People v. Hernandez CA1/5

Filed 9/9/24 P. v. Hernandez CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A169386 v. JOSHUA HERNANDEZ, (Humboldt County Super. Ct. No. CR040354S) Defendant and Appellant.

Following a jury finding that defendant and appellant Joshua Hernandez (appellant) was an offender with a mental health disorder (OMD) subject to continued commitment under Penal Code section 2972,1 the trial court denied appellant’s request for outpatient treatment. Appellant argues insufficient evidence supports the trial court’s determination there was no reasonable cause to believe outpatient treatment would be safe and effective. We affirm. BACKGROUND In 2005, appellant was convicted of three counts of attempted murder (§§ 187, subd. (a), 664), five counts of assault with a deadly weapon (§ 245, subd. (a)(1)), one count of first degree burglary (§§ 459, 460, subd. (a)), one count of infliction of unjustifiable physical pain or mental suffering on a child

1 All undesignated section references are to the Penal Code.

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(§ 273a, subd. (a)), and one count of second degree burglary (§§ 459, 460, subd. (b)).2 Appellant was sentenced to 22 years in prison. Appellant was admitted to the Department of State Hospitals in December 2021. In August 2023, the Humboldt County District Attorney filed a petition to extend appellant’s commitment. In December 2023, following a jury trial, appellant was found to be subject to continued commitment as an OMD under section 2972. The trial court denied appellant’s motion for outpatient treatment under the conditional release program (CONREP) and extended his commitment for one year. The present appeal followed. DISCUSSION I. Applicable Law Section 2970 authorizes a petition to extend the commitment of an OMD when the person “has a severe mental disorder, that . . . is not in remission or cannot be kept in remission if the person’s treatment is not continued, and that, by reason of the person’s severe mental disorder, the [person] represents a substantial danger of physical harm to others.” (§ 2970, subd. (b).) If the petition is found true, section 2972 mandates a one-year extension of the commitment. (§ 2972, subd. (c).) Regarding outpatient treatment, section 2972, subdivision (d), provides: “A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis.” A person seeking outpatient treatment bears the burden of proof. (People v. Gregerson (2011) 202 Cal.App.4th 306, 316 (Gregerson).) “Thus, to obtain outpatient treatment, the patient must raise a