People v. Harner

• Decision Date: 18 September 1989
• Docket Number: No. A041708,A041708
• Citation: 262 Cal.Rptr. 422,213 Cal.App.3d 1400
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harry Carl HARNER, Defendant and Appellant.

Page 422

262 Cal.Rptr. 422

213 Cal.App.3d 1400

The PEOPLE, Plaintiff and Respondent, v. Harry Carl HARNER, Defendant and Appellant.

No. A041708.

Court of Appeal, First District, Division 2, California.

Sept. 18, 1989.

Review Denied Jan. 18, 1990.

First District Appellate Project, San Francisco, Jay Ruskin, San Anselmo, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BENSON, Associate Justice.

Harry Carl Harner appeals from an order denying his motion for discharge from outpatient status as a mentally disordered sex offender (MDSO) due to the failure of the court below to hold annual hearings to review his status. We conclude that the motion was properly denied and therefore affirm the order.

The record on appeal in this case is rather sparse. However, from the brief clerk's and reporter's transcripts and an augmentation to the record, ¹ the following procedural history appears undisputed: On March 7, 1978, appellant entered a plea of guilty to one count of violation of Penal Code section 286, subdivision (b)(2) ² (sodomy with a minor under 16 years of age), and to one count of violation of section 288a, subdivision (c) (oral copulation with a minor under 14 years of age and more than 10 years younger than the offender). Both of these crimes were committed by appellant, who was then 27 years old, against an eight-year-old child. In April 1978, appellant was found to be an MDSO pursuant to former Welfare and Institutions Code section 6300 et seq. ³ On May 8, 1978, he was committed to Atascadero State Hospital for treatment, with a maximum confinement period of four years and eight months. He was placed on outpatient status, pursuant to sections 1600 and 1602, on December 9, 1981. No review of his outpatient status was made prior to the time he filed his motion for discharge from that status on December 21, 1987. ⁴

The superior court denied appellant's motion for discharge from outpatient status on January 12, 1988, and set the matter for a hearing to determine whether outpatient status should be extended. Notice of appeal from the court's order was filed on March 10, 1988. Thereafter on April 1, 1988, following review of a report from Community Mental Health, the court determined that appellant's outpatient status should be extended for one year. The matter was placed on the July 6, 1988 calendar for receipt of a quarterly report ⁵ and on the March 28, 1989 calendar for review of outpatient status.

Former Welfare and Institutions Code section 6300 defined an MDSO as follows: " '[M]entally disordered sex offender' means any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others." Pursuant to section 1602, subdivision (a), a person committed as an MDSO may be placed on outpatient status if (1) the director of the treatment facility to which the person has been committed "advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, and will benefit from such outpatient status"; (2) the community program director or his designee "advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, will benefit from such status, and identifies an appropriate program of supervision and treatment "; and (3) after a hearing, the court "specifically approves the recommendation and plan for outpatient status." (Emphasis added.)

Section 1606 provides: "Outpatient status shall be for a period not to exceed one year. At the end of the period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense counsel and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. Prior to such hearing, the community program director shall furnish a report and recommendation to the medical director of the state hospital, where appropriate, and to the court, which the court shall make available to the prosecutor and defense counsel. The person shall remain on outpatient status until the court renders its decision unless hospitalized under other provision of the law. The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists. The court shall transmit a copy of its order to the community program director or a designee." ⁶

Appellant contends that the failure of the court to hold annual hearings to review his status invalidates any further attempt of the state to exercise control over him under the MDSO statutes and thus requires his discharge from outpatient status. In People v. McGee (1977) 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382 Justice Tobriner, writing for a unanimous court, explained: "Traditionally, the question of whether a public official's failure to comply with a statutory procedure should have the effect of invalidating a subsequent governmental action has been characterized as a question of whether the statute should be accorded 'mandatory' or 'directory' effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory. As we explain below, in 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.

"Although the parties to this action have utilized the mandatory-directory terminology in their briefs, both parties, sharing the confusion exhibited in some past judicial decisions, have improperly equated the mandatory-directory duality with the linguistically similar, but analytically distinct, 'mandatory-permissive' dichotomy. As we explained recently in Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606 ..., in the latter context 'the term "mandatory" refers to an obligatory [procedure] which a governmental entity is required to [follow] as opposed to a permissive [procedure] which a governmental entity may [follow] or not as it chooses. By contrast, the "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. [Citations.]' (See also Ryan v. Byram (1935) 4 Cal.2d 596, 603-604 ....)" (Id. at pp. 958-959, 136 Cal.Rptr. 251, 559 P.2d 606, brackets in original, emphasis added.) ⁷

"Although the mandatory-directory and obligatory-permissive dichotomies are thus analytically distinct, in some instances there is an obvious relationship between the two. If, for example, a statute simply embodies a permissive procedure with which a governmental entity may or may not comply as it chooses, the entity's failure to comply will generally not invalidate the entity's subsequent action. The converse of this proposition is not always true, however, for as we observed in Morris, '[m]any statutory provisions which are "mandatory" in the obligatory sense are accorded only "directory" effect.' " (People v. McGee, supra, 19 Cal.3d at p. 959, 140 Cal.Rptr. 657, 568 P.2d 382, citing Morris v. County of Marin (1977) 18 Cal.3d 901, 908, fn. 4, 136 Cal.Rptr. 251, 559 P.2d 606.)

"As Chief Justice Gibson explained in Pulcifer v. County of Alameda [1946] 29 Cal.2d 258, 262 , there is no simple, mechanical test for determining whether a provision should be given 'directory' or 'mandatory' effect. 'In order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]....' " (Morris v. County of Marin, supra, 18 Cal.3d 901, 909-910, 136 Cal.Rptr. 251, 559 P.2d 606, fn. omitted, brackets in original.) "[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. [Citations.] In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citation.]" (Edwards v. Steele (1979) 25 Cal.3d 406, 410, 158 Cal.Rptr. 662, 599 P.2d 1365.)

Applying this framework, we hold that the annual review provisions of section 1606 are directory since the primary purpose of the statutory scheme is protection of society and a holding that the review provisions are mandatory would defeat that purpose by automatically releasing appellant, a child molester who was found mentally disordered, from any further supervision...