P. v. Glover

Filed 8/20/07 P. v. Glover CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Dwayne Glover appeals from an order recommitting him to the Department of Mental Health for treatment as a mentally disordered offender. (MDO; Pen. Code,   2962; 2966, subd. (c).)^[1] Appellant contends that the evidence does not support the finding that he represents a substantial danger of physical harm to others. We affirm.

In 2005 the Board of Prison Terms (BPT) certified appellant as an MDO and committed him to the California Department of Mental Health for treatment.^[2]

On August 30, 2006, the BPT found that the serve mental disorder was not in remission and recommitted appellant. ( 2966, subd. (c).) Appellant filed a petition challenging the BPT decision and waved jury trial.

Doctor Erika Wartena, appellant's treating psychiatrist, testified that appellant suffered from delusional disorder, a severe mental disorder manifested by paranoid delusions, grandiose delusions, and somatic delusions. Appellant believed the mother of his child was related to General Colin Powell and that she possessed incredible power. He also believed that he was an ordained minister, that he was the center of a major conspiracy involving multiple agencies and persons, and that the FBI was investigating his controlling offense.

Appellant's persecutory delusions, which are most prominent, include the belief that the mother of his child was out to kill him and that, during the controlling offense, he was drugged, assaulted, sodomized and had parts of his penis stolen. Appellant's somatic delusions include the belief that his buttocks are misshapen, that his penis does not work correctly because he has been maligned, that his eye has been assaulted by foreign particles, that his vocal cords were slashed, and that his neck was getting shorter.

Doctor Wartena opined that the mental disorder could not be kept in remission without treatment and that appellant posed a substantial risk of harm to others. Appellant lacked insight about his mental illness, refused to take his medication, and had demonstrated specific dangerousness requiring two Qawi orders (In re Qawi (2004) 32 Cal.4th 1) to administer psychotropic medication.^[3]

Doctor Wartena testified that the first Qawi order was based on a March 1, 2006 incident in which appellant incited a behavioral emergency at Atascadero State Hospital by threatening an inmate. The threat of violence was so imminent that hospital staff pulled a "red light" and summoned the hospital police.

At trial, appellant denied threatening anyone and stated that he had merely "staged a confrontation." Appellant was mad because the inmate left tobacco shavings on his bed and said, "You're bound to get into an argument or two, but that's all it was, was an argument. That's all it was"

The trial court found that appellant suffered from a severe mental disorder, that the severe mental disorder was not in remission and that appellant posed a substantial danger to others. ( 2966, subd. (c).)

Dangerousness

Relying on People v. Gibson (1988) 204 Cal.App.3d 1425, appellant argues that dangerousness must be based on something other than the fact that he suffers from a severe mental disorder. Appellant claims that the behavioral emergency was a minor and isolated incident and does not support the finding that he represents a substantial danger of physical harm to others. We disagree.

Doctor Wartena testified that the March 1, 2006 incident was incited by appellant without provocation. Even when hospital staff intervened, appellant escalated the confrontation by removing his jacket and shoes, pointing his finger at the inmate, and demanding that they go outside and fight. Staff called the hospital police and, only after a show of force, did appellant stop threatening the inmate.

Doctor Wartena stated: "The most prominent symptoms [sic] for Mr. Glover is delusions of paranoia. And people who are paranoid are at increased risk for acts of dangerousness; just baseline, they are. In particular, the kind of controlling offense that Mr. Glover engaged in and the kind of symptoms that he has, in particular, statistically speaking, place him at increased risk for future harm to others. The fact that he, but for an injunction to take his medication, was refusing to take it, despite the fact that it could mitigate his dangerousness, again, speaks to his lack of insight."

Appellant argues that Doctor Wartena based her opinion testimony on the statistical dangerousness of mentally disturbed individuals in general. We disagree. The doctor explained that "there was no immediate trigger" for the incident and that even in a highly structured hospital environment with hospital staff and police, appellant was a substantial danger to others. The doctor stated that appellant continues to deny the controlling offense, denies that he has ever been a danger to others, denies that he suffers from a severe mental disorder, and refuses to take his medication. Even after the Qawi order issued, appellant faked taking his medication ("cheeking").

Substantial evidence supports the finding that appellant suffered a severe mental disorder that was not in remission, and by reason of the mental disorder, was dangerous. ( 2962; 2966, subd. (c).) The phrase " 'substantial danger of physical harm to others' " has been interpreted "to mean a prediction of future dangerousness by mental health professionals." (In re Qawi, supra, 32 Cal.4th at p. 24.) Section 2962, subdivision (f) provides that "'substantial danger of physical harm' does not require proof of a recent overt act."

Doctor Wartena's expert testimony was uncontroverted. A psychiatrist may and should take into account the prisoner's entire history in making an MDO evaluation, including prior violent offenses as well as the prisoner's mental history. (People v. Pace (1994) 27 Cal.App.4th 795, 799.) As in every substantial evidence case, we view the evidence and draw reasonable inferences therefrom in favor of the MDO order. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We may not reweigh the evidence or substitute our judgment for that of the trial court. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)

The judgment (MDO recommitment order) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Jac A. Crawford, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code.

^[2]The first MDO commitment was affirmed in an unpublished opinion. (B195155.) We take judicial notice of the record in that appeal which indicates that the controlling offense was assault with a deadly weapon. ( 245, subd. (a)(1).) Appellant believed that he had been drugged and sodomized by the victim, and hit the victim with a claw hammer while the victim was asleep. Pursuant to a negotiated plea, appellant was convicted of assault with a deadly weapon and sentenced to two years state prison in 2004.

^[3]In In re Qawi, supra, 32 Cal.4th at pages 27-28, our Supreme Court held that an MDO could be compelled to be treated with antipsychotic medication in nonemergency situations where a court determines that the patient is dangerous or is so gravely disabled that the patient lacks the capacity to refuse medication.