In re DONALD SCHMIDT

Filed 9/28/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

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Schmidt disputes the People’s interpretation of section 1802, arguing that the trial court’s analysis was correct. The trial court determined that the Parole Board has the authority to grant parole because section 1802 expressly provides the CYA with control over all persons in the custody of the CYA under a section 1800 extended commitment, subject to the section 1766 provisions authorizing parole and discharge. Schmidt emphasizes the trial court’s construction of the phrase “subject to the provisions of this chapter“ in section 1802 as the key to a finding of parole authority, because “the provisions of this chapter” that apply to a person committed under section 1800 include the parole authority provided by section 1766.

Schmidt further contends that section 1802 cannot be logically construed to limit the CYA’s authority to either discharging the person or seeking recommitment and thus, as the People argue, to implicitly preclude parole of a person committed under section 1800. Schmidt asserts that the language in section 1802 limiting the CYA’s authority merely prohibits the CYA from seeking recommitment under section 1800 if the CYA has previously discharged the person.

Applying the rules of statutory interpretation, we conclude that the CYA does not have statutory authority to release on parole a person committed under section 1800. As we will further explain, it is apparent upon close examination of the provisions authorizing parole that the CYA does not have authority to parole a person after the date of mandatory discharge because the CYA’s parole authority is coextensive with the length of maximum CYA jurisdiction.

Section 1766, subdivision (a)(2), expressly provides that the Parole Board may “retain the minor or the young adult on parole status for the period permitted by Sections 1769, 1770, and 1771.” As we have discussed, sections 1769, 1770, and 1771 prescribe the length of maximum CYA jurisdiction and the corresponding date of mandatory discharge. Thus, the statutory scheme for parole of youthful offenders (§ 1766 et seq.) authorizes the Parole Board to retain a minor or young adult on parole during the period prior to the date of mandatory discharge prescribed by sections 1769, 1770, or 1771. For that reason, as our Supreme Court has stated, “a parolee must acknowledge that he [or she] is still under the control of the authority and that violations of parole conditions may result in . . . return to an authority institution for the remainder of the commitment period.” (People v. Olivas (1976) 17 Cal.3d 236, 245.)

Thus, since the purpose of a section 1800 commitment is to extend the detention of a dangerous person beyond the date discharge would otherwise be mandatory under the applicable statute (either §§ 1769, 1770, or 1771), a person committed under section 1800 may not be released on parole because the CYA no longer has parole authority pursuant to section 1766, subdivision (a)(2).

In the present case, the record reflects that Schmidt reached the age of 25 in March 1997, and his commitment was extended for two years pursuant to section 1800[1] by a February 1997 trial court order. The Parole Board’s authority to parole Schmidt therefore expired in March 1997 when he reached the age of mandatory discharge under sections 1769 through 1771. Accordingly, the trial court erred in ruling that the Parole Board had the authority to parole Schmidt pursuant to section 1802.

C. Conditional Release

Our determination that the CYA is not authorized to parole a person committed under section 1800 does not end our inquiry. We asked the parties to submit supplemental briefing on the following issue: whether any provisions of the Welfare and Institutions Code, including but not limited to section 1766, subdivision (a)(1), authorize the conditional release of a person committed under section 1800.

In their supplemental briefing, the parties apply their arguments regarding parole authority to the question of whether conditional release is authorized for a person committed under section 1800. The People contend that conditional release is not authorized because section 1802 limits CYA’s early release authority solely to discharge as provided in section 1766, subdivision (a)(6), which authorizes the CYA to discharge a person “from its control when it is satisfied that discharge is consistent with the protection of the public.” Schmidt again disagrees, arguing that statutory authorization for conditional release is provided by section 1766, subdivision (a)(1), which provides that the Parole Board may “permit the ward his or her liberty under supervision and upon conditions it believes are best designed for the protection of the public.” Schmidt also asserts that conditional release or outpatient treatment is “a hallmark [of] virtually every confinement and commitment scheme,” benefiting both the public and the individual by providing “a tool for successful reintegration into society.”

Having carefully reviewed the statutory scheme for extended CYA commitment (§ 1800 et seq.), we conclude that the CYA has the authority to conditionally release a person committed under section 1800. Our analysis is founded on the following language of section 1802: “When an order for continued detention is made as provided in Section 1801, the control of the authority over the person shall continue, subject to the provisions of this chapter, . . .” Giving these words their “usual and ordinary meaning,” as we are required to do (Estate of Griswold, supra, 25 Cal.4th at p. 911), we read section 1802 to provide that when a person’s CYA commitment is extended under section 1800, the CYA’s control over that person continues to the extent authorized by the other provisions of the chapter containing section 1802, which is chapter 1 of division 2.5 of the Welfare and Institutions Code.

The provisions of chapter 1 of division 2.5 of the Welfare and Institutions Code include section 1766, which, as Schmidt emphasizes, provides that the CYA has the authority to permit a person committed to the department “his or her liberty under supervision and upon conditions it believes are best designed for the protection of the public.” (§ 1766, subd. (a)(1).) This language implicitly authorizes conditional release because it allows the CYA to release a person from custody under supervision and with conditions. Moreover, section 1766 has been construed to vest the CYA with “wide discretionary power in the treatment of a person committed to it.” (In re Herrera (1943) 23 Cal.2d 206, 210, disapproved on other grounds in People v. Olivas (1976) 17 Cal.3d 236, 257.)

Accordingly, we find that section 1802 does provide that a person committed under section 1800, and who therefore is not eligible for parole, may be conditionally released under supervision as authorized by section 1766, subdivision (a)(1). We also find that that the period of conditional release may not extend beyond the expiration of the section 1800 commitment period, because, pursuant to section 1802, the CYA is required to discharge a person when the section 1800 commitment period expires absent the filing of a petition for continued detention.

Our determination is consistent with the requirement that we consider statutory language in the context of the entire statute and the statutory scheme of which the statute is a part. (Phelps v. Stostad, supra, 16 Cal.4th at p. 32.) Following this rule of statutory interpretation, we reject the People’s contention that section 1802 limits the CYA’s control over a person committed under section 1800 to either discharge or recommitment. The People’s argument depends upon a phrase from section 1802, “discharged as provided in Section 1766,”which is included in the first sentence of section 1802: “When an order for continued detention is made as provided in Section 1801, the control of the authority over the person shall continue, subject to the provisions of this chapter, but, unless the person is previously discharged as provided in Section 1766, the authority shall . . . file a new application for continued detention . . . .”

The People interpret the phrase “discharged as provided in Section 1766” to provide that discharge is the exclusive means by which a person committed under section 1800 may be released. To the contrary, as we have discussed, section 1802 incorporates the provisions of section 1766 implicitly authorizing conditional release (§ 1766, subdivision (a)(1)), since those provisions are included in chapter 1 of division 2.5 of the Welfare and Institutions Code. Section 1766 also authorizes the CYA to “discharge [a ward] from its control when it is satisfied that discharge is consistent with the protection of the public.” (§1766, subd. (a)(6).) The provisions of section 1766 authorizing discharge thus apply to a person committed under section 1800. However, there is no language in either section 1766 or section 1802 that expressly restricts the CYA’s options with respect to a person committed under section 1800 to either discharge or recommitment, or that precludes conditional release.

D. Other Statutory Schemes for Involuntary Commitment

Our determination that a person committed under section 1800 may be conditionally released is in accord with other statutory schemes for involuntary commitment that provide for conditional release or some form of supervised control other than confinement. One example is the Sexually Violent Predators Act, section 6600 et seq., which provides for conditional release. A person committed as a sexually violent predator may be placed in the community under supervision and treatment if it is unlikely that the person will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder, pursuant either to proceedings initiated by the Department of Mental Health (§ 6607)[2] or upon petition by the committed person (§ 6608).[3] (People v. Collins (2003) 110 Cal.App.4th 340, 346-347; People v. Cheek (2001) 25 Cal.4th 894, 898.)

Other involuntary commitment schemes provide for outpatient treatment. The Mentally Disordered Offender Law (Pen. Code, § 2960 et seq.[4]) provides that a defendant with a severe mental disorder, who meets certain other statutory criteria (including posing a serious threat of physical harm to other people), may be involuntarily committed as a mentally disordered offender as a condition of parole or upon termination of parole and be required to submit to mental health treatment. (Pen. Code, §§ 2960, 2962, subd. (a), 2970, 2972.) Where the committing court determines that there is reasonable cause to believe that the person can be safely and effectively treated on an outpatient basis, the committed person may be released for outpatient treatment. (Pen. Code, §§ 2964, subd. (a), 2972, subd. (d).) [5]

Similarly, a defendant involuntarily committed as a narcotics addict pursuant to section 3050[6] may be released on outpatient status where the Parole Board determines that the defendant has recovered from narcotics addiction or imminent danger of addiction. (§ 3151.)[7] Pursuant to Penal Code section 1600, placement on outpatient status is also possible for a person committed to a state hospital or other treatment facility pursuant to Penal Code section 1026 (not guilty by reason of insanity), or Penal Code section 1367 (mentally incompetent to stand trial). Thus, in several other involuntary commitment schemes, the Legislature has expressly provided for a form of supervised release during the commitment period and the procedure by which the committed person may be released.

E. Conclusion

We recognize that the statutory scheme for extended commitment, section 1800 et seq., does not include detailed procedures for conditional release. For example, there are no provisions for initiation of conditional release proceedings, notice, a hearing, appointment of counsel, or supervision of a person conditionally released into the community. We respectfully invite the Legislature to review the statutory scheme for extended commitment, to provide statutory direction regarding the appropriate procedures for conditional release of persons committed under section 1800 in accordance with the requirements of due process, and to specify that the period of conditional release may not extend beyond the expiration of the section 1800 commitment period.

We emphasize that our determination that the CYA has authority to conditionally release a person committed under section 1800 is consistent with the legislative purpose of the juvenile law, as expressed in section 202: “The purpose of the juvenile delinquency laws is twofold: (1) to serve the ‘best interests’ of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and ‘enable him or her to be a law-abiding and productive member of his or her family and the community,’ and (2) to ‘provide for the protection and safety of the public . . . .’ “ (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615 [noting also that § 202, subd. (b), authorizes punishment consistent with rehabilitative objectives]; § 202, subds. (a), (b), (d).)[8]

We believe that conditional release serves the purpose of rehabilitation by facilitating the transition of a committed person from confinement in a CYA facility to life as a productive member of the community. At the same time, conditional release serves the purpose of public safety, because conditional release requires supervision and compliance with certain conditions, and the CYA retains the authority to return a person to confinement where conditional release is unsuccessful. Additionally, information regarding the committed person’s performance on conditional release is relevant to the determination of whether confinement is no longer necessary because the committed person does not continue to be a danger to the public.

In the present case, we will reverse the trial court’s order granting Schmidt’s habeas corpus petition and remand the matter to the trial court with instructions to vacate its order reinstating the June 21, 2005, parole release order and to issue a new order remanding the matter to the Parole Board for further proceedings in accordance with due process and the views expressed in this opinion. We express no opinion with regard to the merits or outcome of any future proceedings.

IV. DISPOSITION

The order of January 26, 2006, granting respondent Schmidt’s petition for a writ of habeas corpus is reversed and the matter is remanded to the trial court with instructions to vacate its order reinstating the June 21, 2005, parole release order and to issue a new

order remanding the matter to the Parole Board (now the Board of Parole Hearings) for further proceedings in accordance with due process and the views expressed in this opinion. The stay issued February 22, 2006, is vacated.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] In 1997, former section 1800 provided, “Whenever the Youthful Offender Parole Board determines that the discharge of a person from the control of the Youth Authority at the time required by Section 1766, 1769, 1770, 1770.1, or 1771, as applicable, would be physically dangerous to the public because of the person's mental or physical deficiency, disorder, or abnormality, the board, through its chairman, shall request the prosecuting attorney to petition the committing court for an order directing that the person remain subject to the control of the authority beyond that time. The petition shall be filed at least 90 days before the time of discharge otherwise required. The petition shall be accompanied by a written statement of the facts upon which the board bases its opinion that discharge from control of the Youth Authority at the time stated would be physically dangerous to the public, but no such petition shall be dismissed nor shall an order be denied merely because of technical defects in the application.

The prosecuting attorney shall promptly notify the Youthful Offender Parole Board of a decision not to file a petition.”

[2] Section 6607, subdivision (a), provides, “(a) If the Director of Mental Health determines that the person’s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release in accordance with Section 6608 to the county attorney designated in subdivision (i) of Section 6601, the attorney of record for the person, and the committing court.”

[3] Section 6608, subdivision (a) provides, “(a) Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health. If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the court shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing. The person petitioning for conditional release and unconditional discharge under this subdivision shall be entitled to assistance of counsel.”

[4] Penal Code section 2960 provides, “The Legislature finds that there are prisoners who have a treatable, severe mental disorder that was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated. Secondly, the Legislature finds that if the severe mental disorders of those prisoners are not in remission or cannot be kept in remission at the time of their parole or upon termination of parole, there is a danger to society, and the state has a compelling interest in protecting the public. Thirdly, the Legislature finds that in order to protect the public from those persons it is necessary to provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person’s prior criminal behavior is in remission and can be kept in remission.”

[5] Penal Code section 2964, subdivision (a), provides in pertinent part, “(a) The treatment required by Section 2962 shall be inpatient unless the State Department of Mental Health certifies to the Board of Prison Terms that there is reasonable cause to believe the parolee can be safely and effectively treated on an outpatient basis, in which case the Board of Prison Terms shall permit the State Department of Mental Health to place the parolee in an outpatient treatment program specified by the State Department of Mental Health.”

Penal Code section 2972, subdivision (d), provides, “A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis. Except as provided in this subdivision, the provisions of Title 15 (commencing with Section 1600) of Part 2, shall apply to persons placed on outpatient status pursuant to this paragraph. The standard for revocation under Section 1609 shall be that the person cannot be safely and effectively treated on an outpatient basis.”

[6] Section 3050 provides in pertinent part, “Upon conviction of a defendant of a misdemeanor or infraction or following revocation of probation previously granted for a misdemeanor or infraction, whether or not sentence has been imposed, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics, such judge shall adjourn the proceedings or suspend the imposition or execution of the sentence, certify the defendant to the superior court and order the district attorney to file a petition for a commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment and rehabilitation facility.”

[7] Section 3151 provides in pertinent part, “Commencing July 1, 2005, after an initial period of observation and treatment, and subject to the rules and policies established by the secretary, whenever a person committed under Article 2 or Article 3 of this chapter has recovered from his addiction or imminent danger of addiction to such an extent that, in the opinion of the secretary, release in an outpatient status is warranted, the secretary shall certify that fact to the board. If the secretary has not so certified within the preceding 12 months, in the anniversary month of the commitment of any person committed under this chapter his case shall automatically be referred to the board for consideration of the advisability of release in outpatient status. Upon certification by the secretary or upon automatic certification, the board may release the person in an outpatient status subject to all rules and regulations adopted by the board, and subject to all conditions imposed by the board, whether of general applicability or restricted to the particular person released in outpatient status, and subject to being retaken and returned to inpatient status as prescribed in those rules, regulations, or conditions.”

[8] The provisions of section 202 apply to a person who, like Schmidt, was declared a ward of the juvenile court while a minor, pursuant to section 602, and who became an adult while under the jurisdiction of the juvenile court. (In re Charles G., supra, 115 Cal.App.4th at p. 614.)