Ct. App. 4/3 G040679 San Bernardino County Super. Ct. No. FVAFS700968. Judge: Gilbert G. Ochoa.
The opinion of the court was delivered by: Moreno, J.
Penal Code*fn1 section 2962 of the Mentally Disordered Offender (MDO) Act provides that individuals convicted of certain enumerated violent offenses caused or aggravated by a severe mental disorder, and who pose a substantial threat of harm to others, may be required to receive mental health treatment as a condition of parole. An MDO may challenge whether he or she "meets the criteria in Section 2962." (§ 2966, subd. (a).) If parole is extended, the MDO may challenge his or her continued commitment by alleging that he or she no longer suffers from a severe mental disorder that is not in remission, or no longer poses a risk of substantial harm. (§ 2966, subd. (c).) Once parole is terminated, if an MDO's mental disorder is not in remission and the individual represents a substantial danger of physical harm to others, the district attorney can petition to extend involuntary treatment for one year. (§ 2970.)
Daniel Lopez pled guilty to carrying a concealed dirk or dagger in violation of section 12020, subdivision (a)(4) and was placed on parole with the condition that he receive inpatient mental health treatment as an MDO under section 2962. Prior to the termination of his parole, the district attorney filed a petition under section 2970 to extend Lopez's involuntary treatment. Lopez moved to dismiss the extension petition on the grounds that his initial treatment was improper because his conviction for carrying a concealed dirk or dagger was not one of the offenses enumerated in section 2962. The trial court denied the motion to dismiss and, on Lopez's petition for mandate, the Court of Appeal affirmed, holding that Lopez's "challenge to his original certification as an MDO [was] untimely."
For the reasons that follow, we conclude Lopez could not properly challenge whether he committed an enumerated offense justifying his initial MDO commitment after the first year of that commitment.
On December 26, 2002, Lopez approached a patron at a laundromat and demanded the patron's loose change. The patron told Lopez he had no change and demanded that Lopez "leave him alone;" Lopez continued to badger the patron. The patron repeated that he had no change for Lopez and entered the laundromat to do his laundry. The patron later left the laundromat to get the remaining laundry and some detergent from his car. Lopez stopped the patron in the parking lot, approached him "in a more threatening manner . . . and demanded that he give him any money that he had in his pocket." Lopez said, "Give me your f[***]ing money. I know you have money. Give me your chump change." The patron did not give Lopez any money and moved past him to enter the laundromat.
The patron once more left the Laundromat to get additional items from his car, and also grabbed his steering wheel locking device, "The Club,"*fn2 to take back with him into the Laundromat for protection. A few minutes later, Lopez approached the patron from behind, crouched into a "fighting stance" six inches from the patron's face, and said, "Give me all your money. I know you have money. Give me whatever money you have." The patron observed Lopez reaching into his front pocket, and the patron hit Lopez with The Club, injuring him.
Lopez ran away, and the patron followed him briefly while another person called 911. The caller advised police that Lopez did not have any weapons. Lopez returned to the phone booth near the laundromat, and was found there several minutes later by the responding police officers. Officers approached Lopez with guns drawn, asked him if he had any weapons, and Lopez told them he had a knife in his pocket.
Police questioned Lopez at the scene. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, Lopez admitted that he had consumed four 40-ounce bottles of beer in the three and one-half hours preceding the altercation at the laundromat. Lopez told officers that the patron's "mere presence was offensive to him" and that the patron had invaded his space and privacy. Lopez explained that "he was a very spiritual person, and he could read thoughts and could get into [the patron's] mind, and he knew that [the patron] was just invading his privacy." Lopez told police that although he had a knife in his pocket, he did not brandish the weapon during his exchange with the patron. Police seized the knife following a pat down.
On December 30, 2002, Lopez was charged with attempted second degree robbery in violation of sections 664 and 211, and with carrying a concealed dirk or dagger in violation of section 12020, subdivision (a)(4). On April 6, 2004, Lopez pleaded guilty to carrying a concealed dirk or dagger and the attempted second degree robbery charge was dismissed.
Lopez was sentenced to 16 months in prison but was released directly to parole based upon the time he had already served and the credit he received for his work and good behavior while incarcerated. One month later, Lopez was returned to custody after violating parole, and then released again. Two months later he again violated parole, was returned to custody, and released a third time. This sequence recurred, and on his fourth return to custody he served 12 months and was again released in September 2005.
As a condition of release, Lopez was required to receive treatment from the Department of Mental Health pursuant to section 2962.*fn3 One month following this, on October 26, 2005, Lopez requested and received a certification hearing at which he was deemed to be an MDO by the Board of Parole Hearings.*fn4 Lopez and his counsel were present at the certification hearing. In January 2006, three months after his certification hearing, Lopez filed a petition pursuant to section 2966, subdivision (b),*fn5 requesting a hearing to determine whether he met the section 2962 criteria. One month later, Lopez withdrew his section 2966 petition, by his own designation, "[without] prejudice." Lopez did not file another section 2966 petition, and his inpatient MDO commitment was continued at his annual review hearing in October 2006, one year after the date of his certification hearing.
On June 18, 2007, eight months after the annual review hearing, the People filed a petition to extend Lopez's commitment pursuant to section 2970*fn6 for another year.*fn7 Lopez filed an amended motion to dismiss the section 2970 commitment extension petition on grounds of insufficient evidence. Specifically, Lopez contended that "the commitment offense for which [he] received a determinate sentence [was not] an enumerated offense pursuant to" section 2962, subdivision (e)*fn8 , and lacking this foundational criterion, continued commitment was improper.
The court denied Lopez's motion to dismiss, concluding that because Lopez had filed a petition pursuant to section 2966 and later withdrew that petition, he was precluded from raising issues that he could have, but did not, litigate via that petition. Lopez filed a petition in the Court of Appeal seeking a writ of mandate directing the trial court to ...