(Los Angeles County Super. Ct. No. ZM016006) ORIGINAL PROCEEDINGS; petition for writ of mandate. Maria E. Stratton, Judge. Petition granted.
The opinion of the court was delivered by: Jackson, J.
CERTIFIED FOR PUBLICATION
Real party in interest George Bradie Salter, Jr., (Salter) pled no contest to attempted murder (Pen. Code,*fn1 §§ 187, 664) based upon his actions in kidnapping his girlfriend, stabbing her in the face and cutting her throat. He was sentenced to prison for 10 years and was paroled in 2007. In 2008, Salter was returned to prison for a parole violation after exposing himself to two teenage girls. While in prison, he was identified as a potential mentally disordered offender (MDO) and sent to Atascadero State Hospital (Atascadero). Based upon the recommendation of Atascadero's medical director, the People filed a petition for involuntary treatment (§ 2970), seeking to extend Salter's commitment. Salter successfully moved to dismiss the People's petition after another doctor at Atascadero recommended against continued commitment.
We are now called upon to determine whether the trial court erred in granting Salter's motion to dismiss the People's petition for involuntary treatment. We conclude the trial court erred and therefore grant the People's petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2010, while Salter was confined at Atascadero, Dr. Robert Knapp, the hospital's medical director, asked the district attorney to extend Salter's civil commitment. On May 24, in response to Dr. Knapp's request, the People filed a petition for involuntary treatment pursuant to section 2970. On June 8, Salter was arraigned on the petition and two experts were appointed to evaluate him. Dr. Kory Knapke submitted a report on August 1, stating that Salter did not qualify for involuntary treatment. Dr. Mark Jaffe submitted a report on August 18, indicating that Salter did qualify for involuntary treatment. On August 27, Dr. Jean-Joseph Dansereau, the acting medical director at Atascadero, reported that Salter was re-evaluated on August 24 and recommended against civil commitment. Dr. Dansereau specified that this reflected "a change in our recommendation."
At the pretrial hearing on September 3, 2010, Salter's attorney made an oral motion to dismiss the People's petition for involuntary treatment based on Dr. Dansereau's changed recommendation. On September 8, the trial court granted Salter's motion, dismissed the People's petition and ordered Salter released from involuntary treatment. This court stayed Salter's release pending disposition of this proceeding or further order of the court.
The MDO Act (§ 2960 et seq.) was enacted "to protect the public from dangerously mentally disordered criminal offenders." (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 830.) It "requires certain mentally disordered prisoners who have committed specifically identified violent crimes to submit to continued mental health treatment . . . ." (Ibid.; accord, § 2962.)
The determination that an individual requires treatment as an MDO is governed by six criteria enunciated in section 2962. Such treatment is warranted if the prisoner "(1) has a severe mental disorder; (2) used force or violence in committing the underlying offense; (3) had a disorder which caused or was an aggravating factor in committing the offense; (4) the disorder is not in remission or capable of being kept in remission absent treatment; (5) the prisoner was treated for the disorder for at least 90 days in the year before being paroled; and (6) because of the disorder, the prisoner poses a serious threat of physical harm to other people." (People v. Clark (2000) 82 Cal.App.4th 1072, 1075-1076.) Treatment is inpatient unless the State Department of Mental Health agrees to treat the prisoner on an outpatient basis. (§ 2964; People v. Superior Court (Myers), supra, 50 Cal.App.4th at p. 831.) If the prisoner's severe mental disorder can be put into and kept in remission, treatment must be discontinued. (§ 2968; Myers, supra, at p. 831.) If not, the extension provisions of section 2970 come into play. (Myers, supra, at p. 831.)
Under section 2970, "if the prisoner's severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee . . . shall submit to the district attorney of the county in which the parolee is receiving outpatient treatment, or for those in prison or in a state mental hospital, the district attorney of the county of commitment, his or her written evaluation on remission." The evaluation must be submitted to the district attorney "[n]ot later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole as required by Section 2962." After receipt of the evaluation, "[t]he district attorney may then file a petition with the superior court for continued involuntary treatment for one year." (§ 2970.) Among other things, the petition shall "specify that the prisoner has a severe mental disorder, that the severe mental disorder is not in remission or cannot be kept in remission if the person's treatment is not continued, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others." (Ibid.)
Section 2972 requires the court to conduct a hearing on the petition for continued treatment filed pursuant to section 2970. Recommitment must be ordered if the court or a jury finds "(1) that the [prisoner] has a severe mental disorder; (2) that the disorder is not in remission or cannot be kept in remission without treatment; and (3) that the [prisoner] represents a substantial danger of physical harm to others by reason of the disorder. (§ 2972, subd. (c).)" (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2.) The patient must be "recommitted to the facility in which the patient was confined at the time the petition was filed, or recommitted to the outpatient program in which he or she was being treated at the time the petition was filed, or committed to the State Department of Mental Health if the person was in prison. The ...