P. v. Haner

Filed 11/30/09 P. v. Haner CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Appellant is presently committed to the Napa State Hospital for a term of two years, expiring on or about September 26, 2010, pursuant to a commitment order which was based on a previous finding that appellant was not guilty by reason of insanity of a 1997 conviction for burglary and receiving stolen property. He appeals, claiming that the trial court lacked jurisdiction to extend its prior commitment order because that order had expired. The People agree that the trial court acted without jurisdiction in further committing appellant. We also agree, and hence reverse the trial courts order and remand the matter to that court for any further appropriate civil proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND

This is the third time this matter has been before us. Regarding the factual background, we will first quote from our prior unpublished opinion of September 26, 2008, i.e., the second appeal we considered regarding appellant:

On May 28, 1997, Haner was charged with one felony count of burglary (Pen. Code, 459[1]) and one felony count of receiving stolen property ( 496, subd. (a)). The information also alleged two enhancements: one for a prior serious felony conviction ( 667, subd. (a)(1), 1192.7, subd. (c)) and a prior strike conviction ( 1170.12).

On June 20, 1997, Haner appeared before the court and entered a plea of not guilty by reason of insanity. On July 10, 1997, Haner waived his right to a trial on the issue of his guilt by reason of insanity and submitted the matter to the court on the reports of two doctors. The court then found Haner not guilty by reason of insanity.

The court then stated, What about misdemeanors? Hes got two felonies. . . . Four fifty-nine and four ninety six [apparently a reference to the burglary and receiving stolen property counts], found not guilty by reason of insanity on both of those. The court asked the People if they wanted to dismiss the two misdemeanors? The People replied in the affirmative and the court ordered the charged misdemeanors . . . dismissed upon motion of the district attorneys office.

On August 5, 1997, the court ordered Haner placed at Atascadero State Hospital for treatment for his mental illness. The court stated that the maximum period for residential burglary is six years and sentenced Haner to his maximum period of confinement at Atascadero State Hospital: six years. The court requested that the People prepare the appropriate order for signature.

An order of commitment pursuant to section 1026 was filed on August 28, 1997. In this commitment order, the court reiterated Haners plea as to residential burglary ( 459) and receiving stolen property ( 496, subd. (a)) and its finding of not guilty by reason of insanity. The court then ordered that Haner be committed to Atascadero State Hospital for care and treatment as a mentally disordered person as provided in Section 1026 of the Penal Code of the State of California, for a maximum term of six (6) years.

On September 23, 1998, thirteen months after the commitment order was filed, and well after the time for appealing the judgment had passed, a member of the legal section of the Napa State Hospital contacted the trial court and asked that the court clarify the six-year term in relation to the specific offenses for which Mr. Haner was found NGI [not guilty by reason of insanity], and including disposition of the charges in the Information which lists a prior serious conviction and a prior strike conviction in addition to Counts I and II. The letter also noted that [n]o mention of pre-commitment custody credit was made in the commitment order.

On January 28, 1999, the court held a hearing on this letter request. Defendant was present and represented by counsel. At the hearing the court told the defendants counsel: I dont know what happened. I committed Mr. Haner to Napa State Hospital, and I dont know whether it was myself or the district attorneys office or whatever, but we miscalculated his maximum period of time that he could be kept at Napa State Hospital. The period of time in the minute order I guess was six years . . . . The court asked the People how much defendants actual time was and the People responded that it was 17 years.

Apparently unfamiliar with defendants case, defense counsel responded to the courts question about the nature of defendants earlier plea by asking the People whether his client pled NGI as to the entire information and was found NGI as to the entire information? The People stated, yes, thats what my notes indicate.

Defense counsel then calculated defendants sentence as follows: Well I can see that the maximum period of Mr. Haners exposure would have been six years for Count I, doubled. Count II would go out 654. Five years for the prior serious felony so it is a total of 17 years so Id submit the issue.

The trial court stated: All right. The Court then corrects its earlier order that the maximum period of confinement in this case for the defendant is as stated by [the People and defense attorney]. And that maximum period of confinement is 17 years as calculated. The court then directed the district attorneys office to prepare an order for this Courts signature recalculating the maximum period of confinement . . . .

The court issued an amended commitment order on February 2, 1999, increasing defendants maximum term of commitment to 17 years.

More than seven years after the trial court increased defendants maximum period of confinement, on August 9, 2007, defendant filed, in pro per, a Request for Court to Recalculate Sentence and to Immediately and . . . Unconditionally Release Defendant From all Forms of Actual and Constructive Custody. In this request, defendant argued that the trial court was without jurisdiction or acted in excess of its jurisdiction when it increased his sentence at the January 28, 1999, resentencing hearing. He also stated that he was not informed that he could appeal the adverse modification of his sentence . . . .

Defendants motion was summarily denied on August 14, 2007, and this appeal was timely filed on August 27, 2007. (People v. Haner (A118954, Sept. 26, 2008) [nonpub. opn.] (hereafter Haner 2008 opinion).)

In our opinion in that appeal, we agreed with both parties that the trial court had erred in increasing appellants sentence at the January 28, 1999, resentencing hearing. We agreed with appellant that the trial court had lost jurisdiction to resentence appellant, and hence remanded the matter to the trial court for reinstatement of the courts original commitment order and any other proceedings not inconsistent with this opinion, including proceedings to determine whether defendant is still in need of mental health treatment. (Haner 2008 opinion, p. 6.)

On October 20, 2008,[2] the Sonoma County District Attorneys office filed a petition to extend appellants commitment pursuant to section 1026.5. A hearing on that petition was held on December 4. At that hearing, the prosecutor contended that his offices October 20 filing, less than a month after this courts remand order, excused that offices noncompliance with the time limits specified in section 1026.5. Appellants counsel argued that his client was not eligible for any recommitment because he should have been released years ago. The Court had no jurisdiction in increasing his maximum commitment.

The court then stated that it was reinstating the August 5, 1997, order of commitment, an order which is for a maximum of six years. It also found that the section 1026.5 petition filed by the prosecution on October 20 is now a viable petition that needs to be set within 30 days with a refiling as of today based on the Peoples representation. (Haner 2008 opinion, p. 10.) A trial was set for December 18. (Ibid.)

Shortly after the December 4 hearing, the People filed another section 1026.5 petition. It did not identify any expiration date of appellants current commitment, but stated that he had been transferred to the Napa State Hospital which, it alleged, is presently requesting a further extension of defendants commitment. The assessment and evaluation of appellant attached to this section 1026.5 petition was dated July 23, 2008, i.e., a date prior to this courts remand order, and incorrectly cited appellants maximum confinement period as expiring in April 2015.

On December 18, appellant agreed to a court trial. At that trial, the court heard testimony from one doctor and then reviewed various written reports regarding appellants status and condition. After so doing, it ruled that the prosecution had met its burden of proof regarding appellants condition, and that he suffered from a mental disease/defective disorder as a result of which he now does pose a substantial danger of physical harm to others and he does have difficulty controlling his dangerous behavior.

The court thereupon ordered appellants confinement to run for two years from September 26, the date of this courts remand order.

On January 14, 2009, appellant filed a timely notice of appeal.

III. DISCUSSION

The parties are in agreement that the trial court erred in both its interpretation of our order at the conclusion of our September 26, 2008, opinion and regarding the issue of whether it had jurisdiction to continue appellants commitment. And, as noted, we agree with their position.[3]

To sum up the key facts in this case: (1) in 1997, appellant was properly committed for a term of six years under section 1026; (2) as discussed in our September 2008 unpublished opinion, and as conceded by the People both in that appeal and now, the trial court erred when, in February 1999, it increased the period of his commitment to 17 years because, among other things, once the 1997 commitment order was filed, the trial court lost jurisdiction to resentence defendant to a longer term (Haner 2008 opinion, p. 5); (3) thus, as of 2008, the only valid commitment order pertaining to appellant was the 1997 order committing him for a period of six years, i.e., a commitment which by definition expired in 2003; (4) in our 2008 opinion, we specifically declined the Peoples request that we remand this matter to the trial court to conduct a second sentencing hearing, stating that that court does not have jurisdiction to reconsider its commitment order. (Id. at pp. 5 & 6.) We concluded that opinion by holding that (5) appellant had not waived his right to challenge the jurisdiction of the court (id. at p. 6) and (6) the People had forfeited any claim of error they might have had regarding the proper term of commitment ordered in 1997 by not appealing from that order. (Id. at p. 6, fn. 3.)

The problem the trial court apparently had in the latest round of this matter apparently stemmed from our September 26, 2008, dispositional order, which read: The trial courts amended commitment order filed on February 2, 1999, is vacated. This matter is remanded to the trial court for reinstatement of the courts original commitment order and any other proceedings not inconsistent with this opinion, including proceedings to determine whether defendant is still in need of mental health treatment. (Haner 2008 opinion, p. 6.)

At the December 4 hearing, the prosecutor argued, and the trial court agreed, that by our phrases other proceedings not inconsistent with this opinion and including proceedings to determine whether the defendant is still in need of mental health treatment, we must have intended to rulenotwithstanding our earlier statements concerning the courts lack of jurisdictionthat it could recommit appellant. Appellants counsel pointed out to the court that the last phrases of our September 26, 2008, remand order could well have meant conservatorship proceedings and that a conservatorship might be the perfect sort of vehicle to handle this situation. (Haner 2008 opinion, pp. 8-9.) However, neither the prosecutor nor the trial court accepted this line of reasoning. (Id. at pp. 9-10.)

To the extent we could have been more specific in the concluding words used in our remand order of September 26, 2008, i.e., that what we meant was possible further civil commitment proceedings, we regret it.[4] But we could not have made clearer to the parties and the trial court that, as of just last year, that court does not have jurisdiction to reconsider its commitment order. (Haner 2008 opinion, p. 6.) As the Attorney General points out in his brief to us, under the applicable case law, the trial court erred in its renewed commitment orders because such orders (i.e., both the February 1999 and September 2008 orders) were entered either when the court lacked jurisdiction to do so or long after the term of appellants original six-year commitment order had expired. (Cf., People v. McCune (1995) 37 Cal.App.4th 686, 690; People v. Minahen (1986) 179 Cal.App.3d 180, 189-191; People v. Mitchell (2005) 127 Cal.App.4th 936, 946.)

IV. DISPOSITION

The trial courts order denying appellants motion to dismiss the petition extending his commitment is reversed and the trial court directed to grant that motion. The matter is remanded to the superior court for the entry of such an order and further proceedings consistent with this opinion, including possible civil proceedings as noted above.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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[1] All further statutory references are to the Penal Code, unless otherwise noted.

[2] Unless otherwise noted, all further dates noted are in 2008.

[3] Because we agree with the parties regarding the untimeliness of both the current (October 2008) and the former (February 1999) petitions, we do not reach the alternative, constitutional issues raised by appellant.

[4] As the Attorney General points out in his brief on this appeal, proceedings under the Lanterman-Petris-Short Act (Welf. & Inst. Code  5000 et seq.) are presumably still available. (See People v. Allen (2007) 42 Cal.4th 91, 107-108.)