Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00F6530
ROBIE, J.
Defendant Arthur Guiterrez Gonzales appeals from an order extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2970 to April 22, 2008. Defendant contends the trial court abused its discretion by failing to dismiss the commitment petition on the ground it was filed late, in violation of the statutory time frame and too late to permit a trial to take place without holding him past his scheduled release date, and thus in violation of due process. We agree and reverse.
All further statutory references are to the Penal Code unless otherwise indicated.
The record does not show whether defendant’s MDO commitment has been extended beyond this date. However, the parties agree this appeal is not moot. If the initial petition or a petition to extend the commitment was invalid, it might implicate the validity of later extensions. (See People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 (Williams).)
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, defendant pled guilty to attempted second degree robbery in exchange for a sentence of 16 months. Because it was his second strike, the sentence was doubled to 32 months.
After being released from custody in 2003, defendant violated his parole multiple times and on several occasions was returned to custody. During one such custodial period in 2005, defendant was evaluated as a possible MDO, but did not meet the criteria. (See § 2962, subd. (d)(3).)
In April 2006, defendant again violated parole. In May 2006, he was returned to custody with a maximum discharge date of April 22, 2007. In March 2007, about a month prior to his scheduled discharge, defendant was again evaluated for possible MDO commitment. Because the initial evaluators failed to reach a consensus, he was evaluated by two independent evaluators on April 2, 2007. (See § 2962, subd. (d)(2)-(3).) The independent evaluators agreed that defendant should be designated an MDO, pursuant to section 2970.
The record contains no explanation as to why the Department of Corrections and Rehabilitation waited until March 2007 to evaluate defendant, who had been in custody for at least 10 months, as a possible MDO.
On April 5, 2007, the same day defendant was transferred to the state mental hospital, the Shasta County District Attorney’s Office received a faxed letter from the Corcoran prison warden requesting a petition be filed, pursuant to section 2970, for defendant’s continued involuntary commitment as an MDO. The petition was filed on April 10, 2007, 12 days before defendant’s discharge date. The district attorney appeared in court for a brief hearing the next day, April 11, but because a public defender had not yet been appointed, the case was continued to April 18. On April 18, 2007, defendant had yet to be transported from the hospital to the court, so the case was again continued until April 24, now past his maximum discharge date.
During the April 24, 2007 hearing, defendant objected to allowing the proceedings to continue due to the late filing of the petition. The court set a trial date of May 15, 2007. On May 11, 2007, defendant requested a continuance to July 17, 2007, ostensibly because he needed more time to prepare for trial. Though defendant waived time, the parties agreed that this continuance did not waive defendant’s initial objection to the timeliness of the filing.
On June 25, 2007, defendant filed a motion to dismiss the petition due to its untimely filing. Defendant’s motion argued that the court should dismiss the petition because trial did not commence within 30 days of his release date as required by statute, because defendant could not have been prepared for a preexpiration trial date, and because defendant suffered prejudice by the late filing. Defendant pointed out that an MDO trial “shall commence no later than 30 calendar days prior to the [maximum release date] . . . unless good cause is shown.” (§ 2972, subd. (a).)
On July 11, 2007, the district attorney filed an opposition to the motion to dismiss, arguing that “[g]ood cause existed for any delay caused because the People filed the petition and were prepared for trial at the earliest possible dates.” The district attorney argued that “[t]he People did everything possible to get this case into court and handled,” adding that “[t]he People are unaware of the circumstances that caused [the late initiation of MDO evaluations/proceedings by the Department of Corrections and Rehabilitation].” Because the People “responded as quickly as possible to get the matter to trial . . . there was good cause to extend the trial dates passed [sic] the 30-day requirement and the maximum parole date.” Also on July 11, defendant announced his intention to waive trial, pending a decision on the motion to dismiss.
On July 16, 2007, the trial court heard arguments on the motion to dismiss and ruled against defendant, reasoning that “mandatory [dismissal of a petition for] failure to comply [with the 30-day deadline] would, in effect, terminate the MDO’s involuntary treatment, and regardless of the treatment and regardless of the potential danger to others. Such result is inconsistent with the purposes of [the MDO Act] and elevates the secondary basis of the deadline to the MDO over the fundamental purpose of the [Act:] to protect the public.” (See People v. Fernandez (1999) 70 Cal.App.4th 117, 129 (Fernandez).) Defendant then waived his rights to a trial on the section 2970 petition, and the court ordered his continued involuntary treatment for one year.
DISCUSSION
On appeal defendant argues that there was no good cause to excuse the late filing of the commitment petition, and because the late filing deprived him of due process, the trial court erred in denying the motion to dismiss. We agree and reverse.
I
MDO Proceedings
We start with an overview of the MDO Act (§ 2960 et seq.), previously called the Mentally Disordered Prisoners Act (MDPA). (See Williams, supra, 77 Cal.App.4th at p. 440.)
In 1985, the Legislature enacted the MDO Act to respond to the state’s “‘dilemma caused by the determinate sentencing system,’” explaining that “‘[t]o maintain a determinate system will inevitably cause the release of some mentally ill inmates who constitute a significant threat to public safety. This commitment will provide a mechanism for placing these mentally ill inmates in the mental health system for appropriate treatment which will increase the protection of the public.’” (People v. Allen (2007) 42 Cal.4th 91, 97 (Allen), quoting Dept. of Mental Health, Enrolled Bill Rep. on Sen. Bill No. 1296 (1985–1986 Reg. Sess.) Sept. 27, 1985, p. 4.)
Section 2960 explains that “[t]he Legislature finds that there are prisoners who have a treatable, severe mental disorder that was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated. Secondly, the Legislature finds that if the severe mental disorders of those prisoners are not in remission or cannot be kept in remission at the time of their parole or upon termination of parole, there is a danger to society, and the state has a compelling interest in protecting the public. Thirdly, the Legislature finds that in order to protect the public from those persons it is necessary to provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person’s prior criminal behavior is in remission and can be kept in remission.”
Section 2962 describes the procedure by which a prisoner is initially determined to be an MDO. “As a condition of parole, a prisoner who meets [certain] criteria shall be required to be treated by the State Department of Mental Health.” (§ 2962; Allen, supra, 42 Cal.4th at p. 98.) Prior to release on parole, the person in charge of treating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health (Mental Health) must evaluate the prisoner at a facility of the Department of Corrections (Corrections) for possible MDO commitment. (§ 2962, subd. (d)(1).) A chief psychiatrist of the Corrections must then certify to the Board of Prison Terms that the prisoner meets all five of the following criteria: 1) the prisoner has a severe mental disorder; 2) the disorder is not in remission, or cannot be kept in remission without treatment; 3) the severe mental disorder was one of the causes or was an aggravating factor in the prisoner’s criminal behavior; 4) the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day; and 5) by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others. (§ 2962, subd. (d)(1); Williams, supra, 77 Cal.App.4th at p. 444.) If the professionals doing the evaluation do not concur that the prisoner meets all of the criteria (that is, only one of the evaluators believes the defendant is an MDO), then the Board of Prison Terms shall order a further examination by two independent professionals. (§ 2962, subd. (d)(2).) Only if both independent professionals who evaluate the prisoner find that he meets the five criteria is the prisoner designated an MDO. (§ 2962, subd. (d)(3).)
Now known as the Department of Corrections and Rehabilitation.
Once a prisoner is designated an MDO under section 2962, section 2964 outlines the procedure by which the prisoner’s parole is revoked and he or she is placed in involuntary inpatient treatment. The section expressly states that “[a]ny prisoner who is to be required to accept treatment pursuant to Section 2962 shall be informed in writing of his or her right to request a hearing pursuant to Section 2966.” (§ 2964, subd. (a), italics added.)
Section 2966, subdivision (a), outlines the procedures by which a prisoner found to be an MDO may challenge that designation. “A prisoner may request a hearing before the Board of Prison Terms, and the board shall conduct a hearing if so requested, for the purpose of proving that the prisoner meets the criteria in Section 2962. At the hearing, the burden of proof shall be on the person or agency who certified the prisoner [an MDO] . . . . The Board of Prison Terms shall provide a prisoner who requests a trial, a petition form and instructions for filing the petition.” (§ 2966, subd. (a).) “A prisoner who disagrees with the determination of the Board of Prison Terms that he or she meets the criteria of Section 2962, may file in the superior court of the county in which he or she is incarcerated or is being treated a petition for a hearing on whether he or she, as of the date of the Board of Prison Terms hearing, met the criteria of Section 2962.” (Id., subd. (b).) The court shall advise the petitioner of his or her right to be represented by an attorney and of the right to a jury trial. (Ibid.)
Once a prisoner is designated an MDO, either by waiving or failing to request his section 2966 right to a hearing before the Board of Prison Terms or a trial in superior court, or by losing his petition at either of those hearings, he remains an MDO under treatment by the Mental Health so long as his severe mental disorder is not in remission or cannot be kept in remission without treatment. (§§ 2964, 2966.) Sections 2970 and 2972 describe the procedures by which a prisoner may be kept past his release date for continued involuntary treatment provided by the Mental Health, either in a state hospital or in an outpatient program. (§§ 2970, 2972.) If the offender’s disorder is not in remission, or cannot be kept in remission without treatment, the appropriate medical or corrections official is required to submit to the district attorney “his or her written evaluation on remission” and to do so “[n]ot later than 180 days prior to [release from prison] . . . unless good cause is shown for the reduction of that 180-day period.” (§ 2970.) The district attorney may then file a petition with the superior court for continued involuntary treatment for one year. (Ibid.)
Section 2972 describes the procedures by which a hearing is held on the district attorney’s petition for continued treatment of the MDO. (§ 2972.) Once the district attorney files the section 2970 petition, the court shall conduct a civil hearing on the petition under section 2970 for continued treatment (recommitment). (§ 2972, subd. (a).) The trial court must “advise the person” who is the subject of the petition “of his or her right to be represented by an attorney and of the right to a jury trial” (§ 2972, subd. (a)), and the defendant is entitled to adequate time to prepare for a trial before the state interferes with his or her liberty (Williams, supra, 77 Cal.App.4th at p. 456). The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown. (§ 2972, subd. (a); People v. Tatum (2008) 161 Cal.App.4th 41, 56 (Tatum).) The evidence supporting the petition is then evaluated by a jury (unless the jury right is waived by both parties). (§ 2972, subd. (a).) At this hearing, the district attorney must prove beyond a reasonable doubt three criteria: 1) that the defendant has a severe mental disorder; 2) that the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment; and 3) that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. (§ 2972, subd. (c).) If the court or jury finds that the patient still has a severe mental disorder, the court shall order the patient committed to the appropriate Mental Health or Corrections facility. (Ibid.) The commitment shall be for a period of one year from the date of termination of parole or a previous commitment or of the scheduled date of release from prison as specified in section 2970. (§ 2972, subd. (c).) The district attorney may petition to extend the commitment in one-year increments by repeating the process “in accordance with the provisions of this section.” (§ 2972, subd. (e); Tatum, at p. 56; see also Fernandez, supra,70 Cal.App.4th at pp. 125–126.)
We note this is a different and lesser requirement than the five criteria under section 2962 that must be proved to designate a prisoner an MDO in the first place. Because a defendant challenging his commitment petition under sections 2970 and 2972 has already been established to be an MDO per section 2962, gone is the requirement that the district attorney prove that: 1) the severe mental disorder was one of the causes or was an aggravating factor in the prisoner’s criminal behavior; and 2) the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day. (§§ 2962, subd. (d); 2972, subd. (c).) In other words, under sections 2970 and 2972, the district attorney is not attempting to prove that the defendant is an MDO, but rather that the defendant is still an MDO.
II
The Violation Of The MDO Act Statutory Provisions Constituted A Violation Of Due Process
A
Legal Principles
A trial court’s finding of “good cause” is reviewed on appeal for abuse of discretion. (People v. Kirkland (1994) 24 Cal.App.4th 891, 909; Fernandez, supra, 70 Cal.App.4th at pp. 128, fn. 7, 133 [stating that “findings regarding good cause are generally reviewed for abuse of discretion” and applying abuse of discretion standard].) If there is no abuse of discretion, the “good cause” finding stands and there is no statutory violation. (Kirkland, at pp. 913, 916.)
The determination of whether the delayed filing of an MDO petition constitutes a due process violation requires consideration of the facts and circumstances of the case and a subsequent “balancing of any prejudicial effect of the delay against the justification for the delay.” (Fernandez, supra, 70 Cal.App.4th at p. 131; see also People v. Kirkland, supra, 24 Cal.App.4th at p. 910 [recognizing that “[d]elay beyond th[e statutory] deadlines is judged using ‘[t]he due process test utilized under both federal and state speedy trial decisions[, which] involves a balancing of any prejudicial effect of the delay against the justification for delay’”]; cf. Allen, supra, 42 Cal.4th at p. 105 [explaining that “‘the test’” for determining whether a due process violation has occurred requires that “‘any prejudice to the defendant resulting from the delay must be weighed against justification for the delay’”].)
Where there is no prejudice, there is no due process violation, regardless of the reasons (or lack thereof) for the delay. (Tatum, supra, 161 Cal.App.4th at p. 57; Fernandez, supra, 70 Cal.App.4th at p. 131 [“If the defendant fails to demonstrate prejudice, the court need not consider the reasons for the delay”]; see People v. Mitchell (2005) 127 Cal.App.4th 936, 946.)
In Allen, the California Supreme Court held that “[l]ike other involuntary civil commitment schemes, the MDO Act’s comprehensive statutory scheme . . . represents a delicate balancing of countervailing public and individual interests. Among these interests is obviously the public’s right to be safe and protected from identified dangerous and mentally ill ex-prisoners, who themselves are statutorily required to receive mental health treatment to keep their severe mental disorder in remission after being released on parole.” (Allen, supra, 42 Cal.4th at p. 98; see § 2962.)
While we are “cognizant of the public safety concerns arising from the release of potentially mentally ill offenders who have completed their sentences . . . [t]he federal and state Constitutions, as well as California statutory law, require a certain bare minimum of due process before a person can be involuntarily committed to the custody of the state.” (Tatum, supra, 161 Cal.App.4th at p. 47, citing Allen, supra, 42 Cal.4th at p. 98.)
B
The Commitment Of Defendant As An MDO Was In Violation Of The Provisions Of The MDO Act
As we have explained, a prisoner who wishes to challenge his or her initial designation as an MDO has a statutory right to request at least two hearings, one before the Board of Prison Terms and one in superior court. (§ 2966.) The hearings are not mandatory (and presumably can be waived), but the Corrections and Mental Health have the affirmative obligation to inform the prisoner in writing of his or her right to request these hearings (§ 2964), as well as a duty to provide the prisoner with a petition form and instructions for filling out his petition, and to advise the petitioner of his or her rights to be represented by an attorney and to a jury trial. (§ 2966.) We note that the record here contains no indication that defendant was ever notified in writing of his right to challenge his MDO designation at a hearing before the Board of Prison Terms or later in superior court with representation by an attorney, as required by section 2966 of the MDO Act. However, because defendant raises no claim of error in that regard, we do not address it further.
Once a defendant has been designated an MDO, the statutory requirements in section 2972, though not containing express guidelines, do contain certain implicit requirements. For example, section 2972, subdivision (a), constitutes an implicit requirement that the district attorney file the petition sufficiently in advance of an offender’s release date to allow trial reasonably to commence 30 days prior to his or her release. (Tatum, supra, 161 Cal.App.4th at p. 56.) If the district attorney fails to do so, the petition may be deemed untimely, requiring either a waiver by the offender, or a finding of good cause to excuse its untimely filing. (Ibid.)
Here, given the filing of a first-time commitment petition 12 days prior to defendant’s release date, trial on the merits of the petition could not have commenced 30 days prior to the release date. As we will explain, a determination that a petition is untimely, however, does not, by itself, warrant dismissal of the petition.
Even if a statutory violation has occurred, proceedings on the petition may still move forward. This is because, apart from the requirement that a petition be filed prior to the offender’s release date (§ 2972, subd. (e)), the statutory time limits contained in the MDO Act are not “mandatory” or “jurisdictional,” but “directory.” (Williams, supra, 77 Cal.App.4th at pp. 451, 456; see Allen, supra, 42 Cal.4th at p. 104.) Consequently, even if an MDO trial occurs in violation of the MDO Act’s directory time requirements, the commitment proceeding is not rendered invalid absent a due process violation. (Tatum, supra, 161 Cal.App.4th at pp. 56-57; People v. Mitchell, supra, 127 Cal.App.4th at p. 943 [disagreeing with contention under analogous statute that “the trial court must automatically dismiss a tardy . . . petition if the prosecution cannot demonstrate good cause to excuse the violation of the statutory deadlines”]; Williams, at p. 457 [holding that the MDO Act’s time limits are not jurisdictional, and thus can be waived, but recognizing that delay in trial regarding commitment implicates “a defendant's rights to liberty and procedural due process”].)
C
Defendant Was Prejudiced By The People’s Late Filing Of The MDO Commitment Petition Because The Trial Could Not Commence Within The Statutory Time Frame
Defendant argues that the late filing of the commitment petition, which necessitated holding him beyond the end of his parole period, was a violation of his constitutional due process rights.
The People counter that defendant’s due process rights were not violated, even in the absence of good cause for the delay, because defendant has failed to demonstrate any prejudice resulting from the delay. “‘[R]egardless of whether defendant’s claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.’” (Allen, supra, 42 Cal.4th at p. 105.) The People further contend that “[defendant] cannot possibly have suffered any prejudice since he agreed to voluntarily extend his commitment of one year” after the motion to dismiss was denied.
“Except where there has been an extended delay, prejudice will not be presumed, and it will be incumbent upon the defendant to demonstrate actual prejudice. [Citations.] If the defendant fails to demonstrate prejudice, the court need not consider the reasons for the delay.” (Fernandez, supra, 70 Cal.App.4th at p. 131.)
The People cite People v. Noble (2002) 100 Cal.App.4th 184, where an MDO trial was held after a defendant’s release date, and note that “the court found that defendant had not shown any prejudice from the delay, and there was no due process violation.”
Defendant counters that a well-established line of cases support the proposition that an “‘extended delay,’” as he experienced, establishes a prejudicial due process violation, without the need for the defendant to make any express showing. Defendant further argues that prejudice must be judged at the time the motion to dismiss was made.
“It should go without saying that regardless of the strength (or weakness) of the underlying case for [the defendant]’s involuntary commitment, that commitment must be accomplished through the procedures set forth by our Legislature and consistent with the due process rights vested in every citizen by the federal and state Constitutions.” (Tatum, supra, 161 Cal.App.4th at p. 66, citing Allen, supra, 42 Cal.4th at p. 98; People v. Hill (1982) 134 Cal.App.3d 1055, 1060-1061 [“Our belief in the concept of judicial restraint, and our deference to the powers granted our coequal governmental partners, cannot be limited to those instances where, after viewing the fruits of their labors, we find them good”].)
In Tatum, the court noted that in order to answer “the question of whether to dismiss a late-filed MDO petition [the court] must evaluate the circumstances of the delay and the implications of continuing with trial under a due process rubric. This analysis, which merges to some extent the statutory requirement of ‘good cause’ and the constitutional mandate of due process, properly recognizes that the MDO Act itself ‘accommodates procedural due process by requiring the filing of the commitment petition prior to the expiration of the commitment, and requiring trial to commence 30 days prior to expiration in order to ensure that trial is completed prior to expiration of the commitment.’” (Tatum, supra, 161 Cal.App.4th at pp. 60-61, citing Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, 1034.)
“[D]ue process in this context requires a flexible balancing of ‘any prejudicial effect of the delay against the justification for the delay.’ [Citations.]. . . If good cause exists, it is less likely that there will be a due process violation; where good cause is lacking . . . a violation is likely if sufficient prejudice is present. In addition, the ‘[l]ength of the delay’ will be a relevant factor in evaluating any proffered justification.” (Tatum, supra, 161 Cal.App.4th at p. 61, citing Fernandez, supra, 70 Cal.App.4th at p. 131.)
“With respect to prejudice, in the context of untimely MDO petitions, the courts have recognized that relevant prejudice will generally take one of two forms: (i) an inability to prepare for trial in the time remaining prior to the offender’s release date (see, e.g., Kirkland, supra, 24 Cal.App.4th at p. 917), or (ii) the involuntary confinement of an offender beyond the offender’s statutorily authorized release date. (See, e.g., Zachary, supra, 57 Cal.App.4th at p. 1036.) Indeed, when an MDO petition is filed just prior to an offender’s release date, the offender is often forced to choose between these two types of prejudice. Either the offender must curtail otherwise necessary trial preparation to ensure a ‘preexpiration trial’ (Zachary, at p. 1036) or agree to a continuance of the trial date beyond the release date, thus suffering unauthorized postrelease confinement.” (Tatum, supra, 161 Cal.App.4th at p. 61.) “[T]he case law and statutory authorities [imply] that whenever the state’s unexcused late filing of an MDO petition forces an offender to ‘choose’ between these two types of prejudice, some prejudice is necessarily established.” (Ibid.; see People v. Hill, supra, 134 Cal.App.3d at p. 1060 [dismissal of involuntary commitment petition required where “it was realistically quite impossible in the brief time that remained” prior to expiration of commitment “to bring this matter to even the most hurried conclusion with any semblance of due process”]; Zachary v. Superior Court, supra, 57 Cal.App.4th at p. 1036 [“Petitioner . . . has suffered prejudice, i.e., 24 days of unauthorized confinement in a state mental hospital prior to the filing of the petition for recommitment, followed by continued unauthorized confinement to date”]; People v. Dougherty (1983) 143 Cal.App.3d 245, 248 [prejudice established where trial preparation was impeded by necessity of conducting trial prior to release date]; Fernandez, supra, 70 Cal.App.4th at p. 133 [rejecting claim of prejudice because “extension of the trial beyond defendant’s scheduled release date was due to his own counsel’s requested continuances, not to the People’s failure to comply with any statutory deadlines”].)
“The degree of prejudice will depend on various factors such as the time required to properly mount a defense (e.g., generally a more significant time period for an initial MDO commitment . . .), and the requisite length of the delay that will be occasioned by the untimely filing. [Citation.] Whether this prejudice will be sufficient to warrant dismissal of an MDO petition in a particular case depends, of course, on the severity of prejudice and, on the other side of the due process balance, the justification for the delay.” (Tatum, supra, 161 Cal.App.4th at pp. 62-63)
If forcing a defendant to choose between having adequate time to prepare for trial and avoiding postrelease confinement necessarily establishes some prejudice, then certainly some prejudice is established where -- as here -- the defendant does not get that choice because he is not brought before the court to schedule a trial until after his release date is passed. Defendant’s commitment petition was filed “just prior to [his] scheduled release date.” (See Tatum, supra, 161 Cal.App.4th at p. 61.) The defendant was still in custody on April 24, 2007, two days past his maximum release date, when he made his first court appearance to contest his MDO petition.
Regardless of whether the delay was extended, indicating an presumption of prejudice without an express showing (People v. Doughtery, supra, 143 Cal.App.3d at p. 248), we conclude that prejudice has been established where, due to the late filing of the commitment petition, the defendant does not appear in court for the first time until after his maximum release date.
D
The Trial Court Incorrectly Found Good Cause To Excuse The People’s Delay In Filing
Because defendant demonstrated prejudice as a result of the delay, we must resolve whether the trial court erred in finding “good cause” for the delay in the filing of the MDO petition. Defendant contends that because there was no good cause to excuse the extremely late filing of the commitment petition, and because the late filing of the petition deprived him of due process, the trial court erred in denying the motion to dismiss.
In Fernandez, the defendant went back to prison on a parole violation on July 11, 1996; at the time, his parole termination (maximum discharge) date was September 18, 1997. (Fernandez, supra, 70 Cal.App.4th at pp. 120-121.) “Between March and May of 1997, [the] defendant was evaluated by the Department of Corrections and the Department of Mental Health pursuant to section 2962, to determine whether he should be certified as an MDO.” (Ibid.) He “was not certified as an MDO until May 7, 1997.” (Id. at p. 121.)
“[O]n July 25, 1997, the Board of Prison Terms affirmed [the] defendant’s [MDO] commitment. On July 30, 1997, the medical director at Atascadero State Hospital issued a letter opining that [the] defendant was an MDO within the meaning of section 2970, and recommending to the district attorney that [the] defendant’s commitment be extended for one year beyond his original parole termination date of September 18, 1997.” (Fernandez, supra, 70 Cal.App.4th at p. 121.) “On August 1, 1997, the district attorney filed a petition, pursuant to section 2970, to extend [the] defendant’s commitment for one year.” (Ibid.) The trial ultimately commenced seven days before the defendant’s maximum discharge date. (Ibid.) In an order filed on October 3, 1997 -- two weeks after his maximum discharge date -- the trial court extended his commitment for one year. (Id. at pp. 124-125.)
On appeal, the Sixth District concluded there was no good cause shown for the failure to meet the 180-day deadline in section 2970, but the defendant suffered no prejudice or due process violation as a result of that statutory violation. (Fernandez, supra, 70 Cal.App.4th at pp. 127-133.) The appellate court also concluded that good cause was shown for the failure to meet the 30-day deadline in section 2972 because “after the medical director at Atascadero State Hospital issued a commitment letter pursuant to section 2970 on July 30, 1997, the district attorney made every effort to bring the matter to trial in a timely manner,” “fil[ing] the section 2970 petition on August 1, 1997, two days after issuance of the commitment letter” and “issu[ing] expedited subpoenas to assist defense counsel in obtaining the documents necessary to resolve the [defendant’s] motion to dismiss.” (Fernandez, at p. 134.) The appellate court concluded that “[o]n these facts, the trial court did not abuse its discretion in finding good cause.” (Ibid.)
Here, in ruling on the motion to dismiss, the trial court noted that its “initial thinking was that the DA’s office . . . had fallen all over itself to comply with the [30-day] rule . . . and that’s very similar to [the situation in] Fernandez.” In determining whether there was “good cause” for the delay in filing the commitment, the trial court considered whether the “hospital slash parole board slash whomever” should be included as “part of the [P]eople,” but decided that “Fernandez puts that to rest because the situation in Fernandez was somewhat similar in that the evaluations there hadn’t been done with sufficient time for the district attorney[’]s office in that case to abide by the rules. And that district attorney’s office also, as soon as notified, complied almost immediately with the filing similar to the one [here].” The court held that “what occurred at the hospital [with the late evaluations] didn’t matter relative to the [statutory] guidelines.”
We understand this to mean that the trial court concluded that because the appellate court in Fernandez found the late-filed commitment petition to be timely, the “good cause” exception to the statutory provision applies purely to the efforts of the district attorney, and that any good cause (or lack thereof) relating to the Corrections’s delay is not relevant. This is not an accurate conclusion.
While the Fernandez court indicated that the district attorney had good cause for violating the 30-day provision because he acted as quickly as possible after receiving notification from the Mental Health (Fernandez, supra, 70 Cal.App.4th at p. 128), the court did in fact impute responsibility for the late filing to both the district attorney and to the Corrections/Mental Health. The Fernandez court specifically noted that “the opinion of the [Mental Health]” designating the defendant an MDO “could have been sent to the district attorney while defendant was contesting his MDO status. Consequently, the terms of section 2970 . . . were violated here.” (Fernandez, at p. 128.) While the Fernandez court was referring to the 180-day rule and not the 30-day rule, the court emphasized the “responsibility of hospital or corrections authorities to ensure, for the protection of both society and those committed, that evaluations regarding MDO’s be handled according to the statutory deadlines.” (Id. at p. 130.)
The language here is clear and accentuates the trial court’s misreading of Fernandez. The conduct of either the Corrections or of the Mental Health absolutely can and should be imputed to “the People,” as much as any delay by the district attorney.
Here, as in Fernandez, it is undisputed that the People’s delay in filing the commitment petition was not in compliance with the directory statutory deadlines. However, in Fernandez once the petition was filed (approximately six weeks prior to release) and the defendant was appointed counsel (approximately five weeks prior to release), the court determined that defendant had adequate time to prepare for a trial that could reasonably commence prior to the defendant’s release date. (Fernandez, supra, 70 Cal.App.4th at pp. 121, 134.)
Such is not the case with defendant, however, because here the MDO petition was filed only 12 days prior to his release date, and defense counsel was not appointed until about a week before his release date. In defendant’s case, there is nothing in the record that indicates good cause for the delay in filing, other than the trial court’s erroneous conclusion that so long as the district attorney is not the one who caused the delay, the delay will be excused for good cause. Because the complicity of the Corrections or the Mental Health must be imputed to the People in considering the reason for the delay in filing, the trial court erred when it found good cause for the delay because here there is no reason given for the Corrections’s delay.
As in Tatum, “[w]e emphasize that where, as here, the [People] fail[] to act in a sufficiently timely manner to enable an involuntary commitment under the MDO Act, the Legislature has enacted other statutory schemes that allow involuntary commitment outside of the parole context, such as the [Lanterman-Petris-Short Act] LPS Act, that may apply if [the individual] ‘is a danger to others, or to himself.’” (Tatum, supra, 161 Cal.App.4th at p. 66; Welf. & Inst. Code, § 5150; Allen, supra, 42 Cal.4th at p. 105 [highlighting that “[o]ur decision . . . will not necessarily result in [defendant]’s release” because “[a]lthough [defendant] does not fall under the jurisdiction of the MDO Act, we agree with the Court of Appeal majority that [defendant] might still be involuntarily committed and treated under the LPS Act”]; People v. Hernandez (1983) 148 Cal.App.3d 560, 565 [same]; People v. Hill, supra, 134 Cal.App.3d at pp. 1060–1061 [same].) Beginning with a 72-hour detention for evaluation and treatment, the LPS Act contains a “‘“carefully calibrated series of temporary detentions for evaluation and treatment”’” that can ultimately lead to renewable one-year commitments, similar to those permitted under the MDO Act. (Tatum, at p. 66, quoting Allen, at p. 107.)
Assuming he still requires such treatment, we presume that responsible parties will take appropriate steps to ensure defendant receives custodial treatment under the LPS Act. (Welf. & Inst. Code, § 5150; Allen, supra,42 Cal.4th at p. 108; Tatum, supra, 161 Cal.App.4th at p. 66.)
DISPOSITION
The judgment is reversed. The court is directed to enter a new order granting the motion to dismiss.
We concur: NICHOLSON , Acting P. J., BUTZ , J.