People v. Achrem

Opinion

YEGAN, J. Here we hold that treatment at a parole outpatient clinic (POC), as “specified” by the State Department of Mental Health (DMH), satisfies the 90-day treatment criterion for an MDO (mentally disordered offender) commitment. (Pen. Code, §§ 2962, subd. (c), 2964, subd. (a); Cal. Code Regs., tit. 15, § 2570, subd. (f).)1 Steven Achrem appeals from the judgment entered after the trial court determined he was an MDO.2 Appellant [156]claims that he did not receive 90 days of treatment within a year of his parole or release date as required by section 2962, subdivision (c). We affirm and disapprove People v. Del Valle (2002) 100 Cal.App.4th 88 [121 Cal.Rptr.2d 889] (Del Valle) and People v. Martin (2005) 127 Cal.App.4th 970 [26 Cal.Rptr.3d 174] (Martin) where, in dicta, we stated that outpatient treatment cannot satisfy the 90-day treatment requirement of the MDO Act. (Pen. Code, § 2962, subd. (c).)

Procedural History

Appellant suffers from schizophrenia, a severe mental disorder, and was convicted of manslaughter (§ 192, subd. (a)) and sentenced to 11 years state prison in 2000. After he was released on parole, he received treatment for 90 days (Apr. 13, 2010, to July 12, 2010) at a POC. Appellant violated parole and was returned to prison on February 8, 2011, where he received 73 days’ treatment in an enhanced outpatient program (EOP). This treatment occurred all before his April 23, 2011 parole release date.

On July 15, 2011, the Board of Prison Terms (now known as Board of Parole Hearings (BPH)) certified appellant as an MDO for treatment at Atascadero State Hospital (ASH). Appellant filed a petition challenging the MDO certification and waived jury trial. (§ 2966, subd. (b).)

At trial, Joe Debruin, a forensic psychologist at ASH, opined that appellant met all the MDO criteria except criterion five: i.e., that appellant receive 90 days of treatment within a year of his April 23, 2011 parole or release date. Although appellant received EOP treatment (73 days) in prison, Dr. Debruin opined that appellant did not receive 90 days of outpatient treatment because a POC is “not affiliated” with DMH. Dr. Debruin explained it is “standard practice” in the ASH forensic department not to count POC treatment.

Citing Del Valle and Martin, appellant argued that POC treatment does not count because “[i]t’s not inpatient treatment; never has been; never will be;