Opinion
This is аn. appeal from an order for recommitment of a mentally disordered offender pursuant to Penal Code sections 2970 and 2972.
Appellant further asserts the petition was defective on its face, and the evidence was insufficient to support the jury’s verdict on the petition. In the unpublished portion of this opinion, we reject these contentions.
Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Upon his release from prisоn in 2008, appellant was committed, as a condition of parole, as a mentally disordered offender (MDO). (See § 2962.) He was placed at Atascadero State Hospital. In February 2010, a forensic psychologist evaluated him. As a result of that evaluation, the medical director of Atascadero State Hospital submitted his “written evaluation on
Pursuant to section 2970, the district attorney filed a petition for continued involuntary treatment for one year. The petition specified that appellant had a severe mental disorder, that the severe mental disorder was controlled by medication and/or psychosocial support, but that it could not be kept in remission without treatment. The petition acknowledged that the hospital staff statеd appellant was not a danger to others as a result of his severe mental disorder, but alleged; “The District Attorney, by the undersigned deputy, states that the statement, ‘the patient cannot be kept in remission without treatment’ contradicts the statement ‘the patient does not represent a substantial danger of harm to others.’ Therefore the District Attorney states that Daniel Hernandez does represent a risk of substantial harm to others.” Appellant contested the petition and, after various continuances, jury trial began on September 3, 2010.
At the trial, the district attorney presented оne witness, Dr. Joe DeBruin, the forensic psychologist who had conducted the recommitment evaluation of appellant. DeBruin testified that he had evaluated appellant on three occasions. The first was upon his initial commitment, the second was for an annual review, and the third was regarding recommitment. At the time of the annual review, appellant was still suffering symptoms from his mental disorder. Several months later, at the time of the recommitment evaluation, appellant was, as testified to by DeBruin, “very different than I had seen him in the past.” He “was groomed appropriately. Hе was not delusional. He had normal thinking. He wasn’t paranoid. He was not showing a lot of impaired thinking. His mood was maybe a little bit sullen, a little bit. His affect or his facial appearance was what we called a little flat, just kind of didn’t have a lot of emotion to it. That is common, you know, as an ongoing symрtom, so to speak, of people who have this kind of disorder. He was not reporting any symptoms. He was not reporting that he [was] hearing voices. When people are hearing voices, they are often mumbling and talking to themselves, kind of talking to their voices. He wasn’t doing that. I did not see any evidence dining my interview that this [was] a gentleman that [was] still having symptoms.”
DeBruin also testified that appellant was “a little ambivalent” about continuing his medication after his release from the hospital. “But he also was open to continue talking with staff. Sometimes patients go, I’m not going to take meds, I don’t need meds, when I get out of here, I’m never taking meds. But this was a patient who was, again, a little ambivalent, a little bit mixed, but he was open. He was stating he was open. I asked him and he stated he was open to continue the conversation with staff on that, concerning that issue.”
Appellant did not testify or present other evidence.
The jury found the petition true. The court recommitted appellant to the state hospital for a period of one year. Appellant appealed.
DISCUSSION
Section 2970 provides, in relevant part: “Nоt later than 180 days prior to the termination of parole, ... if the prisoner’s severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee, . . . shall submit to the district attorney ... his or her written evaluation on remission. . . . [f] The district attorney may then file a petition with the superior court for
Appellant argues that since the state hospital did not find appellant to be dangerous and did not recommend recommitment, the district attorney did not have statutory authority to file the petition. He cites to three cases as authority for his position: People v. Garcia (2005)
A. Recommendation of Recommitment.
First, the express language of section 2970 makes it clear that continued involuntary treatment is not initiated by a recommendation for recommitment. It is initiated by the medical director determining the “prisoner’s severe mental disorder is not in remission or cannot be kept in remission without treatment” and then submitting to the district attorney a “written evaluation on remission.” (§ 2970.)
Second, not one of the cases cited by appellant stands for his assertion that the medical direсtor must recommend that a petition be filed before the district attorney has the statutory authority to file one. Instead, Garcia, Marchman, and Cuccia state that the district attorney has no authority to file a petition under section 2970 unless the medical director determines that the severe mental disorder is not in remission or cаnnot be kept in remission without treatment. (See Garcia, supra, 127 Cal.App,4th at p. 562; Marchman, supra,
In Garcia, the medical director determined that the defendant’s “severe mental disorder was in remission and could be kept in remission without treatment with the result that defendant did not pose a substantial danger of physical harm to others.” (Garcia, supra, 127 Cal.App.4th at pp. 562-563.) The court concluded that the statutory scheme entrusted the remission determination to the medical director of the state hospital. When the defendant’s mental disorder is in remission and can be kept in remission, the medical director must notify the Board of Parole Hearings, and the State Departmеnt of Mental Health must discontinue treating him. (§ 2968; see Gov. Code, § 12838.4 [changing name of Board of Prison Terms to Board of Parole Hearings].) The Garcia court concluded: “Simply put, under the plain
In Marchman, the medical director “determined that defendant’s mental disorder was in remission and could be kept in remission without treatment.” (Marchman, supra,
In Cuccia, the medical director wrote that the patient’s severe mental disorder was in remission, the patient did not represent a substantial danger of physical harm to others by reason of his mental illness, and the patient could be safely and effectively treated on an outpatient bаsis. (Cuccia, supra,
In this case, unlike the situations in Garcia, Marchman, and Cuccia, the evaluation submitted by the medical director stated appellant could not be kept in remission without treatment. Additionally, the evaluation listed incidents in which appellant had engaged in physical violence within the prior five months. (See People v. Burroughs, supra,
A recommendation for recommitment is not a prerequisite to the district attorney’s authority to file a petition under section 2970.
B. Dangerousness.
None of the three cited cases stand for appellant’s assertion that a finding by the medical director of dangerousness is required before a section 2970 petition may be filed. Nor does section 2970 require the medical director to address the issue of dangerousness in his or her “written evaluation on remission.” It only requires that the district attorney allege dangerousness in the recommitment petition. Appellant seems to suggest, however, that
It is true that upon the initial evaluation of a prisоner for a possible MDO commitment upon release on parole, section 2962, subdivision (d)(1), requires two mental health professionals to certify that, “by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others.” (Ibid., italics added.) That stаtute also requires them to certify: “that the prisoner has a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner’s criminal behavior, [and] 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.” (Ibid.) Even in this initial evaluation, however, the dangerousness requirement is accorded different treatment from the other commitment factors. If the twо initial evaluators “do not concur that (A) the prisoner has a severe mental disorder, (B) that the disorder is not in remission or cannot be kept in remission without treatment, or (C) that the severe mental disorder was a cause of, or aggravated, the prisoner’s criminal behavior,” there must be further evaluation. (Id., subd. (d)(2).) Noticeably absent from this list is the issue of dangerousness. Thus, despite the fact that section 2962 requires an evaluation of dangerousness prior to the initial commencement of MDO proceedings, there is no statutory requirement that the professional evaluators agree that the prisoner is dangerous because of his or her mental disorder.
Nor is there support for appellant’s position in section 2968. That section requires the medical director to discontinue treatment of a parolee if the director determines that the disorder is “in remission” and “can be keрt in remission.” (Ibid.) It does not empower the director to similarly terminate treatment upon a finding by the director that the patient is not dangerous.
Accordingly, we conclude that the statutory scheme does not commit to the professional expertise of the medical director the question of whether a prisoner, by reason of severe mental disorder, represents a substantial danger of physical harm to others; thus, the director’s failure to find dangerousness does not have the same preclusive effect on the decision of the district attorney to file a recommitment pеtition as does the “remission” determination considered in Garcia, Marchman, and Cuccia.
We conclude the district attorney did have statutory authority to file the petition.
DISPOSITION
The September 24, 2010, order for continued treatment is affirmed.
Kane, Acting P. J., and Poochigian, J., concurred.
A petition for a rehearing was denied December 22, 2011, and appellant’s petition for review by the Supreme Court was denied February 29, 2012, S199177.
Notes
All further statutory references are to the Penal Code.
Less than five months earlier, appellant had been involved in three incidents of mutual combat. Three months earlier, appellant had been involved in an incident during which he “lunged at a peer” and “later swung at” a staff member. As a result of that last incident, aрpellant had been placed in full-bed restraints.
More than a year has passed since the recommitment order. We have been apprised by the parties that appellant subsequently stipulated to a further one-year recommitment Because such stipulation by appellant may have been predicated on the pendency of this appeal, the appeal is not moot, even though the initial recommitment order has expired.
As stated in People v. Burroughs (2005)
See footnote, ante, page 483.