People v. Palomino CA5 ( 2016 )

Filed 2/2/16 P. v. Palomino CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069492
Plaintiff and Respondent,
(Super. Ct. No. 99CM1934)
v.
JULIO CESAR PALOMINO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Detjen, J. and Franson, J.
Appellant Julio Cesar Palomino contends the superior court lacked the authority to
issue an order purporting to recommit him for an indeterminate term as a sexually violent
predator (SVP). The People concede and we agree.
BACKGROUND
In August 2009, appellant was committed to the custody of the Department of
Mental Health (now called the Department of State Hospitals [DSH]) for an
indeterminate term pursuant to the Sexually Violent Predator Act (Welf. & Inst. Code,
§ 6600 et seq.).
In January 2014, the superior court scheduled an annual review hearing and
ordered the DSH to file an annual review of appellant’s mental condition.
On May 12, 2014, the court, after reviewing relevant reports, found that
appellant’s conditional release was not appropriate at that time.
On May 23, 2014, the court issued a written order purporting to recommit
appellant to the custody of DSH for an indeterminate term pursuant to Welfare and
Institutions Code section 6604.1
The parties agree, however, that the court had no authority to recommit appellant
and that he was already in the custody of DSH, serving a previously imposed
indeterminate term of commitment. The parties agree that the statutes providing a court
authority to order an indeterminate term did not apply in this situation. (Welf. & Inst.
Code, §§ 6604, 6605.) We agree and will strike the order, an act that does not affect the
continuing legality of appellant’s previously imposed SVP commitment.
DISPOSITION
The May 23, 2014 order purporting to recommit appellant to the custody of DSH
for an indeterminate term as an SVP is stricken.
1 The caption of the order incorrectly cites Penal Code section 2972, subdivision (e).
2