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Name: People v. Burroughs
Case #: B178524
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/16/2005

Penal Code section 2970 requires that a recommitment under the Mentally Disordered Offender law requires, among other findings, that the offender either not be in remission or not be able to be kept in remission without treatment. Penal Code section 2962(a) provides that a patient cannot be kept in remission without treatment if, during the year prior to the question coming before the Board of Prison Terms or the trial court, the offender has been physically violent except in self-defense. After the court here found that the patient was not an MDO within the meaning of this section because he was presently in remission, the People appealed, arguing that a finding that the patient had been violent within the past year automatically meant that he met the remission criterion of Penal Code section 2970. The patient argued that this created an impermissible mandatory presumption, but the court of appeal disagreed, finding that section 2962(a) simply defines in precise terms the conduct that will show that a patient cannot be kept in remission without treatment. Since the People proved that the patient had committed a violent act within the previous year, they established under the statute that he could not be kept in remission without treatment. No ultimate fact was presumed.