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Name: People v. May
Case #: A116768
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 09/19/2007

Under Penal Code section 2962, a defendant qualifies as an MDO (Mentally Disordered Offender) if certain criteria are established. MDO defendants who have committed specified violent crimes may be required to submit to treatment as a condition of release on parole. The treatment must be inpatient unless the State Department of Mental Health certifies to the Board of Prison Terms that there is reasonable cause to believe the parolee can be safely and effectively treated on an outpatient basis. Following termination of parole, an involuntary commitment may be continued pursuant to the provisions of section 2970, with section 2972 setting forth the procedures to be followed. Under subdivision (d) of section 2972, in an involuntary commitment proceeding, the trial court is not required to obtain a certification from the Department of Health as to whether the MDO can be safely and effectively treated on an outpatient status. If the court makes the requisite finding that the person can be safely and effectively treated on outpatient status, it may release a civilly committed MDO for outpatient treatment at a recommitment hearing without having to engage in a formal process of soliciting recommendations and treatment plans. Here, May was involuntarily committed to the Department of Mental Health as an MDO. The district attorney thereafter filed a petition to extend the involuntary treatment. At the hearing, the only witness who testified was the treating psychiatrist at Atascadero State Hospital who testified that although May still had difficulties and was not in remission, he was “in fairly good shape” and had earned an opportunity for community placement. Believing that under section 2972 it did not have the discretion to release May to outpatient status and that such release had to start with the Department of Mental Health and Board of Prison Terms, the court recommitted May to Atascadero State Hospital for a year. The appellate court affirmed the order extending the commitment for one year but remanded for the trial court to consider the issue of outpatient treatment.