Opinion
C042395.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. DANNY ATTERBURY, Defendant and Appellant.
In 1989, defendant Danny Atterbury was committed to a state hospital following a finding that he was insane at the time of his offenses. (Pen. Code, § 1026.) In April 2002, he requested a section 1026.2 hearing to determine whether his sanity had been restored. In preparation for the hearing, he was transferred to the El Dorado County jail. He withdrew his request for a hearing when he determined that conditions in the jail were unbearable.
In February 2003, defendant filed another request for a section 1026.2 hearing, which the trial court denied because "[r]epetitive applications on the same grounds will not be tolerated." The court ruled defendant "must wait a year from his last hearing date before renewing his request. (PC § 1026.2(e)) [sic ]."
On appeal, defendant contends a request is "repetitive," and the waiting period applies, only where the prior application was denied, not where, as here, it was withdrawn and the proceeding was vacated and terminated. We shall reverse the order.
FACTS AND PROCEDURAL HISTORY
In 1989, at a court trial based on the transcript of the preliminary hearing and previous reports from two psychiatrists, defendant was convicted of two counts of attempted murder in which he personally inflicted great bodily injury. (§§ 187, 664, 12022.7.) The court found that he was insane at the time of the offenses and committed him to a state hospital for a maximum of 15 years 4 months.
In April 2002, defendant filed a pro per "application for outpatient treatment status" and a pro per "request for sanity hearing." The trial court directed the state hospital medical director to prepare a report with recommendations on defendants requests. In May 2002, the medical director recommended that defendant be retained at the hospital for further treatment.
In September 2002, the trial court ordered that defendant be transported from the state hospital to the El Dorado County jail for a hearing on his requests. The court ordered a psychological evaluation of defendant and directed jail personnel to continue proper medical treatment.
On October 21 and 29, 2002, the trial court received defendants requests to "abandon" or "withdraw" his request for a sanity hearing. On November 1, 2002, the court held a hearing on the new requests. Defendant explained that he was kept in solitary confinement for a month with no television, no telephone, no one to talk to and, for the last week, only three cups of water per day. After the court satisfied itself that the new requests were knowing and voluntary, and after defense counsel joined in the requests, the court took defendants waiver of his right to a hearing under section 1026.2, ordered all proceedings pursuant to the prior request "vacated and terminated," and ordered defendant returned to the state hospital.
On February 13, 2003, the trial court received from defendant a pro per document titled "Information for the Court and Request for Relief," in which he alleged that he had been "FORCED to FOREGO" his sanity hearing because of adverse conditions at the jail. (Emphasis in original.) He again requested a sanity hearing.
On March 7, 2003, the trial court issued a minute order stating: "[Defendants] request for a Penal Code § 1026.2 hearing is denied. . . . Repetitive applications on the same grounds will not be tolerated. Also, he must wait a year from his last hearing date before renewing his request. (§ 1026.2 (e)) [sic ]."
On June 2, 2003, defendant filed a notice of motion and motion for a section 1026.2 hearing. The trial court granted defendant "the right to a hearing based only on the issue of whether the [d]efendant made a knowing and intelligent waiver of the hearing, based on health concerns/conditions at the time of the waiver. The Court is not conceding the current issue on appeal." The trial court ordered "a hearing on whether sanity has been restored and/or outpatient status should be granted." The hearing was set for July 24, 2003. This court has not been informed of the result of that hearing.
DISCUSSION
Defendant contends the trial court erred by denying his February 2003 application for outpatient status and/or a sanity hearing. For reasons that follow, we agree.
The issue is governed by section 1026.2, which provides in relevant part:
"(a) An application for the release of a person who has been committed to a state hospital . . . , as provided in Section 1026, upon the ground that sanity has been restored, may be made to the superior court of the county from which the commitment was made, either by the person, or by the medical director of the state hospital . . . . [¶] . . . [¶]
"(e) The court shall hold a hearing to determine whether the person applying for restoration of sanity would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community. If the court at the hearing determines the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community, the court shall order the applicant placed with an appropriate forensic conditional release program for one year. All or a substantial portion of the program shall include outpatient supervision and treatment. The court shall retain jurisdiction. The court at the end of the one year, shall have a trial to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder. The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate forensic conditional release program, unless the community program director sooner makes a recommendation for restoration of sanity and unconditional release as described in subdivision (h). The court shall notify the persons required to be notified in subdivision (a) of the hearing date. [¶] . . . [¶]
"(h) If the court determines that the person should be transferred to an appropriate forensic conditional release program, the community program director or a designee shall make the necessary placement arrangements, and, within 21 days after receiving notice of the court finding, the person shall be placed in the community in accordance with the treatment and supervision plan, unless good cause for not doing so is made known to the court. . . . [¶] . . . [¶]
"(j) If the court denies the application to place the person in an appropriate forensic conditional release program or if restoration of sanity is denied, no new application may be filed by the person until one year has elapsed from the date of the denial." (Italics added.)
The trial courts ruling appears to be based upon section 1026.2, subdivision (j), notwithstanding its reference to subdivision (e). By its terms, subdivision (j) applies when "the court denies" a conditional release or restoration of sanity application. The statute bars a new application "until one year has elapsed from the date of the denial." (Italics added.)
"`When construing a statute, we must "ascertain the intent of the Legislature so as to effectuate the purpose of the law." [Citations.]" "`[W]e begin with the words of a statute and give these words their ordinary meaning. [Citation.]" "`If the statutory language is clear and unambiguous, then we need go no further. [Citation.]" (People v. Sinohui (2002) 28 Cal.4th 205, 211.)
The words "court denies" and "date of the denial" are unambiguous and bar a new application until one year has elapsed following a judicial ruling denying a previous application. Where the court has not denied a previous application, section 1026.2, subdivision (j), has no effect.
An analogous situation arose in In re Jones (1968) 260 Cal.App.2d 906, which considered section 1026.2s predecessor, former section 1026a. "In September 1966 Jones voluntarily withdrew his application in Fresno and it was then `dismissed without prejudice. The only meaning of that order which makes any sense is that the dismissal was not to be considered an adverse finding on the issue of present sanity. Such a finding, of course, would have forced Jones to wait one year before making a further application. It is clear from section 1026a itself that findings adverse to the applicant result only in a very limited `prejudice, namely the one year waiting period. It would have been quite unnecessary for the court to make its order `without prejudice if all it intended to accomplish was to allow Jones to file another application a year hence. The statute does that." (Id. at p. 910.)
The trial court denied defendants request, not only because of section 1026.2, but also because "[r]epetitive applications on the same grounds will not be tolerated." Defendant contends his application was not repetitive because his previous application had been vacated without having been adjudicated; the present application now is his first.
The People have not countered defendants argument, which we find to be logically unassailable. Instead, the People claim defendant waived his right to bring a new petition within one year. We disagree.
At the outset of the November 1, 2002, hearing, the trial court announced that it had received communication from defendant indicating his willingness to give up his "right to a hearing on restoration of sanity and/or release on outpatient status." (Italics added.) The People claim that by these words, defendant "did not just withdraw his prior petition; he also expressly and knowingly waived his right to pursue it." In the Peoples view, defendants waiver "implicitly subjected him to" the one-year limitation in section 1026.2, subdivision (j).
However, in the course of the waiver colloquy, defendant clarified that he "willingly, voluntarily, and knowingly waive[d his] right to this Penal Code section 1026.2, restoration to sanity hearing." In response, the trial court ordered that all further proceedings "on this request" be vacated and terminated. (Italics added.) There was no discussion of any waiver of the right to bring a future petition. Because the point was never discussed, the record does not show that defendant entered a knowing and intelligent waiver of his right to bring a future petition. (People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055.)
DISPOSITION
The order denying the section 1026.2 hearing is reversed.
We concur: BLEASE, Acting P.J. HULL, J. --------------- Notes: Further undesignated section references are to the Penal Code.