Burroughs

*1404 Opinion

A recommitment under the mentally disordered offender (MDO) law requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder “is not in remission or cannot be kept in remission without treatment”; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others. (Pen. Code, § 2970.) 1 The Legislature has provided that a patient “ ‘cannot be kept in remission without treatment’ if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense . . . .” (§ 2962, subd. (a).) We conclude that this provision is a rule of substantive law that requires a positive finding on the “remission” criterion, rather than an unlawful mandatory presumption.

BACKGROUND

Respondent Dacosfa Burroughs suffers from paranoid schizophrenia. He was convicted of rape and sentenced to prison. The Board of Prison Terms (BPT) has twice determined that Burroughs is an MDO and committed him to Atascadero State Hospital (ASH) for treatment. Burroughs filed a petition in superior…

— I respectfully dissent. In mentally disordered offender (MDO) law, “[t]he term ‘remission’ means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.” (Pen. Code, § 2962, subd. (a).) 1 The majority hold that if an MDO has been physically violent during the year period before a recommitment determination is made, the trial court is automatically required to find that he is not in remission within the meaning of section 2962 subdivision (a). As I shall explain, this holding makes section 2962 subdivision (a) a mandatory presumption which violates an MDO’s constitutional due process rights. It also has the effect of rendering the remaining commitment time tantamount to punishment, contrary to the purpose of the MDO statutory scheme. In these circumstances, section 2962 subdivision (a) should be construed as a permissive presumption so as to preserve its constitutionality.

The People argue that the spitting incident was an act of violence within the meaning of section 2962 subdivision (a) and this required automatic recommitment. Section 2962 subdivision (a) provides: “A person ‘cannot be…

A recommitment under the mentally disordered offender (MDO) law requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder "is not in remission or cannot be kept in remission without treatment"; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others. (Pen.Code, § 2970.) [1] The Legislature has provided that a patient "`cannot be kept in remission without treatment' if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense...." (§ 2962, subd. (a).) We conclude that this provision is a rule of substantive law that requires a positive finding on the "remission" criterion, rather than an unlawful mandatory presumption.

Respondent Dacosta Burroughs suffers from paranoid schizophrenia. He was convicted of rape and sentenced to prison. The Board of Prison Terms (BPT) has twice determined that Burroughs is an MDO and committed him to Atascadero State Hospital (ASH) for treatment. Burroughs filed a petition in superior court challenging the…