P. v. Superior Court

Filed 4/3/09 P. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE COURT:*

The People seek a writ of mandate directing respondent superior court to vacate its order dismissing a petition to commit real party in interest Sean Rutherford as a mentally disordered offender (MDO). (See Pen. Code,[1]  2970.) We stayed the superior courts order and asked for opposition from Rutherford. We also notified the parties we were considering the issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

After considering Rutherfords opposition and a reply from the People, we believe the issuance of a peremptory writ in the first instance is appropriate. Although the legal principles to be applied are somewhat unsettled, the problem here is lack of an adequate record to perform the required due process analysis. We will therefore remand the matter back to the superior court for further proceedings consistent with this opinion.

Rutherford, while on parole after serving a term in state prison, was involuntarily committed to Atascadero State Hospital (hospital) in May 2008. He was committed pursuant to section 2962, which provides for treatment of a severe mental disorder as a condition of parole.

Rutherford was still at the hospital on January 23, 2009, the day his parole was to terminate. On that date, the medical director at the hospital sent a recommendation to the San Francisco District Attorneys Office to file a petition for continued (post-parole) involuntary treatment pursuant to section 2970. The district attorney filed such a petition the same day.

On February 4, 2009, Rutherford moved to dismiss the petition. Rutherford argued the petition had to be dismissed because it was not filed prior to his parole termination date. He further asserted his right to due process had been violated by the failure to meet the statutory time deadlines for filing an MDO petition.

In considering the motion, the superior court noted there was no automatic dismissal, and it indicated it had to balance any prejudicial effect of the delay against the justification. The court found a presumption of prejudice based on the fact the petition was filed on the very last day. The court then considered the Peoples explanation for the delaystaff at the hospital had simply failed to keep track of when an evaluation of Rutherford needed to be performed and submitted to the district attorney. The court characterized this as inexcusable neglect, requiring dismissal of the petition.

There is no explicit statutory deadline for the district attorney to file an MDO commitment petition. Nevertheless, the law requires trial on the petition to commence no later than 30 days prior to the time the person would otherwise have been released. ( 2972, subd. (a).) The law further provides the medical evaluation should be sent to the district attorney 180 days prior to the termination of parole or release from prison. ( 2970.) These deadlines may be excused for good cause. ( 2970, 2972, subd. (a).) In addition, the deadlines are not mandatory or jurisdictional. (People v. Tatum (2008) 161 Cal.App.4th 41, 56-57 (Tatum).)

It is undisputed the statutory deadlines were not met in Rutherfords case. The People also do not appear to dispute that no good cause was established for the failure of the medical director to submit the written evaluation of Rutherford 180 days prior to the termination of his parole. The People do contend, however, that the district attorney acted diligently in filing the commitment petition the same day the evaluation was received from the medical director. The People assert the superior court abused its discretion by holding the district attorney strictly liable for the hospitals negligence without independently determining whether there was good cause to excuse the late trial.

We agree the district attorney acted as diligently as possible under the circumstances, but given that the petition was filed on the last possible day, the real question is whether Rutherfords right to due process was violated. (See Tatum, supra, 161 Cal.App.4th at p. 57 [even if MDO trial occurs in violation of directory time requirements, commitment proceeding is not rendered invalid absent due process violation].) Regardless of whether the district attorneys diligence excuses a statutory violation, it does not resolve Rutherfords claim that his right to due process has been violated.

Rutherford and the People promote two different due process analyses. Indeed, two separate lines of authority have developed regarding this issue, and we expect our Supreme Court will resolve the conflict in cases currently pending before that court.[2]

The People urge us to examine whether any delay in Rutherfords case resulted in prejudice to his right to a fair hearing. (See People v. Mitchell (2005) 127 Cal.App.4th 936, 945-946 [no due process violation from untimely filing of petition to extend commitment of MDO under  1026.5 because appellant given adequate time to prepare for trial].) Rutherford, on the other hand, urges us to find a due process violation based on the fact it was impossible to prepare for trial before his commitment (parole) expired. (See Tatum, supra, 161 Cal.App.4th at p. 61 [late-filed MDO petition often forces offender to choose between two types of prejudiceinability to prepare for trial before offenders release date, or involuntary commitment beyond release date].) According to Rutherford, his attorney was not appointed to represent him until five days after his parole expired, making it impossible to prepare for trial before his release date and thus establishing prejudice. Rutherford relies on Tatum, a decision he asserts constitutes the most comprehensive review of the relevant law to date.

Tatum does contain the most thorough analysis of this due process issue at this point in time. We do not think, however, the decision stands for the stark proposition Rutherford proposes and the superior court appears to have adopted: Once prejudice (as defined in Tatum) is established, a due process violation is established and the MDO petition must be dismissed. Instead, Tatum stands for the proposition that a finding of prejudice is just the first step in the due process analysis. Once prejudice is established, a careful and flexible balancing of the prejudicial effect of the delay against the justification for the delay is required to determine if there has been a violation of due process. (Tatum, supra, 161 Cal.App.4th at p. 61.) The constitutional inquiry into the justification for the delay necessarily overlaps with the statutory inquiry into good cause. If good cause exists, it is less likely that there will be a due process violation; where good cause is lacking, as in the instant case, a violation is likely if sufficient prejudice is present. In addition, the [l]ength of delay will be a relevant factor in evaluating any proffered justification. [Citation.] For example, negligence may be sufficient cause to excuse a minor delay, but becomes less compelling as a justification for an extensive delay. (Ibid.)

Missing from the record before us and from Rutherfords presentation to the court below was any showing of the length of the delayhow long it would take for his counsel to prepare for trial. The district attorney represented to the superior court on February 13, 2009, that the medical records were not extensive and that they could be had within a matter of days and hours. The district attorney believed trial could begin that very day.

Applying the principles stated in Tatum,[3] we believe it was possible to find no due process violation in this case given the representations from the district attorney. The length of delay occasioned by the untimely filing of the petition may have been minor enough to excuse the hospitals negligence, particularly given the district attorneys diligence. Nothing in Tatum or in any other authorities cited by Rutherford required dismissal of the MDO petition merely because trial could not be commenced before his release date, or because the hospital was negligent. As Tatum explained, good cause and justification for the delay overlap, but they are not the same thing. (Tatum, supra, 161 Cal.App.4th at p. 61.)

The superior court erred in dismissing the MDO petition without ascertaining when trial could commence in this matter. Upon remand, the superior court should determine the length of time it would have taken Rutherford to mount a defense after the appointment of counsel, and then balance the length of the delay against the justification for the delay. (See Tatum, supra, 161 Cal.App.4th at pp. 62-63.) We acknowledge the proceedings on the motion to dismiss and in this court have now extended the delay to more than two months past Rutherfords release date, but the superior court should determine when trial could have commenced had the parties immediately prepared for trial.

Let a peremptory writ of mandate issue directing the superior court to vacate its February 13, 2009 order dismissing the petition for involuntary treatment, and to conduct further proceedings consistent with this opinion as expeditiously as possible. This decision is final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)

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* Reardon, Acting P.J., Sepulveda, J., Rivera, J.

[1] All further statutory references are to the Penal Code.

[2]People v. Cobb (2007) 157 Cal.App.4th 393, 398-403, review granted March 12, 2008, S159410 (due process implications of delay in prosecution of MDO petition and continued detention beyond release date); People v. Price (2007) 147 Cal.App.4th 955, 960-963, review granted June 13, 2007, S151207 (due process implications of untimely filing of petition to extend insanity commitment); see also People v. Lara (unpub. opn.), review granted September 25, 2007, S155481 (due process implications of untimely filing of petition to extend insanity commitment).

[3] Until the Supreme Court decides the cases currently pending before it (see fn. 2, ante), Tatum appears to be the most persuasive authority under the circumstances of this case.