People v. BarnerPeople v. Barner
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found appellant Oscar Deran Barner not guilty by reason of insanity for offenses Barner committed when he repeatedly punched his neighbor, breaking bones in his neighbor‘s face. Due to Barner‘s status as a “three-strike” offender, the trial court ordered him committed to the State Department of State Hospitals, setting a maximum term of 25 years to life. Barner now raises several statutory and constitutional challenges to the term of his commitment. We shall modify the judgment to reflect a maximum term of commitment for life and order the trial court to issue an amended order of commitment with a new accompanying statement relating to the calculation of the maximum term.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the issues raised in this appeal, it is not necessary to provide a lengthy discussion of the facts supporting the underlying offenses. It suffices to say that for no apparent reason, Barner beat P.S.—a man with cerebral palsy with whom Barner had previously been friendly—into unconsciousness. P.S. described Barner during the incident as “a different person” from
A jury found Barner guilty of assault by means of force likely to produce great bodily injury (
Subsequently, Barner requested the court strike his prior strikes under
I
State Hospital Commitment
Barner raises several challenges to his state hospital commitment. He maintains the trial court erred in holding a sentencing hearing, rather than a hearing to calculate his term of commitment. He further claims the court erred in applying the Three Strikes law to set an indeterminate life term (“life-top” term) as the maximum term of commitment, because the statute requires the court to use the upper term for the base offense in calculating the commitment term. We disagree.
A. Legal Background
An insanity finding that follows a determination (by verdict or plea) that the accused committed the criminal act charged establishes the accused was not criminally responsible for the offense committed. (In re Moye (1978) 22 Cal.3d 457, 466, superseded by statute as stated in Hudec v. Superior Court (2015) 60 Cal.4th 815, 822.) Therefore, a finding of not guilty by reason of insanity does not result in a conviction. (People v. Morrison (1984) 162 Cal.App.3d 995, 998; People v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 668.) When a criminal defendant is found not guilty by reason of insanity, that person “is no longer a criminal defendant, but a person subject to civil commitment.” (People v. Lara (2010) 48 Cal.4th 216, 222, fn. 5 (Lara).) If, as here, the sanity of the defendant has not yet been recovered at the time of the verdict, the court directs that the defendant either be committed to the State Department of State Hospitals or placed on outpatient status. (
“The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual‘s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” (Jones v. United States (1983) 463 U.S. 354, 368 (Jones).) Upon a commitment to a state hospital, the medical director of the facility submits semiannual reports to the court as to the person‘s status and progress. (
On the other hand, the commitment may be extended in up to two-year increments if, because “of a mental disease, defect, or disorder, [the person] represents a substantial danger of physical harm to others.” (
In committing an insanity acquittee, the relevant statute provides: “[T]he court shall state in the commitment order the maximum term of commitment, and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in this section. For the purposes of this section, ‘maximum term of commitment’ shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed less any applicable credits . . . .” (
Whether the trial court had discretion to make certain sentencing choices in calculating a maximum term of commitment presents a question of law, requiring this court to ascertain the proper interpretation of the statutes governing the maximum term of commitment after being found not guilty by reason of insanity. (See People v. Superior Court (Frezier), supra, 54 Cal.App.5th at p. 659; see also People v. Scott (1994) 9 Cal.4th 331, 354 [legal error resulting in an unauthorized sentence subject to de novo review commonly occurs where the court violates mandatory provisions governing the length of confinement].) Similarly, whether the Three Strikes law applies in setting a maximum term of commitment under
“When interpreting a statute our primary task is to determine the Legislature‘s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826; see also People v. Rubalcava (2000) 23 Cal.4th 322, 328.) ” ‘[W]e are bound to give effect to a statute according to the usual and ordinary import of those words. [Citation.] We may not add to or alter those words in order to accomplish a purpose that does not appear on
B. Hearing Setting the Maximum Term of Commitment
Barner contends that the trial court improperly held a sentencing hearing when it calculated the term of his commitment. He claims that because he was found not guilty by reason of insanity, he was never convicted of the charged offenses and, therefore, cannot be sentenced on them. Nevertheless, he argues, the trial court‘s use of terminology associated with sentencing hearings as well as making discretionary choices only available during actual sentencing, demonstrated that the trial court did not understand the hearing was merely a calculation hearing, resulting in an unauthorized sentence. It does appear the trial court conflated the commitment hearing with a sentencing hearing. Indeed, after conducting a court trial on the allegations of the prior convictions, the court stated: “[H]aving found the prior convictions proved beyond a reasonable doubt, we‘ll turn to the judgment and sentencing in this matter.” (Italics added.) The court then asked defense counsel if he “waive[d] formal arraignment and advisement of rights for judgment and sentencing?” (Italics added.) After a lengthy colloquy on whether the trial court had discretion to strike Barner‘s prior strike, the court stated: “Do all parties submit for judgment and sentencing?” (Italics added.) The trial court denied Barner‘s motion to strike one of his prior strikes alleged under
The People agree that an insanity acquittee may not be sentenced, but argue that Barner was properly committed to the state hospital because, notwithstanding the parties’ use of language suited to a sentencing hearing in the trial court, Barner was never actually sentenced. We agree. Despite the trial court‘s perhaps ill-chosen language, the record reflects the trial court ordered Barner committed to the state hospital for a maximum term of 25
We also reject Barner‘s implicit contention that a commitment hearing under
C. Maximum Term of Commitment Calculation
Barner takes issue with his life-top commitment term. He acknowledges that the plain language of the statute reasonably allows for life-top commitment terms for insanity acquittees who commit offenses, such as murder, punishable by life imprisonment. He claims, however, that the offenses of which the jury found him guilty, assault by means of force likely to produce great bodily injury (
In clear and unambiguous language, the statute requires the trial court to calculate as the commitment term the “longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed.” (
Critically, the statute permits the use of all upper terms and enhancements in the calculation and does not distinguish between potential sentences based on criminal conduct or status as a recidivist. (See People v. Coronado (1995) 12 Cal.4th 145, 158-159 [conduct and status enhancements are used differently for sentencing purposes].) Indeed, the language demonstrates the Legislature intended courts to set the lengthiest term otherwise warranted by the acquittee‘s offenses. Based on Barner‘s offenses, the longest term warranted is calculated through the alternative sentencing scheme of the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 527.) Nothing in
Barner argues that because the Three Strikes law does not specifically refer to or incorporate
Nor are we persuaded that the provision in the Three Strikes law, which states “[t]here shall not be a commitment to any other facility other than the state prison,” was meant to exclude the Three Strikes law from consideration while calculating the maximum term of commitment under
If the Legislature had wanted to provide some relief from a Three Strikes indeterminate term in setting a maximum term of commitment under
Thus, through
The Legislature “is presumed to be aware of all laws in existence when it passes or amends a statute. [Citations.] ’ “The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” ’ ” (In re Greg F. (2012) 55 Cal.4th 393, 407.) Indeed, the very fact that the Legislature created
Barner concedes that in calculating the “longest term of imprisonment” under
We agree that
However,
Contrary to Barner‘s assertions, this does not lead to an absurd result, nor does it lead to automatic confinement for life. The Legislature has reasonably determined that a finding of not guilty by reason of insanity constitutes an adequate basis for hospitalizing an acquittee as a dangerous and mentally ill person for an amount of time equal to the term of imprisonment to which they would have been exposed had they been convicted and sentenced. The difference is that an insanity acquittee subject to a life-top maximum term of commitment is “entitled to release when he has recovered his sanity or is no longer dangerous.” (Jones, supra, 463 U.S. at p. 368.)
When the trial court set the maximum term of commitment in this case, it considered whether to strike prior strike convictions and the five-year enhancements for prior convictions—discretionary choices that would have been available at sentencing. (See People v. Carmony (2004) 33 Cal.4th 367, 375 [a defendant may ” ‘invite the court’ ” to exercise its discretion to strike a prior conviction]; People v. Ponder (2023) 96 Cal.App.5th 1042, 1052 [dismissal of an enhancement is a discretionary determination as to whether doing so is in the furtherance of justice], review granted Jan. 10, 2023, S282925.) It ultimately struck one of Barner‘s five-year enhancements. In addition, the trial court did not include an otherwise mandatory three-year enhancement for the great bodily injury allegation the jury found true under
Finally, we reject, in part, the People‘s invitation to correct the order of commitment to account for the three-year great bodily injury and additional five-year prior conviction enhancements not considered by the trial court in calculating the maximum commitment term. According to the People, the order of commitment should be amended to reflect a 38 year-to-life term. Upon conviction, Barner would have been subject to a maximum term of 38 years to life. It is well-established, however, that indeterminate sentences such as 25 or 38 years to life, establish both a maximum term of life and a minimum term of confinement before an indeterminate sentence becomes eligible for parole consideration. (See In re Dannenberg (2005) 34 Cal.4th 1061, 1078; People v. Jefferson (1999) 21 Cal.4th 86, 92-93.) Because Barner was not sentenced, he is not subject to a minimum term of confinement prior to parole consideration and the minimum sentence has no relevance. Barner‘s commitment to the state hospital does not depend on his serving a minimum term; he may be released from commitment should he regain his sanity. (See
Nevertheless, all parties are entitled to an explanation of how the court arrived at the maximum term. Indeed, the trial court was required to provide a statement setting forth its calculation of the maximum possible term. (See
II
Constitutional Challenges to a Life-top Term of Commitment
Barner claims that considering the Three Strikes law in setting the life-top term violated his rights to due process and equal protection. He argues that while he is subject to a commitment for life while he undergoes treatment, other insanity acquittees subject to the same treatment for a determinate term may be released, unless the state affirmatively proves that the acquittee is dangerous due to his or her mental disorder. We see no constitutional error.
A. Legal Background
A finding of insanity is dispositive on the question of whether the accused is to be held criminally responsible for committing the charged offense. (Hernandez II, supra, 22 Cal.4th at p. 529 (conc. opn. of Brown, J.); People v. Severance (2006) 138 Cal.App.4th 305, 318; People v. Jantz (2006) 137 Cal.App.4th 1283, 1295.) “The acquittee has raised his mental illness as a defense to his criminal conduct and there has been an adjudication that he committed a criminal act and was legally insane when he did so.” (People v. Wilder (1995) 33 Cal.App.4th 90, 105.) He “has demonstrated dangerousness by committing a criminal offense” (ibid), but the commitment of the defendant to a state hospital “is in lieu of criminal punishment and is for the purpose of treatment, not punishment.” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485, disapproved of on other grounds in Hudec v. Superior Court,supra, 60 Cal.4th at p. 828 & fn. 3.) “The purpose of committing an insanity acquittee is two-fold: to treat his mental illness and to protect him and society from his potential dangerousness. [Citation.]” (Wilder, supra, at p. 101.)
Outpatient status is a prerequisite to a finding that sanity has been restored. (
Under the second option, an insanity acquittee with a determinate maximum term may be released at the end of that term, unless the district attorney successfully petitions to extend the commitment because the patient presents a substantial danger of physical harm to others because of a mental disease, defect, or disorder. (
Citing to Ulster County Court v. Allen (1979) 442 U.S. 140, 157 and People v. Castro (1985) 38 Cal.3d 301, 313, Barner contends a life-top maximum term of commitment violates his due process rights because use of his two prior strike convictions to set a life-top term creates an irrational presumption that to protect the public from him, he must be committed for life. Barner posits that he should be considered for release on the same time frame as those who commit the same offenses and receive a determinate term of commitment. He argues that his continued commitment until he proves his sanity violates due process because the state is relieved from having to prove the requirements under
“A ‘root requirement’ of due process is that an individual be given an opportunity for a hearing before being deprived of any significant liberty or property interest.” (Lara, supra, 48 Cal.4th at p. 229.) Indeed, ” ‘commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ ” (Jones, supra, 463 U.S. at p. 361, quoting Addington v. Texas (1979) 441 U.S. 418, 425.) However, due process does not call for the same procedures in every situation. Instead, ” ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” (Jones, supra, at pp. 367-368, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 481.)
Barner‘s due process challenge was essentially rejected by the United States Supreme Court in Jones, supra, 463 U.S. 354. In that case, the court held that due process is not violated when an insanity acquittee may be hospitalized for a period longer than the determinate term otherwise associated with the appropriate sentence for his or her offenses, even when compared to civil commitment procedures, which require proof of the need for commitment under a higher burden. (Id. at pp. 366-368.) In Jones, the Supreme Court upheld a District of Columbia statute that required a defendant who was acquitted by reason of insanity, and committed to a mental institution, to prove that he was no longer insane or dangerous by a preponderance of the evidence in order to be released. In that case, the defendant was hospitalized for a longer period than he would have served in prison if convicted. (Jones, supra, 463 U.S. at p. 368.)
The Supreme Court found that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for
The high court next held that the preponderance of the evidence standard met due process requirements, stating, “We hold that when a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” (Jones, supra, 463 U.S. at p. 370; cf. O‘Connor v.Donaldson (1975) 422 U.S. 563, 575 [civil commitment requires both mental illness and dangerousness].)
Under Jones, California may use the findings in the criminal proceeding as the basis for commitment on grounds that those findings show both insanity and dangerousness. (
In general, a mandatory rebuttable presumption tells the trier of fact that, if a specified fact has been proven, then the trier of fact must find that a specified factual element of the crime has also been proven, unless the defendant comes forward with evidence to rebut the presumed connection between the two facts. (Ulster County Court v. Allen, supra, 442 U.S. at p. 157.) Mandatory rebuttable presumptions raise due process concerns in a criminal case “since the prosecution bears the burden of establishing guilt beyond a reasonable doubt. (Ibid.) The prosecution ‘may not rest its case entirely on a [mandatory rebuttable] presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.’ (Id. at p. 167.)” (People v. McCall (2004) 32 Cal.4th 175, 183.)
Here, the presumption of dangerousness is a consequence of Barner‘s commission of the offenses, rather than an evidentiary presumption to be
Barner‘s contention is that this presumption should not continue indefinitely, especially when other insanity acquittees, whose term is calculated as a determinate term, may be released unless the state proves, beyond a reasonable doubt, that he or she is still dangerous as a result of his or her mental illness. First, Jones rejected the notion that there is a correlation between the length of the acquittee‘s hypothetical criminal sentence and the length of time necessary for his or her recovery. (Jones, supra, 463 U.S. at p. 368.) Rather, Jones instructs that “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” (Ibid.; see also Lara, supra, 48 Cal.4th at p. 228 [cautioning that the expectation of release after the maximum term is a “secondary benefit” not to be elevated “over the fundamental purposes of the [not guilty by reason of insanity] provisions, to ensure that needed treatment is provided and the public protected” as “such an interpretation would run counter to the very purposes of the [not guilty by reason of insanity] statutes and the provision for extension of commitment“]; cf. Foucha v. Louisiana (1992) 504 U.S. 71, 77 [an indefinite civil commitment is consistent with due process if the statute provides fair and reasonable procedures to ensure that the person is held “as long as he is both mentally ill and dangerous, but no longer“].) Because it is impossible to predict whether, or how long it will take for, an individual to recover his or her sanity, due process allows an indeterminate term of commitment based on a finding of not guilty by reason of insanity and subject to periodic review of the acquittee‘s suitability for release. (Jones, supra, at p. 368.)
Next, a third striker like Barner may rationally be presumed to be dangerous for a longer period of time than someone who is not a third striker because he has demonstrated his dangerousness with repeat commissions of serious and/or violent felonies. This reasoning is consistent with case law. (See Jones, supra, 463 U.S. at pp. 364, 366 [“The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness” and “[i]t comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment“]; see also People v. Beck (1996) 47 Cal.App.4th 1676, 1684 [“an acquittal
Here, Barner had a trial in two phases and stipulated, in a separate hearing, that commitment to the state hospital was necessary due to his ongoing insanity. As he put forth insanity as a defense and proved his criminal act was a product of his mental illness, any concern as to the risk of error at this stage is diminished. (Jones, supra, 463 U.S. at p. 367.) In addition, an indeterminate term of commitment bears a rational relation to the purpose of treatment and restoration of sanity. (Id. at p. 368.) Thus, due process was satisfied at the initial commitment. With respect to Barner‘s ongoing commitment until he can prove his sanity, we see no due process error. Although we cannot predict an insanity acquittee‘s recovery rate, the statute provides for periodic updates and an opportunity for release upon restoration of sanity. Because there is assurance that every acquittee has an opportunity to obtain release, due process is satisfied. (See Jones, supra, at p. 366 [“The precise evidentiary force of the insanity acquittal, of course, may vary from case to case” but due process does not demand classifications that fit every individual with the same degree of relevance].)
We conclude an indeterminate life term of commitment does not violate due process.
C. Equal Protection
Barner next asserts a life-top term of commitment deprives him of his right to equal protection because he must remain in physical custody until his sanity is restored, even if he does not represent “a substantial danger of physical harm to others” within the meaning of
First, Barner forfeited his equal protection claim by not asserting it in the trial court. (See People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14 [the defendant‘s failure to raise his equal protection claim in the trial court forfeited the argument]; People v. Rogers (2006) 39 Cal.4th 826, 854 [holding as to equal protection and other constitutional claims, the “defendant forfeited each of these claims by failing to raise them at trial“]; People v. Dunley (2016) 247 Cal.App.4th 1438, 1447 [“an equal protection claim may be forfeited if it is raised for the first time on appeal“].) Even if not forfeited, it has no merit.
” ’ “The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion.” ’ ” (People v. Noyan (2014) 232 Cal.App.4th 657, 666.) ” ‘Equal protection requires the state to treat similarly situated persons alike, with some exceptions in which the disparate treatment is sufficiently related to the purpose of the [law] in question.’ [Citation.] The equal protection clause applies to civil commitment statutes ‘to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens.’ ” (People v. Bocklett (2018) 22 Cal.App.5th 879, 892.)
Our California Supreme Court has recognized that at its core, ” ‘equal protection ensures that the government does not treat a group of people unequally without some justification.’ ” (People v. Hardin (Mar. 4, 2024, S277487) __ Cal.5th ___, ___ [2024 Cal. Lexis 1076, at *20-*21].) In light of this, the court recently modified our equal protection analysis as follows: “[W]hen plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not.” (Id. at p. *28.) The degree of justification required to satisfy equal protection depends on the type of unequal treatment at issue. When a challenged statute involves a suspect classification such as race, or a fundamental right such as the right to vote, courts will apply a heightened scrutiny and will demand greater justification for the differential treatment. (Id. at p. *21.) Where the challenged statutes involve neither a suspect classification nor a fundamental right, the ” ‘general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’ ” (Ibid., citing Cleburne v. Cleburne Living Center, Inc. (1995) 473 U.S. 432, 440.) Here, Barner‘s equal protection challenge fails because there is a rational basis for different treatment among insanity acquittees.
Relying on People v. Olivas (1976) 17 Cal.3d 236, Barner argues that in determining whether the differential treatment of insanity acquittees subject to life or determinate terms of commitment is justified, we should apply the strict scrutiny standard of
The California Supreme Court has explained that People v. Olivas, supra, 17 Cal.3d 236 should not be read as requiring strict scrutiny review “whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes.”7 (People v. Wilkinson (2004) 33 Cal.4th 821, 837; see People v. Flores (1986) 178 Cal.App.3d 74, 88 [an appellant does not have a fundamental interest in a specific term of imprisonment].) Rather, where the issue is not whether a deprivation of an individual‘s liberty will occur, but rather the duration of that deprivation, rational basis review is appropriate because ” ’ ” ‘the power to define crimes and fix penalties is vested exclusively in the legislative branch.’ ” ’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1119.) Accordingly, we find that the rational basis standard applies because the issue here is the duration of the commitment period, not whether insanity acquittees will be deprived of their liberty.
Under the rational basis standard, ” ‘equal protection of the law is denied only where there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.” ’ [Citation.] . . . To mount a successful rational basis challenge, a party must ’ “negative every conceivable basis” ’ that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ’ “wisdom, fairness, or logic.” ’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Barner has not met his burden to negate every conceivable basis for treating him, a recidivist offender, differently from nonrecidivist offenders during committal under
Moreover, Barner‘s equal protection argument essentially duplicates his due process argument. Jones instructs that if the due process clause does not require that an insanity acquittee be given the particular procedural safeguards provided to a different set of acquittees, then there necessarily is a
III
Multiple Adjudications of Guilt Based on the Same Conduct
Barner contends his adjudication of guilt on count one for assault with force likely to cause great bodily injury must be reversed because it is a lesser included offense to count two, battery causing serious bodily injury. We disagree.
“Under
Barner contends that because battery is a consummated assault, the assault is necessarily included in the battery. (See People v. Corning (1983) 146 Cal.App.3d 83, 90 [“Felony battery is a consummated assault“].) However, the relationship of simple assault and battery is not analogous to assault with force likely to produce great bodily injury and battery inflicting serious bodily injury. The test for determining whether one offense is necessarily included within another requires us to examine the statutory elements of the offenses. “[I]f the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Enhancements may not be considered for purposes of identifying lesser included offenses. (People v. Sloan (2007) 42 Cal.4th 110, 123.)
The statutory elements of felony battery are: (1) a battery, that is, “any willful and unlawful use of force or violence upon the person of another” (
As stated in People v. Bertoldo (1978) 77 Cal.App.3d 627, the two offenses have different elements. ”
Indeed, as Barner acknowledges, existing case law has rejected his argument, largely relying on the analysis explained above. (See In re Ronnie N., supra, 174 Cal.App.3d at pp. 733-735; In re Jose H. (2000) 77 Cal.App.4th 1090, 1095-1096;8 cf. People v. Hopkins (1978) 78 Cal.App.3d 316, 319-320 [
DISPOSITION
The judgment is modified to reflect that Barner‘s maximum term of commitment is life. The trial court is directed to prepare an amended commitment to the state hospital reflecting a maximum commitment of life. The statement or calculation of the maximum term shall list the maximum term associated with each offense, consistent with this opinion. In all other respects, the judgment is affirmed.
/s/
EARL, P. J.
We concur:
/s/
KRAUSE, J.
/s/
WISEMAN, J. *
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.