Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. MI 4782, Kenneth C. Twisselman, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., Cornell, J.
OPINION
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INTRODUCTION
Appellant, Barbara B., appeals from the order of the trial court on December 20, 2006, finding her mentally retarded pursuant to Welfare and Institutions Code section 6500 and committing her to a facility in Florida. Appellant contends the juvenile court erred in committing her without finding that her mental retardation caused her to have serious difficulty in controlling dangerous behavior as required by People v. Bailie (2006) 144 Cal. App.4th 841, 847-850 (Bailie). Respondent argues that the evidence shows that appellant had serious difficulty in controlling her dangerous behavior due to her mental retardation and that no rational trier of fact could have failed to find appellant had serious difficulty controlling her dangerous behavior due to a mental disorder. Because it appears that the legal standard applied in the psychological evaluations of appellant and the juvenile court’s ruling to commit appellant was incorrect, we will reverse for further proceedings.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
PROCEEDINGS
On September 28, 2006, the prosecutor filed a petition pursuant to section 602 alleging that appellant, who was then 12 years old, had committed arson to an inhabited structure (Pen. Code, § 451, sub d. (b)) and arson to property (Pen. Code, § 451, sub d. (d)). At the detention hearing on October 12, 2006, the juvenile court appointed the Kern Regional Center to perform an examination of appellant under section 6550 to determine her competency to continue proceedings under Penal Code section 1368. Proceedings on the section 602 petition were suspended.
The Kern Regional Center submitted a report that was filed on November 9, 2006, which included the evaluation of a psychologist and recommendation of the court liaison that appellant came within the provisions of sections 6550 and 6500 and was not competent to stand trial. The Kern County Probation Department filed a memorandum recommending the court find that appellant came within the provisions of sections 6550 and 6500.
At the section 6550 hearing held on November 14, 2006, the court found appellant was incompetent to stand trial and ordered her to participate in the services offered by the Kern Regional Center. The Kern Regional Center filed a petition on November 22, 2006, to have appellant committed under section 6500, et seq. The petition described appellant’s offense, diagnosis, and her erratic behavior while under observation and evaluation in a psychiatric center. The petition alleged that appellant “continues to display behavior that if she did not receive professional staff supervision/intervention, would result in being a danger to herself and/or others.” The petition further alleged that “as a direct result of [appellant’s] mental retardation and danger to self and/or others, petitioner requests the Court grant an order to the Kern County Sheriff to apprehend, detain and deliver respondent” to a temporary psychiatric facility in Kern County.
The court conducted the section 6500 hearing on December 20, 2006, and granted the petition. The court found appellant was “a mentally retarded person who is a danger to self and/or others as those terms are defined by [s]ections 6500-6512.” The court proceeded to commit appellant to a facility in Florida.
FACTS
Dr. Allison Little prepared a report for the section 6550 hearing that was resubmitted for the section 6500 hearing. Appellant was diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) and had been prescribed four different medications. Only one worked according to her mother. Appellant was attending seventh grade as a special education student. Appellant had smoked marijuana with an older neighbor. Other than the current allegations, appellant had no prior criminal history.
Dr. Little referred to an investigatory report from the fire department. On August 20, 2006, the fire department was dispatched to a structural fire at an apartment on Lincoln Avenue. Witnesses saw appellant standing near the area where the fire was started. Appellant was hanging her clothing over a fence near the fire to dry. One witness saw appellant behave in a manner that suggested she started the fire. Based on further investigation, interviews, and appellant’s admission, the fire department concluded that appellant started the fire by draping clothing over a fence near the apartment and igniting the clothing with a match.
Appellant described her mood to Dr. Little as happy, although her affect was flat and she seemed irritable. Appellant often failed to respond to Dr. Little’s questions with any response other that she did not know. Appellant demonstrated articulation deficits and did not remember recent psychiatric hospitalization.
The Wechsler Abbreviated Scale of Intelligence showed appellant’s “Full Scale I.Q. score” at less than 55, falling in the .1st percentile, in the range of “Mild Mental Retardation.” Appellant’s reading ability level was pre-kindergarten, her spelling ability was kindergarten, and her arithmetic was first grade. Appellant’s Vineland Adaptive Behavior Scales test was used to assess her social competence. Appellant’s communication score was four years, her daily living skills were six years two months, her socialization was three years three months, and her adaptive behavior composite was four years five months.
Appellant’s Competence Assessment for Standing Trial for Defendants with Mental Retardation came back with a total score of four. Appellant did not have the ability to aid defense counsel and did not have an understanding of the events surrounding the allegations against her. From this test, Dr. Little concluded appellant was not competent to stand trial.
Dr. Little noted appellant was mentally retarded with intellectual functioning in the lower extreme range, although she later described appellant as suffering only mild mental retardation. Appellant also suffers from ADHD, learning disabilities, and family discord. Dr. Little concluded appellant was not competent to stand trial pursuant to Penal Code section 1368.
Dr. Michael Musacco evaluated appellant to determine whether or not she “is a Mentally Retarded Person who represents a risk of harm to herself and/or others.” Dr. Musacco noted appellant was previously diagnosed with ADHD and mild mental retardation. Dr. Musacco found appellant suffers from mild mental retardation, has a history of impulse control, and has engaged in behaviors that place herself and others at risk of harm. Dr. Musacco reviewed the report of Dr. Little and the fire department incident report. Dr. Musacco also had the report of the Cascade School District indicating appellant had a verbal I.Q. score of 60 and a performance I.Q. score of 62 for a full I.Q. score of 57.
Dr. Musacco noted that a report from a family therapist indicated appellant had a history of tantrums and aggressive behavior. Appellant told Dr. Musacco that she had experimented with marijuana and alcohol. Dr. Musacco interviewed appellant during a period of hospitalization in a mental facility. He noted that compared to a prior episode, appellant was cooperative, pleasant, and well behaved. This was evidence appellant had improved. At the time of the evaluation, appellant was not taking any medication. Attempts were being made for permission for appellant to take Straterra.
Dr. Musacco noted appellant’s grooming and hygiene were fair. Appellant was impatient during the course of the evaluation. Appellant’s speech was marked by a mild to moderate articulation disorder. Appellant described her mood as sad, stated she was usually happy, and denied being generally depressed. Appellant acknowledged a history of suicidal thoughts. Appellant stated she was innocent of the current charges pending against her in the section 602 proceeding.
Dr. Musacco diagnosed appellant as having ADHD, “Combined Type Phonological Disorder (Mild),” a rule out diagnosis of mood disorder, and mild mental retardation. Dr. Musacco noted that appellant demonstrated possible symptoms of a mood disorder, “which exacerbates her risk of harm to herself and others.” Dr. Musacco found appellant was removed from the hospital against medical advice earlier in the month. In light of this data, Dr. Musacco found that appellant “remains at risk of harm to herself and others.” Dr. Musacco recommended that appellant be placed in a dual diagnosis facility in Florida.
Bret Harney, a court liaison with the Kern Regional Center, filed a report indicating the efforts made to transfer appellant to the facility in Florida. Harney recommended appellant be “declared an individual” falling within the provisions of sections 6500 to 6512, “declaring that Barbara is a mentally retarded individual who is presently a danger to herself or others.” He further recommended that appellant be placed in the facility in Florida and temporarily detained in a local acute care psychiatric facility until she could be transported to Florida.
At the December 20, 2006, hearing on the section 6500 petition, the parties submitted the matter on the written reports. Harney strongly encouraged the court to follow the recommendation that appellant falls within the provisions of section 6500 and that “she is mentally retarded and presently a danger to herself or others.” Harney outlined efforts to get appellant accepted to the facility in Florida, including an interstate compact, and transportation plans.
Section 6500 provides:
Appellant’s mother informed the court there was a lawsuit pending against Mr. Harney and the medical center. The mother stated appellant had ADHD and had been mentally handicapped since age two. The mother explained that her daughter’s ADHD caused trouble with sleep, angry feelings, impulsive actions, and psychiatric conditions. The mother objected to her daughter being placed in the Florida facility. At the hearing, the mother further objected to her daughter being prescribed Strattera. Based on the evidence before it, the court found appellant was “a mentally retarded person who is a danger to self and/or others as those terms are defined by [s]ection 6500 and following of the Welfare & Institutions Code.” The court found the least restrictive placement was the facility in Florida. The court granted the petition.
The mother earlier told Dr. Little that Strattera was the only medication that worked for her daughter.
DISCUSSION
Appellant contends that the juvenile court committed her only upon a showing that she was a mentally retarded person in danger to herself or others. Appellant challenges the constitutionality of section 6500. She argues that the juvenile court failed to follow the proper legal standard. Appellant relies on Bailie for the proposition that section 6500 must be construed as including an additional requirement of proof that a person’s mental retardation causes him or her to have serious difficulty in controlling dangerous behavior. (Bailie, supra, 144 Cal. App.4th at pp. 847-850.)
The decision in Bailie was founded on the California Supreme Court’s decision, In re Howard N. (2005) 35 Cal.4th 117 (Howard N.). Howard N. addressed section 1800 et seq., a civil commitment scheme for juveniles. The juvenile commitment scheme required only a finding that the potential committee “would be physically dangerous to the public because of the person’s mental or physical deficiency, disorder, or abnormality.” (§§ 1800, sub d. (a), 1800.5.)
Howard N. is directed at the involuntary civil commitment of individuals, who are unable to control their behavior and thus pose a danger to the public. (Howard N., supra, 35 Cal.4th at p. 128.) “[I]t is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators. Thus, while the high court performed its due process analysis in the sexually violent predator context, its constitutional pronouncements are instructive here [civil commitment of a juvenile alleged to be physically dangerous to the public because of a mental illness].” (Id. at p. 131, italics added.)
The Supreme Court held the potential committee’s right to due process required a finding that “the mental deficiency, disorder, or abnormality causes [the potential committee] to have serious difficulty controlling his dangerous behavior.” (Howard N., supra, 35 Cal.4th at p. 135.) The Supreme Court, however, found the legislation constitutional by interpreting the scheme to include this requirement. (Ibid.) Howard N. explained that a prediction of future dangerousness, coupled with a lack of volitional control, adequately distinguishes between persons who are subject to civil commitment and other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. (Id. at p. 129.)
Bailie examined the constitutionality of sections 6500 through 6512 and found that this legislative scheme also violates due process because it does not require proof that a person’s retardation causes him or her to have serious difficulty in controlling dangerous behavior. (Bailie, supra, 144 Cal. App.4th at p. 847.) Bailie found the reasoning and holding of Howard N. directly applicable to a section 6500 commitment. (Bailie, supra, 144 Cal. App.4th at pp. 847-848.) Bailie concluded that, as in Howard N., the Legislature would prefer to construe the section 6500 scheme as including a requirement of serious difficulty in controlling dangerous behavior. When a person is the subject of a section 6500 petition, the proponent of the petition shall have the burden of pleading and proving the factors mandated by Howard N. (Bailie, supra, 144 Cal. App.4th at p. 850.)
The Bailie court examined and distinguished People v. Quinn (2001) 86 Cal. App.4th 1290, 1294-1295 which the respondent relies upon in its brief. Quinn rejected challenges to section 6500 based on the absence of a requirement that the dangerous condition be caused by mental retardation and an equal protection challenge. Quinn was decided before Howard N. We do not find the holding of Quinn persuasive or controlling in light of Howard N. and Bailie.
Here, there was no showing that appellant’s dangerous behavior was caused by her mental retardation. Both psychologists and the trial court clearly followed the old standard that the committee had to be a retarded person who was a danger to themselves or to others. This was the wrong standard under Howard N. and Bailie.
Respondent posits the further argument that the evidence overwhelmingly showed appellant’s mental retardation was the cause of her dangerous behavior and any error was harmless. The evidence, however, was not as clear as respondent argues. Dr. Little’s report was arguably, contradictory concerning the extent of appellant’s mental retardation. Dr. Little alternatively described appellant’s intelligence as mild retardation and then as mentally retarded with intellectual functioning in the lower extreme range. There is no explanation in Dr. Little’s report concerning whether these terms are equivalent, or whether they describe different levels of functioning. Dr. Musacco found appellant to be mildly mentally retarded, as did earlier evaluations by other psychologists.
Complicating the section 6500 assessment was appellant’s mental health condition. Dr. Musacco observed a potential mood disorder in addition to appellant’s ADHD. At the time of Dr. Musacco’s evaluation, appellant was not taking medication for either condition. Respondent marshals evidence that appellant had past hospitalizations, was aggressive, showed a lack of control, was attracted to fire, and showed little insight into her problems. However, appellant showed some improvement during a recent hospitalization.
Given the possible interplay between appellant’s mental retardation and her mental health problems, which may be treatable, we cannot confidently say that the trial court’s failure to apply the correct legal standard was harmless. The evidence in this case is close as to the actual causation of appellant’s dangerous behavior. Where, as here, the trial court has applied the wrong legal standard in committing the appellant, and the psychologists also applied the wrong legal standard in their section 6500 and section 6550 evaluations, we cannot be confident that appellant would have been committed under section 6500 had the correct legal standard been applied.
Because there is a short period of confinement time remaining on appellant’s one-year commitment, and because there may be new commitment proceedings soon initiated, we invite the parties to stipulate to the immediate issuance of remittitur pursuant to California Rules of Court, rule 8.272(c)(1). Because such stipulations, if any, will occur after the issuance of this opinion, we will direct the Clerk/Administrator of this court to issue a remittitur immediately upon this court’s receipt of stipulations to do so from the parties.
DISPOSITION
The judgment is reversed. Upon the receipt of stipulations for the immediate issuance of this court’s remittitur from the parties pursuant to California Rules of Court, rule 8.272(c)(1), the Clerk/Administrator of this court is directed to immediately issue a remittitur.
“On and after July 1, 1971, no mentally retarded person may be committed to the State Department of Developmental Services pursuant to this article, unless he or she is a danger to himself or herself, or others. For the purposes of this article, dangerousness to self or others shall be considered to include, but not be limited to, a finding of incompetence to stand trial pursuant to the provisions of Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code when the defendant has been charged with murder, mayhem, aggravated mayhem, a violation of Section 207, 209, or 209.5 of the Penal Code in which the victim suffers intentionally inflicted great bodily injury, robbery perpetrated by torture or by a person armed with a dangerous or deadly weapon or in which the victim suffers great bodily injury, carjacking perpetrated by torture or by a person armed with a dangerous or deadly weapon or in which the victim suffers great bodily injury, a violation of subdivision (b) of Section 451 of the Penal Code, a violation of paragraph (1) or (2) of subdivision (a) of Section 262 or paragraph (2) or (3) of subdivision (a) of Section 261 of the Penal Code, a violation of Section 288 of the Penal Code, any of the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person: a violation of paragraph (1) or (2) of subdivision (a) of Section 262 of the Penal Code, a violation of Section 264.1, 286, or 288a of the Penal Code, or a violation of subdivision (a) of Section 289 of the Penal Code; a violation of Section 459 of the Penal Code in the first degree, assault with intent to commit murder, a violation of Section 220 of the Penal Code in which the victim suffers great bodily injury, a violation of Section 12303.1, 12303.3, 12308, 12309, or 12310 of the Penal Code, or if the defendant has been charged with a felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person. “If the mentally retarded person is in the care or treatment of a state hospital, developmental center, or other facility at the time a petition for commitment is filed pursuant to this article, proof of a recent overt act while in the care and treatment of a state hospital, developmental center, or other facility is not required in order to find that the person is a danger to self or others. “Any order of commitment made pursuant to this article shall expire automatically one year after the order of commitment is made. This section shall not be construed to prohibit any party enumerated in Section 6502 from filing subsequent petitions for additional periods of commitment. In the event subsequent petitions are filed, the procedures followed shall be the same as with an initial petition for commitment. “In any proceedings conducted under the authority of this article, the alleged mentally retarded person shall be informed of his or her right to counsel by the court, and if the person does not have an attorney for the proceedings, the court shall immediately appoint the public defender or other attorney to represent him or her. The person shall pay the cost for the legal services if he or she is able to do so. At any judicial proceeding under the provisions of this article, allegations that a person is mentally retarded and a danger to himself or herself or to others shall be presented by the district attorney for the county unless the board of supervisors, by ordinance or resolution, delegates this authority to the county counsel.”