Anticipating this result, K.P. contends that denying an insanity acquittee the ability to have a firearm enhancement under section 12022.53, subdivision (d) dismissed based on a trial court's exercise of discretion under section 12022.53, subdivision (h) violates the equal protection clause of the state and federal constitutions. We disagree as a rational basis exists for the disparity.
BACKGROUND
Seventeen-year-old K.P. was charged as аn adult with murder after he walked into his father's bedroom and shot him five times with a shotgun. (§ 187, subd. (a).) Fearing that his father might get up and kill him, K.P. ran back to his bedroom, grabbed a loaded AR-15, and shot his father five more times. K.P. then listened as his mother called 911 and waited for police to arrive. During a police interview after the crime, K.P. claimed that his father had verbally bullied him, that he could not be around his father anymore, and that he "made a terrible decision."
K.P. pleaded not guilty and not guilty by reason of insanity. (§ 1026.) At the guilt phase of trial, a jury found K.P. guilty of second degree murder and found true the allegation that he personally used a firearm causing death ( §§ 12022.53, subd. (d), 1192.7, subd. (c)(8) ). At a subsequent bifurcated proceeding, the jury determined that K.P. was insane when he committed the offense. The trial court committed K.P. to Patton State Hospital and fixed his maximum period of confinement at 40 years to life, representing 15 yеars to life for the murder and a consecutive term of 25 years to life for K.P.'s act of personally discharging a firearm causing death. K.P. timely appealed.
DISCUSSION
I. LAW GOVERNING CRIMINAL DEFENDANTS FOUND TO BE INSANE
A defendant who pleads not guilty by reason of insanity is presumed sane at the time of the offense and a jury determines whether the defendant is guilty of the charged offense. (§ 1026, subd. (a).) If the defendant is found guilty, then the jury determines whether the defendant was insane at the time of the offеnse. (Ibid. ) To establish this defense the accused person must prove
Where a criminal defendant has been found to have been insane at the time the offense was committed, "unless it appears to the court that the sanity of the defendant has been recovered fully," the court may order the defendant committed to the "State Department of State Hospitals" or any other appropriate facility for care and treatment. (§ 1026, subd. (a).) Once a criminal defendant has been 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)
In a commitment order the trial court is required to state the " 'maximum term of commitment' [meaning] 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 as defined by Section 2900.5, and disregarding any credits which could have been earned pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3." (§ 1026.5, subd. (a)(1).)
At the end of the maximum term of commitment, the state may petition to extend the commitment. (§ 1026.5, subd. (b)(1)-(2).) After a jury trial, the court may extend the commitment for an additional two years if the person "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1), (4), (8).) Any additional recommitments are for two years and require additional jury trials. (§ 1026.5, subd. (b)(8).) An insanity acquittee who recovers his or her sanity need not remain confined for the maximum term of commitment; rather, release is possible at any time following a mandatory, 180-day commitment period (§ 1026.2, subd. (d) ) if the individual demonstrates fitness for release,
II. AMENDED SECTION 12022.53 DOES NOT APPLY TO INSANITY ACQUITTEES
At the timе of K.P.'s sentencing hearing, the former version of section 12022.53 required the trial court to impose a consecutive enhancement of 25 years to life for the jury's true finding on the allegation that K.P. personally and intentionally discharged a firearm in committing the murder. (See People v. Hurlic (2018)
K.P. asserts that amended section 12022.53 applies to him and that his case must be remanded to allow the trial court to exercise its discretion in deciding whether to dismiss his firearm enhancement. The People assert that amended sectiоn 12022.53 does not apply to insanity acquittees because the Legislature included no language in amended section 12022.53 suggesting that it applies to insanity acquittees. Moreover, the People note that just six months before enacting amended section 12022.53, the Legislature expressly extended the benefits of Propositions 36 and 47 to insanity acquittees. The People assert the omission of similar language in amended section 12022.53 expresses a different legislative intent with regard to amended section 12022.53. We agree with the People.
Proposition 36 enacted section 1170.126, which gives many inmates now serving a third strike sentence an opportunity to request resentencing as a second-strike offender if their "sentence under [Proposition 36] would not have been an indeterminate life sentence." (§ 1170.126, subd. (a)-(c).) The court in People v. Dobson (2016)
Effective June 27, 2017, the Legislature added section 1170.127 to "nullify" Dobson , supra ,
K.P. acknowledges this established principle of statutory construction, but contends that, if amended section 12022.53 is construed to exclude insanity acquittees, the statute violates equal protection. We address this contention below.
III. NO EQUAL PROTECTION VIOLATION
A. General Legal Principles
" ' "The equal protection guarantees of the Fourteenth Amendment of the United States Constitution and the California Constitution are substantially equivalent and we analyze[ ] them in a similar fashion." ' " ( People v. Noyan (2014)
B. Analysis
K.P. concedes that he does not fall within the literal terms of amended section 12022.53 because he was committed to a state hospital and not sentenced. He claims that a literal application of amended section 12022.53, subdivision (h) violates his constitutional right to equal protection under the state and federal constitutions because, as an insanity acquittee who used a firearm to murder, he is similarly situated with criminal defendants adjudicated for the same crime and enhancement. For purposes of analysis, we assume without deciding that insanity acquittees and criminal defendants convicted of the same crime and subjected to the same firearm enhancement are similarly situated. ( In re C.B. (2018)
Relying on People v. Olivas (1976)
In Olivas , supra ,
Under the rational basis standard, " 'equal protection of the law is denied only whеre there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ' [Citation.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citation.] If a plausiblе basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' " ( Johnson v. Department of Justice (2015)
The Legislature could have concluded that, given the distinсt purpose and structure of the insanity commitment scheme (as distinguished from the purpose of a prison term), striking or dismissing firearm enhancements for insanity acquittees would not further the purpose of insanity commitments and serve no practical purpose.
Criminal defendants are sentenced to a period of incarceration "to reflect society's view of the proper response to commission of а particular criminal offense, based on a variety of considerations such as retribution, deterrence, and rehabilitation." ( Jones , supra , 463 U.S. at pp. 368-369,
Under the California insanity commitment scheme, insanity acquittees must be confined or placed on outpatient status for a minimum of 180 days from the date of the order of commitment. (§ 1026.2, subd. (d).) After this minimum commitment term, insanity acquittees may annually petition for release on a showing, by a preponderance of the evidence, that the individual's sanity has been restored. (§ 1026.2, subds. (h), (j), (k).) Insanity acquittees who were committed based on the commission of a felony and who represent a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder may have their commitments extended beyond the maximum term of commitment in two-year increments when the prosecution proves, beyond a reasonable doubt, that "by reason of a mental disease, defect, or disorder" the defendant "represents a substantial danger of physical harm to others" and that as a result of the mental disease, defect or disorder, the defendant had, "at the very least, serious difficulty controlling his potentially dangerous behavior." (§ 1026.5, subd. (b)(1), (8); People v. Zapisek (2007)
Thus, while striking or dismissing a firearm enhancement would shorten the maximum term of commitment, it would be of no practical benefit to
In summary, we conclude that the Legislature could rationally distinguish between insanity acquittees and criminal defendants when enacting amended section 12022.53. According, we discern no equal protection violation.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
BENKE, Acting P. J.
DATO, J.
Notes
Undesignated statutory references are to the Penal Code.
For brevity, we refеr to a person found not guilty by reason of insanity as an insanity acquittee.
Subdivision (a) of section 1170.127 provides in part: "A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have his or her maximum term of commitment, as established by Section 1026.5, reduced to the length it would have been had Section 1170.126 been in effect at the time of the original determinаtion."
Subdivision (p)(1) of section 1170.18 provides in part: "A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have his or her maximum term of commitment, as established by Section 1026.5, reduced to the length it would have been had the act that added this section been in effect at the time of the original determination."
"Only when the language of a statute is susceptible to more than one reasonable construction is it appropriate to turn to extrinsic aids, including the legislative history of the measure, to ascertain its meaning." (Diamond Multimedia Systems, Inc. v. Superior Court (1999)
Although not argued by the parties, there is an additional reason suggesting that the Legislature did not intend amended section 12022.53 to apply to insanity acquittees. Under subdivision (a)(1) of section 1026.5 the trial court is required to impose the " 'maximum term of commitment' " which includes "any additional terms for enhancements ... which could have been imposed ." (Italics added.) This language requires that the trial court impose the additional terms for any firearm enhancements. Thus, even assuming, arguendo, that the discretion given to trial courts by amended section 12022.53 cоuld apply to insanity acquittees, subdivision (a)(1) of section 1026.5 takes that discretion away.
K.P. appears to argue that strict scrutiny review should apply because the burden of proof for continued commitment shifts to the People at the end of the maximum term of commitment. Specifically, insanity acquittees have the burden to prove restoration of sanity by a preponderance of the evidence to оbtain release before the end of their maximum term of commitment (§ 1026.2), and the People have the burden to prove beyond a reasonable doubt that an insanity acquittee convicted of a felony "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others" to obtain a two-year commitment extension after expiration of the maximum commitment term. (§ 1026.5, subd. (b)(1), (8).) This difference, however, again impacts the length of an insanity acquittee's commitment, not whether a deprivation of liberty will occur.