(Super. Ct. No. 99F02522)
The opinion of the court was delivered by: Hull , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Roland Gonzales appeals from an order of the trial court extending his mental health commitment for two years, from October 10, 2010 to October 10, 2012, pursuant to Penal Code section 1026.5, subdivision (b). (Further undesignated section references are to the Penal Code.) Defendant contends the extension order is procedurally and substantively flawed, because (1) there was no extension petition before the court at the time of the order, (2) the court failed to conduct a hearing on the extension, and (3) there is insufficient evidence to support the order. We reject each of defendant's contentions and affirm the order.
On November 12, 1999, defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and entered a plea of not guilty by reason of insanity. The trial court ordered defendant committed to Atascadero State Hospital for the maximum term of eight years (cf. § 1026.5, subd. (a)(1)).
Defendant's initial term of commitment was set to expire on October 10, 2008. On July 23, 2008, the prosecutor filed a petition for extension of defendant's commitment pursuant to section 1026.5, subdivision (b) (the 2008 petition). As described more fully below, that subdivision permits extension of an initial commitment for successive periods of two years where a defendant continues to represent a substantial danger of physical harm to others due to his mental disease, defect or disorder.
On August 15, 2008, the trial court calendared the 2008 petition for hearing. However, because of repeated continuances not relevant to the matter before us, the hearing did not take place until April 13, 2010.
On or about March 22, 2010, 22 days before the hearing on the 2008 petition, the prosecutor filed a new petition for extension of commitment (the 2010 petition), seeking extension of defendant's commitment through October 10, 2012. The 2010 petition alleged defendant continues to suffer from a mental disease, defect or disorder that poses a substantial danger of physical harm to others. It also requested that the matter be heard concurrently with the 2008 petition.
After hearing evidence on April 13 and 15, the trial court issued an order granting the 2008 petition and extending defendant's commitment through October 10, 2010. Inexplicably, a footnote to that order states: "The parties have reserved the court's jurisdiction to determine whether the two-year commitment is measured from the petition, the date of the court's determination, or, two years beyond the present commitment."
On August 27, 2010, the trial court issued the following minute order: "DDA Satnam Rattu present. CAC Robert Saria and respondent's appearance waived. [¶] Defense counsel submitted the matter. Pursuant to stipulation of counsel Petition for Extended Commitment pursuant to  Section 1026.5 is hereby granted. It is ordered that [defendant's] commitment to Department of Mental Health be extended for two (2) years effective October 10, 2010. [¶] Maximum commitment date October 10, 2012. [¶] Commitment order signed this date by the Court." The same day, the court signed an "Order Extending Commitment to the Department of Mental Health," extending defendant's commitment through October 10, 2012.
Defendant appeals from the August 27, 2010, order.
The original clerk's transcript on appeal did not contain the 2010 petition. Defendant moved to augment the record, seeking among other things "[t]he 2010 petition for extension of commitment and supporting affidavits that is the subject of the August 27, 2010 order appealed from." We granted the motion. In response, the Sacramento County Superior Court Clerk submitted a declaration asserting: ...