P. v. Papp

Filed 9/7/07 P. v. Papp 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.

Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

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FACTUAL AND PROCEDURAL HISTORY

On March 17, 1999, while in a delusional state, Frank Steven Papp (appellant) attempted to strangle a longtime friend with a rope. Appellant entered a negotiated plea of not guilty by reason of insanity to a charge of assault with a deadly weapon. (Pen. Code,  245, subd. (a)(1), 1026.)^[1]

In September of 1999, appellant was committed to Atascadero State Hospital for a maximum confinement time of four years, and he was transferred to Napa State Hospital two months later. In May of 2002, appellant was released on outpatient status ( 1604) under the Fresno-Madera County Conditional Release Program (CONREP).

After an annual review hearing held July 23, 2003, the trial court continued appellant in CONREP until July 29, 2004. Appellant did not attend the hearing but had executed a waiver form on June 18, 2003.

In July of 2004, the court continued appellant in CONREP for another year. Appellant again waived his presence at the hearing.

On September 3, 2004, after CONREP informed the trial court that appellant failed to report to outpatient treatment, the trial court issued a bench warrant. Appellant was arrested nine months later in Los Angeles. The trial court subsequently revoked appellants outpatient status and ordered him returned to Napa State Hospital ( 1608, 1026).

In December of 2005, the district attorney filed a petition to extend appellants commitment for two years. The petition was granted by the trial court in April of 2006, and appellant was recommitted until March 13, 2008.

Appellant challenges the recommitment order on several theories, claiming the court violated his due process rights and lost jurisdiction over him in 2003 and that there is insufficient evidence to support the order to recommit him. We disagree and affirm.

DISCUSSION

1. Did the trial court violate appellants due process rights and therefore lose jurisdiction to subsequently recommit him?

California law provides that a defendant may plead not guilty by reason of insanity. ( 1026, subd. (a).) If a defendant is found to be insane at the time the charged offense was committed, the trial court may order that the defendant be confined in a state hospital for the care and treatment of the mentally disordered . (Ibid.) Except under certain circumstances, the defendant may not be kept in actual custody longer than the maximum term of commitment, which means the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted. ( 1026.5, subd. (a)(1).)

A person may be released from a state hospital (1) upon restoration of sanity pursuant to the provisions of section 1026.2, (2) upon expiration of the maximum term of commitment under section 1026.5 [citation], or (3) upon approval of outpatient status pursuant to the provisions of section 1600 et seq. ( 1026.1.) (People v. Sword (1994) 29 Cal.App.4th 614, 620.)

Section 1600 provides that a person committed to a state hospital under the provisions of section 1026 may be placed on outpatient status from that commitment subject to the procedures and provisions of this title . Section 1606, in turn, provides that outpatient status shall be for a period not to exceed one year. At the end of the one year period,

the court shall, after actual notice to the prosecutor, the defense counsel, and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. (Ibid.)

On July 23, 2003, in the presence of counsel and based on submitted reports, Judge Edward P. Moffat II continued appellant in the CONREP program until July 29, 2004. Appellant was not present at the hearing, but a REQUEST TO WAIVE COURT APPEARANCE & CONTEST, dated June 18, 2003, was attached to an annual report filed in Madera Superior Court on July 1, 2003. The form addressed to Judge Moffat was signed by appellant and witnessed by Thomas F. Lee, M.A., the CONREP program clinician. On the form, appellant initialed three provisions: (1) that he was aware of the Fresno-Madera Conditional Release Program report and recommendation; (2) that he was requesting to waive [his] appearance in the hearing scheduled to take place on the matter of [his] one-year extension of community outpatient treatment and supervision; and (3) that he was waiv[ing] the contest of this one year extension recommendation and agree[ing] to a one-year extension pursuant to Section 1604. The annual report, to which the waiver form was attached, recommended that appellant be continued for one year of outpatient treatment and is signed by Thomas F. Lee, M.A., and Mark Duarte, M.S.W., the director of Fresno-Madera CONREP.

Appellant contends his waiver of presence at the annual review hearing that occurred on July 23, 2003, while he was in outpatient status, and his agreement to extend that status for one year, were invalid because the government obtain[ed his] signature on a purported waiver form without providing assistance of counsel. Because of the absence of advice of counsel, according to appellant, there is no evidence that his waivers were knowing, intelligent, and voluntary. Further, according to appellant, because he was entitled to be present at the hearing, and made no valid waiver of presence, the trial court violated his due process rights in entering an order continuing his outpatient status. The hearing that occurred outside his presence in July 2003, according to appellant, is a nullity; the court lost jurisdiction over appellant, and the current recommitment order, entered in April of 2006, is void. We reject these contentions for at least the following reasons.

First, the record does not support the proposition that appellant signed the waiver form without advice or, impliedly, approval of counsel. The record does show that appellant has been represented by counsel throughout these proceedings. It shows that appellants attorney was present at the review hearing on July 23, 2003, at which appellants outpatient status was extended for a year. It shows that counsel made no objection to the hearing being conducted without appellants presence, and neither did counsel request any continuance to, for example, speak with her client. Counsel did not contest the one-year extension of appellants outpatient status. Appellant, in essence, asks us to assume his attorney allowed the 2003 review hearing to go forward without an informed and voluntary waiver of his presence and agreed to an extension of his outpatient status without his consent. This we will not do. We agree with respondent that, as in many instances of alleged incompetence of counsel, the absence of information in the record renders the issue raised by appellant not cognizable on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

Second, we also agree with respondent that appellants claim was waived by his failure to raise it before the trial court. Not only was this issue not raised in the 2003 proceedings, it also was not raised during review proceedings in 2004 (when, again, appellant waived his presence), or during the recommitment proceedings from which this appeal directly stems. Generally, failure to raise an issue or argument in the trial court waives the point on appeal. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Appellant seeks to avoid this rule by claiming the exception for issues purely of law. As demonstrated above, however, the issue here does involve a basic question of facti.e., whether appellant did confer with his attorney regarding his waiver of presence at the hearing and his consent to continued outpatient status.

Third, the courts have held that the requirement to hold a review hearing pursuant to section 1606 is directory rather than mandatory, and even the complete failure to hold a review hearing does not deprive the defendant of due process or the court of jurisdiction.

For instance, in People v. Mord (1988) 197 Cal.App.3d 1090, the defendant was found not guilty by reason of insanity and committed in 1980 to Atascadero State Hospital pursuant to section 1026. In 1982, the defendant was granted parole to outpatient treatment pursuant to former section 1611, which provided, in pertinent part:

The maximum period of parole treatment shall not exceed one year. The court shall, at the end of such maximum period, hold a hearing and either renew its approval for additional parole treatment upon the recommendation of the medical director of the state hospital or other facility from which the person was paroled, discharge from the commitment pursuant to Section 1026.2, or direct that the person be returned to the state hospital or other facility.^[2]

No annual hearings were held in 1983 or 1984 and, in 1985, the defendants outpatient status was revoked and he was ordered to return to Atascadero State Hospital for an additional two years. (People v. Mord, supra, 197 Cal.App.3d at pp. 1097-1098, 1109-1110.)

This court in Mord, although agreeing that former section 1611 had been violated, rejected the defendants claim that the failure to hold the applicable review hearings invalidated the subsequent recommitment. This was because the hearing provisions of former section 1611 were directory rather than mandatory. We reasoned that the primary purpose behind the annual review hearings is not to protect [the defendants] individual interests, but to protect the publics interest in ensuring that insane persons receive the treatment they need. (People v. Mord, supra, 197 Cal.App.3d at p. 1114.) We further stated that holding the statutory provision to be directory will not only best accomplish the purpose of public protection, but will best benefit [the defendant] as well. A holding by this court that the statute violated is a mandatory one, thereby voiding the subsequent recommitment order and releasing appellant into the community, not only exposes the public to a dangerous person but prevents [the defendant] from receiving treatment for his illness. (Ibid.)

A similar result was reached in People v. Harner (1989) 213 Cal.App.3d 1400 in which the defendant, a mentally disordered sex offender (MDSO) who committed various sex acts with minors, was committed in May of 1978 to Atascadero State Hospital for treatment, with a maximum confinement of four years and eight months. (Harner, at p. 1403.) In 1981, the defendant was placed on outpatient status, pursuant to sections 1600 and 1602, but no review of his outpatient status was made prior to the time he filed a motion for discharge from that status in 1987. The trial court denied the defendants motion for discharge and subsequently extended his outpatient status. (Harner, at pp. 1403-1404.) On appeal, the defendant claimed that the failure of the court to hold annual hearings to review his status invalidated any further attempt to exercise control over him under the MDSO statutes and thus required his discharge from outpatient status. (Id. at p. 1405.)

The court in Harner disagreed, holding that the annual review provisions of section 1606 are directory rather than mandatory

since the primary purpose of the statutory scheme is protection of society and a holding that the review provisions are mandatory would defeat that purpose by automatically releasing [the defendant], a child molester who was found mentally disordered, from any further supervision or treatment without a courts determination that he is no longer in need of such supervision or treatment. (People v. Harner, supra, 213 Cal.App.3d at p. 1406.)

The Harner court agreed with the analysis in Mord, noting that section 1606 at issue in Harner and former section 1611, subdivision (a) involved in Mord, are virtually indistinguishable for purposes of the analysis here, as [b]oth require that the court hold annual review hearings to review the status of defendants on outpatient treatment and that, following the hearing, the court shall discharge the defendant, continue outpatient status or order the defendant reconfined. (People v. Harner, supra, 213 Cal.App.3d at p. 1409, fn. 11.)

We fail to see a material difference between this case and either Mord or Harner. Appellant suggests we refrain from following Harner. We decline that invitation. Appellant also suggests this case is different from Mord because, here, the People have failed to show good cause for failing to comply with the requirements of the statutei.e., good cause for proceeding without knowing and voluntary waivers from appellant. But, even assuming this were a valid distinction, it would lead back to the problem discussed abovethat appellant raises this whole issue for the first time on appeal. Thus, if some good cause requirement were to apply herea proposition we find logically suspectthe People have had no opportunity to address it.

Appellant has failed to show any prejudicial error in connection with the outpatient review hearing in 2003, and has failed to demonstrate any lack of jurisdiction to order him recommitted in 2006.

2. Did the trial court err in recommitting appellant?

Appellant contends there was insufficient evidence to support a finding that he represented a substantial danger of physical harm to others and thus his April 2006 recommitment must be reversed. We disagree.

As mentioned ante, section 1026 et seq. permits the state to commit a person to a state hospital when he or she has been found not guilty by reason of insanity. Section 1026.5 permits the state to extend the period of commitment where the defendant has committed a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others. ( 1026.5, subd. (b)(1).) In this case, there is substantial evidence to support the trial courts finding that appellant remained an unacceptable risk to the community and should be recommitted under section 1026.5.

Whether a defendant by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204-205.)

In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5[, subdivision] (b)(1) beyond a reasonable doubt. [Citations.] (People v. McCune (1995) 37 Cal.App.4th 686, 694.)

At the trial on the issue, appellant submitted on four medical reports. A single psychiatric opinion that a person is dangerous as a result of a mental disorder constitutes substantial evidence to support an extension. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.) Further, [w]e will not reweigh the credibility of the evidence adduced at trial. (People v. Beard (1985) 173 Cal.App.3d 1113, 1118.)

Appellant contends that, based on the opinion in In re Howard N. (2005) 35 Cal.4th 117, section 1026.5, subdivision (b)(1) must be interpreted as requiring proof not only that the person is dangerous as a result of a mental disorder but also that the person has serious difficulty in controlling dangerous behavior. Appellant claims such evidence is missing here, since he had only one episode of violence in 1999, he can control his behavior when he wishes to do so, and, despite noncompliance with medication and the outpatient treatment program, he has not been violent since the 1999 incident.

Appellant claims his situation is analogous to People v. Galindo (2006) 142 Cal.App.4th 531, in which the defendant was originally committed under section 1026 for the felony of firearm possession by a convicted felon. (People v. Galindo, supra, at p. 533.) The People petitioned to extend his commitment for two years, which the court ordered after trial. (Ibid.) On appeal, the Attorney General conceded that, following Howard N., section 1026.5, subdivision (b)(1) must be interpreted as requiring proof that a person under commitment has serious difficulty in controlling dangerous behavior. (People v. Galindo, supra, at pp. 533, 537.)

In Galindo, the defendant was diagnosed with bipolar disorder and was taking a mood stabilizing medication. But the defendant angrily denied he suffered from a disorder or that he needed medication. Due to an antisocial disorder, which the defendant also denied having, he maintained a long-term criminal lifestyle. (People v. Galindo, supra, 142 Cal.App.4th at pp. 533-534.) The defendant also denied his polysubstance dependence, and he did not accept his history of criminality, including convictions of first degree burglary and forcible rape. (Id. at p. 534.) The physicians who evaluated the defendant opined that he represented a substantial danger of physical harm to others if he were released from the hospital. (Id. at p. 535.)

The recommendation for extension of commitment noted the defendants extensive mental health history and stated that the defendant was at a high-risk for re-offending based on the fact that he has minimal insight into his mental illness and behaviors and that he had shown no progress while hospitalized. (People v. Galindo, supra, 142 Cal.App.4th at p. 535.) The treatment team opined that, because of a mental defect or disorder, the defendant represented a substantial danger of physical harm to others. (Id. at p. 536.)

The court in Galindo found that the foregoing adequately summarized the abundant evidence that the defendants behavior was dangerous and that he did not, in fact, control it. But, the court reversed the recommitment order, stating:

[T]he fact [that the defendant] did not control his behavior does not prove that he was unable to do so, thus making him dangerous beyond [his] control. (Howard N., supra, 35 Cal.4th at p. 128.) There was little, if any, evidence that he tried to control his behavior, that he encountered serious difficulty when trying to do so, or that his difficulty was caused by his mental condition. Rather, the evidence strongly suggested that defendant did not try to control his dangerous behavior, because he perceived no reason to do so. (People v. Galindo, supra, 142 Cal.App.4th at p. 539.)

In People v. Bowers (2006) 145 Cal.App.4th 870, we agreed with Galindo that section 1026.5, subdivision (b)(1) should be interpreted as requiring proof that a person under commitment has serious difficulty in controlling dangerous behavior. (Bowers, at p. 878.) But in Bowers, we found there was sufficient evidence to support recommitment.

In Bowers, the defendant was found not guilty by reason of insanity on two counts of battery on correctional officers and committed to the Department of Mental Health. A petition for extended commitment pursuant to section 1026.5, subdivision (b) was subsequently filed and the matter submitted on the reports of two expert witnesses. (People v. Bowers, supra, 145 Cal.App.4th at pp. 872-873.) The trial court extended the commitment, finding the petition allegations true and that by reason of mental disease, defect, or disorder, the defendant represented a substantial danger of physical harm to others.

The only evidence presented at the extension hearing in Bowers was the medical reports of two psychologists. One noted that the defendant had a long history of chronic mental illness. Both concluded that the defendant suffered from a schizoaffective disorder, that her condition was unstable, and she continued to experience auditory hallucinations which commanded her to hurt herself or others. While the defendant told the doctors she was able to resist those commands, she was not always able to do so. Based in part on [her] poor impulse and anger control, the command hallucinations that order her to hurt others, and her history of assaultive behavior toward others, both doctors opined that [the defendants] mental illness rendered her a danger to others and she could not be maintained safely in outpatient treatment. (People v. Bowers, supra, 145 Cal.App.4th at p. 879.) Based on the evidence presented, we concluded that no rational trier of fact could have failed to find [the defendant] harbored a mental disorder that made it seriously difficult for [her] to control [her] violent impulses, [Citation.] (Ibid.)

We find appellants situation more akin to Bowers than to Galindo. Here, all of the submitted medical reports recommended appellant for an extension of commitment at Napa State Hospital.^[3]

Dr. Robert C. Taylor described appellants insight and judgment as severely impaired in that appellant described the incident in which he choked his friend as [n]ot even as serious as they made it out. Dr. Taylor opined that appellant has a schizophrenic condition that severely impairs his insight, judgment, thought processes and impulse control, and that this psychotic level of impairment causes him serious difficulty controlling his behavior AND seriously affects his capacity to properly perceive and process reality and that such condition results in him being substantial a [sic] danger of physical harm to others. (Boldface omitted.) In other words, unlike the report in Galindo, Dr. Taylor opined that appellant was dangerous because he had a mental condition which made him unable to control his behavior, not merely that he didnot control his behavior. (See People v. Galindo, supra, 142 Cal.App.4th at p. 539.)

Dr. Taylor concluded his report by stating:

[Appellant] continues to have serious difficulty managing his chronic schizophrenic condition outside of the highly structured setting of a state forensic psychiatric hospital. While presently, he does not appear to be actively hallucinating or manifesting acute paranoid delusions, his emotional and behavior stability is highly dependent on the hospital treatment which includes psychotropic medication. He has no insight into the severity of his mental illness. He minimizes the severity of his behavior in the instant offense and the role that his mental disorder and drug addiction played in his attack on his friend. He does not believe he has a severe mental disorder and does not need treatment. Reportedly, his father would support his noncompliance with treatment. Without treatmentincluding medicationhe can be expected to become acutely paranoid which will significantly decrease his ability to control his behavior and accurately perceive and process reality. [] Thus, as his severe mental disorder causes him to be unable to properly perceive and process reality and greatly increase his impulsivity such a condition can be reasonably expected to result in him being a substantial danger of physical harm to others .

Dr. Michael D. Zimmerman opined that appellant, who suffered from Schizophrenia, Paranoid Type, chronic and Antisocial Personality Disorder, represented a substantial danger of harm to others as evidenced by his history of life endangering assaults upon others, as well as his homicidal threats, and that he is less confused, less agitated, and less dangerous in a structured treatment setting where his antipsychotic medication is closely supervised and his access to illegal substances is restricted.

Dr. Adrian L. Della Porta opined that appellant also suffered from schizophrenia and chronic mental illness, that his delusional belief led him to attempt to kill his friend by strangling him with a rope, and that he continued to be a substantial danger to others because he minimized his behavior by stating that it was just a fight, that he was defending himself when the record revealed that this was an unprovoked attack on the alleged victim and he may have succeeded in strangling him if the witness was not there to intervene. Dr. Della Porta opined that appellant also continued to present a substantial danger to others due to his statement that he does not really need to take his medication for a mental illness. Without a structured treatment setting to enforce medication, he remains a substantial danger to others.

In extending appellants commitment, the trial court stated that it had read and considered all four doctors [sic] reports that are placed in evidence, and considered recommitment proper because appellant had a mental disease, defect or disorder and that condition causes [appellant] to have serious difficulty controlling his behavior or seriously affects [appellants] capacity to properly perceive or process reality or the condition affects both capacities such that the individual is a substantial danger of physical harm to others. We agree.

The medical reports were prepared for the sole purpose of determining whether appellant continued to pose a substantial risk of physical harm to others within the meaning of section 1026.5 and recommended, based upon the doctors expertise and evaluation of the case, that appellants commitment be extended. The evidence presented established beyond a reasonable doubt that appellant (1) had a mental disorder, and (2) that condition caused him to have serious difficulty controlling his behavior such that (3) he presented a substantial danger of physical harm to others. Viewed in the light most favorable to the extension order, the courts determination that appellant should be recommitted under section 1026.5 is supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

HARRIS, Acting P.J.

_______________________________

KANE, J.

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^[1]All further references are to the Penal Code unless otherwise stated.

^[2]Former section 1611 related to parole from a state hospital or other facility in counties with no outpatient program and was repealed in 1984. (Stats. 1984, ch. 1488,  11, operative Jan. 1, 1986.)

^[3]We address only three of the four reports, as the transcript does not include some of the pages of the report prepared by Dr. Paula J. Willis.