Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 94WF0529, William Lee Evans, 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, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
In 1994, defendant Cau An Tran was charged with residential burglary, was found to be not guilty by reason of insanity and was ordered committed. Thereafter, the court extended defendant’s commitment 15 times until March 25, 2007. On April 10, 2007, the district attorney filed a petition to extend defendant’s commitment. The court denied defendant’s motion to dismiss the petition as untimely and concluded that good cause had been established to extend the time for filing the petition. After a hearing, the court extended defendant’s commitment to March 25, 2009. In his appeal defendant contends the court lacked jurisdiction to extend the commitment. In the alternative, he argues that, even if the court had jurisdiction, it erred in finding good cause for the late filing of the petition. We disagree and affirm the judgment
DISCUSSION
1. The statutory scheme
Penal Code section 1026.5, subdivision (a)(1) (all further statutory references are to this code) provides the time limit for commitment to a mental hospital for a person found to be not guilty by reason of insanity. Section 1026.5, subdivision (b) sets out the procedure to be employed to extend this time limit. It requires the director of the state hospital where the defendant is being treated to submit a recommendation to the prosecuting attorney “not later than 180 days prior to the termination of the maximum term of confinement . . . .” (§ 1026.5, subd. (b)(2).) The prosecutor may then file a petition to extend the commitment in the superior court where the original commitment order issued. “The petition shall be filed no later than 90 days before the expiration of the . . . commitment unless good cause is shown.” (Ibid.) The court is directed to then conduct a trial on the petition, which “shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, . . . unless good cause is shown.” (§ 1026.5, subd. (b)(4).)
2. The reasons for the delayed filing of the petition
Dr. Jasmine Wynn, a chief of forensic psychiatry at Metropolitan State Hospital, testified to the preparation of the report to the district attorney. The report was prepared on November 5, 2006 and submitted to the medical director on November 13. Wynn reviewed and approved the report on November 30; the medical director signed an affidavit on December 13. Normally, the affidavit and report are then forwarded to the “medical records/legal department,” from where they would be sent to the prosecutor. But here there was no record that the report was sent until sometime in April 2007.
Katrina Easton, a paralegal in the district attorney’s office, testified that defendant’s case was currently assigned to her. She contacted Metropolitan State Hospital on April 3, 2007, and spoke by telephone with Kathy Wright in the legal department regarding the petition. After Wright examined the file, she did not find anything regarding the petition. Wright promised to call back and when she had failed to do so, Easton again called her on April 4. Wright had found nothing further. The next day, Easton again called Wright and was told that she had “found a copy” of the petition. Easton requested copies of these documents, which did not arrive until mid-afternoon April 6, a Friday. Easton started to prepare the petition to extend the commitment but was unable to complete it that day. She was ill the following Monday and filed the petition when she returned to work on April 10.
The district attorney’s office has a “tickle system” that should have alerted it of the petition’s due date. Because another paralegal who had previously been responsible for defendant’s case had resigned, responsibility for the case had been transferred to Easton. The record is not entirely clear whether the “tickle system” failed or whether there was a mix-up resulting from the transfer of the case to Easton or some combination of such events.
3. Time requirements of section 1026.5 are not jurisdictional
In People v. Allen (2007) 42 Cal.4th 91, 95, our Supreme Court held that a petition to extend a commitment under the Mentally Disordered Offenders Act (§ 2960 et seq.) must be filed before the release date or the court loses jurisdiction. Defendant argues that this disposes of the case and establishes that, because the petition was not filed until after the release date, the trial court lacked jurisdiction. But, as the Attorney General points out, that statute does not have the “good cause” exception found in section 1026.5. And, as the court pointed out in People v. Allen, “[u]nless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory. [Citations.]” (People v. Allen, supra, 42 Cal.4th at p. 102.)
Defendant also relies on People v. Pacini (1981) 120 Cal.App.3d 877, 890-892, which held that a similar rule pertains to proceedings under the statute we are considering here. But that case was decided before the 1984 amendments to the statute that added the “good cause” exceptions to the time requirements. That change was enacted after our Supreme Court held in In re Moye (1978) 22 Cal.3d 457, 467 that the petition must be dismissed if not timely filed. And a number of subsequent cases have held that the time limits of the statute are not jurisdictional. (People v. Mitchell (2005) 127 Cal.App.4th 936, 943; People v. McCune (1995) 37 Cal.App.4th 686, 691; People v. Mord (1988) 197 Cal.App.3d 1090, 1108-1109, 1116-1117; People v. Minahen (1986) 179 Cal.App.3d 180, 189.)
Defendant attempts to distinguish these cases by noting that in both People v. Mitchell, supra, 127 Cal.App.4th at p. 943, and People v. McCune, supra, 37 Cal.App.4th at p. 691, the petitions, though late, were filed before the defendant’s commitment had expired. That may be true but the cases both hold that the time limits of section 1026.5 are not jurisdictional. And People v. Minahen, supra, 179 Cal.App.3d at p. 189, permitted the filing of a petition after the expiration of the defendant’s most recent commitment. There the delay was the result of the prosecutor’s error of law; but this does not detract from the holding in the case. Finally People v. Mord, supra, 197 Cal.App.3d at pp. 1108-1109, 1116-1117, also reaches the same result.
Defendant’s reliance on People v. Hill (1982) 134 Cal.App.3d 1055 is also misplaced. Again, the case was decided before the 1984 amendment permitting “good cause” exceptions to the time requirements of section 1026.5. And the court noted, “in reaching our conclusion here, we were not called upon to consider what type of ‘good cause,’ if any, might permit a hearing to be conducted even beyond the termination of a [defendant’s] initial period of confinement upon a petition filed prior thereto . . . .” (Id. at p. 1060.)
4. The record fails to establish whether the “good cause” exception applies
Based on the record before us, we cannot find there was no abuse of discretion in the trial court finding good cause for the delay in bringing the petition. Although the district attorney’s office had a procedure in place that should have alerted it time was running out on the filing of a petition, under the statutory scheme it is the responsibility of the director of the state hospital where the defendant is being treated to submit a recommendation to the prosecuting attorney. This was not done in a timely manner. The report had been prepared on time but, for reasons that were not explained, was not forwarded to the district attorney. Absent an explanation, we cannot evaluate the cause for the delay. We will therefore remand the case to the trial court to conduct a further hearing to determine whether there is an explanation for the failure to forward the report to the district attorney’s office and thereafter determine whether this constitutes good cause.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court to conduct further proceedings as described herein.
WE CONCUR: BEDSWORTH, J., MOORE, J.