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The People v. Carey Lewan Gram

January 19, 2012


APPEAL from a judgment of the Superior Court of Sacramento County, Joseph Orr, Judge. Affirmed as modified. (Super. Ct. No. 94F10155)

The opinion of the court was delivered by: Blease , J.


This case tenders an issue concerning the appropriate procedure for challenging the administrative placement of a mentally disordered offender (MDO) who is recommitted to a facility under the jurisdiction of the Department of Corrections and Rehabilitation (CDCR) rather than to Napa State Hospital. We shall conclude that the appropriate procedure for testing the administrative placement of an MDO is a writ of habeas corpus.

Defendant Carey Lewan Gram, an MDO and involuntary civil committee, appeals from orders recommitting him to California State Prison, Sacramento (CSP-Sacramento) until January 6, 2010.*fn1 (Pen. Code, § 2972, subd. (c).)*fn2 He does not challenge the sufficiency of the evidence supporting the court's finding that he meets the definition of an MDO, or the court's conclusion that he must be recommitted. Rather, he contends his continued placement in a facility under the jurisdiction of CDCR violates his statutory right to treatment in the least restrictive environment possible given the nature of his symptoms (Welf. & Inst. Code, § 5325.1, subds. (a), (c)) and federal constitutional right to substantive due process (U.S. Const., 14th Amend.). He also challenges the constitutionality of the statute authorizing his transfer in the first instance from Napa State Hospital to CSP-Sacramento. (Welf. & Inst. Code, § 7301.)

In ordering that Gram continue to be confined at CSP-Sacramento, the trial court specified that Gram be housed in the "less restrictive" enhanced outpatient/general population unit. While Gram's appeal of that order was pending, the trial court reconsidered its earlier ruling and ordered that Gram be housed in the more restrictive Psychiatric Services Unit (PSU). Defendant separately appeals that order, contending the trial court violated his right to substantive due process in ordering that he be housed in the PSU. We consolidated the two appeals on our own motion for purposes of oral argument and decision only.

In a request for supplemental letter briefs we directed the parties to inform us which administrative department(s) has the authority to determine the facility in which Gram should be housed, the policies and procedures applicable to such a determination, the procedure for challenging such a determination, and the policies and procedures governing a challenge.

Having reviewed the parties' briefs and the record in both cases, we shall conclude that the trial court was statutorily compelled to order that Gram be recommitted to CSP-Sacramento once it determined he met the definition of an MDO (§ 2972, subd. (c)). Accordingly, we shall find that Gram's constitutional challenge to Welfare and Institutions Code section 7301 is not cognizable on appeal.

We also shall conclude that the decisions whether to place Gram in the PSU or the enhanced outpatient/general population unit and whether to return him to Napa State Hospital are within the jurisdiction of the Department of Mental Health and CDCR, not the trial court. To the extent Gram seeks to challenge such determinations, he must do so in a petition for habeas corpus. (Welf. & Inst. Code, § 7250.)

Accordingly, we shall affirm the March 5 and April 16, 2009, orders recommitting Gram to CSP-Sacramento until January 6, 2010, and vacate the November 6, 2009, order directing that he be housed in the PSU.


In 1994, during a persecutory delusion, Gram assaulted an elderly neighbor with a wooden club, striking her in the arm and stomach. As a result, in 1995, he was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) and sentenced to four years in state prison. In late 1997 or early 1998, he was paroled to Atascadero State Hospital (Atascadero) as an MDO. (§ 2962.) He later was transferred to Napa State Hospital for administrative reasons.

In July 2000, prior to the termination of his parole,*fn3 the district attorney filed a petition for continued involuntary treatment of Gram. (§ 2970.) The petition was granted, and Gram's commitment was extended to January 6, 2002. His commitment subsequently was extended in one year increments through January 6, 2010. (§ 2972.).

On March 7, 2006, Gram was transferred to Napa County Jail and charged with making terrorist threats. (§ 422.) On March 22, 2006, he was transferred to CSP-Sacramento pursuant to Welfare and Institutions Code section 7301 because he purportedly "present[ed] an unacceptable risk to others at Napa State Hospital" and "the Department of Mental Health and Department of Corrections agree[d] that [he] require[d] treatment under custodial conditions."

In July 2008, the district attorney filed a petition to extend Gram's involuntary mental health commitment until January 6, 2010. (§ 2972.) Gram waived his right to a jury trial, and the matter was tried to the court on March 5, 2009. (§ 2972, subd. (a).)

At trial, the parties' respective experts agreed that Gram met the definition of an MDO, i.e., he had a serious mental disorder (schizoaffective disorder, bipolar type) that was not in remission and could not be kept in remission without treatment, and by reason of his disorder he represented a substantial danger of physical harm to others. (§ 2972, subd. (c).) As the People acknowledged in their trial brief, the main issue at trial was whether Gram should remain at CSP-Sacramento or be returned to Napa State Hospital.

The following evidence was adduced at trial. Gram was transferred to CSP-Sacramento after threatening hospital staff and peers at Napa State Hospital. More particularly, in September 2005, he accused a peer of stealing his cup and went after him with a chair, stating, "I will murder your fucking ass." Later that month, he had a verbal altercation with a peer and threatened to kill him. In October 2005, he was involved in a physical altercation with a peer. In December 2005, he reportedly "strong-arm[ed]" peers for money and cigarettes. In March 2006, he told one doctor, "I'll take you down physically and will fuck you if I go to prison," and another, "You mother fuckers should pray that they don't send me to prison because I'm -- if not I'm going to fuck you up." He also told a peer, "I'll fuck you up [the] ass hole if you touch me." At some undisclosed time during his commitment at Napa State Hospital, he "knocked someone unconscious and sent them [sic] to the hospital . . . ." In the months leading up to his transfer to CSP-Sacramento, he was on one-on-one and then two-on-one observation "to prevent him from assaulting others."

Dr. Alvin Gaerlan, a clinical psychologist and Gram's case manager at CSP-Sacramento, testified for the People. At the time of trial, Gram had been housed in the PSU for nearly three years. The PSU houses mentally ill inmates with disciplinary problems. It "is like a jail within a prison." When inmates (or patients such as Gram) are moved outside their cells, they are "cuffed up" and escorted by two officers. Gram's treatment consisted of weekly one-on-one meetings with Gaerlan; group therapy two hours a day, five days a week; and at least monthly meetings with a psychiatrist. Every six months, treatment teams from Napa State Hospital and CDCR conferred and evaluated Gram's placement at CSP-Sacramento. The teams agreed that Gram must meet the following criteria to return to Napa State Hospital: (1) refrain from strong-arming or intimidating others for one year; (2) be free of physical assaults and verbal threats for one year; and (3) refrain from engaging in inappropriate sexual behavior for one year.

Following Gram's transfer to CSP-Sacramento, there were reports of him engaging in inappropriate sexual behavior and being verbally abusive.*fn4 At the time of the trial on March 5, 2009, however, Gram had been compliant with the criteria set for his return to Napa State Hospital for over a year. He had not acted violently, engaged in sexually inappropriate behavior, or threatened or strong-armed his peers. In addition, he had not received a rules violation and had been medication compliant. Gaerlan described Gram's behavior over the past year as "remarkable."

Nevertheless, Gram's treatment teams determined that he should remain at CSP-Sacramento and "transition" from the PSU to the enhanced outpatient program/general population unit, where he would have more opportunities to practice what he had learned. Gaerlan explained that Gram had not had an opportunity ...

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