P. v. Haner
Filed 10/16/07 P. v. Haner CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. THOMAS W. HANER, Defendant and Appellant. | A116890 (Sonoma County Super. Ct. No. SCR24656) |
I. INTRODUCTION
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant appeals from an order of the Sonoma County Superior Court revoking his outpatient status pursuant to Penal Code section 1608.[1] As authorized by Wende, appellant asks us to examine the record and determine if there are any issues which are deserving of further briefing and, if so, to order the same. We have done so, have found no such issues, and thus affirm the section 1608 order appealed from.
II. FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 1997, appellant was charged with two felony counts, one for violating section 459 and the other for violating section 496a. The information also included allegations of a prior serious felony conviction and a prior strike conviction. Pursuant to section 1026, appellant pled not guilty by reason of insanity to both counts and, on July 10, 1997, was committed to Atascadero State Hospital for a period of six (6) years. On January 28, 1999, appellants sentence was recalculated pursuant to a request for clarification from the State Hospital, and he was recommitted for a term of 17 years pursuant to section 1026. He was thereafter transferred to Napa State Hospital as a lesser restrictive placement under the same section.
On October 9, 2003, a treatment team at that hospital recommended appellant be given outpatient status. A hearing on that recommendation was held on December 9 and, shortly thereafter, the Sonoma County Department of Public Health submitted a proposed plan for appellants treatment and supervision, which was approved by the court on January 7, 2004. The plan approved by the court was pursuant to the Sonoma County Conditional Release Program (CONREP) in accordance with sections 1026, subdivision (b) and 1604. The court extended appellants supervised release for one year by its order of December 9, 2004.
Via a letter filed with the superior court on October 21, 2005, CONREP requested a hearing to determine whether appellants status as an outpatient under that program should be revoked pursuant to section 1608. On November 1, 2005, pursuant to a stipulation between counsel and CONREP, appellants outpatient status was revoked.
On August 1, 2006, appellant stipulated to an additional year of inpatient treatment at the Napa hospital, with the understanding that he might be permitted to return to outpatient status sooner if he had made sufficient progress.
However, before that year was up, CONREP filed a request for revocation of that potential outpatient status,[2]although that request did not specify the statutory basis for the requested revocation. A hearing on that request was held on January 29, 2007. At that hearing, Dr. Carol Kuchmak, a staff psychiatrist at Napa State Hospital testified for the People. In her opinion, appellant still suffered from paranoid schizophrenia, was psychotic, and suffered from delusions. In her opinion, appellant required additional hospitalization in order to stabilize his medications (she opined that he was taking one unnecessarily in order to benefit from its alcohol-like effects), and specifically opined that he posed a risk of causing property damage because of his psychotic delusions.
Appellant testified for himself at the hearing, and stated that he wanted to get back out on CONREP. He said that a neurologist had prescribed the medication he was taking which Dr. Kuchmak had referred to, and denied abusing it. He explained that the medication was for restless leg syndrome. He went on to testify that he had developed a relapse prevention program, and had the ability to identify warning signs that would keep him from repeating his past mistakes. He stated that he would take whatever medications CONREP prescribed while on outpatient status, and denied being psychotic.
At the conclusion of the hearing, the trial court stated that, based on Dr. Kuchmaks testimony that appellant is a risk for doing property damage, it was convinced beyond a reasonable doubt that he is currently [a] schizophrenia paranoid type and should not at this stage be in CONREP.
Three days later, on February 1, 2007, the superior court issued a formal order revoking appellants outpatient status pursuant to sections 1026 and 1608. Appellant filed a timely notice of appeal.
III. DISCUSSION
The first issue we face is, commendably, frankly addressed in appellants brief: does the Wende process apply to an order revoking the outpatient status of a person who has pled not guilty by reason of insanity and, pursuant to section 1026, found not to be sane. Consistent with a number of unpublished decisions by our sister courts, we will assume that it does. (Cf. also both the majority and dissenting opinions in Conservatorship of Ben C. (2007) 40 Cal.4th 529.)
Based on that assumption, and after examining the record before us, we have no difficulty in concluding that there are no issues requiring further briefing to, or consideration by, this court. Appellant was ably represented by counsel at the January 29, 2007, hearing, and that counsel cross-examined Dr. Kuchmak, examined appellant, and then argued the matter to the trial court. The hearing was clearly fair and proper in all respects, and the testimony of Dr. Kuchmak that, in her opinion, appellant was psychotic and thus still a danger to the community if not under constant supervision and treatment, constitutes substantial evidence in support of the trial courts order denying him outpatient status.
IV. DISPOSITION
The order appealed from is affirmed.
_________________________
Haerle, Acting P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Publication Courtesy of California attorney referral.
Analysis and review provided by Vista Property line attorney.
[1]All further statutory references are to the Penal Code, unless otherwise noted.
[2]Although the CONREP request was framed in terms of revoking appellants outpatient status, a review of the record confirms that appellants Wende counsel is almost surely correct in concluding that in reality it was a request to cancel any future outpatient status and, instead, to keep appellant on an inpatient basis, in which he had apparently been since November 2005. In addition to the citations provided by appellant to support this conclusion, we would add that the clerks transcript provided us notes specifically that, at the time of the January 2007 hearings, appellant was noted as being housed at Napa State Hospital.
