JACKSON v. S.C.

Petitioner’s Petition for Review

Cal.June 29, 2016

$250549 IN THE SUPREME COURT FORTHESTATE OF CALIFORNIA PATRICK LOWELL JACKSON, Petitioner, V. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, AND Real Party in Interest. N e e N e e e e e e e e e e e e ” e e e e e e e e e e e e ” e e e e N e ” Docket No.: S Ct. App. No. E064010 Super.Ct.No. INF1500950 SUPREME COURT FILED JUN 2-9 2016 Frank A. McGuire Clerk Deputy PETITION FOR REVIEW From the Published Opinion of the California Court of Appeal for the Fourth District, Division Two STEVEN L. HARMON Public Defender County of Riverside LAURA ARNOLD St. Bar No. 177978 Deputy Public Defender 4200 OrangeSt. Riverside, CA 92501 Phone: (951) 304-5651 Fax: (951) 304-5605 Email: lbarnold@co.riverside.ca.us Attorneys for Petitioner AOIAUASAOJOOUd LNAWHOV.LLV INNOOGYOMAOALVOMILYIO L[covrienssseeeernssvesvssseetenansneevanacecuneneennneeesusseeseunasnanensasassesunsnesenassteeeNOISNTONOD [|ertteetsssteeetesseneeesaceetnnseeeenssecnnansseenusseetanneeceunsssnteessstsCAZIMOHLOVYNDSI SHDUVHOTVNINNIDAHLNOLNAWANISNODGANNELLNOOSIH «LUNODONILLINWOOFHLOLGANUN.LASIANV (1)@)NOISIAIGENS‘OLENOLLOASJODNINVAWAHLNIHLIM «LNOSAWLL,INVONSSAGLNALAdNOONINVNJHM LNANNDUV gcesiesseeevsssesesnassseuseecannseetnneettnenteeasetnasntuneessuasneeesesASV)AHLJOLNIWALVIS pivetiessceerssseeetsaneeneeeernneeeaseeeuseensseensesCALNVUD4dCINOHSMAIATYAH €OeeeeeeeeerrevereerrrrrrerrerrerrererrrereeeGALNASaAYd SNOLLSANO 7cesseetnsssseeesssseseeessneesunsseeennseeennsetsuasetiansstuasanasescusiseessnssssesseeeNOLLONGOWLNI [tssteesseeeesssssetesssenseeeenacetnneeeteseetnaeeenasenaeteeaassateessstenMAIATYYOaNOLLUGa [oresieeeeeneeeseeeeeseeceeecessenecasensaueseneceseesesaenseessessaeeeseasesseteresSALLRIOHLAVAOAIAVL ‘ONADVd SLNHLINODAOATEaV.L TABLE OF AUTHORITIES PAGE NO. FEDERAL CASES Jackson v. Indiana (1972) 406 U.S. 715eecccceessssessssseesscsensessesseseecsecsessesseesesessesseseeessevsessessussessnvarase 12, 16 STATE CASES Hale v. Morgan (1978) 22 Cal.3d 388 oocessccsssssssctsesesessssessecsessecsessscstsscsecsecsssesaveseuscsucucarenevaeeaceesaseaes 12 Inre Banks (1979) 88 Cal.App.3d 864 oo... csesssesssssssssssesseserscsecsecsessesesesscsssessassscesssscsasssesescevacaeeaaees 12 In re Davis, et. al. (1973) 8 Cal.3d 798 ooo ecsccscsscssecssssesssessssssecsssssesesesessessessesssessecsesesecesecsnssaeseeeas 12, 13, 16 Inre Kernan (1966) 242 Cal.App.2d 488 oo... cccccsccssssssesesssssssssscsecssesssesevssnersceesussssescessrevsesasavareseaseaes 15 In re Newmann (1976) 65 Cal.App.3d 57 oo... cessssesssssessssssssssessesssssssesssseessscsesscsesuessscseescsssrusssessansacavess 4,15 Inre Polk (1999) 71 Cal.App.4th 1230... eccsscsesssssscsscsscssessessessssscsesscssssesesecessescsuseccaucaeveraceaevae 13 Jackson v. Superior Court (2016) 247 CalApp.4th 767.0... ccccscssssssssesscsssssssscsssesessssecsesscsessuesseceeceusersseuseseaavassesases 2,5 Pederson v. Superior Court (2003) 105 Cal.App.4th 931 oo... cscesssessccsssssssscessessssssessecesssessesascessssoessssssssesusassesseasenss 11 People v. Allen (2007) 42 Cal.4th 91oeeesessesessscsseessesesseeevsssesesseescseessssseesseseeesuseeesecsusessssscsevsseseass 15 People v. Karriker (2007) 149 CalApp.4th 763 oo... .ccscssssssssssssscesssseesecsessssecsesscsesscasecssccsserssauceuseusnseassaens 4,15 People v. Quiroz (2016) 244 CalApp.4th 1371 occcssssessessssssseesecsecsecseseeecsesseesecesessscseessssessscessensspassim People v. Waterman (1986) 42 Cal.3d 565oesssssesceessssesssnssessesscsssecescsecsssesscsescasssseseessssersesusessssrsvscstaee 4,15 PENAL CODE Section 1026.5 oo. cecsccesecsesesecsececsenssssscecsesesecsesscseseesaesacsesesessessessusvsseasaesessesesseceusnensasens 15 Section 1368 0... eccssssesssesscssesessesssessessscsessceesaecseseeessseecsesecsesecsseesesesseceseseesensssasensespassim Section 1370 osssesesescesecseesesessesscsesssscsvseseseseceessseseesarscesesscseesaeseessausevensseesensaes 3, 8, 9, 13 Section 1370, subdivision (D) ........cscessesssssssesscessesesessseecssccesesscsesssesseecssessesessesceseessessareens 13 Section 1370, subdivision (b), subparagraph (1) .........cccscsesssscssesseesseeessesseseeseeeseessers 8, 13 Section 1370, subdivision (C) ......cccssesesssssssesssesssssseseccecesececsecseseeceesscsssesessucsuscsuserssesereonees 5 Section 1370, subdivision (c), subparagraph (1) .........ccccscsesssessesesseeessessssseeerssevenPASSIM Section 1370, subdivision (c), subparagraph (2) .......cccccsscsscsssscccesesssessessesssesscessretsevesenseess 14 i SECONDARY AUTHORITY _ Parker, California's New Schemefor the CommitmentofIndividuals Found Incompetent to Stand Trial (1975) 6 Pacific L.J. 484.eecesccnensseesecssessesecseseesessesssscseseseveeceusessevessesscvacsveseneesevaseavans 6 UNPUBLISHED CASES Calloway v. Superior Court (2015) 239 Cal.App.4th 253, review denied and orderednotto beofficially published (November 10, 2015, S222841) oo... ececcesscsssessessscsssessesscsscsscseeseescasvasseasecscsaseaversaceases 2,5 WELFARE AND INSTITUTIONS CODE Section S008 ou... cseccssesseessesseseccsesssscscssrsscssscesevsccsceesssesscescssnsvsesseesacsssusuesrecavsesavarsasa 3,12 Section 6316.1 ...cesscccessssessscseescsssessesssesessscssessscsussnsacsssssssssuessessesesesseesseneateassecseesvsaneaseseesd 15 Section 6604 oc.cccseesssssssessecsseesssesssscsevsseesssussseescsesesscesecsseacesvseverseuaceaesessesaesascaseresseasesass 15 UNITED STATES CONSTITUTION Amendment XIV ........cccccscccssscsssscsscssvesseccecssesseeceaseceeessssaecauecerssecstevsnsesensesessuens 3,11 ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, AND PATRICK LOWELL JACKSON, ) Docket No.: ) Petitioner, ) C.A. No. ) E064010 V. ) . ) Super Ct. No.: THE SUPERIOR COURT OF THE STATE ' INF 1500950 OF CALIFORNIA, COUNTY OF ) RIVERSIDE, ) PETITION FOR \ REVIEW ) ) ) ) )RealParty in Interest. TO: THE HONORABLECHIEF JUSTICE CANTIL-SAKAUYE AND THE HONORABLEJUSTICES OF THE CALIFORNIA SUPREME COURT Petitioner hereby petitions this honorable court to grant review of the published opinion in Jackson v. Superior Court (2016) 247 Cal.App.4th 767 (Attachment A), which has caused a split of authority among the lower courts with regard to the mandate of Penal Code section 1370, subdivision (c), subparagraph (1), that an incompetent defendant whohasreached the expiration of his three year maximum term of commitment without achieving competencyto standtrial be “returned to the committing court”and released, at least with respect to the unadjudicated criminal charges (see People v. Quiroz (2016) 244 Cal.App.4th 1371). INTRODUCTION For the third time this past year, a California appellate court has certified for publication an opinion construing Penal Code! section 1370, subdivision(c), subparagraph(1), and the results have beenall over the map. Thefirst of these cases was Calloway v. Superior Court, previously at 239 Cal.App.4th 253, review denied and ordered not to be officially published (November 10, 2015, $222841), in which the Court acknowledgedthe existence of section 1370, subdivision (c), subparagraph (1), but concludedthat section 1368 permits continued confinementof a criminal defendant on unadjudicated criminal charges and renewal of competency proceedings even after his commitment term has expired. The second was People v. Quiroz (2016) 244 Cal.App.4th 1371, review denied on May 25, 2016 (S233482), in which the Court held that California’s statutory scheme pertaining to incompetent criminal defendants does not authorize competency proceedings,at the court’s discretion, after the defendant’s commitmentterm has expired. (/d., at p. 1381.) Now,a third case, Jackson v. Superior Court (2016) 247 Cal.App.4th 767, 202 Cal.Rptr.3d 247, has been published, holding that “section 1370 does not ... advise a trial court ofits options if a defendant who has been declared incompetent remains incompetent at the end of a three-year commitment” (id., at p. 249), and concludingthat nothing prohibits the involuntary continued conferment and prosecution of the defendant ' Subsequentstatutory references are to the Penal Code unless otherwise indicated. 2 on the same underlying charges, subsequently refiled and assigned a new case number, unless he is again found incompetent at the conclusion of new section 1368 proceedings(id., at p. 250). Confusion among lower courts has reached an unacceptable level, resulting in repeated violationsof state law and due process rights of criminal defendants. Without review andclarification by this Court, this situation will likely worsen. QUESTIONS PRESENTED Whatis the meaning of Penal Codesection 1370, subdivision (c)(1)’s mandate that a defendant whohasnot achieved mental competenceat the expiration of his term of involuntary commitment undersection 1368, et seq., “be returned to the committing court”? If such a defendantis not the subject of proceedings under Welfare andInstitutions Code section 5008, et seq., when his term of commitment as a mental incompetent expires, does California law require that he be ordered released? Does section 1370, or any law, authorize trial court to continue incarcerating such a defendantat the prosecution’s request and to conduct competency proceedings anew to re-determine the defendant’s currentcapacity to standtrial? Following the release of an incompetent defendant under section 1370, subdivision (c)(1), is his or her continued confinement on the unadjudicated criminal charges prohibited by the Fourteenth Amendment? WHY REVIEW SHOULD BE GRANTED While section 1370, subdivision (c), subparagraph (1) does not expressly state that an incompetent defendant must be released from confinementin the underlying criminal proceeding upon expiration of his or her term of commitment, California courts have never before appeared to have so much difficulty discerning the statute’s mandate. (See,e.g. People v. Waterman (1986) 42 Cal.3d 565, 568 [A defendant mustbe returned to court after maximum period of confinementas an incompetent, andif he is not made the subject of a conservatorship, “the court must release him from confinement”]; People v. Karriker (2007) 149 Cal.App.4th 763, 788 [“Penal Code section 1370 explicitly contemplates that some defendants charged with felonies will be released if they are not restored to competency within the allowable time period.”]; Jn re Newmann (1976) 65 Cal.App.3d 57, 64 [pendingcriminal chargesno longerafford a valid basis for involuntary confinementoncethe court has found no substantial likelihood that the defendant will become competentto stand trial on the charges in the foreseeable future. In such cases,“[t]he defendant must be released, or an alternative basis for confinement mustbe established”].) Notwithstanding the foregoing, the Court of Appeal deniedto grantrelief to Petitioner, whostil/ remains confined pretrial as a result of criminal charges which have been pending since 2008. Remarkably, the Court held that section 1370, subdivision (c) does not require his release in the underlying criminal case, because the same charges werere-filed under a new case numberfollowing expiration of his commitment term. (Jackson v. Sup. Ct, supra, 247 Cal.App.4th 767, 202 Cal.Rptr. 247, pp. 249-250.) The Court also held that such confinement implicates no due process concerns, because a separate conservatorship proceeding wasinitiated after Petitioner was re-arrested on the new case, and he has notyet been found incompetentto standtrial in the new case. (Jbid.) Review should be granted, not only because this case was wrongly decided, but also because the publication of the case has resulted in a split of authority as to whattrial courts can and cannotdoin situations like this, which appear to occur with surprising frequency. Earlier this year, this Court ordered depublication of a case decided by the First District Court of Appeal, Fourth Division, holding that section 1368 authorizestrial courts to conduct competency proceedings anew following a section 1370, subdivision (c), subparagraph (1) release. (Callowayv. Superior Court ofContra Costa County, formerly published at 239 Cal.App.4th 253, review denied and ordered notto be officially published (Nov. 10, 2015; $222841).) Then, a few months ago, the Court of Appeal for the Third District decided People v. Quiroz, supra, 244 Cal.App.4th at p. 1380 (“Quiroz”), holding that the statutes governing competency proceedings do not authorize a trial court to convene a new competencyhearing upon the prosecution’s request when the hospital returns a defendant from commitmentatthe end ofthree years or when the public guardian determines not to initiate conservatorship proceedings. (Quiroz, supra, at p. 1380.) Absent such authorization, the Court reasoned,a trial court abusesits discretion whenit grants a request by the prosecution that the defendant remain confined and be subjected to competency proceedings anew, rather than released. (Quiroz, supra, at p. 1380-1381.) In interpreting the statute, the Quiroz court properly considered extrinsic evidenceas to the drafters’ intent and discussed a law review article authored by Marjory Winston Parker, the Deputy Attorney General who worked with the legislature to develop the 1974 amendments to California’s competencystatutes. In her opinion,“ ‘if the defendantis still not competent to standtrial, he is again returned to the committing court, whichshall order the defendant committed civilly pursuant to the amended LPS Actor releasedif he is not eligible for a civil conservatorship.’ ” (Quiroz, supra, at pp. 1380-1381, quoting Parker, California's New Schemefor the Commitmentof Individuals Found Incompetent to Stand Trial (1975) 6 Pacific L.J. 484, 492 (“Parker”).) ““While the statute contains no express instruction that the defendant will be orderedreleased, it is apparent that such mustbetheresult becausethere is no authority allowing further confinement or prosecution of the criminal offense.’” (/d., at p. 1381, citing Parker at p. 492,fn. 70.) The court below found Quiroz distinguishable, due to the fact that the charges here had beenrefiled and assigned a new case number. While it is true that the indictment in case No. INF1500950 stems from the samealleged conduct as the complaint in case No. INF061963, petitioner has offered no reason whythe People could not prosecute him on chargesrelated to his conduct on May 3, 2008, under a new case numberif he were currently competent to stand trial. If the prosecution in case No. INF1500950 may continue, and the record and the briefing before us present no bar to that occurrence, we are aware of no reason whypetitioner could not be confinedin jail awaiting trial on those charges absent another incompetency finding. As we noted ante, the record contains no evidencethat petitioner has actually been declared incompetentto standtrial in case No. INF1500950, and it contains no other proofthat the incompetency the court found to exist in case No. INF061963still continues. Without substantiating this fact, petitioner has failed to show thathis current confinementis due to nothing other than a present incapacity to stand trial. In a similar vein, he has not shownthat he has been “committed”at all in case No. INF1500950. (Jackson v. Superior Court, supra, 202 Cal.Rptr. 3d at pp. 249-250.) Lowerappellate courts,trial courts, prosecutors, and those responsible for initiating conservatorship proceedings need guidance from this court with regard to what should occurin situations like these. When noalternative basis for confinementhas been established, should the courts follow Quiroz and order a defendant released with respect to the unadjudicated criminal charges? Or, should they follow Jackson and permit such prolongedpretrial incarceration, so long as the charges are eventually re-filed under a new case number, and conduct competency proceedings anew? Unlessreview is granted, the split of authority * The Court also faulted deficiencies in the record as justification for denying Petitioner relief. As explained in the petition for rehearing, denied by the lower court on June 6, 2016, the record includesall information necessary to establish 7 created by Jackson and Quiroz will cause substantial confusion, leading to inconsistent rulings and, potentially, irreparable harm to the statutory and constitutional rights of a very vulnerable population of criminal defendants. STATEMENTOF THE CASE The following relevant facts, which were established by the record and recounted in the writ petition and the petition for rehearing, demonstrate that Petitioneris entitled to the relief he requested, a writ of prohibition directing the superior court to take no action in his pending criminal case other than to vacateits order committing him to count jail with a million dollars bail and ordering his immediate release as to the unadjudicated criminal charges. In case INF061963, filed in May, 2008, Petitioner was charged with various sexual crimes alleged to have been committed against John Doe, a 16 year-old male. These are the same charges he now faces in case INF1500950. On March 29, 2012, Petitioner, after having been found incompetentto stand trial, was committed to Patton State Hospital for a period not to exceed three years. On September 23, 2014,the court received a section 1370 report from Patton State Hospital, recommendingthat the court initiate conservatorship proceedings in accordance with section 1370, subdivision (b)(1), due to the absenceofa substantial likelihood that Petitioner would be competentto standtrial before his commitment term expired. A conservatorship investigation was Petitioner’s entitlement to relief. initiated, and Petitioner’s three-year term of commitment expired on March 29, | 2015. Before the commitment expired, the Riverside County Public Guardian initiated an LPS conservatorship proceeding, and Petitioner was madethe subject of a temporary conservatorship. On May7, the Public Guardian abandoned the conservatorship proceeding dueto the fact that Petitioner is not a resident of Riverside County. On May14, 2016, the Riverside District Attorney’s office asked the superior court to order that Petitioner remain confined at Patton State Hospital, so that a grand jury could be impaneled and an indictment procured. The court expressly found that Petitioner had “timed out” on his 1368 commitment on May 1, 2015 and denied the prosecution’s request. That afternoon the assigned deputy district attorney, Amity Armes, forwarded confidential reports she had received from the Public Guardian a weekprior to Petitioner’s parole agent of record, James Araiza. The following day, May 15, 2015, the District Attorney filed a motion for an order compelling the Public Guardianto initiate conservatorship proceedings anew. The motion was heard and denied. On May18, 2015,the court, having previously foundthat Petitioner had been confined for the maximum term allowable under section 1370, ordered him released from custody. Ms. Armesdid nottell the court that she previously had emailed Petitioner’s confidential records to Agent Araiza for the purpose of procuring a parole hold, but she did ask the court to order that Petitioner be released to the custody ofhis parole agent, representing that parole would dotheir best efforts to monitor him. Petitioner’s counsel was suspicious about this request and expressed her concerns,but the court accepted the prosecutor’s representations at face value and granted this request. Counsel’s suspicion proved to be well-founded. The next morning, Petitioner waspicked upat the jail by Agent James Araiza andtransported directly to the West Valley Detention Center in San Bernardino, where he was bookedin jail based on anallegation that he had violated parole while committed at Patton State Hospital. Atthis point, there wasstill no question that Petitioner remained incompetent as indicated by the May 19th entry in the CDCR 2271 form, “Medically and mentally unable to proceed w/process” and the May 21st entry in the CDCR 1500 form, “Subject not coherent to give a statement.” On May 21, 2015, the Unit Supervisor, after receiving word from the Riverside District Attorney that an indictment had been secured, that case INF1500950 had been initiated, and that a warrant had been issued forPetitioner’s arrest, directed that the parole violation be dismissed based on insufficient evidence and thatthe parole hold be lifted. The following day, the hold waslifted, the violation was dismissed. Petitioner was immediately transported by an Investigator from the Riverside 10 District Attorney’s Office back to Riverside county jail, where he was booked on the warrant which had been issued uponthefiling of the new case. Petitioner’s bail was set at one million dollars in case INF1500950. On June 2, 2015, he was produced for arraignment, at which time the judge suspended criminal proceedings under section 1368, appointed a doctor to conduct a competency evaluation, and madea referral to the Inland Regional Center. On June 30, 2015, Petitioner’s counsel moved for an order releasing him in the criminal proceeding only and invited the court to dismiss the indictment under section 1385. Both motions were denied, and a timely writ petition followed. As of the date ofthe filing of this petition, Petitioner remains confined on criminal charges for which he “timed out” more than a year ago. ARGUMENT WHENAN INCOMPETENT DEFENDANT “TIMES OUT,” WITHIN THE MEANINGOF SECTION1370, SUBDIVISION(c)(1), AND IS ‘RETURNED TO COURT,” HE MUST BE RELEASED, UNLESS INDEPENDENT LEGAL GROUNDSEXIST TO CONTINUE HIS CONFINEMENT Civil commitmentof a mentally incompetent criminal defendant, necessarily constitutes a “massive curtailment ofliberty.” (Pederson v. Superior Court (2003) 105 Cal.App.4th 931, 940-941, citing Humphrey v. Cady (1972) 405 U.S. 504, 509.) Thatliberty interest is protected by the Fourteenth Amendment’s due process guarantees. “The due process clauses, federal and state, are the most basic substantive checks on government's powerto act unfairly or oppressively. Assuch,they protect against infringements by the state upon those ‘fundamental’ 1] rights ‘implicit in the concept of ordered liberty.’ (Citation.)” (in re Banks (1979) 88 Cal.App.3d 864, 869, quoting Hale v. Morgan (1978) 22 Cal.3d 388, 398, internal citation omitted..) In 1972, the United States Supreme Court held that a person charged by a State with a criminal offense whois committed solely on accountofhis incapacity to proceedtotrial cannot be held more than the reasonable period of time necessary to determine whetherthere is a substantial probability that he will attain that capacity in the foreseeable future. If it is determinedthatthisis 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. (Jackson v. Indiana (1972) 406 U.S. 715, 738, fn omitted.) In 1973, this Court adopted the Jackson rule and established guidelines for confinement, commitment, restoration, and later conservatorship or release of mentally incompetent defendants prosecuted in California courts. Un re Davis, et. al. (1973) 8 Cal.3d 798, 806-807 (“Davis”).) [W]e think that in order to comply with Jackson’s demandsthe trial courts should henceforth direct the appropriate state hospital authorities to commence an immediate examination of the person committed and, within a reasonable time, report to the court the result of that examination and estimate the additional time probably necessary to restore the person to competence.... J If the report discloses that there exists no reasonable likelihood that the person will recover his competence to standtrial in the foreseeable future, then the court should either order him released from confinementorinitiate appropriate alternative commitment proceedings under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.). 12 After Davis, section 1370 was enacted, setting the maximum term of a commitment resulting from the filing of felony charges at no more than three years from the date of the commitmentorder. (§1370, subd. (c) (1); Jn re Polk (1999) 71 Cal.App.4th 1230, 1238.) The three year limit of section 1370 refers “to the aggregate of all commitments on the same charges.” (Ibid., emphasis added.) Subdivision (b) of section 1370 is designed to insure that an incompetent criminal defendant remains involuntary confined only as long as is reasonably necessary to restore him to competency. It requires the Director of the state hospital at which the defendantis confined to send periodic reports to the committing court regarding the defendant’s progress toward achieving mental competency. If the court receives a report indicating that there is no substantial — likelihood that the defendant will regain competencein the foreseeable future, it “shall order the defendant to be returned to the court for proceedings pursuantto paragraph (2) of subdivision (c) no later than 10 days following receipt of the report.” (§1370, subd. (b)(1)(A).) With respect to Petitioner, the Riverside Superior Court received the Director’s section 1370, subdivision (b) report on September 23, 2014, and promptly ordered that a conservatorship investigation be initiated. Section 1370, subdivision (c), subparagraph (1) is designed to prevent an incompetent defendant from being confined indefinitely. It requires that, at the end of the maximum term of commitment, an incompetent defendant be returned 13 to the committing court and, unless an independentbasis for further confinement has been established, released. The statute provides, in pertinentpart: At the end of three years from the date of commitment... but no later than 90 daysprior to the expiration of the defendant’s term of commitment, a defendant whohasnot recovered mental competenceshall 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. (§1370, subd. (c)(1).)° Petitioner, having been committed on March 29, 2012, reachedthe three-year mark on March 29, 2015. Whena defendantis “returned to the committing court” pursuant to subdivision (c), subparagraph (1) of section 1370, the judge must notify the community program of the defendant’s return and must order that a conservatorship investigation be initiated by the appropriate government agency. (§1370, subd. (c)(2).) The filing of a conservatorship petition can provide independent grounds for the defendant’s continued confinement in an appropriate facility, including the psychiatric unit of a detention facility, pending the outcome of the conservatorship proceedings. But, absent this, as the Quiroz court recognized, courts are not authorized to continue confining the defendant. When no conservatorship petition is filed or a petitionis filed, but not sustained,or, as occurred here, a conservatorship is initiated and later abandoned, the defendant’s continued confinementis not statutorily authorized. He or she must be released. 3 Because Petitioner was committed to Patton on March 29, 2012, his return date undersection 1370, subdivision (c), subparagraph (1) was March 29, 2015. 14 As the lower court recognized, section 1370 is not a modelof clarity. But, until recently, California courts have had nodifficulty deciphering the meaning of section 1370, subdivision (c), subparagraph (1). (See, e.g. People v. Waterman (1986) 42 Cal.3d 565, 568 [A defendant must be returned to court after maximum period of confinement as an incompetent and, if he is not made the subject of a conservatorship, “the court must release him from confinement”; People v. Karriker, supra, 149 Cal.App.4th at p. 788 [Penal Code section 1370 explicitly contemplates that some defendants charged with felonies will be released if they are not restored to competency within the allowable time period.”]; Jn re Newmann (1976) 65 Cal.App.3d 57, 64 [pending criminal charges no longer afford a valid basis for involuntary confinement once the court has found no substantial likelihood that the defendant will become competentto standtrial on the charges in the foreseeable future. In such cases, “[t]he defendant must be released, or an alternative basis for confinement must be established”].)* 4 Such an interpretation is the only one consistent with California’s othercivil commitment schemes. (See e.g. In re Kernan (1966) 242 Cal.App.2d 488, 491-492 [at end of maximum term of commitment, civilly committed narcotics addict must be discharged]; People v. Allen (2007) 42 Cal.4th 91, 104 [at end of maximum term of commitment, civilly committed mentally disordered offender must be released]; Former Welf. & Inst. Code section 6604 [civilly committed SVP “shall not be keptin actual custody longer than two years unless a subsequent extended commitmentis obtained from the court incidentto the filing of a petition for commitment underthis article or unless the term of commitment changes”’]; §1026.5 [a person committed as NGI “maynot be kept in actual custody longer than the maximum term of commitment”]; Welf. & Inst. §6316.1 [a person committed as MDSO “maynotbe kept in actual custody longer than the maximum term of commitment”].) 15 Here, however, the Court of Appeal noted that section 1370, subdivision (c) provides no express instruction regarding what to do when an incompetent defendantis “returned to the committing court” and no independentgrounds for his confinementhas been established. In light of this, the Court opined, section 1370 does not bar his continued confinement, even if his maximum term of commitment has expired, as long as the charges have been refiled under a new case number. (Jackson v. Superior Court, supra, 202 Cal.Rptr. 3d at p. 249.) This is wrong. The indictment in INF1500960 and amended complaint in INF061963 charge Petitioner with the same crimes. Thefiling of a new case with a different case number, charging the same crimes, has no effect on the statutory and constitutional mandates discussed above, does not authorize a “do-over,” and does not establish an alternate basis for confining a defendant on the chargesor for conducting section 1368 proceedings anew. Carried to its extreme, such an exception would allow prosecutors to dismiss and refile felony charges whenever a defendant reachesthe three year maximum term of commitment, thereby converting the maximum three year permissible period of pretrial confinementinto a six year period, or even longer. This would be contrary to the holding ofJackson v. Indiana and Davis and contrary to the Legislature’s intent in enacting section 1370. 16 CONCLUSION In enacting section 1370, subdivision (c), the Legislature plainly intended that a mentally incompetent defendant be confined no longerthan is reasonably necessary to restore him or her to competency and,at the expiration of the commitment term, be made the subject of a conservatorship proceeding where appropriate. But incompetency commitments do not alwaysresult in sustained conservatorship petitions. And without any independentstatutory authorization, superior courts cannot continue to confine criminal defendants on unadjudicated criminal charges beyondthe time periodsarticulated in section 1370. When they do, they abuse their discretion. This case presents important statutory and constitutional issues, and review is necessary to resolve the split of authority created by its publication. Based on the foregoing andthe record in the | proceedings below,Petitioner respectfully requests that this Court grant review. Dated: June 28, 2016 Respectfully submitted, STEVEN L. HARMON Public Defender County of Riverside rs by: Laure Aenol d \ : Lt: LAURA ARNOLD Deputy Public Defender Attorneys for Petitioner PATRICK LOWELL JACKSON 17 IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT, DIVISION TWO PATRICK LOWELL JACKSON, Docket No.: S Petitioner, CA No. E064010 Vv. CERTIFICATE OF THE SUPERIOR COURT OF THE STATE OF WORD COUNT CALIFORNIA, COUNTY OF RIVERSIDE, Respondent. THE PEOPLE OF THE STATE OF CALIFORNIA, AND N e e N e e e e e e e e e e ” e e ” e e e ” e e e e ’ e e e e e e ” e e ” N e ” RealParty in Interest. I, William A. Meronek,do hereby certify that, according to the computer program used to prepare the instant petition for rehearing and accompanying memorandum, including headings and footnotes, the length of the petition and memorandum ofpoints and authorities is 4,723 words. I declare the foregoing to be true under penalty of perjury. Executed this 28th of June, 2016, at Riverside, California. W. WILLIAM A. MERONEK Attachment A Filed 5/24/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO PATRICK LOWELL JACKSON, Petitioner, E064010 V. (Super.Ct.No. INF1500950) THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGS;petition for writ of mandate/prohibition. Mark E. Johnson, Judge. Petition denied. Steven L. Harmon, Public Defender, Laura Arnold, Deputy Public Defender,for Petitioner. No appearance for Respondent. Michael A. Hestrin, District Attorney, Natalie M. Lough and Matt Reilly, Deputy District Attorneys, for Real Party in Interest. In this matter we have reviewedthe petition, the informal response by real party in interest, and the reply. Having determined that petitioner may haveestablished right to relief, we set an order to show cause. We subsequently reviewed the return andtraverse. For the reasons weset forth post, we conclude that, at least on the record presently before us, we must denythe petition. Nonetheless, and as we explain in moredetail post, we publish this opinion to urge the Legislature to amend Penal Codesection 1370, subdivision (c)(2),! in ways that provide moreclarity to trial courts faced with a defendant who has been committed as incompetent for the maximum period allowed by law but who does not meetthe criteriafor the type of conservatorship the statute describes. FACTUAL AND PROCEDURAL BACKGROUND On May7, 2008,real party in interest (the People) charged petitioner with a violation of section 288, subdivision (b), under case No. INF061963 based on conduct that allegedly occurred on May 3, 2008. On July 24, 2008, the trial court declared doubts as to petitioner’s competencyto standtrial in case No. INF061963. On February 3, 2010, the trial court foundpetitioner to be incompetentto standtrial.? Petitioner was ordered 1 Unless otherwise specified,all statutory references are to the Penal Code. 2 The trial court again found petitioner incompetentto standtrial in case No. INF061963 on December7, 2011. It appears this occurred after petitioner was deemed competentand pled guilty to a violation of Penal Code section 288, subdivision (a), in a different county. committed to Patton State Hospital on March 29, 2012, in conjunction with case No. INF061963. On May18, 2015, the trial court in case No. INF061963 ordered petitioner’s release from custody. It found petitioner had reached the maximum time of commitment authorized by law. (See § 1370, subd. (c)(1) [defendant who hasnot regained competency must be returned to court no later than, as relevant here, “the end of three years from the date of commitment”}.) The People then secured an indictment andinitiated case No. INF1500950 against petitioner on May 21, 2015. The counts alleged in the indictment also relate to petitioner’s alleged conduct on May 3, 2008. In case No. INF1500950,thetrial court declared doubts regarding petitioner’s competencyto stand trial on June 2, 2015. However, the record before us does not demonstrate that a determination regarding petitioner’s competenceto stand trial has been made in connection with case No. INF1500950. Arguing that he could no longer be confined because he had exceeded the maximum commitmentperiod authorized by law,petitioner, just ashe had done in case No. INF061963, movedforhis release from custody in case No. INF01500950. Thetrial court denied that motion on Tune 3 0, 2015. This writ petition followed. DISCUSSION Petitioner contends he cannot be lawfully confined in connection with case No, INF1500950 because he has already exceeded the maximum time for which he could have been committed as incompetentto standtrial in relation to the crimesheallegedly committed on May 3, 2008. Becausethe recordfails to support at least two assumptions central to petitioner’s reasoning, we must denythepetition. In Jackson v. Indiana (1972) 406 U.S. 715, 731-739 (Jackson), the United States Supreme Court considered whether the due process provisions of the Fourteenth Amendmentto the United States Constitution can allow a state to commit a criminal defendant found incompetent to stand trial on an indefinite basis. The Court held, “that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceedto trial cannot be held more than the reasonableperiod oftime necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” (Jackson,at p. 738.) The California Supreme Court adopted the samerule the following year whenit held “that no person charged with a criminal offense and committed to a state hospital solely on accountofhis incapacity to proceedto trial may be so confined more than a reasonable period oftime necessaryto determine whetherthere is a substantial likelihood that he will recover that capacity in the foreseeable future.” (Jn re Davis (1973) 8 Cal.3d 798, 801.) Both courts addedthat a defendant whohas been found incompetentto standtrial and will not regain competency “in the foreseeable future” must either be released or committed underan alternative procedure. (Jackson, at p. 738; see Davis, at p. 801.) The Legislature then amended former Penal Code section 1370, subdivision (c)(1), in an attempt to provide guidance regarding someofthe principles announcedin Davis. (In re Polk (1999) 71 Cal.App.4th 1230, 1236-1238.) Subdivision (c)(1) of section 1370 requires any defendant who has been found incompetentto standtrial and whose competencehasnot been recovered to be “returned to the committing court”within,asis relevant to this case, 90 days ofthe date that is three years after the date of commitment. If such a defendant appears to be “gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitmentofthe defendantto initiate conservatorship proceedings for the defendant pursuant to” provisions of the Welfare and Institutions Code. (Pen. Code, § 1370, subd. (c)(2).) The type of conservatorship described in the aforementioned section of the Welfare and Institutions Code “is commonlyreferred to as a ‘Murphy conservatorship’ after the legislator who sponsored the amendmentthat added the definition to the [Lanterman- Petris-Short Act] Act in 1974. (Stats. 1974, ch. 1511, pp. 3316-3324.)” (Peoplev. Karriker (2007) 149 Cal.App.4th 763, 775.) Aside from mentioning the possibility of a Murphyconservatorship, Penal Code section 1370 does not otherwise advisea trial court of its options if a defendant who has been declared incompetentto standtrialis still incompetentat the end of a three-year commitment. In the absence of such statutory language, defendant relies on Jackson and Davis to support his contention that complete release from custody is the only outcome that can pass constitutional muster. As we now explain, however, heis trying to capitalize on languageto the effect that a defendant whoisstill incompetentat the endof the permissible period of confinement mustbereleased,if he is not civilly committed, without actually demonstrating that he meets the conditions precedenttothis rule. First, petitioner has not shown that he is currently “committed solely on account of his incapacity to proceedtotrial.” (Jackson, supra, 406 U.S.at p. 738 italics added; see similar language in Jn re Davis, supra, 8 Cal.3d at p. 801.) While it is true that the indictment in case No. INF1500950 stems from the samealleged conductas the complaint in case No. INF061963, petitioner has offered no reason why the People could not prosecute him on charges related to his conduct on May 3, 2008, under a new case numberif he were currently competent to stand trial. If the prosecution in case No. INF1500950 maycontinue, and the record and the briefing before us present no bar to that occurrence, we are aware of no reason whypetitioner could not be confinedinjail awaiting trial on those charges absent another incompetency finding. As we noted ante, the record contains no evidencethat petitioner has actually been declared incompetent to stand trial in case No. INF1500950, and it contains no other proof that the incompetency the court found to exist in case No. INF061963still continues. Without substantiating this fact, petitioner has failed to show that his current confinementis due to nothing other than a present incapacity to standtrial. In a similar vein, he has not shownthat he has been “committed”at all in case No. INF1500950. Second, the record contains no evidence regarding “whetherthere is a substantial probability that [petitioner] will attain . . . capacity [to standtrial] in the foreseeable future.” (Jackson, supra, 406 U.S. at p. 738.) Again, no incompetencyfinding has yet been madein case No. INF1500950, and the record does not contain any of the reports regarding petitioner’s competency that were issued in case No. INF061963. Faced with the same problem, the Davis court wrote: “Unlike the situation in Jackson, however, the record in the cases before us furnishes no basis for concluding that petitioners are not likely to respond to treatment. Accordingly, it would be prematurefor us to order petitioners released from confinementat this time.” (/n re Davis, supra, 8 Cal.3d at p. 806.) We agree with the Davis court that a defendant such as petitioner cannot demonstrate his entitlement to release from all confinement in connection with unadjudicated criminal charges without some basis for concludingthat he is both presently incompetent and unlikely to regain competencyin the near future. In a letter brief filed prior to oral argumentandat oral argument, petitionercited People v. Quiroz (2016) 244 Cal.App.4th 1371 (Quiroz) for the proposition that the People lack the authority to proceed on the indictment they obtained in case No. INF1500950 becausepetitioner had already been committed for the maximum term authorized by law in case No. INF061963. Quiroz stands for no such proposition,asall it held is that a competency hearing is a “special proceeding” that must be authorized by statute, and no statute authorizes holding another competency hearing at the end of a three-year commitment due to incompetencyto stand trial when the hospital reports that the defendantis still incompetent and is not likely to recover competencyin the near future. (/d. at pp. 1379-1380.) Moreover, Quiroz is factually distinguishable, as there the record contained a report showingthat the defendant seeking release from confinement was both incompetentandnotlikely to regain competency. (Jd. at pp. 1375, 1379-1380.) The absence of such evidencein the record hereis a large part of why, as we described ante, we cannotgrantpetitionerthe relief he seeks. Weclose by suggesting that at least some of the issues thetrial court faced in ruling on the motion that is the subject of this writ petition could have been avoided, or at least ameliorated, if section 1370, subdivision (c)(2), provided clearer guidance. For example, Quiroz asserts that, “if the defendant remains incompetentbutis not a dangerousaccused violent felon, the court must release him from confinement” when the defendantis returned to court at the end of the maximumcommitmentperiod. (Quiroz, supra, 244 Cal.App.4th at p. 1379.) However, section 1370, subdivision (c)(2), gives no such instruction. As we noted ante, it instructs that the trial court “shall order the conservatorship investigator of the county of commitmentofthe defendant to initiate conservatorship proceedings for the defendant,” but only when “a defendant is returned to the court pursuant to paragraph (1) or(4) of subdivision (b) or paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled” within the meaning of the Murphy conservatorship statute. Jackson, Davis, and Quiroz all note that a defendant whois returned to court at the end of a commitment due to the defendant’s incompetencyto stand trial may needto be released undercertain circumstances, but neither they northe statutory scheme that authorizes the commitment provide any instruction as to under what criteria and upon what proof such release is required. We therefore implore the Legislature to examine subdivision (c)(2) of section 1370 and clarify fot trial courts statewide what procedures they should follow when faced with a defendant who has been committed as incompetent for the maximum time allowed under the law but who doesnot qualify for a Murphy conservatorship. DISPOSITION The petition is denied. CERTIFIED FOR PUBLICATION RAMIREZ, P. J. Weconcur: HOLLENHORST J. MILLER J. PROOF OF SERVICE BY MAIL (C.C.P. 1013a and 2015.5) Jackson v. Superior Court Case Number: E064010; INF1500950 Iam a citizen of the United States and a resident of the county of Riverside, State of California. I am over the age of 18 years and not a party to the within action. I am employed by the Law Offices of the Public Defender and am familiar with the business practice at the Office for collection and processing of correspondence for mailing with the Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Law Offices of the Public Defender is deposited with the United States Postal Service, with postage fully paid, that same day in the ordinary course of business. Onthe date of execution of this document, I served the foregoing Petition for Review; Attachment A by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Law Offices of the Public Defender, 4200 Orange St., Riverside, CA 92501, addressed as follows: MICHAEL HESTRIN KAMALAHARRIS Fourth District Court of Appeal District Attorney Attorney General Division Two 3960 OrangeSt. P.O. Box 85266 3389 Twelfth St. Riverside, CA 92501 San Diego, CA 92186 Riverside, CA 92501 Honorable Mark Johnson Patrick L. Jackson Hall of Justice (through counsel) 4100 MainSt. Riverside, CA 92501 I declare under penalty of perjury that the foregoingis true and correct. Executed on June “26, QONG .at Riverside, California. KIMBERLY MPYER