P. v. Kirgiorgis

Filed 6/15/07 P. v. Kirgiorgis CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In January 2003, appellant Paul Apostolos Kirgiorgis was found not guilty by reason of insanity and committed to a state mental hospital for a maximum term of commitment of four years ten months. In April 2004, he was granted conditional release on outpatient status. (See Pen. Code,^[1] 1026.2, subd. (a).) In April 2006, that outpatient status was revoked. On appeal from the order revoking his outpatient status,^[2]Kirgiorgis contends that the trial court miscalculated his maximum term of commitment in its January 2003 order. He reasons that this sentence was unauthorized, entitling him to an eight-month reduction in his maximum term of commitment. (See  654.) While contesting this claim of error, the People also assert their own claim that the maximum term of commitment was miscalculated, seeking to have it increased by eight months. We affirm the revocation order, but modify the underlying commitment order to reduce the maximum term of commitment by eight months.

I. FACTS

Appellant Paul Apostolos Kirgiorgis had a history of psychiatric problems. In early 2002, he was arrested after making criminal threats, violating a court order and driving in a reckless fashion. (See  273.6, subd. (a), 422; Veh. Code,  23103 [misdemeanor].) Kirgiorgis was placed on probation for these offenses. He spent a week at Napa State Hospital and was discharged early in March 2002.

During this time, Kirgiorgiss marriage deteriorated, he stopped taking his psychiatric medication and began abusing alcohol. He believed that a man was having an affair with his wife. On June 4, 2002, the man told police that Kirgiorgis had threatened to get a gun and kill him. He also reported that Kirgiorgis had sent threatening faxes and made repeated telephone calls to him. Kirgiorgis was arrested on new charges and for violating the terms of his probation. At the time of the arrest, he also threatened to kill the arresting officer.

In June 2002, Kirgiorgis was charged by complaint with two felony counts of making criminal threats, a felony count of resisting a police officer, and a misdemeanor count of making annoying telephone calls.^[3] ( 69, 422, 653m, subd. (a).) He was also charged with violating probation in three other matters. He pled not guilty by reason of insanity to all charges. In November 2002, Kirgiorgis was found not guilty by reason of insanity.

In January 2003, the trial court issued a commitment order in the four consolidated mattersthe three probation violations and new charges at issue in this appeal. For the charges stemming from the June 2002 incident, Kirgiorgis was committed to Napa State Hospital for a maximum term of commitment of four years ten months. The maximum term of commitment of four years ten months was composed of three years for felony making criminal threats against another victim; eight months for felony making criminal threats against Officer Hernandez; eight months for felony resisting arrest; and six months for misdemeanor making annoying telephone calls.

In April 2004, Kirgiorgis was released from the hospital on outpatient status. He lived with family members and made good progress until March 2005, when he was readmitted to Napa State Hospital after he began to act in a manner reminiscent of his June 2002 conduct. (See  1610, subd. (a).) After several months, he was released again on outpatient status. After an August 2005 review hearing, Kirgiorgiss outpatient status was extended until April 2006.

In February 2006, Kirgiorgis was arrested for driving while under the influence of alcohol and for being verbally abusive to police. Consuming alcohol and violating the law were both violations of the terms of his outpatient release. He was readmitted to Napa State Hospital, pending determination of a request to revoke his outpatient status. (See  1608.)

A hearing on the petition to revoke outpatient status was held in April 2006. The two arresting officers testified about the drunk driving arrest. The countys outpatient release supervisor opined that Kirgiorgis should remain hospitalized for further treatment, citing recent examples of bizarre thinking, threatening behavior and poor judgment. Kirgiorgis also testified, saying that he was willing to remain hospitalized for a couple of months, but he did not want to have his outpatient status revoked. The trial court found that Kirgiorgis had been driving while drunk and that he became threatening and abusive with an officer. Thus, it granted the petition to revoke his outpatient status.

II. TIMELINESS OF APPEAL

In this matter, Kirgiorgis does not attack the April 2006 revocation order,^[4]but challenges the maximum term of commitment as set forth in the underlying commitment order that issued in January 2003. He concedes that he did not appeal from the commitment order at the time that it was first issued, although that was an appealable order. (See  1237, subd. (a); People v. Lindsey (1971) 20 Cal.App.3d 742, 743.) This raised a preliminary question about whether Kirgiorgiss challenge was raised in a timely manner. We asked the parties to submit letter briefs on this issue and they have done so.

We consider this question against the backdrop of the interrelationship of section 654a criminal sentencing provisionand section 1026.5 on commitments for those found not guilty by reason of insanity. The determinate sentencing law is pertinent to the calculation of the maximum term of commitment of one found not guilty by reason of insanity. Such a person may not be kept in actual custody longer than the maximum term of commitment set forth by the trial court in the commitment order. The maximum term of commitment is the longest term of imprisonment that could have been imposed if the person had been convicted and sentenced rather than found not guilty by reason of insanity. ( 1026.5, subd. (a)(1); People v. Hernandez (2005) 134 Cal.App.4th 1232, 1237.) Section 654, subdivision (a) applies to this calculation, requiring that the applicable terms used to calculate the maximum term of commitment be stayed if those terms would have been stayed had the person been convicted of the underlying crimes instead of being found not guilty by reason of insanity. (See People v. Hernandez, supra, 134 Cal.App.4th at pp. 1238-1239.)

Kirgiorgis argues that section 654 was misapplied in the calculation of his maximum term of commitment as set forth in his original commitment order, and that we may correct this erroras we could an unauthorized criminal sentenceat any time. In the context of a criminal case, a valid sentence becomes final and cannot be modified by the trial court once the time for filing a notice of appeal has expired. (People v. Colado (1995) 32 Cal.App.4th 260, 263-264.) Kirgiorgis did not file a notice of appeal from the 2003 order of commitment. However, an illegal, unauthorized sentence may be vacated and corrected whenever the error comes to the attention of the trial court or any reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Price (2004) 120 Cal.App.4th 224, 241 fn. 25, 244; People v. Colado, supra, 32 Cal.App.4th at p. 263 fn. 1.) The issue concerning us is whether this principle, which would apply in a criminal sentencing case, is also applicable in the case of one committed after a verdict of not guilty by reason of insanity.

Kirgiorgis would have us answer this question in the affirmative. He reasons that a sentence is unauthorized when it could not lawfully be imposed under any circumstances in the particular case. (People v. Price, supra, 120 Cal.App.4th at p. 243.) The California Supreme Court has determined that a trial courts error in the application of section 654 may be raised on appeal even if the defendant fails to object in the trial court. This is so because a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (People v. Hester (2000) 22 Cal.4th 290, 295.) As section 654 impacts the calculation of Kirgiorgiss maximum term of commitment, he reasons that he is entitled to raise this issue pertaining to his original commitment order, even at this late date. (See People v. Hernandez, supra, 134 Cal.App.4th at pp. 1237-1239; People v. Price, supra, 120 Cal.App.4th at pp. 241 fn. 25, 244; People v. Colado, supra, 32 Cal.App.4th at p. 263 fn. 1.)

The People disagree, distinguishing the differing goals of imprisonment and commitment. They note that a commitment following a verdict of not guilty by reason of insanity is for the purpose of treatment, in lieu of criminal punishment. (See People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485; see also People v. Reynoso (1966) 64 Cal.2d 432, 434-435 [narcotics addiction commitment].) They argue that because section 654s role as a component of computing a maximum term of commitment for one found not guilty by reason of insanity does not actually function to prevent double punishment, any possible misapplication of it must be raised in an appeal from the order of commitment.

In essence, the People contend that although section 654 is relevant to the calculation of Kirgiorgiss maximum term of commitment, because that term is not a criminal sentence per se, there is no unauthorized sentence to be corrected. This approach minimizes the commitment statutes incorporation of some principles of the determinate sentencing law. (See  1026.5, subd. (a)(1); see also People v. Hernandez, supra, 134 Cal.App.4th at p. 1237.) The requirement and calculation of a maximum term of commitment was codified in response to a decision of the California Supreme Court holding that to commit one found not guilty by reason of insanity in excess of the longest sentence that could have been imposed if found guilty of underlying offenses would violate equal protection. (See In re Moye (1978) 22 Cal.3d 457, 460, 466-467; see also  1026.5 [added by Stats. 1979, ch. 1114,  3, p. 4051].)

These valid but competing interests make it unclear whether Kirgiorgiss appeal is properly before us. However, we find it unnecessary to resolve the question in the context of the case before us. Kirgiorgiss claim of error on the merits of his challenge to the maximum term of commitment as set forth in the original commitment order might entitle him to seek relief by means of habeas corpus. In such circumstances, the California Supreme Court permits consideration of collateral issues. (See In re Harris (1993) 5 Cal.4th 813, 838-840 [act in excess of jurisdiction]; People v. Cox (1991) 53 Cal.3d 618, 682, cert. den. sub nom.Cox v. California (1992) 502 U.S. 1062 [ineffective assistance of counsel].) Thus, we consider Kirgiorgiss challenge to his original commitment order in this appeal.

III. MAXIMUM TERM OF COMMITMENT

A. Kirgiorgiss Claim of Error

On the merits, Kirgiorgis contends that the trial court erred by not applying section 654 when it calculated his maximum term of commitment in the January 2003 order of commitment. He asks us to correct this error and reduce his maximum term of commitment of four years ten months by eight months to four years two months. (See  654.) Kirgiorgis did not object to the trial courts maximum term of commitment calculation at the time of the January 2003 order of commitment, but the failure to object in the trial court does not bar us from correcting any error in that calculation on appeal. (See, e.g., People v. Hester, supra, 22 Cal.4th at p. 295.)

Under the terms of section 654, an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision, but not both. ( 654; Neal v. State of California (1960) 55 Cal.2d 11, 18, cert. den. (1961) 365 U.S. 823.) The ban on multiple punishment applies when there is one act in the ordinary sense, but also when the crimes arise as the result of an indivisible course of conduct. Whether a course of conduct is divisible and thus gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any of these offenses, but not for more than one of them. (Neal v. State of California, supra, 55 Cal.2d at pp. 18-19; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

Section 654 applies to the calculation of the maximum term of commitment for one committed after a finding of not guilty by reason of insanity. (See  1026.5, subd. (a)(1); People v. Hernandez, supra, 134 Cal.App.4th at pp. 1237-1239; see also pt. II., ante.) In June 2002, Kirgiorgis was accused of making criminal threats against Officer Hernandez. (See  422.) He was also charged with resisting the same officer by means of threats and violence. (See  69.) There was no evidence that the two crimes were the result of more than one incident.^[5] The trial court found Kirgiorgis not guilty by reason of insanity on both of these counts. The calculation of the maximum term of commitment of four years ten months included eight months for each of these two counts. Applying section 654, the maximum term of commitment must be stayed for one of these two eight-month periods. (See  654, subd. (a); People v. Hernandez, supra, 134 Cal.App.4th at pp. 1237-1239.)

B. Peoples Claim of Error

The People contend that the trial court miscalculated the maximum term of commitment when it calculated terms for one count of making criminal threats and one count of resisting as subordinate felonies, resulting in a consecutive one-third midterm of eight months for each offense. Instead, they reason that the trial court should have imposed a one-year term for each of these two offenses as if they were misdemeanors, because the underlying offenses were wobblers. Thus, the People seek an order increasing the maximum term of commitment by an additional eight months.

When calculating the maximum term of commitment, the trial court is required to calculate the longest term of imprisonment that could have been imposed if the person had been convicted of felony charges or the longest term of jail confinement that would have been imposed if the person had been convicted of misdemeanors. (See  1026.5, subd. (a)(1), (3).) In many circumstances, the term for a subordinate felony may be set at one-third the middle base term of imprisonment. (See  1170.1, subd. (a).) However, a misdemeanor sentence is not subject to this one-third calculationit is to be imposed in full. (People v. Erdelen (1996) 46 Cal.App.4th 86, 91-93.)

The underlying offenses at issue in the case before us are set forth in statute as wobblersoffenses that may be lawfully deemed to be felonies or misdemeanors, depending on the circumstances of a specific case. (See  17, subd. (b), 69, 422; People v. Douglas (1999) 20 Cal.4th 85, 88; People v. Carranza (1996) 51 Cal.App.4th 528, 534 fn. 4.) A wobbler is presumed to be a felony in the absence of any other evidence to the contrary. (See Ewing v. California (2003) 538 U.S. 11, 16-17; People v. Williams (1945) 27 Cal.2d 220, 229.) It is clearly a felony and not a misdemeanor if the prosecution charges the wobbler offense as a felony or if the trial court finds that a felony has been committed or sentences the defendant to a prison term. (See  17, subd. (b)(1), (4); see also People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 975, 977.)

These two counts were charged against Kirgiorgis as felonies in the criminal complaint. In its January 2003 commitment order, the trial court found that Kirgiorgis had committed these two felony offenses. Its calculation of the maximum term of commitment was further evidence that the trial court treated these two offenses as felonies. As the record supports the conclusion that the trial court found these offenses to be felonies, its calculation of the maximum term of commitment based on felony rather than misdemeanor sentencing was proper.

IV. DISPOSITION

The April 2006 order revoking Kirgiorgiss outpatient status is affirmed. We modify the January 2003 order of commitment to specify a maximum term of commitment of four years two months. As modified, that order of commitment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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^[1]All further statutory references are to the Penal Code unless otherwise noted.

^[2]Kirgiorgis filed a timely notice of appeal from this appealable order. (See  1237, subd. (b); People v. Herrera (1998) 66 Cal.App.4th 1149, 1152, disapproved on another point in People v. Cheek (2001) 25 Cal.4th 894, 901-903.)

^[3]In September 2002, an amended complaint was filed, adding an allegation that Kirgiorgis had suffered a prior strike. (See  667, subds. (b)-(i).) Later, the trial court struck this special allegation without prejudice.

^[4]As Kirgiorgis raises no challenge to the revocation order in his briefs, we must affirm it.

^[5]The People argue that a November 2002 evaluationwhich states that Kirgiorgis threatened to kill peace officers who came to arrest himconstitutes substantial evidence to support a finding that multiple officers were present when Kirgiorgis threatened police. They reason that this is so because the evaluation states that it was based on police reports. (See People v. Latimer, supra, 5 Cal.4th at p. 1212; Neal v. State of California, supra, 55 Cal.2d at pp. 20-21 [violent crimes against multiple victims may be punished separately pursuant to section 654]; see also People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.) However, the police report that we have in the record does not mention a second officer and the criminal complaint filed against Kirgiorgis alleges that both offenses were committed against the same officer. Thus, we reject this claim that sufficient evidence would support the maximum term of commitment as set forth in the January 2003 commitment order.