PUGLIA, P. J. I respectfully dissent. At the fulcrum of the court’s opinion is its determination that procedures for involuntary civil commitment under the Lanterman-Petris-Short Act (LPS; Welf. & Inst. Code, §§ 5000-5404.1) have by some kind of osmosis been assimilated into the Penal Code procedures governing the discharge of those who have been committed as criminally insane (Pen. Code, § 1026a). Proceeding from this premise, the court concludes that, pending termination of restoration-of-sanity proceedings (Pen. Code, § 1026a), the petitioners were entitled to be held in a local treatment and evaluation facility (Welf. & Inst. Code, §§ 5150, 5206), and that their detention in the county jail was accordingly illegal. With this reasoning, I cannot agree.
On a plea of not guilty by reason of insanity, if the trier of fact finds that a defendant was insane at the time of commission of the crime, the trial court must commit the defendant for care and treatment unless it shall appear to the court that the defendant has fully recovered his sanity. In the latter event, the court shall remand the defendant to the custody of the sheriff “until his sanity shall have been finally determined [761]in the manner prescribed by law.” (Pen. Code, § 1026.) The procedures to be followed in respect to a defendant who appears to have fully recovered his sanity are not spelled out in Penal Code section 1026; there is merely the direction to proceed “in the manner prescribed by law.” Unless that phrase has reference to other provisions of law for commitment of the mentally ill it has no meaning at all; indeed it has been interpreted to refer to contemporaneously existing procedures for involuntary civil commitment of persons alleged to be mentally ill. (In re Slayback (1930) 209 Cal. 480, 484 [288 P. 769]; People v. Kelly (1973) 10 Cal.3d 565, 577-578, fn. 18 [111 Cal.Rptr. 171, 516 P.2d 875].) Therefore, one must necessarily look to LPS for legislative direction for precommitment sanity restoration determinations.
The same conclusion does not necessarily follow in respect to postcommitment sanity restoration determinations. They are governed by Penal Code section 1026a. Unlike section 1026, section 1026a provides detailed guidance for the manner in which postcommitment sanity restoration is to be determined. Under that section, the application for release from commitment is made to the committing court; either the defendant or the superintendent of the commitment facility may make the application; thereafter if at least 90 days have elapsed from the date of commitment, a hearing must be held; the court (or, if requested, the jury (In re Franklin (1972) 7 Cal.3d 126, 149 [101 Cal.Rptr. 553, 496 P.2d 465])) shall find whether defendant’s sanity has been restored; the burden of so proving is upon the defendant; if the finding is adverse to the defendant, he may not file another application for release for yet another year. Penal Code section 1026a thus contemplates a plenary judicial hearing.
By contrast, LPS provides that sanity determinations will be made by the professional staff of the evaluation and treatment facility (Welf. & Inst. Code, §§ 5152, 5213); persons subjected to evaluation under LPS cannot be detained any longer than 72 hours (Welf. & Inst. Code, §§ 5151,5213) but must be released, referred for further care and treatment on a voluntary basis or certified for intensive treatment. (Welf. & Inst. Code, §§ 5152, 5206.)1 A person detained for 72 hours who is found by [762]the professional staff of the evaluation and treatment facility to be dangerous to himself or others or gravely disabled and who rejects voluntary treatment may be detained for not more than 14 days for intensive treatment (Welf. & Inst. Code, § 5250); such a person must be released at the end of 14 days unless in the judgment of the professional staff he is imminently suicidal (Welf. & Inst. Code, § 5260) or after hearing is found by the court or jury to present an imminent threat of substantial physical harm to others. (Welf. & Inst. Code, § 5301). In the former case, the individual may be detained not more than 14 additional days (Welf. & Inst. Code, § 5264); in the latter case, an additional 90 days (Welf. & Inst. Code, § 5300).
It can be seen that under LPS, decisions relative to mental condition and commitment are almost entirely the province of professional staff; treatment which does not involve involuntary commitment is preferred; and the potential duration of involuntary confinement is exceedingly brief and strictly circumscribed. On the other hand, in proceedings under Penal Code section 1026a, decisions relative to mental condition and commitment are judicially determined; there are no alternatives to involuntary commitment or discharge; and the duration of potential commitment after the initial 90-day period is measured in increments of one year.
The reason for these differences was explained in In re Franklin, supra, 7 Cal.3d at page 138: “Although differing from the provisions applicable to ordinary civil commitment, the procedures for commitment and release of persons acquitted as insane are based upon a ‘special’ public interest. ‘[T]he finding by the jury that a defendant, because of his mental disease or defect, shall be held blameless for an act otherwise subject to criminal sanctions puts such a defendant into an exceptional class. The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been a judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger.’ ” (Original italics; fn. omitted.)
The provisions of LPS obviously were not enacted with reference to individuals who have already endangered the public safety by the commission of an act or acts which but for their mental condition would have subjected them to criminal liability. As with the square peg in the round hole, procedures under LPS and section 1026a are totally [763]incongment. Indeed it is difficult to imagine two less complementary sets of procedures.2
Moreover, the requirement that LPS facilities be used to confine individuals pending Penal Code restoration of sanity hearings will work a hardship on smaller counties, some of which may not have such facilities within the county itself. (See Welf. & Inst. Code, § 5602.) In those counties, the logistics of arranging defendant’s court appearances, especially in protracted proceedings, will impose additional burdens on law enforcement resources and personnel and further aggravate the unavoidable security risks entailed in moving dangerous persons while in custody.
The foregoing considerations lead me to the conclusion that the Legislature did not intend that the situation of these petitioners be governed by LPS. Therefore, a treatment and evaluation facility contemplated by LPS is not the required or proper place for their confinement pending proceedings to determine restoration of sanity.
Petitioners contend nonetheless that their confinement in county jail is unauthorized and illegal.
An inmate of the state hospital committed under Penal Code section 1026 is entitled to periodic judicial review of his continued confinement and has the right to be personally present at such proceedings. (See In re Franklin, supra, 7 Cal.3d at pp. 148-149.) Although there is no express statutory provision for return of a state hospital inmate to the county of commitment and confinement in county jail there pending restoration of sanity proceedings, the power to do so may be implied from section 1026a. Furthermore, subdivision 3 of Penal Code section 4000, providing for confinement in county jail “of persons committed for contempt, or upon civil process, or by other authority of law” is a sufficiently broad authorization to encompass the instant confinement so long as the conditions of confinement comport with the demands of due process.
[764]“ ‘What is due process depends on the circumstances. It varies with subject matter and the necessities of the situation. [Citation.] Its content is a function of many variables, including the nature of the right affected, the degree of damage caused by the proscribed condition or activity, and the availability of prompt remedial measures.’ ” (Thorn v. Superior Court (1970) 1 Cal.3d 666, 673 [83 Cal.Rptr. 600, 464 P.2d 56].) Due process requires that the nature and duration of confinement bear some reasonable relationship to the purpose of that confinement. (In re Davis (1973) 8 Cal.3d 798, 801 [106 Cal.Rptr. 178, 505 P.2d 1018].)
In order to exercise their right to be present at a restoration-of-sanity hearing, petitioners must be brought to San Joaquin County and kept available there until the section 1026a proceedings conclude. Because petitioners belong to that special class of persons who have already endangered the public safety as a result of their mental conditions (In re Franklin, supra, 7 Cal.3d at p. 138), they must be securely confined while in San Joaquin County.
In the San Joaquin County jail, petitioners were segregated from the general criminal population; they received needed medication and medical attention; two psychiatrists familiar with petitioners’ cases expressed the opinion that detention in county jail will not adversely affect their recovery.
Under the circumstances, I conclude that confinement of petitioners in the county jail is lawful and is not violative of due process standards nor has it subjected petitioners to cruel or unusual punishment. (Cf. People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373].)
Respondent’s petition for a hearing by the Supreme Court was denied May 11, 1978.
A conservatorship is another alternative in the case of an individual who is gravely disabled (Welf. & Inst. Code, § 5350), i.e., who by reason of mental disorder or chronic alcoholism is unable to provide for his personal needs for food, clothing or shelter or who has been found mentally incompetent under Penal Code section 1370 and against whom there is pending an accusatory pleading charging ? felony involving death, great bodily harm or a serious threat to the physical well being of another person (Welf. & Inst. Code, § 5008, subd. (h)).
There is no anomaly in the fact that LPS has been assimilated into precommitment procedures under Penal Code section 1026. As previously stated, there is no inconsistency between LPS and section 1026 because the latter omits to provide any procedural guidance whatever for precommitment proceedings. Moreover, precommitment proceedings are not instituted unless the court first finds that defendant has fully recovered his sanity. Thus the likelihood that defendant is still affected with a mental condition constituting him a danger to society is greatly reduced. In contrast, one who seeks discharge from commitment under Penal Code section 1026a presumptively is still afflicted with a mental condition that renders him dangerous to society, and he has the burden in those proceedings of proving that his sanity has been restored.