P. v. Reyes

Filed 9/7/07 P. v. Reyes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Wade, Judge. Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Randall Einhorn, and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Jesus Reyes appeals from the order extending his commitment to the Department of Mental Health (the department), after a trial court affirmed the finding of the Board of Prison Terms (BPT) that he continued to be a mentally disordered offender (MDO). Defendant contends that there was insufficient evidence to sustain his extended commitment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2002, the trial court sentenced defendant to three years in state prison after he was convicted of committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, 288, subd. (a).)^[1] Defendant was scheduled for parole release on September 23, 2003. However, the BPT determined that he met the criteria of an MDO, and he was required to accept treatment through the department as a condition of parole. ( 2962.) The BPT again determined that defendant was an MDO on October 27, 2004^[2]and extended his treatment. Defendant was paroled to Atascadero Hospital and was transferred to Patton State Hospital (Patton) on June 8, 2005.

Defendant had two BPT hearings in 2005 before the BPT determined that he continued to meet the MDO criteria. The first hearing was on September 28, 2005. Dr. David Glassmire, a clinical psychologist who worked at Patton, evaluated him and wrote a report on September 22, 2005, concluding that defendant no longer met the MDO criteria. However, it was his opinion that defendant needed to continue taking antipsychotic medication in order to keep his psychiatric symptoms stable. Dr. Gene Berg, along with other independent evaluators, concluded that defendant had a severe mental disorder which was not in remission and could not be held in remission, and recommended that he could not be safely and effectively treated in the community as an outpatient. Dr. Yongoh Lhim, defendants treating psychologist, testified that defendant suffered from a severe mental disorder, but that it was in remission. He testified that defendant should be taking his medication and recommended a parole outpatient clinic. Because of the conflict in testimonies, the BPT postponed its decision for a future hearing.

On October 24, 2005, ten days before the postponed BPT hearing, defendant independently stopped taking his medication. As a result, Dr. Glassmire wrote an addendum report (the addendum report) concluding that defendant could not be kept in remission without treatment since he had stopped taking his medication and was no longer voluntarily following his treatment plan. Dr. Glassmire testified to the same effect at the second BPT hearing on November 3, 2005. The BPT once again found that defendant was an MDO.

Defendant petitioned the trial court for a hearing to determine whether he met the criteria of section 2962 on the date of the November 3, 2005, BPT determination. The court held a hearing beginning on August 7, 2006.

Prosecution Evidence

The prosecutions first witness was Dr. Berg. Dr. Berg testified that after interviewing defendant and reviewing his files from Patton, he concluded that defendant had a severe mental disorder. He diagnosed defendant with schizoaffective disorder, bipolar type, antisocial personality disorder, and pedophilia, as well as polysubstance dependence, and alcohol dependence. In prison, defendant displayed symptoms such as paranoia and delusions. At times, he talked about himself being Jesus Christ. With respect to pedophilia, Dr. Berg noted that defendant lacked insight and understanding in that he denied that he had a problem with it. Defendant had a series of sexual contacts with his 10-year-old niece, including fondling her, acting in a sexually provocative way, and taunting her with a mechanical penis. Dr. Berg noted that defendant needed to work on a relapse prevention program. At that time, defendant simply said he would not do it again, but he expressed little remorse or concern for his niece. Defendant did not believe he needed ongoing treatment for his pedophilia.

Dr. Berg further testified that when he interviewed defendant, they talked about medication, and defendant said that the medication he was taking seemed to remove the voices that he used to hear. Dr. Berg felt that defendant needed to continue taking his medication. Dr. Berg testified that a patient who stopped taking his medication would be considered as unable to stay in remission without treatment, unless he stopped under medical supervision or as part of a treatment plan. Dr. Berg said that it was unreasonable for defendant to stop taking his medication without medical supervision, in view of his psychiatric history. Dr. Berg opined that defendant had impaired insight and judgment, since defendant told him that he did not know why he was in the hospital.

Dr. Berg opined that because defendant had a major mental disorder, he would present a serious potential risk of physical harm to others. Dr. Berg testified that, in order to maintain him in remission, defendant would need to be compliant with his treatment, take his medication, and be involved in a treatment regimen. Dr. Berg further stated that, in light of his problem with street drug abuse and alcohol abuse, it would be very important for defendant to have a substance abuse counseling program. Substance abuse was a risk factor in being a substantial danger of physical harm to others because drugs could exacerbate psychotic symptoms. Defendant would also need to be aware of high risk situations as far as inappropriate sexual behavior, and he would need a psychosocial support group within a community. Dr. Berg testified that defendant told him that he did not have to follow American rules as he could return to family in Mexico. Dr. Berg noted that he was concerned about defendants willingness to comply with his treatment and to abide by the law. Taking into consideration defendants history of violence, as shown by his prior arrests and charges, which included other offenses related to pedophilia, Dr. Berg was concerned that defendant could re-offend.

Dr. Glassmire also testified at the hearing. He opined that defendant had a severe mental disorder, schizoaffective disorder. Dr. Glassmire noted that defendant had had delusions as a result of his disorder, including that he believed that he could read other peoples minds, that other people could read his mind, and that he received messages from televisions and radios. Dr. Glassmire also noted that defendant had pedophilia and a history of significant alcohol and drug use.

At the September 28, 2005 hearing, Dr. Glassmire opined that defendant no longer met the statutory MDO criteria because he could be kept in remission without treatment. Dr. Glassmire changed his opinion after defendant stopped taking his medication. He felt that defendant could not be kept in remission without treatment since he was no longer voluntarily following his treatment plan as a reasonable person would. Dr. Glassmire discussed with defendant the implications of stopping his medication without tapering off slowly and without consulting his doctor, but defendant was unwilling to talk to his doctor about the possible side effects at that time. Dr. Glassmire felt that it was unreasonable for defendant not to consider talking to his doctor about getting off his medication. He also felt that there was a higher probability of decompensation and an increased risk of defendant causing physical harm to others, when defendant went off his medication so quickly. Dr. Glassmire clarified that he felt that it was logical and reasonable for defendant to want to come off the medication, but he felt that it was incorrect and unreasonable of defendant to do it without consulting with his doctor and without medical supervision. Thus, Dr. Glassmire wrote the addendum report on November 2, 2005, concluding that defendant could not be kept in remission without treatment.

Defense Evidence

Dr. Lhim, who was defendants treating psychiatrist at Patton from June 2005 to January 2006, testified that about two months after he started treating defendant, he had some reservation about his diagnosis of schizoaffective disorder. He suspected that defendant did not have a psychotic disorder. Nonetheless, he never took defendant off of his medication prior to November 3, 2005. Dr. Lhim testified that a severe mental disorder, such as schizoaffective disorder, waxes and wanes and that the symptoms appear, disappear, and reappear.

Dr. Lhim testified that, prior to stopping his medication, defendant talked to him and told him that his problem was not with a mental illness, but with substance abuse. Because Dr. Lhim had some reservations about defendants diagnosis, he agreed to give him a chance to show his behavior. However, Dr. Lhim testified that he did not direct defendant to stop taking his medication; defendant stopped on his own. Dr. Lhim explained that, after defendant refused to take his medication, he left it up to defendant whether to take it or not. Dr. Lhim told defendant that if he refused to take the medication, he would not prescribe it for six months. However, if he started to show psychotic symptoms, he would have to prescribe medication.

Dr. Lhim testified that he signed Dr. Glassmires addendum report because it said that defendant could not be kept in remission without treatment since he was not voluntarily following the treatment plan. Dr. Lhim understood that to mean that defendant had refused to take his medication. At that time, Dr. Lhim thought that defendant met all the MDO criteria, including that he was a substantial danger of physical harm to others.

On August 14, 2006, the court denied defendants petition and confirmed the extension of his MDO commitment.

ANALYSIS

Defendant contends that there was insufficient evidence to support the trial courts findings that he met the MDO criteria on November 3, 2005. We disagree.

A. Standard of Review

Section 2972, subdivision (c) provides: If the court or jury finds that the patient has a severe mental disorder, that the patients severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed . . . .

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 defendant [was] 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. [Citation]  Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. . . . [Citation.] [Citations.] (People v. Clark (2000) 82 Cal.App.4th 1072, 1082 (Clark).)

B. There Was Sufficient Evidence That Defendant Had a Severe Mental Disorder

Defendant first claims there was insufficient evidence that he had a severe mental disorder at the time of the November 3, 2005 hearing, since the only doctor who actually treated him, Dr. Lhim, had reservations about whether he had schizoaffective disorder. We conclude that there was sufficient evidence.

Dr. Berg unequivocally testified that defendant had a severe mental disorder. He specifically diagnosed defendant with schizoaffective disorder, as well as antisocial personality disorder. Dr. Bergs opinion was based on his clinical interview with defendant and his review of an extensive amount of documentation from Patton. Dr. Berg described the nature of schizoaffective disorder as including delusions and hallucinations, problems with thinking, disorganized behavior, paranoia, and mood or depressive disorder symptoms, such as depression, pressured speech, and agitation. Dr. Berg noted that defendant had impaired judgment and understanding with respect to him having a mental illness, since he denied that he even had a mental illness. Dr. Berg testified that such denial was a sign of having a mental illness.

Dr. Glassmire similarly testified that defendant had a severe mental disorder, within the meaning of the MDO law. ( 2962.) He also unequivocally testified that defendant had schizoaffective disorder. Dr. Glassmire described schizoaffective disorder as manifesting itself with a combination of psychotic symptoms, which led to a loss of touch with reality (i.e., delusions or hallucinations), and mood symptoms. Dr. Glassmires opinion was based on his knowledge of defendants past delusional beliefs, such as believing that he received messages from the television and radio, that he could read other peoples minds, and that other people could read his mind.

In addition, the evidence showed that defendant denied that he ever suffered from a severe mental disorder. Such denial was a sign that he did have a mental illness. Furthermore, as noted by the court, defendant exhibited a certain amount of paranoia, feeling that Dr. Glassmire tricked him into not taking his medication. This paranoia was a further indication of a severe mental disorder.

Defendant argues that there was insufficient evidence to show that he had a severe mental disorder because Dr. Lhim, the only witness who had treated him during the relevant time period, had reservations and doubts about whether defendant had schizoaffective disorder. At best, the evidence showed that Dr. Lhim was equivocal about defendants diagnosis. His doubts apparently were not that strong since he never took defendant off of his antipsychotic medication prior to November 3, 2005. Significantly, Dr. Lhim testified that he signed Dr. Glassmires addendum report dated November 2, 2005 because he thought that defendant met all the MDO criteria. Defendant attempts to minimize the fact that Dr. Lhim signed off on Dr. Glassmires addendum report, asserting that Dr. Lhim did not know or understand the MDO law. However, Dr. Lhim undisputedly testified to his belief that defendant met all the MDO criteria at the time he signed the report. Furthermore, Dr. Berg and Dr. Glassmire, who undisputedly knew the MDO requirements, agreed that defendant had a severe mental disorder.

Viewing the evidence in the light most favorable to the judgment, as we must, we conclude that there was sufficient evidence to show that defendant had a severe mental disorder at the time of the November 3, 2005 hearing.

C. There Was Sufficient Evidence That Defendant Could Not Be Kept in Remission Without Treatment

Defendant next argues that there was insufficient evidence to establish that he could not be kept in remission without treatment. He specifically contends that the evidence was insufficient to show that his decision to stop taking his medication was unreasonable. We disagree.

Section 2962, subdivision (a), provides: 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 the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan. (Italics added.)

Defendant stopped taking his antipsychotic medication approximately 10 days before the November 3, 2005, BPT hearing. When Dr. Glassmire heard that defendant stopped taking his medication, he met with him to warn him that the BPT could find that he was not voluntarily following his treatment plan by discontinuing his medication. When Dr. Glassmire asked defendant why he stopped taking his medication, defendant said he wanted to prove that he did not have a mental disorder. Although Dr. Glassmire indicated to defendant that his answer was reasonable, he strongly recommended that defendant talk to Dr. Lhim about stopping his medication. Dr. Glassmire told him that one good reason to talk to Dr. Lhim was to discuss tapering off the medication, rather than quitting cold turkey. Dr. Glassmire explained that tapering off the medication would reduce the risk of possible side effects or a relapse of symptoms. Defendant said he simply was not going to take the medication, and that he would not consider tapering off of it slowly or discussing it with Dr. Lhim. At that point, Dr. Glassmire determined that defendant was no longer voluntarily following his treatment plan because he considered defendants response unreasonable.

Dr. Berg agreed that it was unreasonable for defendant to stop taking his medication without medical supervision, in view of his psychiatric history. Defendant told Dr. Berg that the medication he was on seemed to take away the voices he heard. Dr. Berg felt that defendant needed to continue taking his medication, and he testified that, unless it was under medical supervision or part of his treatment plan, a patient who stopped taking his medication would be considered as unable to stay in remission without treatment.

Furthermore, Dr. Lhim testified that he signed Dr. Glassmires addendum report specifically because it said that defendant could not be kept in remission without treatment since he was not voluntarily following the treatment plan; Dr. Lhim understood that to mean that defendant had refused his medication. Dr. Lhim testified that he did not tell defendant to stop taking his medication, but that defendant stopped on his own. Dr. Lhim confirmed that he did not take defendant off of his medication prior to November 3, 2005. By signing the addendum report, Dr. Lhim clearly indicated that he felt that defendant could not be kept in remission without treatment.

Defendant argues that Dr. Lhims opinion could not have been relied upon by the court because he did not testify whether defendants decision to terminate his medication was reasonable. However, the court properly considered Dr. Lhims testimony, together with the other witnesses testimonies declaring that defendants decision was unreasonable, in determining that defendant could not be kept in remission without treatment.

Defendant also argues that Dr. Glassmires opinion was unreliable and not backed by evidence, since it was based on defendants decision to stop his medication without consulting his psychiatrist. Defendant asserts that the record showed that he did discuss his decision with Dr. Lhim. However, Dr. Glassmire testified that his decision to write the addendum report stating that defendant was no longer voluntarily following his treatment plan was based on his discussion with defendant, in which defendant said he was unwilling to taper off his medication slowly or discuss it with his psychiatrist. Thus, his opinion and testimony were based on his conversation with defendant. Moreover, whether or not defendant discussed his decision with Dr. Lhim, Dr. Glassmire still felt that it was unreasonable for defendant to abruptly stop taking his medication, rather than tapering off of it.

Defendant further asserts that Dr. Lhim agreed that he should have the chance to show he did not have a severe mental disorder by staying off of his medication. Defendant also contends that he acted reasonably because he believed that Dr. Glassmire wanted him to get off his medication. However, the record clearly shows that neither Dr. Lhim nor Dr. Glassmire directed him to stop taking his medication. In fact, they both signed the report stating that they felt that defendant was not voluntarily following his treatment plan since he refused his medication.

Defendant also argues the fact that he was symptom-free off of medicine about 10 months after he stopped taking it suggested that he did not need medication and/or that he did not have a mental illness. He acknowledges that such evidence could not have been used to establish whether he met the MDO criteria on November 3, 2005. However, he argues it could have been considered by the experts as relevant to their understanding of [his] status as of November 3, 2005. The courts duty was to consider whether defendant met all the MDO criteria as of the November 3, 2005, BPT hearing. Subsequent evidence concerning a change or improvement in defendants mental condition was not relevant. (People v. Butler (1999) 74 Cal.App.4th 557, 564; People v. Tate (1994) 29 Cal.App.4th 1678, 1682.) Furthermore, the fact that defendant did not show any symptoms of a schizoaffective disorder for months after he stopped taking his medication was not dispositive. At trial, defendants treating psychiatrist from February 2006 to June 2006, Dr. Greta Herbes, testified that even though he did not display signs of a mental disorder while he was on her unit at Patton, she was still of the opinion that he met the MDO criteria on November 3, 2005.

Defendant concludes that because his treating psychiatrist, Dr. Lhim, clearly deemed his decision to stop his medication reasonable, it was reasonable, and [he] did not unreasonably fail to follow his treatment plan. Although Dr. Lhim did testify that he gave defendant the option of taking his medicine, the evidence shows that defendant had already stopped taking his medication by that point. Dr. Lhim never actually deemed defendants decision reasonable. Rather, it appears that he simply went along with defendants decision, since he could not force him to start taking his medication again. He just told defendant that if he started to show psychotic symptoms, he would have to prescribe him medication again. Moreover, Dr. Lhim clearly testified that he signed Dr. Glassmires addendum report, with the understanding that it said that defendant refused to take his medication and was, thus, not voluntarily following his treatment plan. Ultimately, the resolution of any apparent conflict or inconsistency in Dr. Lhims testimony was the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) We cannot reweigh the evidence.

In sum, the evidence showed that it was unreasonable for defendant to independently decide to stop taking his medication suddenly, and that he was not voluntarily following his treatment plan. Thus, pursuant to section 2962, subdivision (a), defendant could not be kept in remission without treatment.

D. There Was Sufficient Evidence That Defendant Represented a Substantial Danger of Physical Harm to Others

Defendant finally contends that there was insufficient evidence that he was a substantial danger to others. We disagree.

Two of defendants treating psychiatrists, Dr. Lhim and Dr. Herbes, testified that they thought defendant met the MDO criteria, as of November 3, 2005, including that he presented a substantial risk of danger to others. In addition, Dr. Berg definitively testified that because of defendants severe mental disorder, he presented a serious risk of physical harm to others. Dr. Berg opined that defendants drug and alcohol abuse history was a risk factor in him representing a substantial danger to others because use of controlled substances tended to lessen the emotional and behavioral controls of the individual and could also exacerbate existing psychotic symptoms. Dr. Berg was concerned that defendant could reoffend, considering his history of violence, as shown by his prior arrests and charges which included offenses related to pedophilia, and defendants viewpoint that, if released, he would return to his family in Mexico, where he did not have to follow American rules. Dr. Berg also diagnosed defendant with an antisocial personality disorder, which he concluded was an added risk factor.

Dr. Glassmire likewise opined that, as of November 3, 2005, defendant represented a substantial danger of physical harm to others, based on his refusal to take his medication and the consequent increased probability of a relapse of dangerous behavior. Dr. Glassmire opined that defendant did not have insight into his schizoaffective disorder, and testified that someone with poor insight was at a greater risk of not following his treatment plan, as well as not recognizing signs and symptoms of the disorder when they started to occur. With poor insight, the risk of recidivism increased, since the individual would not recognize the signs that his disorder was getting worse, and consequently, would not seek additional care.

In sum, all of the experts who testified at the hearing agreed that defendant represented a substantial risk of danger to others.

Defendant argues that there was insufficient evidence that he was a substantial danger to others because the evidence did not show that he had a mental disorder that caused him to have trouble controlling his violent behavior. Defendants entire discussion is based on a faulty premise. Essentially, he claims that an MDO must have serious difficulty controlling his violent behavior, and he accordingly argues that [a] finding of dangerousness alone is generally insufficient for civil commitment. Defendant relies upon Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks), and Kansas v. Crane (2002) 534 U.S. 407 (Crane), in support of his argument. However, these cases are inapposite because they involve the civil commitment of defendants under the Kansas Sexually Violent Predators Act (SVPA), which explicitly requires the finding of a mental abnormality that makes it difficult for the person to control his dangerous behavior. (Hendricks, supra, 521 U.S. at p. 358; Crane, supra, 534 U.S. at pp. 409-411.) Simply stated, the SVPA is a different statutory scheme from the MDO statutes under which defendants commitment was extended. (People v. Putnam (2004) 115 Cal.App.4th 575, 581.) With regard to the element at issue, the MDO law requires a finding that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. ( 2972, subd. (c).) Contrary to defendants claim, there is no statutory requirement of a finding of difficulty to control dangerous behavior, as in the SVPA.

Ultimately, the evidence supporting defendants extended MDO commitment consisted entirely of the testimonies of the expert witnesses, whom the court found to be credible. We must accord due deference to the courts evaluation of credibility. (Clark, supra, 82 Cal.App.4th at p. 1082.) Thus, viewing the evidence in the light most favorable to the People, we conclude that there was more than enough evidence to support the extension of defendants commitment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise noted.

^[2] The record states that BPT retained the parolee on parole and reaffirmed the special condition of parole pursuant to PC section 2962 on . . . 10/27/03. (Italics added.) However, this appears to be an error, since BPTs original determination that defendant met the criteria of section 2962 was made on September 22, 2003.