For MDO, When Does 1-Year Commitment Extension Begin?

In 2001, David Earl Myers pled guilty in Kern County Superior Court to annoying or molesting a child under 18 years of age (Penal Code § 647.6(c)(1)) and was sentenced to state prison.

While in state prison, she (Myers prefers female pronouns) was diagnosed and further committed as a mentally disordered offender (MDO) under the Mentally Disordered Offender Act (“MDO Act”) (Penal Code § 2960, et seq.).  She was then treated under the Department of State Hospitals for a year after the end of her prison term.

The one-year, involuntary commitment had an ending date of October 15, 2020, but one month prior to this date, the Kern County district attorney sought to extend the commitment, alleging that Myers’ mental disorder is not in remission and that Myers, because of the disorder, represented a substantial danger of physical harm to the public, as allowed by the MDO Act.  See also People v. Foster (2019) 7 Cal. 5th 1202, 1205.

The trial court set a trial on the People’s request, which if granted, extends the commitment for another year.  Penal Code § 2972(c). 

The trial date was set for November 16, 2020, which was after the ending date of Myers’ commitment.  This seemed to violate § 2972(a)(2), which requires that trial court to set trial on the petition to continue the commitment “no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the [MDO] or unless good cause is shown.” 

If the statutory deadline for commencing trial is not met, the trial court retains jurisdiction to try the matter.  People v. Cobb (2010) 48 Cal. 4th 243, 249-250. However, “when an extension trial does not begin before the scheduled release date,” due process precludes “continued confinement” (id. at 252) and the MDO must be released from custody of the State Department of State Hospitals.

Here, Myers was released from the State Department of State Hospitals under Cobb.  She was not ordered to attend outpatient treatment under the supervision of the State Department of State Hospitals.

Myers’ extension trial then began after multiple delays due to COVID-19 on August 23, 2021, more than ten months after Myers had been released.  The trial court then found on August 31, 2021, that Myers continued to meet MDO criteria and remanded her back into custody. 

She was thereafter in custody for seven weeks when October 15, 2021, the one year mark from the end of her prior commitment arrived.  Myers then was not released.

She then filed a petition for a writ of mandate with the Fifth Appellate District Court in Fresno, seeking an order ending her commitment because the commitment ran from the end of her last commitment to one year later.

The People opposed the petition, arguing the commitment “clock” started from the date she was remanded (after more than ten intervening months passed), thereby ensuring she receives a full year of mental health treatment and effecting the purpose of the statute.

The Fifth Appellate District Court of Appeal agreed with Myers, pointing out that the plain language of Penal Code § 2972(c) states that the commitment “shall be for a period of one year from the date of termination of . . . previous commitment.”

Ironically, according to the text of the MDO Act, had Myers been ordered to attend outpatient treatment when released under Cobb, the time in outpatient treatment would not be credited toward the one year extension.  

Since Myers was not ordered to any outpatient treatment, there was no tolling of the start date for her new one-year commitment and, crazily (pun intended), her one-year commitment only had about six weeks left by the time she was remanded in late August 2021.

We present this summary to show how our laws often are counter-intuitive in ways legislators could not have intended, but the courts must follow the law, as the Fifth Circuit strictly did for Ms. Myers.

For more information about mentally disordered offender (MDO) rights and laws, please click on the following articles: