P. v. Agnew CA5

Filed 6/24/13 P. v. Agnew CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064537 Plaintiff and Respondent, (Super. Ct. No. CF97907057) v.

JOHN CARL AGNEW, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J. and Kane, J.

Defendant and appellant John Carl Agnew has been committed as a mentally disordered offender (MDO) since 2004. In this appeal, he contends the law permitting his continued MDO commitment is based upon an unconstitutional mandatory presumption. We reject this premise and affirm the order for a one-year extension of defendant’s commitment for treatment. FACTS AND PROCEDURAL HISTORY Defendant committed assault with a firearm (Pen. Code, § 245, subd. (a)(2)), for which he was imprisoned in 1997. Upon his release on parole in 2004, defendant was committed as an MDO as a condition of parole. (See Pen. Code, § 2962.) Two years later, he was discharged from the state hospital on the conditional release program. While still participating in that program, he assaulted his roommate on May 25, 2011, and was considered dangerous due to his delusional condition. His participation in the conditional release program was revoked and he was recommitted to the state hospital for treatment on June 28, 2011. Defendant’s period of parole apparently expired on May 25, 2012. On November 1, 2011, the district attorney filed a petition to extend defendant’s commitment for treatment for a year beyond the expiration of parole. The petition was tried to a jury in March 2012, and by verdict rendered on March 7, 2012, the jury found true the allegations of the petition. On March 19, 2012, the court entered its order on the verdict, extending defendant’s commitment for one year, to May 25, 2013. DISCUSSION Penal Code section 2962 requires in-patient mental health treatment of some persons as a condition of parole. Among other criteria for mandatory treatment, the parolee must have “a severe mental disorder that is not in remission or cannot be kept in remission without treatment.” (Id., subd. (a)(1).) (Additional criteria must be satisfied before a parolee may be treated as an MDO, including a requirement that the person’s mental disorder was one of the causes of or was an aggravating factor in the parolee’s underlying crime. (See id., subd. (b); see also id., subd. (c).) Those additional criteria are