Under Penal Code section 1026.5, subdivision (a)(2), the deadline for the filing of a petition to extend commitment of a person not guilty by reason of insanity is directory, not mandatory, and if the petition is filed while the person is still in custody on the initial commitment, the court retains jurisdiction.
Appellant was found not guilty by reason of insanity (NGI) of false imprisonment of a child and committed to a state hospital, with a maximum term of six years. Some 180 days before expiration of the term, the hospital director provided the prosecution with an opinion that appellant remained a danger and the commitment should be extended. The prosecution took no action until September 21, 2004, less than a month before appellant’s release date. Counsel for appellant moved for dismissal, arguing that she could not be adequately prepared for trial. Although the prosecution conceded no good cause for the delay in filing the petition, the trial court denied the motion. The appellate court denied writs for habeas corpus and mandate. Seven months after the original commitment ended, a jury found appellant constituted a danger and he was recommitted for two years, with recommitments subsequently occurring. On appeal, the appellate court reversed, directing the trial court to grant the motion to dismiss on due process grounds. Under Penal Code section 1026.5, when recommitment of an NGI person is sought, the medical director shall provide the district attorney with an opinion as to the need for recommitment at least 180 days prior to termination of the initial commitment term and the district attorney shall file a petition for recommitment 90 days before the commitment is to expire. Absent good cause, a trial must commence 30 days before the commitment expires. Subdivision (a)(2) of the statute expressly provides that the time limits are not jurisdictional. On review, the Supreme Court found that with this language, as well as the Legislative intent behind the NGI statute, a trial court is not deprived of fundamental jurisdiction when the time limits are not met if the term has not expired. Whether there is a due process violation from the failure to meet the deadlines resulting in actionable prejudice is assessed on a case by case basis. If the petition is filed before expiration of appellant’s current term and, if appellant suffers no prejudice from the delay, or does not object, consent, or waive time to a trial date beyond the expiration of the commitment, no remedial action is required. If an extension is not filed before expiration of the term, appellant can no longer be held under the NGI statute, as the court loses fundamental jurisdiction. If a petition is filed before expiration of the term but too late to allow for preparation of trial, defendant, on his motion, shall be released pending trial, subject to confinement under the LPS Act. Release under the Act honors due process and ensures treatment of defendant and protection of the community.