IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S141913
v.
) Ct.App.
6
H027835
GREGORY SEAN ALLEN,
Santa Clara County
Defendant and Appellant.
Super. Ct. No. 171110
Under the Mentally Disordered Offenders Act (MDO Act or Act) (Pen.
Code,1 § 2960 et seq.), a prisoner adjudicated to be a mentally disordered offender
(MDO) may be civilly committed during and after parole if certain conditions are
met. (See §§ 2962, 2966.) The People, represented by the district attorney, may
file a petition for the MDO’s continued involuntary treatment for a period of one
year. (§§ 2970, 2972, subds. (a)-(c).) Thereafter, the district attorney may petition
to extend that commitment in one-year increments. (§ 2972, subd. (e).) At issue
here, section 2972, subdivision (e) (hereafter section 2972(e)), provides that
“[p]rior to the termination of a commitment under this section, a petition for
recommitment may be filed” to continue the MDO’s treatment.
1
All further statutory references are to the Penal Code unless otherwise
noted.
1
The question here is, does the trial court have authority to extend an
MDO’s commitment if the petition is filed after the prior commitment has
terminated? As the parties and the Court of Appeal here have identified the issue,
is section 2972(e)’s time requirement mandatory or directory? As we shall explain
in greater detail below, we conclude that section 2972(e)’s time limit is
mandatory. As such, the district attorney’s untimely petition prohibited the trial
court from extending Allen’s expired commitment from October 14, 2003 to
October 14, 2004. Therefore, Allen no longer falls under the jurisdiction of the
MDO Act.
However, this does not necessarily mean Allen will be released. As
discussed further below, if Allen still suffers from his mental disorder, the
Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.) may apply
to provide for the custodial treatment of his disorder.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, defendant Gregory Sean Allen (Allen) was convicted of felony
sexual battery (§ 243.4, subd. (a)), and sentenced to a two-year prison term.2 In
1997, he was adjudicated to be an MDO and was transferred to the Atascadero
State Hospital for treatment during his parole period. Before Allen’s scheduled
release on October 14, 2000, the Santa Clara County District Attorney
successfully petitioned to extend Allen’s involuntary treatment to October 14,
2001. Thereafter, two annual proceedings under section 2970 extended Allen’s
commitment to October 14, 2003.
2
His conviction was based on his sexual assault of a 51-year-old woman
with Down’s syndrome. While serving his sentence, he assaulted correctional
officers and was convicted of battery (§ 4501.5). Based on these subsequent
events, he was to be released on October 14, 1997.
2
In April 2003, the medical director of the Napa State Hospital, where Allen
was being held, sent a letter to the district attorney recommending that he file a
petition to extend Allen’s commitment. No petition was filed, however, and
Allen’s commitment terminated on October 14, 2003. On January 15, 2004,
Allen, who was being held at Napa State Hospital, filed a petition for writ of
habeas corpus, claiming the trial court lacked jurisdiction to extend his
commitment because no recommitment petition was filed before October 14,
2003.
On January 21, 2004, the district attorney filed a petition to extend Allen’s
commitment for one year to October 14, 2004, which petition Allen moved to
dismiss. The district attorney did not explain the reasons for his delay. Allen
maintained that even if the court had jurisdiction to consider the petition, the
district attorney failed to show good cause for the delay. The district attorney
responded that he was not required to make such showing because Allen suffered
no “actual prejudice.”
The trial court denied both Allen’s motion to dismiss and his petition for
writ of habeas corpus. On August 3, 2004, it issued an order extending Allen’s
commitment from October 14, 2003 to October 14, 2004. Allen appealed.
The Court of Appeal majority reversed the trial court’s commitment order
with directions to dismiss the district attorney’s petition. Finding it a “fairly close
question,” the majority recognized that time requirements are often found to be
directory, but concluded “the requirement that a petition to extend a commitment
be filed prior to the commitment’s termination is a matter of substance rather than
one of convenience. It simply makes no sense to seek the extension of something
that has ended.”
After distinguishing cases interpreting time limits in the MDO Act and in
other civil commitment schemes, the Court of Appeal majority remained
3
“convinced that the Legislature did not contemplate permitting trial courts to
entertain extension petitions filed after the termination of an MDO commitment,
and therefore the Legislature intended for this time limit to be mandatory and for
dismissal to be the consequence for its violation.” In conclusion, the majority
stated that if Allen continues to pose a significant danger to himself or others, the
LPS Act (Welf. & Inst. Code, § 5000 et seq., especially §§ 5300-5309 et seq.)
remains a viable alternative for his continued commitment should he be released.
(See Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, 1036, fn. 9
(Zachary), citing People v. Hill (1982) 134 Cal.App.3d 1055, 1060.)
In her concurring and dissenting opinion, Acting Presiding Justice
Bamattre-Manoukian disagreed with the majority’s conclusion that section
2972(e)’s time limit is mandatory. She determined the provision to be directory
based on the statutory language, the purpose of the MDO Act, other time limits in
the MDO Act that are directory, and other civil commitment statutes. Because she
believed section 2972(e) to be directory, Justice Bamattre-Manoukian would have
held that a trial court does not automatically lose its power to hear or decide a
petition when a defendant’s commitment has terminated. Instead, she reasoned, a
court should determine whether a defendant’s due process rights were violated by
an untimely petition. This “requires a weighing of the justification for the delay in
filing the recommitment petition against the prejudice suffered by the defendant as
a result of the delay.”
Because no due process hearing was held, the dissenting justice would have
remanded the matter to determine whether to dismiss the recommitment petition.
4
DISCUSSION
A. The MDO Act
1. Background
“Historically, the states have exercised a power of involuntary civil
commitment involving the care and treatment of dangerous mentally disordered
individuals. While some of these schemes operate in a manner largely
independent of the criminal justice system, others are triggered only after criminal
charges have been filed. Some criminal defendants receive a mental health
commitment in lieu of conviction and punishment. Other mentally ill defendants
are committed upon completion of their prison terms.” (Hubbart v. Superior
Court (1999) 19 Cal.4th 1138, 1143, fns. omitted.) In this case, we are concerned
largely with the last group—those mentally disordered defendants subject to the
MDO Act who are civilly committed as a condition of parole. (§ 2960 et seq.)
In 1985, the Legislature enacted the MDO Act to respond to the state’s
“dilemma caused by the determinate sentencing system.” It explained: “To
maintain a determinate system will inevitably cause the release of some mentally
ill inmates who constitute a significant threat to public safety. This commitment
will provide a mechanism for placing these mentally ill inmates in the mental
health system for appropriate treatment which will increase the protection of the
public.” (Dept. of Mental Health, enrolled bill Rep., Sen. Bill No. 1296 (1985-
1986 Reg. Sess.) Sept. 27, 1985, p. 4.)3 Senate Bill No. 1054 identified its
3
In 1985, the Legislature passed tandem bills, Senate Bill No. 1296 (1985-
1986 Reg. Sess.) and Senate Bill No. 1054 (1985-1986 Reg. Sess.), enacting the
MDO Act. (Stats. 1985, ch. 1418, § 1, p. 5009 [adding § 2970]; Stats. 1985, ch.
1419, § 1, p. 5011 [amending § 2960].) The Legislature soon thereafter passed
Senate Bill No. 1845 (1985-1986 Reg. Sess.) as a “cleanup measure,” which
among other things, renumbered the provisions in the MDO Act, corrected certain
(footnote continued on next page)
5
purpose “ ‘to protect society by providing both a means for isolating these
offenders and treatment for the underlying cause of their criminality.’ ” (Assem.
Com. on Pub. Safety, analysis of Sen. Bill No. 1054 (1985-1986 Reg. Sess.) as
amended May 30, 1985, p. 2.) As the Act’s findings and declarations further
explained, the Legislature found that “in order to protect the public from those
persons it is necessary to provide mental health treatment until the severe mental
disorder which was one of the causes of or was an aggravating factor in the
person’s prior criminal behavior is in remission and can be kept in remission. [¶]
. . . [S]everely mentally disordered prisoners should be provided with an
appropriate level of mental health treatment while in prison and when returned to
the community.” (§ 2960.) In adopting such procedures, the Legislature
highlighted the “danger to society” and the state’s “compelling interest in
protecting the public.” (Ibid.)
Like other involuntary civil commitment schemes, the MDO Act’s
comprehensive statutory scheme—which itself took three bills to enact (see ante,
at p. 5, fn. 3)—represents a delicate balancing of countervailing public and
individual interests. Among these interests is obviously the public’s right to be
safe and protected from identified dangerous and mentally ill ex-prisoners, who
themselves are statutorily required to receive mental health treatment to keep their
severe mental disorder in remission after being released on parole. (§ 2962.)
Thus, we are aware that the balancing here involves factors not readily susceptible
(footnote continued from previous page)
draft oversights, and added that written evaluations be provided to the district
attorney. (Sen. Rules Com., analysis of Sen. Bill No. 1845 (1985-1986 Reg.
Sess.) as amended Aug. 12, 1986, p. 1; enacted as Stats. 1986, ch. 858, §§ 1-11,
pp. 2951-2957.)
6
to quantification, and we must keep a broader perspective in mind to fashion a
sufficient solution. (See People v. Dias (1985) 170 Cal.App.3d 756, 763 [though
petition for extended commitment under § 1026.5 did not comply with mandatory
deadline, “defendant continues to present a substantial danger of bodily harm to
others, neither defendant nor the public would benefit by defendant’s release at
this time”].)
As the high court has pronounced, states must ensure due process
protections and safeguard liberty interests when a person is civilly committed.
(Addington v. Texas (1979) 441 U.S. 418 (Addington); In re Howard N. (2005) 35
Cal.4th 117, 127-128 [civil commitment for persons under control of former
California Youth Authority under Welf. & Inst. Code, § 1800].) “[C]ivil
commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection. [Citations.] Moreover, it is indisputable that
involuntary commitment to a mental hospital after a finding of probable
dangerousness to self or others can engender adverse social consequences to the
individual. Whether we label this phenomena ‘stigma’ or choose to call it
something else is less important than that we recognize that it can occur and that it
can have a very significant impact on the individual.” (Addington, supra, 441 U.S.
at pp. 425-426.) “Nevertheless, ‘[s]tates have in certain narrow circumstances
provided for the forcible civil detainment of people who are unable to control their
behavior and who thereby pose a danger to the public health and safety.’ (Kansas
v. Hendricks (1997) 521 U.S. 346, 357 (Hendricks).) The high court has
‘consistently upheld such involuntary commitment statutes provided the
confinement takes place pursuant to proper procedures and evidentiary standards.
[Citations.] It thus cannot be said that the involuntary civil confinement of a
limited subclass of dangerous persons is contrary to our understanding of ordered
liberty.’ (Ibid.)” (In re Howard N., supra, 35 Cal.4th at p. 128.)
7
2. Procedural requirements for civil recommitment under the MDO
Act
With this backdrop, we turn to the procedural requirements necessary to
civilly recommit an MDO under the Act. As a condition of parole, a prisoner may
be designated and civilly committed as an MDO for involuntary treatment of a
“severe mental disorder”4 if certain conditions are met. (§§ 2962, 2966; see also
In re Qawi (2004) 32 Cal.4th 1, 23; People v. Williams (1999) 77 Cal.App.4th
436, 444 (Williams).) Section 2962 provides that a prisoner is subject to the MDO
Act if: “(a) The prisoner has a severe mental disorder that is not in remission or
cannot be kept in remission without treatment”; “(b) The severe mental disorder
was one of the causes of or was an aggravating factor in the commission of the
crime for which the prisoner was sentenced to prison”; “(c) The prisoner has been
in treatment for the severe mental disorder for 90 days or more within the year
prior to the prisoner’s parole or release”; “(d)” a mental health professional
evaluated the prisoner and concluded that criteria (a), (b) and (c) above have been
met, and that due to the severe mental disorder, the prisoner “represents a
substantial danger of physical harm to others”; “(e)” the prisoner received a
determinate sentence for the crime referenced in subdivision (b), and the crime is
one of the enumerated crimes in subdivision (e). (§ 2962, subds. (a)-(e).) If such
are found to exist, the prisoner may request a de novo hearing before the Board of
Prison Terms. (§ 2966.) If the Board of Prison Terms concludes that the criteria
are met, the prisoner may request a jury trial in the superior court. (Ibid.) “The
standard of proof shall be beyond a reasonable doubt, and if the trial is by jury, the
4
“[S]evere mental disorder” is defined as “an illness or disease or condition
that substantially impairs the person’s thought, perception of reality, emotional
process, or judgment; or which grossly impairs behavior; or that demonstrates
evidence of an acute brain syndrome for which prompt remission, in the absence
of treatment, is unlikely.” (§ 2962, subd. (a).)
8
jury shall be unanimous in its verdict.” (§ 2966, subd. (b); see Williams, supra, 77
Cal.App.4th at pp. 444, 458, fn. 10.)
Before an MDO’s current commitment period expires, the district attorney
may petition to extend that commitment by one year. (§ 2970.) To do so, the
medical director of the state hospital, the community program director, or the
Director of Corrections first “shall submit” to the district attorney a written
evaluation of the prisoner “[n]ot later than 180 days” before the prisoner’s
termination of parole or release, “unless good cause is shown” for delay. (Ibid.) If
the district attorney files a petition for continued involuntary treatment for one
year (ibid.), the trial court will hold a hearing on the petition, and the trial “shall
commence no later than 30 calendar days” before the time the prisoner would have
been released, “unless the time is waived by the person or unless good cause is
shown.” (§ 2972, subd. (a).) If the MDO’s commitment is continued (§ 2972,
subd. (c)), the district attorney may file subsequent petitions to extend the MDO’s
commitment in one-year increments. (§§ 2970, 2972(e).) “The recommitment
proceeding shall be conducted in accordance with the provisions of this section.”
(§ 2972(e).)
At issue here, section 2972(e) provides: “Prior to the termination of a
commitment under this section, a petition for recommitment may be filed to
determine whether the patient’s severe mental disorder is not in remission or
cannot be kept in remission without treatment, and whether by reason of his or her
severe mental disorder, the patient represents a substantial danger of physical harm
to others.” (Italics added.) Unlike sections 2970 and 2972, subdivision (a),
section 2972(e) does not provide for a waiver and/or good cause exception.
Section 2972(e) also “does not specify the number of days prior to expiration of
the commitment in which the petition must be filed” by the district attorney.
(Zachary, supra, 57 Cal.App.4th at p. 1031.) Moreover, the MDO Act, including
9
section 2972(e), does not expressly provide for any type of sanction, such as
dismissal, for untimely recommitment petitions.
After acknowledging guiding principles on the directory-mandatory
distinction, which we discuss further below (see post, at pp. 11-12), the Court of
Appeal majority ultimately concluded that section 2972(e)’s time limit was
mandatory because it was a “matter of substance rather than one of convenience.”
(See Francis v. Superior Court (1935) 3 Cal.2d 19, 28 (Francis).) While the 180-
day and 30-day time limits (§§ 2970, 2972, subd. (a)), are intended to expedite
resolution of pending recommitment petitions, the majority concluded that section
2972(e)’s “requirement that a petition to extend a commitment be filed, thereby
initiating an action, before the commitment terminates is a matter of substance
which, in our view, must be deemed mandatory.” The majority discussed several
decisions, that arguably supported a contrary conclusion. (See, e.g., Zachary,
supra, 57 Cal.App.4th 1026; see also People v. Fernandez (1999) 70 Cal.App.4th
117, 129 (Fernandez).) It also found decisions interpreting other statutory
schemes inapposite. Allen urges us to adopt the reasoning of the Court of Appeal
majority. While we do not necessarily agree with all of the majority’s reasoning,
we do agree with the majority and Allen that the time restriction of this section is
mandatory.
In this case, there is no question that the district attorney failed to comply
with section 2972(e)’s mandatory time deadline—he filed a recommitment
petition on January 21, 2004, over three months after Allen’s commitment ended
on October 14, 2003. His petition does not provide any explanation for the delay.
As discussed above, we must decide the consequences of failing to comply with
section 2972(e). Echoing the Court of Appeal majority, Allen argues that because
section 2972(e) is mandatory, the district attorney’s failure to file a timely petition
10
precluded the trial court from extending his commitment. The Attorney General
disagrees the section is mandatory; instead, the court has authority to extend an
MDO’s commitment after it has expired because section 2972(e)’s time
requirement is directory. The Attorney General also claims this statutory
interpretation furthers important public policy interests, such as public safety. We
first explain the directory-mandatory distinction, and the significance of each.
B. Directory
or
Mandatory Provision
Generally speaking, “the ‘directory-mandatory’ distinction is concerned
only with whether a particular remedy—invalidation of the ultimate governmental
action—is appropriate when a procedural requirement is violated; even when
invalidation is not appropriate, other remedies—such as injunctive relief,
mandamus, or monetary damages—may be available to enforce compliance with
the statutory provision. Indeed, the availability or unavailability of alternative
remedies may have an important bearing on whether a procedure is to be accorded
‘directory’ or ‘mandatory’ effect.” (Morris v. County of Marin (1977) 18 Cal.3d
901, 908, fn. 4, italics omitted (Morris).) The directory-mandatory distinction
“does not refer to whether a particular statutory requirement is ‘permissive’ or
‘obligatory.’ ” (Id. at p. 908; see also Edwards v. Steele (1979) 25 Cal.3d 406, 410
(Edwards).)5 Although somewhat tautological, the principle is ostensibly or
5
However, if a provision is mandatory, cases have held that the failure to
comply with its requirements does not necessarily mean a court loses fundamental
jurisdiction resulting 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 [“jurisdiction” has many
meanings]; California Correctional Police Officers Assn. v. State of Personnel Bd.
(1995) 10 Cal.4th 1133, 1146 (California Correctional).); 2 Witkin, Cal.
Procedure (4th 3d. 1997) Jurisdiction, § 4, pp. 548-549 [explaining difference
between “jurisdictional” and “mandatory”].) The high court has recently also
recognized the difficulty making the mandatory/jurisdictional distinction. (Bowles
(footnote continued on next page)
11
perhaps deceptively simple: “If the action is invalidated, the requirement will be
termed ‘mandatory.’ If not, it is ‘directory’ only.” (California Correctional,
supra, 10 Cal.4th at p. 1145; see also Morris, supra, 18 Cal.3d at p. 909 [citing
cases].)
“Whether a particular statute is intended to impose a mandatory duty is a
question of interpretation for the courts.” (Nunn v. State of California (1984) 35
Cal.3d 616, 624 (Nunn). We recognized long ago that “there is no simple,
mechanical test for determining whether a provision should be given ‘directory’ or
‘mandatory’ effect.” (Morris, supra, 18 Cal.3d at pp. 909-910, citing Pulcifer v.
County of Alameda (1946) 29 Cal.2d 258, 262 (Pulcifer).) Unless the Legislature
clearly expresses a contrary intent, time limits are typically deemed directory.
(California Correctional, supra, 10 Cal.4th at p. 1145; see also Garrison v.
Rourke (1948) 32 Cal.2d 430, 435 (Garrison) [time limit’s mandatory effect must
be “expressly provided or otherwise clearly intended”].)6
(footnote continued from previous page)
v. Russell (June 14, 2007, No. 06-5306) __ U.S.__ [127 S.Ct. 2360, 2366] [in a
five-to-four decision, holding that “the timely filing of a notice of appeal in a civil
case is a jurisdictional requirement”]; but see Arbaugh v. Y&H Corp. (2006) 546
U.S. 500, 510 [high court “clarified that time prescriptions, however emphatic,
‘are not properly typed “jurisdictional.” ’ ”].)
6
Courts have also adopted various tests to determine the Legislature’s
“probable intent” regarding a statute’s time requirements. (Edwards, supra, 25
Cal.3d at p. 410.) For instance, a time requirement is considered directory
“ ‘unless a consequence or penalty is provided for failure to do the act within the
time commanded.’ ” (Ibid., quoting Garrison, supra, 32 Cal.2d at pp. 435-436.)
Also, courts may also look to see if the statutory requirement “ ‘relates to matters
material or immaterial to matters of convenience or of substance.’ ” (Francis,
supra, 3 Cal.2d at p. 28.) ].)
12
However, as in any case involving statutory interpretation, we must
ascertain the legislative intent to determine what effect to give a statute’s time
requirement. (Pulcifer, supra, 29 Cal.2d at p. 262.) “The legislative intent can
usually be determined from the statutory language.” (Nunn, supra, 35 Cal.3d at p.
624.) “In the absence of express language, the intent must be gathered from the
terms of the statute construed as a whole, from the nature and character of the act
to be done, and from the consequences which would follow the doing or failure to
do the particular act at the required time.” (Pulcifer, supra, 29 Cal.2d at p. 262;
see also People v. McGee (1977) 19 Cal.3d 948, 958 [“courts look to the purpose
of the procedural requirement to determine whether invalidation is necessary to
promote the statutory design”].)
We begin with the language of section 2972(e) itself. (See Nunn, supra, 35
Cal.3d at p. 624.) As noted above, the section provides: “Prior to the termination
of a commitment under this section, a petition for recommitment may be filed” to
determine whether the MDO’s severe mental disorder is not in remission. (Italics
added.) The Attorney General contends that the term “may” demonstrates that
section 2972(e) is directory. (See Common Cause of California v. Board of
Supervisors of Los Angeles County (1989) 49 Cal.3d 432, 443 [“the word ‘may’
ordinarily is construed as permissive, whereas ‘shall’ is ordinarily construed as
mandatory”].) Therefore, the trial court’s extension of Allen’s commitment—
notwithstanding the district attorney’s untimely recommitment petition—is not
void. We are not persuaded by the Attorney General’s contention. Neither the
word “may,” nor the word “shall,” is dispositive. (Atkinson v. Elk Corp. of Texas
(2006) 142 Cal.App.4th 212, 227-228 [“ ‘It is true that in statutes the word “may”
is sometimes construed as “shall.” But that is where the context, or the subject-
matter, compels such construction’ ”].) Also, several Courts of Appeal have
determined that certain deadlines under the MDO Act are directory despite the
13
Legislature’s use of the word “shall.” (See, e.g., Fernandez, supra, 70
Cal.App.4th at p. 129 [§ 2970’s 180-day deadline]; Williams, supra, 77
Cal.App.4th at p. 451 [§ 2972, subd. (a)’s 30-day deadline].)
More importantly, in the context of the statutory scheme, the term “may”
does not signal whether section 2972(e)’s time requirement is directory or
mandatory. Rather, it reflects the district attorney’s discretion to file a
recommitment petition—or not—once the MDO’s current commitment is set to
end. The petition under section 2972(e) seeks to determine whether to extend the
existing commitment if the MDO’s severe mental disorder is not in remission or
cannot be kept in remission with treatment, and if the MDO “represents a
substantial danger of physical harm to others.” (§ 2972(e).) Thus, a district
attorney, after receiving a written evaluation on the MDO’s severe mental
disorder, “may then file a petition with the superior court for continued
involuntary treatment for one year.” (§ 2970; §§ 2972(a) [“The court shall
conduct a hearing on the petition under Section 2970 for continued treatment”],
2972(e) [“recommitment proceeding shall be conducted in accordance with the
provisions of this section”].)
The related provisions under the MDO Act supply additional support for
the conclusion that the maximum term for each commitment is one year, and as
such, a district attorney must petition for an MDO’s recommitment within that one
year. Section 2972, subdivision (c), provides that if a court or jury finds a
prisoner’s severe mental disorder is not in remission and as such, the prisoner
represents a substantial danger of physical harm to others, the court-ordered
“commitment shall be for a period of one year from the date of termination of
parole or a previous commitment or the scheduled date of release from prison as
specified in Section 2970. Time spent on outpatient status . . . shall not count as
actual custody and shall not be credited toward the person’s maximum term of
14
commitment or toward the person’s term of extended commitment.” (Italics
added; see also § 2970 [“The district attorney may then file a petition with the
superior court for continued involuntary treatment for one year,” italics added].)
These provisions clearly reflect the Legislature intended the MDO’s maximum
term of commitment to be one year, which may be extended annually for
additional one-year terms under the conditions of the Act.
Indeed, the drafters of the MDO Act recognized that “a prisoner could
conceivably be ‘treated’ for the rest of his life as there is no limit on the number of
times he may be recommitted to an inpatient facility.” (Assem. Com. on Pub.
Safety, analysis of Sen. Bill No. 1054 (1985-1986 Reg. Sess.) as amended May
30, 1985, p. 4.) Thus, it is paramount that “[p]eriodic reviews are required
because if the basis for a commitment ceases to exist, continued confinement
violates the substantive liberty interest in freedom from unnecessary restraint.”
(Clark v. Cohen (3d Cir. 1986) 794 F.2d 79, 86; see Hendricks, supra, 521 U.S. at
p. 364 [Kansas civil commitment scheme provides similar yearly reviews].)
Among other things, the Attorney General argues that it would be
inconsistent to allow for good cause or waiver exceptions from time requirements
in sections 2970 and 2972, subdivision (a) (see ante, at p. 9), while concluding the
time for filing the extension in section 2972(e) is mandatory. We disagree. In
Williams, the Court of Appeal concluded section 2972, subdivision (a)’s 30-day
deadline to commence trial on a recommitment petition was directory; the
practical purpose of the deadline is “to ensure a reasonable amount of time in
which to conduct a trial before the defendant is to be released.” (Williams, supra,
77 Cal.App.4th at pp. 450-451; see People v. Kirkland (1994) 24 Cal.App.4th 891,
913.) In so holding, the Court of Appeal noted that section 2972, subdivision (a)
did not expressly set any deadline for the completion of the trial; however, section
2972(e) provided a set deadline based on the MDO’s release date. (Williams,
15
supra, 77 Cal.App.4th at p. 452.) “The plain language of section 2972,
subdivision (e), together with other provisions, reflects a legislative intent to
prohibit the filing of a petition, and the initiation of commitment proceedings,
after a parole period or previous commitment has expired.” (Id. at p. 455.) Thus,
the court’s holding that the authorities need not strictly comply with the 30-day
deadline (§ 2972, subd. (a)) was based in part on its understanding of the absolute
deadline to begin the recommitment process—the termination of the current one-
year commitment. (Williams, supra, 77 Cal.App.4th at pp. 452-455.)
Based on the foregoing, we conclude that the Legislature intended the
deadline set forth in section 2972(e) to be mandatory, i.e., requiring the district
attorney to file a recommitment petition before the MDO’s current commitment
term ends. The consequence for not complying with a mandatory requirement, as
discussed above, is generally the “invalidation of the ultimate governmental
action.” (Morris, supra, 18 Cal.3d at p. 908, fn. 4; see ante, at pp. 11-12.) Here,
that would mean invalidating the trial court’s purported extension of Allen’s
recommitment and ostensibly releasing Allen into the community. The Attorney
General, however, asserts that even if section 2972(e) is mandatory, the superior
court retains “fundamental jurisdiction” to determine whether the missed time
deadline limit violates Allen’s due process rights to compel dismissal of the
proceeding. We disagree that the Attorney General’s approach would provide
Allen an adequate remedy.
In this situation, determining whether an MDO’s due process rights were
violated by a delayed petition would often be futile. “[R]egardless of whether
defendant’s claim is based on a due process analysis or a right to a speedy trial not
defined by statute, the test is the same, i.e., any prejudice to the defendant
resulting from the delay must be weighed against justification for the delay.”
(Scherling v. Superior Court (1978) 22 Cal.3d 493, 505, fn. omitted.) As this case
16
demonstrates, more often than not, an MDO would be unable to show prejudice if
his or her mental disorder is not in remission. For instance, the Attorney General
asserts that—notwithstanding the district attorney’s untimely petition—Allen has
suffered no actual prejudice because he would have been recommitted anyway as
he continues to suffer from his severe mental disorder. Nonetheless, Allen was
denied his annual review under the MDO Act, which may be deemed prejudicial.
However prejudice may be characterized here, Allen is entitled to some type of
remedy, or more precisely, a resolution of his commitment status.
C. Remedy
The Attorney General contends that if we conclude section 2972(e)’s
deadline is mandatory, “no means to continue [Allen’s] involuntary treatment as
an MDO would exist.” Our decision, however, will not necessarily result in
Allen’s release. Although Allen does not fall under the jurisdiction of the MDO
Act, we agree with the Court of Appeal majority that Allen might still be
involuntarily committed and treated under the LPS Act. (Welf. & Inst. Code, §
5000 et seq.)
1. LPS
Act
a. Background
As brief background, in 1974 when the Assembly’s Select Committee on
Mentally Disordered Criminal Offenders conducted a public hearing,
Assemblyman Frank Lanterman as chair acknowledged that the LPS Act, which
was enacted in 1969, “was not designed to accommodate the mentally disordered
criminal offender.” (Assem. Select Com. on Mentally Disordered Criminal
Offenders, pub. hearing on House Res. No. 88 (1973-1974 Reg. Sess.) testimony
of Assemblyman Lanterman, p. 1.) Although the LPS Act’s initial purpose was
not to treat MDO’s, the Legislature later added provisions and amendments “[t]o
17
provide prompt evaluation and treatment of persons with serious mental disorders”
among other private and public purposes (Welf. & Inst. Code, § 5001, subd. (b)
[LPS Act’s legislative intent]), and also included in the MDO Act a provision
relying on the LPS Act to prevent an inmate or parolee from premature or
unintended release. (Pen. Code, § 2974 [on probable cause, Director of
Corrections may place inmate/parolee in state hospital under LPS Act].)
Moreover, during that 1974 hearing before the MDO Act was enacted, one
expert’s suggestion was to add a provision “to the Penal Code commitment
procedures so the arresting officer, who has reasonable cause to believe that the
person has committed a minor crime because of a mental disorder, can take that
person to a designated mental health facility instead of to jail. If the staff at the
mental health facility agrees with the arresting officer that the person is apparently
mentally ill, then he could be held on certification of the officer for three days and
be provided the same services available to those who are mentally ill and
dangerous. If he is found to be mentally ill during the observation period, charges
could be dropped and the person treated in accordance with the provision of the
Lanterman-Petris-Short Act.” (Assem. Select Com. on Mentally Disordered
Criminal Offenders, pub. hearing on House Res. No. 88 (1973-1974 Reg. Sess.)
testimony of Dr. Lowry, pp. 47-48.) As the hearing and testimony demonstrate,
the MDO Act and LPS Act share two significant common goals—the treatment of
mentally disordered persons and the protection of the public. (See Pen. Code, §
2960 [MDO Act’s findings and declarations]; Welf. & Inst. Code, § 5001 [LPS
Act’s legislative intent].)
b. Procedural
requirements under the LPS Act
As relevant here, we recently discussed the series of temporary detentions
and the appointment of conservatorships available under the LPS Act.
18
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 541-542 (Ben C.).) The LPS
Act “ ‘limits involuntary commitment to successive periods of increasingly longer
duration, beginning with a 72-hour detention for evaluation and treatment ([Welf.
& Inst. Code,] § 5150), which may be extended by certification for 14 days of
intensive treatment (§ 5250); that initial period may be extended for an additional
14 days if the person detained is suicidal. (§ 5260.) . . . [T]he 14-day certification
may be extended for an additional 30-day period for further intensive treatment. (§
5270.15.) Persons found to be imminently dangerous may be involuntarily
committed for up to 180 days beyond the 14-day period. (§ 5300.) After the
initial 72-hour detention, the 14-day and 30-day commitments each require a
certification hearing before an appointed hearing officer to determine probable
cause for confinement unless the detainee has filed a petition for the writ of habeas
corpus. (§§ 5256, 5256.1, 5262, 5270.15, 5275, 5276.) A 180-day commitment
requires a superior court order. (§ 5301.)’ ” (Id. at p. 541, quoting
Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009.)
The LPS Act’s “carefully calibrated series of temporary detentions for
evaluation and treatment” (Ben C., supra, 40 Cal.4th at p. 541), is obviously more
complicated than the MDO Act’s one-year commitments. (See §§ 2962-2972; see
ante, at pp. 8-9.) While the LPS Act asks whether as a result of a mental disorder,
a person is a danger to self or others (see, e.g., Welf. & Inst. Code, §§ 5150, 5250,
5300)—the latter of which is similar to the MDO Act (Pen. Code, § 2970)—
another salient question for detention under the LPS Act is whether the person is
“gravely disabled” as a result of a mental disorder. (Welf. & Inst. Code, § 5008,
subd. (h)(1).)7 As relevant here, “gravely disabled” means “[a] condition in
7
The LPS Act does not have a specific definition of “mental disorder.” (See
Welf. & Inst. Code, § 5008.2.) However, when a person’s disorder is relevant
(footnote continued on next page)
19
which a person, as a result of a mental disorder, is unable to provide for his or her
basic personal needs for food, clothing, or shelter.” (Welf. & Inst. Code, §
5008(h)(1)(A); but see id., § 5350, subd. (e) [not “gravely disabled” if
family/friends indicate in writing they are willing and able to help provide for
conservatee’s personal needs].)
However, in addition to the somewhat piecemeal short-term detentions
discussed above, a one-year conservatorship may be sought, similar to the one-
year commitments under the MDO Act. (Welf. & Inst. Code, §§ 5350, 5361;
Prob. Code, § 1400 et seq. [governing LPS Act conservatorships]; see also Welf.
& Inst. Code, § 5352.1 [court-ordered temporary conservatorship of 30 days].)
Conservatorship proceedings may only be initiated by the professional person in
charge of the treatment facility, who recommends a conservatorship if the
proposed conservatee is gravely disabled by a mental disorder. If the officer
providing conservatorship investigation agrees with the recommendation, the
officer may petition the superior court to establish a conservatorship. (Welf. &
Inst. Code, §§ 5352, 5352.5.) Once established, a conservatorship terminates
automatically at the end of one year, unless the conservator petitions to reestablish
(footnote continued from previous page)
under the LPS Act, “the historical course of the person’s mental disorder . . . shall
be considered when it has a direct bearing on the determination of whether the
person is a danger to others, or to himself or herself, or is gravely disabled, as a
result of a mental disorder. The historical course shall also include, but is not
limited to, evidence presented by persons who have provided, or are providing,
mental health or related support services to the patient, the patient’s medical
records as presented to the court, including psychiatric records, or evidence
voluntarily presented by family members, the patient, or any other person
designated by the patient.” (Ibid.)
20
conservatorship “at or before the termination of the one-year period.” (Id., §§
5361, 5362.)
2. Allen’s
Status
In April 2003, nearly six months before Allen’s commitment was to
terminate, the medical director of Napa State Hospital sent a letter to the district
attorney recommending he seek the extension of Allen’s recommitment, which
was to end on October 14, 2003. The March 17, 2003 evaluation on Allen noted:
He “has made little progress during the past year. His motivation level is poor and
he is unable to get involved toward meeting discharge criteria due to his
significant delusional and psychotic symptoms. [Despite] drug regimen changes,
his response remains poor. . . . [¶] He is suffering from a major mental illness, not
in remission, and still shows signs and symptoms of severe mental disorder. By
reason of severe mental disorder he represents a substantial danger to himself and
others. [¶] It is the recommendation of the treatment team that a petition be filed
with the Superior Court for continued involuntary treatment for one year.”
More recent events illustrating Allen’s current mental state include: On
November 2, 2005, a jury found the petition alleging Allen to be an MDO to be
true, and Allen was ordered committed for another year until October 14, 2006.
Another petition seeking to extend Allen’s commitment to October 14, 2007 is
currently pending. In a May 29, 2007 letter to the Santa Clara County District
Attorney, the acting medical director of Napa State Hospital opined that Allen still
suffers from a “severe mental disorder” under the MDO Act, and requested the
district attorney file a petition for continued involuntary treatment under the Act.
Because Allen has been evaluated and treated only under the MDO Act up
to this point, there has been no occasion to determine whether Allen would be
subject to the requirements of the LPS Act. (See ante, at pp. 18-20.) Thus, we
21
underscore that our decision should not be construed as requiring Allen’s release if
he is still in need of mental health treatment. Assuming he still requires such
treatment, we presume that responsible parties will take appropriate steps to ensure
Allen receives custodial treatment, for as long as is necessary, under the LPS Act.
One final, important note: We urge district attorneys and other responsible
parties to ensure that recommitment petitions are timely filed to avoid situations
like this; likewise, we understand it is unrealistic to assume that there will be no
late petitions. There may be good cause for the delay in some cases. Thus, we
also urge the Legislature to recognize this reality and specifically address the
consequences of untimely petitions.
DISPOSITION
We affirm the Court of Appeal’s judgment.
CHIN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Allen
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 136 Cal.App.4th 644
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S141913Date Filed: August 13, 2007
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Clara
Judge: Alfonso Fernandez
__________________________________________________________________________________
Attorneys for Appellant:
Michael A. Kresser, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves,Chief Assistant Attorneys General, Gerald A. Engler, Assistant Attorney General, René A. Chacón, Ralph
Sivilla and Linda M. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael A. KresserSixth District Appellate Program
100 N. Winchester Boulevard, #310
Santa Clara, CA 95050
(408) 241-6171
Linda M. Murphy
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 703-1334
Opinion Information
| Date: | Docket Number: |
| Mon, 08/13/2007 | S141913 |
Parties
| 1 | Allen, Gregory Sean (Defendant and Appellant) Represented by Michael A. Kresser Sixth District Appellate Program 100 N. Winchester Boulevard, Suite 310 Santa Clara, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Linda M. Murphy Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| Disposition | |
| Aug 13 2007 | Opinion: Affirmed |
| Dockets | |
| Mar 15 2006 | Petition for review filed the People, plaintiff and respondent Ralph Sivilla, Dep. A.G. c/a rec req |
| Mar 22 2006 | Received Court of Appeal record file jacket/ briefs/transcripts |
| Apr 7 2006 | Answer to petition for review filed with permission Gregory Sean Allen, appellant by Michael Kresser, Executive Director, Sixth District Appellate Program. |
| May 3 2006 | Time extended to grant or deny review to and including June 13, 2006 |
| May 17 2006 | Petition for review granted (criminal case) Votes: George, C.J., Baxter, Chin, and Corrigan, JJ. |
| May 23 2006 | Counsel appointment order filed Upon request of appellant for appointment of counsel, the Sixth District Appellate Program 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 dare respondent's opening brief on the merits is filed. |
| May 31 2006 | Request for extension of time filed to July 16, 2006, to file respondent's opening brief on the merits |
| Jun 1 2006 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief ont the merits is extended to and including July 16, 2006. |
| Jul 17 2006 | Opening brief on the merits filed The People, respondent, by Linda M. Murphy, Deputy Attorney General - San Francisco |
| Jul 17 2006 | Request for judicial notice filed (granted case) Respndent (People) by Linda M. Murphy, Deputy Attorney General - San Francisco |
| Aug 11 2006 | Request for extension of time filed for an additional 30 days (9-15-2006) to file appellant's answer brief ont he merits. |
| Aug 15 2006 | Extension of time granted On application of appellant 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 September 15, 2006. |
| Sep 5 2006 | Request for extension of time filed for an additional 30 days to file Appellant's Answer Brief on the Merits. |
| Sep 13 2006 | Extension of time granted On application of appellant and good cause appeairng, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 16, 2006. No further extensions of time are contemplated. |
| Oct 17 2006 | Answer brief on the merits filed Gregory Sean Allen, defendant and appellant by Michael Kresser, Executive Director, Sixth D.A.P., Supreme Court appointed counsel CRC 40.1(b) |
| Nov 6 2006 | Request for extension of time filed to December 15, 2006, to file respondent's reply brief on the merits. |
| Nov 27 2006 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and fle the reply brief on the merits is extended to and including December 15, 2006. |
| Dec 13 2006 | Reply brief filed (case fully briefed) The People, plaintiff and respondent by Linda M. Murphy, Deputy Attorney General - SF |
| May 2 2007 | Case ordered on calendar to be argued on Tuesday, May 29, at 1:00 p.m., in San Francisco |
| May 17 2007 | Request for Extended Media coverage Filed by James Gualtieri of the California Channel. |
| May 17 2007 | Received: Letter re additional cites from Michael A. Kresser, Executive Director, Sixth District Appellate Program |
| May 17 2007 | Request for extended media coverage denied The request for extended media coverage, filed by The California Channel, on May 17, 2007, is hereby denied. |
| May 17 2007 | Request for judicial notice granted Respondent's request for judicial notice, filed July 17, 2006, is granted. |
| May 21 2007 | Received: Letter from the Attorney General re additional case cite. |
| May 29 2007 | Cause argued and submitted |
| May 31 2007 | Order filed The parties are requested to respond to the following question. At oral argument, the Attorney General stated that Allen is subject to an uncontested commitment. What is the basis for this statement? The parties are directed to serve and file simultaneous letters by June 11, 2007, and may serve and file any reply by June 18, 2007. |
| May 31 2007 | Note: Order faxed to counsel for both parties. |
| Jun 8 2007 | Letter brief filed The People, Respondent by Linda M. Murphy, counsel |
| Jun 8 2007 | Request for judicial notice filed (granted case) The People, Respondent by Linda M. Murphy, counsel |
| Jun 11 2007 | Letter brief filed Gregory Sean Allen, Appellant by Michael A. Kresser, counsel |
| Jun 18 2007 | Letter brief filed Appellant Gregory Sean Allen in reply to the Attorney General's response of June 7, 2007, to the court's post oral argument order of 5-31-2007. Appellant also submits this as opposition to the Attorney General's motion for judicial notice filed on June 7, 2007. by Michael A. Kresser, Executive Director, Sixth District Appellate Program |
| Jun 18 2007 | Filed letter from: Counsel for appellant dated 6-18-2007 as an addendum to the reply and opposition to the motion to take judicial notice dated June 15, 2007. |
| Jun 18 2007 | Request for judicial notice filed (granted case) Respondent People's by Linda M. Murphy, Deputy A.G. 0 San Francisco |
| Jun 18 2007 | Filed: Letter dated June 18, 2007 from Respondent People referencing June 7, 2007 letter by Linda M. Murphy, Deputy A. G. - Sacramento |
| Jul 11 2007 | Request for judicial notice granted The Attorney General's "Request for Judicial Notice, Supporting Declaration, and Related Documents," filed on June 8, 2007, is granted. The "Request for Judicial Notice, Supporting Declaration, and Related Documents," filed on June 18, 2007, is also granted. |
| Aug 10 2007 | Notice of forthcoming opinion posted |
| Aug 13 2007 | Opinion filed: Judgment affirmed in full Court of Appeal's judgment. Opinion by Chin, J. -- Joined by George, C.J., Kennard, Baxter, Werdegar, Moreno, Corrigan, JJ. |
| Sep 13 2007 | Remittitur issued (criminal case) |
| Sep 17 2007 | Received: Acknowledgment of receipt for remittitur from Sixth Appellate District, signed for by W. Magsaysay, Deputy |
| Oct 18 2007 | Compensation awarded counsel Atty Kresser - Sixth District Appellate Program |
| Briefs | |
| Jul 17 2006 | Opening brief on the merits filed |
| Oct 17 2006 | Answer brief on the merits filed |
| Dec 13 2006 | Reply brief filed (case fully briefed) |
