Defendant who has been committed as incompetent for the maximum period, but who is not gravely disabled, is not entitled to release from custody where new charges are currently pending. In 2008, Jackson was charged with a lewd act on a child (Pen. Code, § 288, subd. (b)). He was found incompetent to stand trial and committed to Patton State Hospital. In May 2015, the trial court ordered defendant’s release because he had reached the maximum period of commitment authorized by law (Pen. Code, § 1370, subd. (c)(1)). The prosecution then secured an indictment in a new case, related to the conduct of the earlier case. The court declared a doubt as to Jackson’s competency in the new case, but did not declare him incompetent. Defendant moved for his release in the new case, which was denied. This writ petition followed. Held: Petition denied. A defendant who has been found incompetent to stand trial and whose competence has not been recovered must be returned to the committing court within 90 days of the date that is three years from the date of commitment (Pen. Code, § 1370, subd. (c)(1)). At that point the trial court may initiate conservatorship proceedings if it finds the defendant to be gravely disabled. Relying on Jackson v. Indiana (1972) 406 U.S. 715 and In re Davis (1973) 8 Cal.3d 798, Jackson claimed that absent a conservatorship, the only other alternative under section 1370 is his release. However, Jackson did not show that he is committed solely on account of his incapacity to proceed to trial because a new indictment was filed against him. In addition, the record contained no evidence that he was declared incompetent to stand trial in the new case and unlikely to regain competency. He also failed to show that he was “committed” at all in the new case. The court urged the Legislature to amend section 1370, subdivision (c)(2) to clarify the options available to the trial court when faced with a defendant who has been committed as incompetent for the maximum period, but who is not gravely disabled.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064010.PDF