OPINION
KLINE, P. J. —
This case involves the transfer of defendants who have been found mentally incompetent to stand trial (IST) to the State Department of State Hospitals (DSH or Department) for treatment. Penal Code section 1370
DSH now appeals from the trial court's standing order, contending the order (1) is inconsistent with section 1370; (2) undermines DSH's ability to carry out its statutory duties under section 1370, causing disruption and public harm, and subjecting DSH to potential equal protection and due process claims; and (3) circumvents established habeas corpus procedures. Petitioners, again represented by the Contra Costa County Public Defender, cross-appeal from the order, arguing that the trial court should have ordered a time limit of 30 days, not 60 days, between the trial court's commitment order and DSH-Napa's admission of IST defendants.
BACKGROUND
Statutory Background
A person cannot be tried or sentenced while mentally incompetent. (§ 1367, subd. (a).) A defendant is deemed mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Ibid.) Pursuant to section 1368, if, at any time prior to judgment in a criminal action, a doubt arises as to the defendant's mental competence, the court shall order a hearing to determine the defendant's competence. (§ 1368.) If, after a hearing, the defendant is found mentally competent, the criminal process shall resume. (§ 1370, subd. (a)(1)(A).)
If, however, the defendant is found IST, the criminal process shall be suspended until the defendant becomes mentally competent. (§ 1370, subd. (a)(1)(B).) "In the meantime, the court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital ... as directed by the State Department of State Hospitals," or to an approved and available treatment facility "that will promote the defendant's speedy restoration to mental competence," unless the court orders the defendant placed on outpatient status. (§ 1370, subd. (a)(1)(B)(i).)
When the court orders the defendant's commitment, it is required to provide a packet of documents (the 1370 packet) that, prior to admission of the defendant to DSH or another treatment facility, must include copies of the following: the commitment order, a computation of the defendant's maximum term of commitment, a computation of the amount of credit for time served, criminal history information, arrest reports, court-ordered psychiatric examination or evaluation reports, a placement recommendation report, records of any finding of mental incompetence arising out of a charge of an offense specified in section 290, and medical records. (§ 1370, subd. (a)(3).)
After the defendant has been admitted to a state hospital, an interim report on his or her restoration to competence is required: "Within 90 days of a commitment made pursuant to subdivision (a), the medical director of the
After the trial court issued its standing order in this case, Assembly Bill No. 1468 (2013-2014 Reg. Sess.), a budget bill related to public safety, amended section 1370 and related statutes in ways that potentially affect the timing of an IST defendant's transfer to a state hospital. (Stats. 2014, ch. 26, § 25, eff. June 20, 2014.)
In October, November, and December 2013, the trial court issued a series of orders to show cause based on DSH's alleged failure to admit petitioners — all of whom are IST defendants — to a state hospital in a timely manner, pursuant to section 1370.
The six petitioners include Brooks Loveton, who was found incompetent to stand trial on July 30, 2013, and was committed to DSH on November 6, 2013. On December 11, 2013, the trial court issued an order to show cause (OSC) to DSH-Napa for failing to admit Loveton, who was ultimately admitted to DSH-Napa on January 21, 2014, 75 days after the date of commitment.
William Smith was found incompetent to stand trial on August 20, 2013, and was committed to DSH on September 26, 2013. On October 23, 2013, the trial court issued an OSC to DSH-Napa for failing to admit Smith, who was admitted to DSH-Atascadero on November 26, 2013, 61 days after commitment.
Victor Calderon was found incompetent to stand trial on August 27, 2013, and was committed to DSH on September 24, 2013. On October 28, 2013, the trial court issued an OSC to DSH-Napa for failing to admit Calderon, who was admitted to DSH-Napa on December 19, 2013, 85 days after commitment.
Asia Isola was found incompetent to stand trial on December 11, 2012, and was committed to DSH on October 8, 2013. On November 5, 2013, the trial court issued an OSC to DSH-Napa for failing to admit Isola, who was admitted to DSH-Napa on or about December 24, 2013, some 77 days after commitment.
Lawrence Payton was found incompetent to stand trial on September 3, 2013, and was committed to DSH on October 1, 2013. On November 5, 2013, the trial court issued an OSC to DSH-Napa for failing to admit Payton,
Jose Navarro was found incompetent to stand trial on November 19, 2013, and was committed to DSH on December 17, 2013. Navarro was admitted to DSH-Napa on March 12, 2014, 86 days after commitment.
On January 9, 2014, Loveton, Calderon, and Smith filed separate writ petitions, requesting that the court direct the Contra Costa County Sheriff to immediately transfer them to an appropriate mental health facility or release them from custody. On February 25, 2014, Loveton, Calderon, and Smith filed a supplemental writ petition, requesting a prospective order requiring that all defendants in Contra Costa County committed to the state hospital pursuant to section 1370, to be transported to the hospital no more than four weeks from the date of commitment. The court subsequently deemed Isola, Navarro, and Payton to be intervening parties in the action.
Two witnesses testified during the first day of evidentiary hearings, on January 10, 2014, regarding then-current admissions procedures for IST defendants at DSH-Napa.
If the patient is committed to DSH-Napa, the hospital receives the 1370 packet from the court, which packet should contain a commitment order; a list of the pending charges, maximum term of commitment, and time served; a summary of the patient's criminal history; arrest reports; psychiatric examination reports; and the CONREP placement recommendation report. Medical treatment information is also required, and must be received either as part of the 1370 packet or before the packet arrives.
Dr. Patricia Tyler, chief psychiatrist and medical director at DSH-Napa, testified that, while bed capacity at the hospital has not increased at all in recent years, the number of patients admitted as IST defendants has increased. In 2011, DSH-Napa admitted 391 IST defendants; in 2012, it admitted 491 IST defendants; and, in 2013, she expected admission of 527 IST defendants. In an effort to reduce the wait time for new patients, DSH-Napa had developed a process for screening people upon their arrival at the hospital to determine how close to competency they are, whether language or cognitive problems are involved, and whether they are malingering. It also has a specialized group of psychiatrists and psychologists who are skilled at identifying malingerers who write the 90-day interim reports that are required under section 1370. Over a two-year period, with these and other changes, DSH-Napa had been able to decrease the average length of stay from 180 days to 60 days.
Dr. Tyler explained that receipt of a patient's medical records is required for a 1370 packet to be considered complete, under the hospital's accrediting standards, federal regulations, and community standards. The reason for this requirement is that the receiving facility needs to prearrange any required medical interventions, such as cancer medication or dialysis, to ensure continuity of care and patient safety.
Dr. Tyler believed that psychiatric treatment in the jails, which generally consists of medication and monthly checkups only, is often inadequate to meet IST patients' needs. At DSH-Napa, patients receive the individualized treatment that they need. They also have recreational groups, which, while not necessary to be restored to mental competency, are necessary to provide quality of life.
At the time of the hearing, the time between IST defendants' commitment date or completion of the 1370 packet and the date of admission was
At the continued evidentiary hearing, which took place on March 14, 2014, Diane Mond, recalled as a witness, testified about waitlists at the state hospitals. Occasionally, IST defendants who have been outpatients have to be placed at DSH-Napa on an emergency basis, in which case, they have priority over people on the waitlist. Also, DSH-Napa refers patients on the waitlist to other state hospitals when those hospitals have beds available. For example, Mond had just learned that DSH-Atascadero had 10 beds available. This was the first time in a year and a half that DSH-Atascadero was able to take patients from DSH-Napa's waitlist. Currently, Patton had a waitlist of "a couple of hundred." Mond did not know the exact waitlist numbers for Metropolitan; it had "some" wait time for females, but a shorter waitlist for males than DSH-Napa. The current waitlist at DSH-Napa for patients with complete packets included about 80 males and about 16 females. Wait time to DSH-Napa varied from county to county and even within a county, with patients with OSCs gaining admission sooner.
Additional testimony at the March 14, 2014 hearing included that of Martinez Superior Court Manager Shelley Hasson, who testified that the court sends 1370 packets to DSH-Napa within 48 hours of receipt of the order to prepare the packet. The packets include the charging document, police and probation reports, a doctor's report, and the court's order.
Jennifer Brush, a forensic services manager at DSH-Atascadero, testified that DSH-Atascadero considers a 1370 packet complete, for purposes of placement on an admissions list, when it includes the documents required by section 1370, subdivision (a)(3). DSH-Atascadero requests medical information also, but does not require it before putting a patient on a list. At the time of the hearing, DSH-Atascadero did not have a waitlist, and tried to get IST defendants admitted within 30 days of commitment, as long as it had a complete packet for them.
On April 28, 2014, the trial court ruled on the habeas corpus petition. In an extremely thorough and well-reasoned statement of decision, the court first found that all of the petitioners had now been admitted to DSH-Napa, which meant that their cases were moot. The court nonetheless determined that it was appropriate to address the issues raised because "the petition poses an issue of important public interest concerning the delay in psychiatric treatment to persons found incompetent to stand trial that is likely to reoccur in view of the consistent delay in admissions of such persons to DSH-Napa from the time of their commitment pursuant to [section] 1370." In addition, given DSH-Napa's rapid response to the courts OSCs, the court believed that IST defendants "are delivered and admitted to DSH-Napa within a short period of time after such an order issues. Because of this, the issue may evade review." Finally, the court further found that "a writ of habeas corpus is an appropriate procedure for resolving the present case since it may serve as a means of obtaining a declaration of the petitioners' rights and the rights of others similarly situated. [Citation.]"
The court found that "subjecting the petitioners to prolonged detention in the county jail without any evidence they received treatment to restore their competency" violated their due process rights. The court then balanced the petitioners' liberty interests against DSH-Napa's interests, noting that it could not "ignore the increasing number of defendants found IST that are being committed to Napa and the lack of a commensurate increase in available beds," as well as the actions DSH-Napa had taken "to improve coordination of the IST population with the goal of reducing the wait list."
The court therefore ordered: "DSH-Napa shall accept any defendant in the custody of the Sheriff of Contra Costa County ordered by the court to be placed in DSH-Napa, pursuant to [section] 1370, [subdivision] (a)(5), within not more than 60 calendar days of the court's order of commitment provided the defendant's complete information packet has been received by the hospital within five court days of the commitment order. If the defendant's complete intake package, pursuant to [section] 1370, has not been received by DSH-Napa within a timely manner, DSH-Napa may, if necessary, request an extension for filing the 90-day evaluation report commensurate with the circumstances of the case. [¶] ... [¶] DSH-Napa may also deny admission to a defendant if his or her health information as specified by DSH-Napa is not received by the hospital."
On June 3, 2014, DSH filed a notice of appeal. On June 19, 2014, all petitioners filed a notice of cross-appeal. On October 3, 2014, we issued a temporary stay of the trial court's April 28, 2014 order and, on November 24, 2015, we granted DSH's petition for writ of supersedeas pending resolution of this appeal.
DISCUSSION
I. The Law Relating to IST Defendants
In Jackson v. Indiana (1972) 406 U.S. 715, 738 [32 L.Ed.2d 435, 92 S.Ct. 1845] (Jackson), the United States Supreme Court held "that a
The following year, the California Supreme Court addressed the constitutionality of the procedures set forth in section 1367 et seq. related to IST defendants' commitment to and release from state hospitals. (In re Davis (1973) 8 Cal.3d 798, 801 [106 Cal.Rptr. 178, 505 P.2d 1018] (Davis).) The court concluded that, although the initial commitments of the petitioners in that case were proper, "some provision must be made to assure that petitioners do not face an indefinite commitment without regard to the likelihood that they will eventually regain their competence, for such an indefinite commitment has been held to offend constitutional principles of equal protection and due process." (Ibid., citing Jackson, supra, 406 U.S. 715.) The court therefore "adopt[ed] the rule of the Jackson case that no person charged with a criminal offense and committed to 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. Unless such a showing of probable recovery is made within this period, defendant must either be released or recommitted under alternative commitment procedures." (Davis, at p. 801.)
The court in Mille then addressed the rule, set forth in Jackson and Davis, that an IST defendant "cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [mental competence] in the foreseeable future." (Jackson, supra, 406 U.S. at p. 738, italics added; accord, Davis, supra, 8 Cal.3d at p. 801.) The Mille court stated: "What constitutes a reasonable length of time will vary with the context. Here, the discrete issue is what constitutes a reasonable time to effectuate a transfer from the county jail to a state mental hospital for evaluation and treatment, in light of the requirement that the hospital report back to the court within 90 days concerning the defendant's progress toward recovery of mental competence. (§ 1370, subd. (b)(1).)
"`[W]e do not think it appropriate for us to attempt to prescribe arbitrary time limits' (Jackson, supra, 406 U.S. at p. 738) for a defendant who is mentally incompetent to stand trial to be transported to a state mental hospital for treatment. However, the statutory scheme requires that within 90 days of the order committing a defendant to a state mental hospital for treatment, the defendant must be delivered to the hospital, the hospital must examine the defendant and provide the defendant with treatment that will promote speedy restoration to competence, and the hospital's medical director must document the defendant's progress in a report to the court. (§ 1370.) For all of this to occur, a defendant needs sufficient time at the state mental hospital to be duly evaluated, potentially to derive some benefit from the prescribed treatment, and for such progress to be reported to the court. [¶] Clearly, to implement section 1370, a defendant must arrive at [the state hospital] timely, not on the 84th day following the commitment order." (Mille, supra, 182 Cal.App.4th at pp. 649-650.)
Recently, in Brewer, supra, 235 Cal.App.4th 122, the Third District Court of Appeal addressed the validity of a standing order from Sacramento County that is quite similar to the one challenged in this case.
The appellate court also rejected DSH's claim that the order obviated established habeas corpus procedures by granting relief beyond the claims of the petitioners, which were now moot. The court observed that, "`[i]rrespective of mootness, a habeas corpus petition is "an acceptable vehicle for a general declaration of the procedural rights of individuals detained" involving
The Brewer court then addressed DSH's contention that changes in the law required that the Osburn order be set aside. The court first rejected the argument that the 14-day deadline contradicted the "reasonable period of time" standard set forth in Mille, stating that "[t]he Mille court was concerned with the period of time within which the defendant must be evaluated while at the state hospital, not the time [DSH] needed to secure his admission thereto." (Brewer, supra, 235 Cal.App.4th at p. 139.) The court did, however, conclude that the 2014 amendments to section 1370, made after the trial court had modified the Osburn order, constituted a material change in the law. (Brewer, at p. 142.)
The court in Brewer rejected the petitioners' suggestion that the court could merely modify the order to conform to the new statutory scheme, concluding that Assembly Bill No. 1468 (2013-2014 Reg. Sess.) constituted a material change in the law, which "may have a greater effect on the Osburn [o]rder than simply the changes discussed ante. These changes in the law may also affect the reasonableness of a mandatory 14-day deadline for transfer to the state hospital after the commitment order. The Department now has additional duties to perform before admission of a defendant to a state hospital, including selecting the most appropriate hospital or treatment facility for restorative treatment after review of the 1370 packet and other documents. Compilation of the section 1370 packet may take additional time as it now must include the defendant's medical records.... The trial court must carefully consider whether the 14-day deadline is reasonable in light of these additional duties.
"Indeed, given the additional individualized assessment now required after the Department receives the 1370 packet, the trial court must determine not only whether a short 14-day deadline from the date of the commitment order
In a concurring and dissenting opinion in Brewer, Justice Nicholson agreed that the injunction should be dissolved and the matter remanded to the trial court, but disagreed about what should be done on remand. (Brewer, supra, 235 Cal.App.4th at p. 143 (conc. & dis. opn. of Nicholson, Acting P. J.).) In his view, the law "requires the court to decide each defendant's petition for writ of habeas corpus on its own unique facts." (Ibid. (conc. & dis. opn. of Nicholson, Acting P. J.).) Justice Nicholson would find the Osburn order an abuse of discretion "because (1) it is unhinged from constitutional due process doctrine and inconsistent with precedent binding on the superior court, (2) it ignores the rights of IST defendants when the superior court fails to prepare the intake packet, and (3) it forces the Department to give defendants from Sacramento County, only one of 58 counties, preference when resources are limited." (Id. at p. 150 (conc. & dis. opn. of Nicholson, Acting P. J.).)
First, Justice Nicholson believed that "the reasonable period of time" an IST defendant may be held, as discussed in Jackson, Davis, and Mille, cannot be arbitrarily set by a court to apply to all IST defendants in a particular county. (Brewer, supra, 235 Cal.App.4th at p. 151 (conc. & dis. opn. of Nicholson, Acting P. J.).) In his view, the trial court and majority's assumption that every such case is substantially the same was "the type of uniform but arbitrary time limit rejected in Jackson, supra, 406 U.S. at page 738." (Brewer, at p. 151 (conc. & dis. opn. of Nicholson, Acting P. J.).)
Second, Justice Nicholson believed that there was "a gaping hole in the [Osburn] order that potentially allows a defendant to languish in county jail long after any reasonable period of time to transfer the defendant to the Department has expired. That gaping hole is the exception that there is no
Finally, Justice Nicholson noted that the Osburn order applied to only "a small fraction of statewide IST defendants." (Brewer, supra, 235 Cal.App.4th at p. 153 (conc. & dis. opn. of Nicholson, Acting P. J.).) Referring to evidence showing that IST defendants from counties without standing orders must wait longer for admission to a state hospital, he stated: "There is no rational or constitutional justification for affording Sacramento County's IST defendants preference over defendants from other counties. Indeed, the effect of doing so is to encourage other superior courts ... to impose their own arbitrary orders on the beleaguered Department. Chaos ensues." (Id. at p. 154 (conc. & dis. opn. of Nicholson, Acting P. J.).)
Justice Nicholson therefore concluded that "[t]he appropriate remedy for the general problem lies in the legislative and administrative processes of the state and its counties, not in the courts" since "any general remedy from the courts will be arbitrary and uneven." (Brewer, supra, 235 Cal.App.4th at p. 154 (conc. & dis. opn. of Nicholson, Acting P. J.).)
II. Standard of Review
Although this matter arises from consolidated habeas corpus petitions, the trial court granted injunctive relief and the appeal is from that permanent injunction. (See McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1160 [69 Cal.Rptr.2d 692] ["an injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act"], quoted in Brewer, supra, 235 Cal.App.4th at p. 135 [finding that Osburn order was an injunction, and DSH's motion to set aside order was a motion to dissolve that injunction].) "`The trial court's decision to grant a permanent injunction rests within its sound discretion and will not be
In addition, "[i]t is an established rule of law that on appeal from a judgment granting or denying injunctive relief, the law to be applied is that which is current at the time of the appellate court opinion. [Citation.] `"Relief by injunction operates in futuro, and the right to it must be determined as of the date of decision by an appellate court."' [Citation.]" (Kidd v. State of California (1998) 62 Cal.App.4th 386, 407 [72 Cal.Rptr.2d 758]; accord, McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 85, fn. 1 [181 Cal.Rptr. 549, 642 P.2d 460].)
III. Alleged Lack of Fundamental Jurisdiction
DSH contends the trial court's order was inconsistent with section 1370 and violated the separation of powers doctrine because section 1370 does not contain any specific timeline for admission of IST defendants.
Based on the evidence in the record, the trial court reasoned that DSH-Napa was able to produce a 90-day report within 17 to 20 days after an IST defendant was admitted to the hospital. The trial court then balanced the interests of IST defendants with those of DSH-Napa, and concluded that a reasonable period of time within which to transfer IST defendants to DSH-Napa, to ensure that the requirements of subdivision (b)(1) of section 1370 could be satisfied, was no more than 60 days from the date of commitment. (See Brewer, supra, 235 Cal.App.4th at p. 137 ["A court acts within its constitutional core function and does not violate the separation of powers
IV. Alleged Interference with DSH's Discretion
The existence of a standing order does automatically undermine DSH's discretion. In crafting its order, the trial court examined several competing interests: Contra Costa County IST defendants' due process right to receive treatment within a reasonable period of time; the statutory requirements of section 1370, subdivision (b)(1); and DSH-Napa's interest in providing uniform treatment to all 39 counties. The court then carefully balanced all of these interests, and found that 60 days was the outside limit for ensuring timely admission to DSH-Napa for Contra Costa County IST defendants. (See Youngberg v. Romeo (1982) 457 U.S. 307, 321 [73 L.Ed.2d 28, 102 S.Ct. 2452] [in prior case, in determining that procedural due process did not require an adversarial hearing, Supreme Court "weighed the liberty interest of the individual against the legitimate interests of the State, including the fiscal and administrative burdens additional procedures would entail"], citing Parham v. J. R. (1979) 442 U.S. 584, 599-600 [61 L.Ed.2d 101, 99 S.Ct. 2493].)
DSH further argues that the standing order puts it "in the untenable position of either abiding by the standing order and risking legal actions for alleged violations of due process and equal protection rights of IST defendants in other counties, or risking contempt by violating the standing order in order to carry out its discretionary duties pursuant to Penal Code section 1370."
V. Alleged Circumvention of Established Habeas Corpus Procedures
This same contention was rejected in Brewer, supra, 235 Cal.App.4th at page 138, in which the court observed: "`Irrespective of mootness, a habeas corpus petition is "an acceptable vehicle for a general declaration of the procedural rights of individuals detained" involving an issue of general public concern, particularly if it pertains to the administration of criminal justice. [Citation.]' [Citation.] `[A] trial court may grant habeas corpus petitioners "prospective or class relief" to redress recurring deprivations of rights at correctional facilities. [Citation.] The writ is thus an effective and versatile means by which to remedy persistent violations of prisoners' rights, and has been so used. [Citation.]' [Citations.]" We likewise reject DSH's claim that the standing order improperly obviates established habeas corpus procedures.
VI. Effect of the Amendments to Section 1370
As previously noted, Assembly Bill No. 1468 (2013-2014 Reg. Sess.), made changes affecting the commitment of IST defendants to a state hospital. (See pt. I., ante.) The trial court now is required to commit IST defendants to DSH, rather than to a particular hospital, and DSH is required to evaluate each patient to determine placement in the appropriate state hospital, utilizing the 1370 packet, which now must be sent to DSH prior to admission. (§ 1370, subd. (a)(3) & (5); Welf. & Inst. Code, § 7228.) After the amendments, the 1370 packet also must include medical records. (§ 1370, subd. (a)(3)(I).)
In the present case, the parties disagree about the effect of the 2014 amendments to section 1370, which became effective after the trial court issued its order. On the one hand, DSH argues that these changes, which require "additional individualized assessment[s]" (Brewer, supra, 235 Cal.App.4th at p. 142), lend further support to its position that there should not be a single transfer deadline for all IST defendants. Petitioners, on the other hand, argue that the amendments do not "materially affect the order, and require[] remand for only a minor modification," to reflect that DSH now selects the placement location.
We agree with petitioners' assessment. First, the standing order already conditions the 60-day deadline on the hospital's receipt of the defendant's complete 1370 packet within five court days of the commitment order, and
VII. Petitioners' Request for a 30-Day Admission Deadline
Finally, we reject petitioners' argument, made in its cross-appeal, that due process requires that the time limit in the standing order be shortened to 30 days. The court in this case considered all of the evidence presented, along with the need to balance the interests of both IST defendants and DSH, before issuing a thoughtful, comprehensive statement of decision and accompanying order that set a time limit of 60 days. As previously discussed, the evidence supports the court's finding that a 60-day deadline satisfies IST defendants' due process rights, provides sufficient time for DSH to place each defendant, and allows for timely preparation of the 90-day status report pursuant to section 1370, subdivision (b)(1). Although transferring IST defendants in less than 60 days after commitment should of course remain the goal, the trial court's order realistically places an outside limit on what is statutorily and constitutionally permissible.
DISPOSITION
The judgment is affirmed, and the matter is remanded to the trial court for modification of the standing order to reflect the relevant changes to section 1370, as discussed in this opinion. The stay previously issued by this court is dissolved upon finality of this decision.
Richman, J., and Stewart, J., concurred.
FootNotes
We shall discuss the effect of these statutory amendments on the present case in part VI., post.
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