Dougherty

Jack L. Dougherty appeals from the order extending his commitment to state hospital under Penal Code section 1026.5. 1 He contends that his motions to dismiss the extended commitment proceedings for untimely filing should have been granted.

In 1977 appellant was committed to Atascadero State Hospital for treatment pursuant to section 1026 after he had been found not guilty by reason of insanity of assault with a deadly weapon (§ 245, subd. (a)). His maximum commitment date was November 8, 1981. The petition to extend his commitment was filed on October 14, 1981. On October 20, appellant filed an opposition to the petition. The opposition was overruled on October 27 and the cause set for trial on November 2. On that date appellant moved the trial court for dismissal. The *247 motion was denied. His renewed motion for dismissal during trial was similarly denied.

Section 1026.5 provides that a petition for extended commitment “shall be filed no later than 90 days before the expiration of the original commitment. The trial shall commence no later than 30 calendar days prior [thereto].” (§ 1026.5, subds. (b)(2), (b)(4).) In the instant case the petition was filed 25 days…

I concur.

If the question of the effect of failure to petition for extension within the time specified in Penal Code section 1026.5 were open to fresh consideration, a strong argument could be made for a result contrary to that reached by the court here. The time limits specified in the statute are mandatory; that is, hospital authorities, the prosecutor and the court are under mandatory duties to proceed expeditiously. It would not seem to follow, when the statute states that its time *250 limits are not jurisdictional (see In re Johns (1981) 119 Cal.App.3d 577 [ 175 Cal.Rptr. 443 ]), that a necessary remedy for delay is to summarily release an inmate who may be dangerous to public safety.

Although due process values are of course implicated here, the situation where counsel for the inmate has not had adequate time to prepare is not the same as one where evidence potentially valuable in the defense of a criminal case has been irretrievably lost. So far as the present record shows if defense counsel needed more than 20 days to prepare for the hearing more time could have been obtained on request, wholly dissolving the prejudice referred to in this court’s opinion. Another form…