Mentally Disordered Offender
Category > Mentally Disordered Offender
Updated 3/4/2024The trial court erred in failing to obtain defendant’s knowing and intelligent waiver of his right to a jury trial at the mentally disordered offender proceeding.Defendant challenged his recommitment as a violent offender with a mental health disorder under Penal Code section 2960. The appeal was moot where the order he was appealing had expired and the prosecution had filed a new recommitment petition. However, the court ruled on the issue because of its continuing public importance. The record showed defendant failed to make a knowing and intelligent waiver of his right to a jury trial on the issue. Unspecified statements by counsel outside of the courtroom did not establish a valid waiver.id: 28177
Updated 2/26/2024An MDO recommitment order must be based on the same mental disorder that was the basis for the original commitment.A mentally disordered offender cannot be recommended for treatment of a different mental disorder than the one that formed the basis of the original commitment.id: 26371
Updated 2/3/2024Evidence did not support defendant’s extended commitment as an MDO given the lack of a showing of dangerousness despite occasional delusions. The evidence was insufficient to support the trial court’s order extending defendant’s commitment as a mentally disordered offender under Penal Code section 2960. The sole evidence the court relied on to support a finding of dangerousness was the defendant’s violence from decades earlier, with only friendly and nonconfrontational behavior ever since. While the doctor testified that defendant became delusional without his medication for a long period of time, that problem never led to violence or dangerous results. id: 27032
Updated 2/1/2024One-year MDO commitment period begins to run on the expiration date of the previous period.Penal Code section 2972(c) provides that a one-year Mentally Disordered Offender commitment period begins to run from the ending date of the previous commitment period. The recommitment term here began on October 1, 2020, even though the superior court order to that effect was not issued until August 31, 2021. Defendant could be discharged from constraint under the MDO act because of the timing of the filing of the extension petition and the timing of the trial on that petition.id: 28001
Updated 1/31/2024Absent evidence of future dangerousness the court erred in recommitting defendant as a mentally disordered offender.The trial court erred (following a court trial), in recommitting defendant as a mentally disordered offender under Penal Code sections 2970 and 2972 as there was insufficient evidence to show she currently represented a substantial danger of physical harm to others. While she was still struggling in the hospital, there was no evidence other than the facts of her commitment offense to show dangerousness going forward.id: 28069
MDO commitment was reversed where there was no evidence that the commitment offense of indecent exposure involved a threat of force or violence.The evidence was insufficient to show that defendant’s commitment offense of felony indecent exposure (Penal Code section 314) involved an express or implied threat to use force or violence where he walked out of his cell and masturbated as he saw a female corrections officer in the distance. His commitment as a mentally disordered offender under Penal Code section 2962 was reversed.id: 26127
The prosecutor committed Sanchez error in proving that defendant was an MDO. People v. Sanchez (2016) 63 Cal.4th 665 holds that an expert’s hearsay statements to prove a defendant’s gang membership are inadmissible hearsay. Sanchez applies to cases involving mentally disordered offender commitments. The prosecution’s expert relied on multiple hearsay statements in concluding defendant met the MDO criteria. The order finding that he was an MDO was reversed.id: 25369
The trial court at the MDO commitment extension hearing erred by instructing the jurors to consider the consequences of the verdict.Following a trial, the court extended defendant’s commitment as a mentally disordered offender. However, the trial court erred by modifying CALCRIM 3457 to suggest that because of his mental disorder, defendant would represent a substantial danger if released into the community unsupervised. The modification impermissibly directed the jury to consider the consequences of the verdict.id: 25566
The trial court prejudicially erred by failing to obtain a voluntary and intelligent waiver of the right to a jury trial from an MDO defendant.Before conducting a bench trial in a mentally disordered offender proceeding, the trial court must obtain personally from the defendant a knowing, intelligent and voluntary waiver of the right to a jury trial unless the court finds the defendant lacks the capacity to make such a waiver. The trial court failed to obtain such a waiver, and the order determining the defendant was an MDO was reversed.id: 25374
MDOs, like SVPs and NGI defendants have a statutory right not be compelled to testify in proceedings to extend their commitments.Mentally disordered offenders are similarly situated with not guilty by reason of insanity defendants and sexually violent predators for purposes of the testimonial privilege provided in Penal Code section 1026.5. However, defendant’s appeal was moot because a subsequent petition for recommitment was denied based on the court’s finding that he no longer met the criteria for commitment as an MDO.id: 24659
The trial court must advise an MDO of his or her right to a jury trial and obtain a personal waiver from the defendant unless the court finds the defendant is incompetent.A trial court in mentally disordered offender proceedings under Penal Code section 2972, subd.(a), must advise the defendant personally of his or her right to a jury trial, and before holding a bench trial, must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision.id: 24234
MDO defendant decides whether to waive a jury unless mental capacity is an doubt in which case counsel makes the decision.Under the Mentally Disordered Offender Act (Penal Code section 2960 et seq.) the defendant has the right to a jury trial, but the right can be waived. The waiver provision does not require a personal waiver or give the attorney complete control. Rather counsel may waive a jury at the defendant's direction, and where there is a doubt that the defendant has the capacity to make the decision then counsel can decide, even over defendant's objection. When the court conducts a bench trial, the record must contain an express waiver and affirmatively establish the validity of that waiver. id: 23162
A parole outpatient clinic as “specified” by the Department of Mental Health satisfies the 90-day treatment criterion for an MDO committment.Penal Code sections 2962 and 2964, when read together, provide that the 90-day treatment requirement can be satisfied by inpatient treatment (treatment in a prison or custodial setting) or by treatment at the parole outpatient clinic provided the DMH screened the prisoner and certified that the prisoner could be safely and effectively treated at the outpatient clinic.id: 23051
The prosecution at the MDO hearing failed to prove that defendant had been evaluated by two qualified evaluators as required.Defendant challenged the Board of Parole Hearings determination that he was a mentally disordered offender subject to treatment as a condition of parole. At the hearing there was insufficient evidence that defendant had been evaluated by two qualified evaluators as required by Penal Code section 2962, that the evaluators had made the necessary findings, and that the chief psychiatrist of the state Department of Mental Health had certified defendant as an MDO, as required.id: 22540
Defendant seeking outpatient treatment as an MDO has the burden of showing reasonable cause that the treatment is appropriate. Defendant was involuntarily committed as a mentally disordered offender and appealed from an order placing him in outpatient treatment pursuant to Penal Code section 2972, subd.(d). He argued the trial court wrongly placed the burden of proof on him and wrongly required that he show outpatient treatment would be appropriate by a preponderance of the evidence. The patient bears the burden but the standard of proof is reasonable cause, not preponderance of the evidence. The court shall order outpatient treatment if the patient raises a strong suspicion in a person of ordinary prudence that outpatient treatment would be safe and effective. The order is reviewed on appeal for substantial evidence.id: 22534
Defendant's MDO evaluations and certification which occurred while she was still in custody, but after her parole release date, were untimely.Defendant's MDO evaluations and certification occurred while she was still in custody, but after her parole release date. The determination violated the mandatory deadline for MDO evaluations and certification which must take place "prior to release on parole."id: 21479
The trial court erred in authorizing the state hospital to forcibly administer antipychotic drugs to an MDO without having the MDO present at the hearing. A mentally disordered offender’s right to refuse antipsychotic drugs is qualified and may be overcome in nonemergency situations by a judicial determination that he is dangerous. The trial court erred in conducting the hearing in defendant’s absence, although the error was harmless in light of the evidence that he was dangerous. Contrary to defendant’s claim, he did not have a right to a jury trial on the issue of the involuntary administration of the antispychotic medication.id: 20916
The trial court had the power to grant defendant's petition challenging his MDO classification pretrial where the prosecutor's offer of proof was insufficient to establish a prerequisite for continued treatment.The trial court granted defendant's petition challenging his classification as a mentally disordered offender. The prosecution argued the court lacked jurisdiction to grant the Penal Code section 2966, subd.(b) petition on the ground of insufficiency of evidence without conducting a jury trial. However, the prosecutor's offer of proof failed to establish a necessary factor - that the prisoner had been in treatment for a severe mental disorder for at least 90 days within a year prior to his release. That he was medicated for an unrelated depressive disorder did not suffice. The court had the power to grant the dispositive pretrial motion to prevent what would have been an unnecessary and futile trial. Moreover, any error in failing to hold a trial was harmless since the offer of proof was insufficient to establish one of the six prerequisites for continued treatment.id: 18140
Res judicata barred prosecutor from retrying defendant as an MDO based on the same qualifying offense.The trial court found defendant was not a mentally disordered offender (MDO) at the time he committed a criminal offense. The judgment states that he was not an MDO at the time of his prior hearing before the Board of Prison Terms. Res judicata barred the prosecution from retrying defendant as an MDO based on the same qualifying offense.id: 17558
The trial court erred in allowing the experts at the MDO proceedings to consider an incident presented through unreliable hearsay in determining that defendant was a pedophile.The evidence was insufficient to show defendant suffered from the severe mental disorder of pedophilia to support the Penal Code section 2960 mentally disordered offender finding. In reaching their respective conclusions, the appointed experts each relied on a 1998 parole report which referred to a molestation incident in 1998 that was never charged as a crime or a parole violation. The report did not identify the source of the information regarding the incident. Evidence of the incident was unreliable hearsay and the court erred in ruling the experts could rely on the incident in forming their opinions. Without consideration of that incident there was insufficient evidence that defendant suffered from pedophilia.id: 18821
Unexcused late filing to recommit petitioner as a mentally disordered offender terminated his MDO status.A mentally disordered offender can be recommitted under
the Mentally Disordered Prisoners Act (Penal Code section 2960, et. Seq.). In the present case, no petition for commitment was filed until 13 days after petitioner's previous term expired. The prosecution conceded there was no good cause to excuse the late filing. Under the circumstances, there was no valid authority to continue the petitioner's MDO status.id: 19040
Defendant had a statutory but not constitutional right to self-representation in an MDO proceeding.Defendant argued reversal of his mentally disordered offender finding under Penal Code sections 2970 and 2972 was necessary because the trial court denied his Faretta motion to represent himself at the trial on the MDO petition. However, because MDO proceedings are not punitive they are considered civil proceedings, and therefore there is no constitutional right of self-representation. Nevertheless, since the MDO statutes give defendants the right to appointed counsel, a defendant may refuse counsel and represent himself. The trial court did not abuse its discretion in denying defendant's request for self-representation because of the severity and complexity of the case as well as the equivocal nature of the request which was directed only toward certain evidence. Any error in denying the request was harmless since the evidence supporting continued commitment as an MDO was overwhelming.id: 17500
The trial court at the MDO proceeding abused its discretion in refusing to decide whether defendant should be released for outpatient treatment. Penal Code section 2972, subd.(d) authorizes the trial court to release a mentally disordered offender for outpatient treatment. The trial court abused its discretion in refusing to decide whether defendant should be released for outpatient treatment.id: 19862
Time limit to file an MDO petition is mandatory. The trial court lacks authority under the Mentally Disordered Offenders Act (Penal Code section 2960 et seq.) to extend an MDO's commitment if the petition is filed after the prior commitment has terminated. However, if the defendant still suffers from a mental disorder he might be subject to additional
custodial treatment under the Lanternman-Petris-Short Act - Welfare and Institutions Code section 5000 et seq.id: 19807
The district attorney does not have statutory authority to initiate commitment proceedings under the Mentally Disordered Offender Act. Under the MDO Act (Penal Code section 2960 et. seq.), the district attorney has no authority to file a recommitment petition unless the medical director of the treating state hospital determines that the severe mental disorder is not in remission or cannot be kept in remission without treatment.id: 19352
A crime involving the use of force against property does not qualify a defendant for treatment as an MDO.The trial court erred in ruling that defendant's commitment
offense of felony vandalism under Penal Code section 594, subd.(a) involved the use of force qualifying him for treatment as a mentally disordered offender under Penal Code section 2960.
The provision including crimes of force or violence (section 2962, subd.(e)(2)(P)) does not apply to the use of force against property.id: 19266
Court erred in instructing the jury on the consequences of a mentally disordered offender finding at the commitment proceeding.Appellant was involuntarily committed as a mentally disordered offender (MDO) after a finding that he met the criteria of Penal Code section 2962. The trial court erred in instructing the jury that it would determine whether appellant should be hospitalized or released on parole. To instruct on the consequences of such a verdict would encourage the jury to ignore the evidence and decide the case based on their fear.id: 13808
Court erred in giving CALJIC force or violence instructions at MDO trial.Appellant stood trial to determine whether he would be involuntarily committed to a state hospital as a mentally disordered offender (MDO) pursuant to Penal Code section 2962. That provision requires a determination that the crime for which he was sent to prison involved force, violence or serious bodily injury. The trial court erred in giving CALJIC 16.141 - the standard definition of force or violence for purposes of battery. The Legislature did not intend force and violence to be synonymous for MDO purposes.id: 13807
At the trial to certify defendant as a mentally disordered offender defendant had a constitutional right not to be called as a witness to testify concerning his use of force or violence.Defendant appealed the order certifying him as a mentally disordered offender pursuant to Penal Code section 2962 and continuing his involuntary confinement and treatment at a state mental hospital. He argued his constitutional right against self-incrimination was violated when the prosecutor called him to testify. Defendant did have a constitutional right not to be called as a witness to testify concerning force or violence used by him in committing his offense. However, the issue was waived when defense counsel did not object to the prosecutor calling defendant as a witness.id: 12736
At the MDO trial the prosecutor erred in calling appellant to the witness stand and asking questions going beyond his mental state.At appellant's trial to determine his mentally disordered offender status the prosecutor erred in calling appellant to the witness stand and asking questions going beyond his mental state. Such questioning violated appellant's privilege against self-incrimination under the state and federal constitutions.id: 12735
Court erred at MDO trial in permitting doctor to testify to conclusions formed by non-testifying experts and in admitting their reports and the probation report.At defendant's trial to review his certification as a mentally disordered offender (Penal Code section 2960, et. seq.) the trial court erred in allowing the sole expert witness to relate that non-testifying experts who evaluated defendant concurred in her opinion that defendant met the MDO criteria. The court further erred in admitting into evidence reports prepared by the non-testifying experts and the underlying probation report because the documents are hearsay and the business records and official records exceptions to the hearsay rule did not apply. However, the errors were not prejudicial as the improper references were brief and the remainder of the uncontradicted expert testimony easily supported the jury's determination that defendant met the MDO criteria.id: 11739
Second degree robbery without "force or violence" or injury did not qualify as an MDO offenseThe Mentally Disordered Offender Law under Penal Code section 2962 permits the continued confinement of prisoners whose severe but treatable mental disorder contributed to their commission of various specified crimes including any crime in which the prisoner used "force or violence" or caused serious bodily injury. Defendant's crime of unarmed second degree robbery, unaccompanied by any actual display of force or violence on his part, and resulting in no injury to anyone, did not constitute a crime of "force or violence" under this provision.id: 16218
Court erred in instructing the jury defendant had to prove that as a result of his medication he no longer met the criteria for extending his MDO commitment.At the trial to extend defendant's commitment as a mentally disordered offender under Penal Code sections 2970 and 2972, the court prejudicially erred by instructing the jurors that defendant had the burden to prove by a preponderance of the evidence that, as a result of his medication, his mental disorder was in remission and he was not dangerous to others. The "medication defense" amounts to a claim that defendant does not meet the criteria for extending his commitment because he is in remission and not dangerous. This is an issue upon which the prosecution bears the burden of proof.id: 16887
Defendant did not qualify as an MDO since he did not receive 90 days worth of treatment (supervised by the CDC) within the year prior to his parole release date.Defendant was committed as a mentally disordered offender under Penal Code section 2962. However, that provision requires a showing that the defendant was in treatment for a severe mental disorder for at least 90 days within the year prior to his parole release day. Defendant received 85 days of mental health treatment and the trial court concluded he had received an additional five days of outpatient treatment at a community clinic before his incarceration. However, the trial court's ruling was erroneous since, under section 2964, subd.(a), a prisoner's outpatient treatment must be supervised by the Department of Corrections and may not be provided by a private facility.id: 16882
At defendant's MDO trial, the court erred in granting the prosecutor's motion for a directed verdict.At defendant's mentally disordered offender trial under Penal Code section 2962, the trial court erred in granting the prosecutor's motion for a directed verdict, a procedure utilized in civil trials, because it removed the case from the jury. However, the error was harmless in light of the unrefuted testimony of the two experts.id: 16957
Res judicata barred the relitigation of defendant's mental state, which was the subject of a prior MDO proceeding.Where a trial court has found at a Penal Code section 2962 mentally disordered offender hearing, that a severe mental disorder was not an aggravating factor in the commission of the crime, the prosecution is precluded from seeking a second MDO determination based on the same underlying offense. To allow relitigation of the circumstances surrounding defendant's commitment offense would violate the principles of res judicata and collateral estoppel.id: 16808
Recklessly setting a fire is not a qualifying offense under the MDO law. The trial court erred by granting the petition for an extended commitment for defendant as a mentally disordered offender under Penal Code section 1962. Defendant's underlying crime of recklessly setting a fire under section 452, which does not require force, is not a qualifying offense under the MDO law. id: 17190
The statutory requirement that a petition be filed prior to the termination of an MDO commitment is mandatory, and a violation requires dismissal. The trial court lacked jurisdiction to issue the Penal Code section 2972 mentally disordered offender order because no petition was filed seeking an extension of his commitment prior to the termination of his prior commitment.id: 18918
Court erred in failing to instruct the jury it had to determine if defendant met the MDO criteria on the date of the most recent Board of Prison Terms hearing.The trial court ordered an extension of defendant's mentally disordered offender commitment (Penal Code section 2966) after a jury finding that he continued to represent a danger to others. The court erred in failing to instruct on the time parameter for proof of the MDO criteria. At both a hearing challenging the parolee's initial commitment and at an annual review hearing continuing that commitment, the trier of fact is required to determine that the parolee met the MDO criteria on the date of the most recent Board of Prison Terms hearing. However, the error was harmless given the substantial evidence that defendant met the MDO criteria just prior to the Board of Prison Term hearing.id: 11741
Updated 3/6/2024Under the MDO Act, defendant’s treatment for 90 days for schizoaffective disorder qualified as treatment for schizophrenia, the aggravating cause for the underlying offense.Defendant argued that he did not receive at least 90 days treatment for his mental disorder as required by the Mentally Disordered Offender’s Act (Penal Code section 2960). Contrary to defendant’s claim, schizoaffective disorder is sufficiently similar to schizophrenia that treatment for one qualified under the Act.id: 26512
Updated 3/6/2024Admission of the police report during MDO proceedings to show the commitment offense involved force or violence did not violate due process.Defendant, in mentally disordered offender proceedings, argued that the police report from the commitment offense was inadmissible and violated his due process rights by establishing that the commitment offense involved force or violence. However, the police report has all the indicia of reliability to satisfy due process and was expressly referenced in the probation report. Admission of the police report was proper.id: 26513
Updated 2/26/2024The redesignation of defendant’s felony conviction to a misdemeanor under Prop 47 did not undermine the validity of his MDO commitment. Defendant had his felony grand theft conviction redesignated as a misdemeanor under Prop 47. He argued his commitment or recommitment as a mentally disordered offender had to be vacated because of the absence of a foundational felony. However, under the MDO statute, the redesignation of the felony to a misdemeanor did not undermine the validity of his initial civil commitment, which was legally sound at the time the determination was made. id: 26373
Updated 2/24/2024Treatment during an extension of the prisoner’s custodial time to complete a psychiatric evaluations count towards the 90 day treatment requirement for purposes of the MDO evaluation.To qualify as a mentally disordered offender under Penal Code section 2964, a prisoner must have been in treatment for the severe mental disorder for 90 days or more within the year before his or her parole or release. Treatment during an extension of the prisoner’s custodial time to complete a psychiatrist’s evaluation (section 1963) may be included in the required 90 days of treatment.id: 26614
MDO commitment was reversed where defendant did not receive 90 days of treatment for his disorder within the year before his parole or release. Defendant was committed as a mentally disordered offender under Penal Code section 2962. However, he did not meet the criteria for a mentally disordered offender commitment because he did not receive 90 days of treatment for his disorder within the year prior to his parole or release as required by the statute.id: 25992
Challenge to MDO recommitment following Prop 47 was moot where the commitment expired during the appeal, and the DA did not seek to extend it for an additional year. Defendant argued his challenged MDO recommitment (Penal Code section 2960) was fatally flawed because the underlying felony offense supporting the original commitment as a mentally disordered offender had been reduced to a misdemeanor under Prop 47. However, defendant’s MDO recommitment expired on October 13, 2016 - while the instant appeal was pending - and the DA declined to file a successive petition to extend it for an additional year. Because defendant was no longer subject to a commitment under the MDO Act, the matter was moot.id: 25885
The trial court did not err by continuing defendant’s MDO hearing one day beyond the 60-day period set forth in section 2966, subd. (b).Defendant argued the trial court erred by continuing the hearing to determine whether he was a mentally disordered offender beyond the 60-day period set forth in Penal Code section 2966, subd.(b). However, the 60-day timeline is directory rather than mandatory and defendant was not prejudiced by the continuance of his hearing a week beyond the timeline.id: 25358
Counsel’s failure to make Sanchez objection during MDO proceedings did not establish IAC where there was no showing that counsel lacked a legitimate tactical reason for not objecting.Defendant argued that his trial counsel rendered ineffective assistance of counsel by failing to raise a Sanchez objection (People v. Sanchez (2016) 63 Cal.4th 665) to case-specific hearsay expert testimony offered at his mentally disordered offender hearing. Although Sanchez applies in MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code, defendant failed to show that his attorney would have had no legitimate tactical reason for failing to make a Sanchez objection.id: 25359
MDO was entitled to a jury trial regarding his outpatient status but he forfeited the claim by absconding.Defendant was certified as a mentally disordered offender and placed into an outpatient conditional release program. He was entitled to a jury trial on the issue of his outpatient status and the court erred by not setting the matter for such a trial without first obtaining a written waiver. However, defendant forfeited his right to challenge the error by absconding from the outpatient treatment before the court ruled on his outpatient status. The court did not err by revoking defendant’s outpatient status in his absence.id: 25114
At the MDO defendant’s outpatient status trial, the court did not err by allowing a doctor to testify as to what defendant’s mother told him. At the trial to revoke defendant’s MDO outpatient status, the court allowed a doctor to testify as to certain statements made to him by defendant’s mother. Defendant’s due process rights were not violated by allowing the doctor to testify as to what defendant’s mother told him.id: 25115
Defendant could not apply Prop 47 retroactivity to invalidate an initial MDO commitment. Defendant argued that redesignation of his original offense as a misdemeanor under Prop 47 meant that he no longer met the criteria for an initial commitment as a mentally disordered offender (MDO), and therefore he was entitled to be released from his MDO commitment. However, the voters did not intend to apply Prop 47 retroactively for the collateral purposes of invalidating an initial MDO commitment. id: 25062
Defendant was properly declared an MDO following his resisting an officer conviction given his guilty plea to a complaint that alleged force and violence in committing the offense.Defendant was declared a mentally disordered offender (MDO) based on his conviction of resisting an officer under Penal Code section 69. The offense is not specifically enumerated in the MDO Act, but the qualifying nature of the offense was established by evidence that defendant pled guilty to a complaint expressly alleging that he used force and violence in committing the offense.id: 24903
MDO’s, like people facing involuntary civil commitments after a NGI finding, have a statutory right not to testify at commitment proceedings.Persons facing involuntary civil commitment as mentally disordered offenders are similarly situated with people subject to civil commitment after being found not guilty by reason of insanity. The latter group has a statutory right not to be compelled to testify at their commitment proceedings. Denying potential MDO’s the same right would violate equal protection. However, the issue was moot because the petition for recommitment was denied.id: 24751
A mental health expert’s testimony in support of a defendant’s MDO commitment may not be used to prove the defendant committed a qualifying offense.In a commitment hearing under the Mentally Disordered Offender Act (Penal Code section 2960), the prosecution may not prove the facts underlying the commitment offense (that are necessary to prove the qualifying offense) through a mental health expert’s opinion testimony. id: 24430
Defendant waived her right to a jury trial under section 6500 to determine whether she was mentally retarded and dangerous.Defendant was found to be mentally retarded and a danger to others under Welfare and Institutions Code section 6500 which required a one year commitment at a state hospital. The record did not show whether she was advised of her right to a jury trial. While there is a right to a jury trial under section 6500, the failure to advise a person of the right does not violate due process or equal protection principles. Moreover, the right is waived where, as here, there was no request on the record. Even if it was not waived the error here was harmless where the evidence in support of the determination was overwhelming.id: 21363
Defendant’s challenge to his original MDO certification at the recommitment stage was untimely. Defendant was found to be a mentally disordered offender. More than a year later, the prosecution sought to recommit him as an MDO with a petition under Penal Code section 2960. Defendant moved to dismiss the petition arguing that he was not an MDO because the original crime did not involve force or violence as required by section 2962. However, that challenge should have been made prior to the expiration of the original MDO certification. It was untimely at the recommitment stageid: 20915
Petition challenging the MDO commitment was not moot where it was filed during initial year of commitment.The Board of Parole hearings rejected defendant’s challenge to her classification as a mentally disordered offender and the initial one year commitment. The trial court granted the prosecutor’s motion to dismiss as moot since the petition was not heard in the first year. However, defendant is entitled to have the petition heard on the merits because it was filed during the initial year of commitment even thought the initial term had been completed. id: 23789
The disparate treatment of mentally retarded committees based on their first commitment did not violate equal protection. Defendant was determined to be mentally retarded person who was a danger to herself and others and committed in a locked facility for a year under Welfare and Institutions Code section 6500. Based on legislation passed in 2012, she couldn’t have been committed for more than six months if her first commitment hearing had been held on or after July 1, 2012. Contrary to defendant’s claim, the disparate treatment of mentally retarded committees based on their first commitment date did not violate equal protection principles as the Legislature had a rational basis for changing the law and the modification was reasonably related to that goal. id: 23501
A defendant whose stalking offense involved implied threats of violence qualified as a mentally disordered offender. A defendant whose stalking offense involved a pattern of conduct that impliedly threatened another with the use of force met the criteria for a mentally disordered offender within the meaning of Penal Code section 2962.id: 23635
MDO provision does not require that compliance with the evaluation and certification procedures be proved to the trier of fact.A prisoner may challenge a mentally disordered offender certification by requesting a hearing before the Board of Parole Hearings, and if unsuccessful, then in superior court to see if he “meets the criteria” in Penal Code section 2762. The “criteria” to be considered by the trier of fact in the superior court refers to the substantive criteria used by the mental health professionals to certify a prisoner as an MDO. The issue of compliance with these procedures is a question of law for the court.id: 23378
A qualified mental health expert may rely on hearsay in a probation report to render an opinion on whether defendant is a MDO and the underlying offense involved force or violence.A qualified mental health expert may rely on reliable hearsay in a probation report in rendering an opinion on whether a defendant is a mentally disordered offender and whether the underlying offense involved force or violence.id: 23088
While some of an MDO expert’s testimony referred to inadmissible hearsay that was beyond the scope of admissible expert opinion, facts taken from a probation report admitted without objection showed defendant met the criteria.Defendant argued there was insufficient evidence to support the trial court’s finding that he was a mentally disordered offender under Penal Code section 2962 because the prosecution relied on inadmissible hearsay under the guise of expert opinion testimony. However, absent an objection, the court could properly rely on the expert’s response that defendant had been convicted of an arson of an inhabited structure. The additional fact needed to satisfy section 2962, that the crime posed a serious risk of harm to others, was found in the probation report showing defendant’s brother suffered from smoke inhalation.id: 22667
While some of an MDO expert’s testimony referred to inadmissible hearsay that was beyond the scope of admissible expert opinion, facts taken from a probation report admitted without objection showed defendant met the criteria.Defendant argued there was insufficient evidence to support the trial court’s finding that he was a mentally disordered offender under Penal Code section 2962 because the prosecution relied on inadmissible hearsay under the guise of expert opinion testimony. However, absent an objection, the court could properly rely on the expert’s response that defendant had been convicted of an arson of an inhabited structure. The additional fact needed to satisfy section 2962, that the crime posed a serious risk of harm to others, was found in the probation report showing defendant’s brother suffered from smoke inhalation.id: 22666
The error in allowing defendant to represent himself at the MDO extension trial was harmless. Defendant argued the trial court erred by allowing him to represent himself at the proceeding to extend his commitment as a mentally disordered offender. However, his rights to counsel and self-representation at that trial are statutory, not constitutional and are reviewed for harmless error. No reasonable probability existed that defendant would have obtained a more favorable result if he had been represented by counsel at trial. id: 22238
The district attorney had the authority to file a petition for continued involuntary treatment under section 2970 even though the medical director did not recommend it.Defendant argued the district attorney did not have the statutory authority to file a petition for recommitment of a mentally disordered offender under Penal Code section 2970 because the medical director did not recommend recommitment and did not find him to be dangerous. However, the district attorney’s statutory authority to file a petition under section 2970 is not conditioned on a finding by the medical director that the prisoner is dangerous or on a recommendation by the medical director for recommitment.id: 22511
Defendant will not be recommitted as an MDO where the court had earlier determined he could not be committed as such. Because defendant was never civilly committed as a mentally disordered offender under Penal Code section 2962, he could not be recommitted as a mentally disordered offender under section 2970. The commitment order was reversed.id: 22468
The prosecution had the right to a jury trial to resolve conflicts between doctors regarding MDO evaluations. While in prison defendant was identified as a potentially mentally disordered offender and moved to a state hospital. The prosecution filed a petition for an involuntary commitment under Penal Code section 2970. The petition was dismissed after another doctor recommended against continued treatment. However, the court erred in dismissing the petition as the prosecution had the right to a jury trial to resolve the conflicts between the doctors.id: 22088
The appropriate procedure for challenging the administrative placement of an MDO is a writ of habeas corpus.The appropriate procedure for challenging the administrative placement of a mentally disordered offender who is recommitted to a facility under the jurisdiction of the CDCR rather than to Napa State Hospital is a writ of habeas corpus.id: 22562
An MDO must challenge the static criteria justifying commitment during the initial one-year period of that commitment. Defendant pled guilty to carrying a concealed dirk or dagger and was placed on parole with the condition that he receive inpatient mental health treatment as a mentally disordered offender under Penal Code section 2962. Before termination of his parole the prosecution filed a petition under section 2970 to extend defendant’s involuntary treatment. Defendant moved to dismiss that petition arguing that his conviction for carrying a concealed dirk or dagger was not one of the offenses enumerated in section 2962. However, defendant could not challenge whether he committed an enumerated offense justifying an MDO commitment after the first year of that commitment. id: 21832
Felony vandalism using force or violence while kicking in a police car window supported the MDO commitment. Defendant’s commitment offense of felony vandalism for kicking and breaking a police car window supported findings of force or violence and therefore qualified under the mentally disordered offender provision described in Penal Code section 2962.id: 21875
Defendant was not denied due process where he remained confined while his MDO extension trial was continued, without good cause, beyond his scheduled release date.Following defendant’s prison term he was committed to a state hospital as a mentally disordered offender under Penal Code section 2972. Defendant was not denied due process because he remained confined while his extension trial was continued, without good cause, beyond his scheduled release date. The statutory deadline was directory, not mandatory, and the fact that defendant was not released did not affect the validity of the eventual extension order.id: 21904
Defendant’s commitment offense of possession of a “Molotov cocktail” fell within the MDO Act.Possession of a “Molotov cocktail” is an offense involving an implied threat to use force or violence under the Mentally Disordered Offender Act. id: 21471
The trial court did not err by revoking the MDO’s outpatient status and by committing her as an inpatient.The trial court was not required to commit defendant as an outpatient because she was an outpatient when the mentally disordered offender commitment petition was filed. The trial court did not err in failing to proceed under Penal Code section 2972.1, which applies after the expiration of the parole period. Finally, the motion to revoke defendant’s outpatient status was not untimely where she repeatedly waived time and then absconded which provided good cause to delay the trial.id: 20576
Defendant forfeited the issue of suitability for outpatient treatment as an MDO by failing to raise the issue at the recommitment hearing. Defendant, who was determined to be a mentally disordered offender argued the trial court erred in failing to exercise its discretion to determine whether he could be safely and effectively treated on an outpatient basis under Penal Code section 2972, subd.(d). However, defendant forfeited the claim by failing to raise it at the recommitment hearing and the trial court had no sua sponte duty to make the determination. Assuming the court had such a duty, defendant did not present sufficient evidence to support a finding that he could be safely and effectively treated on an outpatient basis.id: 20386
The trial court did not err in dismissing an MDO commitment petition where six month delay in filing the petition was not supported by good cause. The trial court did not err in dismissing the petition to involuntarily commit defendant as a mentally disordered offender. An MDO trial must begin no later than 30 days before a person's release unless good cause supports a delay. Illness in the DA's office and mishandling of the file did not justify the six month delay in the present case. The petition was dismissed although other statutory avenues of involuntary commitment were available.id: 20237
The judicial review procedures adopted in Anders and Wende do not apply to MDOA proceedings.Appeals from civil commitments under the Mentally Disordered Offender Act are exempt from Anders/Wende review requirements.id: 20097
A plea bargain may not be conditioned on a judicial finding that the subject offense falls outside the MDO law.The provision in defendant's plea agreement that prevents use of his offense as the qualifying offense for commitment as an MDO is not a proper subject for a plea agreement and may not be enforced by specific performance.id: 18291
MDO instructions adequately conveyed the requirement that defendant had serious difficulty in controlling his violent criminal behavior.At defendant's MDO trial pursuant to Penal Code section 2970, the instructions were not constitutionally defective for failing to expressly require the jury to find that defendant had serious present difficulty controlling his behavior such that he presented a serious and well-founded risk of dangerous conduct. The instruction given tracked the language of the MDO statute, and necessarily encompassed a determination that defendant had serious difficulty in controlling his violent criminal behavior.id: 17734
The trial court did not err by failing to dismiss the untimely petition to extend defendant's commitment as an MDO where he was given sufficient time to prepare for the trial.Defendant's involuntary commitment to a state hospital was extended pursuant to Penal Code section 1026.5. He argued the court abused its discretion in failing to dismiss the petition where it was filed two weeks before his commitment expired, and the failure to comply within the statute's 90 day notice requirement was due to inexcusable negligence. However, defendant suffered no prejudice by the delay where he was afforded at least as long to prepare the case as would have been available if the petition had been filed on time.id: 18456
There is no due process right to have the trial on an MDO petition held before the defendant's release date.Defendant was committed to the state hospital as a mentally disordered offender. He argued his right to due process was violated because the trial on the commitment petition did not begin until after he was due to be released. However, there was no due process violation because defendant had notice and an opportunity to be heard when he was initially found to be an MDO and therefore also found to be subject to treatment as a condition of parole under Penal Code section 2961.id: 19976
Possession of flammable materials involves the implied threat of force or violence and constitutes a qualifying offense under the MDO law.Defendant argued he was not subject to treatment as a Mentally Disordered Offender because the crime for which he was sentenced to prison - possession of flammable or combustible materials - was not a qualifying crime of force or violence under Penal Code section 2962. However, the offense involved an implied threat of force or violence and therefore constituted a qualifying offense under section 2962, subd.(e)(2)(Q).id: 19928
Once the defendant's initial MDO commitment expired, he could not contest his mental state at the time of the underlying offense. An inmate whom the Board of Prison Terms determines to be a mentally disordered offender under Penal Code Section 2966 has a
right to a court hearing on the relevant six criteria only after the initial commitment determination. Once the time has past for that first determination and proceedings have been
instituted to extend the commitment the inmate may only challenge the determination of his current mental status.id: 19454
The court did not abuse its discretion in denying defendant's request for self-representation at his mentally disordered offender proceeding. A defendant does not have a constitutional right to represent himself at an MDO hearing pursuant to Penal Code section 2960. There was no abuse of discretion in denying the request which was not unequivocal where defendant did not fully understand the complexity of the legal issues.id: 19307
Res judicata and collateral estoppel did not bar relitigation of an MDO defendant's mental state at the time of his controlling offense.Defendant in an MDO proceeding argued that relitigation of his mental state at the time of his controlling offense, which was an issue in a prior MDO proceeding, was barred by collateral estoppel and res judicata. However, the finding that defendant did not suffer from a severe mental disorder at the time of the BPT hearing in the prior proceeding was irrelevant to the determination whether he suffered from a severe mental disorder when he committed the controlling offense.id: 19308
There is no equal protection violation in denying the privilege not to testify to potential MDO committees.A jury determined defendant to be a mentally disordered offender under Penal Code section 2970. He claimed an equal protection violation in that persons in MDO proceedings are not afforded the privilege not to testify, whereas the privilege is afforded potential civil committees in extended not guilty by reason of insanity proceedings (Penal Code section 1026.5) and extended youth authority commitments (Welfare and Institutions Code section 1800-1803). However, the Legislature, in enacting Penal Code section 1026.5(b)(7) and Welfare and Institutions Code section 1801.5 did not intend to require that persons subject to commitment under those provisions have the right not to testify. There is therefore no disparate treatment in not affording that right to MDO committees.id: 19016
There was no equal protection violation in finding the privilege against self-incrimination does not apply to MDO defendants since it does not apply to other civil committeesDefendant argued the right not to testify should be extended to
those facing a mentally disordered offender trial (Penal Code section 2970) based on the constitutional guarantee of equal protection. However, the Legislature in enacting section
1026.5(b)(7) and Welfare and Institutions Code section 1801.5 did not intend to require that persons subject to commitment under those provisions have the right not to testify. That being
the case, there is no disparate treatment in not affording that right to MDO committees, and there is not equal protection violation.id: 18970
Defendant was not denied the right to counsel and forced to represent himself at his MDO trial where the court refused to order his attorney to try the case before a jury.Counsel for defendant challenging a mentally disordered offender certification waived jury trial without defendant's consent. Defendant argued he was thereafter forced to waive counsel in order to assert his right to a jury trial. However, defendant was not forced to do anything. After allowing defendant to represent himself, the court assisted with cross-examination of the state's witnesses and the presentation of the defense case.id: 18902
Defendant received 90 days of treatment for MDO purposes where he was treated in the jail for several months before serving two months in prison.Defendant was convicted of evading police and sentenced to 16 months in prison. The prosecutor instituted mentally disordered offender proceedings within the meaning of Penal Code section 2962 prior to his release. However, defendant's prison term was only two months because of the pretrial credits he collected. He argued he did not qualify as an MDO because he did not receive at least 90 days of mental health treatment during the year preceding his parole release date as required in the statute. However, the 90-day criterion was satisfied where defendant was also treated for several months while in pretrial custody in the county jail.id: 18458
Mental health experts properly relied on the probation reports as the basis of their opinions that the evading officer offense involved force or violence for MDO purposes.Defendant argued he did not qualify as a mentally disordered offender because his underlying offense (evading an officer under Vehicle Code section 2800.2) was not a crime of force or violence. Contrary to defendant's claim, there was no error in allowing the mental health experts to describe the probation report in stating the basis for their opinions on the force or violence criterion.id: 18459
The prosecutor was not required to file a petition to continue defendant's treatment as an MDO where he spent his one year term in outpatient status.The trial court committed defendant as a mentally disordered offender for a one year term. He spent the entire year on outpatient status pursuant to Penal Code section 2972, subd.(d).The trial court erred in granting defendant's motion to dismiss the petition for recommitment on the ground that the prosecution failed to file the recommitment petition prior to the termination of the one year term. Since he received no outpatient treatment, the recommitment procedures of section 2972.1, rather than 2972 apply. The former does not require the prosecutor to file a petition for recommitment in order to continue defendant's MDO treatment.id: 18344
An MDO can be compelled to be treated with antipsychotic medication under certain nonemergency circumstances.A person committed as a mentally disordered offender under Penal Code section 2960 can be compelled to take antipsychotic medication in a nonemergency situation only if a court, at the time the MDO is committed or recommitted, or in a separate proceeding, makes one of two findings: 1) that the MDO is incompetent or incapable of making decisions about his medical treatment, or 2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300. Someone committed or recommitted as an MDO may not necessarily fit in either category. Such MDO's would have the right to refuse medication in nonemergency circumstances. The rights of MDO's to refuse medication can be further limited by state Department of Mental Health regulations necessary to provide security for inpatient facilities.
id: 17688
Pedophilia is a severe mental disorder for purposes of the mentally disordered offender commitment scheme.Under Penal Code section 2962, subd.(a), a prisoner must have a "severe mental disorder" to meet the criteria of an MDO commitment. Defendant argued pedophilia does not fall within the MDO statutory commitment scheme since it is a sexual deviation rather than a severe mental disorder. However, pedophilia is a severe mental disorder for purposes of section 2962.id: 17234
Delay in starting trial to extend MDO commitment did not violate due process.Penal Code section 2972, subd.(a) provides that trial on a petition to extend a mentally disordered offender commitment shall commence no later than 30 days before the person's scheduled release date. The present petition was filed 32 days prior to defendant's release date but trial did not commence until three weeks after the scheduled release date. However, the trial deadline is directory not mandatory and the delay did not result in a denial of due process.id: 16886
Court was not required to instruct the jury to presume defendant was not an MDO.In the context of a proceeding on a petition for continued treatment under the Mentally Disordered Offender law (Penal Code section 2960 et seq.) the court was not required to instruct the jury to presume that defendant was not an MDO for purposes of the proceeding.id: 16877
Defendant's use of force or violence against an animal qualified him for a commitment as a mentally disordered offender.Defendant's conviction of cruelty to an animal (after having slit a dog's throat) involved the use of force or violence under Penal Code section 2962, subd.(e)(2)(p), and therefore rendered him eligible for an MDO commitment.id: 16636
Defendant's conviction of stalking involved "force" within the meaning of the MDO law.Defendant argued his conviction for stalking under Penal Code section 646.9 was not an offense under Penal Code section 2962 - the mentally disordered offender law - because it did not involve force or violence. However, stalking meets the criteria of section 2962, subd. (e)(2)(Q).id: 16215
Rule requiring notice to District Attorney 180 days before release of MDO for purposes of seeking an extension is directory and not jurisdictional.Defendant argued the order extending his commitment as a mentally disordered offender pursuant to Penal Code section 2970 was invalid due to the state's failure to meet certain time limits. Under section 2970 the state has 180 days prior to the termination of parole or release from prison to notify the district attorney that the defendant's mental disorder is not in remission. The instant letter was not sent within the 180 day period and there was no good cause for the delay. However, the 180 day rule is directory rather than jurisdictional and the delay resulted in no prejudice or due process violation. Moreover, under section 2972, trial on the matter must begin no later than 30 days prior to release. Good cause existed for the failure to meet the 30-day rule due to the diligence of the prosecutor and the continuances requested by the defense.id: 16217
Terrorist threat under section 422 involved threat of immediate force under the MDO law.Defendant told the victim, "I'm going to get my friends out here to kill you." For purposes of determining whether defendant was a mentally disordered offender, his conviction of making terrorist threats under Penal Code section 422 involved the threat of immediate force or violence likely to produce substantial physical harm, as required by section 2962, subdivision (e)(2)(Q).id: 16219
Privilege against self-incrimination does not bar prosecution from questioning an alleged MDO about his mental state at a Penal Code section 2972 hearing.The privilege against self-incrimination does not bar the prosecution from questioning an alleged mentally disordered offender about his mental state at a Penal Code section 2972 hearing. The extended commitment hearing under section 2972 is not punitive, and therefore the defendant did not have an absolute right to refuse to testify.id: 15781
Taking the victim's money and struggling to keep it was sufficient force under the MDO provision.At defendant's hearing to determine whether she was a mentally disordered offender within the meaning of Penal Code section 2960 et seq., the evidence was sufficient to show she used force or violence in the underlying offense. She grabbed the money from the victim's hand, broke away from his grasp in the cab in order to escape, and struggled to retain the stolen money. Had the only evidence of force used been that required to obtain the money, it is unlikely the hearing court would have found that the force criterion was met.id: 15745
Having defendant testify about her actions and mental condition at the MDO hearing did not violate her right against self-incrimination.At the hearing to determine whether defendant was a mentally disordered offender (Penal Code section 2960 et seq.) having the defendant testify about her actions and mental condition during the underlying offense did not violate her federal or state rights against self-incrimination.id: 15731
Mentally disordered offender statutory scheme is civil and does not violate ex post facto clauses.The date of defendant's offenses - January 16, 1989 - was during the period after the mentally disordered offender (MDO) statutory scheme was declared unconstitutional in <i>People v. Gibson</i> (1988) 204 Cal.App.3d 1425, and before the Legislature amended the statutes effective July 1989, to comply with <i>Gibson</i>. Defendant argued there was no valid MDO statute in existence at the time of his offenses and retroactively applying the amended statute violated the state and federal ex post facto clauses. However, the MDO statutory scheme is civil and does not violate ex post facto provisions.id: 15283
MDO laws are part of a civil scheme which does not implicate the rule against ex post facto laws.Defendant argued his conviction for arson of property did not qualify as mentally disordered offender crime (under Penal Code section 2962) at the time of his commitment and that a recent amendment to the MDO law, which enlarged the list of qualifying offenses to include arson of property "where the act posed a substantial danger of physical harm to others" was an ex post facto law if applied to his case. However, the MDO statutes are part of a civil scheme which does not implicate the rule against ex post facto laws. Moreover, defendant's arson offense, where he poured gasoline on his wife's car and set it on fire in a residential neighborhood, posed a "substantial danger" to the occupants of those nearby structures, within the meaning of the amended law.id: 15282
Force used in sexual battery where defendant restrained a small child and touched her vaginal area for several minutes was sufficient for purposes of an MDO commitment.Evidence supported defendant's involuntary commitment as a mentally disordered offender under Penal Code section 2960. Contrary to his claim, his underlying conviction of sexual battery under section 243.4 involved force where he physically restrained a small child and touched her vaginal area through her clothing despite the presence of family members. Moreover, a treating psychiatrist testified that defendant's mental illness contributed to the molestation and that he represented a substantial danger of physical harm to others.id: 15091
Counsel may waive the right to a jury trial on behalf of defendant at an MDO trial which is not a criminal proceeding.Defendant argued his Sixth Amendment rights were violated where he did not personally waive his right to a jury trial at the mentally disordered offender trial pursuant to Penal Code section 2970. However, an MDO trial is a civil proceeding and counsel may waive the right to a jury trial on the defendant's behalf.id: 14995
Application of the MDO statutory scheme to persons who committed crimes after the scheme's effective date but prior to the operative date did not violate ex post facto principles.Defendant was found to be a mentally disordered offender (MDO) within the meaning of Penal Code section 2962. He argued the MDO statutory scheme as applied, violates ex post facto principles because he committed the homicide before the statutes operative date, July 1, 1986. However, the statutory scheme provided different effective and operative dates and the instant offense was committed more than one month after the effective date of the statutory scheme. Moreover, in determining the legal effect to be given an enactment that contains different effective and operative dates, the court must ascertain and promote the legislative intent of the enactment. The legislative findings, original enactment, and subsequent amendments demonstrate that the MDO statutory scheme was intended to apply to persons imprisoned for certain crimes committed on or after January 1, 1986.id: 13806
Defendant exerted force under the mentally disordered offender provision where he kept hostages by pretending the plastic razor in his pocket was a gun.Defendant appealed an order certifying him as a mentally disordered offender pursuant to Penal Code section 2962 and continuing his involuntary confinement and treatment at a state mental hospital. He argued he could not be an MDO because he did not use force or violence in committing the false imprisonment at the cat hospital. However, the victims' resistance was overcome by defendant's manipulation of the plastic razor and pretense that it was a gun. Through deceit, he exerted power of the employees and overcame their resistance to escape. As such defendant's acts satisfied the force requirement of section 2962.id: 13812
Evidence of the noncontrolling sex offense was properly admitted in the mentally disordered proceeding.A jury determined defendant was a mentally disordered offender pursuant to Penal Code section 2960, et seq. He argued the court erred in allowing the jury to hear evidence of the rape, as it was not the controlling offense. However, a psychiatrist may and should take into account the prisoner's entire history in making an MDO evaluation. This includes prior violent offenses as well as the prisoner's mental health history. While the rape was not controlling it was relevant to the MDO finding and properly admitted.id: 13813
Mental health professional may consider the probation report in expressing an opinion as to whether the prisoner is an MDO.Defendant appealed from the trial court's finding that he was a mentally disordered offender (Penal Code section 2960, et seq.) He argued the doctor's reference to the probation report in concluding defendant's commitment offense involved force or violence violated the double hearsay rule. However, in the context of an MDO proceeding, a qualified mental health professional may refer to and consider the underlying probation report in expressing an opinion that the prisoner is an MDO. This includes the criterion or element that the underlying offense is one involving force or violence.id: 13814
Evidence supported MDO finding where defendant committed two assaults where he unreasonably misperceived situations as threats.Defendant argued the evidence did not support the trial court's determination that he was a mentally disordered offender pursuant to Penal Code section 2960. However, there was substantial evidence that he represented a risk of harm to others based upon two assaults by defendant while incarcerated after his parole was revoked. In each case he mistakenly interpreted the situations as threats or homosexual advances. He unreasonably misperceived the situations because of his severe mental disorder. Moreover, the evidence established his severe mental disorder could not be kept in remission.id: 13815
Improvement of mental condition is not an affirmative defense at an MDO certification proceeding.The trial court found defendant was a mentally disordered offender within the meaning of Penal Code section 2962. He conceded the evidence supported the order but argued the court should have ordered his discharge pursuant to section 2968 because of an improvement in his mental condition. However, section 2968 may not be raised as an affirmative defense at a section 2966 proceeding. The trial court correctly found that section 2968 affords a post-certification remedy where the prisoner's severe mental disorder is in remission and can be kept in remission.id: 13816
Maximum term of commitment for MDSO does not run while the person is on outpatient status.Where a person has been committed as a mentally disordered sex offender, the maximum term of commitment under Welfare and Institutions Code section 6316.1 does not run while the person is on outpatient status.id: 13817
Release from confinement as an MDO did not prevent the Board from recertifying him an MDO at a later date for the same committing felony sentence.Defendant argued that granting a petition releasing him from confinement as a mentally disordered offender (Penal Code section 2960) prevented the Board of Prison Terms from recertifying him an MDO at a later date for the same committing felony sentence. However, where the mental health aspects have changed after reincarceration on parole for the same underlying offense, the People are not foreclosed from seeking an MDO determination where parole is again imminent.id: 13820
The prosecutor who obtains the conviction that results in an MDO placement bears the responsibility for seeking further commitment for involuntary treatment.The superior court located within the county in which an inmate is convicted of the crime that serves as the foundation for his placement in a state hospital as a mentally disordered offender (MDO) is the proper court to hear a petition for involuntary treatment under Penal Code section 2970. Thus, the prosecutor who obtains the conviction that results in the placement of a person in a mental hospital as an MDO bears the responsibility for seeking further commitment for involuntary treatment.id: 13821
MDO finding was supported by evidence where the doctor in charge delegated treatment and evaluation of defendant to another doctor.Following a jury trial defendant was found to be a mentally disordered offender (Penal Code section 2962). He argued reversal was required because there was insufficient evidence to establish he was evaluated by the person in charge of his treatment. It is true the testifying doctors could not identify with certainty the person in charge of defendant's treatment. However, the jury could reasonably conclude that a subordinate doctor was in charge of treating and evaluating defendant under the supervision of the doctor in charge of treatment for all prisoners.id: 11762
Neither continuous nor involuntary treatment of a mentally disordered offender reimprisoned for parole violations is a jurisdictional prerequisite of continued treatment proceedings.When defendant had almost completed his maximum parole term and was due to be released he was recommitted for continued involuntary treatment of his mental disorder pursuant to Penal Code sections 2970 and 2972. He argued he received no treatment by state mental health officials for his disorder while he was in physical custody following his arrest and therefore the trial court had no jurisdiction to recommit him for continued treatment. However, neither continuous nor involuntary treatment of a mentally disordered offender reimprisoned for a parole violation is a jurisdictional prerequisite of continued treatment proceedings under sections 2970 and 2972.id: 11763
Recommitment order for continued involuntary treatment of mental disorder was proper despite the untimely submission of the remission evaluation and the untimely petition for trial of continued treatmentAfter defendant had almost completed his maximum parole term and was due to be released he was recommitted for continued involuntary treatment of his mental disorder pursuant to Penal Code sections 2970 and 2972. He claimed the recommitment order was void because the evaluation report was submitted by the prosecutor less than 180 days as required in section 2970. However, there was good cause for the delay as the mental health staff acted with due diligence in preparing and sending necessary documentation to the prosecutor. He also claimed error in that the continued treatment proceeding commenced less than 30 days before his parole termination date as required in section 2972, subdivision (a). However, factors beyond the prosecutor's control, including the late evaluation report and misinformation regarding the release date, were the major reasons for failing to meet the 30-day deadline. The prosecutor's ignorance of the 30-day deadline, although culpable, was not a major reason for the failure to meet the deadline.id: 11769
Mentally Disordered Offender Law's extended treatment provisions have no penal consequences when applied to offenders whose parole is completed and therefore does not violate ex post facto principles.Penal Code section 2970 which provides for the extended involuntary treatment provisions of the Mentally Disordered Offender Law to paroled prisoners who committed their predicate crimes prior to the passage of legislation which cured previously identified constitutional defects in the law did not constitute an ex post facto law. The law imposes no punishment for a crime after its commission and does not deprive an MDO of any defense available at the time the criminal act was committed.id: 9549
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245