Filed 12/10/13 P. v. R.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E057108
v. (Super.Ct.No. FELSS1104808)
R.A., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed.
Laurel M. Nelson, 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 Marilyn George and Meagan
J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant R.A. challenges the trial court’s order continuing his involuntary
treatment as a mentally disordered offender (MDO). He contends the trial was untimely,
violating his due process right to a fair trial; he was not advised of his right to a trial by
jury; and the evidence was insufficient to support the court’s finding. We disagree and
affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On October 20, 2011, the San Bernardino County District Attorney’s office filed a
petition for commitment as an MDO pursuant to Penal Code1 section 2970 et. seq. (the
Petition). The Petition alleged that defendant was presently a patient at Patton State
Hospital (PSH), was born in 1961, and his maximum commitment date was February 25,
2012. Attached to the Petition were the declaration of Deputy District Attorney Diane M.
Harrison, the recommendation of PSH Medical Director George Christison, M.D., and
the evaluation of Ai-Li Arias, M.D. Ms. Harrison declared that, based upon her review of
the evaluation and recommendation, defendant “has a severe mental disorder,” not in
remission, which caused him to represent a “substantial danger of physical harm to
others.” The nature of the “severe mental disorder” was not specified. However,
defendant was described as exhibiting such symptoms as agitation, paranoia, and poor
insight.
In her evaluation attached to the Petition, Dr. Arias summarized defendant’s
history, noting his initial commitment on November 15, 1993, pursuant to section 1026,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 following charges that he had threatened to “torch” his family’s home. (§ 422.)
Defendant was conditionally released on August 15, 1995; however, his release was
revoked approximately one year later for using methamphetamine, being absent without
leave, failing to make a scheduled appointment with his clinician, and making threats
against his mother. He was again released in May 1998, but his return to abusing illicit
substances and an attack on a deputy sheriff led to his being hospitalized at PSH in
August 2000. On March 1, 2001, defendant was convicted of assault with a deadly
weapon and resisting an officer, for which he was sentenced to three years in state prison.
After five months, defendant was transferred to PSH, where he stayed until November 4,
2002, when he was discharged to outpatient treatment. He resumed his work as a pipe
fitter, living with his parents until 2004, when he committed and was convicted of
violating section 368, subdivision (b)(1). Upon learning that he was to return to a mental
health facility, it was reported that defendant threw a computer into the fireplace and
struck both of his parents. On January 3, 2008, defendant was transferred from prison to
Atascadero State Hospital (ASH) pursuant to section 2684, subdivision (a), for acute
depressive symptoms and self-destructive impulses. Eight months later, he was found to
meet the criteria for treatment by the Department of Mental Health as a condition of
parole. On January 22, 2009, the San Luis Obispo County Superior Court decertified
defendant as an MDO and ordered him released.2 He was discharged from ASH on
2 Defendant requests augmentation of the record to include documentation from the San Luis Obispo County Superior Court regarding its order decertifying him as an [footnote continued on next page]
3 January 27, 2009. However, effective February 24, 2009, defendant’s parole was
suspended and he was returned to prison. On March 11, he was reinstated on parole. On
June 24, 2009, defendant’s mother reported that he had called her and “seemed
incoherent.” He was arrested and charged with violating a condition of parole that
prohibited contact with any victims, including his mother. Parole was revoked on
July 22, 2009, and he was re-admitted to ASH on November 30 following his
recertification as an MDO. His controlling discharge date was set for February 25, 2012.
On October 28, 2011, counsel was appointed to represent defendant. On
December 13, 2011, the parties stipulated and the court ordered the release of relevant
records from the California Department of Corrections and Rehabilitation, including
defendant’s mental health and medical records, to both parties. Multiple hearings were
scheduled, continued, and rescheduled over a period of 10 months. Defendant was not
present at any of these hearings, including the one when his counsel waived his right to
trial prior to his discharge date of February 25, 2012. Because of the delays, on
August 2, 2012, the medical director at PSH submitted a request for another petition for
continued involuntary treatment through February 25, 2014. Attached to the request was
a report by Dr. Steven Berman, a psychologist, who observed that defendant “has a
severe mental disorder” that is not in remission. Again, the nature of the “severe mental
[footnote continued from previous page]
MDO. The People oppose the request. We grant it and order the record augmented with the four pages attached to the request.
4 disorder” was not disclosed; however, defendant’s symptoms included agitation,
paranoia, poor insight, social withdrawal, and affective volatility.
On August 29, 2012, trial on the Petition commenced. Defense counsel moved to
dismiss the Petition based on the fact that defendant was not personally notified or
brought to court within the statutory time limits of section 2970, and that he was denied
his due process rights. The motion was denied. The following evidence was presented to
the trial court: Defendant testified that he was 50 years old and being housed at PSH. He
admitted that he had a mental illness and was diagnosed with Schizo-Affective Disorder,
and depression; however, he insisted that his disorder was all due to substance abuse, i.e.,
when he does not use drugs or abuse alcohol, he does not have psychotic symptoms. He
described past crimes dating back to when he was 16. He also admitted punching his
mother, who was 66, and his father, who was 70, throwing their computer into the
fireplace, and running naked into the woods. This occurred after he drank too much beer,
too many energy drinks, and Claritin medication. He claimed that most of his violence
occurred when he was under the influence of controlled substances, and when he is sober
he does not have violent outbursts.
Dr. Arias opined that defendant suffers from a severe mental disorder “described
in the psychotic spectrum.” “He has a lot of psychotic symptoms including auditory
hallucinations, delusions that have religious, persecutory, grandiose, and bizarre themes
in the past. He also has a lot of anxiety, a lot of paranoia about other people in general,
including patients and staff. [¶] He has also shown a lot of mood volatility in that he’ll
5 be calm and blow up for no reason if requested to do something simple like hold up his
arm for blood pressure.” According to Dr. Arias, defendant has a delusional belief that
he is not an MDO, despite having been recertified as such in November 2009. In spring
2012, defendant threatened to kill his psychiatrist. In May 2012, he yelled at staff for
perceived threats to himself. He thought the hospital staff was trying to kill him.
Dr. Arias described defendant as being “quite psychiatrically unstable” and not in
remission, as evidenced by recent episodes of agitation, verbal abuse towards staff for
denying his requests, and threats to his psychiatrist.
Dr. Arias’s report noted that defendant’s criminal history included arrests and/or
convictions for receiving stolen property, battery, showing false identification to a peace
officer, criminal contempt, petty theft, grand theft auto, assault with a deadly weapon,
spousal abuse, trespassing, vandalism, threatening crime with intent to terrorize, and
injury to an elder person likely to cause great bodily injury or death. He failed multiple
times to comply with parole and other conditional releases. In the months before the
hearing, defendant’s symptoms had quieted; however, he remained psychiatrically
unstable. Dr. Arias testified that defendant does not follow his treatment plans because
he fails to participate meaningfully in group therapy, continues to attempt to obtain
Sudafed in order to get high, and he has a history of hoarding pills so that he can later
crush and snort them to achieve a high. Defendant was diagnosed with Schizo-Affective
Disorder. The doctor opined that in an unsupervised setting, where multiple stressors
could exacerbate his symptoms, defendant would be unable to control his disorder
6 because he was unlikely to use his medications appropriately given his poor insight into
his mental illness.
According to Dr. Arias, while defendant understands that using illegal substances
and drinking alcohol will exacerbate his mental disorder, “he perseverates in his denial
that he actually has a primary psychotic disorder [which] prevents him from
understanding the gravity of the situation, and that he must stay away from abusing even
legal medications that are used typically for colds and allergies.” Given the actions that
led to his last arrest, Dr. Arias opined that defendant represents a substantial danger of
physical harm to others. Dr. Arias further reported that prior to the underlying offense,
defendant was talking with God all day, drank a six-pack of beer combined with Red
Bull, and took more than two days’ worth of Claritin. The resulting intoxication
“exacerbated his Schizo-Affective Disorder,” causing him to become violent, punch both
of his parents in the face, ransack their house, and set it on fire. When the police arrived,
defendant was “running around in the forest naked behind his parent[s’] residence,”
yelling incoherently “something about they are killing his babies.” He also had delusions
that he was born in 1960 instead of 1961, and was kept in a freezer for one year;
grandiose delusions that he was Richard the Lionhearted; and delusions that his cell
mates killed people and ate their body parts.
Dr. Arias noted that at one point, a psychopharmacology consultant diagnosed
defendant as having “Substance Induced Psychotic Disorder.” Once the underlying
psychotic disorder emerged, it did not go away; rather, it persisted without substance use.
7 The doctor was aware of studies that showed some effects of chronic use of
methamphetamine can cause lifetime mental illness; however, she noted that defendant
tends to improve when on a therapeutic dose of antipsychotic medication. Defendant had
recently agreed to take Abilify, an antipsychotic medication; however, previously he
“only wanted to take an anti-depressant because he’s firm in his belief that his only
problem is depression for being hospitalized at [PSH].” Dr. Arias opined that defendant
was not in remission, because he continued to have “a lot of underlying paranoia, mood
volatility, delusional beliefs, and very poor insight,” and he posed a substantial danger of
physical harm to others because he “continues to have ongoing symptoms of a severe
mental disorder, which impairs his . . . perception of reality, and leads to poor judgment
and behavior.” The doctor added that historically when defendant decompensated and
had active symptoms of his severe mental disorder, he became impulsive and aggressive
and caused injury to others.
At the close of the hearing, the trial court observed that defendant had improved
since he had been on the antipsychotic medication; however, the court found that
defendant continues to suffer from a severe mental disorder that is not in remission and
cannot be kept in remission without continued treatment. The court concluded that
because of his severe mental disorder, defendant represents a substantial danger of
physical harm to others, and thus, it extended his commitment to February 25, 2013, or
until further order of the court. Defendant appeals.
8 II. DUE PROCESS RIGHTS
Defendant begins by arguing that his fundamental due process rights were violated
in these proceedings.
A. Right to Speedy Trial
Defendant faults both the trial court and his counsel for failing to advise him of his
right to a speedy trial. Moreover, he claims the trial court erred in denying his motion to
dismiss for lack of a speedy trial.
Recognizing that MDO proceedings are civil in nature, defendant bases his claim
not on the Sixth Amendment’s speedy trial guarantee, but on statutory law and the
constitutional right to due process. (See generally People v. Williams (2003) 110
Cal.App.4th 1577, 1590 [“MDO commitment proceedings are civil in nature and
therefore defendants presented with possible commitment do not enjoy the constitutional
rights accorded criminal defendants”].) By statute, a hearing on a petition to extend an
MDO’s commitment should be held at least 30 days prior to his or her scheduled release
date. (§ 2972, subd. (a).) However, “th[is] 30-day trial deadline . . . ‘is directory and not
mandatory,’ and ‘is primarily designed to serve the interests of the public, rather than the
MDO, by providing reasonable assurance that an MDO . . . will not be released unless
and until a determination is made that he or she does not pose a substantial danger to
others.’ [Citation.] A trial commenced less than 30 days before an MDO’s scheduled
release date is not automatically invalid, nor does the trial court lose jurisdiction if trial
9 commences after the deadline has passed.” (People v. Noble (2002) 100 Cal.App.4th
184, 188, quoting People v. Williams (1999) 77 Cal.App.4th 436, 451, 454.)
It does not appear that defendant is arguing that the continuances of the trial
prejudiced him. On this record, they did not. Nonetheless, defendant claims that the
failure “to bring the matter to trial within the maximum time allowed was error.” Even if
we assume that error exists, defendant has not explained how he was prejudiced by this
error, other than to claim “[a]n extensive delay should be presumed prejudicial.” The fact
that section 2972, subdivision (a), is directory rather than mandatory means that the delay
in bringing the matter to trial is not reversible error in the absence of prejudice. (Cal.
Const., art. VI, § 13; see People v. Williams, supra, 77 Cal.App.4th at pp. 446-447.)
Having failed to show prejudice, his claim must fail and the assumed error is not
reversible.
B. Right to a Jury Trial
1. Waiver by counsel
Defendant acknowledges this court has previously held that an attorney may waive
the client’s right to a jury trial in MDO and other civil commitment proceedings. (See
People v. Montoya (2001) 86 Cal.App.4th 825, 830 [Fourth Dist., Div. Two] (Montoya).)
However, he argues that the case is distinguishable and asks us to reconsider our holding.
Citing People v. Allen (2008) 44 Cal.4th 843, he insists that even though the right to a
jury trial granted in civil commitment proceedings is statutory, the potential for
deprivation of liberty implicates his constitutional due process rights.
10 An MDO proceeding is a special proceeding of a civil, rather than a criminal,
nature. (People v. Fisher (2009) 172 Cal.App.4th 1006, 1013.) It does not implicate all
of the constitutional and procedural safeguards afforded to criminal defendants. (People
v. Beeson (2002) 99 Cal.App.4th 1393, 1407 [Fourth Dist., Div. Two].) “Generally in
civil cases, an attorney has ‘complete charge and supervision’ to waive a jury.
[Citations.]” (People v. Otis (1999) 70 Cal.App.4th 1174, 1176 (Otis).) In Otis, the court
specifically held that section 2966, subdivision (b) does not require personal waiver by
the defendant. That subdivision (b) states in part: “The trial shall be by jury unless
waived by both the person and the district attorney.” (§ 2966, subd. (b).) However,
“nothing in the requirement that the waiver must be by ‘the person’ precludes the
person’s attorney from acting on his behalf. The Legislature did not say the waiver had
to be made ‘personally.’” (Otis, supra, at p. 1176.) “Section 2966 concerns persons who
have been found by the Board of Prison Terms to be mentally disordered. The
Legislature must have contemplated that many persons, such as Otis, might not be
sufficiently competent to determine their own best interests. There is no reason to
believe the Legislature intended to leave the decision on whether trial should be before
the court or a jury in the hands of such a person. That the Legislature specified a waiver
of time could be by the petitioner ‘or his or her counsel’ does not lead us to conclude in
the context of this statute that the petitioner must personally waive a jury.” (Id. at p.
1177.) We continue to agree with the analysis in Otis and in this court’s opinion in
People v. Montoya, supra, 86 Cal.App.4th at pages 831-832.
11 Nonetheless, defendant asserts that our state’s highest court has “acknowledged its
reliance on a balancing of the four factors identified in Morrissey v. Brewer [(1972)] 408
U.S. 471, to determine what due process is required. (Allen, supra, 44 Cal.4th at pp. 862-
870.)” Thus, he claims that a “new assessment of the situation presented in Montoya” is
required. The relevant factors identified in People v. Allen, are: “‘(1) the private interest
that will be affected by the official action; (2) the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; (3) the government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail; and (4) the dignitary interest in informing the
individuals of the nature, grounds, and consequences of the action and in enabling them
to present their side of the story before a responsible government official. [Citation.]’
[Citation.]” (People v. Allen, supra, 44 Cal.4th at pp. 862-863, fn. omitted; see also
People v. Otto (2001) 26 Cal.4th 200, 210.) However, defendant makes no attempt to
balance the applicable factors. The first factor (the individual’s liberty interest) weighs in
favor of affording all reasonable procedures to guard against erroneous deprivation of
liberty interests. “[T]he fact that the interests involved in involuntary commitment
proceedings are fundamental enough to require a jury trial does not lead ineluctably to the
conclusion that the waiver of a jury trial in such proceedings must be personal as in
criminal prosecutions.” (People v. Rowell (2005) 133 Cal.App.4th 447, 454.) The
second (the risk of erroneous deprivation of the private interest and the value of substitute
12 procedural safeguards) and third (governmental interests) factors weigh in favor of
vesting the waiver of jury trial with the attorney rather than allowing the defendant to
overrule the attorney’s tactical decision. The fourth factor (the dignity interests of a
person subject to involuntary commitment) also does not weigh in favor of allowing the
individual to overrule counsel’s decision to waive a jury trial. The dignity interests of
being informed of the nature, grounds, and consequences of the action (MDO
commitment), and in enabling the defendant to present his or her side of the story are not
affected by permitting counsel to waive the defendant’s jury trial right.
Regarding this court’s “discussion of the courts’ presumptions about the abilities
of various defendants,” we decline the invitation to proliferate meta-proceedings, or
trials-within-trials, on the nuances or levels of defendant’s mental capacities. As we
stated in Montoya, “Although it is certainly conceivable, as defendant suggests, that a
patient might be mentally disordered for some purposes and not for others, it is
particularly difficult to sort those categories out in a case of schizophrenia, as all of the
doctors testified.” (Montoya, supra, 86 Cal.App.4th at p. 831.) Neither do we mean to
single out schizophrenia. “For whatever reasons (drug damage, inherited characteristics,
other mental illnesses), defendant’s mind, as even his attorney admitted, did not function
normally.” (Ibid.) Defendant has long suffered from poor judgment and aberrant and
dangerous behavior: he has already numerous times been adjudged an MDO who is not
in remission. As in Montoya, “there was no reason to believe that defendant was capable
13 of making a reasoned decision about the relative benefits of a civil jury trial compared to
a civil bench trial,” (ibid., fn. omitted) regardless of state of mind.
In People v. Cobb (2010) 48 Cal.4th 243 (Cobb), the Supreme Court held that
because the time limits in the MDO statute, section 2960 et seq. are not jurisdictional,
when, without good cause or a time waiver, a trial to extend a defendant’s one-year
commitment under that statute does not begin before the defendant’s scheduled release
date, the defendant may be entitled to release pending trial. (Cobb, supra, 48 Cal.4th at
p. 252.) However, no other relief is available to the defendant when the statutory time
limits for filing an extension petition or for commencing trial on that petition are violated.
(Id. at p. 253.) No remedial action need be taken if the defendant suffered no prejudicial
harm. (People v. Lara (2010) 48 Cal.4th 216, 235-236.) As previously noted, defendant
has not suggested any actual harm to himself other than the length of the delay and the
failure to allow defendant to exercise his right to a jury trial. However, according to the
record before this court, the proceedings were fundamentally fair. Absent evidence to the
contrary, no remedial action is necessary.
An MDO defendant does have legitimate due process interests in the fairness of
the proceedings. However, it is fully consistent with due process in such special civil
proceedings to permit counsel to waive a jury trial, regardless of the defendant’s personal
objection.
14 2. Failure to advise of right
Pursuant to section 2972, subdivision (a), the trial court was required to advise
defendant of his right to a jury trial. The statutory language is couched in mandatory
terms. The record does not affirmatively show that the trial court fulfilled this duty;
nothing in the record indicates the trial court or counsel gave the mandatory jury trial
advisement. Nonetheless, the record shows that defense counsel waived such right on
behalf of defendant. Because the right to a jury trial in MDO proceedings is granted by
statute, we review any violation under the harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836. (See People v. Wrentmore (2011) 196 Cal.App.4th 921, 928-
929 and People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1275-1276 [Fourth Dist., Div.
Two] [wrongly denying a jury trial to an MDO was held harmless under Watson].)
Under that standard, it is not reasonably probable that defendant would have achieved a
more favorable result in the absence of the error. Even if the trial court had properly
advised defendant of his statutory right to a jury trial, defendant’s attorney could have
waived that right, even over defendant’s objection.
III. SUFFICIENCY OF EVIDENCE
Defendant contends the trial court erred in finding he should remain committed as
an MDO because there was insufficient evidence that the mental disorder that caused or
was an aggravating factor in the predicate offense was the same as that for which he had
been treated and which the People’s expert claimed was not in remission.
15 Under the MDO Act, “[a]s a condition of parole, a prisoner may be designated and
civilly committed as an MDO for involuntary treatment of a ‘severe mental disorder’ if
certain conditions are met. [Citations.]” (People v. Allen (2007) 42 Cal.4th 91, 99, fn.
omitted.) Once an initial MDO commitment is established, before that period expires,
“the district attorney may petition to extend that commitment by one year. [Citation.]”
(Ibid.) If it is extended, “the district attorney may file subsequent petitions to [further]
extend the MDO’s commitment in one-year increments. [Citations.]” (Id. at p. 100.)
In order to extend an MDO’s commitment by one year, “the medical director of
the state hospital, the community program director, or the Director of Corrections first
‘shall submit’ to the district attorney a written evaluation of the prisoner ‘[n]ot later than
180 days’ before the prisoner’s termination of parole or release, ‘unless good cause is
shown’ for delay. [Citation.] If the district attorney files a petition for continued
involuntary treatment for one year [citation], the trial court will hold a hearing on the
petition, and the trial ‘shall commence no later than 30 calendar days’ before the time the
prisoner would have been released, ‘unless the time is waived by the person or unless
good cause is shown.’ [Citation.]” (People v. Allen, supra, 42 Cal.4th at p. 99.)
At the MDO recommitment hearing, the People must prove beyond a reasonable
doubt that: (1) the parolee continued to have a severe mental disorder; (2) the mental
disorder was not in remission or could not be kept in remission without treatment; and (3)
by reason of the mental disorder, the parolee continued to represent a substantial danger
16 of physical harm to others. (§§ 2962, subds. (a) & (d)(1), 2972, subd. (e); People v.
Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837.)
The same standard of review used in determining a claim of insufficiency of the
evidence in a criminal case applies to appellate review of mentally disordered offender
proceedings. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) “We consider the
entire record in the light most favorable to the judgment and must affirm if there is any
substantial evidence supporting the finding. [Citations.]” (People v. Valdez (2001) 89
Cal.App.4th 1013, 1016.) A single opinion by a psychiatric expert that the defendant is
currently dangerous due to a mental disorder can constitute substantial evidence to
support the extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th
1151, 1165.)
An expert may generally base his or her opinion on any “matter,” personally
known or made known to him, whether or not admissible, “that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his testimony relates . . . .” (Evid. Code, § 801, subd. (b).) “Psychiatrists, like
other expert witnesses, are entitled to rely upon reliable hearsay, including the statements
of the patient and other treating professionals, in forming their opinion concerning a
patient’s mental state. [Citations.] On direct examination, the expert witness may state
the reasons for his or her opinion, and testify that reports prepared by other experts were
a basis for that opinion. [Citation.]” (People v. Campos (1995) 32 Cal.App.4th 304, 307-
308.)
17 Defendant first notes the Petition failed to identify the specific mental disorder at
issue. However, he does not argue that such failing has prejudiced him. Rather, he
attacks the trial court’s ruling, claiming that it “did not clearly indicate it found the
mental illness ongoing and not in remission.” (Underlining in original.) Citing People v.
Garcia (2005) 127 Cal.App.4th 558, pages 565 through 567 [Fourth Dist., Div. Two] (the
People sought an MDO extension with evidence of a new mental disorder different from
the one which defendant had been receiving treatment and had been declared to be in
remission), defendant argues the People failed to produce substantial evidence of the
identity of the mental disorder. The People agree that “the medical and procedural
history in this matter was not set forth as straight-forwardly as one would like.”
However, they argue that “a rational fact-finder could and did find that [defendant] was
tormented by a continuing severe psychotic mental disorder, and that his Schizo-
Affective Disorder caused or was an aggravating factor in his physical abuse of his
parents, and that he remained a danger to the public.” We agree with the People.
Only two people testified at the hearing: defendant and Dr. Arias. During
defendant’s testimony, defendant stated that his psychosis is mostly drug induced and his
violent behavior and delusions occur when he is under the influence of substances. He
agreed he had a mental illness; however, he opined it was related to his drug use. He
pointed out specific incidents involving criminal behavior and explained they were
related to his drinking alcohol or taking illegal substances. He attributed his depression
18 to being hospitalized. Overall, he did not believe he fit the criteria for MDO commitment
because he has a drug problem rather than a mental illness.
Both witnesses noted defendant’s extensive criminal record, which included
arrests and/or convictions for receiving stolen property, battery, criminal contempt, petty
theft, grand theft auto, assault with a deadly weapon, spousal abuse, trespassing,
vandalism, threatening a crime with intent to terrorize, and injury to an elder person
likely to cause great bodily injury or death. In addition, while committed as an MDO,
defendant threatened to kill his psychiatrist and yelled at staff for perceived threats to
himself. According to Dr. Arias, defendant’s history of violent crime posed a severe
danger to others. He had suffered from a severe mental disorder for many years. His
psychosis included breaks from reality, auditory hallucinations and delusions with
religious, persecutory, grandiose, and bizarre themes. During the year prior to the
hearing, defendant’s moods were volatile. He reacted negatively and aggressively in
response to perceived fear when there was no actual danger present. Although defendant
was taking medication, Dr. Arias believed he continued to remain threatening and
unpredictably volatile in unexpected situations. She opined that defendant remained a
danger because of his belief that he does not have a mental illness or a substance abuse
problem, does not need antipsychotic medications, and continues to seek any drugs with a
stimulant effect.
In contrast to the facts in People v. Garcia, supra, 127 Cal.App.4th 558, here the
People presented documentation from PSH that defendant had a severe mental disorder
19 (initiating his commitment in 1993) for which he was continuously treated, with the
exception of the period between January and November 2009 when he was decertified as
an MDO. The documents described the continuing symptoms defendant exhibited over
the years since his elder abuse offense in 2004, and continuing through the time of the
filing of the Petition. These symptoms were consistent with his diagnosis of Schizo-
Affective Disorder. Dr. Arias’s testimony constituted overwhelming evidence to support
a finding that defendant posed an unreasonable risk of harm to others due to his mental
disorder, specifically, Schizo-Affective Disorder. Defendant failed to present an expert
to testify that he was not currently dangerous. Nor did he present evidence that
contradicted or impeached Dr. Arias, or suggested her testimony was merely speculative.
Rather, he testified as a witness for the People and conveyed his own opinion that he did
not suffer from a mental illness, but a drug problem.
Ultimately, the evidence supporting defendant’s extended MDO commitment
consisted entirely of the testimony of the expert witness, whom the court found to be
credible. We must accord due deference to the court’s evaluation of credibility. (People
v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083 [Fourth Dist., Div. Two].) Thus,
viewing the evidence in the light most favorable to the People, we conclude that there
was more than enough evidence to support the extension of defendant’s commitment.
IV. DEFENDANT’S STATUS SINCE 2009
Defendant contends the evidence presented at the hearing focused on events and
conditions prior to the January 2009 trial, at which defendant was found to be in
20 remission and not a danger to society. He faults the People for failing to offer
information of his behavior post-2009. Basically, defendant claims that the single finding
in January 2009 that he was not an MDO was insufficiently rebutted at this hearing, and
the judgment should be reversed. We disagree.
According to the record before this court, there were significant current conditions
“materially” different from those in 2009 to support the finding that defendant fit the
description of an MDO. Dr. Arias’s report noted that in June 2009, defendant called his
mother and was “‘rambling and seemed incoherent and was located in a cave in San
Diego.’” In July 2009, defendant was admitted to a “Mental Health Care Bed . . . for
suicidal ideation.” He was deemed a “‘danger to himself and others’ for ‘banging his
head against the wall.’” While incarcerated at the Correctional Treatment Center in
September 2009, defendant assaulted his cell mate for allegedly “‘badmouthing his
girlfriend.’” On November 29, 2009, defendant was again found to be an MDO. In
August 2010, defendant “charged at the Unit Supervisor” at Atascadero. Less than one
month later, he was “‘involved in an aggressive act toward [a] peer’” and placed in
seclusion. When the treating psychiatrist confronted him about possessing contraband,
defendant “‘became enraged (violent posturing to hit) and threatening to his psychiatrist
(“I will kill that bitch”).’” Defendant refused to take his medications; however, he would
hoard certain medications for the purpose of crushing and “snorting” them in an attempt
to get high. While committed at ASH, defendant refused to attend group therapy. While
he did attend group therapy at PSH, he refused to participate in a “30-day Social Work
21 Assessment” for June 2011. Dr. Arias noted that defendant exhibited signs and
symptoms of his severe mental disorder, was physically violent towards others,
threatened others, and refused to follow his treatment plan. She testified to the above at
the hearing.
On June 14, 2012, a second report was completed by Dr. Anca Chiritescu, M.D.,
and senior supervising psychologist, Steven Berman. Although it incorporated much
from the earlier report, it did add a notation that defendant had, according to records,
“experienced symptoms of his severe mental disorder in the absence of substance
intoxication or withdrawal and that these symptoms are not due to the direct
physiological effects of a general medical condition.” It was noted that defendant “has
been rendered a diagnosis of Amphetamine induced psychosis in the past,” but that the
present evaluators felt further psychological testing should be conducted in light of “his
continued Axis I symptoms.” The nature of the “severe mental disorder” was not
specified or identified; however, defendant’s signs and symptoms included “agitation,
paranoia, poor insight, social withdrawal, and affective volatility.”
According to the report, defendant exhibited displays of verbal anger and was seen
muttering to himself that the “‘meds are no good’” and the doctor was “‘against’” him.
Delusions were identified based on defendant’s expressed belief that he did not have a
mental illness beyond depression and that his commitment was illegal. Defendant was
reportedly “becoming more psychiatrically stable on his current psychotropic
22 medications,” but the doctors were cautious given his earlier behavior and statements,
refusal of medication, and failure to attend groups at ASH.
Defendant failed to acknowledge his severe mental disorder. He claimed that his
actions were the result of his drug use, pointing out that a psychopharmacology
consultant had previously diagnosed him as having Substance Induced Psychotic
Disorder. Again, the doctors had noted this diagnosis; however, they opined that once
the underlying psychotic disorder emerged, it did not go away; rather, it persisted without
substance use.
Given the above, the evidence was more than sufficient to show that defendant’s
mental condition had materially changed since January 2009. Defendant suffered a
severe mental disorder (Schizo-Affective Disorder) which was not in remission or
capable of being kept in remission, which caused him to be a physical danger to the
public, and which he had been treated for at least 90 days in the prior year.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:
RAMIREZ P.J.
MCKINSTER J.