What Happens After an MDO Completes the DSH Term?

Being classified as a Mentally Disordered Offender (MDO) and being at a Department of State Hospital (DSH) is perhaps the closest thing to a situation described in George Orwell’s classic, 1984.  However, for public safety, this may be entirely appropriate.

When an MDO completes his or her DSH term, he or she will be evaluated for release from DSH custody and placed in community supervision.  Likewise, the law requires the DSH to seek a writ of habeas corpus in the court of commitment any time there is reason to believe that a person no longer meets the SVP commitment criteria. Welfare & Institutions Code § 6605(f). See also People v. LaBlanc (2015) 238 Cal. App. 4th 1059, 189 Cal. Rptr. 3d 886 (person with an SVP commitment raised non-frivolous question regarding validity of diagnosis of paraphilic coercive disorder, made a non-frivolous, colorable showing that his advanced age and medical condition significantly reduced likelihood he would reoffend; refusal to participate in treatment for people with sex offenses did not render petition frivolous).

If the court grants the writ, the person will be unconditionally discharged, meaning that no further DSH supervision or treatment will be required. Welfare & Institutions Code § 6605(f).

Alternatively, if the DSH annual report concludes that the person with an SVP commitment’s condition has changed so that they no longer meet the definition of an SVP, then DSH must authorize the person with an SVP commitment to petition for unconditional discharge. Welfare & Institutions Code § 6604.9(d); People v. Landau (2011) 199 Cal. App. 4th 31, 130 Cal. Rptr. 3d 683 (DSH must authorize person with an SVP commitment to file petition even if DSH Director disagrees with evaluator’s conclusion that the person no longer poses a danger).

To pursue discharge, the person with an SVP commitment must file a petition with the court and serve it to the office of the district attorney. Welfare & Institutions Code § 6604.9(d).

Upon receiving the petition, the court must hold a show cause hearing at which it can consider the petition and any documentation provided by the DSH, the district attorney or the person with an SVP commitment.  If the judge finds probable cause to believe that the person with an SVP commitment no longer poses a substantial danger to others if released, then the court must set the case for a full hearing. Welfare & Institutions Code § 6605(a).

At the hearing, the person has the same rights as at the original commitment trial and the burden of proof is on the state to prove beyond a reasonable doubt that the person still has a dangerous mental disorder. Welfare & Institutions Code § 6605(a).  Failure to participate in or complete treatment may be considered as evidence that the person’s condition has not changed, but refusal to participate in treatment does not necessarily prove that the person is still dangerous. Welfare & Institutions Code § 6605(a); LaBlanc, supra.

If the court denies the petition, the person with an SVP commitment will be returned to DSH custody and must wait one year before filing another petition for unconditional discharge. Welfare & Institutions Code § 6605(b).

Since a finding of probable cause to conduct an SVP commitment trial tolls the CDCR parole term (meaning it does not run concurrently), a person who is discharged from an SVP commitment presumably still has to serve the remaining parole term. Penal Code § 3000(a)(4).  Also, even after unconditional discharge from the SVP commitment and parole, people with former SVP commitments are subject to strict laws that require them to register as people with sex offenses and may restrict their employment. 

Penal Code § 290 (sex offender registration); Penal Code § 290.95 (job restrictions).  Their names and addresses will also be listed on the “Megan’s Law” website. Penal Code § 290.46.

We wish to acknowledge and thank the Prison Law Office for their wonderful treatise, California Prison and Parole Law Handbook, from which this article draws much of its content.