P. v. King

Filed 10/9/07 P. v. King CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County.

Michael A. Tynan, Judge. Affirmed.

Paul Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

PROCEDURAL AND FACTUAL HISTORY

Michael King appeals from an order denying his release from commitment. In 1992, appellant was found not guilty of a charge of murder by reason of insanity and committed to the state hospital. On August 31, 2006, appellant filed an in pro per application for restoration of sanity pursuant to Penal Code, section 1026.2.[1] On February 1, 2007, the trial court conducted a bench trial and denied the application. On February 6, 2007, appellant filed a timely notice of appeal.

We appointed counsel to represent defendant on appeal. On May 24, 2007, appointed counsel filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) On May 25, 2007, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. To date no response has been received.

We have examined the record and determined the following: At his restoration hearing, appellant was represented by the alternate public defender. Appellant waived his right to confront and cross examine certain witnesses and agreed to let the trial court consider their written reports as evidence. The written reports were prepared from interviews conducted by an investigator for the office of the Alternate Public Defender. They contained the following information:

        Linda Johnson, Psych Tech. at Patton State Hospital

She has never seen him cause any trouble. He is a quiet person. [] . . . [] She has not seen anything that concerns her. She personally does not consider him a danger.

        Loretta Marshall, employee at Patton State Hospital

Marshall states in the past 8 years she has been around King she has seen a remarkable transformation in him. In the past he was aggressive, hostile and violent towards patients. But today is a very different man. []. . . [] Marshall states since her arrival in this Unit, in June 2006, King is very low key. He intentionally stays away from patients that appear agitated or are causing trouble. He has done a complete 360. He no longer causes trouble. [] . . . [] Today Marshall is no longer concerned or afraid of him as she was in the past.

        Billy Mange, Senior Vocational Rehabilitation Counselor at Patton Hospital

Mange states has had minimal contact with King. The only reason he knows King is because King was assigned to a work program and Mange oversaw the work programs scheduling in April 2006 to June 2006. [] . . . Mange never saw King causing any trouble. . . . [] . . . [] Mange never had any concerns about Kings behavior.

        Peggy Jackson, Senior Psych Tech. at Patton State Hospital

Jackson has heard about Kings past violent history but she has not seen anything resembling aggression or violence. He has always acted very appropriate in her opinion. [] The only thing she notices about King is that he does not like to eat in the dinning room with the other patients, he prefers to be alone, and at times he seems to become a little paranoid. He will sometimes accuse the staff of trying to keep him from being released. But when he says these things, he says them in a calm voice.

The court also reviewed a Court Report prepared for the Penal Code section 1026 hearing, dated November 30, 2006 and prepared by Mark Peterson, M.D., Staff Psychiatrist. This report stated:

During this last reporting period Mr. King has continued his clinical progress but is not yet ready for outpatient treatment. Mr. King has not assaulted anyone during the last year. This is a marked improvement from years past when he was involved in multiple assaults. . . .  [] Mr. King is working on developing a relapse prevention plan. He has recently demonstrated better control of his anger. He did not retaliate when assaulted by another patient because he felt they were sick and didnt know what they were doing.

He still feels picked on by others (staff and peers), however this has decreased as he is learning to take more responsibility for his thoughts and actions. If he feels threatened, it is unclear how he will respond to someone he does not view as sick.. . .  He still denied ever using drugs of abuse. [] Recommendation to court: Mr. King should be retained at the hospital for further treatment.

Appellant testified on his own behalf. He testified that he has been at Patton State Hospital since 1995 and that he understood the purpose of the hearing and that the issue was whether he is dangerous. King testified that he was no longer dangerous and had been violent free for almost about five years now. He explained to the court that he had changed, he now goes to church and reads the bible. He is a decent person so I am not trying to get into trouble with anybody because I learned from my mistakes, and I take the right medications now to help me with that problem, and I no longer have a problem with being violent. King also informed the court that he had stabilized with his newer medications and that he goes to groups all the time and its really helped.

King further advised the court that he no longer responds violently to situations because:

Right now I learned so much I dont take nothing personal. I have values now. I value my freedom. I value being kind and gentler to other people, everything. I try to stay away from that. I use my coping skills mechanism now. I learned in anger management now to deal with that. Ive been through at least 1500 groups. Ive been down 15 years. Ive done everything I was supposed to do.

King described to the court the types of actions that would trigger his past violent behavior. The court asked has anybody tried to trigger you since youve gotten to this current unit? King answered they trying, but they eventually they going eventually it might happen, but not right now, but I can see it coming. The court then asked What do you see coming? King answered I dont know. I dont know. I dont know yet. They aint doing it yet. King summarized:

What I am here for is just to prove that I am no longer dangerous, and thats what I am here to prove, and I am no longer dangerous. I never had the intention of being dangerous.

I mean, I took in my crime I confessed to it, and I knew I was dangerous at the time because I needed help. The reason why I did it was because I needed help. I needed to straighten out my impulsive behavior and my dangerousness.

I came in here, and I got treatment. Now I am better. I learned a lot. I got personal growth and maturity in here and I struggled with impulsiveness and poor judgment. Now I got my judgment back. Now I got my poor impulses my impulses under control, and I am thinking now I am ready to go back out into the community, and I got support out there too. So thats how I feel right now. I am no longer dangerous.

For rebuttal, the respondent offered the Court Reports prepared for prior hearings in the trial court. Among these reports are the following:

        Court Report Penal Code section 1026 dated June 22, 2005

[T]he interdisciplinary (ID) team members are of the unanimous opinion that Mr. King continues to represent a substantial danger of physical harm to others due to his mental illness and would pose an even greater risk if he were transferred to a less secured setting.

        Court Report Penal Code section 1026 dated November 16, 2005

During this last reporting period Mr. King has made clinical progress but is not yet ready for outpatient treatment. Mr. King has transitioned from requiring restraints for repeated assaults on staff and peers to becoming involved in his recovery treatment.

Mr. Kings last assaults occurred six months ago. He now has a job within the hospital and is running for a Ward Government position. He is involved with group and individual therapy.

Mr. King continues to deny that he ever had a problem with substance abuse despite historical facts to the contrary. He lacks a viable relapse prevention plan. These areas will be the focus of treatment.

Mr. King still rapidly escalates to anger. Although he has not assaulted anyone within the last six months, better anger control should be achieved prior to his release to the community.

Recommendation to court: Mr. King should be retained at the hospital for further treatment.

        Court Report Penal Code section 1026 dated June 2, 2006

During this last reporting period Mr. King has continued his clinical progress but is not yet ready for outpatient treatment. Mr .King has not assaulted anyone during the last year. This is a marked improvement from past years when he was involved in multiple assaults.

[]. . . []

Recommendation to court: Mr. King should be retained at the hospital for further treatment.

Before he announced his judgment, the judge asked King if he felt it would be important for Dr. Peterson to agree that you are ready to be discharged? Kings answer was Well, the thing is, the way its going, hes never going to he already told me hes not going to never let me go, all the doctors. I got a lot of prospects out on the street, and hes letting out other people that got life without the possibility of parole. Hes letting them out, but hes not letting me out. He told me the only way you are going to get out is through the court, right here, right now.

The judge was impressed with Mr. Kings progress and told him you have shown remarkable progress. Theres no question about that. However, the trial judge found that at this point . . . you still present a danger to community. The court told Mr. King that he would recommend that he be allowed to move to a lock-down facility and given a chance in that environment. The court ended the session stating I commend you Mr. King, with what youve done with yourself is truly remarkable.

The minute order prepared for the hearing on February 1, 2007 stated: The court finds that the defendant does still present a danger to the community. [] The court does however suggest to Patton State Hospital that they consider transferring the defendant to a lockdown facility, such as Olive View, to see if the defendant can make it there.

DISCUSSION

Section 1026.2[2]permits a person committed to a treatment facility to apply for a determination that his or her sanity has been restored. To obtain outpatient release, the moving party must demonstrate by a preponderance of the evidence that he or she is no longer 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, subds.(e) & (k).) An order denying release is appealable as an order made after judgment affecting substantial rights. (People v. Coleman (1978) 86 Cal.App.3d 746, 749-750.) We review the trial courts decision denying outpatient status for an abuse of discretion. (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1118-1119; People v. Sword (1994) 29 Cal.App.4th 614, 620.)

The trial courts discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] (People v. Henderson (1986) 187 Cal.App.3d 1263, 1268.) We must consider whether the court relied on proper factors that are supported by the record. (Id. at p. 1269.) [D]angerousness is a proper factor, indeed the paramount concern. (Ibid.) When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] [Citation.] (People v. Sword, supra, 29 Cal.App.4th at p. 626.)

In this case, the hospital treatment team felt that appellant had began to make significant progress, but nevertheless unanimously concluded that appellant was still dangerous. Other hospital employees, including psychiatric technicians felt that he no longer was dangerous. During his examination in court, while appellants responses evidenced a great growth in his comprehension of his mental health issues, there was also evidence of a troublesome lack of certainty regarding appellants ability to handle trigger situations. This testimony was consistent with the observations of the treatment team. Additionally, appellant showed suspicion regarding the intentions of the team and testified regarding his belief that they desired to keep him hospitalized indefinitely. Given the record, the court did not abuse its discretion in denying appellants petition for restoration of sanity and outpatient status. While commendable, appellants progress was relatively recent in nature and there were still obvious psychiatric issues remaining to be resolved.
We have examined the entire record and are satisfied that defendants appellate attorneys have fully complied with their responsibilities and that no arguable issues favorable to him exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-280; People v. Wende, supra, 25 Cal.3d at pp. 441, 443.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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

[2] Section 1026.2 reads in relevant part:

(e) The court shall hold a hearing to determine whether the person applying for restoration of sanity 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. If the court at the hearing determines the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community, the court shall order the applicant placed with an appropriate forensic conditional release program for one year. All or a substantial portion of the program shall include outpatient supervision and treatment. The court shall retain jurisdiction. . . . 

(k) In any hearing authorized by this section, the applicant shall have the burden of proof by a preponderance of the evidence.