People v. Anderson CA2 /6

Filed 5/6/15 P. v. Anderson CA2 /6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B254565 (Super. Ct. No. F456053) Plaintiff and Respondent, (San Luis Obispo County)

v.

JASON ANDREW ANDERSON,

Defendant and Appellant.

Jason Andrew Anderson was civilly committed to Atascadero State Hospital (ASH) after he was found not guilty by reason of insanity on charges in an unrelated case. During that commitment, Anderson pled no contest to two counts of assault on a hospital staff member by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a).)1 He was sentenced to two years in state prison, with no credit for time served, and then remanded to ASH pursuant to the civil commitment. Two years later, while still under the commitment, Anderson filed a motion for clarification of sentencing terms and custody credits. He sought to avoid the prison term by receiving credit for time spent at ASH or, alternatively, by serving his sentence at ASH. The trial court determined it lacked authority to grant either request, but issued a

1 All statutory references are to the Penal Code unless otherwise stated.

"recommendation" that ASH release Anderson to the California Department of Corrections and Rehabilitation (CDCR) to serve his sentence, with CDCR then transferring him back to ASH for treatment pursuant to section 2684. The court stated, "that's the only thing that I can think of that might work." Anderson contends the trial court erred by failing to designate ASH as the place of service of his state prison sentence. We affirm.2 Anderson contends the pending prison sentence renders it impossible for him to be restored to sanity as that would require placement in a forensic conditional release program for one year or release to an outpatient program. (§ 1026.2, subds. (d), (e).) He claims that as long as he is subject to the prison term, he is ineligible for any type of release to a transitional program, and therefore cannot complete his civil commitment. He is incorrect. Section 1026.2, subdivision (m), applies specifically to persons such as Anderson "who, at the time of the petition or recommendation for restoration of sanity, are subject to a term of imprisonment with prison time remaining to serve . . . ." Recognizing that such persons are ineligible for a conditional release program, it states "a finding of restoration of sanity may be made without the person being in a forensic conditional release program for one year. If a finding of restoration of sanity is made, the person[] shall be transferred to the custody of the California Department of Corrections to serve the term of imprisonment remaining . . . ." (Ibid., italics added; People v. Chavez (2008) 160 Cal.App.4th 882, 896-897 (Chavez).)