Hurt

Following a plea of nolo contendere to a charge of violating Penal Code section 245 subdivision (a) (assault by means of force likely to produce great bodily injury), Danny Lynn Hurt was found not guilty by reason of insanity and eventually committed to the California Department of Mental Health for placement in a state hospital for a minimum of 90 days. Hurt has appealed from the order of commitment. The appeal lies. (Pen. Code, § 1237, subd. 1; People v. Vanley (1974) 41 Cal.App.3d 846, 848, fn. 1 [ 116 Cal.Rptr. 446 ].)

Issues

The issue before us involves interpretation of Penal Code section 1026 and is succinctly stated by defendant to be “. . . whether the superior court has the discretion to place a defendant, who has been found not guilty by reason of insanity and who has not fully recovered his sanity, in an outpatient treatment program rather than in a state hospital or a mental health facility, where the evidence supports the former disposition.”

Facts

It appears without conflict that defendant was found not guilty by reason of insanity of a crime which posed a threat of bodily harm to another person. It was also determined that defendant had not regained…