People v. Brewer

Decision Date13 March 2015
Docket NumberC075255
Citation185 Cal.Rptr.3d 104,235 Cal.App.4th 122
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff, v. Joseph BREWER, Defendant and Respondent; State Department of State Hospitals, Objector and Appellant. [And 16 Other Cases

Kamala D. Harris, Attorney General, Julie Weng–Gutierrez, Senior Assistant Attorney General, Ismael A. Castro and Lisa A. Tillman, Deputy Attorneys General, for Objector and Appellant.

Paulino Duran, Public Defender, Steve Lewis, Chief Assistant Public Defender, and Arthur L. Bowie, Supervising Assistant Public Defender, for Defendant and Respondent.



When a criminal defendant is found mentally incompetent to stand trial (IST), the trial court orders such defendant to be delivered by the sheriff to a state hospital or other treatment facility for treatment to restore the defendant to mental competence, or places the defendant on outpatient status. (Pen.Code, § 1370, subd. (a)(1)(B)(i).)1

In 2005, the Sacramento County Public Defender (the Public Defender) filed a petition for writ of habeas corpus on behalf of David Osburn and others, contending the Sacramento County Sheriff (the Sheriff) had unlawfully detained petitioners at the county jail by failing to transfer them on a timely basis to a state hospital for restorative treatment. After several rounds of briefing, and an evidentiary hearing, the trial court issued an order (the Osburn Order) commanding that the Sheriff deliver to Napa State Hospital (NSH) all criminal defendants ordered committed to NSH pursuant to section 1370 within seven days of the commitment. The Osburn Order was amended to require the prisoners' delivery within seven days of the commitment or as soon as the packet of documents required under section 1370 (the section 1370 packet) was available. There was no appeal from the Osburn Order.

In 2013, the Public Defender sought an order to show cause for contempt, alleging the Sheriff had violated the Osburn Order by holding several defendants who had been found IST at the jail rather than timely transferring them to NSH. In response, the State Department of State Hospitals (the Department) moved to set aside the Osburn Order. The trial court denied the motion but modified the Osburn Order to extend the seven–day deadline to 14 days. The Department appealed from this 2013 order “denying [the Department's] motion to set aside the transfer deadline established by this Court in the Osburn Order.

On appeal, the Department contends (1) the trial court acted in excess of its jurisdiction, and violated the separation of powers doctrine, by inserting a 14–day deadline into section 1370 and thereby undermining the Department's duties; (2) the original Osburn Order and the 2013 modification were contrary to established habeas corpus procedures and constituted improperly promulgated local rules; and (3) the Osburn Order should be set aside due to changes in the law and because it results in unequal treatment of defendants found IST in different counties.

We view the Osburn Order as an injunction (as did the trial court) and the Department's 2013 motion to vacate as a motion to dissolve the injunction. Such a motion can be granted upon a showing of a change in the facts, a change in the law, or because the interests of justice so require. (Code Civ. Proc., § 533.) During the pendency of this appeal, there was a material change in the law. Recent amendments to section 1370 and other statutes affect various aspects of the Osburn Order. Accordingly, we remand the matter to the trial court to reconsider its ruling on the Department's motion in light of the change in the law, and to conduct a new evidentiary hearing. We dissolve the Osburn Order pending reconsideration of the ruling.

The Statutory Scheme for and the Constitutional Rights of IST Defendants

If at any time before judgment in a criminal trial a doubt arises as to the defendant's mental competence, the court shall order a hearing into the present mental competence of the defendant. (§ 1368.) If the defendant is found mentally competent, the criminal process shall resume. (§ 1370, subd. (a)(1)(A).) “If the defendant is found mentally incompetent, the trial, the hearing on the alleged violation, or the judgment shall be suspended until the person becomes mentally competent.” (Id. , subd. (a)(1)(B).)

“In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital,” or other approved available treatment facility that “will promote the defendant's speedy restoration to mental competence.” (§ 1370, subd. (a)(1)(B)(i).) Alternatively, the court may order the defendant placed on outpatient status. (Ibid. ) Before a court makes a commitment order to a state hospital, the court shall order the community program director, or his designee, to evaluate the defendant and submit to the court, within 15 judicial days, a written recommendation as to whether the defendant should be committed to a state hospital or other treatment facility or required to undergo outpatient treatment. (§ 1370, subd. (a)(2).)

The court is also required to provide the section 1370 packet to the treatment facility. These documents include the commitment order, a computation of defendant's maximum term of commitment and amount of credit for time served, criminal history information, arrest reports, any court-ordered psychiatric examination or evaluation reports, the community program director's placement recommendation, records of any finding of incompetence arising out of a complaint charging a felony specified in section 290, and medical records.2 (§ 1370, subd. (a)(3).)

Once the defendant has been admitted to a state hospital, a progress report on his restoration to competence is required. “Within 90 days of a commitment ..., the medical director of the state hospital or other treatment facility to which the defendant is confined shall make a written report to the court and the community program director for the county or region of commitment, or a designee, concerning the defendant's progress toward recovery of mental competence....” (§ 1370, subd. (b)(1).)

In Jackson v. Indiana (1972) 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435, 451 (Jackson ), the United States Supreme Court held “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. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” (Fn. omitted.)

The next year, our Supreme Court reviewed “the constitutionality of the procedures ( [§ 1367 et seq.] ) for the commitment to, and release from, state hospital of defendants in criminal cases who have been found to lack sufficient mental competence to stand trial.” (In re Davis (1973) 8 Cal.3d 798, 801, [106 Cal.Rptr. 178, 505 P.2d 1018], fn. omitted (Davis ).) The court concluded that petitioners' initial commitments were proper, but “acknowledge [d] that some provision must be made to assure that petitioners do not face an indefinite commitment without regard to the likelihood that they will eventually regain their competence, for such an indefinite commitment has been held to offend constitutional principles of equal protection and due process. [Citation.] [¶] Accordingly, we adopt the rule of the Jacksoncase that no person charged with a criminal offense and committed to a state hospital solely on account of his incapacity to proceed to trial may be so confined more than a reasonable period of time necessary to determine whether there is a substantial likelihood that he will recover that capacity in the foreseeable future. Unless such a showing of probable recovery is made within this period, defendant must either be released or recommitted under alternative commitment procedures.” (Ibid. )

Following Davis, section 1370 was amended to provide for a maximum period of confinement of three years for defendants found IST. (Stats.1974, ch. 1511, § 6, p. 3319.) Section 1370, subdivision (c)(1), provides as follows: “At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or mandatory supervision, whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall 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.”

In In re Mille (2010) 182 Cal.App.4th 635, (Mille ), another appellate court addressed the claim that an 84–day delay in transferring an IST defendant from the county jail to the state hospital was unlawful. The court focused on the requirement in section 1370, subdivision (b)(1), that the medical director of the state hospital report to the court within 90 days of commitment on the defendant's progress toward recovery of mental competence. (Mille, at p. 645, 105 Cal.Rptr.3d 859.) “When a defendant arrives at Patton [State Hospital] on day 84 of the 90–day period, there is no meaningful opportunity for the defendant to make progress toward recovery of mental competence, let alone for the medical director of the hospital to make a written report to ...

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