P. v. Artega

Filed 12/30/08 P. v. Artega CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury found that defendant Lorenzo Arteaga qualified as a mentally disordered offender (MDO) under Penal Code section 2972[1], and the court ordered him committed for one year to Atascadero State Hospital for involuntary treatment. Defendant appeals from the order. ( 1237, subd. 1 [order of commitment appealable]; People v. Somerset (1984) 159 Cal.App.3d 1124, 1126.) He claims the order is invalid because the trial court lacked jurisdiction to proceed on consolidated petitions for commitment and recommitment. We agree and reverse the judgment.

Background

On October 25, 1993, defendant was convicted of 11 counts of committing a lewd and lascivious act on a child under the age of 14. His prison term and parole period were set to expire on May 16, 2005. On May 10, 2005, the Department of Corrections certified defendant as an MDO, and, on May 16, 2005, the Santa Clara County District Attorney filed a petition under section 2970 to have him committed. Defendant repeatedly sought dismissal of the petition on the ground of untimeliness, but his motions and a petition for a writ of habeas corpus were denied.

Even though there had been no trial on the original petition, the district attorney filed a petition on June 2, 2006, to extend defendants commitment. On February 5, 2007, the District Attorney filed another petition to extend the commitment. Because none of the petitions had been adjudicated, the District Attorney filed a motion to consolidate them for trial. The trial court granted the motion. Trial commenced on May 11, 2007, and on May 17, 2007, the jury found that defendant qualified as a mentally disordered offender.

Discussion

Defendant contends that because his original prison term and parole period expired on May 16, 2005, the initial petition to commit him, which was filed on that date, was untimely, and therefore the trial court lacked jurisdiction to proceed on that petition as consolidated with the subsequent petitions. Defendant further contends that, even if the court had jurisdiction to proceed on the initial petition, a commitment based on that petition expired on May 16, 2006, and, therefore, the petition to extend the commitment filed on June 2, 2006, was untimely, and the court lacked jurisdiction to proceed on that and the subsequent petition filed on February 5, 2007.

In People v. Allen (2007) 42 Cal.4th 91, 95, the California Supreme Court held that the deadline to file a petition to extend the commitment of an MDO ( 2972, subd. (e))[2] is mandatory, that is, a recommitment petition must be filed before . . . the current commitment term ends. (Id. at p. 104, italics added.) The court further held that [t]he consequences for not complying with a mandatory requirement . . . is generally the invalidation of the ultimate government action. (Ibid.)

The Attorney General agrees with defendant that because the district attorney failed to file a recommitment petition before May 16, 2006i.e., the expiration date of a commitment based on the initial petitionappellant no longer falls within the jurisdiction of the Mentally Disordered Offenders Act. ( 2960 et seq.) Accordingly, the Attorney General concedes that the current commitment order is invalid and must be reversed. We agree. As noted, the first recommitment petition was filed on June 2, 2006, after expiration of any commitment based on the initial petition. Thus, the court lacked jurisdiction to proceed on the recommitment petitions and enter a commitment order.

Disposition

The order committing defendant as an MDO is reversed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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Bamattre-Manoukian, J.

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[1] All further unspecified statutory references are to the Penal Code.

[2] Section 2972, subdivision (e) provides, Prior to the termination of a commitment under this section, a petition for recommitment may be filed to determine whether the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and whether by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. The recommitment proceeding shall be conducted in accordance with the provisions of this section. (Italics added.)