Blackwell

Charged with four sex-related felonies and having waived a trial by jury, defendant Grover Blackwell was, by the superior, court, found not guilty by reason of insanity as to each of the offenses and committed, December 18, 1978, to a state hospital under the provisions of Penal Code section 1026.

*375 Effective September 28, 1979, section 1026 and its related statutes, sections 1026a and 1027, were reorganized by the Legislature, becoming Penal Code sections 1026, 1026.1, 1026.2, 1026.5 and 1027.

Thereafter, in proceedings under the newly effective section 1026.2 (substantially similar to the earlier § 1026a) Blackwell, in the superior court, sought his discharge from the state hospital on “the ground that his sanity had been restored.” Following an appropriate hearing a jury found that his “mental state has not improved to the extent that he is no longer a danger to the safety of others or himself.” He was thereupon, January 9, 1980, recommitted to the state hospital.

Blackwell’s appeal is from the order of January 9, 1980.

Blackwell first contends: “The trial court committed reversible error in instructing on the standard of proof to be applied at appellant’s Penal…

I concur out of deference to the dicta contained in the Supreme Court decisions cited in the principal opinion. 1 Were it not for that dicta I would agree with Blackwell that the proper standard for determining his right to release under Penal Code section 1026.2 is whether he is dangerous to the health and safety of others. Should he be dangerous to himself, he would be subject to involuntary civil commitment under the Lanterman-Petris-Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq., § 5150), which contains substantially different (and less restrictive) provisions relating to location, nature and length of commitment and procedures for release. The Legislature seems quite capable of distinguishing between the two standards (cf. Pen. Code, §§ 1602, subd. (a), 1603, subd. (a), 1609, and 1611, subd. (a) with Welf. & Inst. Code, §§ 6500, 5150), and the distinction finds support in reason. It strikes me as anomalous that a person presently dangerous only to himself should be treated in a more restrictive manner than another person with the same tendencies simply because he was committed for a different reason. To do so is “to allow the remedy to exceed the cause of special…

ELKINGTON, Acting P.J.

Charged with four sex-related felonies and having waived a trial by jury, defendant Grover Blackwell was, by the superior court, found not guilty by reason of insanity as to each of the offenses and committed, December 18, 1978, to a state hospital under the provisions of Penal Code section 1026.

Effective September 28, 1979, section 1026 and its related statutes, sections 1026a and 1027, were reorganized by the Legislature, becoming Penal Code sections 1026, 1026.1, 1026.2, 1026.5 and 1027.

Thereafter, in proceedings under the newly effective section 1026.2 (substantially similar to the earlier § 1026a) Blackwell, in the superior court, sought his discharge from the state hospital on "the ground that his sanity had been restored." Following an appropriate hearing a jury found that his "mental state has not improved to the extent that he is no longer a danger to the safety of others or himself." He was thereupon, January 9, 1980, recommitted to the state hospital.

Blackwell's appeal is from the order of January 9, 1980.

Blackwell first contends: "The trial court committed reversible error in instructing on the standard of proof to be applied at…