People v. Fernandez

• Decision Date: 22 February 1999
• Docket Number: No. H017604,H017604
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 1367, 1999 Daily Journal D.A.R. 1696 The PEOPLE, Plaintiff and Respondent, v. Mario Nolasco FERNANDEZ, Defendant and Appellant.

Page 469

82 Cal.Rptr.2d 469

70 Cal.App.4th 117, 99 Cal. Daily Op. Serv. 1367,

1999 Daily Journal D.A.R. 1696

The PEOPLE, Plaintiff and Respondent, v. Mario Nolasco FERNANDEZ, Defendant and Appellant.

No. H017604.

Court of Appeal, Sixth District, California.

Feb. 22, 1999.

Review Denied May 19, 1999.

Michael A. Kresser, Exec. Director Sixth Dist. Appellate Program; Paul Bernstein, under appointment by the Court of Appeal for Defendant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Sr., Assistant Attorney General, Ronald E. Niver, Supervising Deputy Attorney General, Amy Haddix, Deputy Attorney General, for respondent.

COTTLE, P.J.

Defendant Mario Nolasco Fernandez appeals from the order extending his commitment as a mentally disordered offender (MDO) pursuant to section 2970 of the Penal Code. ¹ He contends that the violation of certain time limits set forth in sections 2970 and 2972 resulted in an invalid extension of his commitment. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Offense

On October 31, 1991, defendant pled guilty to one count of lewd and lascivious conduct upon a child (§ 288, subd. (a)), with enhancements under section 1203.066, subdivisions

(a)(8)(substantial sexual conduct with victim under 11) and (a)(9)(substantial sexual conduct and position of special trust with victim). Defendant was 20 years old at the time of the offense, and the victim was his seven-year-old sister. ²

B. Sentencing, Custody and Parole

On December 3, 1991, defendant was sentenced to a term of three years, with a recommended placement at California Youth Authority (CYA). CYA rejected him and recommended placement at a 24-hour psychiatric medical facility. Defendant was sent to San Quentin for processing and later to California Men's Colony, San Luis Obispo.

On October 23, 1993, defendant was paroled. He was arrested on a parole violation on December 11, 1995, and subsequently released. On June 24, 1996, defendant was again arrested on a parole violation. On June 27, 1996, defendant agreed to serve 11 months in state prison. Defendant was received at San Quentin on July 11, 1996.

C. Evaluation of Defendant

Between March and May of 1997, defendant was evaluated by the Department of Corrections and the Department of Mental Health pursuant to section 2962, to determine whether he should be certified as an MDO. Due to a disagreement between evaluators, defendant was not certified as an MDO until May 7, 1997. On May 20, 1997, defendant was paroled and transferred to Atascadero State Hospital for treatment.

Defendant requested a hearing before the Board of Prison Terms pursuant to section 2966 to contest his certification. Additional medical evaluations were conducted, and on July 25, 1997, the Board of Prison Terms affirmed defendant's commitment. On July 30, 1997, the medical director at Atascadero State Hospital issued a letter opining that defendant was an MDO within the meaning of section 2970, and recommending to the district attorney that defendant's commitment be extended for one year beyond his original parole termination date of September 18, 1997.

D. Section 2970 Petition

On August 1, 1997, the district attorney filed a petition, pursuant to section 2970, to extend defendant's commitment for one year. On August 12, 1997, the district attorney filed a second petition pursuant to section 2970, alleging essentially the same facts. The petition identified defendant's parole termination date as September 18, 1997. Also on August 12, 1997, the district attorney filed an order to produce defendant. On August 13, 1997, the court consolidated the petitions, and appointed the public defender to represent defendant.

On August 26, 1997, defendant was transferred from Atascadero State Hospital to the Santa Clara County Jail. On August 27, 1997, the public defender appeared and requested a one-week continuance to consult with defendant. On September 3, 1997, defendant requested a trial date, which was set for September 8, 1997. On September 8, 1997, the case was assigned to a courtroom for trial on September 11, 1997.

E. The Trial on the Section 2970 Petition

On September 11, 1997, the case was called for trial. Defendant waived his right to a jury trial and the deputy district attorney stated that she was ready to proceed. Defense counsel gave notice of her intention to file a motion to dismiss the petition, and requested a continuance to file written materials in support of the motion. The court deemed the trial to have commenced as of September 11, deemed the motion to dismiss a motion in limine, and continued the matter until September 16, 1997, to allow defense counsel to file a written brief regarding the motion. The district attorney was given until September 18, 1997, to file a response. The court set a hearing date for the motion to dismiss on September 22, 1997.

On September 22, 1997, the motion to dismiss was heard. Defendant argued that the petition should be dismissed because the prosecution had failed to meet statutory provisions requiring (1) issuance of the medical director's letter requesting the section 2970 extended commitment not later than 180 days before defendant's parole termination date, and (2) commencement of trial no later than 30 days before defendant's parole termination date. The motion was argued and submitted.

On September 25, 1997, the court ruled on the motion, holding that the 180-day and 30-day time limits were not mandatory but directory, and stating: "This means that a violation will not result in an immediate dismissal and in fact will not result in a dismissal unless there is a showing that defendant's due process rights have been violated." Although the court found no good cause for noncompliance with the 180-day rule, the court found that defendant's due process rights had not been violated. As to the 30-day rule for commencement of trial, the court found that there was good cause for the failure to commence the trial 30 days before defendant's scheduled release, because the district attorney had filed the petition immediately upon receiving the late evaluation from the Department of Mental Health. The court therefore denied defendant's motion to dismiss the petition, and determined that evidence on the section 2970 petition would be heard on September 30, 1997.

On September 30, 1997, the court heard the testimony of witnesses, including a clinical psychologist and the defendant, regarding defendant's mental condition for purposes of the section 2970 petition.

Dr. William Safarjan, a clinical psychologist at Atascadero State Hospital, testified at trial. Dr. Safarjan had interviewed defendant twice at Atascadero, and reviewed defendant's records from Atascadero and the Department of Corrections. Dr. Safarjan opined that defendant suffered from schizophrenia, a severe mental disorder, and from paraphilia, a "preoccupation with sexual thoughts or acting out which interferes with functioning." He further opined that defendant exhibited borderline intellectual functioning and a polysubstance abuse problem, including use of cannabis and cocaine.

Regarding the diagnosis of schizophrenia, Dr. Safarjan testified that defendant experienced visual, auditory, and tactile hallucinations. According to Dr. Safarjan, defendant believed that bugs and small animals were crawling on his body, and had delusions that he was under the control of rodents. ³

Regarding paraphilia, Dr. Safarjan testified that defendant had sexual urges beyond the normal range. Defendant admitted sexual contacts with children during his late teenage and adult years. In Dr. Safarjan's opinion, defendant was not necessarily attracted to children, but rather saw them as available targets who would not report him. Defendant suggested that his relationship with the rat had a sexual component that could trigger arousal. Defendant specifically told Dr. Safarjan that the voices had told him to have intercourse with his sister. Defendant further admitted having sexual urges while incarcerated, leading to at least one sexual relationship with a male patient. Defendant indicated his belief that his sexual activities would make his future wife's skin smooth.

Dr. Safarjan described much of defendant's discourse as "tangential" and difficult to understand. Defendant seemed to suggest that he had had several past lives. In Dr. Safarjan's opinion, defendant's mental disorders were not in remission at the time he left the hospital in August. Counsel agreed that Dr. Safarjan would observe defendant's testimony in court and make an updated evaluation of his mental condition.

The prosecution called defendant to testify. Defendant testified that he had been given injections of "Haldol," which gave him headaches, backaches and insomnia. Defendant told his doctor that the medication made him Defendant admitted that he had a tattoo on his leg of "NOE," the name of a rat that he "had problems with." Defendant maintained that the rat was dead, and that Pope John Paul and President Clinton knew about the rat. Defendant explained that President Clinton learned of the rat through defendant's dream, which reaches more than two billion miles.

feel bad and that he did not want to take it. The medication, however, did relieve defendant's hallucinations.

Defendant testified that the rat NOE appeared to him in his dreams, along with two girl rats named Celia and Caren. Defendant stated that the rats talked to him most recently when he had his last "sexual moment" in his room. Defendant had seen the girl rats in his room within the last couple of days, but that they were now dead. Asked if he knew how they died, defendant responded: "Yeah. You know that the Pope, John Paul, the Second, when he had that Clinton reading Bible test over there, the priest that came off the plane, the green and white plane, he's the one that--I think...