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California Court of Appeal Invalidates Untimely MDO Certification

By Mike Brodheim

The California Court of Appeal has invalidated the determination of the Board of Parole Hearings ("Board") that Felicia Blakely is a mentally disordered offender ("MDO"), finding that her MDO evaluations and certification occurred after her parole release date, in contravention of the mandatory deadline established by statute.

After having her probation revoked, Blakely was incarcerated in state prison on September 3, 2008. The next day, corrections officials calculated that, taking various custody credits into account, Blakely should have been released on parole the same day that she was incarcerated. She was not released, however. Instead, while still in custody, Blakely was evaluated by prison psychologists on September 8 and 9, 2008. And on September 10, 2008, a prison psychiatrist certified to the Board that Blakely met the criteria for MDO commitment. (Penal Code § 2962, subd. (d)(1).) That same day, the Board released Blakely on parole, provided that she receive MDO treatment. On September 11, 2008, Blakely was transported to Patton State Hospital. One month later, the Board determined that Blakely in fact met MDO criteria.

In January 2009, Blakely filed a trial court petition challenging the Board's MDO determination. Relying on statutory language providing that an MDO certification must be made "[p]rior to release on parole" (Penal Code § 2962, subd. (d)(1)), Blakely asserted that she could not be certified as an MDO after her parole date. The trial court denied the petition, excusing the Board's untimely acts as "good faith" errors.

On petition for writ of mandate, the Court of Appeal held that the phrase "Prior to release on parole" sets a mandatory deadline for the MDO evaluation and certification process. It rejected the suggestion that a violation of the preparole deadline was subject to a good cause (or good faith) exception, or that it could be reviewed for prejudice.

The Court concluded that the Board's MDO certification must be reversed, but that Blakely was nonetheless still subject to custodial treatment, if she remained in need of mental health treatment, under the terms of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.).

In a footnote, the Court noted that the Board had recently found that Blakely no longer met the criteria for commitment as an MDO. Finding that the case "poses an issue of broad public interest that is likely to recur," however, it declined to dismiss the appeal as moot. See: Blakely v. Superior Court of San Bernardino County (People), 182 Cal.App.4th 1445 (2010).

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Related legal case

Blakely v. Superior Court of San Bernardino County (People)