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self-study / Criminal Law

Feb. 1, 2021

Release to outpatient and restoration of sanity after an NGI finding

Dmitry Gorin

Partner, Eisner Gorin LLP

Alan Eisner

Partner, Eisner Gorin LLP

When a criminal defendant in a California state case is found guilty, but not by reason of insanity, aka “NGI,’ pursuant to Penal Code Section 1026, whether through a negotiated plea or through a jury’s verdict, the defendant is committed to the Department of State Hospitals. The State Hospital is a highly structured, prison-like environment from which the defendant is not free to leave and experiences many of the same restrictions on the activities of daily life as a defendant incarcerated in a jail or prison facility.

Our law firm has represented a client a client since 2008, after securing a not guilty by insanity verdict in a murder case. We have learned that the process to establish restoration to sanity and to secure the client’s freedom from the mental hospital is very complex, procedure-laden, and dependent on the recommendations of medical doctors who may not know the client, and who will err on the side of keeping him incarcerated.

Once committed, the defendant’s case can take several different paths. Under Penal Code Section 1026.5, a defendant who has reached the maximum confinement time for the underlying offense while in the State Hospital must be released, regardless of his or her present mental health condition. For some defendants, such as those committed following NGI findings on a murder case, the maximum date of confinement will never be reached.

For these defendants, counsel and the courts must consider the option to transition the defendant out of the State Hospital and into a community outpatient treatment program, commonly known as “CONREP.” Once again, there are several statutory mechanisms by which this can be accomplished and petitions for outpatient treatment can be initiated by several different actors in the process.

Under Sections 1603 and 1604 of the Penal Code, the director of the State Hospital, or other facility at which the defendant is being treated on an independent basis, may submit a recommendation to the court which committed the NGI defendant advising the court that the defendant may be eligible for outpatient placement. No recommendation for outpatient placement will be considered until at least 180 days of commitment in the State Hospital have elapsed. Upon receipt of the director’s recommendation, the court must immediately forward the recommendation to the director of the relevant CONREP program, to the prosecutor, and to counsel for the defendant. Within 30 days of this referral, the CONREP director must provide his or her own recommendation regarding outpatient placement to the court as well as a treatment plan for the defendant should he or she be placed in CONREP.

After receiving CONREP’s report, the court must then calendar the matter for a hearing with 15 days. The hearing is an adversarial process, with the prosecution typically opposing release to outpatient and the defense attorney advocating for release. The court is required to consider the recommendations of the relevant treatment providers, the circumstances of the underlying crime, the defendant’s other criminal history, if any, and the input of the victim or the victim’s family should they request to be heard. The petitioner for outpatient release has a preponderance burden to establish that outpatient treatment would not pose a danger to the health or safety of others and that such placement would provide more appropriate mental health treatment for the defendant. A defendant released under Sections 1603 and 1604 is considered to have been “conditionally released,” as there is no set time period upon which outpatient treatment will expire and the defendant may be “revoked” and re-committed to the State Hospital if any concerns for public safety arise during outpatient treatment.

The alternative, and potentially permanent, avenue for release of an NGI defendant is restoration of sanity under Penal Code Section 1026.2. Under this provision, either the defendant, the director of the State Hospital, or the CONREP director may apply to the court for a finding of restoration of sanity. If the application is made by the defendant, however, the court shall take “no action” on the application without first receiving the written recommendation of the relevant treatment provider. Penal Code Section 1026.2(l).

Once an application is made, the defendant must be transferred to a secure facility within a reasonable distance of the court pending resolution. Penal Code Section 1026.2(b). The program director in charge of the facility must prepare a summary of the defendant’s treatment for the parties and the court. As with a Section 1604 petition, no application under Section 1026.2 may be made less than 180 days after the defendant is committed.

The restoration process consists of two proceedings: an outpatient placement hearing and a restoration of sanity trial thereafter. People v. Endsley, 238 Cal. Rptr. 3d 879 (Cal. App. 4th Dist. 2018). The first hearing largely mirrors a Section 1604 outpatient placement hearing. The legal standard is the same: “whether the person applying for restoration of sanity would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community.” Penal Code Section 1026.2(e). The timeline which results from a finding in the defendant’s favor at a Section 1026.2 outpatient hearing is, however, different from that in a Section 1604 hearing. If the defendant prevails at a Section 1026.2 hearing, he or she is placed in CONREP for one year. In practice, this also substantially changes the focus with which treatment providers at the State Hospital and at CONREP approach evaluating the defendant and formulating a treatment plan prior to submitting their recommendations to the court. If the treatment providers know that the defendant will only be in outpatient status for as short as one year, as opposed to an open-ended placement under Section 1604, they are likely to tailor their recommendations to the court accordingly.

Upon a successful one-year placement in outpatient, the court must hold a restoration of sanity trial. The trial may occur prior to the one-year date only upon the recommendation of the CONREP director to that effect, though this extremely rare in practice. The restoration of sanity “trial,” includes a jury trial guarantee. People v. Superior Court (Almond), 219 Cal. App. 3d 607 (Cal. App. 1st Dist. 1990). The initial outpatient placement hearing, conversely, does not. People v. Tilbury, 54 Cal. 3d 56 (1991). The applicant has the burden of proof by a preponderance of the evidence. Penal Code Section 1026.2(k). If either the court denies the initial application for release to outpatient or restoration is denied at the trial, no new application may be made within one year. Penal Code Section 1026.2(j). If the court or jury finds in the defendant’s favor, he or she will be “unconditionally” released into the community. The court thereafter loses jurisdiction over the defendant’s case.

While both Sections 1604 and 1026.2 contain explicit procedural deadlines, a defendant may not have readily available remedies for the violation of the statutory provisions by the treatment providers or the court. Recently, a Court of Appeals found that a trial court had good cause to delay transferring a hospitalized defendant to CONREP following a successful outpatient placement hearing, where CONREP informed the court that it could take “several months” to place defendant, and three different programs had rejected defendant as not suitable. People v. Parker, 231 Cal. App. 4th 1423 (Cal. App. 4th Dist. 2014). This indicates that a delay in placement following a favorable ruling is not necessarily grounds for appellate relief.

As noted above, the recommendations of the relevant treatment providers, on which the court will rely heavily in making its rulings, are likely to vary depending on whether the defendant is seeking full restoration under Section 1026.2 or simply conditional release to outpatient treatment under Section 1604. Practitioners will want to consult with the relevant treatment providers prior to bringing a motion under either section to assess the likelihood of a favorable recommendation. 


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