P. v. Trebas

Filed 9/28/06 P. v. Trebas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Daniel Trebas appeals an order committing him to the California Department of Mental Health for treatment as a mentally disordered offender (MDO) (Pen. Code, §§ 2962, 2966)[1] following his conviction of continuous sexual abuse of a child (§ 288.5). We conclude, among other things, that the trial court properly found that 1) Trebas received 90 days of treatment for his disorder and 2) his schizoaffective condition qualifies as a severe mental disorder under the MDO law. (§ 2962, subd. (a).) We affirm.

FACTS

Trebas filed a petition in the superior court to challenge a decision of the Board of Prison Terms that he qualified as an MDO. He requested a court trial and the court granted his request to represent himself.

Steven Terrini, a psychologist for the California Department of Corrections, testified that Trebas suffers from a schizoaffective disorder. It is a severe mental disorder and was an aggravating factor in his sexual molestation of an eight-year-old boy. Trebas had committed a series of "bizarre" and "psychotic" acts, including placing marbles in the child's rectum. He made delusional statements, dug through dumpsters looking for food and had a history of refusing to take medications.

Terrini said Trebas had received at least 90 days of treatment at the Triple C.M.S., "a correctional clinical case management system." The treatment he received there was "one of the levels of mental health care in the prison system . . . ." On cross-examination, he said treatment for schizoaffective disorder could include medication. "Perhaps speaking to a psychologist or a psychiatrist. Perhaps going to groups. Those would all be acceptable treatments."

Allan Roske, a clinical psychologist at Atascadero State Hospital, testified that Trebas received the required 90 days of treatment for his schizoaffective disorder. He said the disorder was severe with symptoms of hypomania, paranoia, inappropriate behavior and delusional thinking.

On cross-examination, Trebas showed Roske a medical article on psychopathology. It described typical methods of psychiatric counseling which involved, among other things, weekly sessions between the patient and therapist. Trebas asked Roske, "[W]as any treatment, as defined in this [article], provided to myself[?]" Roske said, "I don't believe by those definitions, no." He said the case management monitoring Trebas received in prison on a less frequent basis "was certainly a part of treatment." They provided it to Trebas "at their frequency level as met their criteria."

In the defense case, psychologist Beth Viglione testified Trebas suffered from pedophilia which was the only disorder related to his commitment offense. She said he had not received treatment for that disorder. But the 90-day treatment requirement "has been met" for Trebas' psychotic disorder. She said that disorder had an "affective component" which could be classified as a "schizoaffective disorder."

DISCUSSION

I. 90 Days of Treatment

Trebas contends there was insufficient evidence to support the finding that he received 90 days of treatment for his disorder at the Triple C.M.S. prison mental health facility. We disagree. "The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released on parole. . . . Among the six criteria necessary for an MDO commitment is a showing 'that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day.' [Citation.]" (People v. Martin (2005) 127 Cal.App.4th 970, 973.)

Here Roske and Terrini testified that Trebas received the required 90 days of treatment for his schizoaffective disorder. This involves an initial assessment. Thereafter the Triple C.M.S. program provides that defendant be seen by a psychologist or psychiatrist every 90 days. Viglione, Trebas's expert, also said Trebas received treatment for his psychotic disorder which met the 90-day requirement. This is substantial evidence that defendant was in treatment.

Trebas claims the court erred by not making a finding on the level of treatment he should have received. But the court only has to decide if he was treated for the disorder. (People v. Kirkland (1994) 24 Cal.App.4th 891, 907; Bowring v. Godwin (4th Cir. 1977) 551 F.2d 44, 48 [courts will not "second-guess the propriety or adequacy of a particular course of treatment" for the prisoner].) The type of therapy is within the discretion of treating doctors who are in the best position to know the inmate's health. (Bowring, supra, at p. 48; California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 20; Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 665, fn. 6; Estelle v. Gamble (1976) 429 U.S. 97, 107.)

Trebas suggests there should be a uniform level of treatment. But "psychiatrists themselves differ on the underlying theories . . . of treatment." (Bowring v. Godwin, supra, 551 F.2d at p. 48, fn. 3.) Some may prefer a set number of therapy sessions. But courts have concluded that "the frequency of visits to the treating psychiatrist would depend upon the individualized circumstances of each case." (State v. Krol (1975) 68 N.J. 236, 262 [344 A.2d 289].) Roske testified treatment levels depend on each patient's symptoms. Resolving the conflicting views within the psychiatric community, mandating various types of therapy and setting particular treatment levels are matters for the Legislature. (California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d at p. 21; Bowring, supra, at p. 48.)

Trebas claims the trial court erred because the evidence shows he did not receive "real treatment." We disagree. From the medical records Trebas introduced, the court could reasonably infer that the Triple C.M.S. mental health team diagnosed his disorder. They used a clinical case management system to monitor his progress and symptoms. They reviewed his "level of functioning," his compliance with treatment and set up a monitoring visit schedule. Moreover, Terrini testified Trebas saw a clinician, a psychologist and a psychiatrist who tried to treat his schizoaffective disorder. Trebas notes Terrini described some other possible treatments for schizoaffective disorders. But he also testified "it . . . depends on the individual" and Trebas received one of the levels of mental health care in the prison system.

Trebas contends the Triple C.M.S. monitoring visits were not frequent enough to be effective and were used only as a method to detain him. But Roske said the monitoring was "part of treatment" and the mental health unit saw him "at their frequency level as met their criteria." Trebas claims Roske contradicted himself because on cross-examination he said he was not sure if the Triple C.M.S. counseling schedule of one visit every 90 days was adequate. But we do not resolve evidentiary conflicts. (People v. Martin, supra, 127 Cal.App.4th at p. 975.) The trial court resolved this conflict against Trebas and it could also rely on Terrini's and Viglione's testimony.

Trebas notes that Roske testified he did not receive the treatments described in the medical article. But that article does not describe all the types of treatments in all settings. Its author noted there are many treatments and most "therapists are not exclusive practitioners of one particular school of therapy . . . ." The court could give the article little weight. It did not focus on the unique area of prison mental health treatment and represented only one view in an area where experts often disagree. (Phillips v. District of Columbia (1998) 714 A.2d 768, 773; California Assn. of Psychological Providers v. Rank, supra, 51 Cal.3d at p. 21, fn.13; Bowring v. Godwin, supra, 551 F.2d at p. 48, fn. 3.) It could also find the article was irrelevant because Trebas's own expert refuted his claim that he was not treated.

The Triple C.M.S. team decided not to medicate Trebas or provide group therapy. But the type of treatment depends on the treating doctor's judgment and the patient's cooperation. (California Assn. of Psychology Providers v. Rank, supra, 51 Cal.3d. at pp. 20-21, fn. 13; People v. Kirkland, supra, 24 Cal.App.4th at pp. 907-908.) Many psychotherapists do not use medications because of the side effects. Trebas introduced a 1998 medical report which reflected that he had planned to "get off" his medication while in CDC to help limit the possibility of becoming an MDO.

Moreover, Trebas had a history of refusing to take his medications and had declined to participate in sex offender therapy. The prison medical team reported that he was angry and disagreed with its decision that he should stay in mental health treatment. The court could reasonably infer Trebas's attitude and lack of cooperation were factors in the team's decision about his suitability for group therapy or medications.

II. Severe Mental Disorder

Trebas contends that the evidence is insufficient to support the finding that he suffered from a severe mental disorder. We disagree.

A necessary element for an MDO commitment is that the prisoner has a severe mental disorder. (§ 2962, subd. (a).) Here Trebas had symptoms of hypomania, paranoia, delusions and had committed a variety of bizarre and psychotic acts, including inserting marbles in a child's rectum. Roske and Terrini testified that his schizoaffective condition was a severe mental disorder. Their testimony is substantial evidence. (People v. Pace (1994) 27 Cal.App.4th 795, 798.)

Trebas claims their conclusions should be disregarded because some of their statements and other evidence show his disorder is mild. But we do not decide the credibility of experts, weigh the evidence or resolve evidentiary conflicts. (People v. Martin, supra, 127 Cal.App.4th at p. 975; People v. Pace, supra, 27 Cal.App.4th at p. 798.) The evidence is sufficient.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Barry T. LaBarbera, Judge

Charles Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Marc E. Turchin, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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