Filed 3/8/10 (this opn. precedes companion case, S159410, also filed 3/8/10)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S155481
v.
Ct.App. 6 H028895
DAVID ALAN LARA,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. C9803113
Defendant David Alan Lara was tried for false imprisonment of a child,
found not guilty by reason of insanity (NGI), and committed to a state hospital. A
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. His motion to dismiss the petition on due process grounds was denied,
and he was recommitted.
We hold: (1) The statutory deadline for filing an extension petition is
directory, not mandatory, so long as the petition is filed before the expiration of
the current commitment. (2) Defendant was not entitled to a dismissal of this
petition. (3) Upon motion, he would have been entitled, under due process, to
release pending trial, subject to possible proceedings under the Lanterman-Petris-
1
Short Act (LPS Act).1 (4) Defendant is not now eligible for release, however,
because the court retained jurisdiction to try him and he received a fair trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
A defendant found not guilty by reason of insanity is committed to a state
hospital or other treatment facility, unless sanity has been fully restored.2 If the
court orders such a commitment, it is required to set a maximum term,3 defined as
the longest prison term that could have been imposed on the defendant.4
Subdivision (a)(2) of section 1026.5 sets out the general rule that “[a] person may
not be kept in actual custody longer than the maximum term of commitment,
except as provided in subdivision (b).” (Italics added.)
Subdivision (a)(2) of section 1026.5 requires that the Board of Parole
Hearings (formerly Board of Prison Terms) calculate the maximum term for
defendants who committed a felony before July 1, 1977, and thus fell under the
indeterminate sentencing law. The subdivision goes on to state, “The time limits
of this section are not jurisdictional.” (Italics added.)
Subdivision (b) of section 1026.5 sets out the exclusive procedures under
which a commitment may be extended. A commitment may be extended only in
felony cases and only when the defendant5 “represents a substantial danger of
1
Welfare and Institutions Code section 5000 et seq.
2
Penal Code section 1026. Outpatient treatment is another alternative.
(Ibid.) Unless otherwise indicated, further statutory references will be to the Penal
Code.
3
Section 1026, subdivision (e)(2).
4
Section 1026.5, subdivision (a)(1). References to section 1026.5 will
sometimes be compressed by omitting the term “subdivision.”
5
Technically, once a defendant has been found not guilty by reason of
insanity, he is no longer a criminal defendant, but a person subject to civil
commitment. However, we will continue to use the word “defendant” to describe
such a person, rather than the terms “committee” or “committed person.”
2
physical harm to others” due to “a mental disease, defect, or disorder.”
(§ 1026.5(b)(1).) Various numbered paragraphs of subdivision (b) set out specific
time limits within which actions “shall” be taken. At least 180 days before the
current term ends the medical director “shall” provide the district attorney with an
opinion as to whether the defendant‟s commitment should be extended.
(§ 1026.5(b)(2).) The prosecution “may” then file for an extension of
commitment. (Ibid.) Unless good cause is shown, the petition “shall” be filed at
least 90 days before the commitment is to expire. (Ibid.) Unless good cause is
shown, a trial on the petition “shall” begin at least 30 days before the existing
commitment is due to end. (§ 1026.5(b)(4).) If the defendant is proven to
currently represent a substantial danger as described in the statute, the court shall
order a recommitment for an additional two years. (§ 1026.5(b)(8).) The
defendant “may not be kept in actual custody longer than two years unless another
extension of commitment is obtained in accordance with the provisions of this
subdivision.” (Ibid.)
In this case, the trial court found that defendant had falsely imprisoned a
child at knifepoint (§§ 236, 237), but was not guilty by reason of insanity. The
court set the maximum term at six years, based on the aggravated term of three
years doubled because defendant had sustained a prior strike conviction. Based on
that commitment defendant was due for release on October 15, 2004.
The medical director gave timely notice to the district attorney that
defendant‟s commitment should be extended. However, the district attorney took
no action until September 21, filing a petition for extension less than a month
before defendant‟s scheduled release date. On September 29, defense counsel
orally moved to dismiss the petition for failure to comply with the statutory 90-day
filing deadline. “[T]o preserve the record,” counsel asked for a trial date before
October 15, but expressed concern that she could not be prepared by that time. “I
3
have tried to reach Mr. Lara, and I have not even been able to speak to him.” The
prosecutor opposed the motion, but offered no explanation for the delay. The
court took the matter under submission. On October 7, defendant moved in
writing to dismiss for failure to comply with the statutory time limits, depriving
him of due process.
At an October 12, 2004, hearing, defense counsel explained why she could
not prepare for trial by October 15. Although she had received the extension
petition on September 29, she was unable to contact defendant at the hospital until
October 1, and could not meet with him until October 7. The return on her
subpoena duces tecum for defendant‟s records was set for October 15. She had to
review the records before deciding whether to seek an independent psychiatric
evaluation. The prosecutor conceded that the delay in filing the extension petition
was not excused by good cause,6 and did not argue that the defense could
reasonably be ready for trial before defendant‟s term expired. The trial court
denied the dismissal motion, but made no finding whether defense counsel had
adequate time to prepare for trial before defendant‟s scheduled release date.
On October 18, defendant filed for writs of habeas corpus, mandate and/or
prohibition in the Court of Appeal. The petitions were denied on December 6,7
and this court denied review on February 16, 2005.8
6
The prosecutor informed the court that he had belatedly found the petition
in a pile of other reports. He admitted this explanation did not amount to a
showing of good cause.
7
In re Lara on Habeas Corpus (Dec. 6, 2004, S129957 H028038); Lara v.
Superior Court (Dec. 6, 2004, S129957 H028039).
8
In re Lara on Habeas Corpus, S129957. Justices Kennard and Moreno
were of the opinion that the petition should have been granted.
4
On May 13, 2005, almost seven months after defendant‟s original
commitment ended, a jury found that he represented a substantial danger of
physical harm to others. The trial court extended his commitment for two years,
running from the date his term originally was to expire.
On July 17, 2007, the Court of Appeal reversed, directing that the trial court
grant defendant‟s motion to dismiss because he had been denied due process.
We reverse the judgment of the Court of Appeal. Defendant was not
entitled to dismissal of the extension petition on due process grounds. Had he so
moved, he would have been entitled to release pending trial on the petition,
subject to possible LPS Act proceedings. However, no relief is available at this
stage. The court retained jurisdiction to try the petition. The fact that defendant
was not released did not affect the validity of the extension order.9
9
Moreover, since the proceeding challenged here, defendant has twice been
recommitted. In the most recent proceeding of which we are advised, he filed a
written waiver and acceptance of the extension.
In an order filed on June 28, 2007, defendant‟s commitment was extended a
second time, to October 15, 2008. In affirming the 2007 extension order, the
Court of Appeal held: (1) Defendant continued to represent a substantial danger
of physical harm to others because of his paranoid schizophrenia, the likelihood he
would discontinue his medications if released, and his history of attempts to
kidnap children. (2) Defendant‟s jurisdictional challenge to the 2007 extension
order, based on the ground that he was denied due process in the extension
proceeding under review here, could not be resolved until we acted in this case.
(People v. Lara (Aug. 27, 2008, H032069).) This court denied review in that case.
(People v. Lara (Dec. 17, 2008, S167300).)
In an order filed on November 7, 2008, defendant‟s commitment was
extended a third time, to October 15, 2010. (People v. Lara (Super. Ct. Santa
Clara County, 2008, No. C9803113).) Defendant filed a written waiver and
acceptance of this extension.
5
II. DISCUSSION
A.
The Statutory Deadlines Are Directory
Defendant contends that the statutory deadlines were mandatory, and
because they were not met, the court lost jurisdiction to try the case. This
argument fails.
People v. Williams (1999) 77 Cal.App.4th 436 (Williams) is one of many
cases that have grappled with the question of whether a failure to meet a statutory
deadline deprives a court of jurisdiction. It explained that the concept of
jurisdiction can be used in somewhat differing ways.
“When courts use the phrase „lack of jurisdiction,‟ they are usually
referring to one of two different concepts, although, as one court has observed, the
distinction between them is „hazy.‟ (People v. Mendez (1991) 234 Cal.App.3d
1773, 1781.)” (People v. Williams, supra, 77 Cal.App.4th 436, 447.) A lack of
jurisdiction in its fundamental or strict sense results in “„an entire absence of
power to hear or determine the case, an absence of authority over the subject
matter or the parties.‟ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280,
288.) On the other hand, a court may have jurisdiction in the strict sense but
nevertheless lack „ “jurisdiction” (or power) to act except in a particular manner,
or to give certain kinds of relief, or to act without the occurrence of certain
procedural prerequisites.‟ (Ibid.) When a court fails to conduct itself in the
manner prescribed, it is said to have acted in excess of jurisdiction.” (Ibid.; see
generally, 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, §§ 1, 285, pp. 575-
576, 891-892.)
The distinction is important because the remedies are different.
“[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent.
Rather, an act beyond a court‟s jurisdiction in the fundamental sense is null and
void” ab initio. (Williams, supra, 77 Cal.App.4th at p. 447.) “Therefore, a claim
6
based on a lack of [ ] fundamental jurisdiction[ ] may be raised for the first time on
appeal. (People v. Chadd (1981) 28 Cal.3d 739, 757.) „In contrast, an act in
excess of jurisdiction is valid until set aside, and parties may be precluded from
setting it aside by such things as waiver, estoppel, or the passage of time.
[Citations.]‟ (People v. Ruiz (1990) 217 Cal.App.3d [574], 584; In re Andres G.
(1998) 64 Cal.App.4th 476, 482.)” (Ibid.; see, e.g., People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661.)
Whether the failure to follow a statute makes subsequent action void or
merely voidable “„has been characterized as a question of whether the statute
should be accorded “mandatory” or “directory” effect. If the failure is determined
to have an invalidating effect, the statute is said to be mandatory; if the failure is
determined not to invalidate subsequent action, the statute is said to be directory.‟
(People v. McGee (1977) 19 Cal.3d 948, 958.)” (City of Santa Monica v.
Gonzalez (2008) 43 Cal.4th 905, 923 (City of Santa Monica.)10
Whether a particular statute is intended to impose a mandatory duty is a
question of interpretation for the courts. (City of Santa Monica, supra, 43 Cal.4th
at p. 924.) “Unless the Legislature clearly expresses a contrary intent, time limits
are typically deemed directory.” (Allen, supra, 42 Cal.4th at p. 102.) Here, the
Legislature made its intent quite clear. Section 1026.5(a)(2) expressly provides
that “the time limits of this section are not jurisdictional.” (Italics added.)
Defendant seeks to circumvent that clear statement by relying on the use of the
10
We observed in People v. Allen (2007) 42 Cal.4th 91 (Allen) that the
violation of even a mandatory provision does not necessarily mean a court loses
fundamental jurisdiction. (Id. at p. 101, fn. 5.) We need not consider the nature of
those exceptions here, given our conclusion that the statutory deadlines were not
mandatory. (Ante, p. 6.)
7
term “shall” in various paragraphs of subdivision (b).11 Defendant argues that,
although the Legislature specifically said the time limits set out in “this section are
not jurisdictional,”12 it really intended to say that the time limits set out “in
subdivision (a)” are not jurisdictional. Defendant‟s construction ignores the plain
meaning of the statutory language, is at odds with the explicit manner in which
section 1026.5 is drafted, and runs counter to accepted canons of statutory
construction.
The Penal Code contains many thousands of numbered sections. Section 7,
paragraph 20 reads: “The word „section,‟ whenever hereinafter employed, refers
to a section of this code, unless some other code or statute is expressly
mentioned.”13 Defendant‟s construction ignores this express definition of the term
“section.” It is also inconsistent with the internal structure of section 1026.5 and
the way the Legislature precisely used the term “section” throughout the provision.
The very first sentence of the section provides that no one may be kept in actual
custody beyond the maximum term of commitment, “except as provided in this
section.” (§ 1026.5(a)(1), italics added.) The next sentence defines the meaning
of “maximum term of commitment” for “purposes of this section.” (Ibid., italics
added.) The exception referred to is contained, not in subdivision (a), but in
11
“Shall” is used in the provisions setting the time limits for (1) the medical
director to submit an opinion to the district attorney concerning extension of the
defendant‟s commitment (§ 1026.5(b)(2)); (2) the district attorney to file an
extension petition (ibid.); and (3) the trial to begin (§ 1026.5(b)(4).
It is also used in subdivision (b)(10), which provides that extension
proceedings “shall be conducted in accordance with the provisions of this
subdivision.” (Italics added.)
12
Italics added.
13
Section 9603 of the Government Code provides: “The general rules for the
construction of statutes are contained in the preliminary provisions of the different
codes.”
8
subdivision (b). The phrase “maximum term of commitment,” while originally
defined in subdivision (a), is used a number of times throughout the entire section.
Clearly, the Legislature intended to use the term “section” to refer to the whole of
section 1026.5.
As the court noted in In re Johns (1981) 119 Cal.App.3d 577 (Johns):
“Throughout section 1026.5, the Legislature was precise in using the terms
„paragraph‟ and „subdivision‟ to identify the various divisions of the lengthy and
complex section. Indeed, in the sentence preceding the one under scrutiny, the
Legislature singled out „paragraph (1)‟ and „subdivision (b)‟ for coverage and
exclusion.” (Id. at p. 580; accord, People v. Dougherty (1983) 143 Cal.App.3d
245, 247 (Dougherty); see People v. Mitchell (2005) 127 Cal.App.4th 936, 944;
People v. Fernandez (1999) 70 Cal.App.4th 117, 129-130 (Fernandez) [mentally
disordered offender statute‟s 180-day deadline for medical director to submit
written evaluation to district attorney not mandatory].) We conclude that the
Legislature‟s statement that “the time limits of this section are not jurisdictional”14
refers to all the time limits set out in Penal Code section 1026.5, not only to the
limits referred to in subdivision (a).
With regard to defendant‟s reliance on the use of the word “shall,” it should
not be assumed that every statute that uses that term is mandatory. (Nunn v. State
of California (1984) 35 Cal.3d 616, 625; Morris v. County of Marin (1977) 18
Cal.3d 901, 910-911, fn. 6.) “Neither the word „may,‟ nor the word „shall,‟ is
dispositive.” (Allen, supra, 42 Cal.4th at p. 102.) The context of the language, as
well as other indicia of legislative intent, must be considered. (DuBois v.
Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.) The preceding analysis
14
Italics added.
9
demonstrates that the Legislature‟s clear intent was to use the term “section” to
refer to the entirety of section 1026.5.
Yet another factor supports our conclusion as to legislative intent. The
Legislature‟s failure to include a penalty or consequence for noncompliance with
the statutory procedure also indicates that the requirement is directory rather than
mandatory. (California Correctional Peace Officers Assn. v. State Personnel Bd.
(1995) 10 Cal.4th 1133, 1145 (Correctional Peace Officers); Edwards v. Steele
(1979) 25 Cal.3d 406, 410 (Edwards).) Section 1026.5 does not say that a trial is
precluded if the statutory time limits are not met. Indeed, the statute itself
provides that the time limits are not binding if good cause is shown for not having
met them,15 and also provides that a defendant may waive time to allow
proceedings beyond the timeframes set out.16 It is black letter law that
fundamental jurisdiction may not be conferred by waiver, estoppel, or consent.
(Rest.2d Judgments, § 12, com. b, p. 117; 2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 13, p. 585.) Thus, the interpretation defendant urges would render
the good cause and time waiver provisions nullities. Not only are statutes not
ordinarily interpreted in a fashion that renders part of them void,17 the
Legislature‟s provision for good cause findings and time waivers is an additional
demonstration of its intent that the limits were not intended as mandatory.
15
“The petition shall be filed no later than 90 days before the expiration of
the original commitment unless good cause is shown.” (§ 1026.5(b)(2); italics
added.)
16
“The trial shall commence no later than 30 calendar days prior to the time
the person would otherwise have been released, unless that time is waived by the
person or unless good cause is shown.” (§ 1026.5(b)(4), italics added.)
17
“[I]n reviewing the text of a statute, we must follow the fundamental rule of
statutory construction that requires every part of a statute be presumed to have
some effect and not be treated as meaningless unless absolutely necessary.”
(People v. Arias (2008) 45 Cal.4th 169, 180.)
10
Finally, we must ask whether the purposes of the statute would be
promoted or defeated if the filing deadline were construed as mandatory. (See
Correctional Peace Officers, supra, 10 Cal.4th at p. 1145; Edwards, supra, 25
Cal.3d at p. 410.) 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 Offender Act].) 18
Defendant‟s reliance on Allen, supra, 42 Cal.4th 91, is misplaced. In Allen,
the district attorney filed a petition to extend the commitment of a mentally
disordered offender (MDO) after the defendant’s previous commitment had ended.
(Id. at p. 95.) Section 2972, subdivision (e), part of the Mentally Disordered
Offender Act (MDO Act) permits an extension petition to be filed before the
current commitment ends. We concluded that this statutory requirement of filing
before the expiration of the commitment is mandatory. (Allen, at p. 104.)
Accordingly, we affirmed the judgment of the Court of Appeal, which had
reversed the trial court‟s commitment order with directions that the extension
18
The primary purpose of confining a person under the authority of section
1026 is public protection. (Department of Mental Hygiene v. Hawley (1963) 59
Cal.2d 247, 255.)
11
petition be dismissed. (Id. at pp. 96, 109.) Unlike Allen, the extension petition
here was filed before defendant‟s current commitment ended.19
B.
Due Process
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
19
Defendant‟s reliance on People v. Pacini (1981) 120 Cal.App.3d 877
(Pacini) is also misplaced. Pacini involved a previous version of section
1026.5(b)(2) that did not provide for excusal of the filing deadline upon a finding
of good cause. (Pacini, at p. 888, fn. 6; see People v. McCune (1995) 37
Cal.App.4th 686, 691 (McCune).) Further, in that case, the district attorney filed
an extension petition more than five weeks after Pacini‟s “maximum commitment
date” had passed. (Pacini, at pp. 881-882.) Because it involved a case in which
the commitment term had expired, the Pacini court noted that it was not
determining “whether or under what conditions a violation of the „time limits‟ of
(b)(2) is jurisdictional.” (Id. at p. 891.)
In McCune, supra, 37 Cal.App.4th 686, a different panel of the same Court
of Appeal that decided Pacini explained: “In Pacini, this court concluded that a
failure to comply with the section 1026.5(b)(2) general requirement that an
extension petition must be filed before the existing commitment period ends
deprived the trial court of jurisdiction to extend the commitment. (120 Cal.App.3d
at p. 891.) Because of this conclusion, it was unnecessary to consider whether the
specific time limits in section 1026.5(b)(2) and (4)—respectively, the 90-day
provision for petition filing and the 30-day provision for trial—were jurisdictional
as well. (120 Cal.App.3d at p. 891.)” (McCune, at pp. 690-691.) The conclusion
that section 1026.5 requires filing of an extension petition before expiration of the
existing term is consistent with our recent holding in Allen, supra, 42 Cal.4th 91,
that a petition to extend the civil commitment of an MDO must be filed before the
existing commitment expires. (Id. at p. 104.)
It is true that the Pacini court adopted the argument that the use of “this
section” in section 1026.5(a)(1) was intended to refer to that subdivision only.
(People v. Pacini, supra, 120 Cal.App.3d. at p. 890.) That statement, however,
was dicta and, for the reasons set out above, is disapproved.
12
event. (Boddie v. Connecticut (1971) 401 U.S. 371, 379; see In re Roger S. (1977)
19 Cal.3d 921, 937.)
Here, without good cause, the petition to extend defendant‟s NGI
commitment was filed so late he did not have adequate time to prepare for trial
before his term ended. (See ante, at p. 4.) Therefore, as we explain in part II.C.,
post, due process would have required that he be released pending trial, subject to
LPS Act proceedings. An established line of California cases supports this
analysis. We note at the outset, however, that these cases incorrectly identify the
remedy for such due process denials. Insofar as they conclude that the extension
orders should have been dismissed, they are disapproved.20 We discuss the
fashioning of a remedy in greater detail in part II.C., post.
In People v. Hill (1982) 134 Cal.App.3d 1055 (Hill), an NGI extension
petition was filed 10 days before the maximum commitment date. The public
defender was appointed only five court days before the existing commitment was
to expire. Counsel had not yet met the defendant, his medical reports were
unavailable, and independent experts had yet to be appointed. Undeterred by these
realities, the trial court inquired why counsel could not proceed immediately and
complete the trial before the current commitment ended. It did, however, grant a
two-day continuance. Two days later counsel again argued that she could not
possibly be prepared for trial in the next three days. The trial court expressed
displeasure, noting that any number of lawyers had been able to begin trial on the
very day of their appointment. Trial was ultimately held more than a year after the
defendant‟s commitment had expired. (Id. at pp. 1057-1059.)
20
See post, page 24, footnote 26.
13
The Court of Appeal observed that the statutory time limits served the clear
legislative objective to allow the defense “not less than 60 days to prepare for trial,
and 30 days within which to complete such trial, without confining him beyond
the maximum period permissible under his initial commitment. [Citations.]”
(Hill, supra, 134 Cal.App.3d at p. 1057.) It responded to the trial court‟s
observation that some counsel are able to proceed on the very day of their
appointment. “While there may be attorneys extant who are so blessed with
uncommitted time and the intellectual quickness to remain steadily mounted
during such an instance of galloping justice, we cannot fault [Hill‟s counsel] for
her acknowledged inability to do so.” (Id. at p. 1058.) Finally, the court
concluded that “it was realistically quite impossible in the brief time that remained
to bring this matter to even the most hurried conclusion with any semblance of due
process.” (Id. at p. 1060.) The order extending the defendant‟s commitment was
reversed. (Id. at p. 1061.)
Similarly, in People v. Hawkins (1983) 139 Cal.App.3d 984, an NGI
extension petition was filed 45 days beyond the 90-day cutoff date, and counsel
was not appointed until two days before trial was required by statute to begin. (Id.
at pp. 986-988.) The Court of Appeal affirmed the trial court‟s dismissal of the
petition as a denial of due process. (Id. at p. 988.)
In Dougherty, supra, 143 Cal.App.3d 245, the maximum NGI commitment
date was November 8, 1981. The extension petition was not filed until October
14, and trial was set for November 2. A defense motion for dismissal made on the
trial date was denied. (Id. at pp. 246-247.) Reversing the order extending the
commitment, the Court of Appeal applied the due process analysis set out in
Johns, supra, 119 Cal.App.3d 577. “ „Except where there has been an extended
delay . . . prejudice will not be presumed from delay. Where prejudice is not
presumed, it is incumbent upon the defendant to show circumstances of actual
14
prejudice.‟ (119 Cal.App.3d at p. 581; see Scherling v. Superior Court (1978) 22
Cal.3d 493, 505; Crockett v. Superior Court (1975) 14 Cal.3d 433, 440-441.)”
(Dougherty, supra, 143 Cal.App.3d at p. 248.)
The Dougherty court went on to consider the question of prejudice. As the
result of the late filing, the defense had only 20 days, rather than 60, to prepare
before the commitment term expired. “At the outset of trial, counsel informed the
court that there had been insufficient time to secure the appointment of medical
experts (§ 1027). During trial counsel interrupted his cross-examination of the
state hospital psychologist to complain to the court, outside the presence of the
jury, that he was unable to cross-examine the witness effectively because there had
been insufficient time to subpoena appellant‟s psychiatric file in advance of trial.
Counsel stated further that he was incapable of effectively cross-examining the
psychologist without professional assistance. The record thus supports appellant‟s
contention that the delay had the prejudicial effect of depriving counsel of an
adequate time to prepare. (Cf. In re Newbern (1960) 53 Cal.2d 786, 790-791;
People v. Hill, supra, 134 Cal.App.3d at pp. 1059-1060; see People v. Hawkins,
supra, 139 Cal.App.3d at p. 987.) This conclusion requires that we consider the
reasons for the delay. (Cf. Scherling v. Superior Court, supra, 22 Cal.3d at p. 506;
In re Johns, supra, 119 Cal.App.3d at p. 581.)” (Dougherty, supra, 143
Cal.App.3d at p. 248, fn. omitted.)
In Dougherty, the medical director‟s negligence resulted in a late
submission of his extension recommendation. (Dougherty, supra, 143 Cal.App.3d
at p. 249.) The Dougherty court weighed that reason against the resulting
prejudice. “As the Supreme Court stated in Scherling v. Superior Court, supra,
„[t]he ultimate inquiry in determining a claim based upon due process is whether
the defendant will be denied a fair trial. Thus, although delay may have been
caused only by the negligence of the government, the prejudice suffered by a
15
defendant may be sufficient when balanced against the reasons for the delay to
constitute a denial of due process.‟ (22 Cal.3d at p. 507.) While here, unlike
Scherling, the effect of the delay was not to deprive appellant of his right to
speedy trial, but rather to force him to trial in less than the minimum time provided
by statute to prepare a defense, the due process analysis is the same. (See In re
Newbern, supra, 53 Cal.2d at p. 791; People v. Hawkins, supra, 139 Cal.App.3d at
p. 987; People v. Hill, supra, 134 Cal.App.3d at p. 1060.) Because the
justification for the delay is outweighed by its prejudicial effect, the order
extending appellant‟s commitment was entered in violation of his right to due
process.” (Dougherty, supra, 143 Cal.App.3d at p. 249.)
These principles have recently been applied in People v. Tatum (2008) 161
Cal.App.4th 41 (Tatum). Tatum had been committed as an MDO with a maximum
commitment date of March 12, 2007.21 The district attorney did not file an
extension petition until February 7. (Tatum, at p. 48.) As of March 2, ten days
before the commitment was to end, the defense had not received the hospital
records. The court set trial for the last day of Tatum‟s current commitment. On
that date, defense counsel told the court she still had received no hospital records
and could not adequately represent the defendant. She argued that any further
unauthorized confinement would deprive Tatum of due process. (Id. at pp. 49-51.)
The court dismissed the petition and the Court of Appeal affirmed. (Id. at pp. 46-
47.)
21
Like the NGI statutes, the MDO Act sets a 180-day deadline for the
medical director to notify the district attorney whether the defendant‟s term should
be extended (§ 2970), and a 30-day deadline for beginning trial (§ 2972, subd. (a)).
Unlike the NGI statutes, the MDO Act does not set a deadline for filing an
extension petition. (Tatum, supra, 161 Cal.App.4th at p. 56.) Also, unlike section
1026, section 2970 does not expressly state whether its time limits are
jurisdictional. (Fernandez, supra, 70 Cal.App.4th at p. 130.)
16
The Tatum opinion ably marshals the approach to be employed in
determining whether a due process violation has occurred. As we have explained
in part II.A., ante, a failure to comply with one of the statutory time limits does not
mandate a dismissal. Instead, the due process question must be evaluated on a
case-by-case basis. “Consistent with the large body of case law that has developed
over the preceding decades, a trial court faced with the question of whether to
dismiss a late-filed MDO petition must evaluate the circumstances of the delay
and the implications of continuing with trial under a due process rubric.” (Tatum,
supra, 161 Cal.App.4th at p. 60.) “[D]ue process in this context requires a flexible
balancing of „any prejudicial effect of the delay against the justification for the
delay.‟ (Fernandez, supra, 70 Cal.App.4th at p. 131 [„If the defendant fails to
demonstrate prejudice, the court need not consider the reasons for the delay.‟]. . .”
(Id., at p. 61.)
The late filing of an extension petition potentially gives rise to two types of
prejudice: (1) inability to prepare for trial in the remaining time; or (2)
involuntary commitment beyond the release date. (Tatum, supra, 161 Cal.App.4th
at p. 61.) When a petition is filed just before the release date, “the offender is
often forced to choose between these two types of prejudice. Either the offender
must curtail otherwise necessary trial preparation to ensure a „preexpiration trial‟
(Zachary [v. Superior Court (1997) 57 Cal.App.4th 1026,] 1036) or agree to a
continuance of the trial date beyond the release date, thus suffering unauthorized
postrelease confinement. . . . [W]henever the state‟s unexcused late filing of an
MDO petition forces an offender to „choose‟ between these two types of prejudice,
some prejudice is necessarily established.” (Tatum, supra, 161 Cal.App.4th at p.
61.)
The degree of prejudice will depend on a variety of factors, including how
late the filing is, the amount of time reasonably required to prepare for trial and
17
mount a defense, and whether action by the court or defense counsel contributed to
the delay. (See Tatum, supra, 161 Cal.App.4th at pp. 61-62.) It should be noted
that both the NGI and MDO recommitment statutes provide for a defense waiver
of the 30-day time limit for beginning trial. (§§ 1026.5(b)(4), 2972, subd. (a).)
There may certainly be circumstances in which a waiver of time for trial is
determined by counsel to be in the client‟s best interest. So long as the decision to
waive time is not forced by unexcused prosecutorial delays, due process would not
ordinarily be implicated.
The Attorney General argues that defendant suffered no prejudice. As we
shall explain, the cases on which he relies do not assist him, but they do show how
different factual scenarios may yield differing results. First, however, it is useful
to distinguish between the two senses in which the term “prejudice” is used in
these cases. Defendant did suffer prejudice in one sense. The prosecution‟s
unexcused late filing forced him to choose between going to trial unprepared or
being held without trial beyond the release date. As explained previously, the
remedy for this prejudice would have been release pending trial, subject to LPS
Act proceedings. However, defendant did not suffer prejudice in the primary
sense of the term. The fairness of his eventual trial was not affected by the due
process violation. (See People v. Woodward (1992) 4 Cal.4th 376, 387
(Woodward).)22 He was ultimately tried by jury, represented by competent and
22
In Woodward, supra, 4 Cal.4th 376, this court ruled that the trial court‟s
failure to give the defendant advance notice of its intention to close the courtroom
temporarily was a violation of procedural due process, but harmless beyond a
reasonable doubt because there was nothing to suggest that the lack of notice
prejudiced the defendant in any way, or that proper notice would have influenced
or affected the course of the trial.
18
prepared counsel, and accorded all applicable trial safeguards. With this
distinction in mind we turn to the cases.
In Johns, supra, 119 Cal.App.3d 577, an NGI extension petition was filed
17 days late. (Id. at p. 579.) Had trial begun the full 30 days before the
commitment expired,23 the defense would not have had the full 60 days for
preparation.24 Instead, the trial began beyond the 30-day limit. It was completed
before the commitment expired, and the commitment was extended. In reviewing
Johns‟s due process claim, the Court of Appeal noted that prejudice would not be
presumed because the filing delay was not lengthy. (Johns, at p. 581.) Thus,
defendant bore the burden to establish actual prejudice. He failed to do so. He
was given the full 60 days to prepare, and did not cite any prejudice attributable to
his trial beginning less than 30 days before his original commitment ended. (Ibid.)
Johns is distinguishable from our case. Here, the showing of prejudice is
substantially stronger. Because a showing of prejudice was made, inquiry into the
reasons for the delay was required. There was no showing of good cause. (See
ante, at p. 4.) Finally, unlike Johns, defendant here was subjected to nearly seven
months of additional confinement after his release date, but before the adjudication
to which he was entitled. (See ante, at p. 4.)
Fernandez, supra, 70 Cal.App.4th 117, is also distinguishable. It involved
an MDO extension. The medical director‟s 180-day evaluation letter25 was not
sent to the district attorney until 50 days before Fernandez‟s scheduled release
date. (Fernandez, at p. 127.) The prosecutor promptly filed an extension petition,
but the trial court found, and the Court of Appeal agreed, that the medical
23
Section 1026.5(b)(4).
24
Section 1026.5(b)(2).
25
See ante, page 16, footnote 21.
19
director‟s delay was unsupported by good cause. (Id. at pp. 127-128.) Fernandez
had only 29 days to prepare for trial (id. at p. 132), but he failed to show prejudice.
Counsel never argued she was unprepared or unable to proceed. The defendant‟s
continuances were granted before trial and adequate time was afforded to submit
briefing. (Ibid.) As the court noted, a showing of actual prejudice “ „must be
supported by particular facts and not . . . by bare conclusionary statements.‟
(Crockett v. Superior Court (1975) 14 Cal.3d 433, 442.)” (Id. at pp. 132-133.)
Fernandez was not prejudiced. He “had adequate time to prepare and present his
defense . . . .” (Id. at p. 134.)
Fernandez was held for 12 days beyond his release date before his trial was
completed and the recommitment order issued. The Court of Appeal rejected his
claim that this delay constituted a denial of due process. The record revealed the
trial date was extended beyond Fernandez‟s scheduled release date because his
own counsel requested continuances and not because of the prosecutor‟s failure to
comply with any statutory deadlines. (Fernandez, supra, 70 Cal.App.4th at p.
133.) Once the prosecutor received the medical director‟s letter, he issued
expedited subpoenas to assist the defense in obtaining necessary documents. The
original trial date was set before the commitment expired and the prosecutor was
ready to begin on that date. The defense reported that the district attorney had
made every effort to resolve the case expeditiously. (Id. at p. 134.) “Ultimately,
the trial on the merits was concluded in one day. Except for the continuance
requested by defense counsel, the trial would have been completed before
defendant‟s release date. Although the trial court was within its discretion to grant
the continuance requested by defense counsel, defendant may not now claim
prejudice from this same delay requested on his behalf. To allow otherwise would
allow defendants to request numerous continuances for good cause, pushing the
trial past the release date, and then claim prejudice from the continued trial.” (Id.
20
at p. 133.) In making its evaluation, the trial court properly considered the timing
of the medical director‟s letter, diligent efforts made by the prosecution in filing
the petition and in assisting the defense to acquire discovery, reasonable
preparation time for both parties, the continuances requested by the defense and
the circumstances attendant to those requests, and the ultimate date of the
proceedings. Thus, Fernandez does not assist the Attorney General. It stands for
the proposition that the complained-of prejudice must be attributable to the
People‟s failure, not to legitimate requests made by the defense. Here it was the
prosecution‟s tardiness that necessitated the delay.
In Williams, supra, 77 Cal.App.4th 436, the district attorney filed an MDO
extension petition only 18 days before Williams‟s scheduled release date, and
Williams was not brought before the court until two days before that date. Trial
began two days after the release date and took two days to complete. (Id. at pp.
445-446.) Williams was represented by counsel, who did not object when the trial
date was set. (Id. at pp. 440, 461-462.) Having determined that the failure to
comply with the 30-day limit for beginning trial did not vitiate fundamental
jurisdiction (id. at pp. 447-451), the Court of Appeal turned to whether Williams‟s
failure to object to the trial date waived any claim based on noncompliance with
section 2972, subdivision (a)‟s 30-day time limit. The court analogized to failure
to object to noncompliance with section 1382, which provides that a criminal
defendant must be tried within 60 days of the filing of an indictment or
information, absent a finding of good cause, a time waiver, or consent. Under the
rule of People v. Wilson (1963) 60 Cal.2d 139, consent to the setting of trial
beyond the statutory limit will be presumed when a defendant does not object to
the date set and does not move to dismiss the action before trial begins. (Id. at p.
146.) As the Williams court observed: “Consequently, a violation of section 1382
may not be raised for the first time either on appeal or in a posttrial petition for
21
writ of habeas corpus if the defendant, who was represented by counsel, failed to
object to the trial date and make a timely motion to dismiss after the applicable
period expired.” (Williams, supra, 77 Cal.App.4th at p. 460.) The court held:
“We find no meaningful basis to distinguish an alleged violation of section
2972(a) from a violation of section 1382. The deadlines prescribed in both
statutes relate to the time within which trial must be commenced. Both statutes
provide that the period may be waived or excused for good cause. And when a
violation of either statute has allegedly occurred, a pretrial objection and motion to
dismiss permits the trial court to make a timely determination, which in turn may
obviate the need for a trial.” (Ibid.)
Again our case is distinguishable. Here, the defense repeatedly objected to
the setting of the trial date, made its case for the demonstration of prejudice, and
even sought writ review. (See ante, at pp. 3-4.)
C.
Remedy
As we have explained, a failure to comply with section 1026.5‟s time
limitations does not deprive a court of fundamental jurisdiction, so long as an
extension petition is filed before the end of the defendant‟s current term. (See part
II.A., ante.) Therefore, the question arises as to what course of action a court
should take when such a failure occurs. As our discussion of Johns, supra, 119
Cal.App.3d 577, and Fernandez, supra, 70 Cal.App.4th 117, makes clear, no
remedial action need be taken if the defendant suffers no prejudice from the delay.
Likewise, if the defendant does not object, waives time, or consents to a trial date
beyond the expiration of the commitment, the defendant may remain confined and
the court may go forward with trial on the petition. (Williams, supra, 77
Cal.App.4th at p. 460.)
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
22
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, a
defendant who so moves should be released pending trial on the extension
petition. Otherwise, the defendant would be faced with the equally unacceptable
choices of going to trial unprepared or being held without trial beyond the release
date.
If prosecutorial delay causes prejudice to the defendant that does not
deprive the defendant of a reasonable time to prepare for trial, the court must
consider whether and what remedial action is required. First, the court must
balance the explanation for the delay against the prejudice resulting from it.
(Tatum, supra, 161 Cal.App.4th at pp. 60-61; Dougherty, supra, 143 Cal.App.3d
at p. 249.) If the justification for the delay outweighs its prejudicial effect, the
defendant may remain confined, pending trial, beyond the scheduled release date.
If, however, good cause is not shown, or the good cause shown does not outweigh
the prejudice suffered, the court must fashion a remedy.
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. (See Allen, supra, 42 Cal.4th at pp. 105-107; Tatum, supra, 161
Cal.App.4th at p. 66; Hill, supra, 134 Cal.App.3d at p. 1060.)
In the future, those in defendant‟s circumstances will be entitled to release
at the end of their then-current terms, subject to possible LPS Act proceedings,
23
pending trial on their extension petitions.26 However, no relief is appropriate in
this case. The court retained jurisdiction to try the petition. The trial, while
untimely, was ultimately fair. Therefore, violation of the statutory timelines does
not warrant reversal.27
III. DISPOSITION
The judgment of the Court of Appeal is reversed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
26
As we have explained (see ante, p. 13), the following cases are disapproved
insofar as they conclude that the appropriate remedy is, instead, dismissal of the
extension petition: People v. Tatum, supra, 161 Cal.App.4th 41; People v.
Dougherty, supra, 143 Cal.App.3d 245; People v. Hawkins, supra, 139
Cal.App.3d 984; People v. Hill, supra, 134 Cal.App.3d 1055.
27
Circumstances may be imagined in which reversal might be warranted. For
example, if the prosecution negligently filed an extension petition so late that
defense counsel did not have adequate time to prepare for trial before the
expiration of the current term, and the court, nevertheless, refused to continue the
trial. However, that is not the case we consider here.
24
CONCURRING OPINION BY BAXTER, J.
I concur in the judgment reversing the Court of Appeal. I write separately
because I disagree with the analysis contained in the majority opinion.
Lara was the subject of a petition to extend his commitment under Penal
Code section 1026.5, subdivision (b)(10), after having been found not guilty by
reason of insanity of falsely imprisoning a child at knifepoint. The People filed
the petition prior to the expiration of Lara‟s maximum term of commitment but
failed to satisfy the requirement that the petition be filed “no later than 90 days
before the expiration of the original commitment unless good cause is shown”
(Pen. Code, § 1026.5, subd. (b)(2)) and the requirement that the trial commence
“no later than 30 calendar prior to the time the person would otherwise have been
released, unless that time is waived by the person or unless good cause is shown”
(Pen. Code, § 1026.5, subd. (b)(4)).
Defendant argues that the violation of these time limits deprived the trial
court of jurisdiction to proceed on the petition to extend his commitment. Yet, as
section 1026.5 itself says, “The time limits of this section are not jurisdictional.”
(Pen. Code, § 1026.5, subd. (a)(2).) The majority opinion so concludes, and I
agree. But, for reasons that are not explained, the majority opinion abandons the
statutory analysis at this point, just when things are getting interesting: Was the
violation of the statutory time limits harmless? Until today, it had been our long-
standing practice to inquire, in accordance with our state Constitution (Cal. Const.,
1
art. VI, § 13), whether the violation of a directory statute was prejudicial (e.g.,
People v. Parman (1939) 14 Cal.2d 17, 20), and it had been the preferred practice
of this court in all circumstances to inquire first whether a decision could be
grounded on a nonconstitutional basis so as to avoid the unnecessary decision of
novel constitutional questions. (E.g., People v. Leon (2007) 40 Cal.4th 376, 396.)
As it turns out, the errors were harmless, but it is our task as judges to say so and
to explain why.
The violation of the 90-day and 30-day time limits was harmless because
defendant was not prejudiced. This is not a case in which a defendant was forced
to go to trial in shortened time without an adequate opportunity to prepare. (Cf.
People v. Dougherty (1983) 143 Cal.App.3d 245, 247-248 [prejudice was
demonstrated where the petition was filed 66 days late without good cause, the
defendant was forced to go to trial with only 20 days of preparation, and counsel
informed the court there had been insufficient time for the defense to secure
medical experts who could testify or assist in the cross-examination of prosecution
witnesses or for the defense to subpoena the psychiatric file to permit effective
cross-examination of the state hospital psychologist].) Indeed, seven and one-half
months elapsed between the time the district attorney filed a petition to extend
defendant‟s commitment and the hearing on that petition—and defendant‟s time in
confinement beyond the expiration of the prior commitment was credited against
his new commitment term. Defendant does not contend that he was denied
adequate time to prepare, nor could he reasonably make such an argument.
Defendant does complain that he remained in custody, beyond the
expiration of his original commitment, pending trial on the petition to extend his
commitment. I agree with the majority opinion that this was error, in that
defendant would have been entitled to his release upon expiration of his original
commitment since there was no good cause for the delay in the trial, defendant did
2
not waive time, and no other statute authorized his continued confinement.28 I
would go further and suggest that defendant may well have had a civil remedy for
unlawful confinement if he asked for (and was denied) his release during that
period. However, this type of injury in itself does not mean that defendant
suffered prejudice for purposes of this proceeding. Prejudice, under our state
Constitution, means a miscarriage of justice that rendered the proceeding or its
outcome unfair or unreliable. (People v. Watson (1946) 46 Cal.2d 818, 836.)
Defendant nowhere alleges that his continued confinement under a program of
treatment interfered with his ability to prepare his defense or otherwise
undermined the reliability of the verdict. Hence, he suffered no prejudice.
Having disposed of defendant‟s statutory claim, I turn now to his
constitutional claim that the violation of the time limits deprived him of due
process. Generally, a due process claim arising from delays caused by the
prosecution is analyzed by balancing the reasons for the delay against the
prejudice caused to the accused. (United States v. Lovasco (1977) 431 U.S. 783,
790; People v. Allen (2007) 42 Cal.4th 91, 105.)
The majority opinion purports to adopt this well-settled framework: it
accepts the district attorney‟s concession that the delay was not supported by good
cause, and it asserts that defendant suffered not one but two kinds of prejudice.
28
Like the Santa Clara County District Attorney‟s Office, which has
submitted a brief as amicus curiae, I am skeptical that the Lanterman-Petris-Short
Act (Welf. & Inst. Code, § 5000 et seq.) will be an adequate or workable substitute
for the treatment a not-guilty-by-reason-of-insanity committee has been receiving
where (in future cases) the committee is released pending trial on a petition to
extend a commitment, but we are not free as a statutory (Pen. Code, § 1026.5,
subds. (a)(2), (b)(8)) or constitutional matter to require confinement beyond that
authorized by the Legislature. The district attorney‟s office might therefore more
fruitfully direct its criticisms of this alternative confinement scheme to the
Legislature.
3
(Maj. opn., ante, at p. 17; see People v. Cobb (Mar. 8, 2010, S159410) __ Cal.4th
__, __.) When it balances these two kinds of prejudice against the unjustified
delay, however, it suddenly finds that the delay was not prejudicial. There is no
reason to apply a balancing test here, though, since defendant, so far as this record
indicates, did not suffer any prejudice.
No one disputes that being forced to go to trial without adequate
preparation would be a denial of due process. However, no such deprivation
occurred here, inasmuch as defendant was granted over seven months to prepare
for trial and defendant does not claim he was unprepared
Being involuntarily held in confinement without any statutory authorization
may be a denial of due process but, without more, is not an injury that can be
remedied in this proceeding, inasmuch as defendant has made no showing that his
continued confinement affected the fairness of the proceeding or undermined
confidence in its outcome. (Barker v. Wingo (1972) 407 U.S. 514, 532-534;
accord, People v. Martinez (2000) 22 Cal.4th 750, 767-768). Such confinement is
an injury, not a form of prejudice—just like an entry into the home in violation of
the knock-and-announce rule (Hudson v. Michigan (2006) 547 U.S. 586, 594-596
[a violation of the knock-and-announce rule of the Fourth Amendment may
support a civil action for deprivation of the victim‟s civil rights but does not entitle
the victim to suppression of the evidence in a criminal proceeding, since the
interest it protects is unrelated to the actual seizure of the evidence]) or a breach of
the defendant‟s attorney-client and work product privileges by a state actor other
than the prosecution team (People v. Ervine (2009) 47 Cal.4th 745, 768 [intrusion
by jail personnel on the defendant‟s legal papers may support a civil cause of
action but does not entitle the victim to a reversal of his criminal conviction,
where there is no indication any confidential information was conveyed to the
prosecution team]). A defendant suffering confinement under those circumstances
4
may be entitled to civil damages, but such confinement could not invalidate a trial
conducted under fair procedures and resulting in an outcome that is reliable and
unaffected by the error.
With this framework in mind, it is apparent that many of the cases on which
the majority purports to rely are flawed, and this has in turn led the majority down
a flawed analytical path. In hopes of clarifying the law for courts and practitioners
in the future, I discuss these cases briefly.
The fundamental error shared by these cases is their assumption that when
the People, without good cause, fail to comply with the time limits under Penal
Code section 1026.5, a defendant is forced to choose between going to trial
without adequate time to prepare or remaining in confinement involuntarily
beyond the maximum confinement date. This assumption is mistaken. As the
majority opinion explains, a defendant in such circumstances “who so moves
should be released pending trial on the extension petition.” (Maj. opn., ante, at p.
23.) Thus, the so-called Hobson‟s choice that underlies the discussion in these
cases is a false one, in that a defendant who does not want to go to trial without
adequate time to prepare or remain in confinement receiving treatment after the
expiration of the original commitment pending trial may move for an order of
release and thus avoid both evils. These cases also assume that a defendant
automatically suffers prejudice if forced to remain in confinement involuntarily
because of an unexcused late filing. Because these cases rest on false
assumptions, they should be disapproved more broadly. The majority‟s failure to
do so will, I fear, sow confusion in the law.
Consider People v. Hill (1982) 134 Cal.App.3d 1055, which (contrary to
the majority opinion) was decided on statutory, not constitutional, grounds, and
which was decided prior to the 1984 amendment to section 1026.5 that added
“good cause” as an exception to the time limits in subdivision (b)(2) and (4). (See
5
Stats. 1984, ch. 1488, § 5, p. 5204.) The petition there was filed only 10 days
prior to expiration of Hill‟s prior commitment, which left insufficient time for
counsel to prepare for the hearing, and the hearing was consequently continued
several times, resulting in Hill‟s confinement beyond the expiration of his original
commitment. (Hill, supra, 134 Cal.App.3d at pp. 1057-1058.) Hill criticized the
“total violation of the time limitations established in the very section that
authorized any such extended confinement” (id. at p. 1058) and, without
considering whether the defendant had requested his release pending trial (or, if
so, whether the defendant had suffered actual prejudice), the Court of Appeal said
it was without power to defy “the clear terms” of the statute and reversed the order
extending the commitment. (Id. at p. 1060.) Hill is wrong in positing a forced
choice between trial without adequate preparation or continued confinement
beyond the maximum term and in failing to consider whether the defendant was
actually prejudiced by the tardy filing and his continued confinement. I would
disapprove Hill on these grounds.
In People v. Hawkins (1983) 139 Cal.App.3d 984, the same division that
decided Hill affirmed the dismissal of a petition to extend the defendant‟s
commitment where, without good cause, the petition was filed only 45 days before
(and counsel was appointed only two days before) expiration of the original
commitment. The Court of Appeal once again posited a forced choice between
trial without adequate preparation or continued confinement beyond the maximum
term. (Id. at pp. 987-988.) It thus failed to consider whether Hawkins could have
been released pending trial or whether Hawkins would have been prejudiced by a
trial occurring after expiration of the prior commitment. I would disapprove
Hawkins on these grounds.
Even worse, the majority opinion contends that People v. Tatum (2008) 161
Cal.App.4th 41, which involved a commitment under the Mentally Disordered
6
Offender Act (MDO Act) (Pen. Code, § 2970), “ably marshals the approach to be
employed in determining whether a due process violation has occurred” (maj.
opn., ante, at p. 17), but Tatum perpetuates the same mistakes described above.
Tatum is correct when it says that due process requires a balancing of the
prejudicial effect of the delay against the justification for the delay (Tatum, supra,
161 Cal.App.4th at p. 61), but it falls into error when it asserts (1) that an
unexcused late-filed petition forces the defendant to choose between “curtail[ing]
otherwise necessary trial preparation” or “suffering unauthorized postrelease
confinement,” and (2) that “whenever the state‟s unexcused late filing . . . forces
an offender to „choose‟ between these two types of prejudice, some prejudice is
necessarily established.” (Ibid.) As explained above, “prejudice” means a lack of
fair procedures at trial or an error that undermines confidence in the outcome of
the trial. Tatum is wrong not merely because it offered the wrong remedy; it is
wrong because it found prejudice where none existed—and I would disapprove it
on that basis.
Unfortunately, the majority opinion all but ensures confusion among those
charged with implementing the law when it perpetuates Tatum‟s mistaken
understanding of “prejudice” and asserts further that “[t]he degree of prejudice
will depend on a variety of factors, including how late the filing is, the amount of
time reasonably required to prepare for trial and mount a defense, and whether
action by the court or defense counsel contributed to the delay.” (Maj. opn., ante,
at pp. 17-18.) Given that a defendant faced with an unjustifiable delay may seek
release once the prior commitment has expired, one must wonder why the degree
of prejudice would depend on how late the filing is or the time needed to mount a
defense. As long as the delay in the trial is not so extended as to raise a
presumption of prejudice (see Barker v. Municipal Court (1966) 64 Cal.2d 806,
812; In re Johns (1981) 119 Cal.App.3d 577, 581) and, as stated above, the
7
defendant is granted adequate time to prepare, a late filing would not in itself
establish either a due process violation or prejudice. And, given that a court need
not even consider whether a delay was justified if there was no prejudice
(Scherling v. Superior Court (1978) 22 Cal.3d 493, 506-507), I cannot fathom how
an analysis of the court‟s or defense counsel‟s contributions to the delay could
affect the degree of prejudice.
Finally, it is important to recognize that the analysis endorsed in this
separate opinion is far from new. In People v. Allen, supra, 42 Cal.4th 91, we
explored whether a delayed petition to extend the defendant‟s commitment under
the MDO Act would deny due process where the defendant was subsequently
adjudicated to be an MDO. This court, unanimously, declared that such an inquiry
“would often be futile,” in that, “more often than not, an MDO would be unable to
show prejudice if his or her mental disorder is not in remission.” (Allen, supra, 42
Cal.4th at p. 105.) This analysis was correct then, it is correct now, and we ought
to apply it. I regret that the majority opinion, while ultimately reaching the correct
result, has chosen a confusing and roundabout path that may well mislead future
travelers. I therefore concur only in the judgment.
BAXTER, J.
8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Lara
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 7/17/07 - 6th Dist.Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S155481Date Filed: March 8, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Clara
Judge: Brian Walsh
__________________________________________________________________________________
Attorneys for Appellant:
Lauretta Marie Oravitz-Komlos, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, ChiefAssistant Attorneys General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, Seth K.
Schalit, Dorian Jung and Brent Wilner, Deputy Attorneys General, for Plaintiff and Respondent.
Dolores A. Carr, District Attorney (Santa Clara), Dana Overstreet and Paul Colin, Deputy District
Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Lauretta Marie Oravitz-Komlos15 Boardman Place, 2nd Floor
San Francisco, CA 94103-4727
(415) 703-0885
Brent Wilner
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1342
Petition for review after the Court of Appeal reversed an order extending an insanity commitment to the state hospital. The court ordered briefing deferred pending decision in People v. Price (S151207), which presents the following issue: Did the untimely filing of the petition to extend an insanity commitment deny defendant due process, when there was no good cause for the delay and the late filing allegedly left him with insufficient time to prepare for the hearing on the petition?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 03/08/2010 | 48 Cal. 4th 216, 226 P.3d 322, 106 Cal. Rptr. 3d 208 | S155481 | Review - Criminal Appeal | submitted/opinion due | PEOPLE v. PRICE (S151207) |
| 1 | The People (Plaintiff and Respondent) Represented by Brent Walter Wilner Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Dorian Jung Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Lara, David Alan (Defendant and Appellant) Napa State Hosp. Napa, CA 94558 Represented by Lauretta Marie Orvitz-Komlos Attorney at Law 15 Boardman Place, 2nd Floor San Francisco, CA |
| 4 | Office of the Santa Clara County District Attorney (Amicus curiae) Represented by Paul Oliver Colin Office of the Santa Clara County District Attorney 70 W. Hedding Street San Jose, CA |
| Dockets | |
| Aug 17 2007 | Petition for review filed the People, plaintiff and respondent Dorian Jung, Dep. A.G., counsel c/a case record requested |
| Aug 23 2007 | Record requested |
| Aug 24 2007 | Received Court of Appeal record one file folder/briefs/accordian folder |
| Sep 25 2007 | Review granted/briefing deferred (8.512(d)(2) criminal case) The petition for review is GRANTED. Further action in this matter is deferred pending consideration and disposition of a related issue in People v. Price, S151207 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ. |
| Oct 19 2007 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Luaretta M. Oravitz-Komlos is hereby appointed to represent appellant on the appeal now pending in this court. |
| Dec 23 2008 | Briefing ordered in previously Held case The petition for review in this matter was granted on September 25, 2007, and further action was deferred pending consideration and disposition of a related issue in People v. Price, S151207, or pending further order of the court. Respondent is now directed to file, within 30 days of the filing of this order, an opening brief on the merits. Additional briefing to be served and filed in a timely fashion. (See rule 8.520(a), Cal. Rules of Court.) Extensions of time are not contemplated. In addition to the issue stated in the petition for review, the briefs are to address the following questions also asked of the parties in People v. Price, S151207: 1. Does Penal Code section 1026.5 authorize the confinement of a defendant pending a recommitment hearing when the prosecution files a recommitment petition, without good cause, so late that the defense is unable to prepare for trial before the commitment expires? 2. Do the facts of this case allow this court to reach question No. 1? 3. In the absence of a time waiver, does a trial court have jurisdiction to continue an NGI recommitment hearing beyond the expiration date of the defendant's current commitment? 4. If the court loses jurisdiction to hold a committee once the NGI commitment expires, is there any other authority for the court to order a committee held for the protection of the committee or others? Werdegar, J., was absent and did not participate. |
| Jan 22 2009 | Opening brief on the merits filed The People, respondent by Dorian Jung, Deputy Attorney General |
| Feb 19 2009 | Request for extension of time filed counsel for aplt. requests extension of time to March 5, 2009, to file the answer brief on the merits. |
| Feb 23 2009 | Answer brief on the merits filed counsel for aplt. (David Lara) |
| Mar 16 2009 | Request for extension of time filed Counsel for resp. requests extension of time to April 15, 2009, to file the reply brief on the merits. |
| Mar 25 2009 | Extension of time granted On application of 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 April 15, 2009. |
| Apr 15 2009 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Dorian Jung |
| May 15 2009 | Application to file amicus curiae brief filed District Attorney of Santa Clara County in support of respondent. |
| May 27 2009 | Permission to file amicus curiae brief granted District Attorney's Office of Santa Clara County |
| May 27 2009 | Amicus curiae brief filed Amicus curiae: Office of the Santa Clara County District AttorneyAttorney: Paul Oliver Colin The application of District Attorney's Office of Santa Clara County for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief. |
| Jun 16 2009 | Response to amicus curiae brief filed Defendant and Appellant: Lara, David AlanAttorney: Lauretta Marie Orvitz-Komlos |
| Oct 29 2009 | Case ordered on calendar to be argued Wednesday, December 9, 2009, at 9:00 a.m., in Los Angeles |
| Dec 9 2009 | Cause argued and submitted |
| Mar 5 2010 | Notice of forthcoming opinion posted To be filed Monday, March 8, 2010. |
| Briefs | |
| Jan 22 2009 | Opening brief on the merits filed |
| Feb 23 2009 | Answer brief on the merits filed |
| Apr 15 2009 | Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Dorian Jung |
| May 27 2009 | Amicus curiae brief filed Amicus curiae: Office of the Santa Clara County District AttorneyAttorney: Paul Oliver Colin |
| Jun 16 2009 | Response to amicus curiae brief filed Defendant and Appellant: Lara, David AlanAttorney: Lauretta Marie Orvitz-Komlos |
| Jan 17, 2011 Annotated by stennant | FACTS At a hearing on October 12, the defense counsel explained why she could not be prepared for trial by October 15. Defense counsel had received the extension petition on September 29, but was unable to reach the defendant until October 1 and could only arrange to meet him on October 7. Defense counsel was also waiting on a subpoena duces tecum which was to be returned on October 15, and need to review the records before deciding whether to seek an independent psychic evaluation for her client. The prosecutor conceded to the fact that the delay in filing the extension petition was not excused by good cause, the reason being that he belatedly found the petition in a pile of reports. He also did not argue that the defense counsel could reasonably be ready for trial before the expiration of the defendant's commitment term. The trial court ultimately denied the dismissal motion but did not find whether the defense counsel has adequate preparation time for trial before the defendant's release date. PROCEDURAL HISTORY ISSUES HOLDING ANALYSIS Due Process Remedy TAGS Cited Cases People v. Mendez Abelleira v. District Court of Appeal http://scholar.google.co.za/scholar_case?case=9631591651752614986&q=17+C... People v. Chadd People v. Ruiz In re Andres G. People v. American Contractors Indemnity Co. People v. McGee City of Santa Monica v. Gonzalez People v. Allen In re Johns People v. Dougherty People v. Mitchell People v. Fernandez Nunn v. State of California Morris v. County of Marin DuBois v. Workers' Comp. Appeals Bd. California Correctional Peace Officers Assn. v. State Personnel Bd. Edwards v. Steele People v. Arias Department of Mental Hygiene v. Hawley People v. Pacini People v. McCune Boddie v. Connecticut In re Roger S. People v. Hill People v. Hawkins Scherling v. Superior Court Crockett v. Superior Court In re Newbern People v. Tatum Zachary v. Superior Court People v. Woodward People v. Wilson Cited Legislation Penal Code Section 1026 Penal Code Section 7 Government Code Section 9603 Mentally Disordered Offender Act Section 2972 |
