In re Lerke

Filed 12/19/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOHNATHON LERKE
on
Habeas Corpus.
D084051
(Super. Ct. Nos. CD292512 &
MH118518)
Petition for writ of habeas corpus. Petition denied as moot.
Jo E. Super, Chief Deputy Public Defender, and Emily Rose-Weber,
Deputy Public Defender, for Petitioner.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney
General, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys General,
for Respondent.
Claudia G. Silva, County Counsel, and Anjana Pottathil, Deputy
County Counsel, for Respondent.
The treatment of people with mental illness in our justice system is an
ongoing source of concern for our lawmakers and the courts. Since at least
2010, there has been a persistent shortage of bed space at California’s state
hospitals. (People v. Yang (2022) 78 Cal.App.5th 120, 137; People v. Kareem
A. (2020) 46 Cal.App.5th 58, 79; In re Mille (2010) 182 Cal.App.4th 635, 638–
639.) In a series of cases, California courts have granted relief to defendants
found incompetent to stand trial who were being held in county jail for

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unreasonably long periods of time while awaiting a bed in a state hospital for
competency restoration treatment. (See Stiavetti v. Clendenin (2021) 65
Cal.App.5th 691, 707–711 (Stiavetti) [summarizing relevant case law].)
These cases have recognized that the condition of mentally incompetent
defendants often deteriorates due to their prolonged confinement in county
jail without adequate treatment while awaiting a transfer to the state
hospital. (Id. at p. 725 [citing cases].)
Here we are confronted with a similar issue involving mentally
incompetent Murphy conservatees1 who are “placed” in the state hospital but
confined in county jail indefinitely while waiting for bed space to become
available at the state hospital. According to the record before us, some
individuals on Murphy conservatorships in San Diego County are
incarcerated in county jail for years waiting for room in the state hospital,
which in their counsel’s experience often results in a significant deterioration
of their mental health.
In a petition for writ of habeas corpus, Johnathon Lerke challenges his
confinement at the county jail pending his transfer to the state hospital.
Lerke is the subject of a Murphy conservatorship that requires his placement
in a state hospital, but he was nonetheless confined in county jail for months
due to an apparent lack of space at the hospital. Lerke argues his
confinement at the jail was not statutorily authorized and violated his equal
protection and due process rights.
1 A “Murphy conservatorship” refers to a conservatorship established
under Welfare and Institutions Code section 5008, subdivision (h)(1)(B).
Murphy conservatorships are named after the legislator who sponsored the
legislation. (Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, 1084
(Lee).) Further unspecified statutory references are to the Welfare and
Institutions Code.

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We conclude that no legal authority permitted Lerke’s indefinite
detention in the county jail pending his transfer to the state hospital, and he
could no longer be confined in jail after the conclusion of the competency
proceedings in his underlying criminal case. The statutory framework
governing the placement of conservatees—including conservatees who, like
Lerke, have been found to pose a substantial danger of physical harm to
others—requires them to be placed in a treatment facility that adequately
promotes their treatment and provides protection for the public. (§ 5358,
subd. (a)(1)(B).) The county jail does not satisfy these statutory requirements
and is not included in the list of facilities authorized to provide treatment to
conservatees under section 5358, subdivision (a)(2). Lerke’s confinement in
the county jail as a Murphy conservatee was therefore unlawful.
We nevertheless deny habeas relief only because Lerke was transferred
to an authorized treatment facility during the pendency of these
proceedings.2
2 Shortly before oral argument, Lerke informed us that after being held
in county jail for five months as a Murphy conservatee, he was transferred to
the county psychiatric hospital, an authorized treatment facility. We take
judicial notice of the court’s October 2, 2024 order placing Lerke in the county
psychiatric hospital pending transfer to the state hospital in the Murphy
conservatorship proceeding. (Evid. Code, §§ 452, subd. (d), 459.) The
Attorney General and the Office of the Public Conservator of the San Diego
County Health and Human Services Agency (“Agency”) have both submitted
letter briefs arguing that Lerke’s petition should now be dismissed as moot.
Although his petition is technically moot, we exercise our discretion to decide
it on the merits because this is a recurring issue of public importance. (In re
Schuster (2019) 42 Cal.App.5th 943, 952 [habeas court has discretion to
decide recurring issue of public importance even if it is not otherwise likely to
evade appellate review].) Moreover, this is an issue that may otherwise
evade appellate review. Indeed, we are aware of several prior cases before
this court involving similar issues that were ultimately dismissed as moot

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FACTUAL AND PROCEDURAL BACKGROUND
A. Proceedings in the Superior Court3
In November 2021, the People charged Lerke in a criminal complaint
with multiple felony sex offenses. Lerke pled not guilty to the charges. At
the readiness conference in December 2021, the trial court suspended
criminal proceedings under Penal Code section 1368 and referred Lerke for a
mental competency examination. The court later found Lerke was
incompetent to stand trial, and on April 25, 2022, ordered him committed to
the state hospital for competency restoration treatment for a maximum term
of two years.
Nearly two years later, in January 2024, the medical director of the
Department of State Hospitals (DSH) informed the court that Lerke had not
regained competence. Ninety days before the expiration of Lerke’s two-year
commitment, on January 26, 2024, the court ordered him transported from
the state hospital to the custody of the sheriff. After Lerke was transported
to San Diego County, the superior court conducted a hearing regarding his
competence on April 25, 2024.
At the hearing, the court noted that a Murphy conservatorship had
been established the previous day in the mental health court4 and that Lerke
after the Murphy conservatee was eventually transferred from county jail to
the state hospital.
3 Lerke’s claims relate solely to his continued detention in the county jail
following the establishment of his conservatorship, and we limit our
discussion of the factual and procedural background accordingly. Because
there was no trial, and the record does not include the transcript of a
preliminary hearing or grand jury proceeding, we do not include a summary
of the facts underlying the criminal charges against Lerke. According to a
probable cause affidavit, the charges were based on an incident when Lerke
allegedly sexually assaulted a sleeping woman on the trolley.

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had been ordered placed at the state hospital under the terms of his
conservatorship.5 Lerke’s counsel asked the court to dismiss the criminal
case against him because he had been deemed non-restorable. Additionally,
his counsel asked the court to order Lerke released from the county jail and
placed at a local psychiatric hospital because his maximum two-year
commitment under Penal Code section 1370 was set to expire that day.
The criminal court denied defense counsel’s request to dismiss the
criminal charges against Lerke, reasoning that the basis for his Murphy
conservatorship would no longer exist if the criminal case was dismissed.
The court then explained it did not have control over Lerke’s current
placement because it was overseeing the competency proceedings in Lerke’s
criminal case, rather than his conservatorship. The court noted that the
mental health court had ordered Lerke’s placement at the state hospital
rather than a county mental health placement.
The criminal court then expressed its “understanding” that “state
hospital individuals are held in custody until [state hospital beds] are
available.” According to the court, Lerke would be detained in custody based
on his conservatorship and he would remain in county jail until placement
4 Two superior court judges addressed Lerke’s pending matters upon his
return from the state hospital: the judge overseeing the competency
proceedings in Lerke’s criminal case under Penal Code section 1370, and the
judge overseeing the conservatorship proceedings under Welfare and
Institutions Code section 5358. We refer to the former as the “criminal court”
and the latter as the “mental health court.”
5 The parties have not provided us with the order establishing the
conservatorship and requiring Lerke’s placement at the state hospital.
However, other court orders in the record establish the existence of the
conservatorship and Lerke’s commitment to the state hospital.

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was available at the state hospital. However, the court invited the parties to
raise the issue with the mental health court.
Thereafter, Lerke’s counsel representing him in his conservatorship
proceedings submitted a letter to the mental health court requesting that it
order Lerke transferred to the San Diego Psychiatric Hospital pending his
placement at the state hospital. The mental health court denied the request.
However, it ordered the public conservator to update Lerke’s individual
treatment plan at the county jail and to make timely and reasonable efforts
to facilitate Lerke’s transfer to the state hospital.
B. Habeas Corpus Proceedings
On May 8, 2024, Lerke filed a petition for writ of habeas corpus in this
court challenging his continued confinement in the county jail.6 He alleged
he was being held in custody on his criminal case beyond the two-year
maximum commitment date under Penal Code section 1370, in violation of
his statutory and constitutional rights. He requested his immediate release
from the county jail, or in the alternative, transfer to an appropriate
treatment facility.
We requested and received informal responses and an informal reply
from the parties. The Attorney General and the Agency separately filed
informal responses. In its informal response, the Agency noted that “[t]he
6 The record does not reflect that Lerke filed a petition for writ of habeas
corpus in the superior court in the first instance. However, this court has
original jurisdiction in habeas corpus proceedings, and we may exercise our
discretion to review a petition in the first instance when the petition raises
only issues of law. (Cal. Const., art. VI, § 10; In re Davis (1979) 25 Cal.3d
384, 389 [exercising discretion to decide petition in the first instance where
only issues of law were raised and there were no material factual issues].)
We construe Lerke’s petition to solely raise the legal issue of whether his
confinement in county jail was legally authorized, and we therefore exercise
our discretion to address the petition in the first instance.

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unavailability of beds at DSH facilities is a longstanding problem.” The
Agency also acknowledged case law holding that the lack of available bed
space does not excuse unreasonable delay in complying with commitment
orders. (See, e.g., In re Chunn (2022) 86 Cal.App.5th 639, 645
[acknowledging “the complex and difficult problems created by limited
funding, resources, and bed space to treat IST [incompetent to stand trial]
defendants at DSH facilities” but finding “that such challenges do not relieve
DSH of its responsibility to provide treatment and competency restoration
services within a reasonable period of time”].)
Lerke included with his informal reply a declaration by the supervisor
of the Mental Health Division of the San Diego County Office of the Public
Defender. The supervisor attested she had observed instances in which
Murphy conservatees waited in county jail for years to be transferred to the
state hospital, during which their mental and physical health significantly
deteriorated. The supervisor was aware of Lerke’s case and she expressed
concern that his mental and physical wellbeing were at risk due to his
confinement in a jail facility that was not capable of meeting his treatment
needs. In her opinion, the local “County Psychiatric Hospital is a locked
facility capable of detaining a person who is civilly committed on a Murphy
conservatorship.” The supervisor indicated she was personally aware of other
Murphy conservatees facing charges more serious and violent than Lerke’s
who had been “held in the County Psychiatric Hospital.”
Lerke’s informal reply also included a declaration from the attorney
who represented him in his conservatorship proceedings. In the declaration,
counsel expressed his belief that the county jail at which Lerke was being
detained, the George Bailey Detention Facility, did not meet the
requirements of a “treatment facility” under the Lanterman-Petris-Short

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(“LPS”) Act. He expressed concern regarding Lerke’s continued incarceration
in the county jail because the facility was not able to meet the level of
psychiatric care Lerke requires.
We issued an order to show cause why the relief Lerke requested
should not be granted. We asked the parties to address, among any other
issues deemed appropriate: (1) whether Lerke is being confined in the county
jail pursuant to his criminal case or pursuant to the terms of his
conservatorship; (2) assuming Lerke is not being confined in the county jail
pursuant to his criminal case, whether the Welfare and Institutions Code
permits his continued confinement in the county jail pending his transfer to
the state hospital; and (3) assuming Lerke may not be confined in the county
jail pending his transfer to the state hospital, whether he must be released on
his own recognizance. The parties have addressed these issues in their
respective briefing that we describe further in our discussion.
DISCUSSION
A. The Parties’ Contentions
In his return, the Attorney General generally admitted the material
allegations of the habeas corpus petition but denied that Lerke’s continued
custody in county jail was unlawful. Specifically, the Attorney General
acknowledged that Lerke’s two-year commitment for competency restoration
expired on April 25, 2024; a Murphy conservatorship was established on
April 24, 2024; the terms of the Murphy conservatorship required Lerke’s
placement in the state hospital; but Lerke nevertheless remained in custody
in the county jail because there was no space available at the state hospital.
The Attorney General did not allege in the return or present evidence that
there was no alternative treatment facility available to place Lerke while he
was waiting for a bed at the state hospital.

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The Attorney General contended that Lerke’s continued confinement in
the county jail was due to his conservatorship, and not his criminal case.7
The Attorney General acknowledged that the Welfare and Institutions Code
does not expressly allow a conservatee to be confined in jail pending their
placement at a state hospital. Nonetheless, the Attorney General argued
that California law “implicitly” permitted Lerke’s continued confinement in
the jail until there was room for him at the state hospital. Alternatively,
assuming the law did not allow for Lerke’s confinement in the county jail
pending his transfer to the state hospital, the Attorney General argued Lerke
was not entitled to release on his own recognizance. Rather, the Attorney
General contended Lerke should seek a change of placement hearing in the
mental health court under sections 5358, subdivision (d)(2) and 5358.3.
Lerke responded in his traverse that his continued confinement in
county jail was due solely to the detention order by the criminal court
overseeing the competency proceedings in his criminal case, and that the
mental health court acquiesced in this order when it authorized Lerke to
remain in jail pending his transfer to the state hospital. According to Lerke,
the “criminal court exercising jurisdiction over the criminal competency
matter” did not have the authority to order his no-bail detention in the
county jail pending his transfer to the state hospital. Lerke argued he could
no longer be confined in the jail in his criminal case because the maximum
commitment for competency restoration under Penal Code section 1370 has
7 Although the Agency filed an informal response before we issued the
order to show cause, and then refiled its response upon direction from this
court to file a confidential exhibit under seal, it did not file a formal return.
After the deadline for the return passed, our clerk’s office inquired of the
Agency whether it intended to file one and was informed by its counsel that
the Attorney General had provided the response on behalf of the People.

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expired. Additionally, he contended he could not be detained in the jail under
his conservatorship because the Welfare and Institutions Code did not
implicitly permit Lerke’s indefinite confinement in the county jail, or any
other unauthorized treatment facility, pending his transfer to the state
hospital. Accordingly, Lerke requested that we order his immediate release
from county jail and direct the mental health court to place him in an
authorized treatment facility.
The parties do not dispute that the validity of Lerke’s confinement in
the county jail may properly be adjudicated in a habeas corpus proceeding. A
person who is unlawfully imprisoned or their liberty unlawfully restrained
may prosecute a writ of habeas corpus to challenge their confinement or
restraint. (Cal. Const., art. I, § 11; Pen. Code, § 1473, subd. (a).) Habeas
relief is available to petitioners to challenge their unlawful confinement in
county jail instead of a proper treatment facility. (See, e.g., In re Williams
(2014) 228 Cal.App.4th 989, 994 [granting habeas relief and concluding that
petitioner “may not be placed in the county jail for the purpose of receiving
competency services”].) When the validity of the confinement does not turn
on any disputed factual questions, as we find to be true here, the merits of
the habeas corpus petition may be decided without an evidentiary hearing.
(People v. Duvall (1995) 9 Cal.4th 464, 478–479.)
B. Background of the LPS Act
The LPS Act governs the involuntary commitment and treatment of
gravely disabled individuals through a conservatorship program.
(Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008–1009 (Susan T.).)
“Enacted by the Legislature in 1967, the [LPS Act] includes among its goals
ending the inappropriate and indefinite commitment of the mentally ill,
providing prompt evaluation and treatment of persons with serious mental

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disorders, guaranteeing and protecting public safety, safeguarding the rights
of the involuntarily committed through judicial review, and providing
individualized treatment, supervision and placement services for the gravely
disabled by means of a conservatorship program.” (Id. at p. 1009.) A person
civilly committed under the LPS Act may be subject to an involuntary
confinement at a designated treatment facility, but the commitment is not
the “equivalent to criminal punishment in its design or purpose.”
(Conservatorship of John L. (2010) 48 Cal.4th 131, 151.)
There are two categories of conservatorships under the LPS Act based
on its definition of gravely disabled: (1) an “LPS conservatorship” pursuant to
Welfare and Institutions Code section 5008, subd. (h)(1)(A); and (2) a
“Murphy conservatorship” pursuant to Welfare and Institutions Code section
5008, subd. (h)(1)(B). (County of Los Angeles v. Superior Court (2013) 222
Cal.App.4th 434, 442 (County of Los Angeles).) A Murphy conservatorship
may be established if a person is criminally charged with a felony offense, has
been found mentally incompetent to stand trial under Penal Code section
1370, and all of the following conditions exist: (1) the charges include a felony
involving death, great bodily harm, or a serious threat to the well-being of
another person; (2) there has been a probable cause determination and the
charges have not been dismissed; (3) as a result of a mental health disorder,
the person is unable to understand the nature and purpose of the proceedings
against them and to assist counsel in their defense in a rational manner; and
(4) the person represents a substantial danger of physical harm to others by
reasons of a mental disease, defect, or disorder. (Welf. & Inst. Code, § 5008,
subd. (h)(1)(B).)
The addition of the Murphy conservatorship to the statutory scheme
established by the LPS Act was intended to “ ‘address the difficult problem of

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integrating and resolving the conflicting concerns of protecting society from
dangerous individuals who are not subject to criminal prosecution, preserving
a libertarian policy regarding the indefinite commitment of mentally
incompetent individuals who have yet to be convicted of criminal conduct,
and safeguarding the freedom of incompetent criminal defendants who
present no threat to the public.’ ” (Lee, supra, 18 Cal.App.5th at p. 1085.)
The LPS Act authorizes the establishment of a Murphy conservatorship for a
period up to one year. (Id. at p. 1086.) At the end of the one-year term, the
conservatorship automatically terminates unless the conservator successfully
petitions for reappointment for a succeeding one-year period. (Ibid.; § 5361.)
C. Placement Process for Murphy Conservatees
A defendant’s path to a Murphy conservatorship begins when criminal
charges have been filed against them. (See Welf. & Inst. Code, § 5008, subd.
(h)(1)(B).) If that defendant is found incompetent to stand trial during the
pendency of the criminal case, the court must suspend the criminal
proceedings. (Pen. Code, § 1370 (a)(1)(B).) The court must then order the
defendant delivered by the sheriff to a state hospital or other available
treatment facility that “will promote [their] speedy restoration to mental
competence.” (Pen. Code, § 1370, subd. (a)(1)(B)(i).)
The defendant’s commitment term for restoration of competency under
Penal Code section 1370 may not exceed two years, or a period of
commitment equal to the maximum term of imprisonment for the most
serious offense charged, whichever is shorter. (Pen. Code, § 1370 subd.
(c)(1).) If the defendant’s competence cannot be restored, they must be
returned to the committing court no later than 90 days before the expiration
of the maximum term of commitment. (Ibid.) Upon the defendant’s return to
the committing court, the court may order a conservatorship investigator to

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initiate conservatorship proceedings under the LPS Act if it appears that the
defendant is gravely disabled. (Pen. Code, § 1370, subd. (c)(3).) Otherwise,
the defendant must be released. (Rodriguez v. Superior Court (2023) 15
Cal.5th 472, 496 (Rodriguez).)
If a conservatorship is established, the committing court must
determine the appropriate level of care for the conservatee. (§ 5358, subd.
(c)(2) [“The court shall determine the most appropriate placement for the
conservatee.”].) The primary focus in determining the appropriate level of
care for a Murphy conservatee is public safety, but the placement must also
achieve “the purposes of treatment of the conservatee[.]” (§ 5358, subd.
(a)(1)(B); County of Los Angeles, supra, 222 Cal.App.4th at p. 445.) If the
conservator seeks a change of placement to a less restrictive alternative than
that originally ordered for a Murphy conservatee, the court may not approve
the change if the court determines by a preponderance of the evidence that
the placement poses a threat to the safety of the public, the conservatee, or
any other individual. (§ 5358, subd. (d)(3).)
Section 5358, subdivision (a)(2), enumerates the permissible treatment
facilities for conservatees under the LPS Act. It provides: “The placement
may include a medical, psychiatric, nursing, or other state-licensed facility, or
a state hospital, county hospital, hospital operated by the Regents of the
University of California, a United States government hospital, or other
nonmedical facility approved by the State Department of Health Care
Services or an agency accredited by the State Department of Health Care
Services, or in addition to any of the foregoing, in cases of chronic alcoholism,
to a county alcoholic treatment center.” Section 4100 lists the facilities over
which DSH has jurisdiction, including five state hospitals; admission,
evaluation and stabilization centers; approved facilities under contract with

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DSH; and county jail treatment facilities under contract with DSH to provide
“competency restoration services.”
D. The Law Does Not Permit a Conservatee’s Indefinite Confinement
in the County Jail Pending the Availability of Space at the State
Hospital
Lerke has never argued there was an insufficient basis to establish his
Murphy conservatorship, nor has he contested the court’s order placing him
at the state hospital. Rather, he merely requested in his petition that he be
removed from custody in the county jail and released or placed at an
authorized treatment facility. Lerke emphasized that the Welfare and
Institutions Code plainly enumerates the facilities authorized to provide
treatment to a conservatee, and the county jail is not included in this list.
In response, the Attorney General does not dispute that the county jail
is not one of the authorized treatment facilities for Murphy conservatees
under section 5358, subdivision (a)(2). The Attorney General acknowledges
that “[t]he Welfare and Institutions Code contains no provision that
addresses circumstances like those presented here: where the terms of the
Murphy conservatorship require placement in the State Hospital, but there is
currently no room to place the conservat[ee] there.” The Attorney General
asserts, however, that the statutes “implicitly authorize temporary detention
in a county jail facility pending placement in the State Hospital.”
The Attorney General points to the violent nature of the criminal
charges alleged against Lerke to support the argument that he may be
detained, at least temporarily, in the jail pending his transfer to the state
hospital. The Attorney General cites to Penal Code section 1370, which
requires the state hospital to inform the sheriff when a placement becomes
available for a defendant who is incompetent to stand trial. (Pen. Code,

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§ 1370, subd. (a)(1)(B)(ii)(I).) The Attorney General also notes that under
Penal Code section 1370, a defendant who is charged with forcible sex
offenses and subject to commitment for competency restoration must be
placed at a state hospital facility or other secure treatment facility absent
findings justifying an alternative placement. (Pen. Code, § 1370, subd.
(a)(1)(B)(iii).)
We conclude that Lerke has the better argument. Even if we were to
indulge the questionable assumption that a person may be confined in a
penal facility based on “implicit” statutory authority, we see nothing in the
statutory scheme that explicitly or implicitly authorized Lerke’s indefinite
confinement in county jail while awaiting a state hospital bed. The
provisions of Penal Code section 1370 cited by the Attorney General do not
apply after the conclusion of competency proceedings. These provisions
merely discuss the appropriate placements for a criminal defendant who is
initially found incompetent to stand trial and ordered to undergo competency
restoration treatment. (Pen. Code, § 1370, subd. (a)(1)(B).) In that situation,
the defendant’s transfer to the state hospital under Penal Code section 1370
will, in many instances, originate from the county jail where the defendant
has been detained due to their criminal case. But after the expiration of the
two-year commitment term under Penal Code section 1370, the defendant
may no longer be detained for the purpose of restoring their competence to
stand trial in the criminal case. (Rodriguez, supra, 15 Cal.5th at p. 496 [“If a
defendant has not regained competency within two years of the date of
commitment, the defendant is either released or subject to civil
conservatorship proceedings.”].) As the Attorney General notes in his return,
the only options for the court after the two-year competency restoration

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period has expired are to release the defendant or initiate conservatorship
proceedings. (Ibid.)
Here, Lerke underwent competency restoration treatment for two years
under Penal Code section 1370. Following his return to San Diego County,
the superior court found he was non-restorable. As the Attorney General
acknowledges, the two-year maximum commitment date for restoration of
competency in Lerke’s criminal case expired on April 25, 2024. The criminal
court had no legal authority to order Lerke’s continued detention in county
jail after his commitment had expired and he was no longer subject to
competency restoration treatment. The provisions of Penal Code section 1370
that dictated Lerke’s placement during his competency restoration treatment
were no longer applicable.
Nor did the provisions of the Welfare and Institutions Code governing
Murphy conservatorships explicitly or implicitly authorize Lerke’s continued
confinement in county jail while awaiting a state hospital bed. “When
interpreting a statute, we view the statutory enactment as a whole; consider
the plain, commonsense meaning of the language used in the statute; and
seek to effectuate the legislative intent evinced by the statute.” (People v.
Beckemeyer (2015) 238 Cal.App.4th 461, 465.) “ ‘ “We first examine the words
themselves because the statutory language is generally the most reliable
indicator of legislative intent. [Citation.] The words of the statute should be
given their ordinary and usual meaning and should be construed in their
statutory context.” [Citation.] If the plain, commonsense meaning of a
statute’s words is unambiguous, the plain meaning controls.’ ” (People v.
King (2006) 38 Cal.4th 617, 622.)
Section 5358, subdivision (a)(2) sets forth a complete list of the
authorized treatment facilities at which a conservatee may be placed under

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the LPS Act. The list in subdivision (a)(2) does not include county jail. A
“nonmedical facility” is included on the list only if it is “approved by the State
Department of Health Care Services or an agency accredited by the State
Department of Health Care Services.” (§ 5358, subd. (a)(2).) The Attorney
General does not contend that the county jail has been so approved or
accredited, nor is there any evidence in the record to support such a
conclusion. It would defeat the plain language of the statute to allow
placement in a nonmedical facility that does not satisfy this explicit statutory
requirement. And there is nothing else in the plain text of this statute, or
reflected in the statute’s goals, that suggests a legislative intent to permit
confinement in facilities other than those explicitly authorized. (See
Susan T., supra, 8 Cal.4th at p. 1008 [discussing the legislative goals of the
LPS Act].) Specifically, nothing in the statute states or even implies that a
conservatee may be temporarily placed at a penal facility not listed in section
5358, subdivision (a)(2) while awaiting a bed in the state hospital.
Our conclusion is supported by the familiar canon of statutory
interpretation, expressio unius est exclusio alterius. This maxim means “ ‘the
expression of certain things in a statute necessarily involves exclusion of
other things not expressed’ ” (Dyna-Med, Inc. v. Fair Employment & Housing
Com. (1987) 43 Cal.3d 1379, 1391, fn. 13), and it is “generally applied to a
specific statute, which contains a listing of items to which the statute applies”
(In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1411). Under this guide of
statutory interpretation, we infer that a “ ‘listing of terms and conditions is
complete[.]’ ” (People v. Johnson (1988) 47 Cal.3d 576, 593; see also In re
Carlos H. (2016) 5 Cal.App.5th 861, 870.) By listing authorized treatment
facilities for LPS conservatees in section 5358, subdivision (a)(2)—and

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including only certain specified nonmedical facilities—the Legislature
excluded other nonmedical facilities that do not appear on the list.
Our reading of this provision comports with the overall statutory
scheme, which is structured to allow an orderly transition from competency
proceedings to a Murphy conservatorship—without extending the defendant’s
confinement in the county jail beyond the maximum term of commitment for
competency restoration. As noted, the law requires that the defendant be
returned to the criminal court no later than 90 days before the expiration of
the maximum term of commitment. (Pen. Code, § 1370 subd. (c)(1).) This
guarantees a 90-day window period for (1) the criminal court to decide
whether to release the defendant or direct the initiation of conservatorship
proceedings, and (2) the mental health court to order a conservatorship and
determine an appropriate placement. Nothing in the statutory scheme
contemplates the defendant’s continued confinement in the county jail after
the maximum term of commitment for competency restoration has expired.
We also find it significant that a Murphy conservatorship automatically
terminates after one year, subject to renewal for additional one-year periods.
(§ 5361.) We cannot infer that the Legislature impliedly decided to allow
Murphy conservatees to languish in county jail for months or even years at a
time while waiting for a proper treatment facility for much or all of their one-
year term of conservatorship.
Finally, the Attorney General’s argument that Lerke should have
sought a change of placement hearing in the mental health court misses the
point of Lerke’s claim. The mental health court found that the state hospital
was the appropriate level of placement for Lerke, and in doing so concluded
the state hospital was a facility that adequately achieved “the purposes of
treatment of the conservatee and protection of the public.” (§ 5358, subd.

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(c)(2).) Lerke did not challenge these findings, and he did not seek a change
of placement from the state hospital. Rather, he argued that his indefinite
confinement in county jail pending the availability of a state hospital bed was
unlawful. To the extent there was no available space at the hospital in the
interim, the Welfare and Institutions Code did not place the burden on Lerke
to find another placement and prove its suitability or else remain
incarcerated in county jail.
It is ultimately the state’s responsibility to ensure compliance with the
law by providing an adequate number of state hospital beds or other
authorized placements to safely house and treat those committed under its
own statutes. California’s appellate courts have repeatedly urged the
legislative and executive branches to remedy this longstanding problem.
(Stiavetti, supra, 65 Cal.App.5th at p. 737 [citing cases].) Until now, these
cases have all involved defendants awaiting space in the state hospital for
competency restoration treatment, but it is no more lawful to use the county
jail as a holding pen for mentally incompetent Murphy conservatees.
Accordingly, we conclude the superior court could not require or permit
Lerke to remain in county jail pending his transfer to the state hospital.
Rather, if there was no space immediately available at the hospital, the court
was required to select another interim placement that (1) best “achieve[d] the
purposes of treatment of the conservatee and protection of the public”
(§ 5358, subd. (a)(1)(B)); and (2) was one of the placements authorized by
section 5358, subdivision (a)(2). In other words, if the state hospital is found
to be the most appropriate placement for a Murphy conservatee, but there is
no space immediately available, the superior court must determine an
appropriate and authorized interim placement until such space becomes
available. This interim placement may not be the county jail and must be

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one of the placements authorized by section 5358, subdivision (a)(2). Lerke’s
continued confinement in the county jail was therefore unauthorized and
unlawful.
We nevertheless deny habeas relief because Lerke has already been
released from county jail and transferred to an authorized treatment facility
during the pendency of these proceedings. (See, e.g., In re William M. (1970)
3 Cal.3d 16, 31 [denying habeas petition after deciding technically moot issue
on the merits in petitioner’s favor].)
DISPOSITION
The petition for writ of habeas corpus is denied as moot.
BUCHANAN, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.

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