People v. Barner

319 Cal.Rptr.3d 272

The PEOPLE, Plaintiff and Respondent,

v.Oscar Deran BARNER, Defendant and Appellant.

C095986

Court of Appeal, Third District.

Filed March 12, 2024

As Modified on Denial of Rehearing March 26, 2024

Certified for Partial Publication.^*

APPEAL from a judgment of the Superior Court of Sacramento County, Alyson L. Lewis, Judge. Affirmed as modified. (Super. Ct. No. 18FE015537)

Barbara A. Smith, 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, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.

EARL, P. J.

A jury found appellant Oscar Deran Barner not guilty by reason of insanity for offenses Barner committed when he repeatedly punched his neighbor, breaking bones in his neighbor’s face. Due to Barner’s status as a "three-strike" offender, the trial court ordered him committed to the State Department of State Hospitals, setting a maximum term of 25 years to life. Barner now raises several statutory and constitutional challenges to the term of his commitment. We shall modify the judgment to reflect a maximum term of commitment for life and order the trial court to issue an amended order of commitment with a new accompanying statement relating to the calculation of the maximum term.

FACTUAL AND PROCEDURAL BACKGROUND

In light of the issues raised in this appeal, it is not necessary to provide a lengthy discussion of the facts supporting the underlying offenses. It suffices to say that for no apparent reason, Barner beat P.S.—a man with cerebral palsy with whom Barner had previously been friendly—into unconsciousness. P.S. described Barner during the incident as "a different person" from the one he knew, and that he "had a blank look in his eyes." P.S. suffered facial and orbital fractures, significant facial swelling, and lacerations. Barner pleaded not guilty and not guilty by reason of insanity. As required by statute, his trial was bifurcated into a guilt phase followed by a sanity phase. (See Pen. Code, § 1026, subd. (a).)¹

A jury found Barner guilty of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count one) and battery by force resulting in serious bodily injury (§ 243, subd. (d); count two). The jury also found true two special allegations: that Barner personally inflicted great bodily injury (§ 12022.7, subd. (a); count one) and serious bodily injury (§ 1192.7, subd. (c)(8); count two). At the sanity phase, Barner introduced evidence that he was diagnosed with schizoaffective disorder, which rendered him insane at the time of the offenses. The jury found Barner not guilty by reason of insanity for both offenses. The court held a separate hearing on the prosecution’s additional allegations that Barner had two prior strike convictions for purposes of the "Three Strikes" law (§ 667, subd. (e)(2)) and allegations that each strike qualified for a five-year enhancement to Barner’s sentence (§ 667, subd. (a)). The trial court found true the allegations of the prior strike convictions.

Subsequently, Barner requested the court strike his prior strikes under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero). He also requested the court strike one or both five-year prior strike enhancements under section 1385. In doing so, defense counsel acknowledged that "It’s clear that if the Court doesn’t strike the strike it’s a 25-to-life case." The court "acknowledge[d] it ha[d] the discretion to strike the strikes in order to take Mr. Barner out of indetermi- nate sentencing into determinate sentencing," but ultimately declined to do so. The court calculated an indeterminate maximum term of commitment of 25 years to life on count one. The court struck one of the five-year enhancements pursuant to sections 667 and 1385, calculating only one five-year enhancement. The court ordered Barner committed to the State Department of State Hospitals for a maximum term of 25 year’s to life on count one, plus five years for the section 667 enhancement. Although earlier in the proceeding the court referenced staying count two, the battery, it did not mention count two when pronouncing the order of commitment. The minute order associated with that hearing indicates count two is "stayed pending restoration to competency." The order of commitment states the maximum term of 25 years to life.

DISCUSSION

I State Hospital Commitment

Barner raises several challenges to his state hospital commitment. He maintains the trial court erred in holding a sentencing hearing, rather than a hearing to calculate his term of commitment. He further claims the court erred in applying the Three Strikes law to set an indeterminate life term ("life-top" term) as the maximum term of commitment, because the statute requires the court to use the upper term for the base offense in calculating the commitment term. We disagree.

A. Legal Background

[1–3] An insanity finding that follows a determination (by verdict or plea) that the accused committed the criminal act charged establishes the accused was not criminally responsible for the offense committed. (In re Moye (1978) 22 Cal.3d 457, 466, 149 Cal.Rptr. 491, 584 P.2d 1097, superseded by statute as stated in Hudec v. Superior Court (2015) 60 Cal.4th 815, 822, 181 Cal.Rptr.3d 748, 339 P.3d 998.) Therefore, a finding of not guilty by reason of insanity does not result in a conviction. (People v. Morrison (1984) 162 Cal.App.3d 995, 998, 208 Cal.Rptr. 800; People v. Superior Court (Frezier) (2020) 54 Cal. App.5th 652, 668, 269 Cal.Rptr.3d 112.) When a criminal defendant is found not guilty by reason of insanity, that person "is no longer a criminal defendant, but a person subject to civil commitment." (People v. Lara (2010) 48 Cal.4th 216, 222, fn. 5, 106 Cal.Rptr.3d 208, 226 P.3d 322 (Lara).) If, as here, the sanity of the defendant has not yet been recovered at the time of the verdict, the court directs that the defendant either be committed to the State Department of State Hospitals or placed on outpatient status. (§ 1026, subd. (b).)

[4] "The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous." (Jones v. United States (1983) 463 U.S. 354, 368, 103 S.Ct. 3043, 77 L.Ed.2d 694 (Jones).) Upon a commitment to a state hospital, the medical director of the facility submits semiannual reports to the court as to the person’s status and progress. (§ 1026, subd. (f); see People v. Sword (1994) 29 Cal.App.4th 614, 620, 34 Cal.Rptr.2d 810.) "Release is possible at any time following a mandatory, 180-day commitment period (§ 1026.2, subd. (d)) if the defendant demonstrates his fitness for release, first by successfully completing one year under supervision in a community mental health program and then in a sanity-restoration trial. (§ 1026.2. subd. (e).)" (People v. Tilbury (1991) 54 Cal.3d 56, 63, 284 Cal.Rptr. 288, 813 P.2d 1318.) Thus, a committed insanity acquittee is not always confined for the maximum term.

On the other hand, the commitment may be extended in up to two-year increments if, because "of a mental disease, defect, or disorder, [the person] represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1); see § 1026.5, subd. (b)(8).)

In committing an insanity acquittee, the relevant statute provides: "[T]he court shall state in the commitment order the maximum term of commitment, and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in this section. For the purposes of this 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 …." (§ 1026.5, subd. (a)(1).)

[5, 6] Whether the trial court had discretion to make certain sentencing choices in calculating a maximum term of commitment presents a question of law, requiring this court to ascertain the proper interpretation of the statutes governing the maximum term of commitment after being found not guilty by reason of insanity. (See People v. Superior Court (Frezier), supra, 54 Cal.App.5th at p. 659, 269 Cal.Rptr.3d 112; see also People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [legal error resulting in an unauthorized sentence subject to de novo review commonly occurs where the court violates mandatory provisions governing the length of confinement].) Similarly, whether the Three Strikes law applies in setting a maximum term of commitment under section 1026.5 involves a question of statutory construction, which we review de novo. (People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148.)

[7–9] "When interpreting a statute our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218; see also People v. Rubalcava (2000) 23 Cal.4th 322, 328, 96 Cal.Rptr.2d 735, 1 P.3d 52.) " ‘[W]e are bound to give effect to a statute according to the usual and ordinary import of those words. [Citation.] We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ " (...