Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 070383
MORRISON, J.
In 1981, defendant was found not guilty by reason of insanity of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) After defendant was evaluated by a doctor, the trial court found defendant’s sanity had been restored and ordered him to outpatient treatment. In 1985, defendant’s outpatient status was revoked and he was committed to Atascadero State Hospital. He was eventually transferred to Napa State Hospital and his commitment was extended several times. Defendant appeals from the 2005 order extending his commitment for two years.
Defendant contends the minute order from 1981 shows the trial court found him restored to sanity and thus the court lost jurisdiction to confine him to a mental hospital. He contends this claim of lack of jurisdiction may be raised at any time and now requires his immediate release. He further contends that if the trial court properly placed him on outpatient treatment in 1981, that commitment expired after one year and the court lost jurisdiction at that point. Finally, he contends the 2005 order extending his commitment is not supported by substantial evidence that he posed a substantial danger of physical harm to others.
We find no merit in these contentions and affirm. To release an insanity acquittee before he has been committed, the trial court must find his sanity “has been recovered fully.” (Pen. Code, § 1026, subd. (a).) This standard is far more stringent than a finding of restoration to sanity after commitment; an insanity acquittee’s sanity is recovered fully only where he is not dangerous without treatment or medication. The trial court did not make that finding here. The court did not lose jurisdiction over defendant during his outpatient treatment and substantial evidence supports the extension of commitment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1979, defendant fired a rifle at his neighbor. The bullet “whizzed past” the neighbor’s head. Defendant was charged with assault with a deadly weapon while armed with a 30-30 rifle.
Defendant was twice found incompetent to stand trial and committed to the state hospital. In April 1981, Atascadero State Hospital certified that defendant was sane for purposes of standing trial pursuant to Penal Code section 1372.
Defendant withdrew his previous plea of not guilty and entered a plea of not guilty by reason of insanity. The court found defendant not guilty by reason of insanity and ordered Dr. Gerald Maguire to examine defendant pursuant to Penal Code section 1026, and determine if defendant was a menace to the health and safety of others and should be required to undergo outpatient treatment or be committed to a state hospital.
In July 1981, following Dr. Mcguire’s examination, the court found defendant’s sanity restored and ordered defendant to be treated as an outpatient. About six months later, the district attorney petitioned for a hearing to review defendant’s outpatient status, declaring defendant was a danger to the health and safety of others. The matter was dropped after defendant agreed to take his medication.
In June 1983, Butte County Mental Health questioned the district attorney about the status of the July 1981 order and whether periodic reports were required. Defendant continued to refuse to sign consent forms for his treatment and claimed it was against his will. Nonetheless, he had grudgingly cooperated with treatment for two years. The trial court ruled the July 1981 order was still valid.
In 1984, the People petitioned to revoke defendant’s outpatient status. A sheriff’s officer found defendant trying to break into a bar at 4:47 a.m. on March 11, 1984. He was uncooperative, had a knife, and punched an officer. After receiving testimony and reports from two doctors, the court ordered defendant restored to outpatient status for one year.
Another petition to revoke defendant’s outpatient status was filed in 1985. Defendant had been assaultive with his wife and threatened to kill her. He had refused treatment several times and had been caught stealing and drinking beer. Another patient had left the facility without leave because defendant threatened him with a knife. Defendant attended classes less than 30 percent of the time and was belligerent, uncooperative and threatening. Defendant’s outpatient status was revoked and he was committed to the Atascadero State Hospital.
Defendant’s commitment was extended in two-year increments in 1987, 1989, and 1991. In 1992, he was transferred to Napa State Hospital. His commitment was extended in 1993, 1995, 1997, 1999, and 2001. In 2003, his commitment was extended by agreement.
In 2005, the People petitioned again to extend defendant’s commitment on the grounds that by reason of his mental disease, defect or disorder, he represented a substantial danger of physical harm to others. Defendant waived his right to be present and to a jury trial.
The sole witness at the hearing was Steven Surtshin, defendant’s attending physician and a staff psychiatrist at Napa State Hospital. Surtshin testified defendant had a long history of psychiatric and behavioral illness, but had made significant improvement in the last few years. He believed the mood stabilizing drug tegretol accounted for the improvement.
Defendant’s current diagnosis was schizophrenic disorder, bipolar type. He also suffered from polydipsia, a rare watering intoxication problem; his brain fooled him into believing he needed more water so he would consume water to excess and develop severe medical and behavioral aberrations. Once he had a seizure. Defendant’s desire to consume water was so great, he would consume from inappropriate sources such as the toilet. When defendant drank from a toilet, he was now embarrassed rather than defensive about his behavior. The effect of excessive consumption of water was that defendant stayed up all night and was nasty and cursed. He would refuse meals so he could consume more water and refuse to be weighed. Previously, he had been placed in a water intoxication unit where his consumption was monitored. He had recently been returned to the main unit, but was still closely monitored; he was weighed hourly. The polydipsia and the irritability it caused compounded defendant’s other psychiatric problems.
Dr. Surtshin believed defendant was not yet able to be appropriately and safely managed as an outpatient. He needed to develop a written relapse prevention plan. A mental health patient needed to understand the nature of his mental illness, what makes it worse, and how to respond. He needed to be aware of sources of help to nip exacerbations in the bud. Defendant had not started his relapse prevention plan; he had not yet put anything on paper. He was still struggling with basic insight into his mental illness and had no clear idea what makes it worse or better. The written plan was important because it made everything, such as whom to call for help and how to reach them, much more specific for the patient.
Defendant had a serious problem with alcohol and marijuana in the past and needed to deal with that before he could be discharged. Dr. Surtshin testified that if defendant started using alcohol or marijuana again, “all bets would be off” concerning any assurance of public safety.
Defendant had an inconsistent willingness to take oral medications. Accordingly, he was given Haldol by injection. Dr. Surtshin testified the staff liked him, but defendant could be “ornery and stubborn” at times. He was resistant to taking a newer generation antipsychotic drug that the doctor believed would help him.
Defendant was often angry and irritable; there were no incidents of battery recently, but defendant did occasionally “get up in your face.” Previously, he had been a “holy terror,” but had improved in recent years. Defendant even stepped in “and physically intervened in a very appropriate manner” when another patient seriously tried to assault a staff member. Defendant’s last battery was in 2003, when he struck a peer who was badgering him for cigarettes. Nurses still said defendant was sometimes hostile and threatening.
Dr. Surtshin testified defendant still represented a substantial danger if not locked up. He was inconsistent in taking his treatment and was argumentative with staff. If on the outside, Surtshin believed defendant would soon consume water to excess and likely start using alcohol and marijuana again. With his long history of very violent behavior, public safety could not be assured.
The trial court found defendant still posed a substantial danger and ordered his commitment extended.
DISCUSSION
I. 1981 Order Finding Defendant’s Sanity Restored
Defendant contends the trial court found his sanity restored in 1981 and therefore lost jurisdiction over him at that time. Because his claim goes to the fundamental jurisdiction of the court, defendant asserts, it can be raised at any time and he has not forfeited the claim by failing to raise it before, nor does laches or estoppel preclude it. He contends he must be released.
After the court found defendant not guilty by reason of insanity, it ordered Dr. Mcguire to examine him pursuant to Penal Code section 1026 to determine “whether the defendant is a menace to the health and safety of others” and whether he should be committed to a state hospital or undergo outpatient treatment. One week later the court issued a minute order. Defendant’s contention that the court has no jurisdiction over him is based on that July 1981 order.
The July 1981 minute order reads as follows: “Matter is submitted on the doctor’s reports and recommendations. [¶] Based upon the report of Dr. Mcguire dated July 8, 1981, which is received into evidence at this time, the Court finds that the defendant’s sanity has been restored. The Court will follow the recommendation of Dr. Mcguire and order that the defendant be treated as an out-patient, live with a responsible adult, and take his recommended treatment as prescribed by Mental Health. Defendant is further ordered to mind his parents and comply with the orders of the Court. [¶] Defendant is remanded into the custody of the Sheriff pending processing for release.” (Italics added.)
The record contains no other documents from this period. Medical records, including Dr. Mcguire’s report, cannot be located. All notes of the hearing have been destroyed pursuant to Government Code section 69955, subdivision (e) [permitting destruction of court reporter’s notes after 10 years in criminal cases].
Before we discuss the effect of this order, we briefly review the proper procedures upon a finding of not guilty by reason of insanity. Penal Code section 1026 governs disposition of a defendant found not guilty by reason of insanity. As it read in 1981, Penal Code section 1026, subdivision (a) provided: “If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility approved by the county mental health director, or the court may order the defendant placed on outpatient status . . . .” (Stats. 1980, ch. 547, § 1, pp. 1504-1505, italics added.)
Prior to making such an order, the court shall order defendant evaluated by county mental health and receive a written recommendation of appropriate placement. (Pen. Code, § 1026, subd. (b); Stats. 1980, ch. 547, § 1, p. 1505.) “If, however, it shall appear to the court that the sanity of the defendant has been recovered fully, such defendant shall be remanded to the custody of the sheriff until the issue of sanity shall have been finally determined in the manner prescribed by law. A defendant committed to a state hospital or other treatment facility or placed on outpatient status . . . shall not be released from confinement, parole, or outpatient status unless and until the court which committed the person shall, after notice and hearing, find and determine that the person’s sanity has been restored.” (Ibid., italics added.)
Effective 1981, a court’s ability to place an insanity acquittee on outpatient status was curtailed in certain circumstances. New Penal Code section 1601, subdivision (a) provided that a person found not guilty by reason of insanity of “any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person,” could not be placed on outpatient status until he had been confined in a state hospital or other facility for 90 days or more after commitment. (Stats. 1980, ch. 547, § 17, p. 1518.) Since defendant’s crime was assault with a firearm, certainly an act which poses a threat of bodily harm to another, he should have been confined to a state hospital for at least 90 days if the court found his sanity had not been fully recovered.
If the court finds the insanity acquittee’s sanity has been “recovered fully,” Penal Code section 1026, subdivision (b) provides the defendant “shall be remanded to the custody of the sheriff until the issue of sanity shall have been finally determined in the manner prescribed by law.” (Stats. 1980, ch. 547, § 1, p. 1505.) “As judicially interpreted, this clause requires a preliminary judicial finding on the score of recovery; an affirmative finding is followed by proceedings of involuntary civil commitment under the Lanterman-Petris-Short Act (LPS; Welf. & Inst. Code, § 5000 et seq.; [citations].) According to LPS, the subject may be detained for 72 hours in a treatment and evaluation facility approved by the State Department of Health. Under some circumstances he may be detained for an additional 14 days of intensive treatment; may be detained for an additional 90 days only if he has threatened or inflicted physical harm on another. [Citations.]” (In re Lee (1978) 78 Cal.App.3d 753, 756-757.)
Thus, there were two possible courses of action following defendant’s acquittal by reason of insanity. If it appeared to the court that defendant’s sanity had been recovered fully, defendant was to be released, subject to civil commitment proceedings. If it did not appear defendant’s sanity had been recovered fully, he had to be committed to a state hospital for at least 90 days. Thereafter, the court had discretion to determine whether commitment or outpatient treatment was more appropriate.
The July 1981 order, however, did not follow either of these two options. Instead, it found defendant’s sanity restored and ordered outpatient treatment. As we explain, a finding of restoration of sanity was not appropriate at this time; such a finding is appropriate only after defendant has been committed. Further, a finding of restoration of sanity cannot be the equivalent of a finding that sanity has been recovered fully because the standards are different.
An insanity acquittee may be released prior to commitment only upon a finding that his sanity has been recovered fully. (Pen. Code, § 1026, subd. (a).) In contrast, an insanity acquittee may be released after commitment upon a finding his sanity has been restored. (Id., subd. (b); § 1026.2.) “When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning.” (People v. Trevino (2001) 26 Cal.4th 237, 242.) There is a difference between recovered fully and restored.
“[T]hree distinct standards apply in the commitment and release of a person acquitted by reason of insanity. The person is committed if ‘any mental illness is present,’ then placed in a local mental health program ‘if no longer dangerous while in treatment,’ and finally restored to sanity ‘if no longer dangerous.’” (People v. Williams (1988) 198 Cal.App.3d 1476, 1480.) The no longer dangerous standard for restoration to sanity “is far less stringent” than full recovery of sanity under Penal Code section 1026. (Ibid.)
The primary difference between the two standards is whether the effect of treatment and medication may be considered in making the determination. If there is a continuing need for treatment or medication, sanity is not recovered fully. (People v. De Anda (1980) 114 Cal.App.3d 480, 490.) In De Anda, defendant was found not guilty by reason of insanity of assault with intent to commit murder. The trial court then requested additional psychiatric reports, found defendant had not regained his sanity and committed him to the state hospital for 90 days. (Id. at p. 484.) On appeal defendant contended the evidence showed he had recovered his sanity because medication and treatment removed all threat of violence. (Ibid.) The appellate court disagreed. It found the proper standard was whether defendant had “fully recovered his sanity.” (Id. at p. 489.) The evidence showed defendant still needed antipsychotic medication and therapy, so there was no full recovery. (Id. at p. 490.) “[P]sychopharmaceutical restoration of sanity should not be considered a ‘full’ recovery within the meaning of section 1026, subdivision (a) and under such circumstances an institutional examination is necessary to truly evaluate the dangers posed by a defendant.” (Ibid.)
By contrast, the effect of medication may be considered in determining whether a defendant’s sanity has been restored. (People v. Williams, supra, 198 Cal.App.3d 1476, 1481-1482.) In Williams, the court considered whether a person found not guilty by reason of insanity could be considered restored to sanity under Penal Code section 1026.2 where his symptoms were controlled by medication but his underlying illness remained. Williams held that, where supported by the evidence, the defendant is entitled (upon request) to an instruction to consider the effect of medication on his dangerousness. (Id. at p. 1479.) The jury may find sanity restored in a Penal Code section 1026.2 proceeding if it finds, by a preponderance of the evidence, the defendant is not dangerous in a medicated condition and will continue to self-medicate in an unsupervised environment. (Id. at pp. 1481-1482.)
Here, the trial court’s order that defendant was restored to sanity could only mean that defendant was not dangerous if he received proper treatment and thus was amenable to outpatient status. The court could not find defendant was “recovered fully” to sanity because it ordered further treatment. Six months later, a petition to revoke outpatient status because defendant was a danger was vacated once defendant agreed to take his medication “to stay out of ‘trouble.’” Under De Anda, the need for medication to eliminate dangerousness precludes a finding of full recovery of sanity. (People v. De Anda, supra, 114 Cal.App.3d at p. 490.)
Since the trial court did not, and could not under the circumstances, find defendant’s sanity had been recovered fully, the court did not err in failing to release defendant immediately and did not lose jurisdiction over defendant. Because defendant had committed an act posing a threat of bodily harm, the court erred in not confining defendant for 90 days. (Pen. Code, § 1601, subd. (a).) Given the passage of time and defendant’s subsequent commitment, this error is of no consequence.
We deny the Attorney General’s request for judicial notice that defendant has not filed any previous appeals or petitions for writ of habeas corpus in this case. This request was intended to support an argument of laches. Since we find the trial court did not lose jurisdiction over defendant, it is unnecessary to address laches.
II. Expiration of Outpatient Status After One Year
Defendant contends that if he was properly placed on outpatient status in 1981, that status expired by operation of law after one year. There is no order in the record extending outpatient status until March 1985. Defendant contends that once his outpatient status expired by operation of law, the court lost fundamental jurisdiction over him and all further orders are null and void.
Penal Code section 1606 provides: “Outpatient status shall be for a period not to exceed one year.” In 1981, the provision required the court, after a hearing, to discharge the person from commitment, order the person confined, or renew approval of outpatient status at the end of the year. (Stats. 1980, ch. 547, § 17, pp. 1519-1520.)
A subsequent amendment provided the hearing “shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists.” (Stats. 1985, ch. 1232, § 16, pp. 4229-4230.)
As defendant recognizes, two cases addressing similar statutory schemes stand as obstacles to his contention. These cases hold that statutes fixing a term of conditional liberty are for the protection of the public, not the benefit of defendant, and the statutory time periods are therefore directory not mandatory; failure to comply does not invalidate the governmental action.
In People v. Harner (1989) 213 Cal.App.3d 1400, defendant, a mentally disordered sex offender, who had been on outpatient status for six years, moved for discharge from that status due to the failure to hold annual review hearings. The court upheld denial of the discharge motion. It considered whether the annual review provisions were directory or mandatory; only if they were mandatory would failure to comply invalidate subsequent action. (Id. at p. 1405.) “[W]e hold that the annual review provisions of section 1606 are directory since the primary purpose of the statutory scheme is protection of society and a holding that the review provisions are mandatory would defeat that purpose by automatically releasing appellant, a child molester who was found mentally disordered, from any further supervision or treatment without a court’s determination that he is no longer in need of such supervision or treatment.” (Id. at p. 1406.)
Analogous is People v. Mord (1988) 197 Cal.App.3d 1090, in which the court found the provisions for annual review of one-year parole to community outpatient treatment pursuant to former Penal Code section 1611 were directory, not mandatory. “[T]he primary purpose behind the annual review hearings is not to protect appellant’s individual interests, but to protect the public’s interest in ensuring that insane persons receive the treatment they need.” (Id. at p. 1114.)
Defendant urges this court to reconsider these cases and find the time periods in Penal Code section 1606 are mandatory, not directory. We decline the invitation because even if we found the time periods mandatory, we would not find them jurisdictional and therefore failure to comply with them would not render subsequent actions null and void. (Cf. Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79 [five-day demand for jury trial under Welf. & Inst. Code, § 5350, subd. (d) is mandatory but not jurisdictional and therefore estoppel and waiver barred untimely challenge to court’s jurisdiction].)
The Supreme Court recently held the statutory time periods for filing recommitment petitions under the Mentally Disordered Offenders Act (MDO) (Pen. Code, § 2960 et seq.) are mandatory not directory. (People v. Allen (2007) 42 Cal.4th 91.)
“‘A typical misuse of the term “jurisdictional” is to treat it as synonymous with “mandatory.” There are many time provisions, e.g., in procedural rules, which are not directory but mandatory; these are binding, and parties must comply with them to avoid default or other penalty. But failure to comply does not render the proceeding void . . . .’ (2 Witkin, Cal. Procedure (3d ed. 1985) Jurisdiction, § 3, p. 368.)” (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274-275.) Only acts undertaken in the absence of fundamental jurisdiction are void; an act “in excess of jurisdiction” is not void but merely voidable. (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1088.) “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.)
We discern no basis for finding that the trial court lost fundamental jurisdiction over defendant. Defendant’s maximum term of commitment was four years and it had not expired because the period of outpatient treatment does not count towards the maximum term. (Pen. Code, § 1605; § 1026.5, subd. (b)(8).) Assuming arguendo that the time periods in Penal Code section 1606 are mandatory, they do not affect fundamental jurisdiction; at most, subsequent actions are voidable.
The distinction between void and voidable acts is important because only voidable acts are subject to the doctrines of waiver and estoppel. (People v. Burnett (1999) 71 Cal.App.4th 151, 179.) An void act taken without fundamental or subject matter jurisdiction cannot be waived. (Ibid.) Here, waiver and estoppel bar defendant’s contention; he failed to raise the issue of failure to hold annual review hearings for over 20 years. (See In re Ronald E. (1977) 19 Cal.3d 315, 321-322 [lack of diligence in raising constitutional defects in detention proceedings constituted waiver].) The court did not lose fundamental jurisdiction over defendant.
III. Substantial Evidence
Defendant contends the current order extending his commitment is not supported by substantial evidence that he posed “a substantial danger of physical harm to others.” (Pen. Code, § 1026.5, subd. (b)(1).) He contends Dr. Surtshin’s testimony is insufficient because he failed to state any facts showing defendant had violent propensities. Defendant’s only violent criminal acts occurred 20 years ago, before he was institutionalized, and since then he had made significant progress. Defendant asserts that evidence of his threatening behavior -- being loud, argumentative, profane and getting “in your face” -- were insufficient to meet the standard for an extension of commitment.
A person may be committed beyond the maximum term of confinement “only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (Pen. Code, § 1026.5, subd. (b)(1).) There must also be proof that a person has serious difficulty in controlling dangerous behavior. (People v. Galindo (2006) 142 Cal.App.4th 531, 536.) Whether this standard is met is a question of fact to be resolved with the assistance of expert testimony. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204-205.) “One single recent act of violence unrelated to the original crime, or a single psychiatric opinion that an individual is dangerous as a result of a mental disorder, constitutes substantial evidence to support an extension. [Citation.]” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.)
Dr. Surtshin’s testimony provided substantial evidence for the extension of commitment. He testified defendant had a long-term serious mental illness, schizophrenia and polydipsia, as well as unresolved substance abuse problems. In the past, defendant’s mental illness caused violent behavior. He had made significant improvement, particularly due to the use of the mood stabilizing drug tegretol. The problem was that defendant was inconsistent in taking his medication and had not started his relapse prevention plan. Defendant did not have a clear insight into his mental illness. The concern was that if released, his condition could deteriorate, a decline that would be exacerbated by the temptations of alcohol and drugs. Thus, until defendant had better control over his mental illness, he posed a substantial danger of physical harm to others.
This court found similar expert testimony constituted substantial evidence to support an extension of commitment in People v. Crosswhite (2002) 101 Cal.App.4th 494. There two doctors testified Crosswhite had a significant history of mental illness with dangerous behavior. He had poor insight into his illness, was erratic and unmotivated in his treatment, and had minimum appreciation of how to control his psychosis. (Id. at p. 508.) In this case, as in Crosswhite, the expert testimony provided substantial evidence to support the extension of commitment.
DISPOSITION
The judgment (order of extension of commitment) is affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.