People v. Lee C. (In re Estate of Lee C.)

We remand for further proceedings so the Public Guardian may exercise his discretion in accordance with the law and decide whether to file the petition for a Murphy conservatorship.

FACTUAL AND PROCEDURAL BACKGROUND

Events Leading to Referral to Public Guardian

In April 2014, the People charged defendant L.C. by complaint with corporal injury on a cohabitant ( Pen. Code, § 273.5 ) and a strike prior. The

The trial court found the failure to file a petition was an abuse of discretion and ordered the Public Guardian to file the petition. The trial court apparently believed that if the criteria for a Murphy conservatorship were met-and it found they were here-then a petition must be filed regardless of financial considerations.

The Public Guardian petitioned this court for a writ of mandate to vacate the trial court's order, arguing the filing of a petition was not warranted as all necessary criteria had not been satisfied. This court summarily denied the petition. ( Ewert, as Public Guardian v. The Superior Court of Shasta County (C079378, June 19, 2015).)

The Public Guardian filed the petition for a Murphy conservatorship for L.C. The petition stated that in the opinion of the Public Guardian the information had been obtained in violation of L.C.'s due process rights and prayed that the petition not be granted.

Motions to Dismiss the Information

L.C. moved to dismiss the information, both pursuant to Penal Code section 995 and by a non-statutory motion. Both motions were denied. L.C. petitioned this court for a writ of mandate to dismiss the information, arguing that it was error to hold a preliminary hearing under the circumstances. This court summarily denied the petition. ( Clark v. Superior Court (C080476, Nov. 6, 2015).)

Order to Proceed to a Conservatorship Trial

The matter was sent back to criminal court after the Public Guardian filed a motion to dismiss the petition. At a hearing (in conservatorship court) held on December 15, 2015, county counsel stated he and his client (the Public Guardian) did not believe the petition for a conservatorship had merit, but

At the hearing on this motion, the trial court agreed with the district attorney that county counsel should be disqualified, reasoning that the Murphy conservatorship arose from the criminal case and therefore county counsel stood in the position of the People, charged to protect the public. The court found county counsel had a conflict because it had given the Public Guardian advice for primarily financial reasons and not with regard to public safety, against the charge of the Murphy conservatorship. The court opined the objection to proceeding to trial was fiscal, because the two legal objections county counsel had raised-regarding the allegedly unsatisfied criteria-were without merit. County counsel argued the financial aspect was no longer an issue because funding had been discovered. Counsel further argued the court had no authority to rule that dismissal under section 581 was not applicable to conservatorship proceedings and that the court was facing a potential separation of powers issue. The court stated its order to proceed to trial was based on its inherent authority to enforce its orders under section 128.

The trial court disqualified county counsel from prosecuting the conservatorship petition and appointed the district attorney to do so; the disqualification was stayed pending appeal. The court found the information was valid

Conservatorship proceedings may be initiated in several ways. The conservatorship investigator is to proceed in accordance with the provisions of Welfare and Institutions Code sections 5350 et seq. ( Pen. Code, 1370, subd. (c)(2).) As relevant here, Penal Code section 1370, subdivision (c)(2) authorizes the court to order the conservatorship investigator to initiate conservatorship proceedings when it appears to the court the defendant is gravely disabled under the definition applicable to Murphy conservatorships. The conservatorship investigator, here the Public Guardian (see Welf.& Inst. Code, § 5351 ), conducts an investigation. "The officer providing conservatorship investigation shall investigate all available alternatives to conservatorship and shall recommend conservatorship to the court only if no suitable alternatives are available." ( Id ., § 5354, subd. (a).)

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

Limiting the right to initiate and prosecute an LPS Act conservatorship to the public guardian also was consistent with the objectives of the LPS Act. "In order to protect the liberty and dignity of persons threatened with confinement in a mental health facility, the Legislature has determined that the safeguards attending Probate Code conservatorships are insufficient, and

The Karriker court cited Heckler v. Chaney (1985) 470 U.S. 821 , 831, 105 S.Ct. 1649 , 84 L.Ed.2d 714 , in which the high court stated: "This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. [Citations.] This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement." The Karriker court concluded: "Although a court must be satisfied before relief is granted, the court may not control the discretion conferred upon another public official to determine whether to seek such relief." ( Karriker, supra, 149 Cal.App.4th at p. 787, 57 Cal.Rptr.3d 412 .)

Finally, the court addressed the argument that even if the conservator had no mandatory duty to file the petition, she abused her discretion in failing to do so. "Accepting the premise that a public conservator might abuse his or her discretion in refusing to file a petition for a conservatorship under the LPS Act," the court found no abuse of discretion because the criteria for a Murphy conservatorship were not satisfied. ( Karriker, supra, 149 Cal.App.4th at p. 788, 57 Cal.Rptr.3d 412 .) There was no pending indictment or information ( id. at p. 784, fn. 12, 57 Cal.Rptr.3d 412 ) and no evidence of current dangerousness ( id . at p. 788, fn. 14, 57 Cal.Rptr.3d 412 ). "The Conservator did not abuse her discretion in failing to seek an LPS conservatorship for one who does not satisfy the statutory criteria." ( Id . at p. 788, 57 Cal.Rptr.3d 412 .)

In Kennebrew, supra, 222 Cal.App.4th 434 , 166 Cal.Rptr.3d 151 , the County of Los Angeles sought review of an order compelling the public guardian to petition for a conservatorship for Nattie Kennebrew, who while suffering delusions due to dementia had killed a man. The trial court twice referred the matter to the public guardian and each time the public guardian refused to seek a conservatorship on the ground that dementia was not a qualifying mental disorder. ( Id . at p. 440, 166 Cal.Rptr.3d 151 .) The trial court found no rational basis or compelling interest for

Welfare and Institutions Code section 5352.5 addresses initiation of conservatorship proceedings upon recommendation of the medical director of the state hospital or others. This statute uses similar language to that contained in Penal Code section 1370, subdivision (c)(2) -"conservatorship proceedings may be initiated." The medical director does not have authority to file a petition ( Welf. & Inst. Code, § 5114 ), so the term "initiation of proceedings" cannot mean filing the petition, but instead must mean only referring for an investigation. Also, as the Karriker court noted, identical language is used in Penal Code section 1370.01, subdivision (c)(2), relating to incompetent misdemeanants who are unable to care for themselves. ( Karriker, supra , 149 Cal.App.4th at p. 783, fn. 11, 57 Cal.Rptr.3d 412 .)

An LPS conservatorship lasts only one year and the appointed conservator has authority to petition for reappointment; if a private conservator fails to petition for reappointment, the public guardian may petition for appointment. ( Welf. & Inst. Code, §§ 5361 - 5362.) If there is no petition to reestablish the conservatorship, the court must terminate the conservatorship. ( Id., § 5462, subd. (b).) Since the trial court has no authority to extend the conservatorship, Penal Code section 1370, subdivision (c)(2) cannot reasonably be interpreted to permit the court to override the conservatorship investigator's discretion and order the establishment of the conservatorship.

To pass constitutional muster, a Murphy conservatorship may be established only where a magistrate or grand jury has found probable cause to believe the incompetent defendant has committed the charged felony. ( Hofferber, supra, 28 Cal.3d at p. 174, 167 Cal.Rptr. 854 , 616 P.2d 836 .) As the Hale court stated, the preliminary hearing for an incompetent defendant promotes, rather than denies, due process "by insuring that a felony defendant will not be committed for incompetency unless there is probable cause to believe he committed the crime with which he is charged." ( Hale , supra, 15 Cal.3d at p. 223, 124 Cal.Rptr. 57 , 539 P.2d 817 .) Moreover, if defendant's argument were correct, there could never be a Murphy conservatorship based on a pending information for a defendant who was not competent at the time the preliminary hearing was held; the language allowing a Murphy conservatorship to proceed if there is a pending information would be a nullity if the Public Guardian's interpretation were correct.

As the trial court repeatedly found, the information was valid for purposes of proceeding with a Murphy conservatorship, notwithstanding that it was subject to dismissal if L.C. regained competency and criminal proceedings were resumed. The Public Guardian abused his discretion in determining the information was invalid.

B. The Charged Felony was Sufficiently Serious

The Public Guardian contends L.C.'s pending felony charge for corporal injury on a cohabitant ( Pen. Code, § 273.5 ) does not qualify as "a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person." ( Welf. & Inst. Code, § 5008, subd. (h)(1)(B).) A violation of Penal Code section 273.5 requires willfully inflicting corporal injury on certain persons resulting in a traumatic condition. ( Pen. Code, § 273.5, subds. (a) & (b).) A traumatic condition is "condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." ( Id., subd. (d).)

A traumatic condition can be a minor injury, such as a bruise. ( People v. Beasley (2003) 105 Cal.App.4th 1078 , 1085-1086, 130 Cal.Rptr.2d 717 .) Thus, some violations of Penal Code section 273.5 are insufficient to meet the required felony charge for a Murphy conservatorship. In Kennebrew, supra, 222 Cal.App.4th at pages 445, 446, and 447, 166 Cal.Rptr.3d 151 , the court repeatedly uses the

The Public Guardian contends the facts from the preliminary hearing are insufficient to show great bodily injury or a serious threat to the well-being of another. We disagree. The record reflects that L.C. put a dog leash on his victim, tightened it until she had trouble breathing, and dragged her 40 to 50 feet. The assault caused pain and left a raised welt on her neck. While choking alone may be insufficient to establish great bodily injury, it is sufficient to support a finding of force likely to cause great bodily injury. (See People v. Covino (1980) 100 Cal.App.3d 660 , 667-668, 161 Cal.Rptr. 155 .) Because the victim could easily have suffered a serious injury, a trier of fact could find L.C.'s actions in both dragging and choking his victim presented a serious threat to his victim's well-being. The Public Guardian abused his discretion in concluding the felony charge was insufficient as a matter of law to support a Murphy conservatorship.

Therefore we remand for further proceedings to allow the Public Guardian to exercise his discretion in accordance with the applicable law.

In 2014 a complaint charged Lee C. (L.C.) with corporal injury to a cohabitant. The trial court found L.C. incompetent to stand trial and committed him to a state hospital. After the state hospital reported he was unlikely to be restored to competency in the foreseeable future, his counsel requested a preliminary hearing pursuant to Penal Code section 1368.1. The court then referred L.C. to the Shasta County Public Guardian (Public Guardian) to initiate proceedings for a Murphy conservatorship.

The Public Guardian objected to the referral on the basis that two criteria for a Murphy conservatorship were not met, and also protested that there was no funding to pay for the conservatorship. The trial court ordered the Public Guardian to petition for a Murphy conservatorship. The Public Guardian, represented by (Shasta) county counsel, filed the petition but continued to

The Public Guardian appeals from the disqualification order, claiming it was an unlawful means to control and limit his discretion with respect to Murphy conservatorships. The Public Guardian further contends the trial court erred in its determination that two of the criteria for a Murphy conservatorship had been established; he asserts the pending information was not valid and the charged felony did not involve death, great bodily harm, or a serious threat to the physical well-being of another person. The Public Guardian makes the additional arguments that: (1) the criminal trial court lacked jurisdiction to interfere with conservatorship proceedings assigned to another court; (2) there was no misconduct to discipline with a disqualification order; (3) the order violated the separation of powers doctrine; and (4) the district attorney lacked standing.

The disqualification order was premised on the court's orders to file the petition for the Murphy conservatorship and take the matter to trial. As we will explain, we conclude the court had no authority to make those orders. Accordingly, we vacate the order disqualifying county counsel for its failure to follow the invalid orders.

The trial court did, however, have authority to review the Public Guardian's decision not to file the petition for an abuse of discretion. As to that issue, we agree with the court that the Public Guardian abused his discretion in determining that two criteria for a Murphy conservatorship could not be satisfied, because that determination was based on an incorrect interpretation of the law. However, because the trial court cannot compel the filing of a Murphy conservatorship petition,

The defense requested a preliminary hearing pursuant to Penal Code section 1368.1, which permits defense counsel to request a preliminary examination prior to a competency hearing. At the preliminary hearing, the People presented evidence that L.C. was living with the victim. He ordered her to come in his room and she refused. L.C. put a dog leash around the victim's neck and dragged her to the floor. He then tightened the leash and dragged the victim through the front door and into the front yard, a total of 40 to 50 feet. The victim had trouble breathing and suffered pain, with redness and raised welts on her neck.

At the conclusion of the preliminary hearing, the trial court found probable cause to support all charges and referred the case to the Public Guardian to investigate a Murphy conservatorship for L.C.

The Public Guardian's Objections

The Public Guardian objected to the referral on three grounds. He claimed the preliminary hearing violated L.C.'s due process rights because it was held while L.C. was incompetent; the charge of corporal injury on a cohabitant was insufficiently serious because it did not involve death, great bodily injury, or a serious threat to the well-being of another; and there were no funds to pay for L.C.'s placement at a state hospital. As to the last point, the Public Guardian submitted a declaration stating that it cost $228,500 a year to place a conservatee at a state hospital and the Shasta County Public Guardian did not have those funds.

The court overruled the objections and ordered the Public Guardian to evaluate L.C. for a Murphy conservatorship. In response to the Public Guardian's financial concerns, the court responded its overriding concern was the danger to the community; the issue of funding was not before the court.

The Public Guardian submitted an investigation report. The report concluded that L.C. was a danger to others. However, that same report also concluded the criteria of (1) a pending information, and (2) a charge of a felony involving death, great bodily injury, or a serious threat to the well-being of another were not satisfied. Accordingly, the Public Guardian would not agree to serve as conservator.

The People requested a hearing on whether the Public Guardian had abused his discretion in failing to file a petition for a Murphy conservatorship. At the hearing, county counsel confirmed that the position of the Public Guardian was that he would not agree to file a petition for a conservatorship. County counsel reiterated the

The Public Guardian appealed.

DISCUSSION

Motion to Disqualify Counsel

The Public Guardian first claims the disqualification order was an unlawful means to control and limit his discretion with respect to Murphy conservatorships. The People (as respondent) address only the issue of whether the trial court had authority to disqualify county counsel, not whether the disqualification itself was lawful. The People assert only that the court had such authority under section 128, subdivision (a)(4), which permits it to compel obedience with its orders, and subdivision (a)(5), which permits it to control the proceedings before it, and cite no relevant authority.

Initially, because a disqualification order interferes with a client's right to chosen counsel ( People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc . (1999) 20 Cal.4th 1135 , 1145, 86 Cal.Rptr.2d 816 , 980 P.2d 371 ), we question whether disqualification is an available remedy for compelling obedience with a court order-or punishing disobedience therewith. The People offer no authority for the proposition that disqualification of counsel is an appropriate means to enforce a court order, and do not explain why the usual remedy of contempt was insufficient. (See § 1209, subd. (a)(5) [disobedience with lawful order is a contempt].)

In any event, the court's authority to enforce its own orders extends only to lawful orders. (See § 177 ["Every judicial officer shall have the power [¶] ... [¶] [t]o compel obedience to his lawful orders

The trial court has authority to grant a motion to disqualify an attorney under its powers to control the proceeding before it pursuant to section 128, subdivision (a)(5). ( DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829 , 831, 115 Cal.Rptr.2d 847 .) It is undisputed that the People "invited" the motion to disqualify. County counsel argues that the People had no attorney-client relationship with county counsel or the Public Guardian and had no role in the conservatorship proceedings and thus no standing to bring a motion to disqualify counsel. "Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney." ( Great Lakes Const., Inc. v. Burman (2010) 186 Cal.App.4th 1347 , 1356, 114 Cal.Rptr.3d 301 .) California, however, permits a non-client to move for disqualification of opposing counsel under certain circumstances. "[W]hile federal courts generally limit standing to bring disqualification motions to clients or former clients [citation], in California 'where the ethical breach is " 'manifest and glaring' " and so "infects the litigation in which disqualification is sought that it impacts the moving party's interest in a just and lawful determination of [his or] her claims" [citation], a nonclient might meet the standing requirements to bring a motion to disqualify based upon a third party conflict of interest or other ethical violation.' [Citation]." ( Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 , 1204, 135 Cal.Rptr.3d 545 .) "Accordingly, we conclude that where an attorney's continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel." ( Id. at p. 1205, 135 Cal.Rptr.3d 545 .)

The exact nature of the "conflict of interest or other ethical violation" that justifies the disqualification is unclear. The People rely on county counsel's contention that he had an "irreconcilable conflict" because he was being forced to seek a judgment he did not believe was warranted under the law. The trial court, on the other hand, found the conflict of interest was that county counsel based his advice to the Public Guardian on financial considerations rather than those of public safety, which was improper. Any claim of a conflict of interest or a risk to the integrity of the judicial process relies on the validity of the trial court's orders compelling the Public Guardian, represented by county counsel, to proceed with the Murphy conservatorship against his wishes. Again, it is the trial court's authority to issue those orders in the first place that is at issue here, not merely the court's authority to subsequently remove county counsel from representing the Public Guardian.

Conservatorships under the second definition of "gravely disabled" are known as Murphy conservatorships after the legislator who sponsored the legislation. ( Conservatorship of Christopher B . (2015) 240 Cal.App.4th 809 , 811, 193 Cal.Rptr.3d 69 .) To the statutory requirements of a Murphy conservatorship, our Supreme Court has added the constitutionally required finding

Scope of Public Guardian's Discretion as to Murphy Conservatorships

Here, the Public Guardian disputed the recommendation for a Murphy conservatorship. The initial question is whether the trial court was legally permitted to compel the Public Guardian, over his objection, to petition for a Murphy conservatorship and take the matter to trial. Two published cases have addressed this question. Before discussing those cases, we explore other aspects of the Public Guardian's discretion as to conservatorships for the gravely disabled.

In Kaplan v. Superior Court (1989) 216 Cal.App.3d 1354 , 265 Cal.Rptr. 408 ( Kaplan ), two treating psychiatrists requested that the public guardian seek establishment of a conservatorship for a woman under the LPS Act, but the public guardian refused based on the belief that alternative measures were available. The woman's husband filed a petition, seeking a conservatorship for his wife with a private conservator and alleging the public guardian had abused its discretion by not filing the petition. The trial court ruled it did not have jurisdiction to entertain an LPS Act petition brought by anyone other than the county's appointed investigating officer. ( Id. at pp. 1356-1357, 265 Cal.Rptr. 408 .) This court affirmed, basing our decision on

In In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857 , 12 Cal.Rptr.3d 142 ( Martha P. ), the question before the appellate court was whether the voluntary dismissal provision of section 581 applied to the dismissal of a petition for reestablishment of an LPS Act conservatorship. The court held section 581 applied to the special proceeding of an involuntary commitment under the LPS Act under its express terms. ( Martha P., at p. 867, 12 Cal.Rptr.3d 142 .) Section 581 permitted voluntary dismissal of an "action" and defined "action" to include a special proceeding. ( § 581, subd. (a)(1).) Further, the LPS Act provided the procedure for establishing a conservatorship followed that of the Probate Code, which in turn referred to the certain procedures for civil actions, including section 581. ( Martha P., at pp. 867-868, 12 Cal.Rptr.3d 142 .) Noting the protections provided by the LPS Act to potential conservatees, the court found it "only appropriate that the conservator in reestablishment have the discretion to dismiss or withdraw a petition when the investigation shows the conservatee is no longer gravely disabled." ( Id . at p. 868, 12 Cal.Rptr.3d 142 .) The public conservator had discretion to file a voluntary dismissal; that dismissal was effective upon tender to the court clerk, and entry of the dismissal terminated the trial court's jurisdiction. Accordingly, the appellate court declined to address the issue of whether the conservatee continued to be gravely disabled. ( Id. at pp. 871-782, 12 Cal.Rptr.3d 142 .)

In the trial court here, the Public Guardian relied on Martha P. in seeking to dismiss the petition the trial court had ordered filed. The court ruled that Martha P. did not apply because a Murphy conservatorship was at issue and such a conservatorship was quasi-criminal; accordingly the dismissal provisions of Penal Code section 1385 applied to authorize court dismissal of an action only "in furtherance of justice." We reject the conclusion that Murphy conservatorships are subject to different procedural rules than other conservatorships for the gravely disabled under the LPS Act. Although the conservatorship in Martha P. was based on the

As noted ante , two cases have specifically addressed the situation where a public guardian or public conservator refused to file a petition for a Murphy conservatorship under the LPS Act: Karriker and Kennebrew . We turn now to those cases.

In Karriker, supra, 149 Cal.App.4th 763 , 57 Cal.Rptr.3d 412 , the public guardian appealed from an order compelling the filing of an LPS Act conservatorship. The appellate court treated the order as a writ of mandate. ( Id . at pp. 773-774, 57 Cal.Rptr.3d 412 .) Penal Code section 1370, subdivision (c)(2) authorizes a court to order the conservatorship investigator to "initiate proceedings" for a conservatorship. The Karriker court interpreted the phrase "initiate proceedings" to refer "not to filing the petition but to conducting the investigation that is required before a petition may be filed under Chapter 3 of the [LPS] Act." ( Karriker, p. 782, 57 Cal.Rptr.3d 412 .) The court noted this language was the same as that contained in Penal Code section 1370.01, subdivision (c)(2), referencing a standard LPS conservatorship (unable to care for self) for an incompetent misdemeanant. There was "absolutely no reason to believe" that section gave the court authority to order the filing of a conservatorship petition. ( Karriker, p. 783, fn. 11, 57 Cal.Rptr.3d 412 .)

The Karriker court rejected the argument that the criteria for a Murphy conservatorship necessarily involved pure questions of law, but recognized that some may. "While a court may be able to determine conclusively whether a defendant meets some of the statutory requirements of section 5008, subdivision (h)(1)(B) -namely, whether the individual has been found mentally incompetent to stand trial and has been charged with certain felonies by an indictment or information that has not been dismissed-" other criteria pose questions of fact and expert judgment, particularly whether defendant represents a danger to others by reason of mental disease, defect, or disorder. ( Karriker, supra, 149 Cal.App.4th at p. 784, 57 Cal.Rptr.3d 412 .)

The court found many reasons for not compelling the public conservator to file the petition. First, as the Kaplan court had found, that power was vested

Only the district attorney and county counsel have statutory authority to present the allegations of grave disability to the court. ( Welf. & Inst. Code, § 5114.) As these are the legal officers representing the conservatorship investigator, this delegation of authority suggests it is the conservatorship investigator who makes the decision whether to file a petition. We agree with the Karriker and Kaplan

Because we conclude that the trial court has no authority to order the Public Guardian to file a petition to establish a Murphy conservatorship, we need not address the argument, joined by amici curiae, that such authority violates the separation of powers doctrine. Our interpretation of the applicable statutes is consistent with the principle that courts should avoid an interpretation that invites constitutional difficulties. ( In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339 , 349, 158 Cal.Rptr. 350 , 599 P.2d 656 .)

Whether Public Guardian Abused His Discretion

While we find the Public Guardian has discretion whether to file a

A. The Pending Information Was Valid

The Public Guardian contends the requirement for a Murphy conservatorship of a pending information was not satisfied because the information was invalid. The basis for this argument is the undisputed fact that the preliminary hearing was held while L.C. was incompetent. The Public Guardian relies on People v. Duncan (2000) 78 Cal.App.4th 765 , 772, 93 Cal.Rptr.2d 173 ( Duncan ): "Conducting a preliminary hearing when the defendant is mentally incompetent violates his right to due process of law."

Previously, Penal Code section 1368.1 provided that no competency hearing could be held until after an information or indictment had been filed. (Former Pen. Code, § 1368.1, subd. (a), Stats 1974, ch. 1511, § 4, p. 3317.) In Hale v. Superior Court (1975) 15 Cal.3d 221 , 124 Cal.Rptr. 57 , 539 P.2d 817 ( Hale ), the People argued the statute was unconstitutional. They argued "it would be a denial of due process to conduct a preliminary hearing when doubt has arisen as to a defendant's competency." ( Id . at p. 223, 124 Cal.Rptr. 57 , 539 P.2d 817 .) Our Supreme Court disagreed: "Rather than denying due process, the statute promotes it by insuring that a felony defendant will not be committed for incompetency unless there is probable cause to believe he committed the crime with which he is charged. The problem noted by the People may be resolved by conducting another preliminary hearing (or a grand jury hearing) when a defendant adjudged incompetent subsequently regains his competence." ( Ibid . )

The Hale court rejected the argument that a mentally incompetent defendant is denied due process if forced to proceed with a preliminary hearing. ( Hale, supra, 15 Cal.3d at p. 227, 124 Cal.Rptr. 57 , 539 P.2d 817 .) The court quoted from

The due process concern arises if the defendant is brought to trial based on an information obtained after a preliminary hearing which was held when the defendant is incompetent. "Therefore, if a preliminary hearing is held while a defendant is incompetent, and if criminal proceedings subsequently resume upon restoration of his competence, the defendant would be entitled to have the information set aside." ( Hale, supra , 15 Cal.3d at p. 228, 124 Cal.Rptr. 57 , 539 P.2d 817 .) To bring the defendant to trial would require a second preliminary hearing or grand jury proceeding. ( Ibid . )

In 1982 the Legislature amended Penal Code section 1368.1. (Stats. 1982, ch. 444, § 1, p. 1813.) Under the amendment, Penal Code section 1368.1, subdivision (a) reads as it does today. "If the action is on a complaint charging a felony, proceedings to determine mental competence shall be held prior to the filing of an information unless the counsel for the defendant requests a preliminary examination under the provisions of Section 859b. At such preliminary examination, counsel for the defendant may (1) demur, (2) move to dismiss the complaint on the ground that there is not reasonable cause to believe that a felony has been committed and that the defendant is guilty thereof, or (3) make a motion under Section 1538.5." Under this current version of the statute, the "two preliminary hearings" rule of Hale survives. ( Duncan , supra , 78 Cal.App.4th at p. 771, 93 Cal.Rptr.2d 173 .) In Duncan , after his competence was restored, the defendant moved to dismiss the information, arguing that he was incompetent at the time of the preliminary hearing. The trial court granted the motion and the appellate court affirmed because substantial evidence supported the trial court's finding that defendant was incompetent at the time of the preliminary hearing. ( Id . at 774, 93 Cal.Rptr.2d 173 .) Duncan's statement that the preliminary hearing violated defendant's due process rights, quoted and relied on by the Public Guardian in this case, is limited to a preliminary hearing that is the basis for proceeding to a criminal trial on the charges .

Here, L.C.'s counsel requested a preliminary hearing, as permitted under Penal Code section 1368.1. Should L.C. be restored to competency, he would

L.C. argued to the trial court that only such enumerated felonies meet the requirements for a Murphy conservatorship, and the Public Guardian agreed. The trial court disagreed with the position that a Murphy conservatorship is limited to situations where there is a charge of a "serious" or "violent" felony, as defined in the Penal Code, and so do we. Welfare and Institutions Code section 5008, subdivision (h)(1)(B) does not use those terms or refer to the definitions in the Penal Code, and does not contain language limiting consideration to the elements of the charged felony. Generally, where the determination of the nature of a felony concerns the

The trial court's orders (1) compelling the Public Guardian to petition for a Murphy conservatorship, (2) compelling the Public Guardian to proceed to a conservatorship trial on the petition, and (3) disqualifying county counsel and appointing the district attorney to prosecute the petition are vacated. The matter is remanded to allow the Public Guardian to exercise his discretion and decide whether to petition for a Murphy conservatorship in accordance with the law.

We concur:

Murray, Acting P.J.

Hoch, J.