Criminal Appeal

At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must be construed to require proof that the person under commitment has serious difficulty controlling dangerous behavior. Since Howard N. was decided, a number of Courts of Appeal have addressed whether this “control” element applies to not guilty by reason of insanity (NGI) extended commitment proceedings as well.

The First, Third, and Fifth Districts have all concluded that due process compels such a finding at NGI extended commitment proceedings. (People v. Zapisek (2007) 144 Cal.App.4th 1151 [First District]; People v. Galindo (2006) 142 Cal.App.4th 531 [Third District]; People v. Bowers (2006) 145 Cal.App.4th 870 [Fifth District].)

Because all three of these cases involved court trials, none of them offered the occasion to determine whether a corresponding instructional duty in a jury trial existed as well. Division Two of the First District Court of Appeal, however, recently addressed the question of whether instruction on this element is required in a jury trial. In People v. Sudar (A115464), the Court of Appeal held that “the trial court erred in failing to instruct the jury pursuant to Howard N.” that it had to find the insanity acquittee had “‘at the very least, serious difficulty controlling his potentially dangerous behavior.’” The Court of Appeal also concluded that failure to instruct on the “control” element is subject to the Chapman harmless error standard of review applicable to federal constitutional trial errors. Pursuant to that standard, the Court of Appeal found the instructional error in this case non-prejudicial and affirmed the insanity acquittee's extended commitment.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Sudar, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/18/07, ordered published 1/2/2008)

Late-Filed Civil Commitment Petition Requires Dismissal

California Penal Code section 2960 et seq. provides for the civil commitment of certain mentally disordered offenders (MDOs) during and after their parole period. The MDO Act contains a number of statutorily created deadlines that govern the original commitment and extended commitment proceedings.

In a unanimous decision, the California Supreme Court today ruled that Penal Code section 2972's requirement that an extended commitment petition must be filed prior to the expiration of an MDO's most recent commitment was mandatory. Therefore, in this case, the district attorney's failure to file such a timely petition deprived the trial court of jurisdiction and required dismissal of the MDO extended commitment petition.

In so ruling, the Supreme Court rejected the Attorney General's contention that even if the filing deadline were mandatory, the trial court need only dismiss the petition if, under the particular facts of a given case, the missed filing deadline violated the MDO's due process rights. As the Supreme Court acknowledged, however, "determining whether an MDO’s due process rights were violated by a delayed petition would often be futile" because "more often than not, an MDO would be unable to show prejudice if his or her mental disorder is not in remission." Therefore, the mere fact that the MDO would have been recommitted anyway because he continued to suffer from his severe mental disorder did not render the denial of his right to annual review under the MDO Act non-prejudicial.

Justice Chin authored the Court's opinion.

People v Allen, no. S141913 (Cal. Supreme Ct., filed 8/13/07)

NGI Commitment Extensions Require Proof Of A Serious Difficulty Controlling Dangerous Behavior

Pursuant to a court trial, appellant's not guilty by reason of insanity ("NGI") commitment was extended for an additional two years. On appeal, appellant argued that federal due process standards required the prosecution to establish that he had serious difficulty controlling dangerous behavior. The Attorney General argued that such a showing was not required in NGI extended commitment proceedings because such proceedings involved cognitive rather than volitional mental disorders.

Relying on California and United States Supreme Court civil commitment jurisprudence, Division Two of California's First District Court of Appeal disagreed with the distiction advanced by the government and held that in order to extend an NGI commitment the prosecution must prove that the person has a serious difficulty controlling dangerous behavior.

Neverthless, the Court of Appeal upheld the extended commitment, as it concluded there was substantial evidence that appellant had such a serious difficulty.

The unanimous opinion was authored by Justice James R. Lambden.

People v. Zapisek, A113074 (Cal.Ct.App. (1st Dist., Div. 2) filed 2/22/07)

Untimeliness Of NGI Extended Commitment Petition Merits Dismissal

Less than two weeks before appellant's not guilty by reason of insanity ("NGI") commitment was set to expire, the district attorney filed an extended commitment petition. The district attorney is required by statute to file the petition at least 90 days before the expiration of the current term of commitment.

Division Five of California's First District Court of Appeal concluded that the trial court erred when it denied appellant's motion to dismiss the commitment petition as untimely. Because the petitition was filed so late, appellant was not given adequate time to prepare for trial before his commitment expired. He therefore was prejudicially forced to choose between proceeding to trial without adequate preparation or remaining in custody past the date on which he normally would be released. Accordingly, the Court of Appeal concluded that the trial court should have granted appellant's motion to dismiss the petition.

Curiously, however, the Court of Appeal declined to comment on the effect its ruling should have on the fact that while his appeal was pending a jury once again extended appellant's commitment for an additional two years. Given the invalidity of the commitment at issue in the current appeal, it would seem there was nothing to extend in the more recently completed proceeding. Thus, a new motion to dismiss appears imminent in the trial court.

The unanimous opinion was authored by Presiding Justice Barbara Jones.

People v. Price, A111081 (Cal.Ct.App. (1st Dist., Div. 5) filed 1/26/07; published 2/20/07)

SVP & Collateral Estoppel

In order to commit a prisoner or parolee to a state mental hospital as a sexually violent predator (SVP), one of the elements that the prosecution must prove is that the defendant has been convicted of a sexually violent offense against two or more victims. In this case, trial court relied on the doctrine of collateral estoppel to bar the defendant from litigating the issue of whether he had been convicted of the requisite qualifying prior convictions on the ground that a jury had already decided the identical issue during the defendant’s previous SVP trial.

California's Sixth District Court of Appeal affirmed and held that it was not a violation of due process for the trial court to employ collateral estoppel to establish this element and take that question away form the jury. The Court of Appeal also concluded that this use of collateral estoppel did not amount to an improper form of a directed verdict.

According to the Court of Appeal, all of the requirements of collateral estoppel were met: the issue sought to be precluded from relitigation was identical to that decided in a former proceeding; the issue was actually litigated in the former proceeding; it was necessarily decided in the former proceeding; the decision in the former proceeding was final and on the merits; and the party against whom preclusion was sought - the defendant - was the same the party to the former proceeding.

While other cases have permitted reliance on collateral estoppel with respect to factual findings from earlier SVP proceedings, those cases had suggested that its use would be limited to prior factual findings that were favorable to the defendant. (See People v. Munoz (2005) 129 Cal.App.4th 421, 432; Turner v. Superior Court (2003) 105 Cal.App.4th 1046.) As collateral estoppel was used here to establish a factual finding severely unfavorable to the defendant, this ruling represents a notable endorsement of the expanded use of collateral estoppel in the SVP context. At the same time, however, the nature of the findings subject to collateral estoppel here was rather uncontroversial, as defense counsel often concedes this element during SVP extension trials.

The unanimous decision was authored by Justice Patricia Bamattre-Manoukian.

People v. Lopez, no. H029248 (Cal.Ct.App. (6th Dist.) filed 1/18/07)

Review Granted In Juvenile Involuntary Commitment Case.
The California Supreme Court also granted review yesterday in In re Howard N., no. S123722, a Fifth District case in which the court held that proceedings under Welfare and Institutions Code Section 1800 for the civil commitment of individuals under the control of the CYA are constitutionally inadequate. Read the Court of Appeal opinion here and my post on it here.

The minor is represented by Francia Welker.

Involuntary Commitment Based On Criminal Defendant's Incompetence to Stand Trial is Reviewable in Interlocutory Appeal. U.S. v. Friedman, no. 03-10422 (9th Cir., May 6, 2004).

The Ninth Circuit, agreeing with all the other circuits that have decided this question---1st, 2d, 6th, 8th, 10th, D.C.---, held that a criminal defendant need not wait to be declared competent, and then convicted, to appeal a pre-trial order involuntarily commiting him to the custody of the Attorney General.

Panel: Before: Thomas G. Nelson, William A. Fletcher (author), and Marsha S. Berzon, Circuit Judges.

Cal.Ct.App. (5th Dist.): Civil Commitment Proceedings for Juveniles in CYA Constitutionally Inadequate

In In re Howard N., no. F043006, the California Court of Appeal (5th Dist.) held today that proceedings under Welfare and Institutions Code Section 1800 for the civil commitment of individuals under the control of the CYA are constitutionally inadequate. Relying heavily on case law analyzing the constitutional adequacy of sexually violent predator (SVP) laws, the court held that section 1800 does not meet constitutional requirements:

Section 1800 permits the filing of a petition for continued commitment when the YOPB concludes it “would be physically dangerous to the public [to release the potential committee] because of the person’s mental or physical deficiency, disorder, or abnormality.” (Ibid.) The only issue decided by the trial court or the jury was whether Howard was “physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality.” (§ 1801.5.) This question adequately conveys to the jury that the potential committee must have a mental deficiency, disorder, or abnormality that renders the person dangerous. It does not convey adequately to the jury that it also must determine whether the mental illness or abnormality causes the potential committee to have serious difficulty controlling his or her behavior and whether this loss of control results in a serious and well-founded risk of reoffense.

Justice Dennis A. Cornell authored the unanimous opinion.