Appeal from a postjudgment order of the Superior Court of Orange County, John Conley, Judge. (Super. Ct. No. C94480)
The opinion of the court was delivered by: Ikola, J.
CERTIFIED FOR PUBLICATION
Appellant Jack Allan Gregerson, an involuntarily committed mentally disordered offender (MDO), appeals from an order declining to place him in outpatient treatment pursuant to Penal Code section 2972, subdivision (d). He asserts the court wrongly placed the burden of proof on him, and wrongly required him to show the appropriateness of outpatient treatment by a preponderance of the evidence.
We hold the patient bears the burden of proof on this issue, and the standard of proof is "reasonable cause," not preponderance of the evidence. The court shall order outpatient treatment if the patient raises a strong suspicion in a person of ordinary prudence that outpatient treatment would be safe and effective. The order is reviewed on appeal for substantial evidence.
Here, the court properly placed the burden of proof on appellant, but applied the higher preponderance standard of proof. But we need not remand for a new determination under the proper standard because the parties jointly represent that the court has since placed appellant in outpatient treatment. Accordingly, we will decide the briefed issues to clarify the law, but dismiss the appeal as moot.
Appellant was convicted of voluntary manslaughter in 1992. (See People v. Gregerson (June 28, 1994, G013494) [nonpub. opn.].) He was committed as an MDO in 2001. (See Pen. Code, § 2960 et seq.; MDO Act.)*fn1 His commitment was repeatedly continued by stipulation until November 2010.
The Orange County District Attorney filed a petition for recommitment in July 2010. At trial, appellant waived his right to a jury and stipulated he met the MDO criteria for a one-year extension. Trial ensued on whether appellant should receive outpatient treatment.
Appellant testified he suffered from paranoid schizophrenia, but claimed it was in remission because he had had no major symptoms in 20 years. He thought anger management was his most serious problem, along with mental illness, but he had addressed that through therapy. He admitted being an alcoholic who still needed to attend Alcoholics Anonymous, though he had not had any alcohol in 18 years. Appellant conceded stabbing a man to death in 1992 and acting violently before then: beating up his father, attacking bar patrons, punching a man at a bar, and hitting and kicking a 77-year-old man. He also conceded his parole was revoked twice for making violent threats, though he claimed one victim (his wife) lied about him threatening her. Appellant had been drinking during some of these incidents, and now knew alcohol triggered his paranoia and violence. He had developed coping strategies and a support system for handling the urge to drink. He knew he needed antipsychotic medication for the rest of his life, and agreed to take it.
Appellant's state hospital psychiatrist also testified. He reported appellant suffered from paranoid schizophrenia with alcohol dependency and personality disorder, which was not in remission. The psychiatrist concluded appellant could be safely treated in outpatient treatment, as appellant was reacting well to his antipsychotic medication and had an adequate relapse-prevention plan.
But the psychiatrist conceded "there's still work to be done to continue to improve [appellant's] insight." It had "been the case with [appellant] over time" that his "insight is not very good." "He hasn't fully demonstrated that he understands" "how his mental illness led to the controlling offense in the first place." Persons suffering from schizophrenia who lack sufficient insight "tend to stop the medications, and they might start using things like alcohol or drugs." Appellant had begun showing improved insight, but the progress was "recent" and "evolving."
Appellant still did not show sufficient "insight into the relationship between violence and his mental illness," according to his psychiatrist. It raises concerns if appellant "believes that anger is his biggest problem, rather than the mental illness," "because anger is not entirely the whole reason why he has had problems. It appears he is missing the role of mental illness. . . . That part of it is not fully grasped." "If he doesn't see the mental illness playing a big role in the offense, if he is just looking at anger alone, chances are that he might stop taking medications." And appellant still "talks a lot about the role of alcohol"; "when he puts blame on alcohol, and the sole reason, that tells [the psychiatrist] he doesn't fully understand how mental illness plays a role in the controlling offense." Moreover, appellant may not "fully grasp" that future alcohol abuse could induce him to stop his medication and relapse into psychosis and violence. "If he continues to use [alcohol] his judgment will be impaired. His psychosis, psychotic symptoms would deteriorate. He would generally decompensate. Manifest violent behavior. And he will be a danger to people."
The Orange County chief forensic psychologist testified about its conditional release program (CONREP). If appellant were placed at CONREP, he would spend his first 30 days "on lock down" at a "step-down facility" where he would receive treatment "very similar and akin" to a state hospital. He would remain at the facility for another 60 days, gradually "gaining a little bit more freedom." If appellant "does well there," he would be placed at "the most strict board and care" facility that would "administer him his medication at its appointed times." He would also go to a hospital for treatment from 8:00 a.m. to 3:00 p.m., five days a week, receive weekly individual therapy and group therapy sessions, and take announced and unannounced weekly drug screens. Appellant "would be required to follow the terms and conditions of CONREP," which would grant him various freedoms as he is able to handle them. After one year, CONREP would review his progress and determine the next step. At any point, CONREP could revoke outpatient treatment if appellant posed a danger to the community, failed a drug screen, or otherwise violated its terms and conditions.
The psychologist had met with appellant for more than 10 years and concluded he could be treated safely and effectively through CONREP. Although he previously lacked insight into his problems, in "the last two years" she had "seen a change in [appellant], in terms of insight into the crime, and the role his mental illness played, and the interaction of the mental illness with dangerousness." He now understood "so much . . . more about the interaction between his mental illness, substance abuse, and dangerousness," and recognized "the importance of full self-disclosure to CONREP." The psychologist was not concerned appellant thought he was in remission, because that "is a term that's thrown around a lot in a hospital" when someone is not exhibiting symptoms at the moment. And she thought it was appropriate for him to attribute some of his problems with violence to alcohol abuse and anger control issues. But she agreed appellant "could be potentially very dangerous" if he resumed drinking.*fn2
At the close of evidence, the court declared it was "very conflicted" about this case. It stated "everything looks very good" for appellant, but noted that in his "initial offense someone died." The court was concerned that "if a mistake is made, someone could die. That's what worries me." It observed that if appellant received outpatient treatment, "at some point he is going to have the ability to go down to 7-Eleven and get a six-pack."
After closing argument, the court declined to order outpatient treatment. The statutory scheme designated the fact finder "to be a kind of gatekeeper," tasked to apply "the sensitivity a jury or a judge would have about public safety." Thus, even though the court found the experts generally "believable" and "convincing," as "the gatekeeper" it had to ask whether it was "persuaded by ...