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People v. Brewer

California Court of Appeals, Third District, Sacramento

March 13, 2015

THE PEOPLE, Plaintiff,

APPEAL from a judgment of the Superior Court of Sacramento County, Super. Ct. No. 13F03215 Steve White, Judge.

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Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney General, Ismael A. Castro and Lisa A. Tillman, Deputy Attorneys General, for Objector and Appellant.

Paulino Duran, Public Defender, Steve Lewis, Chief Assistant Public Defender, and Arthur L. Bowie, Assistant Public Defender, for Defendant and Respondent.



When a criminal defendant is found mentally incompetent to stand trial (IST), the trial court orders such defendant to be delivered by the sheriff to a state hospital or other treatment facility for treatment to restore

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the defendant to mental competence, or places the defendant on outpatient status. (Pen. Code, § 1370, subd. (a)(1)(B)(i).)[1]

In 2005, the Sacramento County Public Defender (the Public Defender) filed a petition for writ of habeas corpus on behalf of David Osburn and others, contending the Sacramento County Sheriff (the Sheriff) had unlawfully detained petitioners at the county jail by failing to transfer them on a timely basis to a state hospital for restorative treatment. After several rounds of briefing, and an evidentiary hearing, the trial court issued an order (the Osburn Order) commanding that the Sheriff deliver to Napa State Hospital (NSH) all criminal defendants ordered committed to NSH pursuant to section 1370 within seven days of the commitment. The Osburn Order was amended to require the prisoners’ delivery within seven days or as soon as the packet of documents required under section 1370 (the section 1370 packet) was available. There was no appeal from the Osburn Order.

In 2013, the Public Defender sought an order to show cause for contempt, alleging the Sheriff had violated the Osburn Order by holding several defendants who had been found IST at the jail rather than timely transferring them to NSH. In response, the State Department of State Hospitals (the Department) moved to set aside the Osburn Order. The trial court denied the motion but modified the Osburn Order to extend the seven-day deadline to 14 days. The Department appealed from this 2013 order “denying [the Department’s] motion to set aside the transfer deadline established by this Court” in the Osburn Order.

On appeal, the Department contends (1) the trial court acted in excess of its jurisdiction, and violated the separation of powers doctrine, by inserting a 14-day deadline into section 1370 and thereby undermining the Department’s duties; (2) the original Osburn Order and the 2013 modification were contrary to established habeas corpus procedures and constituted improperly promulgated local rules; and (3) the Osburn Order should be set aside due to changes in the law and because it results in unequal treatment of defendants found IST in different counties.

We view the Osburn Order as an injunction (as did the trial court) and the Department’s 2013 motion to vacate as a motion to dissolve the injunction. Such a motion can be granted upon a showing of a change in the facts, a change in the law, or because the interests of justice so require. (Civ. Code Proc., § 533.) During the pendency of this appeal, there was a material change in the law. Recent amendments to section 1370 and other statutes affect various aspects of the Osburn Order. Accordingly, we remand the

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matter to the trial court to reconsider its ruling on the Department’s motion in light of the change in the law, and to conduct a new evidentiary hearing. We dissolve the Osburn Order pending reconsideration of the ruling.


The Statutory Scheme for and the Constitutional Rights of IST Defendants

If at any time before judgment in a criminal trial a doubt arises as to the defendant’s mental competence, the court shall order a hearing into the present mental competence of the defendant. (§ 1368.) If the defendant is found mentally competent, the criminal process shall resume. (§ 1370, subd. (a)(1)(A).) “If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.” (Id., subd. (a)(1)(B).)

“In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital, ” or other approved available treatment facility that “will promote the defendant’s speedy restoration to mental competence.” (§ 1370, subd. (a)(1)(B)(i).) Alternatively, the court may order the defendant placed on outpatient status. (Ibid.) Before a court makes a commitment order to a state hospital, the court shall order the community program director, or his designee, to evaluate the defendant and submit to the court, within 15 judicial days, a written recommendation as to whether the defendant should be committed to a state hospital or other treatment facility or required to undergo outpatient treatment. (§ 1370, subd. (a)(2).)

The court is also required to provide the section 1370 packet. These documents include the commitment order, a computation of the defendant’s maximum term of commitment and amount of credit for time served, criminal history information, arrest reports, any court-ordered psychiatric examination or evaluation reports, the community program director’s placement recommendation, records of any finding of incompetence arising out of a complaint charging a felony specified in section 290, and medical records.[2] (§ 1370, subd. (a)(3).)

Once the defendant has been admitted to a state hospital, a progress report on his restoration to competence is required. “Within 90 days of a commitment..., the medical director of the state hospital or other treatment facility

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to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendant’s progress toward recovery of mental competence.” (§ 1370, subd. (b)(1).)

In Jackson v. Indiana (1972) 406 U.S. 715, 738 [32 L.Ed.2d 435, 451, 92 S.Ct. 1845] (Jackson), the United States Supreme Court held “a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” (Fn. omitted.)

The next year, our Supreme Court reviewed “the constitutionality of the procedures ([§ 1367 et seq.]) for the commitment to, and release from, state hospital of defendants in criminal cases who have been found to lack sufficient mental competence to stand trial.” (In re Davis (1973) 8 Cal.3d 798, 801 [106 Cal.Rptr. 178, 505 P.2d 1018], fn. omitted (Davis).) The court concluded that the petitioners’ initial commitments were proper, but “acknowledge[d] that some provision must be made to assure that petitioners do not face an indefinite commitment without regard to the likelihood that they will eventually regain their competence, for such an indefinite commitment has been held to offend constitutional principles of equal protection and due process. [Citation.] [¶] Accordingly, we adopt the rule of the Jackson case that no person charged with a criminal offense and committed to a state hospital solely on account of his incapacity to proceed to trial may be so confined more than a reasonable period of time necessary to determine whether there is a substantial likelihood that he will recover that capacity in the foreseeable future. Unless such a showing of probable recovery is made within this period, defendant must either be released or recommitted under alternative commitment procedures.” (Ibid.)

Following Davis, section 1370 was amended to provide for a maximum period of confinement of three years for defendants found IST. (Stats. 1974, ch. 1511, § 6, p. 3319.) Section 1370, subdivision (c)(1), provides as follows: “At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by

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law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendant’s term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders.”

In In re Mille (2010) 182 Cal.App.4th 635 [105 Cal.Rptr.3d 859] (Mille), another appellate court addressed the claim that an 84-day delay in transferring an IST defendant from the county jail to the state hospital was unlawful. The court focused on the requirement in section 1370, subdivision (b)(1), that the medical director of the state hospital report to the court within 90 days of commitment on the defendant’s progress toward recovery of mental competence. (Mille, at p. 645.) “When a defendant arrives at Patton [State Hospital] on day 84 of the 90-day period, there is no meaningful opportunity for the defendant to make progress toward recovery of mental competence, let alone for the medical director of the hospital to make a written report to the court concerning such progress by the defendant.” (Ibid.)

The court rejected the argument that the defendant was receiving appropriate treatment at the jail, which was a designated treatment facility under section 1369.1 and thus able to provide antipsychotic medications. It found that providing a defendant with antipsychotic medication alone was not the equivalent of treatment in a state hospital where each patient had a treatment team of a psychiatrist, psychologist, nurse, social worker, and psychiatric technician, and received both pharmacological and nonpharmacological treatment. (Mille, supra, 182 Cal.App.4th at p. 648.)

The Mille court found a defendant must be transferred from the county jail to a state hospital within a reasonable time, determined in the context of the 90-day reporting requirement. “Constitutional principles prohibit a defendant from being held ‘more than the reasonable’ period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. [Citation.] Therefore, when the court orders a defendant committed to a state mental hospital for treatment that will promote a defendant’s ‘speedy restoration to mental competence’ (§ 1370, subd. (a)(1)(B)(i)), the court must also ensure that the defendant is actually transferred to the state hospital within a reasonable period of time.” (Mille, supra, 182 Cal.App.4th at p. 650.)

The Mille court declined “ ‘to attempt to prescribe arbitrary time limits’ ” for the transfer from the county jail to state hospital for treatment. (Mille, supra, 182 Cal.App.4th at p. 649; see id. at pp. 649-650.) The court noted, however, that Mille filed his initial habeas corpus petition 30 days after the

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order for his commitment, and the trial court denied it 49 days into the 90-day reporting period. (Id. at p. 649.) The court found the superior court should have granted the petition. (Ibid.) “[A] defendant needs sufficient time at the state mental hospital to be duly evaluated, potentially to derive some benefit from the prescribed treatment, and for such progress to be reported to the court.” (Id. at p. 650.)

The 2005 and 2006 Proceedings and the Osburn Order

In the fall of 2005, the Public Defender filed a petition for a writ of habeas corpus on behalf of Osburn and three others. The petition alleged the petitioners were criminal defendants with pending cases who had been found IST. The court had ordered each transferred to NSH. Petitioners had been held at the county jail for months after the commitment orders. Although Osburn had finally been transferred to NSH, the issue was not moot because the three others were still held at the county jail and the issue of prolonged detention before transfer to a state hospital was an ongoing problem. The petition alleged the prolonged confinement in the county jail was an unlawful restraint on liberty, citing Oregon Advocacy Center v. Mink (9th Cir. 2003) 322 F.3d 1101 (Mink), in which the Ninth Circuit upheld an injunction mandating that incompetent criminal defendants be transferred to a state hospital within seven days of the commitment order.

The trial court issued an order to show cause to the Sheriff and set a shortened briefing schedule. The Sheriff’s return alleged the delay in transfer was due to incomplete commitment orders, NSH’s lengthy classification process, and the shortage of bed space. The Sheriff indicated the entire process for admission to a state hospital takes 60 to 90 days.

The court issued a supplemental order to show cause to permit the Attorney General and the Department of Mental Health (now the Department; see Stats. 2012, ch. 440) to respond. The court ordered the parties to brief issues concerning the availability of beds at NSH, alternatives if no beds were available, and whether the court should issue a permanent injunction requiring delivery of a defendant to NSH within seven days of the commitment order and that the Sheriff should return to court if unable to comply with the injunction. Subsequently, the court ordered an evidentiary hearing to determine what remedies, if any, should be ordered to alleviate the problem of delayed transfers to NSH.

Following the evidentiary hearing, the trial court issued a 65-page order, the Osburn Order. The Osburn Order first detailed the procedural background of the case and testimony received at the hearing. The court then made several findings of fact. Criminal defendants in Sacramento County who had

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been charged with a felony, found IST, and ordered committed to a state hospital pursuant to section 1370 “are being held in the Sacramento County Jail for months while awaiting transportation to a state hospital.” These defendants were administered psychiatric medications in the jail, but received no treatment toward restoration of competency. Under current policies, these defendants were to be transferred only to NSH, and only after an intake package (including more documentation than required by § 1370) had been received by NSH, the defendant had been placed on a waiting list, and a bed became available. In some cases, the delay was due to the delay of court personnel in compiling the intake package. There were no available local alternatives to the state hospital.

The court declined to find the matter moot, although all the petitioners had been transferred to the state hospital. The court found the matter to be one of broad public interest and likely to recur. The court found Mink, supra, 322 F.3d 1101 to be persuasive authority, and that the California statutory scheme was similar to that in Oregon. The court concluded, “It is abundantly clear that the constitutional rights of [section 1370] committees are being violated as each day passes and they remain in the Sacramento County Jail awaiting transfer to a state hospital.” If this violation continued, “the result will be the constitutionally compelled release of such persons.” The court found a remedy was required for the constitutional violation and a remedy similar to that in Mink was appropriate.

The court granted the petition for writ of habeas corpus, and ordered the Sheriff to deliver all section 1370 committees who had been committed to NSH more than seven days before and were still in the county jail to NSH within 60 days of the order. Thereafter, such deliveries were to occur within seven days of the order of commitment. NSH was ordered to accept delivery of these persons, to house them, and to provide treatment as required by section 1370.

The Department moved for reconsideration or clarification as to whether it was now required to accept section 1370 committees before it had received the section 1370 packet, and whether it could send such persons to other state hospitals or facilities.

The trial court amended the Osburn Order to provide that the deadline for transfer to a state hospital would be extended if the section 1370 packet had not been prepared. In that case, the Sheriff was to deliver the defendant to the state hospital as soon as the section 1370 packet was made available. The court declined to amend the Osburn Order to permit the Department to transfer a section 1370 committee to another facility. The statute required the court, not the Department, to designate the state hospital.

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No appeal was taken from the Osburn Order.

The 2013 Proceedings and Modification of Osburn Order

On September 9, 2013, the Public Defender requested an order to show cause on behalf of Joseph Brewer and four other defendants as to why NSH should not be held in contempt for violating the Osburn Order by failing to accept petitioners after their 1370 packets were complete and more than seven days after their orders of commitment. The Public Defender subsequently filed a similar order to show cause on behalf of seven other defendants.

In response, the Department moved to set aside the Osburn Order. The Department argued that (1) it was no longer able to comply with the Osburn Order due to the increase in the number of defendants found IST, while the number of beds for such patients remained static; (2) because Sacramento County required transfer of these prisoners within seven days of the commitment order, the San Joaquin County Public Defender was now claiming a violation of equal protection based on the delays in transporting its similarly-situated prisoners; and (3) the Osburn Order was subject to question after Mille, supra, 182 Cal.App.4th 635.

The Department requested the court take judicial notice of charts showing the increase in section 1370 referrals, particularly from Sacramento County, and a report about a pilot program to treat in county jails those prisoners found IST. A declaration from a Department staff psychiatrist stated that since 2010, the number of IST admittees had increased, and the number from Sacramento County was greater than from other counties of the same size. Due to the Osburn Order, those committed in Sacramento County received preference in admission. Although the Department had taken steps to reduce the length of stay from admittance to discharge from an average of 180 days to an average of 60 days, NSH was unable to meet the seven-day deadline, or even a 30-day deadline. A declaration from the Department’s chief of business management confirmed that the Department could not guarantee a 30-day, let alone a seven-day, admission, and asked that the Osburn Order be set aside to permit uniform triage.

As to the request for an order to show cause for contempt, the trial court ordered the Department to provide documentary evidence by a certain date showing that all defendants had been transferred to and accepted by a state hospital. If the Department timely submitted the evidence, the matter would be moot and the order to show cause discharged; if the Department failed to timely submit the evidence, it would face a contempt finding.

The trial court declined to vacate the Osburn Order, but modified it to extend the seven-day period for delivery to ...

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