[1404]Opinion
COFFEE, J. — A recommitment under the mentally disordered offender (MDO) law requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder “is not in remission or cannot be kept in remission without treatment”; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others. (Pen. Code, § 2970.)1 The Legislature has provided that a patient “ ‘cannot be kept in remission without treatment’ if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense . . . .” (§ 2962, subd. (a).) We conclude that this provision is a rule of substantive law that requires a positive finding on the “remission” criterion, rather than an unlawful mandatory presumption.
BACKGROUND
Respondent Dacosfa Burroughs suffers from paranoid schizophrenia. He was convicted of rape and sentenced to prison. The Board of Prison Terms (BPT) has twice determined that Burroughs is an MDO and committed him to Atascadero State Hospital (ASH) for treatment. Burroughs filed a petition in superior court challenging the latest BPT determination. (§ 2966.) He waived his right to a jury and the case was tried before the court.
Dr. Phillip Kelly has been Burroughs’ treating psychiatrist at ASH since 2003. He testified that Burroughs was in remission as of the date of the BPT hearing on June 9, 2004, but had been in a fight with another patient within the previous year. During that fight, Burroughs spit on the other patient, hit him and struggled with staff before being placed in restraints. Dr. Kelly noted that while Burroughs did not have any acute psychotic symptoms, he did continue to have problems with female staff. Because of the rape conviction, Dr. Kelly would want to see Burroughs try outpatient treatment before rendering an opinion that he was not dangerous.
The trial court determined that within the year prior to the BPT hearing, Burroughs had been physically violent, not in self-defense, within the meaning of section 2962, subdivision (a). Notwithstanding, the court found that Burroughs was currently in remission, and therefore did not meet this criterion for an MDO commitment. The court noted that Burroughs did meet the remaining criteria for a continuing MDO commitment, namely, that he suffered from a severe mental disorder and that he presented a substantial danger of physical harm to others as a result of this disorder. (§ 2970.) The People appeal from the court’s ruling that Burroughs was not an MDO.
[1405]DISCUSSION
Section 2962, subdivision (a) provides, “A person ‘cannot be kept in remission without treatment’ if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan.” Remission is defined as “a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.” (Ibid.)
The People argue that because Burroughs was physically violent within a year of the hearing, he “cannot be kept in remission without treatment,” and thus met the remission criterion of section 2970. Burroughs responds that the statute would operate as an impermissible mandatory presumption if it were construed to mean that an act of physical violence within the prior year automatically meant a finding that a patient met the remission criterion.
A mandatory rebuttable presumption is an evidentiary device that tells the trier of fact it must find the existence of some ultimate or elemental fact upon proof of a basic or evidentiary fact. (Evid. Code, § 600, subd. (a); People v. McCall (2004) 32 Cal.4th 175, 182 [8 Cal.Rptr.3d 337, 82 P.3d 351]; see also Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 777, 99 S.Ct. 2213].) Such presumptions may violate the defendant’s right to due process in a criminal case, where the prosecution bears the burden of proof beyond a reasonable doubt and the presumption may have the effect of lessening this burden on the element to which it applies. (McCall, at p. 183.) Although an MDO proceeding is civil in nature, the People are required to prove MDO status beyond a reasonable doubt. (§ 2972, subd. (a).) A mandatory rebuttable presumption would violate a patient’s right to due process if it had the effect of lessening the People’s burden of proof on any of the MDO criteria.
But a distinction must be drawn between mandatory rebuttable presumptions, which operate as evidentiary devices, and mandatory conclusive presumptions, which operate as rules of substantive law. (People v. McCall, supra, 32 Cal.4th at pp. 184 — 185; see also Evid. Code, § 620.) “ ‘Wherever from one fact another is said to be conclusively presumed, in the sense the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact’s existence is wholly immaterial for the [1406]purpose of the proponent’s case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with the evidence.’ ” (McCall, at p. 185.) A conclusive presumption that operates as a rule of substantive law does not violate due process by lessening the burden of proof. (Id. at pp. 185-186.)
For example, in People v. McCall, supra, 32 Cal.4th 175, the court considered the effect of Health and Safety Code section 11383, subdivisions (c)(2) and (f), which criminalizes the possession of hydriodic acid with the intent to manufacture methamphetamine and provides that “ ‘possession of immediate precursors sufficient for the manufacture of . , . hydriodic acid . . . shall be deemed to be possession of the derivative substance.’ ” (McCall, at p. 190.) The defense argued that this created a mandatory rebuttable presumption which relieved the prosecution of its burden of proving the defendant possessed hydriodic acid. (Id. at pp. 187-188.) The court disagreed. “[Sjection 11383(f) contained no presumption at all. Instead, section 11383(f) was nothing more than a definitional section that specified the conduct ‘deemed’ criminal .... Substantive due process allows lawmakers broad power to select the elements of crimes, and to define one thing in terms of another.” {Id. at p. 189.)
Similarly, in People v. Pinkston (2003) 112 Cal.App.4th 387 [5 Cal.Rptr.3d 274], the court rejected an argument that Vehicle Code section 2800.2 creates an impermissible mandatory presumption. Subdivision (a) of that statute makes evasion of a peace officer a felony if “the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property . . . .” Subdivision (b) provides, “For the purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under [Vehicle Code] Section 12810 occur, or damage to property occurs.” The court concluded that subdivision (b) established a rule of law rather than a presumption apportioning the burden of persuasion on an element of the crime. “In other words, evasive driving during which the defendant commits three or more specified traffic violations is a violation of section 2800.2 ‘because of the substantive statutory definition of the crime’ rather than because of any presumption.” (Pinkston, at pp. 392-393.)
[1407]Like the statutes at issue in McCall and Pinkston, section 2962, subdivision (a) creates a rule of substantive law. It defines the phrase “cannot be kept in remission without treatment” to mean that one of four specified acts have occurred during the previous year — a violent act except in self-defense, a serious threat, intentional property damage or failure to follow the treatment plan. This language does not allow the jury to presume remission from one of these facts, as Burroughs argues; it does not purport to define remission at all. Rather, it defines in precise terms the conduct that will show the patient “cannot be kept in remission without treatment,” which is an alternative basis of satisfying the remission criterion for an MDO recommitment.
Once the People proved that Burroughs committed a violent act within the previous year, they established that he could not be “kept in remission without treatment” as that phrase is used in the MDO law. (See In re Qawi (2004) 32 Cal.4th 1, 23 [7 Cal.Rptr.3d 780, 81 P.3d 224]; see also People v. Beeson (2002) 99 Cal.App.4th 1393, 1400 [122 Cal.Rptr.2d 384].) There was no ultimate fact to be presumed; the People simply proved the conduct necessary to satisfy the remission criterion. The trial court erred when it found that criterion was not met and its judgment must be reversed.2
Burroughs argues that section 2962, subdivision (a) renders the MDO law unconstitutional if a violent act during the necessary time period is itself enough to satisfy the remission criterion. He reasons that an involuntary commitment is constitutional only if the subject currently suffers from a mental abnormality that renders him dangerous beyond his control. (In re Howard N. (2005) 35 Cal.4th 117, 132 [24 Cal.Rptr.3d 866, 106 P.3d 305].) Thus, when an MDO patient suffers no overt symptoms of his mental illness, but technically meets the remission criterion due to a violent act during the preceding year, the requirement of current dangerousness is not met.
We are not persuaded. The remission criterion is only one of three elements necessary to support recommitment as an MDO. Assuming it is met by virtue of a violent act within the previous year, the People must still prove that the patient suffered from a severe mental disorder and that he continued to present a substantial danger of physical harm to others by reason of his disorder. A patient who was currently in remission and who, as a consequence, did not present a current danger to others would not be recommitted as an MDO even if the court determined he could not be “kept in remission [1408]without treatment” as defined by section 2962, subdivision (a). And a patient like Burroughs, who has no present symptoms and is technically in remission, but who has committed a violent act within the past year and continues to present a substantial risk of physical harm by reason of his mental disorder, is a suitable subject for involuntary commitment under the MDO law due to his current dangerousness. The Legislature has reasonably determined that when a patient has committed a violent act, in addition to suffering from a severe mental disorder that renders him a danger to others, he cannot safely reenter society. (See People v. Beeson, supra, 99 Cal.App.4th at p. 1400.) This is not tantamount to punishment, as the dissent suggests; it is a method of gouging the patient’s current condition.
The judgment is reversed and the case is remanded with directions that the superior court enter a judgment continuing Burroughs as an MDO under section 2970.
Perren, J., concurred.
All statutory references are to the Penal Code unless otherwise stated.
Principles of double jeopardy are inapplicable because an MDO proceeding is civil in nature. (People v. Francis (2002) 98 Cal.App.4th 873, 877 [120 Cal.Rptr.2d 90].)