Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF049284. Helios (Joe) Hernandez, Judge.
Rod Pacheco, District Attorney, and Rebecca Marie Madrid, Deputy District Attorney, for Plaintiff and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
McKinster, J.
This is an appeal by the District Attorney of Riverside County (hereafter district attorney) from the trial court’s order under Penal Code section 1385 dismissing the charges filed against Wilbert Terry Tyler, defendant and respondent (defendant). The trial court dismissed the charges in the furtherance of justice, after finding (1) defendant had been held in custody 991 days longer than the three-year maximum competency commitment authorized under Penal Code section 1370, subdivision (c)(1), and (2) that defendant had been in custody longer than the sentence the trial court would have imposed had defendant pled guilty to the court. In this appeal, the district attorney contends the trial court incorrectly included precommitment custody credit in its calculation under Penal Code section 1370, subdivision (c)(1) of the length of time defendant had actually been committed to Patton State Hospital. As a result, the district attorney contends the trial court incorrectly released defendant from custody and also abused its discretion in dismissing the charges.
We disagree for reasons we explain below and therefore will affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
In a felony complaint filed December 7, 2004, the district attorney charged defendant with one count of robbery (Pen. Code, § 211), committed on December 5, 2004, in the presence of Rebecca Elder. The complaint further alleged defendant had suffered two prior robbery convictions, one in 1985 and the other in 1987. On February 2, 2005, the trial court granted defense counsel’s oral motion to have defendant evaluated under Penal Code section 1017 to determine whether he should enter a plea of not guilty by reason of insanity. The trial court appointed Dr. Michael Kania to evaluate defendant and ordered him to provide his report to defense counsel by March 4, 2005, for a hearing set on March 8, 2005. The clerk’s minutes of the March 8 hearing do not include any reference to defense counsel’s motion or Dr. Kania’s report and instead indicate that defendant once again waived time for his preliminary hearing, which the trial court set for April 6, 2005.
After several more continuances and time waivers, defendant’s preliminary hearing took place on June 1, 2005. Rebecca Elder, the only witness, testified in pertinent part that on December 5, 2004, she worked as a clerk at a convenience store in Coachella. Around 3:00 a.m. that day, Ms. Elder called the police and reported that defendant had threatened her and had stolen a pack of cigarettes. Specifically, Ms. Elder testified that she was alone behind the counter working on some paperwork when defendant entered the store. She knew defendant because she had kicked him out of the store “[t]wo or three days in a row previous to that.” After Ms. Elder told defendant, “[Y]ou need to get out, ” he walked behind the counter toward where she was standing and said, “‘I’m going to fuck you up. I’m going to give you something to call the police about, and I’m going to come back later when nobody is here again and kill you.’” As he advanced toward her, defendant raised his fist, which caused Ms. Elder to believe he was about to hit her so she grabbed his clenched fist. Defendant then left but took a pack of cigarettes on his way out of the store. After commenting that the evidence was “close, ” the trial court held defendant to answer at the conclusion of the hearing.
In the information filed on June 14, 2005, the district attorney charged defendant in count 1 with robbery in violation of Penal Code section 211, and in count 2 with making a criminal threat in violation of Penal Code section 422. The district attorney also alleged defendant’s 1985 and 1987 robbery convictions as strike priors under the three strikes law (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)) and as serious felonies within the meaning of Penal Code section 667, subdivision (a)(1). In addition, the district attorney alleged in the information that defendant had served four prior terms in prison within the meaning of Penal Code section 667.5, subdivision (a).
Defendant entered a plea of not guilty and denied the special allegations at his arraignment on June 15, 2005. The trial court set defendant’s trial for July 25, 2005. That trial date was continued after defense counsel filed a written motion to continue the hearing in order to have defendant evaluated by a psychiatrist or psychologist. The trial court granted that motion and after defense counsel made an oral motion to have defendant evaluated for a plea of not guilty by reason of insanity, the trial court again appointed Dr. Michael Kania to conduct the evaluation. At the next hearing on September 16, 2005, the trial court declared a doubt as to defendant’s mental competence to stand trial, and suspended criminal proceedings in order to have defendant examined by Dr. Michael Leitman, whom the court directed to submit a report by October 14, 2005. The clerk’s minutes do not disclose what if anything occurred as a result of the trial court’s earlier appointment of Dr. Kania.
The trial court twice extended the date for return of Dr. Leitman’s report ultimately setting the return date for November 4, 2005. At a hearing on that date, the trial court set December 19, 2005, for defendant’s jury trial on the issue of his competency. If Dr. Leitman submitted a report, that fact is not reflected in the clerk’s minutes nor is the report included in the record on appeal. After numerous continuances, on May 17, 2006, the trial court again declared a doubt as to defendant’s competence to stand trial and appointed Dr. Morton Kurland to examine defendant. The record on appeal does not indicate what if anything occurred as a result of the hearing on September 16, 2005, at which the trial court declared a doubt as to defendant’s competence and appointed Dr. Leitman. The clerk’s minutes do not indicate that the competency issue was resolved and the record on appeal does not include reporter’s transcripts of any hearings other than two in January 2010.
The district attorney’s opening brief incorrectly states that Dr. Nitin Kulkarni submitted a report on December 15, 2005, finding defendant was not competent to stand trial. Dr. Kulkarni’s report was submitted in December 2006, not 2005, and concerns whether defendant’s competence had been restored.
On June 14, 2006, the date the trial court set for return of Dr. Kurland’s report, defendant submitted on that report, but the district attorney moved to appoint a new doctor to examine defendant. The trial court granted that motion and appointed Dr. David Christensen. At a hearing on July 12, 2006, at which Dr. Christensen’s report was due, the trial court vacated that appointment and appointed Dr. William Jones to examine defendant. At a hearing on August 9, 2006, the date on which the trial court directed Dr. Jones to return his report, the trial court found defendant mentally incompetent to stand trial and referred the matter to county mental health for a placement recommendation. At a hearing on August 23, 2006, the trial court “read and considered the reports of the duly appointed doctors” and found defendant mentally incompetent to stand trial under Penal Code section 1368. The trial court committed defendant to Patton State Hospital under the custody of the State Department of Mental Health, the commitment not to exceed three years. The trial court also awarded defendant “[c]redit for time served of 568 days actual served plus 284 days pursuant to 4019 PC for a total of 852 days. (Mental Health)” The county probation department recalculated defendant’s custody credit as 629 days of actual custody and 110 days of work time credit under Penal Code section 2933.1, which limits work time credit to 15 percent when a person is charged with a violent felony specified in Penal Code section 667.5, subdivision (c), for a total of 739 days.
The record on appeal does not reflect what evidence the trial court considered to determine defendant was not competent to stand trial. If Dr. Jones prepared a report, it is not included in the record on appeal.
In accordance with Penal Code section 1370, subdivision (b)(1), which requires the medical director of the facility at which the defendant is committed to provide a progress report to the court within 90 days of the commitment, Dr. Nitin Kulkarni submitted a report to the court in December 2006 that recommended defendant continue treatment at Patton State Hospital with the “substantial likelihood that [defendant] will regain mental competence in the foreseeable future.” Dr. Kulkarni submitted a second report dated June 6, 2007, which said defendant had been restored to competence. Based on that report the trial court found at a hearing on July 13, 2007, that defendant was competent to stand trial. Accordingly, the trial court reinstated criminal proceedings and set defendant’s trial for July 30, 2007.
After two continuances, the trial court held a trial readiness hearing on September 21, 2007. At that hearing defense counsel once again made an oral motion asking the court to declare a doubt about defendant’s competence. The trial court granted the motion and appointed Dr. Christensen to examine defendant. At a hearing on October 26, 2007, the date for return of Dr. Christensen’s report, the trial court reinstated criminal proceedings after having “read and considered doctor’s report.” The trial court set a trial date of December 10, 2007.
The record on appeal does not include a doctor’s report dated around the time of the October 2007 hearing. Although the record includes a report prepared by David Christensen, Ph.D., that report is dated May 11, 2009.
After numerous continuances of defendant’s trial date, on July 21, 2008, the trial court again declared a doubt as to defendant’s competence to stand trial, after defense counsel made another oral motion on that issue. The trial court appointed Dr. Kurland to examine defendant and set a hearing on Dr. Kurland’s report for August 20, 2008. Dr. Kurland filed his report on September 22, 2008. In the interim on September 10, 2008, the trial court appointed Dr. Robin Campbell to examine defendant and submit a report by October 20, 1998 (sic).
On October 31, 2008, the trial court conducted a hearing at which it considered Dr. Campbell’s report and found that defendant was competent to stand trial. The trial court ordered criminal proceedings “resumed” and set trial for December 30, 2008. On February 27, 2009, after several continuances of the trial date, the trial court again granted a motion by defense counsel and declared a doubt as to defendant’s competence. The trial court appointed both Dr. Kurland and Dr. Campbell to examine defendant and return reports to the court before April 10, 2009. On March 16, 2009, the trial court relieved Dr. Campbell and appointed Dr. Jones to evaluate defendant’s mental competency.
After the trial court received Dr. Kurland’s report into evidence at a hearing on April 13, 2009, the trial court granted defense counsel’s oral motion to appoint a second doctor to evaluate defendant, and appointed Dr. Christensen. On May 13, 2009, the trial court read and considered Dr. Christensen’s report, and found defendant was mentally incompetent to stand trial. The trial court referred defendant to the county department of mental health for placement.
If Dr. Jones submitted a report, it is not included in the record on appeal.
On June 2, 2009, the trial court again ordered defendant committed to the custody of the State Department of Mental Health at Patton State Hospital, based on the county’s recommendation. The trial court ordered the commitment not to exceed three years, and calculated defendant’s total credit for time served as 1695 days, with 1641 actual days of custody.
In a letter dated July 2, 2009, Christina Garcia, a correctional case records supervisor employed by the Department of Mental Health, informed the trial court that “[a]fter the application of the Courts [sic] actual custody credit of 1641 days in custody [defendant’s] 3-year term limit pursuant to PC 1307(c)(1) has expired. [¶] Therefore based on the Court’s discretion and interpretation of the PC 1370(c)(1) statue [sic], we respectfully request that the Court consider the following options: [¶] 1) The Court may issue a commitment order to STAY [defendant’s] actual pre-commitment custody credits until sentencing, and award actual custody credit for time served in Patton State Hospital, only, of 275 days (admit on 10-04-06 to discharge 07-13-07). Please reference Appellate decision (In re Polk, CA 1st No., A084596, May 4, 1999). [¶] 2) If appropriate, the Court also has the option to seek a conservatorship pursuant to Welfare and Institutions Code [section] 5358 or 5008(h)(1)(B).”
At a hearing on July 8, 2009, the trial court read and considered the above quoted letter. Based on counsels’ stipulation, the trial court referred defendant for evaluation for a conservatorship. The trial court also vacated “the previously ordered credits” of June 2, 2009, and awarded “only actual time that defendant has served at Patton State Hospital of 275 days.”
Between July 8, 2009, and January 4, 2010, the county mental health department investigated the possibility of conservatorships for defendant under the Lanterman-Petris-Short Act (LPS). (Welf & Inst. Code, § 5000 et seq.) In a report dated December 20, 2009, and filed with the court on January 5, 2010, Dr. Robert K. Sawicky, a clinical and forensic psychologist, explained why defendant did not qualify for either a “straight” mental health conservatorship under LPS or for a so-called Murphy conservatorship under Welfare and Institutions Code section 5008.
On January 4, 2010, the trial court granted defense counsel’s oral motion to shorten the time within which to file a motion to dismiss under Penal Code section 1385. Defendant apparently filed a combined motion to be released from custody under Penal Code section 1370, subdivision (c)(1) and to dismiss the charges under Penal Code section 1385, which the trial court considered at a hearing on January 5, 2010. With respect to defendant’s motion to be released from custody, the trial court found defendant had been in custody 991 days longer than the three-year maximum specified in Penal Code section 1370, subdivision (c)(1). The trial court rejected the prosecutor’s argument that defendant’s maximum period of confinement was 25 years to life under the three strikes law. Instead, the trial court found the circumstances of the crime and defendant’s history of organic brain injury would support dismissing one of defendant’s prior strike convictions. Defendant’s maximum sentence then would be imposed under the second strike provisions, so “even if he was max’d out at six years [the upper term of three years for robbery, doubled] at 85 percent, 1, 800 days is five years of imprisonment. This gentleman has 2000 and some plus days.”
The prosecutor initially agreed to shorten time for filing the motion to dismiss but later changed his mind after conferring with “management” in the district attorney’s office. The trial court recalled the matter, allowed the prosecutor to put his objection on the record, and then overruled the objection.
In the trial court’s view, “99.9 percent of all judges in this county” would strike one of defendant’s prior serious felony convictions and sentence defendant as a second striker.
The trial court also rejected the prosecutor’s argument that calculation of the length of time defendant had been confined at Patton should not include custody credit. The prosecutor argued that only the time defendant was actually confined at Patton should be considered. In this case, defendant had only been confined at Patton for a total of 274 days. In the trial court’s view custody credit is mandated under In re Banks (1979) 88 Cal.App.3d 864 (Fourth Dist., Div. Two).
In addition to granting defendant’s motion to be released from custody, the trial court also granted his motion to dismiss the charges in the furtherance of justice. The trial court noted that defendant’s crime involved the theft of a $3 pack of cigarettes and defendant did not injure anyone. The trial court reiterated the view expressed at the outset of the hearing that if defendant’s competence were restored and defendant were to plead guilty to the court, the trial court would impose a maximum sentence of six years, and defendant “has already done that time.” “What more can I do to this defendant” the trial court asked, “than what’s already been done to him?” The trial court concluded that under the totality of the circumstances, there are “no societal interests in maintaining criminal charges against this defendant.”
The district attorney appeals from the order of dismissal.
DISCUSSION
A defendant who, as a result of a mental disorder, is adjudged not competent to stand trial on a felony charge may be committed to a state hospital for three years or the maximum term of imprisonment provided by law for the most serious offense charged in the information, whichever is shorter. (Pen. Code, §§ 1367, subd. (b), 1370, subds. (a), (c); People v. Karriker (2007) 149 Cal.App.4th 763, 780.) If, at the end of the maximum period of commitment, the medical staff determines there is no substantial likelihood the defendant will regain mental competence in the foreseeable future, the defendant must be returned to the court for further proceedings. (Pen. Code, § 1370, subds. (b), (c); People v. Karriker, supra, at p. 781.) If it then appears to the court that the defendant is “gravely disabled, ” the court shall order the conservatorship investigator to initiate a “Murphy conservatorship.” (People v. Karriker, supra, at pp. 775-777, 781; see Pen. Code, § 1370, subd. (c)(2); Welf. & Inst. Code, § 5008, subd. (h)(1)(B).) The court may impose a Murphy conservatorship if it finds the defendant, as a result of a mental disorder, “‘represents a substantial danger of physical harm to others.’” (People v. Karriker, supra, at pp. 775-776; see Conservatorship of Hofferber (1980) 28 Cal.3d 161, 176-177.) Alternatively, the court can dismiss the charges and order the defendant released, without prejudice to the initiation of alternative commitment proceedings under LPS. (Pen. Code, § 1370, subd. (e); In re Davis (1973) 8 Cal.3d 798, 806.)
The trial court in this case followed the alternate course and dismissed the charges against defendant because the conservatorship investigator found defendant was not “gravely disabled” and therefore did not qualify for a Murphy conservatorship or for a “straight conservatorship” under LPS. The district attorney contends the trial court incorrectly included precommitment custody credit and therefore incorrectly concluded defendant had been in custody longer than the three-year maximum commitment set out in Penal Code section 1370, subdivision (c)(1). As set out above, in dismissing the case, the trial court relied in part on the belief that defendant’s commitment at Patton State Hospital exceeded the statutorily authorized maximum commitment. In addition, and apart from the issue of whether defendant was competent to stand trial, the trial court found defendant had been in custody for a period of time equivalent to the sentence the trial court would have imposed if defendant had pleaded guilty to the charges and the trial court had sentenced him as a second strike offender.
We cannot say under the circumstances of this case that the trial court would not have dismissed the charges but for the purportedly mistaken view regarding defendant’s maximum commitment under Penal Code section 1370, subdivision (c)(1). It appears to us from our review of the record that the trial court would have dismissed the charges even if defendant’s three-year maximum commitment had not expired. Nor can we say the trial court abused its discretion in dismissing the charges.
Under Penal Code section 1385, a trial court has broad discretion to dismiss criminal charges “in furtherance of justice.” (People v. Orin (1975) 13 Cal.3d 937, 945.) The quoted phrase “‘requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal.’” (Id. at p. 945, emphasis omitted.) In challenging the trial court’s exercise of discretion in this case, the district attorney first contends the evidence shows defendant had been restored to competence at the time the trial court dismissed the case. To support this assertion, the district attorney cites the report of Dr. Robert Sawicky, the psychologist who evaluated defendant for possible conservatorship, which notes with respect to a so-called Murphy conservatorship that it “seems true” defendant “is believed by both the Patton Hospital treatment team and this evaluator to be competent to stand trial.” At the hearing in the trial court the prosecutor acknowledged that Dr. Sawicky’s opinion was solicited only on the conservatorship issue and could not be used to evaluate defendant’s competence to stand trial. Because the district attorney did not argue defendant’s competence in the trial court he may not raise that issue on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18 [It is well settled that “points not urged in the trial court may not be urged for the first time on appeal.”].)
As the prosecutor acknowledged in the trial court, Dr. Sawicky reported that “defendant has a history of head trauma (pedestrian/automobile accident at age 11). Like most every ‘younger’ male head trauma case ever evaluated by this clinician, [defendant] has a history of substance abuse.” According to Dr. Sawicky, “when under the influence, this defendant’s behavior can become very problematic. At those times he may not have the capability to monitor his own behavior-to know right from wrong and/or to be capable of bringing his behavior back into conformity with the law.” Dr. Sawicky also reported that defendant does not exhibit signs or symptoms of psychopathology when he is on medication. Dr. Sawicky acknowledged the trial court’s effort to find a placement/treatment alternative to criminal prosecution. In Dr. Sawicky’s view, “This seems a more humane intervention given the nature of the pending charges, the defendant’s long-standing organic deficits (head trauma), his legitimate long-standing mental health issues and his history of attempting to self-medicate through the use of alcohol and street drugs.” Dr. Sawicky stated that he “is very much supportive of” the trial court’s effort.
The district attorney next contends the trial court abused its discretion in dismissing the case because the trial court did not consider defendant’s two prior robbery convictions as well as two other convictions, one in 1999 for possession of forged items, and another in 2002 for possession of narcotics. The two convictions are alleged in the felony information and therefore we must assume the trial court considered those prior convictions, even though the trial court did not expressly mention them. More importantly, the prosecutor did not raise the two convictions in question in his opposition in the trial court to defendant’s motion to dismiss. Therefore, the district attorney may not raise the issue for the first time on appeal. (Damiani v. Albert, supra, 48 Cal.2d at p. 18.)
In deciding whether to dismiss the case, the trial court acknowledged that “nothing compels” dismissal and the trial court could “leave this case open for periodic review every year.” However, the trial court found, as previously noted, that even if defendant eventually were restored to competence and pleaded guilty, the trial court would not sentence defendant to serve any more time in prison than he had already served in jail. The trial court also stated that there were “no societal interests in maintaining the criminal charges against this defendant.” Finally, the trial court noted that defendant knows he has mental health issues and that he “will be in line” if he takes his medications. According to the trial court, there are “already mechanisms in place to make sure [defendant] gets some medication.”
The record demonstrates that the trial court correctly exercised its discretion under Penal Code section 1385 to dismiss the charges against defendant. Therefore, we need not address the issue of whether the trial court also correctly included custody credit in its calculation of the length of time defendant had been committed at Patton State Hospital. However, we are persuaded from our review of the record on appeal, which discloses the trial court’s desire to obtain treatment, or at the very least assistance, for defendant, that even though the trial court dismissed the charges against defendant on grounds other than the length of defendant’s commitment at Patton State Hospital, that issue nevertheless was a significant consideration in the trial court’s reasoning. Consequently, we will address the issue of whether the trial court correctly included custody credit in calculating defendant’s mental health commitment, even though our discussion arguably is obiter dictum.
This court held in In re Banks, supra, 88 Cal.App.3d 864, that “basic notions of fairness and due process” require credit be given for precommitment confinement under Penal Code section 1370, which then stated that the maximum period of confinement is equal to the maximum term of imprisonment for the most serious offense charged. (Id. at p. 869.) “The underlying theory behind credit in criminal proceedings is that persons who are poor cannot make bail and would serve more total time in custody than wealthier defendants if they are not given credit for pretrial or presentence custody time.” (Cramer v. Gillermina R. (1981) 125 Cal.App.3d 380, 394 [Fourth Dist., Div. Two], citing among other cases, In re Banks, supra.)
The district attorney argues that precommitment custody credits should only be granted when the length of the Penal Code section 1368 commitment is based on the maximum prison term option set out in Penal Code section 1370, subdivision (c)(1). In other words, the district attorney is of the view that precommitment custody credit should not be granted when, as in this case, the length of commitment is based on the three-year maximum, because “such a reduction bears no relation to the period reasonably necessary to permit actual treatment.”
The district attorney does not cite any authority to support the argument that custody credit should apply only when the defendant’s commitment is based on the maximum prison term. Instead, the district attorney first suggests that custody credit is optional, as evidenced by Penal Code section 1370, subdivision (a)(3)(C), which states in pertinent part that when the court orders the defendant confined in a state hospital, the court shall provide the facility with certain specified documents, one of which is “[a] computation or statement setting forth the amount of credit for time served, if any, to be deducted from the maximum term of confinement.” (Pen. Code, § 1370, subd. (a)(3)(C).) The district attorney is of the view that the phrase “if any” refers to whether credit should be granted and therefore means precommitment custody credit need not be awarded. We are of the view that the phrase “if any” refers to whether the defendant has earned and therefore is entitled to precommitment credit.
Moreover, even if we were to agree with the district attorney’s interpretation of the phrase “if any, ” we nevertheless would reject the district attorney’s ultimate argument because that argument depends on an interpretation of Penal Code section 1370 subdivision (c)(1) that is contrary to the plain language of that statute. In particular, the district attorney argues that precommitment custody credit should be awarded only to commitments based on the maximum prison sentence in order to afford a reasonable period of time within which to provide treatment to the defendant. That argument ignores the statutory language which says, in pertinent part, that a defendant who has not recovered mental competence shall be returned to the committing court “[a]t the end of three years from the date of the commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information... whichever is shorter.” (Pen. Code, § 1370, subd. (c)(1).) Under the express language of the statute, a commitment will be based on the maximum prison term for the most serious offense charged only if that term is shorter than three years. If a reasonable period for treatment is the basis for the district attorney’s argument, then applying precommitment custody credit only to the shorter term of commitment based on the maximum term of imprisonment results in even less treatment. If the concern is treatment, precommitment credit should only apply to the three-year commitment because that is the maximum commitment statutorily authorized and thus affords more treatment time.
The district attorney apparently recognizes the inconsistency in his argument as evidenced by his assertion that we should interpret Penal Code section 1370, subdivision (c)(1) to provide “for a commitment of up to three years, but in no event for any period longer than would have been served had the defendant been convicted.” Statutory interpretation is required only when the language of a statute is ambiguous and therefore subject to more than one interpretation. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388 [“‘The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.’ [Citations.] ‘If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.’”].) Penal Code section 1370, subdivision (c)(1), although previously quoted, bears repeating here: “At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court.” (Emphasis added.) The emphasized language is clear and refers to the shorter of the two periods of commitment. Therefore we cannot interpret the statute in the manner urged by the district attorney.
Although we reject the interpretation, we nevertheless briefly address the district attorney’s assertion that his interpretation of Penal Code section 1370, subdivision (c)(1) is consistent with that set out in the July 2, 2009, letter from Christina Garcia, quoted above. That letter states, in pertinent part, that the trial court in this case “may issue a commitment order to STAY [defendant’s] actual precommitment custody credits until sentencing, and award actual custody credit for time served in Patton State Hospital, only, of 275 days (admit on 10-04-06 to discharge 07-13-07). Please reference Appellate decision (In re Polk, CA 1st No., A084596, May 4, 1999).”
In re Polk (1999) 71 Cal.App.4th 1230, does not address precommitment custody credit; it addresses the issue of “how to interpret the three-year limit set forth in [Penal Code] section 1370, subdivision (c)(1). Does the three-year limit refer to each commitment after a finding of incompetence, or to the aggregate of all commitments for incompetency regarding the same criminal charges?” (Id. at p. 1238.) The court held that “the three-year limit... refers to the aggregate of all commitments on the same charges.” (Ibid., fn. omitted.) Because Ms. Garcia’s understanding of the pertinent case is incorrect, we give no weight to her understanding of the appropriate procedure. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309 [“‘Although not necessarily controlling, as where made without the authority of or repugnant to the provisions of a statute, the contemporaneous administrative construction of [an] enactment by those charged with its enforcement... is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.’”].)
In summary, we close with the court’s observation in People v. Karriker that “Penal Code section 1370 explicitly contemplates that some defendants charged with felonies will be released if they are not restored to competency within the allowable time period.” (People v. Karriker, supra, 149 Cal.App.4th at p. 788; see Pen. Code, § 1370, subd. (e).) We add that the statute also clearly contemplates that criminal charges against a defendant not restored to competence will be dismissed in the furtherance of justice under Penal Code section 1385. (See Pen. Code, § 1370, subd. (d).) That is what occurred in this case and the record supports the trial court’s exercise of that discretion.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.