ALTMAN v. HOFFERBER (1979)

In September 1974 defendant Glen Gayle Hufferber (Hofferber) was charged after a preliminary hearing with murder (Pen.Code, s 187). In November 1974 on defendant's own motion he was found mentally incompetent to stand trial. Criminal proceedings were suspended, and defendant was committed to the Department of Health for placement in a state hospital (Pen.Code, s 1368 et seq.), where he became subject to periodic six-month review of his mental competency (Pen.Code, s 1370(b)(1)).

In 1976 defendant was returned to the Los Angeles Superior Court for the required 18-month hearing on his competency to stand trial (Pen.Code, s 1370(b) (2)). He was again found incompetent to stand trial and ordered recommitted to the state hospital, an order affirmed on appeal in People v. Hofferber, (1977) 70 Cal.App.3d 265, 137 Cal.Rptr. 115.

In October 1977 defendant, having been confined for the maximum three-year period pursuant to his initial commitment (Pen.Code, s 1370(c)(1)), was returned to the committing court for initiation of civil conservatorship proceedings (Pen.Code, s 1370(c)(2); Welf. & Inst.Code, ss 5008, 5350 et seq.). These proceedings were also required by reason of the Department of Health's prognosis that there was no substantial likelihood defendant would regain his mental competency in the foreseeable future (Pen.Code, s 1370(b) (1)). In the committing court defendant claimed to be competent and demanded a jury trial on the issue of his present competency to stand trial for murder (Pen.Code, s 1369). On 16 December 1977 a unanimous jury found him incompetent to stand trial. Thereafter, the committing court, having judicially noted that defendant had been the subject of an earlier conservatorship which had terminated prior to the homicide, that defendant had admitted in open court the commission of the charged homicide (“I just let him have it”), and that defendant had announced his intention to drive a stake through the heart of a relative, concluded that defendant was incompetent to stand trial, was a danger to the safety of others, and was “gravely disabled” within the meaning of Welfare and Institutions Code section 5008(h)(2). The court directed the public guardian to initiate conservatorship proceedings. (Pen.Code, s 1370(c) (2).)

In the formally separate conservatorship proceedings that followed, the conservatorship court denied defendant's request for a second jury trial on the issue of mental competency, and on 6 March 1978 it appointed the public guardian as conservator of defendant's person and estate with authority to place defendant in a state hospital or other mental health facility (Welf. & Inst.Code, ss 5350, 5358). Defendant appeals the appointment of the conservator,^[FN1] asserting that a person charged with violent felony and found incompetent to stand trial may not constitutionally be civilly committed for different causes and under different procedures from those which apply to other mentally disordered persons, and also asserting that to establish grave disability his mental incompetency must be proved beyond a reasonable doubt. For reasons hereinafter stated, we reject defendant's restrictive view of the scope of conservatorship proceedings but reverse the appointment of a conservator because of the erroneous instruction given the jury on burden of proof.

I

Civil commitment is regulated in California by the Lanterman-Petris-Short Act (LPS), which in relevant part authorizes civil commitment for three categories of mentally incompetent persons: (1) those who have threatened, attempted, or inflicted physical harm upon another and who present an imminent threat of substantial physical harm to others, whose confinement is limited to 90 days unless the assaultive conduct is repeated during their confinement (Welf. & Inst.Code, ss 5200, 5304); (2) those who are “gravely disabled” because they are unable to provide for their basic personal needs (Welf. & Inst.Code, s 5008(h)(1)); and (3) those like defendant who are “gravely disabled” in that they are unable to stand trial for violent felony because they cannot understand the nature of proceedings and cannot assist counsel in their defense (Welf. & Inst.Code, s 5008(h)(2)).^[FN2] In essence, defendant denies the legitimacy of this third category of persons subject to civil commitment, arguing that the differing substantive and procedural treatment given this category deprives its members of the benefits of equal protection of the laws and of due process of law.

A. In our view each of the three categories of mental incompetents involves different problems, whose effective solution may require somewhat different procedures from the others. (In re Franklin (1972) 7 Cal.3d 126, 143-44, 101 Cal.Rptr. 553, 496 P.2d 465.) We think it clear that persons about whom probable cause exists to believe they committed violent felonies properly comprise a category of persons different from those unable to provide for basic personal needs and different from those who present a threat of substantial physical harm to others, in that implicit in the accusation of violent felony lies the probability of danger of death or bodily harm to others. A person who a magistrate rules is the probable perpetrator of a violent felony differs from and is presumptively more dangerous than one whose dangerousness is deduced from psychiatric opinion. The former's propensity for dangerousness has been established as a probability by acts specific enough and serious enough to justify felony accusation while the latter's propensity for dangerousness is largely prognosticative and hypothetical. The difference between probable dangerousness and speculative dangerousness is sufficiently real to support the establishment of different categories of persons subject to civil commitment. And valid categorical differentiation goes a long way to satisfy the constitutional requirement of equal protection of the laws. (In re Franklin (1972) 7 Cal.3d 126, 135, 143-44, 101 Cal.Rptr. 553, 496 P.2d 465.)

Once we recognize the existence of different categories of grave disability, the question becomes whether differentiation in category justifies differentiation in commitment procedure. We note first that the procedural differences between commitment under subdivision (h) (1) and commitment under subdivision (h) (2) of section 5008 are relatively slight and arise not so much from differing standards for civil commitment for mental disorder as from differing circumstances that precipitate a petition for civil commitment. In petitions for conservatorship of persons under accusation of violent felony extensive factual inquiry into their mental competency has already been conducted (Pen.Code, ss 1368-1370), and the civil commitment proceedings do not start as inquiries from scratch. In other petitions for conservatorship prior inquiries and prior histories of incompetency may be lacking. To meet differing background circumstances the legislature may establish alternative commitment procedures designed to harmonize related criminal and civil proceedings and permit such proceedings to operate with minimum duplication, cross-purpose, and overlap. (In re Davis (1973) 8 Cal.3d 798, 801, 106 Cal.Rptr. 178, 505 P.2d 1018; In re Franklin (1972) 7 Cal.3d 125, 144, 101 Cal.Rptr. 553, 496 P.2d 465; Hale v. Superior Court (1975) 15 Cal.3d 221, 227-28, 124 Cal.Rptr. 57, 539 P.2d 817.) Patently, the legislature has geared procedures for civil commitment to degrees of necessity and probability of danger. With respect to civil commitment of those accused of violent felony but unable to stand trial, we believe current procedures adequately reconcile requirements of public safety with constitutional requirements for equal protection of the laws. Because of the existence of recognizably different categories of persons subject to civil commitment, the problem of greater and lesser degrees of leniency in commitment procedures for persons similarly situated does not arise.

B. Defendant also contends that the definition of “gravely disabled” persons to include those charged with violent felony but mentally incompetent to stand trial (Welf. & Inst.Code, s 5008(h)(2)) allows indefinite confinement based solely on findings of incompetency and thus not only violates constitutional guarantees but circumvents the basic legislative thrust of LPS to end indefinite, indeterminate, involuntary commitments of mentally disordered persons (Welf. & Inst.Code, s 5001(a)). At bottom, the argument is based on denial of due process of law, and we therefore examine the statutory scheme of LPS to see whether its procedures for long-term commitment satisfy constitutional requirements of due process.

First, section 5008(h)(2) has been made an integral part of LPS, and a person is not subjected to conservatorship merely because he is mentally incompetent to stand trial. To be civilly committed under section 5008(h)(2) the prospective conservatee must have been earlier found under Penal Code, section 1370 incompetent to stand trial; must have pending against him a charge of felony involving death, great bodily harm, or serious threat to the physical well-being of another; and must be currently found mentally incompetent to stand trial (Welf. & Inst.Code, s 5008(h)(2)). Second, once a conservatorship is established, defendant becomes the beneficiary of all procedural safeguards extended to conservatees, including: (1) optional six-month rehearing upon the conservatee's petition (Welf. & Inst.Code, s 5364); (2) automatic review upon yearly termination of the conservatorship (Welf. & Inst.Code, s 5361); and (3) automatic termination of the conservatorship whenever a defendant regains his mental competence (Welf. & Inst.Code, s 5369). Defendant's contention that the establishment of a conservatorship is tantamount to a permanent commitment based solely upon an initial finding of incompetency (In re Davis (1973) 8 Cal.3d 798, 106 Cal.Rptr. 178, 505 P.2d 1018; Jackson v. Indiana (1972) 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435), misconceives the text of the law and ignores its procedural safeguards (cf. Hale v. Superior Court (1975) 15 Cal.3d 221, 225-27, 124 Cal.Rptr. 57, 539 P.2d 817). We find the requirements of due process of law satisfied in LPS. (Hale v. Superior Court (1975) Supra, 15 Cal.3d 221, 124 Cal.Rptr. 57, 539 P.2d 817.)

C. Defendant argues there has been no showing or finding of his dangerousness, and, even if such a finding had been made, his commitment would be invalid because section 5008(h)(2) is defective in not specifying dangerousness as a condition of civil commitment. We think defendant reads the section too narrowly. Implicit in the entire statutory scheme for dealing with mental incompetents accused of violent felony (Pen.Code, ss 1367-1372; Welf. & Inst.Code, ss 5008(h)(2), 5350) is the idea of protection against mental incompetents who present a danger to public safety. At bench, not only had it been judicially determined that defendant probably committed the murder charged, but defendant testified in open court he did the killing and he desired to kill someone else. The threat of his dangerousness was made manifest, and the committing court specifically found him to be a danger to others. The obvious purpose of defendant's civil commitment was to protect members of the public from harm when protection through criminal prosecution was unavailable by reason of defendant's mental incompetency to stand trial. This purpose is one of the stated objectives of LPS, which not only seeks to terminate indefinite commitments (Welf. & Inst.Code, s 5001(a)) but also to guarantee and protect public safety (Welf. & Inst.Code, s 5001(c)). If and when an instance should arise of a mentally incompetent defendant charged with violent felony who does not present a danger to public safety, then will be time enough to determine the applicability of section 5008(h)(2) to such a defendant. (Greenwood v. United States (1956) 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412; In re Franklin (1972) 7 Cal.3d 125, 145, 101 Cal.Rptr. 553, 496 P.2d 465.) Danger to the public safety is the underlying reason, whether explicit or implicit, for civil commitment of incompetents charged with violent felony, and we have no difficulty reading danger into the statute as a condition of such commitment.

II

Finally, defendant contends the conservatorship court erred in not granting him a second jury trial on the issue of his mental competency before ordering the appointment of a conservator (Welf. & Inst.Code, ss 5008(h)(2), 5350). Defendant concedes, as he must, he has already had a jury finding in the committing criminal court on the issue of his present mental competency to stand trial, but he contends the finding was invalid for civil conservatorship purposes because the criminal proceeding found him incompetent by a preponderance of the evidence (Pen.Code, s 1369), whereas a civil conservatorship proceeding requires proof of incompetency beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 152 Cal.Rptr. 425, 589 P.2d 1306.) The argument requires us to consider conflicting rules governing the burden of proof for criminal and civil aspects of the identical factual determination in this instance the defendant's present mental competency to stand trial for murder.

Penal Code section 1369 states that in criminal proceedings to determine the issue of a defendant's mental competency to respond to criminal accusation the defendant is presumed competent unless a preponderance of the evidence shows him to be mentally incompetent. Clearly, this rule is designed to protect a defendant from criminal prosecution when evidence on the side of incompetency preponderates. Because the rule enables an incompetent defendant to suspend criminal process, it is generally seen as beneficial to a defendant's interest, and therefore the preponderance-of-evidence standard is the appropriate burden of proof. However, penal authority to confine an incompetent defendant terminates at the end of three years (Pen.Code, s 1370(c)(2)). At that point civil conservatorship proceedings are required to authorize further confinement (Welf. & Inst.Code, s 5350), and in civil proceedings defendant's incompetency to respond to a pending, violent-felony accusation must be proved beyond a reasonable doubt. We harmonize the procedural aspects of Penal Code section 1370 with those of Welfare and Institutions Code section 5350, both of which require a finding of grave disability as the result of mental incompetency which prevents a defendant from standing trial, by limiting the function of the committing criminal court under Penal Code section 1370(c)(2) to a summary preliminary determination of the issue of defendant's grave disability, and reserving to the conservatorship court the formal plenary determination of the defendant's grave disability under Welfare and Institutions Code section 5008(h)(2). In many instances the two courts will be the same, and we see nothing objectionable in simultaneous criminal and civil hearings to consider the same determination. But the trier of fact in the civil determination, whether jury or judge, must require proof of grave disability beyond a reasonable doubt.

Obviously, an anomaly exists between use of one standard of proof (preponderance of evidence) to establish penal incompetency to respond to criminal accusation and use of a different standard of proof (beyond a reasonable doubt) to establish civil incompetency to respond to the same criminal accusation. We reconcile this anomaly on the theory that the defendant's interests are favored in both instances. In resisting criminal accusation the defendant need only establish mental incompetency by a preponderance of the evidence. In resisting subsequent civil commitment the defendant may require the civil authority to prove his incompetency beyond a reasonable doubt.^[FN3]

At bench, the issue of grave disability was determined under a jury instruction that “the defendant is presumed to be mentally incompetent and it must be established by a preponderance of evidence that he is mentally incompetent.” Because that instruction was erroneous (Conservatorship of Roulet (1979) 23 Cal.3d 219, 152 Cal.Rptr. 425, 589 P.2d 1306), defendant is entitled to a new trial on the issue of his competency to respond to criminal accusation. In the resolution of that issue the burden rests on the public guardian to prove defendant's mental incompetence beyond a reasonable doubt.

The judgment is reversed.

I concur in the reversal of the judgment. I must respectfully and reluctantly, however, dissent from the majority's conclusion as to the constitutionality of the procedure established by Penal Code section 1370 and Welfare and Institutions Code section 5008(h)(2) for dealing with persons accused of violent felonies but who are incompetent to stand trial on the charges.

My reluctance stems from the fact that society needs a greater protection from violent, mentally ill persons than is presently afforded by the other provisions of the Lanterman-Petris-Short Act (LPS Act). It is simply unrealistic to assume that all demonstrably dangerous mentally ill persons can be rendered non-dangerous by a 90-day commitment to a medical facility. My reluctance is further prompted by a concern that should my view ultimately prevail in this case a dangerous individual may be released from confinement.

These concerns, however, are legislative matters which hopefully will be addressed as a result of the issues raised by this case. The present procedure, which is now under attack, itself represents a legislative response to the problem created by the United States Supreme Court's holding in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435, and its progeny, our Supreme Court's decision in In re Davis, 8 Cal.3d 798, 106 Cal.Rptr. 178, 505 P.2d 1018.

Some background history is informative. Prior to the decision in In re Davis, supra, and the subsequent enactment, in 1974, of Welfare and Institutions Code section 5008(h)(2), together with the accompanying amendment of Penal Code section 1370, the LPS Act provided for a 90-day commitment of persons who had threatened, attempted or Actually inflicted physical harm to another and who constituted an imminent threat of harm to others.

Also prior to In re Davis, supra, Penal Code section 1370 provided that a person found incompetent to stand trial could be committed indefinitely until he regained his competency. If a defendant did not regain his competency, his confinement could continue so long as the charge against him was still pending. If the charge was dismissed prior to defendant regaining his competency he then became subject to the then existing provisions of the LPS Act.

In re Davis, supra, held that commitment of persons incompetent to stand trial could only be so long as reasonably necessary to determine the likelihood of the individual's regaining competence. When it is determined that no such reasonable likelihood exists, the court must either “. . . order him released from confinement or initiate Appropriate alternative commitment proceedings under the Lanterman-Petris-Short Act (Welf. & Inst.Code, s 5000 et seq.).” (Page 807, 106 Cal.Rptr. page 185, 505 P.2d page 1025; emphasis added.)

One significant facet of that holding was that the continued pendency of the charge against the defendant was rendered irrelevant except insofar as the underlying facts could provide a basis for a commitment of defendant under the LPS Act as a person who had inflicted injury on another.

In response to that decision and because of an apparent feeling that a 90-day commitment under LPS was, under some circumstances, inadequate protection for the public, the Legislature amended Penal Code section 1370 to add subdivision (c) and amended LPS to add Welfare and Institutions Code section 5008(h)(2). In my opinion, the problem now presented could have been averted by simply removing from Welfare and Institutions Code section 5304 that category of persons who have Actually inflicted injury on another and who constitute an imminent danger and to provide longer possible commitments for such persons.

It is evident, however, that in the solution adopted in the present provisions of Penal Code section 1370(c) and Welfare and Institutions Code section 5008(h) (2), the Legislature simply, through the device of a conservatorship, reinstated the machinery for indefinite commitment of persons charged with but found incompetent to stand trial on a felony charge involving great bodily harm or death.^[FN1]

Hufferber, if he in fact murdered someone, would obviously qualify in part, as a person coming within the criteria of Welfare and Institutions Code section 5304. That section, however requires an additional showing that the individual poses an imminent threat of danger.

What distinguishes persons like Hufferber from persons covered by Welfare and Institutions Code section 5304? Two distinguishing factors are (1) the pendency of a criminal charge, and (2) incompetency to defend himself against the charge. A third and significant difference is that Hufferber has Not been found to be a present Imminent danger to others. Welfare and Institutions Code section 5008(h)(2) requires no such finding.

The majority, in apparent recognition of the weakness in the procedure, reads into the Welfare and Institutions Code section 5008(h)(2) a requirement that the proposed conservatee pose a present danger. I am satisfied that the legislative intent was not to require such a finding. The majority finds that Hufferber is a present danger on the basis of an inference to be drawn from commission of the crime with which he is charged. That is exactly what the Legislature sought to do, i. e., infer the existence of a present danger from the fact of the commission of the charged offense.

The Legislature, however, perceived what the majority apparently fails to perceive and that is that there comes a time when such an inference cannot continue to be drawn. Hence, the Legislature carefully omitted a requirement that there be any additional showing of present danger. The legislative intent was to permit confinement of the individual on the basis of the alleged crime without reference to any additional evidence that he constitutes a present danger.

The majority also attaches significance to Hufferber's ranting statement of desiring to “drive a stake” through someone's heart. That amounts to nothing more than a threat to do harm which is another of the criteria in Welfare and Institutions Code section 5304.

Accepting for the moment the majority's implied finding of present danger, this case, reduced to its simplest terms, involves an individual who, assuming he committed the crime charged, would, on the basis of a single set of facts, qualify as a “gravely disabled” person under Welfare and Institutions Code section 5008 and also as a person eligible for confinement under Welfare and Institutions Code section 5304. The single factor which permits Hufferber's confinement beyond the 90-day limit of Welfare and Institutions Code section 5304 is the pendency of the criminal charge.

When the results in the case at bench are compared with those in the case of an individual found not guilty by reason of insanity, the defect in the procedure under attack becomes clear.

A defendant in a criminal action found not guilty by reason of insanity has, prior to such finding, been proved beyond a reasonable doubt to have committed the crime but has been excused from the usual criminal sanctions because of insanity. Such a defendant is then committed to a mental institution pending determination of whether he has recovered his sanity. (Pen.Code, s 1026.) His continued confinement or release depends at that time on whether he is presently a danger, (People v. Crosier, 41 Cal.App.3d 712, 116 Cal.Rptr. 467) and not simply on the fact that he committed a serious crime.

In the case of In re Moye, 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097, filed October 17, 1978, the Supreme Court ruled that persons committed pursuant to Penal Code section 1026, even though they have not recovered their sanity, cannot be confined for a period exceeding the maximum term of imprisonment for the underlying charges which, but for their insanity, they would have been convicted. After that period of time has expired they then become subject to the usual civil commitment procedures.

Here we are dealing with an individual whose culpability for any offense has not yet been determined. We know nothing of the facts or circumstances of the homicide with which he is charged. The possibility exists that he could be ultimately acquitted of the charge or he could be found guilty of an offense ranging from first degree murder to manslaughter.

If the underlying offense proved to be anything less than first degree murder, an indefinite commitment under the conservatorship provided by Welfare and Institutions Code section 5008(h)(2) could exceed the maximum sentence allowable for that offense. This would clearly violate the rule of In re Moye, supra. A person who has not been proven to have committed any offense should not be treated more harshly than a person who has been found to have committed the offense but excused because of mental defect.

The purpose of a conservatorship, insofar as is relevant here, is essentially protection of the public and protection of the conservatee. (Welf. & Inst.Code, s 5001.) A conservatorship based on an individual's incompetency to stand trial, without more, is unrelated to protection of either the individual or society.

The question then is narrowed to the one of whether a pending unresolved criminal charge, of which the individual may in fact be innocent, has such a relationship to the protection of society that it can justify a conservatorship and indefinite commitment without ever having the question of his guilt determined. Obviously no such commitment is possible in the case of an individual who Is competent to stand trial.

In my opinion the combination of the two factors incompetence to stand trial and a pending unresolved criminal charge does not provide a rational basis for conservatorship unless it can be said that the individual, because of these factors, constitutes a present and continuing danger to society.

It can be argued, and the majority so reasons, that when a magistrate determines that there is probable cause to believe an individual has committed a serious violent felony, it can be reasonably inferred that he constitutes a present danger to others. But, as stated earlier, there is a point at which such an inference can no longer reasonably be drawn simply from the commission of the crime itself and when further confinement of the individual must be based on additional evidence of a present and continuing danger.

The Legislature in response to the holding of In re Davis, supra, has set that reasonable period at a maximum of three years. (Pen.Code, s 1370.) At the end of that three year period, or earlier when there is a finding that the individual will not regain his competency to stand trial, due process and equal protection of the law requires that the individual then be treated like other persons suffering from similar mental impairment. This is the clear import of In re Davis and In re Moye.

Equal protection of the law is not abridged by creating a classification of persons so long as the classification bears a rational relationship to a legitimate state objective. It is not enough, however, that there be equal treatment of the persons within the class. Where the classification affects a fundamental interest and the creation of a conservatorship with the loss of liberty occasioned thereby certainly affects a fundamental interest it will be upheld only if it is necessary to furtherance of a compelling state interest. (Weber v. City Council, 9 Cal.3d 950, 109 Cal.Rptr. 553, 513 P.2d 601; Blumenthal v. Board of Medical Examiners, 57 Cal.2d 228, 18 Cal.Rptr. 501, 368 P.2d 101; Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212; McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222.)

By enacting Welfare and Institutions Code section 5304, the Legislature addressed the problem of commitment of persons who have inflicted injury on others and are considered to be dangerous to others. To carve out of that group of persons a sub-group which is subject to possible indefinite commitment simply on the basis that there is a pending unresolved criminal charge is to deny to the latter individuals due process and equal protection of the law. The prosecuting authority, in effect, is given the power to determine the length of commitment by electing to dismiss or to continue the pendency of the original charge.

I cannot agree with the majority's attempt to distinguish between individuals covered by Welfare and Institutions Code section 5304 and those covered by section 5008. The statement that “The difference between probable dangerousness and speculative dangerousness is sufficiently real to support the establishment of different categories of persons” while true, begs the question and ignores the provisions of LPS.

There is nothing speculative about the Actual infliction of injury on another in terms of that being evidence of dangerous propensities, whether the proceeding is under section 5304 or 5008 of the Welfare and Institutions Code. A determination of whether that manifested propensity continues to operate as evidence of imminent and continuing danger to others is always going to be “largely prognosticative and hypothetical” whether the proceeding is under section 5304 or 5008.

The unstated assumption in the majority opinion is that the district attorney's decision to file a criminal charge against a person who inflicts serious injury on another properly identifies those persons who are the more dangerous and who, if found incompetent to stand trial, should be processed under Welfare and Institutions Code section 5008, leaving section 5304 to cover those mentally ill persons who injure others but whose potential danger is not great enough to warrant their confinement. In short the decision as to the length of commitment rests upon the decision of the district attorney in electing to prosecute or not to prosecute and in deciding whether or not to dismiss the accusatory pleading after the individual has been found to be incompetent to stand trial.

As a former prosecutor, I must confess that rationale holds a certain appeal for me. I am certain, however, that the Supreme Court of this state is not prepared to vest the district attorney with that authority. As I indicated earlier, I believe that there is a ready solution to the problem which the Legislature could provide. As of this writing, however, the Legislature has not met the problem in a constitutionally permissible fashion.

I am constrained by the holdings of In re Davis and In re Moye to hold that the conditions of conservatorship set out by Welfare and Institutions Code section 5008(h)(2) have no relationship to the objective and purpose of the LPS Act and permit the singling out for special treatment of a classification of persons defined by criteria which has no rational relationship to protection of public safety.

I would reverse the judgment and remand the matter to the trial court with directions to proceed under the provisions of the LPS Act rather than Welfare and Institutions Code section 5008(h)(2).

FOOTNOTES

1.  Defendant also appealed the adjudication by the committing court of his incompetency to stand trial and its refusal to dismiss the criminal proceedings, but he has since abandoned that appeal.

2.  “ ‘(G)ravely disabled’ means: . . .“2. A condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist:“(i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person.“(ii) The indictment or information has not been dismissed.“(iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him and to assist counsel in the conduct of his defense in a rational manner. . . .” (Welf. & Inst.Code, s 5008(h)(2).)

3.  A gap in instances of grave disability may arise, if a defendant in criminal proceedings establishes his incompetency to stand trial by a preponderance of evidence, and thereafter the public guardian in civil proceedings fails to prove incompetency to stand trial beyond a reasonable doubt. However, for persons like defendant, who are both subject to delusions and prone to violence, the gap is more theoretical than real. Defendant in the trial court identified himself under the names God, Michelangelo, St. Patrick, Cookie Lasagna, Gosey Kayle, and others asserted that President Lyndon Johnson was the only person fully aware of his role, declared that he was entitled to wear the uniform of commander in chief of the armed forces, and reminisced about his experience at Little Big Horn with General Custer and the Seventh Cavalry. His propensity for violence was suggested by his own testimony.

1.  While Penal Code section 1370(c) requires the return to court of an individual confined for three years or a period equivalent to the maximum sentence for the most serious offense charged against him, whichever is shorter, it contains no limitation on the length of the conservatorship which follows; nor does section 5008(h)(2) contain any such limitation.

FLEMING, Acting Presiding Justice.

BEACH, J., concurs.