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Not Guilty By Insanity Verdicts in California

Posted by Dmitry Gorin | Feb 25, 2021

Restoration of Sanity for Defendants Found Not Guilty by Reason of Insanity

Our law firm has had several high-profile murder cases with successful, Not-Guilty-By-Insanity Verdicts (NGI). Both clients have been released from the mental hospital following treatment.

Not Guilty by Insanity Verdicts in California
When a defendant is found not guilty by reason of insanity, they are committed to a state hospital.

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 through a jury's 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, counsel and the courts consider options to transition the defendant out of the State Hospital and into a community outpatient treatment program, commonly known as “CONREP.”

Self-Advocacy for Conditional Release Program

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 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 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. 

Self-Advocacy for Conditional Release Program
A petition for outpatient treatment can be initiated by many different people in the process.

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 their own recommendation regarding outpatient placement to the court as well as 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 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.

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 and the defendant may be “revoked” and re-committed to the State Hospital if any concerns for public safety arise during outpatient treatment.

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 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 § 1026.2(l).)

Transfer to 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 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 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 proceedings: an outpatient placement hearing and a restoration of sanity trial thereafter.  (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:

Restoration of Sanity – Penal Code 1026.2 PC
An alternative for getting an NGI defendant released is restoration of sanity under Penal Code 1026.2 PC.
  • “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).) 

The timeline which results from a finding in the defendant's favor at a Penal Code Section 1026.2 outpatient hearing is, however, 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 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 PC 1604, 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 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) (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 defendant, and three different programs had rejected 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:

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  • 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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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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