Suspect allegedly stabs Modesto officer but is incompetent to stand trial. What can DA do?

The case against the man accused of stabbing a Modesto police officer, who in turn shot him, has been on hold since he was deemed incompetent to stand trial (IST) last October.

Dylan Harvey is one of several dozen Stanislaus County defendants currently IST. Harvey has a long history of mental health issues, including a diagnosis of bipolar schizoaffective disorder. He was transferred to a state hospital for inpatient IST treatment April 12.

Under California law, if a criminal defendant is not restored to competency in two years, the charges must be dismissed. The clock doesn’t start when a defendant begins inpatient treatment, but rather when he or she is declared incompetent. So Harvey already is a quarter of the way through the two-year term.

If that two years runs out before Harvey can be restored to competency, which has happened in several recent murder cases, the Stanislaus County District Attorney’s Office wants a safeguard in place: a mental health conservatorship.

“That is the last line of defense to keep these guys from walking out of jail unsupervised,” said Chief Deputy District Attorney Wendell Emerson. “In the event that (Harvey) cannot be restored to competency, we want to make sure he is in a place where he continues to get the necessary mental health treatment and psychotropic drugs he needs so he doesn’t act out violently with people in the county.”

For a defendant to be competent to stand trial, he must understand the nature of the charges against him and be able to assist in his own defense.

The number of defendants requiring IST treatment and consequently the wait time for that treatment has been increasing steadily for decades, according to an analysis of a 2019 law that reduced the maximum term for IST treatment from three years to two.

As of April 10, there were 1,008 IST patients statewide, including 32 in Stanislaus County, awaiting placement into an available bed, according to data provided by the Department of State Hospitals. The average wait time for a bed, according to DSH, is 59 days.

Stabbed officer shoots in return

Harvey’s case stems from an incident on Independence Day last year when he was in the midst of a mental health crisis, according to family, and had armed himself with two large knives.

Modesto Police released an hour-long, uncut video of the incident from Officer Jacob Mertz’s body camera.

Mertz spent more than 30 minutes talking to and building a rapport with Harvey. Mertz convinced Harvey to put down the knives, leave his bedroom, and eventually come out of his west Modesto home.

Paramedics already were on the way to take Harvey to a hospital for a mental health evaluation. All Mertz and the other officer on scene needed to do was fill out the paperwork required for an involuntary psychiatric hold.

But when they turned their backs on Harvey to look for that paperwork, he retreated back into his house and everything fell apart.

Mertz followed Harvey back into the house and again tried to reason with him. But Harvey picked up one of the knives and allegedly stabbed Mertz in the hand. Mertz fired his gun twice, shooting Harvey in the jaw and arm.

After recovering from his gunshot wounds, Harvey was arrested and charged with the attempted murder of Mertz.

But last week, the District Attorney’s Office brought a new case against him in the form of a grand jury indictment.

Emerson said this was done because a probable cause hearing is one of the elements needed for a type of conservatorship reserved for people charged with serious crimes who are IST.

Though Harvey originally was charged with the attempted murder of Mertz, the grand jury indicted on a lesser charge of assault on a police officer.

That 12 people agreed Harvey shouldn’t be charged with attempted murder shows there wasn’t evidence Harvey intended to kill Mertz, said Chief Deputy Public Defender Reed Wagner.

History of mental illness

Harvey’s family has said he acted out of fear that night. He had been put on involuntary psychiatric holds three times prior to the incident and was afraid to go back to the hospital.

A conviction of attempted murder on a peace officer, with a weapon enhancement, has a sentence of 16 years to life, whereas a conviction of assault on a peace officer has a maximum sentence of six years.

Wagner believes Harvey doesn’t belong in prison at all.

He said while “there are a lot of issues with our patchwork mental health care,” a conservatorship is preferable to prison.

The charges could, and Wagner believes should, be dropped against Harvey now in lieu of a mental health conservatorship.

“He is going to end up being prosecuted for two years before he is placed in a location that is trying to help him as an individual instead of just getting him competent to stand trial,” Wagner said.

But the DA’s office is holding out for competency restoration and prosecution.

“Our concern is public safety,” said District Attorney Jeff Laugero. “We need the professionals to evaluate and make the determination as to whether an individual can be restored. That is in the best interest of the community, the defendant and the victims of violent crimes. We are trying to prevent this from happening again.”

When the two-year term for competency restoration has run, the DA can drop the charges and file one more time, but does so knowing with near certainty that the defense again will call into question its client’s competency. If a doctor again finds the defendant incompetent to stand trial and in some cases, if the court affirms that finding, the charges must be dropped again and cannot be refiled.

This is what happened with Bryan Ferriera, who was accused of killing his father. Wayne Ferriera was found dead in his east Modesto home in 2019. The 72-year-old had been beaten and suffocated.

Last fall, Bryan Ferriera was put on conservatorship overseen by the county Public Guardian’s Office after the murder charges were dismissed.

All conservatorships not the same

The DA’s Office now is contending with another murder case that might also have to be dismissed.

Rigoberto Cisneros is accused in the fatal shooting of 27-year-old Luis Malagon at the Latinos Bar on Mitchell Road in 2016.

The DA’s office already dropped and refiled charges against Cisneros after the two-year time limit to restore him to competency had expired. In the second go-around, a doctor declared him competent to stand trial but the defense contested the finding, said Deputy District Attorney Sam Luzadas.

A hearing will be held in May when a judge will make a final determination on Cisneros’ competency. If the judge finds Cisneros incompetent, the charges will be dismissed again and the DA’s Office will request the County Counsel’s Office and the Public Guardian investigate whether he is suitable for a conservatorship.

Specifically, the office will ask for a Murphy conservatorship, which is what it also sought, but didn’t get, in Ferriera’s case.

A Murphy conservatorship is for people who have been found incompetent to stand trial and probable cause has been found that they committed a felony “involving death, great bodily harm, or a serious threat to the physical well-being of another person.” A doctor must also determine that “the person represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder.”

Ferriera was found not to meet those criteria and instead was put on a Lanterman-Petris-Short (LPS) conservatorship for people who are impaired by a serious mental illness; are “gravely disabled,” meaning they are unable to provide for their basic personal needs for food, clothing, or shelter; and are unwilling to accept assistance voluntarily.

These mental health conservatorships are reserved for people with serious mental illnesses and are different from the high-profile Britney Spears probate conservatorship, which typically is for people with intellectual disabilities.

Unlike a prison sentence for a criminal conviction, where the law provides a maximum sentence, there is no limit to the number of times a conservatorship can be renewed.

Both LPS and Murphy conservatorships are technically one-year commitments with a review each year, but there isn’t a limit on how many times they can be renewed, Wagner said.

“Unless they have a meaningful change in the underlying concerns that led to the conservatorship, they are probably going to be on it for the rest of their lives,” he said.

A person on a Murphy conservatorship is more likely to be housed in a locked facility as opposed to a group home, although the conditions of the conservatorship can change over time.

There are other options for mentally ill people in the court system that focus on treatment over prosecution. County officials are looking to utilize these options more often to both reduce the number of people needing IST treatment and the number of conservatorships.

However, in most cases, Laugero said his office will continue to pursue competency restoration and prosecution for serious and violent felonies.