Senate Bill 317 Isn’t Retroactive in Competency Cases

Senate Bill 317 was enacted in October 2021.  According to its summary, “SB 317 ensures incompetent defendants are eligible for the same time served credits for good conduct as their competent counterparts, while receiving treatment in any treatment facility or as an outpatient, not just a county jail treatment.”  This bill, in other words, is meant to ensure equal treatment of those whose competency has been placed in question.

In Monterey County, in July 2019, the District Attorney there charged Ernesto Rodriguez Orellana with two counts of felony criminal threats (Penal Code § 422(a)) and one misdemeanor count of exhibiting a deadly weapon (Penal Code § 417(a)(1)).  The complaint alleged Orellana had served a prior prison term (Penal Code § 667.5(b)).

On July 30, 2019, after Orellana’s arraignment, defense counsel expressed doubt as to Orellana’s competence under Penal Code § 1368.  The trial court found that a doubt had arisen as to Orellana’s mental competence, referred Orellana for examination and suspended proceedings.  The trial court ordered that Orellana remain in custody.

Pursuant to section 1370, Orellana was committed to Patton State Hospital on August 27, 2019, and admitted there on December 6, 2019.  On January 27, 2020, 48 days later, the Department of State Hospitals (DSH) filed a certificate of restoration of competence pursuant to Penal Code § 1372 and on January 30, 2020, the trial court held a hearing on Orellana’s restoration.  The trial court found Orellana’s competence restored and reinstated criminal proceedings.

The trial court ordered Orellana to remain in custody without bail.

On May 26, 2020, the parties reached a disposition of the case wherein the prosecution amended the complaint to add charges for felony false imprisonment (Penal Code § 236) and misdemeanor criminal threats (Penal Code § 422(a)).  Orellana agreed to plead guilty to the two new charges in exchange for a prison sentence of two years on the felony conviction, to be served in county jail, a concurrent county jail term of no more than 180 days on the misdemeanor conviction, and a dismissal of the remaining charges and prior prison term enhancement allegation.

After entry of the plea but before sentencing, defense counsel filed a motion requesting that the trial court grant conduct credit for the time Orellana spent in time to restore competence at the state hospital, or alternatively for the time spent in state hospital custody once competent but before being transported.  Orellana’s motion asserted that equal protection principals under both the state and federal constitutions required the court to award conduct credits under Penal Code § 4019(a)(8).

The court denied Orellana’s motion for conduct credits, rejecting his equal protection arguments, but agreed to conduct credits from the date he was certified as restored to competence.  The court awarded Orellana 367 days of actual custody credits and 318 days for conduct credit for a total of 685 days of credit for time served toward his two year sentence.

Orellana filed an appeal of this ruling.  While his appeal was still pending, SB 317 was passed, so Orellana amended his appeal, contending that Senate Bill 317 applied retroactively to this matter under In re Estrada (1965) 63 Cal. 2d 740. 744, and that he is entitled to an additional 48 days of conduct credit for his time in treatment at the state hospital.

The Sixth Appellate District denied Orellana’s appeal, holding that unless the Legislature has expressly stated otherwise, no part of the Penal Code is retroactive.  Here, the language of SB 317 and the relevant legislative history provided no indication of retroactive intent. 

Moreover, In re Estrada has been interpreted to be impliedly retroactive when it reduces punishment.  Here, applying SB 317 would not reduce punishment for the crime directly, but would instead incentivize good conduct.

We bring this article to the reader’s attention because in the area of competency proceedings in general, there is a great deal of confusion and this new bill seems to suggest more than what our courts have found it holds.

The citation for the Sixth Appellate District Court ruling discussed above is People v. Ernesto Rodriguez Orellana (6th App. Dist., 2022) 74 Cal. App. 5th 319, 289 Cal. Rptr. 3d 410.

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