PEOPLE v. STUART (1980)

Appellant, Larry Edward Stuart, appeals from a post In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097, jury determination that he remain committed as an MDSO for an additional year in the Department of Public Mental Health pursuant to section 6316.2 of the Welfare and Institutions Code.

Procedural Facts

On October 10, 1973, appellant was found guilty of violating Penal Code section 245(a), assault with a deadly weapon;  and not guilty by reason of insanity.   He was committed to the Department of Public Mental Health “until his sanity be restored” in accordance with section 1026 of the Penal Code.

The act for which he was found guilty was the result of an aggravated assault with a baseball bat upon a man with whom he had had a homosexual encounter.

Appellant made several applications for release pursuant to Penal Code section 1026a;  the last one being set for hearing (after several defense continuances that are not material to these proceedings) on January 31, 1979.

Appellant had filed his application for this hearing on September, 1, 1978, but the respondent, after Moye became effective November 15, 1978, filed their “Petition for Commitment of Dangerous Criminal Offender” on November 29, 1978.   Thus, on January 31, 1979, the “hearing” became a jury trial pursuant to section 6316.2, Welfare and Institutions Code.

After receiving testimony from three doctors and from the appellant, the jury returned its verdict on February 1, 1979, finding that Stuart “remains a danger to the health and safety of himself or others.”   He was committed for an extended year to the department.

Each doctor gave his opinion that the defendant remained a danger to himself and/or to others.

At the time the petition for extended commitment was before the trial court in January of 1979, the Community Release Board had not as yet determined appellant's “maximum commitment.”   However, the Board later determined such to be July 9, 1977, in accordance with Moye.

Appellant raises numerous contentions on appeal.

 1. Should the trial court have made a determination of the maximum time of commitment at or before the hearing on January 31, 1979, in the absence of the Board doing so?

We believe it should have in accordance with the holding in People v. Wadsworth (1979) 92 Cal.App.3d 978, 155 Cal.Rptr. 330, where the court stated at pages 982–983 [155 Cal.Rptr. at page 333] of its opinion:

“The brief of the Attorney General argues that the Community Release Board must set the term for appellant, and that, since the record does not show that such board action has taken place, the superior court's order should be affirmed.   We do not interpret Moye as requiring board action as a condition of release.

“The Moye decision is based upon a constitutional principle.   The Supreme Court reasoned that the Constitution placed a limitation upon the length of time a person may be held in confinement upon a finding of not guilty by reason of insanity.   It follows that a trial court errs in sending a person back to the hospital for additional confinement beyond the constitutional maximum.

“When a person who has been committed under Penal Code section 1026 is back before the court for further proceedings, if the court has not theretofore determined ‘the maximum term of commitment’ it should do so ‘in accordance with the principles expressed in [Welf. & Inst.Code] section 6316.1.’ ”

 2. Conceding, as do the parties in this case, that the date of release of the appellant was actually July 9, 1977, did the court lack inherent jurisdiction to try the issue raised by respondent in their petition to extend time of commitment, filed pursuant to section 6316.1 of the Welfare and Institutions Code?

We must reluctantly answer in the affirmative, relying principally on Moye where, as here, the maximum term provided by law for commitment of appellant ended one year, four months and twenty days prior to the filing of the People's petition on November 29, 1979.

In Moye, 22 Cal.3d at pages 467–468 [149 Cal.Rptr. at pages 497–498, 584 P.2d at pages 1103–1104] of its opinion, the Supreme Court left little equivocation as to the applicability of the Uniform Determinate Sentencing Law on persons such as appellant:

“Specifically, we hold that principles of equal protection require (subject to the availability of either an extended commitment as outlined below, or a civil commitment under the LPS act) that persons committed to a state institution following acquittal of a criminal offense on the ground of their insanity cannot be retained in institutional confinement beyond the maximum term of punishment for the underlying offense of which, but for their insanity, they would have been convicted.   To the extent practicable, and in the absence of further legislation applicable to commitments under Penal Code section 1026, calculation of the maximum term of punishment should be made in accordance with the principles expressed in section 6316.1 of the Welfare and Institutions Code.

“As in the case of MDSOs and other dangerous offenders, persons in petitioner's class properly, and consistent with equal protection principles, may be subjected to a period of extended commitment once the maximum term of punishment has expired, in the event the People (or other committing authority) can establish that the person committed remains a danger to the health and safety of himself or others.   As noted above, for example, the commitment of MDSOs may be so extended only if a specified procedure is followed, involving the filing of a petition for an extended commitment of one year, notice to the person committed of his right to an attorney and a jury trial, and a hearing on the issue of dangerousness.  (Welf. & Inst.Code, § 6316.2)  The extended commitment period is one year, subject to annual renewal following similar notice and hearing.  (Ibid.)  To the extent practicable, and in the absence of further legislation on the subject, the procedure for the extended commitment of persons committed following their acquittal on the ground of insanity should conform to the procedures specified in section 6316.2 of the Welfare and Institutions Code.

“The People urge that the paramount interest of the state in protection of the public justifies the commitment and release procedure set forth in sections 1026 and 1026a.   Nonetheless, the availability of an extended commitment procedure akin to section 6316.2 of the Welfare and Institutions Code, or the institution of civil commitment proceedings under the LPS act, would appear to constitute adequate protection against the premature release of dangerous persons to society.   If, after a substantial period of confinement and treatment equivalent in duration to the maximum term for the offense committed, petitioner remains demonstrably dangerous, an additional commitment may be sought as discussed above.   Although the burden of proof on the issue of dangerousness will have shifted to the People once confinement for the maximum term of the underlying offense has occurred, upon a proper showing the petitioner may be retained in confinement and will not be ‘loose’ or ‘at large.’

“It must be remembered that, except for their own plea of insanity, even the most dangerous of offenders are released to society upon serving their maximum term.   Under such circumstances, the possibility of an indefinite, lifetime confinement provided by section 1026 may well deter from entering an insanity plea those very persons most in need of hospital treatment.   Such a result serves neither the interest of the public nor those like petitioner who have entered insanity pleas.”  (Emphasis ours.)

If, as argued by respondent, that the case law simply does not fit the time circumstances of this case, we are required to give the benefit of the full meaning of the legislative enactments to the appellant.  (People v. Community Release Bd. (1979) 96 Cal.App.3d 792, 799, 158 Cal.Rptr. 238.)

 It is quite proper to commence extended commitment proceedings within a reasonable time prior to or soon after completion of the maximum term of commitment, as was decided in People v. Superior Court (Rigg) (1978) 80 Cal.App.3d 407, 416, 145 Cal.Rptr. 711.   However, we are not persuaded with respondent's argument that Rigg applies here.

Rigg, in essence, stands for the proposition that the 90-day notice requirement set forth in section 6316.2(b) of the Welfare and Institutions Code, must be “substantially met” by the filing of the petition for extended commitment as soon as is reasonably feasible either shortly before expiration of the maximum term of commitment or soon thereafter, once the new statute became effective on July 1, 1977.

Since the extended commitment petition was not filed until almost 17 months after the date of release, such filing did not comport with the requirements of Rigg.

3. Did the trial court give an erroneous instruction to the jurors in this case?

Again, we must answer in the affirmative.

The jurors were asked to bring in their finding or verdict on the question of whether or not appellant Stuart “remains a danger to the health and safety of himself or others.”

Section 6316.2 of the Welfare and Institutions Code provides, in part, that a person may have an extended commitment as an MDSO only if such person “[s]uffers from a mental disease, defect, or disorder, and as a result of such  ․ ․ ․  is predisposed to the commission of sexual offenses to such a degree that he presents a serious threat of substantial harm to the health and safety of others.”  (Emphasis ours.)

 It is apparent from the language of the statute that a different standard was intended to apply to the extended commitment proceedings for MDSOs than that applicable to release of committees at “restored sanity” hearings pursuant to 1026a of the Penal Code.   The test there is simply whether the person no longer presents a danger to himself or others.  (In re Jones (1968) 260 Cal.App.2d 906, 911, 912, 68 Cal.Rptr. 32.)

 Here the trial court did not instruct in accordance with this new test and therefore, the jury may have answered the question in a different manner had they been asked the question in proper form.

It is also apparent from reading the testimony of the medical experts in this case, that they were not asked for opinions couched in terms of the new test created under the Welfare and Institution Code provision quoted above.

Such error requires a new trial on the question, as now framed by the Legislature, under section 6316.2.

 4. Was it error to proceed with the jury trial with appellant being represented by the County Public Defender as opposed to the State Public Defender?

To this we answer in the negative.

While it is true that section 6316.2 of the Code requires that the State Public Defender be appointed to represent indigent MDSOs for the purpose of extended commitment proceedings, the obvious purpose of such requirement is to insure such party be competently represented.  People v. Pope, 23 Cal.3d 412, 421, 423, 152 Cal.Rptr. 732, 590 P.2d 859 (1979).

Even if the court erred in allowing the proceedings to go forward with the aid of the County Public Defender, such error was harmless.

 Generally a party cannot, on appeal, disavow the authority of his attorney of record to act on his behalf at trial.  Estate of Joslyn (1967) 256 Cal.App.2d 671, 676, 64 Cal.Rptr. 386.

Appellant fails to articulate any specific act or breach of duty on the part of trial counsel, which demonstrates lack of competency.   Appellant merely argues that the State Public Defender would have had “more experience” in these kinds of matters by virtue of state law qualifying him to act.   This is pure speculation and not supported by the record.

5. Can the District Attorney, rather than the Director of Mental Health, initiate the petition to extend commitment?

The record is entirely silent as to whether or not the director formally asked the District Attorney to proceed on his behalf.   Trial counsel never questioned the District Attorney's authority to proceed.

Section 6316.2(b) provides:

“(b) If during a commitment under this part, the Director of Mental Health has good cause to believe that a patient is a person described in subdivision (a), the director may submit such supporting evaluations and case file to the prosecuting attorney who may file a petition for extended commitment in the superior court which issued the original commitment.   Such petition shall be filed no later than 90 days before the expiration of the original commitment.   Such petition shall state the reasons for the extended commitment, with accompanying affidavits specifying the factual basis for believing that the person meets each of the requirements set forth in subdivision (a).

 It is apparent that the director must “initiate” the proceedings, because he is the person charged with determining whether an MDSO should be released or be committed for an extended period of time in accordance with this statutory scheme.

It would appear that, if objected to at the trial stage, it would be incumbent for the trial court to investigate the propriety of the actions by the district attorney who merely stated in conclusionary terms that he was “informed and believed” that the director had determined that the appellant should have an extended commitment.

 However, failure to raise this factual issue at the trial constitutes waiver and will not be reviewed on appeal, unless a question of law is presented on an uncontroverted factual record.  (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167, 143 Cal.Rptr. 633.)

Moreover, the District Attorney's verified petition contains a prima facie statement of his authority in the affidavit supporting it.

No recognizable error was committed by the trial court by going ahead with the proceedings based on this particular challenge.

Appellant further cites as additional instances of error on the part of the trial court when it (1) failed to strike and admonish as to a nonresponsive answer of the appellant, (2) admitted hearsay and (3) made an opening comment to the effect that the jurors, in determining the question of “danger”, would in effect be determining the defendant's commitment.

We need not dwell on these alleged procedural errors inasmuch as a reversal is required on the more substantive issues relating to essential due process of law.

The determination of the trial court ordering the appellant to be committed for an additional year in the Department of Public Mental Health commencing February 1, 1979, is reversed;  and the matter is remanded to said court to order immediate release of the appellant;  unless the People can proceed under an alternative procedure to commit the appellant without using section 6316.1 of the Welfare and Institutions Code.

I reluctantly concur in the judgment.   My reluctance stems from what appears to me to be “loopholes” in existing statutory and binding case law controlling this case which may result in prematurely releasing an extremely dangerous person upon society.

The defendant herein was initially convicted in October 1973 of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a).   Defendant had attacked his sleeping victim with a ball bat, striking him in the head.   The trial court also found the defendant not guilty by reason of insanity following a consideration of reports from two psychiatrists, Dr. George Y. Abe and Dr. Michael B. Coburn, and committed him to Atascadero State Hospital pursuant to Penal Code sections 1026 and 1026a.   Dr. Abe in his report dated September 24, 1973, which is contained in the record, stated that in his opinion “Defendant was insane at the time of commission of offense.   Due to a paranoid delusion that people, including the victim, were out to get him,  ․ ․ ․  [and that] Defendant is presently insane according to Section 1026 and 1026a P.C.   He has a Schizophrenic mental illness, which can cause him to be dangerous to the health and safety of others.”

At the hearing which has given rise to the instant appeal three other psychiatrists testified that the defendant remains a danger to the health and safety of himself or others, and the jury so found.

The reporter's transcript in the instant case reflects that Dr. Franklin Drucker, a psychiatrist who was appointed by the court below to examine the defendant, testified that he (Dr. Drucker) examined the defendant on October 24, 1978, and in his opinion defendant was “severely mentally ill,” unstable and prone to behaving in ways dangerous to himself and to others.

Dr. Charles Long, a psychiatrist at Napa State Hospital, testified that the defendant had been at Atascadero from 1973 to 1978 where he had frequently been in trouble requiring seclusion and restraint;  that defendant was exposed to group and other types of corrective therapy “without particular benefit”;  that since he (defendant) had not caused trouble for a number of months he was transferred to Napa State Hospital in January 1978;  that he (Dr. Long) had examined defendant frequently in the spring of 1978;  that defendant had attacked a new doctor and threatened to kill him;  that defendant was transferred back to Atascadero “because he was considered too dangerous to handle at Napa”;  that in his opinion defendant is a chronic paranoid schizophrenic, with borderline intelligence, very emotionally unstable with no insight;  and that “In my opinion, he [defendant] continued chronically ill, chronically schizophrenic, and always a danger, very dangerous person to others.”

Dr. Ronald Markman, a forensic psychiatrist appointed by the court, examined defendant on November 7, 1978.   Dr. Markman testified that the hospital records show that despite the fact that defendant was “receiving relatively high doses of an anti-psychotic, major tranquilizer” (three times the normal daily dose) he continued to be assaultive and aggressive in behavior to both the staff and other patients and on occasion required restraints.   It was Dr. Markman's opinion that defendant continued to be “a danger or menace to society or to others.”

In In re Moye (1978) 22 Cal.3d 457, at page 467, 149 Cal.Rptr. 491, at page 498, 584 P.2d 1097, at page 1104, the court stated, “the People urge that the paramount interest of the state in protection of the public justifies the commitment and release procedure set forth in sections 1026 and 1026a.   Nonetheless, the availability of an extended commitment procedure akin to section 6316.2 of the Welfare and Institutions Code, or the institution of civil commitment proceedings under the LPS Act [Lanterman-Petris-Short], would appear to constitute adequate protection against the premature release of dangerous persons to society.”  (Italics added.)

The “loopholes” initially referred to above are that it appears the failure of the appropriate public official to timely proceed under section 6316.2 of the Welfare and Institutions Code may result in releasing an extremely dangerous person upon society and, as strenuously argued by counsel for the Attorney General during oral argument of this appeal, as a practical matter civil commitment proceedings under the Lanterman-Petris-Short Act simply does not provide adequate protection against premature release of dangerous persons to society.

As pointed out in Moye at page 465, 149 Cal.Rptr. at page 496, 584 P.2d at page 1102, the legislative pattern has been “to preclude or minimize the risk of an indefinite commitment to state institutions by requiring periodic review and recommitment hearings in which the burden of proving the dangerousness of the committee's condition is placed on the state.”   I have no quarrel with this legislative objective.   However, the defendant in the instant case is, according to psychiatric testimony, a chronic paranoid schizophrenic with dangerous propensities.   The LPS Act in respect to civil commitments limits commitment of dangerous persons to 90 days unless new threats or harm occur.   In my view the burden and cost imposed on the public by such a short time span and other conditions, under the facts of the instant case, are completely impractical and unrealistic.

In my view it is time for the state Legislature to review its legislation pertaining to criminal and civil commitments to state mental institutions in the wake of judicial interpretation of those enactments in order to close any “loopholes” which may allow for the premature release of dangerous persons back into society.

FOOTNOTES

FOOTNOTE.  

CRAHAN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.