People v. Superior Court of Contra Costa Cnty.
| Decision Date | 05 August 2015 |
| Docket Number | A142854. |
| Citation | 239 Cal.App.4th 253 |
| Parties | THE PEOPLE, Real Party in Interest. DURANTE OMAR CALLOWAY, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent |
| Court | California Court of Appeals Court of Appeals |
Elizabeth K. Barker , Assistant Public Defender, and Garrick Byers , Special Assignment Attorney, for Petitioner.
William Kuimelis , Deputy Attorney General, for Respondent.
While facing felony charges related to a July 2005 home-invasion robbery, petitioner Durante Omar Calloway (Calloway) was found incompetent to stand trial in June 2006 pursuant to Penal Code section 1368.1 After years of confinement under Penal Code section 1370.1 — in which attempts to restore him to competency proved unsuccessful — and two one-year civil commitments authorized by section 6500 of the Welfare and Institutions Code (Section 6500), Calloway was no longer subject to confinement as of May 2011. His criminal matter (the 2005 case), however, remained pending. Thereafter, in December 2011, Calloway was charged with an additional offense (the 2011 case), and, in February 2014, a jury found him competent to stand trial in that action.
The Contra Costa District Attorney (the People) then moved to reinstate proceedings in the 2005 case based on Calloway's restoration to competence. After the trial court indicated that it would hold a jury trial on the question of Calloway's current competence pursuant to subdivision (b)(2) of section 1370.1, Calloway filed the instant writ petition challenging the trial court's authority to do so. Specifically, Calloway contends that, at this point, the issue of his competence to stand trial in the 2005 case can only be reconsidered if the trial court receives a certificate of restoration from one of the officials delineated in section 1372.
This litigation thus involves the appropriate vehicle for reconsidering a defendant's mental competence when that defendant has been released from confinement, but the underlying criminal charges have not been dismissed. We agree with Calloway that competency proceedings pursuant to subdivision (b)(2) of section 1370.1 are inappropriate at this juncture in the 2005 case.
However, we further conclude that, under appropriate circumstances, the current competency of an individual in Calloway's situation may properly be tested under the authority of section 1368, itself, without the need for a certificate of restoration.
On August 3, 2005, the People filed a complaint charging Calloway with multiple felonies, including attempted murder (§§ 187, 664); assault with a firearm (§ 245, subd. (a)(2)); first degree residential robbery (§§ 211, 212.5, subd. (a)); first degree residential burglary (§§ 459, 460, subd. (a)); attempted second degree robbery (§§ 211, 212.5, subd. (c), 664); unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); receiving stolen property — motor vehicle (§ 496d); and criminal threats (§ 422). In addition, Calloway was charged with numerous firearm enhancements. According to the People, these crimes carry a maximum sentence of 30 years to life.
Although no trial, or even a preliminary hearing, has ever been held in the 2005 case, the People allege the following in support of the charges filed: On July 28, 2005, Calloway and another individual (Stone) committed an armed home-invasion robbery, looking for money and drugs. Both Calloway and Stone used handguns during the robbery, and, at one point, Calloway fired a shot into the ceiling to impress upon the residents being robbed the seriousness of the situation. Ultimately, Calloway and Stone fled after a friend of the residents intervened. As they were leaving, Stone fired a shot, striking one of the residents. Calloway was arrested a few days later and reportedly gave a "full and frank" confession.
Once the matter proceeded to court, Calloway pled not guilty and denied all of the enhancements. His attorney, however, expressed doubt as to Calloway's competence, and thus the trial court suspended the proceedings and appointed Dr. Carolyn Beebe Walser (Dr. Walser) to evaluate Calloway pursuant to sections 1368 and 1369. In her June 2006 report to the court, Dr. Walser indicated that Calloway (then 20 years old) had extremely low intelligence and severely impaired memory. He was removed from his mother at an early age due to her drug abuse and initially placed with a foster mother who physically abused him. Thereafter, he was moved to a more successful foster placement until he was returned to his mother's care when he was approximately 12 years old. Reportedly, Calloway started using drugs at this time, spent time on the streets, and resided primarily with his girlfriend's family. His girlfriend assisted him with many of the activities of daily living, and Calloway was "significantly dependent" on her. Calloway dropped out of school, where he was a special education student, in the 10th grade. At that time, he started "`hustling,'" selling drugs and using daily. His drugs of choice included cocaine, ecstasy, marijuana, and alcohol. As a teenager, he was in and out of juvenile hall on charges including multiple robberies.
Dr. Walser's evaluation revealed Calloway to be in the mild mental retardation range. He showed severe impairment in abstract thinking and reasoning, visual spatial functioning, sequencing, and language. Testing specific to trial competency determined that Calloway was incompetent to assist his attorney in his own defense. Moreover, his cognitive deficits rendered him impulsive, and he reported that he "went along" with Stone who took him to the scene of the 2005 home-invasion robbery and handed him the gun. Dr. Walser concluded that, not only was Calloway incompetent to stand trial, but he was also "generally incompetent to take care of himself adequately."
On June 30, 2006 — after the parties agreed to submit the matter on Dr. Walser's report — the trial court found Calloway both developmentally disabled and incompetent to stand trial.2 The matter was referred to the East Bay Regional Center, and, over 16 months later in November 2007, Calloway was admitted to the Porterville Developmental Center (the PDC) pursuant to section 1370.1, the statute which governs attempts to restore competency when a defendant is both mentally incompetent and developmentally disabled. (See §§ 1367, subd. (b), 1370.1.) In accordance with that statute, the PDC apparently made 90-day and 150-day reports to the trial court with respect to Calloway's progress towards competency. Although these reports are not included in the record, the parties agree that they indicated that Calloway remained incompetent, but did not state that he was unlikely to recover mental competence in the foreseeable future. (See § 1370.1, subd. (b)(1).) Section 1370.1 also requires that an 18-month competency hearing be held for any defendant who has been committed for 18 months and is still hospitalized. (See § 1370.1, subd. (b)(2).) However, no 18-month hearing was held in this case.
Rather, in June 2009 — approximately three years after the trial court's initial finding of incompetency — the Tulare County District Attorney filed a petition seeking civil commitment of Calloway as a danger to himself or others within the meaning of Welfare and Institutions Code section 6500.3 On June 18, 2009, the Tulare County Superior Court granted the petition, committing Calloway for the statutorily permitted one-year term. (See Welf. & Inst. Code, § 6500, subd. (b)(1)(A).) He remained at the PDC. The Tulare County District Attorney filed a subsequent petition with respect to Calloway in May 2010 pursuant to section 6500. This petition was granted on May 27, 2010, extending Calloway's section 6500 commitment through May 2011.
In the meantime, the trial court, on June 22, 2009, had ordered the PDC to submit a report regarding, among other things, the status of the Tulare County proceedings and Calloway's prospects for achieving competency. In July 2009 and September 2009 reports, PDC staff indicated that Calloway had been unable to achieve trial competency prior to the expiration of his section 1370.1 commitment in July 2009. Further, because "[h]is limited cognitive functioning may impair his ability to retain information consistently," the September 2009 PDC report concluded that it was "unlikely" that Calloway would become competent.4 The report also indicated that Calloway had been successfully civilly committed by Tulare County as of June 2009.
In August 2010, the PDC requested that the court discontinue Calloway's competency training as he was no longer committed pursuant to section 1370.1 and, although he continued to attend the weekly classes, he had still not achieved trial competency. The trial court, without objection, ordered the discontinuance of Calloway's competency training in September 2010. In November 2010, Calloway was transferred to a community placement through the East Bay Regional Center, apparently in connection with the settlement of a civil lawsuit addressing the care, representation, and community placement of developmental center residents such as Calloway. Under this new placement, a caseworker was reportedly assigned to live with Calloway for eight hours each day in a local apartment. As mentioned above, Calloway's civil commitment pursuant to Welfare and Institutions Code section 6500 subsequently expired in May 2011. It was not renewed.
Thereafter, in December 2011, Calloway was charged with several offenses related to illegal possession of a firearm based on the October 28, 2011, discovery of a loaded gun in the vehicle in which he was riding with his caseworker. Calloway was picked up on a warrant with respect to these charges and placed in custody in September 2012. After his attorney expressed doubt as to his trial competency, proceedings in this 2011 case were suspended and Calloway was referred for evaluation...
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