Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. FC49875, VC50020
NEEDHAM, J.
Leo Samuel Archer (Archer) appeals from an order revoking his outpatient status under Penal Code section 1608. He contends the standard for revocation under section 1608 is unconstitutionally vague and the court abused its discretion in concluding the standard was met. In addition, Archer and respondent agree that the case should be remanded for a jury trial as to whether Archer has been restored to sanity within the meaning of section 1026.2. We will affirm the order revoking Archer’s outpatient status and remand for a jury trial on the issue of restoration to sanity.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Given the complexity of this proceeding, we begin with an overview. Archer was found not guilty by reason of insanity on two charges and committed to a mental hospital. He applied for release on the ground that his sanity was restored (§ 1026.2) and, in the first phase of the proceeding, obtained outpatient status. His application for restoration of sanity was ultimately denied, but a new trial was granted because the issue was not tried to a jury. This retrial has not been held. Meanwhile, the court granted the request of the director of the mental health department to revoke Archer’s outpatient status (§ 1608). It is from this order that Archer appeals. To provide context for the parties’ arguments in this case, we turn to a more detailed look at these events.
A. Underlying Charges and Insanity Plea
In case number VC50020, a June 2000 information charged Archer with one count of assault with a deadly weapon and by means of force likely to cause great bodily injury. (§ 245, subd. (a)(1).) It was also alleged that Archer had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served a prior prison term (§ 667.5).
In case number FC49875, an information filed in June 2000 charged Archer with one count of grand theft. (§ 487, subd. (c).) It further alleged a prior felony for purposes of section 667, subdivisions (b)-(i), and section 1170.12, subdivisions (a)-(d), and a prior prison term (§ 667.5).
Criminal proceedings were suspended for a competency evaluation (§ 1368) and, in November 1999, Archer was found incompetent to stand trial. After it was determined that his competency was restored, a preliminary hearing was conducted in both cases and Archer was held to answer in both. In September 2000, Archer entered pleas of not guilty by reason of insanity, and the issue was submitted to the court.
The court found Archer not guilty by reason of insanity in each case in September 2000. Archer was committed to the Department of Health under section 1026 on November 1, 2000. His maximum term of confinement was twelve years four months.
B. Archer’s Restoration of Sanity Application (§ 1026.2)
On November 7, 2001, Archer applied for release from Atascadero State Hospital on the ground that his sanity had been restored. (§ 1026.2, subd. (a).) Under section 1026.2, Archer was first required to establish at a hearing that he would not pose a danger to the health and safety of others due to his mental defect, disease, or disorder while under supervision and treatment; then he would be placed on outpatient status in a conditional release program; and at the end of the one-year period the court would conduct a trial to determine if his sanity had been restored. (§ 1026.2, subd. (e).) The trial court (Judge Ramona Garrett) granted Archer the right to represent himself with advisory counsel.
The initial hearing in the restoration of sanity process was continued to July 24, 2002. At the end of the hearing, Judge Garrett ordered that Archer be released to outpatient status on a conditional release program (CONREP). (See §§ 1026.2, subd. (e), 1600 et seq.) The written order specifically releasing Archer to outpatient status at Northstar Project for a one-year commitment was filed on September 13, 2002. Relying on reports and recommendations of the Department of Mental Health and the non-opposition of the People, the court implicitly found that Archer would not pose a danger to the health or safety of others while under supervision and treatment in the community. (See § 1026.2, subd. (e).)
CONREP is the Conditional Release Program, which is an involuntary treatment program, administered by local agencies, that includes requirements for treatment and supervision. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 416 (DeGuzman).)
On September 30, 2003, Archer appeared before Judge Garrett at a hearing to determine whether his outpatient status would be continued for an additional year pursuant to section 1606. The matter was continued at the People’s request to November 19, 2003, and subsequently continued to December 9, 2003. At the conclusion of the hearing, the court took the matter under submission.
There appears to have been some confusion whether this was a section 1606 hearing (to be held each year of outpatient status) or a section 1026.2, subdivision (e) trial (to determine whether Archer was restored to sanity). Section 1606 provides that, at the end of a one-year period of outpatient status, the court will hold a hearing to decide whether to release the defendant, continue outpatient status, or commit the defendant to in-patient treatment. Section 1026.2, subdivisions (e) and (i) provide that, at the end of a one-year period of outpatient status, the court will hold a trial to determine whether the defendant’s sanity has been restored: if so, he is released; if not, he is either granted an additional term of outpatient status or committed to in-patient treatment. Although the hearing was initially characterized as a section 1606 proceeding, the court’s order was framed in terms of section 1026.2.
On January 29, 2004, Judge Garrett ruled that Archer had not met his burden of proof to demonstrate that he was not dangerous, concluded that his sanity was not proven to be restored within the meaning of section 1026, denied Archer’s application for release on the ground of restoration of sanity, and extended his outpatient status for a year. (See § 1026.2, subd. (i).)
On February 27, 2004, Archer’s attorney filed a motion for a new trial, contending that Archer had been entitled to, but neither waived nor received, a jury trial on the issue of restored sanity as provided in section 1026.2, subdivision (k). Counsel explained that both he and the prosecutor had misinformed the court that Archer was entitled only to a court trial. On March 11, 2004, Judge Garrett granted the motion and continued the case to April 7, 2004, for a jury trial setting. At this point, Archer was on outpatient status and entitled to a jury trial on the restoration of sanity issue. The jury trial was initially set for July 16, 2004.
C. Director’s Request To Revoke Archer’s Outpatient Status (§ 1608)
Before the date set for the jury trial, the Director of the Solano County Health and Social Services Department requested by letter of May 19, 2004, that Archer’s outpatient status be revoked pursuant to section 1608 for his failure to abide by conditions of the conditional release program. The director alleged that Archer had not kept appointments, he refused to provide a urine specimen as required, and a recent urine specimen tested positive for codeine, morphine, cocaine, and alcohol.
1. Delays
A variety of matters delayed the hearing on the section 1608 request as well as the new trial on restoration of sanity under section 1026.2. Most of these matters were attributable to Archer. In May 2004, Judge Garrett was informed that Archer had been arrested in Oregon on a drug charge; the court issued a bench warrant for his return to California. Once returned, Archer was housed at Napa State Hospital pending the revocation proceedings, pursuant to section 1610. Numerous continuances were then granted due to issues arising as to Archer’s appointed counsel, Archer’s request to represent himself, and his alleged contempt of court, “inappropriate behavior,” and “yelling/acting out in [a] holding cell.” The proceedings were suspended altogether on December 3, 2004, for a competency examination. (§ 1368.) There were additional continuances when Archer was not transported from Napa State Hospital because he was “acting out and considered a danger” and, on the next scheduled hearing date, “refused to be transported to court.” On January 27, 2005, Judge Garrett denied Archer’s motion for self-representation (Faretta v. California (1975) 422 U.S. 806) and his motion for substitution of appointed counsel (People v. Marsden (1970) 2 Cal.3d 118); Archer promptly requested that Judge Garrett be disqualified. The judge recused herself in accordance with Code of Civil Procedure section 170.1 on April 7, 2005.
Judge Garrett explained: “Defendant has repeatedly engaged in behaviors in my courtroom, in my presence and in the presence of court staff, which could be at issue in any trial to which he is entitled. Code of Civil Procedure section 170.1(a)(1) provides that a judge who has personal knowledge of disputed evidentiary facts concerning the proceeding shall be disqualified. Therefore, I am disqualified from hearing Defendant’s case.”
Judge Michael R. Smith was assigned to the case, and Archer retained Erik Babcock as his new attorney. The case was continued for a few more months, apparently on defense counsel’s representation that appellate matters were pending in state or federal court.
2. Intervening Motion to Release Archer Due to Lack of Mental Illness
On November 7, 2005, approximately 18 months after the request to revoke Archer’s outpatient status (§ 1608) and even longer since a new trial was ordered on restoration of sanity (§ 1026.2), Archer’s attorney filed a motion to obtain Archer’s immediate release from Napa State Hospital, on the ground that Archer was not mentally ill. (See generally Foucha v. Louisiana (1992) 504 U.S. 71, 77-80 (Foucha) [state may not confine insanity acquitee who is no longer mentally ill and dangerous].)
At the hearing on December 7, 2005, the court refused to order Archer’s immediate release, finding no due process violation. In addition, the court attributed the delay in Archer having a section 1026.2 jury trial to representations from Archer’s attorney that there were pending California appellate proceedings. As the court was about to set Archer’s section 1026.2 jury trial, defense counsel requested that the setting be postponed so he could discuss matters with Archer; at that point, Archer left the courtroom. Archer’s section 1026.2 jury trial was set for January 3, 2006.
On January 3, 2006, the case was called for the section 1026.2 jury trial before Archer arrived at court from Napa State Hospital. Defense counsel waived Archer’s presence and the matter was continued to March 16, 2006. The section 1608 hearing and a hearing on Archer’s motion to revoke his time waiver on the section 1026.2 jury trial were later set for March 16, 2006, as well. These matters were continued to April 6, 2006, due to the unavailability of CONREP representatives on March 16.
3. Outpatient Revocation Hearing on April 6, 2006
The section 1026.2 jury trial still had not taken place as of April 6, 2006, when the request to revoke Archer’s outpatient status (§ 1608) was heard by Judge Harold Kinnicutt. Nor was there any request at the hearing that the new restoration of sanity trial be set. The evidence at the section 1608 hearing included the following.
Michlene Wojak, a mental health clinician at CONREP for Solano County, testified that she wrote Archer a letter on April 29, 2004, informing him of an appointment on May 3, 2004, to discuss his April 26 arrest in El Cerrito. Wojak also telephoned Archer’s residence. When Archer did not return her phone calls or appear for the May 3 appointment, Wojak went to his residence and found him consuming alcohol, in violation of the terms of his conditional release agreement. Archer also declined to take a drug test, which violated his CONREP agreement as well. Archer claimed that he had not contacted Wojak because he had gone to New York after his girlfriend went there with $5,000 he had given her to purchase inventory, and then kept the money and terminated their relationship. Although Archer was allowed to go to New York every two weeks in connection with his business, traveling out of state otherwise without permission constituted another violation of Archer’s CONREP program. As to his arrest in El Cerrito, Archer explained that he had given a ride to an acquaintance who was a prostitute and in possession of crack cocaine. Archer’s urine sample of May 14, 2004, tested positive for drugs, and he failed to keep appointments on May 18.
Steven Williams, director of the Solano CONREP program, confirmed that Archer was found drinking alcohol, tested positive for unlawful drugs, and failed to show up for a meeting on May 18, all in violation of his CONREP agreement. In addition, Williams learned in May 2004 that Archer had been arrested in Oregon for speeding and being in possession of crack cocaine. Archer’s presence in Oregon without prior approval of his CONREP supervisor violated his CONREP agreement, and Archer’s alleged possession of illegal drugs would violate his agreement to obey all laws. Furthermore, Williams believed that Archer could not be effectively treated if CONREP did not have contact with him.
Archer testified that the charges filed against him in Oregon for possession of narcotics were dropped. He stated that he would obey the law if he were released. He also contended that CONREP’s authority over him ended on October 6, 2003, because of his motion for restoration of sanity.
At the conclusion of the hearing, the court revoked Archer’s outpatient status. Archer was ordered to be confined at the psychiatric unit of Sacramento State Prison and was later committed to Napa State Hospital pursuant to section 1026.
Accordingly, Archer is now an in-patient. The jury trial on restoration of sanity still has not been held.
D. Archer’s Appellate Proceedings
On June 5, 2006, Archer’s attorney filed a notice of appeal on Archer’s behalf, appealing from the April 6 order revoking his outpatient status under section 1608.
On numerous other occasions Archer has sought relief from this court, with or without the assistance of counsel. Most relevant here is Archer’s pro per petition for a writ of habeas corpus (A115884), seeking an immediate jury trial on the issue of the restoration of his sanity. We denied the petition without prejudice on the ground that the relief Archer seeks can be provided in this appeal. Another habeas petition (A115522), filed on Archer’s behalf by counsel, contends that Archer’s present confinement is unconstitutional. We will deny this habeas petition by separate order. Archer’s other appellate proceedings include appeal numbers A108392, A114550, A114687, A114550, A097390, A114655, A097320, and A116106.
At our invitation, the parties in this appeal briefed whether the appeal would become moot if the habeas petition in A115884 were granted, and whether the trial court would have jurisdiction to hold a jury trial on the restoration of sanity issue notwithstanding the pendency of this appeal. Because we ultimately denied the habeas petition, we need not address these issues.
II. DISCUSSION
As mentioned, Archer contends that the order revoking his outpatient status under section 1608 should be vacated on the ground that (1) section 1608 is unconstitutionally vague; and (2) the court abused its discretion in revoking his outpatient status in light of the evidence. Archer also contends the case should be remanded for a jury trial on the issue of the restoration of Archer’s sanity under section 1026.2. We address each contention in turn.
A. The Court Did Not Err in Revoking Archer’s Outpatient Status (§ 1608)
Contrary to the standard set forth in section 1608, Archer asserts that the People should have to prove that he continues to suffer from a mental illness that is not in remission and that such mental illness makes him unable to control his behavior in a manner that renders him seriously dangerous. He also argues that the People failed to sustain their burden of proof. Neither contention has merit.
1. Legal Framework
When the trial court finds that a defendant was insane at the time of an offense, it may commit the defendant to a state hospital or certain treatment facilities (as Archer was here), or it may order the defendant placed on outpatient status pursuant to section 1600 et seq. (§§ 1026, subd. (a), 1026.3, 1601.) Placement in an outpatient program may be selected if the underlying offense is not listed in section 1601, subdivision (a), and the community program director determines that he or she will not be a danger to the community. (§ 1602, subd. (b); People v. De Anda (1980) 114 Cal.App.3d 480.) If the defendant is instead committed to a state hospital, he may be released from the state hospital upon expiration of the maximum term of commitment (§ 1026.5), recommendation of outpatient status by the director of the state hospital and community program director and approval by the trial court (§§ 1600, 1603), or proof by the defendant in a restoration of sanity proceeding that he is not dangerous (§ 1026.2). (§ 1026.1; People v. Sword (1994)29 Cal.App.4th 614, 620 (Sword).)
In this matter, Archer obtained outpatient status in the context of his application for restoration to sanity under section 1026.2. As mentioned ante, section 1026.2 provides a two-step procedure. First, the applicant must establish at a hearing that he would not pose a danger to the health and safety of others due to his mental defect, disease, or disorder, while under supervision and treatment in the community. Upon such proof, he obtains outpatient status with an appropriate conditional release program for a year, as a period to test his capacity for productive living in the community. Second, at the end of the one-year period the court conducts a jury trial to determine if sanity has been restored—that is, whether he is no longer a danger to the health and safety of others due to mental defect, disease, or disorder, such that he may be unconditionally released. (§ 1026.2, subd. (e); see Barnes v. Superior Court (1986) 186 Cal.App.3d 969, 974.) If the applicant is not found to be restored to sanity, he may be returned to outpatient status or in-patient status, depending on whether he meets the criteria for outpatient status in section 1603. (§ 1026.2, subd. (i); Sword, supra, 29 Cal.App.4th at pp. 620-621.)
Section 1026.2, subdivision (e), sets forth the standard where a person applies for restoration of sanity. It provides: “The court shall hold a hearing to determine whether the person applying for restoration of sanity would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community. If the court at the hearing determines the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community, the court shall order the applicant placed with an appropriate forensic conditional release program for one year. All or a substantial portion of the program shall include outpatient supervision and treatment. The court shall retain jurisdiction. The court at the end of the one year, shall have a trial to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder. The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate forensic conditional release program, unless the community program director sooner makes a recommendation for restoration of sanity and unconditional release as described in subdivision (h). The court shall notify the persons required to be notified in subdivision (a) of the hearing date.” (Italics added.) In a restoration of sanity hearing and trial, the applicant has the burden of proof by a preponderance of the evidence that he is either no longer mentally ill or no longer dangerous. (§ 1026.2, subd. (k).)
This requirement of a hearing at the end of one year of outpatient status to determine if the defendant’s sanity has been restored dovetails with the statutes governing outpatient status of insanity acquitees generally. (See § 1600 et seq.) Under section 1606, the period of outpatient status cannot exceed one year at a time. At the end of the one-year period, the court holds a hearing and either discharges the person from commitment under an appropriate provision of the law, orders him confined to a treatment facility, or renews approval of outpatient status. (§ 1606.)
There are also two statutory methods for obtaining the revocation of an individual’s outpatient status. Under section 1608, pursued here, the director of an outpatient program can file a request: “[i]f at any time during the outpatient period, the outpatient treatment supervisor is of the opinion [a defendant] requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the . . . director shall notify the superior court . . . by means of a written request for revocation of outpatient status.” (§ 1608.) Alternatively, under section 1609 the prosecutor can file a petition to revoke outpatient status if the prosecutor is of the opinion that the person is a danger to the health and safety of others while on outpatient status. At the ensuing hearing, the burden is on the state to show that revocation is appropriate by a preponderance of the evidence. (DeGuzman, supra, 33 Cal.App.4th at pp. 419-420 [§ 1609].) Pending the decision on a revocation request, the individual may be confined in a treatment facility. (§ 1610.)
2. Archer’s Contention That Section 1608 is Unconstitutionally Vague
Archer contends that section 1608 (and section 1609, although not applicable here) offers a vague standard for revocation of outpatient status. Specifically, section 1608 violated due process, he argues, because it does not provide a basis for determining whether a person “requires extended inpatient treatment” and thus allows the unguided exercise of discretion. Archer further maintains that it is arbitrary and capricious to revoke a person’s outpatient status unless he suffers from a mental illness and the mental illness makes him unable to control his behavior in a manner that renders him seriously dangerous.
Archer is incorrect. While stating in conclusory fashion that the standard of “requires extended inpatient treatment” is too vague, he does not explain why it is vague, or why it is less certain than the “dangerous” criterion he espouses. To the contrary, the standard is sufficient clear; whether an individual requires “extended inpatient treatment” is a question of fact, susceptible to proof through competent testimony.
Nor does Archer provide any basis for concluding that the return of an individual to inpatient treatment requires the People to prove anew that he is mentally ill or dangerous. The individual’s mental illness remains presumed from his plea of not guilty by reason of insanity and his dangerousness remains presumed from having committed a violent act, until he establishes otherwise after a section 1026.2 trial. (Sword, supra, 29 Cal.App.4th at pp. 623-624; People v. Beck (1996) 47 Cal.App.4th 1676, 1684-1685 (Beck).) The revocation procedure under section 1608, therefore, need not determine whether he is mentally ill or dangerous, but whether circumstances have changed such that he is no longer suitable for treatment as an outpatient. “[O]utpatient status is not a privilege given [a defendant] to finish out his sentence in a less restrictive setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [patient] and cause no undue hazard to the community. [Citation.]” (Sword, supra, at p. 620, italics added; see DeGuzman, supra, 33 Cal.App.4th at pp. 419-420 [“Like revocation of probation, revocation of outpatient status under either section [1608 or 1609] does not deprive a person of absolute liberty but rather deprives him of a conditional liberty to which he is entitled only if he observes special restrictions.”], italics added.) While section 1609 addresses the dangerousness of the individual, section 1608 is based on concerns for his welfare and “does not require the court to find that the patient is a danger to the health and safety of others.” (DeGuzman, supra, at pp. 419-420, italics added.)
Archer compares the standard in section 1608, involving revocation of outpatient status, with the standard in section 1026.2, involving restoration of sanity. He argues that section 1608 allows revocation based on the opinion of a treatment supervisor that a person “requires extended inpatient treatment” and is not concerned whether the outpatient continues to suffer from a mental disorder, while section 1026.2 asks whether an individual would not be a danger to the health and safety of others due to a mental defect, disease, or disorder. Section 1608 and section 1026.2, however, have different purposes. In section 1608, mental health professionals urge the return of a person to inpatient treatment, as a protection to the patient, because he requires inpatient treatment or refuses outpatient treatment. In section 1026.2, the patient seeks to be released altogether by proving that he is sane. Given the fundamental differences in the statutes’ purposes and procedures, it is reasonable for them to set forth different standards.
Archer provides no relevant legal authority to support his arguments. In fact, the cases on which he relies do not help his cause. In DeGuzman, supra, 33 Cal.App.4th 414, an order revoking outpatient status was affirmed. There, the defendant had been found not guilty of murder by reason of insanity and admitted to outpatient status. (Id. at p. 416.) The CONREP director requested revocation of his outpatient status pursuant to section 1608, on the ground that he made threatening remarks, failed to keep medical appointments (indicating he was unwilling to comply with outpatient treatment), and threatened to leave for a trip with his family without permission. (DeGuzman, supra, at pp. 417-418.) The trial court ordered revocation of outpatient status. The Court of Appeal affirmed, holding that the prosecution needed to show that outpatient status should be revoked only by a preponderance of the evidence, that substantial evidence supported the court’s conclusion that the People met this burden, and that section 1608 “does not require the court to find that the patient is a danger to the health and safety of others.” (DeGuzman, supra, at pp. 419-420.) DeGuzman does not help Archer at all.
Foucha, supra, 504 U.S. 71, held that it is unconstitutional to confine an insanity acquitee who is no longer mentally ill or no longer dangerous. Here, however, it has not been established that Archer is no longer mentally ill or no longer dangerous.
The court’s September 2002 order granting Archer outpatient status under section 1026.2 did not find that Archer was not mentally ill. Nor did it find that he was no longer dangerous: the implicit finding was that Archer was not dangerous to the health or safety of others while under supervision and treatment in the community. (See § 1026.2, subd. (e).)
Beck, supra, 47 Cal.App.4th 1676, is also unhelpful to Archer, because it did not address section 1608 and instead upheld the procedure set forth in section 1026.2, subdivision (e). The defendant in Beck had been committed to a state mental hospital after being acquitted of crimes by reason of insanity. (Beck, supra, at p. 1680.) He petitioned for transfer to outpatient status under section 1026.2, subdivision (e), and the psychiatric social worker and treating psychiatrist agreed he was not mentally ill or dangerous to himself or others. (Beck, supra, at p. 1680.) While the defendant argued that he was constitutionally entitled to immediate release under Foucha, the trial court instead followed section 1026.2, subdivision (e) and placed him in an outpatient program for a year. (Beck, supra, at p. 1680.) The Court of Appeal affirmed, holding that section 1026.2, subdivision (e), provides due process because it requires that the nature and duration of commitment bear a reasonable relation to the purpose for which the individual is committed: an insanity acquitee has committed a crime and thus indicates potential dangerousness, the process of evaluating a defendant for a prolonged period in a non-institutional setting has obvious merit, and participation in an outpatient program involves a lesser interference with personal liberty than institutional commitment. (Beck, supra, at pp. 1684-1685.) Furthermore, the court ruled, section 1026.2, subdivision (e) does not violate equal protection, even though a similar procedure is not required by statutes governing civil commitment and the parole of mentally disordered offenders, because those are distinguishable situations. (Beck, supra, at p. 1686.) Thus, Archer’s arguments based on cases pertaining to civil commitments are also unpersuasive.
The other cases on which Archer relies are inapposite as well. In People v. Galindo (2006) 142 Cal.App.4th 531, 536 (Galindo), the court assumed that section 1026.5, subdivision (b)(1) required proof that a person has serious difficulty in controlling dangerous behavior if his commitment is to be extended beyond the maximum term of confinement. Galindo did not address the standard for revoking outpatient status or suggest that the standard for extending commitment beyond the maximum term under section 1026.5 should also apply in assessing whether to permit a discretionary form of treatment during the term. In re Howard N. (2005) 35 Cal.4th 117 (Howard N.) involved an extended commitment under Welfare and Institutions Code section 1800. (Howard N., supra, at pp. 122, 128, 132.) It did not involve the revocation of outpatient status or any other discretionary form of treatment.
Lastly, Archer argues in his reply brief that section 1608, in conjunction with section 1026.2, keeps Archer in “procedural insanity.” If Archer proves his sanity is restored because he lacks a mental disorder or defect, he reasons, an order discharging him from custody “could then be countermanded by the district attorney filing a section 1609 petition.” Not so. Nothing in section 1609 suggests that an individual could be confined contrary to Foucha if he did not have a mental illness. Section 1609 simply provides for revocation of outpatient treatment if he is a danger to himself or others. In any event, section 1609 is immaterial to this appeal, since Archer’s outpatient status was revoked under section 1608.
Archer has not established that section 1608 is unconstitutionally vague, either on its face or as applied in Archer’s case.
3. Sufficiency of the Evidence
We uphold the trial court’s factual findings if supported by substantial evidence (DeGuzman, supra, 33 Cal.App.4th at p. 420) and apply the abuse of discretion standard in reviewing the court’s decision to revoke outpatient status (Sword, supra, 29 Cal.App.4th at p. 619).
Substantial evidence supported the conclusion that Archer “require[d] extended inpatient treatment or refuse[d] to accept further outpatient treatment and supervision.” (§ 1608.) In April 2004, he was arrested while in the company of a prostitute carrying crack cocaine, in violation of the terms of his conditional release. He did not appear for appointments on May 3 or May 18, or return telephone calls from CONREP representatives. Also in May 2004, he consumed alcohol, refused to take a drug test, and traveled across the country to New York without permission, all in further violation of his CONREP agreement. His urine sample tested positive for illegal drugs, in violation of his agreement as well. He was also arrested in Oregon that month for speeding, while purportedly in possession of crack cocaine. Williams, the director of the Solano CONREP program, testified that Archer could not be effectively treated if CONREP did not have contact with him. This constituted substantial—if not overwhelming—evidence that Archer “require[d] extended inpatient treatment.” (§ 1608.) Furthermore, Archer testified that he did not have to comply with CONREP requirements because he believed CONREP no longer had authority over him. He thus “refuses to accept further outpatient treatment and supervision.” (§ 1608; see also DeGuzman, supra, 33 Cal.App.4th at p. 417 [failure to keep appointments indicated unwillingness to comply with outpatient treatment and supervision].) The trial court did not abuse its discretion in revoking Archer’s outpatient status.
Archer’s arguments to the contrary are singularly unpersuasive. Archer argues that he is not mentally ill, citing a February 2002 report of Dr. Carlton Purviance, whom the court had appointed to evaluate Archer’s capacity to represent himself. The report found Archer to be “alert, lucid, well-oriented, logical, and coherent” with “no clinical signs or symptoms noted to suggest the presence of psychosis, thought disorder, major affective disorder, or significant organic brain dysfunctioning.” Whatever the credibility or weight the February 2002 report might have had as to Archer’s mental condition over four years later in April 2006, the report was not admitted into evidence at the section 1608 hearing. It therefore provides no basis for concluding that the trial court’s decision was unsupported by substantial evidence.
Dr. Purviance also noted that Archer “admitted freely to the psychologist” in 2001 that he had “feigned a mental illness in order to avoid a lengthy prison sentence.”
Archer also argues that the director of Solano’s CONREP program exceeded his statutory authority in his May 2004 letter requesting revocation of Archer’s outpatient status, by opining that Archer “currently poses a significant threat to public safety.” Archer contends that being a threat to public safety involves a determination to be made only by a prosecutor under section 1609, and the assertion had no factual basis.
Archer’s argument is meritless, for several reasons. First, although it is unnecessary to show that the individual is dangerous in order to revoke outpatient status under section 1608, it is not error to consider that factor as well. (DeGuzman, supra, 33 Cal.App.4th at p. 420.) Second, Archer takes the statement out of context. After requesting revocation under section 1608, the letter states: “In addition, we are requesting that the Vallejo Police Department apprehend Mr. Archer and place him in the Fairfield Jail pending the revocation hearing. Due to Mr. Archer’s ongoing non compliance with the terms and conditions of his outpatient status, and his apparent abuse of illicit substances, it is our opinion that he currently poses a significant threat to public safety.” (Italics added.) Thus, the statement was made to explain why Archer should be apprehended, not to buttress the revocation request. Third, there was certainly a factual basis for the director’s concerns. It is not unreasonable to suspect that Archer, who had previously committed a violent crime, was a threat to public safety after he absconded out of state, consumed alcohol, used illegal drugs, and refused to accept outpatient treatment on the agreed terms. Fourth, Archer fails to establish any prejudice from the director’s statement. There is no indication in the record that the trial court relied on it in deciding to revoke Archer’s outpatient status. Nor is there any indication that the court would have come to a different conclusion if the statement had not been made.
Archer has not shown that the court’s revocation of his outpatient status is erroneous.
Archer has submitted documents directly to this court, in pro per. His appellate counsel has summarized them in his reply brief and believes that Archer wishes to claim that his confinement is unlawful because there is no valid order committing him to a second year of outpatient treatment, and the trial court thus had no jurisdiction to revoke his outpatient status. The order committing Archer to a second year of outpatient status was the January 2004 order, which was set aside for failure to provide a jury trial on the issue of restoration of sanity. The order setting aside the January 2004 order, however, also continued his outpatient treatment pending the retrial, without objection. The jury trial on restoration of sanity must proceed, but there is no basis for releasing Archer outright. (See People v. Smith (1990) 224 Cal.App.3d 1389, 1391-1392, 1395 [requirement of holding jury trial under § 1026.2, subd. (e) after one-year of outpatient status is directory, not mandatory, and the failure to timely afford the jury trial did not deprive the court of jurisdiction to revoke outpatient status].)
B. Jury Trial on Restoration of Sanity
Archer has not yet had his jury trial on restoration of sanity under section 1026.2. He contends that it was the trial court’s obligation to “persevere” in setting the jury trial, and because the hearing on April 6, 2006, addressed only outpatient revocation, he has not received due process and we should “order relief.” Respondent has no objection to a remand for the jury trial.
We will order that this case be remanded to the trial court for the jury trial on Archer’s restoration of sanity. We reject Archer’s suggestion that the delays in holding the jury trial have been due to a failure on the part of the trial court to “persevere.” The trial court set the jury trial more than once, and numerous continuances were granted due to Archer’s procedural maneuvers, Archer’s disruptive behavior, and his counsel’s representation that matters should be postponed due to pending appellate proceedings. At the April 6 section 1608 hearing, there was no mention on the record of the need to hold the section 1026.2 jury trial.
Nonetheless, because of the delay in holding the jury trial, we will order that the trial commence within 60 days from the date of the issuance of the remittitur in this proceeding, absent good cause shown to the satisfaction of the trial court.
III. DISPOSITION
The order is affirmed. The matter is remanded for a jury trial on the issue of Archer’s restoration of sanity pursuant to section 1026.2, subdivision (e). The jury trial shall commence within 60 days of the issuance of remittitur, absent good cause shown to the satisfaction of the trial court.
We concur. SIMONS, Acting P. J., GEMELLO, J.