Filed 12/29/17 P. v. Hopkins CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
ALLYN HOPKINS,
Defendant and Appellant.

A149718

(Del Norte County
Super. Ct. No. 92-187-X)

INTRODUCTION
This is an appeal from a superior court order extending defendant Allyn Hopkins’s civil commitment as a mentally disordered offender (MDO) for an additional year, to November 26, 2017. (Pen. Code, § 2972.) He argues the court’s orders extending his commitment, and denying him release for outpatient treatment, are not supported by substantial evidence, and that the court abused its discretion in denying his request to be released for outpatient treatment. We affirm.
STATEMENT OF PROCEDURAL HISTORY
“Defendant has a lengthy, essentially unrelenting history of violent criminal conduct, substance abuse, mental disorders, and psychiatric hospitalizations. He was first committed to juvenile hall at age 15 for three counts of battery and making false bomb threats. He was convicted in 1991 of attempted murder and assault with a deadly weapon on a California Youth Authority correctional officer (Pen. Code, §§ 664/187, 245, subd. (c)). Subsequently, while under the influence of auditory hallucinations, he assaulted a cell mate with a weapon, smashed his head to the floor, and attempted to strangle him with a rope. In 1994, he was found not guilty by reason of insanity of two counts of possession of a weapon by a prisoner and one count of assault with a deadly weapon by a prisoner (Pen. Code, §§ 4502, subd. (a), 4501). His insanity plea was vacated in 2004, and he plead[ed] guilty to the charges.
“Defendant was subsequently found to be [an MDO] pursuant to Penal Code section 2970, and committed to Coalinga State Hospital in December of 2009. Thereafter, he was repeatedly found to meet the criteria for involuntary treatment as an MDO through November of 2011. . . . An order was also granted to administer involuntary psychotropic medication to defendant.
“On July 20, 2011, a petition for an order to further extend defendant’s commitment as an MDO was filed, along with a subsequent request to extend the order to administer involuntary psychotropic medication to defendant. . . . The trial court found that defendant [met] the criteria specified in section 2962, subdivision (a), for continued commitment as an MDO, and granted the petition. Defendant’s commitment was extended until November 26, 2012.” (People v. Hopkins, A133355, at pp. *1–*2, fn. omitted.)
Defendant has continued to meet the criteria for involuntary treatment up to and including the current year.
On July 26, 2016 the Del Norte County District Attorney filed a petition to extend defendant’s involuntary commitment under the Mentally Disordered Offender law. (§ 2970 et seq.) On July 27, 2016, defendant was ordered transported from Coalinga State Hospital to the Del Norte County Jail for the duration of the recommitment proceedings.
Both sides waived jury and defendant requested a court trial. A contested hearing was conducted October 24 through October 25, 2016. On October 26, 2016, the court found defendant has a severe mental disorder which is not in remission and represents a substantial danger to others. The court acknowledged defendant was “compliant April [through] July” and commended defendant on his improvement, but denied him unconditional release. The court also denied counsel’s request for conditional release pursuant to section 2972, subdivision (d), finding defendant unsuitable for outpatient consideration because he had not completed six months of compliance.
STATEMENT OF FACTS
Prosecution Case.
Dr. Elizabeth Gates, a clinical psychologist, testified for the prosecution. She has been a consultant to state hospitals, writing forensic reports on MDO commitments (§§ 2972, 2962), since 1999. At the time of her testimony, Dr. Gates had been consulting with Coalinga State Hospital since 2014. She prepared a report on defendant in April 2016. She was not able to see defendant when she went to Coalinga. For her report she looked at records from November 26, 2015 through April 5, 2016. Specifically, she relied on a January 2016 CONREP report, and various progress notes by staff written both during the reporting period and the period since her report. Her report, the CONREP report, and the progress notes were admitted into evidence at trial. Based on the records and information she had, Dr. Gates determined that defendant did not meet the criteria for release to the community.
First, defendant has been diagnosed with a severe mental disorder: schizo affective disorder, bipolar type. Defendant has in the past, and during the most recent review period, experienced auditory hallucinations or delusion symptoms, elevated mood symptoms of agitation, irritability and hostility, as well as lower-end mood symptoms of depression and anxiety. For example, a November treatment note reported that defendant stated he could not take his medication because of his religion, and another note between March and June checked off the box for delusions.
Second, Dr. Gates determined defendant was not in remission because the records from the relevant time period indicated there was some period of irritability or resistance for which defendant required medication on an as-needed basis in order to cope. In late November or early December defendant indicated to staff that he was “pissed off” and needed to take a P.R.N. In addition, defendant still had some delusions and there was an increase in the psychotic symptoms of auditory hallucinations. A psychiatrist and nursing staff noted hallucinations were present. It was determined defendant needed a medication adjustment, after which improvement was noted; however, there was not sufficient stability for a six-month period for staff to say he was in remission. To be in remission, there must be a minimum of six symptom-free months.
Finally, Dr. Gates opined defendant was still a danger to others, because he still had some of the same symptoms he had back in the time when the commitment crime occurred, and because staff and CONREP indicated defendant was not sufficiently stable with his coping skills and strategies, having failed to complete all of the groups aimed at teaching those skills and strategies. Dr. Gates noted that defendant first experienced hallucinations at the age of 12 and had a history of violence. The last act of violence was in 2012 or 2013. He was aggressive with property in 2014, and in 2015 he was verbally aggressive. However, she also noted that there had not been any recent violence, and she attributed the improvement to defendant’s medication and treatment, which had taught defendant to utilize skills and coping mechanisms such as turning towards staff when necessary for discussion and additional medication. Defendant was currently taking two medications for psychosis, Lithium for mood stability, Sertraline for anxiety and/or depression, and Ativan as needed for additional anxiety or irritability. In her view, if defendant were not taking medications and relying primarily on his coping skills, there could be an exacerbation or increase in old symptoms, such as hallucinations and delusional thinking.
Dr. Gates’s opinion that defendant is a substantial danger to others if released to the community was based on the “shorter period of stability [than] what we would like for someone being released. And that he’s not fully completed all the treatment requirements and having a discharge plan in place ready to go.”
Defendant’s attendance at group therapy during the reporting period had been spotty at first but had improved dramatically over time. He had completed the Wellness Recovery Action Plan group in January 2016. He had completed symptom management and anger management groups in June 2016. It was recommended that he take additional anger management skills training, and also that he go to a computer lab setting “to do a group.” He was currently enrolled in the CONREP ready, release ready, and D.B.T. dialectal behavioral therapy groups, as well as weekly AA/NA support groups.
Dr. Gates testified that defendant had been in a controlled environment for a very long time: first in prison and then in state hospitals since 2009. She recommended that if he were to be discharged, he would need to have “an established, structured living environment, a day treatment type of facility that would give him a place to go, a place to be for eight hours a day and then a more settled living environment” that would be able to “dispense medications.” She observed that sometimes “people go out into the community and they are not able to find a place to live within a week’s period of time. They go from hotel to nothing. And that could be stressful because he’s accustomed to dealing with people in a very predictable manner, predictable routine. And sometimes what can happen, they start missing medications or they get tempted with substances like alcohol or drugs.” She noted defendant had a history of drug and alcohol abuse, although there was no indication defendant had substance abuse issues while in Coalinga. It was therefore “unclear” whether substance abuse issues would affect defendant at this point.
Dr. Gates opined that if some of defendant’s treatment team believed he was ready for release, they should start discussing that in their treatment plan and assign someone to help defendant make decisions about where he would live and how to apply for social security disability benefits if necessary. CONREP should list in its report “what they need to see. Sometimes it is six months symptom free. Sometimes they will have 12 months, it just depends— [¶] So they can start that process so that the next recommitment date or recommitment time they ask say, we’ve already looked at this for a year. As so we know from that point we think he is ready for the community. He . . . continues to have no incident, no eruption or exacerbation of symptoms and continues to make progress in treatment.” However, the CONREP report she reviewed and relied upon concluded that defendant was not suitable for Community Outpatient Treatment at that time.
Dr. Gates would not change her recommendation if defendant were to be shown to be stable and following a treatment plan from June 2016 forward to the hearing date. “I would note the progress, the significant progress. And that would fall into that period of stability, especially from the groups. [¶] And from February, it’s about eight months stable now. I would look forward for six, six months maybe twelve months of stability at minimum. Twelve months on the connectivity side of this stability, using coping skills before I would say he could be managed safely in a community outpatient treatment setting.”
Defense Case.
Dr. Leticia Padilla-Alvarez, social worker Vanessa Lee, and Dr. Ravi Chand testified telephonically for the defense.
Dr. Leticia Padilla-Alvarez has been a staff psychiatrist at Coalinga State Hospital for two years. She is assigned to the unit for mentally disordered offenders, and defendant is one of her patients. She has been working with him for approximately 18 months and has had him in some groups. Prior to going out to court on August 19, 2016, defendant was attending groups and was compliant with all aspects of his treatment program. There is no area in which she felt he was deficient as far as his objectives and goals. She has had the opportunity to observe his behavior and she has not observed any violent behavior. There is nothing about his demeanor or his behavior that would lead her to believe he presents a danger of physical harm to others. As far as she knows, defendant is voluntarily taking his medications and his medications are effective in treating his mental disorder. She considers him to be in remission with respect to his mental disorder and the effectiveness of the medications, and would say he has been in remission for the entire 18-month period she has been on the MDO unit. She did not understand why there is no notation by her in his treatment notes regarding his remission status; she recalled making those types of notations on a monthly basis. She described defendant as seemingly content: “He seems totally cooperative with his treatment. He engages in treatment. He goes to his groups.” Her treatment team agrees “he’s a positive patient. He’s friendly. He’s cooperative. He’s engaged in treatment. He goes to his groups. He’s focused. And he’s writing an anger management plan how he’s going to control his anger.”
She did observe an angry outburst in February 2016. Defendant was upset because it was taking a long time to get the hospital to approve his request for a kosher diet. He was not aggressive or intimidating, did not yell or scream with violence. “[H]e was upset but he dealt with it.” Defendant was able to communicate and explain his feelings, which is a coping skill he is being taught as part of his treatment. From her review of defendant’s psychiatric records for the last six years, Dr. Padilla-Alvarez can say that defendant has not engaged in any self-harming behavior during that time and has not exhibited any kind of behavior during the last year that would lead her to believe he is a danger to other patients or staff.
She has not personally put in writing any kind of a recommendation that defendant be considered for conditional release because she believed it was the role of the social worker for the treatment team to make recommendations to the forensic department. Dr. Padilla-Alvarez was not aware of the social worker having submitted that specific recommendation, but during treatment team consultations the social worker, Vanessa Lee, has stated “she does believe that he is in remission and that he should have an opportunity to be released.” However, as recently as June 5, 2016, Dr. Padilla-Alvarez had signed a treatment plan stating that defendant did not meet discharge criteria.
To Dr. Padilla-Alvarez’s knowledge, defendant has not engaged in any kind of delusional thought patterns or delusional behavior. She had seen him use his learned coping skills on July 27, 2016, when he was physically attacked by a peer. Other peers notified staff in the day room; staff responded and witnessed the peer punching defendant in the face. Staff stopped the assault and to her knowledge he did not assault the patient in return. Instead, “[h]e was trying to protect himself by covering with his hands, covering himself and to prevent more physical damage to himself.” During the prior year, another peer had victimized him and he “just let the staff handle it. And he did not react violently to the different peer.”
Dr. Padilla-Alvarez had reviewed a CONREP report written July 5, 2016 by Brian Nelson, M.S.P., which recommended recommitment for another year. She disagreed with that recommendation because it was incomplete. The report did not include all the statements she made, “focused on anything negative they could find in his chart,” and failed to mention that he had completed managing anger and managing mental illness, which were two very important groups.
Dr. Padilla-Alvarez did state in a report she wrote on January 22, 2016, that defendant is at moderate risk for violence without supervision while out in the community, “[m]eaning if . . . he’s not taking his psychiatric medication as prescribed by his psychiatrist, not attended his mental health treatment.” However, she felt he would pose a low or no risk “[i]f he was sent out with some supervision with assistance. If somebody would care for him and make sure he takes his medication and goes to his groups and psychiatrist visits” and “continue his routine that he had here in the hospital . . . . As long as he is in a consistent environment and he has supervision he has a chance.” She thought he would be medication compliant if released, and believed he had adequate insight into his mental illness.
Vanessa Lee has worked at Coalinga as a clinical social worker since April 4, 2016; before that she was a child protective worker for nine years. She is not fully licensed as yet. She has been working in unit 25, where defendant is housed, since July 2016. As far as she knows, since July 2016, defendant has been voluntarily complying with this treatment goals and objectives; actively participating in groups; voluntarily taking medication; has not engaged in violent, threatening, or negative behavior; and has a very positive attitude towards staff, peers, treatment, and life. She has not seen defendant exhibit any symptoms of mental illness and believes defendant has insight into his mental illness and symptoms. He has not exhibited any behavior that would lead her to believe he is a danger to himself or others.
In August 2016, she e-mailed the CONREP liaison at the hospital to report that the team recommended defendant be referred to CONREP. That means the patient is meeting his or her treatment goals. He was the first person she recommended so she is not sure what the process is after the referral. She does not think defendant would pose a risk of harm to other people if he were released on an outpatient treatment basis. She did not agree with the recommendation in April 2016 for another year of commitment. However, a September 8, 2016 treatment plan report which she signed stated that defendant had partially met progress goals regarding dangerousness, and had not met other treatment goals.
Dr. Ravi Chand has been at Coalinga since 2015. He became the senior supervising psychiatrist there six months before his testimony. Before that, he was a staff psychiatrist on unit 25, where defendant is housed. He also treated defendant at Atascadero. Asked if had an opinion about whether defendant poses a danger to others, Dr. Chand responded: “I believe Mr. Hopkins is a very compliant patient. He is very responsible. He takes his psychiatric medication without prompting. He’s safe. He has not hurt himself or anyone else. He has not been disabled. [¶] He needs to be in a structured environment where he can be with someone that can insure that he can take his psychiatric meds. If I recall what he’s on has to be closely monitored and in a structured place where he’s meds compliant. And he needs structure, you know, if he’s going to transition.” Dr. Chand opined that defendant had the capacity to do well in such a program. Dr. Chand believed defendant would be safe and stable in a CONREP discharge environment where defendant’s medications were closely monitored and he was seen by a psychiatrist on a weekly basis. He would be concerned, however, if defendant were discharged “without any structure in place” and “left on his own accord to take psychiatric meds.” Dr. Chand did not believe defendant’s failure to attend groups for some period of time should disqualify him from discharge. He believed defendant has controlled himself for the past 20 years. He acknowledged that if defendant were not taking medication, “[o]f course he would become dangerous.”
DISCUSSION
Substantial Evidence Supports the Recommitment Order.
Defendant contends the court’s order extending his commitment for involuntary treatment for one year pursuant to section 2972, subdivision (a) is not supported by substantial evidence. The substantial evidence rule for criminal offenses applies to appellate review of the sufficiency of the evidence in MDO proceedings. (People v. Labelle (2010) 190 Cal.App.4th 149, 151.) The test is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] In making this assessment the court looks to the whole record, not just the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts.” (People v. Holt (1997) 15 Cal.4th 619, 667.) The supporting evidence must be “ ‘reasonable, credible, and of solid value.’ ” (People v. Labelle, at p. 151.)
To justify recommitment, the prosecution must prove, beyond a reasonable doubt, that at the time of the hearing the defendant (1) continues to have a severe mental disorder; (2) his or her mental disorder is not in remission or cannot be kept in remission without treatment; and (3) by reason of his or her severe mental illness, he or she continues to present a substantial danger of physical harm to others. (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398–1399; see § 2970, subd. (b); cf. CALCRIM No. 3457.) Defendant argues here the evidence is insufficient to prove he was not in remission because Dr. Gates’s testimony recommending recommitment focused on the period from November 2015 to April 2016, instead of his current condition; was based in part on her belief that “the people that see him every day are saying he’s not ready,” when in fact three of the people who worked with him every day testified for the defense; and Dr. Gates relied on hospital records only, having had no personal contact with defendant.
Defendant’s implicit argument that the period from November 2015 to April 2016 was not probative of defendant’s current condition is not well taken. Expert testimony is necessary to prove elements of the prosecution’s case in MDO proceedings that involve “a prediction of future dangerousness.” (In re Qawi (2004) 32 Cal.4th 1, 24; People v. Burroughs (2016) 6 Cal.App.5th 378, 402.) To make that prediction, the mental health expert “should take into account the prisoner’s entire history,” including his or her prior violent offenses and mental health history. (People v. Pace (1994) 27 Cal.App.4th 795, 799.) Dr. Gates properly took into consideration defendant’s documented behavior during the recent past, as well as his documented behaviors from May, June and September 2016. All of this history bore on defendant’s current risk for future dangerousness if released, unconditionally or conditionally.
Defendant acknowledges that “[a] single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment.” (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [§ 1026.5].) Here, the court gave great credence to Dr. Gates’s opinion because “she’s been practicing for 20 years since ‘94—tremendous amount of experience. Most other practitioners have nowhere near her experience.” The fact that Dr. Gates did not meet with defendant in person did not detract from her expertise or credibility in the trial court’s eyes. Defendant does not explain how this court should evaluate that factor, when it cannot reweigh evidence or overturn the trial court’s credibility determinations.
As the court also observed, “[all] experts have opined that he would be at more risk of violence if placed in an unstructured environment. And if placed in an unstructured environment out in public such risk could increase.” (Italics added.) In fact, there was no basis in the evidence for a finding that defendant was currently functioning in a way that warranted unconditional release. Substantial evidence supports the recommitment order.
Substantial Evidence Supports the Trial Court’s Denial of Conditional Release.
To justify conditional release on an outpatient basis under section 2972, subdivision (d), the defendant bears the burden of proving “the appropriateness of outpatient treatment. [T]he standard of proof is ‘reasonable cause’ not preponderance of the evidence. The court shall order outpatient treatment if the patient raises a strong suspicion in a person of ordinary prudence that outpatient treatment would be safe and effective. The order is reviewed on appeal for substantial evidence.” (People v. Greggerson (2011) 202 Cal.App.4th 306, 309.)
The trial court twice stated the burden of proof was by a preponderance of the evidence. The first time occurred before the court took a recess to research the matter. The second time occurred after it had researched the question and correctly stated that section 2972, subdivision (d) “authorizes the court to release an M.D.O. to outpatient status after recommitment hearing so long as the court finds reasonable cause to believe the committed person could safely and effectively be controlled on an out patient basis.[ ] Here there’s been a recommendation by his treating staff, not by Dr. Gates.” After reviewing the conflicting state of the evidence, which the court found wanting in specifics about “what treatment could be, would be, that would be viewed [as] necessary or meet the necessary requirements of that safe treatment for Mr. Hopkins,” the court concluded: “So at this juncture I don’t find you’ve met your preponderance of the evidence.” (Italics added.)
We agree the court misspoke. We do not agree the court’s decision to deny outpatient treatment was lacking in substantial evidence. Defendant failed to raise “a strong suspicion in a person of ordinary prudence that outpatient treatment would be safe and effective.” (Greggerson, supra, 202 Cal.App.4th at p. 309.)
The two doctors who agreed that defendant was ready for outpatient treatment together had less than five years of experience in the field, while the social worker who concurred was not yet fully licensed. And, despite their joint recommendation for outpatient treatment, both doctors insisted that for defendant to be safely released, he must be medicated, and both expressed reservations about defendant’s ability to stay medication compliant without prompting, except in a setting so structured that it resembled the inpatient treatment he was receiving only outside hospital grounds. This was also Dr. Gates’s view. Moreover, neither Dr. Padilla-Alvarez, Dr. Chand, nor social worker Lee had actually documented their recommendations for outpatient treatment in the treatment notes and reports. CONREP, statutorily charged with treating MDOs safely in the community, was not on board.
In contrast, Dr. Gates, who the trial court found both credible and tremendously experienced, recommended a showing of at least six months of compliance and stability in treatment, of which defendant had three and one-half months. On this record, the trial court’s decision to delay outpatient treatment is supported by substantial evidence.
DISPOSITION
The trial court’s orders extending defendant’s commitment as an MDO to November 26, 2017, and denying outpatient release are affirmed.

_________________________
Dondero, J.


We concur:


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Margulies, Acting P. J.


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Banke, J.