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Name: People v. Bona
Case #: B277751
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 09/20/2017

Dismissal is not required where the trial court continued mentally disordered offender’s (MDO) commitment hearing beyond the 60-day period required by Penal Code section 2966, subdivision (b). As a condition of his parole, Bona was committed to the State Department of Hospitals as an MDO (Pen. Code, § 2962). The trial court denied Bona’s petition challenging the Board of Parole Hearings’ determination that he was an MDO and required treatment. On appeal, Bona challenged the trial court’s granting, over objection, of several continuances (a total of 6 days) beyond the 60-day period in which the trial court is required to hold a hearing under section 2966, subdivision (b). Held: Affirmed. Section 2996, subdivision (b) provides no penalty, sanction, or other consequence for a trial court’s noncompliance with its requirement that a hearing be held on a petition within 60 days; the time line is directory only. Thus, any violation of the 60-day hearing requirement does not render a commitment invalid unless it results in a due process violation. Determining whether a due process violation has occurred requires a balancing of any prejudicial effect of the delay against the justification for the delay. Except where the delay is lengthy, prejudice will not be presumed. Bona failed to show there was any prejudice from the continuance. There was no abuse of discretion

Trial counsel did not provide ineffective assistance by failing to seek writ relief from the challenged continuances. In a supplemental brief, Bona argued his trial attorney was ineffective in failing to seek writ relief from the challenged continuances. This claim is forfeited because it was not raised in the opening brief (citing People v. Rangel (2016) 64 Cal.4th 1192). In any event, it is difficult to prevail on an appellate claim of ineffective assistance of counsel because the record rarely reflects the absence of a tactical purpose for the challenged act or omission, or that there could be no satisfactory explanation for the decision. Bona’s argument that the standard of review (i.e., no showing of prejudice required) would have been more favorable to him had counsel sought pretrial writ relief is unsupported by the speedy trial authorities he cites. This is because Penal Code section 2996, subdivision (b) does not provide any penalty or sanction for noncompliance with its 60-day hearing requirement. Any violation of that time line does not render the proceeding invalid unless it amounts to a due process violation, which, in cases involving a relatively brief delay, defendant must demonstrate. Bona has not shown prejudice or that the continuances impaired his ability to present a defense.

Trial counsel was not ineffective by failing to object when a prosecution expert testified to case-specific hearsay. Bona argued the evidence presented by the state’s psychologist was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665, and that trial counsel was ineffective in failing to object to the evidence. Sanchez provides that when an expert testifies as to case-specific, out-of-court statements and treats the contents of the statements as true, the statements are hearsay. Therefore, such statements must be independently proven or fall under a hearsay exception to be admissible. Although Sanchez is a criminal case, it also applies to civil cases to the extent it addresses the admissibility of expert testimony (Evid. Code, §§ 801, 802). But Bona failed to establish either prong of his ineffective assistance of counsel claim. Some of the statements that Bona identified as inadmissible hearsay were based in part on the doctor’s personal observations of Bona or upon information that he conveyed to her during an interview. Bona also failed to establish any prejudice. Exclusion of the challenged statements would not have precluded the doctor from stating her opinions, as an expert may rely on hearsay in forming an opinion and may tell the trier of fact in generally terms that she did so. There was no ineffective assistance of counsel.

The full opinion is available on the court’s website here: