Ct.App. 6 H028895 Santa Clara County Super. Ct. No. C9803113 Judge: Brian Walsh.
The opinion of the court was delivered by: Corrigan, J.
Filed 03/08/2010 (this opn. precedes companion case, S159410, also filed 3/8/10)
Defendant David Alan Lara was tried for false imprisonment of a child, found not guilty by reason of insanity (NGI), and committed to a state hospital. A petition to extend his commitment was filed so late that he did not have adequate time to prepare for trial before his term ended. There was no good cause for the late filing. His motion to dismiss the petition on due process grounds was denied, and he was recommitted.
We hold: (1) The statutory deadline for filing an extension petition is directory, not mandatory, so long as the petition is filed before the expiration of the current commitment. (2) Defendant was not entitled to a dismissal of this petition. (3) Upon motion, he would have been entitled, under due process, to release pending trial, subject to possible proceedings under the Lanterman-Petris-Short Act (LPS Act).*fn1 (4) Defendant is not now eligible for release, however, because the court retained jurisdiction to try him and he received a fair trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
A defendant found not guilty by reason of insanity is committed to a state hospital or other treatment facility, unless sanity has been fully restored.*fn2 If the court orders such a commitment, it is required to set a maximum term,*fn3 defined as the longest prison term that could have been imposed on the defendant.*fn4 Subdivision (a)(2) of section 1026.5 sets out the general rule that "[a] person may not be kept in actual custody longer than the maximum term of commitment, except as provided in subdivision (b)." (Italics added.)
Subdivision (a)(2) of section 1026.5 requires that the Board of Parole Hearings (formerly Board of Prison Terms) calculate the maximum term for defendants who committed a felony before July 1, 1977, and thus fell under the indeterminate sentencing law. The subdivision goes on to state, "The time limits of this section are not jurisdictional." (Italics added.)
Subdivision (b) of section 1026.5 sets out the exclusive procedures under which a commitment may be extended. A commitment may be extended only in felony cases and only when the defendant*fn5 "represents a substantial danger of physical harm to others" due to "a mental disease, defect, or disorder." (§ 1026.5(b)(1).) Various numbered paragraphs of subdivision (b) set out specific time limits within which actions "shall" be taken. At least 180 days before the current term ends the medical director "shall" provide the district attorney with an opinion as to whether the defendant's commitment should be extended. (§ 1026.5(b)(2).) The prosecution "may" then file for an extension of commitment. (Ibid.) Unless good cause is shown, the petition "shall" be filed at least 90 days before the commitment is to expire. (Ibid.) Unless good cause is shown, a trial on the petition "shall" begin at least 30 days before the existing commitment is due to end. (§ 1026.5(b)(4).) If the defendant is proven to currently represent a substantial danger as described in the statute, the court shall order a recommitment for an additional two years. (§ 1026.5(b)(8).) The defendant "may not be kept in actual custody longer than two years unless another extension of commitment is obtained in accordance with the provisions of this subdivision." (Ibid.)
In this case, the trial court found that defendant had falsely imprisoned a child at knifepoint (§§ 236, 237), but was not guilty by reason of insanity. The court set the maximum term at six years, based on the aggravated term of three years doubled because defendant had sustained a prior strike conviction. Based on that commitment defendant was due for release on October 15, 2004.
The medical director gave timely notice to the district attorney that defendant's commitment should be extended. However, the district attorney took no action until September 21, filing a petition for extension less than a month before defendant's scheduled release date. On September 29, defense counsel orally moved to dismiss the petition for failure to comply with the statutory 90-day filing deadline. "[T]o preserve the record," counsel asked for a trial date before October 15, but expressed concern that she could not be prepared by that time. "I have tried to reach Mr. Lara, and I have not even been able to speak to him." The prosecutor opposed the motion, but offered no explanation for the delay. The court took the matter under submission. On October 7, defendant moved in writing to dismiss for failure to comply with the statutory time limits, depriving him of due process.
At an October 12, 2004, hearing, defense counsel explained why she could not prepare for trial by October 15. Although she had received the extension petition on September 29, she was unable to contact defendant at the hospital until October 1, and could not meet with him until October 7. The return on her subpoena duces tecum for defendant's records was set for October 15. She had to review the records before deciding whether to seek an independent psychiatric evaluation. The prosecutor conceded that the delay in filing the extension petition was not excused by good cause,*fn6 and did not argue that the defense could reasonably be ready for trial before defendant's term expired. The trial court denied the dismissal motion, but made no finding whether defense counsel had adequate time to prepare for trial before defendant's scheduled release date.
On October 18, defendant filed for writs of habeas corpus, mandate and/or prohibition in the Court of Appeal. The petitions were denied on December 6,*fn7 and this court denied review on February 16, 2005.*fn8
On May 13, 2005, almost seven months after defendant's original commitment ended, a jury found that he represented a substantial danger of physical harm to others. The trial court extended his commitment for two years, running from the date his term originally was to expire.
On July 17, 2007, the Court of Appeal reversed, directing that the trial court grant defendant's motion to dismiss because he had been denied due process.
We reverse the judgment of the Court of Appeal. Defendant was not entitled to dismissal of the extension petition on due process grounds. Had he so moved, he would have been entitled to release pending trial on the petition, subject to possible LPS Act proceedings. However, no relief is available at this stage. The court retained jurisdiction to try the petition. The fact that defendant was not released did not affect the validity of the extension order.*fn9
A. The Statutory Deadlines Are Directory
Defendant contends that the statutory deadlines were mandatory, and because they were not met, the court lost jurisdiction to try the case. This argument fails.
People v. Williams (1999) 77 Cal.App.4th 436 (Williams) is one of many cases that have grappled with the question of whether a failure to meet a statutory deadline deprives a court of jurisdiction. It explained that the concept of jurisdiction can be used in somewhat differing ways.
"When courts use the phrase `lack of jurisdiction,' they are usually referring to one of two different concepts, although, as one court has observed, the distinction between them is `hazy.' (People v. Mendez (1991) 234 Cal.App.3d 1773, 1781.)" (People v. Williams, supra, 77 Cal.App.4th 436, 447.) A lack of jurisdiction in its fundamental or strict sense results in "`an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack ` "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.' (Ibid.) When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction." (Ibid.; see generally, 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, §§ 1, 285, pp. 575-576, 891-892.)
The distinction is important because the remedies are different. "[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent. Rather, an act beyond a court's jurisdiction in the fundamental sense is null and void" ab initio. (Williams, supra, 77 Cal.App.4th at p. 447.) "Therefore, a claim based on a lack of [ ] fundamental jurisdiction[ ] may be raised for the first time on appeal. (People v. Chadd (1981) 28 Cal.3d 739, 757.) `In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]' (People v. Ruiz (1990) 217 Cal.App.3d , 584; In re Andres G. (1998) 64 Cal.App.4th 476, 482.)" (Ibid.; see, e.g., People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661.)
Whether the failure to follow a statute makes subsequent action void or merely voidable "`has been characterized as a question of whether the statute should be accorded "mandatory" or "directory" effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory.' (People v. McGee (1977) ...