Filed 1/9/20 P. v. Howell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE EARL HOWELL, JR.,

Defendant and Appellant.

F075026

(Super. Ct. No. F16902972)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.† Jonathan Conklin, Judge.††

Jake Stebner, under appointment by the Court of Appeal, Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Ronnie Earl Howell, Jr., was found not guilty by reason of insanity to one count of carjacking. Howell contends the trial court improperly ordered he be committed to Atascadero State Hospital pursuant to Penal Code section 1601, subdivision (a) (1601(a)), which limits an insanity acquittee’s ability to be placed or released on outpatient status, because the factual basis for the carjacking offense did not establish he used a weapon or injured the victim, as required under section 1601(a). Respondent contends the record adequately shows Howell was committed under section 1026 and not section 1601(a). We affirm.

STATEMENT OF THE FACTS

On May 10, 2016, the victim was in her car at the cell phone waiting area at the Fresno airport waiting for her husband to contact her to tell her to pick him up. Howell jumped into the backseat of her car, said he had a gun, and told her to drive. The victim started to drive, then saw some officers and started driving toward them. Howell screamed, saying, “Don’t stop, I’ll shoot you and I’ll kill you[.]” The victim stopped driving, covered her head, and asked Howell not to shoot her. At about that time, officers pulled Howell from the back seat of the car. Howell repeatedly threatened to shoot the victim, but she never saw a weapon.

STATEMENT OF THE CASE

A complaint filed May 13, 2016, charged Howell with carjacking (§ 215, subd. (a)), kidnapping (§ 207, subd. (a)), and criminal threats (§ 422). It was further alleged he had suffered two prior strike convictions (§§ 667, 1170.12), two prior serious felony convictions (§ 667, subd. (a)(1)), and four prior prison terms (§ 667.5, subd. (b).) Before Judge Don Penner, Howell entered a plea of not guilty and denied all enhancements and priors.

On September 1, 2016, before Judge Brian Alvarez, Howell changed his not guilty plea to not guilty by reason of insanity (NGI). Judge Alvarez, pursuant to sections 1026 and 1026.2, appointed Dr. Paula J. Willis and Dr. Luis H. Velosa to examine Howell and investigate his mental status. Both Velosa and Willis presented reports concluding that, at the time of the charged offenses, Howell was unable to distinguish right from wrong and was thus legally insane.

On September 14, 2016, Judge Kim Gaab ordered Dr. Stephen Pointkowski to evaluate Howell to determine if he was mentally competent to stand trial, pursuant to section 1368. Following many continuances, Howell was found competent to stand trial on October 28, 2016, and trial was set for December 8, 2016.

On the first day of trial, December 8, 2016, the parties reached the following agreement before Judge Denise Whitehead: In exchange for Howell pleading no contest and NGI to carjacking and submitting on the issue of his sanity on the doctors’ reports, the prosecution would dismiss all other counts and all enhancements. Judge Whitehead explained that in so doing, she would find Howell not guilty of carjacking by reason of insanity. Judge Whitehead then advised Howell as follows:

“What happens then is I refer [the doctors’ reports] to what’s called CONREP for a recommendation on placement, but because this is a strike, you would have to do a minimum of 180 days at the state hospital before you could be considered for placement outside of the state hospital.”

Judge Whitehead went on to explain that, irrespective of the 180-day minimum, Howell would likely remain in the state hospital for at least a year. Defense counsel added that the “hospital usually wants one year before they recommend getting out.” Howell was asked if he understood, and he stated he did.

The parties then stipulated to the preliminary hearing transcript as the factual basis of the plea. Before accepting Howell’s plea, Judge Whitehead asked Howell if he had read, understood, and initialed the plea form, which, under “[o]ther possible consequences,” included the phrase “min 180 hospital.” Howell stated he had and had no questions.

Howell then pleaded no contest to the charge of kidnapping. Judge Whitehead found him guilty of carjacking, as charged, and granted the prosecution’s motion to dismiss the remaining charges and enhancements. Based on the doctors’ reports admitted into evidence by stipulation, the trial court then found Howell legally insane at the time of the carjacking, and thus found him NGI.

As provided under section 1026, Judge Whitehead then referred the matter to the Department of State Hospital’s (DSH) CONREP for a diagnostic evaluation and placement recommendation. CONREP’s Community Program Director subsequently filed a report, “[p]ursuant to … the provisions of …[s]ection 1026(b)” and, as ordered by the trial court, “reviewed and considered the complete available information regarding the circumstances of the criminal offense,” which it described as follows:

“On or about 05/10/2016 Mr. Howell violated Penal Code Section 215(a) Carjacking, Penal Code 207(a), Kidnapping, and Penal Code Section 422, Criminal Threats, when he jumped into a strangers vehicle and ordered the owner to “Drive I got a gun.”

Noting Howell had been found NGI, the report then quoted subdivision (a) of section 1601, as follows:

“‘In the case of any person charged with and found … not guilty by reason of insanity of … carjacking with a deadly or dangerous weapon … or an act which poses a serious bodily harm to another person, outpatient status under this title shall not be available until that person has actually been confined in a state hospital or other facility for 180 days or more after having been committed under the provision of law specified in Section 1600.’”

The report concluded with CONREP’s recommendation that Howell be committed to Atascadero State Hospital “‘in accordance with the policies established by the Department of Mental Health’ (PC 1026(g)).”

At sentencing on January 17, 2017, Judge Jonathan Conklin orally committed Howell to Atascadero State Hospital for a maximum of nine years, after noting that he had reviewed CONREP’s placement recommendation report and found the recommendation appropriate. In compliance with section 1026, a written order of commitment and other related documents were mailed to Atascadero State Hospital on February 3, 2017.

DISCUSSION

Howell’s argument on appeal is that his commitment to the state hospital pursuant to section 1601(a) was unauthorized, as he was found NGI of carjacking on a factual basis that did not establish that he used a weapon or injured the victim. Respondent contends Howell’s argument is without merit as he has failed to establish he was committed under section 1601(a), but was instead properly committed under section 1026.

In order to understand Howell’s argument, we must first address various parts of sections 1026 and 1601.

Section 1026 et seq. sets forth numerous procedural and substantive safeguards before a criminal defendant may be committed to a state hospital or treatment facility pursuant to a plea of not guilty by reason of insanity. Section 1026, subdivision (b) provides, in relevant part, that once a defendant is found not guilty by reason of insanity, unless it appears to the court that the sanity of the defendant has been recovered fully, the court must “order the community program director or a designee to evaluate the defendant and to submit to the court … a written recommendation as to whether the defendant should be placed on outpatient status or committed to the State Department of State Hospitals or other treatment facility.” (§ 1026, subd. (b).) Taking into consideration that placement recommendation, the court “shall direct that the defendant be committed to the State Department of State Hospitals for the care and treatment of persons with mental health disorders or any other appropriate public or private treatment facility approved by the community program director, or the court may order the defendant placed on outpatient status pursuant to Title 15 (commencing with Section 1600) of Part 2.” (§ 1026, subd. (a).)

Thus, as noted above, section 1600 allows the trial court to place the defendant on outpatient status “subject to the procedures and provisions of this title.” But section 1601(a), at issue here, provides, in relevant part, that outpatient status is not available to a person charged with and found NGI of carjacking with a deadly or dangerous weapon or in which the victim suffers great bodily injury “until that person has been actually confined in a state hospital or other treatment facility for 180 days or more after having been committed under the provisions of law specified in Section 1600, unless the court finds a suitable placement, including, but not limited to, an outpatient placement program, that would provide the person with more appropriate mental health treatment and the court finds that the placement would not pose a danger to the health or safety of others, including, but not limited to, the safety of the victim and the victim’s family.” In addition to the presumptive 180-day minimum confinement period, when an insanity acquittee’s placement is subject to 1601(a), he or she is specifically subject to additional requirements for conditional release enumerated in section 1603. (§ 1603.)

Howell contends he should not have been committed under section 1601(a) because he was found NGI on a factual basis that did not establish he used a deadly weapon or injured the victim. Respondent contends Howell has failed to establish the factual premise that he was committed under section 1601(a), and contends instead that he was committed under section 1026. We agree with respondent.

It is true that, at the time Howell changed his plea, Judge Whitehead advised him that he faced a minimum of 180 days in a state hospital (and more likely at least a year) because he committed a strike. In response to a referral from the court, the CONREP submitted a report recommending Howell be committed to Atascadero State Hospital. And, in its referral, CONREP quoted a portion of section 1601(a), which said that, in the case of a person found NGI of carjacking with a deadly or dangerous weapon, or an act which posed serious bodily harm to another, outpatient status was not available until the person had been confined for 180 days or more.

However, at the placement hearing, Judge Conklin presided in Judge Whitehead’s stead, as she was unavailable. Defense counsel asked that placement be done that day. Judge Conklin then made an oral placement order, committing Howell to Atascadero State Hospital in accordance with policies established by the Department of Mental Health under section 1026, subdivision (g) . In doing so, Judge Conklin stated he had reviewed the placement recommendation. No mention was made of section 1601(a), nor did the order require a minimum confinement of 180 days. When asked by the trial court if there were any “requests for finding” beyond that order, Howell’s counsel replied, “No, Your Honor.”

Likewise, the court’s written order stated that Howell was to be committed to the Department of State Hospitals pursuant to section 1026. The order did not refer to section 1601(a) and did not require a minimum confinement of 180 days.

We agree that Howell has not established the factual premise that he was committed to the state hospital under section 1601(a). (People v. Nitschmann (1995) 35 Cal.App.4th 677, 683-684 [defendant has the burden of showing error].) Section 1026, subdivision (a) provides, in relevant part, that if the defendant is found NGI, the court “shall direct that the defendant be committed to the State Department of State Hospitals … or any other appropriate public or private treatment facility … or the court may order the defendant placed on outpatient status.” This provision gave the court the authority to commit Howell to the state hospital and it is clear the court invoked this provision when it did so here.

Because we conclude Howell was properly committed, we forego any discussion by the parties of forfeiture, whether the use of a deadly weapon or injury to a victim was proven, whether Howell received ineffective assistance of counsel, or the need to further clarify the record.

DISPOSITION

The judgment is affirmed.

SMITH, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

DETJEN, J.