P. v. Agnew

 

 

 

 

 

 

 

 

 

Filed 6/24/13 
P. v. Agnew CA5

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,                           v.   JOHN CARL AGNEW,   Defendant and Appellant.

F064537   (Super. Ct. No. CF97907057)     >OPINION

 

THE COURThref="#_ftn1"
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            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County.  Edward Sarkisian, Jr.,
Judge.

            Rachel
Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric
L. Christoffersen and Julie A. Hokans, Deputy Attorneys General, for Plaintiff
and Respondent.

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            Defendant and appellant John Carl Agnew has been
committed as a mentally disordered offender (MDO) since 2004.  In this appeal, he contends the law
permitting his continued MDO commitment is based upon an unconstitutional
mandatory presumption.  We reject this
premise and affirm the order for a one-year extension of defendant’s commitment
for treatment.

FACTS AND PROCEDURAL HISTORY

            Defendant
committed assault with a firearm
(Pen. Code, § 245, subd. (a)(2)), for which he was imprisoned in
1997.  Upon his release on parole in
2004, defendant was committed as an MDO as a condition of parole.  (See Pen. Code, § 2962.)  Two years later, he was discharged from the
state hospital on the conditional release program.  While still participating in that program, he
assaulted his roommate on May 25, 2011, and was considered dangerous due to his
delusional condition.  His participation
in the conditional release program was revoked and he was recommitted to the
state hospital for treatment on June 28, 2011. 
Defendant’s period of parole apparently expired on May 25, 2012.  On November 1, 2011, the district attorney
filed a petition to extend defendant’s commitment for treatment for a year
beyond the expiration of parole.  The
petition was tried to a jury in March 2012, and by verdict rendered on March 7,
2012, the jury found true the allegations of the petition.  On March 19, 2012, the court entered its order
on the verdict, extending defendant’s commitment for one year, to May 25,
2013. 

DISCUSSION

            Penal Code
section 2962 requires in-patient mental health treatment of some persons as a
condition of parole.  Among other
criteria for mandatory treatment, the parolee must have “a severe mental
disorder that is not in remission or cannot be kept in remission without
treatment.”  (Id., subd. (a)(1).) 
(Additional criteria must be satisfied before a parolee may be treated
as an MDO, including a requirement that the person’s mental disorder was one of
the causes of or was an aggravating factor in the parolee’s underlying
crime.  (See id., subd. (b); see also id.,
subd. (c).)  Those additional criteria
are not involved in the present appeal.) 
The statute states that a person’s mental disorder “cannot be kept in
remission without treatment” “if during the year prior to the question being
before the … trial court … he or she has been physically violent, except in
self-defense, or he or she has made a serious threat of substantial physical
harm upon the person of another … or he or she has intentionally caused
property damage, or he or she has not voluntarily followed the treatment
plan.”  (Id., subd. (a)(3).) 

            As the end
of a parolee’s period of parole approaches, if that person’s severe mental
illness is not in remission or cannot be kept in remission without treatment,
the medical director of the state hospital treating the parolee must notify the
district attorney concerning the parolee’s mental health.  (Pen. Code, § 2970.)  If, upon the petition of the district
attorney, “the court or jury finds that the patient has a severe mental
disorder, that the patient’s severe mental disorder is not in remission or
cannot be kept in remission without treatment, and that by reason of his or her
severe mental disorder, the patient represents a substantial danger of physical
harm to others, the court shall order the patient recommitted … [for] one year
from the date of termination of parole or a previous commitment ….”  (Id.,
§ 2972, subd. (c).)  Thus, one of
the conditions necessary for extension of MDO commitment beyond the date of a
person’s termination of parole is that the person’s severe mental illness is
not in remission or “cannot be kept in remission.”  The latter condition can be met, among other
alternatives, by proof beyond a reasonable doubt (id., subd. (a)) that the person “has been physically violent,
except in self-defense” (id.,
§ 2962, subd. (a)(3)).  Defendant
contends this statutory definition that a mental disorder “cannot be kept in
remission without treatment” establishes a mandatory conclusive presumption, in
violation of his right to due process of law. 


            As
defendant recognizes, his argument was rejected in People v. Burroughs (2005) 131 Cal.App.4th 1401, 1405-1406.  Burroughs
was cited with approval by this court in People v. Hernandez (2011) 201 Cal.App.4th 483, 489, and by other
appellate districts in People v. Nelson
(2012) 209 Cal.App.4th 698, 706, and People
v. Fisher (2006) 136 Cal.App.4th 76, 78, footnote 2, although these three
cases dealt with somewhat different attacks on the statute.  Burroughs
held that the statutory conditions for determining whether a mental disorder
“cannot be kept in remission without treatment” did not constitute an unconstitutional
evidentiary presumption but, instead, constituted the substantive definition of
the statutory phrase.  “A conclusive
presumption that operates as a rule of substantive law does not violate due
process by lessening the burden of proof.” 
(People v. Burroughs, supra, 131
Cal.App.4th at p. 1406, citing People v.
McCall (2004) 32 Cal.4th 175, 185-186.)

            Defendant
relies on the dissenting opinion in People
v. Burroughs, supra, 131 Cal.App.4th at page 1408 (dis. opn. of Yegan,
J.).  We have examined that opinion and
do not find it persuasive.  Defendant and
the Burroughs dissent contend the
statutory definition of “cannot be kept in remission” impermissibly forecloses
a patient from showing that, even though he was not in remission at an earlier
time, his or her disorder is in remission at the present time.  That issue, however, is still available to a
patient contesting an extension of an MDO commitment, in the third and separate
requirement that the commitment can be extended only if “by reason of his or
her severe mental disorder, the patient represents a substantial danger of
physical harm to others.”  (Pen. Code,
§ 2972, subd. (c); see People v.
Burroughs, supra, 131 Cal.App.4th at pp. 1407-1408.)  That requirement of present dangerousness,
and the absence of any statutory presumption that assists the district attorney
in establishing that requirement beyond a reasonable doubt, fully protects a
patient’s due process right to commitment only upon a showing that he or she
“cannot safely reenter society.”  (>Burroughs, at p. 1408.)

DISPOSITION

            The March
19, 2012, order for extension of commitment is affirmed.