City of San Diego v. Noel

Filed 10/23/06 City of San Diego v. Noel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed.

The City of San Diego (City) filed a petition seeking forfeiture of Bradley Noel's firearm, alleging the return of the firearm would likely result in endangering Noel or others. (Welf. & Inst. Code,^[1] § 8102.) The court found the City proved this allegation and granted the petition.

On appeal, Noel challenges the sufficiency of the evidence to support the court's finding that returning his firearm would likely result in danger to himself or others. Noel also contends the court failed to apply the correct legal standard. We reject these contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to well-established appellate rules, we state the facts in the light most favorable to the City, the prevailing party.

In April 2005, San Diego police officer Timothy Keating received a call from Noel's neighbors describing Noel's conduct that had caused them to become fearful. The neighbors said Noel would stand in front of their condominium unit and stare at them in a strange way and that he had left notes on their door accusing them of being hired by his mother to spy on him. In response, three officers went to Noel's home, where they questioned him and observed him for about 45 minutes.

During this encounter, Noel made statements concerning his belief that his mother, with whom he had not been in contact for more than 10 years, was out to get him, and specifically that she had paid his neighbors to harass him and follow him around. Officer Keating found a loaded handgun partially exposed in a drawer next to Noel's bed. Noel said he kept the gun next to his bed to protect himself against his mother.

Noel's behavior and statements led Officer Keating to conclude that Noel presented a danger to himself or others. Officer Keating thus detained Noel for a 72-hour psychiatric hold under section 5150, which permits a trained police officer to commit a person to a mental health facility for 72 hours if the officer has probable cause to believe the person is a danger to himself or others. In connection with this detention, Officer Keating confiscated the loaded gun and had it impounded. Officer Keating believed it was likely that Noel would use the weapon in a manner that would endanger himself or others.

For the next six days, Noel was involuntarily committed in two separate psychiatric care facilities, a county facility and Alvarado Parkway Institute (Alvarado). The mental health professionals in these facilities determined the commitment was justified. Noel was diagnosed with psychotic and delusional disorders and prescribed antipsychotic medicine to reduce his paranoia and delusions. Noel was ultimately released on the condition that he take this medication.

The City subsequently filed a petition under section 8102, seeking forfeiture of the handgun taken from Noel's home. At the hearing, the City presented testimony from Officer Keating, Noel's former neighbors, Lauren Chappel and Keith Lewis, and Noel's treating psychiatrist at Alvarado, Dr. Gene Lin.

Chappel and Lewis testified that their trouble with Noel began approximately three months after Noel moved into the adjacent condominium unit. Chappel became alarmed when her mother, the owner of her unit, received a letter from Noel alleging that a woman in her late 60's who is "in big trouble with the IRS" had paid off Chappel and illegally moved into her apartment. Noel's letter also made claims that this "ghost tenant," who Noel identified as his own mother, sleeps during the day and operates an "earthquake machine" at night for the purpose of disturbing his sleep.

Chappel and Lewis frequently noticed Noel staring at them when they would come or go from their condominium unit. Additionally, a few weeks before Noel sent the letter, Chappel and Lewis heard an occasional loud "boom" coming from Noel's apartment, usually around 7:00 a.m. Chappel described the noise as if a cinder block or brick were dropped onto concrete from eye level. Lewis described it as if something were being thrown against the wall. After the letter was received, the noises began earlier and became more repetitive, occurring almost every morning. Just before Noel moved out of the apartment, the noises were occurring about three times each morning, usually beginning around 3:00 a.m. The noises stopped when Noel moved from the condominium complex at the end of May.

Officer Keating testified regarding his interactions with Noel the night he was detained. Officer Keating is a 12-year veteran of the San Diego Police Department and a two-year member of the Psychiatric Emergency Response Team, a group of officers specially trained to respond to section 5150 calls and evaluate whether a person poses a danger and is in need of an immediate psychiatric evaluation. Officer Keating's observations led him to believe Noel had an abnormal thought process and was paranoid, agitated, nervous, and delusional. During their encounter, Noel made a number of unusual statements concerning his mother, most notably that she was out to get him, and had hired his neighbors to follow him around and make noises through the walls to harass him.

At one point, Noel told Officer Keating that he kept a loaded gun next to his bed to protect himself from his mother. Based on Officer Keating's observation of Noel that evening, he believed this weapon would likely result in a danger to Noel or to others, and thus he had it impounded. Noel's fixation on his neighbors also made Officer Keating feel that it was unsafe to leave Noel in his apartment alone.

Dr. Lin, Noel's treating psychiatrist at Alvarado, testified that Noel believed his mother was conspiring with neighbors and other unidentified persons in a plot to monitor and harass him. Dr. Lin believed Noel was distorting his observations and "weaving [them] into a fixed delusional plot regarding his mother." After speaking with Noel's mother, who lived in Connecticut and denied having any involvement in her son's life, Dr. Lin diagnosed Noel with a "delusional disorder," a mental illness that causes delusions or false beliefs, often resulting in paranoia. These conclusions were consistent with the symptoms found by the doctors who treated Noel regarding a prior psychiatric hold in 1994. Dr. Lin prescribed an antipsychotic medication and recommended that Noel seek outpatient therapy. There was no evidence that Noel continued to take the prescribed medication after he left Alvarado.

Dr. Lin further testified that the symptoms of Noel's illness make him irritable, angry, and possibly more impulsive, but could not say that the illness did in fact make him dangerous. Dr. Lin stated, however, that there is a possibility for someone suffering from fixed false beliefs to act out on those beliefs, and if they are severe enough, for them to harm themselves or others.

In his testimony, Noel admitted that he had not been in contact with his mother since 1994 and believed her residence to be in Connecticut. According to Noel, their estrangement was a result of his mother initiating a similar 72-hour protective hold on Noel, claiming he was mentally ill after he allegedly made a threatening statement at work. The "war" between Noel and his mother, as he described it, had been ongoing since this incident. Although Noel had not communicated with his mother in the previous 10 years, he nevertheless suspected that she had followed him to California, and illegally rented the apartment next to him. In the 10 years he had lived in San Diego, he had moved 11 or 12 times because of his suspicions that his mother had followed him to each residence to harass him. Noel also indicated that he had made a criminal referral to the Internal Revenue Service in December 2002, hoping to uncover a money trail left by his mother when pursuing her harassment campaign.

Noel admitted to keeping the handgun next to his bed, but denied doing so to protect himself against his mother and denied that he told Officer Keating that the purpose of the gun was to protect himself against his mother. He said he keeps his gun loaded, but does not keep a cartridge in the chamber to prevent it from discharging in case of an earthquake or if a car hits his apartment. Noel acknowledged pulling the gun out on one occasion in 1998 or 1999 after hearing someone banging on his door late at night, but stated that the person responsible was gone before he reached the door.

Noel testified that shortly after he was released from Alvarado, he went to another psychiatrist, Dr. Ernest Giraldi, for an evaluation. According to Noel, Dr. Giraldi concluded that Noel needed no mental health treatment or medications. Noel testified that he is employed as an equity analyst, and that he graduated cum laude from Vanderbilt University with a math and physics double major. Noel also obtained an MBA, and is a chartered financial analyst. Noel testified that he is a responsible gun owner and believes responsible gun ownership reduces crime.

After considering the evidence, including the medical records from Dr. Lin and Dr. Giraldi, the court found the City had met its burden on the forfeiture petition. At the hearing, the court said "there's no question in my mind that Mr. Noel currently suffers from a delusional or paranoia form of mental illness." The court further stated that although this illness had not yet resulted in violence, there was a "potential" for violence. The court explained, "the question is not so much whether or not Mr. Noel has acted out in the past based on what appears to me to be a mental illness, but whether or not there's a potential for him to act in the future on it." The court concluded there is "a potential for that danger" and that Noel "is potentially dangerous to others as a result of this long-held and continuing delusional paranoid thinking." In its subsequent written order, the court expressly found Noel was "a danger to self or others" and thus granted the petition and ordered Noel's firearm destroyed.

DISCUSSION

I. The Court's Forfeiture Decision Is Supported by Substantial Evidence

Noel contends the City did not present substantial evidence to justify the court's granting of the forfeiture petition.

When a police officer has probable cause to believe a person is a danger to himself or to others, the officer is authorized to take that person into custody and place him in a mental health facility for a 72-hour evaluation and treatment. (§ 5150.) This detention is commonly referred to as a "section 5150 hold." Once a person is admitted, a mental health professional must personally assess the individual to determine whether the involuntary detention is needed, or if effective treatment can be accomplished in some other manner. (§ 5151.) If any person subject to a section 5150 hold is in possession of a firearm or other deadly weapon, it shall be confiscated by a police officer. (§ 8102, subd. (a).) Upon the individual's release, the law enforcement agency has 30 days to initiate a forfeiture petition, or it must return the weapon to its owner. (§ 8102, subds. (c), (d).) To prevail on the forfeiture petition, the agency has the burden to show at a noticed hearing that the return of the firearm "would be likely to result in endangering the person or others . . . ." (§ 8102, subd. (c); see City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933, 939; Rupf v. Yan (2000) 85 Cal.App.4th 411, 423 (Rupf).)

Noel contends the City did not present sufficient evidence to support the conclusion that the return of his firearm "would be likely to result in endangering [himself] or others." (§ 8102, subd. (c).) In evaluating this contention, we are limited to the determination of whether any substantial evidence exists, contradicted or uncontradicted, that will support the findings below. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166.) We review the record in the light most favorable to the prevailing party, resolve all evidentiary conflicts in favor of the prevailing party, and indulge all reasonable inferences to uphold the court's decision. (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) Applying these principles, we conclude substantial evidence supports the court's factual finding.

The evidence established Noel suffers from paranoia and has delusions that his mother, with whom he has not been in contact for more than 10 years, had followed him across the country and was fixated on destroying his life. Noel believed his mother hired his neighbors to be her agents in this plot against him, and that the neighbors and other unknown persons were harassing him in various ways, including making his walls shake throughout the night. These neighbors repeatedly heard a very loud noise coming from Noel's condominium unit, sounding like a heavy object being dropped or thrown against the wall in the middle of the night. Noel additionally told Officer Keaton that he kept the loaded handgun next to his bed to protect himself against his mother. Although Noel denied making this statement, the court had a substantial basis to credit the officer's testimony.

Based on these facts, it is reasonable to conclude that returning the gun to Noel would likely endanger others. Noel kept a loaded gun next to his bed to protect himself against his mother who he believed was living in the adjacent condominium unit and was using an "earthquake machine" at night to create noise and shaking meant to harass him. He also believed the neighbors were working in concert with the mother. Given this, the court could reasonably infer that Noel would use his gun in a misguided effort to "protect" himself against his neighbors or others he thought were his mother's agents. Although Noel has moved from the condominium complex where the incident arose, this did not eliminate the danger. Noel testified that during the past 10 years he moved approximately once a year because he believed his mother had followed him to each residence for the purpose of harassing him.

The trial court's factual conclusion is further supported by opinions expressed by Officer Keating, who is specially trained to assess individuals for dangerousness caused by a mental health disorder, and Noel's psychiatrist at Alvarado, who acknowledged the possibility of violent behavior as a side effect of Noel's diagnosed mental illness. Noel's repeated disruptive comments during trial further reinforced the conclusion that Noel had difficulty controlling his actions.

In challenging the court's conclusions, Noel focuses on the evidence supporting his version of the incidents. For example, he questions Officer Keating's credibility based on the fact that the officer's initial contact with Noel arose from a concern expressed by his neighbor's aunt (a superior court judge). Noel also attacks the credibility of the neighbors' testimony because they did not initially tell Officer Keating about the loud noises coming from Noel's apartment and were unable to specifically identify more than one incident when Noel stared at them. Noel additionally emphasizes the evidence that a second psychiatrist, Dr. Giraldi, evaluated him after his initial commitment, but was unable to determine that Noel had a mental disorder and did not prescribe any medication. Based on this and other evidence favorable to his position, Noel contends that the court should have found that the incident was nothing more than his "kind, responsible, and neighborly attempt to inform his neighbor's landlord of his observations about [the] property . . . ."

In asserting this contention, Noel ignores the applicable review standard. In reviewing the court's factual findings, it is not our task to determine the credibility of the witnesses or to weigh the conflicts and disputes in the evidence. " 'Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.' " (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368-369.) The court examined all the evidence, including the psychiatric reports from Dr. Lin and Dr. Giraldi, and heard the testimony of the neighbors and Officer Keaton, and concluded that "there's no question" but that Noel "currently suffers from a delusional or paranoia form of mental illness" and that the return of Noel's handgun could jeopardize the safety of those around him. The court rejected Noel's contrary view of the evidence that the City's witnesses were biased and not credible, and that Noel was merely the victim of overzealous law enforcement efforts. The court had a substantial evidentiary basis to reach these conclusions.

"Keeping a firearm away from a mentally unstable person is a reasonable exercise of the police power. It is not unreasonable to conclude there is a significant risk that a mentally unstable gun owner will harm himself or others with the weapon." (Rupf, supra, 85 Cal.App.4th at p. 423.) This is particularly true in this case where evidence shows that Noel kept his gun loaded at his bedside in response to delusions involving innocent people living in the condominium unit next door. Although there was no evidence showing Noel had acted violently in the past, section 8102 is preventative in design; its purpose being to protect "firearm owners and the public from the consequences of firearm possession by people whose mental state endangers themselves or others." (People v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 315.)

II. The Court Applied the Proper Legal Standard

Noel additionally contends the court erred by applying the wrong legal standard. In support, Noel directs us to the court's remarks at the conclusion of the hearing, during which the court referred to the "potential" for danger if the City returned Noel's handgun to him. Specifically, the court questioned whether there was a "potential" that Noel would act on his delusions, and whether the release of his firearm would create a "potential" for danger to others resulting from his mental illness. The court then stated its conclusion that Noel was "potentially dangerous to others as a result of this long-held and continuing delusional paranoid thinking."

To grant a forfeiture petition under section 8102, the court must find that returning the firearm "would be likely to result in endangering the person or others . . . ." (§ 8102, subd. (c), italics added.) Noel contends the court's use of the word "potential" at the hearing demonstrates the court did not find it was "likely" that this danger existed. We reject this contention. On our review of the entire record, we conclude the court was aware of and applied the correct legal standard.

First, the court's reference to a potential for violence was fully consistent with a finding of a likelihood of endangerment. When discussing Noel's potential for violence, the court was focusing on the fact that the forfeiture statute may be applicable even if there was no evidence the individual was violent in the past. Thus, the court used the word potential to refer to the fact that the court found the requisite dangerousness based on a potential for violence, rather than a demonstrated prior act of violence. Viewed in this context, the court's comments were appropriate.

Consistent with this interpretation, the written order subsequently issued by the court reflects an express finding that a return of the weapon to Noel would be dangerous. The court order specifically states that the court found that Noel "is a danger to self or others" and thus forfeiture of the weapon was required. (Italics added.) A court's written order controls over any arguably inconsistent oral statements made during the hearing. (See Rupf, supra, 85 Cal.App.4th at p. 427; In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn 1; Cal. Rules of Court, rule 232.)

Absent evidence to the contrary, "[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) This presumption is fully supported by the record before us. The City's counsel repeatedly told the court the appropriate standard before the court ruled on the matter. At one point in the proceedings, the court characterized the issue as "whether or not today [Noel] is a danger to himself or others . . . ," to which the City's counsel corrected, "[i]t's actually whether a return of the firearm would be likely to result in [danger to] the owner or other individuals--similar language." (Italics added.) On another occasion, the City's counsel stated, "[t]his petition is looking at specifically the standard whether return of this particular firearm would be likely to result in danger to himself or other[s] . . . ." (Italics added.) During the course of this discussion, the City's counsel repeated the correct standard several additional times. Further, in its closing argument, the City's counsel again informed the court that it was the City's burden to prove that returning Noel's firearm would be "likely" to result in Noel endangering himself or others. The City's counsel concluded her argument by asserting the City had met this burden by showing "that returning the firearm to [Noel] would likely endanger himself or others." (Italics added.)

The court likewise made comments during the hearing reflecting its awareness that a mere possibility of danger was not the correct standard. During Dr. Lin's testimony, the City's counsel asked whether a failure to take prescribed medications and undergo treatment would lead to the "possibility" the person could be dangerous. The court interrupted by indicating the question was inappropriate because "[t]here's a potential for anyone to be dangerous." (Italics added.) This statement reflects the court understood that it was necessary to prove a likelihood of danger rather than a mere possibility of this result.

The potential that a weapon will be used to endanger someone can be of varying degrees; e.g., it can be reasonably certain, likely, unlikely, possible, or probable. The statute requires the governmental agency to prove the potential is "likely." On the record before us, we are confident the court found that returning Noel's firearm would likely result in Noel endangering himself or others.^[2]

DISPOSITION

The forfeiture order is affirmed. The parties to bear their own costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] We additionally note that Noel waived his right to complain about the court's oral statements by failing to object in the proceedings below. "Points not raised in the trial court will not be considered on appeal." (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.) Had Noel made his objections known, the court would have had an opportunity to clarify its remarks.