State v. Zamora-Skaar

CourtCourt of Appeals of Oregon
Citation308 Or.App. 337,480 P.3d 1034
Docket NumberA171855
Parties STATE of Oregon, Plaintiff-Appellant, v. Carlos E. ZAMORA-SKAAR, aka Carlos Enrique Zamora-Skaar, Defendant-Respondent.
Decision Date30 December 2020

Carson L. Whitehead, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Laura Graser, Portland, argued the cause and filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

When a trial court finds that a defendant in a criminal case "lacks fitness to proceed," the criminal proceeding must be suspended. ORS 161.370(2)(a). The court then determines what will happen next. One option available to the court is committing the defendant to the Oregon State Hospital (OSH) for treatment so the defendant may gain or regain fitness to proceed. ORS 161.370(2)(a)(A), (5), (6).1 Under the terms of an injunction entered by the United States District Court for the District of Oregon, and upheld by the Ninth Circuit Court of Appeals, OSH must admit a defendant to the hospital no more than seven days after a trial court has issued an ORS 161.370 commitment order (sometimes called a ".370 order") based on the defendant's unfitness. Oregon Advocacy Center v. Mink , 322 F.3d 1101, 1105, 1122 n. 13 (9th Cir. 2003).

In this case, the trial court deemed defendant unfit to proceed. Accordingly, the court entered a .370 order committing defendant to OSH and requiring his transport to the hospital within seven days. It is undisputed that OSH was aware of the order and did not comply with it. When defendant remained in jail beyond the seven-day compliance period, defendant initiated remedial contempt proceedings against OSH and the Oregon Health Authority (OHA), which operates OSH.2 OSH defended against the contempt allegation based on an affirmative defense of inability to comply with the seven-day timeline, given its view that admitting more patients to OSH under .370 orders would compromise patient treatment and put patients and OSH staff at risk. See ORS 33.055(10) ("Inability to comply with an order of the court is an affirmative defense."). The trial court found OSH in contempt and ordered it to pay remedial sanctions of $100 per day that defendant remained in jail in violation of the .370 order.

On appeal, OSH contends that the trial court incorrectly applied the law when considering OSH's affirmative defense of inability to comply. OSH also argues that the trial court made factual findings that the record does not support. For the reasons set out below, we conclude that OSH has not established that the trial court committed reversible error. Accordingly, we affirm.

I. BACKGROUND: ORS 161.370 ORDERS AND MINK

For many years, it has been the law in Oregon that criminal proceedings must be suspended when the charged defendant is found to lack fitness to proceed, that is, when the defendant is found unable to "aid and assist" in the defense. See, e.g. , ORS 161.370(2) (2001) (with limited exceptions, when a court "determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended"). See generally Snyder v. Amsberry , 306 Or. App. 439, 449, 474 P.3d 417 (2020) ("The procedure[ ] for a determination of a criminal defendant's fitness to proceed, also known as the ability to ‘aid and assist’ in one's defense, is defined by statute."). And, for many years, a court that finds a defendant unfit to proceed has had the option of committing the defendant to OSH. See, e.g. , ORS 161.370(2) (2001) (after making an unfitness determination, "the court shall commit the defendant to the custody of [the superintendent of a designated state hospital] or shall release the defendant on supervision for so long as such unfitness shall endure"). The purpose of admitting a defendant to OSH under ORS 161.370 is—and historically has been—to provide the defendant with treatment that will allow the defendant to become fit to proceed to trial. See, e.g. , ORS 161.370(6)(a) (referencing "treatment designed for the purpose of enabling the defendant to gain or regain capacity" to stand trial); ORS 161.370(5) (2001) (same). See also Mink , 322 F.3d at 1105-06 (an unfitness-to-proceed determination "triggers a process designed to evaluate, treat and restore the defendant's mental health so that judicial proceedings may resume").

Orders issued under ORS 161.370 are not the only types of orders that trial courts may issue in association with "aid and assist" proceedings. A trial court that "has reason to doubt the defendant's fitness to proceed by reason of incapacity" (but has not yet been persuaded to enter a .370 order) can enter an order under ORS 161.365 (sometimes called a ".365 order") requiring psychiatric or psychological examination of the defendant's fitness. ORS 161.365 (1)(a)(A). The court has the option of committing the defendant to OSH for that examination. ORS 161.365(1)(a)(B).

In 2002, federal litigation was initiated against OSH in which the plaintiffs alleged that OSH "was violating mentally incapacitated [criminal] defendants' due process rights by unreasonably delaying such defendants' transfer from county jails to OSH for treatment." Mink , 322 F.3d at 1105. The district court agreed, finding that defendants were spending an average of about a month in county jails—and, in some instances, a few months—between a determination of their unfitness to proceed under ORS 161.370 (a finding of "incapacity") and when they were admitted to OSH for treatment. Id . at 1106. The court also found that such defendants suffered harm from the extended jail stays, sometimes including rapid decompensation, given the circumstances at the jails and the jails' inability "to provide treatment designed to restore a person found unfit to proceed to competency." Id . at 1106-07. OSH, in contrast, was able to provide the necessary treatment. Id . at 1108. The court concluded that OSH was violating incapacitated defendants' due process rights "by unreasonably detaining them in county jails that lack the facilities to treat and restore the defendants' mental health," and it "entered an injunction requiring OSH to admit mentally incapacitated defendants within seven days of the judicial finding of their incapacity to proceed to trial." Id . at 1107.

On appeal, the Ninth Circuit upheld the district court's injunction, noting "that by statute OSH is solely responsible for the timely treatment of incapacitated criminal defendants so that they may become competent to stand trial." Id . at 1119-20. The court also was "mindful of the undisputed harms that incapacitated criminal defendants suffer when they spend weeks or months in jail waiting for transfer to OSH":

"These harms include the following: Although jails can sometimes provide treatment to stabilize a patient, they cannot restore a patient to competency. Thus, incarceration in a county jail delays an incapacitated criminal defendant's possible return to competency. The disciplinary system that jails use to control inmates is ineffective for, and possibly harmful to, incapacitated criminal defendants. Because of their unpredictable or disruptive behavior, they are often locked in their cells for 22 to 23 hours a day, which further exacerbates their mental illness. Incapacitated criminal defendants have a high risk of suicide, and the longer they are deprived of treatment, the greater the likelihood they will decompensate and suffer unduly."

Id . at 1120.

In considering whether OSH was violating the due process rights of incapacitated defendants by delaying their admission to the state hospital, the Ninth Circuit held that such defendants, not yet convicted of any crime, had liberty interests both in freedom from incarceration and "in receiving restorative treatment." Id . at 1121. The court also observed that OSH had not established any "legitimate state interest in keeping mentally incapacitated criminal defendants locked up in county jails for weeks or months." Id . The court concluded that OSH violated the substantive due process rights of such defendants when it "refuse[d] to admit them in a timely manner." Id . at 1121-22. The Ninth Circuit therefore upheld the district court's injunction "requiring OSH to admit mentally incapacitated criminal defendants within seven days of a judicial finding of incapacitation." Id . at 1123.3

At the contempt hearing in this case, OSH acknowledged the continuing existence and validity of the Mink injunction and its requirement (reflected in the .370 order in this case) that criminal defendants be admitted to OSH within seven days of an unfitness-to-proceed determination. OSH also acknowledged that it had not sought to modify the injunction based on its claimed inability to accommodate the increasing numbers of such defendants that courts were committing to OSH under ORS 161.370.

II. THE CRIMINAL CASE AND CONTEMPT PROCEEDING

Although not all the procedural history of this case is pertinent to the precise questions before us on appeal, we set out that history in some detail because it provides context for the issues that the parties raise. Defendant was charged with burglary and two counts of criminal mischief in December 2018. His lawyer sought a fitness-to-proceed hearing, asserting that defendant appeared unable to understand even "general [tenets] of reality," such as who he was or why he was in jail. In January 2019, the trial court entered a .365 order committing defendant to OSH for purposes of observation and examination. Defendant nonetheless remained in jail and, a week after the .365 order was entered, a social worker reported that defendant's mental health appeared to be deteriorating. A month later, defendant requested a status hearing because he still had not been transported to OSH, he remained in jail,...

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    ...instructed itself incorrectly as to the law, and, if so, whether the erroneous self-instruction was harmless. State v. Zamora-Skaar, 308 Or. App. 337, 353, 480 P.3d 1034 (2020). In this case, that question reduces to whether the trial court properly construed ORS 646.608(1)(b) and (1)(e).49......
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    ...applied an incorrect legal standard, we must next determine whether 7 [319 Or.App. 800] the error was harmless. State v. Zamora-Skaar, 308 Or.App. 337, 353, 480 P.3d 1034 (2020). A court's erroneous application of a legal standard is harmless if "there is little likelihood that the erroneou......
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