Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR993147
RUVOLO, P. J.
Jim Ray Williams (appellant) contends the trial court lacked jurisdiction to order an extension of his commitment as a Mentally Disordered Offender (MDO) because certain procedural requirements had not been met: the 180-day rule set forth in Penal Code section 2970 , and the 30-day rule of section 2972. We disagree, and affirm.
All further statutory references are to the California Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Appellant was initially convicted of criminal charges in 2000 and was subsequently adjudicated an MDO. Since his release from prison, appellant has been recommitted from year to year.
Following his recommitment hearing held in late July and early August 2007, the trial court issued its order on August 8, 2007, extending appellant’s commitment to Patton State Hospital (Patton or Patton State) to August 2, 2008, pursuant to section 2970 et seq. However, because appellant was not physically returned to Patton until sometime in November 2007, Patton was left with less than three months to evaluate appellant and issue its “written evaluation on remission” (recommitment report), which was due on February 4, 2008, in accordance with the 180-day rule specified in section 2970. On July 2, 2008, Patton issued its recommitment report (the 2008 recommitment report) recommending the continuation of appellant’s involuntary commitment.
The record is unclear regarding the exact date in November 2007 that appellant was returned to Patton.
According to the 2008 recommitment report, in early April 2008 appellant began exhibiting behavior evidencing his eligibility for recommitment. The following incidents are listed in support Patton’s recommendation:
April 4, 2008: Appellant was observed yelling at a peer and threatening to “slap [him] if [he] keep[s] laughing at [appellant].” Counseling was attempted, but appellant was very paranoid and delusional.
April 14, 2008: Appellant angrily told staff, “[y]ou people need to stop playing games.” When asked what this meant he stated “You’re a fucking idiot if you don’t know, bitch!” Appellant continued to make such comments under his breath as he was counseled, and soon after stated “[y]ou idiots... [y]ou will all see” as he passed by various staff members. Appellant was counseled again and stated “I’ll take your PRN [pro re nata or medicated as-needed] bitch! If you think you can give it.”
PRN is a term used to describe Patton’s policy of medicating patients to relieve acute distress.
June 2, 2008: Appellant refused to get up and out of his room for group therapy. Appellant continued to refuse biweekly sessions to discuss his Road to Recovery, stating “[t]here’s nothing to discuss. God gives me the answers. I do not need you people.”
“Road to Recovery” is a treatment plan which assists MDOs in working through their mental illness.
June 3, 2008: A registered nurse noted appellant was agitated and required PRN medication. Appellant stated “Fuck you bastards! Fuck you all! Fuck this nation! I’ll fuck you all up!” Appellant refused to leave his room for “Mall transition” and continued to escalate and curse staff. It was also noted that appellant had refused medication for over three months.
June 3, 2008: A psychiatrist noted that appellant “ha[d] been repeatedly belligerent, agitated..., noncompliant with treatment [and] threaten[ed] physical harm to staff. De-escalation techniques employed to no avail. Redirection done but failed.”
On July 2, 2008, Patton State’s acting medical director wrote a letter to the Humboldt County District Attorney recommending appellant’s commitment be extended pursuant to section 2970 et seq. (the 2008 recommitment report). The letter stated that a copy of a “recent staffing summary” was enclosed. The record shows that the 2008 recommitment report was stamped “received” by the Humboldt County District Attorney’s Office on July 7, 2008, well after the 180-day deadline. One week later, on July 14, 2008, the Humboldt County District Attorney filed a section 2970 petition to extend appellant’s commitment for another year.
Although the enclosure was described in the July 2, 2008 letter as a “recent staffing summary,” the record shows that the document detailing the incidents cited as support for the recommitment recommendation, which occurred between April and June 2008, are actually set forth in the June 20, 2008 “2970 Court Report” prepared by Dr. Marquez, a Patton State staff psychiatrist, and reviewed by James Pollard and Wadsworth Murad, program director and acting medical director, respectively, which appears to be the “staffing summary” enclosure referenced in the letter.
In early September 2008, appellant moved to dismiss the petition on the grounds that: (1) Patton’s acting medical director failed to submit the 2008 recommitment report 180 days before appellant’s scheduled August 2, 2008 release date as required by section 2970, and (2) appellant’s trial commenced less than 30 days prior to his release date as required by section 2972. The trial court denied the motion, finding good cause existed for the delays. In finding good cause the court stated:
“With respect to good cause for the late filing in this case... [the district attorney] did not receive the current renewal evaluation until, apparently, early July 2008.
“As to why Patton State Hospital did not forward that on an earlier date, I’m not certain. [Appellant] apparently was not returned to Patton State Hospital until November of 2007, extending the commitment. Possibly the staff at [Patton] felt that four months of treatment, that being from November of [20]07 until February 2008, would be insufficient to show that [appellant’s] condition is in remission and can be kept in remission.
“Given when the district attorney’s office received the report, renewal evaluation, I find good cause for the fact that it was filed, this petition was not filed until a few days later, apparently July 14th, 2008. The district attorney’s office did file this renewal petition within less than two weeks of receipt of the current evaluation from Patton State Hospital.
“With that time frame, I find good cause for the late filing. And for the reasons stated, primarily relying upon the rationale by the Court of Appeal in People [v.] Noble [(2002) 100 Cal.App.4th 184)], the Court at this time will deny the defenses motion to dismiss.”
Appellant was granted a two-week continuance to “adequately prepare the case for trial,” in light of the fact that appellant had just recently become available to counsel. The trial was called and preliminary matters were disposed of on September 22 and 23, 2008, with the substantive trial proceedings commencing on September 24, 2008, well after 30-day deadline.
On October 3, 2008, the trial court found the petition true and extended appellant’s commitment to August 2, 2009. This appeal followed.
II. DISCUSSION
Appellant seeks reversal of the trial court’s order extending his commitment pursuant to section 2970. Appellant contends the trial court abused its discretion in finding good cause to excuse the prosecution’s failure to comply with the 180-day deadline of section 2970 and 30-day deadline of section 2972, resulting in the violation of his due process rights.
A. Statutory Overview
“The MDO [Act] require[s] certain offenders who have been convicted of enumerated violent crimes to submit to continued treatment by the State Department of Mental Health as a condition of their parole....” (People v. Fernandez (1999) 70 Cal.App.4th 117, 125 (Fernandez), citing § 2962.) “Such a parole condition is required if a chief psychiatrist of the Department of Corrections certifies to the Board of Prison Terms... that the prisoner is a mentally disordered offender....” (People v. Kirkland (1994) 24 Cal.App.4th 891, 902 (Kirkland), citing § 2962, subd. (d).)
If the prisoner’s severe mental disorder is put into remission during the parole period, and can be kept in remission, the Department of Mental Health must discontinue treating the parolee. (Fernandez, supra, 70 Cal.App.4th at p. 126, citing § 2968.) If, however, the parolee’s severe mental disorder is not in remission at the end of the parole period or cannot be kept in remission without treatment, the MDO statutes provide procedures for extending the treatment for one year beyond the final parole termination date. (Fernandez, supra, at p. 125, citing § 2970.) Within the statutory scheme, sections 2970 and 2972 provide certain procedural deadlines.
Likewise, if the offender refuses to agree to treatment as a condition of parole, and thus remains in prison for the parole period, the state may seek involuntary treatment for one year after the offender’s scheduled release. (§ 2970; Kirkland, supra, 24 Cal.App.4th at p. 904.)
Section 2970 requires the officials in charge of an MDO whose mental disorder is not in remission, or cannot be kept in remission without treatment, to submit a “written evaluation on remission” (or recommitment report) to the district attorney “[n]ot 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..., unless good cause is shown for the reduction of that 180-day period....” (§ 2970.) The district attorney may then file a petition to continue involuntary treatment for an additional year. (Ibid.)
Section 2972, subdivision (a) provides that “[t]he trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless good cause is shown.” (§ 2792.)
We review the trial court’s finding of good cause for abuse of discretion. (Fernandez, supra, 70 Cal.App.4th at p. 133, citing Kirkland, supra, 24 Cal.App.4th at pp. 909, 915-916.)
“If there is no abuse of discretion, the ‘good cause’ finding stands and there is no statutory violation....” (People v. Tatum (2008) 161 Cal.App.4th 41, 56 (Tatum), citing Kirkland, supra, 24 Cal.App.4th at pp. 913, 916.) “Even if a statutory violation has occurred, proceedings on the petition may still move forward [absent a due process violation]. This is because, apart from the requirement that a petition be filed prior to the offender’s release date (§ 2972, subd. (e)), the statutory time limits contained in the MDO Act are not ‘mandatory’ or ‘jurisdictional,’ but ‘directory.’ [Citations.]” (Tatum, supra, at pp. 56-57.) It has been pointed out that because the fundamental purpose of the MDO provisions are to protect the public from dangerous MDOs, a rule that the court absolutely loses jurisdiction whenever either the 180-day or 30-day time limits are violated would not further that purpose. (Fernandez, supra, 70 Cal.App.4th 117, 129; People v. Williams (1999) 77 Cal.App.4th 436, 451, 454.)
B. Good Cause
1. 180-Day Rule
Here, the acting medical director at Patton State should have submitted the 2008 recommitment report to the district attorney by February 4, 2008. Instead, the report was sent on July 2, 2008, and the district attorney’s office did not receive it until July 7, 2008, well after the statutory deadline. However, the trial court implicitly found that there was good cause for the late submission when it inferred that “[p]ossibly the staff at [Patton] felt that four months of treatment, that being from November of [20]07 until February 2008, would be insufficient to show that [appellant’s] condition is in remission and can be kept in remission.”
We conclude that the trial court’s implicit finding of good cause to reduce the 180-day period to be supported by a fair inference. It was reasonable to infer that four months time would be insufficient to evaluate appellant, as opposed to the six months contemplated by the statutory scheme. In fact, Patton had less than three months to evaluate appellant, further supporting the court’s inference.
The trial court was mistaken in its determination that appellant was committed for four months prior to the 180-day deadline.
The circumstances here are analogous to Kirkland, supra, 24 Cal.App.4th 891. In Kirkland, the continued treatment proceeding was triggered by a deterioration in defendant’s condition which first appeared to mental health officials after the 180-day deadline. (Id. at p. 912.) Through analyzing section 1026.5, an “analogous section[],” the Kirkland court found good cause is present when “ ‘an unexpected and most marked change in [the MDO’s] condition’ ” occurs after the 180-day deadline. (Id. at pp. 910, 912.) In light of the unexpected and most marked change in the MDO’s condition, the court further found that mental health officials acted with due diligence in preparing the supporting documents and sending the necessary documentation to the district attorney within approximately 44 days of becoming aware of such a change. (Id. at p. 912.)
As in Kirkland, the 2008 recommitment report provided by Patton lists five different incidents spanning April 4, 2008, through June 3, 2008, all occurring after the 180-day deadline. Prior to the deadline, the record contains no evidence of any specific instances which would have put Patton on notice that appellant would present a substantial harm to others if released. Additionally, Patton acted with due diligence in preparing its recommitment report within 18 days of the latest cluster of incidents recorded in early July 2008, a time period considerably shorter than that in Kirkland. Thus, as in Kirkland, good cause has been shown in this case, and no statutory violation has occurred.
Consequently, the trial court did not err in denying appellant’s motion to dismiss as posited on those grounds.
2. 30-Day Rule
Under section 2972, subdivision (a), the recommitment trial in this case should have commenced by July 3, 2008, but did not begin until September 22, 2008, 51 days after the statutory deadline. Nevertheless, the trial court found good cause for the delay.
We conclude that the trial court did not abuse its discretion in finding good cause for the People’s failure to meet the 30-day day deadline. To begin with, it was factually impossible for the trial to have begun more than 30 days before appellant’s release date, because the district attorney received the 2008 recommitment report within the 30-day period. Thereafter, the district attorney’s office diligently prepared and filed the recommitment petition within one week of receiving the 2008 recommitment report. Neither Patton State nor the district attorney’s office was afforded the time frame contemplated by the statute. Therefore, it follows that the trial court’s reasonable inference that four months was an insufficient timeframe to evaluate appellant—excusing the 2008 recommitment report submitted after both the 180-day and 30-day deadlines—should reasonably extend to excuse the People’s failure to commence trial prior to the 30-day deadline. This inference is further bolstered by the fact that appellant was under Patton’s care for a mere three months or less.
Additionally, the situation at hand is again analogous to that in Kirkland. As discussed above, the Kirkland court found that “ ‘an unexpected and most marked change in [the MDO’s] condition after the deadline may constitute good cause.’ [Citation.]” (Kirkland, supra, 24 Cal.App.4th at p. 912.) In finding good cause for the People’s failure to meet the 30-day deadline, the court reasoned, “[a]s with the failure to meet the 180-day deadline, a major cause of the failure to meet the 30-day trial commencement deadline was the fact that defendant’s medical condition worsened relatively close to his release date. Thus, the prosecutors were playing ‘catch-up.’ ” (Id. at p. 914.)
Here, as in Kirkland, a major cause of the People’s failure to meet both the 180-day and 30-day deadlines in this case was the fact that appellant’s condition changed both markedly and unexpectedly relatively close to his release date. Because the district attorney received the 2008 recommitment report after the 30-day deadline, the “prosecutors were playing ‘catch-up.’ ” (Kirkland, supra, 24 Cal.App.4th at p. 914.) Additionally, in light of Patton’s late 2008 recommitment report submission and the district attorney’s prompt one-week turnaround in filing the section 2970 petition, the district attorney’s office acted with due diligence.
Thus, the circumstances justified the trial court’s finding of good cause for the delay. Therefore, no statutory violation occurred, and the trial court did not err in denying appellant’s motion to dismiss as posited on those grounds.
C. Due Process
With regard to due process claims resulting from the alleged untimely filing of an MDO petition, courts must first decide whether good cause exists to justify the delay. (See Kirkland, supra, 24 Cal.App.4th at p. 912; People v. Tatum, supra, 161 Cal.App.4th at p. 57.) If good cause is found, then there has been no statutory violation (Kirkland, supra, at p. 912)—i.e., the delay was within the contemplation of the statute, and appellant’s due process rights were not violated. (People v. Mitchell (2005) 127 Cal.App.4th 936, 943-944, citing In re Johns (1981) 119 Cal.App.3d 577, 581 [considerations of due process require inquiry into whether defendant was harmed by violation of statutory time requirements].)
Therefore, in this case because the trial court found good cause, no statutory violation occurred, and we need not consider appellant’s due process claim. However, in the interests of justice, courts often complete an evaluation of the applicable due process “test,” even though they are not legally compelled to do so.
We decline to follow the dictum in Tatum stating, “even when the statutory guidelines are complied with, it is still possible that a due process violation has occurred.” (Tatum, supra, 161 Cal.App.4th at p. 57; see, e.g., Fernandez, supra, 70 Cal.App.4th at p. 135 [reviewing for due process violation despite trial court’s valid finding of good cause for delay past 30-day deadline].) We do not find the inference compelling and see the good cause and due process evaluations as being exclusive. Furthermore, the fact that the Fernandez court applied the due process analysis with regard to the 180-day violation, and only mentioned it in passing with regard to the 30-day violation, further undermines this rationale.
Delay beyond the 30-day deadline is judged using “ ‘[t]he due process test utilized under both federal and state speedy trial decisions[, which] involves a balancing of any prejudicial effect of the delay against the justification for delay. [Citations.] Except where there has been an extended delay,... prejudice will not be presumed.... [I]t is incumbent upon the defendant to show circumstances of actual prejudice.... [Citation.]’ [Citations.]” (Kirkland, supra, 24 Cal.App.4th at p. 910.) “If the defendant fails to demonstrate prejudice, the court need not consider the reasons for the delay. [Citations.]” (Fernandez, supra, 70 Cal.App.4th at p. 131.)
Appellant and his counsel first met on September 6, 2008, and the actual substantive trial commenced on September 24, 2008, 18 days later. Appellant’s only specific claims of prejudice are that trial counsel: (1) received appellant’s mental health records only four days before trial, and (2) “had no opportunity to consult with a psychiatrist, to assess whether the trial transcripts from the prior commitment proceedings should be reviewed.” “However, ‘[t]he showing of actual prejudice[,] which the law requires[,] must be supported by particular facts and not... by bare conclusionary statements.’ [Citations.]” (Kirkland, supra, 24 Cal.App.4th at p. 914.)
Appellant mischaracterizes the claim of prejudice his counsel made at trial. Trial counsel made no connection between his assertion that he had inadequate time to assess whether or not transcripts from the prior recommitment trial proceedings would be appropriate and his claim that he did not have a sufficient opportunity to consult with a psychiatrist.
Initially, we note that appellant’s counsel was granted a two-week continuance to “adequately prepare the case for trial,” and no request was made for additional time. Indeed, at no time during trial did counsel state that he was unprepared or unable to proceed, and the record gives no indication that counsel was unprepared for witness examination or any other aspect of the trial. To the contrary, trial counsel exhibited a detailed familiarity with, and understanding of, appellant’s mental health records during cross-examination, which compels us to conclude that trial counsel had sufficient time to review the records, and to prepare to use them at trial.
Moreover, there is no indication in the record whatsoever that a pretrial consultation with a psychiatrist, or a more thorough review of the trial transcripts from prior proceedings, would have materially assisted trial counsel at trial, or would have led to a reasonable likelihood of a different result.
For all of these reasons, we conclude that even if appellant’s due process claim was legally tenable, it was factually unsupported.
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, J., RIVERA, J.