Michael M. Duffy, Judge Superior Court County of San Luis Obispo (Super. Ct. No. F462735)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
Here we hold that treatment at a parole outpatient clinic (POC), as "specified" by the California Department of Mental Health (DMH), satisfies the 90-day treatment criterion for an MDO commitment. (Pen Code, §§ 2962, subd. (c); 2964, subd. (a); Cal. Code Regs., tit. 15, § 2570, subd. (f).)*fn1 Steven Achrem appeals from the judgment entered after the trial court determined he was a mentally disordered offender (MDO).*fn2 Appellant claims that he did not receive 90 days of treatment within a year of his parole or release date as required by section 2962, subdivision (c). We affirm and disapprove People v. Del Valle (2002) 100 Cal.App.4th 88 (Del Valle) and People v. Martin (2005) 127 Cal.App.4th 970 (Martin)where, in dicta, we stated that outpatient treatment cannot satisfy the 90-day treatment requirement of the MDO Act. (Pen. Code, § 2962, subd. (c))
Appellant suffers from schizophrenia, a severe mental disorder, and was convicted of manslaughter (§ 192, subd. (a)) and sentenced to 11 years state prison in 2000. After he was released on parole, he received treatment for 90 days (April 13, 2010 to July 12, 2010) at a POC. Appellant violated parole and was returned to prison on February 8, 2011, where he received 73 days treatment in an enhanced outpatient program (EOP). This treament occurred all before his April 23, 2011 parole release date.
On July 15, 2011, the Board of Prison Terms (now known as Board of Parole Hearings (BPH)) certified appellant as an MDO for treatment at Atascadero State Hospital (ASH). Appellant filed a petition challenging the MDO certification and waived jury trial. (§ 2966, subd. (b).)
At trial, Joe Debruin, a forensic psychologist at ASH, opined that appellant met all the MDO criteria except criteria five: i.e., that appellant receive 90 days of treatment within a year of his April 23, 2011 parole or release date. Although appellant received EOP treatment (73 days) in prison, Doctor Debruin opined that appellant did not receive 90 days of outpatient treatment because a POC is "not affiliated" with DMH. Doctor Debruin explained it is "standard practice" in the ASH forensic department not to count POC treatment.
Citing Del Valle, supra, and Martin, supra, appellant agued that POC treatment does not count because "[i]t's not inpatient treatment; never has been; never will be; [it] is not treatment that is planned, approved and implemented through the C.D.C. [California Department of Corrections] by the D.M.H. [Department of Mental Health] and that's the requirement if it's outpatient. . . . It doesn't qualify."
90-Day Treatment Requirement
Section 2962, subdivision (c) of the MDO Act requires the trial court find that "[t]he prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole or release." Literally construed, a "prisoner" is not a parolee and outpatient treatment (i.e., treatment out of custody) could never satisfy the 90-day treatment requirement. Like any other statute, the statutory language should not be given a literal meaning if it would result in absurd consequences that the Legislature did not intend. (Younger v. Superior Court (1978) 21 Cal.3d 102, 113.)
The confusion concerning what qualifies as "treatment" stems from the dicta in Del Valle where we stated that "a prisoner must receive 90 days of inpatient treatment before he can qualify as an MDO." (Del Valle, supra, 100 Cal.App.4th at p. 93.) There, the defendant received 85 days treatment while in prison and five days outpatient treatment before his incarceration on the commitment offense. (Id., at pp. 90, 92.) We held that private outpatient treatment did not fulfill the 90-day requirement. The reason was straightforward: outpatient treatment does not count if it is in a private clinic before defendant starts serving his/her prison sentence. The result in Del Valle was right but the dicta, i.e., "that a prisoner must receive 90 days of inpatient treatment before he can qualify as an MDO" was misleading in that it suggests that outpatient treatment cannot satisfy the 90 day statutory requirement. (Id. at p. 93, italics added.)
We also disapprove Martin, supra, where we held that in-custody treatment at jail before the defendant is convicted of the commitment offense counts as "inpatient" treatment. (Id., at pp. 974-975 [treatment commenced on date of arrest].) Treatment before a defendant is convicted of the commitment offense cannot satisfy the 90-day treatment criterion because the defendant is not a "prisoner" when the treatment is provided. That a defendant receives presentence custody credits does not mean that in-custody ...