Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR4132
Marchiano, P.J.
Defendant Michael Allen Morrow appeals from an order extending his commitment to a state mental hospital. (Pen. Code, § 1026.5.) He argues, the People agree, and we concur that the order must be reversed because the court applied the wrong burden of proof in making its ruling.
Subsequent statutory references are to the Penal Code.
I.
Defendant filed a petition for transfer to outpatient status pursuant section 1026.2 on October 6, 2006. His period of commitment was to terminate on April 11, 2007. On February 5, 2007, counsel for the parties appeared for what the court called the “setting of a hearing under 1026.2.” The People filed a petition to extend defendant’s commitment pursuant to section 1026.5, subdivision (b), and the court set “the 1026.5 petition” for trial on April 3, 2007. The court granted defendant’s request to continue the trial to April 24, 2007. Defendant waived his right to a jury trial.
At the outset of the court trial on April 24, 2007, the court stated that “We’re convened in the matter of Michael Allen Morrow, which is a petition for extension of commitment.” In his opening statement, defense counsel submitted that defendant did not “pose a danger to the safety of others such that he should not be put on outpatient treatment.” After the evidence was presented, the court asked for argument from the district attorney, and defense counsel said, “Actually, the burden is on me in this case, Your Honor.” The court said, “That’s right,” allowed the defense to argue first, and counsel argued that defendant “should be released to outpatient [status].” After the deputy district attorney argued that “the defense has failed to meet its burden and that he should be recommitted,” the defense reiterated that defendant “should be released to supervised outpatient treatment.” Before the matter was submitted for decision, the deputy district attorney again maintained that the defense had not “overcome its burden.”
The “bottom line” for the court was “the conclusion of one, two—five different mental health professionals . . . that [defendant] still poses a substantial danger of physical harm to others because of [his] mental disease or disorder. [¶] . . . [¶] Therefore, the Court finds the defendant has not met his burden of proof. There will be an extension for a period of two years in the State hospital . . . .”
On April 26, 2007, the court filed its “Order for Extended Commitment (Penal Code § 1026/1206.5),” extending the commitment to April 24, 2009. On May 1, 2007, defendant filed a letter with the court, which we construe as a notice of appeal.
II.
Things got mixed up at trial because two separate petitions were before the court and different burdens of proof applied to the petitions the parties were advocating.
To extend defendant’s commitment under section 1026.5, the People were required to “show beyond a reasonable doubt that the patient is mentally ill and a physical danger to others.” (People v. Wilder (1995) 33 Cal.App.4th 90, 98.) The People were also required to prove that defendant has a serious difficulty controlling his potentially dangerous behavior. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159; People v. Galindo (2006) 142 Cal.App.4th 531, 536 (Galindo).) The transcript, however, shows that, when the court ruled on the People’s section 1026.5 petition, it believed that defendant had the burden of proof, and that it failed to consider whether defendant has a serious difficulty controlling his potentially dangerous behavior. Thus, as the People acknowledge, the section 1026.5 petition must be redetermined.
Defendant bore the burden on his section 1026.2 petition for transfer to outpatient status to prove by a preponderance of the evidence that he would not “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.” (§ 1026.2, subd. (e); see § 1026.2, subd. (k).) Contrary to the People’s argument, we find no ruling in the record on defendant’s section 1026.2 petition—the court never determined whether he would pose a threat under supervision and treatment in the community. As defendant correctly observes, granting the People’s section 1026.5 petition did not render his section 1026.2 petition moot. Even if the court were to extend defendant’s commitment under section 1026.5, it would be obliged to consider, on defendant’s section 1026.2 petition, whether he would be dangerous if supervised and treated in the community.
Defendant also correctly points out that the court mistakenly extended the commitment to a wrong date. The order purported to extend the commitment through April 24, 2009, but the previous commitment terminated on April 11 2007, so the new period of commitment can extend only to April 11, 2009. (§ 1026.5, subd. (b)(8).)
III.
The order for extended commitment is reversed. The trial court is directed, with respect to the section 1026.5 petition, to require the People to prove their case beyond a reasonable doubt, and to consider whether defendant has a serious difficulty controlling his potentially dangerous behavior (Galindo, supra, 142 Cal.App.4th 531), in addition to whether he poses a substantial danger of physical harm to others. If the section 1026.5 petition were granted, the court is directed to order an extended term ending on April 11, 2009; and the court should also consider and rule on defendant’s section 1026.2 petition.
We are not suggesting in any way how the trial court should decide the petitions.
We concur: Stein, J., Swager, J.