IN THE SUPREME COURT OF CALIFORNIA
DANIEL LOPEZ,
Petitioner,
S172589
v.
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;
Ct. App. 4/3 G040679
THE PEOPLE,
Real Party in Interest.
San Bernardino County
Super. Ct. No. FVAFS700968
Penal Code1 section 2962 of the Mentally Disordered Offender (MDO) Act
provides that individuals convicted of certain enumerated violent offenses caused or
aggravated by a severe mental disorder, and who pose a substantial threat of harm to
others, may be required to receive mental health treatment as a condition of parole.
An MDO may challenge whether he or she “meets the criteria in Section 2962.”
(§ 2966, subd. (a).) If parole is extended, the MDO may challenge his or her
continued commitment by alleging that he or she no longer suffers from a severe
mental disorder that is not in remission, or no longer poses a risk of substantial harm.
1
Further undesignated statutory references are to the Penal Code.
1
(§ 2966, subd. (c).) Once parole is terminated, if an MDO‟s mental disorder is not in
remission and the individual represents a substantial danger of physical harm to others,
the district attorney can petition to extend involuntary treatment for one year.
(§ 2970.)
Daniel Lopez pled guilty to carrying a concealed dirk or dagger in violation of
section 12020, subdivision (a)(4) and was placed on parole with the condition that he
receive inpatient mental health treatment as an MDO under section 2962. Prior to the
termination of his parole, the district attorney filed a petition under section 2970 to
extend Lopez‟s involuntary treatment. Lopez moved to dismiss the extension petition
on the grounds that his initial treatment was improper because his conviction for
carrying a concealed dirk or dagger was not one of the offenses enumerated in section
2962. The trial court denied the motion to dismiss and, on Lopez‟s petition for
mandate, the Court of Appeal affirmed, holding that Lopez‟s “challenge to his original
certification as an MDO [was] untimely.”
For the reasons that follow, we conclude Lopez could not properly challenge
whether he committed an enumerated offense justifying his initial MDO commitment
after the first year of that commitment.
Background
On December 26, 2002, Lopez approached a patron at a laundromat and
demanded the patron‟s loose change. The patron told Lopez he had no change and
demanded that Lopez “leave him alone;” Lopez continued to badger the patron. The
patron repeated that he had no change for Lopez and entered the laundromat to do his
laundry. The patron later left the laundromat to get the remaining laundry and some
detergent from his car. Lopez stopped the patron in the parking lot, approached him
“in a more threatening manner . . . and demanded that he give him any money that he
had in his pocket.” Lopez said, “Give me your f[***]ing money. I know you have
2
money. Give me your chump change.” The patron did not give Lopez any money and
moved past him to enter the laundromat.
The patron once more left the Laundromat to get additional items from his car,
and also grabbed his steering wheel locking device, “The Club,”2 to take back with
him into the Laundromat for protection. A few minutes later, Lopez approached the
patron from behind, crouched into a “fighting stance” six inches from the patron‟s
face, and said, “Give me all your money. I know you have money. Give me whatever
money you have.” The patron observed Lopez reaching into his front pocket, and the
patron hit Lopez with The Club, injuring him.
Lopez ran away, and the patron followed him briefly while another person
called 911. The caller advised police that Lopez did not have any weapons. Lopez
returned to the phone booth near the laundromat, and was found there several minutes
later by the responding police officers. Officers approached Lopez with guns drawn,
asked him if he had any weapons, and Lopez told them he had a knife in his pocket.
Police questioned Lopez at the scene. After waiving his rights under Miranda
v. Arizona (1966) 384 U.S. 436, Lopez admitted that he had consumed four 40-ounce
bottles of beer in the three and one-half hours preceding the altercation at the
laundromat. Lopez told officers that the patron‟s “mere presence was offensive to
him” and that the patron had invaded his space and privacy. Lopez explained that “he
was a very spiritual person, and he could read thoughts and could get into [the
patron‟s] mind, and he knew that [the patron] was just invading his privacy.” Lopez
2
“The Club” is an antitheft steering-wheel locking device designed by James E.
Winner, Jr. and manufactured by Winner International, Inc.
(www.winnerinternational.com/legacy.htm). It is approximately 22-inches long, and
is made of “cro-moly” steel, which “resists sawing, prying, hammering and freon
attacks.” (Winner Internat. Online store, Original Club description,
http://store.winner-intl.com/the-original-club-p2.aspx [as of Oct. 18, 2010].)
3
told police that although he had a knife in his pocket, he did not brandish the weapon
during his exchange with the patron. Police seized the knife following a pat down.
On December 30, 2002, Lopez was charged with attempted second degree
robbery in violation of sections 664 and 211, and with carrying a concealed dirk or
dagger in violation of section 12020, subdivision (a)(4). On April 6, 2004, Lopez
pleaded guilty to carrying a concealed dirk or dagger and the attempted second degree
robbery charge was dismissed.
Lopez was sentenced to 16 months in prison but was released directly to parole
based upon the time he had already served and the credit he received for his work and
good behavior while incarcerated. One month later, Lopez was returned to custody
after violating parole, and then released again. Two months later he again violated
parole, was returned to custody, and released a third time. This sequence recurred, and
on his fourth return to custody he served 12 months and was again released in
September 2005.
As a condition of release, Lopez was required to receive treatment from the
Department of Mental Health pursuant to section 2962.3 One month following this, on
October 26, 2005, Lopez requested and received a certification hearing at which he
3
Section 2962 requires, as a condition of parole, that the State Department of
Mental Health provide mental health treatment to those prisoners that meet the
following criteria: The prisoner must have (1) “a severe mental disorder,” (2) “that is
not in remission or cannot be kept in remission without treatment,” (3) “[t]he severe
mental disorder [must have been] one of the causes of or . . . an aggravating factor in
the commission of the crime for which the prisoner was sentenced to prison,”
(4) “[t]he prisoner [must have] been in treatment for the severe mental disorder for 90
days or more within the year prior to the prisoner‟s parole or release,” (5) there must
be an evaluation by enumerated mental health professionals that the prisoner satisfies
the first three factors, and that the prisoner‟s mental disorder “represents a substantial
danger of physical harm to others,” and (6) that the prisoner‟s conviction was for a
crime enumerated in subdivision (e).
4
was deemed to be an MDO by the Board of Parole Hearings.4 Lopez and his counsel
were present at the certification hearing. In January 2006, three months after his
certification hearing, Lopez filed a petition pursuant to section 2966, subdivision (b),5
requesting a hearing to determine whether he met the section 2962 criteria. One
month later, Lopez withdrew his section 2966 petition, by his own designation,
“[without] prejudice.” Lopez did not file another section 2966 petition, and his
inpatient MDO commitment was continued at his annual review hearing in October
2006, one year after the date of his certification hearing.
On June 18, 2007, eight months after the annual review hearing, the People filed
a petition to extend Lopez‟s commitment pursuant to section 29706 for another year.7
4
As the Court of Appeal noted, “Effective July 1, 2005, the former Board of
Prison Terms was abolished, and all statutory references to the Board of Prison Terms
was deemed to be a reference to the Board of Parole Hearings [(BPH)]. (§ 5075, subd.
(a).) We adopt the new designation, although the record in this case continues to refer
to the former.”
5
Section 2966 provides in pertinent part, “A prisoner who disagrees with the
determination of the [BPH] that he or she meets the criteria of Section 2962, may
file . . . a petition for a hearing on whether he or she, as of the date of the [BPH]
hearing, met the criteria of Section 2962.” (§ 2966, subd. (b).) Section 2966 does not
set forth any timing requirements regarding when such a petition must be filed, and
explains only that “a hearing on the petition [shall be conducted] within 60 calendar
days after the petition is filed, unless either time is waived by the petitioner or his
counsel, or good cause is shown.” (§ 2966, subd. (b).)
6
In pertinent part, section 2970 provides that “prior to the termination of
parole, . . . if the prisoner‟s severe mental disorder is not in remission or cannot be
kept in remission without treatment, . . . [a qualified professional] shall submit to the
district attorney . . . his or her written evaluation on remission. . . . [¶] The district
attorney may then file a petition with the superior court for continued involuntary
treatment for one year.” The petition must be accompanied by affidavits indicating
that the individual had been continuously provided treatment, that he or she “has a
severe mental disorder, that . . . is not in remission or cannot be kept in remission . . .
(footnote continued on next page)
5
Lopez filed an amended motion to dismiss the section 2970 commitment extension
petition on grounds of insufficient evidence. Specifically, Lopez contended that “the
commitment offense for which [he] received a determinate sentence [was not] an
enumerated offense pursuant to” section 2962, subdivision (e)8, and lacking this
foundational criterion, continued commitment was improper.
The court denied Lopez‟s motion to dismiss, concluding that because Lopez had
filed a petition pursuant to section 2966 and later withdrew that petition, he was
precluded from raising issues that he could have, but did not, litigate via that petition.
Lopez filed a petition in the Court of Appeal seeking a writ of mandate directing the
trial court to vacate its order denying his motion to dismiss, and to instead address the
merits of his motion.
(footnote continued from previous page)
and that . . . the [individual] represents a substantial danger of physical harm to
others.”
7
This petition marks the People‟s first request in this case for a hearing pursuant
to section 2970. The prior proceedings were held pursuant to section 2962, which
defines the criteria that must be satisfied when a prisoner as a condition of parole must
be treated by the State Department of Mental health, as previously described, and
pursuant to section 3001, which sets forth the criteria concerning discharge from
parole, and excepts from discharge those individuals eligible for retention based upon
a “Department of Corrections recommend[ation] to the [BPH], for good cause.”
(§ 3001, subd. (a).)
8
Section 2962, subdivision (e) provides, in pertinent part, that the defendant
must have received a determinate sentence for the underlying crime committed, and
that the crime be among the list of enumerated offenses. This list includes a number of
specifically delineated violent crimes, as well as a “catch-all” provision stating that the
crime may be one “in which the perpetrator expressly or impliedly threatened another
with the use of force or violence likely to produce substantial physical harm in such a
manner that a reasonable person would believe and expect that the force or violence
would be used.” (§ 2962, subd. (e)(2)(Q).)
6
In a published opinion, the Court of Appeal denied Lopez‟s petition, concluding
that Lopez‟s “challenge to his original certification as an MDO [was] untimely.” The
Court of Appeal declined to address preclusion, instead concluding that “[t]he static
factors [of an MDO commitment, including whether the original offense was
qualifying pursuant to section 2962, subdivision (e),] may not be challenged after [the]
original commitment has expired.” The court concluded that Lopez forfeited his right
to challenge the “static criteria” of commitment — namely, whether “(1) the disorder
caused or aggravated the commission of the predicate crime,” (2) whether the offender
received a minimum 90-day treatment prior to parole or release, and (3) whether “the
crime is described in section 2962, subdivision (e)” — by waiting until after the first
year of commitment had passed. Accordingly, it denied Lopez‟s request for writ
relief. We granted review to resolve whether the Court of Appeal correctly concluded
that the static factors of MDO commitment must be litigated during the initial one-year
commitment period.
DISCUSSION
“The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires
that offenders who have been convicted of violent crimes related to their mental
disorders, and who continue to pose a danger to society, receive mental health
treatment . . . until their mental disorder can be kept in remission. (Pen. Code, § 2960
et seq.)” (In re Qawi (2004) 32 Cal.4th 1, 9.) The MDO Act is not penal or punitive,
but is instead designed to “protect the public” from offenders with severe mental
illness and “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.” (§ 2960.) The MDO Act has
the dual purpose of protecting the public while treating severely mentally ill offenders.
(Ibid.)
7
The MDO Act provides for treatment of certified MDOs at three stages of
commitment: as a condition of parole, in conjunction with the extension of parole, and
following release from parole. Section 2962 governs the first of the three commitment
phases, setting forth the six criteria necessary to establish MDO status; these criteria
must be present at the time of the State Department of Mental Health‟s and
Department of Correction and Rehabilitation‟s determination that an offender, as a
condition of parole, must be treated by the State Department of Mental Health. The
first three criteria outlined in section 2962 are capable of change over time, and must
be established at each annual review of the commitment. (§§ 2962, subd. (a), 2966,
subd. (c), 2970, 2972.) These criteria require proof that an offender suffers from a
severe mental disorder, that the illness is not or cannot be kept in remission, and that
the offender poses a risk of danger to others. (§ 2962, subd. (a).) The latter three
criteria outlined in section 2962 — that the offender‟s severe mental disorder was a
cause or aggravating factor in the commission of the underlying crime, that the
offender was treated for at least 90 days preceding his or her release, and that the
underlying crime was a violent crime as enumerated in section 2962, subdivision (e)
— are considered “static” or “foundational” factors in that they “concern past events
that once established, are incapable of change.” (People v. Francis (2002) 98
Cal.App.4th 873, 879; see also People v. Cobb (2010) 48 Cal.4th 243, 251-252.)
Challenges to the first phase of commitment are governed by sections 2964 and
2966, subdivisions (a) and (b). Section 2964 provides in pertinent part that “[a]ny
prisoner who is to be required to accept treatment pursuant to [s]ection 2962 shall be
informed in writing of his or her right to request a hearing pursuant to [s]ection 2966.”
Section 2966, subdivisions (a) and (b), set forth the procedure an MDO may utilize to
challenge the propriety of his or her initial commitment. Should an individual disagree
with an MDO certification decision, he or she may request a hearing before the BPH,
and may request that independent mental health professionals evaluate the offender.
8
(§ 2966, subd. (a).) If “[a] prisoner . . . disagrees with the determination of the [BPH]
that he or she meets the criteria of [s]ection 2962, [he or she] may file . . . a petition for
a hearing on whether he or she, as of the date of the [BPH] hearing, met the criteria of
[s]ection 2962.” (§ 2966, subd. (b).) At this civil hearing in the superior court, the
offender will have the right to be represented by counsel and the right to a jury trial.
(Ibid.)
Section 2966, subdivision (c) governs the second commitment phase. It
provides that if an individual‟s parole is continued beyond one year pursuant to section
3001, and that individual‟s treatment is also continued pursuant to section 2962, the
individual may utilize the procedures outlined in section 2966 (a hearing before the
BPH, or a court proceeding) only to challenge the dynamic commitment criteria —
namely, that the individual suffers from a severe mental disorder that is not in
remission, and that he or she poses a substantial risk of danger. (§ 2966, subd. (c).) If
the offender‟s “mental disorder is put into remission during the parole period,”
treatment must cease. (§ 2968.)
Sections 2970 and 2972 govern the third and final commitment phase, once
parole is terminated. If continued treatment is sought, the district attorney must file a
petition in the superior court alleging that the individual suffers from a severe mental
disorder that is not in remission, and that he or she poses and substantial risk of harm.
(§ 2970.) Commitment as an MDO is not indefinite; instead, “[a]n MDO is committed
for one-year period[s] and thereafter has the right to be released unless the People
prove beyond a reasonable doubt that he or she should be recommitted for another
year.” (People v. McKee (2010) 47 Cal.4th 1172, 1202.)
We examine here whether an MDO must challenge the static criteria justifying
commitment during the initial one-year period of that commitment, or if such a
challenge may be brought at any time, even decades after the initial commitment has
ended. When engaging in statutory construction, “[w]e begin with the statutory
9
language because it is generally the most reliable indication of legislative intent.
[Citation.] If the statutory language is unambiguous, we presume the Legislature
meant what it said, and the plain meaning of the statute controls. (People v. Hudson
(2006) 38 Cal.4th 1002, 1009.)” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th
201, 211.) If the language is susceptible of multiple interpretations, “the court looks
„to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils
to be remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part.‟ (People v.
Woodhead (1987) 43 Cal.3d 1002, 1008.) After considering these extrinsic aids, we
„must select the construction that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the general purpose of the
statute, and avoid an interpretation that would lead to absurd consequences.‟ (People
v. Jenkins (1995) 10 Cal.4th 234, 246.)” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,
977-978.)
Section 2966, subdivision (b) permits an individual dissatisfied with the BHP‟s
determination that he or she meets the criteria specified in section 2962 to “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 [BPH] hearing, met
the criteria of [s]ection 2962.” The statute is silent concerning the time by which such
a petition must be filed. Lopez argues that the absence of an express limitations period
suggests that the petition may be filed at any time; the People suggest a contrary
conclusion, explaining that section 2966, subdivision (b) is limited to challenges
brought during the initial one-year commitment period, while section 2966,
subdivision (c) and section 2972 govern challenges to MDO commitment continued
beyond that initial year. Both the People‟s and Lopez‟s interpretations are reasonable.
Because the statutory language is susceptible of multiple interpretations, we
examine the statutory scheme as a whole to ascertain whether the intent of the
10
Legislature may be discerned by examining the statute in its larger context. (See Nunn
v. State of California (1984) 35 Cal.3d 616, 624, 625.) This review reveals the
Legislature‟s intent that the static commitment criteria must be challenged during an
MDO‟s initial one-year commitment period. Section 2962, subdivision (d) explains
that, to be certified as an MDO, “the person in charge of treating the prisoner and a
practicing psychiatrist or psychologist from the State Department of Mental Health
have evaluated the prisoner at a facility of the Department of Corrections, and a chief
psychiatrist of the Department of Corrections has certified” to the BPH that the
individual meets the static and dynamic criteria set forth in section 2962. (§ 2962,
subd. (d).) The subdivision also contains safeguards requiring further professional
evaluation in the event that not all treating officials and mental health professionals
agree that the dynamic and static criteria are present. (§ 2962, subd. (d)(2), (3).)
Section 2964 provides that an MDO must be notified in writing of his or her
right to challenge the designation, and refers the individual to section 2966. Section
2966 sets forth the two-tiered process by which an individual may challenge his or her
certification as an MDO — first by requesting a hearing before the BPH (§ 2962, subd.
(a)), and then by petitioning the superior court for a hearing challenging that
determination (§ 2962, subd. (b)). Once the initial one-year commitment period has
passed, the time by which an MDO must have challenged the static criteria justifying
that commitment has also passed.
Section 2966, subdivision (c) and sections 2970 and 2972 support our
conclusion. Section 2966, subdivision (c) explains that if the BPH continues mental
health treatment under section 2962 when it continues parole pursuant to section
3001,9 “the procedures of this section [(permitting an individual to challenge his or her
9
Section 3001 provides in pertinent part that when certain designated parolees
“ha[ve] been released from the state prison, and ha[ve] been on parole continuously for
(footnote continued on next page)
11
MDO status by requesting a hearing before the BPH, and by petitioning the superior
court to challenge that determination)] shall only be applicable for the purpose of
determining if the parolee has a severe mental disorder, whether the parolee‟s severe
mental disorder is not in remission or cannot be kept in remission without treatment,
and whether by reason of his or her severe mental disorder, the parolee represents a
substantial danger of physical harm to others.” (§ 2966, subd. (c).) That is, section
2966, subdivision (c) provides that, once an MDO‟s treatment is continued past the
initial one-year period of parole, the MDO may only request a hearing before the BPH
to challenge whether the dynamic commitment criteria are still satisfied.
Sections 2970 and 2972 provide further support. These provisions address the
process a district attorney utilizes when seeking continued commitment following the
termination of an MDO‟s parole or release from prison. Prior to release from parole or
prison, a designated treatment provider or mental health professional must supply a
local district attorney with an evaluation of an MDO‟s remission status. Should the
individual continue to require treatment, a local district attorney may seek
recommitment by filing a petition alleging that the dynamic criteria justifying
commitment are present. (§ 2970.) If such a petition is filed, “the court shall conduct
a hearing . . . for continued treatment.” (§ 2972, subd. (a).) An individual has the
right to representation at this hearing, and has the right to a jury trial and a unanimous
verdict. (Ibid.) Section 2972, subdivision (c) provides that the court must find beyond
(footnote continued from previous page)
one year since release from confinement, . . . that person shall be discharged from
parole, unless the Department of Corrections recommends to the [BPH] that the person
be retained on parole and the board, for good cause, determines that the person will be
retained.” (§ 3001, subd. (a); see also id., subds. (b), (c) [providing the same
parameters of release for parolees on continuous parole for three and six years,
respectively].)
12
a reasonable doubt “that the patient has a severe mental disorder, that the patient‟s
severe mental disorder is not in remission or cannot be kept in remission without
treatment, and that by reason of his or her severe mental disorder, the patient
represents a substantial danger of physical harm to others.” Sections 2966, subdivision
(c), section 2970, and section 2972, read individually and collectively, reveal that the
Legislature intended an MDO be permitted to challenge the static factors justifying his
or her commitment only during the initial one-year period of treatment; once that
period ends, the statutory language contemplates a challenge based only upon the
dynamic factors justifying continued treatment.
Our conclusion is also bolstered by the fact that the Legislature referred to an
MDO requiring treatment as a “person” or “patient” in section 2972, but referred to the
MDO as a “prisoner” or “parolee” in sections 2960 through 2970. This linguistic shift
suggests the Legislature acknowledged that the recommitment process outlined in
section 2972 is distinct from the initial commitment process. Sections 2960 through
2970 refer to the committee as a “parolee” or a “prisoner,” recognizing the MDO
commitment process begins with an evaluation conducted during a prisoner‟s first year
of incarceration to determine if he or she suffers from a severe mental illness. This
examination effectuates the Legislature‟s goal “that severely mentally disordered
prisoners should be provided with an appropriate level of mental health treatment
while in prison and when returned to the community.” (§ 2960.) As a condition of
parole, should a parolee or prisoner meet the criteria outlined in section 2962, that
individual will be designated an MDO. (§ 2962.) The next year, if parole is
continued, so will be that individual‟s mental health treatment. (§ 2966, subd. (c).)
Finally, once parole is discontinued, if an individual remains in need of mental health
treatment, the MDO scheme contemplates an avenue for continued treatment.
(§§ 2970, 2972.) The statutory scheme‟s delineation of the stages of treatment — at
the inception of parole, at the extension of parole, and following termination of parole
13
or release from prison — as well as the Legislature‟s use of different terms to refer to
an MDO during and following parole, support our conclusion that the Legislature
intended that the static commitment criteria could be challenged only during the initial
commitment period.
Moreover, interpreting section 2966 to permit an individual to challenge the
static commitment criteria at any time (rather than limiting that challenge to the initial
one-year period of commitment) would render the section 2966, subdivision (c)
irrelevant. A reading of a statute rendering “some words surplusage is to be avoided.”
(McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110.) Section 2966,
subdivision (c) makes plain, and sections 2970 and 2972 underscore, that once the
initial one-year commitment period has passed, an MDO may only challenge
continued treatment by alleging the dynamic criteria justifying commitment are not
satisfied.
We are mindful of the significant liberty interests associated with involuntary
civil commitment. (See People v. McKee, supra, 47 Cal.4th at p. 1206.) Our concerns
that an MDO‟s rights be preserved are assuaged somewhat by the procedural
safeguards imposed by the statutory scheme. In particular, we note that the scheme
provides MDOs the right to counsel both when challenging certification before the
BPH (Cal. Code Regs., tit. 15, § 2576, subd. (b)(4)), and when challenging the BPH‟s
determination in superior court (§ 2966, subd. (b)). Indeed, section 2964 requires that,
following MDO certification, the parolee be informed in writing that he or she may
challenge the determination in court, which is necessarily accompanied by the right to
counsel. Section 2966, subdivision (a) contains a similar safeguard, requiring that the
parolee be informed at a requested BPH certification hearing that he or she may also
challenge MDO certification in superior court, which challenge is necessarily
accompanied by the right to representation.
14
Here, Lopez was represented by counsel during the October 2005 BPH
certification hearing he requested and received. He was also represented by counsel
when he filed his petition pursuant to section 2966, subdivision (b), and when that
petition was withdrawn “without prejudice.”10 Counsel‟s designation that such
withdrawal was without prejudice, made without the court‟s approval and ostensibly
based on no legal principle, may have been erroneous. Although Lopez may not
challenge via section 2966, subdivision (b) the propriety of his MDO certification
based upon the static commitment criteria, we express no view on whether he could
challenge his certification by filing a petition for writ of habeas corpus.
Conclusion
We affirm the judgment of the Court of Appeal.11
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
10
We do not decide here whether the outcome would be the same had Lopez not
been represented by counsel when he requested and received a hearing before the BPH
pursuant to section 2966, subdivision (a), and when he submitted and withdrew his
petition made pursuant to section 2966, subdivision (b).
11
Because we conclude that the statutory scheme requires that a challenge to the
static criteria be brought within the initial one-year commitment period, we need not
and do not reach Lopez‟s additional arguments concerning forfeiture, res judicata, and
collateral estoppel.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Lopez v. Superior Court __________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 173 Cal.App.4th 266
Rehearing Granted
__________________________________________________________________________________
Opinion No. S172589
Date Filed: October 18, 2010
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Gilbert G. Ochoa
__________________________________________________________________________________
Counsel:
Doreen B. Boxer, Public Defender, Pamela P. King and Lyly Brantley, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Michael A. Ramos, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and Grace B. Parsons,
Deputy District Attorney, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lyly Brantley
Deputy Public Defender
255 North D Street, Suite 200
San Bernardino, CA 92415-0027
(909) 383-2402
Grover D. Merritt
Lead Deputy District Attorney
412 Hospitality Lane, First Floor
San Bernardino, CA 92415
(909) 891-3302
Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Can a person committed as a mentally disordered offender challenge that determination at the time of a petition to extend the commitment or can the question be litigated only at the time of the original certification?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 10/18/2010 | 50 Cal. 4th 1055, 239 P.3d 1228, 116 Cal. Rptr. 3d 530 | S172589 | Review - Criminal Original (non-H.C.) | submitted/opinion due | PEOPLE v. HUBBARD (S183807) |
| 1 | Lopez, Daniel (Petitioner) Represented by George William Taylor Office of the San Bernardino County Public Defender 364 N. Mt. View Avenue San Bernardino, CA |
| 2 | Lopez, Daniel (Petitioner) Represented by Lyly Brantley Office of the San Bernardino County Public Defender 255 North "D" Street, Suite 200 San Bernardino, CA |
| 3 | Superior Court of San Bernardino County (Respondent) Attn: Hon. Gilbert G. Ochoa 351 N. Arrowhead Avenue San Bernardino, CA 92415 |
| 4 | The People (Real Party in Interest) Represented by Grace B Parsons Office of the San Bernardino County District Attorney 412 Hospitality Lane, 1st Floor San Bernardino, CA |
| 5 | The People (Real Party in Interest) Represented by Grover D. Merritt Office of the San Bernardino County District Attorney 412 Hospitality Lane, 1st Floor San Bernardino, CA |
| Opinion Authors | |
| Opinion | Justice Carlos R. Moreno |
| Dockets | |
| May 4 2009 | Received premature petition for review Petitioner: Lopez, DanielAttorney: George William Taylor |
| May 27 2009 | Petition for review filed Petitioner: Lopez, DanielAttorney: George William Taylor |
| May 27 2009 | Record requested |
| May 29 2009 | Received Court of Appeal record one file jacket/writs/exhibits |
| Jul 21 2009 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including August 25, 2009, or the date upon which review is either granted or denied. |
| Jul 29 2009 | Petition for review granted Corrigan, J., was absent and did not participate. Votes: George, C.J., Kennard, Werdegar, and Moreno, JJ. |
| Sep 14 2009 | Request for extension of time filed Petitioner, Daniel Lopez's, untimely application for relief from default and request for extension of time to file the opening brief on the merits. asking to Oct. 26, 2009 to file the opening brief on the merits. |
| Sep 17 2009 | Extension of time granted On application of Petitioner and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including October 16, 2009. |
| Oct 19 2009 | Opening brief on the merits filed Petitioner: Lopez, DanielAttorney: Lyly Brantley |
| Nov 19 2009 | Answer brief on the merits filed Real Party in Interest: The PeopleAttorney: Grace B Parsons |
| Dec 2 2009 | Request for extension of time filed Petitioner, Daniel Lopez, is asking for a 30 day extension to Jan. 8, 2010, to file the reply brief on the merits. By Deputy Public Defender, Lyly Brantley. |
| Dec 4 2009 | Extension of time granted On application of Petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 8, 2010. |
| Jan 8 2010 | Reply brief filed (case fully briefed) Petitioner: Lopez, DanielAttorney: Lyly Brantley |
| Feb 8 2010 | Notice of substitution of counsel Grover D. Merrit, Lead Deputy District Attorney in place of Grace B. Parsons. |
| Mar 29 2010 | Received: Letter from Grover D. Merritt, counsel for real party The People, requesting that argument not be set between Mary 27 and June 2, 2010, due to his pre-paid vacation plans. |
| Aug 2 2010 | Case ordered on calendar To be argued Tuesday, September 7, 2010, at 1:00p.m. in San Francisco. |
| Aug 26 2010 | Received: letter dated August 25, 2010 from Lyly Brantley - counsel for petitioner regarding Oral Argument on September 7, 2010 and permitting citation of additional authorities not cited in briefs on file. by Lyly Brantley, counsel |
| Aug 27 2010 | Received: letter dated August 25, 2010 from The People - Real Party in Interest . by Grover D. Merritt, counsel |
| Sep 7 2010 | Cause argued and submitted |
| Briefs | |
| Oct 19 2009 | Opening brief on the merits filed Petitioner: Lopez, DanielAttorney: Lyly Brantley |
| Nov 19 2009 | Answer brief on the merits filed Real Party in Interest: The PeopleAttorney: Grace B Parsons |
| Jan 8 2010 | Reply brief filed (case fully briefed) Petitioner: Lopez, DanielAttorney: Lyly Brantley |
| Brief Downloads | |
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| Apr 21, 2011 Annotated by whitney fogg | FACTS On December 26, 2002, petitioner Daniel Lopez was arrested for threatening a patron outside of a Laundromat. In connection with this incident, Lopez pleaded guilty to carrying a concealed dirk or dagger in violation of California Penal Code § 12020(a)(4). He received a 16 month sentence but was released directly to parole based on time served. After violating parole and returning to custody three times, Lopez was again released in September 2005. Pursuant to the Mentally Disordered Offender Act of 1985 (Cal. Pen. Code § 2960 et seq.), the State required Lopez to receive treatment from the Department of Mental Health as a condition of his parole. According to § 2962, paroled prisoners must undergo compulsory treatment if they meet the following criteria:
On October 26, 2005, one month after the commencement of his inpatient commitment, Lopez requested a certification hearing. Both Lopez and his attorney appeared at the hearing, where the Board of Parole Hearings certified Lopez as a Mentally Disordered Offender (MDO). Three months after the hearing, Lopez filed a petition pursuant to § 2966 challenging the Board’s determination that he met the § 2962 MDO criteria. Lopez withdrew the petition one month later. Lopez’ annual review in October 2006 resulted in the renewal of his commitment for another year. Eight months later, the People filed a petition with the superior court requesting an extension of Lopez’ involuntary treatment for an additional year. In response, Lopez filed an amended motion to dismiss the People’s petition, arguing that his MDO certification was erroneous because the offense providing the basis for his initial commitment was not enumerated in § 2962(e). PROCEDURAL HISTORY The superior court denied Lopez’ motion to dismiss the People’s petition to extend his MDO commitment. Lopez then sought a writ of mandate from the Court of Appeal directing the superior court to vacate its order. The Court of Appeal denied Lopez’ petition on the grounds that the challenge to his initial MDO certification was untimely. ISSUE May a Mentally Disordered Offender challenge the static factors of his involuntary commitment after the initial one-year commitment period has expired? HOLDING The Court affirmed the Court of Appeal’s judgment, holding that a challenge to the static factors of MDO commitment must be brought within the initial one-year commitment period. Consequently, Lopez was barred from challenging his MDO certification because (1) the challenged factor—whether carrying a concealed dagger is an enumerated offense—is static and (2) the initial commitment period had expired. ANALYSIS In determining that Lopez’ petition was untimely, the Court interpreted Penal Code § 2966. This section lays out the procedures for MDOs wishing to challenge their initial commitment. Pursuant to § 2966, an MDO may petition the superior court to request a hearing on whether, at the time of the initial certification hearing, he met the criteria listed in § 2962. Lopez argued that he was free to challenge any of the factors underlying his MDO certification because § 2966 did not specify a time limit for such challenges. The Court disagreed, concluding that Code provisions governing later stages of MDO commitment, as well § 2966 itself, signaled that the Legislature did not intend to allow MDOs to challenge static factors beyond the first year of commitment. The Court noted that the MDO designation criteria in § 2962 are either dynamic, in that they are capable of change over time, or static, in that they reference already-concluded events. For example, whether a prisoner presents a danger to others is a dynamic factor subject to review at the MDO’s required annual hearing. In contrast, whether the underlying offense was a violent crime enumerated in § 2962(e) is a static factor based on an unchanging fact. In conjunction with § 3001, governing parole, § 2966(c) provides that when an MDO challenges the Board of Parole Hearings’ decision to continue involuntary treatment beyond the first year of parole, the superior court or the Board may only reevaluate dynamic criteria. Lopez’ argument that MDOs may also challenge static factors would render this portion of § 2966 irrelevant. In addition, § 2970 and 2972, which allow the People to petition the court for recommitment of an MDO, also contemplate reconsideration of dynamic factors only. Thus, the statutory scheme does not provide an avenue for reevaluation of the static factors beyond the first year of treatment. In coming to this conclusion, the Court remained aware of the “significant liberty interests associated with involuntary civil commitment.” However, it noted the presence of procedural safeguards, including the MDO’s statutory right to counsel when challenging certification before the Board of Parole Hearings and when challenging the Board’s decision in superior court. Finally, the Court “express[ed] no view” as to whether Lopez could bring a habeas challenge to his certification. TAGS Mentally Disordered Offender, Mentally Disordered Offender Act, involuntary civil commitment, mental illness, parole Key Related Cases People v. Cobb (2010) 48 Cal.4th 243 McCarther v. Pacific Telesis Group (2010) 48 Cal.4th 104 People v. McKee (2010) 47 Cal.4th 1172 Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 People v. Hudson (2006) 38 Cal.4th 1002 In re Qawi (2004) 32 Cal.4th 1 Wilcox v. Birtwhistle (1999) 21 Cal.4th 973 People v. Jenkins (1995) 10 Cal.4th 234 People v. Woodhead (1987) 43 Cal.3d 1002 Nunn v. State of California (1984) 35 Cal.3d 616 People v. Francis (2002) 98 Cal.App.4th 873 Key Related Statutes and Regulations Cal. Pen. Code, § 2960 et seq. Cal. Pen. Code, § 3000 et seq. Cal. Code Regs., tit. 15, § 2576 |
