Under California's insanity defense, you can't be convicted of a crime if you were legally insane when you committed it. Notably, you are considered legally insane if you did not understand the nature of your criminal act, or you did not understand that what you were doing was morally wrong.
This definition of legal insanity, known as the “McNaghten rule,” Is a legal standard used to determine criminal responsibility. It states that if you plead not guilty by reason of insanity, you must prove at trial that it is more likely than not that you were legally insane when you committed the crime.
The McNaghten rule specifically defines legal insanity as the inability to understand the nature of a criminal act or to distinguish right from wrong at the time of the crime.
Suppose the jury finds you “not guilty by reason of insanity.” In that case, you will be committed to a state mental hospital instead of being sent to prison.
If a defendant's mental state meets the McNaghten test, it doesn't matter whether it is a permanent or temporary condition. In other words, temporary insanity qualifies for the California insanity defense just as much as a permanent mental condition.
Notably, however, the number of mentally ill criminal defendants who plead not guilty by reason of insanity is low. For example, in the United States, only about 1% of all criminal defendants assert the insanity defense.
It is important to note that the California test for whether somebody is legally insane only requires the defendant to prove that they were incapable of understanding the nature of their act OR they were incapable of distinguishing right from wrong—not both.
Mental health problems and drug or alcohol addiction are often related. However, you cannot assert the legal defense of insanity just because you were addicted to drugs or alcohol when you committed the crime or you had recently used drugs or alcohol when you committed the crime.
The defendant, not the prosecutor, has the “burden of proof” on the insanity defense. California's insanity defense is known as an “affirmative defense.”
With an affirmative defense such as insanity, the defendant must prove that they were insane at the time of the crime and should, therefore, be excused from their criminal conduct. The prosecutor's role is to challenge the defendant's claim of insanity and present evidence to counter the defendant's argument.
The defendant who pleads the insanity defense is required to prove that they were insane when the crime was committed by a “preponderance of the evidence," meaning it is more likely than not that they were insane.
Restoration of Sanity for Defendants Found Not Guilty by Reason of Insanity
Our law firm has a proven track record of handling several high-profile murder cases with successful Not-Guilty-By-Insanity Verdicts (NGI). In each instance, our clients have been released from the mental hospital following treatment, a testament to our expertise and dedication.
When a criminal defendant in a California state case is found Not Guilty by Reason of Insanity (“NGI”) pursuant to Penal Code § 1026, whether through a negotiated plea or a jury verdict, the defendant is committed to the Department of State Hospitals.
In a State Hospital, the defendant is not free to leave and experiences many restrictions on the activities of daily life – except for:
- more frequent family visits,
- opposite sex population, and
- a more dorm-like feel to the location as opposed to an actual state prison.
For these defendants, our counsel and the courts meticulously consider options to transition the defendant out of the State Hospital and into a community outpatient treatment program, commonly known as “CONREP.” This careful consideration ensures the safety and well-being of all parties involved.
See related article: Release to outpatient and restoration of sanity after NGI verdict.
Self-Advocacy for Conditional Release Program
Several statutory mechanisms can accomplish this, and petitions for outpatient treatment can be initiated by several different actors.
Under Penal Code Sections 1603 and 1604 PC, 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 that 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.
Forwarding recommendation
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 the court with their recommendation regarding outpatient placement and a treatment plan for the defendant should they be placed in CONREP.
Court hearing
After receiving CONREP's report, the court must then calendar the matter for a hearing within 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.
Danger to the public (bold)
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. The defendant may be “revoked” and re-committed to the State Hospital if any concerns for public safety arise during outpatient treatment. However, the burden of proof is on the petitioner to establish that outpatient treatment would not pose a danger to the health or safety of others.
Restoration of Sanity – Penal Code 1026.2
The alternative, and potentially permanent, avenue for release of an NGI defendant is restoration of sanity under Penal Code § 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 defendant makes the application, however, the court shall take “no action” on the application without first receiving the written recommendation of the relevant treatment provider. (Penal Code § 1026.2(l).)
Transfer to a secure facility.
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 § 1026.2(b).)
The facility's program director must prepare a summary of the defendant's treatment for the parties and the court.
As with a Penal Code Section 1604 petition, no application under Penal Code Section 1026.2 may be made less than 180 days after the defendant is committed.
Restoration of Sanity Process
The restoration process consists of two main steps: an outpatient placement hearing and a restoration of sanity trial thereafter. (People v. Endsley (App. 4 Dist. 2018) 238 Cal. (People v. Endsley (App. 4 Dist. 2018) 238 Cal.Rptr.3d 879.)
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 § 1026.2(e).)
However, the timeline that results from a finding in the defendant's favor at a Penal Code Section 1026.2 outpatient hearing is different from that in a Penal Code Section 1604 hearing.
If the defendant prevails at a PC 1026.2 hearing, they are placed in CONREP for one year.
In practice, this also substantially changes the focus of treatment providers at the State Hospital and CONREP on evaluating the defendant and formulating a treatment plan prior to submitting their recommendations to the court.
Suppose 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 PC 1604. In that case, they are likely to tailor their recommendations to the court accordingly.
Restoration of Sanity Trial
Upon a successful one-year placement in outpatient, the court must hold a restoration of sanity trial.
The trial may occur before the one-year date only upon the recommendation of the CONREP director, though this is extremely rare in practice.
The restoration of sanity “trial” includes a jury trial guarantee. (People v. Superior Court (Almond) (App. 1 Dist. 1990) 219 Cal.App.3d 607, review denied.)
The initial outpatient placement hearing, conversely, does not. (People v. Tilbury (1991) 54 Cal.3d 56.) The applicant has the burden of proof by a preponderance of the evidence. (Penal Code § 1026.2(k).)
Denial of application
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 § 1026.2(j).)
Unconditional release
If the court or jury finds in the defendant's favor, they will be “unconditionally” released into the community. The court thereafter loses jurisdiction over the defendant's case.
While both Penal Code 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.
Court of Appeals (bold)
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 the defendant. Three different programs had rejected the defendant as not suitable. (People v. Parker (App. 4 Dist. 2014) 231 Cal.App.4th 1423, rehearing denied, review filed, review denied.)
This indicates that a delay in placement following a favorable ruling is not necessarily grounds for appellate relief.
Full Restoration of Sanity vs. Conditional Release
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 Penal Code 1026.2, or
- simply conditional release to outpatient treatment under Penal Code 1604.
Our Los Angeles mental health experts and criminal defense lawyers consult with treatment providers prior to bringing a motion under either section to assess the likelihood of a favorable recommendation.
Eisner Gorin LLP is a top-ranked criminal defense law firm serving people in Southern California.
We are located at 1999 Avenue of the Stars, 11th Fl., Los Angeles, CA 90067. Our main office is in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our firm for an initial consultation at (877) 781-1570.
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