People v. Hurt

Opinion

ALLPORT, J.

Following a plea of nolo contendere to a charge of violating Penal Code section 245 subdivision (a) (assault by means of force likely to produce great bodily injury), Danny Lynn Hurt was found not guilty by reason of insanity and eventually committed to the California Department of Mental Health for placement in a state hospital for a minimum of 90 days. Hurt has appealed from the order of commitment. The appeal lies. (Pen. Code, § 1237, subd. 1;

People

v.

Vanley

(1974) 41 Cal.App.3d 846, 848, fn. 1 [116 Cal.Rptr. 446].)

[976]

Issues

The issue before us involves interpretation of Penal Code section 1026 and is succinctly stated by defendant to be “. . . whether the superior court has the discretion to place a defendant, who has been found not guilty by reason of insanity and who has not fully recovered his sanity, in an outpatient treatment program rather than in a state hospital or a mental health facility, where the evidence supports the former disposition.”

Facts

It appears without conflict that defendant was found not guilty by reason of insanity of a crime which posed a threat of bodily harm to another person. It was also determined that defendant had not regained his sanity and was in need of outpatient treatment at a proper health facility. In committing defendant to the state hospital the court expressed the opinion that “defendant could be treated successfully on an outpatient basis” but concluded, because of the nature of the crime, section 1026 mandated confinement in the state hospital for a minimum of 90 days before he could be released on outpatient treatment.

Discussion

In arguing that the court below had discretion to place defendant in an outpatient treatment program defendant points to a part of section 1026 which reads: “If the verdict or finding be that the defendant was insane at the time the o fíense was committed, the court unless it shall appear to the court that the defendant has fully recovered his sanity shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private mental health facility approved by the county mental health director, or the court may order the defendant to undergo outpatient treatment as specified in Section 1026.1 of the Penal Code.” The above quoted portion of the statute supports the argument but consideration of another portion of the section illustrates the fallacy in defendant’s reasoning. Immediately following the above quoted sentence, it is provided that, “if the defendant has been found guilty of a felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person, the court shall direct that the defendant be confined in a state hospital or other public or private mental health facility approved by the county mental health director for a minimum of