PEOPLE v. ELLIS (1997)

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Melvin Lee ELLIS, Defendant and Appellant. IN RE: Melvin Lee ELLIS on Habeas Corpus.

Nos. D024066, D025576.

Decided: January 30, 1997

George A. Winkel, El Cajon, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Esteban Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.

Melvin Lee Ellis appeals an order extending his mentally disordered sex offender (MDSO) commitment at Patton State Hospital (Patton) for two years (Welf. & Inst.Code,2 § 6316.2), contending insufficient evidence supports such commitment, the extension constitutes cruel and unusual punishment, admitting a psychological report in evidence through his counsel's stipulation without his personal waiver violates his Sixth Amendment right to confront and cross-examine an expert witness, and he was denied effective assistance of counsel.   He also petitions for a writ of habeas corpus based on numerous claims of ineffective assistance of counsel.

During the pendency of these matters, which were consolidated and expedited for disposition, Ellis filed a supplemental brief challenging the trial court's jurisdiction to extend his commitment as a matter of law based upon the holding of People v. Gunderson (1991) 228 Cal.App.3d 1292, 279 Cal.Rptr. 494.   In the published portion of this opinion we disagree with the holding in Gunderson and determine the period of extended commitment under section 6316.2 does not include time spent as an “outpatient.”   Accordingly, we find the petition to extend Ellis's commitment was timely filed.

In the unpublished part of this opinion, we conclude Ellis's remaining contentions are meritless.   We therefore affirm the order extending his MDSO commitment and deny his petition for habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

On September 16, 1981, Ellis pled guilty to committing a lewd and lascivious act upon a child (Pen.Code, § 288, subd. (a)).³  He was found to be a MDSO, committed to the State Department of Mental Health, and sent to Patton where the staff set his maximum term of commitment at six years eight months twenty days.   His original maximum date of confinement was computed as July 26, 1988.

Pursuant to subsequent proceedings under section 6316.2, his commitment was extended three times in two-year increments.   At the June 17, 1992 hearing on the third extension, Ellis's maximum date of confinement was extended to July 26, 1994.

On July 7, 1992, Ellis was released from Patton on outpatient status to the San Diego County Conditional Release Program (CONREP).   On April 26, 1993, his conditional release was revoked and he was returned to Patton April 29, 1993.   Ellis's maximum commitment date was adjusted to reflect a new maximum date of confinement based on the days of remaining possible actual custody.

On December 7, 1994, a medical director from Patton notified the district attorney's office Ellis's maximum term of commitment would expire May 19, 1995, and requested a petition for extension of commitment be filed.

Such petition was filed February 17, 1995.   It requested Ellis's commitment be extended for an additional two-year period under section 6316.2 on the grounds Ellis “still suffers from a mental disease, defect, or disorder and by reason of such mental disease, defect, or disorder is predisposed to the commission of sexual offenses to such a degree that he presents a substantial danger of bodily harm to others.”

A trial to determine whether Ellis's commitment should be extended was set for April 17, 1995.   On that date, Ellis waived time and the trial date was continued.   On May 12, 1995, Ellis personally waived his right to a jury trial and the matter was continued to May 15, 1995, for a court trial.   At that time, after hearing evidence and argument, the court found the allegations of the petition true and ordered Ellis's commitment extended for two years.⁴

DISCUSSION

IJurisdiction To Recommit

Ellis contends the trial court lacked jurisdiction to extend his commitment.   Relying on People v. Gunderson, supra, 228 Cal.App.3d 1292, 279 Cal.Rptr. 494, which held time spent in outpatient status must be included in calculating a person's maximum term of commitment, Ellis argues the time he spent as an outpatient under the CONREP program was improperly excluded from Patton's calculation of his maximum termination date, there is no applicable exception to the lapse of the court's jurisdiction (see People v. Dias (1985) 170 Cal.App.3d 756, 216 Cal.Rptr. 295), his revocation of outpatient status did not extend his maximum confinement date, and he did not waive such date.   Because section 6316.2, subdivision (f) provides in part “[a] commitment or a recommitment ․ shall be for a period of two years from the date of termination of the previous commitment[,]” which under Gunderson 's holding would have been July 26, 1994, and section 6316.2 does not contain any provisions limiting subdivision (f) to “in actual custody,” Ellis argues his properly calculated maximum termination date expired nine and one-half months before the May 15, 1995 commitment extension trial date and therefore the order extending his commitment was void as without jurisdiction.

The People respond Ellis waived the statutory time for his extension hearing and his reliance on Gunderson is misplaced.   The People assert legislation enacted in 1984 in response to Gunderson has made clear the time spent in outpatient status is not to be included in calculating the termination date of a patient's extended commitment.   With Ellis's previously extended commitment thus not terminating until May 19, 1995, the People contend their petition to extend his commitment under section 6316.2 was timely filed (§ 6316.2, subd. (h)), the matter was timely heard based on Ellis's waiver of the April 17, 1995 trial date, and consequently the trial court's order extending Ellis's commitment was valid.

Although we agree with the People the instant petition to extend Ellis's commitment was timely filed, his waiver of time for trial on the matter proper and the court's order extending the commitment valid, we do so for different reasons.   We find the intent of the Legislature in enacting sections 6316.1 and 6316.2 was to provide for the commitment and recommitment of MDSO's to a period of time in “actual custody” for inpatient treatment, which excludes periods of time spent on outpatient status.   Hence, we conclude Gunderson was wrongly decided and the period for an extended commitment of a MDSO under section 6316.2 does not include such outpatient release time.

We start with a brief history of the MDSO law.   As originally enacted, section 6316 provided for an indeterminate MDSO commitment.   With the advent of the determinate sentencing law, sections 6316.1 and 6316.2 were enacted to provide a person could be committed as a MDSO for no longer than the maximum term for the crime for which he was convicted (§ 6316.1) and to allow an extension of that time if the MDSO still “[s]uffers from a mental disease, defect, or disorder, and as a result of such mental disease, defect, or disorder, is predisposed to the commission of sexual offenses to such a degree that he presents a substantial danger of bodily harm to others.” (§ 6316.2, subd. (a)(2);  Baker v. Superior Court (1984) 35 Cal.3d 663, 666, fn. 3, 200 Cal.Rptr. 293, 677 P.2d 219;  People v. Saffell (1979) 25 Cal.3d 223, 227, 157 Cal.Rptr. 897, 599 P.2d 92.)

Section 6316.1, subdivision (a) ⁵ provides the original MDSO commitment may be extended after compliance with the procedural provisions of section 6316.2,⁶ which, among other things, require a petition to extend the commitment be filed no later than 90 days before expiration of the original commitment (§ 6316.2, subd. (b)), a petition for further recommitment be filed prior to the termination of the extended commitment (§ 6316.2, subd. (h)), a jury trial be conducted within 30 days of such termination unless waived (§ 6316.2, subd. (d)), and the MDSO be given the “rights guaranteed under the Federal and State Constitutions for criminal proceedings [,]” including the right to be represented by an attorney and a jury trial (§ 6316.2, subds.(c) & (e)). (§§ 6316.1, 6316.2;  Baker v. Superior Court, supra, 35 Cal.3d at p. 666, fn. 3, 200 Cal.Rptr. 293, 677 P.2d 219;  People v. Saffell (1979) 25 Cal.3d 223, 227, 157 Cal.Rptr. 897, 599 P.2d 92.)   Subdivision (f) of section 6316.2 specifically provides:  “If the court or jury finds that the patient is a person described in subdivision (a), the court may order the patient committed to the State Department of Mental Health in a treatment facility.   A commitment or a recommitment under Section 6316.1 shall be for a period of two years from the date of termination of the previous commitment.”  (Italics added.)

Repeal of the MDSO laws in 1981 ⁷ does not affect Ellis and others like him who were already serving initial commitments or recommitments under sections 6316.1 and 6316.2 at the effective date of the repeal;  the Legislature intended these persons to remain under the MDSO program until their commitments are terminated.  (See historical note, West's Ann. (1984 ed.) §§ 6300-6331, p. 447;  Baker v. Superior Court, supra, 35 Cal.3d at pp. 666-668, 200 Cal.Rptr. 293, 677 P.2d 219.)   Nor does the prospective only application of such repeal deny those persons already committed under the MDSO program equal protection of the law.  (Id. at pp. 668-670, 200 Cal.Rptr. 293, 677 P.2d 219.)   Such persons remain subject to the possibility of extended commitment if at the expiration of their maximum terms they meet the criteria of section 6316.2.  (Baker v. Superior Court, supra, 35 Cal.3d at p. 670, 200 Cal.Rptr. 293, 677 P.2d 219.)

In People v. Gunderson, supra, 228 Cal.App.3d 1292, 279 Cal.Rptr. 494, another California appellate court held time spent as an outpatient must be counted as part of the term of extended commitment.   In arriving at this conclusion, the court recognized In re Moye (1978) 22 Cal.3d 457, 464, 149 Cal.Rptr. 491, 584 P.2d 1097 holds “ ‘․ the term “actual custody” in section 6316.1 does not include any periods of outpatient supervision in determining the maximum period of confinement.’  [Citation.]”  (People v. Gunderson, supra, 228 Cal.App.3d at p. 1297, 279 Cal.Rptr. 494.)   However, the court in Gunderson distinguished such holding by noting that in the case of the extension of a commitment under section 6316.2, there is no reference to the term “actual custody.”  (Gunderson, supra, at p. 1297, 279 Cal.Rptr. 494.)   Based on the exclusion of such term, and the fact subdivisions (g) and (k) of section 6316.2 mention the possibility of an outpatient release for a recommitted person,⁸ the court in Gunderson was convinced “that had the Legislature intended the two-year extended period of commitment under section 6316.2 to be determined only by the amount of time spent in actual custody, it would have said so.”  (Gunderson, supra, at p. 1297, 279 Cal.Rptr. 494.)   The court found the reference in subdivision (f) of section 6316.2 to “[a] commitment or a recommitment under Section 6316.1” to be “nonsensical,” the Legislature intended such reference to section 6316.1 to really be a reference to section 6316.2, and there was nothing in the statute to suggest the requirements of section 6316.2 should not apply to outpatients.  (People v. Gunderson, supra, 228 Cal.App.3d at pp. 1297-1298, 279 Cal.Rptr. 494.)

We strongly disagree with the reasoning of Gunderson.   While the language of section 6316.2 does not explicitly indicate time spent as an outpatient should not be counted in calculating the termination date of an extension of a MDSO commitment, such is clearly implied when the rules of statutory construction and common sense are applied to the language of that section which was enacted to provide recommitment procedures “to insure against the release of persons previously committed as MDSOs who still pose a substantial danger to society.  [Citations.]”  (People v. Curtis (1986) 177 Cal.App.3d 982, 988, 223 Cal.Rptr. 397.)

 Well-established statutory construction rules provide that:

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]   In order to determine this intent, we begin by examining the language of the statute.  [Citations.]   But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’  [Citations.]   Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’  [Citation.]  [W]e do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’  [Citation.]”   (People v. Pieters (1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420.)

 Further, we are not permitted to rewrite a statute to conform to an assumed intent that does not appear from its plain language.   (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381, 267 Cal.Rptr. 569, 787 P.2d 976.)   If any uncertainty appears in interpreting statutory language:

“ ‘consideration should be given to the consequences that will flow from a particular interpretation’ [citation], and both legislative history and the ‘wider historical circumstances' of the enactment may be considered.  [Citation.]   Further, ambiguities are not interpreted in the defendant's favor if such an interpretation would provide an absurd result, or a result inconsistent with apparent legislative intent.  [Citation.]”  (People v. Cruz (1996) 13 Cal.4th 764, 782-783, 55 Cal.Rptr.2d 117, 919 P.2d 731.)

 Applying these rules to the above pertinent portions of sections 6316.1 and 6316.2, we find the sections when read together provide an intricate scheme for calculating the maximum determinate term for a MDSO commitment and extended commitment.   While it is section 6316.2 that provides the procedure and criteria for an extended two-year commitment or term, it is section 6316.1 that defines what constitutes that term.   Plainly the Legislature drafted section 6316.2 with a definite commitment in mind, which is defined pursuant to section 6316.1.   Since that definite commitment consists only of “actual custody,” excluding the time a MDSO spends as a conditionally released outpatient, somewhat similar to the defendant who spends time as a conditionally released probationer (see In re Moye, supra, 22 Cal.3d at p. 464, 149 Cal.Rptr. 491, 584 P.2d 1097;  People v. DeGuzman (1995) 33 Cal.App.4th 414, 419, 39 Cal.Rptr.2d 137), it is only common sense the two-year extended term, provided for if the procedures in section 6316.2 are met, also consists of such actual custody, without credit for outpatient status.

To hold otherwise would be to construe, as the court in Gunderson did, the statutes in isolation rather than harmonize them to retain the effectiveness of the MDSO commitment scheme.  Section 6316.2, subdivisions (f), (g) and (k), on which the court in Gunderson bases its holding, do not exist in a vacuum;  they must be read together with other subdivisions of section 6316.2 and with section 6316.1.   Further, by rewriting subdivision (f) of section 6316.2 to omit the reference to “[a] commitment or a recommitment under section 6316.1” and inserting instead “[a] commitment or a recommitment under section 6316.2,” to arrive at its conclusion, the court in Gunderson violated “the cardinal rule that courts may not add [or subtract] provisions to a statute.  [Citations.]”  (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)   The reference to section 6316.1 in subdivision (f) of section 6316.2 is not mere surplusage;  it ties the extended two-year term to section 6316.1 to provide the MDSO committed person may be kept in actual custody longer than the maximum term of commitment if the court or jury finds the criteria set forth in subdivision (a) of section 6316.2 satisfied.

Our interpretation is supported by our Supreme Court's discussion of the procedures for an extended MDSO commitment under section 6316.2 in In re Moye, supra, 22 Cal.3d at pages 467 to 468, 149 Cal.Rptr. 491, 584 P.2d 1097, where it noted:

“If, after a substantial period of confinement and treatment equivalent in duration to the maximum term for the offense committed [as provided under section 6316.1], [a defendant] remains demonstrably dangerous, an additional commitment may be sought․   Although the burden of proof on the issue of dangerousness will have shifted to the People once confinement for the maximum term of the underlying offense has occurred, upon a proper showing the [defendant] may be retained in confinement and will not be ‘loose’ or ‘at large.’ ”  (In re Moye, supra, 22 Cal.3d at pp. 467-468, 149 Cal.Rptr. 491, 584 P.2d 1097.)

If a committed person will not be “loose” or “at large,” that person will obviously be confined inpatient or in actual custody, and not as an outpatient.

Likewise, the court in People v. Superior Court (Martin) (1982) 132 Cal.App.3d 658, 183 Cal.Rptr. 563 found the MDSO commitment procedures in sections 6316.1 and 6316.2 together provide for a type of civil commitment to a medical facility “on the basis of [persons so committed] having committed certain heinous sex offenses, and on the further basis of persuasive psychiatric opinions that they are suffering from a mental disorder which predisposes them to commit such offenses and constitute them a danger to society.”  (People v. Superior Court (Martin), supra, at p. 664, 183 Cal.Rptr. 563.)   Because a person may only be conditionally released from an extended commitment as an outpatient under subdivisions (g) and (k) of section 6316.2 after a three-month period of confinement if it is determined by the mental health director the person will not be “a danger to the health and safety of others” while on such status and “will benefit from such outpatient status[ ]” (Pen.Code, § 1602, subd. (a)),⁹ while a MDSO commitment may be extended only if the person is found, in addition to other criteria, to be dangerous (§ 6316.2, subd. (a)(2)), it would indeed be an anomaly to construe section 6316.2 in such a way that would treat outpatient status differently than that status is treated under an original MDSO commitment (see § 6300) since both commitments require the MDSO be a danger to society.

Moreover, that the Legislature intended an extended period of commitment or recommitment under section 6316.2 to exclude outpatient status and only include “actual custody,” comports with the overall purpose of the 1977 enactment of sections 6316.1 and 6316.2 to ensure against the release into the community of those MDSO's who still pose a substantial danger to others.  (People v. Curtis, supra, 177 Cal.App.3d at pp. 988-989, 223 Cal.Rptr. 397.)   The history of that legislation, which includes the recent addition of section 6332 to the MDSO scheme as well as amendments to several Penal Code sections (see People v. Cruz, supra, 13 Cal.4th at p. 773, 55 Cal.Rptr.2d 117, 919 P.2d 731),¹⁰ and of which we have taken judicial notice as requested by the People, provides some evidence the Legislature intended to exclude periods of time a MDSO spends as an outpatient from the extended commitment or recommitment term.  (Eu v. Chacon (1976) 16 Cal.3d 465, 470, 128 Cal.Rptr. 1, 546 P.2d 289.)   Statements made in the Senate during discussion of this new legislation reflect it would “clarif[y] that persons who have been found not guilty by reason of insanity or [MDSO's] may not count time spent with outpatient supervision toward extended periods of commitment,” and it was intended “[t]o remedy the problem identified in Gunderson.”  (Sen. Rules Com., Analysis of Sen. Bill No. 39 (1993-1994 1st Ex.Sess.) as amended April 5, 1994, italics added.)

While subsequent legislative declarations are not binding as to the intent of the Legislature that enacted sections 6316.1 and 6316.2 (People v. Cruz, supra, 13 Cal.4th at p. 781, 55 Cal.Rptr.2d 117, 919 P.2d 731), we have found nothing in the earlier legislative history or case authority remotely suggesting the Legislature that enacted these sections intended to count outpatient time in the extended commitment term for a MDSO.   Rather, most cases accept the premise MDSO's “can be kept in actual custody only as provided in section 6316.2 (§ 6316.1).”  (People v. Roberts (1981) 123 Cal.App.3d 684, 690, 177 Cal.Rptr. 11;  see also Baker v. Superior Court, supra, 35 Cal.3d at p. 666, fn. 3, 200 Cal.Rptr. 293, 677 P.2d 219;  In re Moye, supra, 22 Cal.3d at p. 464, 149 Cal.Rptr. 491, 584 P.2d 1097;  People v. Curtis, supra, 177 Cal.App.3d at p. 989, 223 Cal.Rptr. 397.) ¹¹  It is only the court in Gunderson that concludes, without legislative analysis, that the exclusion of the words “actual custody” in section 6316.2, subdivision (f) shows outpatient time must be included in calculating an extended commitment.  (See People v. Superior Court (Henry) (1993) 12 Cal.App.4th 1308, 1312, 15 Cal.Rptr.2d 896.) ¹²  As we have shown, such interpretation is quite inconsistent with the Legislature's intent “to single out the more dangerous sex offenders for commitment extensions which maintain them in custody beyond any period of incarceration they could have served in a penal institution for the crimes they committed [ ]” by enacting new legislation which clarifies the preexisting law, set forth in sections 6316.1 and 6316.2, to more clearly state time spent as a outpatient shall not count toward a person's term of extended commitment.  (People v. Lamport (1985) 165 Cal.App.3d 716, 720, 211 Cal.Rptr. 665.)   We therefore conclude Gunderson was wrongly decided and decline to follow it.

Accordingly, we find Ellis's extended commitment was properly adjusted to end May 19, 1995, to exclude his outpatient time, and in turn find the February 1995 petition to extend his previously extended commitment timely filed. (§ 6316.2, subd. (h).)  His express waiver of trial time in April 1995 forecloses any challenge to the timeliness of his May 15, 1995 trial.   The order made that date extending his commitment was entered before the end of his previously extended commitment date.   No jurisdictional error is shown.¹³  (See People v. Curtis, supra, 177 Cal.App.3d at p. 989, 223 Cal.Rptr. 397;  People v. Dias, supra, 170 Cal.App.3d at p. 762, 216 Cal.Rptr. 295.)

II-V*

DISPOSITION

The order is affirmed.   The petition for writ of habeas corpus is denied.

Apparently recognizing the only propositions put forth by the People to avoid reversal in this case are meritless, the majority ignores them and is relegated to disagreeing with the holding in People v. Gunderson (1991) 228 Cal.App.3d 1292, 279 Cal.Rptr. 494, the only published appellate decision in point, to reach a result it prefers.   The majority's eagerness to clone those persons subject to the provisions of Welfare and Institutions Code 24 section 6316.2 with those whose commitments under section 6316.1 have not expired, has caused them to ignore the factual differences in their status and in the statutory process underlying each section.   Its analysis, however, is merely a matrix of non sequiturs.   For the following reasons, I do not join in its opinion.

Section 6316.1 sets forth the legislative scheme to insure convicted felons who are determined to be mentally disordered sex offenders at the time of sentencing may be kept in confinement for treatment for a maximum term equal to the penal incarceration which could have been imposed by imprisonment for the crime he or she committed.   There is no logical reason why it undercuts the effectiveness of section 6316.1 to differently define commitment terms which are extended pursuant to section 6316.2 only after MDSO's have been confined for the maximum period attributable to these criminal offenses.   To recognize these sections are different and they address different concerns, is not to treat them “in isolation” as the majority suggests.   It is a common-sense recognition of their different focus.   Indeed, we relied on those fundamental differences in upholding the constitutionality of section 6316.2, subdivision (j).  (See People v. Roberts (1981) 123 Cal.App.3d 684, 690, 177 Cal.Rptr. 11.)

For instance, the extended terms after patients complete the penal requirements of their sentences is the same for all persons who qualify regardless of the original term of imprisonment contained in their sentence or the disparity and seriousness of their underlying felony.   That is, “lifers” and minimum offenders each get a two-year extension “for treatment”-not for punishment.

Persons serving initial commitments are under the continuing jurisdiction of a superior court for convictions of a sex-related crime for which they are still subject to imprisonment.   For this initial section 6316.1 commitment, the Legislature expressly stated such persons may not be kept in “actual custody” because of their MDSO status longer than the maximum term of imprisonment authorized for their conviction.   Faced with an equal protection issue, the Supreme Court in In re Moye (1978) 22 Cal.3d 457, 464, 149 Cal.Rptr. 491, 584 P.2d 1097, compared the status of persons found not guilty by reason of insanity (committed under Penal Code section 1026 et seq.) to determine if they were entitled to the same due process rights provided to MDSO's whose terms were extended pursuant to the recommitment procedures established in section 6316.2.   Almost parenthetically, the court noted that section 6316.1 precluded “actual custody” confinements beyond the maximum term of imprisonment which could have been imposed, adding “it is significant for our purposes to note the term ‘actual custody’ in section 6316.1 does not include any periods of outpatient supervision in determining the maximum period of confinement.”  (In re Moye, supra, 22 Cal.3d at p. 464, 149 Cal.Rptr. 491, 584 P.2d 1097.)   With that definitional proposition one cannot quarrel.   However, neither the Supreme Court in Moye, nor any appellate decision cited by the majority, suggests the determination of the maximum period of confinement permitted under section 6316.1 and its express requirement of “actual custody” which could have been imposed for the criminal conviction, has any relevance to calculating the two-year extended section 6316.2 commitment term for those whose Penal Code “actual confinement” obligations have been satisfied.

Further, the provisions of these two sections treat the persons subject to each as contextually different.  Section 6316.2, subdivision (g) provides that persons committed under that section are “eligible for outpatient release as provided in this article.”   There is no such eligibility statement for persons committed under section 6316.1 which merely refuses to limit the power of the California Department of Mental Health (the Department) and the committing court to release the person conditionally or otherwise for any period of time allowed by “any other provision of law.”   This is a practical recognition that MDSO's who are still subject to penal oversight by the court may, from time to time, have to make court appearances requiring their removal from the hospital facility for indeterminate periods to resolve matters unrelated to treatment, and that the Department can order “conditional releases”.  (See People v. Henry (1993) 12 Cal.App.4th 1308, 15 Cal.Rptr.2d 896.)

In addition, section 6316.2, subdivision (i) expressly mandates the Department provide treatment for the underlying causes of the mental disorder to any person whose term is extended pursuant to that section.   No similar charge is expressly stated in section 6316.1.   For the medical purposes of section 6312.2, it is irrelevant whether a person is “confined” or under custodial supervision as an outpatient.   The only apparent legislative concern in former section 6316.2 is that the person remain subject to treatment and controlled supervision for an additional two years beyond the maximum penal term imposed for their criminal activity.   Under the statutes relative to this case, it is a medical choice whether the most beneficial treatment for an extended commitment is available when in custody or in an unlocked outpatient status.

Section 6316.2, subdivision (a) only recites that a person may be retained in actual custody for the entire two-year extended term-it does not suggest the extended term is open-ended for a period to exceed two years of actual custody.   If it were to be so interpreted, then there would be no time limit and there would be no incentive for persons to opt for outpatient status even though that setting is deemed most medically beneficial by the physicians charged with best treating the patient with the goal of promoting recovery.  (The 1994 legislation has, of course, now taken that choice away from the physicians.)

Most significantly, section 6316.2 uniformly sets the extended commitment term for all persons at two years, without regard to the potential penal consequences of their underlying convictions or the nature of their crimes.   It also sets out a requirement that a commitment may not be extended except by petition filed no later than 90 days before the expiration of the term under which he is presently committed and providing that person with the procedural rights set forth in that section.   Thus, it is apparent the Legislature recognized the truism that persons subject to confinement under section 6316.1 had custodial restrictions greater than persons being detained solely for treatment pursuant to section 6316.2.  (As recognized in People v. Henry, supra, 12 Cal.App.4th at p. 1313, 15 Cal.Rptr.2d 896.)   Nor does a plain reading of sections 6316.1 and 6316.2 fuel the majority's conclusion the Legislature intended a section 6316.2 recommitment to become indefinite once the Department places a person on outpatient status, a determination presumably made because it is in the patient's best medical interest.

To the extent the legislative history does, as the majority suggests, provide “some evidence” of legislative intent, it works against the majority's conclusion.   The remark it quotes from the Senate Rules Committee, Office of the Senate, Floor Analysis, Analysis of Senate Bill No. 39 (Stats.1993-1994, 1st Ex.Sess. ch.   9 (S.B.39) §§ 1-3) as amended April 5, 1994, that the new legislation was “to remedy the problem identified in Gunderson,” is plainly acknowledgement the analysis in Gunderson was correct and new legislation was needed to change the statute so that in the future persons found not guilty by reason of insanity or MDSO's could not count time spent without patient supervision toward extended periods of confinement, even under section 6316.2.   Although the majority selectively only quotes the single sentence in the category entitled “DIGEST”, the ensuing “ANALYSIS” portion of that document states “[t]his bill would provide that time spent in outpatient status by a person who is an MDSO under former law, or who is not guilty by reason of insanity shall not be credited towards the person's extended term of commitment except when placed in a locked facility, at the direction of the outpatient supervisor.”  [Italics added.]   After noting time spent in outpatient status by a person, pursuant to section 6316.1, shall not be credited towards the person's maximum term of commitment except when placed in a locked facility, the document states “[t]he result of the Gunderson decision was that MDSO's who represent a substantial danger of physical harm to others could be released into the community without any follow-up mental health treatment or supervision.   To remedy the problem identified in Gunderson, this bill would explicitly provide that time spent in outpatient status by an MDSO may not be counted toward the maximum term of commitment or the extended period of commitment unless he or she is placed in a locked facility at the direction of the outpatient supervisor.”   A fair reading of this senate bill analysis shows legislative recognition the proposed legislation would substantively change section 6316.2 to add an element it, and Gunderson, correctly perceived was not in the existing statute.

Other history is even more direct.   The July 5, 1994 bill analysis by the California Assembly Committee on Public Safety for Senate Bill 39 as amended April 5, 1994, expressly states the purpose of the enactment was “to contravene the holding of People v. Gunderson.”   It then emphasizes “according to the author, [the] bill will save the state unnecessary expenses.   Without this bill, the Department of Mental Health will be forced to go through the expensive process of seeking extensions in court, every two years, on all persons who have outpatient status.”  [Italics added.]   Just so.   Contrary to the majority's opinion, to the extent legislative history is, as it suggests, “some evidence,” it unequivocally states the legislators' understanding that Senate Bill 39 as amended would substantially change section 6316.2 by providing that time spent on unlocked outpatient status no longer could count in computing the maximum term of an extended commitment.

The majority's reference to a footnote in Baker v. Superior Court (1984) 35 Cal.3d 663, 666, footnote 3, 200 Cal.Rptr. 293, 677 P.2d 219 is puzzling.   Neither Baker nor any other case in the majority's string cite address the issue relevant here and analyzed in Gunderson.   In any event, that section 6316.2 permits unrecovered MDSO's to be kept in “actual custody” does not undercut Gunderson 's analysis because the cited cases do not even raise that issue.   Obviously, it adds nothing to the majority analysis to note the conclusion in Gunderson is not contained in those inapposite cases.   The majority citation to People v. Superior Court (Henry), supra, 12 Cal.App.4th 1308, 15 Cal.Rptr.2d 896 is also a mystery.  Henry implicitly approves the relevant holding in Gunderson and the majority footnote reference is to an issue not present here.²⁵

Although the majority purports to find some implication in the later-enacted legislation, including section 6332, that it was to retroactively affect all cases where section 6316.2 terms had been imposed, there is no such supporting language for even an inference.  (Cases cited in the lead opinion, footnote 12, do not suggest otherwise.)

Here, the petition to recommit Ellis was filed months beyond the time his earlier term had expired.   Although an order for extended commitment based on a late filed petition will not be jurisdictionally defective if the delay was caused by a legislative or judicial change (People v. Dias (1985) 170 Cal.App.3d 756, 762-763, 216 Cal.Rptr. 295 and cases cited), it generally will be void absent such justification.  (People v. Saville (1982) 138 Cal.App.3d 970. 974, 188 Cal.Rptr. 376, cited in People v. Dias, supra, 170 Cal.App.3d at p. 762, 216 Cal.Rptr. 295;  see also discussion in People v. Harner (1989) 213 Cal.App.3d 1400, 1410, 262 Cal.Rptr. 422.)

The People do not contend there was any ambiguity in Gunderson 's holding, that they were unaware of it or, for that matter, that the Department and the People had not scrupulously complied with it except for cases like this one when it was overlooked.   Because I conclude commitments pursuant to former section 6316.2 required a petition to be timely filed within two years, inclusive of unlocked outpatient status, I conclude Ellis's 1995 commitment, based on a petition filed some seven months after his term expired, was void.   I would reverse the judgment on appeal and grant the writ of habeas corpus.

FOOTNOTES

FN2. Although the Welfare and Institutions Code sections comprising the MDSO laws were repealed by the Legislature in 1981 (stats. 1981, ch. 928, § 2, p. 3485), they remain applicable to persons, like Ellis, who were earlier committed and remain subject to recommitment under those sections.  (People v. Lamport (1985) 165 Cal.App.3d 716, 718, fn. 2, 211 Cal.Rptr. 665.) In this opinion, all statutory references are to those sections of the Welfare and Institutions Code unless otherwise specified..  FN2. Although the Welfare and Institutions Code sections comprising the MDSO laws were repealed by the Legislature in 1981 (stats. 1981, ch. 928, § 2, p. 3485), they remain applicable to persons, like Ellis, who were earlier committed and remain subject to recommitment under those sections.  (People v. Lamport (1985) 165 Cal.App.3d 716, 718, fn. 2, 211 Cal.Rptr. 665.) In this opinion, all statutory references are to those sections of the Welfare and Institutions Code unless otherwise specified.

3.   Ellis admitted he orally copulated a four-year-old girl he was babysitting.

4.   The specific facts adduced at trial will be recited in our discussion of Ellis's sufficiency of the evidence challenge.

5.   Section 6316.1, subdivision (a) specifically states in pertinent part:  “In the case of any person found to be a [MDSO] who committed a felony on or after July 1, 1977, the court shall state in the commitment order the maximum term of commitment, and the person may not be kept in actual custody longer than the maximum term of commitment, except as provided in Section 6316.2.   For purposes of this section, ‘maximum term of commitment’ shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the defendant was convicted.”  (Italics added.)

6.   Section 6316.2, subdivision (a) provides “[a] person may be committed beyond the term prescribed by Section 6316.1 only under the procedure set forth in this section and only if such person meets [certain specified criteria.]”  (Italics added.)

7.   When the Legislature repealed the MDSO law (§§ 6300-6330), effective January 1, 1982 (stats. 1981, ch. 928, § 2), it added Penal Code sections 1364 and 1365 which eliminated hearings to determine whether a person convicted of sex offenses against children under 14 and persons convicted of forcible sex offenses were MDSO's and required those persons be incarcerated with the Department of Corrections.  (Baker v. Superior Court, supra, 35 Cal.3d at pp. 665-666, 200 Cal.Rptr. 293, 677 P.2d 219.)   Persons committing such sex crimes who were believed to have a treatable mental illness would then be transferred to a state hospital for treatment under the provisions of Penal Code section 2684.  (Baker, supra, at p. 667, 200 Cal.Rptr. 293, 677 P.2d 219.)

8.   Subdivision (g) of section 6316.2 provides “[a] person committed under this section to the State Department of Mental Health shall be eligible for outpatient release as provided in this article.”   Subdivision (k) of section 6316.2 provides in part “[a] person committed pursuant to this section shall be confined in a state hospital unless released as an outpatient as provided in Section 6325.1.”   Section 6325.1 then states that a MDSO may be placed in outpatient status under Penal Code section 1600 et seq.

9.   Once granted, outpatient status may be revoked if the person is found to be a danger to others.  (Pen.Code, §§ 1609-1612.)

10.   During the 1993-1994 First Extraordinary Session, the Legislature passed Senate Bill 39, which enacted section 6332, and amended Penal Code sections 1026.5, subdivision (b)(8) and 1600.5 effective November 30, 1994.  (Stats. 1993-1994, 1st Ex.Sess., ch.   9 (S.B.39), §§ 1-3;  West's Ann. Welf. & Inst.Code (1996 pocket part) §§ 5000-9999, effective dates, p. XVIII.)Section 6332 provides:  “For a person committed as a [MDSO], whose term of commitment has been extended pursuant to former Section 6316.2, and who is placed on outpatient status pursuant to Section 1604 of the Penal Code, time spent in outpatient status, except when placed in a locked facility at the direction of the outpatient supervisor, shall not count as actual custody and shall not be counted toward the person's maximum term or commitment or toward the person's term of extended commitment.”As amended, Penal Code section 1026.5, subdivision (b)(8) requires:  “If the court or jury finds that the patient is a person described in paragraph (1), the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed.   This commitment shall be for an additional period of two years from the date of termination of the previous commitment, and the person may not be kept in actual custody longer than two years unless another extension of commitment is obtained in accordance with the provisions of this subdivision.   Time spent on outpatient status, except when placed in a locked facility at the direction of the outpatient supervisor, shall not count as actual custody and shall not be credited toward the person's maximum term of commitment or toward the person's term of extended commitment.”As amended, Penal Code section 1600.5 states:  “For a person committed as a [MDSO] under former Section 6316 or 6316.2 of the Welfare and Institutions Code, or committed pursuant to Section 1026 or 1026.5, who is placed on outpatient status under the provisions of this title, time spent on outpatient status, except when placed in a locked facility at the direction of the outpatient supervisor, shall not count as actual custody and shall not be credited toward the person's maximum term of commitment or toward the person's term of extended commitment.”

11.   As a practical matter, we note the state forms used by Patton for calculating MDSO's maximum commitment and recommitment times excludes outpatient status from such periods and provides an adjusted maximum release date for those MDSOs who have chosen to utilize the conditional outpatient program.

12.   Henry was decided by the same court that decided Gunderson.   Except for the mention of the Gunderson holding in Henry, we agree with the conclusions there an indefinite conditional outpatient release does not violate a MDSO's due process or equal protection rights when compared to a MDSO not on such conditional release.  (People v. Superior Court (Henry), supra, 12 Cal.App.4th at pp. 1312-1313, 15 Cal.Rptr.2d 896.)   We would find, however, those holdings apply equally to MDSO's who have had their original commitments extended under section 6316.2 and choose to spend time on outpatient status.

13.   Interestingly, no issue concerning Ellis's outpatient status or lack of the court's jurisdiction to hear the petition for extension of his MDSO commitment was raised below or initially on appeal.   We presume such issues were properly not mentioned because of the explicit language in section 6332 and the Penal Code statutes enacted in response to the holding in Gunderson which reveals those sections were intended to have immediate or retroactive application to all MDSO cases where an extended term of commitment under section 6316.2 had occurred.  (See In re Pedro T. (1994) 8 Cal.4th 1041, 36 Cal.Rptr.2d 74, 884 P.2d 1022;  Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-300, 279 Cal.Rptr. 592, 807 P.2d 434;  Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206, 1209-1210, 246 Cal.Rptr. 629, 753 P.2d 585.)   While it is true under Gunderson Ellis's commitment would have expired July 26, 1994, four months before section 6332 became effective to nullify the holding in that case and clarify the preexisting legislative intent of the MDSO commitment scheme to exclude outpatient time, section 6332 was clearly the law at the time the petition and trial hearing for the extension of Ellis's commitment were considered.   As a result, even if Gunderson had been cited to the court below to challenge its jurisdiction, we believe the court would have been within its discretion to find jurisdiction based on the existence of section 6332 and the lack of direct authority on the retroactivity of the section and its effect on Gunderson.  (People v. Dias (1985) 170 Cal.App.3d 756, 762-763, 216 Cal.Rptr. 295.)

FOOTNOTE.   See footnote 1, ante.

FN24. All statutory references are to the Welfare and Institutions Code unless otherwise stated..  FN24. All statutory references are to the Welfare and Institutions Code unless otherwise stated.

25.   It is somewhat refreshing to note the People do not contend the failure to comply with the Gunderson decision in this case was because they or Patton's supervisory personnel were unaware of the decision, nor do they suggest there was any reason to not follow its holding.   Impliedly, they admit this one simply slipped through the cracks.   Further, the majority's reference that even after Gunderson was decided, Patton, at least in Ellis's case, continued to use state forms excluding outpatient status from recommitment periods has no relevance.   The pre-1981 forms used for Ellis contained preprinted sections upon which to compute adjusted maximum commitment dates for patients released on parole or outpatient status.   These only relate to adjusting maximum commitment dates for persons committed under section 6316.1 whose maximum commitment time was extended pursuant to section 6316.1.   Because these forms contain no express reference to section 6316.2 extensions, Patton personnel were forced to interlinearly modify printed forms showing extensions in 1988, 1990 and 1992 to document the fact these commitment dates were due to section 6316.2 extensions.

HUFFMAN, Justice.

HALLER, J., concurs.