Filed 5/24/16

                            CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



PATRICK LOWELL JACKSON,

        Petitioner,                                 E064010

v.                                                  (Super.Ct.No. INF1500950)

THE SUPERIOR COURT OF                               OPINION
RIVERSIDE COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDINGS; petition for writ of mandate/prohibition. Mark E.

Johnson, Judge. Petition denied.

        Steven L. Harmon, Public Defender, Laura Arnold, Deputy Public Defender, for

Petitioner.

        No appearance for Respondent.

        Michael A. Hestrin, District Attorney, Natalie M. Lough and Matt Reilly, Deputy

District Attorneys, for Real Party in Interest.


                                              1
       In this matter we have reviewed the petition, the informal response by real party in

interest, and the reply. Having determined that petitioner may have established a right to

relief, we set an order to show cause. We subsequently reviewed the return and traverse.

For the reasons we set forth post, we conclude that, at least on the record presently before

us, we must deny the petition. Nonetheless, and as we explain in more detail post, we

publish this opinion to urge the Legislature to amend Penal Code section 1370,

subdivision (c)(2),1 in ways that provide more clarity to trial courts faced with a

defendant who has been committed as incompetent for the maximum period allowed by

law but who does not meet the criteria for the type of conservatorship the statute

describes.


                    FACTUAL AND PROCEDURAL BACKGROUND

       On May 7, 2008, real party in interest (the People) charged petitioner with a

violation of section 288, subdivision (b), under case No. INF061963 based on conduct

that allegedly occurred on May 3, 2008. On July 24, 2008, the trial court declared doubts

as to petitioner’s competency to stand trial in case No. INF061963. On February 3, 2010,

the trial court found petitioner to be incompetent to stand trial.2 Petitioner was ordered




       1   Unless otherwise specified, all statutory references are to the Penal Code.

       2 The trial court again found petitioner incompetent to stand trial in case
No. INF061963 on December 7, 2011. It appears this occurred after petitioner was
deemed competent and pled guilty to a violation of Penal Code section 288,
subdivision (a), in a different county.


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committed to Patton State Hospital on March 29, 2012, in conjunction with case

No. INF061963.

       On May 18, 2015, the trial court in case No. INF061963 ordered petitioner’s

release from custody. It found petitioner had reached the maximum time of commitment

authorized by law. (See § 1370, subd. (c)(1) [defendant who has not regained

competency must be returned to court no later than, as relevant here, “the end of three

years from the date of commitment”].)

       The People then secured an indictment and initiated case No. INF1500950 against

petitioner on May 21, 2015. The counts alleged in the indictment also relate to

petitioner’s alleged conduct on May 3, 2008. In case No. INF1500950, the trial court

declared doubts regarding petitioner’s competency to stand trial on June 2, 2015.

However, the record before us does not demonstrate that a determination regarding

petitioner’s competence to stand trial has been made in connection with case

No. INF1500950.

       Arguing that he could no longer be confined because he had exceeded the

maximum commitment period authorized by law, petitioner, just as he had done in case

No. INF061963, moved for his release from custody in case No. INF01500950. The trial

court denied that motion on June 30, 2015. This writ petition followed.

                                      DISCUSSION

       Petitioner contends he cannot be lawfully confined in connection with case

No. INF1500950 because he has already exceeded the maximum time for which he could



                                            3
have been committed as incompetent to stand trial in relation to the crimes he allegedly

committed on May 3, 2008. Because the record fails to support at least two assumptions

central to petitioner’s reasoning, we must deny the petition.

       In Jackson v. Indiana (1972) 406 U.S. 715, 731-739 (Jackson), the United States

Supreme Court considered whether the due process provisions of the Fourteenth

Amendment to the United States Constitution can allow a state to commit a criminal

defendant found incompetent to stand trial on an indefinite basis. The Court held, “that a

person charged by a State with a criminal offense who is committed solely on account of

his incapacity to proceed to trial cannot be held more than the reasonable period of time

necessary to determine whether there is a substantial probability that he will attain that

capacity in the foreseeable future.” (Jackson, at p. 738.) The California Supreme Court

adopted the same rule the following year when it held “that no person charged with a

criminal offense and committed to a state hospital solely on account of his incapacity to

proceed to trial may be so confined more than a reasonable period of time necessary to

determine whether there is a substantial likelihood that he will recover that capacity in the

foreseeable future.” (In re Davis (1973) 8 Cal.3d 798, 801.) Both courts added that a

defendant who has been found incompetent to stand trial and will not regain competency

“in the foreseeable future” must either be released or committed under an alternative

procedure. (Jackson, at p. 738; see Davis, at p. 801.)

       The Legislature then amended former Penal Code section 1370, subdivision (c)(1),

in an attempt to provide guidance regarding some of the principles announced in Davis.



                                              4
(In re Polk (1999) 71 Cal.App.4th 1230, 1236-1238.) Subdivision (c)(1) of section 1370

requires any defendant who has been found incompetent to stand trial and whose

competence has not been recovered to be “returned to the committing court” within, as is

relevant to this case, 90 days of the date that is three years after the date of commitment.

If such a defendant appears to be “gravely disabled, as defined in subparagraph (B) of

paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the

court shall order the conservatorship investigator of the county of commitment of the

defendant to initiate conservatorship proceedings for the defendant pursuant to”

provisions of the Welfare and Institutions Code. (Pen. Code, § 1370, subd. (c)(2).) The

type of conservatorship described in the aforementioned section of the Welfare and

Institutions Code “is commonly referred to as a ‘Murphy conservatorship’ after the

legislator who sponsored the amendment that added the definition to the [Lanterman-

Petris-Short Act] Act in 1974. (Stats. 1974, ch. 1511, pp. 3316–3324.)” (People v.

Karriker (2007) 149 Cal.App.4th 763, 775.) Aside from mentioning the possibility of a

Murphy conservatorship, Penal Code section 1370 does not otherwise advise a trial court

of its options if a defendant who has been declared incompetent to stand trial is still

incompetent at the end of a three-year commitment.

       In the absence of such statutory language, defendant relies on Jackson and Davis

to support his contention that complete release from custody is the only outcome that can

pass constitutional muster. As we now explain, however, he is trying to capitalize on

language to the effect that a defendant who is still incompetent at the end of the



                                              5
permissible period of confinement must be released, if he is not civilly committed,

without actually demonstrating that he meets the conditions precedent to this rule.

       First, petitioner has not shown that he is currently “committed solely on account of

his incapacity to proceed to trial.” (Jackson, supra, 406 U.S. at p. 738 italics added; see

similar language in In re Davis, supra, 8 Cal.3d at p. 801.) While it is true that the

indictment in case No. INF1500950 stems from the same alleged conduct as the

complaint in case No. INF061963, petitioner has offered no reason why the People could

not prosecute him on charges related to his conduct on May 3, 2008, under a new case

number if he were currently competent to stand trial. If the prosecution in case

No. INF1500950 may continue, and the record and the briefing before us present no bar

to that occurrence, we are aware of no reason why petitioner could not be confined in jail

awaiting trial on those charges absent another incompetency finding. As we noted ante,

the record contains no evidence that petitioner has actually been declared incompetent to

stand trial in case No. INF1500950, and it contains no other proof that the incompetency

the court found to exist in case No. INF061963 still continues. Without substantiating

this fact, petitioner has failed to show that his current confinement is due to nothing other

than a present incapacity to stand trial. In a similar vein, he has not shown that he has

been “committed” at all in case No. INF1500950.

       Second, the record contains no evidence regarding “whether there is a substantial

probability that [petitioner] will attain . . . capacity [to stand trial] in the foreseeable

future.” (Jackson, supra, 406 U.S. at p. 738.) Again, no incompetency finding has yet



                                                6
been made in case No. INF1500950, and the record does not contain any of the reports

regarding petitioner’s competency that were issued in case No. INF061963. Faced with

the same problem, the Davis court wrote: “Unlike the situation in Jackson, however, the

record in the cases before us furnishes no basis for concluding that petitioners are not

likely to respond to treatment. Accordingly, it would be premature for us to order

petitioners released from confinement at this time.” (In re Davis, supra, 8 Cal.3d at

p. 806.) We agree with the Davis court that a defendant such as petitioner cannot

demonstrate his entitlement to release from all confinement in connection with

unadjudicated criminal charges without some basis for concluding that he is both

presently incompetent and unlikely to regain competency in the near future.

       In a letter brief filed prior to oral argument and at oral argument, petitioner cited

People v. Quiroz (2016) 244 Cal.App.4th 1371 (Quiroz) for the proposition that the

People lack the authority to proceed on the indictment they obtained in case

No. INF1500950 because petitioner had already been committed for the maximum term

authorized by law in case No. INF061963. Quiroz stands for no such proposition, as all it

held is that a competency hearing is a “special proceeding” that must be authorized by

statute, and no statute authorizes holding another competency hearing at the end of a

three-year commitment due to incompetency to stand trial when the hospital reports that

the defendant is still incompetent and is not likely to recover competency in the near

future. (Id. at pp. 1379-1380.) Moreover, Quiroz is factually distinguishable, as there the

record contained a report showing that the defendant seeking release from confinement



                                              7
was both incompetent and not likely to regain competency. (Id. at pp. 1375, 1379-1380.)

The absence of such evidence in the record here is a large part of why, as we described

ante, we cannot grant petitioner the relief he seeks.

       We close by suggesting that at least some of the issues the trial court faced in

ruling on the motion that is the subject of this writ petition could have been avoided, or at

least ameliorated, if section 1370, subdivision (c)(2), provided clearer guidance. For

example, Quiroz asserts that, “if the defendant remains incompetent but is not a

dangerous accused violent felon, the court must release him from confinement” when the

defendant is returned to court at the end of the maximum commitment period. (Quiroz,

supra, 244 Cal.App.4th at p. 1379.) However, section 1370, subdivision (c)(2), gives no

such instruction. As we noted ante, it instructs that the trial court “shall order the

conservatorship investigator of the county of commitment of the defendant to initiate

conservatorship proceedings for the defendant,” but only when “a defendant is returned

to the court pursuant to paragraph (1) or (4) of subdivision (b) or paragraph (1) of this

subdivision and it appears to the court that the defendant is gravely disabled” within the

meaning of the Murphy conservatorship statute. Jackson, Davis, and Quiroz all note that

a defendant who is returned to court at the end of a commitment due to the defendant’s

incompetency to stand trial may need to be released under certain circumstances, but

neither they nor the statutory scheme that authorizes the commitment provide any

instruction as to under what criteria and upon what proof such a release is required. We

therefore implore the Legislature to examine subdivision (c)(2) of section 1370 and



                                              8
clarify for trial courts statewide what procedures they should follow when faced with a

defendant who has been committed as incompetent for the maximum time allowed under

the law but who does not qualify for a Murphy conservatorship.

                                     DISPOSITION

      The petition is denied.

      CERTIFIED FOR PUBLICATION




                                                              RAMIREZ
                                                                                     P. J.


We concur:


HOLLENHORST
                          J.


MILLER
                          J.




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