Conservatorship of Hofferber

• Decision Date: 15 September 1980
• Citation: 28 Cal.3d 161,616 P.2d 836,167 Cal.Rptr. 854
• Parties: , 616 P.2d 836 Conservatorship of the Person and ESTATE of Glenn Gayle HOFFERBER. Bruce A. ALTMAN, as Conservator, etc., Petitioner and Respondent, v. Glenn Gayle HOFFERBER, Objector and Appellant. L.A. 31121.
• Court: California Supreme Court

Page 854

167 Cal.Rptr. 854

28 Cal.3d 161, 616 P.2d 836

Conservatorship of the Person and ESTATE of Glenn Gayle HOFFERBER.

Bruce A. ALTMAN, as Conservator, etc., Petitioner and Respondent, v. Glenn Gayle HOFFERBER, Objector and Appellant.

L.A. 31121.

Supreme Court of California, In Bank.

Sept. 15, 1980.

Rehearing Denied Oct. 15, 1980.

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Harold E. Shabo and Paul D. Fogel, Deputy State Public Defenders, Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, David Meyer and John L. Ryan, Deputy Public Defenders, for objector and appellant.

John H. Larson, County Counsel, Wayne R. Parrish and Michael J. Harrington, Deputy County Counsels, Los Angeles, for petitioner and respondent.

NEWMAN, Justice.

Glenn Hofferber appeals from a 1978 judgment and order establishing a civil conservatorship under the Lanterman-Petris-Short (LPS) Act. (Welf. & Inst.Code, §§ 5000 et seq., 5350 et seq. Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.)

The conservatorship is based on findings that appellant is "gravely disabled" because he is an incompetent defendant charged with a violent felony. (§ 5008(h)(2).) We conclude that the judgment and order must be reversed.

After a September 1974 preliminary hearing appellant was charged with murder. In November 1974 he was found mentally incompetent to stand trial and was committed to the Department of Health for placement in a state hospital (Pen.Code, § 1368 et seq.). There he was entitled to periodic six-month review of his competence (id., § 1370(b)(1)).

In 1976 he was returned to the criminal court for the required 18-month hearing (§ 1370(b)(2)). Again he was found incompetent to stand trial and was recommitted to the state hospital.

In October 1977, because he had been confined for the maximum three-year period permitted by section 1370(c)(1) and the Department of Health determined there was no substantial likelihood he would regain mental competence in the foreseeable future (§ 1370(b)(1)), again he was returned to the criminal court (§ 1370(c)(2)). In December 1977 a unanimous jury by a preponderance of the evidence found him incompetent to stand trial. Thereafter Judge Chernow, noting that appellant had been the subject of an earlier conservatorship which had terminated prior to the alleged murder, had admitted the killing ("I just let him have it"), ¹ and had announced his aim to drive a stake through the heart of a relative, concluded that (1) he was incompetent to stand trial and "would constitute a danger to the safety of others if he were free of secure custody", and (2) he appeared to be "gravely disabled" within the meaning of Welfare and Institutions Code section 5008(h)(2). Accordingly, Judge Chernow directed the public guardian to initiate civil conservatorship proceedings under the LPS Act. (Pen.Code, § 1370(c)(2).)

In the conservatorship proceedings Judge Ziskrout denied appellant's request for a second jury trial on the issue of mental competence and, at the guardian's request, took judicial notice of the December 1977 competence hearing. On March 6, 1978 Judge Ziskrout found appellant "gravely disabled." The guardian was appointed conservator of appellant's person and estate and was authorized to place him in a state hospital or other mental health facility. (§§ 5350, 5358.)

Appellant asserts that (1) a person charged with a violent felony and found mentally incompetent to stand trial may not be civilly committed for reasons and under procedures that differ from those applicable to other mentally disordered persons, (2) to establish grave disability his incompetency must be proved beyond a reasonable doubt, and (3) his conservatorship violates the proscription of retroactive or ex post facto laws. We examine each contention separately. ²

VALIDITY OF COMMITMENT STANDARDS

Before 1974, California law provided that persons charged with criminal conduct but found incompetent to stand trial were committed to state hospitals until they became "sane" (i. e., competent). Because attainment of competence was the sole standard for release the commitments were indefinite, even permanent, so long as incompetence persisted. (Former Pen.Code, §§ 1368-1370; see Parker, California's New Scheme for the Commitment of Individuals Found Incompetent to Stand Trial (1975) 6 Pac.L.J. 484, 486.)

In Jackson v. Indiana (1972) 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435, the Supreme Court struck down similar provisions on grounds that they denied equal protection and due process. The equal protection ruling arose from the premise that persons could not, solely because of pending criminal charges against them, be subject to commitment standards more lenient or release standards more stringent than those applicable to persons not charged with criminal offense.

Under Indiana law, other mentally disordered persons could be committed and involuntarily confined only if dangerous or in need of custodial care or treatment. Mentally disordered criminal defendants, however, were committed and confined solely on the basis of inability to assist at trial. Their confinement continued as long as that condition persisted, regardless of whether confinement was necessary for treatment or for their or others' protection. Since pendency of unproved criminal charges was not a reasonable basis for distinction among mentally ill persons, Jackson reasoned, Indiana law denied incompetent criminal defendants equal protection. (P. 730, 92 S.Ct. p. 1854.)

Jackson held that the procedures also denied due process because, solely for incompetence, they permitted confinement beyond a period "reasonably related" to the aims of commitment. The court reasoned as follows: Commitment solely for incompetence is intended to permit treatment to alleviate that condition. Hence, confinement on that ground may not continue beyond the time reasonably necessary to determine whether the purpose of treatment is being served.

Once there appears no substantial likelihood that defendant will regain competence, Jackson concluded, the state must justify further confinement by showing that it is necessary on some ground applicable to all mentally ill persons, such as dangerousness or need for custodial care. The court adopted a "rule of reason" that, once hopeless incompetence appears, "the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant." (P. 738, 92 S.Ct. p. 1858; cf. Greenwood v. United States (1956) 350 U.S. 366, 373-374, 76 S.Ct. 410, 414, 100 L.Ed. 412.)

Following Jackson, this court invalidated indefinite commitments under California procedures for confinement of incompetent criminal defendants. (In re Davis (1973) 8 Cal.3d 798, 805-806, 106 Cal.Rptr. 178, 505 P.2d 1018, cert. den. sub nom. Palma v. California, 414 U.S. 870, 94 S.Ct. 87, 38 L.Ed.2d 88.) Davis held that, once defendant's progress toward competence became unlikely, "the court should either order him released from confinement or initiate appropriate alternative commitment proceedings under the (LPS) Act . . . ." (Id. 8 Cal.3d at p. 807, 106 Cal.Rptr. at p. 185, 505 P.2d at p. 1025.) ³ When Davis was decided those proceedings included (1) annually renewable conservatorships for "gravely disabled" persons-those mentally unable to provide their "basic personal needs for food, clothing, or shelter . . ." (§§ 5008(h)(1), 5350 et seq.), and (2) 90-day maximum confinements for "imminently dangerous" persons, renewable only for violence while confined. (§ 5304.)

Adapting the LPS Act language in Davis, the Legislature in 1974 amended the statutes to bring California's scheme for confinement of incompetent criminal defendants within constitutional bounds. (Stats.1974, ch. 1511, p. 3316 et seq.) Under current law a defendant confined for incompetence who has not regained competence must be returned to the superior court after (1) three years, or (2) the maximum term of imprisonment for the most serious underlying offense, whichever is shorter (Pen.Code, § 1370(c)(1)), or whenever the superintendent of the treatment facility sooner determines there is no substantial likelihood the defendant will attain competence (§ 1370(b)(1)). ⁴ The court then must redetermine competence. If defendant is competent, criminal proceedings are resumed. If not the court must either release him or order that "gravely disabled" conservatorship proceedings be instituted under the LPS Act (§ 1370(c)(2)). ⁵ The Legislature also amended Welfare and Institutions Code section 5008(h), which defines grave disability. The revised section retains the traditional concept of helplessness (subd. (h)(1)) but adds an alternative definition based on criminal incompetence. A person now may be found "gravely disabled" on grounds that he (1) is charged by indictment or information with a felony involving death, great bodily harm, or a serious threat to the physical well-being of another, and (2) is incompetent to assist in his defense because of a mental disorder. ⁶ His conservatorship may be renewed annually so long as those conditions persist.

Appellant argues that the new scheme is a transparent and unsuccessful evasion of Jackson and Davis. Despite the law's attempt to make incompetents committable under the "customary" civil commitment law, he suggests, it still denies them equal protection because their incompetence bears no rational relationship to the "grave disability" provisions of the LPS Act. Jackson and Davis, he urges, make unproved criminal charges and a subsequent finding of incompetence insufficient grounds for any distinction, procedural or substantive, from other persons subject to civil commitment. Since he has been found hopelessly incompetent, he contends, he may now be civilly committed only under LPS Act...