Blakely

Petitioner Felicia Blakely challenges the determination of the Board of Parole Hearings (Board) that she is a mentally disordered offender (MDO). (See Pen. Code, § 2960 et seq.; MDO Act.) She contends California’s Department of Corrections and Rehabilitation (CDCR) violated the mandatory deadline for MDO evaluations and certification: i.e., “[p]rior to release on parole . . . .” (§ 2962, subd. (d)(1).)

We agree. Parallel language in the MDO Act—“ ‘Prior to the termination of a commitment’ ”—sets a mandatory deadline for filing recommitment petitions. (People v. Allen (2007) 42 Cal.4th 91, 102 [ 64 Cal.Rptr.3d 124 , 164 P.3d 557 ] (Allen).) The phrase “Prior to release on parole” should be read similarly. (§ 2962, subd. (d)(1).) Petitioner’s MDO evaluations and certification occurred while she was still in custody, but after her parole release date. The Board’s MDO determination was based on these untimely acts and thus must be “ ‘invalidated].’ ” (Allen, at p. 102.) We note, however, mentally disordered persons may receive custodial treatment pursuant to other statutes.

FACTS

Petitioner was granted probation in January 2008 after pleading guilty to resisting a police…