People v. Harner

213 Cal. App. 3d 1400, 262 Cal. Rptr. 422, 1989 Cal. App. LEXIS 944

• Court: California Court of Appeal
• Decided: September 18, 1989
• Docket: A041708
• Status: Published

Opinions

Opinion

BENSON, J.

Harry Carl Harner appeals from an order denying his motion for discharge from outpatient status as a mentally disordered sex offender (MDSO) due to the failure of the court below to hold annual hearings to review his status. We conclude that the motion was properly denied and therefore affirm the order.

The record on appeal in this case is rather sparse. However, from the brief clerk’s and reporter’s transcripts and an augmentation to the record,¹ the following procedural history appears undisputed: On March 7, 1978, appellant entered a plea of guilty to one count of violation of Penal Code section 286, subdivision (b)(2)² (sodomy with a minor under 16 years of age), and to one count of violation of section 288a, subdivision (c) (oral copulation with a minor under 14 years of age and more than 10 years younger than the offender). Both of these crimes were committed by appellant, who was then 27 years old, against an 8-year-old child. in April 1978, appellant was found to be an MDSO pursuant to Welfare and Institutions Code former section 6300 et seq.³ On May 8, 1978, he was committed to Atascadero State Hospital for treatment, with a maximum confinement period of four years and eight months. He was placed on outpatient status, pursuant to sections 1600 and 1602, on December 9, 1981. No review of his outpatient status was made prior to the time he filed his motion for discharge from that status on December 21, 1987.⁴

The superior court denied appellant’s motion for discharge from outpatient status on January 12, 1988, and set the matter for a hearing to determine whether outpatient status should be extended. Notice of appeal from the court’s order was filed on March 10, 1988. Thereafter on April 1, 1988, following review of a report from Community Mental Health, the court determined that appellant’s outpatient status should be extended for one year. The matter was placed on the July 6, 1988, calendar for receipt of a quarterly report⁵ and on the March 28, 1989, calendar for review of outpatient status.

Welfare and Institutions Code former section 6300 defined an MDSO as follows: “‘[M]entally disordered sex offender’ means any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.” Pursuant to section 1602, subdivision (a), a person committed as an MDSO may be placed on outpatient status if (1) the director of the treatment facility to which the person has been committed “advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, and will benefit from such outpatient status”; (2) the community program director or his designee “advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, will benefit from such status, and identifies an appropriate program of supervision and treatment”; and (3) after a hearing, the court “specifically approves the recommendation and plan for outpatient status.” (Italics added.)

Section 1606 provides: “Outpatient status shall be for a period not to exceed one year. At the end of the period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense counsel and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. Prior to such hearing, the community program director shall furnish a report and recommendation to the medical director of the state hospital, where appropriate, and to the court, which the court shall make available to the prosecutor and defense counsel. The person shall remain on outpatient status until the court renders its decision unless hospitalized under other provision of the law. The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists. The court shall transmit a copy of its order to the community program director or a designee.”⁶

Appellant contends that the failure of the court to hold annual hearings to review his status invalidates any further attempt of the state to exercise control over him under the MDSO statutes and thus requires his discharge from outpatient status. In People v. McGee (1977) 19 Cal.3d 948 [140 Cal.Rptr. 657, 568 P.2d 382], Justice Tobriner, writing for a unanimous court, explained: “Traditionally, the question of whether a public official’s failure to comply with a statutory procedure should have the effect of invalidating a subsequent governmental action has been characterized as a question of whether the statute should be accorded ‘mandatory’ or ‘directory’ effect. If the failure is determined to have an invalidating effect, the statute is said to be mandatory; if the failure is determined not to invalidate subsequent action, the statute is said to be directory. As we explain below, in evaluating whether a provision is to be accorded mandatory or directory effect, courts look to the purpose of the procedural requirement to determine whether invalidation is necessary to promote the statutory design.

“Although the parties to this action have utilized the mandatory-directory terminology in their briefs, both parties, sharing the confusion exhibited in some past judicial decisions, have improperly equated the mandatory-directory duality with the linguistically similar, but analytically distinct, ‘mandatory-permissive’ dichotomy. As we explained recently in Morris v. County of Marin (1977) 18 Cal.3d 901, 908 [136 Cal.Rptr. 251, 559 P.2d 606] . . ., in the latter context ‘the term “mandatory” refers to an obligatory [procedure] which a governmental entity is required to [follow] as opposed to a permissive [procedure] which a governmental entity may [follow] or not as it chooses. By contrast, the “directory” or “mandatory” designation does not refer to whether a particular statutory requirement is “permissive” or “obligatory,” but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates. [Citations.]’ (See also Ryan v. Byram (1935) 4 Cal.2d 596, 603-604 . . . .)” (Id. at pp. 958-959, brackets in original, italics added.)⁷

“Although the mandatory-directory and obligatory-permissive dichotomies are thus analytically distinct, in some instances there is an obvious relationship between the two. If, for example, a statute simply embodies a permissive procedure with which a governmental entity may or may not comply as it chooses, the entity’s failure to comply will generally not invalidate the entity’s subsequent action. The converse of this proposition is not always true, however, for as we observed in Morris, ‘[m]any statutory provisions which are “mandatory” in the obligatory sense are accorded only “directory” effect.’ ” (People v. McGee, supra, 19 Cal.3d at p. 959, citing Morris v. County of Marin (1977) 18 Cal.3d 901, 908 [136 Cal.Rptr. 251, 559 P.2d 606], fn. 4.)

“As Chief Justice Gibson explained in Pulcifer v. County of Alameda [1946] 29 Cal.2d 258, 262 [175 P.2d 1], there is no simple, mechanical test for determining whether a provision should be given ‘directory’ or ‘mandatory’ effect. ‘In order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]. . . (Morris v. County of Marin, supra, 18 Cal.3d 901, 909-910, fn. omitted, brackets in original.) “[Generally, requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional unless a contrary intent is clearly expressed. [Citations.] In ascertaining probable intent, California courts have expressed a variety of tests. In some cases focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment. [Citation.]” (Edwards v. Steele (1979) 25 Cal.3d 406, 410 [158 Cal.Rptr. 662, 599 P.2d 1365].)

Applying this framework, we hold that the annual review provisions of section 1606 are directory since the primary purpose of the statutory scheme is protection of society and a holding that the review provisions are mandatory would defeat that purpose by automatically releasing appellant, a child molester who was found mentally disordered, from any further supervision or treatment without a court’s determination that he is no longer in need of such supervision or treatment.

“[T]he California cases have made it plain that the mentally disordered sex offender law is designed to serve [two] legislative aims, and although confinement thereunder is not ‘solely’ for the protection of society, that is nevertheless its ‘primary purpose’ (In re Bevill (1968) . . . 68 Cal.2d 854, 858 [69 Cal.Rptr. 599, 442 P.2d 679]); rehabilitative treatment of the mentally disordered sex offender is, at best, its ‘secondary purpose’ [citation].” (People v. Feagley (1975) 14 Cal.3d 338, 361 [121 Cal.Rptr. 509, 535 P.2d 373].)⁸ “Outpatient status is not a privilege given the MDSO to finish out his sentence in a less restricted setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the MDSO and cause no undue hazard to the community. (See Pen. Code, § 1603, subds. (a) and (b).)” (People v. Wymer (1987) 192 Cal.App.3d 508, 513 [237 Cal.Rptr. 301].)⁹

The dissent contends that the primary purpose of section 1606 is not protection of the public but, rather, protection of the MDSO’s right to discharge from outpatient status after one year unless a court orders otherwise. Our view is exactly the opposite: the purpose of section 1606 is to protect society by assuring that no MDSO is released from supervision and treatment or continued on outpatient status without a court order determining that is appropriate. The dissent asserts that “a mentally disordered sex offender may not be released from confinement and made an outpatient if there is any discernible likelihood he is still dangerous.” (Dis. opn., post, p. 1412.) This is incorrect. An MDSO may not be placed on outpatient status unless it is determined that, pursuant to the language of section 1602, he “will not be a danger to the health and safety of others while on outpatient status. ” Outpatient status includes “an appropriate program of supervision and treatment” identified by the community program director. (§ 1602, subd. (a)(2).) To say that it has been determined that a defendant, previously found to be “predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others” (Welf. & Inst. Code, former § 6300), will not be a danger while receiving supervision and treatment is certainly not to say that he will not be a danger under any circumstances, regardless of treatment.

The final flaw in the dissent’s position that protection of society is not the purpose of this statute is the assertion that all the protection needed for society is contained in sections 1608 and 1609. Section 1608 provides a procedure for revocation of outpatient status, following a court hearing, if “the outpatient treatment supervisor is of the opinion that the person requires extended inpatient treatment or refuses to accept further outpatient treatment.” Section 1609 provides a procedure for confinement in a state hospital or other treatment facility, following a court hearing, if “the prosecutor is of the opinion that the person is a danger to the health and safety of others” while on outpatient status. While these sections do provide mechanisms for revocation of outpatient status at the request of the outpatient treatment supervisor or upon petition of the prosecutor, they do not assure that there will be regular periodic review of outpatient status by the court as required by section 1606. There may well be situations where the court would deem revocation of that status appropriate although neither the outpatient treatment supervisor or the prosecutor had taken steps themselves to seek revocation.

The People correctly point out that this case is analogous to People v. Mord (1988) 197 Cal.App.3d 1090 [243 Cal.Rptr. 403], There the defendant was committed to Atascadero State Hospital pursuant to section 1026 after being found not guilty by reason of insanity. In 1982 he was granted a parole to community outpatient treatment pursuant to former section 1611, which provided in pertinent part: “The maximum period of parole treatment shall not exceed one year. The court shall, at the end of such maximum period, hold a hearing and either renew its approval for additional parole treatment upon the recommendation of the medical director of the state hospital or other facility from which the person was paroled, discharge from the commitment pursuant to Section 1026.2, or direct that the person be returned to the state hospital or other facility.” No annual hearings were held in 1983 or 1984. In July 1985, the defendant’s outpatient status was revoked. Thereafter a petition to extend his commitment pursuant to section 1026.5 was filed and after a hearing he was ordered returned to Atascadero for an additional two years.

The court in Mord, although agreeing that former section 1611 had been violated, rejected the contention that the failure to hold the applicable review hearings invalidated the subsequent recommitment. Applying the principles for determining whether the statute should be accorded a mandatory or directory effect, as set forth in People v. McGee, supra, 19 Cal.3d at pages 958-963 and Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262 [175 P.2d 1], the court concluded that the hearing provisions of former section 1611 were directory.¹⁰ It reasoned that “the primary purpose behind the annual review hearings is not to protect appellant’s individual interests, but to protect the public’s interest in insuring that insane persons receive the treatment they need.” (People v. Mord, supra, 197 Cal.App.3d at p. 1114.) The court further stated that holding the statutory provision to be directory “will not only best accomplish the purpose of public protection, but will best benefit appellant as well. ... A holding by this court that the statute violated is a ‘mandatory’ one, thereby voiding the subsequent recommitment order and releasing appellant into the community, not only exposes the public to a dangerous person but prevents appellant from receiving treatment for his illness.” (Ibid.)11

We similarly conclude here that to hold the annual review requirement of section 1606 directory will best promote the statutory purpose of public protection¹² and will allow appellant to be provided with any continuing treatment needed.¹³ We do not share the dissent’s cynical view that our holding will lead to increased failures of the responsible government officials to comply with the annual review requirements. It appears to us very likely that appellant here simply “fell through the cracks.” We are confident that publication of this opinion will increase the awareness of such officials of their duties and lead to increased compliance with the statutory requirements.

Lastly, we consider appellant’s contention that he has been denied due process of law. He relies by analogy upon cases refusing to extend commitments under other statutory schemes of prisoners in confinement. Several courts have refused to permit the extension, pursuant to section 1026.5, of the commitment to a state hospital of a prisoner found not guilty by reason of insanity when there has been a serious delay in filing the petition for such extension. Under that section the petition must be filed no later than 90 days before expiration of the original commitment. These courts have reasoned that the time limit was “jurisdictional” or that the defendant was denied due process by being afforded inadequate time to prepare his defense in a proceeding which could result in his loss of liberty. (See People v. Pacini (1981) 120 Cal.App.3d 877, 891-892 [174 Cal.Rptr. 820]; People v. Hill (1982) 134 Cal.App.3d 1055 [185 Cal.Rptr. 64]; People v. Saville (1982) 138 Cal.App.3d 970, 974 [188 Cal.Rptr. 376]; People v. Hawkins (1983) 139 Cal.App.3d 984, 987 [189 Cal.Rptr. 126]; People v. Dougherty (1983) 143 Cal.App.3d 245, 248-249 [191 Cal.Rptr. 668].) Similarly, in People v. Hernandez (1983) 148 Cal.App.3d 560 [196 Cal.Rptr. 31], the court refused to extend the defendant’s detention by the California Youth Authority when the application for extension was filed 17 days before expiration of the commitment rather than 90 days before as required by Welfare and Institutions Code section 1800.

We find these cases distinguishable in that they involved situations where the defendants were in actual confinement and the state was taking affirmative steps to extend the confinement. Here appellant was not in confinement and as long as no review occurred that status quo remained. As the court observed in People v. Hernandez, supra, 148 Cal.App.3d at page 564, “as the significance of the interest involved increases, so does the level of procedural protection required by due process. [Citations.].” Appellant’s interest in having a hearing which he never requested and which could have resulted in revocation as well as continuance or discharge of outpatient status is not as significant as the interests of confined prisoners in defending a proceeding in which the state is attempting to extend their confinement.

The order denying appellant’s motion for discharge from outpatient status is affirmed.

Peterson, J., concurred.

1 This augmentation consists of the appellant’s motion for discharge from outpatient status and the People’s response thereto. In those documents, counsel for the parties indicated concurrence in the description of events leading to this appeal.

2 All further statutory references are to the Penal Code unless otherwise indicated.

3 Welfare and Institutions Code section 6300 and associated MDSO laws were repealed by Statutes 1981, chapter 928, section 2, page 3485; however, these provisions remain applicable to persons previously committed as mentally disordered sex offenders. (Baker v. Superior Court (1984) 35 Cal.3d 663, 665-668 [200 Cal.Rptr. 293, 677 P.2d 219]; People v. Sherman (1985) 167 Cal.App.3d 10, 12 [212 Cal.Rptr. 861], fn. 2; People v. Lamport (1985) 165 Cal.App.3d 716, 718 [211 Cal.Rptr. 665], fn. 2.) “[T]he legislative purpose in repealing MDSO commitment procedures was to treat sexual offenders more harshly.” (Baker v. Superior Court, supra, 35 Cal.3d at p. 666.)

4 In their brief, the People do not concede this forthrightly, but they have never made any suggestion to the contrary.

5 Section 1605, subdivision (d), provides that the outpatient treatment supervisor shall submit a report setting forth the status and progress of the defendant to the court at 90-day intervals following the beginning of outpatient treatment. There is no indication in the record before us that such reports were ever submitted in this case prior to the hearing on the motion for discharge from outpatient status.

6 A 1985 amendment to this section added the next to last sentence. (Stats. 1985, ch. 1232, § 16, pp. 4229-4230.) The People have never contended that any good cause existed for the failure to hold annual review hearings in this case.

7 It has not been suggested that the duty to hold annual review hearings in this case was permissive rather than obligatory. The issue is the eifect to be accorded the failure to comply with the concededly obligatory requirements of the statute.

8 The dissent argues that Feagley and Bevill do not stand for the proposition that protection of society is the primary purpose of the MDSO law because they refer to confining or quarantining such offenders. (Dis. opn., post, pp. 1421-1422.) We find this attempted distinction a matter of semantics. Although an MDSO on outpatient status may not be confined or quarantined in a literal sense, he is still under the control of state authorities pursuant to a statutory scheme which, as we demonstrate in this opinion, has as its primary purpose the protection of society.

9 Section 1603 contains provisions for the placing on outpatient status of persons convicted of certain violent crimes which are analogous to the provisions of section 1602 as pertinent to this discussion.

10 The Mord court, like the Supreme Court in People v. McGee, supra, 19 Cal.3d 948, 958-959, and Morris v. County of Marin, supra, 18 Cal.3d 901, 908, footnote 4, recognized that in determining whether the statute was mandatory or directory: “It must also be kept in mind that the ‘mandatory-directory’ effect is not to be confused with the ‘mandatory-permissive’ dichotomy. The latter deals with deciding whether a statute is one which a public official is obligated to follow, or one which he has discretion to disregard. It is not being asserted here that the procedures set out in section 1611, subdivision (a) are procedures the lower court had discretion to ignore. What is being asserted is that many statutory provisions which are mandatory in the obligatory sense are accorded only directory effect (People v. McGee, supra, 19 Cal.3d at p. 959.), and if this court gives subdivision (a) a ‘directory’ effect that finding would not be inconsistent with settled law.” (People v. Mord, supra, 197 Cal.App.3d at p. 1114.)

11 With respect to the Mord decision, the dissent says only that it is badly reasoned and involved a different statute. In our view, section 1606, involved here, and former section 1611, subdivision (a), involved in Mord, are virtually indistinguishable for purposes of the analysis here. Both require that the court hold annual hearings to review the status of defendants on outpatient treatment and that, following the hearing, the court shall discharge the defendant, continue outpatient status or order the defendant reconfined. Subdivision (b) of former section 1611, referred to by the dissent, has no relevance to the portion of Mord upon which we rely.

12 The dissent contends that our holding will render the statute unenforceable. While this suggestion may have some theoretical appeal, the practicalities of the matter dictate otherwise. While we in no way condone the state authorities’ abdication of responsibility to comply with the statutory requirements, we note that appellant at any time could have requested that a review hearing be held. Had he unsuccessfully requested such, it appears that mandamus would be available to compel compliance with the statutory procedures. (Compare People v. Wymer, supra, 192 Cal.App.3d at p. 514 [by mandamus or habeas corpus, a confined MDSO can petition for review of the failure of the hospital director and program director to exercise their discretion concerning his readiness for outpatient status].)

The dissent also contends that this is an easier case in which to accord a statute mandatory effect than People v. McGee, supra, 19 Cal.3d 948, where the Supreme Court held mandatory a provision that restitution be sought prior to bringing a criminal action for welfare fraud. This is so, it is asserted, because the benefit conferred by the statute on appellant here is greater than that conferred on the defendants in McGee. What the dissent overlooks is the drastically different consequences flowing from a holding of mandatory effect in McGee and in the present case. The consequence in McGee was that the defendants were not prosecuted for the economic crime of fraudulently obtaining $266.93 in welfare benefits. (19 Cal.3d at pp. 957, 968-969.) The consequence here would be that a convicted child molester who might still be in need of treatment would automatically be released from any supervision and treatment which the state could require.

13 The dissent asserts that there is no evidence that the appellant was a danger to others or in need of treatment, pointing out that at the hearing on the motion for discharge from outpatient status the People argued only as to the heinous nature of the crimes. Whether appellant was dangerous or in need of treatment was not, however, the issue at that hearing. The sole issue was whether he should automatically be discharged from outpatient status due to the violation of the procedural requirements of section 1606. Thereafter, on April 1, 1988, the court held a hearing after receiving a report from Community Mental Health. Although that report is not part of the record before us, it apparently recommended that appellant was in need of further treatment, as the court then entered an order continuing his outpatient status for an additional year.