1

Filed 8/5/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

DURANTE OMAR CALLOWAY , Petitioner
,
v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY , Respondent; THE PEOPLE, Real Party in Interest. A142854
(Contra Costa County Sup . Ct. Nos. 5

- 060823

- 2 and 2

- 288030

- 0 )

While facing felony charges related to a July 2005 home

- invasion robbery,

p etitioner Durante Omar Calloway (Calloway) was found incompetent to stand trial in
June 2006 pursuant to Penal Code section 1368

. 1 After years of confinement under Penal
Code section 1370.1

— in which attempts t o restore him to competenc y proved
unsuccessful

— and two one

- year civil commitmen ts authoriz ed by sectio n 6500 of the
Welfare and Institutions Code (Section 6500) , Calloway was no longer subject to
confinement as of May 2011

. His criminal matter (the 2005 case) , however, remained pending. Thereafter, i n December 2011, Calloway was charged with an additional

1 All statutory references are to the Penal Code unless otherwise indicated. In accordance with section 1368, “[i]f, during the pendency of an action and prior to judgment, . . . a doub t arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record” and shall begin a statutorily delineated process for determining the present mental competence of the defendant. (§§ 1368, 1368 .1, 1369.) If a defendant is found mentally incompetent, all criminal proceedings are suspended until he or she becomes competent. (§§ 1370, subd. (a)(1)(B), 1370.1, subd. (a)(1)(B).)2

offense (the 2011 case) , and, in February 2014, a jury found him compete nt t o stand trial
in that action

. The Contra Costa District Attorney (the People) then mov ed to reinstate proceedings in the 2005 case based on Ca lloway’s restoration to competen ce. After t he
trial court indicated that it would hold a jury trial on the question of Calloway’s current competence pursuant to subdiv ision (b)(2) of section 1370.1
, Calloway filed the instant writ petition challenging the trial court’s authority to do so. Specific ally, Calloway contends that, at this point, the issue of his competence to stand trial in the 2005 case can only be reconsidered if the trial court receives a certificate of restoration from one of the
officials delineated in section 1372. This litigat ion thus involves the appropriate vehicle for reconsidering a defendant’s mental competence when that defendant has been released from confinement, but the underlyin g criminal charges have not been dismissed. W e agree with Calloway that competency pr oceed ings pursuant to subdivision (b)(2) of section 1370.1 are inapp r o priate at this juncture in the 2005 case

. However, we further conclude that , under appropriate circumstances
, the current com petency of an individual in Calloway’s
situation may properly be tested under the authority of section 1368 , itself, without the
need for a certificate of restoration

. I. BACKGROUND On August 3, 2005, the People filed a complaint charging Calloway with multiple felonies, including : attempted murder (§§ 187, 664); a ssau lt with a firearm (§ 245,
subd. (a)(2)); first degree residential robbery ( §§ 211, 212.5, subd. (a)); first degree residential burglary (§§ 459, 460, subd. (a)); attempted second degree robbery (§§ 211,
21 2.5, subd. (c), 664); unlawful driving or takin g of a vehicle (Veh. Code, § 10851,
subd. (a)); receiving stolen property

— motor vehicle (§ 496d); and criminal threats (§ 422)

. In addition, Calloway wa s charged with numerous firearm enhancements. According to the People, these crimes carry a maxim um se ntence of 30 years to life

. Although no trial, or even a preliminary hearing
, has ever been held in the 2005

case , the People allege the following in support of the charges filed : On July 28, 2005,3

Calloway and another individual (Stone) committed an a rmed home

- invasion robbery, looking for money and drugs. Both Calloway and Stone used handguns during the robbery, and, at one point, Calloway fired a shot into the ceiling to impress upon the residents being robbed the seriousness of the situation. Ulti mately, Calloway and Stone fled after a friend of the residents intervened. As they were leaving, Stone fired a shot
, striking one of the residents. Calloway was arrested a few days later and reportedly gave a “full and frank” confession.
Once the mat ter proceeded to court, Calloway pled not gu i l ty and denied all of the enhancements. His attorney, however, expressed doubt as to Calloway’s competence, and thus the trial court suspended th e proceedings and appointed Dr. Carolyn Beebe Walser (Dr. Walser) to evaluate Calloway pursuant to section s 1368 and 1369

. In her
Jun e 2006 report to the court, Dr. Wa l s er indicated that Calloway (then 20 years old) had extremely low intelligence and severely impaired memory. He was removed from his mother at an early age due to her drug abuse and initially placed with a foster mother who physically abused him. Thereafter, he was moved to a more successful fos ter placement until he was returned to his mother’s care when he was approximately 12 years old. Reportedly, Calloway started using drugs at this time, spent time on the streets, and resided primarily with his girlfriend’s family. His girlfriend assisted him with many of the activities of daily living, and Calloway was “significantly dependent” on her. Calloway dropped out of school, where he was a special education student, in the 10th grade. At that time
, he started “ ‘hustling,’ ” selling drugs and using daily. His drugs of
choice included cocaine
, ecstasy , marijuana, and alcohol

. As a teenager, he was in and out of juvenile hall , on cha rge s including multiple robberies

. Dr. Walser’s evaluation revealed Calloway to be in the mild mental retardation range. He showed severe impairment in abstract thinking and reasoning, visual spatial functioning, sequenc ing, and language

. Testing spe cific to t rial competency determin ed that Calloway was incompetent to assist his attorney in his own defense. Moreover, his cognitive deficits render ed him impulsive, and he reported that he “went along” with
Stone who took him to the scene of the 2005 home

- invasion robbery and handed him the4

gun. Dr. Wa l s er concluded that , not only was Calloway incompetent to stand trial, but he was also “generally incompetent to take care of himself adequately.” On June 30, 2006

— after th e parties agreed to submit the matter on Dr. Walser’s report

— the trial court found Calloway both developmentally disabled and incompetent to
stand trial. 2 The matter was referred to the East B ay Regional Center, and, over 16
months later in November 2007, Calloway was admitted to the Porterville Developmental Center ( the PDC) pursuant to section 1370.1, the statute which govern s attempts to restore competency when a defendant is both mentally incompetent and developmentally disabled. (See §§ 1367, subd. ( b), 1370.1.) In accordance with that statute, the PDC apparently made 90

- day and 150

- day reports to the trial court with respect to Calloway’s progress towards competency

. Although the se reports are not included in the record, the parties agree that they indicated that Calloway remained incompetent, but did not state that he was unlikely to recover mental competence in the foreseeable future. (See § 1370.1, subd. (b)(1).) Section 1370.1 also requires that an 18

- month competency hearing be held for any d efendant who has been committed for 18 months and is still hospitalized. (See § 1370.1, subd. (b)(2).) However, n o 18

- month hearing was held in this case. Rather, in June 2009

— approximately th ree years after the trial court’ s i nitial finding of incomp etency

— the Tulare County District Attorney filed a petition seeking civil commitment of Calloway as a danger to himself or others within the meaning of
section 6500

. 3 On June 18, 2009, the Tulare County Superior Court granted the petition
,

2 A person is deemed developmentally disabled under the incompetenc y statutes if that person has “ a disa bility that originates before [the] individual attains 18 years of age, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual .” (§1370.1, subd. (a)(1)(H).) T he term include s “ intellectual disability, cerebral palsy, epil epsy, and autism,” as well as “ handicapping conditions found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectu al disability .” ( Ibid. ) It does not encompass

“ other handicapping conditions that are solely physical in nature. ” ( Ibid. )

3 Section 6500 provides that a person with a developmental disability may be civilly committed to the State Department of Developme ntal Services for residential placement if found to be a danger to himself, herself, or others. (Welf. & Inst. Code, § 6500,5

commi t ting Call oway for the statutorily permitted one

- year term

. (See Welf. & Inst. Code, § 6500, subd. (b)(1)(A).) He remained at the PDC. The Tulare County District Attorney filed a subs e quent petition with respect to Calloway in May 2010 pursuant to
Section 6500. This petition was granted on May 27, 2010, extending Calloway’s Section 6500 commitment through May 2011. In the meantime, the trial court , on June 22, 2009, had ordered the PDC to submit a report regarding, among other things, the status of the Tulare County proceedings and Calloway’s prospects for achieving competency. In July 2009 and September 2009 reports, PDC staff indicated that Calloway had been unable to achieve trial competency prior to the expiration of his section 1370.1 commitment in July 2 009. Further, because “[h]is limited cognitive functioning may impair his ability to retain information consistently, ” the September 2009 PDC report concluded that it wa s “ unlikely ” that Calloway would become competent. 4 The report also indicated that Ca lloway had been successfully civilly committed by Tulare County as of June 2009. In August 2010, the PDC requested that the court discontinue Calloway’s competency training as he was no longer committed pur s u a nt to section 1370.1 and
, although he contin ued to attend the weekly classes, he had still not achieved trial competency. The trial court , without objection, ordered the discontinuance of Calloway’s competency training in September 2010. In November 2010, Calloway was transferred
to a communit y pl acement through the East Bay Regional Center, appare ntly in
connection with the settlement of a civil lawsuit addressing the care, representation, and community placement of developmental center residents such as Calloway. Under this

subd. (b).) For purposes of this statute, an individual is deemed to be dangerous to self or others if found incompetent to stand trial after having been charged with certain enumerated offenses, including, as is relevant for our purposes, robbery perpetrated by a person armed with a dangerous or deadly weapon or first degree residential burglary. ( Id. , subd. (a).)

4 Calloway was “returned to the committing court” on September 18, 2009, in connection with the reports on his mental competence issued by the PDC. (See § 1370.1, subds. (b)(1) & (c).)6

new placement , a case worker was reportedly assigned to live with Calloway for eight hours each day in a local apartment. As mentioned above, Calloway’s civil commitment pursuant to Section 6500 subsequently expired in May 2011 . It was not renewed. Thereafter, in December 2011, Calloway was charged with several offenses
relat ed to illegal possession of a fi rearm based on the October 28, 2011, discovery of a loaded gun in the vehicle in which he was riding with hi s caseworker

. Calloway was picked up on a warrant with respec t to these charges and placed in custody in Sept ember 2012. After his attorney expressed doubt as to his trial competency, proceedings in this 2011 case were suspended and Calloway was referred for evaluation as to his present competency

. Subsequently, t hree different mental health professionals, including Dr.
Wa l s er, opined that Calloway was incompet ent to stand trial in connection with the 2011

case

. In fact, at the February 2014 competency trial, Dr. Walser testified that Calloway
was in the bottom on e percent of the population in terms of memory and could not grasp abstract concepts or formulate falsehoods. Both she and another doctor indicated that Calloway suffere d from a condition that grew neither worse nor better with time. Dr.
Wal s er felt “ ‘v ery strongly’ ” that Calloway was incompetent. Nevertheless

— after reviewing Ca l loway’s videotaped confession in the 2005 case and hearing testimony
from the 2005 investigati ng officer and Calloway’s floor deputy at the local jail

— a jury
found Calloway com petent to stand trial in the 2011 case

. 5

A f ter the finding of competency was made in the 2011 case, the court set a trial
date in the 2005 case. In response, Calloway filed a March 2014 motion to vacate the
trial date and dismiss the 2005 case in furthe rance of justice and in accordance with his federal and state speedy trial rights. (See § § 1370.1, subds. (c) & (d), 1385 ; see U.S. Const., 6th Amend.; Cal. Const., art. I, § 15 .) T he People opposed Call oway’s motion
and submitted their own pleading in A pril 2014
, requesting that criminal proceedings with respect to the 2005 case be formally reinstated bas ed on the jury’s recent competency verdict in the 2011 case

. Calloway countered that the court was without

5 These charges, however, were dismissed soon thereafter in May 2014.7

jurisdiction to reinstate criminal proceedi ngs in the 2005 case by motion of the

prose cution. At a hearing on May 7, 2014, the trial court concluded that it would set a date for a jury trial on Calloway’s current competency in the 2005 case, subject to Calloway’s right to file a motion challenging its authority to do so. 6 Thereafter, on June 4, 2014, Calloway filed a motion to vacate the jury trial date
and obtain his release from custody

. Specifically, Calloway argued that the only way to bring the issue of his competency back before the trial court in the 2005 case was through receipt by that court of a certificate of restoration issued by a designated official in
accordance with section 1372. 7 Since no such cer tificate had been issued in the case, Calloway maintained that further proceedings regarding his cu rrent mental competence were not authorized

. Calloway additionally assert ed that, should the trial court reject his argument and hold a hearing wit h respect to his restoration of competenc y , there wa s no right t o a jury trial in such a pr oceeding

. Finally, Calloway claim ed that he should be released from custody because he was no longer subject to confinement under the incompetency statutes. T he People, in contrast, maintained that the court could now hold

6 The court also rejected the People’s argument that the jury’s finding of competency in the 2011 case should be given collateral estoppel effect in the 2005 case, thereby obviating the need for an independent determination of competency in this matter. The People h ave not challenged this conclusion and we do not consider it here.

7 Section 1372 provides in relevant part that “[i]f the medical director of the state hospital or other facility to which the defendant is committed, or the community program director,

coun ty mental health director, or regional center director providing outpatient services, determines that the defendant has regained mental competence, the director shall immediately certify that fact to the court by filing a certificate of restoration with th e court by certified mail, return receipt requested.” (§ 1372, subd. (a)(1).) In addition, according to the statute, “[i]f the defendant becomes mentally competent after a conservatorship has been established pursuant to the applicable provisions of the Lanterman

- Petris

- Short Act, Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code [hereafter LPS Act] , and Section 1370, the conservator shall certify that fact to the sheriff and district attorney of th e county in which the defendant’s case is pending, defendant’ s attorney of record, and the committing court.” (§ 1372, subd. (b).)8

the 1 8

- month competency hearing that was never completed in the 2005 case in order to
determine Call oway’s current comp e tency in the matter.
O n Ju ly 2, 2014, after several hearing s , the trial court concluded that

— under the plain language of se ction 1370, s ubdivision (b)(2)

— the People were entitled to an 18

- month hearing on Calloway’s current competence to stand trial in the 2005 case

. Further, pursuant to t hat statute, such a hearing is held in accordance with section 1369, and thus a jury trial was permitted. 8 In reaching this conc lusion, however, t he t rial court indicated
it s dissatisfaction with the existing statutory structure, stating: “ To me, it is confusing and unclear the state of the statute. And both counsel have done briefings and supplemental briefings to shed any light either on reported decisions, unreported decisions, or statutory legislative histories. And nothing, in my view, sheds any light on the current circumstances that we’re in.” Indeed, after issuing its decision, the court acknowledged that Calloway’s coun sel would likely be testing the correctness of its ruling at the appellate level and indicated its agreement with that cou r se of action, asserting: “Well, I’d be happy for the [appellate court] to shed some light on what they think the procedures are. I couldn’t really figure it out.” Thereafter, Calloway did file a writ petition in this court on September 4, 2014, arguing that use of the 18

- month review procedure authori zed by section 1370.1, subdivision (b)(2), to test his present competency was inapp ropriate and that, in any event, a jury trial on the matter would be improper . After requesting and receiving opposition, we summarily denied the petition on November 20, 2014. Calloway then filed a petition for review, which was granted by the Su preme C ourt on January 21, 201 5

. In its order, the Supreme Court transferred the matter back to this court with directions to

vacate our earlier order and issue a new order directing the superior court to show cause

8 Although the court referenced subdivision (b)(2) of section 1370 , it appears to have meant section 1370.1, as that is the applicable statu te in the present proceedings and subdivision (b)(2) of that statute contains the provision related to18

- month competency hearings. (See § 1370.1, subd. (b)(2).) Essentially identical language is contained in section 1370, subdivision (b)(4).9

why the relief sought in Calloway’s writ petit ion should not be granted. We did so on January 27, 2015, and thus now reach the merits of Calloway’s claims. 9

I I. D ISCUSSION
A. The Incompetency Statutes A defendant is incompetent to stand trial if, “as a result of mental disorder or developmental di sability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).) Trial of an incompetent defendant violates both state and federal due

proc ess guarantees. ( People v. Smith (2003) 110 Cal.App.4th 492, 499; see U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) Thus, “[a] person cannot be tried or adjudged to punishment

. . . while that person is mentally incompetent. ” (§ 1367, subd. (a). ) Rather, as mentioned above, pursuant to section 1368, whenever, during the pendency of a criminal proceeding and prior to judgment, “a doubt arises in the mind of the judge as to the mental competence of the defendant,” the court shall inquire of
defen se counsel as to the status of the defendant

. ( § 1368, subd. (a) .) I f defense counsel believes that the defendant may be incompetent, the court “shall order” a hearing to determine the defendant’s competency. ( Id. , subd. (b) .) E ven if defense counsel b elieves the defendant to be competent , h owever, t he trial court still has the discretion to order a competency hearing. ( I

bi d .)

9 Given th e length of time Calloway has already been confined in connection with this matter; the possibility that he could be inappropriately subjected to both a jury trial on his present competency and a criminal trial on the underlying charges before review on ap peal becomes available; the discrete nature of the question presented, which is unlikely to be addressed or corrected during a competency hearing or criminal trial; and the lack of published decisional guidance available on this important issue, we conclud e (as the Supreme Court at least implicitly determined) that Calloway has no plain, speedy, or adequate remedy by appeal in this case. (See People v. Mickle (1991) 54 Cal.3d 140, 180 [competency verdict is interlocutory and appealable only from a final ju dgment in the underlying criminal proceeding]; Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 128

- 129 [listing nonexclusive factors to be considered in determining propriety of writ relief].) Thus , writ review is appropriate.10

Once the question of a defendant’s competency is set for hearing, all proceed ings
in the criminal matter are generally suspe nded until competency is determined. (§ § 1368, subd. (c) , 1368.1.) In accordance with section 1369, such a competency determination is
made either b y the trial court or by a jury after the court appoints appropriate experts to
examine the defendant with respect to his or her mental competence

. (§ 1369, subd. (a).) In addition, if it is suspected that the defend ant is developmentally disabled, the trial

court must also appoint a representative of the local regional center to evaluate the
defendant. ( Ibi d .)
At any competency hearing held pursuant to section 1369, “ [ i ] t shall be presumed that the defendant is mentally competent unless it is pro ved by a preponderance of the
evid e n ce that the defendant is mentally inco m petent.” (§ 1369, subd. (f).) If t he defendant is found competent, criminal proceedings are resumed. ( § § 1370,
subd. (a)(1)(A) , 1370.1, subd. (a)(1)(A) .) If , however, the defendant is found incompetent, criminal proceedings remain suspended until the defendant regains competency, and the defendant is sent for evaluation and treatment. ( § § 1370,
subd. (a)(1)(B) , 1370, subd. (a)(1)(B) .)
W here, as here, a criminal defendant is found to be both mentally incompetent and developmentally disabled, that defendant is committed for treatment desi gned to promote
restoration of his or her competency in accordance with the detailed serie s of statutory requirements set forth in section s 1370.1

. 10 These provisions were put in place to implement the California Supreme Court’s decision in In re Davis (19 73) 8 Cal.3d 798 ( Davis ), which in turn was a response to the holding of the United States Supreme Court
in Jackson v. Indiana (1972) 406 U.S. 715 ( Jackson ). (See In re Polk (1999) 71 Cal.App.4th 1230, 1235

- 1238 ( Polk ); In re Newmann (1976) 65 Cal.App.3d 57, 61

- 65 .) In short, both Davis and Jackson stand for the proposition that

— in order to avoid offending constitutional principles of equal protection and due process

— “no person

10 A similar

— but not identi cal

— statute, section 1370, applies generally when a person charged with a felony is found mentally incompetent. (§ 1367, subd. (b).) Throughout this analysis, we will reference both statutory schemes where relevant.11

charged with a criminal offense and committed to a state hospital solely on ac count of his incapacity to proceed to trial may be so confined more than a reasonable period of time necessary to determine whether there is a substantial likelihood that he will recover that capacity in the foreseeable future.” ( Davis , supra, 8 Cal.3d at p. 801.) “Unless such a showing of probable recovery is made within this period, [a] defendant must either be released or recommitted under alternative commitment procedures. ” ( Ibid. )
I n order to avoid the indefinite confinement of incompetent defendan ts condemned by both Jackson and Davis , the trial court

— pursuant to section 1370.1

— must first request and consider the placement recommendation made by a representative of the regional center af

ter evaluation of a defendant found incompetent to stand trial

. (§ 1370.1, subd s . (a)(1)(B)(i) & (a)(2) .) Next, “[w]ithin 90 days of admission of a person committed pursuant to subdivision (a) [of section 1370.1],” a designated representative of the facility to which the defendant is committed must make a report to the trial court and the regional center representative “regarding the defendant’s progress toward becoming mentally competent.” (§ 1370.1, subd. (b)(1).) If this report discloses a “substantial
likelihood the defendant will become mentally competent wit hin the next 90 days,” the trial court may continue the defendant’s commitment for that additional period of time. ( Ibid. ) A similar report describing the defendant’s progress toward becoming mentally competent must be made within 150 days of admission. ( Ibid. )
In addition to these 90

- day and 150

- day reports, section 1370.1 details a number
of differe nt ways in which the issue of a defendant’s competency can be brought back
before the trial court. For instance, “[u]pon becoming competent, the court s hall order that the defendant be returned to the committing court pursuant to the procedures set forth in paragraph (2) of subdivision (a) of Section 1372 or by another person designated by
the court .” (§ 1370.1, subd. (a)(1)(C) (subdivision (a)(1)(C)) .) Moreover , if a 90

- day or
150

- day report indicates that “there is no substantial likelihood that the defendant has become mentally competent, the committing court shall order the defendant to be returned to the court” so that civil commitment proceedings may be considered for the12

defendant. 11 ( Id., subd. (b)(1).) Further, “[a] defendant who has been committed or has been on outpatient status for 18 months, and is still hospitalized or on outpatient status, shall be returned to the committing court” for an other competency hearing pursuant to
section 1369. (§ 1370.1 , subd. (b)(2).) In addition , “[i]f it is determined by the court that no treatment for the defendant’ s mental impairment is being conducted, the defendant shall be returned to the committing co urt.” ( Id. , subd. (b)(3).) Finally, no commitment to promote restorati o n of competency pursuant to section 1370.1 can last for longer than three years. (§ 1370.1, subd

. (c) (1) .) Thus, “[a] t the end of three years from the date of commitment or a peri od of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, or the maximum term of imprisonment provided by law for a violation of probation or ma ndatory supervision, whichever is shorter, a defendant who has not become mentally competent shall be returned to the committing court.” ( Id ., subd. (c)(1)(A).) At this point, the trial court
considers whether the defe ndant may be subject to co mmitment u nder the LPS Act or pursuant to Section 6500

. If these civil commitment provisions are found inapplicable, however, the defendant “shall not be subject to further confinement pursuant to [the incompetency statutes] and the criminal action remains subject to dismissal pursuant to Section 1385.” 12 ( § 1370.1 , subd. (c)(2)(A); see id
., subd . (d).)

11 This provision is grammatically in consistent and makes no sense as drafted. The parallel provision in section 1370 provides, in contrast, that “[i]f the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future , the committing court shall order the defendant to be returned to the court” so that civil commitment proceedings may be considered for the defendant. (§1370, subd. (b)(1)(A), italics added.) It seems likely that the intent behind both provisions was the sam e, and thus section 1370.1, subdivision (b)(1) should be construed to read similarly to section 1370, subdivision (b)(1)(A).

12 Again, the statute is not a model of clarity. It notes that a defendant may be subject to civil commitment under the LPS Act o r pursuant to Section 6500 “in the event of dismissal of the criminal charges before the defendant becomes mentally competent.” (§ 1370.1, subd. (c)(2)(A).) It further provides that if a defendant is found not to be subject to civil commitment under the referenced statutes, “the individual shall not be13

Section 1385 permits the trial judge to order an action dismissed “in furtherance of justice.” (§ 1385, subd. (a).) It may be invoked upon the court’s o wn motio n or upon application by the prosecuting attorney. ( Ibid. ) Thus, the incompetency statutes clearly contemplate the situation faced here by Calloway. Although no longer subject to confinement as set forth in section 1370.1, subdivision (c)(2)(A), his cri minal charges in the 2005 case remain pending, albeit subject to potential dismissal “in furtherance of justice” pursuant to section 1385.
B

. Restoration Issues in this Case Unfortunately, while the incompetency statutes manifestly allow for individuals to be released from confinement while their underlying criminal matters remain pending, they fail to provide clear direction as to how such individuals can properly be returned to the committing court for further proceedings with respect to their competenc y. The trial

cou rt in this case

— at the urging of the People

— concluded that it could test Calloway’s current competency by holding an 18

- month hearing pursuant to sect ion 1370.1, subdivision (b)(2). We agree with Calloway , however, that an 18

- month compet ency hearing could not properly be held at this point in his 2005 case. 13 First, pursuant to the plain language of section 1370.1, subdivision (b)(2), such an
18

- month hearing is only appropriate when a defendant “who has been committed or has

subject to further confinement pursuant to [the incompetency statutes] and the criminal action remains subject to dismissal pursuant to Section 1385.” ( Ibid. ) And, it states generally that a defendant’s c riminal charges are not required to be dismissed if a defendant has not been restored to competency within the applicable timeframe. (§ 1370.1, subd. (d) [“the criminal action remains subject to dismissal pursuant to Section 1385”].) The statute, however , is silent as to the availability of civil commitment for a defendant whose criminal charges have not been dismissed. Presumably, even if criminal charges have not been dismissed, civil commitment can be pursued at the end of the statutory confinement pe riod. Indeed, section 1372, subdivision (f), expressly contemplates that a civil commitment can be in place while criminal charges remain pending. (See § 1370, subds. (c), (d), & (e) [more clearly indicating the availability of civil commitment under the LPS Act while the underlying criminal charges “remain[ ] subject to dismissal”].)

13 These issues of statutory interpretation are, of course, subject to our de novo review. ( Duarte v. State Teachers’ Retirement System (2014) 232 Cal.App.4th 370, 384.)14

been on o utpatient status for 18 months . . . is still hospitalized or on outpatient status. ” ( § 1370.1, subd. (b)(2)
, italics added ; see § 1370, subd. (b)(4) .) Since, in the present case, Calloway has been released from all confinement under the incompetency sta tutes , this provision is patently inapplicable to his situation. More fundamen tally , the 18

- month hearing appears to b e one of the many safeguards bu i l t into the incompetency statutes to promote the prompt resolution of issues related to a defendant’s tri al comp e tency , thereb y avoiding commitment s deemed unreasonably long under Jackson and Davis

. ( See Parker, California’s New Scheme for the Commitment of Individuals Found Incompetent
to Stand Trial (1975) 6 Pacific L.J. 484, 495

- 496 (Parker) [characterizi ng the 1 8

- month hearing as a provision put in place to ensure that due process does not require release from confinement under the incompetency statutes prior to the expiration of the maximum period of commitment] .) Thus, o nce a defendant has reached his or her maximum period of commitment under the incompetency statutes, the justification for holding th e 18

- month hearing disappears. Under these circumstances

— while we assume that there is some leeway in the scheduling of such an 18

- month hearing on or aro und the date 18 months from a defendant’s initial commitment

— it seems clear that such a hearing should be held, in any event, at some point prior to the expiration of the defendant’s maximum period of confinement

. In contrast, pursuant to section 1370.1 , subdivision (c) (1)(A) , o nce a defendant
reaches the end of his or her maximum commitment period, that defendant is “returned to the committing court” for further proce edings

. Similarly, as happened in this case, a
defendant must be returned to the commi tting court for proceedings pursuant to section 1370.1, subdi vision (c) (2 ) , if a 90

- day or 150

- day report concludes that there is no “substantial likelihood ” that the defendant will regain mental competence. (§1370.1, subd. (b)(1); see § 1370, subd. (b)(1 )(A) ; see also footnote 11, ante .) Under both of these circumstances, there is no specific requirement that another competency hearing be held. (§1370.1, subd. (c).) Rather, at this point, the trial court considers the civil commitment options available for the defendant. ( Ibid. ) A nd, a ny defendant not civilly committed must be released from confinement. ( Ibid. ) Since the September 2009 PDC report in this15

case concluded that it wa s “ unlikely” Calloway w ould become comp e tent, his maximum perio d of com mitment came to an end
, and thus holding an 18

- month hearing to test his current competency is no longer a viable option. We will therefore grant Calloway’s petition and issue a writ prohibiting the trial court from holding an 18

- month compe t ency hearing in this case. However, we find Calloway’s reliance on section 1372 to be similarly misplaced. As stated above, that statute provides for the issuance by certain designated individuals of a “certificate of restoration” to inform the committing court when a defendan t has regained mental competency . (§ 1372, subds. (a)(1) & (B).) Pursuant to section 1372
, there are essentially thr ee types of individuals that are required to certify to a defendant’s recovery of mental compe tence. First, “the medical direc tor of the state hospital or other facility to which the defendant is committed ” must “immediately” file such a certificate with the trial court upon a defendant’s restoration of competence. ( Id. , subd. (a)(1), italics added.) Second, a similar requireme nt is placed on any “community program director, county mental health director, or regional center director providing outpatient
services .” ( Ibid ., italics added) Finally
, a certificate must also be completed by a conservator “[i]f the defendant becomes mentally competent after a conservatorship has been established” pursuant to the LPS Act and section 1370. ( § 1372 , subd. (b).) 14 Once received, the certificate of restoration is not definitive on the issue of competency. Rather, the trial court may hold a hearing

— albeit without a jury

— on the issue of whether the certificate should be approved. (§ 1372, subds. (c) & (d); see People v. Murrell (1987) 196 Cal.App.3d 822, 826

- 827 ( Murrell ) [hearing under section 1372 is a special proceeding for which there is no statutory right to a jury] ; see People v. Mixon (1990) 225 Cal.App.3d 1471, 1480 ( Mixon ) .)

14 There is no reference in this provision to section 1370.1 or the civil commitments authorized by Section 6500 that are contemplated by 1370.1, subdivision (c)(2)(A). This would seem to be an error in drafting, given the parallel purposes of sections 1370 and 1370.1. Thus, presumably, section 1372, subdivision (b), would be interpreted to authorize the filing of restoration certificates pursuant to 1370.1 as well as 1370.16

Calloway argues that, given his current situation, the issue of his competency can only be revisited if the trial court receives a certificate of restoration as set forth in section
1372. However, interpreting section 1372 in the context of the incompetency statutes as a whole, it seems clear that certif i cates of restoration must only be generated by the individuals set forth in that provision when a defendan t is receiving either inpatient or outpatient services pursuant to an actual incompetency commitme nt or when a defendant has been civilly committed in the wake of an incompetency commitment

. (See Mixon , supra , 225 Cal.App.3d at p. 14 85 [“ ‘ [t]he certifica tion is the opinion of the medical professionals who observed and treated the defendant while he was committed ’ ” ], italics
added

. ) This makes sense as trial competency is a very specific skill and , absent a current incompetency commitment
, or subsequent civil commitment based on a prior finding of incompetency, the individuals designated in section 1372 would be unlikely to monitor any progress made by a defendant towards restoration of trial competency . Of course, here, Calloway is not civilly committed and is no longer receiving competency training of any kind. Thus, we re we to espouse the position adopted by Calloway, there would be no individual able to certify his current competence and no procedure for bringing that issue
back before the trial cour t . We doubt the Legislature could have intended such a
anomalous result. (See Mixon , supra , 225 Cal.App.3d at p. 1481 [section 1372 is “part of

‘ a comprehensive scheme for dealing with criminal defendants whose mental competency is suspect;’ ” a statute must be construed with reference to the entire statutory scheme and should be given a construction “ ‘consistent with sound common sense and wise policy,
wi th a view to promoting justice’ ” ].) What, then, is the appropriate vehicle for reconsidering a de fendant’s mental competence when that defendant has been released from confinement, but the underlying criminal charges have not been dismissed? In our opin ion, the answer to this question lies in the plain language of section 1368, itself. As set forth above, p ursuant to that

statute , “ [i]f, during the pendency of an action and prior to judgment, . . . a doubt arises in the mind of the judge as to the mental competence of the defendant , he or she shall state that doubt in the record” and shall begin a st atutorily delineated process for determining17

the present mental competence of the defendant. (§1368, italics added; see also §§ 1368.1, 1369.) Admittedly, this statute is most often used when a judge, previously assuming a defendant to be comp e tent, begi ns to doubt that competence. However, we believe the language is broad enough to also apply when a judge, operating under a previous finding of incompetency , begins to doubt that a defendant remains incompetent. In both situations, a doubt arises in the judge’s mind “as to the mental competence of the
defenda nt.” Read this way, section 1368 is essentially a tool through which the trial court can determine a defendant’s current ment al status when it appears that existing presumptions with respect to t hat status are no longer accurate

. Our interpretation of section 1368 is buttressed by the legislative purpose underlying the incompetency statutes

— to promptly determine a defendant’s trial competency , thereby avoiding commit ments deemed unreasonably long un der Jackson
and Davis. (See Polk
, supra , 71 Cal.App.4th at pp. 1235

- 1238 ; see id. at p. 1234 [fundamental goal of statutory interpretation is to ascertain and effectuate legislative intent] .) While a defendant’s interest in avoiding indefinite commitment is manifest, the state also has an interest in bringing to trial an individual who has been accused of a criminal offense with a minimum of delay. (See People v. Superior Court ( McPeters ) (1985) 169 Cal.App.3d 796, 798 ( McPeters ); see also Parker, supra , at p. 493.) Moreover, all of the parties, including the court, have an equal interest in an accurate adjudication of a defendant’s competency. ( McPeters , supra , 169 Cal.App.3d at p. 798 [“[n]either justice nor due process of law is served if defendant i s erroneously found to be incompetent to stand trial when, in fact, he is competent”] .) Thus, as described in detail above, the incomp etency statutes are replete with provisions for the prompt treatment and repeated eval uation of an incompetent defendan t

. (See, e.g., § 1368, subd. (a) [hearing on competency whenever doubt arise in mind of judge “as to the mental competence of the defendant”]; § 1370.1, subd. (a)(1)(B)(i) [incompetency commitment at a facility designed to “promote the defendant’s speedy attainment of mental competence”]; § 1370, subd. (a)(1 )(B)(i) [same]; § 1370.1,
subd. (b)(1) [periodic reports to court on progress towards compet en cy]; §1370,18

subd. (b)(1) [ same]; § 1370.1, subd. (b)(1) [return to court if no substantial likelihood of

reg aining competency]; § 1370, subd. (b)(1)(A) [same, within 10 days]; § 1370.1,
subd. (b)(2) [18

- month hearing on competency]; § 1370, subd. (b)(4) [same]; § 1370.1, subd. (b)(3) [ return to court if no treatment being provided] ; § 1370, subd. (b)(5) [same]; § 1370.1, subd. (c)(1)(A) [return to court upon maximum period of commitment]; § 1370, subd. (c)(1) [same]; § 1372 , subd s . (c) & (d) [ hearing on restoration of competence] .) In addition, once it is believed that competency has been restored, a defendant m ust be
returned to the committing court without delay. (See § 1372, subd. (a)(1) [once a defendant is restored to competence, designated official must “immediately” certify that fact to the committing court]; id ., subd. (a)(3)(A) [sheriff must “immediatel y” return the restored defendant to the court for further proceedings]; id ., subd. (a)(3)(C) [in “all cases” restored defendant must be returned to court within 10 days of the filing of the certificate of restoration].) Indeed, given this plethora of proc edural protections

— which essentially require the constant monitoring of a defendant’s trial competency whenever that defendant is confined for purposes of incompetency treatment

— it seems un likely that a
trial court would ever need to re

- invoke section 1368 to determine a defendant’s current competency while that defendant is subject to an active incompetency commitment.
However , a trial court abuses its discretion if it fails to hold a competency hearing
under section 1368 whenever a defendant presents substantial evidence of his present incompetence . ( Murrell
, supra , 196 Cal.App.3d at p. 825 ; see also People v. Stankewitz (1982 ) 32 Cal.3d 80, 91

- 93 .) In this context, it has been held that the testimony of one mental health professional that a defendan t is currently incompetent is sufficient to warrant a competency hearing. ( Murrell
, supra , 196 Cal.App.3d at p. 826.) Thus, section 1368 may be invoked multiple times in a single proceeding, so long as a defendant presents substantially new evidence or changed circumstances. ( Id . at p. 827;

see, e.g., People v. Reynolds (2011) 196 Cal.App.4th 801, 805 ( Reynolds ) ; Polk
, supra , 71 Cal.App.4th at p. 390 .) For instance, in Murrell
, the defendant was found mentally incompetent and developmentally disabled by a jury and was therefore committed in June 1984 to a state19

hospital for treatment to restore competency. ( Murrell
, supra , 196 Cal.App.3d at p. 825.) In August 1984, the state hospital certified that the defendant had been restored to competency and t wo, three

- day hearings were subsequently held challenging the certificate of restoration under section 1372. ( Ibid. ) During the second of these hearings
, two additional experts were appoin ted to eval uate the defendant. At the conclusion of both hearings , the trial court found the defendant competent. ( Ibid. ) The defendant then requested a jury trial on the issue of competency under section 1368, arguing that he had presented psychiatric testimony of his current incompetency at the section 1372 hearing sufficient to trigger a new jury trial under that statute. ( Id. at pp. 825, 827.) The trial

court rejected this argument, and the court of appeal affirmed, stating: “The trial court was obligated to reinitiate section 1368 proceedings only if defendant presented substantially new evidence or changed circumstances. [Citations.] As the evidence presented by defendant in support of his demand for a second jury trial was the same as the evidence found by the trial court to be insufficient to prove defendan t’s incompetence at the hearing on the certification of competence, the trial court did not err in refusing defendant’s demand for a jury trial.” ( Id. at p. 827. )
Given th is right of a criminal defendant to call upon section 1368 multiple times in
the s ame proceeding , it only makes sense that the trial judge should also be able to re

invoke section 1368 if it has before it substantial new evidence or changed circumstances creating a doubt as to the validity of its pr ior determination of in competency

. In deed, the
trial court has the discretion to order such a competency hearing under that statute regardless of the defense ’s position on current competency. (§ 1368, sub d. (b).) Of course, if the attorney for the defendant informs the court that the defend ant remains incompetent, the defendant would have an absolute right to a competency hearing before any und erlying criminal proceedings could resume. ( Ibid .)
We therefore conclude that Calloway’s writ petition has merit and that the trial court may not pr operly hold an 18

- month competency hearing in this case. However, the trial court may hold a competency hearing pursuant to section s 1368 and 1369 on its own
motion and without the need of a certificate of restoration if there is new evidence and/or20

chang ed circumstances before it on remand sufficient to raise a doubt in the mind of the trial judge that Calloway

— previously found incompetent in the 2005 case

— might now be competent

. In this regard, we note that a jury recently found Calloway competent in

an unrelated case. Moreover, although the appellate record is unclear on this point, it appears that Calloway may have been living on his own without incident or supervision
from October 30, 2011
, until he was picked up on the warrant in the 2011 case in
Se ptember 2012. On the other hand, in February 2014, two experts testified in the 2011 case that Calloway was incompetent and that his condition was unlikely to change. Should the trial court determine that a new section 1368 hearing is warranted
based o n the evidence before it, both Calloway and the People have the right to demand a jury trial on the issue of Calloway’s present competency. (§ 1369; see McPeters , supra , 169 Cal.App.3d at p. 798 [construing section 1369 as a general grant of a right to a jury trial “to all proper parties to the special p roceeding,” including the prosecution ].) Further, during any such competency hearing, it shall be presumed

— pursuant to subdivision (f) of section 1369

— that Calloway is competent unless it is p r oved by a

pr eponderance o f the evidence that he is mentally incompetent. (Compare People v.
Rells ( 2000) 22 Cal.4th 860 , 862 [at a hearing on a defendant’s recovery of mental competence pursuant to section 1372, presumption is that defendant is competent , despite pri or finding of incompetency ]; see also id . at p p. 866

- 867 [noting that the presumption of competence applies at an 18

- month review hearing held pursuant to 1370, subd. (b)(2), in spite of the fact that it is inconsistent with the defendant’s apparent nonrec overy of mental competence ].)
If a hearing is held a nd Calloway is found competent, the criminal process in the 2005 case shall resume. (§ 1370.1, su b d. (a)(1)(A).) If, in contrast , it is determined that Calloway remains incompetent in the 2005 case, we note that the three

- year limit on
confinement under the incompetency statutes applies to the aggregate of all commitments
for incompetency regarding the same criminal charges. ( Polk
, supra , 71 Cal.App.4th at p. 1238; see People v. G.H. (2014) 230 Cal.A pp.4th 1548, 1558

- 1559; Reynolds , supra, 196 Cal.App.4th at p. 806.) Thus, the trial court must consider a defendant’s prior21

commitment on the same charges when calculating any subsequent commitment for incompetency. (See Reynolds
, supra , 196 Cal.App.4th at pp. 807

- 809.) Since, in this case, it was determined by the PDC in September 2009 that it wa s “unlikely” that Calloway would become competent, his maximum period of confinement with respect to the 2005 charges has come to an end and no further period of commitment with respect to those charges is warranted. Thus, s hould it be determined that Calloway remains incompetent in the 2005

case

— or should the trial court conclude that the evidence of Calloway’s current competence is insufficient to trigger a new competency hearing

— the court is left with the possibility , pursuant to section 1370.1, subdivision (c), of pursuing additional civil
commitment for Calloway

. For instance, Calloway may be subject to commitment under Section 6500 if the People can prov e he is currently dangerous. (See In re O.P. (2012) 207 Cal.App.4th 924, 933

- 935; see Conservatorship of Hofferber (1980) 28 Cal.3d 161,
174

- 178.) 15 Or, given that Dr. Wasler has previously concluded that Calloway is “generally incompetent to take care of himself,” he may be subject to commitment under the LPS Act as unable to provide for his basic personal needs for food, clothing, or shelter. (Welf. & Inst. Code, § 5008(h)(1)(A).) However , if civil commitment is not an option, Calloway must be release d from further confinement
, and the underlying criminal charges remain subject to dismissal pursuant to section 1385. (§ 1370.1, subds. (c)(2)(A) & (d).)

15 In this regard, we note that a petition under 6500 may be filed “in the superior court of the county that determined the question of mental competence of the defendant.” (Welf. & Inst. Code, § 6502.) Filing such a petition in the same county as the committing court would allow for better oversight of the annual renewal process.22 II I . D ISPOSITION Let a peremptory writ of prohibition issue directing the Superior Court of Contra Costa County to vacate its order authorizing an 18

- month competency hearing in this

case and to proceed in a manner consistent with the views expressed herein

.

_________________________ REARDON, P. J.

We concur:

_____________________ ____ RIVERA, J.

_________________________ STREETER, J.23

Trial Court: Contra Costa Superior Court

Trial Judge: Hon. Barry Baskin

Counsel for Petitioner and Elizabeth K. Barker Appe llant: Ass is t ant Public Defender Garrick Byers Special Assignment Attorney Contra Costa County Alternative Defender’s Office

Counsel for Respondents: William Kuimelis Deputy Attorney General Office of the Attorney General

Calloway v. Superior Court A142854