Filed 7/24/14 P. v. D.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058640
v. (Super.Ct.No. FELSS1103171)
D.W., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant D.W., a Mentally Disordered Offender (MDO), appeals from an order
revoking his outpatient status under Penal Code section 1608.1 He contends the
mandatory statutory procedures outlined in sections 1608 and 1610 were not followed,
and his statutory and due process rights were violated when the trial court allowed the
admission of unlimited hearsay. Rejecting his contentions, we affirm.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant was committed and admitted to Atascadero State Hospital on
November 2, 2003, after being certified as an MDO, parolee, pursuant to section 2962.
He was administratively transferred to Patton State Hospital (Patton) on June 7, 2005,
and his legal status was converted to MDO, former parolee, on November 2, 2006,
pursuant to section 2972. His controlling crime was a violation of section 4501.5, battery
on a nonprisoner.
Prior to August 31, 2012, the San Bernardino County District Attorney petitioned
the court pursuant to section 2970 to establish that defendant met the criteria of an MDO.
On August 31, 2012, defendant withdrew his opposition to the petition and agreed to
proceed with a placement hearing. As a result of the hearing, the trial court ordered that
defendant receive community outpatient treatment via the Gateways Conditional Release
Program (CONREP).2 In preparation for this placement, CONREP met with defendant to
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 CONREP is “an involuntary treatment program created by the Legislature and includes requirements for treatment and supervision.” (People v. DeGuzman (1995) 33 Cal.App.4th 414, 416.)
2 have him sign the terms and conditions of outpatient treatment and to assess his current
functioning for purposes of developing a treatment plan. Following the meeting,
Dr. Nicole Paglione, psychologist, submitted a letter to the trial court dated
September 28, 2012, opining that defendant required the level of care offered at a state
hospital; nonetheless, CONREP continued complying with the court’s order to place
defendant in outpatient treatment.
Following delays in receiving the necessary documentation to facilitate the
transfer from Patton to CONREP, Dr. Paglione sent another letter to the court dated
January 3, 2013, informing the judge about defendant’s “serious decompensation” and
her request that the court rescind its placement order. On January 24, 2013, the trial court
held a hearing pursuant to sections 2966 and 2970. After hearing the testimonies of three
doctors, the trial court found “no specific accounts of violent behavior, or any destruction
of property. The hallucinations have not been violent in nature . . . .” The court ordered
defendant released to CONREP “in the community outpatien[t] treatment program
IMMEDIATELY . . . .”
On April 2, 2013, Drs. Daniel J. Lance, forensic clinician, and Wendy A. Hatcher,
Psychologist, along with Dr. Daniel Sussman, Program Director, filed a letter with the
court entitled “Notification of Rehospitalization.” In the letter, Dr. Sussman notified the
court under sections 1608 and 1610 that defendant had been rehospitalized on that date
“due to psychiatric decompensation, behavioral instability, and non-compliance with
program rules and the terms and conditions of outpatient treatment.” Dr. Sussman further
stated CONREP was “seeking a revocation of [defendant’s] outpatient status,” and that it
3 would also submit a more detailed report regarding the circumstances leading up to the
rehospitalization. The detailed report was submitted via an April 10, 2013, letter entitled
“Request for Revocation of Outpatient Status.”
On April 22, 2013, the trial court held an evidentiary hearing. After listening to
the testimonies of the various experts, the court found that defendant had violated the
terms and conditions of his outpatient program and that he could not be safely and
effectively treated in the community, and ordered the outpatient treatment program
revoked under section 1608. Defendant appeals.
II. DISCUSSION
A. Statutory Procedures for Revocation of Outpatient Treatment
Defendant contends that CONREP’s failure to comply with the statutory
requirements of sections 1608 and 1610 resulted in his illegal hospitalization for eight
days and his counsel being deprived of “a full opportunity to prepare for the hearing.”
Noting that “no specific remedy for this violation of [his] rights is provided by the
statute,” defendant “suggests . . . that the appropriate remedy is the reversal of the
judgment of the trial court and an order placing [him] back into the conditional release
program.”
Section 1608 provides, in relevant part: “If at any time during the outpatient
period, the outpatient treatment supervisor is of the opinion that the person requires
extended inpatient treatment or refuses to accept further outpatient treatment and
supervision, the community program director shall notify the superior court in either the
county which approved outpatient status or in the county where outpatient treatment is
4 being provided of such opinion by means of a written request for revocation of outpatient
status. . . . [¶] Within 15 judicial days, the court where the request was filed shall hold a
hearing and shall either approve or disapprove the request for revocation of outpatient
status. If the court approves the request for revocation, the court shall order that the
person be confined in a state hospital or other treatment facility approved by the
community program director. . . .”
Section 1610, in relevant part, provides: “(a) Upon the filing of a request for
revocation under Section 1608 . . . and pending the court’s decision on revocation, the
person subject to revocation may be confined in a facility designated by the community
program director when it is the opinion of that director that the person will now be a
danger to self or to another while on outpatient status and that to delay confinement until
the revocation hearing would pose an imminent risk of harm to the person or to
another. . . .”
Here, on April 2, 2013, CONREP submitted a letter to the court, notifying it
pursuant to sections 1608 and 1610 that defendant had been rehospitalized on that date
“due to psychiatric decompensation, behavioral instability, and non-compliance with
program rules and the terms and conditions of outpatient treatment.” The letter informed
the court that CONREP was seeking revocation of defendant’s outpatient status and that a
full report regarding the circumstances of defendant’s rehospitalization would be
provided forthwith. On April 10, 2013, CONREP sent a letter entitled “REQUEST FOR
REVOCATION OF OUTPATIENT STATUS.”
5 On April 19, 2013, defendant’s counsel objected to the “late filing of the request
for revocation” on the grounds he was “having to try to be ready in a short time.” Given
the April 2 controlling date, the trial court set a hearing on April 22, within the 15 judicial
days as required by section 1608. On April 22, defense counsel again objected on
grounds of insufficient notice. In response, the prosecutor noted that the statute required
a hearing date no later than April 22 unless defendant waived time. Thus, she stated that
“if counsel feels unprepared, he can always waive time on behalf of his client.” Defense
counsel replied: “Well, I believe I’m sufficiently prepared to question Dr. Lance. The
only issue that may occur is whether or not we need Dr. Reddy to testify . . . with regard
to the medication that [defendant] was prescribed prior to his release from Patton. I don’t
believe we’ll need him based upon what I anticipate will come from the witnesses here
today. . . . But we may have to . . . request a brief continuation in the hearing so that we
can have Dr. Reddy available.” The court confirmed that defense counsel was not asking
for additional time, but objecting because he should have had more notice. Defendant’s
primary complaint was that CONREP waited eight days while he was at Patton before
submitting the letter outlining the circumstances supporting revocation of his outpatient
status.
On appeal, defendant argues that the April 2 letter failed to qualify as a request for
revocation pursuant to section 1608. However, he offers no legal authority to support his
argument. We turn to the language in the statute, which provides that a program director
is only required to notify the court in writing of its “opinion that [defendant] requires
6 extended inpatient treatment or refuses to accept further outpatient treatment and
supervision.” (§ 1608.) The April 2 letter complied with the statutory requirements.
Regarding defendant’s claim that his counsel was “deprived” of the ability to fully
prepare for the revocation hearing because he did not receive any paperwork until
April 17, we note the record shows that counsel was aware that defendant had been
rehospitalized as early as April 13, and he was given, but refused, the opportunity to
continue the hearing to allow for more time to prepare. Further, counsel represented that
he was sufficiently prepared and was not asking for more time. In fact, defense counsel
specifically discussed the opportunity to continue the hearing with defendant and
confirmed that they were “not asking for a continuance.” Defense counsel represented
that the only potential issue was that he may need to call a witness who had not yet been
subpoenaed, and thus, a brief, partial continuance may be necessary. The court expressed
its willingness to accommodate any request for a brief continuance. Given the record
before this court, there is no evidence that would support a finding that defendant
suffered from the court setting a hearing date on April 22, 2013.
Notwithstanding the above, defendant disputes the meaning of the April 2, 2013,
letter. He submits it should be “interpreted as being exactly what it says it is, a
‘Notification for Rehospitalization.’” Thus, he argues that CONREP’s request for
revocation of outpatient status was not made until April 10, 2013. Assuming defendant’s
argument is correct, we are at a loss as to his complaint. As the People aptly point out,
section 1608 does not provide a minimum notice period before which a hearing can be
held. Instead, it specifies the maximum amount of time that can pass before a hearing is
7 held. This maximum timeline serves to protect the individual’s liberty interests so that he
or she is not unduly confined without a proper showing by the state. Whether we use the
April 2 or the April 10 date as the starting date, defendant’s revocation hearing was held
within 15 judicial days of either date.
To the extent defendant contends CONREP lacked the authority to transfer him
back to Patton on April 2, pending its April 10 letter requesting revocation of outpatient
status, he has not provided, nor have we found, any requirement that CONREP continue
to maintain defendant in outpatient treatment pending the conclusion of the revocation
hearing.
B. Violation of Due Process Rights by Admission of Hearsay Evidence
Defendant contends his statutory and due process rights were violated when the
trial court erroneously admitted “unlimited hearsay” during the hearing. He claims that,
without the hearsay evidence, there was insufficient evidence to support the court’s
decision. Defendant acknowledges that his trial counsel did not object to each item of
hearsay; however, he argues (1) based upon the trial court’s rulings, repeated objections
would have been futile, and/or (2) the failure to object constituted ineffective assistance
of counsel.
We begin by reviewing the evidence admitted at the hearing. Dr. Daniel Lance,
defendant’s primary therapist at CONREP, testified. The doctor began treating defendant
on February 20, 2013. He was being treated for “schizoaffective disorder, bipolar type.”
Dr. Lance testified that on September 14, 2012, defendant had signed the terms and
conditions of outpatient treatment, and on November 7, 2012, he signed an addendum to
8 the document. Dr. Paglione, defendant’s forensic evaluator, informed Dr. Lance that she
was present when defendant signed the terms and conditions and that she had discussed
them with defendant, who understood them.
Dr. Lance wrote the April 10, 2013, letter. He explained that defendant’s
outpatient status was revoked due to noncompliance with the terms and conditions, as
well as an increase in psychiatric symptoms and behaviors. Specifically, defendant
violated Other Individual Terms and Conditions No. 2, that he take all of his prescribed
medications; No. 3, that he comply with procedures, including mouth checks and blood
draws; No. 5, that he refrain from engaging in acts of self-harm, such as swallowing
foreign objects, refusing multiple consecutive meals, head banging and other suicidal
gestures; and No. 10, that he immediately report to staff any worsening of his mental
illness, including auditory hallucinations, feelings of panic, anxiety, restlessness, inability
to sleep, appetite or mood disturbances, delusional thinking, and agitation.
Defendant began violating the terms and conditions within a few days of arriving
at CONREP. Regarding condition No. 2, Dr. Lance testified that at his initial meeting
with defendant, defendant indicated he had some anxiety for which he was prescribed
Celexa; however, he refused to take it. Within a week of arriving at CONREP, defendant
became noncompliant with his medications. Regarding condition No. 5, Dr. Lance
observed or was informed by staff that defendant refused meals for three days and threw
away entire plates of food on multiple occasions; that he frequently did not drink or finish
his Ensure, a supplemental nutrition drink prescribed; and that he took full Ensure bottles
to his room, which were found during a room search. Dr. Lance had explained to
9 defendant the importance of complying with the rules regarding his meals and of
complying with the terms and conditions of his treatment.
Regarding condition No. 10, because defendant’s record showed that he had a
history of having auditory hallucinations, he was to report any hallucinations. Staff
reported that defendant was talking to himself on at least three occasions; however, when
Dr. Lance asked defendant about this, he denied it. Staff also reported that defendant was
restless, clenched his fists, and paced while he was talking to himself. Dr. Lance
explained that when a person speaks to himself, it is indicative of responding to internal
stimuli such as auditory or visual hallucinations, and the clenching of fists indicates
anger. Defendant did not sleep the night of April 1; he did not report it, and when asked
about it, he said it was not an issue.
Defendant had numerous gastrointestinal complaints, which Dr. Lance opined
were delusions. He based his opinion on reports from Patton that indicated multiple
physical assessments had been completed and no medical issue had been found.
Dr. Lance personally observed defendant’s preoccupation with his gastrointestinal issues
and believed defendant’s thought process was substantially impaired by the delusions.
Although defendant began violating his terms and conditions soon after his
transfer to CONREP, CONREP did not seek revocation of his treatment status
immediately because they wanted to help him become compliant. In Dr. Lance’s
opinion, when defendant was returned to Patton it was because he represented a
substantial danger of physical harm to others due to his severe mental disorder. The basis
of his opinion was defendant’s continued noncompliance with the terms and conditions of
10 his treatment, the active symptoms of his mental disorder, his refusal to eat certain meals,
his breaking minor rules, and his interactions with staff. According to Dr. Lance,
defendant’s refusal to take his medication would likely lead to decompensation, which
would exacerbate symptoms such as delusions and hallucinations, which could lead to
acting out violently. Further, defendant’s anxiety, if untreated, could cause him to
become agitated, making him more likely to act out against others.
The court questioned Dr. Lance about his report. Dr. Lance testified that he saw
contraband, consisting of a large garbage bag full of food, in defendant’s room. This
violated condition No. 5, which required defendant to eat his meals, and it violated
“additional house rules” because it is a health hazard and “against CCL licensing” for
patients to have food in their rooms. Defendant was told, both before and after the
violation, that it was a violation to store food in his room. Defendant was caught on
multiple occasions saying that he was going to call 911. On one occasion Dr. Lance was
present. Defendant’s reason for wanting to call 911 was to talk to his father about his
gastrointestinal problems. Dr. Lance was concerned because of how quickly defendant
became angry and agitated when asked questions. Dr. Lance opined that based on his
own conversations with defendant, as well as those reported by defendant’s treating
psychiatrist, “it seemed as if [defendant] does not have insight as far as his mental illness
[is concerned].” This made treatment difficult because defendant would fixate on issues,
such as being unjustly medicated, and would deny other problems the staff discussed with
him.
11 At the conclusion of the hearing, the court approved the request for revocation. In
reaching its decision, the court explained that: (1) it was “very familiar” with defendant,
having presided over the multiple-day trial that resulted in defendant’s release to
CONREP; (2) it was concerned that defendant was “clenching his fists [and] yelling at
staff”; (3) it was concerned that defendant was difficult to redirect and was fixated on
“imagined somatic symptoms” to the point that he was agitated and wanted to call 911;
(4) it was concerned that defendant was hording food in his room while refusing to eat or
drink his Ensure; and (5) it was concerned about his refusal to take his mood-stabilizing
medication, along with his failure to report hallucinations and sleep disturbances. The
court noted that in a short period of time defendant had violated, on multiple occasions, a
significant number of terms and conditions of his outpatient treatment. Because the
situation was not merely a violation of one term, the court approved the request for
revocation.
Before an individual’s outpatient status may be revoked pursuant to section 1608,
the prosecution must prove, by a preponderance of the evidence, that the individual
requires (1) extended inpatient treatment, or (2) refuses to accept further outpatient
treatment and supervision. (§ 1608; People v. DeGuzman, supra, 33 Cal.App.4th at p.
419.) The trial court’s broad discretion to revoke the outpatient status of a committed
acquittee will be upheld absent an abuse of discretion (People v. Henderson (1986) 187
Cal.App.3d 1263, 1267-1268); on review, the revocation order will be reversed only if
not supported by substantial evidence. (In re McPherson (1985) 176 Cal.App.3d 332,
341-342.)
12 Defendant primarily faults the trial court for admitting and relying upon hearsay
evidence. The contention is meritless. The sole witness to testify at the hearing was
Dr. Lance, who provided his expert opinion regarding the need to revoke defendant’s
outpatient status. “A witness testifying in the form of an opinion may state on direct
examination the reasons for his opinion and the matter . . . upon which it is based, unless
he is precluded by law from using such reasons or matter as a basis for his opinion.”
(Evid. Code, § 802.) Also, an expert witness may rely on competent hearsay as the basis
for an opinion, so long as it is “of a type that reasonably may be relied upon by an expert
in forming an opinion upon the subject to which his [or her] testimony relates . . . .”
(Evid. Code, § 801, subd. (b); see People v. Arias (1996) 13 Cal.4th 92, 184.) Thus, there
is no error in permitting an expert to describe the basis for his or her opinion, even if it
entails placing otherwise inadmissible hearsay on the record. (People v. Gardeley (1996)
14 Cal.4th 605, 617-6193; Arias, supra, at p. 184.)
Moreover, in this case, Dr. Lance had the opportunity to interact with and evaluate
defendant personally. The doctor testified that he had been working with defendant since
his arrival at CONREP, and he was familiar with defendant’s case history and record.
3 “Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] . . . . [¶] So long as [the] threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his [or her] opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)
13 This is not a case where the expert on whose testimony the trial court based its
determination had no personal knowledge of the defendant’s behavior, history and
condition. (Cf. In re McPherson, supra, 176 Cal.App.3d at pp. 340-341 [outpatient
revocation order reversed, where trial court wrongly failed to conduct de novo hearing
and relied on hearsay testimony of doctor who had virtually no personal knowledge of
defendant’s behavior in applying abuse of discretion standard to outpatient supervisor’s
opinion regarding defendant’s treatment needs].)
We reject defendant’s challenge to the court’s admission of hearsay evidence and
conclude there was no violation of his statutory or due process rights. Accordingly,
defendant’s claim that his counsel was ineffective is moot. Furthermore, we conclude
that substantial evidence supports the court’s decision to revoke defendant’s outpatient
III. DISPOSITION
The order revoking defendant’s outpatient status is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:
RAMIREZ P.J.
RICHLI J.