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APPEAL from the Superior Court of Riverside County. Dallas Scott Holmes, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Pamela Ratner Sobeck, Barry Carlton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Leo Nick Shady, Jr. (hereafter defendant), appealed the trial court’s order extending his commitment as a mentally disordered offender under Penal Code section 2970.[1] We reversed the order based on our conclusion that the delay that caused trial in the matter to be postponed until four months after his commitment expired was prejudicial. The Attorney General filed a petition for review of our decision with the California Supreme Court. The Supreme Court granted that petition and ordered the matter held pending its resolution of People v. Lara (2010) 48 Cal.4th 216 (Lara), and The Supreme Court decided both cases on March 8, 2010, and thereafter transferred this matter to us with directions to vacate our previous decision and reconsider the cause in light of the cited cases. We have complied with the Supreme Court’s direction and will affirm the judgment for reasons we explain below. FACTUAL AND PROCEDURAL BACKGROUND On November 9, 2006, the District Attorney of Riverside County filed a petition under section 2970 for continued involuntary treatment of defendant based on an evaluation from the medical director of Atascadero State Hospital dated November 7, 2006.[2] According to the allegations of the petition and the supporting affidavit, defendant was sentenced to state prison for a term of four years on May 7, 2002, after he was convicted of assault with force likely to produce great bodily injury in violation of section 245, subdivision (a)(1); while serving that sentence, the Department of Corrections transferred defendant from prison to Atascadero State Hospital, in accordance with section 2684;[3] defendant was found to meet the criteria for a mentally disordered offender (MDO) on March 6, 2004; “and his commitment was changed to Penal Code section 2962.” The petition further alleged that defendant has a mental disorder that is not in remission and cannot be kept in remission without treatment, and his involuntary treatment will expire on March 6, 2007. Following numerous continuances, defendant’s jury trial on the petition finally began on July 9, 2007. The jury found defendant met the criteria for continued commitment under the MDO statute. The trial court ordered defendant placed in an appropriate state mental facility. Defendant filed a timely appeal. DISCUSSION A. Statutory Time Limits The Supreme Court held in 2960 et seq., are not jurisdictional, when, without good cause or a time waiver, a trial to extend a defendant’s one-year commitment under that statute does not begin before the defendant’s scheduled release date, the defendant may be entitled to release pending trial. ( No other relief is available to the defendant when the statutory time limits for filing an extension petition or for commencing trial on that petition are violated. ( relief in this case based on violation of the statutory time limit within which to bring his matter to trial. Defendant concedes that under extending his MDO commitment based on delay in bringing the matter to trial. He contends however that the delay in this case resulted in another due process violation, namely that while he awaited trial in Riverside County on the petition to extend his commitment he did not receive the treatment that is the express statutory purpose for extending his confinement. The record on appeal reveals that defendant appeared in court on this matter on December 15, 2006. At that hearing defendant waived his right to be personally present at all further proceedings except trial. He also asked to be housed at Atascadero State Hospital pending trial. Defendant did not personally appear in court again until February 16, 2007. Despite the waiver, defendant was also present at the next court hearing on March 2, 2007, when the trial court apparently ordered that he be returned to Atascadero State Hospital pending trial. Defendant was not present at the next hearing on March 16, 2007, or the following hearing on March 29, 2007, although his attorney represented to the court that defendant was “still in the Riverside County Jail” because there was a “housing freeze at Atascadero State Hospital.” Defendant was in court for each hearing from May 22, 2007, through the completion of his trial. Because defendant did not appear in court for two months after his initial appearance and then appeared in court only once in March but not again until May 22, 2007, the record does not support defendant’s claim that he remained in Riverside County Jail from December 2006 through the completion of his trial in July 2007. Moreover, even if the record supported defendant’s assertion that he was housed continuously in county jail rather than at a state mental hospital, the record does not reveal whether defendant did or did not receive treatment while in county jail custody. According to the evidence presented at the trial on the recommitment petition, defendant suffers from schizophrenia, paranoid type. The treatment for that mental condition often consists solely of medication. Defendant could have received his medication and thus received treatment while housed in county jail. In short, the record on appeal simply does not include the facts necessary to resolve defendant’s claim that he was denied treatment while awaiting trial in this matter. Because we cannot determine from this record whether defendant received treatment in county jail, we cannot resolve the issue defendant raises on appeal. The claim is one better suited to resolution in a petition for writ of habeas corpus. B. Outpatient Placement In his original appeal, defendant argued that the trial court should have placed him in an outpatient program as it is authorized to do under section 2972, subdivision (d). We did not address this issue because we reversed the order extending defendant’s commitment as an MDO. Therefore, we address the issue here. Defendant contends the trial court was unaware of its discretion to release him for treatment in an outpatient program under section 2972, subdivision (d), which provides, in pertinent part, that, “A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis.” Defendant does not cite any evidence to show that he could safely and effectively be treated on an outpatient basis. Instead, he contends that the trial court was unaware of its authority to release defendant for treatment as an outpatient as evidenced by a discussion about whether the trial court had authority to place defendant in the “Anne Sippi Program.” The program in question apparently is a private residential treatment facility. The trial court’s confusion pertained to whether it could place defendant in a private hospital. The trial court did not at any time express interest in releasing defendant to an outpatient program, nor did defendant at any time request that he be released to such a program. In short, the record does not support defendant’s claim that the trial court was unaware of its discretion under section 2972, subdivision (d) to release defendant to an outpatient program. Moreover, defendant has failed to cite any evidence to show that he safely and effectively could be treated in such a program. For each of these reasons we must reject defendant’s claim regarding outpatient treatment. DISPOSITION The order extending defendant’s commitment as an MDO is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS /s/ McKinster J. We concur: /s/ Hollenhorst Acting P.J. /s/ Miller J. Publication courtesy of California free legal advice. Analysis and review provided by Carlsbad Property line Lawyers. San Diego Case Information provided by www.fearnotlaw.com id=ftn1> [1] All further statutory references are to the Penal Code unless indicated otherwise. id=ftn2> [2] The medical director’s request to file the petition, although purportedly attached to the affidavit of the deputy district attorney submitted in support of the petition, is not included in the record on appeal. What is included, under separate cover in a confidential clerk’s transcript, is a request dated September 7, 2007, to extend defendant’s involuntary treatment yet again, i.e., for a year beyond the year at issue in this appeal. id=ftn3> [3] Section 2684 provides a procedure for the Department of Corrections to transfer mentally ill, mentally deficient or insane prisoners to a state mental facility if after evaluation by “the director of the appropriate department” that director determines that the prisoner would benefit from such care and treatment. id=ftn4> [4] Lara, supra, addresses the same issue in the context of a defendant found not guilty by reason of insanity. (Lara, supra, 48 Cal.4th at p. 221.) |
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