People v. Velarde, 2d Crim. No. B209096 (Cal. App. 6/3/2009)

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THE PEOPLE, Plaintiff and Respondent, v. FRANK HENRY VELARDE, Defendant and Appellant.

2d Crim. No. B209096.

Court of Appeals of California, Second Appellate District, Division Six.

Filed June 3, 2009.

Not to be Published in the Official Reports.

Appeal from the Superior Court, Ventura County, Super. Ct. No. CR16337, Rebecca S. Riley, Judge.

Paul Bernstein, under appointment by the Court of Appeal, for Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Lance E. Winters, Michael A. Katz, Deputy Attorneys General, for Respondent.

PERREN, J.

Frank Henry Velarde appeals from a judgment extending his commitment as an individual found not guilty by reason of insanity (NGI). (Pen. Code, §§ 1026, 1026.5.)¹ He contends the trial court lost jurisdiction and violated his due process rights by (1) failing to begin his trial at least 30 days before his commitment was set to expire, and (2) extending his commitment after his scheduled discharge date. We affirm.

FACTS AND PROCEDURAL HISTORY

On January 28, 2008, the Ventura County District Attorney filed a petition to extend Velarde's NGI commitment. The petition stated that Velarde's current term was set to expire on April 26, 2008. The matter was initially set for trial on March 19. On that date, however, the court granted the prosecution's request to continue the matter until April 2. Velarde agreed to the continuance, and the matter was continued again at his request until April 16. Voir dire commenced on April 17. On April 21, trial was continued until the following day.²

Dr. George Proctor, Velarde's treating psychiatrist at Patton State Hospital, testified that Velarde had suffered from paranoid schizophrenia since his adolescence and also has an antisocial personality disorder. Velarde is prescribed medication for his schizophrenia, but occasionally refuses to take it when he hears voices telling him not to. Dr. Proctor referred to Velarde's prior offenses, which include assault with intent to commit murder, assault with a deadly weapon, assault with intent to commit rape, and battery on a police officer. While in the hospital, he had been convicted of theft of a firearm and assault with great bodily injury. In the preceding year he had assaulted three other patients. The doctor opined that Velarde presented a substantial danger of physical harm to others by reason of his severe mental disorder, reasoning that "past behavior is the best predictor of future behavior." The doctor also noted that his efforts to treat Velarde by teaching him coping strategies had been unsuccessful.

Velarde was called to testify for the prosecution. He acknowledged hearing voices in the preceding two or three weeks and said, "I'll never stop hearing voices. They'll be with me the rest of my life." He does not, however, believe that he suffers from a mental disorder. He believed his doctors controlled "a machine that can get inside people's minds and stuff" and that his psychiatrist was thereby able to read his mind. He also believed that machine made him hit his wife. He explained that he had hit his three-year-old stepson with a belt because he "was trying to make him go to sleep" and was hearing voices. He also thought that his wife voluntarily stayed and had sex with him after he broke her nose, and described a prior rape conviction as "just [being] my wrong judgment." He admitted having dreams about "wanting to slice and stab" one of his doctors, and was sometimes unable to determine whether or not his dreams were real. He also admitted six assaults on police officers.

On Friday, April 25, the jury returned its verdict finding the petition to extend Velarde's commitment to be true. After the jury was discharged, the court ordered Velarde's commitment extended for two years, with the new term set to expire on April 26, 2010.

DISCUSSION

Velarde contends the trial court lacked jurisdiction to begin his trial less than 30 days prior to the date his commitment was set to expire, and in any event thereafter lost jurisdiction by signing the order to extend his commitment on Monday, April 28, i.e., two days after his commitment was set to expire on April 26. He alternatively contends that the court's delay in both regards amounts to a violation of his due process rights. We find no merit in these contentions.

Section 1026.5, subdivision (b)(4), provides that the trial on a petition to extend an NGI commitment "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." (Italics added.) As the People note, Velarde's attorney agreed with the prosecutor's request to continue trial until 23 days prior to his release date, and thereafter requested and received another two-week continuance. While Velarde does not dispute the People's contention that his attorney could effectively waive time on his behalf, he argues that the continuances were necessary because the hospital had failed to produce records that were essential to his defense. The matter did ultimately proceed to trial, however, and Velarde does not demonstrate any prejudice he suffered as a result of the delay. While he asserts that he "was not afforded sufficient time to prepare for a timely trial before the existing commitment expired," he offers no evidence in support of that assertion.

Velarde also refers to his allegation that the hospital never produced all of his medical records, but the record reflects that the court scheduled an evidentiary hearing on that issue for June 25, 2007. Velarde has not presented this court with the transcript of that hearing. He therefore fails to demonstrate that the hospital did not produce records to which he was entitled, much less that he suffered prejudice as a result of the hospital's failure to produce those records. Because Velarde waived the right to have his trial start more than 30 days prior to his scheduled release date, and he cannot show any prejudice caused by the delay, there is no basis to conclude that the court lost jurisdiction to proceed with the trial or that Velarde thereby suffered a violation of his due process rights.

Even if Velarde could establish that he did not effectively waive time as contemplated by the express language of section 1026.5, subdivision (b)(4), the 30-day trial requirement is not jurisdictional. The statute is identical to the law that governs trials for extended commitments of mentally disordered offenders (MDO) (§ 2972), and the 30-day trial requirement of each statute has been treated the same (see People v. Tatum (2008) 161 Cal.App.4th 41, 59-60; People v. Mitchell (2005) 127 Cal.App.4th 936, 944-945; see also People v. Kirkland (1994) 24 Cal.App.4th 891, 905 ["Section 2970 is apparently derived from statutes dealing with treatment of persons found not guilty by reason of insanity (§ 1026.5, subd. (b))"].) In both contexts, courts have consistently held that the 30-day trial deadline is not jurisdictional. (Mitchell, supra, at p. 943 [NGI]; In re Johns (1981) 119 Cal.App.3d 577, 580 [same]; People v. Williams (1999) 77 Cal.App.4th 436, 450-452 (Williams) [MDO].)

In People v. Noble (2002) 100 Cal.App.4th 184, 187-188 (Noble), we concluded that the 30-day requirement in section 2972, subdivision (a), is not jurisdictional. We also rejected the defendant's claim that the delay in his trial until after his commitment was set to expire violated his due process rights because he failed to demonstrate he was prejudiced by the delay. (Ibid.) In reaching these conclusions, we followed Williams, supra, 77 Cal.App.4th 436, which reasoned that the 30-day requirement is primarily for the benefit of the public, not the prisoner. The time frame is intended to provide reasonable assurance that prisoners who have been receiving treatment for a severe mental disorder will not be released until it can be determined whether he or she presents a continuing danger to others. Treating the 30-day limit as jurisdictional would frustrate the MDO law's purpose of protecting the public. (Id. at pp. 450-451.)

Our colleagues in the First District subsequently followed Williams in holding that the 30-day period for commencement of a trial under section 1026.5, subdivision (b)(4), is not jurisdictional. (People v. Mitchell, supra, 127 Cal.App.4th at pp. 944-945.) The court quoted Williams as follows: "'[ I]f the 30-day deadline were mandatory, then the failure to comply would, in effect, automatically terminate [a mentally disordered offender]'s involuntary treatment, regardless of need, and require his or her release, regardless of the potential danger to others. Such a result is inconsistent with the purpose of the [statute] and elevates the secondary benefit of the deadline to [a defendant] over the fundamental purpose of the [statute]: to protect the public.' [Citation.]" (Mitchell, at p. 945, fn. 6.) The court also adopted the rationale that "' the statute does not expressly set any deadline for completion of a trial, even if it begins more than 30 days before a release date. Nor does it limit continuances or otherwise prohibit a court from extending a trial beyond the release date if necessary.' [Citation.]" (Ibid.) After stating that "Williams is clearly applicable here," the court concluded "[t]he only pertinent distinction between this case and Williams is that here, the trial date was continued at appellant's own request, in order to give him adequate time to prepare his defense." (Id. at p. 945.) The court went on to reason that "[w]hile appellant complains that he suffered prejudice as a matter of law because he 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...