Myers v. Superior Court of Kern Cnty.

• Decision Date: 23 May 2022
• Docket Number: F083570
• Citation: 78 Cal.App.5th 1127,294 Cal.Rptr.3d 338
• Parties: David Earl MYERS, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

78 Cal.App.5th 1127

294 Cal.Rptr.3d 338

David Earl MYERS, Petitioner,

v. The SUPERIOR COURT OF KERN COUNTY, Respondent;The People, Real Party in Interest.

F083570

Court of Appeal, Fifth District, California.

Filed May 23, 2022

Pam Singh and Peter Kang, Public Defenders, and Crystal N. Ratliff, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Kari Ricci Mueller and Melissa Lipon, Deputy Attorneys General, for Real Party in Interest.

OPINION

DETJEN, J.

INTRODUCTION

The Mentally Disordered Offender Act (MDO Act) ( Pen. Code,¹ § 2960 et seq. ) "authorizes the Board of Parole Hearings to involuntarily commit individuals convicted of certain felony offenses for mental health treatment as a condition of parole. [Citation.] Commitment as a mentally disordered offender (MDO) may continue even after an offender's parole term has expired, so long as the district attorney makes a showing that the MDO's mental disorder is not in remission and that the MDO, because of the disorder, represents a substantial danger of physical harm. [Citations.]" ( People v. Foster (2019) 7 Cal.5th 1202, 1205, 251 Cal.Rptr.3d 312, 447 P.3d 228.) If that showing is made, the MDO's involuntary commitment extends for one year. (§ 2972, subd. (c).) To make the required showing, the district attorney must file a petition with the superior court (§ 2970, subd. (b)) and must file it prior to the termination of the MDO's commitment (§ 2972, subd. (e); People v. Allen (2007) 42 Cal.4th 91, 104, 64 Cal.Rptr.3d 124, 164 P.3d 557 ( Allen )). The petition must be "accompanied by affidavits specifying that treatment ... has been continuously provided by the State Department of State Hospitals either in a state hospital or in an outpatient program." (§ 2970, subd. (b).) Once the petition is filed, trial must commence "no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the [MDO] or unless good cause is shown." (§ 2972, subd. (a)(2).) If the statutory deadline for commencing trial is not met, the trial court retains jurisdiction to try the matter. ( People v. Cobb (2010) 48 Cal.4th 243, 249-250, 106 Cal.Rptr.3d 230, 226 P.3d 340 ( Cobb ).) However, "when an extension trial does not begin before the scheduled release date," due process precludes "continued confinement" ( id. at p. 252, 106 Cal.Rptr.3d 230, 226 P.3d 340 ) and the MDO must be released from custody. If so released, the MDO is neither in the custody of the State Department of State Hospitals (SDSH) nor in an outpatient program.

Here, David Earl Myers was serving a one-year commitment that was due to expire October 15, 2020. The district attorney filed a petition to extend her² commitment for one year. Because the extension trial did not begin prior to Myers's scheduled release date on her commitment, Myers was released from SDSH's custody pursuant to Cobb .

Myers's extension trial subsequently began August 23, 2021. On August 31, 2021, the superior court found that she continued to meet MDO criteria, ordered her commitment extended for one year, and remanded her back into the custody of SDSH. At that point, Myers had been out of custody and not on outpatient status for over 10 months. She was thereafter in the custody of SDSH for less than seven weeks prior to October 15, 2021.

The pertinent question on appeal is when Myers's one-year extension on her commitment began. Myers argues that her extended commitment runs from the ending date of her previous commitment: October 15, 2020. The Attorney General argues that it runs from the date the trial court remanded Myers back into custody after finding she continued to be an MDO: August 31, 2021. The Attorney General contends Myers's release from custody pursuant to Cobb should not be credited toward her term of extended commitment just as time spent on outpatient status would not be credited under section 2972, subdivision (c). This — the Attorney General asserts — ensures that the new commitment consists of a full year of mental health treatment, thereby effectuating the purpose of the statute.

Based on the plain language of section 2972, subdivision (c), we agree with Myers. Section 2972, subdivision (c) states the commitment "shall be for a period of one year from the date of termination of ... [the] previous commitment." Although time spent on outpatient status is listed in that subdivision as time that "shall not be credited toward the [MDO's] ... term of extended commitment" (ibid. ), time spent out of custody and not on outpatient status, i.e., a release pursuant to Cobb , is not.

BACKGROUND

In 2001, Myers pled guilty to annoying or molesting a child under 18 years of age ( § 647.6, subd. (c)(1) ) and was committed to state prison. She was subsequently diagnosed with bipolar I disorder and pedophilic disorder and committed as an MDO. Myers received inpatient mental health treatment. Her commitment was set to expire on October 15, 2020. On September 8, 2020, the People filed a petition to extend her commitment. At the September 30, 2020 hearing, the superior court set trial for November 16, 2020.

On October 6, 2020, Myers moved for release pending trial, arguing that the extension petition was "filed so late as to render her unable to prepare for trial prior to the expiration of commitment." On October 16, 2020, citing Cobb , the superior court ordered Myers released from the custody of SDSH pending trial. During her release, which lasted until August 31, 2021, Myers "was not under the jurisdiction of [S]DSH"; "was not under the jurisdiction of [S]DSH's Conditional Outpatient Treatment Program (CONREP)"; and "was no longer a client of the [S]DSH system."

Trial by jury was waived. Myers's court trial began — after multiple continuances and time waivers — on August 23, 2021. On August 31, 2021, the superior court found Myers continued to meet MDO criteria and ordered her commitment extended for one year from October 15, 2020 to October 15, 2021.

On October 7, 2021, the People filed a motion asking the superior court to change the start and end dates of Myers's recommitment to August 31, 2021 and August 31, 2022, respectively. The People emphasized that, absent this modification and "contradictory to the legislative intent of the MDO statute," (1) Myers's time on Cobb release would essentially be credited toward her recommitment term; and (2) she would only be in the actual custody of SDSH from August 31, 2021, to October 15, 2021. A hearing was held on October 12, 2021. The court granted the People's motion on October 14, 2021. Noting the "unusual situation," the court determined that "the time period for which ... Ms. Myers was not in some type of custodial facility or under the direct control of the state in some fashion does not count against the People."³

On November 23, 2021, Myers filed in this court a "PETITION FOR WRIT OF MANDATE, PROHIBITION, OR OTHER APPROPRIATE RELIEF." (Boldface omitted.) She asked us to issue a writ directing the superior court to vacate the October 14, 2021 order on four grounds. First, that the People's motion was one for reconsideration and subject to Code of Civil Procedure section 1008, but the People failed to comply with the statute's procedural requirements.⁴ Second, that the court lacked jurisdiction to reconsider the August 31, 2021 order because the reconsideration motion was not timely filed. Third, that Myers did not receive adequate notice or due process. Fourth, that the plain language of section 2972, subdivision (c) did not permit the court to change the original dates of her recommitment.

In an "INFORMAL RESPONSE TO PETITION FOR WRIT OF MANDATE" (boldface omitted) filed on February 14, 2022, the Attorney General argued that the recommitment dates set forth in the August 31, 2021 order were erroneous and the court retained jurisdiction under Code of Civil Procedure section 473, subdivision (d) to correct them.^{5 ,6} The Attorney General contended:

"As to the statutorily-set dates, the [MDO] statute's purpose is to ensure that the new commitment result[s] in a year for treatment. The statute's text contemplates that new year will commence at the end of the prior commitment — because that text does not allow interruption between (1) a prior commitment and (2) the commencement of a new commitment. However, there has been a judicial determination that, as a matter of due process, literal terms of the text at times must not be followed — so a person is entitled to an interruption in treatment via release at [the] end of one commitment, pending trial on the new commitment. ( Cobb , supra , 48 Cal.4th at pp. 250-251, 252-253, 106 Cal.Rptr.3d 230, 226 P.3d 340.) Reconciling the statute's purpose with Cobb ’s judicial revision of the statutory text, the statute must require the new one-year commitment to commence on the date that would result in a new, one-year of treatment. Thus, when there has been the judicially-required interruption of custodial treatment prior to the new commitment, the statute's purpose requires that the new one-year commitment commence[s] on the day that custodial treatment resumes after interruption. [¶] ... [¶]

"Per the text, ‘The commitment shall be for a period of one year from the date of termination of ... a previous commitment ....’ ( § 2972, subd. (c) ). But it is understood that such language is construed according to the statutory purpose of ensuring a full year available for custodial treatment. For example, by statute, ‘time spent on outpatient status’ does ‘not count as actual custody,’ and thus does not count ‘toward the person's term of extended commitment.’ ( § 2972, subd. (c).) It thus has been recognized that a ‘petition does not need to be filed in order to extend an MDO's commitment unless the MDO has received a year of inpatient treatment.’ ( People v. Morris (2005) 126 Cal.App.4th 527, 544, 23

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