P. v. Pietromonaco
Filed 9/4/13 P. v.
Pietromonaco CA3
NOT
TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
THE PEOPLE,
Plaintiff
and Respondent,
v.
DENNIS JOSEPH PIETROMONACO,
Defendant
and Appellant.
C068569
(Super.
Ct. No. 107294)
appeals from an extension of his commitment as a
(MDO). The order in question, granted on
April
1, 2011, extended Pietromonaco’s
commitment to April 1, 2012,
and retroactively extended his commitment from April 1, 2009
to April 1, 2010,
and April
1, 2010 to April 1, 2011. Although the district attorney timely filed
petitions to extend Pietromonaco’s commitment, there were numerous
continuances, primarily requested by Pietromonaco, and the hearing was not held
until April
1, 2011.
He argues the court had no jurisdiction to extend his
commitment after the 2008‑2009 commitment expired. We shall affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Pietromonaco was convicted of burglary following a guilty
plea in 1991. In 1992, he was committed
to Atascadero State
Hospital
as a condition of parole. The period of
parole ended in 1996, after which he was recommitted as an MDO repeatedly from
1996 to April
1, 2009.
Penal Code section
2970 provides that the district attorney may petition the court for continued
involuntary treatment of an MDO, following notification from the medical
director of the state hospital treating the MDO that the MDO’s severe mental
disorder is not in remission or cannot be kept in remission without treatment.
If the MDO and the district attorney both waive a jury trial, the court
conducts a hearing on the petition for continued treatment. (§ 2972,
subd. (a).) The trial commences no later
than 30 calendar days before the MDO’s release date, unless the time is waived
or good cause is shown. (§
meets the requirements for commitment as an MDO, the person is recommitted for
one year from the date of termination of the previous commitment. (§ 2972,
subd. (c).)
On December 10, 2008,
the district attorney timely filed a petition to extend Pietromonaco’s MDO
commitment ending April
1, 2009. Following the petition, the defense requested
22 continuances between December 19, 2008,
and February
17, 2011. During this period there was one prosecution
request for a continuance for the reason that the defense attorney was in trial on another matter. There were three joint requests for
continuance--one because the prosecutor was in trial on another matter. The defense attorney repeatedly assured the
court that it would be submitting Pietromonaco’s waiver, and informed the court
that Pietromonaco would agree to the petition to extend his commitment.
No waiver of time appears in the record, and no order
extending Pietromonaco’s commitment was filed until the final order entered on April 1, 2011.
Following
the first petition, the prosecutor filed two more petitions to extend
Pietromonaco’s commitment. Had there
been orders extending Pietromonaco’s commitment in place, the extensions both
would have been timely filed.
DISCUSSION
Pietromonaco
argues the trial court had no jurisdiction to extend his commitment after the
prior commitment order expired. He
relies for this proposition on P
which held that the deadline for filing a petition for recommitment is
mandatory and a recommitment premised on an untimely petition is invalid. This case does not involve an untimely
petition. Pietromonaco conveniently
neglects to cite P
his opening brief, and barely mentions it in his reply brief. P
retains jurisdiction to conduct an extension hearing after the commitment
period has ended. (Id. at pp. 249, 253.) Accordingly, we reject his argument that he
no long fell under the MDO Act
(§ 2960 et seq.) jurisdiction after his last term of commitment expired.
Perhaps
recognizing that his jurisdictional argument is lost, he argues for the first
time in his reply brief that there was still a due process violation based on
his personal refusal to extend,
despite the fact that nearly every continuance was requested by his own
counsel, and that his counsel represented to the court that he would obtain a
waiver from his client and that his client would voluntarily extend his
commitment. A claim raised for the first
time in a reply brief is untimely and we need not consider it. (P
902, 905.) Furthermore, when the
prosecution has met all of its statutory deadlines, defendant, who was
represented by counsel, cannot fail to object that he is being kept past his
commitment date and raise the issue for the first time on appeal. (P
436, 460 [“a violation of section 1382 may
not be raised for the first time either on appeal or in a posttrial petition
for writ of habeas corpus if the defendant, who was represented by counsel,
failed to object to the trial date and make a timely
after the applicable period expired.â€].)
DISPOSITION
The
judgment is affirmed.
BLEASE , J.
We concur:
RAYE , P.
J.
NICHOLSON , J.
name="_ftn1" title="">[1] References to a section are to the P
