As the reader of this article may be aware, there is a situation (actually it happens quite frequently in misdemeanor cases) where a case is dismissed under Penal Code § 1382 because defendant has served more time than the maximum punishment.
This sometimes takes place because defendant does not post bail and then there are delays in the case such that 45 days passes from the date that defendant is remanded and defendant does not waive time for trial. The case can then be dismissed and defendant released under Penal Code § 1382(a)(3).
Alternative, if the crime has a maximum punishment of 180 days, defendant may serve the 180 days with Penal Code § 4019 credits before the case being set for trial. Defense counsel can then ask the judge to release defendant under Penal Code § 1382, “dismissal for want of prosecution.”
This frequently takes place when the proceedings are suspended after defense counsel “declares a doubt” under Penal Code § 1368 to further determine the mental competency of defendant. Ninety days can easily pass when defense counsel is waiting for a court-approved psychiatrist to evaluate defendant’s mental competency.
When such time has passed, defense counsel should or will ask the judge to dismiss the case because defendant has already served the maximum sentence in custody.
The prosecution may respond that due to defendant’s violent nature and the fact that he or she was not found competent to stand trial, it requests that the judge order defendant remain in custody until defendant can be made subject to a Murphy conservatorship.
What is a Murphy conservatorship? A Murphy conservatorship is provided for under the Lanterman-Petris-Short Act (LPS Act) at Welfare & Institutions Code § 5000, et seq. It can be established for an individual who has been found mentally incompetent under Penal Code § 1370 under any four of the following criteria:
- The complaint, indictment, or information pending against the person at the time of the commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person;
- There has been a finding of probable cause on a complaint pursuant to paragraph 20 of subdivision (a) of Section 1368.1 of the Penal Code, a preliminary examination pursuant to Section 859b of the Penal Code, or a grand jury indictment, and the complaint indictment, or information has not been dismissed;
- As a result of a mental health disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner; and / or
- The person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder (i.e. domestic violence under Penal Code § 273.5, stalking under Penal Code § 646.9, violation of a protective order under Penal Code § 166, etc.).
Once the judge agrees that a Murphy conservatorship should be considered, a representative of the Office of the Public Guardian is contacted to complete a conservatorship evaluation report under Welfare & Institutions Code §§ 5008(h)(1)(B) and 5330-5368, et seq., to determine if a conservatorship is appropriate and whether defendant would be better served is placed within a mental health facility.
The LPS act authorizes the “appointment of a conservator for up to one year for a person determined to be gravely disabled as a result of a mental disorder and unable or unwilling to accept voluntary treatment.” Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009.
The Murphy conservatorship was established “to address the difficult problem of integrating and resolving the conflicting concerns of protecting society from dangerous individuals who are not subject to criminal prosecution, preserving a libertarian policy regarding the indefinite commitment of mentally incompetent individuals who have yet to be convicted of criminal conduct, and safeguarding the freedom of incompetent criminal defendants who present no threat to the public.” People v. Sheirik (1991) 229 Cal.App.3d 444, 456.
The district attorney shall present allegations that the person is gravely disabled in any court proceeding, unless the board of supervisors has delegated such duty to county counsel. Welf. & Inst. Code, § 5114. The person for whom the conservatorship is sought has the right to a jury trial on the issue of whether the person is gravely disabled. Welf. & Inst. Code § 5350, subd. (d)(1).
In such a trial, the burden of proof is beyond a reasonable doubt. Conservatorship of Hofferber (1980) 28 Cal.3d 161, 178. As one can imagine, this turns into an expert witness trial, so to speak. The Murphy conservatorship expires after one year and the conservator may petition for reappointment for a succeeding one-year period. Welf. & Inst. Code, § 5361.