People v. Nolasco

Decision Date29 July 2021
Docket NumberB308627
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JOSE NOLASCO, Defendant and Appellant.
CourtCalifornia Court of Appeals

Order Filed Date 8/23/21

APPEAL from an order of the Superior Court of Los Angeles County No ZM050339-01, James N. Bianco, Judge. Affirmed.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.



It is ordered that the opinion filed herein on July 29, 2021, be modified as follows:

1. On page 16, at the beginning of the fourth full paragraph, after “More recently, McKee, ” add the words “seems to have.” The sentence should now read:

More recently, McKee seems to have applied what purported to be a form of “heightened scrutiny” that appears to be less rigorous than strict scrutiny, but more onerous than rational basis scrutiny. (McKee supra, 47 Cal.4th at pp. 1206-1207, 1210, 1211 &amp fns. 13 & 14.)

2. On page 17, at the end of the same paragraph mentioned above, add the following sentence:

Although McKee ultimately ordered a remand for the trial court to “apply[] the equal protection principles articulated in [In re] Moye [(2009) 22 Cal.3d 457] and related cases discussed in the present opinion” (id. at p. 1209), and Moye applied strict scrutiny (In re Moye, supra, 22 Cal.3d at p. 465), Moye's application of that standard rested on a concession (ibid.), and McKee's discussion of related cases, as noted above, was not clear as to which level of scrutiny to apply.

There is no change in the judgment.

Appellant's petition for rehearing is denied.


As pertinent here, California has two statutory mechanisms for detaining, evaluating, and treating persons who have been declared incompetent to stand trial for a felony that entailed a threat of bodily harm, and who continue to pose a danger to others. What prompts the use of one mechanism over another is the reason why the person is dangerous: When the reason is a “developmental disability, ” the applicable mechanism is civil commitment under Welfare and Institutions Code section 6500;[1] when the reason is a “mental disease, defect, or disorder, ” the applicable mechanism is a so-called Murphy conservatorship under the Lanterman-Petris-Short Act (LPS Act) (§ 5000 et seq.), § 5008, subdivision (h)(1)(B).[2] Each type of commitment may be renewed annually, but the end date for the one-year recommitment period under each mechanism differs: Under section 6500, the one-year period ends on the anniversary of the date of the recommitment order (§ 6500, subd. (b)(1)); for a Murphy conservatorship, the one-year period ends on the anniversary of the date of the initial commitment order (§ 5361). Because, as is common, recommitment orders under section 6500 are not fully litigated (and hence not issued) until after the anniversary of the date of the initial commitment order, the end dates for section 6500 recommitments typically get pushed out further and further with each recommitment. Does this “creep” of the end date under section 6500 violate equal protection vis-à-vis Murphy conservatorships? We conclude that it does not, and accordingly affirm the end date for the section 6500 recommitment in this case.

I. Facts

Since his teen years, Jose Nolasco (Nolasco) has had a mild “developmental disability.” In his early 20s, Nolasco developed a mental illness as well-namely, a “major depressive disorder” with “psychotic features” that includes hearing and seeing hallucinations.

On May 5, 2017, Nolasco whipped a belt at police officers who had arrived on scene to detain him for a possible mental health hold and then tried to get away by running into oncoming traffic. The People charged Nolasco with resisting an executive officer as a felony (Pen. Code, § 69).

The criminal charges were suspended once the trial court referred Nolasco to mental health court to evaluate his competency to stand trial. The mental health court found him incompetent to stand trial.

After two years, Nolsaco had not regained his competency to stand trial, and the criminal court's jurisdiction was terminated.

II. Procedural Background
A. Initial commitment under section 6500

On June 6, 2019, the People petitioned the mental health court to commit Nolasco under section 6500 on the ground that he was a “developmentally disabled person who is dangerous to [him]self or others.”

In support of its petition, the People produced expert testimony regarding Nolasco's mental illness and his developmental disability, along with expert opinion that his developmental disability exacerbated his mental illness by depriving him of “the coping skills” necessary to manage his mental illness. The People also introduced evidence of Nolasco's juvenile adjudications for assault with a deadly weapon and battery as well as his prior arrests for animal cruelty and domestic battery.

Following an evidentiary hearing on August 20, 2019, the mental health court found Nolasco to be an “intellectually or developmentally disabled person who is a danger to [him]self and/or others, ” found that his disability was a “substantial factor in causing serious difficulty in controlling [his] dangerous behavior, ” and found that there was “no alternative to judicial commitment.” The court then committed defendant to the custody of the State for one year.

B. Recommitment proceedings

On August 14, 2020, the People petitioned the mental health court to recommit Nolasco for an additional year.

At an evidentiary hearing on October 13, 2020, the People produced expert testimony that the “psychiatric regime” Nolasco received while committed had resulted in “significant improvement” of his mental illness, but that his developmental disability still rendered him [un]able to cope with some of his psychotic symptoms” and meant he still posed a danger to himself or others. Specifically, Nolasco had struck a fellow conservatee in July 2020 because Nolsaco got upset when the conservatee asked Nolasco to come over to him, and Nolasco would pick his nose and skin until he bled.

At the end of the hearing, the mental health court found that Nolasco continued to pose a danger to others and ordered him recommitted to the “least restrictive placement” for one year starting on October 13, 2020, and ending on October 13, 2021.

C. Appeal

Nolasco filed this timely appeal.


Nolasco argues that the mental health court's recommitment order under section 6500 violates equal protection because it ends on the one-year anniversary of the date of the recommitment order (October 13). Had he been recommitted in a Murphy conservatorship, Nolasco continues, the end date for his recommitment would have been nearly two months earlier on the anniversary of the date of his initial commitment (August 20). Because section 6500 commitments and Murphy conservatorships both apply to persons who are found incompetent to stand trial and who pose a danger to others Nolasco concludes, the differential treatment in the end dates for recommitment orders violates equal protection. We independently examine whether statutory classifications offend equal protection, particularly where, as here, they rest on undisputed facts. (California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 208; Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912.) As the People point out, Nolasco's challenge is forfeited because he did not object on equal protection grounds before the mental health court.[3] Nevertheless, we exercise our discretion to address Nolasco's challenge because it presents an important question of public concern. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; People v. Superior Court (1988)200 Cal.App.3d 491, 497 (Clements).) In doing so, any claim that his counsel's forfeiture of the issue constitutes ineffective assistance is obviated.

I. Pertinent Law on Involuntary Commitment

California has several mechanisms for the involuntary commitment of individuals deemed to present a danger to themselves or others. Several of these mechanisms apply to individuals who suffer from mental illness and who have been previously convicted of crimes, such as individuals who qualify as mentally disordered offenders (Pen. Code, § 2960 et seq.), individuals who meet the definition of a sexually violent predator (Welf. & Inst. Code, § 6600 et seq.), and individuals found not guilty by reason of insanity (Pen. Code, § 1026 et seq.). The two mechanisms at issue here-section 6500 commitments and Murphy conservatorships-differ from these others because they apply to individuals who have been found incompetent to stand trial for assaultive felonies but have yet to be convicted of them. The specific contours of these preconviction mechanisms are discussed next.

A. Section 6500 commitments

An individual may be civilly committed under section 6500 only if the People prove that (1) he has a “developmental disability” (§ 6500, subd. (b)(1)), (2) he poses a “danger to [him]self or others, ” which can be established by a prior “finding of incompetence to stand trial” during a prosecution for several felonies including any “felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person” (id., subds. (a)(1) & (b)(1)), and (3) his developmental disability played a “substantial factor” in “causing him... serious difficulty in controlling his... dangerous behavior” ...

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