In Re Johns

Opinion

SCOTT, J.

This petition for writ of habeas corpus seeks to set aside an extension of the term of a commitment to state hospital. The commitment took place after a verdict of not guilty by reason of insanity (Pen. Code, § 1026) in an aggravated assault prosecution (Pen. Code,

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§ 245, subd. (a)). The term was extended in proceedings taken pursuant to Penal Code section 1026.5. Petitioner’s contention is that violation of certain time limits set forth in that section resulted in an invalid extension. We have concluded that the time limits in question are not jurisdictional and that the breaches in this case did not prejudice petitioner. We therefore deny the requested relief.

Petitioner’s initial commitment to state hospital was scheduled to expire on October 19, 1980, absent extension proceedings under Penal Code section 1026.5. Subdivision (b) of that section provides a mechanism for extension of the term by two years where the defendant’s mental condition causes a substantial danger of physical harm to others. The extension process is begun by the medical director of the state hospital or facility submitting evaluations and the case file to the prosecuting attorney, who may then file a petition for extended commitment. The code provides that “[s]uch petition shall be filed no later than 90 days before the expiration of the original commitment.” (Pen. Code, § 1026.5, subd. (b)(2).)

1

For reasons we need not explain, but which suggest, at most, negligence, the petition in this case was filed on August 7, 1980, 17 days late.

Penal Code section 1026.5, subdivision (b)(4), provides that the trial on a petition for extended commitment “shall commence no later than 30 days prior to the time the person would otherwise have been re

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