People v. Gerard

Filed 12/22/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B260679 (Super. Ct. No. 14PT-00441) Plaintiff and Appellant, (San Luis Obispo County)

v.

JOHN GERARD,

Defendant and Respondent.

The People appeal a judgment entered after the trial court granted John Gerard's motion for judgment. The court concluded Gerard could not be certified as a mentally disordered offender (MDO) because the Board of Parole Hearings (Board) did not obtain a timely MDO evaluation.1 (Pen. Code, § 2962 et seq.) We conclude, among other things, that the Board properly placed a hold on Gerard's release from prison to allow time for an MDO evaluation. The Board's actions were consistent with its authority pursuant to section 2963 and did not require a written order to detain. We reverse. FACTS AND PROCEDURAL HISTORY In 2007, Gerard was convicted of committing lewd acts upon a child. (§ 288, subd. (a).) He was sentenced to a prison term and eventually released on parole. Thereafter, he committed multiple parole violations. In 2013, Gerard was arrested for failing to register as a sex offender. (§ 290.) While his criminal case was pending, he was committed to Atascadero State Hospital to determine if he was competent to stand trial (§ 1367) and was there for 219 days. Gerard

1 All statutory references are to the Penal Code.

was ultimately convicted of the offense and sentenced to a 16-month state prison term. He had earned 584 days presentence credit, thus exceeding his 16-month sentence. Gerard was received at the California Department of Corrections and Rehabilitation (CDCR) on March 10, 2014. That was the same date that CDCR determined was Gerard's "earliest parole release date" (EPRD). On March 10 and 11, CDCR and the Board detained Gerard to prevent his release from prison. State correctional authorities "determined" Gerard met "the screening criteria to ascertain whether referral" for treatment as an MDO was appropriate. On March 12, 2014, the Board filed its written order imposing a 45-day hold to keep Gerard in custody to conduct an MDO evaluation. The order stated, "Good cause exists to issue the hold because the inmate was received into CDCR with less that 45 days to his EPRD." (§ 2963.) On April 17, the chief psychiatrist of the CDCR certified that Gerard was an MDO. The Board then determined that Gerard met the requirements for commitment for treatment as an MDO. (§ 2962 et seq.) Gerard challenged the Board's determination (§ 2966, subd. (b)) and waived jury trial. Before trial, he moved for judgment, asserting that the Board did not certify him timely as an MDO. Gerard argued the Board may not detain him for an MDO evaluation because it did not file a written order before his March 10 release date. The People argue there is no requirement in the Penal Code that the Board must "file a piece of paper" before the release date to exercise its authority pursuant to the MDO law. The trial court granted Gerard's motion and entered judgment against the People. It found that because the Board had not certified Gerard as an MDO "in a timely manner," he could not be committed for treatment. The court said, "[The Board] can hold someone for an additional 45 days as was done in this case . . . . But . . . the 45-day good cause extension must be ordered and filed by the [Board] prior to the parole date . . . ." (Italics added.) The People appeal.