Filed 3/12/19
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A152349
v.
JOSE LOUIE ALVAREZ,                                 (Sonoma County
                                                    Super. Ct. No. SCR541450)
        Defendant and Appellant.

        May a criminal defendant confined in a state mental hospital pursuant to a plea of
not guilty by reason of insanity (NGI) issue subpoenas duces tecum against the hospital
and hospital police when there is no underlying active proceeding, motion or petition?
No. We conclude, as did the trial court, that in the absence of any such proceedings the
court’s continuing jurisdiction over NGI cases does not support a generalized right of
defendants to promulgate discovery to third parties unrelated to any active legal matter.
We therefore affirm the trial court’s order quashing the subpoenas duces tecum at issue.
                                      BACKGROUND
        In 2008 Jose Alvarez pled not guilty by reason of insanity to felony assault with a
firearm on a firefighter or peace officer, with a firearm enhancement, and was committed
to Napa State Hospital for a maximum commitment term of 18 years. His case thereafter
remained largely inactive other than for the submission of periodic reports pursuant to
Penal Code section 1026, subdivision (f).1


        1
          Penal Code section 1026, subdivision (f) states: “If the defendant is confined in a
state hospital or other treatment facility as an inpatient, the medical director of the facility
shall, at six-month intervals, submit a report in writing to the court and the community
program director of the county of commitment, or a designee, setting forth the status and
                                               1
       In June 2017, Alvarez’s attorney issued subpoenas to Napa State Hospital and the
Napa State Hospital Police under Alvarez’s 2008 criminal case number.         The subpoena
served on the hospital sought the following items:
“1. Hospital policies and procedures regarding handling aggressive patients, use of
personal duress alarm system (PDAS), response to alarm, criteria for hospital police
involvement, criteria for hospital police to take control of incident, reporting of incidents
of threats and/or acts of violence, any rules/regulations/protocols involving how hospital
staff interface with hospital police.
“2. Hospital records, including incident reports, emails, memos, photos, videos or other
electronic media records, any form of communication involving Jose Alvarez’s
aggressive conduct; this to include minutes of any meetings or conferences in which Jose
Alvarez’[s] aggressive behavior is considered, including: medical/nursing/psychiatric/
psychological conferences, grand rounds, etc.
“3. Copy of any/all correspondence to witnesses by NSH administration, medical
director, other NSH staff to witnesses and/or other NSH personnel regarding the incident
involving Jose Alvarez on 3/23/2017 and/or 3/21/2017. This request to include emails,
texts, other forms of electronic communication as well as notes, memos, incident reports.
Any/all correspondence between Dr. Laguitan and his supervisor, NSH Medical Director,
or other administrator which deals with the placement of Jose Alvarez at the jail and
recommending criminal prosecution.
“4. Copies of all reports/letters written by NSH staff titled: PRE-ARREST CLINICAL
INTERVIEW AND RECOMMENDATIONS prepared in the last five (5) years; this does
not request disclosure of the actual patients involved but rather the entire report which is




progress of the defendant. The court shall transmit copies of these reports to the
prosecutor and defense counsel.”
       We take judicial notice of relevant documents included in the “Clerk’s Transcript
of Confidential Documents” that were not provided to the trial court during the
proceedings on the motion to quash the subpoenas. (Evid. Code, §§ 452, subd.(d), 459,
subd. (a).)
                                              2
written documenting the reasons why a NSH patient is being transferred to the jail or
other non-psychiatric incarceration.
“5. Any/all Jose Alvarez hospital records for the period of 01/01/14 to present.
“6. Hospital policies/procedures regarding when/how/why incidents involving patients
committed pursuant to Penal Code § 1026 et. seq. (NGI) are to be handled as new crimes,
allow the patient to be arrested and taken to a jail facility. Include the policies and
procedures for how the transfer of care from the state hospital to the county jail. Include
the policies and procedures developed by the Napa County jail in handling the
incarceration of Napa State Hospital clients committed as NGI patients.
“7. Copy of all reports, reviews, investigations into the incident which occurred on
03/23/2017 involving Jose Alvarez and his subsequent arrest and placement at the Napa
County Jail. Copy of all photos, recordings, emails, electronic evidence dealing with this
incident. To include all said evidence which was gathered after the date of the incident
3/23/17 and is an ongoing request to provide said information until such time as incident
is closed by way of a conviction, return to hospital or transfer to another facility by order
of a court.
“8. Copy of any/all prior incidents for the past five (5) years where the NSH police were
called to assist with problems with Jose Alverez behavior. To include follow-up
investigations or assessments. Include any photos or recordings or other tangible
evidence involved in any incident.
“9. Copy of any/all hospital quality assurance reports involving the handling of patient
aggressive behaviors, use of personal alarm system, use of hospital police, use of force by
hospital police, the filing of criminal charges against NSH patients for these behaviors
and any record or report as to the effectiveness of NSH practices dealing with aggressive
patients in the past five (5) years.
“10. Statistics as to the number of times NSH NGI patients are arrested while committed
to NSH, statistics as to the number of subsequent convictions, type of crimes, outcome,
days spent incarcerated in the jail, and any other type of report/reviews involving


                                              3
criminal prosecution of NGI hospital patients for the past five (5) years. This request is
NOT seeking any personal identification of said patients.
“11. Copy of any/all complaints made by patients, California Disability Rights, family
members, staff, outside care providers regarding the handling of aggressive behaviors by
NSH patients. If possible delineate the type of commitment the patient is committed
under such as NGI, IST, MDO, etc.
“12. Copy of any/all recommendations, reviews, disciplinary actions taken against NSH
by The Department of State Hospitals, any California government agency or other
regulatory agency in the past five (5) years. Include all responsive communication and
follow-up concerning identified areas of concern.”
       The subpoena served on the Napa State Hospital Police sought overlapping, and
similarly broad, categories of information:
“1. Napa State Hospital Police policies and procedures regarding handling aggressive
patients, use of personal duress alarm system (PDAS), response to alarm, criteria for
hospital police involvement, criteria for hospital police to take control of incident,
reporting of incidents of threats and/or acts of violence, any rules/regulations/protocols
involving how hospital staff interface with hospital police.
“2. Napa State Hospital Police records, including incident reports, emails, memos,
photos, videos or other electronic media records, any form of communication involving
Jose Alvarez’s aggressive conduct for past five (5) years; this to include minutes of any
meetings or conferences in which Jose Alvarez’[s] aggressive behavior is considered.
Also to include follow-up investigations and reports.
“3. Any/all Jose Alvarez Napa State Hospital Police records for the period of 01/01/14 to
present.
“4. Napa State Hospital Police policies/procedures regarding when/how/why incidents
involving patients committed pursuant to Penal Code § 1026 et. seq. (NGI) are to be
handled as new crimes, allow the patient to be arrested and taken to a jail facility.
Include the policies and procedures for how the transfer of care from the state hospital to


                                              4
the county jail. Include the policies and procedures developed by the Napa County jail in
handling the incarceration of Napa State Hospital clients committed as NGI patients.
5. Copy of all reports, reviews, investigations into the incident which occurred on
03/23/2017 involving Jose Alvarez and his subsequent arrest and placement at the Napa
County Jail. Copy of all photos, recordings, emails, electronic evidence dealing with this
incident. To include all said evidence which was gathered after the date of the incident
3/23/17 and is an ongoing request to provide said information until such time as incident
is closed by way of a conviction, return to hospital or transfer to another facility by order
of a court.
“6. Statistics as to the number of times NSH NGI patients are arrested while committed to
NSH, statistics as to the number of subsequent convictions, type of crimes, outcome, days
spent incarcerated in the jail, and any other type of report/reviews involving criminal
prosecution of NGI hospital patients for the past five (5) years. This request is NOT
seeking any personal identification of said patients.
“7. Copy of any/all complaints made by patients, California Disability Rights, family
members, staff, outside care providers regarding the handling of aggressive behaviors by
NSH patients. If possible delineate the type of commitment the patient is committed
under such as NGI, IST, MDO, etc.
“8. Copy of all Pitchess Motions made and any discovery provided pursuant to Pitchess
motion against any officer involved in the 03/23/17 [sic] to include but not limited to the
following officers: Stuart Donaldson, Ross Tweedy, Stuart Yocum, Herbert Tubillara,
Vuong Truong, Michael Hauscarriague, Jose Becerra, and Sergio Flores.
“9. Copies of any/all citizen complaints, hospital repo[r]ts, internal investigations, patient
rights advocate reports of problems involving the above named officers.
10. Copy of any/all recommendations, reviews, disciplinary actions taken against NSH
Police by The Department of State Hospitals, any California government agency or other
regulatory agency in the past five (5) years. Include all responsive communication and
follow-up concerning identified areas of concern.”


                                              5
       Alvarez did not file any kind of petition or proceeding in connection with the
subpoenas. Nor did he move to re-open discovery or otherwise seek permission to serve
the subpoenas.
       The state moved to quash both subpoenas on the grounds that (1) no law
authorizes a defendant to promulgate wide-ranging discovery on third parties untethered
to an active case or controversy; (2) the subpoenas were overly broad, ambiguous and
uncertain; and (3) they sought materials that were privileged and confidential or can only
be obtained through a Pitchess2 motion. In opposition, Alvarez cited In re Cirino (1972)
28 Cal.App.3d 1009 (Cirino) as authority for the committing court’s continuing power to
“make whatever orders are necessary to make the confinement effective” until it
determines that sanity has been restored and argued the discovery was appropriate
because his case remains “ ‘active’ and ‘pending’ ” until he is either deemed restored to
sanity or conserved. 3
       The court granted the motions to quash. It ruled: “Although defendant is correct
that the In re Cirino (1972) 28 Cal.App.3d 1009 case stands for the proposition that this
Court continues to have jurisdiction over issues pertaining to defendant’s Napa State
Hospital confinement, the issue at hand is not whether the Court has jurisdiction over
defendant’s confinement. Instead, the issue is whether or not defendant is authorized to
serve P.C.Sec 1326 records subpoenas at any time during defendant’s NGI confinement.
The Cirino case does not stand for the proposition that a confined NGI defendant can
promulgate wide-ranging discovery on third parties that is not relevant to any existing
controversy. This Court does not believe the discovery is authorized under Cirino or any
other law. The Court notes that there is not even a pending motion regarding defendant’s
conditions of confinement; although it’s unclear whether the mere filing of such a motion
would allow defendant to serve the instant discovery requests.”

       2
           Pitchess v. Superior Court (1974) 11 Cal.3d 531.
       3
        Alvarez also argued the state had not shown the subpoenas were subject to
Pitchess or intruded improperly on privacy and confidentiality rights, but he withdrew his
requests for certain items that he conceded were subject to Pitchess or duplicative.
                                              6
       The court also found Alvarez failed to demonstrate the relevance of the
information sought. “[T]here is no pending controversy, either within the NGI case or by
way of a separately filed habeas petition. Defendant states in general terms that the
requested discovery is ‘relevant and necessary to his case,’ but fails to state exactly why
this information is being requested or how it would be used. Based on a review of the
subpoenas, it appears that petitioner may be seeking discovery about defendant’s
conditions of confinement for a potential habeas petition or civil lawsuit. However,
defendant fails to demonstrate that he’s entitled to any such discovery prior to the
issuance of an OSC on a properly filed habeas petition or prior to the filing of a civil
lawsuit. Generally, the court is without jurisdiction to order discovery in a habeas corpus
proceeding before the issuance of an OSC. Board of Prison Terms v. Superior Court
(Ngo)(2005) 130 Cal.App.4th 1212, 1239. Defendant’s status as a person serving an
NGI commitment should not provide defendant with a backdoor way to obtain discovery
for potential use in a subsequently filed habeas petition or civil lawsuit. At this state of
the NGI case, the discovery request simply has no relevance to anything about
defendant’s NGI case.”
       This appeal is timely.
                                           DISCUSSION
       Alvarez concedes that no specific statutory or other authority permits a post-
commitment NGI defendant to subpoena information pertaining to his or her treatment,
conditions of confinement or restoration of sanity. Instead, relying principally on Cirino,
supra, 28 Cal.App.3d 1009, he asserts that a right to such discovery at any time during
his commitment follows from the trial court’s continuing jurisdiction under Penal Code
section 1026 and its authority under Code of Civil Procedure 187 to exercise that
jurisdiction through “any suitable process or mode of proceeding.”4 Alvarez argues the


       4
         Code of Civil Procedure section 187 provides that “When jurisdiction is, by the
Constitution or this Code, or by any other statute, conferred on a Court or judicial officer,
all the means necessary to carry it into effect are also given; and in the exercise of this
jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the
                                              7
absence of any pending petition, motion or application relating to his confinement is
irrelevant because “it is imperative that counsel have access to documents regarding the
defendant[’]s treatment, progress, and confinement at any time throughout the NGI
commitment so that counsel can ensure that the defendant’s treatment is adequate and
that any motions regarding changes to confinement or restoration of sanity can be timely
made where appropriate.”
       We disagree.5 Nothing in Cirino supports the right of a defendant committed
pursuant to an NGI plea to conduct freestanding discovery unrelated to a pending motion,
petition or other proceeding. In Cirino, a defendant committed pursuant to an NGI plea
brought a petition for a writ of habeas corpus challenging the trial court’s jurisdiction to
order the hospital to withhold grounds privileges from him. Cirino contended that
hospital personnel, not the court, had sole authority to make that determination.
Rejecting that contention, the court of appeal held the trial court’s duty to order
confinement under Penal Code section 1026 “carries with it the power to make whatever
orders are necessary to make the confinement effective,” including orders that prevent the
defendant’s escape from confinement. (Cirino, supra, 28 Cal.App.3d at pp. 1014, 1015.)
“The granting of ‘grounds privileges’ may or may not be a lack of sufficient confinement,
depending on many circumstances. Since we are considering jurisdiction at this point, it
is sufficient to support the court’s order that the subject matter of the order is adequate
confinement, as required by the statute.” (Id. at p. 1014.) Nothing in the court’s holding
or reasoning supports an NGI defendant’s right to propound free-standing discovery, as
Alvarez suggests.
       Nor do the other cases Alvarez cites support a right to propound discovery based
only on his continuing confinement as an NGI defendant. Alford v. Superior Court
(2003) 29 Cal.4th 1033, People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305


statute, any suitable process or mode of proceeding may be adopted which may appear
most conformable to the spirit of this Code” Section 187 applies in criminal as well as
civil cases. (People v. Ainsworth (1990) 217 Cal.App.3d 247, 254 (Ainsworth).)
        5
          We will assume arguendo that the order is appealable.
                                              8
and People v. Memro (1985) 38 Cal.3d 658 address the rights of criminal defendants to
pretrial discovery. Wisely v. Superior Court (1985) 175 Cal.App.3d 267 holds the
People’s appeal of a new trial order did not deprive the trial court of jurisdiction over
defense discovery propounded in preparation for the new trial. In re Steele (2004) 32
Cal.4th 682 concerns a statute that expressly authorizes post-conviction discovery in
capital cases. And Echavarria v. Superior Court (1979) 94 Cal.App.3d 467 holds that a
defendant found incompetent to stand trial may seek a psychiatric examination to explore
potential defenses should she be returned for trial. None of these cases supports the
notion that a defendant committed under an NGI plea is entitled to freestanding discovery
from the hospital and its police force “so that counsel can ensure that the defendants’
treatment is adequate and that any motions regarding changes to confinement or
restoration of sanity can be timely made where appropriate.”
       More apposite is Ainsworth, supra, 217 Cal.App.3d at p. 249, which held the trial
court lacked jurisdiction to entertain a convicted capital defendant’s discovery motion.
(Ibid.) Having reached that conclusion, the Ainsworth court went on to “not[e] that
practical considerations argue compellingly against defendant’s position. If every
prisoner incarcerated under final judgment were entitled to postjudgment discovery, the
burden on the system would be overwhelming. In this case alone, defendant has moved
for postjudgment discovery, renewed that request in a more limited form, and then on an
entirely different basis moved again for such discovery. If a defendant under a final
judgment of conviction is entitled to discovery merely on the speculative hope that
something ‘[might] bear [] on defendant’s guilt or innocence, the appropriateness of the
penalty, or any possible violation of [defendant’s] constitutional rights,’ the number of
such requests from similarly situated defendants will predictably bury the courts under a
blizzard of paper. [¶] . . . If defendant has grounds for habeas corpus, he is of course
entitled to petition the court for that relief. . . . But to allow a motion for discovery cast




                                               9
loose from any pending action or proceeding is a remedy this court is not authorized by
law or disposed by whim to grant.” (Id. at p. 259, footnote omitted.)6
       So too here. As the trial court observed, “[f]or all intents and purposes, the NGI
proceeding is currently inactive. There is no pending controversy. There is no pending
petition for restoration of sanity or extension of commitment. There’s been no issuance
of an OSC on a habeas petition for which discovery orders would be appropriate. No
civil action has been filed by defendant.” In these circumstances, the court correctly
concluded its jurisdiction under Penal Code section 1026 does not authorize Alvarez to
subpoena information from the hospital and its police untethered to any pending
proceeding.
                                         DISPOSITION
       The order granting the motions to quash is affirmed.




       6
         Penal Code section 1054.9, as amended effective January 1, 2019, establishes a
mechanism for postconviction discovery under certain circumstances “in cases involving
a conviction of a serious felony or a violent felony resulting in a sentence of 15 years or
more.” (Pen. Code, § 1054.9, subd. (a), as amended by Stats. 2018, ch. 482 (A.B. 1987)
§ 2.) By its terms, it is inapplicable to Alvarez’s commitment pursuant to his plea of not
guilty by reason of insanity.
                                            10
                                 _________________________
                                 Siggins, P.J.


WE CONCUR:


_________________________
Fujisaki, J.


_________________________
Petrou, J.




                            11
People v. Alvarez




                    12
Trial Court:                                   Sonoma County Superior Court



Trial Judge:                                   Honorable Elliot Daum

Counsel:
Michele Kemmerling, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Bacerra, Attorney General, Fiel Tigno, Supervising Deputy Attorney General,
Terry Senne, Deputy Attorney General, for Plaintiff and Respondent.




                                          13
