On petition of the Director of Corrections to the court in which the person was originally sentenced to imprisonment the court may extend his sentence to the terms prescribed by §§ 80.32 and 80.36 if it finds that such extension is necessary for protection of the public. In the case of a person originally sentenced to imprisonment for a petty misdemeanor, the court may extend his sentence to a term not to exceed two (2) years. Such a finding, which must be incorporated in the record, shall be based on the grounds that: (a) the person’s record, both within and without the correctional system, reveals a clear pattern of assaultive or sexually aggressive behavior; and (b) there is a substantial risk that he will at some time in the future inflict death or serious bodily injury upon another. In making such a finding, the court shall proceed upon the same basis as in an original sentencing hearing and the person shall have the same rights as any person being sentenced. SOURCE: *Cal. § 208 (T.D.2 1968); Cal. § 355 (1971). COMMENT: This is a new, and radically different Section. Note that petty misdemeanors are included within this Section, while being excluded from § 80.40. This is of doubtful constitutional validity in that most defendants accused of petty misdemeanors will have not had a jury trial. If this Section is used in such cases, the result would be a person imprisoned for up to two (2) years without having had a right to a jury trial. It may be that the court, because of this Section will ignore § 680.1(b) of the Code of Civil Procedure and grant petty misdemeanor a right to a jury trial since they would be subject to possible imprisonment for more than sixty (60) days. This was not the intent of the Commission, but may be mandated by the Constitution. If this result comes about, it would appear to this Compiler
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that § 680.1(b) of the Code of Civil Procedure should take precedence in the interest of expeditious handling of petty misdemeanors, and this Section be ignored.