Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F390172, San Luis Obispo County, Jac Crawford, Judge
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jack Sobonya appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et. seq. Sobonya contends that the trial court erred when it dismissed his petition challenging his initial MDO commitment as untimely and moot, because a prior judge had erroneously advised him that there was no filing deadline.
All statutory references are to this code unless otherwise stated.
Facts and Procedural Background
Sobonya was convicted of crimes that included sexual molestation of children. He was sentenced to 17 years and 8 months in state prison.
On March 24, 2004, the Board of Prison Terms (BPT) certified Sobonya as an MDO. Sobonya filed in the superior court a timely petition for a hearing to determine whether he met the six criteria for MDO commitment, pursuant to section 2966, subdivision (b).
When the matter came on for trial, Sobonya voluntarily withdrew his petition "without prejudice" to re-filing. The trial judge told him, erroneously, that he could re-file the petition and that there was no deadline for doing so. The trial judge said, "If you wish, you may refile the petition, but that, of course, would mean a delay in having the issues decided; that's clear?" Sobonya asked, "Is there any deadline for that petition to be filed?" The trial judge answered, "No." Sobonya responded, "Okay. Thank you," and the trial judge said, "Very well then. I will find that the petitioner has freely, voluntarily, knowingly and intelligently withdrawn his petition." Sobonya was remanded to the state hospital for treatment.
The initial commitment expired on March 24, 2005. At annual review hearings in 2005 and 2006, Sobonya was recommitted and his treatment was extended.
On July 11, 2006, Sobonya filed another petition, again challenging his initial 2004 commitment. On March 8, 2007, a new trial judge heard the matter, and dismissed the petition as moot and untimely because it was filed after expiration of the initial commitment. The trial judge then deemed the petition a timely challenge to the current 2006 recommitment, pursuant to section 2966, subdivision (c), and set the matter for trial on the three criteria for recommitment.
Sobonya waived jury. The matter was submitted on the report of a psychiatrist. Based on that report, the trial court found that each of the three recommitment criteria had been met and denied the petition. Sobonya was remanded for continued treatment.
Discussion
A petition challenging an MDO commitment that is filed after the commitment period has expired is subject to dismissal on the ground of mootness. (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075.) Sobonya filed a timely petition, but withdrew it in reliance upon erroneous advice of the trial court. In these circumstances, we decide that the rule of Merfield does not apply. Sobonya may challenge all six of the commitment criteria although his commitment period has expired.
Six criteria are necessary for initial commitment as an MDO: (1) the prisoner has a severe mental disorder; (2) he committed a qualifying offense; (3) his severe mental disorder was a cause or aggravating factor in his commission of that offense; (4) the disorder is not being kept in remission or capable of being kept in remission with treatment; (5) he was treated for the disorder for at least 90 days in the year prior to parole; and (6) as a result of his disorder he represents a substantial danger of physical harm to others by reason of the disorder. (§ 2962.) The first three criteria concern past events that, once established, are incapable of change. (People v. Merfield, supra, 147 Cal.App.4th 1071, 1075.) The other three criteria must be re-established at each annual review hearing in order to continue involuntary commitment. (Ibid.; §§ 2970, 2972, subd. (c).)
The MDO "has but one opportunity to challenge the BPT's findings on the [first] three criteria concerning past events." (People v. Merfield, supra, 147 Cal.App.4th 1071, 1076.) He must do so before his initial commitment expires. (Ibid.) In Merfield, the appellant filed a timely first petition challenging his initial commitment, and then withdrew it "without prejudice" before trial. The trial court warned him that if he did not re-file before his annual review hearing, the petition would be moot. After Merfield's initial commitment expired and his commitment was twice extended, he filed another petition challenging the initial petition. We affirmed an order dismissing the petition.
In this case, Sobonya ceded his only opportunity to challenge the criteria concerning past events because the trial judge promised him he could re-file it at any time. The promise was illusory. Sobonya's position is similar to that of a defendant who has entered a plea based on an illusory promise of the trial judge, and is entitled to withdraw the plea. (People v. Hollins (1993) 15 Cal.App.4th 567, 575.) Sobonya must be afforded similar relief.
The doctrine of equitable estoppel applies to government actions where justice requires, but only if the result would not contravene the effective operation of a policy adopted by the Legislature for the benefit of the public. (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.) The traditional elements of estoppel are met in our case. The trial judge made a false statement of fact upon which Sobonya reasonably relied to his detriment. (Emma Corp. v. Inglewood Unified School Dist. (2004) 114 Cal.App.4th 1018, 1030.) We must therefore consider the effect of estoppel upon public policy.
The stated legislative policy underlying the MDO scheme is to provide severely mentally disordered prisoners "with an appropriate level of mental health treatment while in prison and when returned to the community." (§ 2960.) The MDO statutes impose involuntary treatment as a condition of parole only after professionals have determined that the parolee meets the six commitment criteria and the parolee has been given an opportunity to challenge that determination in a hearing before the BPT and in a hearing before the superior court. (§ 2966, subds. (a) & (b).) Effective operation of this statutory scheme will not be frustrated if we restore Sobonya's statutory right to challenge the commitment criteria.
The judgment is reversed and the case is remanded for a hearing on Sobonya's July 11, 2006, petition challenging all six commitment criteria.
We concur: GILBERT, P.J., YEGAN, J.