Opinion
A148520
12-27-2016
THE PEOPLE, Plaintiff and Respondent, v. ROXANNE ATKA ARI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-900427-6)
Defendant Roxanne Ari appeals from a trial court's order denying her application for release on the ground that sanity has been restored under Penal Code section 1026.2. The Attorney General moves to dismiss the appeal asserting the trial court lacked jurisdiction to grant the relief sought. There is no evidence in the record that Ari was ever committed to a state hospital pursuant to section 1026 by the Contra Costa County Superior Court. As a result, Ari cannot establish the trial court had jurisdiction to consider her motion. Accordingly, we dismiss the appeal. We also grant the Attorney General's unopposed motion for judicial notice filed November 21, 2016.
Further undesignated statutory references are to the Penal Code. Section 1026.2, subdivision (a), allows a person who has been committed to a state hospital under section 1026 to apply for release on the ground that sanity has been restored. Section 1026 provides that, when a person is found to have been insane at the time she committed an offense, the court shall order the person committed to the State Department of State Hospitals, unless sanity has been recovered. (§ 1026, subd. (a).) Section 1026.2 does not apply to persons who have been found not competent to stand trial.
FACTUAL AND PROCEDURAL BACKGROUND
Ari was convicted of murder in Contra Costa County in 1991 and sentenced to 19 years to life in prison. She is currently a patient at Patton State Hospital.
Acting in pro per, she sent the trial court in Contra Costa County a hand-written document titled "restoration of sanity, application for unconditional release Penal Code 1026.2 (a)(h)[,] 1026.5(a1)," which the court stamped "received" on February 8, 2016 (1026.2 motion). She later sent the court various letters and documents, which were also stamped received. On the first page of the 1026.2 motion, Ari wrote, "On or about April 24, 1990, Judge Richard Arnason found me not guilty by reason of insanity." This is not correct. Ari was charged with murder in January 1990, and Judge Arnason found her not competent to stand trial on April 20, 1990. Ari spent some time at Patton State Hospital. On January 22, 1991, Judge Arnason found her competent to stand trial, and she entered pleas of not guilty and not guilty by reason of insanity. Ari had a jury trial with Judge Flier presiding, and the jury found her guilty of second degree murder on May 6, 1991. Ari withdrew her plea of not guilty by reason of insanity the next day.
Section 1026.5 provides that the maximum term of confinement for a person committed to a state hospital under section 1026 is the longest term of imprisonment that could have been imposed for the offense(s) the person was convicted of.
Returning to Ari's 1026.2 motion, the motion was denied by the trial court (Judge Patricia Scanlon) on March 22, 2016, by an order titled "Order Denying Various Ex Parte Motions." In her two-page order, Judge Scanlon described Ari's criminal case, writing, "In due course defendant was sentenced by the Honorable Richard Flier to 19 years to life in state prison . . . ." Judge Scanlon then wrote, "At some point, however, apparently in a different docket, the Honorable Richard Arnason sentenced defendant to the state hospital. The current motions and requests were sent to this court from Patton State Hospital." (Italics added.) Judge Scanlon found Ari's papers "completely and totally unintelligible" and was "unable to divine any legal or factual claim supporting relief in [these] matters." Therefore, each and every motion and request was denied.
Judge Scanlon appears to have relied on Ari's representation, on the first page of her 1026.2 motion that Judge Arnason found her not guilty by reason of insanity. --------
Ari appeals from this court order. On appeal, Ari has appointed counsel, who argues in the opening brief that the trial court erred in deciding her motion without holding a hearing. In response, the Attorney General has filed a motion to dismiss on the ground that the trial court lacked jurisdiction to decide Ari's motion under section 1026.2.
The Attorney General asks this court to take judicial notice of a criminal case against Ari filed in Madera County Superior Court, MCR048955/MMH00477, and attaches documents from the court file. Ari does not oppose the motion for judicial notice. The documents show that on May 1, 2014, Ari was charged in Madera County with possession of a weapon while incarcerated. (§ 4502, subd. (a).) On August 28, 2014, the Madera County trial court found Ari incompetent to stand trial under section 1368. On September 25, 2014, the Madera County trial court committed her to Patton State Hospital.
DISCUSSION
The Attorney General argues the appeal should be dismissed for lack of jurisdiction because the trial court in Contra Costa County did not have jurisdiction over Ari's Madera County criminal case or the order of commitment under section 1368. The record on appeal shows Ari was sentenced to prison—not committed to Patton State Hospital—by the trial court in Contra Costa County. The documents attached to the motion for judicial notice explain why Ari is in Patton State Hospital. She was charged with a crime while in prison, and she has been found incompetent to stand trial. Nothing in the appellate record or the Madera County criminal case (the subject of the motion for judicial notice) indicates that Ari was ever committed under section 1026 (which applies to a person found to have been insane at the time the offense was committed) by any court at any time. With no evidence that Ari was ever committed to a state hospital under section 1026, she has no basis for seeking release under section 1026.2.
Section 1237, subdivision (b), provides that an appeal may be taken "[f]rom any order made after judgment, affecting the substantial rights of the party." The Attorney General argues, "Because the trial court lacked jurisdiction to grant the relief requested by appellant, the order denying the [Ari's] motion did not affect her substantial rights and was not appealable," citing People v. Chlad (1992) 6 Cal.App.4th 1719 (Chlad).
In Chlad, the defendant was sentenced to a 14-year prison term, and more than 120 days after sentencing, he filed a motion to modify his sentence pursuant to section 1170, subdivision (d) (section 1170(d)). The trial court denied the motion on the ground it had no jurisdiction to resentence him under section 1170(d) because the 120-day time limit for seeking relief had expired. The defendant appealed, and the Attorney General moved to dismiss the appeal. (Chlad, supra, 6 Cal.App.4th at pp. 1722-1723.) After concluding the trial court lacked jurisdiction to resentence the defendant, the appellate court determined the trial court's order denying the motion to modify the sentence was not an appealable order. This was because the defendant had no standing to bring a motion to recall his sentence under section 1170(d), and " 'the denial of such a motion is not one which affects the substantial rights of the defendant within the meaning of Penal Code section 1237.' " (Id. at p. 1725.) The appellate court further observed that the denial order could not have affected the defendant's substantial rights because the trial court did not have jurisdiction to recall his sentence. (Id. at p. 1726.) (Accord People v. Johnson (1992) 3 Cal.4th 1183, 1258 ["[B]ecause the trial court lacked jurisdiction to [grant the defendant's request], the trial court's order denying his motion did not affect his substantial rights. Under section 1237, subdivision (b), it cannot be appealed"].); People v. Turrin (2009) 176 Cal.App.4th 1200, 1208 ["Since the trial court lacked jurisdiction to modify the restitution fines, its order denying defendant's motion requesting the same did not affect his substantial rights and is not an appealable postjudgment order," thus, "[t]he appeal should be dismissed"].)
Here, a motion under section 1026.2 may be made "to the superior court of the county from which the commitment [under section 1026] was made." (§ 1026.2, subd. (a).) Since there is no evidence Ari was committed under section 1026 by the Contra Costa Superior Court, Ari cannot establish the trial court had jurisdiction to consider her motion. Thus, the trial court's order denying of her motion did not affect her substantial rights.
In opposition to the motion to dismiss the appeal, Ari concedes the Madera County case "appears to explain how [she] came to be under an involuntary civil commitment at Patton State Hospital." (And, as mentioned, she does not oppose taking judicial notice of the Madera County criminal case and attached documents.) Nonetheless, she argues the Madera County case documents do not conclusively prove she "was not seeking release from an NGI commitment order issued by a judge of the Contra Costa County Superior Court." Ari asserts the better course would be for this court to refrain from dismissing the appeal and to wait for a complete round of briefing from both parties. She suggests the following possible dispositions: "At that time, should this Court conclude appellant was seeking release from an NGI commitment order issued by a judge of the Contra Costa County Superior Court, the judgment should be reversed with directions on remand to hold a hearing on [Ari's] application. Alternatively, at that time, should this Court conclude that it is impossible to determine whether appellant was seeking release from an NGI commitment order issued by a judge of the Contra Costa County Superior Court, the matter should be remanded to the trial court with directions to determine whether the prerequisites for holding a Penal Code section 1026.2 hearing have been met."
We reject Ari's position. She sought relief from the trial court by bringing the 1026.2 motion, and it is her initial burden to show she has standing and the trial court has jurisdiction. Ari is now represented by counsel. If Ari and her counsel are unable to identify a commitment order from the Contra Costa County Superior Court that establishes the trial court's jurisdiction for the relief she seeks, we see no reason to remand the case.
Ari has not shown the trial court had jurisdiction over the 1026.2 motion or that she had standing to bring such a motion. Therefore, the trial court's order denying her motion did not affect her substantial rights and is not appealable.
DISPOSITION
The Attorney General's unopposed motion for judicial notice is granted. The appeal is dismissed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.