— I respectfully dissent. In mentally disordered offender (MDO) law, “[t]he term ‘remission’ means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.” (Pen. Code, § 2962, subd. (a).)1 The majority hold that if an MDO has been physically violent during the year period before a recommitment determination is made, the trial court is automatically required to find that he is not in remission within the meaning of section 2962 subdivision (a). As I shall explain, this holding makes section 2962 subdivision (a) a mandatory presumption which violates an MDO’s constitutional due process rights. It also has the effect of rendering the remaining commitment time tantamount to punishment, contrary to the purpose of the MDO statutory scheme. In these circumstances, section 2962 subdivision (a) should be construed as a permissive presumption so as to preserve its constitutionality.
The People argue that the spitting incident was an act of violence within the meaning of section 2962 subdivision (a) and this required automatic recommitment. Section 2962 subdivision (a) provides: “A person ‘cannot be kept in remission without treatment’ if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in *1409remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another . . . , or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan.”
The trial court stated that “I am not bound by the statute” and that respondent has “been in remission for a long time .... [T]he only reason to say he cannot be kept in remission had to do with this one event where he spit at a patient, and I did find that was not in self-defense.” The trial court found that respondent is “in remission, and he can be kept in remission.”
The People contend and the majority hold that section 2962 subdivision (a) is a rule of substantive law, which required the trial court to find, as a matter of law, that respondent was not in remission. As a matter of statutory construction, section 2962 subdivision (a) should be construed to avoid doubts concerning its constitutionality. (E.g., United States v. Bass (1971) 404 U.S. 336, 348 [30 L.Ed.2d. 488, 496-497, 92 S.Ct. 515]; In re Howard N. (2005) 35 Cal.4th 117, 135-136 [24 Cal.Rptr.3d 866, 106 P.3d 305]; People v. Roder (1983) 33 Cal.3d 491, 505-506 [189 Cal.Rptr. 501, 658 P.2d 1302].)
Although MDO proceedings are civil in nature, the Legislature has provided certain due process protections including the requirement that the People prove the statutory criteria beyond a reasonable doubt. (§ 2972, subd. (a); People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1275 [123 Cal.Rptr.2d 535].) It is settled that evidentiary presumptions that reduce the People’s burden of proving every element of an offense violates a defendant’s due process rights. (Ulster County Court v. Allen (1979) 442 U.S. 140, 156 [60 L.Ed.2d 777, 789-792, 99 S.Ct. 2213]; People v. Roder, supra, 33 Cal.3d at pp. 496-497.) An MDO finding is not a crime but does have elements, one of which is nonremission.
Our courts draw a sharp distinction “between a permissive presumption and a mandatory presumption. A permissive presumption allows — but does not require — the trier of fact to infer the ultimate fact from proof by the prosecutor of the ‘basic’ fact, and places no burden of any kind on defendant. A mandatory presumption tells the trier of fact that it must find the ‘elemental fact’ upon proof of the ‘basic fact’ unless the defendant comes forward with some evidence to rebut the presumed connection between the two facts. [Citation.]” (People v. Milham (1984) 159 Cal.App.3d 487, 503 [205 Cal.Rptr. 688], citing People v. Roder, supra, 33 Cal.3d at pp. 497-498.)
*1410Relying on People v. McCall (2004) 32 Cal.4th 175 [8 Cal.Rptr.3d 337, 82 P.3d 351], the People contend that section 2962, subdivision (a) is a rule of substantive law rather than an evidentiary presumption. In McCall, the defendant was prosecuted for possession of hydriodic acid with intent to manufacture methamphetamine. (Health & Saf. Code, § 11383, subd. (c)(2).) The trial court instructed the jury, pursuant to Health and Safety Code section 11383, subdivision (f), that possession of red phosphorus and iodine “ ‘sufficient for the manufacture of hydriodic acid with the intent to manufacture methamphetamine, shall be deemed to be’ ” unlawful possession of hydriodic acid. (People v. McCall, supra, 32 Cal.4th at p. 181, italics added.) The California Supreme Court held that Health and Safety Code section 11383, subdivision (f), with its “shall be deemed” language, was not an evidentiary presumption. (32 Cal.4th at p. 188.) “The phrase ‘shall be deemed,’ as utilized in section 11383(f), simply created a rule of substantive law; to wit, the possession of red phosphorous and iodine with intent to manufacture methamphetamine was the legal equivalent of possession of hydriodic acid with intent to manufacture methamphetamine.” (Ibid.) The court explained that “the definitional phrase ‘shall be deemed’ is a legislative staple that appears in thousands of California statutes.” (Ibid.)
Unlike McCall, the MDO law does not contain a “shall be deemed” definitional phrase. Our Supreme Court, in dicta, has indicated that section 2962, subdivision (a) is permissive: “The MDO Act’s definition of the phrase ‘cannot be kept in remission without treatment’ may be met by a finding of recent dangerousness . . . .” (In re Qawi (2004) 32 Cal.4th 1, 24 [7 Cal.Rptr.3d 780, 81 P.3d 224], italics added.) An act of physical violence committed nine months before the Board of Prison Terms or the trial court make its determinations, cannot logically be the “legal equivalent” of nonremission months later. But it may be evidence of nonremission. A mandatory presumption is reconcilable with the prosecution’s burden of proof “only if the basic fact proved compels the inference” that the severe mental disorder is not in remission. (People v. Roder, supra, 33 Cal.3d at p. 498, fn. 7.) Here, the spitting incident does not “compel” the inference of “non-remission” nine months later. Contrary to the majority view, committing an act of physical violence not in self-defense does not create an “alternate basis” for satisfying the nonremission requirement. (Maj. opn., ante, at p. 1407) It is just one way to prove the element of “non-remission.”
Pursuant to the People’s construction of section 2962 subdivision (a), as adopted by the majority, an act of physical violence on the first day of an *1411MDO recommitment requires an MDO to serve 364 days of confinement before facing automatic recommitment for another year even though treatment has been successful and the severe mental disorder is in remission. If this is so, the remaining 364 days of recommitment time is tantamount to punishment. This would undermine, if not totally eviscerate, the underlying purpose of the MDO law which is to provide MDO’s with treatment while at the same time protect the general public from the danger posed by an offender with a mental disorder. (§ 2960; In re Qawi, supra, 32 Cal.4th at p. 9; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1444 [67 Cal.Rptr.2d 759] [MDO law is not punitive in purpose or effect].) “The purpose of the MDO statutory scheme is to provide mental health treatment for those offenders who are suffering from presently severe mental illness, not to punish them for their past offenses.” (People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837 [58 Cal.Rptr.2d 32].)
Section 2962, subdivision (a) should be construed as a permissive presumption, which allows, but does not require, the trier of fact to infer that a severe mental disorder is not in remission. (See In re Howard N., supra, 35 Cal.4th at pp. 135-136 [interpreting Welf. & Inst. Code, § 1800 to preserve statute’s constitutionality for extended civil commitment of Youth Authority ward].) We have previously held that the trier of fact is required to take a “snapshot view” of the defendant’s mental status as of the time of the BPT hearing. (People v. Tate (1994) 29 Cal.App.4th 1678, 1682 [35 Cal.Rptr.2d 250].) The “snapshot view” is not to be taken at the time of a previous act of physical violence. Section 2962 subdivision (a) permits the trier of fact to look at certain factors from which it can infer that the severe mental disorder cannot be kept in remission. Those factors include a physical act of violence not in self-defense, serious threats of substantial physical harm upon another, intentionally causing property damage, or failure to voluntarily follow the treatment plan. (In re Qawi, supra, 32 Cal.4th at p. 24; see also People v. Beeson (2002) 99 Cal.App.4th 1393, 1400 [122 Cal.Rptr.2d 384] [Legislature has provided “additional factors in gouging a person’s current condition.”].)
Although respondent was involved in an altercation nine months before the BPT hearing, the evidence showed that he was in remission, was following the treatment plan, and could control his behavior without endangering the public. The trial court found that respondent “has been doing everything he needs to do, and is on meds and is in remission[;] it’s hard to ignore that cooperation, and what he’s doing. And Dr. Kelly said he would like to see him on conrep [i.e. an outpatient treatment program].”
*1412The majority concludes that section 2962, subdivision (a) trumps the trial court’s factfinding powers and requires, as a matter of law, that respondent be recommitted for another year. If the majority is correct, an MDO who has been physically violent not in self-defense will not have much of a recommitment trial. The People need only call a lay witness to testify to the act of physical violence. All other evidence, including psychiatric testimony would be irrelevant. This does not sound like due process of law to me.
Respondent’s petition for review by the Supreme Court was denied November 16, 2005.
All statutory references are to the Penal Code.