Filed 1/13/20
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


THE PEOPLE,                            2d Crim. No. B294553
                                    (Super. Ct. No. 18PT-00854)
     Plaintiff and Appellant,        (San Luis Obispo County)

v.

ANDREW JOSEPH PARKER,

     Defendant and Respondent.


           The Mentally Disordered Offender Act (MDO Act)
provides that individuals with severe mental disorders who are
convicted of certain felonies may be ordered to participate in
inpatient mental health treatment after they have completed
their prison terms. (Pen. Code, 1 § 2960 et seq.) To qualify as a
mentally disordered offender (MDO), a prisoner must have “been
in treatment for the severe mental disorder for 90 days or more
within the year prior to [their] parole or release.” (§ 2962, subd.
(c).) Here we consider whether treatment during an extension of
a prisoner’s custodial time to complete a psychiatrist’s


        1 All
          further unspecified statutory references are to the
Penal Code.
 evaluation (see § 2963) may be included in the required 90 days
 of treatment. We conclude that it can.
              The Attorney General appeals from the trial court’s
order finding that Andrew Joseph Parker did not meet the
criteria to be treated as an MDO because he did not receive 90
days of treatment before his scheduled parole date. He contends
treatment during the additional 45-day custody period authorized
by the Board of Parole Hearings (Board) pursuant to section 2963
should have counted toward the 90 days of treatment required by
section 2962, subdivisions (c) and (d)(1). We agree, and reverse.
             FACTS AND PROCEDURAL HISTORY
              On December 19, 2017, Parker pled no contest to
making criminal threats (§ 422). The trial court sentenced him to
two years in state prison. Over the next two months, Parker
received 17 days of mental health treatment while housed in the
county jail.
              Parker was delivered to the California Department of
Corrections and Rehabilitation (CDCR) on February 16, 2018,
with a scheduled release date of March 31. Daily treatment at
CDCR for Parker’s mental disorder began on February 22. On
March 20, the Board ordered Parker to remain in custody for 45
days beyond his scheduled release date, through May 14.
Treatment of Parker’s mental health disorder continued during
this period. On May 11, the Board determined that he had been
in treatment for his mental disorder for the required 90 days.
              Parker challenged the Board’s determination in the
trial court (§ 2966, subd. (b)), arguing that section 2963’s 45-day
extension period did not count toward section 2962’s 90-day
treatment requirement. The court agreed, and reversed the




                                2
Board’s determination that Parker met the criteria for MDO
treatment.
                           DISCUSSION
             To uphold a Board determination committing a
prisoner for MDO treatment, the prosecution must prove that the
prisoner “has been in treatment for [a] severe mental disorder for
90 days or more within the year prior to [their] parole or release.”
(§ 2962, subd. (c); People v. Foster (2019) 7 Cal.5th 1202, 1207.)
The 90-day treatment period may begin while the prisoner is in
county jail, but no earlier than the day they are convicted.
(People v. Achrem (2013) 213 Cal.App.4th 153, 157, 159.) “Upon a
showing of good cause, [the Board] may order that a person
remain in custody for no more than 45 days beyond [their]
scheduled release date for full evaluation.” (§ 2963, subd. (a).)
“[G]ood cause” includes “the receipt of the prisoner into custody,
or equivalent exigent circumstances [that] result in there being
less than 45 days prior to the person’s scheduled release date for
the evaluations.” (§ 2963, subd. (b).)
             Here, Parker received 17 days of treatment while in
county jail. And because he went to prison fewer than 45 days
before his scheduled release date, the Board found exigent
circumstances to retain him in custody for an additional 45 days
for his MDO evaluation. Whether treatment during that period
can help to satisfy the criteria of section 2962 is the question we
must resolve.
             This question presents an issue of statutory
interpretation, which we review de novo. (People v. Morales
(2018) 25 Cal.App.5th 502, 509.) When interpreting a statute, we
first examine its plain language, “giving the words their usual,
ordinary meaning.” (People v. Canty (2004) 32 Cal.4th 1266,




                                 3
1276.) We “give meaning to every word of [the] statute if
possible, and . . . avoid a construction [that renders] any word
surplusage.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) We
interpret the language “in the context of the statute as a whole
and the overall statutory scheme, [giving] ‘significance to every
word, phrase, sentence, and part of [the] act in pursuance of the
legislative purpose. [Citation.]’ [Citations.]” (Canty, at p. 1276.)
If the statutory language is unclear, we may examine its
legislative history to help determine the Legislature’s intent.
(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.)
                             Plain meaning
              Read in isolation, subdivision (c) of section 2962 is
clear: The prisoner must receive treatment “for 90 days or more
within the year prior to [their] parole or release.” “Release on
parole is the actual transfer of a prisoner confined in prison to
parole supervision in the community.” (Cal. Code Regs., tit. 15,
§ 2355.) In “its most commonly understood sense,” the word
“‘release’” means “‘the state of being liberated or freed[]’ [citation]
. . . the date [a person] is due to be released from custody.” (In re
Hovanski (2009) 174 Cal.App.4th 1517, 1525, original italics.)
The plain meaning of subdivision (c) would thus include
treatment during a 45-day extension because it precedes the
prisoner’s release from custody.
              Subdivision (c) is not the only language in section
2962 regarding the timing of the treatment requirement,
however. Subdivision (d)(1) provides that “[p]rior to release on
parole,” the chief psychiatrist must certify “that the prisoner has
been in treatment for the severe mental disorder for 90 days or
more within the year prior to [their] parole release day.” (Italics
added.) Parker contends that this language limits the calculation




                                  4
of treatment days to those occurring before his originally
scheduled parole release date, May 14, 2018.
             But the overall legislative scheme allows
consideration of treatment days during a lawful extension of the
original parole date. The language of section 2962, subdivision
(c), mirrors that in section 2981, which permits the admission of
certified records “[f]or the purpose of proving the fact that a
prisoner has received 90 days or more of treatment within the
year prior to the prisoner’s parole or release.” (Italics added.)
Section 2966, subdivision (b) provides for a trial court hearing on
whether the individual “as of the date of [the Board] hearing, met
the criteria of [s]ection 2962.” (Italics added.) And section 2963,
subdivision (a) permits the Board to “order that a person remain
in custody for no more than 45 days beyond [their] scheduled
release date for full evaluation.” Nothing in these provisions
prohibits continued treatment or consideration of that treatment
in determining whether the section 2962 criteria are met.
             Parker challenges the plain meaning of section 2963,
asserting that it does not extend a prisoner’s “parole release date”
but instead places a “hold” on them. He relies in part on a Board
form that characterizes the 45-day extension as a “hold.” But the
statute does not use this term. It states that the Board may
order the person “remain in custody” beyond the “scheduled
release date.” (§ 2963, subd. (a).) The form’s characterization of
the 45-day custody period as a “hold” or “extension” does not
undermine section 2963’s plain meaning. 2


      2 In a footnote, Parker argues that section 2963 cannot be
interpreted as authorizing the Board to modify a scheduled
parole release date because section 2963 does not include a due
process method to challenge the Board’s determination. He


                                 5
              The Legislature enacted section 2963 because “there
is often insufficient time to make an MDO evaluation before a
scheduled release date.” (People v. Gerard (2015) 243
Cal.App.4th 242, 247.) “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.” (Id. at p. 248.)
              The same is true here. Without the 45-day extension,
timing issues would have made it impossible to evaluate Parker
as an MDO. The timing of delivery from county jail to prison
should not determine which individuals are in need of MDO
commitment.
              Parker argues that allowing inclusion of treatment
time during a section 2963 extension would encourage prison
officials to delay necessary treatment because they could simply
extend the time to provide such treatment. But there is no
evidence of unnecessary delay or bad faith here. And the release
date can be extended only upon a showing of good cause, such as


contrasts a 45-day extension pursuant to section 2963 with a
denial of good-time custody credits for misconduct pursuant to
section 2932 because the latter provides an opportunity for
administrative challenge. (§ 2932, subd. (a)(5).) We decline to
consider this argument because it is undeveloped, raised only in a
footnote, and not specified by a separate heading or subheading.
(Silverado Modjeska Recreation & Park Dist. v. County of Orange
(2011) 197 Cal.App.4th 282, 314, fn. 24; Bridgeman v. McPherson
(2006) 141 Cal.App.4th 277, 288.)


                                6
receipt of a prisoner fewer than 45 days before their scheduled
release date, which is what occurred with Parker.
              One function of the required 90 days of treatment is
to facilitate evaluation of whether the criteria for MDO treatment
have been met. In People v. Martin (2005) 127 Cal.App.4th 970,
974-975, we concluded that the required 90 days of treatment
included treatment in county jail before transportation to state
prison. 3 We reasoned, “The purpose of the MDO law is to protect
the public by identifying those prisoners who would pose a
danger to society upon release due to their mental disorder.
[Citation.] This purpose is advanced by allowing the 90-day
treatment requirement to be satisfied by inpatient treatment
within a county jail. . . . It is reasonable to count the treatment [a
prisoner] received in jail prior to [their] transportation to prison
so that MDO status may be determined based on [the] prisoner’s
dangerous propensities and mental condition, rather the fortuity
of [their] sentencing date.” (Ibid.) The same purpose is served by
considering treatment during a 45-day extension period.
Otherwise, the fortuity of a sentencing date could leave
insufficient time for evaluation of the MDO criteria.
              An additional function of the 90-day treatment
criterion is that it “encourages [CDCR] to identify mentally ill
prisoners and commence treatment sooner rather than later,
[which] benefits a prisoner by ensuring that an effort will be
made to ameliorate [their] condition before that condition is used
as a ground to deny release on parole.” (People v. Martin, supra,
127 Cal.App.4th at p. 975.) Continued treatment during a 45-day

      3 InPeople v. Achrem, supra, 213 Cal.App.4th at page 157,
we disapproved Martin to the extent it allowed inclusion of
preconviction treatment in county jail.


                                  7
extension serves the same function, giving the prisoner an
additional opportunity to ameliorate their mental health
condition so that MDO commitment may become unnecessary.
                           Legislative history
             Though the plain meanings of sections 2962 and 2963
are clear, we note that legislative history supports our conclusion.
The requirement of 90 days’ treatment within a year of parole or
release was first added to the MDO Act in 1985. (Stats. 1985, ch.
1419, § 1 (Sen. Bill No. 1296), amending a former version of
section 2960.) The requirement that the chief psychiatrist’s
evaluation include certification “that the prisoner has been in
treatment for the severe mental disorder for 90 days or more
within the year prior to [their] parole release day” was added to
section 2962, subdivision (d), in 1987. (Stats. 1987, ch. 687, § 7
(Sen. Bill No. 425).) In interpreting the meaning of the 1987
legislation, we take judicial notice of legislative history materials.
(Evid. Code, §§ 452, subd. (c), 459, subd. (a); Elsner v. Uveges
(2004) 34 Cal.4th 915, 934, fn. 19 [departmental enrolled bill
reports]; Maryland Casualty Co. v. Andreini & Co. (2000) 81
Cal.App.4th 1413, 1420-1424 & fn. 10 [legislative committee
reports].) These documents demonstrate that the purpose of the
1987 amendment was technical in nature, did not intend to make
substantive changes, and was designed to make the chief
psychiatrist’s certification conform to the criteria used at the
certification hearing. (Sen. Com. on Judiciary, com. on Sen. Bill
No. 425 (1987-1988 Reg. Sess.) as amended May 4, 1987, pp. 2-3;
Assem. Com. on Public Safety, com. on Sen. Bill No. 425 (1987-
1988 Reg. Sess.) as amended May 4, 1987, p. 2; Board of Prison
Terms, Analysis of Sen. Bill No. 425 (1987-1988 Reg. Sess.) June
10, 1987, pp. 2-3.)




                                  8
             The 1987 legislation made two other changes that
reinforce our conclusion. First, it enacted section 2981 to permit
the admission of certified records “[f]or the purpose of proving the
fact that a prisoner has received 90 days or more of treatment
within the year prior to [their] parole or release.” (Stats. 1987,
ch. 687, § 11.) Second, it provided for trial court hearings to
determine whether the MDO treatment criteria were met “as of
the date of [the Board] hearing.” (§ 2966, as amended by Stats.
1987, ch. 687, § 8, italics added.) These simultaneous changes
demonstrate that the Legislature intended to retain rather than
change the requirement that a prisoner’s treatment be within a
year of parole or release.
             We conclude that the criteria for MDO commitment
were satisfied here because Parker completed at least 90 days of
treatment for his severe mental disorder before he was paroled or
released. The treatment that occurred during the lawful
extension of his release date counts toward the 90-day
requirement. The Board’s order should have been upheld.
                            DISPOSITION
             The trial court’s order vacating the Board’s MDO
determination is reversed.
             CERTIFIED FOR PUBLICATION.


                                     TANGEMAN, J.
We concur:


             GILBERT, P. J.


             YEGAN, J.



                                 9
                   Jesse John Marino, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Zee Rodriguez, Susan Sullivan
Pithey and Amanda V. Lopez, Deputy Attorneys General, for
Plaintiff and Appellant.

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