THE PEOPLE v. SUDAR

Filed 12/18/07 (partial pub. order & mod. filed 1/2/08; see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

David Wayne Sudar appeals from an order extending his commitment to Napa State Hospital under Penal Code section 1026.5, subdivision (b). He contends his constitutional right to due process was violated by the trial courts failure to instruct the jury that the prosecution was required to prove he had serious difficulty controlling his dangerous behavior. He further contends the petition should have been dismissed because it was not filed within the time specified by statute. We affirm.

STATEMENT OF THE CASE AND FACTS

In 1999, appellant was found not guilty by reason of insanity of three counts of arson, committed to Patton State Hospital, and then transferred to Napa State Hospital. (Pen. Code,  451, subd. (c), 1026.[1]) According to a subsequent evaluation by the Department of Mental Health, appellant set fire to a church, trailer park laundry, and another building in Gualala on January 31, 1998, acting on his belief that God had given him messages and that he should carry out Gods wishes. He was attempting to bring attention to and expose a satanic cult he believed was using these structures. He further believed and continues to believe that he is the Son of God and that his actions were inspired by divine messages. Appellants maximum term of commitment was due to expire on October 3, 2006.

On July 11, 2006, the medical director of the Napa State Hospital requested the district attorney to file a petition for extension of appellants commitment. The district attorney filed the petition pursuant to section 1026.5, subdivision (b), on July 21, 74 days before the expiration of appellants current commitment. A report prepared by hospital staff, recommending extension of appellants commitment, stated that appellant had made some progress and was able to maintain himself on the open unit and had not been involved in any assaults or other problematic behavior. According to this evaluation, however, appellant continues to believe that he has no mental illness and he is being unnecessarily medicated. . . . [Appellant] continues to state that he was defending himself when he committed his instant offense and that if he were in the same situation again he believes he will do the same thing again if it is necessary. . . . He has been complaining to authorities about being unfairly detained and has demonstrated a complex delusional belief. He believes that the unit psychologist during her vacations went to the place his instant offense was committed and verified the facts confirming there were in fact cults in the area and that his life was threatened. He believes the psychologist presented these facts, which would justify his commitment of the offense to hospital authorities, but a cover up by the authorities was made which has hindered his release. The report further stated that appellant had not developed any relapse prevention plan and that his delusional thinking along with his inability to stay medication compliant in the community make him a danger to the community. The treatment team opined that appellant, because of a mental disease, defect or disorder, represents a substantial danger of physical harm to others.

On July 31, 2006, appellant, in pro per, filed a petition for writ of habeas corpus in the superior court, seeking to withdraw his plea of not guilty by reason of insanity on the ground that he had not been advised of the potential for lifetime commitment resulting from the plea. The petition was denied after a hearing on August 28, 2006.

Trial on the extension of his commitment began with jury selection on August 29, and the case was presented on August 30. Dr. Joginder Singh, staff psychiatrist at Napa State Hospital, testified that he had been treating appellant almost two years on an open unit.[2] Appellant had been on this unit since 2003. Singh was on the unit four days a week, met in treatment planning conferences with appellant and other treatment team members every 90 days, and met individually with appellant at least once a month. When they met, Singh discussed with appellant the offenses he had committed and the criteria for his discharge. Appellant continued to believe that he set fire to the buildings to protect and defend himself, and did not think his belief in the existence of the satanic cult was a delusion. As of the treatment conference on July 26, 2006, appellant believed he was the son of God; he said then, and had said many times, that he would take the same action under similar circumstances. Appellant had never expressed any recognition that he did something wrong and believed God told him to burn the buildings.

When appellant first came to Napa State Hospital, his diagnosis was schizophrenia, paranoid type. This was later changed to delusional disorder, grandiose typegrandiose, because he believed he was the son of God, and not schizophrenia because he was very high functioning. Appellant was being treated with the medication Abilify, but it was not very effective and he still had a delusional disorder and delusional thoughts. He had been tried on other medications previously, and had been off medication for more than six months before he began the Abilify. According to Singh, this was not a long enough period to be able to determine whether appellants behavior was the same regardless of whether he was taking medication. Singh stated that there are patients who do not respond fairly well to the medications. But that does not mean we can have the luxury of not giving the medication to the patients because they have the tendency to deteriorate further if theyre not given medication. Appellant did not believe he had a mental illness or needed medication. Singh testified that patients who believe they do not have a mental illness generally are not compliant with taking their medication once released from an institution.

Singh testified that appellant had a long history of substance abuse, including marijuana, cocaine and amphetamines, but did not believe he had a substance abuse problem. One of the reasons the treatment team was recommending extension of appellants commitment was that appellant did not think he needed a relapse prevention plan, a plan written by the patient with the help of the treatment team addressing what the patient would do in situations where he would be likely to want to take drugs again. Singh stated that studies had shown mental illness is magnified by drug use, substance abuse can make treatment ineffective, and many mentally ill patients attempt to treat themselves with street drugs.

Singh stated that other than his very complex delusion, appellant was functioning very well. Singh noted, as appellants strengths, that he had not been violent since he had been in the hospital and he had been very polite, able to maintain himself on the open unit, and able to maintain his job on campus. The factors that made him dangerous for the community if released were that he did not believe he had a mental illness or substance abuse problem, needed a realistic relapse prevention program or needed medication, and that he believed he would take the same actions again under the same kind of circumstances. In order to be released, Singh said, appellant would have to satisfy standard discharge criteria set by the state, including understanding he had a mental illness, understanding his signs and symptoms so he could seek help if necessary, understanding his offenses, being remorseful for the people he harmed, understanding the effect of substance abuse on his mental illness and offenses, and having a realistic relapse prevention plan.

Dr. Morgan Kennedy had been a clinical psychologist at Napa State Hospital for three and one-half years. Kennedy had worked with appellant in treatment groups since 2003. Appellant was reserved about talking about himself in groups but gave good feedback to others. He also kept to himself on the unit and did not open up much to staff. This made it difficult to build a rapport with appellant and understand whether treatment had worked and his condition had changed.

Kennedy testified that appellant continued to believe he did the right thing in burning the buildings and had never shown remorse for his actions. She said appellant hoped he would not have to set a fire again in the future but hes not sure if God tells him if thats what he needs to do and if he needs to defend himself, he will do so. Appellant continued to believe he was the son of God and stated he did not believe he had a mental illness. Kennedy testified that appellant had idea of reference, thinking that things he saw or heard were related to him, such as seeing a helicopter and thinking it was after him. Appellant believed that Kennedy had gone to Gualala, determined that his story was true, and told the hospital this, but there was a cover up to keep him in the hospital. He maintained this belief despite the hospital staff telling him it was not true, and had written to the hospital director and Department of Justice about it. Kennedy testified that this delusion showed paranoia, which, combined with the grandiose delusion of being the son of God, substantially increased the risk of possible dangerousness in the community.

Appellant reported having used methamphetamine until a few days before the arson, and Kennedy stated that methamphetamine was known to increase paranoia and delusions. Kennedy had not been able to locate any records of drug testing done at the time of appellants arrest. According to Kennedy, it was significant that appellant had a history of substance abuse dating to his teenage years, because evidence shows that a history of substance abuse increases a persons overall risk of dangerousness. The length of appellants history and fact that he used several different substances also increased his risk of resuming substance abuse if released from the hospital, and relapse into substance abuse would increase his risk for dangerousness. Kennedy described appellant as having an encapsulated delusion. She explained that, although appellant was able to function well at his job and maintain his position on the open unit, his delusion overrides his judgment, making him feel he must follow through if God tells him to do something. For Kennedy to be able to recommend release, appellant would have to recognize and accept that he has a mental illness, accept treatment, and be able to put together a plan for managing his symptoms and substance abuse in the community. Appellant did not feel he needed a relapse prevention plan. He did write one, but in the third person, which Kennedy saw as related to his feeling that the plan was unnecessary for him. Kennedy described the same standard discharge criteria as Singh, adding that the patient to be discharged also had to be able to work well with authority figures and be able to negotiate with hospital staff and with the conditional release program.

Appellant presented no evidence. The jury returned a verdict finding that appellant suffers from a mental disease or defect and, by reason of a mental disease, defect or disorder, [appellant] is a substantial danger of physical harm to others. The court ordered appellants commitment extended to October 3, 2008.

Appellant filed a timely notice of appeal on September 29, 2006.

DISCUSSION

Penal Code section 1026.5, subdivision (b)(1), provides: A person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others. Under the statutory procedures relevant to the present case, [n]ot later than 180 days prior to the termination of the maximum term of commitment prescribed in subdivision (a), the medical director of a state hospital in which the person is being treated . . . shall submit to the prosecuting attorney his or her opinion as to whether or not the patient is a person described in paragraph (1) ( 1026.5, subd. (b)(2)); the prosecutors petition for extended commitment shall be filed no later than 90 days before the expiration of the original commitment unless good cause is shown ( 1026.5, subd. (b)(2)); the court must advise the person named in the petition of the right to an attorney and a jury trial, and the rules of discovery in criminal cases apply ( 1026.5, subd. (b)(3)); and the trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless that time is waived by the person or unless good cause is shown ( 1026.5, subd. (b)(4)).

I.

Appellant contends the petition to extend his commitment should have been dismissed because it was not timely filed. As described above, appellants maximum term of confinement was due to expire on October 3, 2006. Under section 1026.5, subdivision (b)(2), the petition had to be filed no later than 90 days before this date. In fact, the petition was filed on July 21, 74 days before the expiration of appellants current commitment, or 16 days late.[3]

At the hearing on August 16, the parties and court discussed the need to resolve appellants habeas corpus petition before holding trial on the petition for extension of commitment and the need to hold the trial before September 3, 2006 in order to comply with the 30-day requirement of section 1026.5, subdivision (b)(4). Because of the statutory deadline, the court agreed to set the matter for trial on August 28, with a hearing on the habeas petition on August 25. On August 25, the prosecutor argued that appellants filing of the habeas petition constituted good cause for deviating from the 30-day requirement for the extension of commitment trial. Appellants attorney objected that statutory time requirements had already been violated, as the hospitals letter initiating the process and the district attorneys petition were both filed later than the time prescribed in section 1026.5, subdivision (b). The court declined to find good cause for continuing the trial, noting that there had been numerous violations of the statutory time limits along the way. On August 29, at the outset of the trial after appellants habeas petition was denied, defense counsel objected to proceeding on the petition because of the violations of statutory time requirements. Counsel explained that she did not want to further violate [appellants] rights by requesting additional time to prepare for this trial, but noted that she had not had enough time to make sure that we have all of our witnesses prepared to go forward and, after reviewing records, thought there were a number of other psychiatrists, psychologists and other staff from the hospital who would be important witnesses to testify for appellant. The court found the petition had been filed in substantial compliance with the statutory directive.

The legislative objective in establishing these statutory limitations [in section 1026.5, subdivision (b)] is clear, i.e., to allow a committee-patient and his counsel not less than 60 days to prepare for trial, and 30 days within which to complete such trial, without confining him beyond the maximum period permissible under his initial commitment. (People v. Hill (1982) 134 Cal.App.3d 1055, 1057.) It is well established that the time limits of section 1026.5 are not jurisdictional. (People v. Mitchell (2005) 127 Cal.App.4th 936, 943 (Mitchell), quoting In re Johns (1981) 119 Cal.App.3d 577, 580-581 (Johns).) Nevertheless, considerations of due process require an inquiry into whether the defendant was harmed by violation of the statutory time requirements. . . . [T]he inquiry should be the same as made when testing under due process standards the delay in criminal proceedings. [] The due process test utilized under both federal and state speedy trial decisions involves a balancing of any prejudicial effect of the delay against the justification for delay. (Cf. Barker v. Wingo (1972) 407 U.S. 514, 532, with People v. Hannon (1977) 19 Cal.3d 588, 610, fn. 12.) Except where there has been an extended delay, as there was in Barker v. Municipal Court (1966) 64 Cal.2d 806, 812, prejudice will not be presumed from delay. Where prejudice is not presumed, it is incumbent upon the defendant to show circumstances of actual prejudice. (See Crockett v. Superior Court (1975) 14 Cal.3d 433, 440-441.) (Johns, supra, 119 Cal.App.3d at p. 581.)

In Johns, similarly to the present case, the petition was filed 17 days late. Johns found no due process violation because the delay was not extensive and the trial was held over 60 days after the petition was filed. (Johns, supra, 119 Cal.App.3d at p. 581.) Because it found no prejudice to the defendant, the court did not find it necessary to consider the reasons for the delay in filing the petition. (Ibid.)

Mitchell, supra, 127 Cal.App.4th at page 939, found no due process violation in a case involving far greater delay: The petition was filed only two weeks before the defendants existing release date. At a hearing on the release date, the prosecution argued the defendant would not be prejudiced by delaying the trial until after his release date; two months later, the defendant moved to dismiss the petition; the trial court denied this motion and granted a defense request for a continuance, and the trial was ultimately held six months after the release date. (Id. at pp. 940-941.) Mitchell found no violation of due process because defense counsel had represented the defendant before and was given sufficient time to investigate, obtain expert testimony and prepare a defense. (Id. at p. 946; see People v. Williams (1999) 77 Cal.App.4th 436, 451.)

Mitchell rejected an argument appellant presses here, that the defendant was forced to choose between remaining in custody when there [was] no longer any legal basis for the custody or rushing to trial with insufficient preparation  because the court concluded the defendant had received adequate time to prepare and a fair trial. (Mitchell, supra, 127 Cal.App.4th at p. 945.) We need not determine, in this case, whether we agree with Mitchells dismissal of the significance of a defendants right to a fair trial before expiration of the existing period of commitment. Here, the delay was only 16 days, leaving more than two months before appellants release date. Defense counsel, at the August 16 hearing, was primarily concerned with setting the trial within the constraints of the 30-day time limit; she requested that it be set for August 28, expressly stating she could be ready by then. Defense counsel had not known about appellants habeas petition before the August 16 hearing and, initially, the prosecutor thought the writ would have to be granted and therefore would obviate the need for the extension trial. By the hearing on August 25, the prosecutor felt there was more question about the merit of the habeas petition and wanted more time; defense counsel insisted on abiding by the 30-day limitation for the extension trial. Because defense counsel was leaving on September 2 for a long-scheduled three-week vacation, this meant the trial had to be set for August 28.

It was only at the beginning of the trial on August 29 that defense counsel objected to proceeding on the petition because of the violations of statutory time limitations; previously, those violations had been the basis of defense counsels insistence on not setting the trial any later than August 28. Counsel stated that she had not had enough time to make sure she had all her witnesses prepared and that she thought there were a number of other psychiatrists, psychologists and other staff who would be important witnesses for appellant. At this point, however, counsel had had more than five weeks to prepare since the filing of the extension petition. Although her time during most of that period had been devoted to preparation for the habeas petition appellant had filed, she had specifically represented that she would be ready to proceed with a trial set for August 28. Appellant offers no explanation why the 16-day delay in filing the petition should have so impaired his ability to prepare for the hearing as to constitute a violation of due process. Appellants contention that prejudice was demonstrated by the fact that no witnesses testified on his behalf is not well taken, as the record offers no basis for determining whether the absence of witnesses was due to time constraints imposed by the two-week delay in filing the petition or absence of witnesses to support appellants position. This is not a case where the petition was filed only days before expiration of the existing period of confinement, making reasonable trial preparation impossible. (Compare People v. Hill, supra, 134 Cal.App.3d 1055 [petition filed with 10 days (including Christmas Day) remaining before release date]; People v. Dougherty (1983) 143 Cal.App.3d 245 [petition filed 66 days late, 25 days before release date; trial began 5 days before release date].) Here, the petition was filed only 16 days late, and trial was held more than 30 days before appellants release date and lasted only one day. We find no violation of appellants due process rights.

II.

Appellant also contends reversal is required due to the trial courts failure to give a requested jury instruction. At the outset of the extension of commitment hearing, defense counsel argued that the standard jury instruction, CALCRIM No. 3453, should be modified to include the requirement set forth in In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), that the prosecution prove the person to be committed could not control his dangerous behavior. The prosecutor disagreed, arguing that Howard N. construed a different statutory scheme and was not applicable in the present context. The trial court denied the defense request.[4]

As we recently concluded in People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165, in order to satisfy the constitutional requirement of due process, a commitment may be extended under section 1026.5, subdivision (b)(1), only if there is substantial evidence the defendant had, at the very least, serious difficulty controlling his potentially dangerous behavior. (Accord, People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo, supra, 142 Cal.App.4th at p. 537.) This requirement follows from the fundamental principle that  civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.  (Howard N., 35 Cal.4th at p. 127, quoting Addington v. Texas (1979) 441 U.S. 418, 425.) The requirement of serious difficulty in controlling dangerous behavior serves to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. ([Howard N., supra, 35 Cal.4th] at p. 128, italics added [by Howard N. court].) Quoting Kansas v. Hendricks (1997) 521 U.S. 346, 360, Howard N. explained that a prediction of future dangerousness, coupled with evidence of lack of volitional control, adequately distinguishes between persons who are subject to civil commitment and  other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.  (Howard N., supra, 35 Cal.4th at p. 129, quoting Hendricks, at p. 360.) (Galindo, supra, 142 Cal.App.4th at p. 537.)

The jury in the present case was instructed pursuant to CALCRIM No. 3453: David Wayne Sudar has been committed to a mental health facility. You must decide whether he currently poses a substantial danger of physical harm to others as a result of mental disease, defect, or disorder. That is the only purpose of this proceeding. You are not being asked to decide David Wayne Sudars mental condition at any other time or whether he is guilty of any crime. [] To prove that David Wayne Sudar currently . . . poses a substantial danger of physical harm to others as a result of mental disease, defect or disorder, the People must prove beyond a reasonable doubt that: [] One, he suffers from a mental disease, defect, or disorder; [] And, two, as a result of his mental disease, defect, or disorder, he now poses a substantial danger of physical harm to others.

The Attorney General concedes that, under our decision in People v. Zapisek, supra, 147 Cal.App.4th 1151, the trial court erred in failing to instruct the jury pursuant to Howard N., supra, 35 Cal.4th 117. It is argued, however, that the error was harmless because there was overwhelming evidence that appellant had serious difficulty controlling his dangerous behavior. We agree.

The evidence was undisputed that appellant continued to suffer from the same delusion that was operating when he committed the arson that led to his institutionalization. Indeed, Kennedy testified that appellants delusion had expanded to include more people: Not only did he continue to believe satanic cults were at work, but he believed a conspiracy was in place at the hospital to keep this a secret and keep him in the hospital. Appellant did not believe he was mentally ill, did not acknowledge having substance abuse problems, had no remorse for his criminal conduct, and consistently maintained that he would do the same thing in the same circumstances. According to Kennedy, although appellant was able to function well in some spheres, his delusion is such that his judgment is overridden by that. So that he feels if God tells him to do something, that he must follow through with that.

Appellants situation is thus similar to that of the defendant in Zapisek, who continued to believe wholeheartedly in delusions and experience paranoia which he cannot control, both of which are of the type that has led him to act violently in the past, and which cause him to act inappropriately, including so as to pose a danger to others. (Zapisek, supra, 147 Cal.App.4th at p. 1166.) We recognize that Zapisek found only substantial evidence that the defendant had serious difficulty controlling his dangerous behavior, whereas the question before us is whether we can say that  no rational jury could have failed to find [defendant] harbored a mental disorder that made it seriously difficult for him to control his violent . . . impulses . . . [making] the absence of a control instruction . . . harmless beyond a reasonable doubt.  (Howard N., supra, 35 Cal.4th at p. 138, quoting People v. Williams (2003) 31 Cal.4th 757, 760.) The evidence here satisfies this higher standard.

Appellant likens his case to People v. Galindo, supra, 142 Cal.App.4th 531. The defendant in that case suffered from bipolar disorder and an antisocial personality disorder but denied having either disorder or needing the medication he was given, and his psychiatrist believed he would stop taking the medication if released. He also denied having abused substances despite evidence in his record documenting such abuse and did not accept his criminal history including rape and burglary, but rather claimed he had been framed. The defendant did not want to work with the program that supervises patients after their release from a commitment, and his psychiatrist believed he would return to unlawful activities in an unstructured environment. (Id. at pp. 533-534.) Galindo found the failure to instruct the jury on the control element of the recommitment standard prejudicial. The court explained that there was abundant evidence that defendants behavior was dangerous and that he did not, in fact, control it. However, the fact he did not control his behavior does not prove that he was unable to do so, thus making him dangerous beyond [his] control. (Howard N., supra, 35 Cal.4th at p. 128.) There was little, if any, evidence that he tried to control his behavior, that he encountered serious difficulty when trying to do so, or that his difficulty was caused by his mental condition. Rather, the evidence strongly suggested that defendant did not try to control his dangerous behavior, because he perceived no reason to do so. . . . [] No expert opined that defendants scores on standardized tests, his pursuit of another patient, or any other evidence demonstrates that he tried to control his dangerous behavior but encountered serious difficulty in trying to do so. . . . To the extent that defendant did not try to control his dangerous behavior, the evidence did not suggest that he would have serious difficulty controlling his dangerous behavior, were he to try to do so. (Howard N., supra, 35 Cal.4th at p. 128.) (People v. Galindo, supra, 142 Cal.App.4th at p. 539.) Accordingly, the Galindo court could not say that no rational jury would have found the defendant had serious difficulty controlling his dangerous behavior. (Ibid.)

The present case bears superficial similarity to Galindo in that the evidence shows appellant does not recognize he suffers from mental illness or needs treatment. The difference, however, is that the evidence here shows that appellant continues to suffer from complex delusions that overpower his judgment. Given the undisputed evidence that appellants delusion remained unchanged from the time of the arsons and that he felt compelled to act in accordance with it, we find the instructional error harmless beyond a reasonable doubt.

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Richman, J.

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE COURT:

It is ordered that the unpublished opinion filed herein on December 18, 2007, be modified as follows:

1.                On page 13, the fifth sentence in the second paragraph should be changed to read: Galindo found the trial courts failure to consider the control element of the recommitment standard prejudicial.

2.                  On page 14, at line 7, the following sentence should be added as the last sentence of the quote (i.e., inside the closing quotation mark), and before the citation to People v. Galindo, supra, 142 Cal.App.4th at p. 539: In short, the evidence was not such that any rational jury would have found that  [defendant] harbored a mental disorder that made it seriously difficult for him to control his [dangerous behavior] . . . [making] the absence of a control instruction . . . harmless beyond a reasonable doubt. [Citation.] (Id. at p. 138.) (People v. Galindo, supra, 142 Cal.App.4th p. 539.)

3.                  On page 14, the last sentence of the paragraph at the top of the page, beginning Accordingly, . . . should be deleted in its entirety.

The request of appointed counsel for appellant for partial publication of this opinion is granted, and it is hereby ordered that the unpublished opinion filed herein on December 18, 2007, be certified for partial publication, with the exception of part I of the Discussion section at pages 7-10.

There is no change in the judgment.

_____________________________

Kline, P.J.

Trial Court: Mendocino County Superior Court

Trial Judge: Hon. Ronald Brown

Attorneys for Appellant: First District Appellate Project

Matthew Zwerling, Executive Director

Jeremy Price

Attorneys for Respondent: Edmund G. Brown Jr., Attorney General

Dane R. Gillette, Chief Asst. Atty. Gen.

Gerald A. Engler, Sr. Asst. Atty. Gen.

Stan Helfman, Supervising Deputy A.G.

Sharon G. Birenbaum, Deputy Atty. Gen.

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[1] All statutory references will be to the Penal Code unless otherwise specified.

[2] Singh explained that an open unit is not locked, although it is behind the fence of the hospital, and its patients are eligible to go onto the hospital grounds at their own will. An open unit is considered to prepare patients for discharge into the community.

[3] Although not of direct significance in resolving this appeal, the statutory timeline for the medical directors opinion was also violated: The medical directors letter requesting the prosecutor to file a petition for extension of commitment was dated July 10, 2006, only 86 days before expiration of appellants maximum term of confinement, rather than the minimum 180 days required by section 1026.5, subdivision (b)(2).

[4] After trial, on September 12, the court placed appellants case on calendar for consideration of People v. Galindo (2006) 142 Cal.App.4th 531, which had been certified for publication after the jurys verdict and which supported appellants position on the jury instruction modification he had requested. At a hearing on September 27, the court advised the defense to file a motion for new trial if it wanted the issue addressed. This apparently did not occur.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part I of Discussion at pages 7-10.