P. v. Jaimes

1
Filed 10/26/09 P. v. Jaimes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ANTONIO JAIMES,
Defendant and Appellant.
E045215
(Super.Ct.No. CR59141)
OPINION
APPEAL from the Superior Court of Riverside County. James A. Edwards
(retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.); Carl E. Davis (retired judge of the San Bernardino Super.
Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.); Helios (Joe)
Hernandez; J. Thompson Hanks; and Stephen D. Cunnison, Judges.1 Reversed.
1 Judges Edwards, Davis, Hernandez, and Hanks ruled on motions for
continuance and/or dismissal; Judge Cunnison presided over trial.

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Barbara A. Smith, under appointment of the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and
Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Luis Antonio Jaimes appeals from the extension of his Mentally
Disordered Offender (MDO) commitment. He argues he was denied due process when
his trial, without good cause, was delayed for 344 days after his release date on the
petition for continued involuntary treatment.2 He further argues he was denied a fair trial
when the staff psychiatrist testifying for the prosecution repeatedly violated rulings
excluding reference to previous findings of MDO status. We agree with defendant‟s first
contention, and we will reverse on that basis. We therefore need not address defendant‟s
second contention.
2 The issue is presently pending before the California Supreme Court. In People
v. Cobb (2007) 157 Cal.App.4th 393, review granted March 12, 2008, S159410, the court
granted review to address the following issues: “(1) Was defendant denied due process
and a fair trial by delay in the prosecution of a petition for continued involuntary
treatment until 23 days after his release date? (2) Did defendant‟s pre-parole certification
as a mentally disordered offender, who was required to accept treatment as a condition of
parole, suffice to justify his continued detention pending trial on a petition for continued
involuntary treatment?”

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II. FACTS AND PROCEDURAL BACKGROUND
In 1995, defendant received a two-year prison sentence for a conviction of assault
with a deadly weapon, a knife, against his sister-in-law (Pen. Code,3 § 245, subd. (a)(1).)
In 1996, he was transferred to a state hospital and was found to be an MDO. He has been
recommitted annually since 1996.
On November 17, 2006, the Riverside County District Attorney filed a petition
under section 2970 for the continued involuntary treatment of defendant. The petition
alleged that defendant had previously been convicted of assault with a deadly weapon
and had previously been required to be involuntarily treated under sections 2960 through
2968. The petition alleged defendant had a severe mental disorder, which was not in
remission and could not be kept in remission without treatment, and by reason of his
severe mental disorder, defendant represented a substantial danger of physical harm to
others. Defendant‟s involuntary treatment would expire on February 26, 2007.
Jury trial on the petition began nearly a year later, on February 4, 2008.4 Because
they are not relevant to the dispositive issue on appeal, we will not recount the details of
defendant‟s trial. On February 7, 2008, the jury found defendant to be an MDO. The
trial court ordered the continued involuntary treatment of defendant at Metropolitan State
3 All further statutory references are to the Penal Code unless otherwise indicated.
4 The factual and procedural background relating to the delay in trial is set forth in
the discussion of defendant‟s due process challenge to his delayed trial.

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Hospital (Metropolitan) and extended that involuntary treatment to February 26, 2008.
Defendant filed a notice of appeal from the order.
Meanwhile, on February 19, 2008, the district attorney filed another petition under
section 2970 for the continued involuntary treatment of defendant. On March 4, 2008,
defendant waived his right to a jury trial on the February 19 petition, and the trial court
found defendant was an MDO. The court ordered the continued involuntary treatment of
defendant, ordered him transferred from Metropolitan to Patton State Hospital (Patton),
and extended the involuntary treatment to February 26, 2009.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Mootness
The People contend defendant‟s appeal is moot because the commitment period
stemming from the petition at issue has expired. However, even if the appeal was
rendered technically moot, we will nonetheless review the appeal on the merits because
defendant is subject to recertification as an MDO, and the issue is of recurring
importance and is otherwise likely to evade review due to the time constraints of MDO
commitments. (People v. Merfield (2007) 147 Cal.App.4th 1071, 1074-1075.)
B. Delay of Trial on Petition for Continued Involuntary Commitment
Defendant contends he was denied due process and a fair trial when the
prosecution, without good cause, delayed trial on a petition for continued involuntary
treatment for 344 days after his release date.

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1. Additional Factual Background
At a hearing on January 5, 2007, counsel appearing for defendant‟s counsel stated
that defendant‟s counsel would be away for the entire month. At the defense request,
Judge Edwards scheduled the trial readiness conference for February 9.
On February 9, 2007, defense counsel requested that the court appoint Dr. Michael
Kania to do a confidential evaluation and that the matter be continued for a month. Judge
Davis granted both requests.
On March 9, 2007, defense counsel stated she had not yet received Dr. Kania‟s
report, and at her request, Judge Edwards continued the matter until March 23.
On March 23, 2007, the prosecutor stated her belief that the hearing was for return
of doctors‟ reports, but defense counsel asserted the hearing was to set a trial date. The
prosecutor requested that the matter be continued for a week. Defense counsel objected
to any continuance and stated that the matter had already been continued over her
objection5 and that defendant‟s commitment had already expired. Judge Davis stated that
he had one jury deliberating and had been assigned another criminal case with a jury in
attendance. Defense counsel moved to dismiss based upon the denial of a speedy trial.
Judge Davis found good cause for a continuance “based upon the condition of the
criminal calendar with priority, and the fact that this Court is currently engaged in a
criminal jury trial.”
5 The record does not indicate any earlier defense objection to continuing the
matter.

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Defense counsel requested that the matter be sent to the master calendar
department, but Judge Davis denied that request because “the master criminal calendar is,
likewise, backed up trying to get criminal cases out.” Following the noon recess, defense
counsel told Judge Davis she was ready and available for trial, and she objected to any
further continuance. She argued the trial court abused its discretion in finding good cause
for continuing MDO cases on an ongoing basis, and defendant‟s fundamental right to
liberty was at stake. She requested Judge Davis to either let the master calendar
department know the case was beyond the statutory period and that other arrangements
must be made, or to send the parties to the master calendar department. The prosecutor
stated she was not ready for trial because she had not made arrangements for the doctors
to testify. Judge Davis denied a defense motion to dismiss and suggested May 7 for the
trial date. Defense counsel stated that was unacceptable because it was over a month
away and more than three months behind the statutory framework. The prosecutor stated
she did not have her witnesses lined up yet, and Judge Davis set the matter for March 26
for a report on the availability of witnesses.
On March 26, 2007, defense counsel moved to proceed to trial forthwith, objected
to any further continuances, and moved to dismiss because the matter was beyond the
statutory time for trial. She argued the delay in trial violated defendant‟s rights to due
process and equal protection. The prosecutor stated she had called Metropolitan to
determine when witnesses were available but had not received a return call. She asked
that the matter be set for trial in the last two weeks of April so she could subpoena the

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doctors. Defense counsel objected to a continuance and argued that the doctors at
Metropolitan, as state employees, could be told to go to court on a given day. Judge
Davis stated the court was not available because he had a jury deliberating in a felony
trial and had another criminal matter ready to go to trial with a jury in attendance. Judge
Davis found good cause to continue the matter based on court congestion and set the
matter for pretrial on April 27 and for jury trial on April 30. Judge Davis overruled a
defense objection to the continuance and denied a motion to dismiss.
On April 27, 2007, defense counsel stated she was ready and available for trial on
April 30. Counsel appearing for the prosecutor requested a continuance until May 7
because the prosecutor was in another trial. Defense counsel objected to another
continuance. Judge Davis found good cause for a continuance until May 7 because the
court had been continuously in trial for the last two months without a day‟s lapse, “and
the same condition exists throughout Riverside County.” Defense counsel moved for
dismissal, but Judge Davis denied the motion.
On May 7, 2007, defense counsel announced she was ready and available for trial.
Counsel appearing for the prosecutor requested a continuance until May 10 because the
prosecutor was in trial. Defense counsel objected to the request and moved to dismiss.
Judge Hernandez denied both defense motions. Judge Hernandez did not make any
specific finding of good cause, but stated, “[T]his is a civil/criminal [hybrid], which
doesn‟t have a statutory speedy trial right. The only right is a constitutional right, due
process.”

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On May 10, 2007, the prosecutor stated she had issued a subpoena duces tecum for
medical records and asked that they be released for copying. She stated she “need[ed] the
records to figure out which doctor to subpoena.” Judge Hernandez continued the hearing
on the motion for jury trial to May 14, over defense objection. Judge Hernandez did not
make any finding of good cause, but told defense counsel to put her motion to dismiss in
writing.
On May 14, 2007, defense counsel announced that she was ready and available for
trial. After hearing other matters, Judge Hernandez learned that defense counsel was no
longer available because she was in a trial. The prosecutor informed Judge Hernandez
that she had subpoenaed defendant‟s medical records the previous week. Judge
Hernandez ordered the records to be released and shared with defendant. Judge
Hernandez continued the hearing to May 22.6
On May 22, 2007, an attorney appearing on defense counsel‟s behalf stated that
defense counsel was ready but unavailable for trial until May 30 because she was in
another trial. Judge Hernandez continued the trial to May 30.
On May 30, 2007, the prosecutor stated she had filed a request for continuance
under section 1050. An attorney appearing on defense counsel‟s behalf stated that
6 We note that many of the trial court‟s minute orders reflect that hearings were
continued pursuant to stipulation of counsel. However, the reporters‟ transcripts of the
hearings on those dates reflect no such stipulations; rather, defense counsel continued to
object strenuously to any continuances.

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defense counsel was engaged in another trial and would not be available until June 1.
Judge Hernandez continued trial to June 4 because of defense counsel‟s unavailability.
On June 4, 2007, an attorney appearing on the prosecutor‟s behalf stated that the
prosecutor was in trial, requested a continuance to June 13, and stated that the case would
be reassigned to another deputy district attorney. Defense counsel objected to a
continuance. Judge Hernandez stated that the prosecution needed to be ready on June 13
and continued the matter to that date.
On June 13, 2007, an attorney appearing on defense counsel‟s behalf stated that
defense counsel was unavailable until the following day. Judge Hernandez granted a
continuance to June 14.
On June 14, 2007, an attorney appearing on defense counsel‟s behalf stated that
defense counsel was unavailable because she was attending a funeral and asked that the
matter trail until the next day. Judge Hernandez granted the request.
On June 15, 2007, defense counsel stated she was ready and available for trial.
The newly assigned prosecutor stated he had filed a motion for a continuance under
section 1050 because witnesses were unavailable. He requested a continuance until
July 17. Defense counsel stated she had not received a copy of the motion, and she
objected to a continuance. Judge Hernandez continued the matter to June 18 and
requested the prosecutor to provide more information about when witnesses would be
available.

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On June 18, 2007, Judge Hernandez noted that the prosecutor had filed a written
motion requesting a continuance based on the availability of the treating staff physician.
Defense counsel announced she was ready and available for trial and objected to a
continuance. She reminded the court she would be on vacation from July 23 to
August 10. Judge Hernandez found good cause for a continuance because Dr. Abrams,
who would be a necessary witness,7 was going to be on vacation. Judge Hernandez set
jury trial for July 11.
On July 11, 2007, the prosecutor stated he had filed a motion to continue the
matter to July 17 because of the unavailability of Dr. Abrams. An attorney appearing for
defense counsel stated defense counsel would not be available until July 17. Judge
Hernandez set jury trial for July 17.
On July 17, 2007, defense counsel moved for a continuance of trial until
August 14 to accommodate her previously scheduled vacation. Judge Hernandez granted
the motion.
On August 14, 2007, defense counsel stated she was ready and available for trial
and objected to further delay. The prosecution had filed another motion for continuance
on the grounds he was the trial attorney on another case which needed priority because of
material witness availability and because two witnesses in the current matter had not yet
responded to their subpoenas. The prosecutor stated he was not ready for trial. Defense
7 We note that although the prosecutor represented that Dr. Abrams was a
necessary witness, and trial was delayed to accommodate Dr. Abrams‟s schedule,
Dr. Abrams did not in fact testify at trial.

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counsel filed an opposition to the motion on the grounds that (1) the prosecutor‟s other
trial involved a defendant who was out of custody, whereas defendant remained confined
at Metropolitan; (2) defendant‟s trial had previously been assigned to a number of other
deputy district attorneys, and one of them could be reassigned to defendant‟s trial even if
the currently assigned deputy was unavailable; (3) the prosecution had been dilatory in its
attempts to serve witnesses; and (4) given that the petition had been filed nine months
earlier, under section 2970, subdivision (a), the matter should have been tried seven
months earlier. Judge Hernandez granted the prosecutor‟s motion for a continuance until
August 22.
On August 22, 2007, defense counsel announced she was ready and available for
trial, objected to further delay, and renewed her motion to dismiss. The prosecutor
announced he was also ready for trial. Because defendant was housed at Metropolitan
and had not been transported to court, Judge Hernandez trailed the matter to the
following day.
On August 23, 2007, defense counsel stated she was ready but was unavailable for
trial because she was in trial on another case. Judge Hernandez set the matter for trial on
September 12.
On September 11, 2007, the prosecutor filed a motion to continue the trial to
September 19 on the grounds that the prosecutor was assigned to trial in a criminal case
to begin on September 12 and that the People had been ready and available when the case
was last on calendar and had been continued on the defense‟s motion.

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On September 12, 2007, Judge Hernandez indicated defense counsel had informed
the court she was performing jury service. Judge Hernandez continued the matter for one
week.
On September 19, 2007, defense counsel announced she was ready and available
for trial, objected to further delay, and moved to dismiss the case because defendant‟s due
process rights had been violated. Counsel appearing for the prosecutor stated that the
prosecutor was engaged in a criminal trial that would be finished on Monday, and he
would prefer a continuance but would be ready to proceed if the matter was sent to a
courtroom. The trial court stated, “This is one of those cases that has a . . . constitutional
due process right to a speedy trial, but not a statutory one as due to the people charged
with crimes for right now. All these cases are just on hold. Looking for a place, you
know, which does pop up occasionally.” Judge Hernandez set the matter for jury trial on
September 24.
On September 24, 2007, the parties announced ready for trial, and Judge
Hernandez set the jury trial to trail to the following day.
On September 25, 2007, Judge Hernandez assigned the case to Judge Hanks for all
purposes. The same day, defense counsel filed a written objection to the delay and also
filed a declaration under Code of Civil Procedure section 170.6 as to Judge Hernandez.
On September 26, 2007, defense counsel filed another written objection to delay in
commencement of trial.

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On November 16, 2007, defendant filed a notice of appeal from the orders denying
him a jury trial on the MDO petition (case No. E044627).8 On the court‟s own motion,
we deemed the appeal to be a petition for writ of mandamus. (The writ petition was
ultimately dismissed on defense counsel‟s representation that the issues raised in the
petition had become moot.)
On January 4, 2008, a trial date of January 7 was set. On January 7, defense
counsel stated she was ready and available for trial and objected to any further
continuance, but the prosecutor announced he was not ready. Defense counsel moved to
dismiss the petition on the ground “the year contemplated of commitment by the pending
petition has already expired.” Judge Hanks denied the motion. Judge Hanks stated he
would try to find a courtroom for the trial. The court‟s minute order states that defense
counsel was later sent out to trial and was unavailable. On his own motion, Judge Hanks
continued the matter to January 16, 2008.
On January 8, 2008, Judge Hanks ordered defendant sent back to Metropolitan so
he could continue on his medications and ordered that defendant be retransported to court
on January 16.
On January 15, 2008, the prosecutor moved to continue the matter to January 30
because he had not yet received defendant‟s medical records from and after February
2007 that had been subpoenaed and he was currently assigned to a criminal case that
8 We have taken judicial notice of the record in E044627.

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would be going to trial. Judge Hanks set an hearing on an order to show cause regarding
the subpoenaed documents and continued the matter to January 23.
On January 16, 2008, Judge Hanks stated he had received a section 1050 motion
from the prosecutor stating that another felony matter had priority over the current case.
The prosecutor also stated that he had expected certain materials from Metropolitan that
day, but he had not received them. Defense counsel announced ready and available for
trial and objected to further delay. Judge Hanks responded that the record was replete
with her objections and suggested that she take a writ to get the matter resolved. Judge
Hanks continued the matter for a week, to January 23. Defense counsel requested to be
heard on the specifics of the section 1050 motion, but the trial court denied the request.
On January 23, 2008, Judge Hanks ordered defendant‟s medical records to be
released to the prosecutor for copying and granted the prosecutor‟s motion to continue
the matter to January 31.
On January 31, Judge Cunnison stated that there would be no further delay, and
the parties would get their courtroom. Defense counsel again moved to dismiss on the
ground of extensive delays over defense objections. Judge Cunnison stated that in each
instance, the prior judges had made determinations of good cause, and he was “not in a
position to be able to look back over and say in a particular instance or in all instances
collectively there was not good cause.” Judge Cunnison therefore denied the motion.
Defendant‟s trial finally began on February 4, 2008.

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2. Standard of Review
“A trial court‟s finding of „good cause,‟ if any, is reviewed on appeal for abuse of
discretion. [Citations.] If there is no abuse of discretion, the „good cause‟ finding stands
and there is no statutory violation. [Citation.]” (People v. Tatum (2008) 161 Cal.App.4th
41, 56 (Tatum).) And even if a statutory violation has occurred, “the commitment
proceeding is not rendered invalid absent a due process violation. [Citation.]” (Id. at p.
57.) Delay of trial beyond the statutory deadlines “„is judged using “[t]he due process
test utilized under both federal and state speedy trial decisions[, which] involves a
balancing of any prejducial effect of the delay against the justification for the
delay”‟ . . . . Where there is no prejudice, there is no due process violation, regardless of
the reasons (or lack thereof) for the delay. [Citations.]” (Ibid.)
3. Analysis
a. The statutory framework
Our Supreme Court in People v. Allen (2007) 42 Cal.4th 91, 98 (Allen),
recognized that the Mentally Disordered Prisoners Act (MDPA) (§ 2960 et seq.)
incorporates a “delicate balancing” of individual and public interests. Under the MDPA,
a defendant may initially be committed to a state mental hospital, among other methods,
if a jury finds beyond a reasonable doubt that (1) the defendant has a severe mental
disorder that is not in remission and cannot be kept in remission without treatment;
(2) the severe mental disorder was a cause of or an aggravating factor in the commission
of the underlying crime; (3) the defendant has been in treatment for at least 90 days

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within the year before his or her parole release date; and (4) the defendant presents a
substantial danger of physical harm to others due to a severe mental disorder. (§§ 2962,
subds. (a)-(d), 2966, subd. (c).)
Following that initial commitment, if the defendant‟s severe mental disorder is not
in remission and cannot be kept in remission, the medical director of the state hospital
treating him or her must provide a written evaluation to the district attorney at least 180
days before the defendant‟s scheduled release date, and the district attorney may then file
a petition to continue involuntary treatment for one year. (§ 2970.) Trial on the petition
“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.” (§ 2972, subd. (a).)
The defendant is entitled to a jury trial on the petition, and the trier of fact must
find beyond a reasonable doubt that the defendant has a severe mental disorder that is not
in remission or cannot be kept in remission without treatment, and as a result of such
disorder, presents a substantial danger of physical harm to others. (§ 2972, subds. (a),
(c).) Based on such findings, the trial court may order the defendant‟s continued
confinement for one year. (§ 2972, subd. (c).)
Indisputably, section 2972, subdivision (a) was violated in this case: defendant‟s
trial did not begin for 344 days after expiration of the previous commitment period, and
section 2972, subdivision (a) calls for trial to begin on a recommitment period “no later
than 30 calendar days” before the defendant‟s release date. As defendant acknowledges,

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however, the 30-day time limit set forth in section 2972, subdivision (a) is directory, not
mandatory. (Tatum, supra, 161 Cal.App.4th at pp. 56-57; People v. Williams (1999) 77
Cal.App.4th 436, 451, 456.) The directory time limit for trial may be waived or extended
for good cause (§ 2972, subd. (a)), and violation of the time limit invalidates an MDO
proceeding only if the error results in a due process violation. (People v. Williams, supra,
at p. 456; People v. Fernandez (1999) 70 Cal.App.4th 117, 131 (Fernandez).)9 A
defendant‟s due process is violated only if the statutory violation was prejudicial to the
defendant and good cause for the delay was lacking. (See Tatum, supra, at p. 61.)
Therefore, we will first determine whether defendant suffered prejudice from the delay.
b. Prejudice
The court in Zachary v. Superior Court (1997) 57 Cal.App.4th 1026, recognized
that the MDO Act “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, italics added.) “[I]n the context of
untimely MDO petitions, the courts have recognized that relevant prejudice will generally
take one of two forms: (i) an inability to prepare for trial in the time remaining prior to
the offender‟s release date [citation], or (ii) the involuntary confinement of an offender
9 The only mandatory time limit under the MDO statutes is that the district
attorney must file a recommitment petition before the MDO‟s current commitment term
ends. (§ 2972, subd. (e); Allen, supra, 42 Cal.4th at p. 104 [a petition not filed before that
deadline must be dismissed].)

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beyond the offender‟s statutorily authorized release date. [Citation.]” (Id. at p. 1036.) In
that case, the court held that the defendant had “suffered prejudice, i.e., 24 days of
unauthorized confinement in a state mental hospital prior to the filing of the petition for
recommitment, followed by continued unauthorized confinement to date.” (Id. at p.
1036.) In Allen, the Supreme Court stated that delay in filing a commitment petition
resulting in a violation of the MDO‟s procedural requirements might be “deemed
prejudicial” because the defendant was denied his annual review under the MDO, even if
recommitment might have been authorized if the petition had been timely filed. (Allen,
supra, 42 Cal.4th at p. 105.)
Here, defendant was in involuntary custody for 344 days beyond his release date,
and we therefore presume prejudice. (Zachary v. Superior Court, supra, 57 Cal.App.4th
at p. 1036; Allen, supra, 42 Cal.4th at p. 105.) We conclude, therefore, that as a matter of
law defendant has suffered prejudice. However, as the court pointed out in Tatum, the
degree of prejudice varies depending on factors such as the length of the delay. (Tatum,
supra, 161 Cal.App.4th at pp. 62-63.) And whether such prejudice warrants dismissal
depends on “the severity of the prejudice and, on the other side of the due process
balance, the justification for the delay.” (Id. at p. 63.) We next examine whether the
delay in bringing defendant to trial on the petition was justified by good cause. (Id. at p.
61.)

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c. Good cause
In the analogous situation of a defendant‟s statutory right to a speedy trial under
section 1382, the trial court has discretion to determine what constitutes good cause for a
continuance. (People v. Johnson (1980) 26 Cal.3d 557, 570 (Johnson).) Generally, delay
caused by the defendant‟s conduct or for his benefit constitutes good cause, as does delay
arising from unforeseen circumstances, such as the unexpected illness or unavailability of
counsel or a witness. (Ibid.) However, delay attributable to the fault of the prosecution
or delay caused by improper court administration does not constitute good cause. (Ibid.)
The initial delays, at least until March 23, 2007, and occasional other delays, were
at the request of the defense and those delays were therefore supported by good cause.
(Johnson, supra, 26 Cal.3d at p. 570.)
The various trial courts granted continuances on March 26, April 27, and
September 19, 2007, among other dates, because of court congestion. It is well settled
that chronic court congestion and overcrowding do not constitute good cause for a
continuance. (Johnson, supra, 26 Cal.3d at pp. 570-572; Arreola v. Municipal Court
(1983) 139 Cal.App.3d 108, 113-115; Rhinehart v. Municipal Court (1984) 35 Cal.3d
772, 781-782.) Otherwise, the state‟s failure to provide adequate court funding would be
used to consistently deny criminal defendants their right to a speedy trial. (Johnson,
supra, at pp. 571-572.) The state has an obligation to provide sufficient resources to
dispose of the usual court business promptly; thus, court congestion is not good cause

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unless the circumstances are exceptional, such as when unique, nonrecurring events occur
that produce an unusual number of cases. (Ibid.)
Here, the record shows that the lack of available courtrooms was the result of
chronic court congestion, and nothing in the record suggests exceptional circumstances.
Indeed, court congestion in Riverside County is chronic and ongoing. (See, e.g., People
v. Cole (2008) 165 Cal.App.4th Supp. 1, 5-8, 16.) In People v. Litmon (2008) 162
Cal.App.4th 383 (Litmon), a case addressing recommitment procedures under the
Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), the court
held that “any chronic, systematic postdeprivation delays in SVP cases that only the
government can rectify must be factored against the People. . . . [P]ostdeprivation delays
due to the unwillingness or inability of the government to dedicate the resources
necessary to ensure a prompt SVPA trial may be unjustifiable. . . . [P]ostdeprivation,
pretrial delays in SVPA proceedings cannot be routinely excused by systemic problems,
such as understaffed public prosecutor or public defender offices facing heavy caseloads,
underdeveloped expert witness pools, or insufficient judges or facilities to handle
overcrowded trial dockets.” (Litmon, supra, at p. 403, fn. omitted.)
The various trial courts also found good cause to continue defendant‟s trial on
June 15, June 18, and August 14, 2007, among other dates, because the prosecutor
requested time to obtain defendant‟s medical records or to secure the attendance of
witnesses. Under some circumstances, such purposes could constitute good cause for a
continuance. However, the trial court failed to consider the timing of the requests or the

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resulting effect on defendant. The petition to extend defendant‟s MDO commitment had
already been pending for months when the prosecutor made the first request for medical
records. The trial court did not ask the prosecutor why the records had not been
requested or witnesses secured sooner, and the belated requests support an inference that
the prosecutor was not ready for trial on any of the earlier court dates and would have
requested continuances even if defense counsel had not. Moreover, in granting the
prosecutor‟s requests for continuances for discovery purposes, the trial court did not
consider that defendant had already been held for months after the expiration of his
current MDO commitment. We therefore disagree with the trial court‟s conclusion that
good cause existed for granting the requests for such continuances. “Delay attributable to
the fault of the prosecution . . . does not constitute good cause. Neither does delay caused
by improper court administration. [Citation.]” (Johnson, supra, 26 Cal.3d at p. 570, fn.
omitted.)
We conclude that on numerous occasions, the proffered justifications for the
delays were inadequate as a matter of law to excuse the delay of defendant‟s trial, “given
the magnitude of the liberty interest at stake, the serious harm to this interest already
occasioned by the protracted delay, and the possibility that the interim decisions . . . may
have been mistaken.” (Litmon, supra, 162 Cal.App.4th at p. 405.) Although the Litmon
court addressed proceedings under the SVPA, the court‟s reasoning applies fully to
delays in MDO recommitment trials.

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d. Due process
Having found prejudice and lack of good cause for delays, our final task is to
determine whether defendant was deprived of due process. To do so, we measure the
severity of the prejudice against the justification for the delays. (Tatum, supra, 161
Cal.App.4th at p. 63.)
Due process analysis in MDO cases relies on analogous law under state and
federal speedy trial cases. (Tatum, supra, 161 Cal.App.4th at p. 61.) As the court
explained in Tatum, “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, . . . a
violation is likely if sufficient prejudice is present. In addition, the „[l]length 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.)
In People v. Otto (2001) 26 Cal.4th 200 (Otto), the court held that civil
commitment—in that case, under the SVPA—involves a significant deprivation of
liberty, and a defendant in a proceeding under the SVPA is entitled to due process
protections. (Id. at p. 209.) “„Once it is determined that due process applies, the question
remains what process is due.‟” (Id. at p. 210, quoting Morrissey v. Brewer (1972) 408
U.S. 471, 481.) The court listed four factors relevant to that inquiry: “(1) the private
interest that will be affected by the official action; (2) the risk of an erroneous deprivation

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of such interest through the procedures used, and the probable value, if any, of additional
or substitute procedural safeguards; (3) the government's interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail; and (4) the dignitary interest in informing
individuals of the nature, grounds, and consequences of the action and in enabling them
to present their side of the story before a responsible government official. [Citation.]”
(Otto, supra, at p. 210.)
The first factor under the Otto test is the private interest involved. (Otto, supra, 26
Cal.4th at p. 210.) In an MDO recommitment proceeding, that interest is the individual‟s
interest in liberty (see Jones v. United States (1983) 463 U.S. 354, 361) and reputation
(see Addington v. Texas (1979) 441 U.S. 418, 424, 425). The United States Supreme
Court has long “recognized that civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protection.” (Addington v.
Texas, supra, at p. 425.) Thus, this factor weighs strongly in defendant‟s favor.
The second factor under the Otto test is the risk of an erroneous deprivation of the
private interest. (Otto, supra, 26 Cal.4th at p. 210.) In an MDO recommitment
proceeding, the risk is that a person will be held in continued confinement even though he
is no longer mentally ill or dangerous. The centerpiece of the People‟s argument is that
an MDO does not have a due process right to an annual jury trial because the pre-parole
certification as an MDO justifies continued confinement pending trial on a re-

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commitment petition, and an MDO cannot show actual prejudice from continued
confinement after the parole expiration date.
In Zachary, the court rejected the People‟s argument that “a presumption of
continued dangerousness is effected by the district attorney‟s mere filing of a petition for
commitment under the MDPA.” (Zachary, supra, 57 Cal.App.4th at p. 1036.) “To the
contrary, the MDPA requires the People to prove beyond a reasonable doubt that the
committed person continues to pose a substantial danger of physical harm to others.
[Citation.] Were the trial court to balance the alleged danger to the public against the
prejudice to the committed person when a petition for extended commitment is belatedly
filed, the requirement of conducting the trial prior to the expiration of the commitment
would be effectively vitiated.” (Ibid.)
The court in Tatum similarly rejected the People‟s argument that due process is
never implicated when an MDO recommitment trial is delayed past the release date. In
that case, the People contended that “because (analogizing to the preliminary hearing in a
criminal prosecution) there has been—at the time that the prisoner is initially committed
as a condition of parole—a preliminary finding by the state‟s psychiatrists that the
defendant is an MDO, leaving the only question remaining for trial: whether the
defendant is still an MDO after receiving treatment throughout the parole period.”
(Tatum, supra, 161 Cal.App.4th at p. 64, fn. omitted.) The court explained that it found
“this argument far too sweeping . . . as it implicitly invalidates decades of California case
law . . . and renders meaningless the provisions of the MDO Act intended to protect the

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offender‟s liberty interests (e.g., the right to a jury trial). Indeed, if this contention were
valid, an offender‟s trial need not „commence no later than 30 calendar days prior to the
time the person would otherwise have been released‟ (§ 2972, subd. (a)), but can instead
be held whenever the state desires, regardless of the reasons for any delay or resulting
prejudice, because the state’s psychiatrists have already resolved (much of) the
issue. . . .” (Ibid.) We agree with the analysis of the Tatum and Zachary courts.
The third factor under the Otto test is the government‟s interest at stake and the
corresponding burdens. (Otto, supra, 26 Cal.4th at p. 210.) In an MDO proceeding, that
interest is the protection of the public from dangerous mentally ill individuals,
indisputably an important concern. However, in analyzing this third factor, we also
examine the fiscal and administrative burden that protecting the defendant‟s interests
would entail. As noted, in enacting the MDPA, the Legislature engaged in a “delicate
balancing” of individual and public interests. (Allen, supra, 42 Cal.4th at p. 98.) That
balancing contemplates annual trials to determine whether the defendant‟s commitment
may continue. The “burden” on the government is merely to provide adequate judicial
resources to enable that determination to be timely made consistent with the statutory
scheme. As has long been recognized, the state has an obligation to provide resources to
dispose of usual court business promptly. (Johnson, supra, 26 Cal.3d at pp. 571-572.)
The fourth and final factor under the Otto test is the individual‟s dignitary interest
in being informed of the nature, grounds, and consequences of the action and in being
able then to present his side of the story before a responsible government official. (Otto,

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supra, 26 Cal.4th at p. 210.) Although due process is a flexible concept, “„[t]he primary
purpose of procedural due process is to provide affected parties with the right to be heard
at a meaningful time and in a meaningful manner.‟” (Edward W. v. Lamkins (2002) 99
Cal.App.4th 516, 532; italics added.) Although section 2972, subdivision (b) does not
require, in every case, that trial on a recommitment petition begin at least 30 days before
the end of a prior commitment period, delaying trial for nearly a year past that date
indisputably deprives the defendant of a hearing at a meaningful time.
In Zachary, the court found a due process violation when the recommitment
petition was filed 24 days after the scheduled release date. (Zachary, supra, 57
Cal.App.4th at pp. 1029, 1037.) The court interpreted the MDPA‟s provisions as
requiring the prosecutor to file a recommitment petition “sufficiently in advance of the
release date to guarantee the completion of trial on the petition before the discharge of
parole or other scheduled release date.” (Id. at p. 1031.) Applying a due process
analysis,10 the court held that because the defendant was unable to prepare for a pre-
release date trial because of the late-filed petition, he had suffered prejudice in his
continued, unauthorized confinement. (Id. at pp. 1036-1037; see also People v. Hill
(1982) 134 Cal.App.3d 1055, 1060 [holding that the dismissal of an involuntary
commitment petition was required because “it was realistically quite impossible in the
10 Subsequent to Allen, the same result would now be reached on the ground that
the recommitment petition was invalid, in that it was filed after the commitment period
had expired. (Allen, supra, 42 Cal.4th at p. 105.)

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brief time that remained” before the commitment expired “to bring the matter to even the
most hurried conclusion with any semblance of due process”].)
The People rely on other cases in which courts found no violation of due process;
however, those cases are distinguishable on their facts. In Fernandez, the court found no
actual prejudice, and therefore no violation of due process, when the recommitment
petition was filed late, but trial nonetheless began seven days before the scheduled release
date. (Fernandez, supra, 70 Cal.App.4th at pp. 121, 133-134.) In People v. Kirkland
(1994) 24 Cal.App.4th 891, 913 (Kirkland), the court similarly found no prejudice, and
therefore no due process violation, when the recommitment petition was filed late, and
trial on the recommitment petition did not begin until six days before the defendant‟s
release date, but trial was nonetheless completed before the scheduled release date, and
the defendant had an adequate time to prepare for trial. Thus, neither Fernandez nor
Kirkland provides any support for permitting trial to be delayed for nearly a year after the
defendant‟s scheduled release date.
In Kirkland, the court explained that the primary purpose of the 30-day
requirement of section 2972 was not to enhance the defendant‟s ability to prepare for
trial, but “to ensure that the trial can be concluded before the defendant is due to be
released.” (Kirkland, supra, 24 Cal.App.4th at p. 913.) The court continued, “Partly, this
benefits the defendant: the defendant need not remain confined beyond the release date
pending the end of trial. [Citation.] Partly, it benefits the public: trial can be completed
before a severe mentally disordered prisoner who poses a substantial danger of physical

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harm to others must be released. [Citations.]” (Ibid., italics added.) Thus, in our view,
the Kirkland court‟s reasoning is actually more helpful to defendant‟s position than to
that of the People.
In another case on which the People rely, People v. Noble (2002) 100 Cal.App.4th
184, the prosecutor filed the recommitment petition less than 30 days before the
defendant‟s scheduled release date, and trial began on the petition 27 days after the
release date. (Id. at pp. 187-188.) The court rejected the defendant‟s claim that the delay
in trial violated his due process rights and found the defendant had suffered no actual
prejudice from the “relatively brief delay.” (Id. at p. 188.) In the present case, in
contrast, the delay was not “relatively brief” but comprised nearly the entire one-year
term for which defendant could have been recommitted.
Defendant was entitled to a timely resolution of his MDO status. Because the
numerous continuances in this case were not based on good cause, and the unjustified
delays resulted in prejudice to defendant, we conclude that the trial court erred in
granting continuances and in denying defendant‟s motions to dismiss the petition.
We note, as the court did in Allen, that our conclusion does not necessarily mean
defendant will be released; if he is still in need of mental health treatment, defendant may

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be evaluated under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.)
for continued involuntary treatment. (See Allen, supra, 42 Cal.4th at pp. 105-108.)
IV. DISPOSITION
The order continuing defendant‟s involuntary treatment as an MDO is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MILLER
J.

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