Filed 4/28/17
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                    DIVISION THREE


MARC ANTHONY-TOISAAN CARR,
        Petitioner,
v.
THE SUPERIOR COURT OF CONTRA                      A147957
COSTA COUNTY,
                                                  (Contra Costa County
        Respondent;                               Super. Ct. No. 2-319321-6)
THE DEPARTMENT OF
DEVELOPMENTAL SERVICES et al.,
        Real Parties in Interest.


        Petitioner Marc Anthony-Toisaan Carr seeks a writ of mandate or prohibition
directing the respondent superior court to vacate his competency trial, and to instead
order that he be placed in either the Porterville Developmental Center or Patton State
Hospital for evaluation and treatment. Because the statutory scheme surrounding
competency determinations envisions the speedy attainment of mental competence and
vests responsibility for competency certification in state mental health officials, Carr’s
competency evaluation and certification by the Department of Developmental Services
and the Department of State Hospitals while he was awaiting transfer for treatment at
Porterville or Patton was permissible. The declaration and certificate of competency filed
in the superior court March 17, 2016 was adequate to initiate proceedings to determine
whether his competency was restored. The petition for writ of mandate or prohibition is
denied.




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                                     BACKGROUND
       While Carr was in county jail awaiting trial on charges that included murder with
special circumstances, kidnapping and attempted murder of a peace officer, the court
determined he was incompetent to stand trial and referred him to the Regional Center of
the East Bay for a placement recommendation. Based upon the Regional Center’s report,
on August 18, 2015, the court committed Carr to the Porterville Developmental Center,
the only secure treatment facility in California for individuals with intellectual
disabilities. An assessment by the Department of Developmental Services diagnosed
Carr with schizophrenia and mild intellectual disability.
       When Carr was not yet transferred to Porterville by October, the court ordered his
transfer within 21 days, and required the directors of Porterville and the Regional Center
to show cause before the court if he was not transferred. On November 3, 2015, the court
heard the order to show cause. Shortly before the hearing, the district attorney and Carr’s
counsel were informed by state officials that Carr was not suitable for placement at
Porterville because he required involuntary medication. The court issued an involuntary
medication order, and put the hearing over for 30 days to allow the state to determine
Carr’s medically appropriate placement.
       When the case was before the court 30 days later, the state sought to have Carr
evaluated by a psychologist from the Department of Developmental Services and a
psychiatrist from the Department of State Hospitals. At the time, Carr was on the
institution waiting list and had been waiting four months for a transfer. His wait was not
as long as the year the court had observed in some cases, and the court noted the state
was not willfully disregarding its placement order.
       The court determined that in light of the conflicting opinions on whether Carr was
feigning symptoms when he was originally adjudicated incompetent to stand trial, a
further evaluation would not be prejudicial as he would remain on the wait list and it
would not further delay his appropriate placement. So, the court permitted a further
evaluation.



                                              2
       When the medical director of the Department of State Hospitals reviewed file
material pertaining to Carr obtained from the Department of Developmental Services, she
formed an opinion that he was feigning his incompetence to stand trial and that his
malingering coupled with his potential for violence made him unsuitable for treatment at
a state hospital. She discussed her opinion with a psychologist at the Department of
Developmental Services, and arranged for Carr to be evaluated by a psychiatrist with a
formal forensic background. Dr. Benjamin Goldberg, with the Department of Psychiatry
and Behavioral Services at the University of California at Davis, performed the
evaluation.
       Following his initial evaluation, it was Dr. Goldberg’s opinion to a reasonable
medical certainty that Carr met the clinical standards for malingering, antisocial
personality disorder and borderline intellectual functioning. He did not believe Carr met
the criteria for a serious psychotic disorder, and at the time of the evaluation Carr had
adequate functional ability in memory, executive functioning and planning, and
independent living. It was Dr. Goldberg’s opinion that due to his lack of psychiatric
symptoms and history of predatory behavior, Carr’s most appropriate placement was in a
secure correctional facility.
       But Dr. Goldberg’s initial assessment was incomplete. He was not provided
medical records from the county of Contra Costa Health Services Mental Health Division
for any treatment provided Carr after March 2009 or records of his treatment while in the
county jail. The Department of Developmental Services sought a court order requiring
production of these county medical records.
       Carr opposed the application on the basis that the Regional Center made a
placement recommendation for the Porterville Developmental Center or Patton State
Hospital in accord with Penal Code section 1370.1, subdivision (a)(1)(B), the statutory
directive governing placement of individuals with developmental disabilities who are
found incompetent to stand trial. Carr’s attorney argued that once the placement
recommendation was made, Dr. Goldberg had no authority to evaluate Carr for any
purpose other than to determine which institution was most suitable for his placement.


                                              3
The Department of Developmental Services responded that in the process of considering
Carr’s possible placement, Dr. Goldberg came to the conclusion that he was malingering
and was not suitable for placement in any state hospital setting. So, the Department of
State Hospitals was seeking further records and wished to evaluate Carr for his
competency to stand trial in light of Dr. Goldberg’s assessment and the concurrence of
the Department of Developmental Services and Department of State Hospitals that Carr
was too dangerous to be housed at either of their facilities. Carr’s counsel argued that
because he was found incompetent to stand trial, the statutory scheme required that he be
placed in a competency restoration treatment program before he could be further assessed
or the court could again consider whether he was competent.
       The court authorized Dr. Goldberg to evaluate Carr to determine his possible
competence to stand trial and authorized the production of his county mental health
records. Thereafter, Carr moved to prevent the competency evaluation, and the court
ordered that it go forward. The competency evaluation occurred and Dr. Goldberg’s
report was provided to the court in March 2016. It was Dr. Goldberg’s opinion that Carr
was malingering, had an antisocial personality disorder and borderline intellectual
functioning. Dr. Goldberg concluded to a reasonable medical certainty that Carr was able
to understand the nature of his criminal proceedings and assist his attorney in the conduct
of his defense in a rational manner. Dr. Goldberg also filed a declaration and certificate
of competency. The court discharged the order to show cause directed to the Department
of Developmental Services and scheduled a competency trial for August 2016.
       Carr challenged the decision to hold the competency trial by a writ of
mandate/prohibition filed in this court. We denied the petition. Carr thereafter filed a
petition for review in the Supreme Court. The court granted review and transferred the
case back to us with directions that we vacate the order denying Carr’s writ petition and
issue an order directing the superior court to show cause why the relief sought in the
petition should not be granted. We did so, and the matter is now fully briefed.




                                             4
                                        DISCUSSION
       A person may not be tried for a public offense while mentally incompetent due to
a mental disorder or developmental disability. (Pen. Code, § 1367, subd. (a).)1 If a
person is found mentally incompetent and has a developmental disability, the criminal
proceedings are suspended until competency has been restored. (§ 1370.1, subd.
(a)(1)(B).) Until the person becomes mentally competent, section 1370.1 requires that
the court “shall consider a recommendation for placement, which recommendation shall
be made to the court by the director of a regional center or designee. In the meantime,
the court shall order that the mentally incompetent defendant be delivered by the sheriff
or other person designated by the court to a state hospital or developmental center for the
care and treatment of the developmentally disabled or any other available residential
facility approved by the director of a regional center for the developmentally disabled
established under Division 4.5 (commencing with Section 4500) of the Welfare and
Institutions Code as will promote the defendant’s speedy attainment of mental
competence, or be placed on outpatient status pursuant to the provisions of Section
1370.4 and Title 15 (commencing with Section 1600).” (§1370.1, subd. (a)(1)(B)(i).)2
Thus, the statutory scheme envisions that until a defendant with a developmental
disability attains competency, he or she will be housed in either a developmental center
or state hospital for treatment. (In re Willams (2014) 228 Cal.App.4th 989, 1002, fn.7
(Williams).) But the statute is clear that the purpose of such treatment is to “promote the
speedy attainment of mental competence.” (§ 1370.1, subd. (a)(1)(B)(i).)
       The crux of Carr’s legal challenge to the competency proceedings turns on the
application and import of the directive in Penal Code section 1370.1 that a
developmentally disabled defendant who is found incompetent to stand trial be

       1
           Unless stated otherwise, further statutory references are to the Penal Code.
       2
        Section 1370.1 also has specific placement considerations in certain
circumstances when a defendant has been charged with an offense specified in Section
290. While Carr has been charged with murder committed during an attempted rape, no
one has argued these provisions apply in his case. (§ 1370.1, subd. (a)(1)(B)(ii) and (iii).)

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transferred to a state hospital or developmental center for care and treatment. (§ 1370.1,
subd. (a)(1)(B)(i).) According to Carr, once such a defendant has been assessed by the
Department of Developmental Services and receives a recommendation for placement,
the defendant’s competence to stand trial may not be reassessed until he or she has been
transferred to such an institution and provided care and treatment designed to restore
competency.
       Carr’s petition for mandate is directed entirely at the trial court’s orders that
permitted Dr. Goldberg to conduct a competency evaluation while Carr was awaiting
placement in a state hospital and the competency hearing set following Dr. Goldberg’s
certification that Carr was competent. He is not seeking an order directing his placement
at a state developmental center or hospital due to his lengthy wait for placement.
        Indeed, the case law surrounding delay in bringing a defendant to trial due to
incompetence has historically focused on the unfairness and possible harm that results
from prolonged or indefinite commitment and the state’s interest in bringing a defendant
to trial with minimal delay. (See Jackson v. Indiana (1972) 406 U.S. 715; In re Davis
(1973) 8 Cal.3d 798.) Our legislature responded to these considerations of fairness and
expediency in 1974 to eliminate commitment in situations where there is no likelihood a
defendant may attain competency and to provide specific time limits for ongoing
competency assessment. (Williams, supra, 228 Cal.App.4th at p. 1013.)
       Section 1370.1, subdivision (b)(1) provides: “Within 90 days of admission of a
person committed pursuant to subdivision (a), the executive director or designee of the
state hospital, developmental center, or other facility to which the defendant is
committed, or the outpatient supervisor where the defendant is placed on outpatient
status, shall make a written report to the committing court and the regional center director
or a designee concerning the defendant’s progress toward becoming mentally competent.
If the defendant has not become mentally competent, but the report discloses a substantial
likelihood the defendant will become mentally competent within the next 90 days, the
court may order that the defendant shall remain in the state hospital, developmental
center, or other facility or on outpatient status for that period of time. Within 150 days of


                                              6
an admission made pursuant to subdivision (a) or if the defendant becomes mentally
competent, the executive director or designee of the hospital or developmental center or
person in charge of the facility or the outpatient supervisor shall report to the court and
the regional center director or his or her designee regarding the defendant’s progress
toward becoming mentally competent. The court shall provide to the prosecutor and
defense counsel copies of all reports under this section. If the report indicates that there
is no substantial likelihood that the defendant has become mentally competent, the
committing court shall order the defendant to be returned to the court for proceedings
pursuant to paragraph (2) of subdivision (c).”3
       “The maximum commitment under section 1370.1 is three years.” (Williams,
supra, 228 Cal.App.4th at p. 1013.) But while the statutory scheme contains an outer
limit for a commitment to restore competency, the law is silent on the minimum amount
of time a defendant must be referred for treatment. Instead, the statute requires that when
the medical director of the state hospital determines a defendant has regained
competence, “the director shall immediately certify that fact to the court.” (§ 1372, subd.
(a)(1).) The sheriff is then required to immediately redeliver the defendant to court
without a further court order. (§ 1372, subd. (a)(2) & (3).) Moreover, a defendant is to
be returned to court if it is determined that no treatment for the defendant’s mental
impairment is being conducted. (§ 1370.1, subd. (b)(3).)
       Carr argues that there is no legal authority that allows the Department of State
Hospitals to certify a defendant’s restoration to competence without first placing the
defendant in a treatment facility, thereafter providing treatment and conducting periodic
evaluations. We disagree. The statute is geared to the “speedy attainment of mental
competence.” (§ 1370.1, subd. (a)(1)(B)(i).) It guards against the unduly prolonged
commitment of a defendant in circumstances when treatment is not provided or
competence will not likely be restored and contains an outer limit for the length of any

       3
        Paragraph (2) of subdivision (c) refers to procedures for civil commitment under
the Lanterman-Petris Short Act or commitment to the Department of Developmental
Services under Welfare and Institutions Code section 6500 et seq.

                                              7
commitment. (§ 1370.1, subd. (b)(1), (c)(1)(A).) Moreover, it vests the authority in state
clinicians without restriction to “immediately certify” any determination that a defendant
has regained mental competence. (§ 1372, subd. (a)(1).)
       We understand the frustration of counsel and a defendant who must endure a
prolonged wait for placement in a suitable treatment program. Indeed, we share the
concerns expressed by our colleagues over what appears to be “a statewide problem in
finding adequate housing for persons declared mentally incompetent to stand trial,
especially those who are developmentally disabled.” (Williams, supra, 228 Cal.App.4th
at p. 1018.) But a concern over extended delay in placing defendants in suitable facilities
for treatment does not warrant usurping the statutory authority vested in clinicians to
certify a defendant as competent when their good faith medical judgment says that is the
case. In fact, requiring defendants to be placed in state hospitals when the state officials
and mental health professionals in charge of their care honestly conclude they are
malingering will exacerbate the delays faced by defendants truly in need of restorative
treatment.
       Here, although Carr claims the certification of his competency was employed as a
subterfuge to circumvent the state’s obligation to place him in a state hospital, nothing in
the record suggests the mental health clinicians evaluating his status on behalf of the
Department of Developmental Services employed anything other than their best clinical
judgment. If that is not so, Carr has the opportunity to demonstrate before the trial court
in the upcoming competency trial that his diagnosis of malingering was a sham done to
circumvent the court’s placement order. But the mere fact that the court ordered his
placement in a treatment facility does not preclude state hospital officials from certifying
his competence to the court when they sincerely conclude that he was never incompetent
in the first place. (E.g., People v. Superior Court (1935) 4 Cal.2d 136, 143–144,
overruled in part on other grounds by People v. Gilbert (1944) 25 Cal.2d 422.)
                                      DISPOSITION
       The petition for writ of mandate and prohibition is denied.



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                                _________________________
                                Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




                            9
Carr v. Superior Court, A147957




                                  10
Trial Court:                                   Contra Costa County Superior Court



Trial Judge:                                   Patricia M. Scanlon


Counsel:

Diana Alicia Garrido, Department of the Public Defender; Robin Lipetzky, Contra Costa
County Public Defender for Petitioner.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney
General, Susan M. Carson, Supervising Deputy Attorney General, Gregory D. Brown,
Deputy Attorney General for Real Parties in Interest.




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