People v. Mord

• Decision Date: 21 January 1988
• Docket Number: No. F006510,F006510
• Citation: 197 Cal.App.3d 1090,243 Cal.Rptr. 403
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary Lee MORD, Defendant and Appellant.

Page 403

243 Cal.Rptr. 403

197 Cal.App.3d 1090

The PEOPLE, Plaintiff and Respondent, v. Gary Lee MORD, Defendant and Appellant.

No. F006510.

Court of Appeal, Fifth District, California.

Jan. 21, 1988.

Certified For Partial Publication ^*

Frank O. Bell, Jr., State Public Defender, and Richard L. Phillips and Mark L. Christiansen, under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jane N. Kirkland, Edmund D. McMurray and Jane L. Lamborn, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PETTITT, ^** Associate Justice.

On March 6, 1979, appellant, Gary Mord, was arrested for the shooting death of his father.

On April 7, 1979, appellant was admitted to the Atascadero State Hospital for proceedings pursuant to PENAL CODE SECTION 1368¹ (competency proceedings).

On November 30, 1979, appellant was certified competent to stand trial.

On January 23, 1980, an information was filed in the Superior Court of Merced County charging appellant with murder in violation of section 189.

On March 17, 1980, appellant waived his right to a jury trial, and the matter was submitted to the court on the preliminary hearing transcript and doctor's reports along with the agreement that the finding could be no greater than involuntary manslaughter.

On March 21, 1980, the court found appellant guilty of involuntary manslaughter in violation of section 192.2 and also found him not guilty by reason of insanity.

On March 24, 1980, appellant was committed to Atascadero State Hospital pursuant to section 1026, for a maximum of four years. Appellant was given 386 days of custody credits.

Appellant filed an appeal, and while the appeal was pending a jury determined appellant had not recovered his sanity. On appeal the judgment of the trial court was affirmed, and the Merced County Superior Court filed the remittitur on December 24, 1981.

On August 5, 1982, appellant was ordered to be placed with the Merced County Department of Mental Health in a local locked facility, Merced Manor, for 60 days.

On October 7, 1982, appellant was granted a leave of absence on parole to community outpatient treatment pursuant to section 1611, which has since been repealed. The court approved the treatment plan for appellant at the Frontier Halfway House Program, and he was committed to the custody of the Merced County Department of Mental Health for this placement.

On September 8, 1983, Dr. A.J. Rucci, the Medical Director of Atascadero State Hospital, submitted a recommendation that appellant's outpatient status be renewed pursuant to section 1611, subdivision (a).

On September 17, 1984, Gordon Migliore, a clinical social worker at Atascadero State Hospital, submitted a recommendation that appellant's outpatient status be renewed pursuant to section 1611, subdivision (a).

No hearings were held after receipt of these recommendations in 1983 and 1984.

On June 26, 1985, appellant was ordered transferred back to Atascadero State Hospital pending the determination of a request for parole revocation, pursuant to section 1611.

On June 27, 1985, David Jones, Psychiatric and Forensic Coordinator of the Merced County Mental Health Services and appellant's case supervisor, requested that appellant's parole be revoked.

On June 28, 1985, Gordon Migliore, on behalf of himself and Gordon W. Gritter, medical director, informed the court that the Atascadero State Hospital staff concurred with the recommendation that appellant's parole be revoked.

On or about July 1, 1985, appellant was placed in custody, and he was returned to Atascadero State Hospital on July 8, 1985.

No hearing was held before the court revoked appellant's parole.

On July 16, 1985, David Jones wrote to the court recommending that appellant's commitment be extended pursuant to section 1026.5, subdivision (b).

On August 8, 1985, the Merced County District Attorney filed a petition in the Merced County Superior Court alleging that appellant represented a substantial danger of harm to others and asked the court to begin extension proceedings pursuant to section 1026.5, subdivision (b).

On September 6, 1985, appellant filed a motion to dismiss the extension petition, claiming he was due precommitment conduct credits for time he spent in jail and if granted those credits the petition would be rendered untimely. Appellant also based this motion on noncompliance with the outpatient parole extension hearing requirements of section 1611, subdivision (a).

On September 17, 1985, the court denied appellant's request for the precommitment conduct credit. The same day two psychiatrists were appointed to examine appellant and, pursuant to appellant's request, the matter was set for jury trial.

On September 27, 1985, the court denied appellant's motion to dismiss the extension petition.

On November 21, 1985, a jury trial began, and on November 22, 1985, the jury returned its verdict finding that appellant had a mental disease, defect, or disorder, and that by reason of such mental condition he represented a substantial danger of physical harm to others.

On November 26, 1985, appellant filed "Post Trial Points and Authorities," claiming that he was due precommitment conduct credits for the time he spent in the state hospital and if granted those credits the petition would be rendered untimely.

On December 9, 1985, the court denied appellant's motion for conduct credit for time spent in the state hospital. The court also found that an extended commitment was warranted, and ordered that appellant be returned to Atascadero State Hospital.

On December 10, 1985, appellant filed a timely notice of appeal.

On December 16, 1985, the court filed its order that appellant be returned to Atascadero State Hospital for an additional two-year period of confinement dating from December 1, 1985.

FACTS

It is uncontradicted that appellant suffers from chronic paranoid schizophrenia, a disorder that affects and interferes with one's contact with reality, logical thinking, and emotional processes. It was this illness that led to the finding that appellant was not guilty by reason of insanity for the shooting death of his father in 1979.

After this finding, appellant was committed to Atascadero State Hospital and was treated there until August 1982 when he was placed in Merced Manor, a local locked facility. Two months later appellant was released on outpatient parole status, spending approximately the first six months at the Frontier Halfway House before moving to an independent apartment complex. At this time things went well for appellant. He attended school, church, became involved in church activities, and obtained a job. However, the auditory hallucinations, or "voices," that had plagued appellant since a young age began plaguing appellant again in the spring of 1985, and became a factor in the difficulties he began experiencing.

According to David Jones, the Merced County Mental Health Psychiatric and Forensic Coordinator and appellant's parole officer or "case supervisor" since 1984, in the spring of 1985 appellant began to experience considerably more stress. Much of this stress was brought on by the voices, which earlier had caused him to quit school and cease work, but much of it was caused by rumors in the apartment complex that appellant's earlier commitment to Atascadero had been for child molestation.

On June 17, 1985, appellant was involved in his second altercation at the apartment complex. Appellant contacted Mr. Jones, and expressed fear not only over what might happen to him, but fear that he might hurt someone else. At this time appellant agreed to a 72-hour hold in a psychiatric unit pursuant to Welfare and Institutions Code section 5150. At the end of this period appellant had improved, so it was decided to relocate him near his family in Stanislaus County.

Sometime shortly thereafter, appellant, Mr. Jones, and a third man commenced moving appellant's possessions to his sister's home in Modesto. Appellant placed a few items in the trunk of his car, but told the others not to place any items there because of a problem with the hinges. The men used a county pickup truck to move the rest of appellant's things. After reaching the home of appellant's sister, Elena Mord, his personal belongings were unpacked. Appellant gave Elena and her roommate, John McMullen, permission to use his car, but told them not to enter the trunk because of the problem with the jammed hinges. The next day Mr. McMullen experienced a flat tire while driving appellant's car. When he entered the trunk to get the jack, he found not only jammed hinges but a shotgun wrapped in a blanket under the spare tire as well as a knife and box of shells. In the glove compartment, Mr. McMullen found four more shells. Appellant was prohibited from possessing weapons, as the contracts he signed upon parole release acknowledge. Mr. Frank Huble, appellant's original case supervisor, stated that more than once he had discussed this prohibition with appellant.

After Mr. McMullen's discovery, Miss Mord reported it to the mental health authorities because she knew her brother was not supposed to be in possession of weapons. She then received a call from appellant, who wanted to know why she did not speak with him before contacting the authorities. Because she did not contact him first, appellant told Miss Mord that he was going to be compelled to disparage her character in court by relating childhood incidents. According to Miss Mord, she was frightened of appellant because she felt she could no longer trust him. It was also her belief that he was again recording the voices on radio and television that "were talking about him." She also stated her belief that "he was hallucinating as bad as he was just before my father was killed."

Appellant was taken into local custody on or about July 1, 1985, and remained...