Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 96WF0485, W. Michael Hayes, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Jimmy Owens appeals from his continued commitment as a mentally disordered offender. The sole issue is whether a delay in the filing of the petition beyond the 180-day statutory requirement and the resulting delays in the proceedings entitled him to have the commitment petition dismissed. Because the event that triggered the filing of the petition did not take place until well within the 180-day period, the trial court did not abuse its discretion in finding that there was good cause for the delays. We therefore affirm the judgment.
STATUTORY BACKGROUND
Penal Code section 2962 (all further statutory references are to this code) declares that a prisoner who meets specified criteria shall be required to be treated by the State Department of Mental Health as a condition of probation. The statute applies if the “prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment.”
Section 2966 sets out a procedure permitting a prisoner to request a hearing before the Board of Prison Terms.
Section 2970 provides in part: “Not later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole as required by Section 2962, unless good cause is shown for the reduction of that 180-day period, if the prisoner’s severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee, or the community program director in charge of the parolee’s outpatient program, or the Director of Corrections, shall submit to the district attorney of the county in which the parolee is receiving outpatient treatment, or
for those in prison or in a state mental hospital, the district attorney of the county of commitment, his or her written evaluation on remission.” (Emphasis added.)
Section 2972, subdivision (a) directs in part: “The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown. (Emphasis added.)
FACTS
Defendant was under an order of involuntary treatment with a discharge date of February 14, 2009. In December 2008, he was evaluated by Dr. Lance A. Portnoff, who concluded that defendant did not meet all the criteria for further hospitalization. But, in an addendum report dated January 20, 2009, Portnoff described an intervening event that “demonstrated evidence of aggressive behavior relating to [defendant’s] mental illness, which now warrants a change in my opinions.” Describing defendant’s involvement in a stalking incident on January 8, he concluded that defendant “meets all [c]riteria for hospitalization with a DMH State Hospital under [section 2962].” (Bold and italics omitted.) On January 21, Chief of Mental Health, Karl Weaver, M.D., forwarded Portnoff’s reports to the Orange County District Attorney and requested a petition for continued involuntary treatment be filed. Also included was a report from Michele J. Reed, Ph.D., based on a January 15 evaluation date, to the effect that defendant met all criteria required for treatment under section 2962. The district attorney’s office filed such a petition on January 26.
On February 10, defendant filed a motion to dismiss. The motion was based on the: (1) prosecution’s failure to comply with section 2962, permitting a prisoner to request a hearing before the Board of Prison Terms; (2) failure to appoint two independent professionals to provide evaluations; (3) failure to comply with the 180-day requirement; and (4) inability to conduct the hearing within 30 days before the parole release date. The court heard and denied the motion on February 25. On March 4, defendant filed a motion to reconsider the motion. After granting reconsideration, the court again denied the motion to dismiss.
The initial date set for trial was February 11; on that date defense counsel stated he was still missing discovery and was not prepared to go to trial. But counsel made it clear defendant did not waive time for trial. The court found good cause to continue the trial because of counsel’s inability to proceed. Trial commenced on March 16.
DISCUSSION
The crux of this appeal lies in the failure to comply with the 180-day requirement of section 2970 and the 30-day requirement of section 2972. As to the other grounds for the motion to dismiss, we note that as to the prosecution’s failure to comply with section 2966, subdivision (a) permitting a prisoner to request a hearing before the Board of Prison Terms, there is no evidence such a hearing was requested. The purported failure to appoint two independent professionals to provide evaluations apparently refers to the examination of December 2008, which found defendant did not meet the criteria for continued commitment. Two professionals are required to support a petition but the petition here was not contemplated in December. And once Portnoff found that defendant did meet the criteria for continued commitment, a second report from Reed was obtained and supplied to the district attorney with the request to commence proceedings.
As to both the 180-day and the 30-day requirements, the code provides that exceptions may be made for “good cause.” It was not until January 8, 2009 that the stalking incident took place, which caused Portnoff to conclude that defendant now met the criteria for continued hospitalization. Thus the request for the filing of the petition could not have been issued any earlier than January. These facts constituted the “good cause” contemplated by the statute to excuse the failure to meet the 180-day requirement. Defense counsel’s inability to proceed with the trial on February 11 likewise constituted “good cause” for the continuance. All parties acted with due diligence and the combination of circumstances excused compliance with the 30-day requirement. The trial court did not abuse its discretion in finding good cause.
As the Attorney General points out, the 30-day time limit of section 2972, subdivision (a) is directory, not mandatory or jurisdictional. (People v. Tatum (2008) 161 Cal.App.4th 41, 56-57, disapproved on another ground in People v. Lara (Mar. 8, 2010, S155481) ___ Cal.4th ___ [2010 WL760464] p. *12, fn. 26; People v. Williams (1999) 77 Cal.App.4th 436, 451, 456.) There is no due process violation unless defendant was prejudiced and good cause was absent. (People v. Tatum, supra, 161 Cal.App.4th at p. 61.) It is only if the petition is not filed before the end of the commitment period that it must be dismissed. (People v. Allen (2007) 42 Cal.4th 91, 104.)
We disagree with defendant that this case is similar to People v. Tatum. There the district attorney delayed the filing of the petition some 167 days after having been notified that defendant met the criteria for commitment. Both the trial and appellate courts concluded that there was no good cause for this delay in the filing of the petition, a situation quite different from the one here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J.FYBEL, J.