Supreme Court of California Justia
Citation 48 Cal. 4th 243, 226 P.3d 340, 106 Cal. Rptr. 3d 230

People v. Cobb

Filed 3/8/10 (this opn. should follow lead companion case, S155481, also filed 3/8/10)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S159410
v.
Ct.App. 4/2 E040848
ROY COBB, JR.,
Riverside County
Defendant and Appellant.
Super. Ct. No. RIF091750

Having served his sentence for assault with a deadly weapon, defendant
Roy Cobb, Jr. was committed in 2005 to a state hospital for treatment as a
mentally disordered offender (MDO). After that commitment ended, a jury found
that his condition persisted, and his commitment was extended in this proceeding.1
On appeal, defendant contended he was denied due process because he remained
confined while his extension trial was continued, without good cause, beyond his
scheduled release date.
As we will explain, several issues presented here have been effectively
resolved in the companion case, where they arose in the context of a commitment
following a verdict of not guilty by reason of insanity (NGI). (See People v. Lara
(Mar. 8, 2010, S155481) __ Cal.4th __ (Lara).)

1
The record does not reflect whether defendant exercised his right to a jury
trial with regard to his first commitment. (See Pen. Code, § 2966, subd. (b).)
Further statutory references will be to the Penal Code.
1


This case differs from Lara, in that here the Court of Appeal held that the
original finding that defendant was an MDO justified his confinement until the
extension petition was tried, even if good cause was not shown for continuing his
trial beyond his scheduled release date. It reasoned: “Essentially, there has
already been a determination that the defendant is an MDO; at the trial, the
prosecution simply must prove that the defendant is still an MDO.”
The Court of Appeal erred. It failed to acknowledge that the critical
question at an extension trial is an MDO‟s current condition. (§ 2972, subd. (c).)
I. FACTUAL AND PROCEDURAL BACKGROUND
A prisoner certified as an MDO is treated by the Department of Mental
Health as a condition of parole. (§ 2962.) Unless good cause is shown, at least
180 days before parole is to end, the medical director of the state hospital “shall”
inform the district attorney in writing if the parolee‟s “severe mental disorder is
not in remission or cannot be kept in remission without treatment.” (§ 2970.) The
district attorney “may” then petition the superior court for another year of
treatment. (Ibid.) The trial on the extension petition “shall” begin at least 30
calendar days before “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) (section 2972(a).) If the patient is found to have a severe mental disorder
that is not in remission or cannot be kept in remission without treatment, and by
reason thereof represents a substantial danger of physical harm to others, the
patient shall be recommitted for one year. (§ 2972, subd. (c).)
Defendant‟s parole release date was May 27, 2006. The district attorney
filed a petition for continued treatment on March 6, and the trial began on June 19.
Thus trial did not begin 30 days before the release date, and defendant was held an
additional 23 days before his trial did begin.
2
On April 24, 2006, defendant‟s counsel announced that she was ready for
trial and asked to proceed “forthwith.”
The People replied that the assigned deputy, Charles Kenyon, was
unavailable because he was at an out-of-town conference. In addition, Kenyon
had “three criminal trials set that should go before this matter. He‟s requesting the
last week of May for this case.”
Defense counsel objected to the continuance on both statutory and
constitutional grounds. “[I]n order to be in compliance with Penal Code [section]
29[7]2, subdivision (a), he would have to proceed to trial by May the 24th, which
given everything else that is going on with the Court‟s calendar, it‟s unlikely that
the Court is going to be available on May the 24th, and we will have yet another
MDO that has not gone to trial in an expeditious fashion.”
When the court indicated its intention to continue the case to May 2, 2006,
defense counsel elaborated on her objection. Defendant was in custody. Trying
the extension petition after his current term expired would violate his rights to
liberty, due process, and equal protection under both the state and federal
Constitutions.
On May 2, defense counsel was again ready. The court said it would trail
the case until May 4 because it was trying another case. Noting that the section
2972(a) 30-day deadline had already passed, defense counsel renewed her
statutory and constitutional objections. The objections were overruled.
On May 4, the defense again announced ready. The deputy district attorney
said that the treating physician was unavailable until June 9. Pointing out that
defendant‟s term would have expired by that time, defense counsel objected to the
continuance and moved to dismiss the extension petition. “This is a classic
example of the ongoing problem with the district attorney‟s office,” she argued.
“They file these cases at the last minute, and then they‟re not able to proceed in a
3
timely fashion as is required by [section 2972(a) and due process].” The court
overruled the objection and denied the dismissal motion, finding good cause for
the continuance: “Number one, this Court is in trial and has a priority criminal
case coming at the conclusion of this trial. Plus the doctor is not available until
June 9.”
On May 26, defense counsel moved for defendant‟s release on bail because
his parole term would expire the next day. Counsel argued that nothing in section
2972(a) authorized keeping defendant in custody when parole ended. The motion
was denied.
On June 9, defense counsel was again ready and renewed her motions for
release and dismissal, noting that defendant‟s term had expired. The deputy
district attorney sought another week‟s continuance for two reasons. He was
engaged in another trial. The treating physician, Dr. Rosten, was under court
order to perform an examination in another case that day and had been subpoenaed
in two other cases for the following week. Defense counsel noted that the case
had already been continued for weeks because of Dr. Rosten‟s trip to Spain. “I
think if the Court were to order this trial to begin, that the district attorney would
either get Dr. Rosten here or get someone else here to say what it is they think they
need to say about Mr. Cobb. If he‟s as dangerous as the district attorney would
lead the Court to believe, then it would seem to me that there would be more than
one single solitary doctor in the whole wide world that could come in and talk
about the relevant issues, particularly when Dr. Rosten has been in Spain and
obviously someone else would have been treating him.”
The motions to dismiss were denied. “The Court finds there‟s good cause.
The Court is . . . engaged in trial. There‟s no other court available. The district
attorney is engaged in trial. The witness is not available.” The court continued
the case until June 15. Defense counsel reminded the court that defendant was
4
being kept in custody beyond his scheduled release date and that the court was
giving priority to prosecutions of defendants who were not in custody.
On June 15, Dr. Rosten was still unavailable, and defendant had not been
transported to court. Defense counsel yet again moved for dismissal and release.
The court denied the motions and trailed the matter until the following Monday,
June 19.
Jury selection began on June 19. On June 22, 2006, the jury found
defendant to be an MDO and his commitment was extended. The Court of Appeal
affirmed.
We hold: (1) At the end of his commitment, defendant was entitled, as a
matter of due process, to release pending trial on the extension petition, unless
good cause to continue the trial was shown or he waived time. (2) The court did
not lose jurisdiction to try him, however. (3) He is not now entitled to release.
II. DISCUSSION
A.
The Statutory Deadline for Beginning Trial Is Directory
In Lara, supra, __ Cal.4th __, the defendant was tried for falsely
imprisoning a child, found not guilty by reason of insanity, and committed to a
state hospital. In a proceeding to extend his commitment, the statutory deadlines
for filing the extension petition and commencing trial were not met. The
defendant contended the trial court thereby lost jurisdiction to try the case because
the deadlines were mandatory. We rejected this contention, concluding the
deadlines were directory. (Id. at pp. __-__ [pp. 6-12].)
One of the grounds for our conclusion was that section 1026.5, subdivision
(a)(2) expressly states the time limits set out in that section “are not jurisdictional.”
The statute setting out the time limit for commencing an MDO recommitment trial
does not have a similar disclaimer. (See § 2972.) However, this difference does
not necessarily indicate the Legislature intended this deadline to be mandatory.
5
Unless the Legislature clearly expresses a contrary intent, time limits are typically
deemed directory. (Lara, supra, __ Cal.4th at p. __ [p. 7]; People v. Allen (2007)
42 Cal.4th 91, 101-102 (Allen).)
Moreover, the other factors we relied upon in Lara to conclude the
Legislature intended the NGI time limits to be directory are also present here. The
Legislature‟s failure to include a penalty or consequence for non-compliance with
the NGI statute‟s time limit indicates that the requirement is directory rather than
mandatory. (Lara, supra, __ Cal.4th at p. __ [p.10]; California Correctional
Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1145;
Edwards v. Steele (1979) 25 Cal.3d 406, 410.) Like the parallel provision
governing NGI recommitment proceedings, section 2972 contains no indication
that an MDO extension trial may not take place if the 30-day deadline is not
satisfied. Indeed, the statute itself provides that its time limit is not binding if
good cause is shown for not having met it, or if the defendant waives time. (See
Lara, supra, __ Cal.4th at p. __ [p. 10].)
Finally, the purposes of the MDO recommitment procedure would be
defeated by holding the time limit mandatory. As we said in Lara regarding the
NGI recommitment procedure: “Holding it to be mandatory would mean that a
court, faced with a filing deadline missed for good cause, would be powerless to
extend treatment under the statute no matter how great the defendant‟s need or the
danger release might pose to the public. Such an interpretation would run counter
to the very purposes of the NGI statutes and the provision for extension of
commitment. It would elevate the secondary benefit to the defendant derived from
the time limit over the fundamental purposes of the NGI provisions, to ensure that
needed treatment is provided and the public protected. (Cf. Williams, supra, 77
Cal.App.4th at p. 451 [construing the time limit provisions of the Mentally
Disordered Prisoners Act].) [Fn.]” (Id. at p. __ [p. 11].)
6

B.
Due Process
Our due process analysis in Lara, supra, __ Cal.4th __, began with the
proposition that a “ „root requirement‟ of due process is that an individual be given
an opportunity for a hearing before being deprived of any significant liberty or
property interest, except for extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing until after the
event. (Boddie v. Connecticut (1971) 401 U.S. 371, 379; see In re Roger S. (1977)
19 Cal.3d 921, 937.)” (Id. at p. __ [pp. 12-13].)
In Lara, we concluded that the due process question should be evaluated on
a case-by-case basis. (Lara, supra, __ Cal.4th at p. __ [p. 17].) The reason for a
delay should be balanced against its prejudicial effect. A late extension petition
filing potentially gives rise to two types of prejudice: inability to prepare for trial
in the remaining time, and involuntary commitment beyond the release date.
(Ibid.) Lara suffered both types of prejudice. The petition to extend his
commitment was filed so late that he did not have adequate time to prepare for
trial before his term ended. There was no good cause for the late filing, and he did
not waive time. Finally, he was subjected to nearly seven months of additional
confinement after his release date, but before the adjudication to which he was
entitled. (Id. at pp. __ [pp. 18-22].)
Here, Cobb was not even given the opportunity to go to trial before his term
ended. Not only was the 30-day deadline for trial commencement missed, the trial
began 23 days after defendant‟s scheduled release date. He objected to each
continuance. On appeal, he claimed the grant of continuances without good cause
denied him due process.
The Court of Appeal did not directly address this claim. Instead, it
assumed an absence of good cause, but concluded that defendant was not denied
7
due process. 2 It reasoned that defendant had notice and an opportunity to be
heard when he was initially found to be an MDO. “This notice and opportunity to
be heard is also constitutionally sufficient to allow the defendant to be confined—
even after his or her release date—until the end of [an extension] trial. Essentially,
there has already been a determination that the defendant is an MDO; at the trial,
the prosecution simply must prove that the defendant is still an MDO.”
The Court of Appeal‟s analysis would render the procedural safeguards of
notice and timely trial merely advisory.
“The MDO Act establishes a comprehensive scheme for treating prisoners
who have severe mental disorders that were a cause or aggravating factor in the
commission of the crime for which they were imprisoned. (See § 2960.) The act
addresses treatment in three contexts—first, as a condition of parole (§ 2962);
then, as continued treatment for one year upon termination of parole (§ 2970); and
finally, as an additional year of treatment after expiration of the original, or
previous, one-year commitment (§ 2972).” (People v. Garcia (2005) 127
Cal.App.4th 558, 563.)
Section 2962 lists six criteria that must be met for the initial MDO
certification. “The trial court must consider whether 1) the prisoner has a severe
mental disorder; 2) the prisoner used force or violence in committing the
underlying offense; 3) the severe mental disorder was one of the causes or an
aggravating factor in the commission of the offense; 4) the disorder is not in

2
We need not resolve the question whether good cause was shown for
continuing defendant‟s trial beyond his release date. As we explain, even without
good cause for the continuances, the trial court retained jurisdiction to conduct the
extension hearing (see part II.A., ante), and the fact that defendant was not
released did not affect the validity of the eventual extension order (see part II.C.,
post).
8


remission or capable of being kept in remission without treatment; 5) the prisoner
was treated for the disorder for at least 90 days in the year before his release; and
6) by reason of his severe mental disorder, the prisoner poses a serious threat of
physical harm to others. (§ 2962, subds. (a)-(d)(1).)” (People v. Francis (2002)
98 Cal.App.4th 873, 876-877 (Francis); accord, People v. Merfield (2007) 147
Cal.App.4th 1071, 1075, fn. 2 (Merfield); People v. Hannibal (2006) 143
Cal.App.4th 1087, 1094.)
Three of the criteria are relevant only to the initial certification. These three
“concern past events that once established, are incapable of change: whether the
prisoner used force or violence in committing the underlying offense; whether he
was treated for the disorder for at least 90 days in the year before his release; and
whether his severe mental disorder was one of the causes or an aggravating factor
in the commission of the underlying offense.” (Francis, supra, 98 Cal.App.4th at
p. 879; accord, Merfield, supra, 147 Cal.App.4th at pp. 1075-1076.)
By contrast, the three criteria that must be satisfied for continued treatment
relate, not to the past, but to the defendant‟s current condition. At an extension
proceeding, the questions are: Does the defendant continue to have a severe
mental disorder? Is the disorder in remission? Does the defendant continue to
represent a substantial danger of physical harm to others? (§ 2972, subd. (c).) A
defendant‟s condition a year earlier is relevant but not dispositive of these
questions. Therefore, contrary to the Court of Appeal‟s conclusion, the notice and
opportunity to be heard that defendant was given when he was initially committed
was no substitute for the hearing to evaluate whether his current condition justified
extension of his commitment.
9
Accordingly, we hold that, without a time waiver or good cause, section
2972 does not permit continued confinement when an extension trial does not
begin before the scheduled release date.3 “As we explained in Allen, supra, 42
Cal.4th 91, if an extension petition is not filed before the current commitment
ends, the defendant is no longer subject to constraint under the NGI or MDO
statutes. If a petition is filed before the expiration date, but too late to allow a
reasonable time for trial preparation,” the defendant may be entitled to release
pending trial on the extension petition. (Lara, at p. __ [pp. 22-23].)
The Attorney General admits there is no “express language” in section
2972 authorizing such confinement. However, he notes that the purpose of the
MDO Act is to protect the public by confining MDO‟s until the severe mental
disorders causing or aggravating their crimes are in remission and can be kept in
remission. (See § 2960.) Protection of the public is paramount, the Attorney
General argues, and justifies an MDO‟s continued confinement under the
circumstances posited by our question.
The Attorney General is only partially correct. Public protection is an
important purpose of the legislation. Another is protection of the patient‟s rights.
“Like other involuntary civil commitment schemes, the MDO Act‟s
comprehensive statutory scheme . . . represents a delicate balancing of
countervailing public and individual interests.” (Allen, supra, 42 Cal.4th 91, 98.)

3
As we noted in Lara, “[a] defendant released from commitment under the
NGI or MDO statutes may, however, be subject to confinement under the LPS
Act. A defendant who falls under the provisions of the LPS Act is held in a
therapeutic setting and is entitled to the more stringent timeframes and procedural
protections the LPS Act provides. This approach comports with the intent of the
Legislature, honors due process, and ensures both that the defendant will be
treated and the public protected. [Citations.]” (Lara, supra, __ Cal.4th at p. __ [p.
23].)
10


Section 2970(a) protects an MDO‟s interests by requiring, among other things,
that a commitment extension trial begin “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.” The Attorney General‟s
construction would render the waiver/good cause provisions surplusage, violating
the rule of construction that courts should, if possible, accord meaning to every
word and phrase in a statute to effectuate the Legislature‟s intent. (St. Marie v.
Riverside County Regional Park & Open-Space Dist. (2009) 46 Cal.4th 282, 289;
Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 991-992.)
The Attorney General notes that section 2972(a) “states unequivocally and
without qualification that „[t]he court shall conduct a hearing on the petition under
Section 2970 for continued treatment.‟ ” He argues that “[t]his directive evidences
that, even without good cause or a time waiver, this hearing must occur to ensure
the public is safe from MDO‟s.” The Attorney General reads too much into the
statute. To be sure, the law provides that a hearing be held. It also explicitly
requires that notice be timely given and the hearing begin before the scheduled
release date, unless the stated exceptions are met.
C.
Remedy
No relief is available in this case. The court retained jurisdiction to try
the petition. (See part II.A., ante.) The fact that defendant was not released did
not affect the validity of the eventual extension order. (Lara, supra, __ Cal.4th at
p. __ [p. 24].)
11

III. DISPOSITION
The judgment of the Court of Appeal affirming the MDO recommitment
order is affirmed.
CORRIGAN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

12





CONCURRING OPINION BY BAXTER, J.
Defendant Cobb was convicted of assault with a deadly weapon in 2001.
The present appeal is from a judgment extending Cobb‟s commitment under the
Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.). Although defense
counsel stated at each court appearance, beginning over a month before
defendant‟s prior commitment expired, that she was ready for trial on the petition
to extend the commitment, that trial did not actually begin until 23 days after
defendant‟s prior commitment had expired. The trial court denied defendant‟s
request for release that was made at the expiration of his prior commitment, and
defendant was forced to remain in custody pending trial. Defendant claims that he
was prejudiced by the delayed trial and by his continued confinement and that the
delay was without good cause.
In People v. Lara (Mar. 8, 2010, S155481) __ Cal.4th __, this court upheld
a judgment extending a commitment under Penal Code section 1026.5 where the
filing of the petition and the commencement of the trial were delayed, the delay
was without good cause, and the defendant similarly remained in custody pending
trial even after the expiration of his prior commitment. In my separate concurring
opinion, I justified that decision on the ground that Lara had failed to establish
actual prejudice from the delayed filing of the petition or start of the trial, or from
his continued confinement pending the trial. I found, in particular, that Lara had
been granted sufficient time to prepare for trial and that there was no indication in
1



the record—indeed, not even an allegation—that his continued confinement
pending trial had affected the fairness of the proceeding or undermined confidence
in the outcome. And I observed further that although a defendant involuntarily
confined beyond his maximum commitment date without good cause and without
statutory authorization “may be entitled to civil damages, . . . such confinement
could not invalidate a trial conducted under fair procedures and resulting in an
outcome that is reliable and unaffected by the error.” (People v. Lara, supra, __
Cal.4th at p. __ [at p. 5] (conc. opn. of Baxter, J.).)
The majority opinion deems Lara fully sufficient to dispose of this appeal.
Thus, the opinion does not address the question whether good cause was shown
“for continuing defendant‟s trial beyond his release date” (maj. opn., ante, at p. 8,
fn. 2) because it concludes that defendant was not prejudiced by the delayed trial
(even assuming the delay was unjustified) or by his continued confinement (even
assuming the confinement was unlawful). Although its finding that defendant was
not prejudiced is thus critical to its conclusion, the majority opinion‟s discussion
of prejudice nonetheless consists of exactly one sentence—“The fact that
defendant was not released did not affect the validity of the eventual extension
order”—and a citation to Lara. (Maj. opn., ante, at p. 11.) Although I agree with
the ultimate conclusion that defendant was not prejudiced, I disagree that this
analysis is sufficient to dispose of defendant‟s claim for relief.
Unlike Lara, defendant Cobb argues that the failure to grant his request for
release upon the expiration of his prior commitment, when combined with the
lateness of his trial, was unfair in specific and concrete ways and caused him
actual prejudice. Defense counsel informed the court on the day jury selection
began that it still had not received the curriculum vitae of the prosecution expert,
nor had it received defendant‟s medical records “even though the Court previously
ordered them to be sent down here from Atascadero so that Dr. Kania could use
2

them to evaluate [defendant].” In addition, defense counsel complained that “Dr.
Kania has not been able to evaluate [defendant] because we haven‟t gotten the
records.” When the court inquired whether the case was ready for trial in light of
these circumstances, defense counsel reminded the court that “with [defendant]
continuing to be in custody,” “the appropriate consequences are not that we delay
the trial yet again.”
A review of the entire record, however, does not support defendant‟s claim
that his continued confinement forced defense counsel to go to trial earlier that she
would have liked and without adequate time to prepare for trial. The district
attorney filed a petition to extend defendant‟s commitment on March 6, 2006—
nearly 12 weeks before the expiration of defendant‟s prior commitment and three
and one-half months before trial actually began. This was ample time to permit
preparation of the defense. Moreover, defense counsel announced that she was
ready for trial on April 24, 2006, over a month before the prior commitment
expired, and asked that the matter proceed “forthwith”—even though she had not
yet received these documents or conducted an evaluation of defendant by an
expert. Indeed, counsel continued to say she was ready for trial at each succeeding
court appearance, although the defense had not yet received those documents or
had defendant evaluated by an expert. Finally, the defense did ultimately receive
the hospital records and was granted an extensive opportunity to examine the
prosecution expert‟s qualifications outside the jury‟s presence. These
circumstances seriously undercut defendant‟s claim that he was forced to go to
trial unprepared because of his continued confinement.
In sum, the current record does not demonstrate that defendant‟s complaints
about the prosecution‟s expert, the prosecution‟s incompetence in providing
discovery, and various actions taken by the court and court staff are connected to
the delayed trial or to his continued confinement pending trial, whether in the state
3

hospital or in the county jail, nor has he shown that either the delay in the trial or
his continued confinement “interfered with his ability to prepare his defense or
otherwise undermined the reliability of the verdict. Hence, he suffered no
prejudice.” (People v. Lara, supra, __ Cal.4th at p. __ [at p. 3] (conc. opn. of
Baxter, J.).)
For these reasons, I concur in the judgment.
BAXTER, J.
4

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cobb
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 157 Cal.App.4th 393
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S159410
Date Filed: March 8, 2010
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: James A. Edwards*

__________________________________________________________________________________

Attorneys for Appellant:

Barbara A. Smith, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Steve Oetting, Sharon L. Rhodes, Bradley A. Weinreb and Robin
Derman, Deputy Attorneys General, for Plaintiff and Respondent.

*Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Barbara A. Smith
P.O. Box 25
Spring Valley, CA 91976
(619) 670-0675

Robin Derman
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2230


Petition for review after the Court of Appeal affirmed an order extending a commitment as a mentally disordered offender. The court limited review to the following issues: (1) Was defendant denied due process and a fair trial by delay in the prosecution of a petition for continued involuntary treatment and continued detention until 23 days after his release date? (2) Did defendant's pre-parole certification as a mentally disordered offender, which required him to accept treatment as a condition of parole, suffice to justify his continued detention pending trial on a petition for continued involuntary treatment?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 03/08/201048 Cal. 4th 243, 226 P.3d 340, 106 Cal. Rptr. 3d 230S159410Review - Criminal Appealopinion issued

PEOPLE v. SHADY (S173376)
PEOPLE v. KOPAY (S174154)


Parties
1The People (Plaintiff and Respondent)
Represented by Robin Helene Derman
Office of the Attorney General
110 West "A" Street, Suite 1100
San Diego, CA

2Cobb, Roy (Defendant and Appellant)
Atascadero State Hospital
P.O. Box 7001
Atascadero, CA 93422

Represented by Barbara A. Smith
Attorney at Law
P.O. Box 25
Spring Valley, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurJustice Marvin R. Baxter

Disposition
Mar 8 2010Opinion: Affirmed

Dockets
Dec 24 2007Received premature petition for review
  Roy Cobb, Jr., defendant and appellant by Barbara A. Smith, counsel
Dec 27 2007Record requested
 
Dec 31 2007Case start: Petition for review filed
  Roy Cobb, Jr., defendant and appellant by Barbara A. Smith, counsel
Jan 2 2008Received Court of Appeal record
  one doghouse
Feb 21 2008Time extended to grant or deny review
  to and including March 28, 2008, or the date upon which review is either granted or denied.
Mar 12 2008Petition for review granted; issues limited (criminal case)
  The petition for review is granted. The issues to be briefed and argued are limited to the following: (1) Was defendant denied due process and a fair trial by delay in the prosecution of a petition for continued involuntary treatment until 23 days after his release date? (2) Did defendant's pre-parole certification as a mentally disordered offender, who was required to accept treatment as a condition of parole, suffice to justify his continued detention pending trial on a the petition for continued involuntary treatment? Moreno, J., was absent and did not participate. Votes: George C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Apr 18 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel Barbara A. Smith is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
May 9 2008Request for extension of time filed
  by appellant requesting a 30-day extension to and including June 17, 2008, to file appellant's opening brief on the merits. by Barbara A. Smith, counsel
May 14 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including June 17, 2008.
Jun 11 2008Request for extension of time filed
  counsel for aplt. requests 30-day extension of time to July 17, 2008, to file the opening brief on the merits.
Jun 16 2008Extension of time granted
  On application of appellant 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 July 27, 2008.
Jul 28 2008Opening brief on the merits filed
  Roy Cobb, Jr., appellant by Barbara A. Smith, Counsel
Aug 4 2008Request for extension of time filed
  The People, respondents, request a 30-day extension to and including September 26, 2008, to file the reply brief on the merits, by Robin Derman, deputy attorney general.
Aug 8 2008Extension of time granted
  On application of the respondent 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 September 26, 2008. No further extension of time is contemplated.
Aug 20 2008Compensation awarded counsel
  Atty Smith
Sep 22 2008Request for extension of time filed
  Counsel for respondent requests extension of time to October 26, 2008, to file the answer brief on the merits.
Oct 6 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 26, 2008. No further extensions are contemplated.
Oct 22 2008Received:
  counsel for resp. oversized answer brief on the merits.
Oct 22 2008Application to file over-length brief filed
  counsel for resp. (People)
Oct 22 2008Request for judicial notice filed (granted case)
  counsel for resp. (People)
Oct 28 2008Answer brief on the merits filed
  counsel for resp. (People) w/permission
Nov 18 2008Reply brief filed (case fully briefed)
  counsel for aplt. (8.25(b))
Dec 23 2008Supplemental briefing ordered
  The court requests the parties to file supplemental briefs directed to the following questions. 1. Does Penal Code section 2972 authorize the continued confinement of a person previously found to be a Mentally Disordered Offender when the trial on the continuation petition has not commenced before the person was otherwise to have been released, the person has not waived time, and good cause for the delay has not been shown? 2. Do the facts in this case allow this court to reach question No. 1? 3. In the absence of a time waiver or good cause for a continuance, does a trial court have jurisdiction to continue an MDO continuation hearing beyond the expiration date of the defendant's current commitment? 4. If the court loses jurisdiction to hold a committee once the MDO commitment expires, is there any other authority for the court to order a committee held for the protection of the committee or others? The parties are directed to file simultaneous letter briefs on these questions in the San Francisco office of the Supreme Court on or before January 22, 2009. Simultaneous reply briefs may be filed in the San Francisco office of the Supreme Court on or before February 5, 2009. No extensions are contemplated. Werdegar, J., was absent and did not participate.
Jan 15 2009Supplemental brief filed
  counsel for resp.
Jan 21 2009Supplemental brief filed
  counsel for aplt.
Feb 5 2009Filed:
  counsel for resp. (Reply to Supplemental Brief)
Aug 11 2009Received:
  from counsel for aplt. updated information regarding status of appellant.
Oct 29 2009Case ordered on calendar
  to be argued Wednesday, December 9, 2009, at 9:00 a.m., in Los Angeles
Dec 9 2009Cause argued and submitted
 
Mar 5 2010Notice of forthcoming opinion posted
  To be filed on Monday, March 8, 2010.
Mar 8 2010Opinion filed: Judgment affirmed in full
  The judgment of the Court of Appeal affirming the MDO recommitment order is affirmed. Majority Opinion by Corrigan, J. -- joined by George, C. J., Kennard, Werdegar, Chin, and Moreno, JJ. Concurring Opinion by Baxter, J.

Briefs
Jul 28 2008Opening brief on the merits filed
 
Oct 28 2008Answer brief on the merits filed
 
Nov 18 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 28, 2010
Annotated by jdearmas

FACTS

In 2005, after serving his criminal sentence, Ray Cobb, Jr. was committed to a state hospital for treatment as a mentally disordered offender (MDO) under the Mentally Disordered Offender Act (Pen. Code, § 2960, http://law.justia.com/california/codes/pen/2960-2981.html). Cobb was to be released from state custody May 27, 2006 on parole. However, pursuant to § 2970, http://law.justia.com/california/codes/pen/2960-2981.html, the district attorney “may” petition the superior court for another year of treatment if the parolee’s mental disorder is not in remission or cannot be kept in remission without treatment. A trial to determine defendant’s mental state “shall” begin 30 calendar days before release date unless waived by defendant or “unless good cause is shown”. §2972, subd. (a) (section 2972(a). http://law.justia.com/california/codes/pen/2960-2981.html.

Presently, Cobb did not waive his trial date. On five different occasions, Cobb contested the delay in his trial. Additionally, the Court of Appeals found a determination of good cause for delay was not needed. Instead, the court found the extension did not violate due process because “there has already been a determination that the defendant is an MDO; at the trial, the prosecution simply must prove that the defendant is still an MDO.”

The trial was delayed until June 19, 2006. Thus, Cogg failed to receive a trial within 30 days of his parole and he was confined for an additional 23 days following his parole.

PROCEDURAL POSTURE:

On appeal from a finding that Mr. Cobb’s due process rights were not violated because he had already been certified as a mentally disordered offender and his subsequent trial was fair.

ISSUE:

1) Was defendant denied due process and a fair trial by delay in the prosecution of a petition for continued involuntary treatment and continued detention until 23 days after his release date?
2) Did defendant’s pre-parole certification as a mentally disordered offender, which required him to accept treatment as a condition of parole, suffice to justify his continued detention pending trial on a petition for continued involuntary treatment?

HOLDING:

(1) “At the end of his commitment, defendant was entitled, as a matter of due process, to release pending trial on the extension petition, unless good cause to continue the trial was shown or he waived time.”
(2) Previous certification as a mentally disordered offender is not sufficient to justify continued detention pending trial. Rather, current condition is the relevant mental state.

REASONING (Corrigan, J.):

(1) Before turning to the due process claim the Court determined the lower court retained jurisdiction over the case even though the trial was not held within 30 days pursuant to §2972 because the statutory guidelines were directory not mandatory. Relying on the recently decided People v. Laura (also released March 8, 2010),http://scocal.stanford.edu/opinion/people-v-lara-33831, the Court found the issues were substantially the same. In Lara, the procedures governing the commitment of a defendant found not guilty by reason of insanity stated an extension trial was to be held 30 days prior to a parole date. The Court found those rules are “directory” in nature, not mandatory.

Likewise, in the present case, the court found § 2972 governing MDO recommitment procedures is directory in nature. Unlike Laura, however, in this case there was no specific disclaimer that the statute “is not jurisdictional”. Nevertheless, the Court found that such a disclaimer was unnecessary to find the statute was not jurisdictional because time limits are “typically” directory. Further, it reasoned, like in Laura, the legislature intended the statute be directory since there were no consequences or punishments if the guidelines were not met. Finally, it found ruling the statute was mandatory would be contrary to the intent of § 2972 since it would require judges to release potentially dangerous criminals despite § 2972’s overriding purpose to keep potentially dangerous mentally ill patients from the public. Thus, the Court found upon violation of the guideline the Court retains jurisdiction.

(2) Turning to the due process claim, the Court found that an opportunity for a hearing should be given before the deprivation of liberty or property unless there is an extraordinary situation. In Lara, the Court established evaluation of the due process claim is case-by-case. Considerations that weigh are the two types of prejudice: “inability to prepare for trial” and “involuntary commitment.” However, the Court of Appeals failed to weigh those considerations here and instead found there was no due process violation because Cobb had notice and an opportunity to be heard covered by his initial hearing that determined he was an MDO. The Court disagreed and found that half of the six criteria for determining MDO certification relate to the present condition of the prisoner (e.g. is the disorder in remission?). Therefore, the initial MDO certification did not justify the extension of Cobb’s confinement.

(3) The Court reaffirmed Lara’s determination that without waiver or cause a prisoner cannot be confined past his release date if the trial is not timely. They affirmed in these cases, the patient’s rights outweigh the threat to public safety.

(4) However, the Court declined to determine whether good cause sufficient to defeat prejudice was in fact shown in this case and did not inquire further into Cobb’s relief. Instead, the Court found since jurisdiction was retained and the subsequent trial was fair, the extension order was valid.

REMEDY:

The courts jurisdiction was not lost and since there was a subsequent fair trial there is no remedy. Cobb is not subject to release.

CONCURRENCE (Baxter, J.):

In his concurrence, Judge Baxter states there must be additional analysis to support the majority’s conclusion that Cobb was not prejudiced beyond “the validity of the eventual extension order”. Judge Baxter agrees that the additional confinement beyond the statutory trial date has no remedy if the ensuing trial is fair. He suggests there might be civil penalties for this type of additional confinement. However, Judge Baxter takes issue with the majority’s lack of analysis of whether there was prejudice due to the inability to prepare a defense. He claims the record shows Cobb had sufficient time to prepare for trial because the defense counsel urged the trial to go forward several times. Hence, he concurs in the judgment with supplemental reasoning.

SEARCH TERMS (ISSUES): mental! disordered offender, insane!, 30 day!, crazy, extension, due process, retain! jurisdiction, extension order, confine!, prepare a defense, good cause & jurisdiction, commitment, prejudice, directory guideline, directory statute, mandatory guideline, mandatory statute, involuntary commitment, untimely trial, late trial, timely trial, deprivation of liberty, MDO, NGI, §2972

Annotation by Jacqueline de Armas