Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of San Bernardino County, Robert J. Lemkau, Judge. Petition granted. Writ issued. (Super. Ct. No. FELSS900353).
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Petitioner Felicia Blakely challenges the determination of the Board of Parole Hearings (Board) that she is a mentally disordered offender (MDO). (See Pen. Code, § 2960 et seq.; MDO Act.)*fn1 She contends the California Department of Corrections and Rehabilitation (CDCR) violated the mandatory deadline for MDO evaluations and certification: i.e., "[p]rior to release on parole . . . ." (§ 2962, subd. (d)(1).)
We agree. Parallel language in the MDO Act - "`Prior to the termination of a commitment'" - sets a mandatory deadline for filing recommitment petitions. (People v. Allen (2007) 42 Cal.4th 91, 102 (Allen).) The phrase "Prior to release on parole" should be read similarly. (§ 2962, subd. (d)(1).) Petitioner's MDO evaluations and certification occurred while she was still in custody, but after her parole release date. The Board's MDO determination was based on these untimely acts and thus must be "`invalidat[ed].'" (Allen, at p. 102.) We note, however, mentally disordered persons may receive custodial treatment pursuant to other statutes.
Petitioner was granted probation in January 2008 after pleading guilty to resisting a police officer and misdemeanor vandalism. Her probation conditions required her to seek psychiatric treatment and "comply with all mental health professionals." The court later revoked petitioner's probation and sentenced her to 16 months in state prison.
Petitioner was incarcerated in state prison on September 3, 2008. The next day, CDCR calculated petitioner should be released on parole due to various custody credits on September 3, 2008 - the same day she was incarcerated. Petitioner was not released.
While petitioner was still in custody, prison psychologists gave mental health evaluations to her on September 8 and 9, 2008. Also on September 9, CDCR performed a "file audit" that confirmed petitioner should have been released on parole on September 3.
On September 10, 2008, a CDCR chief psychiatrist certified to the Board that petitioner met the MDO commitment criteria. (See § 2962, subd. (d)(1).) That same day, the Board held a parole hearing. It released petitioner on parole for three years effective September 3, 2008, with the condition she receive MDO treatment from the California Department of Mental Health. Petitioner was transported to Patton State Hospital the next day.
The Board held another hearing in October 2008, at which it determined petitioner met the MDO criteria. (See § 2966, subd. (a).) It rejected petitioner's objection that she was evaluated and certified after her parole date.
In January 2009 petitioner filed a trial court petition challenging the Board's MDO determination. (See § 2966, subd. (b).) She later filed a "motion in limine to grant petition," asserting she could not be certified as an MDO after her parole date. The court denied the motion after an April 2009 hearing. It excused the untimeliness of the psychological evaluations and MDO certification as "`good faith'" errors due to the uncertainty concerning her custody credits.