Opinion
A165854
09-27-2022
THE PEOPLE, Plaintiff and Respondent, v. NICOLAS VINCENT GROTERS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Kern County Super. Ct. No. BF172231A)
Miller, J.
Defendant Nicolas Vincent Groters attempts to appeal from the trial court's order denying his motion to dismiss. Because this is not an appealable order, we dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 2018, the District Attorney of Kern County filed a complaint against defendant charging him with escaping from jail (Pen. Code, § 4532, subd. (b)(2); count 1) and resisting an executive officer (§ 69; count 2).
Further undesignated statutory references are to the Penal Code.
On June 19, 2018, the trial court found defendant not competent to stand trial and referred him to Kern County Behavioral Health and Recovery Services for evaluation pursuant to section 1370. The next month, the trial court ordered defendant committed to the Department of Mental Health at any appropriate state hospital pursuant to sections 1370 and 1370.01 for a maximum period of three years.
On October 28, 2020, the trial court found, based on a medical report of the state hospital, that defendant was not likely to regain mental competence in the foreseeable future and referred defendant to the conservator's office for an evaluation for possible conservatorship proceedings.
On November 13, 2020, defense counsel filed a request for the court to dismiss the action, citing Jackson v. Indiana (1972) 406 U.S. 715, People v. Quiroz (2016) 244 Cal.App.4th 1371, and sections 1367 et seq. and 1385.
At a hearing on December 2, the trial court found defendant ineligible for LPS or Murphy conservatorship and denied defendant's motion to dismiss without prejudice. As to the dismissal motion, the court stated it was "not prepared at this time to dismiss the felony," although "we're doing some research on the felony dismissals" and the denial is "without prejudice once we get that further research done." The court also stated defendant was released from custody that day.
The Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq; LPS Act) "governs the involuntary treatment of the mentally ill in California." (County of Los Angeles v. Superior Court (2013) 222 Cal.App.4th 434, 442.)" 'LPS conservatorship'" refers to conservatorship under LPS in which the person is found to be" 'unable to provide for his or her basic personal needs for food, clothing, or shelter.'" (Id. at p. 442.) "'Murphy conservatorship'" refers to conservatorship under LPS in which the person is subject to a pending complaint, indictment, or information charging him or her with a felony involving death, great bodily harm, or serious threat to the physical well-being of another; as a result of a mental health disorder, the person is unable to understand the proceedings or assist counsel in his or her defense; the person has been found mentally incompetent under section 1370; and the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. (Id. at pp. 442-443; Welf & Inst. Code, § 5008, subd. (h)(1)(B).)
DISCUSSION
Defendant purports to appeal from the order denying his motion to dismiss. The Attorney General responds that the denial order is not appealable. The Attorney General is correct.
" 'It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.'" (People v. Mazurette (2001) 24 Cal.4th 789, 792.)
Section 1237 provides: "An appeal may be taken by the defendant from both of the following:
"(a) [With exceptions not relevant in this case], from a final judgment of conviction. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.
"(b) From any order made after judgment, affecting the substantial rights of the party."
There is no final judgment in this criminal case. An order denying a motion to dismiss is not listed as an appealable judgment, and our high court has long recognized that the denial of a motion to dismiss "is a non-appealable interlocutory order" (People v. Wilson (1963) 60 Cal.2d 139, 148149 (Wilson)). In Wilson, the defendant moved to dismiss the criminal action on the ground he had been denied a speedy trial, and the motion was denied. (Id. at p. 144.) After noting the denial order was not directly appealable, the California Supreme Court explained that the "proper remedy in this situation is to petition for writ of mandate prior to the commencement of trial." (Id. at p. 149.) Alternatively, the order may be reviewed on appeal from the judgment of conviction. (Id. at p. 150.)
Defendant argues there is a final judgment in this case-the order from July 2018 committing defendant to the Department of Mental Health. But, as defendant acknowledges, a competency proceeding "is a special proceeding rather than a criminal action." (People v. Fields (1965) 62 Cal.2d 538, 540.) It is true that an order committing a defendant to a state hospital pursuant to section 1370 "is appealable as a final judgment in a special proceeding" (id. at p. 542), but that only applies to the special proceeding of the competency determination procedures. It is not a judgment in the underlying criminal case.
In a civil commitment proceeding arising from a criminal case, the commitment proceeding is "wholly distinct from the criminal prosecution. The commitment order is appealable only because it is deemed to be a final judgment in a 'special proceeding' [citations], and the contours of that proceeding delimit the scope of its review: 'in such appeal [a defendant] may base error only on the lack of jurisdiction of the trial court to institute commitment proceedings or the invalidity of the proceedings culminating in the order itself.'" (People v. Murphy (1969) 70 Cal.2d 109, 114-115, fn. omitted.)
Defendant's motion to dismiss was made in the criminal case, which is wholly distinct from the special proceeding resulting in the commitment order. Again, there is no judgment in the underlying criminal case. Consequently, we cannot review the denial order on direct appeal.
Nonetheless, we observe that the Attorney General concedes the motion to dismiss should have been granted. "If a defendant is returned to court upon a finding of no substantial likelihood or upon completing the maximum term of commitment, the trial court may determine only whether to [1] initiate Murphy conservatorship proceedings, [2] dismiss the charges against the defendant and order him released from confinement, or [3] dismiss the charges and initiate other appropriate commitment proceedings under the LPS Act." (People v. Quiroz, supra, 244 Cal.App.4th at p. 1377.)
Since the trial court in this case found defendant ineligible for Murphy conservatorship or LPS conservatorship, it was required to dismiss the charges. The court denied the motion to dismiss without prejudice and even noted it would research the issue. Although the appropriate procedure for seeking review of the denial order is a petition for writ of mandate (Wilson, supra, 60 Cal.2d at p. 149), a more efficient approach for defendant in this case may be renewing the motion to dismiss and informing the trial court of the Attorney General's concession.
DISPOSITION
The appeal is dismissed for lack of an appealable order.
WE CONCUR: Stewart, Acting P.J., Mayfield, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.