Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FC23583
NEEDHAM, J.
Thomas Clinton Turner (Turner) appeals from a judgment extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2970. He contends the trial court lost jurisdiction because the trial on the recommitment petition commenced less than 30 days before the expiration of his existing commitment. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In ruling on Turner’s prior appeal from an earlier MDO commitment, we described his underlying crimes as follows: “[I]n August 1987, appellant broke into a home in Vacaville and kidnapped a three-month-old baby girl. Appellant brutally assaulted the infant sexually and abandoned her in a field. Appellant demonstrated no remorse for his acts. [¶] Appellant pleaded no contest to counts alleging burglary (Pen. Code, §§ 459, 460), and forcible lewd and lascivious conduct. (§ 288, subd. (b).) He was sentenced to a 26-year prison term. [¶] Subsequently appellant was involuntarily committed under the Mentally Disordered Offender Act (MDOA) (§ 2962 et seq.).” (People v. Turner (Jan. 22, 2009, A120988 [nonpub. opn.].)
All statutory references herein are to the Penal Code.
Turner’s previous commitment was to expire on February 16, 2009. A petition to extend his commitment was filed on October 9, 2008. (§ 2970.)
A. Agreement on Trial Date
At Turner’s first appearance on the recommitment petition in November 2008, defense counsel requested that the case be set for trial, while noting “there are some records that [Turner] believes are necessary before we go forward....” The court indicated that Turner would be released from his existing commitment on February 15, 2009. The court clerk then suggested that a trial management conference be held on January 23, 2009, with trial commencing on January 27, 2009 – less than 30 days before the expiration of Turner’s commitment. The defense did not object. At defense counsel’s request, a trial readiness conference was set for December 10, 2008.
At the readiness conference on December 10, 2008, the court reiterated that trial was set for January 27, 2009. Defense counsel did not object, but informed the court that new counsel would substitute in on January 5, 2009. The court and defense counsel confirmed that Turner’s commitment termination date was February 16, 2009. The court also noted it had received the medical records subpoenaed by the defense and was ready to conduct an in camera review. However, since the prosecution was subpoenaing medical records as well, the parties agreed to put the matter over to January 7, 2009, so the court could conduct a single in camera review of the medical records requested by both parties.
At the hearing on January 7, 2009, the court advised that it had not received the medical records subpoenaed by the prosecution, but was ordering the release of all medical records subpoenaed by the defense. The trial readiness conference was continued to January 9, 2009. The court and defense counsel again confirmed that trial was set for January 27, 2009. In response to the prosecutor’s inquiry about the last date for trial, the court responded, “February 16, 2009.”
At the readiness conference on January 9, 2009, the court advised that it had located the medical records responsive to the prosecution’s subpoena and, with the stipulation of defense counsel, ordered them released to the prosecutor to be produced to the defense. Confirmation of the trial date occurred as follows: “[DEFENSE COUNSEL]: We have a TMC [trial management conference] on the 23rd; is that correct? [¶] THE COURT: Yes. January 23, 8:30, in this department for TMC and then our jury trial is scheduled for January 27. [¶] [DEFENSE COUNSEL]: What is the last day for trial? [¶] [THE COURT]: His current commitment expires on February 16. [¶] [DEFENSE COUNSEL]: We would confirm jury and the TMS [sic] date. [¶] THE COURT: All right.” (Italics added.)
At the trial management conference on January 23, 2009, defense counsel asserted no objection to trial commencing on January 28, 2009: “[THE COURT]: This is on for a trial management conference today. My understanding is the parties are wanting to waive jury and to have the trial commence on Wednesday of next week? [¶] [DEFENSE COUNSEL]: Yes. That’s fine, Your Honor.”
On January 28, 2009, a prosecution witness was unavailable and the court noted that it was supposed to begin a jury trial in another matter that morning. Defense counsel represented that she had no objection to continuing the trial in Turner’s case until the next day, January 29.
B. Trial
Turner and the prosecution waived their rights to trial by jury, and trial commenced on the recommitment petition as agreed on January 29, 2009.
1. Prosecution Case
Turner’s treating psychiatrist at Napa State Hospital, Dr. James Eyerman, was accepted by the court as an expert in the field of psychiatry and the diagnosis of mental diseases and disorders. Dr. Eyerman testified that Turner suffered from pedophilia and sexual sadism, both of which are severe mental disorders, as well as from antisocial personality disorder.
Dr. Eyerman opined that Turner was substantially unable to control his condition. Turner had made ongoing threats to female staff and peers and was found with videos of pre-pubescent girls, namely the “Olsen twins.” Possession of the material, Dr. Eyerman observed, is “an indicator that he has continued interest in prepubescent females.”
Dr. Eyerman testified that Turner’s reported sexual sadistic fantasies are chronic and have persisted over time. According to Dr. Eyerman, Turner stated that he would find “pleasure in raping and stabbing women and girls and gouging their eyes out.” Turner also stated that he had broken both of his niece’s arms in order to hear her scream, he did not believe his parole from Atascadero would be successful, he would end up killing someone, and he would not take his prescribed medication. In addition, Turner had tried to castrate himself, cut his arms and legs, and complained that he heard female voices telling him to hurt himself.
Neither of Turner’s severe mental disorders is in remission, Dr. Eyerman opined, since Turner has continued to threaten nursing staff and incited other patients to violence. For example, he assaulted a member of the staff by pushing a medical cart at her, and he threatened to kill the infant of a nurse. He also refused to attend the hospital’s sexual treatment program.
Dr. Eyerman further opined that Turner “poses a significant danger to others if released to the community for criminal acts, for sexual acts, for sadistic acts.” Speaking of his victim in the underlying offenses, Turner reportedly told a psychologist that “he would like to go back and find the victim and kill them [sic].”
2. Defense Case
Turner was the sole witness for the defense. He noted that Dr. Eyerman had never met with him individually. He confirmed that he does not participate in the sexual offender treatment program, because he does not believe he has a problem that needs to be addressed. He also thinks an anger management program would be a waste of time, and he does not believe in substance abuse programs. Turner described himself as “verbally insultive,” not “assaultive,” explaining that he retaliates against people for their insults. On the other hand, he acknowledged that he could be “very assertive and somewhat verbally aggressive,” and it was “usually premeditated and thought out.” He detests “even being around” the staff.
Turner denied making a number of the statements attributed to him by Dr. Eyerman. He further testified that, after his DVD’s of the Olsen twins were taken from him, he downloaded five new videos of the Olsen twins at an age younger than they were in the confiscated videos.
On February 9, 2009, the trial court granted the petition and ordered Turner’s commitment extended for one year.
This appeal followed.
II. DISCUSSION
Section 2972, subdivision (a), provides that trial on a petition for continued involuntary treatment “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.”
Because Turner’s previous commitment was set to expire on February 16, 2009, his trial was to commence by January 16, 2009, unless there was a waiver of time or a showing of good cause, which Turner denies. Since trial did not commence until January 29, 2009, Turner contends the trial court was without jurisdiction to consider the petition to extend his commitment.
Thirty days before February 16, 2009, is January 17, 2009, but January 17 was a Saturday.
A. Turner’s Appellate Challenge to an Untimely Trial Was Forfeited
A defendant’s failure to assert an objection or move to dismiss the petition before trial for failure to comply with the deadline set forth in section 2972, subdivision (a), waives or forfeits the claim on appeal. (People v. Williams (1999) 77 Cal.App.4th 436, 460 (Williams).)
Here, Turner neither objected to the trial date nor moved to dismiss the petition before trial. To the contrary, his attorneys expressly and repeatedly agreed to a trial date less than 30 days before expiration of Turner’s existing commitment. In November 2008, the court noted that Turner would be released on February 15, 2009, and the defense did not object to a trial date of January 27, 2009. In December 2008, defense counsel professed her understanding that the termination date for Turner’s commitment was February 16, 2009, yet did not object to the January 27 trial date that was confirmed at the hearing. On January 7, 2009, it was again confirmed that trial would commence on January 27, and the defense did not object. On January 9, 2009, defense counsel reconfirmed that trial would commence on January 27, and again did not object, even though the court specifically stated that Turner’s commitment would expire on February 16, less than 30 days later. Defense counsel subsequently stipulated that trial could commence on January 28 and, ultimately, January 29. Without any objection to the trial commencing less than 30 days before the expiration of Turner’s commitment, the right to challenge the timeliness of the trial on appeal was forfeited.
At this January 7 hearing, the court mistakenly stated that the last date for trial was February 16, 2009. However, the error was not prejudicial. The defense had previously expressed its understanding that February 16 was the date for Turner’s commitment termination, and at the January 7 hearing it was the prosecutor rather than the defense who asked about the last date for trial. Moreover, two days after the January 7 hearing, the court specifically stated that Turner’s existing commitment would expire on February 16, 2009, and defense counsel still did not object to the January 27 trial date.
B. The Untimely Trial Did Not Divest the Court of Jurisdiction
Turner contends that failure to commence the trial 30 days before the expiration of his commitment divested the trial court of jurisdiction, his challenge therefore cannot be forfeited, and his recommitment must be reversed. He is incorrect.
As Turner acknowledges, this issue was decided over a decade ago in Williams, supra, 77 Cal.App.4th 436. There, a petition for the extension of an MDO commitment was filed 18 days before the defendant’s scheduled release, and the trial started after that release date. (Id. at p. 445.) The court held that the statutory deadline to commence trial under section 2972, subdivision (a), is directory rather than mandatory, and thus the failure to meet that deadline does not divest the court of fundamental jurisdiction. (Williams, supra, at pp. 440, 451.) As noted ante, the court in Williams proceeded to hold that the defendant had forfeited his right to challenge the timeliness of his trial.
Williams relied on several factors to conclude the statutory trial deadline was not jurisdictional. The purpose of the requirement that trial commence 30 days before the release date, Williams explained, is to assure a reasonable amount of time to conduct trial before a defendant is due to be released, and is primarily designed to protect the public by requiring a determination to be made before release. (Id. at pp. 450-451.) In addition, the lack of any reference in the statute to a penalty or consequence for noncompliance indicated a directory rather than mandatory requirement. (Id. at p. 451.) Further, the court reasoned: “[I]f the 30-day deadline were mandatory, then the failure to comply would, in effect, automatically terminate an MDO’s involuntary treatment, regardless of need, and require his or her release, regardless of the potential danger to others. Such a result is inconsistent with the purpose of the MDPA and elevates the secondary benefit of the deadline to an MDO over the fundamental purpose of the MPDA: to protect the public.” (Ibid.)
Several courts have reached the same conclusion as to deadlines set forth in section 1026.5, pertaining to the extension of involuntary commitments of persons found not guilty by reason of insanity. (See, e g., People v. Lara (2010) 48 Cal.4th 216; People v. Mitchell (2005) 127 Cal.App.4th 936, 945 [time limits not jurisdictional where petition for extension of involuntary commitment under § 1026.5 was filed two weeks before appellant’s scheduled release, and trial occurred after the release date]; In re Johns (1981) 119 Cal.App.3d 577, 580-581.)
Turner contends Williams was wrong, and the statutory deadline for commencement of trial is in fact jurisdictional, because the purpose of the statute is to protect the defendant. For this proposition, he refers us to Zachary v. Superior Court (1997) 57 Cal.App.4th 1026(Zachary).
In Zachary, the district attorney failed to file a petition to extend an MDO commitment until 24 days after the existing commitment had expired. (Zachary, supra, 57 Cal.App.4th at pp. 1028-1029.) The court of appeal ruled that the defendant was denied due process because the petition was not filed until after his commitment term had expired, thus precluding him from preparing for trial before the expiration of the commitment. (Id. at pp. 1034, 1036.) The court observed: “The MDPA accommodates procedural due process by requiring the filing of the commitment petition prior to the expiration of the commitment, and requiring trial to commence 30 days prior to expiration in order to ensure that trial is completed prior to expiration of the commitment.” (Id. at p. 1034.)
Turner’s reliance on Zachary is misplaced. The issue in Zachary was not whether the deadline for commencing trial was jurisdictional, but whether the failure to timely file a recommitment petition deprived the defendant of due process. Zachary therefore does not address the jurisdictional issue adjudicated in Williams and now before us.
Turner argues that Zachary has significance for the jurisdictional question, because it suggests the purpose of the deadlines in a section 1026.5 proceeding are to protect a defendant’s due process right to have the matter heard before the commitment expires. Given this purpose, he urges, the trial deadline in section 2972 should be jurisdictional. The argument has no merit, in light of our Supreme Court’s recent holdings that the deadline for filing a recommitment petition in a section 1026.5 proceeding is not jurisdictional so long as it is filed before the expiration of the current commitment (People v. Lara, supra, 48 Cal.4th 216), and the time limits in section 2972 are not jurisdictional either (People v. Cobb (2010) 48 Cal.4th 243, 249-250).
Furthermore, even in terms of due process, Zachary is inapposite to the matter at hand. There is a clear distinction between an untimely filing of a recommitment petition (as in Zachary) and the untimely commencement of trial (as here). (See Mitchell, supra, 127 Cal.App.4th at p. 946 [distinguishing Zachary on the ground that the petition in Zachary was filed after the commitment term expired and the defendant had inadequate time to prepare for trial].) A late recommitment petition gives rise to the due process question of whether the defendant had an adequate time to prepare for trial; however, the issue of the defendant’s ability to prepare for trial does not arise from the tardy commencement of the trial itself.
Moreover, while the tardy commencement of trial on a recommitment petition might give rise to concerns if the trial is not concluded before the expiration of the defendant’s existing commitment, no such concern is implicated under the facts of the matter before us. Here, the recommitment trial was concluded – and the court had ruled on the recommitment petition – on February 9, about a week before Turner’s prior commitment was due to expire.
In sum, the matter before us concerns a timely petition to recommit, a trial date to which the defense agreed, and a trial and recommitment ruling before the scheduled release date. Turner fails to establish that the trial court lost jurisdiction or that his due process rights were violated merely because the trial commenced on the stipulated date less than 30 days before his scheduled release.
For these reasons, we reject Turner’s alternative argument that the failure to commence the trial at least 30 days before the expiration of his existing commitment deprived him of due process, and that he was prejudiced because he did not have sufficient time to prepare for trial before his existing commitment expired. The defense agreed to the trial date, never requested additional time to prepare for the trial, never suggested the time to prepare was inadequate, and even now does not explain how it lacked adequate preparation time for a trial that was concluded before his scheduled release date.
Turner contends the jurisdictional issue is presently before the California Supreme Court in People v. Price (S151207). Not so. The issue before the court in Price is whether the untimely filing of a petition to extend an insanity commitment deprives a defendant of due process, when there was no good cause for delay and the late filing allegedly left him with insufficient time to prepare for the hearing on the petition. Here, the petition was timely and the issue in Price is not presented by the facts of this case.
In any event, to the extent Price would be germane to our analysis, the California Supreme Court’s recent decisions show that it will be of no help to Turner. In People v. Lara, supra, 48 Cal.4th 216, a petition to extend a defendant’s insanity commitment was filed so far after the statutory deadline that the defendant did not have adequate time to prepare for trial before his term of commitment expired. There was no good cause for the late filing of the petition, and the defendant moved to dismiss the petition on due process grounds. The trial court denied the motion and extended his insanity commitment. The California Supreme Court held that, among other things, (1) the statutory deadline for filing a petition to extend a commitment is directory rather than mandatory, and thus not jurisdictional, so long as the petition is filed before the expiration of the current commitment, and (2) the defendant was not entitled to a dismissal of his petition. (Lara, supra, 48 Cal.4th at p. 221.)
Although Lara concerned the deadline for filing a petition to extend a commitment under section 1026.5, rather than the deadline for commencing a trial on a recommitment petition under section 2972, it rejects the types of arguments Turner makes here. While Turner urges that the time to commence trial is jurisdictional, Lara held that even the time to file a recommitment petition is not jurisdictional, as long as it is filed before the current commitment expires. While Turner argues that the “most dispositive factor in determining whether [the deadline for commencing trial] is in fact mandatory or jurisdictional is the use of the mandatory language ‘shall,’” Lara rejected the argument, observing that “it should not be assumed that every statute that uses that term [“shall”] is mandatory.” (Lara, supra, 48 Cal.4th at p. 227.) Just as the Williams court found it significant, in ruling the deadline for commencing trial to be directory rather than mandatory, that the statute did not refer to a penalty or consequence for violation of the deadline (Williams, supra, 77 Cal.app.4th at p. 451), the court in Lara found the absence of any such reference to be significant as well. (Lara, at p. 227.) Furthermore, the court in Lara cited and discussed Williams, without any indication that it disagreed with its holding. (Lara, at pp. 224, 225, 234-235.)
If this were not enough, our Supreme Court has apparently disposed of the issue in People v. Cobb, supra, 48 Cal.4th 243. Relying on its analysis in Lara, the court held that the time limits of section 2972 in an MDO proceeding are directory and not jurisdictional. (48 Cal.4th at pp. 249-250.)
Turner fails to establish that the provision requiring commencement of trial at least 30 days before his release date is jurisdictional.
The commitment order from which Turner appeals was set to expire on February 16, 2010. In his opening brief, he claims that this appeal will not become moot if a subsequent commitment is ordered. Without ruling on this issue, we have entertained his appeal as if it were not moot. He also argues that, if we rule that the commitment from which he appeals here was invalid and the petition should have been dismissed, there is no commitment in place to be extended, and any subsequent “extension” of commitment proceeding would be invalid because it would seek to extend a commitment that does not exist. Because we affirm the judgment, we need not and do not address this issue.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.