Opinion
F084105
12-13-2023
THE PEOPLE, Plaintiff and Respondent, v. D.T., Defendant and Appellant.
Arthur L. Bowie, 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, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. MI007031-00 Therese M. Foley, Judge.
Arthur L. Bowie, 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, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellant D.T., while not challenging his last placement under Welfare and Institutions Code section 6500, believes he was denied due process when a probation report was not part of the annual review of his placement, arguing this violated the plea agreement he entered into in 1999. Following our review, we do not reverse any orders entered by the trial court, but remand this matter for further proceedings.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
SUMMARY
On June 17, 1997, D.T. was charged in San Diego County with one count of first degree murder (Pen. Code, § 187, subd. (a), a felony), and further, that he personally used a dangerous weapon, a knife, in the commission of this murder (Pen. Code, § 12022, subd. (b)). On September 17, 1997, D.T.'s competency to stand trial pursuant to Penal Code section 1368 was questioned. An expert was then appointed to evaluate D.T. and a competency trial was set for November 19, 1997. After a court trial held on November 24 and 25, 1997, the court found D.T. not competent to stand trial. D.T. was then committed to the State Department of State Hospitals on December 1, 1997, to receive competency restoration services.
In March 1999, criminal proceedings were reinstated against D.T. when he was remanded to the custody of the San Diego County Sheriff. However, after concerns were raised about D.T.'s ability to cooperate appropriately in his trial, a plea agreement was pursued.
On August 5, 1999, D.T. pled guilty to the one count of murder alleged in the complaint, and on October 21, 1999, the trial court imposed a sentence of 15 years to life, but then suspended the sentence and granted D.T. "probation for life." This sentence was the result of a unique plea agreement in which D.T. agreed to be sentenced to "probation for life," and further, to be committed under section 6500, subdivision (a) to the Porterville Developmental Center in Tulare County. D.T. also specifically agreed not to object to his annual section 6500 commitment reviews, and further agreed to waive his presence at all future annual ex parte review hearings.
Thereafter, in October 1999, the trial court ordered an ex parte review hearing to be set in six months, then annually. The first review hearing was scheduled for April 20, 2000. Between April 2000 and June 2005, several probation review hearings were held in San Diego County. In a minute order filed on June 13, 2005, the court stated:
"A future review hearing is not set. Probation is to prepare and submit a report every six months. The Court is to receive a copy of any further reports filed by Officer Rodriguez. The Court will set future hearings at Court's discretion or upon request of counsel."
On August 4, 2011, the San Diego County Superior Court granted D.T.'s request for a jurisdictional transfer to Tulare County under Penal Code section 1203.9.
This provision concerns the transfer of jurisdiction from one county to the next for purposes of probation.
The record reveals D.T.'s commitment orders under section 6500 were then reviewed and reissued in the Tulare County Superior Court in 2015, 2017, and 2020.The order issued in 2020 changed D.T.'s placement to a facility located in Kern County. There is no evidence in the record that the Tulare County Probation Department participated in these hearings or submitted any reports for the court to consider.
While the record does not contain actual commitment orders for the years 2016, 2018, and 2019, there is documentation in the record which would have accompanied petitions to renew commitments in those years.
On August 4, 2021, the Kern County Superior Court ordered an examination of D.T. An evaluation dated August 20, 2021, stated D.T. had a developmental disability, which caused him to pose a risk of harm to himself and/or others necessitating a placement in a well-supervised group home such as the facility where he was now residing in Kern County. On March 22, 2022, the Kern County Superior Court found D.T. met the criteria listed in sections 6500 through 6512, and that the least restrictive and most appropriate placement was at the same Kern County facility. The order for commitment was set to expire on March 22, 2023. D.T. appealed this order on March 23, 2022.
There are no probation reports in the record for the review hearings held in Kern County.
While D.T.'s appeal was pending, the People filed a motion to dismiss the appeal arguing it was moot. The People contend the basis upon which the appeal was taken differed from the issue now being raised on appeal. This court denied the motion to dismiss on May 25, 2023, stating:
"An appeal may be considered, in the court's discretion, where the question to be decided is of continuing public importance and is capable of repetition, yet evading review. (Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 199; In re Raymond G. (1991) 230 Cal.App.3d 964, 967.) Courts have found that appeals challenging section 6500 commitment orders and other similar commitment orders fall under this exception, considering such commitment orders typically expire before an appeal of that order has concluded. (People v. Sweeney (2009) 175 Cal.App.4th 210, 214; Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.) Here, the section 6500 commitment order under which appellant appeals expired after one year. The instant appeal has been pending for longer than a year and it is possible that any future appeals from new commitment orders will also pend for longer than a year. Accordingly, this appeal presents a question that is capable of repetition, yet evading review.
"Moreover, the issue presented is one of public importance. Appellant has not had probation review hearings for nearly 20 years, despite the trial court's order that these hearings be conducted annually. It is in the public interest to ensure trial courts follow their own orders."
DISCUSSION
Again, the focus of this appeal is not on the sufficiency of the order committing D.T. under section 6500. Instead, our review focuses on an issue D.T. believes resulted in a violation of his right to due process. Specifically, D.T. contends that pursuant to the plea agreement he accepted in 1999, and because he was on "probation for life," any recommitment under section 6500 required the annual preparation and consideration of a probation report. The People believe this specific provision was essentially deemed waived when a change made by the San Diego Superior Court in 2005 resulted in probation hearings only being necessary upon the request of either party. D.T. never appealed the change made by the San Diego Superior Court.
I. The Necessity of Involving a Probation Department in the Annual Review Under the Plea Agreement
Again, when D.T. pled guilty in 1999 to committing murder, the terms of his plea agreement stated that, as a condition of probation, he could not contest the annual section 6500 petitions for "placement at the Porterville Developmental Center." D.T. also agreed that "any substantial violation" of the rules and regulations of the facility where he was placed, could result in "probation violation proceedings."
D.T. now contends the failure to hold annual probation review hearings as was initially ordered by the original sentencing judge in this case violates his plea agreement. We note that while D.T. is on "probation for life," the plea agreement in the record before this court contains no language requiring an annual probation review hearing. That requirement was put into place by the original sentencing judge in 1999, by way of a stipulation, then modified in 2005 to require such hearings "at [the] Court's discretion or upon request of counsel."
This appeal poses the unique question of what is now required to honor the terms of the plea D.T. agreed to in 1999. "Because a 'negotiated plea agreement is a form of contract,' it is interpreted according to general contract principles. [Citations] Acceptance of the agreement binds the court and the parties to the agreement." (People v. Segura (2008) 44 Cal.4th 921, 930.)"' "When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." '" (Id. at pp. 930-931.)
D.T.'s placement in a facility under the authority of section 6500 is unique in that it is a condition of probation. The mechanism of section 6500 placement is being used to place D.T. in a facility where he will serve his term of probation. Yet, since at least 2011 when jurisdiction over D.T.'s probation was transferred from San Diego County to Tulare County, the record does not show a probation department has been involved in his case. Now D.T. is in a section 6500 placement in Kern County, but jurisdiction for his probation remains in Tulare County.
The record does not contain a motion to transfer the jurisdiction of probation from Tulare County to Kern County in this matter.
We cannot simply conclude, as the People do, that D.T. waived or lost the ability to require the participation of a probation department in his case. In fact, the court in San Diego contemplated the possibility there might be a need for probation hearings in the future, either at the court's discretion or upon a request from one of the parties. However, we do not believe Tulare County is the appropriate county for continued jurisdiction in this matter. The crime occurred in San Diego County, and the plea agreement was entered into there. Kern County is the current county of residence for D.T. and may be the more logical county for jurisdiction because the original plea agreement stated he must conform with the rules and regulations of his placement or risk a violation of his probation. The parties must, therefore, follow the procedures outlined in Penal Code section 1203.9 to determine which county will be responsible for D.T.'s probation in this matter:
"[W]henever a person is released on probation or mandatory supervision, the court, upon noticed motion, shall transfer the case to the superior court in any other county in which the person resides permanently with the stated intention to remain for the duration of probation or mandatory supervision, unless the transferring court determines that the transfer would be inappropriate and states its reasons on the record." (Pen. Code, § 1203.9, subd. (a)(1).)
Penal Code, "[s]ection 1203.9 provides the mechanism for transfer[s] of jurisdiction because jurisdiction rests exclusively in the county in which probation is granted until it is transferred." (People v. Klockman (1997) 59 Cal.App.4th 621, 627.) Because D.T. now "resides" in Kern County, and is no longer in a placement in Tulare County, jurisdiction over his probation must be transferred. The question of where is more complicated. Again, Penal Code section 1203.9 provides guidance:
"[T]he court of the proposed receiving county may provide comments for the record regarding the proposed transfer, following procedures set forth in rules of court developed by the Judicial Council for this purpose, pursuant to subdivision (f). The court and the probation department shall give the matter of investigating those transfers precedence over all actions or proceedings therein, except actions or proceedings to which special precedence is given by law, to the end that all those transfers shall be completed expeditiously." (Pen. Code, § 1203.9, subd. (a)(2).)
We believe a resolution of this question is necessary because of the unique nature of the plea agreement making D.T.'s placement a condition of probation but subject to the procedures of section 6500. While he might have lost the ability to challenge decisions on commitments, he continues on probation. The terms of his plea agreement placed D.T. on "probation for life," but required him not to challenge petitions for his annual section 6500 placements. Yet, if D.T. was "found to be in violation of his probation . . ., he could be sentenced to fifteen years to life in state prison." Who is making decisions about potential probation violations at the present time, or the need to alter the probation condition? We believe these decisions belong to the appropriate probation department under the terms of the plea agreement, not with the current section 6500 facility where he is residing, which involves a civil commitment.
A review of the hearings held in March 2022 reveals confusion about D.T.'s status as being on probation and how future section 6500 hearings should be handled. We believe the involvement of a probation department could alleviate such confusion in the future.
As an appellate court, we are allowed to review procedural due process claims de novo, as" 'the ultimate determination of procedural fairness amounts to a question of law.'" (People v. Marrero (2021) 60 Cal.App.5th 896, 911.) We do not see a credible violation of due process on the current record before us. However, if in the future an allegation is made D.T. violated a rule or regulation that could impact his continuation in a section 6500 facility, yet he either believes or is told he cannot challenge the allegation under the plea agreement, the lack of input from a probation department on the severity of the violation could result in a violation of D.T.'s right to due process.
DISPOSITION
Because the section 6500 placement order from which this appeal was taken is no longer in effect, this court renders no decision on the sufficiency of that order. However, this matter is remanded so that a transfer of probation jurisdiction can be pursued under Penal Code section 1203.9. This is necessary because D.T.'s plea agreement requires a section 6500 placement as a condition of probation. We render no opinion on the frequency of reports required by the appropriate probation department and suggest the parties reach an agreement addressing that issue.
[*] Before Hill, P. J., Levy, J. and Meehan, J.