Filed 11/15/18 P. v. Aguirre CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ROBERT AGUIRRE, Defendant and Appellant.

H044536 (Santa Clara County Super. Ct. No. 178190)

Robert Aguirre appeals from an order denying his petition for conditional release from inpatient hospitalization arising from a criminal adjudication of not guilty by reason of insanity. Appellant challenges the sufficiency of the evidence supporting the order and asserts that his due process and equal protection rights were violated. We will affirm the order.

Background

Appellant has been confined at Patton State Hospital (Patton) since December 1996, following his transfer from Atascadero State Hospital. Appellant had been convicted by a jury of false imprisonment in September 1996 and then adjudicated by the court to be not guilty by reason of insanity. The trial court committed appellant to Atascadero State Hospital for a term of six months to life.

This court described appellant’s offense in People v. Aguirre (June 4, 1998, H016128) [nonpub. opn.] upholding the jury instructions and verdict. The conviction arose from appellant’s pursuit of a woman on the street in November 1994. that occasion he repeatedly blocked the victim’s path, grabbed her, and kissed her, all while persistently (but unsuccessfully) urging her to acquiesce. Following the jury’s guilty verdict, the court found true the allegations that appellant had suffered two prior serious felony convictions and two prior prison terms. (Pen. Code, § 667, subds. (b)(-(i); 667.5, subd. (b).)[1]

On March 8, 2016, appellant filed a petition for transfer to outpatient treatment and supervision through the Forensic Conditional Release Program (CONREP). (§§ 1615, 1026.2.) At the hearing on February 15 and March 8, 2017 the court heard testimony from three experts as well as Scott Blow, from the regional placement center, and appellant himself.

The first witness, Dr. Sunah Kim, a clinical psychologist, was recognized by the court as an expert in the field of forensic psychology. Although she had first met appellant when she was an intern at Patton between 2009 and 2011, Dr. Kim became employed there in 2011 and became involved in appellant’s treatment in September 2016. As staff psychologist she was part of a treatment team that would meet with appellant periodically to address any issues and update his treatment progress; and if he was reported for any “incidents,” those were addressed by the team at that time. She was also responsible for producing all court reports for the patients on the unit.

Dr. Kim testified that appellant suffered from schizoaffective disorder, alcohol abuse disorder, and an intellectual disability. She further stated that the team was currently addressing issues concerning appellant’s impulsivity. Appellant had acknowledged that he became irritated by having to stand in line, and on one occasion around June 2016 he knocked over a chair to reach the front of a line. Dr. Kim did not recall any other significant behavioral issues requiring a team meeting. His impulse control had improved over the past five months; although he would get frustrated easily when his needs were not met, the intensity of his outbursts had decreased. She went on to explain, however, that the staff on appellant’s unit knew him well and knew how to handle him to avoid incidents. Appellant continued to be intrusive and attention seeking, and the staff knew that it was best to keep him busy.

Dr. Kim acknowledged that she found appellant to be pleasant, cooperative, and compliant with treatment. She did not believe that appellant was ready for outpatient treatment, however; with his “cognitive difficulties and chronic condition of his mental illness,” appellant would not be able to function independently under CONREP supervision.[2] That assessment was based on both his schizoaffective disorder and his cognitive limitations.[3] Appellant exhibited “thought disorganization,” which interfered with his ability to bridge his thoughts in a conversation, and “concrete thinking,” which was reflected in his need for very specific, concrete information to understand and interact with people socially. When given structure and very specific guidance, he was able to listen to it and try to follow through; but Dr. Kim could not say he had gained insight.

Dr. Kim was also asked about a psychiatric assessment from May 2016, which reported appellant’s admission that he “ ‘[m]asturbate[d] twice a week to deviant sexual fantasies of forcible sex.’ ” To Dr. Kim, if that was still occurring it was “very concerning” from a risk-assessment perspective. Also presenting a risk factor were appellant’s prior convictions for assault with intent to commit rape in 1983 and 1989. She thus concluded that appellant would not be able to meet the criteria for supervision by CONREP, but instead needed the more structured environment provided by Patton. Although many of the symptoms of his schizoaffective disorder were in remission, the combination of that chronic condition and his cognitive deficits “will very unlikely go away in his life.” If he were released, he would be at a high risk of recidivism.

Merle Madera, M.D., a staff psychiatrist at Patton, testified as an expert in the field of psychiatry. She had treated appellant for six months between March and September 2016. Appellant was prescribed a mood stabilizer and an anti-psychotic medication based on his report that he heard voices telling him to kill himself.

Appellant had improved since he had reported to a previous psychiatrist that he had thoughts of having sex with a woman against her will. That was in June 2015. It was a good sign that he was willing to talk about it. But appellant was “needy,” and though his schizoaffective disorder was under control, he constantly needed redirection of his behavior. For that reason appellant was not independent enough to be ready for release to CONREP, a less structured program than Patton. Appellant needed “constant redirection from the staff regarding his issues with . . . boundaries,” because he tended to intrude on other people’s space and displayed a lack of social cues. If he were around people who cannot tolerate that kind of behavior, he would be more likely to be physically assaulted; at Patton, however, the staff are available to prevent people from getting hurt. Thus, appellant required a high level of supervision in a “very highly structured environment” like Patton, without access to alcohol, and with constant reminders of what sexual impulses are not acceptable.[4]

Dr. Madera “strongly believe[d]” that appellant would benefit in a setting like Sylmar,[5] which was “a little bit less [structured] than Patton but more than CONREP.” If he were released there, Dr. Madera would be comfortable; but appellant lacked—and probably always would lack—the insight into his condition that was necessary to be successful at CONREP.

Appellant testified on his own behalf. He said that he had been at Patton for 25 years. In the past couple of years he had been doing landscaping and janitorial work and attending Alcoholics Anonymous (AA) meetings. When asked to tell the court about the offense that had led to his placement at Patton, he said that he saw a girl, a stranger, at a bus stop and hugged her; he was drunk at the time and had stopped taking his medication. He gave the girl a kiss on the cheek and gave her his number, and then he walked away, but she called the police. Now he knew that he must stop what he is doing, take his medication, talk to his psychiatrist, get an AA sponsor, reach out to family members, and walk away if he has an urge to approach women.

Appellant denied having thoughts about forcing sexual activity with women; he was stable now because he was taking his medication and it helped keep him “out of trouble.” He recalled two offenses that had occurred before the commitment offense; one occurred when he was 19, when he jumped on a woman and threw her to the ground, intending to have sex with her. In another prior incident, in his thirties, he did the same thing to another woman on the street. Now he knew that it was “not right to do those things because that’s against the law.” He knew that he had to work on his “intrusiveness and boundaries,” which he understood to mean “wait my turn” when someone is talking and give people physical space. But he had not violated any Patton rules in the past year or been written up for any rule violations in “a whole lot of years.” On the last occasion it was for hugging a female patient in December 2015. He wanted to be placed at Sylmar, or live with his sister in New Mexico, but if told he had to stay local, he would. He believed he was ready to live on his own “on the outside.”

When the hearing resumed on March 8, 2017, appellant’s counsel called Blow, the district manager at the San Andreas Regional Center (SARC). After hearing a hypothetical scenario based on appellant’s history, Blow discussed the different kinds of community placements, ordered by level of supervision and support. Blow further explained, however, that each contracting agency can choose the individual it wishes to provide services for when an opening occurs. Blow could not speak to the likelihood of success in appellant’s specific situation, having not reviewed his case; but generally he stated that individuals could be successful if they chose to abide by the rules of their placements.

Amanda Lung, a licensed clinical social worker and the community program director at South Bay CONREP Harper Medical Group, testified as an expert in risk assessment and diagnosis of mental conditions. Lung evaluated appellant for his suitability for placement at CONREP; at that time she agreed with Patton staff that appellant was not ready for outpatient treatment. Her predecessor, Dr. Doug Johnson, had reported in April 2016 that appellant had not made sufficient progress to be ready for outpatient treatment. And Lung agreed with Dr. Madera’s August 2016 opinion that appellant needed continued inpatient care. She found it a positive sign that appellant had been forthcoming about his sexual fantasies, but she was concerned that they were of forceful sex with women. Lung was also concerned about appellant’s having swung his fist at another patient in March 2015; that indicated to her that he had not learned to control his “physical impulsiveness to act aggressively.”

At the conclusion of the hearing the court reviewed the testimony it had heard and cautioned the parties that under section 1026.2, its objective was risk assessment, “not the best placement.” The court found that appellant had certainly made progress, but he was “still a danger” and no SARC placement was available, “much less appropriate.” Accordingly, in its written order filed March 22, 2017, the court denied appellant’s petition for transfer to outpatient status. This timely appeal followed.

Discussion

Section 1026.2 sets forth detailed procedures applicable to persons who have been found not guilty by reason of insanity. Subdivision (e) of this statute provides for a procedure under which a patient confined to a mental health facility may petition for release to an outpatient treatment program. The court must hold a hearing to determine whether the petitioner “would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community.” (§ 1026.2, subd.(e).) If the court finds to the contrary, the petitioner must be released to “an appropriate forensic conditional release program for one year.” (Ibid.) Once that year has been completed, the court must conduct a hearing to determine whether the petitioner has been restored to sanity. “[T]he primary purpose of the statutory scheme is protection of society.” (People v. Harner (1989) 213 Cal.App.3d 1400, 1406.) Thus, a person subject to the scheme should not be released unconditionally without “a court’s determination that he is no longer in need of such supervision or treatment.” (Ibid.)

We review the trial court’s ultimate decision for abuse of discretion. (People v. Bartsch (2008) 167 Cal.App.4th 896, 900 (Bartsch); People v. Sword (1994) 29 Cal.App.4th 614, 624 (Sword); People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.) “Under that standard, it is not sufficient to show facts affording an opportunity for a difference of opinion. [Citation.] . . . ‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’ [Citation.]” (People v. Cross (2005) 127 Cal.App.4th 63, 73.) The order denying outpatient status will be reversed if it is not supported by substantial evidence of dangerousness.

Appellant correctly points out that the court's duty in this matter was “not to rubber-stamp the recommendations of the Patton doctors and the community release program staff experts.” (Sword, supra, 29 Cal.App.4th at p. 628.) However, as the petitioner, appellant had the initial burden to establish, by a preponderance of the evidence, that he would not be a danger to others if placed in a conditional release program in the community. (§ 1026.2, subd. (k); see Bartsch, supra, 167 Cal.App.4th at p. 903; People v. Dobson (2008) 161 Cal.App.4th 1422, 1433.) As the party who had the burden of proof below, he must show that the evidence compelled a finding in his favor as a matter of law. (See Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279; see also In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [appellant court does not reevaluate the conflicting, competing evidence and revisit lower court’s failure-of-proof conclusion].)

He cannot meet this burden. It was for the trial court, not this court, to weigh the evidence and evaluate each witness’s credibility. The judge below found appellant’s testimony insufficient to convince her that conditional release was appropriate at this point in appellant’s therapeutic progress. She acknowledged appellant’s testimony that taking his medication had made him stable. She nevertheless believed, based on the testimony of Dr. Kim, Dr. Madera, and Amanda Lung, that he was “still a danger” such that CONREP would not be an appropriate placement. On this record, we cannot say the court's decision was manifestly unjust or beyond the bounds of reason. Having reached this conclusion, we need not address appellant’s contentions that his due process and equal protection rights were violated, as both arguments depend on the insufficiency of the evidence supporting the order, a premise we have rejected.[6] Because appellant did not meet the conditions for outpatient release set forth in section 1026.5, the court did not err in denying his petition.

Disposition

The order is affirmed.