Filed 3/8/22 Kern Regional Center v. W.B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Judith K. Dulcich, Judge.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Cynthia J. Zimmer, Kern County District Attorney, and John P. Ohanesian, Deputy District Attorney, for Plaintiff and Respondent.

-ooOoo-

W.B. appeals from an order adjudging him a developmentally disabled person who is a danger to himself and/or others and committing him to the custody of the State Department of Developmental Services at the Kern Regional Center. (Welf. & Inst. Code, § 6500.)[1] He contends that the jury’s findings of dangerousness and serious difficulty controlling his dangerousness due to his developmental disabilities were not supported by substantial evidence. Kern Regional Center disagrees. We affirm.

PROCEDURAL SUMMARY

On September 28, 2020,[2] the Kern County District Attorney filed a petition for commitment of W.B. as “A PERSON WITH A DEVELOPMENTAL DISABILITY” who is a danger to themselves or others (§ 6500, subd. (b)(1)). The petition alleged W.B., “age 34, presents with Mild Intellectual Disability ([intelligence quotient]=46) and Autism Spectrum Disorder. He is diagnosed with Schizoaffective Disorder, Depressive Type. As a child he had learning difficulties, which made him eligible for special education services. … On March 21, 2017[,] [W.B.] was charged with one count [of] … [a]ssault with intent to [c]ommit [r]ape by [f]orce or [f]ear [(Pen. Code, §§ 220, 261, subd. (a)(2))], a [f]elony.” After a forensic psychological evaluation was conducted, W.B. was determined to be incompetent to stand trial and was committed to the Kern Regional Center (Pen. Code, § 1370.1). At the time of the petition, he resided at the Porterville Developmental Center (PDC).

It was previously determined that W.B. was unlikely to become competent any time in the near future and the trial court committed W.B., pursuant to section 6500, as a person with a mental disability who is a danger to themselves or others. The instant petition was filed because the section 6500 commitment was set to expire on November 30.

The petition alleged examples of W.B.’s maladaptive and dangerous behavior: In July, he struck PDC staff when they attempted to redirect his behavior and he threatened to stab PDC staff if he “d[id] not get his way.” On June 14, he had an angry outburst wherein he swore at staff and threatened to kill some nonspecific person; he threw a trash can toward PDC staff, nearly striking them; and he lunged toward staff with a closed fist telling them that he wanted to fight. On May 4, he told a PDC staff member that he “ ‘should just punch [her] in the face’ ” after she gave him direction. On February 5, W.B. used profanity with a PDC staff member and attempted to spit on her. On January 30, while W.B. was required to wait for a laboratory blood draw, he began to curse at staff and kick surrounding cabinets. He picked up a chair and advanced on staff. He hit the technician station with the chair twice.

As a result of W.B.’s developmental disabilities and his maladaptive and dangerous behavior, a treating psychologist at the PDC opined that W.B.’s “ ‘limited intellectual functioning places him at higher risk for behaviorally acting out without regard for the consequence of his behavior. He continues to require a secure and structured behavior program with a very high-level o[f] supervision and an emphasis on treatment.’ ”

On April 26, 2021, the jury found true that W.B. was a developmentally disabled person who was a danger to himself and/or others, and that his developmental disabilities caused him serious difficulty controlling his dangerous behavior. On the same date, the trial court committed W.B. to the State Department of Developmental Services for one year pursuant to sections 6500 through 6512.

On the same date, W.B. filed a notice of appeal.

FACTUAL SUMMARY

The parties stipulated that in 2017, W.B. was arrested and charged with assault with intent to commit rape.

A. Veronica Everhart

Veronica Everhart was a psychiatric technician at PDC, a residential facility for intellectually disabled adults. Everhart had worked six days per week on W.B.’s unit at PDC for approximately six or seven months. She saw W.B. every day that she was on duty. Everhart observed W.B. make sexually inappropriate comments to herself and to others. Everhart explained that W.B. made comments to her such as: “[H]ey, sexy lady[,] [w]e can make beautiful babies together[,] [y]ou have a nice body[,] … [and] things of that nature ….” To other staff, W.B. has said, “I’ll stick my dick in your mouth and make you suck it; I’ll fuck you till you die[;] things like that.” Everhart and other staff verbally redirected W.B. when he made such comments but “he kind of just laughs it off.”

W.B. also threated violence upon Everhart and other staff. On April 13, 2021, just over a week before the trial, W.B. threatened to break Everhart’s jaw. Everhart told W.B. that was not an appropriate way to speak and eventually W.B. walked away from her. Several hours later, he apologized.

On February 16, 2021, W.B. was visibly agitated when he came to get his medication at around 7:20 a.m. Everhart asked him how he was feeling, and he responded that “nobody is doing anything for him in his unit” and he was “going to kill the unit supervisor.” Everhart attempted to calm W.B. down to no avail. W.B. took his medication and walked to the “technician[’s] window” where he started punching the window. He then walked to the dining room where he “was jumping up, punching the dining room lights.” Staff attempted to verbally deescalate but were unsuccessful. They then attempted a “wall containment”—a procedure by which three PDC staff immobilize the patient against the wall until they can be calm. W.B. remained agitated and PDC staff placed W.B. in a bed restraint, strapping down his limbs and chest. W.B. continued to shout and threaten to kill for nearly two hours. At that point, a doctor administered a “chemical intervention” to calm W.B.

W.B. engaged in “violent outbursts” approximately three times per week. Most of those outbursts were purely verbal rather than physical.

Everhart discussed with W.B. whether he thought he should be released from PDC. W.B. told her that he “doesn’t belong on the streets; that he belongs in a place like [PDC.] [A]nd if he were to be released, … he would … get a car and crash somebody’s legs.”

B. Dr. Michael Musacco

Musacco was a clinical psychologist who conducted various mental health evaluations for the State Department of Mental Health. Musacco had worked with people with intellectual and developmental disabilities for roughly 25 or 30 years. The parties stipulated that Musacco is an expert in the fields of “forensic psychology and the evaluation of persons with developmental disabilities for purposes of [section] 6500 commitment.”

Developmental disabilities are a subclass of mental disorders that are defined by onset during the developmental period—generally, birth to 18 years of age. Intellectual disability and autism spectrum disorder are the most frequently occurring developmental disabilities. Intellectual disability is characterized by impaired intelligence, as measured by an intelligence quotient (IQ) test, and an associated impairment in adaptive functioning. Symptoms of intellectual disability include difficulty regulating emotion and behavior and recognizing risks. Persons with developmental disabilities, and an intellectual disability in particular, have difficulty maintaining a regimen of medication. Autism spectrum disorder is a condition characterized by substantial deficits in verbal and nonverbal communication and social and emotional reciprocity. It is also often accompanied by hypersensitivity to noises, colors, or textures, and repetitive motor mannerisms, noises, or patterns of behavior. Persons with autism spectrum disorder also often have substantial difficulty dealing with changes in their routine.

When evaluating a patient for commitment pursuant to section 6500, Musacco reviews a patient’s historical information, prior psychological evaluations, and any arrest reports or summaries. He then interviews the patient and conducts a mental status examination, knowing that because of the potential developmental disability the patient may be unable to provide much information. The mental status examination includes questions aimed at helping Musacco understand the person’s mental functioning, such as “Do you know the date? How do you normally feel? Do you have problems with your mood? Do you hear voices?” and simple questions like “[W]hat is two times two? Or can you tell me how many days are in a week?” Musacco then conducts an IQ test and talks to any care provider regarding the patient’s behavior.

Musacco conducted such section 6500 evaluations of W.B. on October 21, 2017, August 30, 2019, and October 2. In conducting the most recent evaluation, Musacco reviewed an arrest report, prior psychological evaluations, and mental health treatment records from the facilities where W.B. was committed; and he conducted a clinical interview and mental status evaluation. Musacco noted that W.B. was very guarded in the clinical interview, usually speaking in short sentences or single-word responses. From the mental status evaluation, Musacco opined that W.B. had minimal insight and self-awareness regarding his developmental disabilities. W.B. said that he did not know why he was committed to a developmental center and denied having any mental problems; he did not know what he would do or where he would live if he was released; he did not know how many days were in a week, the date, the year, his mother’s telephone number, or what month follows June; he could not describe his mood, thoughts, or feelings. In the most recent “nonverbal IQ test[,]” W.B. scored a 73, but Musacco noted the most recent test “measures only one facet of intelligence” and historically W.B.’s “scores have been much lower.” Musacco opined that the score of 73 overstated W.B.’s IQ.

In preparation for his testimony, Musacco continued to review progress notes from the PDC generated after his evaluation of W.B. Those notes included documentation of W.B.’s threats to hurt or kill staff, the need to place W.B. in a bed restraint, and W.B.’s inappropriate sexual comments to staff. Musacco noted that W.B.’s conduct had worsened since the October 2 clinical interview and mental status evaluation.

Musacco opined that W.B.’s conduct was “nrestrained, threatened, [and] volatile.” That opinion was strengthened by his review of the progress notes from the PDC. Musacco further opined: W.B. is appropriately diagnosed with two developmental disabilities, an intellectual disability and autism spectrum disorder; is a danger to himself and others; and his developmental disabilities contribute to his difficulty controlling his behavior and contribute substantially to his risk of danger to himself and others.

[u]DISCUSSION

W.B. argues that substantial evidence was not presented to support the jury’s findings of dangerousness and serious difficulty controlling his behavior as a result of his developmental disabilities.[3] Instead, he suggests “the evidence was far stronger that any dangerousness or lack of volitional control was the result of [W.B.’s] mental illness ….” We disagree and therefore affirm.

Section 6500, subdivision (b)(1), states: “A person with a developmental disability may be committed to the State Department of Developmental Services for residential placement other than in a developmental center or state-operated community facility … if the person is found to be a danger to self or others.” Such an order of commitment expires automatically after one year. (§ 6500, subd. (b)(1)(A).)

In a proceeding pursuant to section 6500, the prosecution has the burden to prove beyond a reasonable doubt that the person to be committed was developmentally disabled and a danger to himself or to others, and that his developmental disability was a substantial factor in causing his serious difficulty controlling his dangerous behavior. (In re O.P. (2012) 207 Cal.App.4th 924, 928.) The evidence must show proof of current dangerousness linked to the committed person’s developmental disability. (Id. at p. 932.) Specifically, the developmental disability must be a substantial factor in causing the person serious difficulty in controlling his behavior. (People v. Cuevas (2013) 213 Cal.App.4th 94, 106–107.) “[T]he ‘danger’ referenced in section 6500 must involve conduct that presents the likelihood of serious physical injury.” (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1153–1154; see People v. Nolasco (2021) 67 Cal.App.5th 209, 218 [dangerousness “can be established by a prior ‘finding of incompetence to stand trial’ during a prosecution for several felonies, including any ‘… act which poses a serious threat of bodily harm to another person’ ”].) “The vagaries of emotional injury, mere apprehension of physical injury, speculation and conjecture are not enough to justify the need for commitment.” (Hartshorn, at p. 1154.)

We review the entire record in the “ ‘ “light most favorable to respondent,” ’ ” and we presume in support of the order of commitment “ ‘ “the existence of every fact the [court] could reasonably deduce from the evidence[,]” [(citations)]’ … [which] must be ‘ “ … reasonable in nature, credible and of solid value.” ’ ” (People v. Cuevas, supra, 213 Cal.App.4th at pp. 106–107.)

First, the jury was presented with sufficient evidence of W.B.’s dangerousness to sustain its verdict. W.B. was charged with attempted sexual assault and engaged in similar violent and inappropriate sexual behavior while committed to PDC. He engaged in violent or sexual verbal outbursts approximately three times per week and required restraint for hours after threatening to kill PDC staff and refusing their attempts at deescalation. In light of W.B.’s behavior, the fact that W.B. had not seriously injured staff at PDC did not show that he did not pose a likelihood of serious physical injury to others if not properly observed and treated. The jury could reasonably have concluded from the evidence that W.B. was likely to cause serious physical injury if released to a less controlled or uncontrolled environment.

Second, sufficient evidence was presented to support the jury’s finding that W.B.’s inability to control his dangerous behavior was caused by his developmental disabilities. Musacco opined that W.B. was appropriately diagnosed with an intellectual disability and autism spectrum disorder. He described the characteristics of autism and intellectual disability as including a difficulty regulating his behavior, “recognizing risk, using judgment, [and] learning from experience.” Based on his observation of W.B. and review of his records, Musacco opined that W.B.’s developmental disabilities were substantial factors in his difficulty controlling his dangerous behavior. His opinion was not conclusory or speculative. (People v. Hartshorn, supra, 202 Cal.App.4th at p. 1154.) Substantial evidence supported the jury’s conclusion that W.B. had serious difficulty controlling his dangerous behavior because of his developmental disabilities.

W.B. contends that the evidence presented shows that his mental illness—not his developmental disabilities—was the cause of any dangerousness. We disagree. Musacco described that W.B. suffered from some form of psychosis or schizoaffective disorder for which he was not being treated. He opined that the mental illness “contributes to his difficulties controlling his behavior.” However, the existence of W.B.’s mental illness did not change Musacco’s opinion that W.B. had serious difficulty controlling his behavior because of his developmental disabilities. While W.B.’s mental illness certainly compounded his inability to control his behavior, substantial evidence supported the jury’s finding that his developmental disabilities were a substantial factor in causing W.B. to be unable to control his dangerous behavior.

DISPOSITION

The order is affirmed. In the interest of justice, all parties shall bear their own costs on appeal.

* Before Levy, Acting P. J., Poochigian, J. and Franson, J.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] All further dates refer to the year 2020 unless otherwise stated.

[3] W.B. does not contend that he does not suffer from developmental disabilities.