Filed 4/5/22 P. v. Lambert CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge.

Stephanie L. Gunther, 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 and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Shohei Lambert (appellant) pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).[1] The parties stipulated appellant was not guilty by reason of insanity (NGI), and the trial court ordered appellant committed to the Department of State Hospitals (DSH).

On appeal, appellant contends the trial court incorrectly calculated his custody credits, and therefore erred in denying his motion to dismiss because his maximum term of commitment had expired. Respondent concedes the trial court should have granted the motion to dismiss because appellant’s maximum term of commitment had expired regardless of how credits were calculated. We agree with the parties and remand the matter to the trial court with directions to grant appellant’s motion to dismiss.

BACKGROUND

The Fresno County District Attorney’s Office filed a complaint charging appellant with assault with a deadly weapon (§ 245, subd. (a)(1)). The complaint was based on appellant’s May 14, 2016, assault on another county jail inmate with an aluminum coffee pot. Appellant was in custody at the time of the assault because of pending charges in Fresno County Superior Court case No. F16901568. In that case, appellant was charged with premeditated attempted murder (§§ 664/187) with enhancements for infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)), alleged to have occurred on March 9, 2016.

At appellant’s first appearance in the instant case, a doubt was declared as to his competency pursuant to section 1368, and criminal proceedings were suspended. On June 14, 2016, the court found appellant was not competent to stand trial based on the report of a court-appointed mental health examiner. Criminal proceedings were reinstated on January 26, 2017, when the court found appellant had regained competency.

On June 29, 2017, appellant entered into a negotiated plea agreement in both cases. In the instant case, appellant pled no contest to the amended charge of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). In case No. F16901568, appellant pled no contest to premeditated attempted murder (§§ 664/187) and admitted the enhancements for infliction of great bodily injury (§ 12022.7, subd. (a)) and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). In both cases, the parties stipulated appellant was legally insane at the time of the offense.

Following the plea and stipulation, the trial court ordered appellant committed to DSH. In case No. F16901568, the court set the maximum term of commitment at an indeterminate term of life in prison plus four years. In the instant case the court set the maximum term of commitment at three years, to run concurrent to the commitment in case No. F16901568. The court calculated appellant’s custody credits as follows: 437 days of actual time in custody, plus 65 days of credit pursuant to section 2933.1, plus 91 days of credit for time spent in the state hospital, for a total of 593 days.

Appellant remained committed to DSH until June 5, 2020, when the court ordered appellant released to an outpatient program pursuant to section 1600 et seq. at the recommendation of the Central California Conditional Release Program (CONREP). Appellant was released from the state hospital to outpatient status on July 21, 2020.

On June 23, 2021, CONREP submitted a request to extend appellant’s outpatient status for one year. Appellant responded by filing a motion to dismiss, contending the trial court no longer had fundamental jurisdiction because the maximum term of commitment in the instant case expired before appellant was released to the outpatient program. The court denied appellant’s motion and granted CONREP’s request to extend appellant’s outpatient commitment.

DISCUSSION

1. The trial court should have granted appellant’s motion to dismiss because appellant’s maximum term of commitment had expired.

Appellant contends the trial court erred by calculating custody credits at the 15 percent ratio set forth in section 2933.1 rather than granting day-for-day credit pursuant to section 4019, and that with the proper award of credits, his maximum term of commitment would have expired before his July 21, 2020, release to outpatient status. Respondent claims appellant’s challenge to the award of custody credits is untimely but concedes that even using the lesser amount of credits, appellant’s maximum period of commitment expired before he was placed on outpatient status and his commitment was extended. We conclude the trial court should have granted appellant’s motion to dismiss, as appellant spent over four actual years in custody before his release to outpatient status.

1. Legal Background.

When the court orders an NGI defendant committed to a state hospital or treatment facility, “it is required to set a maximum term.” (People v. Lara (2010) 48 Cal.4th 216, 221; see § 1026, subd. (e)(2).) Section 1026.5, subdivision (a)(1), states the “ ‘maximum term of commitment’ shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed less any applicable credits .…” (§ 1026.5, subd. (a)(1).) “In other words … [the] maximum term of commitment is equal to the longest term of imprisonment for the crimes which could have been imposed had the defendant been convicted and sentenced rather than found not guilty by reason of insanity.” (People v. Hernandez (2005) 134 Cal.App.4th 1232, 1237.)

A defendant found NGI and “committed to a state hospital or other treatment facility … may not be kept in actual custody longer than the maximum term of commitment.” (§ 1026.5, subd. (a)(1).) However, “[t]ime spent on outpatient status … shall not count as actual custody and shall not be credited toward the person’s maximum term of commitment or toward the person’s term of extended commitment.” (§ 1026.5, subd. (b)(8).)

The maximum commitment term can only be extended if the prosecuting attorney files a timely petition to extend the commitment, and, after a trial, the trier of fact finds that the defendant, “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1) & (b)(2).) If no extension petition is filed before the expiration of a defendant’s commitment term, the court loses fundamental jurisdiction, and the defendant is no longer subject to constraint under the NGI statutes (§ 1026 et seq.). (People v. Lara, supra, 48 Cal.4th 216, 235–236.)

2. Analysis.

We begin our analysis by noting the trial court incorrectly set the maximum term of commitment in the instant case. The trial court set the maximum term at three years, the middle term for a violation of section 245, subdivision (a)(4), to run concurrent to the commitment in case No. F16901568. Neither party objected to this figure below, and on appeal both parties agree the maximum term of confinement is three years. However, the selection of the middle term does not comport with section 1026.5, subdivision (a). The use of the mandatory “shall” in section 1026.5, subdivision (a) indicates that the court was required to impose the longest term for appellant’s conviction, and that it was without authority to impose a reduced or concurrent term. Accordingly, the correct maximum term of commitment was four years, the aggravated term for a violation of section 245, subdivision (a)(4), along with a consecutive indeterminate term imposed in case No. F16901568.

Even if the trial court had correctly set the maximum term of commitment at four years, appellant’s commitment term expired prior to his release to outpatient status. The complaint in the instant case was filed on May 17, 2016, and appellant’s first appearance in court was the following day. Appellant remained in custody until he was released from DSH to CONREP over four years later, on July 21, 2020. Although appellant’s maximum term of commitment in the attempted murder case is life, pursuant to section 669, subdivision (a), “the determinate term of imprisonment shall be served first.” Moreover, because appellant spent over four actual years in custody, his maximum term of commitment expired before he was released to outpatient status regardless of whether the trial court awarded custody credits pursuant to section 2933.1 or section 4019. We therefore need not address appellant’s claims regarding the trial court’s calculation of credits, as it does not affect the outcome of this appeal.

When appellant’s maximum term of commitment expired, the trial court lost fundamental jurisdiction over this case. (People v. Lara, supra, 48 Cal.4th at p. 235.) Based on this lack of jurisdiction, we conclude the trial court should have denied the motion to extend appellant’s outpatient status and granted appellant’s motion to dismiss.

DISPOSITION

The judgment is reversed. The trial court’s September 9, 2021, order extending appellant’s outpatient status is vacated. Fresno County Superior Court case No. F16903069 is dismissed.[2]

LEVY, Acting P. J.

WE CONCUR:

POOCHIGIAN, J.

SNAUFFER, J.

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

[2] The parties acknowledge appellant’s indeterminate commitment term in case No. F16901568 remains in place. Our ruling is limited to the instant case and is not intended to impact appellant’s custody status in case No. F16901568.