People v. Allen

• Decision Date: 08 February 2006
• Docket Number: No. H027835.,H027835.
• Citation: 136 Cal.App.4th 644,39 Cal.Rptr.3d 92
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gregory Sean ALLEN, Defendant and Appellant.

39 Cal.Rptr.3d 92

136 Cal.App.4th 644

The PEOPLE, Plaintiff and Respondent, v. Gregory Sean ALLEN, Defendant and Appellant.

No. H027835.

Court of Appeal, Sixth District.

February 8, 2006.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Ralph Sivilla, Deputy Attorney General, Attorneys for Respondent.

Michael Kresser, Under Appointment by the Sixth District, Appellate Program, Santa Clara, Attorney for Appellant.

MIHARA, J.

Defendant Gregory Sean Allen challenges the trial court's August 2004 order purportedly extending from October 14, 2003 to October 14, 2004 his commitment as a mentally disordered offender (MDO). Allen claims that the trial court lacked jurisdiction to issue this order because no petition was filed seeking an extension of his commitment prior to the termination of his prior commitment. He alternatively claims that his right to due process was violated by extension of his commitment based on an untimely petition. We conclude that the statutory requirement that a petition be filed prior to the termination of an MDO commitment is a mandatory requirement with the consequence of dismissal for its violation. As this requirement was indisputably violated here over Allen's repeated objections, we are compelled to reverse the commitment order with directions to dismiss the petition.

I. Background

In 1994, Allen was convicted of sexual battery (Pen.Code, § 243.4, subd. (a)) and committed to state prison for a two-year term. He was committed to Atascadero State Hospital in 1997 for treatment during his parole period under Penal Code section 2962. Before the expiration of that commitment on October 12, 2000, a petition was filed seeking a one-year extension of his commitment as an MDO pursuant to Penal Code section 2970. In August 2000, the court issued an order extending his commitment to October 14, 2001. In June 2001, a petition was filed seeking another one-year extension of his commitment. In August 2001, the court issued an order extending his commitment to October 14, 2002. In August 2002, a petition was filed seeking another one-year extension of his commitment. That same month the court issued an order extending his commitment to October 14, 2003.

In April 2003, the medical director of Napa State Hospital, where Allen was then being held, sent a letter to the prosecutor recommending that a petition be filed seeking the extension of Allen's commitment. However, no new petition was filed in 2003, and Allen's MDO commitment terminated on October 14, 2003. On January 15, 2004, Allen, who was still being held at Napa State Hospital, filed a petition for a writ of habeas corpus. He asserted that the absence of a new petition prior to the termination of his prior commitment deprived the court of jurisdiction to extend his commitment.

On January 21, 2004, a petition was filed seeking an "an order extending" Allen's commitment "for one year." The petition stated that Allen's commitment "is set to expire on October 14, 2003." (Original emphasis.) On January 26, 2004, Allen filed a motion to dismiss the petition. He asserted that the failure to file the petition prior to the termination of his commitment deprived the court of jurisdiction and denied him due process. Allen claimed that, even if the court had jurisdiction, the prosecutor had failed to show "good cause" for the belated filing. In response, the prosecutor asserted that he was not required to show "good cause" for the belated filing of the petition because Allen had suffered no "actual prejudice."

On February 27, 2004, the court denied both Allen's habeas petition and his motion to dismiss the extension petition. In June 2004, a petition was filed seeking an extension of Allen's commitment from October 14, 2004 to October 14, 2005. This petition asserted that Allen's "commitment is set to expire on October 14, 2004." On August 3, 2004, the court issued an order extending Allen's commitment from October 14, 2003 to October 14, 2004. Allen filed a timely notice of appeal.

II. Analysis

Up until 2003, the treatment of Allen as an MDO proceeded in accordance with the statutory scheme. He was initially committed in 1997 for treatment during his parole period pursuant to Penal Code section 2962. Before that commitment terminated in 2000, an initial petition under Penal Code section 2970 was filed to extend his commitment for another year and his commitment was extended. In 2001 and again in 2002, a petition was filed and an order was issued extending his commitment for an additional one-year period well in advance of the termination of the previous commitment period. His 2002 commitment terminated on October 14, 2003 without any new petition being filed to extend his commitment. It was only after Allen sought habeas corpus relief three months later that the prosecutor filed a petition to extend Allen's commitment. Allen objected to this untimely petition by means of a motion to dismiss in the trial court and, after that was denied, a petition for writ relief in this court. Nevertheless, the petition proceeded to trial, and the trial court issued an order extending Allen's commitment.

Allen claims that his dismissal motion should have been granted because the trial court lacked jurisdiction to proceed on an untimely petition. He contends that the untimeliness of the petition invalidates the commitment order. Alternatively, he maintains that his due process rights were violated by the untimely filing of the petition.

The authority of a court to commit a person as an MDO or to extend a person's MDO commitment derives solely from the statutes enacted by the Legislature governing MDO commitments. "The commitment procedures set up by the subject statute are in the nature of special civil proceedings unknown to the common law. . . . Being a creature of statute, jurisdiction to enter an order of commitment pursuant thereto depends on strict compliance with each of the specific statutory prerequisites for maintenance of the proceeding." (In re Raner (1963) 59 Cal.2d 635, 639, 30 Cal.Rptr. 814, 381 P.2d 638, internal quotation marks and citation omitted, original emphasis deleted.)

The statutorily authorized procedure for extending an MDO commitment begins when the medical director of the state hospital at which the person is being treated sends a written evaluation to the prosecutor "[n]ot later than 180 days prior to" the termination of the commitment "unless good cause is shown for the reduction of that 180-day period." (Pen.Code, § 2970.) After receiving the evaluation, "[t]he district attorney may then file a petition with the superior court for continued involuntary treatment for one year." (Pen.Code, § 2970.) "Prior to the termination of a commitment under this section, a petition for recommitment may be filed. . . ." (Pen.Code, § 2972, subd. (e).) "The trial shall 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 person or unless good cause is shown." (Pen.Code, § 2972, subd. (a).)

Although these statutes provide for the good-cause excusal of the 180-day time limit and the 30-day time limit, they provide for no such excusal of the requirement that an extension petition be filed "[p]rior to the termination of a commitment." (Pen.Code, § 2972, subd. (e).) This requirement was indisputably violated when the prosecutor filed the extension petition more than three months after the termination of Allen's 2002 commitment. The question that we must address is what the consequence is of the prosecutor's violation of this statutory requirement.

Allen argues that the consequence of this statutory violation is that the order extending his commitment is invalid. The consequence of the violation depends on whether this time limit should be deemed a "mandatory" or a "directory" requirement.¹ "If the failure to comply with a particular procedural step does not invalidate the action ultimately taken . . . the procedural requirement is referred to as `directory.' If, on the other hand, it is concluded that noncompliance does invalidate subsequent action, the requirement is deemed `mandatory.'" (Edwards v. Steele (1979) 25 Cal.3d 406, 410, 158 Cal.Rptr. 662, 599 P.2d 1365.) "[T]he `directory' or `mandatory' designation does not refer to whether a particular statutory requirement is `permissive' or `obligatory,' but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates." (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.) Thus, Allen's argument will succeed only if this statutory requirement is deemed mandatory rather than directory.

"[I]n evaluating whether a provision is to be accorded mandatory or directory effect, courts look to the purpose of the procedural requirement to determine whether invalidation is necessary to promote the statutory design." (People v. McGee (1977) 19 Cal.3d 948, 958, 140 Cal.Rptr. 657, 568 P.2d 382.) "[G]enerally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed." (Edwards v. Steele, supra, 25 Cal.3d at p. 410, 158 Cal.Rptr. 662, 599 P.2d 1365.) "The intent to divest the court of jurisdiction by time requirements is not read into the statute unless that result is expressly provided or otherwise clearly intended." (Garrison v. Rourke (1948) 32 Cal.2d 430, 435, 196 P.2d 884.)

"In order to determine whether a particular statutory provision as to time is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the...