Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS 025486
McGuiness, P.J.
Richard Schlossarek (appellant) appeals from a judgment entered after the Solano County Superior Court sustained the State of California’s (the State) demurrer to his third amended complaint without leave to amend. He asserts the trial court erred in ruling that governmental immunity precludes his claims against the State. We affirm the judgment.
I. Factual and Procedural Background
The facts are taken from the allegations of the third amended complaint. For purposes of this opinion, we assume such allegations to be true. (See American Internat. Group, Inc. v. Superior Court (1991) 234 Cal.App.3d 749, 755 [in reviewing an order sustaining a demurrer, appellate courts assume the truth of all properly pleaded facts].)
On February 11, 2004, Gregory Peck Berry, one of the defendants in the underlying action but not a party to this appeal, went to appellant’s car dealership and asked to test drive a car. Appellant verified that Berry had a valid driver’s license, and appellant’s son, Robert, who was visiting appellant at the dealership that day, accompanied Berry on the drive. Robert sat in the passenger seat as Berry drove the car to an unknown location and entered a house, leaving Robert in the car. Berry returned to the car, and while driving back to the dealership, suddenly increased his speed to approximately 96 miles per hour in a 30 miles per hour zone, lost control of the car, slid into the lanes of oncoming traffic and struck three parked vehicles. Robert was critically injured and died shortly thereafter. Berry was found to be under the influence of cocaine at the time of the accident.
Berry was charged with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and driving under the influence causing injury (Veh. Code, § 23153, subd. (a)). He pleaded no contest to the first count, was convicted of that count, and was remanded into custody. At the time the third amended complaint was filed, Berry was confined at a medical facility. He was still in possession of a valid driver’s license and his Department of Motor Vehicle (DMV) records did not reflect a negative history or contain any negative comments.
Berry had a history of causing similar accidents. On December 11, 1992, he was arrested for driving under the influence of alcohol, leading the police on a high-speed chase and crashing his vehicle into oncoming traffic, injuring four people. On March 3, 1994, he led the police on another high-speed chase while under the influence of alcohol. He was charged with various offenses but was found to have been insane at the time of the incident, and was committed to Napa State Hospital. He was then placed in the California Forensic Conditional Release Program (CONREP). CONREP personnel diagnosed Berry with paranoid schizophrenia, alcohol abuse, and a cognitive disorder. Berry required regular monitoring and the strict maintenance of a prescription drug regimen consisting of various psychotropic medications.
CONREP is “part of the Department of Mental Health’s statewide system of community-based services for specified forensic patients.” (People v. Galindo (2006) 142 Cal.App.4th 531, p. 534, fn. 2.) CONREP is the standard supervision program that patients use upon their release from Napa State Hospital. (Id. at p. 534.)
Berry was eventually assigned through CONREP to the Royal Family facility, which was not a licensed facility and was not insured. Royal Family did not impose any restrictions on Berry’s travel to and from the residence and did not ensure that Berry took his medication or followed his treatment program.
Appellant filed a wrongful death action against Berry, the State, Solano County, Royal Family, and the owner of Royal Family. Appellant’s third amended complaint alleges the State breached various duties, and that those breaches “caused BERRY to be placed in an unlicensed facility [Royal Family] that failed to meet the licensing requirements, which allowed BERRY to be released into the general public with absolutely no supervision and no medication to control his mental illness. Had Defendants each exercised their mandatory duty, BERRY would have been placed in a licensed facility that would have provided proper facilities, personnel, treatment and supervision. Thus, BERRY would not have been off his medication, nor would he have been out in public on his own without supervision, and thus would not have obtained the use of the car, ultimately resulting in [Robert’s] death.”
The State filed a demurrer to appellant’s third amended complaint, asserting it is immune from liability. The trial court sustained the third amended complaint without leave to amend.
II. Discussion
Standard of Review
“On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, ‘i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.’ [Citation.]” (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) “ ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]” ’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Absolute Immunity Under Penal Code Section 1618
Penal Code section 1618 (section 1618) provides: “The administrators and the supervision and treatment staff of the Forensic Conditional Release Program [CONREP] shall not be held criminally or civilly liable for any criminal acts committed by the persons on parole or judicial commitment status who receive supervision or treatment. This waiver of liability shall apply to employees of the State Department of Mental Health, the Board of Prison Terms, and the agencies or persons under contract to those agencies, who provide screening, clinical evaluation, supervision, or treatment to mentally ill parolees or persons under judicial commitment or considered for placement under a hold by the Board of Prison Terms.”
“CONREP [wa]s designed to rehabilitate mentally disordered offenders (MDO’s) by giving them more independence than they would have in a state hospital. Participants are outpatients who receive supervision by mental health experts.” (Ley v. State of California (2004) 114 Cal.App.4th 1297, 1301.) “The Legislature established CONREP because of the ‘need to develop mental health services which are designed to meet the treatment needs of those mentally ill persons who commit offenses which constitute a threat to public safety . . . .’ [Citations.]” (Id. at p. 1305.) “It was aware that MDO’s pose ‘a substantial danger of physical harm to others.’ [Citation.] It knew that it would be difficult for those who administer CONREP to accurately predict how dangerous they were. [Citation.] [¶] . . . The immunity provision was therefore essential to the survival of this program. [¶] Section 1618 is also consistent with the longstanding policy of immunizing public agencies and employees for decisionmaking about whether and how to confine mentally ill patients. [Citation.]” (Ibid.)
David Ley was a CONREP patient who was stabbed numerous times by Richard Acosta, another CONREP patient with whom he lived in CONREP’s “semi-independent living” program. (Ley, supra, 114 Cal.App.4th at pp. 1301-1302.) Ley sued the State of California and several others, alleging they negligently administered the CONREP program by placing Acosta in an unlocked facility and failing to provide adequate supervision. (Ibid.) In rejecting Ley’s claims, the court stated: “Section 1618 immunity is neither limited nor qualified. It precludes civil liability against the state and the county for the criminal acts of persons committed or placed at CONREP facilities. Each of Ley’s causes of action related to Acosta’s criminal act.” (Id. at p. 1303.) “Where absolute immunity exists, the plaintiff may not sue the immunized defendants by challenging the way they performed the immunized act.” (Ibid.)
Similarly, here, appellant is challenging the way the State performed the immunized act of administering CONREP with respect to Berry, who was placed at Royal Family as part of the CONREP program after being released from Napa State Hospital. The third amended complaint alleges the State breached its duties to “release BERRY to a facility that met the parameters of his supervision and treatment plan, and to further ensure that the terms and conditions in BERRY’s supervision and treatment plan were being met.” It alleges that because the State breached these duties by placing Berry in an unlicensed facility that did not provide Berry with “the supervision and treatment called for by his treatment plan,” Berry did not take his medication, went out in public without supervision, obtained the use of a car and caused Robert’s death. In addition, the entire action is based on the criminal act of Berry, who drove at 96 miles per hour in a 30 miles per hour zone while under the influence of cocaine. Because section 1618 applies broadly to protect the State from liability for all criminal acts of CONREP patients like Berry, its immunity provisions apply to appellant’s action.
Berry engaged in a “criminal act.”
Appellant asserts that because section 1618 immunizes the State from liability only for “criminal acts” committed, it does not apply to Berry’s acts, which have not been conclusively determined to be “criminal” in nature. Appellant alleges that Berry drove at 96 miles per hour in a 30 miles per hour zone while under the influence of cocaine, and acknowledges that Berry pled no contest to gross vehicular manslaughter and was “convicted” of the offense. However, relying on Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 395 (Kerns) for the proposition that a no contest plea does not constitute “conclusive evidence” of the intentionality of an act, he asserts he is entitled to present facts showing that Berry was insane at the time of the accident and therefore did not have the intent to commit a “criminal act.”
In support of his assertion that Berry’s plea may not have been voluntary and that he may have been insane at the time of the accident, appellant asserts that Berry has signed a declaration under penalty of perjury stating he (1) had not been taking his medication, (2) drove at a high speed because there was a car full of men pointing a gun at him and he was scared, and (3) does “not remember having a choice in how I handled the criminal charges.”
Appellant’s argument fails because it is based on the incorrect premise that a defendant who is insane at the time he engages in unlawful activity has not committed a “criminal act.” Under California law, if a defendant pleads not guilty and joins it with a plea of not guilty by reason of insanity, the issues of guilt and sanity are tried separately. (Pen. Code, § 1026, subd. (a).) In the guilt phase of the trial, the defendant is conclusively presumed to have been sane at the time the offense is alleged to have been committed. (Ibid.) If the jury finds the defendant guilty, the question of whether defendant was sane when he committed the offense is tried. (Ibid.) “The plea of insanity is thus necessarily one of ‘confession and avoidance.’ ” (People v. Hernandez (2000) 22 Cal.4th 512, 521.) “ ‘Commission of the overt act is conceded’ but punishment is avoided ‘upon the sole ground that at the time the overt act was committed the defendant was [insane].’ [Citation.]” (Ibid., italics omitted, quoting People v. Wells (1949) 33 Cal.2d 330, 349-350.) In other words, the question with regard to the defendant’s sanity is not whether the defendant has committed the criminal act, but whether he should be punished for it. (People v. Hernandez, supra, 22 Cal.4th at p. 522.) “For this reason, . . . it is not ‘strictly accurate’ to denominate an insanity plea a ‘defense’; ‘[m]ore correctly it is a special plea to the effect that, assuming the [offense] to have resulted from the act of the defendant, he is not amenable to punishment under the law. [Citation.]” (Ibid.)
Thus, even if Berry were insane at the time of the accident, he still committed the “criminal act” of gross vehicular manslaughter. For purposes of section 1618, a “criminal act” occurred, and the immunity provisions apply. This interpretation is consistent with the purpose of section 1618, which is to provide “absolute immunity” to governmental agencies involved in the supervision or treatment of CONREP patients, who are known to pose “a substantial danger of physical harm to others.” (See Ley, supra, 114 Cal.App.4th at p. 1305; see also Kaiser Foundation Health Plan, Inc. v. Zingale (2002) 99 Cal.App.4th 1018, 1023 [we interpret statutes in a way that promotes its general purpose].)
Further, appellant’s reliance on Kerns is misplaced. There, we held that an insured’s no contest plea in a criminal case was not conclusive evidence that her act was “intentional,” for purposes of determining in a civil case whether an insurance policy provision excluding coverage for an “intentional act” applied. (Kerns, supra, 106 Cal.App.4th at p. 395.) Kerns addressed only whether an act was “intentional,” not whether it was “criminal.” Courts in other insurance coverage cases have drawn a clear distinction between the two types of acts. (See, e.g., 20th Century Ins. Co. v. Schurtz (2001) 92 Cal.App.4th 1188, 1196-1197 [an insurance policy exclusion for “criminal acts” applied despite the insured’s assertion in a civil proceeding that she acted in self-defense and her acts were therefore not intentional, because a criminal act exclusion bars coverage even for acts not known by the insured to be unlawful when committed, and applies regardless of intent].) Berry’s act of driving at 96 miles per hour while under the influence of cocaine and causing Robert’s death was a “criminal act” within the meaning of section 1618, without regard to whether he was insane at the time.
Berry was a CONREP patient receiving supervision or treatment.
Appellant asserts that section 1618 does not immunize the State from liability because Berry was not a “person[] on parole or judicial commitment status who receive[d] supervision or treatment.” The third amended complaint, however, alleges that Berry was in the CONREP program at the time of the accident, and in fact, all of appellant’s claims against the State are based on Berry’s involvement with CONREP.
Citing to various portions of his third amended complaint, appellant asserts he “properly and clearly pled that Berry was not receiving treatment and supervision.” However, the allegations to which he cites deal, in essence, with the inadequacy of the State’s supervision or treatment. For example, he alleges the State placed Berry “on outpatient status without ensuring that the terms of his supervision and treatment plan were met,” and that Berry therefore “did not receive the supervision and treatment called for by his treatment plan.” This is not an allegation that Berry was not a CONREP patient “receiv[ing] supervision or treatment,” but a complaint regarding the decisions the State made with regard to Berry’s supervision or treatment plan. Further, the allegation that the State improperly placed Berry in an unlicensed facility where supervision or treatment was virtually nonexistent is a complaint about the way the State performed the immunized act of placing CONREP patients in outpatient care. Thus, the allegations fall directly within the immunity provisions of section 1618. (See Ley, supra, 114 Cal.App.4th at pp. 1303.)
Tort Liability for Breach of Mandatory Duties
“ ‘Government Code section 815 provides: “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).) . . . [T]his section “ ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.’ ” ’ (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)” (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 637.) Appellant asserts that Government Code section 815.6 provides an exception to the immunity rule and allows him to pursue his claims against the State. We disagree.
Government Code section 815.6 provides: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” The statute contains a three-pronged test for determining whether liability may be imposed on a public entity. (Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.) First, the enactment must impose a mandatory duty, not a discretionary duty. (Ibid.) It is not enough that the public entity is under an obligation to perform a function if the function itself involves the exercise of discretion. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis).) Second, the mandatory duty must be one that was designed to protect against the particular kind of injury the plaintiff suffered. (Id. at p. 499.) “[I]f the benefit is ‘incidental’ to the enactment’s protective purpose, the enactment cannot serve as a predicate for liability under [Government Code] section 815.6.” (Ibid.) Third, the breach of the mandatory duty must be a proximate cause of the injury suffered. (Becerra v. County of Santa Cruz, supra, 68 Cal.App.4th at p. 1458.)
Appellant alleges the State breached the following “mandatory duties” related to the administration of the CONREP program: (1) the duty to “place [the defendant] on outpatient status subject to the terms and conditions specified in the supervision and treatment plan” (Pen. Code, § 1604, subd. (d)); (2) the duty to “supervis[e] . . . persons placed on outpatient status” (Pen. Code, § 1605); (3) the duty not to release a person committed to a state facility “except as expressly provided in this title” (Pen. Code, § 1612); and (4) the duty to “be responsible for the community treatment and supervision of judicially committed patients” (Pen. Code, § 1615).
All of the above statutes deal with the administration of CONREP and fall within the immunity provisions of section 1618. Although these statutes direct the State and other entities to provide certain supervision or treatment to CONREP patients and to inspect facilities at which these patients may be placed, they leave the ultimate decision of how to conduct those tasks to the discretion of those entities. For example, although a State must place the patient “subject to the terms and conditions specified in the supervision and treatment plan,” (Pen. Code, § 1605, subd. (d)), it is within the discretion of the State or other entities to determine what the appropriate supervision and treatment plan is, and to determine how and where those terms and conditions are likely to be met. (See Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 980 [statute does not create mandatory duty if it recites legislative goals and policies that must be implemented through a public entity’s exercise of discretion].) Appellant asserts that all of the statutory duties the State allegedly breached are mandatory because the statutes contain the word “shall.” However, the word “shall” in a statute does not create a mandatory duty where they involve acts requiring the use of discretion. (See County of Los Angeles v. Superior Court, supra, 102 Cal.App.4th at pp. 638-641 [statutes containing the word “shall” did not impose a mandatory duty on the county because they involved discretionary acts].)
Appellant also alleges the State breached mandatory duties related more generally to the administration of “community care facilities” and other medical health facilities. However, none of the statutes to which appellant cites—other than Health and Safety Code section 1509—imposes any duty on the State. Health and Safety Code section 1536.1, subdivision (b), imposes a duty on a “placement agency,” whose definition does not include the State. Welfare and Institutions Code section 5751.2 imposes a duty on “persons employed or under contract to provide mental health services” such as doctors and psychologists to “possess[] a valid license” in order to practice their profession. Government Code section 855 imposes a duty on a “public entity that operates or maintains any medical facility . . . to provide adequate or sufficient equipment, personnel or facilities required by any statute.” Because none of these statutes imposes any duty on the State itself, there can be no State liability for injuries resulting from a breach by entities on whom the statutes do impose duties.
Health and Safety Code section 1536.1, subdivision (a), defines “placement agency” as “any county probation department, county welfare department, county social service department, county mental health department, county public guardian, general acute care hospital discharge planner or coordinator, conservator . . . and regional center for persons with developmental disabilities . . . .”
Further, although Health and Safety Code section 1509 requires the State to “inspect and license community care facilities,” this duty was not “ ‘designed’ to protect against the particular kind of injury” suffered in this case. (See Haggis, supra, 22 Cal.4th at p. 499.) Instead, the duty is imposed as part of a legislative scheme to “establish a coordinated and comprehensive statewide service system of quality community care for mentally ill, developmentally and physically disabled, and children and adults who require care or services by a facility or organization issued a license or special permit pursuant to this chapter.” (See Health and Saf. Code, § 1501, subd. (a).) Because “the benefit [of preventing the type of injury that occurred in this case] is ‘incidental’ to the enactment’s protective purpose [of providing quality care], the enactment cannot serve as a predicate for liability under [Government Code] section 815.6.” (See Haggis, supra, 22 Cal.4th at p. 499.)
Finally, appellant asserts the State breached a mandatory duty to “refuse issuance of a driver license to Berry” under Vehicle Code section 12805, subdivision (e). However, this statute provides: “The department shall not issue a driver’s license to, or renew a driver’s license of, any person: [¶] . . . [¶] (e) Who is unable to read and understand simple English used in highway traffic and directional signs. . . .” By its terms, the statue relates only to the potential driver’s ability to read and understand “simple English.” Appellant has not alleged that at Berry was unable to understand “simple English used in highway traffic and directional signs.” Thus, the statute does not apply.
Appellant relies on Trewin v. State of California (1984) 150 Cal.App.3d 975 (Trewin) in support of his position that the DMV should not have issued or renewed Berry’s driver’s license, but Trewin is inapposite. At the time Trewin was decided, Vehicle Code section 12805, subdivision (e), provided that the DMV “ ‘shall not issue a driver’s license to, or renew a driver’s license of, any person: [¶] (e) When it is determined, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway . . . .’ ” (Trewin, supra, 150 Cal.App.3d at p. 978.) Trewin held that the DMV has a mandatory duty to refuse to issue or renew a license only where it has “determined beforehand that the person is unable to safely operate a motor vehicle upon a highway . . . .” (Id. at p. 981.) Here, appellant does not allege that the DMV issued or renewed Berry’s driver’s license despite having “determined beforehand” that he was unable to safely operate a car. Thus, Trewin does not support appellant’s position that the DMV had a mandatory duty to refuse to issue or renew Berry’s license.
The current version of Vehicle Code section 12805, subdivision (d), contains a similar restriction and provides that the DMV “shall not issue a driver’s license to, or renew a driver’s license of, any person: [¶] . . . [¶] (d) When it is determined, by examination or other evidence, that the person is unable to safely operate a motor vehicle upon a highway.” Appellant has not relied on this subdivision in asserting the State had a mandatory duty.
Instead, appellant alleges the State should have determined, based on Berry’s driving history, that Berry was unable to safely operate a car. However, the State is immune from liability where an injury results from its failure to make the correct determination regarding a driver’s ability to safely operate a car. (See Dept. of Motor Vehicles v. Superior Court (Hankins) (1980) 105 Cal.App.3d 537, 538, 539, 541 [DMV was immune from liability for a death resulting from its failure to revoke the license of a driver who had accumulated six traffic citations within 18 months, because the DMV’s determination of a driver’s ability to safely operate a car, and its decision whether to revoke a license based on driving history are discretionary].)
Because we hold for the above reasons that the State is immune from liability for injuries resulting from Berry’s acts, we need not address the State’s argument that it is also immune under Government Code section 845.8, subdivision (a), which immunizes the State from “[a]ny injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.” We also do not address whether the trial court should have provided appellant with an opportunity to amend the complaint because appellant has not presented us with any argument as to how he would be able to amend to avoid immunity. (See Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126 [the plaintiff has the burden of proving there is a reasonable possibility that a defect in the complaint can be cured by amendment].)
III. Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Pollak, J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.