P. v. Martinez
Filed 6/6/08 P. v. Martinez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. RICHARD MICHAEL MARTINEZ, Defendant and Appellant. | H032281 (Monterey County Super. Ct. No. SS972028) |
Defendant Richard Michael Martinez appeals from an order retroactively committing him to an indeterminate term of commitment (Welf. & Inst. Code, 6601.4, subd. (a))[1] as a sexually violent predator under the Sexually Violent Predator Act (SVPA) ( 6600 et seq.). Defendant was first committed to a two-year term on February 24, 2000, and his commitment was extended for additional two-year terms thereafter. In 2007, while a petition to extend defendants most recent term of commitment was pending, the People brought a motion to retroactively convert his first commitment on February 24, 2000, from a two-year term of commitment to an indeterminate term. This petition was brought pursuant to amended section 6604.1, subdivision (a), which provides that an indeterminate term begins on the date the court issues the initial order of commitment. The trial court granted the petition, and imposed the indeterminate term retroactive to February 24, 2000, without a trial on the pending petition to extend his most recent term of commitment.
On appeal, defendant contends: (1) the trial court lacked jurisdiction to modify a final judgment; (2) section 6604.1 does not permit retroactively changing commitment orders; (3) retroactively changing his two-year commitment to an indeterminate term is unconstitutional; and (4) indeterminate SVPA commitments are unconstitutional. Relying on People v. Whaley (2008) 160 Cal.App.4th 779 (Whaley) , the People correctly concede that the trial court violated defendants right to due process by converting his two-year term to an indeterminate term.
Defendant also argues that he is entitled to dismissal of the extension petition and his immediate release. As this court stated in Whaley, [i]n general, the only act that may deprive a court of jurisdiction is the Peoples failure to file a petition for recommitment before the expiration of the prior commitment. [Citations.] (Whaley, supra, 160 Cal.App.4th at p. 804.) Here, it is undisputed that the People filed a timely petition to extend defendants commitment. Accordingly, the matter must be remanded to the trial court for further proceedings on the petition to extend his commitment.
The order committing defendant for an indeterminate term is reversed.
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Mihara, J.
WE CONCUR:
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Rushing, P.J.
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Elia, J.
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[1] All further statutory references are to the Welfare and Institutions Code.
