*1 Sept. No. 31121. [L.A. 1980.]

Conservatorship of the Person and Estate

GLENN GAYLE HOFFERBER. Conservator, ALTMAN, etc.,

BRUCE A.

Petitioner and v. Respondent, HOFFERBER,

GLENN GAYLE Objector Appellant.

Counsel Denvir, Defender, Sevilla,

Quin State Public Charles M. Chief Assis- tant Defender, State Public Harold E. Shabo and Paul D. Fogel, Defenders, State Littlefield, Defender, Public Deputy Wilbur F. Public Fischer, Dennis A. David and John L. De- Meyer Ryan, Public Deputy fenders, for Objector Appellant. *5 Larson, Counsel,

John H. County R. Parrish and J. Wayne Michael Counsel, Harrington, Deputy County for Petitioner and Respondent. Opinion

NEWMAN, J.Glenn Hofferber from a 1978 appeals and judgment order civil a establishing under the conservatorship Lanterman-Petris (LPS) (Welf. Short Code, Act. & Inst. 5000 et seq. 5350 et seq., §§ Subsequent references are statutory to the Welfare and Institutions indicated.) Code unless otherwise conservatorship based findings appellant “gravely

disabled” because ishe an incompetent defendant with a vio- charged 5008, lent felony. (§ (h)(2).) subd. We conclude that the judgment and order must be reversed.

After a September hearing was preliminary appellant charged with In murder. November he 1974 was found to incompetent stand trial and was committed to the Department of Health for place- (Pen. Code, et There he was seq.). hospital

ment a state § 1370, (id., his competence six-month review of periodic entitled to § (b)(1)). subd. court for the required

In 1976 he was returned to the criminal 1370, (b)(2)). he was incompe- found (§ Again 18-month subd. hearing state hospital. tent to trial and was recommitted stand In October because he had been confined for the maximum (c)(1) section subdivision and the three-year period permitted by of Health determined there was no substantial likelihood Department he would in the future regain (§ mental foreseeable competence (b)(1)), (§ subd. he was returned to the court again (c)(2)). In subd. December 1977 a unanimous jury by preponderance of the evidence him to stand found trial. Thereafter incompetent Judge Chernow, earlier con- appellant subject had been an noting murder, which had terminated to the servatorship prior alleged had (“I it”),1 let admitted the him have and had announced his killing just relative, aim to drive a stake through heart of concluded that he was stand trial “would constitute a to the danger if he were he safety others free secure custody,” appeared disabled” within the section subdivision “gravely meaning (h)(2). Chernow directed the to ini- Accordingly, Judge public guardian (Pen. Code, tiate civil under the LPS Act. conservatorship proceedings (c)(2).) subd. Ziskrout denied conservatorship proceedings Judge appellant’s In the and, on the issue of mental competence a second trial jury request *6 notice of the December 1977 took guardian’s request, judicial at the appellant and an during dispute between killing a alleged apparently occurred 1The include many names plant Appellant, he whose the where had worked. employee of tailored, 10-star-general’s uniform specially in Lasagna, plant the a Cookie arrived at the forces. He of armed befitting self-proclaimed position as Commander-in-Chief his “pro in work as a he uses his began modify paint a brush operating an electric saw to Yearwood, victim, “montclape” (appellant’s a neurosurgeon.” The Darrell fessional started; out; appellant shot Year- fight and him people), ordered term for most black brought. pistol he had with a .22-caliber wood of the the President himself as God and appellant perceives various incarnations In CIA, FBI, etc.). He was secret of (and supreme director thus as United States Johnson, fully was only Dwight Eisenhower but arrangement Lyndon with president by change everything at se- will which deposited substances mission. He has aware his Angeles system. He states Los sewer in the United Nations and near the cret locations country. around the weapons he has stored repeatedly asked He has justifiable homicide. killing as self defense He views the insanity plea. enter wish to an opposed defense counsel’s and has for a criminal trial

167 6, 1978, Ziskrout found appel- On March competence hearing. Judge appointed lant was conservator guardian disabled.” “gravely to a state and was authorized him in appellant’s place estate and person 5350, (§§ or other mental health hospital facility. (1) with a violent and

Appellant person felony asserts that charged stand not be found to trial committed mentally incompetent civilly for reasons and under that differ from those procedures applicable (2) his disability other disordered to establish persons, grave doubt, (3) must be a reasonable his proved beyond incompetency violates of retroactive or ex facto conservatorship the proscription post laws. We examine each contention separately.2

Validity of Commitment Standards 1974, Before California law with provided persons charged criminal conduct but found to stand trial were committed (i.e., to state until “sane” Because hospitals they competent). became attainment competence was sole standard for release commit- indefinite, ments were permanent, long incompetence even so (Former Code, 1368-1370; Parker, persisted. Pen. see §§ California's New Scheme Commitment Found Individuals Incompetent Stand Trial (1975) 484, 486.) 6 Pacific L.J. (1972)

In Jackson Indiana v. 406 U.S. 715 92 L.Ed.2d [32 S.Ct. the Supreme Court struck down similar provisions on 1845] grounds denied due equal protection process. The equal not, protection arose ruling premise from the could persons solely them, because of pending charges to com- against subject mitment standards more lenient or release standards more stringent than those not with applicable criminal offense. charged 2The March conservatorship 1978 here challenged expired by order terms LPS Act’s “gravely disabled” provisions May technically 1979 and is therefore moot. (§ 5361.) recurring (Diamond Yet the issues are importance. (1970) v. Bland 733], 477 P.2d cert. den. sub [91 nom. Homart Devel opment den., Co. v. Diamond U.S. 988 1661], L.Ed.2d 91 S.Ct. reh. U.S. 874 L.Ed.2d 27], S.Ct. U.S. 981 L.Ed.2d *7 1189], 154, 92 S.Ct. 409 91]; U.S. 897 L.Ed.2d S.Ct. DiGiorgio 93 [34 Fruit Corp. Dept. Employment v. 56 Cal.2d Cal.Rptr. 58-59 362 P.2d [13 487].) Moreover, LPS conservatorship Act appellant was renewed reconfined in substantially 1979 on findings. identical order, An appeal raising issues, from 1979 pending similar before the Court of Appeal. (Conservatorship Hofferber, 2 party Civ. urges No us to dismiss the appeal from 1978 order. we Thus decide the on its case merits. be could com- law, disordered mentally

Under Indiana other if in need of or dangerous confined involuntarily mitted defendants, criminal disordered Mentally custodial care treatment. however, on the basis of solely inability and confined were committed as that condition continued as long at trial. Their confinement assist for was treat- necessary of whether confinement persisted, regardless of unproved Since protection. pendency ment or for their or others’ men- among basis for distinction criminal was not reasonable charges reasoned, ill Indiana law denied persons, incompetent Jackson tally (P. p. 446].) L.Ed.2d protection. criminal defendants equal [32 because, due process also denied procedures Jackson held that a period for confinement solely incompetence, permitted beyond The court reasoned as related” to the aims of commitment. “reasonably is intended to permit for solely incompetence follows: Commitment Hence, confinement on that treatment to alleviate condition. de- necessary the time reasonably not continue ground beyond served. whether the of treatment purpose being termine that defendant will re- there no substantial likelihood appears Once concluded, must further the state justify Jackson gain competence, ground applicable it is on some necessary confinement by showing or need for custodial ill such as dangerousness to all mentally persons, that, incompe- a “rule of reason” once hopeless care. court adopted civil customary must either institute tence “the State appears, commit indefinitely would required proceeding commitment (P. citizen, L.Ed.2d the defendant.” other or release any [32 (1956) 350 U.S. 373-374 v. United States 451]; cf. Greenwood p. 412, 418, 410].) 76 S.Ct. L.Ed. un- commitments Jackson, this invalidated indefinite court Following confinement of procedures California for der (In 805-806 re defendants. Davis 414 U.S. California, Palma v. cert. den. sub nom. 1018], P.2d that, once defendant’s Davis held 87].) 94 S.Ct. L.Ed.2d court should either “the unlikely, became toward competence progress alternative initiate appropriate confinement or him released from order 807.)3 (Id., Act....” under the proceedings commitment [EPS] his contin hearings on hopelessly incompetent, 3Though had been deemed Jackson power to confine any basis of state other had addressed confinement never ued dangerousness on he be committed doubted could Supreme Court ill. The Also, though hopeless his against him. charges pending basis of the misdemeanor *8 When Davis was decided (1) those included proceedings re- annually newable for conservatorships disabled” “gravely persons—those food, unable to their provide “basic needs for personal cloth- 5008, or ing, (§§ (h)(1), shelter.. .” (2) subd. 5350 et seq.), 90-day maximum confinements for “imminently persons, renewable dangerous” 5304.) violence while confined. (§

Adapting Davis, the LPS Act in the language Legislature in 1974 amended the statutes to bring California’s scheme for confinement of incompetent criminal (Stats. defendants within constitutional bounds. ch. p. et Under current law seq.) a defendant confined for incompetence who has not regained must be competence returned to the superior (1) court after three or years, maximum term of imprisonment for the offense, most serious underlying whichever is (Pen. Code, shorter (c)(1)), subd. or whenever the superinten dent of the treatment sooner facility determines there is no substantial likelihood the defendant will attain competence (§ (b)(1)). subd. The court then must redetermine If competence. defendant is compe tent, criminal are proceedings resumed. If not the court must either inability deafness and to communicate rendered him to stand trial did appear (406 not require to pp. custodial care. at 445].) U.S. 727-728 L.Ed.2d p. Davis, misdemeanors, The defendants in also accused of nonviolent never had been hopelessly deemed incompetent. This court therefore continued their confinement but ordered prompt progress reports and resolution progress of the issue within a reason- (8 able time. Cal.3d at “If, (c)(1) 4Section provides: subdivision at the end years of three from the date of commitment period or a equal commitment to the maximum term impris provided onment by law information, for the most charged serious offense in the indictment, shorter, or misdemeanor complaint, whichever is the defendant has not re covered his competence, mental he shall be committing returned to the court. The court notify shall county mental health designee director or his any of such return and of resulting court orders.” Section (b)(1) subdivision provides: days “Within 90 of a commitment made pursuant (a), superintendent subdivision hospital of the state facility or other which the defendant is committed or from placed which the defendant outpatient treatment shall make report a written county the court and the mental health direc- designee tor or concerning his progress recovery defendant’s toward of his mental competence. If the defendant has not recovered competence, his mental but the report discloses a substantial regain likelihood the defendant competence will his mental in the future, foreseeable he shall remain in the hospital facility state or outpa- other or on Thereafter, tient treatment. at six-month intervals or until the defendant becomes mentally competent, superintendent hospital person charge of the in of the facili- ty shall report to the county court and the designee mental health director or his regarding the progress defendant’s recovery toward competence. of his mental If the re- port indicates that there is no substantial regain likelihood that the defendant will his future, competence mental committing the foreseeable court shall order him to be returned to the proceedings court for pursuant (c). to paragraph of subdivision The court shall copy transmit a of its order to the county mental health director or his *9 170 conservatorship proceed disabled” him or order that “gravely

release 5 (c)(2)). (§ the LPS Act subd. be instituted under ings (h), which subdivision section The also amended Legislature the traditional con- revised section retains defines grave disability. (subd. definition (h)(1)) but adds an alternative cept helplessness of be found “gravely A now person on criminal incompetence. based (1) or informa- indictment charged by that he is disabled” grounds harm, death, or serious a bodily with a felony involving great tion (2) to another, and is well-being to the of threat physical conservatorship His a mental disorder.6 assist in his because of defense persist. as those conditions may be renewed so annually long un is a and transparent that the new scheme Appellant argues to the law’s Despite attempt of and Davis. successful evasion Jackson civil commit the incompetents “customary” make committable under their law, because protection he it still denies them suggests, equal ment disability” the no to relationship “grave bears rational incompetence Note, A New Commit (Cf. Safeguards Periodic Review: designee.” Procedural for (1979) Yale Rights 88 L.J. ment to Mental Patients’ (c)(2) provides: any is to 5Section subdivision “Whenever defendant returned (1) (b) pursuant the of paragraph paragraph court to of subdivision or subdivision (c) gravely para in appears it the court that the defendant disabled as defined and to Code, (h) the graph of the Welfare and Institutions of subdivision of Section 5008 investigator county of the conservatorship shall order of the of commitment court the Chap for conservatorship proceedings pursuant defendant to such defendant initiate 5350) 1 Division (commencing ter with Section of Part of 5 of Welfare 3 Any hearings required shall be conservatorship proceedings Institutions Code. in the superior county in the commitment. The court shall held in the court which ordered directing proceedings to the copy conservatorship initiation of transmit a of the order designee.” his county mental health director or (com “(h) purposes of Article part: For provides pertinent 5008 now 6Section 5200), 5150), (commencing and Article with Section mencing Article with Section purposes of 5250) part, and for Chapter 2 of this (commencing with Section means: disabled’ of this with Section disorder, pro unable result a mental “(1) person, in which a as a A condition shelter; food, clothing, or or for personal vide his basic needs Sec- incompetent under found person, which has been “(2) A condition in following facts exist: Code and all tion of the Penal time of at the against the defendant “(i) pending or information The indictment harm, death, threat a serious involving great bodily charges felony commitment the well-being person. of another physical dismissed. not been or information has “(ii) The indictment disorder, the nature to understand person is unable “(iii) of mental As a result conduct in the to assist counsel against him and taken proceedings purpose and of manner.” defense in a rational his Davis, he make provisions unproved the LPS Act. Jackson urges, and a insufficient charges subsequent finding incompetence *10 distinction, substantive, for or from other grounds any procedural per- sons to civil commitment. Since he has been found subject hopelessly contends, he he now be committed under incompetent, may civilly Act LPS not with criminal provisions dealing incompetence.

He also asserts scheme that the new denies due because it al- process lows indefinite commitment of hopeless incompetents on that ground alone, without new are any showing they dangerous, helpless, or Therefore, concludes, otherwise in need of further confinement. he he must be released unless his confinement can be under laws ar- justified ticulating one more of those grounds. new procedures

The conservator commitment do responds meet constitutional standards because follow a determination of probable cause to believe defendant committed a violent felony. Code, 1368.1, (a); 5008, (h)(2);

Pen. subd. subd. Hale v. Superior § (1975) 221, 57, Court 15 Cal.3d 226-228 539 P.2d Cal.Rptr. 817].)7 treatment and indefinite confinement of such a defen Separate dant, contends, he are of because the justified grounds public safety probable criminal conduct evidences extraordinary dangerousness.8

We agree that the of rulings Jackson and Davis are not satisfied by placing and arbitrary discriminatory confinement standards for criminal incompetents in However, the civil commitment statutes. we do not re- those gard cases as that the fact of holding criminal incompetency may never be a basis for involuntary confinement prescriptions.

The state has compelling interests public and in hu safety mane treatment (Cf. Turnbull, of the disturbed. Law and the 1368.1, (a) provides filing 7Penal Code section subdivision of an indictment or 5008, precede incompetence proceedings. (h)(2) information must Section subdivision “gravely incompetents against limits disabled” criminal to those whom indictments or (Subd. charging (h)(2)(i), (ii).) pending. informations violent felonies are that, 8The stake, conservator concedes liberty because a fundamental interest is at scrutiny (In 457, strict is the Moye (1978) correct standard of review. re 22 Cal.3d Cal.Rptr. 1097]; People (1976) 584 P.2d v. Olivas 251 [131 Cal.Rptr. 375]; Gary (1971) P.2d In re see W. 5 Cal.3d 306-307 [96 Spece, 486 P.2d Cf. Justifying Invigorated Scrutiny and the 1201]. Least Restrictive Superior Alternative as a Form Intermediate Review: Civil Commitment Right and the Study (1979) Treatment as a Case 21 Ariz.L.Rev. the Declarations Responses American Retarded Citizen: Mentally Societies League Nations and International the United Rights Been, Are, and Are We Have Handicapped—Where the Mentally for 1093.)9 more than one adopt It L.Rev. Headed 30 Syracuse and persons; restraining dangerous treating, procedure isolating, (Baxstrom v. Herold if will upheld justified. differences W., re Gary In 623-624, 760]; 86 S.Ct. 107, 111 L.Ed.2d U.S. 296, 304.) conditions length Variation of 5 Cal. 3d as to confinement, reasonably perceived of danger on degrees depending power. exercise of state a valid persons, classes special *11 For premise. California laws have followed that certain long those ill purposes mentally persons they properly classify, separately, whom a determination of criminal conduct has been against judicial have persons, made since such least demonstrated initially, particular re (See 462; In 22 Cal.3d In re Franklin 457, Moye, supra, danger. 7 146 P.2d 465].) Cal.3d 496 Cal.Rptr. renewable commitments of permits long-term, California scheme (Pen. Code, not of 1026 et by insanity found reason persons guilty (MDSO’s) (§ et disordered sex offenders seq.), mentally seq.), seq.; People (§ the 1800 et v. Authority and those committed to Youth Smith 486 P.2d 1213])—in 5 Cal.3d case On the proof they each on that remain disturbed. oth- dangerously hand, the persons er violent under criminal adjudicated justice not to LPS Act for “im- procedure are the short-term system subject only committed, unlike those minently dangerous” persons. They, criminally (§§ not be confined alone. indefinitely psychiatric opinion 5304.) First,

Those ap- distinctions have two bases. apparent Legislature for that short-term civil confinement parently preferable concluded Sub-Committee on Prevention 9Interestingly, at its 1979 session the United Nations requested the Nations and Protection of Minorities United of Discrimination guidelines” to of a “with a view the formulation Secretary-General prepare report to regarding: employed per- in the treatment “(a) may properly be the medical measures ill-health, grounds sons detained on mental detaining grounds exist such “(b) determining adequate for procedures for whether applying such medical measures. persons and countries, are persons con- allegations in some from the “The resolution arose will, punishment for their against their as method health clinics fined mental (U.N. rights.” Press Release human exercise of their political views or non-violent 1979.) Sept. HR/799, seri disturbance that mental violent incidents caused most the trauma and stigma should subject ously dangerous 501-502.) (Parker, L.J. at pp. 6 Pacific supra, confinement. longer-term for crimi acts serious hand, enough it was considered that On the other in a person’s nonpenal interest continuing special nal treatment justify In re public Moye, supra, purposes safety. confinement Franklin, 145-146; In re 462; 3d at pp. 7 Cal. supra, 3d at In re Cal. W., interest compelling Weighing Gary need possible against equal whenever confinement avoiding ill, seriously Legisla from the society dangerous protect distinctions must be made that statutory ture has concluded naturally presented.10 basis of of danger on the degree reasons, in- separate the same some treatment permanently

For with violent felonies competent charged criminal defendants formally have in violence so critical that serious justified. Allegedly engaged believed charges appropriate. Magistrates grand juries were was have found substantial evidence conduct alleged actually *12 committed as Those of cause establish alleged. probable determinations acts, that, to believe concrete defen- strong grounds incompetent dants thus are already imperiled have and seriously public safety Yet because particularly dangerous. they of permanent incompetence imposition said that criminal and sentence are insuffi 10Jackson conviction “[i]f apply against “procedural protection to lesser and substantive indefinite cient” persons, filing charges commitment” than is to other “the criminal available mere added.) (406 443], surely p. p. suffice.” at 724 at For cannot U.S. L.Ed.2d italics [32 Herold, 107; 383 proposition supra, that relied on v. Hum court Baxstrom U.S. 1048]; Cady Harris phrey v. 504 L.Ed.2d 92 S.Ct. Bolton v. 405 U.S. [31 (D.C.Cir. 1968) People Lally and 19 N.Y.2d 27 F.2d v. however, proce Humphrey, N.Y.S.2d N.E.2d Baxstrom and dealt with 87]. safeguards nearing penal dural denied the end their No confinements. justification perceived classifying persons “particularly dangerous” was and for as deserving protection against others procedural therefore less civil commitment than solely expire. because their had penal criminal trials resulted in restraint about to Baxstrom, (Humphrey, supra, pp. 403-404]; 510-511 at pp. at L.Ed.2d U.S. pp. 625-626].) supra, pp. 383 U.S. at 114-115 L.Ed.2d at Lally, though nullifying local for automatic of the Bolton statutes commitment insane, criminally acknowledged right the state’s make be- to reasonable distinctions 651; civilly persons. (Bolton, supra, p. and criminally tween committed 395 F.2d at 90-91.) Lally, supra, pp. at N.E.2d concluded that Baxstrom, Bolton, Lally we did Cali- preclude In Franklin not provisions being solely prehearing applied fornia’s automatic commitment from to the context, 139-142.) (7 criminally pp. insane. stands for Cal.3d at Read in Jackson distinguishing proposition prior as a basis consideration criminal conduct among dangerous persons must be reasonable. be under continuing cannot evaluated and confined for dangerousness the criminal to serious violent conduct.11 processes usually applied violent,

We do not interest in gainsay society’s protection against competent, criminal defendants. As with those finally adjudicated conduct, criminally disordered on basis of that interest prior con tinues so can long continuing (Compare be shown. dangerousness Franklin, 462; 22 Cal. 3d at 7 Cal. 3d Moye, supra, 145-146.)12 pp. The therefore for the Legislature may provide con finement of on violent persons, grounds those under a dangerousness, traditional, short-term, scheme different from An civil commitment.13 LPS with its and em conservatorship, multiple procedural safeguards (see 5352.6), on treatment phasis is a means to achieve that proper end. scheme the separate statutory we conclude under a

Accordingly defendants, state confine on incompetent grounds jury remain when a has dangerous, magistrate grand they violently cause to believe that have committed violent probable found felonies. statutes, however,

The not of continu- require do expressly showing indefinite maintenance of dangerousness. appear permit ing They held solely Jackson concluded that an criminal defendant could be necessary grounds continuing incompetence only reasonably of his for the time to deter hospital likely mine whether his restoration to further treatment assist by providing competence. responds California scheme that confinement current *13 under the Penal shall cease once there is no substantial likelihood restoration Code 1370, years. (§ (b)(1), competence, of three subds. with a maximum confinement (c)(1).) years prognosis; reach a The is that three is a reasonable time to assumption are, effect, by permanently in persons incompetent. competence not restored to that time treated (There hospital appel believe indication here that authorities do is some improve.) lant will never Smith, 313, no rational basis distinguish supra, 5 Cal.3d which found People 12We v. dangerous” Youth Author differing periods “presently confinement for of extended terms, they had original depending on whether who their ity inmates had served (P. 318.) law. juvenile under the originally been in adult court or committed convicted contrast, continuing particularly concern those Legislature properly treats with By felony whose charges but mental dangerous persons violent conduct warranted whose criminal law. of confinement under preclude possibility disorders theoretically it allows al is not invalid for the reason 13Adistinction this kind charges on whether criminal were depending conduct particular ternative treatment of necessary or infliction of harm pursued. violence filed and [actual §§ separate treat commitment].) argument apply Such would to all civil an for traditional including whether to arising by prosecute, public from decisions authorities ment provided insane and MDSO’s. criminally for the LPS because the continues and conservatorships solely incompetence (§ have not been dismissed. subd. violent felony charges (h)(2).) Thus, the conser- respected, so that Jackson Davis into the new requirement vator that we read a requests “dangerousness” Franklin, we LPS Act In ruled that “restora- provisions. analogously, tion to the standard for release of insane criminally sanity,” (Pen. Code, 1026.2, 1026a), was satisfied when no former they § (7 to health and Cal. 3d at longer represented safety. danger 145.)14 If feasible within bounds set their words statutes purpose, their v. Mu constitutionality. (Pryor should be construed to preserve 253-254 Cal.Rptr. 25 Cal.3d Court nicipal 14 Cal.3d 736-737 P.2d In re M. 636]; Edgar focus Legislature’s 537 P.2d 406].) Clearly on reflects a concern as to charges dangerousness violent felony criminal cases similar to that evidenced in the previously incompetency that inference and provisions. Appellant rejects argues insanity in 1974 intended to as a Legislature preclude dangerousness basis for he contradicts his history provides, though, confinement. contention. (Assem.

In 1973 Select problem on the Jackson-Davis Com. hearings Offenders, 13-14, 1973) Disordered Criminal Dec. Mentally legisla- tors, health and the General’s professionals, Attorney representative contended that with violent felonies warranted incompetents charged treatment because their conduct future special precisely past implied danger. Participants in the also feared that of those hearings many per- sons, released, while delusional and violent if would potentially “slip the cracks” if neither in short-term through violently behaved (a confinement “imminent requirement for renewal of threat” 90-day Act) commitments under the LPS nor could be unable to care proved for themselves for a traditional LPS Act disabled” (necessary “gravely conservatorship). *14 amendments, criminally 14Under 1979 persons insane whose offenses occurred after 1, 1977,

July operative original (DSL), may date of the determinate sentence law terms, not be held longer under section 1026 upper except than their DSL that renew two-year able extended imposable persons commitments are who committed specified threatening inflicting felonies bodily injury by or death or serious and “who disease, defect, reason of a mental [represent] danger or disorder a phys substantial of Code, (Pen. 1026.5.) ical harm to others.” § we not prescribe also that Appellant argues dangerousness which of the several “danger” since we cannot identify requirement in statutes the itself would Legislature California appearing definitions (See, commit- e.g., to criminal incompetents. apply § [extended dangerous inmate to the “physically public” ment Youth Authority disorder, or deficiency, abnormality”]; of “mental or physical because has inflicted attempted civil commitment of one who or 5304 [90-day § an im- who, disorder, result mental presents “and as a harm physical others”]; harm to minent threat of substantial physical § [MDSO disease, defect, “mental or disorder” predisposes defined as one whose that he is to the “to such a degree dangerous him sexual offense commitment of 6316.2 others”]; health and safety § [extended sex offenses presents propensity whose disordered mentally MDSO others”]; harm to danger bodily a “substantial § [commitment to himself or who is a “danger retarded person others”]. (fn. 14, Code, 1026.5, (b)(1) added; subdivision Pen. see also Italics ante).) more form than sub- definitions appear

The distinctions those among we have little do differ materially the extent the words stance. To with the criminally standard. As an appropriate difficulty choosing here about whose serious- insane, was concerned the Legislature in violent surfaced apparently already had ly dangerous propensities conditions created a and whose mental magnitude conduct of felonious if freed further violence commit they might possibility substantial confinement, and treatment. supervision, from extended the most closely thus seem to be provisions The criminal insanity “dan- has clarified the degree and the Legislature recently analogous, We extended commitment. in such cases justifies gerousness” both the Constitution and best accommodate conclude that we can Act provisions standard to the LPS by adapting intent legislative 467; 22 Cal.3d at p. In re Moye, supra, (Cf. incompetence. for criminal M., 736-737.) at pp. In re Edgar a con- renewing or creating every judgment hold that therefore We section defendant under for an servatorship that, of a reason findings written reflect (h)(2) must subdivision substantial disorder, represents defect, person disease, mental *15 Code, 1026.5, subd. Pen. to others. harm physical danger as so construed. amendments (b)(1).)15 the 1974 uphold We here is im requisite finding The conservator suggests in the cause of violent felonious plicit probable initial determination conduct and that or evidence is We necessary. no supplementary finding We disagree. probable have indicated that initial determination of cause, with the defendant’s coupled continuing incompetence, permits reasons, separate concern treatment. For several howev legislative er, it cannot rise to a conclusive give permanent, presumption continuing dangerousness.

First, 1974; the homicide here took and no court ever alleged place has found a reasonable doubt that committed it. Nor beyond appellant has there been a determination that either the criminal act cur- or any disease, defect, rent is the of a mental dangerousness product disorder. Even if he had a mental condition in 1974 the dangerous pas- of time itself diminishes the of an that his sage validity assumption continues unabated. dangerousness

Second, a conclusive of current would presumption dangerousness The deny equal protection. whom criminally insane—against findings criminal conduct a mental condition have been made—are produced by conclusively presumed until of trial and the dangerous only completion automatic, commitment cur subsequent, for observation of their 90-day (Pen. Code, (a), 1026.2.) rent mental conditions. subd. §§ Thereafter, whenever are no must be released. longer dangerous they (I Franklin, d., 1026.5; 1026.2, 145.) 7 Cal.3d at p. §§ unconvicted, No rational basis an appears conclusively presuming defendant for a than one found dangerous longer period insane. criminally

Third, at the time of his 1978 al- conservatorship hearing appellant had been in a for the treatment ready hospital three-year confined dur- the Penal Code. period provided by Psychiatric impressions gained such a of observation are relevant and ing period obviously important A means of whether a once violent remains so. con- determining person “imminent threat” standard for appellant’s apply invitation to 15We decline (§ 90-day provision Act. That is in 90-day civil commitments under the LPS serious, by requiring episodic violence on a short-term basis tended to deal with less Legislature obviously felt that vio danger passed. has release once the immediate Ionger-range protection. represented by serious crime calls for lence *16 178 if

elusive would be continuing dangerousness arbitrary presumption extended for evaluation period reasonably necessary hospital beyond for of a defendant’s current violence. Under propensity existing defendants, scheme criminal for ample opportunity (Cf. evaluation their confinement under the Penal Code. during exists Jackson, Davis, 406 U.S. 738 L.Ed.2d at supra, p. pp. 450-451]; at [32 806-807.) supra, 8 at pp. Cal.3d an incompetent an LPS Act determination that

Accordingly, defendant disabled” because he is “gravely currently dangerous defect, disease, result of or must a mental disorder follow a hearing Jackson, addressed at specific to that issue. 406 U.S. Humphrey, supra, pp. 450]; 737-738 L.Ed.2d at 405 U.S. p. [32 511 no pp. 403-404].) L.Ed.2d at Since had appellant apparently such was due process. he denied and The con- hearing equal protection order thus must be reversed.16 servatorship Jury

Standard of Proof Trial Act that his for LPS further contends Appellant grave disability that he be a reasonable doubt and purposes beyond must established verdict issue. that was entitled to a unanimous on that We jury agree (h)(2) trial section any appellant’s under subdivision subsequent a doubt mental condition must be found reasonable dangerous beyond and, insists, not, though, if The law does a unanimous appellant jury. require stringent showing incompetence. an equally whether mental illness or dangerousness, confinement for Involuntary Fact- criminal, substantial liberty stigma. civil or involves loss are at when drastic consequences be minimized such finding error must must Hence, facts confinement trigger generally stake. (Conservator- doubt. reasonable proved jury beyond a unanimous 219, 229-230, 232-233 Cal.Rptr. 23 Cal.3d Roulet ship Peo- conservatorship]; disabled” “gravely 590 P.2d 1] [traditional Judge appellant had admitted hearing Chernow noted competence 16In the 1977 driving through a heart. He relative’s killing made stake the found, and had references dangerous if free secure confine things, would be among appellant other conduct, finding of though relevant to a The reference and the ment. “stake” Appel propensities. current appellant’s not as to dangerousness, are conclusive current nothing importance. little or lant’s admission adds competence point in refers us to no is that the conservator crucial fact which evidence ad- conservatorship proceeding at new hearing March or considered. dangerousness was received appellant’s present directly dressed 594, 566 P.2d v. Thomas ple *17 338, (1975) 14 Cal.3d v. Feagley addict]; People 228]" [narcotics 509, jury]; 535 P.2d 349-358 Cal.Rptr. 373] [MDSO—unanimous (1975) Cal.Rptr. v. Burnick People but cf. In re S. standard]; Roger doubt P.2d 352] [MDSO—reasonable 938-939 P.2d 19 Cal.3d 1286] hearing trial].) commitment of minor—no [parental judicial jury is the basis on which continued Since a mental condition sole dangerous can be under the new incompetent justified of a permanent confinement fact must be established under disabled” “gravely provisions, strictest standards.17 not, however,

We do reach a conclusion on the parallel require ment of So as a defendant is continuing incompetence. long adjudged evidence, incompetent by preponderance criminal trial and dis (Pen. Code, of the position offenses are charged impossible. §§ 1370.) It is the preponderant that removes judgment incompetence defendant from the criminal and creates the need for justice system non-penal protection his It against continuing would be dangerousness. anomalous if consecutive, he could avoid treatment indefinitely penal by then, preponderant that he was judgments incompetent and dan though gerous, also avoid LPS Act confinement as a disabled” “gravely person because incompetence could not be established a reasonable beyond Franklin, (Cf. doubt. In re 146-147.) 7 Cal.3d at pp.

A preponderance standard for LPS Act will not in- incompetency crease the risk of error in material It determining issues. is the fact of a prior incompetence and the effect finding legal of that finding, itself, rather than incompetence that form the bases for civil commit- ment. No seems served purpose a more by requiring stringent proof of condition in order underlying to establish an LPS Act conserva- torship.

We hold therefore that incompetence for of section purposes (h)(2) subdivision be established may by preponderance evidence. If initial conservatorship follow within a reasonable time proceedings after defendant has court, been found the con- “gravely provisions 17The conservator notes that under the disabled” confinement 5358, 5361, subject (§§ not automatic but to the conservator’s controlled discretion. rejected justified procedural Roulet the notion that such protec discretion less factfinding stage obligatory. (23 tion at than where confinement Cal.3d at 222-223, 228-230.) pp. Appellant continuously has been confined since 1974. the prior notice on servatorship rely adjudicators judicial must, course, be based renewal of the finding. Any conservatorship incompetence. evidence of the conservatee’s updated Validity Applying to Prior Homicide Amendments the 1974 amendments to

Finally apply that to appellant argues ex post him would on retroactive and violate constitutional limitations laws, facto since the homicide occurred before the amendments alleged *18 became do not agree. effective. We (U.S. Const., I, 3; 9, Const.,

The ex clauses art. post facto cl. Cal. § I, 9) art. penal prohibit statutes. laws apply only They retrospective § (1) occurred, that it impose criminal for conduct innocent when liability (2) increase the for a the time it punishment prescribed crime at was committed, (3) ‘“in and relation to the by necessary operation [their] offense, or the situation the accused to consequences, alter his [their] (1958) 702, . (People Ward disadvantage. . .”’ v. 50 707 Cal.2d [328 (1959) 678, 777], P.2d cert. den. 359 945 79 U.S. L.Ed.2d S.Ct. [3 v. Morse (1964) 730], disapproved on other 60 Cal.2d grounds, People 631, 33, 810]; Thompson 649 388 12 Cal.Rptr. P.2d A.L.R.3d [36 (1898) 1061, 1066-1067, v. Utah 170 351 L.Ed. 18 U.S. S.Ct. [42 Petitioner and see 134 U.S. 171 Medley, 620]; L.Ed. 835, 840, In re 19 57 Dewing 384]; S.Ct. Cal.Rptr. 375].) 560 P.2d did increase the punish- that 1974 amendments

Appellant argues In re Valenzuela ment for the earlier homicide. He relies on principally a minor had (1969) 275 There Cal.App.2d 760]. for a the Youth Authority been committed without trial to jury effect, commitment statutes then in that “criminal” sex offense. Under 21 in In howev- have when the minor turned 1966. expired would Code er, Welfare and Institutions amended the Legislature confinement for extensions of unlimited permit potentially two-year dangerous because phys- inmates deemed presently Youth Authority 1800, 1802.) No trial was provided (§§ jury ical or mental deficiency. dangerousness. confinement the new The Valenzuela court contentions rejected new the aim of the statute It stressed that were not penal. provisions rehabilitation, defendant was and not society was protection institution, that he could be Deuel, maximum security confined at said, it transferred to state if The 1963 prison necessary. legislation, (P. 487.) “viewed as a was therefore rather than civil. penal system,” The court also rejected the 1963 was not arguments legislation ex because it focused on post facto current rather than dangerousness antecedent criminal But conduct. for 1960 criminal commitment court, and the incarceration it said produced, defendant could have been confined under civil statutes only providing greater (Ibid.; procedural trial. see protections, including jury et seq.) that, Appellant here when the argues homicide with which he is occurred, charged California limited by Jackson statutes—as confinement of Davis—permitted criminal incompetents for treat- only ment or under civil then-existing commitment laws applicable to all other persons. indefinite They prescribed commitment helpless- ness, and limited confinement for sharply dangerousness. (§§ 5300 et *19 amendments, however, 5350 et seq., The 1974 seq.) him subjected to in- definite confinement for incompetence, regardless whether he was Valenzuela, helpless. As in he urges, potential for increased confine- ment, even if based on present incompetence or dangerousness, arose because Therefore, of the pre-amendment reasons, homicide. he his “punishment” for that “criminal conduct” has been increased ex post facto. confinement, however,

Mr. Valenzuela’s to extended arose exposure institution, from his commitment to a for a directly penal criminal of- fact, fense. after the time he By could be extending, length incarcerated as a result of his criminal commitment ef- Legislature increased fectively his after crime had taken potential punishment place. contrast, 1974 LPS Act provisions, by have to do with nothing

any punitive attached disability to the homicide charged against appel- lant at the time it occurred. did not alter They or affect the sentence for extend, that crime. did not They incarceration directly indirectly, any that had been or could be on imposed for criminal conduct. appellant Indeed, because of appellant’s permanent a potentially incompetence, criminal sentence or confinement will never be probably imposed. Un- Valenzuela’s, like Mr. confinement arose appellant’s not from criminal conduct but from his mental condition. He does not face incarceration a state but must be in or some other less re- placed hospital

in a prison (§ 5358.)18 strictive setting.

We conclude the 1974 provisions, “viewed as a system,” are not purposes the ex facto clauses and do penal post impose not pun- crime, ishment for in spirit. letter or Valenzuela’s holding increased confinement there was unconstitutional because triggered by must be pre-amendment criminal conduct read in the context of proce- dures that actually period extended of commitment for criminal do not conduct. We Valenzuela to mean that all interpret laws which confine for the civilly dangerous persons protection of society are sub- to the ex facto clauses. ject post

Nor did the 1974 an “ac- provisions “disadvantage” appellant That branch ex facto doctrine relates to circumstances post cused.” which a defendant forced to defend verdict against under (Ward, 50 Cal.2d at Here no criminal criminal guilt. involved, we find no ex facto violation. post adjudication against the 1974 nonetheless operate appellant Did amendments In re Marriage Bouquet with illegal retroactivity? think 546 P.2d We not. 1371].) Cal.3d 583 applied retroactively depends the new have been Whether statutes If viewed as conse changing legal are characterized. how they date might *20 before their effective they of homicide committed quences a Statutes that focus on continu retroactive as to appellant. be deemed condition, are because simply not retroactive though, dangerous ing the ongoing dangerous conduct evidence of pre-statute they employ (1962) 57 Cal.2d Board Education DiGenova v. State ness. of 369, dis. 167, 865], opn. P.2d Cal.Rptr. 177-178 [18 (1956) 181-185; Berkeley Schauer, Eichelberger City cf. v. J. at pp. Ins. Co. 182, Indemnity Record v. 1]; P.2d 46 Cal.2d 434, 851].) P.2d 103 Cal.App.2d being are applied the 1974 amendments not whether We need decide characterized, the we think Legisla- However petitioner. to retroactively effective, incompetents all criminal once to them apply, ture intended at Patton and Atasca often are confined conservatees recognize that LPS Act 18We MDSO’s convicted of that also house prisonlike institutions Hospitals, State dero crime. Burnick, 226; 219, Roulet, v. People supra, 23 Cal.3d (Conservatorship 306, both institutions. 319-320.) has been confined Appellant 14 Cal.3d supra, are a whether the public felony who violent continuing danger, charges which such are identified in the amendments oc- by persons initially curred before or the statutes effect. after took the Legislature enacted 1974 amendments as mea- emergency

sures, fill in intended to left Davis California’s explicitly by gap commitment scheme. was declared Speedy implementation necessary health, public “for immediate of the preservation peace, safety” (Stats. and to eliminate about court uncertainty proper procedures. 3323-3324.) ch. pp. supra, § We have held to cure legislative attempt an unconstitutional retroactively. statute an intent that curative suggest provision applied 588; re (I Marriage 16 Cal.3d at Bouquet, supra, cf. n v. Teron 23 Cal.3d People fn. Moreover, 588 P.2d 773].19) the 1974 amendments seek to protect class of against particular In such potentially dangerous persons. cases, in legislative the interest of expressions urgency public safety an all necessarily attempt indicate to reach in the class who re persons present even if fall continuing danger within legislative (DiGenova, purview reason of conduct. partly by prior 177.)20 at p. due are our

Appellant’s jeopardized not process rights by interpreta- Protection tion. of individuals the most against danger among Also, fundamental of state interests. ill dangerous gain penalty 19Teron held that the 1977 death applied retroactively law could not be crimes committed its adopted replace before enactment. The 1977 law had been 1973 law this distinguished Bouquet thaf court held unconstitutional 1976. Teron grounds property rights, penal it involved not sanctions. Teron further noted Bouquet the statute in filled an absolute vacuum created probable unconstitu law, tionality prior community property apply while failure to the 1977 death-law retroactively punishment would simply imprisonment. reduce defendant's to life Here, Bouquet, as in penal Legisla- extreme are not sanctions involved. Moreover the ture, by noting post-Davis “uncertainty” appropriate procedures for about incompetents, apprehension Bouquet-style *21 its a articulated that vacuum had arisen. 20Teron, rejected argument “public supra, implicitly “urgency” protec the that and expressions legislative penalty tion” showed a intent make a death law retroactive. to Richardson, J., 120; Clark, J., id., (See p. at opn. opn. conc. 23 Cal.3d dis. again, important punish But increase an distinction exists between laws that hand, conduct, past authorizing preventive the one confinement ment and those potentially dangerous persons primarily The latter of avoidance only on the other. statutes look to harm; prophylactic they applied their would be if purpose future thwarted persons propensities to surfaced date. Justice whose violent first after the effective penalty cases are pointed Richardson also out in his Teron concurrence that death sui generis require stringent and of retroactive “intent.” particularly a view extant when in the commitment scheme no “vested perpetual right” have “rea- they to attention. To say first came public their illnesses conditions dangerous their displaying relied” on that scheme in sonably severely a would hamper legis- a fiction. Such rule to indulge patent illness, correct about mental knowledge lative new respond efforts to scheme, refine the state’s statutory deficiencies perceived disturbed people. for treatment and restraint dangerously machinery (See 592-593.) We conclude the 1974 at pp. 16 Cal.3d Bouquet, commitment. appellant’s properly govern amendments may from reversed. appealed The and order are judgment J., Tobriner, Mosk, J., Manuel, J., concurred. opinion As the

RICHARDSON, J. majority I concur in the judgment. must be appellant supported by confinement of explains, any continued I or others. respectfully that he remains to himself finding dangerous dissent, however, the fact of holding further majority’s from Al- a reasonable doubt. must be established dangerousness beyond justify proof appropriate that strict standard of though dis- suspected being gravely initial civil commitment of one merely Roulet abled of a mental disorder (Conservatorship virtue a lesser stan- Cal.Rptr. 1]), 229-230 590 P.2d Cal.3d here, cause upon prior probable dard based appropriate clearly felony, namely, committed a violent determination that has appellant murder. exist for “some acknowledges grounds candidly majority criminal defendants permanently incompetent treatment of

separate . have en- felonies. . . Allegedly with violent formally charged believed were charges serious criminal so critical that in violence gaged that the evidence officers “have substantial Judicial appropriate.” found determina- Those alleged. was committed alleged actually conduct that, by to believe grounds strong cause establish of probable tions acts, seriously imper- have already defendants concrete (Ante, p. dangerous.” and thus are particularly iled public safety le- thesis that added.) separate support majority’s cases italics Our for equal protection is appropriate, classification treatment or gal criminal propensi- ill whose respect mentally with purposes, (1978) 22 re Moye In determined. judicially ties have been already In re Franklin 1097]; 584 P.2d Cal.Rptr. Cal.3d 462 [149 553, 496 P.2d 465].) *22 a prior probable the rejects argument The majority properly incom- violent, a mentally conduct by felonious cause determination of presumption conclusive rise to a “permanent, should petent person give added.) A (Ante, probable italics of continuing dangerousness.” would warrant which certainty lacks that degree cause determination would, of un- solution, it commitment a such an allowing, extreme alternative, requiring proof majority’s limited duration. Yet un- doubt, extreme and is equally reasonable dangerousness beyond a public warranted, safety. considerations equally grave ignoring Given conceded status a appellant’s as mentally incompetent person

who has murder, been to have previously adjudged committed probably his continued upheld determination, confinement should be a based evidence, upon the that he remains preponderance dangerous himself or others. Such a standard of proof, standing between midway above, extremes discussed an achieves appropriate balance between fair right appellant law, and treatment under the equal of the right general public to protection from of demon- strated dangerous propensities.

Clark, J., concurred. BIRD, J.,C. It iswith Dissenting. considerable bewilderment one reads today’s opinion. majority words—not to Explicit mention fun- damental premises—of United States Supreme Court decision are ig- nored, as if they do not exist. established methods of Firmly equal pro- tection are analysis alluded fleetingly then forgotten. Plain truths this court has heretofore openly embraced are now somehow repealed.

I must respectfully dissent.

I The relevant legal history in 1966 begins with the United States Su- preme Court’s decision in Baxstrom v. Herold U.S.

L.Ed.2d 86 S.Ct. Baxstrom was a prisoner serving sentence 760]. for assault who was certified as insane and transferred to an institution ill” “dangerously As persons. prison Baxstrom’s sentence was about to expire, the state to have him sought civilly committed to the same statute, institution. a civil By commitment of a end prisoner’s term was if permitted the court found that the prisoner was *23 However, if sought any person

still insane. the state commit civilly had the expiring, person other than a whose term was prisoner of his question sanity. to a determination of the jury right the that the to Baxstrom of Supreme right Court found denial In equal protection. reject- review of the issue of violated jury insanity in was disparity procedure the state’s this ing argument justified because conviction and sentence demonstrated his “danger- Baxtrom’s that “there is no ous or criminal the court stated propensities,” high is person conceivable the commitment of a who basis for distinguishing (383 the end of a term all other civil commitments.” nearing penal from p. U.S. at 111-112 L.Ed.2d at pp. 624].)1 [15 Baxstrom, Court handed down Jackson Six after the years Supreme v. Indiana 406 U.S. 715 L.Ed.2d 92 S.Ct. which 1845], [32 There, is in the benchmark decision this area. Jackson stood petitioner incompetent accused of two robberies but was found to stand trial on statute, the charges.2 Pursuant to Indiana Jackson was ordered confined in an “sane.” Since institution” until he became “appropriate psychiatric the evidence established incompetency hearing adduced at Jackson’s (see was mental improvement” there “little likelihood in his condition 442]), at at the commit- p. p. incompetency U.S. L.Ed.2d ment amounted to a confinement for life. commit- involuntary

Indiana had two laws providing other However, deficiencies. ment of basis of their mental equal protection law Baxstrom had been denied 1The court also held that i.e., by the “by to an institution maintained respect, his civil commitment another judicial prison term without a expiration his Department beyond of Correction as afforded to all so com ill such dangerously Baxstrom, he is determination that (Id., those, penal sentence.” at nearing expiration of a except mitted like added.) 623], p. p. at italics L.Ed.2d sharply by thrown employed the State capriciousness of the classification “The dangerous hearing judicial to determine full into the fact that the benefit focus awaiting expiration of one of civil commitment withheld in the case tendencies is a hear presently entitled to person past A with a criminal record penal sentence. long prison ill he is not in dangerously mentally so ing whether he is question on the distinction, all Given this sem are instituted. proceedings at the time civil commitment classification, propensities, upon criminal purportedly based rationality of the blance 626].) p. (Id., p. L.Ed.2d at disappears.” at 115 [15 law, trial if then-existing person was to stand state an accused 2Under his de proceedings and make he to understand the comprehension “has not sufficient Stat., 1971), 406 U.S. at (Former (supp. quoted at Ind. Ann. 9-1706a fense....” 717-718, 439].) fn. pp. L.Ed.2d *24 the and commitment release standards under these were provisions different” “substantially from those used criminal incompetency pro- {Id., ceedings. p. 444-445].) at 727 L.Ed.2d at For the pp. [32 ill,” “feeble-minded” and the more commitment was difficult “mentally {Id., and release easier than for be at persons to adjudged incompetent. p. 730 446].) L.Ed.2d at p. [32

The Supreme Court held in Jackson that use state’s of more onerous and commitment release standards against incompetents alone equal violated It protection principles. found that this could disparity not be on the basis that justified alleged incompetents, unlike persons be sought to committed for feeble-mindedness or mental illness general- ly, were necessarily subjects of formal criminal “If charges. [as had Baxstrom criminal and conviction of sentence are imposition held] insufficient to less justify procedural and substantive protection against indefinite others, commitment than available generally to all (406 mere filing criminal cannot suffice.” at charges surely U.S. p. at 443].) L.Ed.2d p. [32

The court discussed in detail the re specific question disparities in lease standards for institutionalized who were It ill. not, ruled that a state may “without reasonable justification,.. .apply standards a making commitment permanent one when [an individual’s] standards to all generally applicable others afford him a op substantial (Id., for portunity release.” at early p. 729 L.Ed.2d at p. 446].) [32 nor, Neither indeed, pending charge final criminal convic would, held, tion the court the “reasonable supply justification” required by the for unequal {Id., Constitution release at standards. pp. 729-730 p. L.Ed.2d at 446].) [32

The Supreme Court also held that Jackson’s indefinite commitment for (Id., violated due incompetency process. at at p. L.Ed.2d [32 p. least, “At 447].) due process requires nature dura tion of commitment bear some reasonable relation to the purpose which the (Id., individual is committed.” at at L.Ed.2d p. p. 451].) Jackson was committed for the purpose him re enabling gain trial, his competence to stand yet record established that this purpose was not be, being, probably never would achieved. In re Davis 8 Cal.3d 505 P.2d 1018].) (Jackson, the court a “rule of reasonableness.” adopted

Accordingly, It 448].) 406 U.S. at L.Ed.2d held “a p. per son a State with a criminal offense who committed charged by solely his to trial on account of cannot held more incapacity proceed the reasonable of time determine whether period necessary than that he will attain that in the probability capacity there is a substantial *25 case, that is foreseeable future. If it is determined this not the then the institute the civil commitment customary proceeding State must either citizen, would other or re indefinitely any be commit required Furthermore, even if it determined that lease the defendant. trial, be his defendant will able to stand continued com soon probably (Id., at must be toward that progress goal.” p. mitment justified by omitted.) fn. p. 451], L.Ed.2d at decided, California, Indiana, was like had stan theAt time Jackson to stand trial incompetent and release of persons dards for commitment from those for all other prescribed were different” “significantly which Davis, (In 3d at re Cal. supra, committed. persons sought civilly 805.) authorized the indefinite commitment California statutes also p. Thus, Jackson, this incompetent. relying to be found Davis, (In re procedures. court invalidated those California 798.) Cal.3d the in- revising by and Davis to Jackson responded

The Legislature 3316 et (Stats. seq.) ch. p. this state. laws of competency of an institutionalization amended, the lifelong the laws still permit As convicted) of crime. (but not accused incompetent person incurably were moved such commitment However, authorizing provisions (The statutes. civil commitment to the general Penal Code from the Welf. & Act], the L.P.S. [hereinafter, Act Lariterman-Petris-Short for incom- Now, commitment an indefinite Code, seq.) 5000 et Inst. § indicted or has been person incompetent if the petency permitted harm, death, aor se- bodily involving great “a felony held to answer (Welf. & person.” of another well-being to the physical threat rious Moreover, to the majority, (h)(2).) according Code, subd. Inst. dangerous. (Maj. presently must be person accused have revisions However, while these 174-177.) ante, at pp. opn., in Jackson identified problems the due process some of addressed deficiencies. equal protection overcome Davis, did not begin II At the heart of this lies appeal law, claim that appellant’s California for the indefinite commitment providing of certain incompetent persons crime, accused of denies him the equal protection of the law. The ma- jority recognize this contention involves a constitutionally fundamental interest and that “strict is the scrutiny correct standard of ante, review.” (Maj. opn., fn. This means that the state (1) must establish that it has a interest compelling which justifies law and then demonstrate that the distinctions drawn the law by are to further necessary purpose. v. Olivas People 551 P.2d 375].) Two equal protection are questions posed this appeal. The first in- volves the state’s unequal treatment *26 statutory of incompetent persons as to its compared provisions for other unconvicted persons who are dan- gerous as a result of mental Code, disorder.3 &Welf. Inst. 5300-5306.) Whereas persons to the subject 90-day postcertification §§ procedures be may treatment,”4 committed “intensive an in- competent herein) individual (appellant be may committed even if no treatment for his Moreover, condition is available. the of an length incompetent’s commitment is far greater than that permitted under the 90-day postcertification procedures. An incompetent person be may life; institutionalized for an imminently dangerous person be com- may mitted for only 90 and his days commitment not be renewed may unless threatened, he has attempted, in engaged violence the during prior (Welf. 90 days’ Code, 5304.) confinement. & Inst.

These vast differences in this state’s handling of incompetent persons and imminently dangerous persons are upheld the by majority means of a of process sophistical reasoning. The laws are said incompetency interest, serve a i.e., state compelling protection of the public. There- fore, assert, the majority the are disparities on the basis justified the Legislature could conclude that “reasonably” incompetent persons are presently more than dangerous imminently dangerous persons since the former are with” a violent crime “formally charged and have pre- been held to answer for that crime viously after a judicial determination probable cause. involuntary group will be referred provisions 3The for the commitment of the latter “90-day postcertification” persons under procedures, to as the provisions and the confined these “imminently dangerous.” 4See Welfare and Code sections 5300 and 5304. Institutions

The nature of the state’s interest in the compelling protection pub conceded, lic but the is “logic” fallacious at majority’s virtually outset, other At the the mere every step. “reasonableness” of the legisla tive is the classification scheme not correct constitutional yardstick (Cf., ante, 172.) this case. at the maj. opn., p. is cor scrutiny “[S]trict ante, 8), rect opn., standard of review” at fn. and under (maj. p. test, the of the strict is second this court de prong scrutiny required the disparities termine whether are the statutory necessary protect ante, (Cf., it is not the public. Obviously, necessary for pro the tection of that nontreatable be institutionalized public incompetents whereas who are not treatable remain imminently dangerous free; it that incompetents nor is remain confined for life while necessary are avoid this released after To imminently dangerous persons days. conclusion, ineluctable this majority simply ignore prong strict test and the minimal rational basis scrutiny apply scrutiny test. “reasonableness,”

Even this from the mere viewpoint case viewing do analysis. reasoning conclusions not withstand majority’s cause han- probable justifies unequal determination judicial unpersuasive. dangerousness It dling of incompetents present As protecting public. is relevant to the state’s interest in compelling *27 that who assumption the of the one has recognize, validity the majority diminishes felony currently dangerous been with a violent charged ante, 177.) (Cf., at The parties with of time. maj. opn., p. the passage com- permanently have informed us that appeal proceedings this the normally under L.P.S. Act are mit an individual of the crime charged. after the commission at least three brought years time, (Cf., Code, 1370.) of the state’s as- this the validity Pen. By It cannot surely will to virtual insignificance. have diminished sumption law has which California the justify huge discrepancies be said to created. dangerousness to the present assertion as

The state’s validity limited nature of by exceptionally also undermined incompetents which con- conduct”5 from of criminal determination “judicial be an should accused A determination clusion is drawn. judicial as an indicator is far less reliable for a violent crime held to answer conviction, since the than is a that crime his commission of actual meet than is much easier to examination at a preliminary state’s burden but were competent, true if the accused even at This would trial. 5Ante, page at 172.

when he determination of cause is incompetent, judicial probable is. even less reliable as an indication that he committed a criminal fact act. “Counsel cannot a defendant who is effectively represent unable to (Hale understand the or to assist him.” v. proceedings rationally Supe rior Court P.2d Thus, 817].) when an accused is incompetent at the hear preliminary there is at best ing, an limited extremely for effective opportunity cross-examination or presentation the defense of view. point sum,

In it is unreasonable to conclude that wholly because incompe- tent persons were held to answer for a violent crime committed some in the years past, are more to the currently dangerous public than imminently dangerous persons. This profferred for the justification state’s enormously disparate treatment of the two should be re- groups Indeed, jected. the United States Supreme Court has already explicitly Baxstrom, done In so. Jackson and it has held that neither the filing criminal nor the charges obtaining conviction are adequate final “to less justify procedural and substantive protection against indefinite ” commitment than that (Jackson, available to generally all others. . . . U.S. at L.Ed.2d at p. 443].) If a person’s actual conviction is insufficient to justify standards “applying] his making commitment a permanent one when standards generally applicable to all others afford him a substantial (id., opportunity early release” p. 729 L.Ed.2d at p. 446]), a fortiori the fact that the person has been held to answer is insufficient.

One searches today’s in vain majority opinion for some indication that they recognize of those words meaning Supreme Court. “do majority not regard holding the fact of [Jackson] incompetency never be a basis for confine- involuntary (Ante, ment prescriptions.” at p. But that statement is a It truism. *28 not, however, does support the majority’s conclusion that California procedures comport with equal protection the despite clear language Jackson. The have majority apparently determined to deal with Jack- son and Baxstrom in the same fashion as dealt with they the second of the prong if, strict scrutiny test. treat it as They conceded its having existence, can they then ignore it.

Ill Even if I were to accept the that a majority’s reasoning prior “judici- al determination of criminal conduct” is sufficient to uphold challenge this an equal protection laws of state

incompetency against the 90-day postcer- to relating based on a with statutes comparison to impossible validity tification it be procedures, uphold would necessary compare laws. It would then become the incompetency with its treatment of treatment of incompetent persons Legislature’s of criminal other who have a determination persons “judicial suffered conduct.” (1) such those persons: have identified three majority groups (Pen. Code, (2) 1026 et by insanity seq.);

found not reason of guilty § (Welf. & those found to be disordered sex offenders Inst. Code, (3) MDSO’s); those seq., 6300 et hereinafter referred as § (Welf. Code, & committed to the Inst. Authority California Youth law, under 1800 et Under current all of these seq.). may a in an institution as re- specified indefinitely circumstances confined sult of a mental defect.

However, for all three of these the commitment and release standards No in- incompetents. differ from those groups significantly provided the procedures dividual be committed the first instance under may there has been a determination be- mentioned unless majority addition, a he In yond reasonable doubt or she is crime. guilty under these three provisions since the of commitment purpose condition,6 the thus au- treatment of the offender’s mental confinements must be terminated if treatment is unfeasible or unavailable. thorized Jackson, 731-738 L.Ed.2d at supra, 406 U.S. at pp. W., also, Gary pp. 447-451]; see Cal.3d accorded sub- protections person Neither of these substantial noted, in this state. As jected already to incompetency proceedings be- any be committed without incompetent persons proof incurably act, committed a felonious and they a reasonable doubt that yond the state cannot even when it is determined that will remain confined disorder.7 treat their mental Cal.Rptr. 486 P.2d Gary 6In re W. 1201] [extension commitment]; Moye re 22 Cal.3d Authority In Youth person found not an MDSO or as a P.2d 1097] [commitment *29 insanity]. guilty by reason may be the individuals this of violent felonies persons accused 7Incompetent a mental defect that the state on the basis of who be for life state can institutionalized

cannot treat. This discrimination not against incompetents to clearly “necessary” safeguard public since the are afforded greater protections to equal ly dangerous persons such as MDSO’s. The disparity not even rational. And once the Supreme Court’s decisions di again prior speak Here, to this rectly sort of unequal protection of the laws. as in just Jackson, the incompetent individual has been to a le “subjected] more nient commitment standard and ato more standard of release stringent than those to all others whom the generally applicable” deem majority Jackson, to be similarly situated. at supra, U.S. p.

L.Ed.2d at thus p. 446].) him in effect to “[B]y condemning permanent institutionalization without the for commitment or the showing required for release opportunity afforded statutes with other dealing per [the sons who have suffered a prior determination judicial of criminal conduct], deprived [appellant] of equal protection of the [California] (Ibid.) laws under the Fourteenth Amendment.”

IV In addition to the equal protection above, problems discussed this case also presents another but important difficult question concerning government’s power to incarcerate its citizens. anMay individual be in- stitutionalized—against his will and for the remainder of his life—on the basis of his status having mental “dangerous” condition where (1) it has not been proved beyond a reasonable doubt that he commit- ted violent any act to a crime amounting the state cannot treat his mental condition?

This question raises serious issues under our constitutional require- ments of due process of law8 and our prohibitions cruel against and/or unusual punishments.9 To the extent these all, issues are considered at the majority appear such uphold lifetime involuntary commitments on the solely basis of the state’s “compelling in public safety.” interest[] ante, (Maj. opn., But the reasons their underlying conclusion are difficult to discern. No potentially considerations counterbalancing are even discussed. The state’s interest in public would seem safety with equally strong respect “imminently dangerous” persons, it yet Jackson, 8See pages 406 U.S. at pages 736-738 L.Ed.2d at 449-451]. Constitution, Compare, Constitution, Amendments; United States Fifth and Fourteenth California I, article sections I and 7. 9See Robinson v. L.Ed.2d U.S. 82 S.Ct. 1417]. California Constitution, Amendment; Compare, Constitution, Eighth United States California ar I, ticle section 17.

is not I member doubt of would suggested—and every today’s majority accept—that who has committed crime person “hospital- no ized” for life on the basis some he has that thinks an authority incurable mental which in harm defect will result future to society. can be conclusions of the understanding majority’s an

Perhaps ap- raised question of the ex facto post its discussion from gleaned There, regard appellant’s reveal the majority pellant. no imposing “punishment.” in nature and “not penal” confinement as ante, (Maj. opn.,

These of designations appellant’s confinement are incredible. Incur- ably incompetent such as are appellant generally kept like institutions Patton or Atascadero State court Hospitals. This has these institutions do not differ repeatedly recognized appreciably from prisons.10 Within those same walls are persons convicted Moreover, for serving sentences crime. commitment appellant’s these is for rest of his He is institutions life. confined his will. He against is confined because there has been a determination of “judicial criminal conduct.” He receives no The sole for justification treatment. his confinement is this protection which court has society, explic- is a “well-known itly purpose declared v. punishment.” (People 14 Cal.3d Feagley 535 P.2d Cal.Rptr. 373], added.) circumstances, conclude, italics these Under as the majority do, that confinement is is to exalt appellant’s punishment extended not form over substance.

V in vio- was obtained appellant against Since in view the my judgment due protection, equal provisions regarding lation the constitutional I would reverse. unusual punishment, and cruel process, and/or was denied October 1980. rehearing Appellant’s petition Bird, should be J., petition granted. opinion C. was Cal.Rptr. 319-320 14 Cal.3d People 10See v. Burnick 226-227 (1979) 23 Cal.3d Roulet 352]; Conservatorship P.2d 425, 590 P.2d 1].