People v. BRANDON
| Decision Date | 10 December 2008 |
| Docket Number | No. E042885.,E042885. |
| Citation | 82 Cal.Rptr.3d 617 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Marsha BRANDON, Defendant and Appellant. |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
COPYRIGHT MATERIAL OMITTED.
Background: People moved to recommit offender, who had been placed in outpatient conditional release treatment program as condition of her parole, as mentally disordered offender (MDO). Offender absconded from outpatient treatment and was reapprehended. The Superior Court, San Bernardino County, No. FSBSS054508, Michael J. Gassner, Temporary Judge, denied offender's motion to return to outpatient status, granted People's motion to revoke outpatient status, and committed offender as MDO upon jury verdict. Offender appealed.
Holdings: The Court of Appeal, Richli, J., held that:
(1) appeal was moot to extent offender sought reversal of commitment order;
(2) appeal was moot to extent offender sought retrial on initial commitment petition; but
(3) appeal was not moot to extent that offender sought relief from revocation of her outpatient status and commitment to inpatient program; but
(4) a person found to be an MDO while in outpatient treatment need not be returned to outpatient status;
(5) offender waived argument that People proceeded under wrong statute in requesting revocation of outpatient status;
(6) statute governing requests to revoke outpatient status of MDOs did not apply;
(7) statute governing requests to revoke outpatient status of paroled prisoners placed in mental health programs did apply;
(8) offender waived issue that People should have proceeded under statute applicable to paroled prisoners in mental health programs;
(9) offender waived issue that revocation petition was ineffective because it was filed after outpatient period had expired;
(10) offender's act of absconding from outpatient treatment was good cause to delay trial on revocation petition; and
(11) offender's waiver of time for MDO trial operated as waiver of time to initiate proceeding to revoke outpatient status.
Affirmed.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
The People filed a petition to commit defendant Marsha Brandon for treatment as a mentally disordered offender (MDO). When the petition was filed, defendant was in an outpatient treatment program as a condition of parole. Before trial, however, she absconded from that program. When she was reapprehended, she was kept in jail; the trial court denied her motion to be placed back on outpatient status. The People then filed a motion to revoke her outpatient status, which the trial court granted. After a jury trial, in which the trial court allowed defendant to represent herself, she was found to be an MDO and committed to an inpatient facility for one year.
Defendant now contends that the trial court erred by allowing her to represent herself. We will conclude, however, that this contention is moot in light of the fact that defendant's initial one-year commitment has expired, and she has since been recommitted for a further one-year period.
Defendant also contends that the trial court erred by revoking her outpatient status and by committing her as an inpatient instead, for three reasons:
1. Because defendant was an outpatient when the commitment petition was filed, the trial court was required to commit her, if at all, as an outpatient.
2. The People were allowed to revoke defendant's outpatient status pursuant to Penal Code section 1609, rather than Penal Code section 2972.1.
3. The motion to revoke defendant's outpatient status was untimely because it was filed after defendant's outpatient period had already expired.
We will conclude that these contentions are not moot. Neither, however, are they meritorious. Hence, we will affirm.
Defendant has been diagnosed as suffering from paranoid schizophrenia. In 2000, she pleaded guilty to stalking (Pen.Code, § 646.9) and making a criminal threat (Pen.Code, § 422) and was sentenced to prison. On May 1, 2003, she was placed on parole. As a condition of her parole (Pen.Code, § 2962), she was committed to Patton State Hospital (Patton)-i.e., an inpatient program-for treatment.
On May 23, 2005, defendant was placed in the conditional release program. (Welf. & Inst.Code, § 4360.) This was an outpatient program; it allowed her to live in the community, in a board and care home.
On February 14, 2006, the People filed a petition to commit defendant for further involuntary treatment. (Pen.Code, § 2970 et seq.) Defendant's parole period was due to terminate on May 1, 2006. Defendant's attorney, however, repeatedly waived time for trial; on June 23, 2006, over defendant's objection, he waived time “to next hearing date plus 30 days beyond.”
On July 8, 2006, defendant absconded from her outpatient program. On November 16, 2006, she was reapprehended. She was held in county jail. On December 4, 2006, she filed a motion to be placed back into the outpatient program pending a trial on the commitment petition. She argued that the only way the trial court could revoke her outpatient status was by granting either a request by the director of the outpatient program, pursuant to Penal Code section 1608, or a motion by the prosecution, pursuant to Penal Code section 1609. The trial court denied the motion.
On December 18, 2006, the People filed a motion, purportedly pursuant to Penal Code section 1609, to revoke defendant's outpatient status and have her placed at Patton. In support of the motion, a designee of the director of the outpatient program testified that, in May 2006, defendant had refused to renew her contract with the program, which meant that she could no longer participate. Moreover, even if she did renew her contract, she was no longer suitable for the program because her psychiatric problems had worsened, and the staff of the program could no longer protect the public from her. On February 6, 2007, after an evidentiary hearing, the trial court granted the motion.
On February 28, 2007, defendant made a Faretta motion. 1 On March 7, 2007, the trial court granted the motion. On March 15, 2007, a jury trial began. On April 5, 2007, the jury found that defendant met the criteria for being an MDO. The trial court ordered defendant committed for one year, from May 1, 2006, through May 1, 2007.
Upon reviewing the record, we wondered whether this appeal was moot. We invited the parties to submit further briefs addressing this issue. Having received and considered those briefs, we conclude that the appeal is only partially moot.
Defendant's commitment period (May 1, 2006, through May 1, 2007) has now expired. Even if we were to agree that defendant was improperly committed, we could not undo that commitment. Accordingly, to the extent that defendant's contentions invoke no appellate relief other than reversal of the commitment order, her appeal is moot. ( People v. Merfield (2007) 147 Cal.App.4th 1071, 1074-1075, 54 Cal.Rptr.3d 834; see also In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4, 58 Cal.Rptr.3d 597, 158 P.3d 148 []; People v. Hurtado (2002) 28 Cal.4th 1179, 1186, 124 Cal.Rptr.2d 186, 52 P.3d 116 [].)
Defendant's appeal is also moot to the extent that she is seeking a retrial on the initial commitment petition. For example, she contends that the trial court erred by granting her Faretta motion. If she is correct, her appellate remedy would be reversal and a remand for a retrial of the commitment hearing. While this appeal was pending, however, the People filed a petition to recommit defendant for a further one-year period. (Pen.Code, § 2972, subd. (e).) The People have represented to us that she was in fact recommitted for a period from November 11, 2007, through November 11, 2008, and she was ordered housed as an inpatient at Patton. Because defendant has already been recommitted, there has already been a finding that she is still an MDO; a retrial would be an idle act. In essence, defendant has already received the appellate remedy that she is seeking. We conclude that this contention is moot.
On the other hand, defendant also contends that the trial court erred (in three respects) by revoking her outpatient status and committing her to an inpatient program instead. As we will discuss further in part IV, post, there is a statutory presumption that an MDO who is in an inpatient program when a recommitment petition is filed should be recommitted to an inpatient program, and an MDO who is in an outpatient program when a recommitment petition is filed should be recommitted to an outpatient program. (Pen.Code, § 2972, subds. (c), (e).) Accordingly, if the trial court erroneously committed defendant to an inpatient program, that error could have infected her subsequent recommitment by raising a presumption that she should have been recommitted to an inpatient program rather than an outpatient program. (Cf. People v. Fernandez (1999) 70 Cal.App.4th 117, 134-135, 82 Cal.Rptr.2d 469 [].) At a minimum, on this record, we cannot say that this did not happen. We therefore conclude that these three contentions have not been shown to be moot.
In general, the MDO statutes (Pen.Code, §§ 2960-2978) provide for the treatment of certain convicted criminal defendants who are found to have a...
To continue reading
Request your trial