Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2003017661, John Dobroth, Judge
Howard R. Price; Lascher & Lascher, Wendy C. Lascher, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Diana Shakhov appeals from the order finding her mentally incompetent and committing her to Patton State Hospital for evaluation and treatment. Appellant does not challenge the finding that she is mentally incompetent. She challenges only her commitment, which was required by Penal Code section 1601, subdivision (a). Appellant argues that she cannot regain her mental competence and that the commitment will worsen her incurable dementia. She contends that the commitment violates her rights to be presumed innocent, to due process, to equal protection, and to be released on bail. In addition, she contends that the commitment constitutes cruel and unusual punishment. We affirm.
The order is appealable as a final judgment in a special proceeding. (People v. Fields (1965) 62 Cal.2d 538, 541-542.)
All statutory references are to the Penal Code.
Concurrently with the filing of this opinion, we deny by separate order appellant's petition for a writ of habeas corpus case in case number B217132.
Factual and Procedural Background
Appellant was originally charged with gross vehicular manslaughter while intoxicated. (§ 191.5, subd. (a).) The offense was allegedly committed in May 2003. The case was tried before a jury, and the court declared a mistrial because the jury was unable to reach a verdict. Respondent subsequently filed an amended five-count information. Three of the counts charged appellant with different forms of felony vehicular manslaughter.
In June 2008 appellant's counsel informed the trial court that appellant may be mentally incompetent. (§ 1368, subd. (b).) At a hearing conducted in February 2009, the court found appellant mentally incompetent.
At a placement hearing conducted in June 2009, appellant presented evidence in the form of a declaration of Dr. Annette Ermshar and testimony by Dr. Carl Orfuss. Dr. Ermshar declared as follows: Appellant suffers from "a gradually progressive dementia." "There is no known case of dementia being reversed, let alone cured." "[A]s [appellant's] deficits are irreversible, it is simply inconceivable that she could be restored to competence within the meaning of the law...." Thus, "she will not benefit from treatment attempting to restore her to competency." Commitment to Patton State Hospital "will undoubtedly result in decreased cognitive functioning, increased stress and alienation from her three year old daughter."
Dr. Orfuss testified that "there is nothing known to medical science that could reverse [appellant's] cognitive deficits... [and] allow her to stand trial as a competent witness." Dr. Orfuss opined that appellant's commitment to Patton State Hospital would have "[o]nly detrimental effects." It would result in her "[s]ocial isolation" and "[e]xposure to probably... criminally psychotic patients."
The trial court found that "it's very unlikely that... any more treatment or help will get [appellant] to be in a better position to handle a trial." Nevertheless, the court committed appellant to Patton State Hospital and remanded her to the custody of the Ventura County Sheriff. The court concluded that appellant's commitment was required by section 1601, subdivision (a). It relied on two appellate opinions: People v. Amonson (2003) 114 Cal. App.4th 463 (Amonson), and People v. Superior Court (Lopez) (2005) 125 Cal. App.4th 1558 (Lopez).
We stayed the commitment order and directed the trial court to release appellant "forthwith on such reasonable conditions as [it] may impose including, for example, her written promise to appear and/or electronic monitoring." (Order dated 6/30/09, case no. B217132) The trial court released appellant on her own recognizance on condition that she arrange for home electronic monitoring. (Motion filed 10/2/09, p. 3)
Discussion
Pursuant to section 1370, subdivision (a)(1)(B)(i), a defendant found mentally incompetent may be placed on outpatient status pursuant to section 1600. But section 1601, subdivision (a), provides: "In the case of any person charged with and found incompetent on a charge of... any felony involving death, ... outpatient status... shall not be available until that person has actually been confined in a state hospital or other facility for 180 days or more...."
Amonson and Lopez upheld the constitutionality of section 1601. In Amonson the defendant was charged with gross vehicular manslaughter while intoxicated. The trial court found him mentally incompetent and committed him for 180 days pursuant to section 1601. The defendant had a developmental disability that was worsened by severe injuries sustained in an automobile collision. All of the medical experts agreed that he was not dangerous and should be placed in an outpatient setting with his mother. One doctor opined that the defendant " 'is not likely [to have] the capacity to become trial competent.' " (Amonson, supra, 114 Cal.App.4th at p. 466.)
The defendant contended that "the statutorily mandated period of confinement is not constitutional where, as here, the defendant is not dangerous and his competency cannot be restored during the confinement period." (Amonson, supra, 114 Cal.App.4th at p. 472.) The appellate court noted that, in In re Davis (1973) 8 Cal.3d 798, our Supreme Court had adopted the " 'rule of reasonableness' " of Jackson v. Indiana (1972) 406 U.S. 715 [92 S.Ct. 1845, 32 L.Ed.2d 435]. (Amonson, supra, 114 Cal.App.4th at p. 472.) Pursuant to this rule, " ' "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is 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.' " (Ibid.)
The Amonson court observed that in 1974 the legislature had amended section 1370 "[t]o bring the incompetency commitment procedure into conformity with the Jackson-Davis guidelines." (Ibid.) Section 1370, subdivision (b)(1), provides that, within 90 days of commitment, "the medical director of the state hospital... to which the defendant is confined shall make a written report to the court... concerning the defendant's progress toward recovery of mental competence.... If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court" for civil commitment proceedings.
The defendant in Amonson argued "that even a 90-day commitment is too long because various experts have already evaluated his mental condition and all have reached the same conclusion [that he cannot regain mental competency]." In rejecting the defendant's argument, the appellate court reasoned: "[T]he Legislature, in its considered judgment, has determined that persons accused of violent felonies must undergo an initial period of evaluation in a residential facility with a secured perimeter or a locked and controlled treatment facility. [Citation.] Although the experts have forecast that defendant's condition will not improve, the Legislature could rationally favor experience over prognostication and require a short period of actual confinement in the controlled environment of a secure facility. Nothing in Jackson suggests the Legislature's determination is constitutionally unreasonable." (Amonson, supra, 114 Cal.App.4th at p. 473.)
In Lopez a 79-year-old defendant was charged with three counts of child molestation in violation of section 288, subdivision (a). After the trial court found the defendant mentally incompetent, a medical evaluator concluded that he "had untreatable degenerative dementia." (Lopez, supra, 125 Cal.App.4th at p. 1562.) Although section 1601, subdivision (a), required that the defendant be committed to a state hospital or other facility, the trial court refused to do so. "The trial court found it would be 'a useless act to send [defendant] for competency training' and ordered defendant placed in an 'alternative placement.' The trial court made 'a specific finding [that] alternative placement will provide appropriate treatment for the defendant and not pose a danger to the health and safety of others.' " (Ibid.)
The appellate court reversed the placement order. It rejected the defendant's argument "that section 1601 violates due process as applied to him because he 'will likely never achieve trial competency' and, therefore, his commitment would serve no purpose." (Lopez, supra, 125 Cal.App.4th at p. 1566.) The appellate court applied the same rationale of Amonson. It noted that "the defendant's progress toward competency must be reviewed within 90 days of commitment." (Id., at p. 1567.) Because the defendant must be returned to the committing court for civil commitment proceedings if the 90-day report indicates that there is no substantial likelihood that he will regain competence, the Lopez court concluded that the defendant's commitment did not violate the rule of reasonableness of Jackson-Davis.
We agree with Amonson and Lopez. Appellant is charged with the unlawful killing of a human being. In view of the magnitude of the offense, it was not unconstitutionally unreasonable or a denial of due process for the legislature to "require a short period of actual confinement in the controlled environment of a secure facility." (Amonson, supra, 114 Cal.App.4th at p. 473.) The legislature was not obligated to accept the prognostications of appellant's experts. If her experts are correct, the 90-day report will indicate "that there is no substantial likelihood that [appellant] will regain mental competence in the foreseeable future." (§ 1370, subd. (b)(1).) "That would trigger a referral for civil commitment proceedings prior to the expiration of the 180-day confinement period that is prerequisite to outpatient treatment." (Amonson, supra, 114 Cal.App.4th at p. 473.)
Appellant's commitment does not violate her right to be presumed innocent. (AOB 15) The commitment has nothing to do with appellant's innocence or guilt. The purpose of the commitment is to evaluate and treat the condition that rendered her mentally incompetent.
Appellant argues that the mandatory commitment of mentally incompetent persons charged with a felony involving death violates equal protection because there is no similar mandatory commitment for mentally incompetent persons who are not so charged. "The constitutional guaranty of equal protection of the laws... recognizes that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.... [Citations.]" (People v. Romo (1975) 14 Cal.3d 189, 196.) " 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.]" (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) Appellant's equal protection challenge fails because she has not shown that mentally incompetent persons charged with a felony involving death are similarly situated to mentally incompetent persons who are not so charged.
Appellant contends that her remand to the custody of the Ventura County Sheriff violated her right to be released on bail. We do not consider this issue because it is moot. Pending this appeal, appellant has been released on her own recognizance. In the disposition section of our opinion, we direct that appellant shall continue to be released on her own recognizance, subject to reasonable conditions imposed by the trial court, until space is available for her at Patton State Hospital.
Appellant appears to contend that her mandatory commitment to Patton State Hospital also violated her right to be released on bail. This contention lacks merit. "[T]he right to bail... pertains only to persons incarcerated on a charge of the commission of a criminal offense. [Citation.]" (In re Law (1973) 10 Cal.3d 21, 25.) A mentally incompetent defendant who has been committed to a state hospital for evaluation and treatment is not incarcerated on a criminal charge.
Finally, we reject appellant's claim that her mandatory commitment constitutes cruel and unusual punishment under the federal and state constitutions. "Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings. [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 131.) "[I]t is well settled that... cruel and unusual punishment principles do not apply to civil commitment proceedings because they are not penal in nature. [Citations.]" (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
Answer to Dissent
We applaud the dissent’s compassion for the plight of those who suffer from mental disability but, as we shall explain, there are several legal impediments to the trail which it seeks to blaze here. We should view the case in its legal context and not focus entirely on appellant’s disability. First, let us start with weaving in and out of the statutory scheme to secure all the benefits of the scheme but jettison the burdens of the scheme. "He who takes the benefit must bear the burden." (Civ. Code, § 3521.) A person charged with a crime cannot be tried, convicted, or sentenced; and the proceedings must be adjourned until the person is "mentally competent." This protects the defendant and confers a significant benefit, i.e. the avoidance of continued prosecution. Appellant has invoked this rule and has been able to avoid continued prosecution for years. This rule is part of a comprehensive statutory scheme. Now she seeks to avoid other provisions of the scheme. She should not be permitted to pick and choose from various parts of a comprehensive statutory scheme.
Second, the Legislature has unambiguously charted the course here. Phrased otherwise, the trail is clear and there is no reason to blaze a new one. A person charged with a qualifying crime who has not regained his mental competency must actually be civilly committed for a brief period of time for study and treatment by doctors in a state hospital setting. This is not punishment. In theory, such a person can be brought to mental competence in the therapeutic setting. At an interim hearing not expressly authorized by statute, the trial court found that appellant was "deteriorating" and that it was "very unlikely" she would be brought to mental competence. The court, nevertheless, adhered to the statutory command. We do not question the sincerity of the trial court’s views, nor the views of the dissent. But, the diagnosis may not be accurate. The Legislature has expressly determined that such a pre-commitment diagnosis is not only not determinative, it is not even relevant.
We must presume that state hospital doctors will do everything in their power to see that appellant will not suffer harm during her brief period of confinement. There is no compelling reason to embroider an exception onto the statutory scheme so that appellant’s safety can be guaranteed. In our judgment, the Legislature has struck a balance in the presenting situation. It has even limited the situations for actual confinement for only the most serious offenses. We presume that the Legislature contemplated situations where this brief time of confinement for observation and treatment would lead to l. improved mental functioning, or 2. no change in mental functioning, or 3.a deterioration of mental functioning which may lead to harm. Here the dissent augers for a new rule in the third situation.
If the dissent is correct, there is an exception in the statutory scheme heretofore unknown in the case law and the trial court is empowered to fashion a remedy as the circumstances require. We think this argument has been answered by Justice Raye of the Third District and we reiterate: "Defendant effectively contends that even a 90-day commitment is too long because various experts have already evaluated his mental condition and all have reached the same conclusion. However, the Legislature, in its considered judgment, has determined that persons accused of violent felonies must undergo an initial period of evaluation in a residential facility with a secured perimeter or a locked and controlled treatment facility. (Citation.) Although the experts have forecast that defendant’s condition will not improve, the Legislature could rationally favor experience over prognostication and require a short period of actual confinement in the controlled environment of a secure facility." (People v Amonson, supra, 114 Cal.App.4th at p. 473.) The "experience over prognostication" theory applies here. In other words, a brief period of hospitalization in a therapeutic setting is the best way for making an accurate and objective medical judgment as to mental competence.
Against constitutional challenges, our California Supreme Court has held that even a person who has been acquitted of the underlying offense by reason of insanity can, and should, be confined in a state hospital setting for observation and treatment before a decision is made as to release. (In re Franklin (1972) 7 Cal.3d 126, l3l, 143) For the same reasons, a brief period of confinement for observation and treatment on the issue of mental competency to stand a trial, violates no constitutional restraint.
Finally, the Court of Appeal does not sit as a "super Legislature" at liberty to do what it thinks is best in any given situation. (Unzueta v. Ocean View School Dist. (1992) 6 Cal. App.4th 1689, 1699). "Every [judicial] decision that is based upon the judge’s individual concept of right and justice—every opinion that justifies a decision because it achieves [or may achieve] the ends of justice under the special facts of the particular case-- serves to weaken the foundations upon which our liberties rest." (Judge Brockenbrough Lamb, Judge of the Chancery Court, "The Duty of Judges: a Government of Laws and not of Men, " Handbook for Judges, The American Judicature Society (1961) p. 94.) This is but another way of stating that the judiciary, absent constitutional considerations, is required to follow and adhere to an unambiguous statutory scheme.
We, ourselves, have previously indicated that the judiciary should be "loathe" to add language to a statutory scheme. "We are compelled to add language only in extreme cases where, as a matter of law, we are convinced that the Legislature, through inadvertence, failed to utilize the word or words which give purpose to its pronouncements. (Citation.)" (People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030, 1034.) Phrased differently, we should only do so to avoid an "absurd" result. (Id. at p. 1035.) The Legislature is aware of dementia, irreversible and otherwise. It would have made an exception, as suggested by the dissent, if that would have best served the interests of a defendant and the People of the State of California. In our opinion, there is nothing inadvertent about the comprehensive statutory scheme and we should not engage in statutory embroidery.
Disposition
The order finding appellant mentally incompetent and committing her to Patton State Hospital for evaluation and treatment is affirmed. Appellant shall continue to be released on her own recognizance, subject to reasonable conditions imposed by the trial court, until space is available for her at Patton State Hospital.
I concur: COFFEE, J.
GILBERT, P.J.
I respectfully dissent.
Shakhov's husband testifies that his wife is "decompensating and becoming less functional in her... average daily... basic life, ... [and] that she's deteriorating." The trial court finds this testimony candid, believable and not exaggerated. Shakhov's deterioration would be more severe if she were confined in Patton State Hospital.
Dr. Ermshar declares that committing Shakhov to Patton State Hospital "will undoubtedly result in decreased cognitive functioning." She points out that a stay at Patton State Hospital will be "disorienting and exacerbate her symptoms by adding to her confusion and emotional dysregulation." She also states, "Given her cognitive deficits, she would be at significant risk for harm and/or being taken advantage of. This is evidenced by her poor problem solving ability and limited executive functioning. Further, having to follow a complex group treatment schedule and managing various rules and directions is likely to result in confusion and subsequent cognitive and behavioral decline. Even simple tasks, such as getting dressed and obtaining food, will be difficult for Ms. Shakhov, as evidenced by her previous testing results suggesting poor daily living skills and memory deficits. Her vulnerability to being hurt and/or manipulated by others is of significant concern in determining the most appropriate setting for this individual."
Uncontradicted evidence establishes not just that Shakhov suffers from irreversible dementia, but that she will suffer demonstrable harm should she be confined in the state hospital. The People offer no contrary evidence on this latter point. Instead, the People argue that any defendant can hire experts to testify so as to keep a defendant out of the state hospital. This cynical view is not a substitute for medical evidence showing that Shakhov will not suffer further deterioration should she be confined in Patton State Hospital.
The majority gloss over this significant point and cite cases that are distinguishable. It is true that in People v. Amonson (2003) 114 Cal.App.4th 463, defendant's mental retardation prevented his restoration to mental competency. That same discouraging prognosis applied to defendant's untreatable degenerative dementia in People v. Superior Court (Lopez) (2005) 125 Cal.App.4th 1558. But in neither case was there evidence that the defendant's condition would further deteriorate and would suffer additional harm if confined in the medical facility for evaluation.
In Youngberg v. Romeo (1982) 457 U.S. 307, 323, the Supreme Court cautioned that courts should refrain from second guessing the propriety or adequacy of a particular course of treatment. It appears the majority has ignored this advice and the expertise of Shakhov's expert witnesses. It may be true, as the majority state, that the Legislature is not obligated to accept the prognostications of Shakhov's experts concerning the incurable nature of her dementia. And it is true that the Legislature charged state officials with the task of assessing a defendant's mental competency. But certainly the Legislature did not sanction that a defendant be harmed through confinement, however brief, in a state hospital. The majority ignore this point.
The trial court seemed to agonize over its decision. It expressed the hope that the director of Patton State Hospital find an alternative. The court believed it was in a quandary for which there was no solution. This was not the case. It has the power to fashion an alternative approach. Indeed, that is why we have courts.
"Courts have the inherent power to create new forms of procedure in particular pending cases. 'The... power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function.' (Witkin, Cal. Procedure (2d ed.) Courts, § 123, p. 392.) This right is codified in Code of Civil Procedure section 187 which provides that when jurisdiction is conferred on a court by the Constitution or by statute '... all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.' (See also Code Civ. Proc., § 128, subd. 8.) As the Supreme Court said in People v. Jordan [1884] 65 Cal. 644 at page 646, '[i]n the absence of any rules of practice enacted by the legislative authority, it is competent for the courts of this State to establish an entire Code of procedure in civil cases, and an entire system of procedure in criminal cases, ...' (See also Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 813, recognizing the inherent power of courts to adopt "'any suitable method of practice... if the procedure is not specified by statute or by rules adopted by the Judicial Council."')" (James v. Superior Court (1978) 77 Cal.App.3d 169, 175.)
I agree that Penal Code section 1601, subdivision (a) requires confinement in a state hospital, and I agree with the People and the majority that the solution to the dilemma here is not to preclude "treatment officials" from assessing or treating Shakov. But in light of the medical evidence that such confinement will harm her, I suggest other options are available.
I would remand with instructions that the trial court devise a procedure for state officials to examine Shakov to determine what harm or injury, if any, she would suffer through confinement in the state hospital. If such an examination could be made in a state medical facility within a matter of hours, or even several days without confinement, such an approach would not appear to impose an unjustifiable harm on her. Perhaps she could be examined in her home or some other appropriate location. The trial court can then make appropriate findings on this limited issue. The court may also reserve jurisdiction to order future evaluations if it deems appropriate.
The People's observation that "the efficacy or desirability of one course of treatment relative to another is a question that calls for the exercise of medical judgment, not judicial determinations, " supports my position.
I propose as follows: If the trial court determines Shakov will be harmed, it shall order that she not be confined in Patton State Hospital, but instead be placed at home or in some other appropriate setting pending possible civil commitment proceedings. If the court determines otherwise, it shall order that Shakov be confined in Patton State Hospital; it shall order that she not be confined in jail while waiting for bed space if one is not available.
At this point, we need not consider whether confinement for a 90- or 180-day evaluation in a state hospital is unconstitutional.
In the meantime, there appears to be no bed available. Until the issue regarding whether Shakov will suffer harm from hospital confinement is resolved, I propose she remain in home confinement.