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Name: People v. Endsley
Case #: E068576
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/10/2018

Denial of NGI defendant’s petition for conditional release reversed where trial court improperly denied his request to testify by telephone. In 1997, Endsley was committed to a state hospital after being found not guilty of the murder of his father by reason of insanity (NGI). He petitioned for release (Pen. Code, § 1026.2), and requested to testify remotely via telephone so he would not be confined in jail and appointment of an independent expert. The trial court denied his requests and the petition. He appealed. Held: Reversed. There are two ways an NGI may be released from commitment: (1) upon expiration of the longest term of imprisonment which could have been imposed for the offense; and (2) upon a finding their sanity has been restored and they no longer pose a danger to others if released. Obtaining a restoration of sanity release requires the NGI be approved for and complete a year of outpatient treatment (“outpatient placement hearing”) and then a restoration of sanity trial. Pending hearing, an NGI petitioner may be detained in jail only if the jail can continue his treatment program. It is the trial court’s responsibility to designate a therapeutic confinement facility prior to the hearing. The trial court here demonstrated it was unaware of section 1026.2’s requirement to house Endsley in a therapeutic setting. On remand, the trial court must oversee the designation of an appropriate facility; only then, if Endlsey continues to refuse to testify in person, will he be deemed to have knowingly waived his rights to appear and testify.

Petitioner had a right to appointment of an independent expert to assist him with his section 1026.2 petition. In People v. McKee (2010) 47 Cal.4th 1172, the court interpreted the statute governing the release of SVPs from involuntary commitment to mandate appointment of an expert for an indigent SVP who petitions for release. The court noted the due process implications of placing the burden on the detainee to disprove future dangerousness, and then denying access to an expert because of indigence. After McKee, the Legislature amended the SVP statute to explicitly provide for appointment of an expert. (Welf. & Inst. Code, § 6608, subd. (g).) The due process concerns expressed in McKee also apply to NGIs seeking conditional release. They too are involuntarily confined based on expert opinion regarding their future dangerousness, and have the burden when petitioning for release. Therefore, section 1026.2 must be interpreted to require appointment of an expert for a petitioning NGI who requests one.

The full opinion is available on the court’s website here: