.

7.   Appellant also contends that an adverse determination pursuant to section 5300 is appealable by reason of Code of Civil Procedure section 904.1, subdivision (k)'s reference to Probate Code section 2750 and by reason of Penal Code section 1237.   These claimed bases for appealability must be rejected.   Nothing in Probate Code section 2750 concerning the establishment of a conservatorship is here pertinent.   The order here under review was not an order establishing a conservatorship.   Penal Code section 1237 is similarly inapposite since the subject order did not result from a criminal proceeding.   Had the Legislature intended that a section 5300 order be appealable by reason of Probate Code section 2750 or Penal Code section 1237, it would have expressly included such an order within those specified.   By reason of the time-honored rule of construction of expressio unius est exclusio alterius, we conclude that these asserted bases for appealability must fail.   (Wildlife Alive v. Chickering [1976] 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537.)

8.   We note, with some irony, appellant's testimony at trial.   After he explained the circumstances which led to his confinement, he was asked, ‘Do you feel that you are a danger to other people?”   He answered, ‘No, I feel—you know, I feel I need help and I may be a danger to other people because of my temper but I feel that with the proper help, medical treatment, I could be helped.   I know that.   You know, I know I'm not all together in my—I feel it has more to do with emotions than anything else.”

ROTH, Presiding Judge.

BEACH and GATES, JJ., concur.