Filed 9/20/18 Banderas v. Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
| CLAUDIO BANDERAS,
Petitioner,
v.
THE SUPERIOR COURT OF TULARE COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
|
F077856
(Tulare Super. Ct. No. VCF342356)
OPINION
|
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of mandate and/or prohibition. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Lisa Bertolino-Mueting, Tulare County Public Defender, Thomas McGuire, Assistant Public Defender, and Brian E. Schulte, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Lowe and Barton Bowers, Deputy Attorneys General, for Real Party in Interest.
-ooOoo-
Petitioner requests that he be released from custody pursuant to Jackson v. Indiana (1972) 406 U.S. 715 and In re Davis (1973) 8 Cal.3d 798, and that the charges against him be dismissed.
FACTS
In 2016, petitioner was charged with assault with a deadly weapon, a special allegation that he inflicted great bodily injury on the victim, and battery.
During the proceeding, counsel expressed doubt as to petitioner’s competency to stand trial. Competency proceedings were initiated pursuant to Penal Code section 1368.
Petitioner was found to be incompetent to stand trial and was placed at Atascadero State Hospital.
In March 2018, the State of California, Health and Human Services Agency, filed a report which concluded there was no substantial likelihood that petitioner would achieve competency in the foreseeable future. Petitioner was returned to the superior court pursuant to Penal Code section 1370.
On June 21, 2018, a hearing was held in superior court. The evidence before the superior court at that hearing consisted of reports that concluded there was no substantial likelihood that petitioner would attain competency in the foreseeable future, and that petitioner was not eligible for conservatorship pursuant to the Lanterman-Petris-Short Act. The court ordered petitioner to be returned to Atascadero State Hospital.
This petition was filed on July 27, 2018, requesting that a peremptory writ of mandate issue directing petitioner’s release and directing that the charges pending against petitioner be dismissed.
On August 3, 2018, this court granted petitioner’s request for a stay and ordered opposition from the Attorney General.
In its response filed on August 30, 2018, the Attorney General conceded that petitioner was entitled to relief, but opposed petitioner’s request that the charges be dismissed.
DISCUSSION
“When a defendant is returned to the trial court—either because there is no substantial likelihood that the defendant will regain competence or because the defendant has been committed for the maximum statutory period—the trial court must order the public guardian to initiate LPS Act conservatorship proceedings if the defendant is ‘gravely disabled’ within the meaning of the LPS Act.… If the defendant is not gravely disabled, the defendant must be released [citation], and the trial court may dismiss the action in the interest of justice pursuant to section 1385 [citations]. Such a dismissal is ‘without prejudice to the initiation of any proceedings that may be appropriate’ under the LPS Act.” (Jackson v. Superior Court (2017) 4 Cal.5th 96, 102.)
In this case, after petitioner was returned to the superior court, the court concluded that petitioner was “not gravely disabled for purposes of a conservatorship,” and nevertheless ordered petitioner to be returned to Atascadero State Hospital.
In its response, the Attorney General conceded that based on the evidence presented to the court prior to the hearing held on June 21, 2018, petitioner would have been entitled to be released from custody. However, the Attorney General opposed petitioner’s request that the pending charges be dismissed because petitioner had not requested that relief in the superior court.
Petitioner did not file a reply disputing the Attorney General’s claim that petitioner failed to request the superior court dismiss the charges. (Cal. Rules of Court, rule 8.487(b)(3).)
The petition in this action did not present any pleadings filed by petitioner that requested a dismissal. Nor did petitioner request a dismissal at the hearing held on June 21, 2018.
This court concludes that petitioner has failed to show that he is entitled to have the charges pending against him dismissed.
Pursuant to the Attorney General’s response and Jackson v. Superior Court, supra, 4 Cal.5th 96 at page 102, petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085; see Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order rendered on June 21, 2018, in Tulare County Superior Court action No. VCF342356, directing that petitioner be returned to Atascadero State Hospital and to reconsider the matter in light of this court’s opinion, the pleadings filed in this court and whatever additional pleadings and evidence the parties may submit to the superior court.
The Clerk/Executive Officer of this court is authorized to send copies of the petition and response filed in this court to the Tulare County Superior Court.
This court notes that nothing in this opinion would prevent the superior court from accepting further pleadings from the parties and additional evidence and to reconsider these issues de novo.
In light of the concession by the Attorney General, this opinion is ordered final in this court on the date it is filed.
The stay order filed on August 3, 2018, shall remain in effect only until this opinion is final in all courts of this state or the Supreme Court grants a hearing herein, whichever shall first occur; thereafter said order is vacated and said stay is dissolved.
* Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
