P. v. Kopay

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Filed 5/14/09 P. v. Kopay CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT CHRISTIAN KOPAY,
Defendant and Appellant.
E044352
(Super.Ct.No. CR45283)
OPINION
APPEAL from the Superior Court of Riverside County. Carl E. Davis,* Helios
(Joe) Hernandez, David Wesley,** and Donal B. Donnelly,*** Judges. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
* Retired judge of the Riverside Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6, of the California Constitution.
** Judge of the Superior Court for Los Angeles County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
*** Judge of the Superior Court for Imperial County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals the trial court‟s order extending his involuntary treatment as a
mentally disordered offender (MDO) within the meaning of Penal Code sections 2970
and 2972.1 Defendant contends the trial court abused its discretion by failing to address
his request to represent himself. Defendant also asserts that the trial court abused its
discretion in granting numerous continuances of the trial of the involuntary
recommitment petition. Finding no reversible error, we affirm.
1. Factual and Procedural Background
On February 25, 1993, defendant was sentenced to 14 years in state prison, after
pleading guilty to first degree burglary (§ 459) and assault with a deadly weapon (§ 245,
subd. (a)(1)). Defendant also admitted two serious prior felony convictions (§ 667, subd.
(a)).
On April 6, 2004, defendant was certified as an MDO under section 2962 and
transferred to Atascadero State Hospital (Atascadero).
On January 3, 2007, the Riverside County District Attorney filed a petition for
extending defendant‟s involuntary commitment one year, until April 6, 2008 (§ 2970).
1 Unless otherwise noted, all statutory references are to the Penal Code.

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Defendant‟s involuntary commitment was scheduled to expire on April 6, 2007. After
numerous continuances, the trial on the petition began on August 23, 2007.
The only witness who testified at trial was Dr. Lev Iofis, a staff psychiatrist and
defendant‟s treating doctor at Atascadero. Defendant first became Iofis‟s patient in May
2004. Iofis diagnosed defendant with schizophrenia, disorganized type, which is the
rarest and most severe type of schizophrenia. Symptoms include delusions,
hallucinations, disorganized thinking, bizarre behavior, inability to speak coherently,
inappropriate affect, lack of social involvement, lack of facial expression, poverty of
speech, poor grooming, and self-neglect. Defendant displayed most of these symptoms.
Iofis saw defendant almost every business day (Monday through Friday) during
defendant‟s treatment, although Iofis did not necessarily talk to him or treat him. Iofis
interviewed defendant once or twice a month. Defendant did not respond well to
treatment. He never went into remission while at Atascadero. Iofis believed defendant‟s
mental condition would not go into remission without further treatment, and if his
treatment was stopped, defendant‟s symptoms would worsen. Based on Iofis‟s
observation of defendant in the courtroom in August 2007, defendant‟s condition
appeared to have worsened from when Iofis last saw him in January 2007.
Iofis testified that, in his opinion, the best course of treatment for defendant would
be hospitalization in a locked facility and treatment with antipsychotic medication, with
monitoring to ensure defendant took his medication. Otherwise defendant would not take
his medication because he does not believe he is mentally ill and believes he does not
need medication. Iofis also stated that defendant poses a danger to others because he is

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psychotic and delusional, he responds to hallucinations, his condition is not in remission,
and he does not have insight into his condition. Iofis noted defendant assaulted another
patient in April 2005, without any provocation, while defendant was delusional.
On August 29, 2007, the jury found defendant qualified as an MDO under sections
2970 and 2972. The same day, the trial court ordered defendant‟s involuntary treatment
continued under section 2970 to April 6, 2008.
2. Right to Self-Representation
Defendant contends the trial court violated his right to self-representation by not
addressing his request to represent himself. The court told defendant it would consider
defendant‟s self-representation request later and then forgot about it.
In the middle of defense counsel and the court‟s discussion on defendant‟s motion
either to dismiss the petition for recommitment or immediately transport defendant back
to Atascadero, defendant interjected, “Your Honor, it does not matter to me. I like to go
pro per. I‟m making the motion to go pro per.” The trial court responded that it would
“take that up in just a minute,” and continued discussing the motion to dismiss. The court
apparently forgot to address defendant‟s self-representation request, and defendant did
not raise the matter again in the lower court.
In criminal proceedings a defendant has both the right of representation and a
concurrent constitutional right to self-representation. (People v. Williams (2003) 110
Cal.App.4th 1577, 1588 (Frank Williams).) Such is not the case with MDO proceedings
because they are not punitive in nature. “[T]hey are considered civil proceedings, and
therefore there is no constitutional right to self-representation. However, as the MDO

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commitment statutes give defendants the right to appointed counsel, a defendant also
could refuse counsel and represent him- or herself. The right only being statutory, any
denial of a request to represent oneself is governed by due process principles and the
decision is reviewed for an abuse of discretion.” (Ibid.)
While the People recognize that People v. Hannibal (2006) 143 Cal.App.4th 1087,
1092-1093 (Hannibal), and Frank Williams, supra, 110 Cal.App.4th at pages 1583-1593,
hold that an MDO has a statutory right to self-representation, the People argue these
cases were wrongly decided because they are premised on the incorrect assumption that,
because section 2972, subdivision (a) requires the court to advise an MDO of the right to
representation, defendant inferentially also has the right to self-representation.
The People argue that section 2972, subdivision (a) implies that an MDO must be
represented by counsel. We reject this overly broad interpretation of subdivision (b).
Subdivision (b) of section 2972, states that “[i]f the person is indigent, the county public
defender shall be appointed.” This provision means no more than what it states. It does
not preclude an indigent MDO from self-representation upon request. The provision
merely requires that representation by the public defender be provided to an indigent
MDO who wishes to be represented by an attorney.
We are not persuaded by the People‟s argument that section 2972 mandates an
MDO be represented by an attorney. Rather we conclude, consistent with Hannibal and
Frank Williams, that defendant had a statutory right both to representation by an attorney
and self-representation: “The statute [section 2972] expressly gives the right to counsel
to defendants in MDO proceedings and surely they have by implication the right to refuse

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appointed counsel and represent themselves.” (Frank Williams, supra, 110 Cal.App.4th
at p. 1591.) The People fail to cite any persuasive case law to the contrary.
Defendant, however, forfeited or abandoned his self-representation right by not
reasserting it after the court told defendant the court would consider it later and then
forgot to do so. (People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732; People v.
Skaggs (1996) 44 Cal.App.4th 1, 7-8.) Perhaps defendant also forgot about his request or
did not reassert it because he no longer wished to represent himself.
Also, under these circumstances, it could reasonably be concluded that defendant‟s
request was made on a whim due to defendant‟s momentary dissatisfaction with his
attorney. A request for self-representation under such circumstances could be construed
as equivocal and fleeting, such that there was no violation of defendant‟s right to self-
representation.
Even if there was error in the trial court not considering and granting defendant‟s
self-representation request, such error was harmless under the People v. Watson (1956)
46 Cal.2d 818, 836 (Watson).) (Hannibal, supra, 143 Cal.App.4th at pp. 1092-1093, and
Frank Williams, supra, 110 Cal.App.4th at pp. 1592-1593.) Defendant acknowledges
that under Hannibal and Frank Williams the error is evaluated under the Watson harmless
error standard. Defendant argues, however, that the trial court‟s failure to address
defendant‟s self-representation request resulted in the elimination of any possibility of
conducting a harmless error analysis since defendant never had an opportunity to explain
why he wanted to represent himself. There thus is no way of knowing whether self-

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representation would have resulted in a more favorable result and therefore the Watson
harmless error analysis should not apply.
We disagree. There was overwhelming evidence supporting the court‟s finding
that defendant qualified as an MDO and it is not reasonably probable that defendant
would have achieved a more favorable result had he represented himself. (Hannibal,
supra, 143 Cal.App.4th at p. 1092, and Frank Williams, supra, 110 Cal.App.4th at pp.
1592-1593.)
3. Continuances of the Proceedings
Defendant contends there were illegal and excessively prolonged delays in
bringing to trial the petition for continued involuntary treatment.
A. Failure to Comply with the 180-Day Limitation Period
Defendant claims the Department of Mental Health failed to comply with the 180-
day limitation period stated in section 2970. Under section 2970, if defendant‟s severe
mental disorder is not in remission or cannot be kept in remission without treatment, the
medical director of Atascadero is required to submit to the district attorney his written
evaluation on remission not later than 180 days prior to the termination of defendant‟s
involuntary commitment, “unless good cause is shown for the reduction of that 180-day
period.” (§ 2970.)
Defendant‟s involuntary commitment period in question began on April 6, 2006,
and was scheduled to expire a year later, on April 6, 2007. The only evidence in the
record indicating when the medical director of Atascadero provided the district attorney
with a written evaluation on defendant‟s remission consists of a declaration in support of

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the petition provided by supervising deputy district attorney Miguel Valdovinos. The
declaration states that the petition allegations “are based, in part, on the Request for
Petition of Continued Involuntary Treatment dated January 2, 2006, Affidavit, and
Evaluation on Remission of mentally Disordered Offender Prior to End of Parole Term
from David K. Fennell, M.D., Medical Director, Atascadero State Hospital and
Recommended Continuing Care Plan/Discharge Summary.” The declaration further
states that these documents were attached to the petition, but they were not attached.
As both parties acknowledge, the date of January 2, 2006, stated in Valdovinos‟s
declaration as when the medical director provided the written evaluation on remission,
appears to be incorrect since the petition was filed on January 3, 2007, and the petition
pertained to the one-year involuntary commitment period beginning on April 6, 2006.
Defendant argues in his opening brief that the declaration merely contains a typo
and the date actually was January 2, 2007, the day before the petition was filed. The
People argue that this cannot be assumed since there is no evidence in the record
establishing the actual date the Atascadero medical director provided the remission
report. The district attorney requests this court to take judicial notice under Evidence
Code section 452, subdivision (h) of a copy of the medical director‟s actual
recommendation for defendant‟s recommitment, which is dated August 26, 2006.
Plaintiff‟s request for judicial notice of the recommitment report is denied because
such evidence is not the type of evidence that qualifies under Evidence Code section 452,
subdivision (h) as “Facts and propositions that are not reasonably subject to dispute and

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are capable of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code, § 452, subd. (h).)
Defendant, however, concedes in his reply brief that the August 26, 2006, letter,
which the People request judicially noticed, demonstrates that the department of mental
health complied with the 180-day deadline. Defendant therefore has withdrawn his claim
that the 180-day deadline was violated, but raises in his reply brief the new argument
that, assuming the recommitment report was provided to the district attorney in August
2006, the district attorney‟s delay in filing the petition until January 2007 was
unreasonable and made it impossible for defense counsel to be prepared to go to trial
before the 30-day cutoff for beginning trial by March 7, 2007.
This factual issue was not raised in the trial court or even in defendant‟s opening
brief. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794; People v. Saunders (1993)
5 Cal.4th 580, 589-590.) The prosecution thus did not have an opportunity to present
evidence refuting the contention or address the argument in the trial court or in the
People‟s respondent‟s brief on appeal. Furthermore, the record on appeal does not
contain any evidence as to when the recommitment report was provided, although the
parties both agree the report was provided in August 2006. Defendant has not timely
raised this argument and/or shown that any delay in filing the petition in January 2007
was without good cause and constituted prejudicial error.
In addition, defendant‟s reliance on People v. Tatum (2008) 161 Cal.App.4th 41
(Tatum) for the proposition that the delay in filing the petition constituted prejudicial
error is misplaced. In Tatum, the defendant raised in the trial court an objection to the

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delay in filing the petition and the trial court held the delay constituted prejudicial error.
The petition was not filed until 33 days before expiration of the defendant‟s commitment
and the trial court found that the delay was caused by the district attorney‟s inexcusable
negligence, outrageous errors, and callousness. (Tatum, supra, at pp. 47, 53,65-66.)
Such circumstances were not established in the instant case and the trial court reasonably
found there was good cause for continuing the proceedings.
B. 30-Day Cutoff for Beginning Trial Before Expiration of Commitment
Defendant argues the trial court violated section 2972 by failing to begin the trial
at least 30 days before expiration of his commitment on April 6, 2007. Section 2972
provides that a 2970 petition for continued involuntary treatment “shall commence no
later than 30 calendar days prior to the time the person would otherwise have been
released, unless the time is waived by the person or unless good cause is shown.”
(§ 2972, subd. (a).) Under this provision, defendant‟s trial should have begun no later
than March 7, 2007. Since there was no express waiver of this provision, any trial delays
after the 30-day cutoff must be justified by a showing of good cause. (People v.
Fernandez (1999) 70 Cal.App.4th 117,133 (Fernandez).) We review the trial court‟s
good cause findings for abuse of discretion. (Ibid., Tatum, supra, 161 Cal.App.4th at p.
57.)
As with the 180-day limit discussed above, the 30-day limit for beginning the trial
on the petition is directory, not mandatory. (People v. Williams (1999) 77 Cal.App.4th
436, 451 (John Williams); Tatum, supra, 161 Cal.App.4th at pp. 56-57.) The 30-day
provision “contemplates a trial at least 30 days before the release date, presumably

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because, under normal circumstances, a trial would take no longer than 30 days.
However, the statute does not expressly set any deadline for completion of a trial, even if
it begins more than 30 days before a release date. Nor does it limit continuances or
otherwise prohibit a court from extending a trial beyond the release date if necessary,” so
long as the petition is filed prior to the offender‟s release date. (John Williams, supra, at
p. 452; Tatum, supra, 161 Cal.App.4th at pp. 56-57; § 2972, subd. (e).)
In addition, “the waiver/good cause exception to the 30-day requirement does not
expressly limit the amount of time . . . a court may excuse for good cause. And, under
the exception, the statute does not expressly set any deadline for commencement or
completion of a trial or prohibit either from occurring after an MDO‟s release date.”
(John Williams, supra, 77 Cal.App.4th at p. 452.) Here, as discussed below, there was
good cause for not beginning the trial by March 7, 2007, and for the subsequent
continuances.
C. Trial Continuances
Defendant complains that the trial court granted seven inappropriate trial
continuances, over defendant‟s objection, without good cause. Defendant also objects to
the length of the continuances, claiming the continuances were unreasonably long.
Defendant argues that because the continuances were not justified by good cause, the
prolonged delays in bringing his case to trial constituted prejudicial error requiring
reversal of the judgment and dismissal of the petition for continued involuntary
treatment. The trial, which began on August 24, 2007, was delayed over four months
beyond expiration of the one-year involuntary commitment period on April 6, 2007.

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Although People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins) is a criminal case, our
high court‟s analysis of whether good cause existed for various continuances in the
proceedings is appropriate in the instant MDO proceedings. In Jenkins, the court
explained that “A showing of good cause requires a demonstration that counsel and the
defendant have prepared for trial with due diligence. [Citations.] When a continuance is
sought to secure the attendance of a witness, the defendant must establish „he had
exercised due diligence to secure the witness‟s attendance, that the witness‟s expected
testimony was material and not cumulative, that the testimony could be obtained within a
reasonable time, and that the facts to which the witness would testify could not otherwise
be proven.‟ [Citation.] The court considers „“not only the benefit which the moving
party anticipates but also the likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether substantial justice will be
accomplished or defeated by a granting of the motion.”‟ [Citation.]” (Jenkins, supra, 22
Cal.4th at p. 1037.)
Applying this analysis, we conclude there was a sufficient showing of good cause
for each of the continuances, including the length of each continuance. The continuances
primarily were granted because those critical to the trial, such as counsel or the sole key
witness, were unavailable. In addition several of the initial continuances were due to the
unavailability of medical reports and delay in the court-appointed doctor examining
defendant and submitting a report. For the reasons discussed below, we conclude that
there was a sufficient basis for the trial court concluding that substantial justice would not

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have been accomplished without the continuances. There was good cause for each of the
continuances.
(1) The March 29, 2007, Hearing
The petition for recommitment was filed in January and defendant was transported
to local custody for the purpose of appearing in court on the matter. At a hearing on
February 2, 2007, the public defender was appointed to represent defendant and
defendant denied the petition. The court ordered that a court-appointed doctor examine
defendant and furnish a report by February 23.
On February 23, defense counsel told the court that defendant had not yet been
evaluated and requested the matter be continued three weeks. The court continued the
hearing to March 16, 2007. On March 16, the doctor‟s evaluation report was still not
available. Pursuant to defense counsel‟s request, the hearing was continued to March 29,
2007. Defense counsel also noted at the March 16 hearing that defendant had not been
transferred back to Atascadero from the county jail. The court ordered defendant
transported back to Atascadero.
At the hearing on March 29, 2007, defense counsel requested the court to either
dismiss the petition, because defendant had not been transported back to Atascadero, or
order the director of the Department of Mental Health to show cause as to why the
department was not accepting patients such as defendant and then to order the director to
find a placement for defendant. Defense counsel complained that there was a freeze on
Atascadero admitting patients, including patients such as defendant who were already
admitted but ordered transported to jail for court proceedings. The trial court responded

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that it did not have the authority to order the director to appear in court under such
circumstances.
Defense counsel then demanded the trial begin immediately and noted that another
judge had reserved the date of April 2, 2007, for trial, although the trial had not actually
been set on that day. The prosecutor informed the court that no witnesses had been
subpoenaed and there were no court days remaining prior to April 2, 2007.2 The
prosecutor added there was not enough time to notice the doctor witnesses. Defense
counsel then moved to dismiss the case. The court denied the motion, stating that the
only option was to house defendant in county jail. The court would not release him.
The court asked if the parties wanted the court to set a trial date. Defense counsel
responded that she wanted the trial set on April 2, 2007. The court stated that it was not
practical to assume the case could be tried in one day with expert witnesses. Therefore
April 2 was not an option. The prosecutor requested May 1, 2007, which would allow
sufficient time for trial preparation. Defense counsel stated she had a scheduling conflict
since she had to try another case on April 30. The prosecutor said any day after May 1
would be fine, and suggested May 7. Defense counsel objected to delaying the trial until
then and when asked when defendant would like the trial set, defendant again stated she
wanted the trial to begin immediately, without providing a reasonable date. The court set
the trial on May 7.
2 March 29, 2007, was a Thursday. The court was closed on Friday, March 30 for
Cesar Chavez Day. April 2 was a Monday.

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The May 7 trial date was not an unreasonable trial date since it provided both
counsel sufficient time to prepare for trial. Defendant‟s demand that trial begin on the
next court day was not reasonable since this was the first time the trial had been set and
prosecution stated that witnesses needed to be subpoenaed, such as defendant‟s treating
doctor, Dr. Iofis.
In addition, although defense counsel claimed she was ready for trial, it was
apparent from the record that she in fact was not ready. Although defendant claims
defense counsel was willing to go to trial immediately without the medical records, the
records were key to the prosecution, as was the testimony of Dr. Iofis. It was reasonable
to give the prosecution sufficient notice of the trial date to allow prosecution a minimal
amount of time to subpoena Dr. Iofis and prepare for trial.
Defendant argues that consistent with the 10-day rule requiring a criminal case to
be brought to trial within 10 days of a defendant declaring ready for trial, there was no
good cause to continue the trial more than 10 days after defendant announced ready for
trial on March 29, 2007. Defendant acknowledges the 10-day rule does not apply by
statute to defendant‟s MDO case since it is not a criminal case. Nevertheless defendant
argues that it supports the proposition that there was no good cause to schedule the trial
on May 7, 2007, more than 10 days after defendant announced ready for trial on March
29, 2007.
Since the 10-day rule is inapplicable, it is irrelevant in determining whether there
was good cause for setting the trial on May 7, 2007.

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(2) May 7, 2007, Hearing
At the time of the May 7 hearing, the prosecution filed a written request to
continue the trial to May 21, 2007, on the grounds there were outstanding medical
records and reports, which neither party had received. Defendant objected to the
continuance and moved to dismiss the case for failure to bring the case to trial before the
end of defendant‟s commitment.
During the May 7 hearing, defense counsel stated that she was ready and available
to try the case, and objected to a continuance. The prosecutor responded that none of the
medical records, which formed the whole basis for defendant‟s recommitment, were
available.
The trial court found that under such circumstances there was good cause to
continue the trial to May 21. We agree since this was the first continuance and the
records were critical to the trial. Although it is unclear why the prosecution did not
obtain the records sooner, the record indicates that previous delays were due in part to the
court-appointed doctor not having examined defendant and provided a report.
(3) June 4, 2007, Hearing
Prior to the June 4, 2007, hearing, the case was continued three times after it was
initially set to begin on May 7, 2007. These three continuances, on May 21, 24, and 30,
2007, were due to defense counsel‟s unavailability. Defendant acknowledges there was
good cause for these three continuances (Tatum, supra, 161 Cal.App.4th at p. 62;
Fernandez, supra, 70 Cal.App.4th at p. 133), but argues that they did not justify
subsequent continuances caused by the prosecution.

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On June 4, 2007, the prosecution filed a motion requesting a two-week
continuance on the grounds Iofis, defendant‟s primary treating physician at Atascadero,
would be unavailable to testify until the week of June 21. At the hearing on June 4, 2007,
defense counsel objected to a continuance, noting that Iofis had not been properly
subpoenaed and defendant should have gone to trial by then. The trial court granted a
continuance to June 21 on the ground Iofis was unavailable.
Defendant argues that since the prosecution did not bother to subpoena Iofis and
the court failed to inquire further into the actual circumstances leading to Iofis‟s
unavailability, the prosecution failed to establish good cause for the continuance.
The trial court did not abuse its discretion in granting the continuance due to the
unavailability of the prosecution‟s key witness. The court reasonably continued the trial
to June 21, 2007, the date the prosecution stated Iofis would be available to testify.
(4) June 21, 2007, Hearing
On June 21, Iofis was still not available. The prosecutor informed the court that
Iofis was still engaged in another matter but would be available at the beginning of the
following week. The prosecution requested another brief continuance until Iofis was
available. In addition, defense counsel and the prosecutor were trailing on trials, with the
prosecutor‟s last day on June 26. Defense counsel objected to a continuance and moved
to dismiss the case. The trial court found the People had established good cause to
continue the trial one week, to June 27. The court denied defendant‟s motion to dismiss.
Defendant complains the prosecution did not use diligence in obtaining Iofis‟s
presence on June 21 because there was no subpoena. But it is reasonable to conclude that

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even had there been a subpoena, the trial court would have permitted a brief trial
continuance rather than force Iofis to attend the trial since he was still engaged in another
matter. There was no abuse of discretion in continuing the trial six days, to June 27,
2007.
(5) June 27, 2007, Hearing
Defendant asserts that continuance of the June 27, 2007, trial date was also not
supported by good cause. On June 27, the prosecutor and defense counsel both
announced they were ready for trial. Defense counsel estimated the trial would take five
days. After a pause in the proceedings, the court stated that the jury trial would begin on
July 5, “due to unavailability of counsel.” Defense counsel orally and by written motion
requested dismissal of the case on the grounds there had been many continuances and the
case should have been tried long ago.
During the June 27 hearing, the court did not state which attorney was unavailable
or whether both were unavailable for the five-day trial. The minute order, however,
states that defense counsel was unavailable, and the court continued the trial and motion
to dismiss to July 5. Since it appears the continuance was due to defense counsel‟s
unavailability, although the record is somewhat unclear, we conclude defendant has
failed to establish the continuance was without good cause (Tatum, supra, 161
Cal.App.4th at p. 62; Fernandez, supra, 70 Cal.App.4th at p. 133), particularly since the
trial court stated at least one of the attorneys was unavailable and the trial was continued
a brief period of time.

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(6) July 12, 2007, Hearing
On July 5, 2007, defense counsel requested a continuance to July 12, 2007, due to
being engaged in trial. The court accordingly continued the trial to July 12.
On July 12, 2007, the prosecution filed a written motion to continue the trial to
July 30 because Iofis was unavailable on July 12, and July 30 was the soonest Iofis could
testify. At the hearing on July 12, defense counsel stated she would not be available from
July 23 until August 10. The court thus continued the trial to August 15, 2007.
On July 23, 2007, the court was informed that defendant‟s trial attorney was on
vacation until August 13. The court set the case for trial on August 13, 2007, perhaps not
realizing the court had previously set the trial on August 15.
There was good cause to continue the trial to August 13 since Iofis, a key witness,
was unavailable. Then when Iofis was available to testify, defense counsel was gone on
vacation. The length of the continuance was reasonable. The court continued the trial
until the first day defense counsel was available, upon returning from her vacation.
(7) August 13, 2007, Continuance request
When the prosecutor attempted to serve Iofis with a subpoena to testify for trial on
August 13, the prosecutor discovered Iofis was on vacation. The prosecution was thus
unable to serve the subpoena personally but mailed the subpoena to Iofis. By the time
defense counsel was back from vacation and available for trial, Iofis was on a prepaid
vacation out of state. The court granted a week continuance of the trial to August 23,
2007.

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The trial went forward on August 23, and the court denied defendant‟s motion to
dismiss on the ground there was good cause for the trial continuances. The court also
found defendant was not prejudiced by the delays.
As to each of the continuances, the trial court acted within its discretion to
continue the trial for the period of time granted. On each occasion there was good cause.
In most instances, either defense counsel, the prosecutor, or the key witness was
unavailable. Each of these participants was critical to ensuring that defendant and the
People received a fair trial. The delays did not prejudice defendant‟s right to a just
outcome and did not result in prolonging defendant‟s commitment, since his commitment
ultimately was extended anyway.
Defendant argues that he was prejudiced by the inability to prepare for trial in the
time remaining prior to his release date of April 6, 2007, and he was involuntarily
confined beyond the statutorily authorized release date of April 6. As to defendant‟s first
argument, defendant has not established that filing the petition on January 3, 2007,
prevented defendant from fully preparing for trial in the time remaining prior to his
release date. (Tatum, supra, 161 Cal.App.4th at p. 61.) Defendant had three months to
prepare for trial, prior to expiration of his release date on April 6, 2007. Other factors,
such as the delay in the court-appointed doctor examining defendant and providing a
report, contributed to the need to delay the trial.
As to the argument defendant was confined beyond his April 6 release date, this
also does not constitute reversible error since there was good cause for each of the
continuances and defendant was ultimately recommitted for another year.

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Defendant also asserts that, as a consequence of the delays, his incarceration in jail
was extended, resulting in defendant not receiving treatment at Atascadero. This
occurred because Atascadero was no longer accepting new or returning patients after
defendant was transported to the jail for purposes of appearing in court. This is not the
type of prejudice that supports reversal of the judgment. Reversal is required only if it is
reasonably probable that the result in the proceedings would have been more favorable to
defendant in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836.)
4. Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Richli
Acting P. J.
s/King
J.

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