People v. McDonough

In People v. McDonough (2011) 196 Cal.App.4th 1472, the director of the state hospital recommended outpatient treatment and all the experts concluded defendant was not a danger and would benefit from such treatment. (McDonough, supra, 196 Cal.App.4th at p. 1490.) The McDonough court cautioned the "'judge's role is not to rubber-stamp the recommendations of the state hospital doctors and the community release program staff experts. Those recommendations are only prerequisites for obtaining a hearing. .' . In other words, a trial court is not required 'to follow the recommendations of doctors and other expert witnesses' so long as the court's reasons for rejecting the recommendations are not arbitrary. ." (Ibid.) The McDonough court discussed what considerations by a trial court would be deemed appropriate. "A primary concern of a court called upon to decide whether to grant outpatient treatment to an individual committed to a state hospital as the result of a violent act caused by mental illness, is whether outpatient treatment will pose an undue risk to the safety of the community. . For that reason, a court considers 'the circumstances and nature of the criminal offense leading to commitment and . . . the person's prior criminal history.' ( 1604, subd. (c).) After all, commitment of an act constituting a criminal offense and the fact that the act was caused by a mental illness permit an inference that at the time of the verdict the defendant was mentally ill and dangerous. . As it relates to current dangerousness, however, the inference may become weaker as substantial time elapses. (See e.g., In re Lawrence (2008) 44 Cal.4th 1181, 1219 'At some point . . . when there is affirmative evidence, based upon the prisoner's subsequent behavior and current mental state, that the prisoner, if released would not currently be dangerous, his or her past offense may no longer realistically constitute a reliable or accurate indicator of the prisoner's current dangerousness'.)" (McDonough, supra, 196 Cal.App.4th at pp. 1490-1491.) The McDonough court stated it was defendant's burden to show "by a preponderance of the evidence that she is 'either no longer mentally ill or not dangerous.' ." (McDonough, supra, 196 Cal.App.4th at p. 1491.) However, when all the experts unanimously agree the defendant is no longer dangerous and would benefit from outpatient treatment, "we look to the court's reasons for rejecting this substantial amount of testimony to determine whether the reasons are arbitrary." (Ibid.) In McDonough, the appellate court determined the trial court's reasons for denying release were arbitrary and reversed the judgment. It determined the trial court's attempt to discredit one of the experts was based on an insignificant fact and could not justify the ruling. (McDonough, supra, 196 Cal.App.4th at p. 1491.) The court noted there was nothing to refute the evidence defendant had gained "the appropriate insight into her mental illness, knows her symptoms, triggers, and understands that her biggest coping skill is taking her medication." (Ibid.) In addition, the appellate court determined it was improper for the trial court to find fault with defendant for not attending all the CONREP group meetings because participation was not a requirement, especially when defendant had already learned what the course had to offer and attendance "served no legitimate purpose." (Id. at p. 1492.) In McDonough, the trial court found significant that defendant "had not 'come even close to identifying an appropriate program of supervision and treatment.'" (McDonough, supra, 196 Cal.App.4th at p. 1492.) The appellate court concluded this was not an appropriate consideration. It recognized section 1603 "requires the community director to 'identify an appropriate program of supervision and treatment' ( 1603, subd. (a)(2)), and the granting of outpatient status when 'the court specifically approves the recommendation and plan for outpatient status.' ( 1603, subd. (a)(3).)" (McDonough, supra, 196 Cal.App.4th at p. 1492.) However, the court determined, "the state may not continue to confine an individual who is no longer mentally ill or dangerous by its failure to provide the court with an adequate outpatient treatment program. To hold otherwise would place upon the patient an undue burden to prove that which is beyond the patient's ability or control." (Ibid.) "In other words, absent a determination the committed person is mentally ill and dangerous, flaws found in the proposed outpatient treatment plan . . . do not justify denying outpatient status." (Id. at p. 1493.)