Ct.App. 4/2 E040848 Riverside County Super. Ct. No. RIF091750 Judge: James A. Edwards*fn1
The opinion of the court was delivered by: Corrigan, J.
Filed 03/08/2010 (this opn. should follow lead companion case, S155481, also filed 3/8/10)
Having served his sentence for assault with a deadly weapon, defendant Roy Cobb, Jr. was committed in 2005 to a state hospital for treatment as a mentally disordered offender (MDO). After that commitment ended, a jury found that his condition persisted, and his commitment was extended in this proceeding.*fn2 On appeal, defendant contended he was denied due process because he remained confined while his extension trial was continued, without good cause, beyond his scheduled release date.
As we will explain, several issues presented here have been effectively resolved in the companion case, where they arose in the context of a commitment following a verdict of not guilty by reason of insanity (NGI). (See People v. Lara (Mar. 8, 2010, S155481) __ Cal.4th __ (Lara).)
This case differs from Lara, in that here the Court of Appeal held that the original finding that defendant was an MDO justified his confinement until the extension petition was tried, even if good cause was not shown for continuing his trial beyond his scheduled release date. It reasoned: "Essentially, there has already been a determination that the defendant is an MDO; at the trial, the prosecution simply must prove that the defendant is still an MDO."
The Court of Appeal erred. It failed to acknowledge that the critical question at an extension trial is an MDO's current condition. (§ 2972, subd. (c).)
I. FACTUAL AND PROCEDURAL BACKGROUND
A prisoner certified as an MDO is treated by the Department of Mental Health as a condition of parole. (§ 2962.) Unless good cause is shown, at least 180 days before parole is to end, the medical director of the state hospital "shall" inform the district attorney in writing if the parolee's "severe mental disorder is not in remission or cannot be kept in remission without treatment." (§ 2970.) The district attorney "may" then petition the superior court for another year of treatment. (Ibid.) The trial on the extension petition "shall" begin at least 30 calendar days before "the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown." (§ 2972, subd. (a) (section 2972(a).) If the patient is found to have a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and by reason thereof represents a substantial danger of physical harm to others, the patient shall be recommitted for one year. (§ 2972, subd. (c).)
Defendant's parole release date was May 27, 2006. The district attorney filed a petition for continued treatment on March 6, and the trial began on June 19. Thus trial did not begin 30 days before the release date, and defendant was held an additional 23 days before his trial did begin.
On April 24, 2006, defendant's counsel announced that she was ready for trial and asked to proceed "forthwith."
The People replied that the assigned deputy, Charles Kenyon, was unavailable because he was at an out-of-town conference. In addition, Kenyon had "three criminal trials set that should go before this matter. He's requesting the last week of May for this case."
Defense counsel objected to the continuance on both statutory and constitutional grounds. "[I]n order to be in compliance with Penal Code [section] 292, subdivision (a), he would have to proceed to trial by May the 24th, which given everything else that is going on with the Court's calendar, it's unlikely that the Court is going to be available on May the 24th, and we will have yet another MDO that has not gone to trial in an expeditious fashion."
When the court indicated its intention to continue the case to May 2, 2006, defense counsel elaborated on her objection. Defendant was in custody. Trying the extension petition after his current term expired would violate his rights to liberty, due process, and equal protection under both the state and federal Constitutions.
On May 2, defense counsel was again ready. The court said it would trail the case until May 4 because it was trying another case. Noting that the section 2972(a) 30-day deadline had already passed, defense counsel renewed her statutory and constitutional objections. The objections were overruled.
On May 4, the defense again announced ready. The deputy district attorney said that the treating physician was unavailable until June 9. Pointing out that defendant's term would have expired by that time, defense counsel objected to the continuance and moved to dismiss the extension petition. "This is a classic example of the ongoing problem with the district attorney's office," she argued. "They file these cases at the last minute, and then they're not able to proceed in a timely fashion as is required by [section 2972(a) and due process]." The court overruled the objection and denied the dismissal motion, finding good cause for the continuance: "Number one, this Court is in trial and has a priority criminal case coming at the conclusion of this trial. Plus the doctor is not available until June 9."
On May 26, defense counsel moved for defendant's release on bail because his parole term would expire the next day. Counsel argued that nothing in section 2972(a) authorized keeping defendant in ...