People v. Zichko CA2/6 ( 2023 )

Filed 5/18/23 P. v. Zichko CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B321326
(Super. Ct. No. F311715001)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ROBERT JOHN ZICHKO,
Defendant and Appellant.
Robert John Zichko appeals from an order extending his
commitment to the Department of State Hospitals (DSH) as an
individual found not guilty by reason of insanity (NGI). (Pen.
Code,1 §§ 1026, 1026.5.) Appellant contends (1) the trial court
violated his due process rights by declining to continue his trial
and release him pending trial as provided in People v. Lara
(2010) 48 Cal.4th 216 (Lara); (2) his trial attorney provided
constitutionally ineffective assistance of counsel (IAC); (3) he was
denied a hearing on his request to be released into a conditional
1 All statutory references are to the Penal Code.
release program (CONREP); and (4) the laws that apply to NGI’s
seeking outpatient treatment violate equal protection principles.
We affirm.
FACTS AND PROCEDURAL HISTORY
In 2003, appellant was found NGI for making criminal
threats (§ 422) and was committed to DSH for treatment. He has
since been committed to DSH pursuant to numerous extensions.
On December 8, 2021, DSH sent a letter to the San Luis Obispo
County District Attorney’s Office (the District Attorney’s Office)
requesting that it file a petition for another extension of
appellant’s commitment, which was set to expire on May 15,
2022.
On March 30, 2022, the People filed a petition to extend
appellant’s NGI commitment pursuant to section 1026.5,
subdivision (b). That same date, the trial court ordered DSH to
comply with the prosecution’s request to produce records
regarding appellant’s most recent two-year commitment. The
petition did not purport to make a showing of good cause for
being filed less than 90 days prior to the expiration of appellant’s
commitment, as provided under subdivision (b)(2) of section
1026.5.
On April 7, 2022, appellant requested a court trial on the
petition and declined to waive the time requirements for his trial.
When the parties appeared on April 12 to discuss the trial date,
the prosecutor said she did not “have a clear answer” regarding
the cause for the delayed filing of the petition but noted that the
statutory deadlines set forth in section 1026.5, subdivision (b)(2)
are not jurisdictional. The court then set a trial date of May 10,
2022.
2
On May 2, appellant filed a motion to dismiss the petition
or, in the alternative, to release him from custody pending his
trial as contemplated in Lara, supra, 48 Cal.4th 216. Defense
counsel asserted that due to the late filing of the petition he
would not be ready to proceed with appellant’s trial on May 10.
Counsel offered that he would not be receiving DSH’s records
regarding appellant’s most recent commitment until May 3.
Counsel also stated his belief that an expert would not have time
to review the records prior to the scheduled trial.
In their May 10 opposition, the People conceded that DSH
did not file its request to extend appellant’s commitment within
180 days prior to the expiration of his commitment (§ 1026.5,
subd. (b)(2)) and that the petition to extend appellant’s
commitment was not filed at least 90 days prior to expiration of
that commitment (ibid). The People noted, however, the the
subject statutory deadlines are not jurisdictional and that
appellant’s trial was scheduled to take place prior to the
expiration of his commitment. The People questioned whether
appellant’s attorney had made any efforts to retain an expert or
provide them with either the subpoenaed records he had received
on May 4 or the prosecution expert’s 20-page report. The People
also indicated that DSH would seek to confine appellant under
the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000
et seq.) if the court were inclined to release him pending trial.
Finally, the People submitted a declaration from a clerk with the
District Attorneys’ Office offering that she was responsible for the
delayed filing of the petition to extend appellant’s commitment
due to increased duties related to COVID-19.
Appellant’s trial was subsequently continued until May 13,
and the hearing on his motion was held on May 12. At the May
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12 hearing, defense counsel argued that the People had not
presented good cause for the delayed filing of the petition to
extend his commitment (§ 102.6, subd. (b)(2)) and claimed that
any expert retained by the defense would need “three weeks at a
minimum before they will agree to help us.” Counsel also make
clear, however, that the “option” of a trial postponement with an
LPS hold was “not an acceptable one for us” and that appellant
was “moving for a dismissal, [with the] understanding that this
Court is restrained by” our Supreme Court’s holding in Lara,
supra, 48 Cal.4th 216.
The court denied appellant’s motion. After questioning
whether the impacts of COVID-19 established good cause for the
delayed filing of the petition to extend appellant’s NGI
commitment, the court found that appellant had failed to
demonstrate he suffered any prejudice as a result of the delay.
Among other things, the court reasoned that (1) appellant had
been represented by the San Luis Obispo Public Defender’s Office
in all proceedings related to his NGI commitments; (2) defense
counsel had 45 days to consult with an expert and provide them
with appellant’s 16 prior medical records dating back to 2014 (of
which the court took judicial notice); and (3) the court had not
been presented with any evidence that appellant’s “circumstances
have changed.” The court denied the motion “without prejudice
to it being raised [again], should there be [an] additional showing
made at [trial] or in the future.”
Trial on the People’s petition to extend appellant’s NGI
commitment was held the following day. One of appellant’s
treating psychiatrists opined among other things that appellant,
who has a longstanding diagnosis of schizophrenia, was presently
delusional and exhibiting signs of grandiose paranoia. The doctor
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was unsure if appellant would voluntarily take his medication in
the community and opined that he lacked insight into his
disorder and would constitute a substantial danger of physical
harm to others if released. A psychologist who evaluated
appellant in 2021 also opined that appellant met the criteria for
an extended NGI commitment, and noted that his commitment
offense involved him making threatening statements to
employees in a bank and then attempting to purchase a gun.
At the conclusion of the trial, the court granted the People’s
petition and entered an order extending appellant’s NGI
commitment until May 15, 2024. Defense counsel then asked to
“put . . . on the record” that appellant “want[ed]” a CONREP
placement without any recommendation from his treatment
team, but counsel had told him “this Court cannot do that
without the concurrence of the mental health professionals.” The
court replied: “Yeah. . . . The Court didn’t take any evidence of
that, and so the Court is not going to address [it] at this time. . . .
[R]ight now there’s nothing further to say about CONREP.”
DISCUSSION
Motion For Dismissal Or Release Pending Trial
Appellant contends the trial court violated his due process
rights by declining to delay his trial on the petition to extend his
NGI commitment and order his release subject to LPS
proceedings as provided in Lara, supra, 48 Cal.4th 216. He
claims the judgment must be reversed and the matter remanded
for a new trial and that he must be released from custody
pending the new trial “unless a decision is made to commit him
pursuant to the [LPS] Act.” We are not persuaded.
NGI defendants are committed to a state hospital or other
treatment facility unless and until their sanity has been fully
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restored. (§ 1026 et seq.) An NGI commitment may be extended
if the committee “represents a substantial danger of physical
harm to others” due to “a mental disease, defect, or disorder.”
(§ 1026.5, subd. (b)(1).) “At least 180 days before the current
term ends the medical director ‘shall’ provide the district attorney
with an opinion as to whether the defendant’s commitment
should be extended. (§ 1026.5, (b)(2).) The prosecution ‘may’
then file for an extension of commitment. (Ibid.) Unless good
cause is shown, the petition ‘shall’ be filed at least 90 days before
the commitment is to expire. (Ibid.) Unless good cause is shown,
a trial on the petition ‘shall’ begin at least 30 days before the
existing commitment is due to end. (§ 1026.5 (b)(4).) If the
defendant is proven to currently represent a substantial danger
as described in the statute, the court shall order a recommitment
for an additional two years. (§ 1026.5 (b)(8).)” (Lara, supra, 48
Cal.4th at p. 222.) However, the time limits set forth in section
1026.5 “are not jurisdictional.” (§ 1026.5, subd. (a)(2).)
In Lara, supra, 48 Cal.4th 216, the petition to extend the
NGI commitment was filed less than a month before the
committee’s scheduled release date and the prosecutor conceded
there was no good cause for the delay. (Id. at p. 222.) The trial
court denied the committee’s motion to dismiss the petition. At
the conclusion of a trial held seven months after his initial
commitment ended, a jury found he represented a substantial
danger of physical harm to others and his commitment was
extended. (Id. at p. 223.) The Court of Appeal found that the
committee’s due process rights had been violated, reversed, and
directed the trial court to grant the dismissal motion. (Ibid.)
The Supreme Court reversed, recognizing that section
1026.5,’s deadlines are directory rather than mandatory “so long
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as the petition is filed before the expiration of the current
commitment.” (Lara, supra, 48 Cal.4th at p. 221.) The court
explained that where any of the time limits set forth in section
1026. have not been met, “the due process question must be
evaluated on a case-by-case basis.” (Id. at p. 232.) “‘[D]ue
process in this context requires a flexible balancing of any
“prejudicial effect of the delay against the justification for the
delay.”’” (Ibid.) “The degree of prejudice will depend on a variety
of factors, including how late the filing is, the amount of time
reasonably required to prepare for trial and mount a defense, and
whether action by the court or defense counsel contributed to the
delay.” (Ibid., italics omitted.) The court also cited cases
recognizing that no presumption of prejudice arises unless the
delay at issue was “extended” and that “‘“[w]here prejudice is not
presumed, it is incumbent upon the defendant to show
circumstances of actual prejudice.”’” (Id. at p. 230.)
The court in Lara went on to hold that the NGI committee
in that case “did not suffer prejudice in the primary sense of the
term” because “[t]he fairness of his eventual trial was not affected
by the due process violation.” (Lara, supra, 48 Cal.4th at p. 233.)
Accordingly, he was not entitled to dismissal of the petition. (Id.
at p. 236.) The court recognized, however, that the committee
“did suffer prejudice in one sense” because “[t]he prosecution’s
unexcused late filing forced him to choose between going to trial
unprepared or being held without trial beyond [his] release date.”
(Id. at p. 233.) Although the remedy for that prejudice would
have been release pending trial subject to LPS proceedings, the
defendant was no longer eligible for such release because “[t]he
court retained jurisdiction to try the petition. The trial, while
untimely, was ultimately fair. Therefore, violation of the
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statutory timelines does not warrant reversal.” (Id. at p. 236, fn.
omitted.)
Even assuming that appellant had suffered prejudice as
contemplated in Lara, when he was given the choice between
going to trial unprepared or being held without trial beyond his
release date, he is not entitled to the remedy set forth in that
case. As the People note, defense counsel made clear to the trial
court that appellant wanted a dismissal of the extension petition
and did not want to continue his trial unless the court agreed to
release him pending the trial without any possibility of an LPS
hold. The trial court cannot be faulted for declining to order a
remedy that appellant made clear he did not want. Because
appellant invited the court’s alleged error in failing to continue
his trial and order his release subject to LPS proceedings, he is
estopped from asserting that error on appeal. (People v. Duncan
(1991) 53 Cal.3d 955, 969.)2
In any event, appellant’s due process claim fails on the
merits. He does not dispute that he bore the burden of proving
actual prejudice, yet he failed to meet that burden.3 Appellant,
unlike the NGI committee in Lara, was not held for trial beyond
his scheduled release date. Moreover, the petition to extend
appellant’s commitment was filed 45 days prior to the expiration
2 Because appellant insisted that he wanted to be released
without any possibility of an LPS commitment, we also reject his
contention that the court erred in weighing the potential
prejudice arising from the delayed extension proceedings against
the need for public safety.
3 The People concede on appeal that they did not make a
showing of good cause for failing to meet the time deadlines set
forth in subdivision (b)(2) of section 1026.5.
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of his commitment, counsel was promptly appointed thereafter to
represent him, and counsel received appellant’s most recent
medical records 8 days prior to trial. Although counsel
represented that he would not be ready for the scheduled trial
because any expert retained by the defense would need at least
three weeks to review the evidence and offer an opinion, the court
rejected counsel’s proffer as “conclusory.”
The court further reasoned that appellant had been
represented by the Public Defender’s Office in all proceedings,
counsel had sufficient time to consult with an expert and provide
them with appellant’s prior medical records, and there was no
evidence of changed circumstances. Moreover, the motion was
denied “without prejudice to it being raised [again], should there
be [an] additional showing made at [trial] or in the future.” The
trial was ultimately held and appellant offers no evidence that
his counsel was unprepared or that his trial was otherwise
unfair. Appellant’s due process claim accordingly fails.
IAC
As an alternative to his first contention, appellant asserts
that his trial attorney provided IAC by failing to consult with an
expert prior to trial. To prevail on this claim, appellant must
establish both deficient performance and prejudice. (Strickland
v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674]
(Strickland).) The deficient performance component of the claim
requires a showing that “counsel’s representation fell below an
objective standard of reasonableness” under prevailing
professional norms. (Id. at p. 688.) To establish prejudice,
appellant must show a reasonable probability that he would have
achieved a more favorable result absent counsel’s deficient
performance. (Id. at p. 694.) IAC claims are “particularly
9
difficult” to establish on direct appeal. (People v. Mai (2013) 57
Cal.4th 986, 1009.)
Appellant fails to establish either prong of his IAC claim.
As the People note, it is unclear from the record whether counsel
actually consulted with an expert. Even if counsel did not consult
with an expert and his failure to do so was objectively
unreasonable, appellant merely speculates that he would have
achieved a more favorable result had an expert been consulted.
His IAC claim thus fails. (Strickland, supra, 466 U.S. at p. 687.)
CONREP
Appellant next contends the trial court erred in failing to
hold a hearing on his “request” for a CONREP release under
section 1026.2. But appellant made no such request. Rather,
defense counsel merely stated for the record that appellant
wanted be released into a CONREP “without any sort of
recommendation” from the mental health professionals who have
treated and evaluated him, even though counsel had told him
that this was not an option. As counsel recognized, the court
could not act on any application for release under section 1026.2
without first obtaining the written recommendation of DSH’s
medical director. (See § 1026.2, subd. (l).) Although the court
must request such a recommendation when an NGI committee
applies for a CONREP release under section 1026.2, counsel
made clear that appellant did not want any such
recommendation to be obtained.
Moreover, the record does not disclose any legitimate basis
for trial counsel to make an application for appellant’s release
under section 1026.2. That section governs applications for the
release of NGI committees “upon the ground that sanity has been
restored.” (§ 1026.2, subd. (a).) Appellant points to no evidence
10
that would have supported the making or granting of such an
application. There was nothing to suggest that appellant’s sanity
had been restored or was in the process of being restored, and the
court had just found that he currently represented a substantial
danger of physical harm to others by reason of his mental
disorder. (See People v. Sword (1994) 29 Cal.App.4th 614, 620
[recognizing that outpatient treatment for NGI committees “‘is a
discretionary form of treatment to be ordered by the committing
court only if the medical experts who plan and provide treatment
conclude that such treatment would benefit the [offender] and
cause no undue hazard to the community’”].)
We also reject appellant’s alternative contention that his
request for a CONREP release should have been evaluated under
section 1602 as well as section 1026.2. Appellant erroneously
asserts that “[b]ecause [he] was convicted of violating Penal Code
section 422, he appears to fall within language of” section 1601,
subdivision (b). But appellant was not convicted of violating
section 422; rather, he was found NGI of that felony offense. As
relevant here, subdivision (b) of section 1601 applies to
defendants found NGI “of any misdemeanor” who are seeking
outpatient status “prior to actual confinement in a state hospital
or other treatment facility.” (Italics added.) Because there was
no legitimate factual or legal grounds for trial counsel to make an
application for appellant’s release under either section 1026.2 or
section 1602, appellant’s alternative claim that counsel provided
IAC by failing to make such an application also necessarily fails.
(Strickland, supra, 466 U.S. at p. 687.)
Equal Protection
For the first time on appeal, appellant contends that “under
equal protection principles, [he] was entitled to have his
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application for outpatient treatment considered on its merits,
probably under the [more] favorable conditions applied to
mentally disordered offenders (MDOS) pursuant to Penal Code
section 2972, subdivision (d).” Because this contention was not
raised below, it is forfeited. (See People v. Dunley (2016) 247
Cal.App.4th 1438, 1447.) In any event, the court’s beyond-a-
reasonable-doubt finding that appellant currently represented a
substantial danger would preclude appellant from obtaining
release on outpatient status under subdivision (d) of section 2972.
(See People v. Garton (2018) 4 Cal.5th 485, 501-502 [applying
harmless error analysis to equal protection claim].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.
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