Filed 12/22/15
                                CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                           DIVISION SIX


THE PEOPLE,                                                  2d Crim. No. B260679
                                                          (Super. Ct. No. 14PT-00441)
     Plaintiff and Appellant,                              (San Luis Obispo County)

v.

JOHN GERARD,

     Defendant and Respondent.


                  The People appeal a judgment entered after the trial court granted John
Gerard's motion for judgment. The court concluded Gerard could not be certified as a
mentally disordered offender (MDO) because the Board of Parole Hearings (Board) did not
obtain a timely MDO evaluation.1 (Pen. Code, § 2962 et seq.) We conclude, among other
things, that the Board properly placed a hold on Gerard's release from prison to allow time
for an MDO evaluation. The Board's actions were consistent with its authority pursuant to
section 2963 and did not require a written order to detain. We reverse.
                                FACTS AND PROCEDURAL HISTORY
                  In 2007, Gerard was convicted of committing lewd acts upon a child. (§ 288,
subd. (a).) He was sentenced to a prison term and eventually released on parole. Thereafter,
he committed multiple parole violations.
                  In 2013, Gerard was arrested for failing to register as a sex offender. (§ 290.)
While his criminal case was pending, he was committed to Atascadero State Hospital to
determine if he was competent to stand trial (§ 1367) and was there for 219 days. Gerard

1
    All statutory references are to the Penal Code.
was ultimately convicted of the offense and sentenced to a 16-month state prison term. He
had earned 584 days presentence credit, thus exceeding his 16-month sentence.
              Gerard was received at the California Department of Corrections and
Rehabilitation (CDCR) on March 10, 2014. That was the same date that CDCR determined
was Gerard's "earliest parole release date" (EPRD). On March 10 and 11, CDCR and the
Board detained Gerard to prevent his release from prison. State correctional authorities
"determined" Gerard met "the screening criteria to ascertain whether referral" for treatment
as an MDO was appropriate.
              On March 12, 2014, the Board filed its written order imposing a 45-day hold
to keep Gerard in custody to conduct an MDO evaluation. The order stated, "Good cause
exists to issue the hold because the inmate was received into CDCR with less that 45 days to
his EPRD." (§ 2963.) On April 17, the chief psychiatrist of the CDCR certified that Gerard
was an MDO. The Board then determined that Gerard met the requirements for
commitment for treatment as an MDO. (§ 2962 et seq.)
              Gerard challenged the Board's determination (§ 2966, subd. (b)) and waived
jury trial. Before trial, he moved for judgment, asserting that the Board did not certify him
timely as an MDO.
              Gerard argued the Board may not detain him for an MDO evaluation because
it did not file a written order before his March 10 release date. The People argue there is no
requirement in the Penal Code that the Board must "file a piece of paper" before the release
date to exercise its authority pursuant to the MDO law.
              The trial court granted Gerard's motion and entered judgment against the
People. It found that because the Board had not certified Gerard as an MDO "in a timely
manner," he could not be committed for treatment. The court said, "[The Board] can hold
someone for an additional 45 days as was done in this case . . . . But . . . the 45-day good
cause extension must be ordered and filed by the [Board] prior to the parole date . . . ."
(Italics added.) The People appeal.




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                                         DISCUSSION
                    Prisoners May Be Committed for Treatment as MDO's
              The chief psychiatrist of CDCR must certify to the Board that the prisoner is
an MDO before his or her "release on parole." (§ 2962, subd. (d)(1).) The Board is
authorized to require "a further examination by two independent professionals" to determine
whether the "prisoner has a severe mental disorder." (Id., subd. (d)(2).)
              In 2010, the Legislature enacted section 2963. It provides:
              "(a) Upon a showing of good cause, the Board of Parole Hearings may order
that a person remain in custody for no more than 45 days beyond the person's scheduled
release date for full evaluation pursuant to paragraph (1) of subdivision (d) of Section 2962
and any additional evaluations pursuant to paragraph (2) of subdivision (d) of Section 2962.
              "(b) For purposes of this section, good cause means circumstances where there
is a recalculation of credits or a restoration of denied or lost credits, a resentencing by a
court, the receipt of the prisoner into custody, or equivalent exigent circumstances which
result in there being less than 45 days prior to the person's scheduled release date for the
evaluations described in subdivision (d) of section 2962."
              "In construing a statute, our role is to ascertain the Legislature's intent so as to
effectuate the purpose of the law." (People v. Lopez (2003) 31 Cal.4th 1051, 1056.) Courts
should "'"select the construction that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the general purpose of the
statute, and avoid an interpretation that would lead to absurd consequences."'" (Ibid.)
              Gerard entered CDCR on March 10, 2014. His release date was also March
10, 2014. The Board ordered that Gerard remain in custody for 45 days beyond his release
date. It found there was "[g]ood cause . . . to issue the hold because [Gerard] was received
into CDRC with less than 45 days to his [release date]." Within the 45-day period
authorized by section 2963, the CDCR chief psychiatrist certified to the Board that Gerard
was an MDO. The Board's actions were timely pursuant to section 2963.
              Citing Blakely v. Superior Court (2010) 182 Cal.App.4th 1445, Gerard claims
the Board lost jurisdiction to issue the 45-day extension because its written order was filed

                                                3
on March 12, two days after his release date. In Blakely, the People claimed there was good
cause to hold the defendant for an MDO evaluation "past her parole release date due either
to honest confusion over her custody credits or normal processing delays." (Id. at p. 1454.)
The Court of Appeal held the MDO evaluation had to be performed prior to the release date
because the Legislature had not enacted a good cause provision to extend MDO evaluations
beyond the release dates. It ruled the Board's MDO evaluation was consequently untimely
as it lost jurisdiction to act.
               Here, the 2010 enactment to section 2963 provides the good cause provision
that was not available to the Board in Blakely. The Legislature recognized there is often
insufficient time to make an MDO evaluation before a scheduled release date. Section 2963
allows the Board to extend the custody period for good cause.
               The trial court found that, because the Board did not file its written decision
before Gerard's release date, it lost jurisdiction to act. But section 2963 has no such
requirement. As the People note, the statute grants the Board the power to detain the inmate
for a limited time to perform an MDO evaluation. This happened here. Because the Board
has statutory authority to detain Gerard, its power to exercise that authority is not dependent
on its filing a particular document. The trial court conflated the Board's power to detain
under section 2963 with its record-keeping function to explain the reasons for its actions.
The court erroneously concluded that a written order was a condition precedent to detention.
               Gerard suggests an inmate may not be detained after his or her release date
without a determination that he or she could qualify as an MDO. He contends CDCR
calculated his "earliest parole release date (EPRD) to be March 10, 2014; [he] was not
released on that date, and no action was taken to certify [him] as an MDO until two days
later, on March 12, 2014, when a hold was placed on [him]." (Italics added.) But he was
detained on March 10, and MDO screening occurred before the Board issued the March
12th written order. The Board stated: "The California Department of Corrections and
Rehabilitation's (CDRC) Division of Adult Institutions (DAI) and/or the Division of
Correctional Health Care Services (DCHCS) have determined the subject Gerard, John . . .
meets the screening criteria to ascertain whether referral to the Department of State

                                                4
Hospitals (DSH) for treatment as a Mentally Disordered Offender (MDO) pursuant to
[Penal Code] section 2962 is appropriate." (Italics added.)
              Because the release date and the date Gerard entered CDCR were the same,
the trial court's conclusion that a written order must be filed before the release date would
deprive the Board of time to perform its duties and defeats the purpose of section 2963 to
provide sufficient time to make an MDO evaluation. The Board's action was reasonably
delayed because of exigent circumstances pursuant to section 2963.
              The trial court relied on Blakely, but section 2963 was the legislative rejection
of the result reached in that decision. The People note, "Offenders with serious mental
disorders are likely to be hospitalized for mental competency proceedings, as Gerard was for
219 days. Such offenders will tend to be received into CDCR custody with immediate or
past-due release dates, just as Gerard was." The Legislature's awareness of this problem is
evident. In past cases, MDO's who should have received treatment were released because of
such timing issues. That undermined the treatment goals of the MDO statute, presenting a
threat to public safety. Section 2963 corrected this problem by vesting the Board with
jurisdiction to place holds on the release dates so that MDO's who need treatment would
receive it. We interpret the statute to accomplish this legislative goal. (People v. Lopez,
supra, 31 Cal.4th at p. 1056.) The Board acted within its statutory authority.
              The judgment is reversed.
              CERTIFIED FOR PUBLICATION.




                                           GILBERT, P. J.
We concur:



              YEGAN, J.



              PERREN, J.
                                               5
                                   John A. Trice, Judge

                        Superior Court County of San Luis Obispo

                           ______________________________


             Kamala D. Harris, Attorney General, Jennifer A. Neill, Senior Assistant
Attorney General, Julie A. Malone, Supervising Deputy Attorney General, Charles Chung,
Deputy Attorney General, for Plaintiff and Appellant.


             Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Respondent.




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