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Mentally Disordered Offender (MDO) Rights at Hearing

After M.H. was convicted of a criminal offense (the conviction details are irrelevant for this article), she was committed to the Department of State Hospitals at Patton as a Mentally Disordered Offender (MDO) under Penal Code § 2962.
Such a commitment carries with it consequences that may forever affect that person’s life in a negative context.  The person may never leave such a hospital.

M.H. apparently understood this and believed there was insufficient grounds to have her committed, so she filed a petition in the San Bernardino Superior Court under Penal Code § 2966(c) challenging her commitment, requesting that counsel be appointed and requesting a hearing on the petition.

The trial court judge, Lorenzo R. Balderrama, appointed counsel and a bench trial was set on the petition.  At the beginning of the trial, the judge advised M.H. of her right to a jury trial under Penal Code § 2966(b), but did not advise her of her right to call, confront or subpoena witnesses.  M.H. waived her right to a jury trial and agreed to a ruling on her petition.

The trial court judge then found beyond a reasonable doubt that M.H. qualified as an MDO and denied her petition.
M.H. then appealed the ruling to the Fourth Appellate District Court, contending that the trial court judge erred by not advising her under Penal Code § 2966(b) of her right to call and confront witnesses and subpoena them if necessary.  She alleged that this failure to advise her violated her due process rights under the state and federal constitutions.

She further alleged that her counsel was ineffective for failing to advise her of her rights.

The Fourth Appellate District disagreed with M.H. 

It first gave a short summary of the MDO Act, which was enacted it 1985.  The appellate court explained that those who are convicted of violent crimes related to a mental disorder and who continue to pose a danger to society may be committed as an MDO during and after termination of their parole until their mental disorder can be kept in remission.  The purpose is to provide the MDO with treatment and to protect the public from the danger posed by an offender with a mental disability.

Turning then to M.H.’s argument, the appellate court noted, as M.H. acknowledged, Penal Code § 2966 “does not expressly” require the trial court to advise a § 2966 petitioner of his or her right to call, confront and subpoena witnesses at a section 2966 petition hearing.  M.H., however, argued that the trial court’s failure to do so violated due process.
Turning then to the statute, the appellate court noted that it did expressly require that the trial court advise the petitioner of the right to counsel and the right to a jury trial only.

“[U]nder the doctrine of expresio unius est exclusio alterius, the expression of one thing in a statute ordinarily implies the exclusion of other things.”  Naidu v. Superior Court (2018) 20 Cal.App. 5th 300, 2007.  Consequently, the fact that § 2966(b) states the trial court must advise a section 2966 petitioner of his or her right to an attorney and to a jury trial, but does not mention any right to call, confront and subpoena witnesses indicates that the Legislature did not intend to require trial courts to advise petitioners of such a right. 
The Fourth Appellate District further noted that M.H. argued that advising MDO defendants of the right to call, confront and subpoena witnesses was consistent with the MDO’s intent.  The Fourth Appellate District responded: “This may be, but ‘we are not in a position to engraft such a requirement into the [MDO Act].”  In re Jose C. (2007) 155 Cal. App. 4th 844, 849, fn. 2.

Lastly, in addressing M.H.’s argument that the failure of the trial court to so advise her of her right to call, confront and subpoena witnesses was a violation of her due process rights under the state and federal constitutions, the appellate court responded: “Assuming without deciding defendant is correct, any error was harmless under any standard.”  People v. Fisher (2009) 172 Cal. App. 4th 1006, at 1014 [“An MDO proceeding is civil, rather than criminal, in nature.  It does not implicate all of the constitutional and procedural safeguards afforded to criminal defendants.”

In short, an MDO proceeding proceeds with fewer rights than one may enjoy in a criminal proceeding and therefore, it is subject to a lower level of due process guarantees than one may enjoy in a purely criminal proceeding.

For more information about MDO issues, please click on the following articles:
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