Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of San Bernardino County, Gilbert G. Ochoa, Judge. Petition denied. (Super. Ct. No. FVAFS700968).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Petitioner Daniel Lopez seeks a writ of mandate directing the superior court (1) to vacate its order denying his motion to dismiss the People‟s petition under Penal Code section 2970, and (2) to address the merits of his motion to dismiss.*fn1 The People‟s section 2970 petition sought to extend Lopez‟s commitment to a state hospital as a mentally disordered offender MDO for an additional year. Lopez‟s motion to dismiss the petition argued he was not an MDO because his underlying crime did not involve force or violence as required under section 2962. We deny Lopez‟s petition for a writ of mandate because his challenge to his original certification as an MDO is untimely.
On December 26, 2002, Lopez attempted to rob a laundromat patron. As the victim attempted to enter the laundry, Lopez approached him demanding "whatever change he had in his pocket." When the victim said he had no change "and to leave him alone," Lopez stated, "I know you got some change for me, give me your change." The victim replied, "I don‟t have change for you, I‟m going to do my laundry." Lopez stepped back. The victim entered the laundromat and prepared to wash his laundry. The victim then went out to his vehicle to get more laundry and his detergent.
When the victim reentered the laundromat, Lopez approached him "in a more threatening manner, standing very close to him, and demanded that he give him any money that he had in his pocket." The victim told Lopez to move out of the way and "leave him alone." Lopez said, "Give me your fucking money. I know you have money. Give me your chump change." The victim went back out to his vehicle to pick up other "necessities . . ., as well as his steering column locking device ("The Club‟)" for protection if necessary.
After the victim had been in the laundromat for several minutes, Lopez approached him from behind and entered into a "fighting stance directly in front of him within six inches of his face." Lopez demanded, "Give me all your money. I know you have money. Give me whatever money you have." Lopez "reached down into his front pocket." The victim, afraid that Lopez "might have a knife or a gun," hit him across the head with the Club.
Lopez ran outside. He was apprehended shortly thereafter, and police found a knife located in his right front pocket.
Lopez was read his rights under Miranda v. Arizona (1966) 384 U.S. 436. He stated, inter alia, the victim‟s "mere presence was offensive to him" and the victim had invaded his space and privacy. Lopez stated "he was a very spiritual person, and he could read thoughts and could get into [the victim‟s] mind, and he knew that [the victim] was just invading his privacy . . . ."
Lopez was charged with attempted second-degree robbery (§§ 664, 211), and carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)). He pleaded guilty to carrying a concealed dirk or dagger. The court sentenced him to 16 months in prison. Based on defendant‟s in-custody credits at the time, he was released directly to parole.
One month later, Lopez violated parole, was returned to custody, and was then released again. Two months after that, he again violated parole, was returned to custody, and was released a third time. This sequence recurred the following month and then the month after that, except this last time Lopez was kept in custody for a year, until September 2005. At that time, he was released on parole with the special condition that he participate in treatment with the Department of Mental Health pursuant to section 2962.
At an October 2005 certification hearing where Lopez was present with counsel, the Board of Parole Hearings*fn2 (the Board) found that Lopez met section 2962‟s criteria for an MDO, based in part on his December 26, 2002 possession of a concealed dirk or dagger.
In January 2006, Lopez filed a petition pursuant to section 2966, subdivision (b), requesting a trial to determine whether he met the MDO criteria. The next month, Lopez, who was represented by counsel, withdrew his petition without ...