Filed 1/7/22 P. v. Penny CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046455
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1895872)
v.
MICHELLE LOUISE PENNY,
Defendant and Appellant.
I. INTRODUCTION
In January 2018, defendant Michelle Louise Penny was charged with attempted
possession of a firearm by a felon (Pen. Code, § 664, 29800, subd. (a)(1))1 and perjury
(§ 118). In June 2018, the trial court found defendant incompetent to stand trial.
Defendant’s competence was restored in January 2019, and she subsequently pleaded
no contest to the charges. The court placed defendant on three years of probation and
ordered her to serve 90 days in county jail, which was credit for time served.
Defendant contends that insufficient evidence supports the trial court’s
incompetency finding. The Attorney General counters that the issue is moot and that
even if the issue is justiciable, substantial evidence supports the finding.
1 All further statutory references are to the Penal Code.
For reasons that we will explain, we conclude that the issue is moot and therefore
dismiss the appeal.
II. PROCEDURAL BACKGROUND 2
On January 16, 2018, the district attorney charged defendant with attempted
possession of a firearm by a felon (§§ 664, 29800, subd. (a)(1)) and perjury (§ 118).
Defendant was arraigned on March 5, 2018.
At the next court appearance on April 2, 2018, defendant submitted three “general
affidavit[s]” to the trial court. (Capitalization and emphasis omitted.) Among other
allegations, defendant stated in Affidavit 1 that her attorney “is terminated” and “never
represented” defendant, who “was and still remains in propia persona.” Defendant
further stated that “[t]he court shall answer to the corpus delicti”; “shall dismiss [the]
case”; and shall “acknowledge . . . there is no injured person or property [and] no crime.”
Defendant also stated, “This is BOND FRAUD I am not subject to jurisdiction and or
authority”; and “[t]here has been an attack on [defendant] for standing in rights and
reserving by a[n] unseen party and or property.”
In Affidavit 2, entitled, “Affidavit of Facts – Conditional Agreement,” defendant
stated, “I accept and offer upon proof of claim . . . [¶] 1. Declaration of Authority [¶]
2. Oath of Office [¶] 3. Jurisdiction/Authority [¶] 4. Corpus Delecti”; “I Reserve and
Retain all Rights without/with prejudice To Be Paid in Full immediately via gold and
silver $100,000 in . . . Federal Reserve Notes for each order given and issued there is an
invoice”; and “[t]o proceed with the charges . . . is to be in honor of my claim set forth
and is due immediately also I hold and charge all officers and employees of the Court and
they shall relinquish their title and oath of office.”
2Because the record on appeal does not include the factual basis for defendant’s
pleas, we do not include a summary of the facts. The facts are not relevant to the issues
on appeal.
2
In Affidavit 3, entitled, “Affidavit of Facts – Proceed to dismiss,” defendant
stated, “For and on record . . . Lack of Jurisdiction [¶] For the record state Nationality
and show [illegible] Status Authority Proof of Office/Oath of Office. Declaration to
withdraw any lien bonds in strawman name Michelle Louise Penny and state I am a
Natural Indigenous Sover[e]ign being Free From tyranny[.] I retain my alienable and
inalienable rights[.] All Rights Reserved[.] It is not a crime to exercise a common
natural right. . . .”
At the April 2, 2018 proceeding, the trial court appointed counsel, declared a
doubt as to defendant’s competency pursuant to section 1368, and suspended criminal
proceedings.3 On April 5, 2018, the court appointed Dr. Jack Yen to examine defendant
and prepare a competency report pursuant to sections 1368 and 1369.
Defendant submitted a fourth affidavit to the trial court on April 25, 2018, entitled,
“Affidavit of Facts – Motion to Dismiss for lack of Jurisdiction[].” Defendant alleged a
denial of due process and right to choose counsel and made a demand for payment.
Defendant stated that her attorney “is terminated”; she “stated to [the attorney] he is
terminated [¶] I charge him for his order given and also the Judge . . . who changed
court venue and during court procedure walked away from bench without word then
came back in. [¶] . . . [¶] I do not understand charges[.] The charges . . . shall be
dis[]missed[.] I Reserve and Retain all Rights without/with Prejudice[.] Notice on the
Record of Court for Court of Record[.] I seek a Remedy.”
Defendant submitted an additional affidavit on May 21, 2018, where she stated,
“ALL Instruments of Remedy on Record for the Court all officers under oath . . . to be
held accountable and upon proof of claim in my behalf to seek remedy shall this case be
dismissed for lack of cause and Due Process – no Corpus D[e]lecti.” Defendant also
The record on appeal does not include a reporter’s transcript of the April 2
3
proceeding.
3
submitted a “Notice to Principal is Notice to Agent,” demanding dismissal for lack of
jurisdiction and denial of due process; a “Final Demand for Payment”; an “Order to Show
Cause/Motion to Vacate”; and a “Notice.” (Some capitalization omitted; emphasis
omitted.) Defendant appears to reference admiralty law in some of these documents.
On June 6, 2018, Dr. Yen wrote the trial court that he was unable to proffer an
opinion regarding defendant’s competency.4
On June 28, 2018, Defendant submitted another affidavit to the trial court.
Defendant stated that the case “shall/is dismissed for the record on the record. The Court
never called the case to be heard”; “Judge said I’m Sover[e]ign I’m not”; her attorney
“is fired she doesn’t represent me”; “Judge can’t diagno[se] me or Dr. Yen to state
compe[t]ency or not[.] I dismiss case[.] Court is no jurisdiction.”
Also on June 28, 2018, the trial court found defendant incompetent to stand trial.
The court stated that it was in receipt of defendant’s papers and that it “made two
observations: One is that [defendant] has counsel, and Faretta[5] hearings are not allowed
because this is a civil proceeding and criminal proceedings have been suspended. [Its]
second observation is that the content of those papers appears to be in the mode of what
[it has] seen from sovereign citizens with references to admiralty law, which fully support
a finding of not competent. However, [it] also can put this on the trial setting calendar.”
The trial court asked for counsel’s preference. Defense counsel and the district
attorney submitted on the court’s observations. The court stated, “Based on my
observations, I will find that [defendant] is not competent, which, . . . because this is a
felony, leaves the issue of capacity. The disjointed nature of the papers filed, also, in my
opinion, support a finding of no capacity because they’re so incoherent.” The district
attorney expressed concern that there was no diagnosis of mental illness. In response to
4 Because Dr. Yen’s letter was filed as a confidential record, we do not summarize
its contents. (See Cal. Rules of Court, rule 8.47(c)(1).)
5 Faretta v. California (1975) 422 U.S. 806.
4
the district attorney’s concern, the court appointed Dr. John Greene to perform a capacity
evaluation pursuant to section 1370.
On July 9, 2018, the trial court ordered the South Bay Conditional Release
Program (CONREP) to evaluate whether defendant “should be required to undergo
outpatient treatment, [or] be committed to a treatment facility or to any other mental
facility.”
On July 23, 2018, defendant submitted an affidavit stating that her case had not
been called on the morning of June 28, 2018, and that “[t]he official oath was
abandoned.” Defendant again stated that her attorney has been terminated and demanded
“100,000 gold and silver paid in FDR Notes in full for every order.”
Dr. Greene issued a report on August 14, 2018, and Dr. Douglas Johnson issued
CONREP’s report on August 28, 2018. 6 CONREP recommended that defendant be
committed to the Department of State Hospitals for placement in a trial competency
program pursuant to section 1370, subdivision (a)(2).
At the next court appearance on September 27, 2018, defendant addressed the
court directly at the outset of the hearing, moving to dismiss the case “due to the fact that
the moving parties have not answered an agreeable remedy.” Defendant stated that she
sought relief “under a conditional agreement that show[s] proof of cause written on the
record verifying claim and witness to an injured party or person [or] property . . . that
wasn’t available at the last court date.”
Based on Dr. Greene’s report, the trial court made no finding on capacity.
Counsel submitted on the placement recommendation. The court adopted CONREP’s
recommendation, remanded defendant, and committed her to the Department of State
Hospitals for no more than three years for treatment and placement in a trial competency
Because Dr. Greene’s and CONREP’s reports were filed as confidential records,
6
we do not summarize their contents. (See Cal. Rules of Court, rule 8.47(c)(1).)
5
program. Defendant personally objected on the basis that she had not violated any
contract. Defendant again asked for the case to be dismissed, stating that she “ha[d]
answered[] and . . . accepted [the] conditional offer upon conditional proof of the claim.”
On November 16, 2018, defendant moved for substitution of counsel pursuant to
People v. Marsden (1970) 2 Cal.3d 118. Defendant also filed a notice of appeal.
On January 7, 2019, the trial court received certification of defendant’s restoration
to mental competence pursuant to section 1372. On January 10, 2019, the trial court
found defendant competent to stand trial and reinstated criminal proceedings.
On March 22, 2019, defendant pleaded no contest to the charges. On May 16,
2019, the trial court placed defendant on three years of probation and ordered her to serve
90 days in county jail, which was credit for time served.
III. DISCUSSION
Defendant contends that the trial court’s incompetency finding must be vacated
because it is not supported by substantial evidence as the court rested its decision on its
own observations. The Attorney General asserts that the issue is moot because defendant
was restored to competence and that even if the issue is justiciable, substantial evidence
supports the finding. We conclude that the appeal is moot.
“ ‘ “[A]n action that originally was based on a justiciable controversy cannot be
maintained on appeal if all the questions have become moot by subsequent acts or events.
A reversal in such a case would be without practical effect, and the appeal will therefore
be dismissed.” ’ ” (People v. DeLong (2002) 101 Cal.App.4th 482, 486 (DeLong).)
Relying on DeLong, defendant argues that the issue is not moot because she is
entitled to “ ‘clear her name.’ ” We find DeLong distinguishable.
The defendant in DeLong challenged her drug possession conviction that had been
set aside pursuant to Proposition 36. (DeLong, supra, 101 Cal.App.4th at p. 484.) The
court held that the case was not moot because “the conviction still exists” and the
6
defendant “is entitled to an opportunity to clear her name and rid herself of the stigma of
criminality.” (Ibid.)
In contrast to DeLong, defendant’s appeal does not challenge her convictions but
the trial court’s incompetency finding. As the Court of Appeal explained in People v.
Lindsey (1971) 20 Cal.App.3d 742, 744, a certification of restoration to competency
“terminates the [incompetency] commitment, leaving no prejudicial consequences which
could be ameliorated by a successful appeal.” Unlike the collateral consequences from a
conviction, “[t]he law imposes no disadvantageous collateral consequences upon one
whose trial has had to be postponed by reason of such a temporary disability. . . . The
temporary commitment is nothing from which defendant needs to ‘clear his [or her]
name.’ ” (Id. at pp. 744-745.)
Defendant also contends that the issue is not moot because the incompetency
finding resulted in the denial of conduct credits and “a reversal will correct that error.” 7
We are not persuaded.
Pursuant to section 1375.5, “[t]ime spent by a person in a treatment facility or
county jail as a result of [competency] proceedings . . . shall be credited against the
sentence, if any, imposed in the underlying criminal case . . . giving rise to the
competency proceedings.” Thus, individuals such as defendant who were committed to
a state hospital based on an incompetency finding are entitled to custody credit for the
length of the commitment. (See People v. Mendez (2007) 151 Cal.App.4th 861, 865.)
7 The Attorney General argues that the matter is moot “[b]ecause the credits
already awarded [defendant] far exceed[ed] the sentence, [and defendant] cannot possibly
benefit from an award of additional conduct credits, assuming she were entitled to such
credits.” However, the law mandates that defendants be awarded all custody and conduct
credit to which they are entitled. (See § 2900.5, subd. (a).) Credits that exceed an initial
county jail sentence imposed as a condition of probation must be applied against a
subsequent county jail term imposed as a condition of probation reinstatement and may
be credited against fines, for example. (See §§ 19.2, 2900.5, subd. (a); People v. Arnold
(2004) 33 Cal.4th 294, 301.)
7
However, at the time of the proceedings here, conduct credit pursuant to former
section 4019 was “not authorize[d] . . . for time in nonpenal institutions such as state
hospitals.” (People v. Sage (1980) 26 Cal.3d 498, 502-503, superseded by statute on
other grounds as stated in People v. Brunner (1983) 145 Cal.App.3d 761, 763; accord,
People v. Callahan (2006) 144 Cal.App.4th 678, 686.)8
Defendant was out of custody when the court found her incompetent to stand trial.
The court subsequently remanded defendant when it committed her to the Department of
State Hospitals. Once defendant’s competence was restored, the court released her on her
own recognizance. At sentencing, the court awarded defendant custody credit for the
time she spent in the state hospital, but she did not receive conduct credit for that period.
(See § 1375.5, former § 4019.)
Because defendant was out of custody before and after her state hospital
commitment, defendant’s argument that a reversal of the trial court’s incompetency
finding would result in the award of conduct credit for the state hospital time is
speculative. It is entirely uncertain whether defendant would have been in county jail—
and entitled to conduct credit—had the trial court not found her incompetent to stand trial
and committed her. (But see People v. Leelu (2019) 42 Cal.App.5th 1023, 1029-1030
[where the trial court proceedings were still pending and the defendant had not yet been
sentenced, determining that the defendant’s competence restoration did not render her
challenge to the trial court’s incompetency finding moot because the defendant’s
8
We observe that the passage of Senate Bill No. 317 (2021-2022 Reg. Sess.)
amended section 4019, effective January 1, 2022, to authorize the award of conduct credit
to individuals confined in or committed to a state hospital or mental health treatment
facility during competency proceedings. (Stats. 2021, ch. 599, § 3.) Defendant does not
raise the amendment to section 4019 or argue that the amended statute applies
retroactively to her. (Cf. People v. Brown (2012) 54 Cal.4th 314, 323 [concluding that a
different former version of “section 4019 is properly interpreted as operating
prospectively”].)
8
“potential custody credits continue to be affected by her commitment,” but not discussing
defendant’s custody status before and after incompetency finding].)
Moreover, with certain exceptions not applicable here, former section 4019 limited
conduct credit to defendants “confined in . . . a county jail, industrial farm, or road camp
or a city jail, industrial farm, or road camp.” (§ 4019, subd. (a)(1)-(6).) The only in-
custody period for which defendant did not receive conduct credit was the time she spent
in the state hospital. Even if the trial court’s incompetency finding was invalid,
defendant was not “confined in . . . a county jail” while she was in the state hospital,
rendering former section 4019 inapplicable. (Former § 4019, subd. (a)(1).)
Thus, we conclude that the appeal is moot because “ ‘ “[a] reversal . . . would be
without practical effect.” ’ ” (DeLong, supra, 101 Cal.App.4th at p. 486.)
Lastly, defendant argues in her reply brief that even if we conclude that the issue is
moot, we should hear the case because it involves an issue of continuing public interest.
An appellate court has the discretion to decide an issue that is moot if “the issue is
likely to recur, might otherwise evade appellate review, and is of continuing public
interest.” (People v. Morales (2016) 63 Cal.4th 399, 409.)
We decline to exercise our discretion to decide defendant’s claim. The issue of
whether the trial court could properly base its incompetency finding on its own
observations of defendant’s conduct was not contested below. The failure to raise an
issue below generally results in the forfeiture of the issue on appeal. (In re Sheena K.
(2007) 40 Cal.4th 875, 880.) To the extent that defendant frames the issue as an
insufficient-evidence claim, which is not subject to the forfeiture rule, whether substantial
evidence supports the trial court’s finding is an issue particular to the facts of this case
and does not involve a matter of public interest. We therefore decline to consider these
issues in the first instance here.
IV. DISPOSITION
The appeal is dismissed as moot.
9
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Penny
H046455