Conservatorship of Hofferber

RICHARDSON, J.

I concur in the judgment. As the majority opinion explains, any continued confinement of appellant must be supported by a finding that he remains dangerous to himself or others. I respectfully dissent, however, from the majority’s further holding that the fact of dangerousness must be established beyond a reasonable doubt. Although that strict standard of proof may be appropriate to justify the initial civil commitment of one merely suspected of being gravely disabled by virtue of a mental disorder (Conservatorship of Roulet (1979) 23 Cal.3d 219, 229-230 [152 Cal.Rptr. 425, 590 P.2d 1]), a lesser standard clearly is appropriate here, based upon a prior probable cause determination that appellant has committed a violent felony, namely, murder.

The majority candidly acknowledges that grounds exist for “some separate treatment of permanently incompetent criminal defendants formally charged with violent felonies. . . . Allegedly they have engaged in violence so critical that serious criminal charges were believed appropriate.” Judicial officers “have found substantial evidence that the alleged conduct actually was committed as alleged. Those determinations of probable cause establish strong grounds to believe that, by concrete acts, the incompetent defendants already have seriously imperiled public safety and thus are particularly dangerous.” (Ante, p. 173, italics added.) Our cases support the majority’s thesis that separate legal treatment or classification is appropriate, for equal protection purposes, with respect to mentally ill persons whose criminal propensities have already been judicially determined. (See In re Moye (1978) 22 Cal.3d 457, 462 [149 Cal.Rptr. 491, 584 P.2d 1097]; In re Franklin (1972) 7 Cal.3d 126, 146 [101 Cal.Rptr. 553, 496 P.2d 465].)

The majority properly rejects the argument that a prior probable cause determination of violent, felonious conduct by a mentally incompetent person should give rise to a “permanent, conclusive presumption of continuing dangerousness.” (Ante, p. 177, italics added.) A probable cause determination lacks that degree of certainty which would warrant such an extreme solution, allowing, as it would, a commitment of unlimited duration. Yet the majority’s alternative, requiring proof of dangerousness beyond a reasonable doubt, is equally extreme and unwarranted, ignoring equally grave considerations of public safety.

Given appellant’s conceded status as a mentally incompetent person who has previously been adjudged to have probably committed murder, his continued confinement should be upheld by a determination, based upon the preponderance of the evidence, that he remains dangerous to himself or others. Such a standard of proof, standing midway between the extremes discussed above, achieves an appropriate balance between the right of appellant to fair and equal treatment under the law, and the right of the general public to protection from persons of demonstrated dangerous propensities.

Clark, J., concurred.