Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
What is Needed to be a Mentally Disordered Offender?
It is important to understand, first and foremost, that the intent of the Mentally Disordered Offender (MDO) law is to provide treatment to “dangerous” people with mental illness by preventing such people from being released to the community at the end of their prison terms in the interests of public safety. People v. Robinson (1998) 63 Cal. App. 4th 348, 74 Cal. Rptr. 2d 315.
To do this, the California Department of Corrections and Rehabilitation (CDCR) staff screen all people in prison for MDO eligibility. The Board of Parole Hearings (BPH) then reviews each person who is referred by CDCR staff and decides whether they meet all of the MDO criteria and should be committed to the Department of State Hospitals (DSH), such as Patton or Coalinga (to name a few) for mental health treatment as a condition of parole. Penal Code § 2960, et seq.
An MDO must be held in custody in a DSH hospital unless the DSH staff reasonably believe that the person on parole can be safely and effectively treated as an outpatient in the community. Penal Code § 2964.
The MDO commitment may be renewed annually for the entire parole term. Furthermore, the DSH can keep custody of an MDO after the parole term ends if the local district attorney files a court petition asking that the MDO be re-committed for continued treatment. Penal Code § 2970.
Such MDO commitments can be renewed annually for as long as the court continues to find that the person has a severe mental disorder and that commitment to a state hospital is necessary for public safety. The DSH has the authority to grant compassionate release to a person who has been committed or re-committed as an MDO if they are (a) either terminally ill or medically incapacitated and (b) release would not pose a threat to public safety. Penal Code § 2977; Welfare & Institutions Code § 4146.
There are specific criteria that must be met in order for a person to be eligible for commitment as an MDO. These must include all the following factors:
- That the person must have a “severe mental disorder” that is not in remission or cannot be kept in remission without treatment. Penal Code § 2962(a)(1). A “severe mental disorder” is “an illness or disease or condition that substantially impairs the person’s thoughts, perception of reality, emotional process or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely.” Penal Code § 2962(a)(2). It does not include personality or adjustment disorders, epilepsy, mental retardation or drug addiction or abuse. Id. A severe mental disorder “cannot be kept in remission without treatment” if during the previous year the person has been physically violent (except in self-defense), has made a serious threat of substantial physical harm against another person, has intentionally caused property damage, or has not voluntarily followed the treatment plan. Penal Code § 2962(a)(3); People v. Burroughs (2005) 131 Cal. App. 4th 1401, 1407-1408, 32 Cal. Rptr. 3d 729;
- The severe mental disorder was a cause or an aggravating factor of a crime for which the person was sentenced. Penal Code § 2962(b). A court can consider only a person’s commitment offenses; it may not consider other possible uncharged crimes that occurred during the same course of events. People v. Kortesmaki (2007) 156 Cal. App. 4th 922, 926-927, 67 Cal. Rptr. 3d 706;
- The person has been treated for the severe mental disorder for 90 days or more during the year prior to the end of the prison term. Penal Code § 2962(c). Outpatient treatment at a private facility prior to incarceration does not count toward the 90day treatment requirement. People v. Del Valle (2002) 100 Cal. App. 4th 88, 121 Cal. Rptr. 2d 889 (disapproved on other grounds in People v. Achrem (2013) 213 Cal. App. 4th 153, 151 Cal. Rptr. 3d 915. Treatment at a county jail prior to conviction does count toward the treatment period. People v. Martin (2005) 127 Cal. App. 4th 970, 26 Cal. Rptr. 3d 174. Treatment at a parole outpatient clinic can also satisfy the requirement. Achrem, supra. The treatment must be for the mental disorder that is the basis for the MDO petition and not for some other disorder. People v. Sheek (2004) 122 Cal. App. 4th 1606, 19 Cal. Rptr. 3d 737 (defendant could not be committed as MDO for disorder of pedophilia when he had received treatment only for depression, which could be kept in remission);
- Because of the severe mental disorder, the person represents a substantial danger of physical harm to others. Penal Code § 2962(d)(1). This does not require proof of a recent dangerous act. Penal Code § 2962(g); and
- The person received a determinate sentence for one of the following types of crimes (Penal Code § 2962(e)):
- one of specified crimes involving the use of a weapon or great bodily force; or
- a crime in which the person used force or violence or caused serious bodily injury (A conviction for use of force against property does not qualify a person for MDO commitment. People v. Green (2006) 142 Cal. App. 4th 907, 48 Cal. Rptr. 3d 464. Also, reckless arson does not qualify as a crime of violence or force under the MDO law, but willful and malicious arson does qualify. People v. Hayes (2003) 105 Cal. App. 4th 1287, 129 Cal. Rptr. 2d 885; or
- a crime in which the person expressly or impliedly threatened the victim with use of force. Many crimes that one might not consider to be violent can fall into this category, depending on the specific facts of the case. People v. Itehua (2014) 227 Cal. App. 4th 356, 173 Cal. Rptr. 3d 614 (stalking was an implied threat satisfying MDO commitment the criteria); People v. Labelle (2010) 190 Cal. App. 4th 149, 152, 117 Cal. Rptr. 3d 882 (felony vandalism was MDO-qualifying crime where defendant shattered window while aware that an officer was standing next to it); People v. Kortesmaki (2007) 156 Cal. App. 4th 922, 928, 67 Cal. Rptr. 3d 706 (possession of flammable liquid with intent to set fire to property was an MDO-qualifying offense, where a defendant told customers about to enter a store that he was going to set fire to a nearby dumpster); People v. Butler (1999) 74 Cal. App. 4th 557, 88 Cal. Rptr. 2d 210 (stalking was a crime involving threat of force under MDO law); but see People v. Green (2006) 142 Cal. App. 4th 907, 48 Cal. Rptr. 3d 464 (felony vandalism not an MDO-qualifying offense where defendant kicked out window of police car).
