P. v. Abrams

















Filed 12/18/08 P. v. Abrams CA6









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. CEDRIC RONDELL ABRAMS, Defendant and Appellant.

H031830 (Santa Clara County Super. Ct. No. C9948852)

Appellant Cedric Rondell Abrams was found by a jury to be a mentally disordered offender (MDO) as defined in Penal Code section 2970.[1] The trial court ordered appellant committed to Atascadero State Hospital (Atascadero) for one year. On appeal, appellant contests the sufficiency of the evidence to support the finding that he is an MDO. He also contends that the court committed prejudicial instructional error and abused its discretion by not placing him in an outpatient treatment program.
On November 17, 2008, the day before oral argument was scheduled for this case, the Attorney General filed a motion to dismiss the appeal for mootness, as appellant was released from Atascadero after his commitment expired in February 2008. Appellant has filed a response to the motion, requesting that we not dismiss the appeal even though it is moot and that we, instead, issue a published opinion addressing some of the issues he has raised on appeal. As we are not convinced that the appeal presents issues of important public interest or that are likely to recur and yet evade review, we will dismiss the appeal as moot.
BACKGROUND
Appellant was charged by felony complaint filed October 27, 1999, with carjacking (§ 215), reckless driving while attempting to evade a peace officer (Veh. Code, § 2800.2, subd. (a)), and two counts of first degree burglary (§§ 459, 460, subd. (a)). The complaint further alleged that appellant had previously served a prison term for a reckless evasion conviction (§ 667.5, subd. (b)). Appellant was subsequently convicted of carjacking and sentenced to four years in state prison.
On February 9, 2003, appellant was committed to Atascadero as a condition of parole pursuant to section 2962. On July 27, 2004, appellant was discharged to a conditional release program (CONREP), but he was recommitted to Atascadero in October 2004. That commitment was set to expire on February 9, 2007, when, on July 14, 2006, the district attorney filed a petition to compel appellant’s involuntary treatment at Atascadero for one year as an MDO pursuant to section 2970. A jury trial on the petition was held July 10 through 12, 2007. The testimony at the hearing was as follows.
Dr. Joshua Deane, a staff psychiatrist at Atascadero, testified as an expert on psychological diagnosis and risk assessment that he was appellant’s treating psychiatrist from November 2004 to June 2006, and that he has had ongoing contact with appellant since that time. In Dr. Deane’s opinion, appellant has a schizoaffective disorder, in that he has a cognitive problem that manifests as delusions, as well as a bipolar condition.
In April 1999, while in custody, appellant cut his wrist and required stitches. In August 1999, appellant tried to kill himself by cutting his throat. On September 1, 1999, when he was admitted to Atascadero as a mentally ill prisoner, appellant stated that he had cut his throat because he had had “a bad stomach and pain in [his] side” and “parasites” in his bowels. On October 24, 1999, 16 days after he was released from Atascadero, and five days after he was released from prison on parole for car theft and reckless evasion, appellant approached a woman who was sitting in a car and asked her to get out, using “very interesting language.” Appellant took the car and, when the police tried to stop him, he drove 100 miles per hour and then ran from the car naked. When apprehended, appellant gave varying explanations of the situation, none of which seemed reasonable.
While in prison in 2000 and 2001 following his conviction for carjacking, appellant violated prison rules a number of times, at least three times by fighting with another prisoner. He was sent to Atascadero in February 2003, released to a CONREP in July 2004, and returned to Atascadero in October 2004. After being admitted to Dr. Deane’s unit at Atascadero in November 2004, appellant lost 100 pounds within a year. No treatable physical illness or cancer was found, and the medication appellant takes[2] tends to increase one’s appetite, so the only explanation for the weight loss is that appellant refused to eat. In February 2006, Dr. Deane had to get a court order to forcibly medicate appellant. Appellant was chronically non-compliant in taking his medication, and had to have the medication forced on him because he was a significant danger to himself and others. In July 2006, appellant was diagnosed with hemorrhoids after he complained to a psychologist that “other people [were] playing with his anus” and that he was “being raped” while he slept. Since appellant has been taking his medications regularly, his psychotic symptoms are under control and he eats regular meals, so he has gained back 50 to 60 pounds.
Dr. Deane testified that appellant has continued to demonstrate the grandiosity and rapid speaking that is characteristic of manic behavior. Appellant states that he is a record producer and that he wants to be a famous rap artist, but he has not demonstrated the work commitment or discipline necessary to pursue such a goal. Dr. Deane has observed appellant talking very fast, loud and excitedly. It has been reported on more than one occasion that appellant was loudly and oddly talking to himself and laughing as though responding to internal stimuli. Appellant has also demonstrated lack of impulse control and inappropriate social behavior by being “very provocative and calling people all kinds of names,” including “nigger” at least four times. He has referred to female staff as “bitch or whore,” and there has been at least one incident where appellant has stared at a female staff member while having his hand in his pants, apparently rubbing his genitals.
Patients at Atascadero have to follow certain procedures in order to move around the facility, and a majority of the patients are able to follow the procedures without difficulty. Appellant has failed to follow the procedures a significant number of times, which shows lack of judgment and impulse control. He got into a fight with another patient in the shower room. He has also been disruptive in the patient’s dining room, and at one point he was so disruptive that he was asked to stay away.
Dr. Deane further testified that the treatment goal at Atascadero is for patients to be able to manage their conditions in such a way that they can leave the hospital and go about their lives. Mental illness is a lifelong condition, but it can be managed and controlled, and many people with mental illness can lead productive lives. Appellant’s mental disorder requires lifetime management with medication and an ongoing relationship with a treating psychiatrist who can monitor his symptoms and adjust his medication. Appellant also has to understand that he has an illness that needs to be treated and monitored and that he has to avoid using drugs and placing himself in stressful situations.
In Dr. Deane’s opinion, appellant’s condition continues to pose a substantial danger of physical harm to others. Appellant “partially accepts” that he has a mental illness, but his disorder impairs his ability to think clearly and to control his behavior and impulses; he has demonstrated violent behavior both inside and outside the hospital; he does not acknowledge that his prior alcohol and marijuana abuse impaired his judgment; his condition is not in full remission; he does not recognize the symptoms of his mental illness; and he would not reliably follow his medication and treatment plan without supervision. Defendant has failed his treatment plan twice before: first in 1999, when he was released on parole following his first conviction, and again in 2004, when he was released to a CONREP. And, although the staff in his unit recommended in May 2007 that defendant be released to a CONREP, defendant has made it clear that he does not want that type of supervised release.
Clinical psychologist Dr. Douglas Johnson, director of a CONREP, testified as an expert in psychological diagnosis and risk assessment that CONREPs have two missions: to make sure that the people in an outpatient commitment do not pose a risk to public safety and to keep people out of the state hospital to the greatest extent possible.
Dr. Johnson or his staff have visited appellant at Atascadero six times. Appellant’s criminal history of repeated serious crimes[3] indicates that appellant had a serious mental illness before he began receiving treatment. Now that he is receiving treatment, it is of utmost importance that appellant recognize that he has a mental illness and that he recognize early warning signs. When appellant was in a CONREP facility in 2004, he violated the terms and conditions of his release, he interacted with the female staff and his peers in an unacceptable manner, and the staff felt intimidated by him, so he was found to be inappropriate for the facility. This history of failure in a CONREP placement is a significant factor in any current assessment.
In Dr. Johnson’s opinion, the relapse prevention plan that appellant has written up for himself is not complete. For instance, although appellant specifies what he would do if he felt that a relapse was imminent, he does not specify what would make him feel that a relapse was imminent.
When Dr. Johnson’s staff met with appellant in May 2007, appellant expressed an interest in a CONREP for the first time. However, Dr. Johnson was not aware there was a CONREP referral for appellant.[4] Before defendant can be accepted into a CONREP, the CONREP staff will have to visit appellant again to find out what made appellant decide that he wants a CONREP referral. Dr. Johnson also believes that any referral of appellant to a CONREP should be contingent on appellant going back to the same program that he was in before, because appellant needs a highly supervised situation. And, because of appellant’s prior placement failure, Dr. Johnson also wants to see appellant’s commitment to such a program over a greater period of time. Appellant is in partial remission and is psychiatrically stable but, in Dr. Johnson’s opinion, appellant still represents a substantial danger of physical harm to others.
Appellant testified in his own behalf that he has a mental illness that has been diagnosed as schizoaffective disorder, bipolar type. He is taking Risperdal and Zyprexia daily and he would continue to take the medications if he were not at Atascadero because he could relapse if he did not do so. He would be anxious and tired because he would not get enough sleep. If he felt that way, he would contact a doctor and his family or go to a crisis clinic or an emergency room. He did not take any medication before he was sent to prison and Atascadero, and he has noticed that since he began taking medication he has a different way of thinking and he no longer fights with people at the hospital. He was frustrated when he was not successful in a CONREP the first time and he wants to be evaluated for one again.
Appellant testified that when he is released from the hospital he plans on living with his cousin in Oakland. He will go to the social security office to get his SSI benefits reinstated and to have a doctor appointed for him. He plans on staying away from old friends and from other individuals who use drugs. He is working on his G.E.D., he has an interest in music, and he has a goal of someday being involved in the music business. He currently spends his days in the hospital music room, writing lyrics and composing music. He listens to rap music on headphones and in the past, when people heard him use inappropriate language, he was repeating the lyrics he heard on his headphones. He did not intend to offend anybody.
Although appellant thinks that CONREP is a good program, he does not think that it is right for him because of all the things he wants to do. He wants to get his G.E.D. and go to the Art Institute in San Francisco as soon as possible. A CONREP representative told appellant that it might take ten years before he completes their program, and that is a very long time. Although his mental illness is going to be a lifelong challenge, all he needs to do to keep his symptoms under control is take his medications and maybe go to group therapy sessions. He is willing to go to CONREP if he cannot be fully released, but he does not think that he is “cut out for” CONREP.
On July 12, 2007, the jury found the petition alleging appellant to be a mentally disordered offender as defined in section 2970 to be true. The court filed an order for commitment the same day, committing appellant to Atascadero for one year ending February 9, 2008. On August 21, 2007, Atascadero informed the Santa Clara County District Attorney that its staff would not be recommending extension of appellant’s commitment. On June 19, 2008, the district attorney’s office confirmed to the Attorney General that they did not and could not petition for an extension of appellant’s commitment.
In the mean time, appellant filed an opening brief in his appeal on February 1, 2008, the Attorney General filed a response brief on June 12, 2008, and appellant filed a reply brief on August 1, 2008. We sent the parties a letter on September 4, 2008, asking if they intended to request oral argument; we sent a calendar notice for November 13, 2008, on October 15, 2008; and we sent a notice of calendar date change to November 18, 2008, on October 27, 2008. The Attorney General filed a motion to dismiss the appeal for mootness on November 17, 2008, and appellant filed his response to the motion on December 1, 2008.
DISCUSSION
Appellant’s contentions on appeal
In his opening brief, appellant contends that, for purposes of recommitment proceedings under section 2970, “the term ‘cannot be kept in remission without treatment’ has a specific, legal meaning” as defined in section 2962, subdivision (a), and that the trial court denied him a fair trial when it “failed to instruct the jury on the technical legal meaning of ‘cannot be kept in remission without treatment.’ ” Appellant contends that the evidence was insufficient to establish beyond a reasonable doubt that he qualified as an MDO. He contends that the trial court should have instructed the jury sua sponte as follows: “The People have the burden of proof, beyond a reasonable doubt, that if released, the defendant will not take his prescribed medication and in an unmedicated state, the defendant represents a substantial danger of physical harm to others.” He contends that the trial court erred in refusing to give an instruction he requested over the People’s objection as follows: “A finding of ‘substantial danger of physical harm to others’ as used in these instructions, requires proof that [appellant’s] mental disorder causes him to have serious present difficulty in controlling his violent criminal behavior, such that he poses a serious and well-founded risk of physical harm to others.” Lastly, appellant contends that the trial court abused its discretion by failing to place him into a CONREP, as “the evidence overwhelmingly established that appellant was suitable for out-patient treatment.”
The Motion to Dismiss
In the motion to dismiss, the Attorney General contends that “[a]n appeal from a commitment order for a mentally disordered offender is moot once the commitment period has expired. (People v. Merfield (2007) 147 Cal.App.4th 1071, 1074-1075.) Because appellant is apparently no longer civilly committed, dismissal for mootness is appropriate.”
In his response to the motion to dismiss, appellant concedes that “the case is now technically moot because [he] has been released.” However, appellant does not agree “that this court should dismiss the case for mootness because several of the issues raised in this case are issues of importance that are likely to evade review in the future.” “In my briefing, I raised five issues. The fifth issue relating to the trial court’s abuse of discretion by failing to place [me] into a conditional release program is completely moot and there is no reason for this court to address it at this time.” “The remaining four issues, on the other hand, are all issues relating to the appropriate way to instruct the jury in a mentally disordered offender case on significant issues and the nature of the evidence required to establish whether an MDO qualifies as not being in remission or not being able to be kept in remission without treatment.” Therefore, appellant requests “that this court not dismiss the appeal for mootness and, instead, issue a published opinion addressing these important issues.”
Appeals from a commitment order following a MDO extension hearing are moot once the commitment period has expired. (People v. Merfield, supra, 147 Cal.App.4th at p. 1074.) The merits of such appeals are reviewed, nevertheless, as long as the defendant is subject to recommitment. (Id. at p. 1075.) In this case, appellant is not subject to recommitment and the appeal was moot before the Attorney General filed a response to appellant’s opening brief.
Although the appeal is moot, when one or more issues presented are “likely to recur while evading appellate review” and involve a “matter of public interest,” an appellate court has discretion to address the issues for the guidance of future proceedings before dismissing the case as moot. (People v. Cheek (2001) 25 Cal.4th 894, 897-898, 903 [deciding issues raised by an expired commitment order under the Sexually Violent Predator’s Act, Welf. & Inst. Code, § 6600 et seq., before affirming the Court of Appeal’s judgment dismissing the appeal as moot]; see also, People v. Fernandez (1999) 70 Cal.App.4th 117, 134-135 [MDO]; People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2 [MDO]; People v. Rish (2008) 163 Cal.App.4th 1370, 1380-1382 [MDO].)
Although appellant requests that we decide his appeal despite its mootness, we find that the issues he has presented are particular to this case, are not likely to recur while evading appellate review, and do not involve matters of public interest. Appellant’s contentions invoke no appellate relief other than reversal of the commitment order, and we cannot undo the commitment. (See People v. Brandon (2008) 166 Cal.App.4th 238, 244.) Accordingly, we decline to exercise our discretion to proceed to the merits of appellant’s contentions despite the mootness of the appeal.

DISPOSITION
The appeal is dismissed as moot.






_______________________________________________________
Bamattre-Manoukian, ACTING P.J.





WE CONCUR:




__________________________
Mcadams, J.








_________________________
duffy, J.









Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---