Filed 6/24/13 P. v. Agnew CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

THE PEOPLE,
                                                                                           F064537
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF97907057)
                   v.

JOHN CARL AGNEW,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of 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.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Cornell, J. and Kane, J.
       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conditional release program was revoked and he was recommitted to the state hospital for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

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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

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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.




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