*986 Opinion
The instant proceeding presents yet another variant of the difficulties being experienced as our prosecutorial teams and state hospital administrations strive, first to define the requirements of, and then to develop procedures to comply with, the 90-day/30-day time limitations prescribed by Penal Code section 1026.5 for petitions seeking to extend the commitments of those found not guilty of criminal offenses by reason of their insanity. 1
In Johns
v.
Superior Court
(1981)
In
People
v.
Pacini
(1981)
In
People
v.
Hill
(1982)
In the proceeding now tendered for our review, the hospital authorities clearly knew from their own computations that respondent Ruben Hawkins’ original commitment would expire July 11,1982. Further, they had determined in early February of that year that an extension should be sought. Nevertheless, for unknown reasons no request therefor was made to the office of the district at *987 tomey until late May. As a consequence, the petition seeking such extension was not filed until May 27, 1982, 45 days beyond the statutorily established cutoff date. In addition, respondent was not brought before the court and a counsel appointed on his behalf until June 9,1982, only two days before any required trial should have begun.
After considering these circumstances, and entertaining argument on the issue, the court ordered the petition dismissed. The present appeal by the People followed.
Before turning to the merits of the challenged order, we shall briefly address appellant’s contention that “no filing deadline can be determined in advance due to the impossibility of calculating a date for expiration of the commitment where the possibility of future exempted outpatient time remains.” We impliedly rejected this assertion in
People
v.
Saville
(1982)
It is true, of course, that even after a committee’s initial maximum period of confinement has been established (Pen. Code § 1026.5, subds. (a)(1) and (a)(2)), its exact expiration date cannot be known in advance since the time, if any, he may spend in a noncustodial outpatient status cannot be predetermined. Nonetheless, the exact day this expiration will occur can ordinarily be determined well in advance, as it was here, by anyone with the ability to count and the willingness to do so. As a consequence, to the extent appellant’s contention is based on such a claim it necessarily fails.
While the confused fashion in which the parties argued this matter below gives us pause, we nonetheless conclude that the trial court’s ultimate decision must be sustained. Unfortunately, much time was expended discussing a committee’s right to a “speedy trial” (sic) as if the 30 day pre-discharge trial date prescribed by Penal Code section 1026.5 was comparable to the post-information trial dates specified in Penal Code section 1382. In truth, of course, these two time periods pose exactly converse problems. In an instance of the present type, the patient is being asked to undergo too speedy a trial at the expense of the statutory periods allotted him for preparation and completion of any necessary hearing. 2
In addition, certain remarks by the trial court could suggest that it felt the 30-day limit was “jurisdictional” in the classic sense, i.e., a belief that if the respondent would not willingly “waive” this right, it would be necessary to *988 dismiss the petition without regard to the possible existence of good cause for the delay or whether sufficient time actually remained to permit counsel to prepare for, and to complete, a full and fair trial, if one were needed, prior to the scheduled discharge date. However, when considered in light of the specific factual picture before it, we believe the trial court’s ultimate conclusion was, as indeed it declared, based upon concepts of “due process” rather than “so-called jurisdiction. ” 3
We are particularly moved to this determination here, since (1) the People have yet to suggest any cause, good or ill, for the tardiness of the confining authorities, (2) dilatory actions of this apparently inadvertent variety should not recur in the future if the responsible personnel take reasonable preventive steps,
4
and (3) to reinstitute these proceedings now after respondent Hawkins has been at liberty for nearly a full year would simply be unjust. (See
People
v.
Tanner
(1979)
The judgment dismissing the petition for extended commitment is affirmed.
Roth, P. J., and Beach, J., concurred.
Notes
“Such petition shall be filed no later than 90 days before the expiration of the original commitment.” (Pen. Code. § 1026.5, subd. (b)(2); italics added.) “The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless such time is waived by the person. ” (Id., subd. (b)(4); italics added.)
It was a similar confusion that led the trial court in
People
v.
Hill, supra,
to require Hill to “proclaim aloud his ‘waiver’ of his ‘right’ [sic] to be . . . forced to trial before he was ready.”
(People
v.
Hill, supra,
When repeatedly pressed to indicate if it was “ruling that the language in the statute, ‘the time limits of this section are not jurisdictional, ’ is meaningless?,” the court replied, “I will say this much: Due process is meaningful. If it means that there is a conflict between so-called jurisdiction and due process in this court, this court is now of a mind to find that due process in this court’s opinion is an overriding consideration. ...”
As we pointed out in
People
v.
Hill, supra,