People v. Dougherty ( 1983 )

CHRISTIAN, J.

I concur.

If the question of the effect of failure to petition for extension within the time specified in Penal Code section 1026.5 were open to fresh consideration, a strong argument could be made for a result contrary to that reached by the court here. The time limits specified in the statute are mandatory; that is, hospital authorities, the prosecutor and the court are under mandatory duties to proceed expeditiously. It would not seem to follow, when the statute states that its time limits are not jurisdictional (see In re Johns (1981) 119 Cal.App.3d 577 [175 Cal.Rptr. 443]), that a necessary remedy for delay is to summarily release an inmate who may be dangerous to public safety.

Although due process values are of course implicated here, the situation where counsel for the inmate has not had adequate time to prepare is not the same as one where evidence potentially valuable in the defense of a criminal case has been irretrievably lost. So far as the present record shows if defense counsel needed more than 20 days to prepare for the hearing more time could have been obtained on request, wholly dissolving the prejudice referred to in this court’s opinion. Another form of prejudice would be substituted: some days of continued detention resulting from neglect of duty on the part of the hospital authorities or the prosecutor. It is not clear that such detention would in all circumstances, and no matter how short, amount to a deprivation of due process compelling release of a potentially dangerous inmate.

Although expressing these misgivings, I concur because on facts that cannot be distinguished from ours the Court of Appeal in the Second Appellate District has held that dismissal is the proper remedy. (People v. Hill (1982) 134 Cal.App.3d 1055 [185 Cal.Rptr. 64]; see also People v. Hawkins (1983) 139 Cal.App.3d 984 [189 Cal.Rptr. 126].) I do not consider that creation of a conflict of decisions on the issue would be justified.