People v. Lara

*237 BAXTER, J., Concurring.

I concur in the judgment reversing the Court of Appeal. I write separately because I disagree with the analysis contained in the majority opinion.

David Alan Lara was the subject of a petition to extend his commitment under Penal Code section 1026.5, subdivision (b)(10), after having been found not guilty by reason of insanity of falsely imprisoning a child at knifepoint. The People filed the petition prior to the expiration of Lara’s maximum term of commitment but failed to satisfy the requirement that the petition be filed “no later than 90 days before the expiration of the original commitment unless good cause is shown” (Pen. Code, § 1026.5, subd. (b)(2)) and the requirement that the trial 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” (Pen. Code, § 1026.5, subd. (b)(4)).

Defendant argues that the violation of these time limits deprived the trial court of jurisdiction to proceed on the petition to extend his commitment. Yet, as Penal Code section 1026.5 itself says, “The time limits of this section are not jurisdictional.” (Pen. Code, § 1026.5, subd. (a)(2).) The majority opinion so concludes, and I agree. But, for reasons that are not explained, the majority opinion abandons the statutory analysis at this point, just when things are getting interesting: Was the violation of the statutory time limits harmless? Until today, it had been our long-standing practice to inquire, in accordance with our state Constitution (Cal. Const., art. VI, § 13), whether the violation of a directory statute was prejudicial (e.g., People v. Parman (1939) 14 Cal.2d 17, 20 [ 92 P.2d 387 ]), and it had been the preferred practice of this court in all circumstances to inquire first whether a decision could be grounded on a nonconstitutional basis so as to avoid the unnecessary decision of novel constitutional questions. (E.g., People v. Leon (2007) 40 Cal.4th 376, 396 [ 53 Cal.Rptr.3d 524 , 150 P.3d 207 ].) As it turns out, the errors were harmless, but it is our task as judges to say so and to explain why.

The violation of the 90-day and 30-day time limits was harmless because defendant was not prejudiced. This is not a case in which a defendant was forced to go to trial in shortened time without an adequate opportunity to prepare. (Cf. People v. Dougherty (1983) 143 Cal.App.3d 245, 247-248 [ 191 Cal.Rptr. 668 ] [prejudice was demonstrated where the petition was filed 66 days late without good cause, the defendant was forced to go to trial with only 20 days of preparation, and counsel informed the court there had been insufficient time for the defense to secure medical experts who could testify *238 or assist in the cross-examination of prosecution witnesses or for the defense to subpoena the psychiatric file to permit effective cross-examination of the state hospital psychologist].) Indeed, seven and one-half months elapsed between the time the district attorney filed a petition to extend defendant’s commitment and the hearing on that petition—and defendant’s time in confinement beyond the expiration of the prior commitment was credited against his new commitment term. Defendant does not contend that he was denied adequate time to prepare, nor could he reasonably make such an argument.

Defendant does complain that he remained in custody, beyond the expiration of his original commitment, pending trial on the petition to extend his commitment. I agree with the majority opinion that this was error, in that defendant would have been entitled to his release upon expiration of his original commitment since there was no good cause for the delay in the trial, defendant did not waive time, and no other statute authorized his continued confinement. 1 I would go further and suggest that defendant may well have had a civil remedy for unlawful confinement if he had asked for (and been denied) his release during that period. However, this type of injury in itself does not mean that defendant suffered prejudice for purposes of this proceeding. Prejudice, under our state Constitution, means a miscarriage of justice that rendered the proceeding or its outcome unfair or unreliable. (People v. Watson (1946) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].) Defendant nowhere alleges that his continued confinement under a program of treatment interfered with his ability to prepare his defense or otherwise undermined the reliability of the verdict. Hence, he suffered no prejudice.

Having disposed of defendant’s statutory claim, I turn now to his constitutional claim that the violation of the time limits deprived him of due process. Generally, a due process claim arising from delays caused by the prosecution is analyzed by balancing the reasons for the delay against the prejudice caused to the accused. (United States v. Lovasco (1977) 431 U.S. 783, 790 [ 52 L.Ed.2d 752 , 97 S.Ct. 2044 ]; People v. Allen (2007) 42 Cal.4th 91, 105 [ 64 Cal.Rptr.3d 124 , 164 P.3d 557 ].)

The majority opinion purports to adopt this well-settled framework: it accepts the district attorney’s concession that the delay was not supported by *239 good cause, and it asserts that defendant suffered not one but two kinds of prejudice. (Maj. opn., ante, at p. 232; see People v. Cobb (2010) 48 Cal.4th 243, 250-251 [ 106 Cal.Rptr.3d 230 , 226 P.3d 340 ].) When it balances these two kinds of prejudice against the unjustified delay, however, it suddenly finds that the delay was not prejudicial. There is no reason to apply a balancing test here, though, since defendant, so far as this record indicates, did not suffer any prejudice.

No one disputes that being forced to go to trial without adequate preparation would be a denial of due process. However, no such deprivation occurred here, inasmuch as defendant was granted over seven months to prepare for trial and defendant does not claim he was unprepared

Being involuntarily held in confinement without any statutory authorization may be a denial of due process but, without more, is not an injury that can be remedied in this proceeding, inasmuch as defendant has made no showing that his continued confinement affected the fairness of the proceeding or undermined confidence in its outcome. (Barker v. Wingo (1972) 407 U.S. 514, 532-534 [ 33 L.Ed. 2d 101 , 92 S.Ct. 2182 ]; accord, People v. Martinez (2000) 22 Cal.4th 750, 767-768 [ 94 Cal.Rptr.2d 381 , 996 P.2d 32 ].) Such confinement is an injury, not a form of prejudice—just like an entry into the home in violation of the knock-and-announce rule (Hudson v. Michigan (2006) 547 U.S. 586, 594-596 [ 165 L.Ed.2d 56 , 126 S.Ct. 2159 ] [a violation of the knock-and-announce rule of the 4th Amend, may support a civil action for deprivation of the victim’s civil rights but does not entitle the victim to suppression of the evidence in a criminal proceeding, since the interest it protects is unrelated to the actual seizure of the evidence]) or a breach of the defendant’s attorney-client and work product privileges by a state actor other than the prosecution team (People v. Ervine (2009) 47 Cal.4th 745, 768 [ 220 P.3d 820 ] [intrusion by jail personnel on the defendant’s.legal papers may support a civil cause of action but does not entitle the victim to a reversal of his criminal conviction, where there is no indication any confidential information was conveyed to the prosecution team]). A defendant suffering confinement under those circumstances may be entitled to civil damages, but such confinement could not invalidate a trial conducted under fair procedures and resulting in an outcome that is reliable and unaffected by the error.

With this framework in mind, it is apparent that many of the cases on which the majority purports to rely are flawed, and this has in turn led the majority down a flawed analytical path. In hopes of clarifying the law for courts and practitioners in the future, I discuss these cases briefly.

The fundamental error shared by these cases is their assumption that when the People, without good cause, fail to comply with the time limits under Penal Code section 1026.5, a defendant is forced to choose between going to trial *240 without adequate time to prepare or remaining in confinement involuntarily beyond the maximum confinement date. This assumption is mistaken. As the majority opinion explains, a defendant in such circumstances “who so moves should be released pending trial on the extension petition.” (Maj. opn., ante, at p. 236.) Thus, the so-called Hobson’s choice that underlies the discussion in these cases is a false one, in that a defendant who does not want to go to trial without adequate time to prepare or remain in confinement receiving treatment after the expiration of the original commitment pending trial may move for an order of release and thus avoid both evils. These cases also assume that a defendant automatically suffers prejudice if forced to remain in confinement involuntarily because of an unexcused late filing. Because these cases rest on false assumptions, they should be disapproved more broadly. The majority’s failure to do so will, I fear, sow confusion in the law.

Consider People v. Hill (1982) 134 Cal.App.3d 1055 [ 185 Cal.Rptr. 64 ], which (contrary to the majority opinion) was decided on statutory, not constitutional, grounds, and which was decided prior to the 1984 amendment to Penal Code section 1026.5 that added “good cause” as an exception to the time limits in subdivision (b)(2) and (4). (See Stats. 1984, ch. 1488, § 5, p. 5204.) The petition there was filed only 10 days prior to expiration of Hill’s prior commitment, which left insufficient time for counsel to prepare for the hearing, and the hearing was consequently continued several times, resulting in Hill’s confinement beyond the expiration of his original commitment. (H ill, supra, 134 Cal.App.3d at pp. 1057-1058.) Hill criticized the “total violation of the time limitations established in the very section that authorized any such extended confinement” {id. at p. 1058) and, without considering whether the defendant had requested his release pending trial (or, if so, whether the defendant had suffered actual prejudice), the Court of Appeal said it was without power to defy “the clear terms” of the statute and reversed the order extending the commitment. {Id. at p. 1060.) Hill is wrong in positing a forced choice between trial without adequate preparation or continued confinement beyond the maximum term and in failing to consider whether the defendant was actually prejudiced by the tardy filing and his continued confinement. I would disapprove Hill on these grounds.

In People v. Hawkins (1983) 139 Cal.App.3d 984 [ 189 Cal.Rptr. 126 ], the same Court of Appeal division that decided Hill affirmed the dismissal of a petition to extend the defendant’s commitment where, without good cause, the petition was filed only 45 days before (and counsel was appointed only two days before) expiration of the original commitment. The Court of Appeal once again posited a forced choice between trial without adequate preparation or continued confinement beyond the maximum term. {Id. at pp. 987-988.) It thus failed to consider whether Hawkins could have been released pending trial or *241 whether Hawkins would have been prejudiced by a trial occurring after expiration of the prior commitment. I would disapprove Hawkins on these grounds.

Even worse, the majority opinion contends that People v. Tatum (2008) 161 Cal.App.4th 41 [ 73 Cal.Rptr.3d 718 ], which involved a commitment under the Mentally Disordered Offender Act (MDO Act) (Pen. Code, § 2970), “ably marshals the approach to be employed in determining whether a due process violation has occurred” (maj. opn., ante, at p. 232), but Tatum perpetuates the same mistakes described above. Tatum is correct when it says that due process requires a balancing of the prejudicial effect of the delay against the justification for the delay (Tatum, supra, 161 Cal.App.4th at p. 61 ), but it falls into error when it asserts (1) that an unexcused late-filed petition forces the defendant to choose between “curtailing] otherwise necessary trial preparation” or “suffering unauthorized postrelease confinement,” and (2) that “whenever the state’s unexcused late filing . . . forces an offender to ‘choose’ between these two types of prejudice, some prejudice is necessarily established” {ibid..). As explained above, “prejudice” means a lack of fair procedures at trial or an error that undermines confidence in the outcome of the trial. Tatum is wrong not merely because it offered the wrong remedy; it is wrong because it found prejudice where none existed—and I would disapprove it on that basis.

Unfortunately, the majority opinion all but ensures confusion among those charged with implementing the law when it perpetuates Tatum's mistaken understanding of “prejudice” and asserts further that “[t]he degree of prejudice will depend on a variety of factors, including how late the filing is, the amount of time reasonably required to prepare for trial and mount a defense, and whether action by the court or defense counsel contributed to the delay.” (Maj. opn., ante, at p. 232.) Given that a defendant faced with an unjustifiable delay may seek release once the prior commitment has expired, one must wonder why the degree of prejudice would depend on how late the filing is or the time needed to mount a defense. As long as the delay in the trial is not so extended as to raise a presumption of prejudice (see Barker v. Municipal Court (1966) 64 Cal.2d 806, 812 [ 51 Cal.Rptr. 921 , 415 P.2d 809 ]; In re Johns (1981) 119 Cal.App.3d 577, 581 [ 175 Cal.Rptr. 443 ]) and, as stated above, the defendant is granted adequate time to prepare, a late filing would not in itself establish either a due process violation or prejudice. And, given that a court need not even consider whether a delay was justified if there was no prejudice (Scherling v. Superior Court (1978) 22 Cal.3d 493, 506-507 [ 149 Cal.Rptr. 597 , 585 P.2d 219 ]), I cannot fathom how an analysis of the court’s or defense counsel’s contributions to the delay could affect the degree of prejudice.

*242 Finally, it is important to recognize that the analysis endorsed in this separate opinion is far from new. In People v. Allen, supra, 42 Cal.4th 91 , we explored whether a delayed petition to extend the defendant’s commitment under the MDO Act would deny due process where the defendant was subsequently adjudicated to be a mentally disordered offender. This court, unanimously, declared that such an inquiry “would often be futile,” in that, “more often than not, an MDO would be unable to show prejudice if his or her mental disorder is not in remission.” (Allen, supra, 42 Cal.4th at p. 105 .) This analysis was correct then, it is correct now, and we ought to apply it. I regret that the majority opinion, while ultimately reaching the correct result, has chosen a confusing and roundabout path that may well mislead future travelers. I therefore concur only in the judgment.

Like the Santa Clara County District Attorney’s Office, which has submitted a brief as amicus curiae, I am skeptical that the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) will be an adequate or workable substitute for the treatment a not-guilty-by-reason-of-insanity committee has been receiving where (in future cases) the committee is released pending trial on a petition to extend a commitment, but we are not free as a statutory (Pen. Code, § 1026.5, subds. (a)(2), (b)(8)) or constitutional matter to require confinement beyond that authorized by the Legislature. The district attorney’s office might therefore more fruitfully direct its criticisms of this alternative confinement scheme to the Legislature.