In re Littlejohn CA2/6 ( 2021 )

Filed 9/28/21 In re Littlejohn CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re EDWARD LITTLEJOHN 2d Juv. No. B311636
(Super. Ct. No. SA070874)
(Los Angeles County)
on Habeas Corpus.
Edward Littlejohn is currently committed to Metropolitan
State Hospital (MSH) as a person found not guilty of two felony
offenses by reason of insanity. (Pen. Code,1 § 1026.) In March
2021, he filed a petition for a writ of habeas corpus in the trial
court contending that MSH had miscalculated the maximum
term of his commitment by failing to include 1,106 days of
conduct credit for his time spent in county jail prior to his
commitment, as provided in People v. Superior Court (Frezier)
All statutory references are to the Penal Code unless
1
otherwise stated.
54 Cal.App.5th 652 (Frezier), and that when those credits were
applied he had served his maximum term of confinement and was
thus entitled to immediate release. The People conceded that
Littlejohn was entitled to conduct credits under Frezier, but
contended that those credits were subject to the 15-percent
limitation set forth in sections 4019 and 2933.1 because the
offenses underlying the commitment were violent felonies. The
trial court agreed with the People, awarded Littlejohn 166 days of
conduct credit, and set October 22, 2021 as his maximum term of
commitment. Littlejohn now seeks extraordinary writ relief in
this court, contending that the trial court erred in failing to apply
full conduct credits in setting his maximum term of commitment
and in declining to order his immediate release. We deny the
petition.
FACTUAL AND PROCEDURAL HISTORY
On April 8, 2009, Littlejohn was arrested after he assaulted
and repeatedly stabbed David Chavez with a knife at a gym.2 He
was subsequently charged with attempted murder (§§ 187, subd.
(a), 664) and assault with a deadly weapon (§ 245, subd. (a)(1)),
and pleaded not guilty and not guilty by reason of insanity.
Littlejohn, who was first diagnosed in 1997 with delusional
disorder, paranoid type, testified at his jury trial that he had no
recollection of the incident.
After the jury found Littlejohn guilty of both charged
offenses, the trial court found him not guilty by reason of insanity
and ordered him committed to MSH pursuant to section 1026.
2In reciting the relevant facts, we take judicial notice of
our 2013 unpublished opinion affirming Littlejohn’s NGI
commitment. (People v. Littlejohn (Aug. 21, 2013, B241427)
[nonpub. opn.]; Evid. Code, §§ 452, subd. (d), 459.)
2
The court’s order states that Littlejohn’s “confinement may not
exceed 13 years[,] the maximum state prison sentence possible in
this case, less credit for 1106 days in custody, plus 1106 days
good time/work time.”3 Nothing in the record reflects that the
prosecution objected to the court’s award or calculation of
precommitment conduct credits.
After Littlejohn was transferred from county jail to MSH,
MSH set April 7, 2022 as his maximum commitment date. In
setting that date, MSH did not include any of the conduct credits
awarded by the trial court.
On March 9, 2021, Littlejohn petitioned the trial court for a
writ of habeas corpus alleging (1) that MSH had erred in failing
to include the 1,106 days of conduct credit in setting his
maximum term of commitment, as provided Frezier, supra, 54
Cal.App.5th 652; (2) that his maximum term of commitment thus
expired on March 19, 2019; and (3) that he was entitled to be
immediately released because the People had not timely filed a
petition to extend his commitment under section 1026.5.
In opposing the petition, the People agreed that Frezier was
correctly decided and that Littlejohn was accordingly “entitled to
. . . pre-commitment and conduct credits.” The People noted,
however, that the offenses underlying Littlejohn’s commitment
were violent felonies under section 2933.1. The People noted
“Frezier makes it clear that notwithstanding the lack of
conviction or sentencing, custody and conduct credits are
governed by the same Penal Code sections as criminal
convictions. Therefore, [section] 2933.1 should apply and Mr.
3 Littlejohn was confined in a Los Angeles County jail
facility from the date of his arrest until the date of his section
1026 commitment.
3
Littlejohn should receive only 15[ percent] conduct credits.” The
People thus urged the court to find that Littlejohn was entitled to
166 days of conduct credit and set October 22, 2021 as his
maximum commitment date. Following a hearing, the court
adopted the People’s position, entered an order to that effect, and
otherwise denied Littlejohn’s habeas petition.4
DISCUSSION
Littlejohn contends the trial court erred in declining to
award him conduct credits for all of the days he spent in county
jail prior to his commitment as a person found not guilty by
reason of insanity, as set forth in Frezier, supra, 54 Cal.App.5th
652. We conclude otherwise. As Frezier makes clear, Littlejohn’s
conduct credits were limited to 15 percent of his actual custody
credits because the offenses underlying his commitment were
violent felonies. (Frezier, at p. 668; §§ 2933.1, 4019.)
Although the People conceded below that Frezier was
correctly decided and that Littlejohn was thus entitled to
4 According to Littlejohn’s appointed habeas counsel, on
June 14, 2021, the People filed a petition to extend Littlejohn’s
commitment for an additional two years on the ground that he
represents a substantial danger of physical harm to others by
reason of his mental disorder. (§ 1026.5, subd. (b).) Contrary to
counsel’s claim, the petition was timely because it was filed at
least 90 days prior to his maximum commitment date of October
22, 2021. (Id., subd. (b)(2).) Although counsel complains that
the People had yet to serve him with a copy of the petition when
the traverse was filed on August 16, counsel offers no evidence
that he has been appointed to represent Littlejohn in those
proceedings. (See id., subd. (b)(3) [providing that “[w]hen the
petition [for extended commitment] is filed, the court shall advise
the person named in the petition of the right to be represented by
an attorney and of the right to a jury trial”].)
4
precommitment conduct credits, they noted how the decision
compelled a finding that those credits were subject to the 15-
percent limitation set forth in section 2933.1 because here—
unlike in Frezier—the offenses underlying the commitment were
violent felonies. Moreover, the trial court expressly adopted the
position urged by the People and accordingly awarded Littlejohn
166 days of conduct credit and recalculated his maximum
commitment date as October 22, 2021.
The informal opposition filed by the People in these
proceedings, however, made no mention of the fact that they
expressly urged the trial court to follow Frezier, nor does it
mention that the People also urged the trial court to award
Littlejohn 166 days of conduct credit and set October 22, 2021 as
his maximum commitment date. Instead, the People asserted for
the first time that Frezier was incorrectly decided and that
Littlejohn is thus not entitled to any conduct credits.
After issuing an order to show cause and setting a briefing
schedule for the return and traverse, we ordered the People to
address whether they were barred from claiming that the trial
court erred in following Frezier. In addressing this issue, the
People contend among other things that the claim cannot be
deemed forfeited or waived because the court’s erroneous award
of custody credits is an “unauthorized sentence” that can be
challenged and corrected at any time. (See, e.g., People v. Chilelli
(2014) 225 Cal.App.4th 581, 591, citing People v. Scott (1994) 9
Cal.4th 331, 354.) They go on to conversely argue, however, that
Littlejohn is not entitled to conduct credits and that Frezier was
incorrectly decided because such credits only apply “prior to the
imposition of sentence for a felony conviction” (4019, subd. (a)(4)),
and a commitment under section 1026 is not a “sentence.” (See,
5
e.g., People v. K.P. (2018) 30 Cal.App.5th 331, 340 [recognizing
that “[a]n insanity acquittee is not sentenced; he or she is
committed to a state hospital for treatment”].)5 Regardless of
whether the People are barred from claiming otherwise, we
conclude that Frezier was correctly decided.
Section 1026 governs the commitment of persons found not
guilty by reason of insanity. Section 1026.5 was enacted in 1979
in response to In re Moye (1978) 22 Cal.3d 457 (Moye) superseded
by statute as stated in Frezier, supra, 54 Cal.App.5th at pp. 662-
663, in which our Supreme Court held as a matter of equal
protection (subject to the availability of an extended or civil
commitment based on continuing dangerousness) that persons
committed under section 1026 “cannot be retained in institutional
confinement beyond the maximum term of punishment for the
underlying offense of which, but for their insanity, they would
have been convicted.” (Id. at p. 467.)6
5 In arguing for the first time that the trial court erred in
following Frezier, the People also offer that “[s]o long as the
decision under review is correct on any ground appearing in the
record, this court may affirm even if the lower court followed an
erroneous path of reasoning.” (Citations omitted.) But the
People do not claim that the court’s decision is correct; they claim
the court erred in awarding Littlejohn 166 days of conduct
credits, notwithstanding that the court awarded those credits at
their express request.
6Under the statutes as they existed when Moye was
decided, persons found not guilty by reason of insanity were
committed to a state hospital for an unspecified term that
continued until the person’s sanity was restored. (Moye, supra,
22 Cal.3d at p. 461.)
6
“Section 1026.5 requires that a trial court prepare and file
an order of commitment establishing ‘the maximum term of
commitment.’ [Citation.] As defined in that section, ‘“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 as defined by Section 2900.5,
and disregarding any credits which could have been earned
pursuant to [section 2930 et seq.].’ [Citation.]” (Frezier, supra,
54 Cal.App.5th at p. 660.)
Section 2900.5, subdivision (a) provides that a person’s
“term of imprisonment” includes credits for “all days of custody of
the defendant, including days . . . credited to the period of
confinement pursuant to Section 4019.” “Section 4019 provides
that for each four-day period in which a prisoner is confined and
has been on good behavior, the prisoner will receive two days of
conduct credits. [Citations.] Thus, ‘a term of four days will be
deemed to have been served for every two days spent in actual
custody.’ [Citation.] Section 4019 conduct credits are available
for inmates confined to a local facility, including a county jail,
following arrest and before the imposition of a sentence for a
felony conviction. [Citation.]” (Frezier, supra, 54 Cal.App.5th at
p. 661, fn. omitted.)
“Considered as a whole, these statutes impose a duty on the
trial court to determine the maximum term of commitment in the
same manner that it would calculate the longest term of
imprisonment that could be imposed for the offense for which the
person has been adjudged not guilty by reason of insanity. As
7
defined by section 2900.5, a ‘term of imprisonment’ must be
reduced by actual custody credits and section 4019 conduct
credits.” (Frezier, supra, 54 Cal.App.5th at p. 661.)
As the court in Frezier explained, the prior cases holding
that persons committed under section 1026 are not entitled to
precommitment conduct credits “are premised on an application
of the relevant statutes as they existed before significant
amendments or otherwise overlooked the relevant statutes.”
(Frezier, supra, 54 Cal.App.5th at p. 662.) The earliest case,
People v. Smith (1981) 120 Cal.App.3d 817 (Smith), was decided
when section 4019 did not permit an award of conduct credits for
persons, like Smith, who were found to have committed a felony
rather than a misdemeanor. (Frezier, at pp. 663-664.) The court
in Smith thus “had no cause to engage in any analysis of a
statutory right to section 4019 conduct credits.” (Id. at p. 664.)
People v. Mord (1988) 197 Cal.App.3d 1090, and People v.
Campos-Castillo (1986) 176 Cal.App.3d 926, which were decided
after section 4019 was amended in 1982 to apply to both felonies
and misdemeanors, simply followed Smith without addressing
the statutory change to section 4019. (Frezier, at p. 665.)
In People v. Bodis (1985) 174 Cal.App.3d 435, the court did
not address the amendment to section 4019 and failed to
recognize “the distinction between precommitment time spent in
jail and time spent in a state hospital . . . .” (Frezier, supra, 54
Cal.App.5th at p. 664, italics added.) In addition, “the Bodis
court relied on section 1026.5’s express instruction that ‘“credits
which could have been earned under Section 2930 to 2932,
inclusive”’ are to be disregarded. [Citation.] Thus, although the
defendant in Bodis was asserting a right to pre[-]sentence
conduct credits, the court relied on the statutory language
8
mandating that a court disregard post[-]sentence conduct credits,
to support its conclusion, apparently without recognizing the
distinct statutory schemes. [Citation.]” (Frezier, at p. 664.)
The People offer no persuasive reason for us to disagree
with Frezier.7 Among other things, they reiterate the rejected
argument made by the People in Frezier that persons committed
under section 1026 are not entitled to conduct credits because
section 4019 states that such credits apply to persons in custody
“following arrest and prior to the imposition of sentence for a
felony conviction.” (§ 4019, subd. (a)(4).)
As the court in Frezier reasoned: “If we were to accept this
interpretation . . . , section 2900.5 custody credits would also not
‘apply’ to a maximum term of commitment. Under section
2900.5, subdivision (a), custody credits apply ‘[i]n all felony and
misdemeanor convictions’ and ‘shall be credited upon [a
defendant’s] term of imprisonment.’ It follows that if section
1026.5 is interpreted to allow credits that are ‘applicable’ only to
a maximum term of commitment and not to a term of
imprisonment following a conviction, then Frezier and all others
committed to a state hospital after being found insane would not
be entitled to receive custody credits under section 2900.5,
7 In addition to the four prior cases discussed in Frezier, the
People also erroneously cite People v. Minahen (1986) 179
Cal.App.3d 180, for the proposition that the maximum term of
commitment for persons found not guilty by reason of insanity
does not include precommitment conduct credits. That case
involved section 1026.5 precommitment custody credits for time
spent confined in a county mental health facility, not a county
jail. (Id. at p. 185.) As the court in Frezier recognized, section
4019 conduct credits do not apply to time spent in such a facility.
(Frezier, supra, 54 Cal.App.5th at p. 668, fn. 9.)
9
subdivision (a), because, by its terms, [that section] applies only
to the imposition of sentence for a felony conviction. This is
obviously not the case and the [People] admit[] that Frezier is
entitled to custody credits under section 2900.5. Thus, the
[People’s] argument that custody credits constitute ‘applicable
credits under section 2900.5,’ but conduct credits do not, is
internally inconsistent.” (Frezier, supra, 54 Cal.App.5th at
p. 667.) The court further reasoned that “accepting this
interpretation would mean that no person committed pursuant to
section 1026 would be eligible for any credits, because they are
not ‘convicted’ or ‘imprisoned.’ This would render the reference in
section 1026.5 to ‘applicable credits as defined by Section 2900.5’
entirely superfluous. . . .” (Ibid.)
The court went on to conclude “that the phrase ‘applicable
credits as defined by section 2900.5’ means credits that would
apply to the ‘longest term of imprisonment’ referenced in section
1026.5. . . . [S]ection 1026.5 [thus] requires that the trial court
apply statutes that typically apply to sentencing—sections 2900.5
and 4019—to determine the ‘longest term of imprisonment’ that
could be imposed, which section 1026.5 establishes to be equal to
the maximum term of commitment for a person adjudged not
guilty by reason of insanity. The references to sentencing and
convictions in these statutes are inapposite when applied in this
context. It is undisputed that when a trial court is tasked with
imposing the ‘longest term of imprisonment’ for a person
convicted of a felony, that term would include both custody
credits and conduct credits. Since the same calculation forms the
basis for determining the maximum term of commitment under
section 1026.5, we conclude that Frezier is entitled to section
4019 credits despite the fact that he was not convicted or
10
sentenced.” (Frezier, supra, 54 Cal.App.5th at pp. 667-668, italics
added.) We agree with this reasoning.
We also reject the People’s reliance on the proposition that
“when . . . ‘“a statute has been construed by judicial decision, and
that construction is not altered by subsequent legislation, it must
be presumed that the Legislature is aware of the judicial
construction and approves of it.” [Citations.]’” (People v. Meloney
(2003) 30 Cal.4th 1145, 1161.) As the court in Frezier noted,
when Smith was decided section 4019 conduct credits did not
apply to felonies and the subsequent cases simply followed Smith
or erroneously equated precommitment credits with
postcommitment credits, the latter of which are expressly
excluded under section 1026.5. Moreover, it has now been over a
year since Frezier was decided, yet the Legislature has taken no
action to express any disapproval of that decision. It is also
apparent, as in both Frezier and this case, that trial courts have
been interpreting section 1026.5 to require the inclusion of
conduct credits in a maximum term of commitment.
It is equally apparent that the trial court in this case
properly found Littlejohn’s conduct credits were subject to the 15-
percent limitation set forth in section 2933.1, subdivision (c). As
Frezier makes clear, in calculating the maximum term of
commitment under section 1026.5 the court includes the credits
that would have applied under section 2900.5 if the defendant
had been convicted of and sentenced for the crimes underlying
the commitment. Had Littlejohn been convicted of and sentenced
for attempted murder and assault with a deadly weapon, his
conduct credits would have been subject to the 15-percent
limitation because both offenses were violent felonies under
section 667, subdivision (c). (§ 2933.1, subd. (c).)
11
In arguing that he is entitled to full conduct credits,
Littlejohn asserts that the 15-percent limitation set forth in
section 2933.1 does not apply because he was not actually
convicted of or sentenced for the violent felonies underlying his
commitment. But this is the very same argument proffered by
the People in Frezier (and reiterated here) in asserting that
persons committed under section 1026 are not entitled to any
conduct credits. In other words, Littlejohn effectively asks us to
follow Frezier’s holding that he is entitled to conduct credits
notwithstanding the fact he was neither convicted nor sentenced,
yet reject its holding that he is only entitled to the credits that
would have applied had he actually been convicted and
sentenced. Suffice to state that Littlejohn offers nothing of
substance to justify these inconsistent positions.
DISPOSITION
The petition for a writ of habeas corpus is denied.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
12
Leslie E. Brown, Judge
Superior Court County of Los Angeles
______________________________
Daniel I. Kapelovitz, under appointment by the Court of
Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Daniel S. Chang, Deputy Attorney General, for
Respondent.