Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR993465.
Marchiano, P.J.
Defendant Matthew Paul Scheidt was found not guilty by reason of insanity and committed to a state mental hospital. Defendant petitioned for restoration of sanity under Penal Code section 1026.2. Thereafter, his outpatient status was revoked under section 1608. He appeals from an order revoking his outpatient status under Penal Code section 1608. He contends that the revocation standards of section 1608 deprived him of due process of law. We find no due process violation and affirm.
Subsequent statutory references are to the Penal Code.
I. FACTS
In March 2001, the trial court found that defendant was not guilty by reason of insanity (NGI) of kidnapping a child under 14 years of age (Pen. Code, §§ 207, 208, subd. (b)), and transporting or distributing more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)). The offenses occurred when defendant tried to kidnap an 11-year-old girl from a campground where she was staying with her family. When arrested, defendant possessed over two pounds of marijuana, stolen property, two lengths of ¼” rope, and a magazine entitled “Barely Legal.”
On June 4, 2001, the court committed defendant to Atascadero State Hospital. At some point, he was transferred to Napa State Hospital.
Defendant petitioned for restoration of sanity (§ 1026.2), presumably in early 2006. On April 10, 2006, after a hearing and pursuant to stipulation, defendant was ordered released on outpatient status pursuant to section 1026.2, subdivision (e). He was to be supervised by the Conditional Release Program (CONREP).
On June 8, 2006, before defendant was actually released, Dr. Mark Grabau, CONREP’s Community Program Director, sent a letter to the court requesting revocation of defendant’s outpatient status pursuant to section 1608. Grabau told the court that defendant had tested positive for opiates in May. As a result, Grabau interviewed defendant on May 25, 2006 “to assess his attitude about his use, and to ascertain if [defendant’s] substance abuse recovery skills are sufficient to allow for a safe and effective continuation of treatment in a community setting, i.e., CONREP.”
Grabau wrote: “After a record review, consultation with his treatment providers, and with his treating psychiatrist[,] I must advise the court that the answer is a resounding and unanimous no.” Defendant denied substance abuse, and claimed his positive drug test was caused by his consuming—in the controlled culinary environment of a state mental hospital—an entire poppy seed cake. He also had a “cavalier attitude” about his need for further sex offender treatment. Grabau recommended that defendant be retained in the hospital for additional inpatient care.
After a hearing, at which defendant was represented by counsel, the trial court granted Dr. Grabau’s request and revoked defendant’s outpatient status. The court found that “there is an unreasonable risk to the community if [defendant is] placed in out-patient status.”
II. DISCUSSION
Defendant contends that it violates due process to apply the revocation standards of section 1608 to an NGI defendant released as an outpatient under section 1026.2. Specifically, he argues that section 1026.2 outpatient status may not be constitutionally revoked absent a determination of dangerousness. We disagree.
Defendant correctly notes that there are two ways for an NGI defendant to be released as an outpatient. First, the defendant may be released under sections 1600 et seq., if it is determined that the defendant will benefit from outpatient status. (§ 1603, subd. (a)(2).) Second, a defendant may be released under section 1026.2, subdivision (e) as the initial component of proceedings to determine restoration of sanity. (See People v. Sword (1994) 29 Cal.App.4th 614, 620-621 (Sword).) Release under either scheme requires a determination that the defendant would not be “a danger to the health and safety of others” “while under supervision and treatment in the community.” (§§ 1026.2, subd. (e), 1603, subd. (a)(1).)
Likewise, defendant correctly notes that outpatient status may be revoked in two ways. First, the status may be revoked under section 1608 at the request of the outpatient treatment supervisor if the outpatient “requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision.” Second, outpatient status may be revoked at the request of the prosecutor under section 1609, based on the prosecutor’s opinion that the outpatient is a danger to the health and safety of others.
Unlike section 1609, section 1608 does not require a showing of dangerousness. It focuses on the treatment of the outpatient, while section 1609 is concerned with the safety of the community. (See People v. DeGuzman (1995) 33 Cal.App.4th 414, 419-420; In re McPherson (1985) 176 Cal.App.3d 332, 339-340.)
Although the plain terms of section 1608 do not require a showing of dangerousness, defendant argues that such a showing is constitutionally mandated in the case of a defendant released on outpatient status under section 1026.2, subdivision (e). He relies on various cases which recognize that the Constitution requires a showing of dangerousness for civil commitment of the mentally ill, and that continued confinement of a patient in a mental hospital requires both current mental illness and dangerousness. (See, e.g., Kansas v. Hendricks (1997) 521 U.S. 346, 357-358; Foucha v. Louisiana (1992) 504 U.S. 71, 75-77 (Foucha).) As we understand his argument, he contends that a determination of lack of dangerousness under section 1026.2, subdivision (e) constitutionally mandates release—and that outpatient status may not be revoked under section 1608 absent a showing of dangerousness.
There are three flaws in this argument. First, although section 1608 does not require a finding of dangerousness, the trial court made one in this case. The court found that “there is an unreasonable risk to the community if [defendant is] placed in out-patient status.” Therefore, defendant’s constitutional argument is moot.
Second, section 1026.2 contemplates the application of section 1608, by making that statute specifically applicable to subdivision (e) outpatient release. (§ 1026.2, subd. (g).)
Third, there is no constitutional impediment to the application of section 1608 to section 1026.2, subdivision (e). In the case of an NGI defendant, the finding of dangerousness is implicit in the initial NGI determination, and is dispelled by a finding under section 1026.2 that “sanity has been restored, which means the [defendant] is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.” (§ 1026.2, subd. (e); see In re Locks (2000) 79 Cal.App.4th 890, 897.) In other words, the NGI determination is sufficient evidence that the defendant is dangerous, and dangerousness is dispelled by the ultimate finding of restoration of sanity. This passes constitutional muster. (Sword, supra, 29 Cal.App.4th at pp. 622-624.)
Defendant confuses the constitutional conditions for continued confinement, as opposed to outright release, with the conditions of supervised release. A determination under section 1026.2, subdivision (e) that a defendant would not be dangerous while under supervision—i.e., with considerable restrictions on his liberty—is not the same as a determination that a defendant is no longer a danger if released outright. The latter determination, coupled with a lack of current mental illness, would constitutionally mandate release. A section 1026.2, subdivision (e) determination merely permits the defendant to be released under supervision as a component of proceedings to restore sanity.
We noted in People v. Beck (1996) 47 Cal.App.4th 1676, 1682 (Beck) that Foucha did “not directly govern” section 1026.2, subdivision (e) outpatient release. We noted that Foucha involved the constitutionality of indefinite detention in a mental hospital, while section 1026.2 posits a one-year period of outpatient treatment, in a condition of restricted liberty, for a careful evaluation of an NGI defendant before outright release into society. (Beck, supra, at pp. 1682-1683.) We upheld the constitutionality of the section 1026.2 procedure, in no small part because the initial determination of dangerous in the NGI verdict “justifies the state in exercising great care in evaluating the offender prior to release into the community.” (Beck, supra, at p. 1684.)
III. DISPOSITION
The order revoking defendant’s outpatient status is affirmed.
We concur: Swager, J., Margulies, J.