NEEDHAM, J. —
Jordan E. Taitano was determined by the trial court to be incompetent to stand trial. His commitment facility subsequently found there was no substantial likelihood he would be restored to mental competence in the foreseeable future, he completed the three-year maximum commitment period, and he was determined not to be subject to a conservatorship as gravely disabled. The trial court granted Taitano a writ of habeas corpus and released him, concluding that Penal Code section 1368 did not authorize a new competency hearing.
In light of the plain language of the statute, the statutory scheme, the statutory purpose, and existing precedent, we conclude that section 1368 does not authorize a new competency hearing in Taitano's circumstances. We therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
In November 2009, an information charged Taitano with murder, robbery, carjacking, attempted kidnapping, first degree burglary, and two counts of reckless evasion of a police officer resulting in great bodily injury. (Pen. Code, §§ 187, 211, 212.5, subd. (c), 215, 207, subd. (a), 664, subd. (a), 460, subd. (a), Veh. Code, § 2800.3.) During the course of the criminal proceedings against him, it was determined that Taitano was mentally incompetent to stand trial and he was committed to a treatment facility. To provide context for these events before recounting them in greater detail, we first summarize the applicable statutory scheme.
A. Statutory Scheme
Section 1370 then sets forth what happens after the verdict at the competency hearing. "If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged or hearing on the
Within 90 days of commitment, the medical director of the treatment facility must make a written report to the court and the community program director concerning the defendant's progress toward recovery of mental competence and whether any administration of antipsychotic medication remains necessary. (§ 1370, subd. (b)(1).) Thereafter, at six-month intervals or until the defendant becomes mentally competent, the facility must report in writing regarding a confined defendant's progress toward recovery of mental competence. (§ 1370, subd. (b)(1).)
If the treatment facility determines that the defendant has regained mental competence, the fact of restoration to competency must be certified to the court, which in turn decides whether to approve the certification. (§§ 1372, subds. (a)(1), (d), § 1370, subd. (a)(1)(C).) If the court approves the certification, criminal proceedings are resumed.
If the defendant has not recovered mental competence but the report discloses there is a substantial likelihood that he or she will regain competence in the foreseeable future, the defendant remains in the state hospital or other treatment facility up to a statutory maximum confinement period. (See § 1370, subd. (b)(1).)
If the defendant remains hospitalized for 18 months — the halfway mark to the statutory maximum commitment period — he or she is "returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369." (§ 1370, subd. (b)(4).) In other words, the court in this instance must determine again the defendant's competency to stand trial at a hearing. The court also determines if the defendant is gravely disabled for purposes of a conservatorship. (§ 1370, subd. (c)(2).)
Finally, the defendant is returned to court at the end of the maximum statutory commitment period. Subdivision (c)(1) of section 1370 reads: "At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, ... whichever is shorter, but no later than 90 days prior to the expiration of the defendant's term of commitment, a defendant who has not recovered mental competence shall be returned to the committing court." The court then determines whether the defendant is gravely disabled for purposes of a conservatorship. (§ 1370, subd. (c)(2).)
B. Taitano's Commitment
1. Section 1368 and Section 1369 Proceedings
In March 2011, Taitano's defense counsel declared a doubt as to Taitano's competence, and the trial court ordered a competency hearing. (§ 1368.) Three evaluators opined that Taitano was incompetent to stand trial because he suffered from delusions making it impossible for him to provide rational assistance to his attorney in his defense. In November 2011, a jury found Taitano competent to stand trial, but the trial court granted a motion for judgment notwithstanding the verdict and found him incompetent. (§ 1369.) The court committed Taitano to the State Department of Mental Health for treatment in April 2012.
2. Section 1370 Proceedings
In May 2013, Atascadero State Hospital reported there was no substantial likelihood Taitano would regain mental competence in the foreseeable future. (§ 1370, subd. (b)(1).) Accordingly, Taitano was returned to court in July 2013 for proceedings pursuant to section 1370, subdivision (c)(2). (See § 1370, subd. (b)(1)(A).) The court referred the matter to the Contra Costa Public Guardian, as the conservatorship investigator for the county, to investigate conservatorship. (See § 1370, subd. (c)(2).)
The public guardian concluded that Taitano was not gravely disabled within the meaning of the LPS Act for a Murphy or other conservatorship. (See Welf. & Inst. Code, § 5008, subd. (h)(1)(A)-(B).) While he posed a danger to others in the community, the threat he posed was not attributable to a mental illness or his diagnosed disorder. No conservatorship petition was filed.
3. Taitano's Initial Habeas Corpus Petition and Appeal
In November 2013, Taitano filed a petition in the trial court for a writ of habeas corpus, seeking his release. The People filed a petition for a writ of
The trial court granted Taitano's petition for writ of habeas corpus and denied the People's petition for a writ of mandate in February 2014. The court concluded that the public guardian's decision not to file a petition for a Murphy conservatorship was a nonreviewable exercise of discretion.
The People appealed from the orders, and we reversed. Although the conservatorship investigator has the sole discretion to determine whether a petition should be filed after a section 1370, subdivision (c)(2) referral, the court may "review the ... decision for abuse of discretion and, if appropriate, order the Public Guardian to exercise its discretion in accordance with the law." Because it did not appear that the conservatorship investigator had obtained the requisite opinion from a qualified mental health professional, we reversed the order granting the habeas corpus petition and denying the mandamus petition, and remanded for the trial court to direct the public guardian to obtain a psychological or psychiatric evaluation addressing the elements of a Murphy conservatorship and to hold a new hearing.
4. Section 1370 Proceedings After Remand
On remand, at the public guardian's direction, Taitano was evaluated by a licensed psychologist with a doctorate in forensic psychology. In a March 2015 report, the psychologist opined that Taitano was not gravely disabled for purposes of imposing a Murphy conservatorship because he "does not appear to meet the requirement ... that he is incompetent as a result of a mental health disorder" (underscoring omitted) and also because his risk of dangerousness was "not a result of mental disorder, but of criminal behavior and the ingestion of methamphetamines." The psychologist recommended that no petition for a Murphy conservatorship be filed, but that "Taitano should be re-evaluated for competency at this time."
On April 1, 2015, the People filed a "Motion to Re-evaluate the Defendant's Competency" in Taitano's criminal and habeas corpus cases. The People argued that Taitano's competence to stand trial was not static and there had been a substantial change of circumstances and new evidence as to his competence, including the psychologist's recent evaluation and information in Taitano's jail and Atascadero State Hospital medical records that postdated the 2011 competency trial.
The court ordered the county medical health director, Dr. Omri Berger, to reevaluate Taitano's competence. Berger filed an August 2015 report, which was based in part on interviews of Taitano in July and August 2015. The county medical health director's reevaluation of Taitano was that Taitano was not competent to stand trial.
In August 2015, Taitano filed a supplement to his pending habeas corpus petition. He argued he must be released from custody because "the state hospital has found that he is unlikely to be restored [to competence] in the foreseeable future, he has since reached his maximum commitment, and the Public Guardian has concluded that he does not meet criteria for a conservatorship." (See § 1370, subds. (b)(1), (c)(1), (2).)
The prosecutor opposed Taitano's habeas corpus petition and made three alternative requests to avoid dismissal of the case and Taitano's release: (1) a second trial on the issue of Taitano's competency under section 1368 due to "new" (that is, postdating the earlier competency trial) facts or circumstances; (2) recommitment of Taitano to the state hospital for periodic 90-day reviews based on new facts or circumstances; or (3) reevaluation of Taitano for a Murphy conservatorship based on new facts or circumstances.
At a hearing on the People's motion to reevaluate Taitano's competency and Taitano's habeas corpus petition in September 2015, the court tentatively rejected the People's second and third alternative forms of relief, observing there were no grounds for a Murphy conservatorship because there was no evidence Taitano was currently dangerous as a result of a mental disorder, and Taitano could not be sent for additional treatment because he already served his maximum statutory commitment — which the prosecutor did not dispute. As to the request for a new competency hearing, the court took note of an appellate court decision (since depublished) that supported the prosecutor's position: the court had held that section 1368 authorizes a court to hold a new competency hearing for an incompetent defendant if new evidence or changed circumstances suggest he may be presently competent. In light of
Before the next hearing date, the California Supreme Court ordered depublication of the appellate opinion on which the trial court had relied.
At the reconvened hearing in November 2015, the trial court concluded that, due to the depublication, it had no authority to hold a new competency hearing. The court denied the People's motion to reevaluate Taitano's competency, granted Taitano's habeas corpus petition, and ordered Taitano released. There is no indication in the record that the felony charges against Taitano have been dismissed.
The People appealed from the order granting Taitano's writ of habeas corpus and (implicit) order denying the request for a new competency hearing.
The People contend the trial court erred because section 1368 authorizes the court to conduct a new hearing to determine Taitano's mental competence. As framed by the parties' briefs, we are called upon to address a narrow question: After a defendant has been adjudicated mentally incompetent to stand trial under section 1369, the commitment facility has determined under section 1370 that there is no substantial likelihood the defendant will regain mental competence in the foreseeable future, the public guardian has determined the defendant is not appropriate for a Murphy conservatorship, and the defendant has served the entirety of the statutory maximum commitment term, can the trial court rely on section 1368 to hold a new hearing as to the defendant's mental competence to stand trial on the criminal charges?
Because Taitano has been adjudicated mentally incompetent to stand trial and served his commitment term, his circumstances are described in section 1370 and we must begin our analysis there. We will then turn to section 1368.
A. Section 1370 Does Not Authorize a New Competency Hearing
After Taitano was committed to a treatment facility, the facility determined that it was not reasonably likely he would regain competence in the foreseeable future. That placed Taitano squarely within the province of section 1370, subdivision (b)(1)(A), which provides that he would be "returned to the court for proceedings pursuant to [section 1370, subdivision (c)(2)]." Pursuant to section 1370, subdivision (c)(2), the court determines whether the defendant is "gravely disabled" and whether to order the conservatorship investigator to initiate conservatorship proceedings. Section 1370, subdivision (c)(2) does not provide for Taitano to be returned to court for a new competency hearing.
By its terms, therefore, nothing in section 1370 calls for Taitano, in his present circumstances, to be returned to the court for a competency hearing.
Instructive in this regard is People v. Quiroz (2016) 244 Cal.App.4th 1371 [198 Cal.Rptr.3d 923] (Quiroz). There, the defendant was declared incompetent to stand trial and committed for treatment, the state hospital certified him to be mentally competent and proceedings resumed, and later the court again found him incompetent and committed him for treatment. In its final report, the state hospital stated that the defendant remained incompetent to stand trial and was unlikely to regain competency in the foreseeable future. The court ordered the public guardian to initiate proceedings for a Murphy conservatorship, but the public guardian found that the defendant did not meet the requirements for a conservatorship. The defendant filed a motion to be released from custody and to dismiss the information, but the trial court denied the motion, reasoning that since a hearing is contemplated when a
The Court of Appeal in Quiroz held that, in light of the statutory scheme, the trial court exceeded its jurisdiction when it convened the competency hearing after the hospital had issued its no substantial likelihood certification. (Quiroz, supra, 244 Cal.App.4th at pp. 1375, 1377.) The court noted that a competency hearing is a special proceeding, such that the statutory procedure must be strictly followed. (Id. at p. 1379.) The court concluded: "If a defendant is returned to court upon a finding of no substantial likelihood or upon completing the maximum term of commitment, the trial court may determine only whether to initiate Murphy conservatorship proceedings, dismiss the charges against the defendant and order him released from confinement, or dismiss the charges and initiate other appropriate commitment proceedings under the LPS Act. [Citations.] The court does not have authority to convene a competency hearing at that point." (Id. at p. 1377.)
Quiroz viewed the statutory scheme essentially as we do. In the words of the court in Quiroz: "In the amended competency statutes, the Legislature provided for competency hearings in certain circumstances, but not in the circumstance presented by this case. The trial court must convene a competency hearing while the criminal action is pending and the defendant is not under commitment if the court doubts the defendant's competency. (§ 1368.) The trial court must convene a competency hearing after the defendant has been committed for 18 months. (§ 1370, subd. (b)(4).) And the trial court may convene a competency hearing when the state hospital certifies the defendant has regained competence. (§ 1372, subd. (c); [citation].) [¶] However, nowhere in the statutes did the Legislature authorize a trial court to convene a new competency hearing upon the prosecution's request when the hospital returns the defendant from commitment at the end of three years or upon the hospital's finding of no substantial likelihood of regaining competency to stand trial. Nor do the statutes authorize the trial court to convene a competency hearing upon the prosecution's request when the public guardian determines not to initiate conservatorship proceedings.... [¶] The statute's language demonstrates the Legislature did not intend for courts to hold competency hearings upon a defendant's return after completing the maximum commitment. When the Legislature intends the court to hold a competency hearing, it expressly says so." (Quiroz, supra, 244 Cal.App.4th at p. 1380.)
B. Section 1368 Does Not Authorize a New Competency Hearing Here
1. Statutory Language
Section 1368 reads: "If, during the pendency of an action and prior to judgment, ... a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record," inquire of defense counsel, and depending on counsel's position must or may order a competency hearing. (§ 1368, subd. (a), italics added.) If the court orders a competency hearing, "all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined." (Id., subd. (c), italics added.)
First, the statute refers to a judge's doubt "as to the mental competence of the defendant," not a doubt as to the mental competence or incompetence of the defendant. (§1368, subd. (a), italics added.) Second, the statute refers to a doubt arising as to the defendant's competence "during the pendency of an action and prior to judgment." (Id., subd. (a).) Here, as of the time of the habeas corpus petition hearing, it was still "prior to judgment" since there was no conviction or dismissal of the charges. But "during the pendency of an action" must mean something else, since both phrases must be given effect. In light of the evident statutory purpose that an incompetent defendant not be held to stand trial, the phrase "during the pendency of an action" must refer to a time when criminal proceedings are still active and pose a threat that the defendant will be tried and convicted. Third, because section 1368 directs the court to suspend "all proceedings in the criminal prosecution" if it grants a competency hearing, section 1368 must apply at a time when there
2. Statutory Scheme
The structure of the statutory scheme also indicates that section 1368 does not apply to defendants who, like Taitano, have already been committed to a treatment facility and served their maximum statutory commitment period.
The statutory scheme begins with section 1367, which sets forth the fundamental principle that mentally incompetent defendants cannot be tried. Its ensuing sections then proceed to explain, in a step-by-step chronological approach, what happens to the defendant. Section 1368 tells us that criminal proceedings must be stopped if the defendant's competency is questioned by the court, so that competency can be determined. Section 1369 sets forth the procedure for then determining at a hearing whether the defendant is competent. And then section 1370 addresses what happens to the defendant if — as has occurred here with Taitano — the defendant has been found at the hearing to be incompetent. Section 1370 never refers back to section 1368. Instead, it describes a set of procedures which, as explained ante, do not mention any new competency hearing except at the 18-month mark of confinement.
3. The Cases on Which the People Rely Are Inapposite
The People refer us to two cases asserting that a second competency hearing can be held under section 1368 upon changed circumstances after the defendant was found at the first hearing to be competent. (People v. Murrell (1987) 196 Cal.App.3d 822, 827 [242 Cal.Rptr. 175] [after a finding of competence, the court was "obligated to reinitiate section 1368 proceedings only if defendant presented substantially new evidence or changed circumstances"]; People v. Zatko (1978) 80 Cal.App.3d 534, 548 [145 Cal.Rptr. 643] [court may not avoid responsibility to make proper inquiry regarding a defendant's capacity to stand trial by relying solely upon a pretrial decision or pretrial psychiatric reports where, "during the trial or prior to the sentencing, he is presented with a substantial change of circumstances or with new
In those cases, however, the defendant had been adjudicated to be competent, so criminal proceedings were active against the defendant. Obviously in those instances, the court might have to revisit the issue of competency in order to fulfill the statutory purpose of ensuring that a mentally incompetent person is not tried and convicted. Those cases, in other words, targeted situations where section 1368 might still apply. Taitano's case does not.
4. Statutory Purposes
The statutory purposes of section 1367 et seq. are to make sure (1) a mentally incompetent criminal defendant is not tried, and (2) the mentally incompetent defendant is confined for incompetency only for a period reasonable for his or her competence to be restored. (E.g., People v. Ary, supra, 51 Cal.4th at pp. 517-518; Davis, supra, 8 Cal.3d at p. 801; Polk, supra, 71 Cal.App.4th at pp. 1236-1237.) Here, Taitano has served his maximum statutory commitment period without restoration to competency and has been found inappropriate for a conservatorship. Since he served the maximum term of commitment under the terms of the statute, he cannot be confined any longer. (See also Davis, supra, 8 Cal.3d at p. 801.) And since Taitano must be released under the terms of the statute, it is unnecessary to have a competency hearing to determine whether he should be released.
The People argue that the court should nonetheless be able to conduct a new competency hearing because another purpose of the statutory scheme is to ensure that defendants adjudicated as incompetent will stand trial for a criminal offense if they become competent. (Citing People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796, 798 [215 Cal.Rptr. 482].) McPeters, however, did not hold that the statutory scheme had such a purpose, but instead "accept[ed] defendant's premise that the purpose of section 1368 is to avoid the due process violation which results from conviction of an accused person who is mentally incompetent to stand trial." (Ibid.) In any event, a concern that a defendant should be brought to trial once restored to competence is already addressed by the express directives of the statutory scheme: if at any point during the maximum statutory confinement period the committing facility certifies that the defendant's competence is restored and the court
In the final analysis, the Legislature knows how to weigh the competing policy considerations and state when a defendant committed to a mental facility under section 1370 may be returned to court, and for what purpose. In the circumstances in which Taitano finds himself — no reasonable likelihood of restoration to competence in the foreseeable future and the end of his maximum commitment time — the Legislature has provided that he can be returned to court for a possible conservatorship, but it has not provided for a new trial on competency.
Appellant has failed to establish its theory that section 1368 authorizes a competency hearing after an incompetent defendant has served the full maximum statutory commitment period.
C. Authority to Conduct a Section 1369 Competency Hearing Is Not Implied
There is no question that section 1370 does not expressly authorize a competency hearing when a defendant committed under section 1370 has served the mandatory statutory commitment period, without a determination
Appellant argues that, under section 1370, subdivision (d), after a defendant is returned to court "the criminal action remains subject to dismissal pursuant to Section 1385." Appellant contends this implies the court may hold a new competency hearing after a defendant has served his or her maximum commitment term: if the court could not reassess a defendant's competency when he or she reached the maximum term of commitment, dismissal of the charges would be mandatory, not permissive.
In sum, appellant has not demonstrated that the trial court had express or implied authority to hold a new competency hearing under the particular circumstances of this case. On that basis, the orders must be affirmed.
Nonetheless, looking forward from a practical point of view, one might wonder what should happen when an incompetent defendant has served the maximum commitment term, is ineligible for a Murphy conservatorship, and is released from confinement, yet the trial court declines to dismiss the charges. Should the statute be amended to specify that the court must dismiss the charges if the defendant is released at the end of the commitment period after a finding of no substantial likelihood of restoration to competency? Or should section 1370 be amended to authorize a new competence hearing, at least upon a showing of new facts and circumstances indicating a change in competency, so the prosecution may proceed if the defendant is found to have regained competency after release from confinement? Just as appellant has not demonstrated that the Legislature intended to allow courts to hold a competence hearing when the statute does not authorize one, it is not clear that the Legislature would want the prosecution to be automatically and forever barred from proceeding if the defendant regained competency, merely because of the defendant's release from confinement.
While these are interesting questions, it is not our role to answer them. Nor would it be our prerogative to tinker with the legislative scheme or add our
Appellant has failed to demonstrate error in the trial court's rulings.
The orders are affirmed.
Simons, Acting P. J., concurred.
BRUINIERS, J., Concurring and Dissenting. —
I concur in the disposition. I do not agree, however, with my colleagues' conclusion that the Legislature clearly intended that no further competency hearing would occur in the circumstances presented here, and I do not understand our holding to shield Jordan E. Taitano from further prosecution on the currently pending charges — an issue the majority does not directly address.
I agree with the majority that the Legislature appears to have provided a reasonably comprehensive scheme for review of competency and for competency proceedings within the three-year commitment limit imposed by Penal Code section 1370. I disagree, however, that the Legislature intended only two options when an incompetent defendant has been committed for the maximum time allowed for treatment to restore competence and is returned to the court without a finding of competence. The Legislature has simply failed
Applying ordinary principles of statutory construction,
First, the scheme recognizes that mental incompetence may be transitory and that a defendant determined to be incompetent at one point in time may later regain capacity and competence. (See Pen. Code, §§ 1370, subd. (a)(1)(C), 1372, subds. (a)(1), (b), (c).)
Second, the statutory scheme recognizes that a defendant's competence at any point in time may be a disputed issue of fact, as it was here, subject to determination by the court or by a jury. It is clear that the Legislature did not intend a commitment facility to have the final word on a committed defendant's competence. When a defendant is certified as restored to competence during the commitment period, the court holds a competency hearing if the issue is contested and at that hearing the defendant may or may not be found competent despite the facility's certification. (§ 1372, subds. (a), (c), (d); People v. Mixon (1990) 225 Cal.App.3d 1471, 1482 [275 Cal.Rptr. 817]; People v. Murrell (1987) 196 Cal.App.3d 822, 826 [242 Cal.Rptr. 175].) When a defendant has been committed for 18 months, the court must hold a new competency hearing at which the defendant may or may not be found competent despite the facility's failure to certify the defendant as having
Third, one purpose of the scheme must be to ensure a competent defendant's prosecution. (See § 1368, subd. (a) [authorizing a trial court to inquire into a defendant's competence "during the pendency of an action" (i.e., while the charges are still pending) and "prior to judgment"].) The majority at one point appears to acknowledge that the Legislature balanced "the People's interest in prosecuting defendants who are, in fact, competent to stand trial" against incompetent defendants' interests in not being tried or indefinitely confined. (Maj. opn., ante, at p. 244 see People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796, 798 [215 Cal.Rptr. 482] ["[n]either justice nor due process of law is served if defendant is erroneously found to be incompetent to stand trial when, in fact, he is competent"].) Later, however, the majority writes that the "statutory purposes of section 1367 et seq." are only to protect the incompetent defendant's interests, and appears to question the People's argument that one purpose of the statutory scheme is "to ensure that defendants adjudicated as incompetent will stand trial for a criminal offense if they become competent."
I find it inconceivable as a matter of common sense that the Legislature did not intend to ensure the prosecution of defendants like Taitano, charged with serious felonies, including homicide, if they later regained competence. On the contrary, it is easy to infer from the statutory structure — which requires a defendant to be returned to court for possible prosecution whenever the defendant is certified as restored to competence (§§ 1370, subd. (b)(1), 1372, subds. (a)-(c)) and after 18 months regardless of whether the defendant was so certified (§ 1370, subd. (b)(4)) — that the Legislature recognized that "the
My primary concern with the majority opinion is that it could be construed to treat the maximum term of commitment for treatment to restore a defendant to competence in section 1370, subdivision (c)(1) as a de facto
In 1980, the California Supreme Court held that an incompetent defendant may be indefinitely committed under a Murphy conservatorship only upon a finding of current dangerousness as a result of a mental disease, defect or disorder. (Conservatorship of Hofferber, supra, 28 Cal.3d at pp. 176-177.) Defendants like Taitano who continued to face serious charges but were found not currently dangerous under this standard, therefore, had to be released from commitment for treatment unless they otherwise qualified for an a Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) conservatorship. The Legislature never amended the definition of a Murphy conservatorship to reflect the Supreme Court's holding or otherwise enacted legislation responsive to the decision. The Legislature effectively acquiesced to Conservatorship of Hofferber, concluding most incompetent defendants would be found currently dangerous and thus indefinitely confined under a Murphy conservatorship and subject to possible future prosecution unless the charges were affirmatively dismissed. I do not believe it is reasonable to infer from this history or from the current statutory scheme a legislative intent that the rare defendant in Taitano's situation, who may not be confined pursuant to a Murphy conservatorship, would therefore be forever shielded from a future competency hearing and prosecution on still-pending serious felony charges. I certainly would not attempt to divine such intent on the part of the Legislature on an issue that it is unlikely to have considered at all.