Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN127292, Theodore M. Weathers, Judge.
HUFFMAN, Acting P. J.
Michelle F. Kirkland has been previously found to be a Mentally Disordered Offender (MDO). She has been on outpatient status since January 2006. In 2008, the trial court conducted a review hearing, but did not do so within 30 days of the expiration of her previous commitment. Kirkland contends that because of the delay in holding the hearing the court lacked jurisdiction to continue her on outpatient status. We find the statutory provision for the timing of the review hearing is directory and not mandatory, therefore we find the trial court had jurisdiction to proceed. Once the hearing was held, Kirkland agreed to a one-year extension of her outpatient status. Accordingly, we will affirm the judgment.
In January 2006, Kirkland, who had previously been committed as an MDO under Penal Code section 2970, was released into outpatient treatment pursuant to section 2972.1. In 2007 her commitment into outpatient treatment was extended for another year. On December 10, 2007, the outpatient program filed a report with the trial court requesting that Kirkland be continued another year as an outpatient. For reasons which are not apparent on the record, the trial court did not act on the request until February 21, 2008 when it set a trial date for March 14, 2008. The matter was then continued to March 21, 2008 so that Kirkland could file a motion to dismiss based on failure to bring the matter to trial within 30 days of the end of her outpatient commitment. The court denied the motion and Kirkland thereafter agreed to continuation of her outpatient status for an additional year.
All further statutory references are to the Penal Code unless otherwise specified.
Section 2972.1, subdivision (a) provides: Outpatient status for persons committed pursuant to Section 2972 shall be for a period not to exceed one year. Pursuant to Section 1606, at the end of a period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense attorney, the community program director or a designer, the medical director of the facility that is treating the person, and the person on outpatient status, and after a hearing in court, either discharge the person from commitment under appropriate provisions of law, order the person confined to a treatment facility, or renew its approval of outpatient status."
DISCUSSION
When a person is committed as an MDO and thereafter released to an outpatient treatment program, the person cannot be required to remain in that program for more than one year. The court, upon timely request by the program may continue the outpatient treatment program for an additional year. The person is entitled to a hearing on the issue of extension of the commitment under sections 2972.1 and 1606. Section 1606 provides in part: "The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists." It is undisputed that the trial court failed to conduct a hearing in this case within the time frame set forth in the statute. Further, there is nothing in the record to show the trial court found good cause for the delay.
Kirkland contends the requirement for hearing within 30 days is mandatory and that the trial court's failure to comply with the statute deprived the court of jurisdiction to hear the matter. Thus, she contends the court erred in denying the motion to dismiss. The trial court, relying on People v. Morris (2005) 126 Cal.App.4th 527 (Morris), denied the motion on the basis that the time period for the hearing is directory and not mandatory. Although we agree with Kirkland that our opinion in Morris does not address the issue presented in this case, we are satisfied that the 30-day time limit in the statute is directory and that the trial court retained jurisdiction to hear the request on the merits.
The question of whether the time limits set forth in the MDO statutes are mandatory or directory has been discussed in several cases. Those cases discuss two different time limitations in MDO proceedings; the provisions dealing with the time to file petitions, when such petitions are required, and those which deal with the time limits for setting hearing on commitments or extension of commitments.
Morris, supra, 126 Cal.App.4th 527, 538-541, dealt with the question of whether the prosecutor was required to file a timely petition to review approval of outpatient status. In that case we concluded there was no requirement under section 1606 that a petition must be filed in order to extend the outpatient status of an MDO. Because we found such petition unnecessary, we did not have to decide whether the statutory time limits were directory or mandatory. Accordingly, we agree with Kirkland that Morris does not control the outcome of this appeal.
In People v. Harner (1989) 213 Cal.App.3d 1400 (Harner), the court did address the application of section 1606 timeliness to a person committed under the former Mentally Disordered Sex Offender statute. There the court determined that the requirement that a hearing be conducted within 30 days after the end of the commitment was directory and failure to comply did not deprive the court of jurisdiction to adjudicate the matter. Kirkland recognizes the analysis of Harner has rejected her argument. She contends that Harner was wrongly decided and that we should not follow it. Kirkland suggests that our Supreme Court's decision in People v. Allen (2007) 42 Cal.4th 91 (Allen) has undercut the reasoning of Harner, although the Allen opinion does not criticize the Harner decision. In the Allen case the court addressed the question of whether the failure to timely file a petition to commit a defendant as an MDO deprived the trial court of jurisdiction to conduct commitment proceedings for a person who has served his or her time in prison and where the government is seeking to commit that person to involuntary treatment. In Allen the court concluded that a timely petition was a jurisdictional requirement for such commitment proceedings. (Allen, supra, at pp. 104-105.) The court did not address the circumstances of a proceeding to extend outpatient treatment for a person who has already been properly committed as an MDO. Nor did the court disapprove of the holding in Morris, supra, 126 Cal.App.4th 527, that determined a petition was not necessary in such extension proceeding and that the court could proceed based on the report and request of the outpatient treatment program.
In the course of its analysis of the legislative scheme for dealing with M Dos the court in Allen, supra, 42 Cal.4th 91, analyzed both statutes and case law. The court cited, with approval, the decision of the Sixth District Court of Appeal in People v. Williams (1999) 77 Cal.App.4th 436 (Williams), in which the appellate court dealt with a case involving the extension of the commitment under section 2972. In that case the trial court failed to conduct a re commitment hearing under a statutory requirement that: "The trial shall commence no later than 30 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); Williams, supra, at p. 445.)
In a lengthy analysis the court in Williams concluded the 30-day time limit was directory and that the trial court's failure to strictly comply with the statute did not deprive the court of its fundamental jurisdiction to adjudicate the matter. (Williams, supra, 77 Cal.App.4th at pp. 450-453.)
We are satisfied that the Supreme Court's decision in Allen, supra, 42 Cal.4th 91, has not undermined the reasoning in either the Harner, supra, 213 Cal.App.3d 1400, or Williams, supra, 77 Cal.App.4th 436 decisions. Accordingly we adopt the reasoning of those decisions and find the trial court's failure to conduct the hearing in this case within the 30-day time limit did not deprive the court of jurisdiction to hear this matter.
Although we have agreed the statutory time requirement for conducting a re commitment hearing is not jurisdictional, that does not end the analysis. The statute plainly directs trial courts to conduct hearings within the time limit unless there is good cause to go beyond that time. Here, the record does not explain why the court set a hearing date beyond the 30-day limit. Our conclusion that failure to comply with the statute is not a jurisdictional error does not mean trial courts are free to ignore the statutory direction. There certainly could be circumstances where the late setting of a hearing would be an abuse of discretion that would warrant a remedy for the person who is to be committed for an additional year. This case does not present a record from which we can consider any remedy other than dismissal for lack of jurisdiction.
We do not know why the case was initially set for hearing beyond the 30-day time limit. There was apparently no objection made at the time of setting and thus there is no record from which we can assess the possibility of good cause or any possible prejudice to Kirkland. Indeed the hearing date was continued for an additional week at Kirkland's request so she could make a jurisdictional challenge. Once the challenge was rejected she consented to an additional year of outpatient treatment. Further, Kirkland has not raised any issue on appeal regarding her re commitment other than the jurisdictional challenge. Therefore, on this record there is no reason for this court to take any action other than to affirm the order committing Kirkland to an additional year in outpatient treatment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., AARON, J.