Filed 7/28/22 P. v. Holt 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Ervin Texas Holt appeals from an order extending his commitment as a mentally disordered offender (MDO) pursuant to Penal Code sections 2970 and 2972.[1] On appeal, he contends that substantial evidence did not support the finding that he poses a substantial risk of physical harm to others. The People disagree. We affirm.

PROCEDURAL SUMMARY

On October 13, 2020, the Kern County District Attorney filed a petition pursuant to sections 2970 and 2972 to extend defendant’s commitment as an MDO. The petition alleged that on October 29, 2013, defendant was sentenced to two years eight months in prison after having pled no contest to resisting a peace officer (§ 69). On March 25, 2014, defendant was certified as an MDO. On March 28, 2014, he was admitted to Atascadero State Hospital. On February 22, 2018, defendant was transferred to Coalinga State Hospital (CSH), where he now resides. His commitment was set to expire on March 20, 2021. The petition was filed based on the opinion of the medical director of CSH that defendant’s commitment should be extended pursuant to section 2970 because “he suffers from a severe mental disorder that is not in remission or cannot be kept in remission if treatment is not continued and by reason of mental disorder, he represents a substantial danger of physical harm to others.”

On August 30, 2021, at the close of a bench trial, the trial court granted the petition and ordered defendant recommitted to CSH for an additional year, ending on March 20, 2022.

On September 3, 2021, defendant filed a notice of appeal.

FACTUAL SUMMARY

A. The People’s Case

On August 25, 2021, Dr. Emi Komaki was a unit psychologist at CSH and an expert in the field of clinical psychology. Dr. Komaki had been assigned to care for defendant at CSH for about five years. She was responsible for creating and updating defendant’s treatment plan; she met with defendant at least monthly; she provided psychotherapy to defendant when he chose to attend; and she conducted periodic violence and suicide risk assessments of defendant. In conducting risk assessments, Dr. Komaki normally asked a patient to meet with her for an interview, reviewed clinical observations noted in medical records, and spoke to staff. If a patient declined to be interviewed, she would rely on the other available information.

In her role as the lead of defendant’s treatment team, Dr. Komaki was required to update “maybe half” of his treatment plan quarterly. “[O]ther team members, social workers and rehab therapists, … update[d] the rest of the treatment plan.” In updating the treatment plan, Dr. Komaki normally reviewed defendant’s medical and legal history. In recent years, defendant actively participated in his team treatment planning conferences and obtained a job at CSH.

At CSH, defendant had access to weekly individual and group psychotherapy. As of August 25, 2021, defendant was not attending any of the available groups. Defendant had not formally enrolled in any group since his admission to CSH despite having been encouraged to do so. However, he sporadically informally attended groups, approximately five times in the past year.

Defendant is diagnosed with a mental disorder, schizoaffective disorder, bipolar type. That disorder is characterized by “experiencing both psychotic symptoms, like delusions or … hallucinations … as well as mood symptoms, manic depressive or manic episodes. So it is both the psychosis and the mood component.” As to defendant, the mental disorder presented itself mostly as “grandiose delusions,” such as believing that “he is the King of England …, that he owns a lot of buildings …, that his brain was removed and replaced with a new one[, and] that he was dead already and buried in the grave.” Also among defendant’s delusions was that he was committed to CSH because he committed murder and rape, that he was a fighter and knew kung fu, and that he was a member of the Marines. None of that was true. He had also experienced auditory hallucinations as well as mood cycling between manic and depressive periods.

In addition to a mental disorder, defendant also has a diagnosis of intellectual disability. His intellectual ability limits his ability to communicate. He also suffers from substance use disorders—specifically alcohol, methamphetamine, and cannabis. Defendant does not have the insight into the substance abuse disorders necessary to abstain from the use of substances. Such substance use combined with defendant’s medication would likely compound the symptoms from defendant’s mental condition.

Dr. Komaki offered an opinion on defendant’s overall functioning: In January and February 2020, defendant was transferred to the jail so he could attend court hearings. While he was housed at the jail, he was not taking medications. When he returned in February 2020, he “was not doing well. He was refusing medical treatment, medications, and he was very agitated and psychotic.” During that time, defendant made threats to staff or patients. He “power walk[ed]” the hallway “very intensely” while cursing to himself. At that time, his risk of harm to others was “moderate.” Defendant’s behavior was the same in 2019 when he was transferred to the jail to attend court, did not take his medication, and refused to take his medication upon his return to CSH. After about six months, defendant had stabilized with medication changes and his overall functioning improved. Dr. Komaki further opined that defendant’s risk of violence is low “based on his behavior in the past year,” but she clarified that the assessment is only valid as to defendant’s risk of violence within the institutional setting. “[W]ith medication [and] under close supervision,” defendant demonstrated an ability to manage his anger. That assessment was based on defendant’s mental health functioning, his medication compliance, and his voluntary attendance at treatment programs.

When not medicated, people with schizoaffective disorder, depressive type can become agitated and “overwhelmed to the point they might engage in self harm or [harm] to others, because they don’t know what to do with what’s going on inside of their head. So that can be very dangerous ….” Defendant was unable to identify the medications he was taking or fully understand how often he needs to take medication. He expressed no interest in learning about his medications. On some occasions, he has expressed that he does not need medication and has declined to attend individual and group treatment. However, on other occasions he has expressed some insight into his need for medication by telling Dr. Komaki that the medication helps him calm down. Overall, defendant’s insight into his mental condition had not improved in the prior three years.

While defendant’s functioning was more stable in the prior year, “his symptoms affect him in his daily life in a way that it is difficult for him to socialize [and] communicate his needs.” Because of his disorganized thought and speech, it is difficult for him to relate to people. At CSH, when defendant has talked to peers and the content of his speech is delusional, he does not make sense to others and he has gotten upset and gone to his room.

Dr. Komaki opined that defendant does not seem prepared for or have the resources to function outside of CSH. He had made no progress in the past two years toward developing coping skills. Defendant’s mental condition was not in remission. Dr. Komaki could not opine on whether defendant would be successful in a community setting. However, she opined that if defendant was released to the community, he would need to be in a “very structured” setting with “supervision, monitoring, and somebody to really care for him every day.”

Dr. Robin Campbell is a forensic psychologist and an expert in the field of forensic psychology. She heard Dr. Komaki’s testimony and agreed that defendant suffered from schizoaffective disorder, bipolar type.

Dr. Campbell interviewed defendant and produced a forensic analysis report summarizing her impressions of the interview on July 12, 2021. She had previously interviewed defendant and produced reports in 2018, 2019, and 2020. In preparing her forensic analysis reports, she reviewed “the [original section] 2962 report, … probation officers’ reports, legal status summary reports, … the most recent CONREP report …, hospital documentation, including nursing entry notes, RN progress notes, social workers’ notes, rehab therapy notes, psychology notes, psychiatry notes, … psychosocial assessments …, the case history[,] the treatment plan …, serious incident reports, … the treatment mall notes, and whether the person is using emergency medication ….”

Based on her annual evaluations of defendant, Dr. Campbell opined that defendant “is definitely more stable” than when he was admitted to CSH. “There have been no aggressive outbursts, no destruction of state property, [and] no self-injuri[ous] behavior.” Prior to 2021, defendant “demonstrated mania, the excessive energy, the agitation, the rapid speech, the unstable mood.” In 2021, defendant was “lethargic [and] his answers were very brief ….” So while Dr. Campbell could not “say whether [defendant’s] condition is improved or not, … his behavior [was] more stable.” Defendant’s change in mood might simply have reflected that he was in a depressive phase rather than a manic phase.

During her July 12, 2021 interview of defendant, Dr. Campbell learned that defendant was not attending group therapy because “he didn’t want to go, and that was it.” Defendant demonstrated no insight into his need for treatment. Defendant knew that he was committed to CSH, but he did not know why he was committed to CSH. He was placed on an involuntary medication order because it was determined that he would not comply with medications voluntarily. When defendant went to court in February 2020, he was given the option to take his medication or not. He declined to take his medication. Dr. Campbell opined that defendant had obtained no insight into his diagnosis or symptoms and did not appear to understand the purpose of his medications or the names of his medications. Defendant told Dr. Campbell that he took his medication, but the only effect of the medication was to make him tired. Dr. Campbell opined that defendant would not take his medications or attend treatment programs if he was no longer committed. Dr. Campbell acknowledged that Dr. Komaki testified that defendant recently voluntarily took his medication, but explained that it did not change her opinion that he was not voluntarily taking his medication.

Dr. Campbell opined that defendant’s mental disorder was not in remission. She explained that defendant’s statements to her during the interview “evidenc[ed] delusional symptoms[,] [h]e ha[d] disorganization of thoughts[, and] [h]e was disoriented.” Further, Dr. Campbell observed that defendant suffered from delusions, demonstrated a lack of insight, appeared to be depressed, was lethargic, had “poverty of speech … [and] appeared to have poverty of thought,” and had inappropriate affect. In Dr. Campbell’s most recent interview of defendant, he expressed that “he was in the hospital because his nephew had engineered his hospitalization and that his nephew had tried to kill him multiple times.”

Each time Dr. Campbell has prepared a forensic report for defendant, she has concluded that he represents a substantial danger of physical harm to others. In evaluating whether a patient poses a substantial danger of physical harm to others, Dr. Campbell considered whether the patient has “a severe mental disorder, whether they have violence in relation to that severe mental disorder, whether they are a danger to the community when symptomatic, whether they have worked in the community, their fulfillment on supervised release …, if they have insight into the severity of the mental disorder, … whether they have a history of treatment non-complian[ce] …, if they have a history of substance abuse …, whether they have periods of mental disorganization, whether they lose contact with reality, for example, paranoia, delusions are the types of severe mental disorganization[s].” In Dr. Campbell’s evaluation of defendant, all of the factors weighed in favor of her conclusion that he represented a substantial danger of physical harm to others. Defendant did not have the tools or coping mechanisms to control his potentially dangerous behaviors outside of the structure of CSH. Defendant remained unable to recognize his delusions as delusions. Dr. Campbell opined that the structure of CSH was “keeping him from acting out his delusional thoughts.”

Defendant also suffers from a substance abuse disorder. The existence of a substance abuse disorder impacts Dr. Campbell’s dangerousness determination because “[s]ubstance abuse can exacerbate symptoms …[,] affect impulse control … [, and] impair judgment.” If released from his commitment, defendant would be unlikely to attend a substance recovery group or abstain from substance abuse.

For all those reasons, Dr. Campbell opined that defendant has a severe mental disorder that is not in remission, should remain committed to CSH, and would present a substantial danger of harm to others if released.

DISCUSSION

Defendant argues one of the findings required for the recommitment order—that defendant poses a substantial danger to society—was not supported by substantial evidence. Specifically, defendant argues that the evidence of his dangerousness was lacking because the record contained no evidence demonstrating that he engaged in any recent instances of violence, threats, property damage, or noncompliance with treatment plans. Rather, defendant argues, the experts’ conclusions that defendant continued to be dangerous were based on speculation and assumptions without evidentiary support. The People disagree, as do we.

I. Trial Court’s Conclusions

The trial court concluded that defendant suffered from a severe mental disorder and the disorder was not in remission. Even if defendant was in remission, the trial court concluded that he could not be kept in remission without continued institutionalization in light of defendant’s failure to voluntarily follow his treatment plan by failing to take his medication and failing to attend group or individual therapy.

As to defendant’s dangerousness, the trial court concluded that, while defendant has made progress toward stability in the three months prior to trial, “based on the[] witnesses’ testimony and what they have said happens with someone with his type of severe mental disorder, someone who is not compliant, someone who doesn’t really even understand his circumstances of why he is in the institution, someone who still suffers from delusions and can’t recognize that they are delusions, someone who admittedly self‑admits to substance abuse problems that in their expert opinion exacerbates this type of severe mental disorder, I do find beyond a reasonable doubt that because of his severe mental disorder, he presently represents a substantial danger of physical harm to others ….”

II. Relevant Law and Legal Standard

“ ‘Enacted in 1985, the MDO Act requires that an offender who has been convicted of a specified felony related to a severe mental disorder and who continues to pose a danger to society receive appropriate treatment until the disorder can be kept in remission.’ [Citation.] The MDO Act provides for treatment at three stages of commitment: as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), and following release from parole (§§ 2970, 2972). [Citation.] [¶] … [¶] Sections 2970 and 2972 govern the third and final phase of MDO commitment, which begins once the offender’s parole term has expired. Section 2970 permits a district attorney, on the recommendation of medical professionals, to petition to recommit an offender as an MDO for an additional one-year term. An offender will be recommitted if ‘the court or jury finds [1] that the patient has a severe mental disorder, [2] that the patient’s severe mental disorder is not in remission or cannot be kept in remission without treatment, and [3] that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.’ (§ 2972, subd. (c).)” (People v. Foster (2019) 7 Cal.5th 1202, 1207–1208.) At a recommitment hearing, the issue is whether the defendant’s “current condition justifie[s] extension of his commitment.” (People v. Cobb (2010) 48 Cal.4th 243, 252.)

“The term ‘remission’ means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support. A person ‘cannot be kept in remission without treatment’ if during the year prior to the question being before … a trial court, the person has been in remission and has been physically violent, except in self-defense, or … has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard is whether the person has acted as a reasonable person would in following the treatment plan.” (§ 2962, subd. (a)(3).)

While “ ‘ “substantial danger of physical harm” does not require proof of a recent overt act’ ” for purposes of recommitment as an MDO (In re Qawi (2004) 32 Cal.4th 1, 24, quoting § 2962, subd. (g)), that does not negate the statutory requirement of proof beyond a reasonable doubt that the person currently poses a substantial danger of physical harm to others, before recommitment as an MDO is permitted. (See § 2972, subds. (a)(2), (c), (e).)

Review for sufficiency of the evidence in the MDO recommitment context uses the same standard applied in the criminal conviction context—the substantial evidence rule. (People v. Labelle (2010) 190 Cal.App.4th 149, 151.) “In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that [a] defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding.” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)

A single opinion by a psychiatric expert that a person is currently dangerous due to a severe mental disorder can constitute substantial evidence to support the extension of an MDO commitment. (See People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.) An expert’s testimony in civil commitment cases on a person’s dangerousness or likely dangerousness may be the only evidence available on the issue. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) However, “[e]xpert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’ ” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

III. Analysis—Substantial Danger of Physical Harm to Others

Defendant contends that because he has not been violent or made threats of violence in the institutional setting, Dr. Campbell’s opinion that defendant would present a substantial danger of physical harm to others if released from CSH was speculative and therefore did not constitute substantial evidence. He further contends that Dr. Komaki opined that he presents a low risk of violence which further weighed against the trial court’s conclusion that defendant posed a substantial danger of physical harm to others. The People disagree on both accounts, as do we.

First, the trial court found that defendant’s risk of danger came from the nature of his delusions, his inability to understand that his delusions were delusions, and his lack of insight into his symptoms and need for medication. Drs. Campbell and Komaki both relayed some of defendant’s delusions: Dr. Komaki relayed that defendant believed that he committed murder and rape, that he was a fighter and knew kung fu, and that he was a member of the Marines. Dr. Campbell relayed that, in her most recent interview of defendant, he expressed that “he was in the hospital because his nephew had engineered his hospitalization and that his nephew had tried to kill him multiple times.” As the People argued to the trial court, defendant’s delusions were violent in nature. Dr. Campbell opined that “it is the structure of the hospital that … ke[pt defendant] from acting out his delusional thoughts.” Similarly, Dr. Komaki opined that defendant had not made any progress in the last two years toward developing the coping skills he needs to function in society. He was able to control his anger and stressful situations only “with medication under close supervision.”

Further, both doctors explained that defendant did not understand his symptoms, did not know the purpose of the medications he took, could not manage his medication, and refused his medications when given the option. The doctors described defendant’s behavior as “very agitated,” manic, and unstable when he was not medicated. Dr. Campbell further explained that the fact that defendant was on an involuntary medication order demonstrated to her that defendant lacked insight into his disorder and could not voluntarily take the steps necessary to be psychiatrically stable.

Based on her observation of defendant and review of his medical and psychiatric records, Dr. Campbell concluded that defendant represented a substantial danger of physical harm to others as a result of his mental disorder. Her conclusion was based on evidence in the record and the trial court was permitted to credit it.

As to Dr. Komaki’s assessment that defendant presented a low risk of violence, she expressly qualified that opinion: “But violence risk is valid for only certainty of time, and it is only in the institution. I said the violence risk assessment is while he is in the institution, so when he is here at the hospital. This is not like his violence risk when he returns to the community.” Contrary to defendant’s suggestion, Dr. Komaki did not opine that defendant’s risk of violence was low if released into the community.[2]

In sum, substantial evidence supported the trial court’s conclusion that defendant represented a substantial danger of physical harm to others as a result of his severe mental disorder. That defendant did not commit an overt dangerous act while institutionalized does not undermine that conclusion. (In re Qawi, supra, 32 Cal.4th at p. 24.)

We find no error.

DISPOSITION

The order is affirmed.

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

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

[2] Moreover, after defendant was unmedicated in 2019 and again in 2020, his institutional risk of violence assessment was elevated to moderate. As the doctors opined, defendant did not have the insight into his condition to continue his medication on his own or to abstain from the use of controlled substances which would exacerbate his symptoms. Those symptoms included violent delusions.