People v. Del Valle

James Del Valle appeals from the order of the trial court committing him to the State Department of Mental Health (DMH) as a mentally disordered offender (MDO). (Pen. Code, §§ 2962, 2966.) He argues that he did not receive 90 days of treatment within the year prior to his parole release date. Accordingly, he does not qualify as an MDO. We agree and reverse.

Facts

In 1999, appellant was convicted of assault with a deadly weapon and granted probation. (§ 245, subd. (a)(1).) Approximately one year later his probation was revoked and he was sentenced to state prison for a term of two years. In 2001, the Board of Prison Terms (BPT) certified him as an MDO and he was admitted to the DMH facility at Atascadero State Hospital (ASH). Appellant filed a section 2966, subdivision (b) petition challenging his certification. The trial court confirmed his status as an MDO.

Discussion

Section 2962 enumerates the criteria that must be met to qualify a prisoner as an MDO. Among other factors, the statute requires a showing “that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day.” (Id., subd.…