McKneely v. Superior Court ( 2023 )

Filed 5/25/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
DANIJA MCKNEELY,
Petitioner,
v.
THE SUPERIOR COURT OF A166307
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. Nos. 1-194029-5;
THE PEOPLE OF THE STATE OF 1-195489-0; 1-195774-5;
CALIFORNIA, 4-196306-5)
Real Party in Interest.
If a defendant is found incompetent to stand trial and committed to the
Department of State Hospitals (DSH) for restoration to mental competence
under Penal Code section 1370,1 the medical director of the DSH facility is
required to make periodic reports to the committing court concerning the
defendant’s progress toward recovery. (§ 1370, subd. (b)(1).) If the director
concludes that a defendant’s competence has been restored, the director must
file with the court a certificate of restoration to competence (certificate) and
the defendant is returned to the committing court. (§ 1372, subd. (a).) The
court must then make a finding as to whether the defendant has recovered
competence, and may hold a hearing on that issue. (§ 1372, subd. (c)(1).)
1 All statutory references are to the Penal Code.
1
In 2022, the Legislature added a new provision to the statute governing
court proceedings subsequent to the filing of a certificate. The new provision
requires that “[i]f the court rejects a certificate of restoration, the court shall
base its rejection on a written report of an evaluation, conducted by a licensed
psychologist or psychiatrist, that the defendant is not competent.” (§ 1372,
subd. (c)(2) (section 1372(c)(2)); Stats. 2022, ch. 47, § 45, effective June 30,
2022.) The new provision goes on to state that “[t]he evaluation shall be
conducted after the certificate of restoration is filed with the committing
court and in compliance with Section 1369.” (Ibid.)
This petition for extraordinary relief challenges the constitutionality of
newly enacted section 1372(c)(2).
Petitioner Danija McKneely was found incompetent to stand trial and
ordered committed to DSH. Subsequently, DSH filed a certificate of
restoration to competency with the committing court, supported by a 16-page
psychologist’s report. McKneely’s trial counsel urged the trial court to reject
the certificate on the basis of counsel’s own declaration that she believed her
client was not competent, and asserted that section 1372(c)(2)’s requirement
of the appointment of an expert violated separation of powers principles and
due process. The trial court concluded that it lacked statutory authority to
reject the certificate based solely on a declaration from defense counsel, and
was prepared to authorize the appointment of an expert doctor in advance of
a hearing on whether McKneely was restored to competency. McKneely
asked the trial court to stay the appointment of a doctor, and this writ
petition was filed.
McKneely argues that by “dictat[ing] the form of proof” required to
reject a certificate of restoration, the Legislature “usurps the judiciary’s role”
and therefore violates the separation of powers. He also argues that the
2
amendment violates due process and that it is contrary to public policy. We
are not persuaded by these arguments and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Actions
McKneely is a defendant in four criminal actions pending in Contra
Costa County Superior Court.
In February 2020, he was convicted of battery and resisting a peace
officer, and was placed on misdemeanor probation. (Docket No. 4-196306-5.)
In July 2020, while on probation, McKneely was charged with felonious
assault by means likely to cause great bodily injury and misdemeanor
battery. (Docket No. 1-194029-5.) Shortly thereafter, the court declared a
doubt as to McKneely’s competence to stand trial under section 1368 and
suspended criminal proceedings. The court found McKneely incompetent to
stand trial and ordered McKneely committed to DSH.
In March 2021, while awaiting transfer to DSH, McKneely was charged
with five felony counts of vandalism, based on five incidents from October
2020 through January 2021 in which he allegedly damaged jail property
belonging to the sheriff’s office. (Docket No. 1-195489-0.) The court declared
a doubt under section 1368, suspended criminal proceedings, and added
docket Nos. 4-196306-5 and 1-195489-0 to the commitment order in docket
No. 1-194029-5.
Later in March, McKneely was charged with three more felony counts
of vandalism at the county jail. (Docket No. 1-195774-5.) At his arraignment
in April 2021, the court again declared a doubt, suspended criminal
proceedings, and ordered McKneely committed to DSH.
In May 2021, McKneely was admitted to Napa State Hospital.
3
Certification of Restoration to Competency
On June 23, 2022, DSH issued a certificate that McKneely had
regained mental competence, supported by a comprehensive 16-page report
prepared by Victoria Knudsen, PhD, a senior forensic psychologist.
Knudsen’s report was based on the charging documents, police reports, court-
ordered evaluations, nursing and physician notes in McKneely’s medical
chart, consultation with members of McKneely’s treatment team, and a
competency evaluation that Knudsen conducted during an interview with
McKneely two days earlier on June 21, 2022.
After McKneely was returned to court (§ 1372, subd. (a)(3)), his
attorney filed an “Objection to Competing Expert Requirement as Condition
to Reject Restoration Certificate,” arguing that the recent amendment of
section 1372 was invalid on constitutional grounds, and that a further expert
declaration should not be required if McKneely could present a sufficiently
detailed declaration from his attorney. The objection was accompanied by his
counsel’s declaration “setting forth the basis for her good faith belief that
[McKneely] was not competent to stand trial.”
In response, the district attorney argued that in light of the
amendment, the court could not reject the restoration certificate unless it
obtained “a written report of an evaluation, conducted by a licensed
psychologist or psychiatrist, that the defendant is not competent.”
(§ 1372(c)(2).) The district attorney suggested that if defense counsel
disputed the certificate, counsel could either request that the court reappoint
4
the experts who previously evaluated McKneely, or retain counsel’s own
expert to render an opinion.2
At a hearing, the court concluded that the court could not reject a
certificate based solely on defense counsel’s declaration, because the
amendment to section 1372 required a report from a mental health
professional to support the rejection of a certificate. Although the trial court
was prepared to issue an order appointing an expert to conduct a further
evaluation, McKneely requested that it not do so and instead stay the
proceedings to allow him to file a writ petition. The court continued the
matter for 30 days; McKneely filed his petition; and we then issued an order
to show cause.
DISCUSSION
McKneely asks us to direct the trial court to set aside its order
upholding the requirement that the rejection of a certificate of restoration be
based on an expert evaluation, and to enter a new order that the requirement
is unconstitutional.
A. Applicable Law and Standard of Review
We start with first principles. “The constitutional right to due process
of law prohibits the trial of a mentally incompetent criminal defendant.
[Citations.] Due process principles further require trial courts to employ
procedures to guard against the trial of an incompetent defendant.
[Citations.] Under Dusky v. United States (1960) 362 U.S. 402 . . ., the
2 The district attorney stated that before the change in the law, the
People would have stipulated that the declaration prepared by McKneely’s
counsel contained sufficient detail such that it could be submitted to the court
for the court to “render a decision as to whether [McKneely] was not
competent to stand trial when balanced against the contents of the 1372
report.”
5
inquiry into a defendant’s competency to proceed focuses on whether the
defendant ‘ “has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and . . . a rational as well as
factual understanding of the proceedings against him.” ’ (Id. at p. 402 . . . .)”
(In re R.V. (2015) 61 Cal.4th 181, 188 (R.V.).)
Sections 1367 through 1376 set forth procedures intended to prevent
the trial of a defendant who, “as a result of a mental health disorder or
developmental disability . . . is unable to understand the nature of the
criminal proceedings or to assist counsel in the conduct of a defense in
rational matter” (§ 1367, subd. (a)), and to restore a defendant to competency
if possible. The statutory scheme is intended “to make sure (1) a mentally
incompetent criminal defendant is not tried, and (2) the mentally
incompetent defendant is confined for incompetency only for a period
reasonable for his or her competence to be restored.” (In re Taitano (2017) 13
Cal.App.5th 233, 252 (Taitano).)
Section 1372—the focus of this petition—sets out the procedure to be
followed if the medical director of a state hospital determines that a
defendant has regained mental competence. The director files a certificate of
restoration with the court (§ 1372, subd. (a)(1)), the defendant is promptly
returned to court for further proceedings (id., subds. (a)(2) & (3)), and the
trial court must determine whether to approve or reject the certificate of
restoration. (Id., subds. (c) & (d).) The court may hold a hearing on the
defendant’s competence after a certificate of restoration has been filed. (Id.,
subd. (c)(1); see People v. Mixon (1990) 225 Cal.App.3d 1471, 1480 (Mixon)
[references to a hearing in section 1372 indicate a legislative intention that a
hearing be afforded where defendant may challenge the certificate].)
6
A hearing on a certificate of restoration of competence under section
1372, subdivision (c), is a “special proceeding,” conducted in accordance with
procedures set forth in section 1369, except that in a hearing under section
1372, subdivision (c) the court is the finder of fact. (Mixon, supra, 225
Cal.App.3d at p. 1482; see Code Civ. Proc. §§ 20-23 [defining remedies,
actions, and special proceedings].) The defendant is presumed competent
unless proved incompetent by a preponderance of the evidence. (§ 1369,
subd. (f).)
A hearing on a certificate of restoration of competence is a “ ‘ “creature[]
of statute and the court’s jurisdiction in such proceedings is limited by
statutory authority.” ’ ” (People v. Quiroz (2016) 244 Cal.App.4th 1371, 1379
(Quiroz).) “ ‘ “As special proceedings are created and authorized by statute,
the jurisdiction over any special proceeding is limited by the terms and
conditions of the statute under which it was authorized [citation], and . . .
[t]he statutory procedure must be strictly followed.” ’ ” (Ibid.)
As we have noted, section 1372(c)(2) provides, “If the court rejects a
certificate of restoration, the court shall base its rejection on a written report
of an evaluation, conducted by a licensed psychologist or psychiatrist, that
the defendant is not competent. The evaluation shall be conducted after the
certificate of restoration is filed with the committing court and in compliance
with Section 1369.”3
3The 2022 amendment of section 1372 added subdivision (c)(2).
Previously, section 1372, subdivision (c) stated in its entirety: “When a
defendant is returned to court with a certification that competence has been
regained, the court shall notify either the community program director, the
county mental health director, or the regional center director and the
Director of Developmental Services, as appropriate, of the date of any hearing
on the defendant’s competence and whether or not the defendant was found
7
We apply the de novo standard of review in considering the
constitutionality of a statute. (People v. Luo (2017) 16 Cal.App.5th 663, 680.)
We presume that the statute is valid; we resolve any doubts in favor of
constitutionality; and we uphold the statute “unless it is in clear and
unquestionable conflict with the state or federal Constitutions.” (Mounts v.
Uyeda (1991) 227 Cal.App.3d 111, 122.) “A challenge to a statute’s
constitutionality must demonstrate that its provisions inevitably pose a total
and fatal conflict with applicable constitutional prohibitions”; therefore, “if
the court can conceive of a situation in which the statute can be applied
without entailing an inevitable collision with constitutional provisions, the
statute will prevail.” (Ibid.)
B. Forfeiture
McKneely’s first argument is that the People have forfeited any
arguments on the constitutionality of the amended statute because they did
not make those arguments in the trial court in response to McKneely’s
objection. We may exercise our discretion to decide a pure question of law
where the facts are undisputed, and we do so here. (See Orange County
Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 298
[exercising discretion to consider on appeal an issue not raised by
defendants/respondents in the trial court].)
C. Separation of Powers
1. Legal Principles
“A core function of the Legislature is to make statutory law, which
includes weighing competing interests and determining social policy. A core
by the court to have recovered competence.” (Stats. 2021, ch. 143, § 345.)
The language formerly in section 1372, subdivision (c), now appears in
section 1372, subdivision (c)(1). (Stats. 2022, ch. 47, § 45.)
8
function of the judiciary is to resolve specific controversies between the
parties. . . . Separation of powers principles compel the courts to carry out
the legislative purpose of statutes . . . [and] constrain legislative influence
over judicial proceedings.” (Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 177.)
Although “ ‘[t]he power of the legislature to regulate criminal and civil
proceedings and appeals is undisputed” the Legislature may not “ ‘defeat or
materially impair’ ” the constitutional functions of the courts. (Briggs v.
Brown (2017) 3 Cal.5th 808, 846 (Briggs).)
In Briggs our Supreme Court stated, “We have emphasized that ‘[t]he
separation of powers limitation on the Legislature’s power to regulate
procedure is narrow. Chaos could ensure if courts were generally able to pick
and choose which provisions of the Code of Civil Procedure to follow and
which to disregard as infringing on their inherent powers. The same concern
applies to the Evidence Code, which, after all, generally limits a court’s
ability to consider evidence. In most matters, the judicial branch must
necessarily yield to the legislative power to enact statutes. [Citation.] Only if
a legislative regulation truly defeats or materially impairs the courts’ core
functions . . . may a court declare it invalid.’ [Citations.] [These
observations] apply equally to the Penal Code’s procedural provisions.”
(Briggs, supra, 3 Cal.4th at pp. 846-847.)
2. Analysis
McKneely argues that the Legislature usurps the judiciary’s role by
requiring a court to base its rejection of a certificate that competence has
been restored on an expert evaluation that the defendant is not competent.
He relies on authority recognizing that courts have the power to reject
unsound expert testimony regarding competency, even if there is no expert
9
testimony to the contrary (R.V., supra, 61 Cal.4th at pp. 215-216);4 and
contends that by requiring the court to accept the certificate unless it receives
a competing expert opinion, the statute “impair[s] the core judicial junction of
resolving controversies.” He further contends that on its face, the statute
“requires courts to accept even restoration certificates that are wholly
unsupported by facts or reason,” thereby “impairing the core judicial function
of resolving controversies.”
The current version of section 1372, like the previous version, states
that after receiving a certificate of restoration, the trial court must make a
finding as to whether or not the defendant has recovered competence.
(§ 1372, subd. (c)(1).) The addition of section 1372(c)(2) does not eliminate
that requirement or impair the trial court’s ability to make the required
finding. Instead, the filing of a certificate of restoration gives rise to the
presumption that competence has been recovered, consistent with the
statutory presumption at a competency hearing under section 1369,
subdivision (f), that the defendant is mentally competent. The presumption
established by section 1372(c)(2) is not conclusive, because the court can still
find that competence has not been recovered, so long as such a finding is
supported by a subsequent evaluation by a licensed psychologist or
4 R.V. concerned a challenge to the sufficiency of the evidence
supporting the juvenile court’s determination in a competency proceeding
under Welfare and Institutions Code section 709 that a minor was competent
to stand trial. (R.V., supra, 61 Cal.4th at pp. 187-188, 198.) The evidence
before the juvenile court in R.V. consisted of the court-appointed expert’s
report and testimony, and the materials on which the expert based his
opinion that the minor was incompetent to stand trial. (Id. at p. 186.) Our
Supreme Court viewed the evidence in the light most favorable to the
juvenile court’s determination of competency, and nevertheless concluded
that the weight and character of the evidence was such that the juvenile
court could not reasonably have rejected it. (Ibid.)
10
psychiatrist who concludes that the defendant is not competent.
(§ 1372(c)(2).) Nothing in section 1372(c)(2) limits the court’s authority to
appoint such an expert, or even to appoint more than one. McKneely fails to
show how the Legislature’s establishment of a rebuttable presumption, in a
proceeding that is a “ ‘ “creature[ ] of statute” ’ ” (Quiroz, supra, 244
Cal.App.4th at p. 1379), impairs the court’s ability to resolve a dispute as to a
defendant’s competence or otherwise violates separation of powers principles.
McKneely also asserts that the amended statute requires a court to
accept a certificate of restoration that is “wholly unsupported by facts or
reason.” It is not clear what McKneely has in mind here, because he does not
contend that the 16-page report accompanying the certificate in his case is
“wholly unsupported,” and the trial court has yet to hold a hearing on
whether McKneely has been restored to competency. As we noted, the
director is required by statute to periodically report on the defendant’s
progress toward recovery of mental competence. (§ 1370, subd. (b)(1).) But
even if we assume that a certificate of restoration might be filed without
sufficient supporting documentation, the statute on its face does not require
acceptance of the certificate. The statute only requires that the rejection of a
certificate be based on an expert report supporting the finding that the
defendant is incompetent. (§ 1372(c)(2).)
McKneely also contends that section 1372(c)(2) robs trial courts of the
ability to assess lay testimony at a hearing contesting a certificate of
restoration. We disagree. Nothing in the statute bars lay testimony,
including testimony from defense counsel, at a hearing at which a certificate
of restoration is contested. The statute only prevents the court from relying
solely on non-expert testimony in rejecting a certificate.
11
D. Due Process
McKneely makes two brief arguments that section 1372(c)(2) violates
due process.
First, he claims that by requiring a further evaluation before a court
can reject a certificate of restoration of competence, the amendment to section
1372 violates due process by creating an “unacceptably high risk” that a
defendant will be tried while incompetent. We do not find this persuasive
with respect to McKneely or as a general matter. Here, McKneely received
13 months of treatment from mental health professionals during his
commitment at DSH before the director certified his competence. But in any
case, the statute does not require the trial court to accept the certificate of
restoration, nor does it prevent defense counsel from strenuously urging its
rejection. A defendant still has the right to a hearing as to whether he has
recovered competence, even after DSH has concluded that competence has
been recovered. (§ 1372, subd. (c)(1).) And a defendant has the right to
request a written evaluation by a psychologist or psychiatrist: indeed, the
trial court here was about to order an evaluation until McKneely’s counsel
asked the court not to do so.
Moreover, even if the trial court accepts a certificate of restoration, and
thereby finds that competence has been restored, that is not the end of the
story. Nothing in section 1372(c)(2) prevents the court or defense counsel
from subsequently declaring a doubt as to the defendant’s competence to
stand trial under section 1368. McKneely concedes this point, but contends
that this is not enough to safeguard due process rights because, he says, “the
standard for re-declaring a doubt is higher than that for initially doing so, in
that it requires a substantial change of circumstances or new evidence.” Yet
McKneely is in no different situation from a defendant as to whom a doubt
12
was declared under section 1368 and who was found by a court or jury to be
mentally competent under section 1369. Once a “defendant is found
competent to stand trial, a trial court may rely on that finding unless the
court ‘ “is presented with a substantial change of circumstances or with new
evidence” casting a serious doubt on the validity of that finding.’ ” (People v.
Rodas (2018) 6 Cal.5th 219, 231.) We fail to see how a defendant’s rights are
compromised by a rule that allows a finding of competence to stand absent a
change of circumstances or new evidence.
McKneely’s second argument is that the amended statute
unconstitutionally prolongs the amount of time a defendant who is
incompetent to stand trial is committed, because the appointment of an
expert to contest the certificate and the production of a report “often takes
months to complete.” The argument is speculative. It also ignores the
requirement that a defendant must be released once he has served the
maximum term of commitment, which is two years.5 (§ 1370, subd. (c)(1); see
Jackson v. Superior Court (2017) 4 Cal.5th 96, 105 [maximum term of
commitment in § 1370, subd. (c), “protect[s] defendants’ due process and
equal protection rights not to be committed solely because of incompetence
for longer than is reasonable”]; see also Taitano, supra, 13 Cal.App.5th at p.
5 There is conflicting authority as to whether the time after a
certificate of restoration has been issued but before the trial court has
accepted or rejected it counts toward the maximum commitment period. (See
Rodriguez v. Superior Court (2021) 70 Cal.App.5th 628, 654, review granted
Jan. 5, 2022, S272129 [commitment terminates upon issuance of certificate of
restoration, so time after the certificate has been issued does not count
toward the maximum commitment period]; People v. Carr (2021) 59
Cal.App.5th 1136, 1142-1143 [time between certification of restoration of
competency and trial court determination as to competence under § 1372
counts toward the maximum commitment period].) This issue is not before
us here.
13
252 [defendant who has served the maximum term of commitment must be
released].)
E. Public Policy
McKneely argues that as amended, section 1372 is contrary to public
policy. He states that for years, the Department has experienced bed
shortages that cause delays in transporting defendants to the state hospital;
that “[c]ourts have routinely sanctioned [the Department] and ordered it to
more timely place . . . defendants, to no avail.” McKneely further contends
that the amendment “creates a perverse incentive for [the Department] to
issue ‘sham’ restoration certificates to free up beds for new placements and
thereby avoid further litigation.” He argues that the requirement to obtain a
further evaluation before rejecting a certificate is expensive and burdensome,
particularly in a case like his, where McKneely’s counsel submitted a
declaration that the parties would previously have agreed was sufficient
evidence for the court to consider in determining whether to accept or reject
the certificate. He argues that the requirement for further evaluations
drains public funds, and requires drawing from an overburdened pool of
court-appointed alienists. And he points out that the legislative history of
Senate Bill No. 184, which amended section 1372, does not explain why an
additional expert evaluation is now required before a certificate of restoration
can be rejected.6
6The amendment to section 1372, subdivision (c), was enacted as part
of an omnibus health trailer bill. (Senate Rules Com., Off. of Sen. Floor
Analyses, Rep. on Sen. Bill No. 184 (2021-2022 Reg. Sess.) as amended June
29, 2022, pp. 1-31 [listing 222 numbered “statutory revisions affecting health
programs necessary to implement the Budget Act of 2022”].) Neither the
Legislative Counsel’s Digest in Senate Bill No. 184, as enacted, nor the
Senate Third Reading Analysis, nor Senate Rules Committee report, discuss
the amendment to section 1372, subdivision (c).
14
The People respond that the Legislature has addressed concerns about
a potential shortage of examiners by allowing the court to relax the statutory
appointment guidelines if “there is no reasonably available expert.”7 (§ 1369,
subd. (h)(2).) And the People point out that there are many considerations to
be balanced in competency matters: “the right of a defendant not to remain
in a treatment facility longer than the statutory maximum; the right of the
defendant not to be tried if incompetent; the interest in prosecuting a
competent individual for charged crimes; the state interest in public safety;
and the appropriate division of responsibility between the treatment facility
and the court, among others.” (Taitano, supra, 13 Cal.App.5th at p. 256.)
In his petition, McKneely identifies policy considerations that might
support a different approach from the one enacted by the Legislature in
section 1372, subdivision (c). But “our role as a court is not to ‘ “sit in
judgment of the Legislature’s wisdom in balancing such competing public
policies. [Citation.]’” ’ [Citation.] Instead, ‘due respect for the power of the
Legislature and for the separation of powers’ requires us to ‘follow the public
policy choices actually discernible from the Legislature’s statutory
enactments.’ ” (Los Angeles County Metropolitan Transportation Authority v.
Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1113-1114.) In
reviewing statutes enacted by the Legislature, it is not the function of the
judiciary “to evaluate the wisdom of the policies embodied in such legislation;
7Section 1369, subdivision (h)(2), states: “When making an
appointment pursuant to this section, the court shall appoint an expert who
meets the guidelines established in accordance with this subdivision or an
expert with equivalent experience and skills. If there is no reasonably
available expert who meets the guidelines or who has equivalent experience
and skills, the court may appoint an expert who does not meet the
guidelines.”
15
absent a constitutional prohibition, the choice among competing policy
considerations in enacting laws is a legislative function.” (Superior Court v.
County of Mendocino (1996) 13 Cal.4th 45, 53.) McKneely has not shown that
section 1372, subdivision (c), as amended, is unconstitutional, and it is not
our role to invalidate the amendment based on McKneely’s view of what
constitutes wise public policy.
DISPOSITION
The petition for writ of prohibition is denied. Our decision is final as to
this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).
16
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A166307, McKneely v. Superior Court
17
Court: Contra Costa County Superior Court
Trial Judge: Hon. Laurel Brady
Ellen McDonnell, Contra Costa County Public Defender; Lauren Askeland,
Diana Garrido, Deputy Public Defenders, for Petitioner
No appearance by Respondent
Diana Becton, Contra Costa County District Attorney; Kristina McCosker,
Caleb William Webster, Deputy District Attorneys, for Real Party in Interest
A166307, McKneely v. Superior Court
18