People v. Dougherty

143 Cal.App.3d 245 (1983) 191 Cal. Rptr. 668 THE PEOPLE, Plaintiff and Respondent,

v.

JACK L. DOUGHERTY, Defendant and Appellant.

Docket No. 23718. Court of Appeals of California, First District, Division Four.

April 25, 1983. [246] COUNSEL

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and David Lew, Deputy State Public Defender, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, Eugene W. Kaster and John B. Moy, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POCHE, J.

Jack L. Dougherty appeals from the order extending his commitment to state hospital under Penal Code section 1026.5.[1] He contends that his motions to dismiss the extended commitment proceedings for untimely filing should have been granted.

In 1977 appellant was committed to Atascadero State Hospital for treatment pursuant to section 1026 after he had been found not guilty by reason of insanity of assault with a deadly weapon (§ 245, subd. (a)). His maximum commitment date was November 8, 1981. The petition to extend his commitment was filed on October 14, 1981. On October 20, appellant filed an opposition to the petition. The opposition was overruled on October 27 and the cause set for trial on November 2. On that date appellant moved the trial court for dismissal. The [247] motion was denied. His renewed motion for dismissal during trial was similarly denied.

Section 1026.5 provides that a petition for extended commitment "shall be filed no later than 90 days before the expiration of the original commitment.... [¶] ... The trial shall commence no later than 30 calendar days prior [thereto]." (§ 1026.5, subds. (b)(2), (b)(4).) In the instant case the petition was filed 25 days before appellant was entitled to be discharged, i.e., 66 days late, and trial commenced 5 days prior thereto. (1) Appellant contends that the failure of the district attorney to comply with the statutory time limit for filing the petition deprived the trial court of jurisdiction to entertain the extended commitment proceedings. In support of this contention, he relies on use of the word "shall" in connection with the statutory time limits and argues that within the context of this legislation "shall" has a mandatory definition. Appellant acknowledges that the Legislature in subdivision (a)(2) of section 1026.5 has stated that "[t]he time limits of this section are not jurisdictional." He maintains, however, that this statement merely creates an ambiguity and that, properly read, the statement applies only to the time limits in subdivision (a).