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

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Everett HART, Defendant and Appellant.


Decided: May 14, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Josanna Berkow, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Richard I. Targow, Sebastopol, for defendant and appellant.

Defendant Ronald Everett Hart (Hart ) was charged in 1983 with a felonious aggravated assault (Pen.Code, § 245, subd. (a)), by an information which also alleged that he had suffered three prior felony convictions.   He was found to have committed the charged offense and to have suffered the alleged prior convictions, but on his plea of not guilty by reason of insanity he was found to have been insane at the time of the charged assault's commission.   Hart was thereupon, as directed by Penal Code section 1026, committed to a state hospital for the care and treatment of the mentally disordered.

Hart thereafter filed a petition under Penal Code section 1026.2 seeking a judicial declaration that he was no longer insane, and that he no longer constituted a danger to himself or others.   And he thereby sought release from the commitment to a state hospital.

Penal Code section 1026.2, here applicable, became effective January 1, 1986.   It provides, as relevant, the following:

“(a) 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 sanity has been restored, may be made to the superior court of the county from which the commitment was made ․ by the person․

“(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․  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․

“(j) If the court denies the application to place the person in an appropriate local mental health program ․ no new application may be filed by the person until one year has elapsed from the date of the denial․”

The superior court thereafter held the hearing required by subdivision (e) of section 1026.2.   Hart had requested that the hearing be before a jury, but the request was denied.   And following the hearing, obviously concluding that Hart continued to be insane and that he was a danger to the health and safety of others, and to himself, the superior court, April 22, 1986, ordered that “defendant's request for relief be denied.”   The instant appeal is from that order.

Hart's appellate contention is that:  “Penal Code section 1026.2, subdivision (e) must be construed to require a jury determination in the first ‘hearing’ in order to comply with the constitutional requirements of In re Franklin [7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465].”

It will be seen, from the above-quoted Penal Code section 1026.2, subdivision (j), that if the superior court denied Hart's implied application to be placed in an appropriate local mental health program, no new application might be filed for one year.   And at the end of the year such an application might again be denied, a process which could be continued ad infinitum.   And thereby, Hart could be denied a jury determination on the issue of his restoration to sanity.

In re Franklin (1972) 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 concerned a person situated as is Hart who had petitioned for an order that he had been restored to sanity.   He also had requested a jury determination of that issue, a request which, as here, was denied.   The high court held (p. 131, 101 Cal.Rptr. 553, 496 P.2d 465) that Franklin was “entitled to a full jury hearing on the question whether he has recovered his sanity and is no longer a danger to the health and safety of himself or others,” and that (p. 149, 101 Cal.Rptr. 553, 496 P.2d 465):  “Although there are certain authorities which question the advisability of a jury determination of an essentially medical question such as restoration of sanity ․ we are convinced ․ that petitioner is constitutionally entitled to a jury trial on the question of his release, should he request it.”

By the state's Supreme Court we are told that:  “The decisions of this court are binding upon and must be followed by all the state courts of California.”   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Nor, in our opinion, are we permitted to follow the ruling contrary to our holding, of Barnes v. Superior Court (1986) 186 Cal.App.3d 969, 231 Cal.Rptr. 158.

The order of April 22, 1986 is reversed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.