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In re Taitano

California Court of Appeals, First District, Fifth Division

July 5, 2017

In re JORDAN E. TAITANO on Habeas Corpus.

         Superior Court of Contra Costa County, No. 5-132337-7, Lewis A. Davis, Judge.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffery M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Bridget A. Billeter, Deputy Attorneys General, for Appellant.

          Robin L. Lipetzky, Public Defender for Contra Costa County, Stephanie E. Regular and Diana A. Garrido, Deputy Public Defeners, for Respondent.

          NEEDHAM, J.

         Jordan E. Taitano was determined by the trial court to be incompetent to stand trial. His commitment facility subsequently found there was no substantial likelihood he would be restored to mental competence in the foreseeable future, he completed the three-year maximum commitment period, and he was determined not to be subject to a conservatorship as gravely disabled. The trial court granted Taitano a writ of habeas corpus and released him, concluding that Penal Code section 1368 did not authorize a new competency hearing.[1] The People appeal, urging that such a hearing is authorized under section 1368.

         In light of the plain language of the statute, the statutory scheme, the statutory purpose, and existing precedent, we conclude that section 1368 does not authorize a new competency hearing in Taitano's circumstances. We therefore affirm the order.

         I. FACTS AND PROCEDURAL HISTORY

         In November 2009, an information charged Taitano with murder, robbery, carjacking, attempted kidnapping, first degree burglary, and two counts of reckless evasion of a police officer resulting in great bodily injury. (§§ 187; 211; 212.5, subd. (c); 215; 207, subd. (a); 664/460, subd. (a); Veh. Code, § 2800.3.) During the course of the criminal proceedings against him, it was determined that Taitano was mentally incompetent to stand trial and he was committed to a treatment facility. To provide context for these events before recounting them in greater detail, we first summarize the applicable statutory scheme.

         A. Statutory Scheme

         Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a defendant who is mentally incompetent to stand trial. (People v. Ary (2011) 51 Cal.4th 510, 517-518.)

         This mandate is codified in section 1367, which provides that a person cannot be tried while he or she is “mentally incompetent, ” which is defined to mean that, “as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)

         Section 1368 instructs the trial court when it must interrupt the court proceedings to determine the defendant's mental competency. “If, during the pendency of an action and prior to judgment... a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.... At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion” with respect to the defendant's competency. (§ 1368, subd. (a).) If the defense attorney tells the court the defendant may be mentally incompetent, the court shall order a competency hearing pursuant to section 1369; if the defense attorney tells the court the defendant is mentally competent, the court may still order a competency hearing. If the court orders a competency hearing, “all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.” (§ 1368, subd. (c).)

         Next, section 1369 sets forth the procedure for the court's determination of the defendant's mental competence. In essence, the court appoints a psychiatrist or licensed psychologist to examine the defendant and evaluate the nature of any mental disorder, the defendant's ability to understand the nature of the proceedings or assist counsel in the defense, and, in some circumstances, whether treatment with antipsychotic medication may be medically appropriate and likely to restore the defendant to mental competence, and whether the defendant is a danger to self or others and has the capacity to make decisions regarding the medication. (§ 1369, subd. (a).) The court then holds a hearing or “trial, ” at which the prosecution and defense offer evidence with respect to the defendant's mental competence and may make a closing argument. (§ 1369, subds. (b)-(f).) If tried by a jury, the defendant is presumed mentally competent unless, by unanimous verdict, the jury finds by a preponderance of the evidence that the defendant is mentally incompetent. (§ 1369, subd. (f).)

         Section 1370 then sets forth what happens after the verdict at the competency hearing. “If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the alleged violation shall proceed, and judgment may be pronounced.” (§ 1370, subd. (a)(1)(A).) But “[i]f the defendant is found mentally incompetent, the trial... shall be suspended until the person becomes mentally competent.” (§ 1370, subd. (a)(1)(B).)

         The balance of section 1370 describes what happens to the defendant who has been found mentally incompetent to stand trial.[2] Before 1974, mentally incompetent defendants could be committed to a state hospital or other treatment facility indefinitely unless they regained competence, a practice that could effectively result in a lifetime sentence without a determination of guilt. That practice was ended by our Supreme Court's decision in In re Davis (1973) 8 Cal.3d 798');">8 Cal.3d 798, 801 (Davis), which applied the rule of Jackson v. Indiana (1972) 406 U.S. 715 and held 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.” (Davis, at p. 801.) Thus, our Supreme Court decided, when the appropriate state hospital authorities “report... that there exists no reasonable likelihood that the person will recover his competence to stand trial in the foreseeable future, then the court should either order him released from confinement or initiate appropriate alternative commitment proceedings under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.).” (Davis, at p. 807.) The Lanterman-Petris-Short Act (LPS Act) is a comprehensive scheme for the involuntary detention, evaluation, and treatment of mentally ill individuals or persons who, as a result of a mental disorder, are dangerous or gravely disabled.

         In response to Davis, the Legislature enacted Assembly Bill No. 1529 in 1974, which amended the procedure for the commitment of mentally incompetent criminal defendants (e.g., § 1370) and the scope of long-term commitments under the LPS Act. (In re Polk (1999) 71 Cal.App.4th 1230');">71 Cal.App.4th 1230, 1237 (Polk).) The amendment rewrote section 1370 to establish the procedure a criminal court must follow after a defendant has been found incompetent, including the suspension of criminal proceedings, the preparation of progress reports at specified intervals, the requirement that the defendant be returned to court if a report indicates there is no substantial likelihood competence will be regained in the foreseeable future, the establishment of a three-year limit on the commitment period, and the authorization of conservatorship proceedings when the defendant is returned to court. (Polk, at p. 1237.) The bill added to the LPS Act's definition of “gravely disabled” to include persons who have been found mentally incompetent and are charged with certain felonies, thereby creating the “Murphy conservatorship” named after the legislator who sponsored the bill. (Id. at pp. 1236-1237.)[3]

         Under section 1370, as it read at the time relevant to this case, the court determines the state hospital or treatment facility to which the mentally incompetent defendant shall be delivered, and determines whether the defendant lacks capacity to make decisions regarding the administration of antipsychotic medication. (§ 1370, subd. (a)(1)(B)(i), (a)(2).)

         Within 90 days of commitment, the medical director of the treatment facility must make a written report to the court and the community program director concerning the defendant's progress toward recovery of mental competence and whether any administration of antipsychotic medication remains necessary. (§ 1370, subd. (b)(1).) Thereafter, at six-month intervals or until the defendant becomes mentally competent, the facility must report in writing regarding a confined defendant's progress toward recovery of mental competence. (§ 1370, subd. (b)(1).)

         If the treatment facility determines that the defendant has regained mental competence, the fact of restoration to competency must be certified to the court, which in turn decides whether to approve the certification. (§ 1372, subd. (a)(1), (d); § 1370, subd. (a)(1)(C).) If the court approves the certification, criminal proceedings are resumed.

         If the treatment facility reports that the defendant has not recovered mental competence and there is no substantial likelihood that he or she will regain competence in the foreseeable future, the defendant is “returned to the court for proceedings pursuant to [section 1370, subdivision (c)(2)].” (§ 1370, subd. (b)(1)(A).) Under that statute, if it appears to the court that the defendant is “gravely disabled” (as defined in Welf. & Inst. Code § 5008, subd. (h)(1)(B)), the court shall order the conservatorship investigator to initiate Murphy conservatorship proceedings pursuant to Welfare and Institutions Code section 5350. Alternatively, the court may dismiss the charges and order the defendant released. (§ 1370, subds. (d), (e); see § 1385.)

         If the defendant has not recovered mental competence but the report discloses there is a substantial likelihood that he or she will regain competence in the foreseeable future, the defendant remains in the state hospital or other treatment facility up to a statutory maximum confinement period. (See § 1370, subd. (b)(1).)

         If the defendant remains hospitalized for 18 months-the halfway mark to the statutory maximum commitment period-he or she is “returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369.” (§ 1370, subd. (b)(4). Italics added.) In other words, the court in this instance must determine again the defendant's competency to stand trial at a hearing. The court also determines if the defendant is gravely disabled for purposes of a conservatorship. (§ 1370, subd. (c)(2).)[4]

         Finally, the defendant is returned to court at the end of the maximum statutory commitment period. Subdivision (c)(1) of section 1370 reads: “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, ... 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 then determines whether the defendant is gravely disabled for purposes of a conservatorship. (§ 1370, subd. (c)(2).)

         The criminal action remains subject to dismissal in the interest of justice pursuant to section 1385. (§ 1370, subd. (d).) If the criminal action is dismissed, the defendant must be released from commitment, without prejudice to the initiation of proceedings under the LPS Act. (§ 1370, subd. (e).)

         In sum, as relevant here, section 1370 provides that a defendant, once found to be mentally incompetent and committed to a treatment facility, will be returned to court at specific times for specific purposes: (1) if the defendant is certified to have regained competence, for the court to approve the certification; (2) if the defendant has no substantial likelihood of regaining competence, to determine if the defendant is appropriate for a conservatorship; (3) if the defendant has been committed for 18 months, to hold a second competency hearing under section 1369; and (4) at the end of the statutory maximum commitment period, to determine if the defendant is appropriate for a conservatorship. The only time the statute expressly authorizes the defendant to be returned to the court for a competency hearing is at the 18-month commitment mark. In this manner, the Legislature balanced the defendant's right not to be tried if mentally incompetent, the defendant's right not to be committed for an unreasonable period to see if his competence will be restored, and the People's interest in prosecuting defendants who are, in fact, competent to stand trial.

         B. Taitano's Commitment

         1. Section 1368 and Section 1369 Proceedings

         In March 2011, Taitano's defense counsel declared a doubt as to Taitano's competence, and the trial court ordered a competency hearing. (§ 1368.) Three evaluators opined that Taitano was incompetent to stand trial because he suffered from delusions making it impossible for him to provide rational assistance to his attorney in his defense. In November 2011, a jury found Taitano competent to stand trial, but the trial court granted a motion for judgment notwithstanding the verdict and found him incompetent. (§ 1369.) The court committed Taitano to the Department of Mental Health for treatment in April 2012.

         2. Section 1370 Proceedings

         In May 2013, Atascadero State Hospital reported there was no substantial likelihood Taitano would regain mental competence in the foreseeable future. (§ 1370, subd. (b)(1).) Accordingly, Taitano was returned to court in July 2013 for proceedings pursuant to section 1370, subdivision (c)(2). (See § 1370, subd. (b)(1)(A).) The court referred the matter to the Contra Costa Public Guardian, as the conservatorship investigator for the county, to investigate conservatorship. (See § 1370, subd. (c)(2).)

         The public guardian concluded that Taitano was not gravely disabled within the meaning of the LPS Act for a Murphy or other conservatorship. (See Welf. & Inst. Code, § 5008, subd. (h)(1)(A)-(B).) While he posed a danger to others in the community, the threat he posed was not attributable to a mental illness or his diagnosed disorder. No conservatorship petition was filed.

         3. Taitano's Initial Habeas Petition and Appeal

         In November 2013, Taitano filed a petition in the trial court for a writ of habeas corpus, seeking his release. The People filed a petition for a writ of mandate under Code of Civil Procedure section 1085, asking the court to find that the public guardian abused its discretion and to hold a hearing to determine if Taitano is appropriate for a conservatorship.

         The trial court granted Taitano's petition for writ of habeas corpus and denied the People's petition for a writ of mandate in February 2014. The court concluded that the public guardian's decision not to file a petition ...


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