P. v. Wiley

Filed 7/05/07 P. v. Wiley CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant David Wiley appeals a June 27, 2006 order extending his commitment as a mentally disordered offender (MDO) to May 16, 2007, pursuant to Penal Code section 2972.^[1] He contends the courts finding that he represented a substantial danger of physical harm to others is not supported by substantial evidence. We reject the contention and affirm.

Background

In 1997, defendant was convicted of battery with serious bodily injury ( 243, subd. (d)) and assault with a deadly weapon ( 245, subd. (a)(1)) after he approached and assaulted a stranger who refused to comply with defendants demand for money. Shortly after being paroled, he tested positive for crack cocaine and committed another assault. He was returned to prison, and on June 10, 1998, transferred to Atascadero State Hospital and committed as an MDO. ( 2970.) In October 2001, he was committed to Napa State Hospital (NSH) after failing at outpatient treatment because of poor compliance with his treatment program.

In December 2005, the prosecutor petitioned for an order to extend defendants involuntary MDO commitment, alleging defendant suffers from a severe mental disorder, which is neither in remission nor can be kept in remission, and by reason of which defendant represents a substantial danger of harm to others. His commitment was due to expire on May 16, 2006.

A court report by NSH medical director Jeffrey Zwerin and other NSH program staff attached to the petition stated defendants diagnosis as: schizophrenia, paranoid-type, continuous and polysubstance dependence, in a controlled environment. The report noted that defendants treatment included medication and participation in various groups covering such topics as medication management, relapse prevention, anger management and anxiety management. The report stated that defendant continued to have symptoms of his mental illness including suspiciousness, delusional thinking and ritualistic behaviors,^[2] which did not respond well to multiple antipsychotics. Also, in April 2005, he threatened a peer. With a change in medication his delusional thinking appeared to improve, but his ritualistic behaviors continued. The report stated such behaviors put him at odds with his peers and can potentially lead into violent altercations. The report summarized that defendants schizophrenia was a severe mental disorder under section 2970, which was not in remission or controlled by medication or psychosocial support, and he represented a substantial danger of physical harm to others.

June 2006 Recommitment Trial

NSH psychiatrist Dr. Paul Anderson was qualified as an expert regarding MDOs and forensic psychiatry. He testified he had known defendant since July 2004, and was familiar with defendants medical and criminal history. Dr. Anderson opined that defendant had a severe disorder, called schizophrenia, paranoid-type and an extensive history of polysubstance abuse. Anderson stated that one of defendants symptoms was that he would maneuver himself in front of people and irritate them, and then get assaultive. He also had delusions and did not know how to handle his anger. Anderson stated that since defendants medication was changed, his dangerousness had been somewhat reduced but he was still not stable on the medication and was not in remission. In April 2006, defendant reported to Anderson that his symptoms had decreased and his maneuvering had stopped but he still had delusions and some paranoia. Anderson opined that defendant should be moved to an open, unlocked unit with the goal of transferring him to community outpatient treatment. Anderson said defendant had a very strong history of not being able to maintain stability for more than a week or two in outpatient treatment. Anderson opined that because defendants symptoms were not in remission and he was unable to take his medication without supervision, he was a definite danger to others.

NSH psychologist Dr. Siew Kuek had been defendants treating psychologist since November 2005. Kuek said that defendant wanted to be released to an outpatient unit immediately without having to first try an open unit, because he was concerned there were people on the open unit who would harm him. Kuek also said defendant had a tendency to fixate on an issue until he obtained a resolution that was to his liking. In one instance he raised his voice causing Kuek concern that he might become violent.

Dr. Shelly Stolesen, staff psychologist at the Golden Gate Conditional Release Program (CONREP) was qualified as an expert in forensic psychology and risk assessment. She had last done a risk assessment examination on defendant at NSH in March 2006, to evaluate his readiness for community outpatient therapy. Based on the examination and a review of his social, medical and criminal history, Stolesen opined that defendant suffered from a severe mental disorder, specifically, schizophrenia, paranoid-type. Stolesen did not believe defendant was in remission and opined that he posed a risk of substantial physical harm to others. Stolesen said that defendants delusional symptoms that people were out to harm him was the reason he did not want to go into an open unit. She opined that if defendant had these same feelings out in the community they would lead to him becoming assaultive. She noted that in the past, when he was paranoid while out in the community, he assaulted people.

Stolesen also said that during two prior outpatient placements in 2000 and 2001, defendant relapsed on crack cocaine and was rehospitalized. She opined that taking defendant directly into CONREP would constitute a risk to public safety. Stolesen based her opinion that defendant posed a risk to the community on: his active symptoms of paranoia, the high likelihood of his relapse to drugs, his inability to remember to take his medication daily, and his history of acting on his paranoia, in combination with his drug use. She evaluated as moderate, but potentially severe his level of risk if he were released into the community.

In granting the petition to extend defendants MDO commitment until May 16, 2007, the court stated: I do think the People have proven beyond a reasonable doubt that [defendant] has a severe mental disorder, that the disorder is not in remission, and by reason of that disorder, [he] represents a substantial danger of physical harm to others. . . . [T]here is uncontroverted evidence that he has active symptoms of his illness, specifically paranoia. And his history of violence indicates that . . . there is a high degree of risk when he acts on his paranoia in combination with being high on controlled substances. The court noted there appeared to be some confusion about his readiness for community outpatient treatment and substantial danger of physical harm to others. In response, the parties and the court agreed that NSH would be ordered to place defendant in an open unit if defendant was agreeable and NSH deemed it appropriate.

Discussion

The MDO law ( 2960 et seq.) sets forth criteria and procedures for the involuntary commitment of mentally disordered prisoners when they are released on parole. (See generally 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment,  638-640, pp. 837-842.) The MDO law requires that prisoners who have been convicted of violent crimes related to their mental disorders and who continue to pose a danger to society, receive mental health treatment during their parole and after their parole is terminated, until their mental disorder can be kept in remission. ( 2960 et seq.)

At MDO commitment and recommitment proceedings, the prosecutor has the burden of establishing beyond a reasonable doubt 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 . . . . ( 2972, subd. (c).)

For purposes of the MDO law, severe mental disorder is defined as an illness or disease or condition that substantially impairs the persons thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely. The term severe mental disorder as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances. ( 2962, subd. (a).)

 [R]emission 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. ( 2962, subd. (a).)

Section 2972, subdivision (c) provides that an MDOs commitment may be extended for a year when 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 . . . . (Italics added.)

Defendant contends there was insufficient evidence that he represented a substantial danger of physical harm to others. Appellate review of MDO proceedings is governed by the substantial evidence standard. (People v. Martin (2005) 127 Cal.App.4th 970, 975; People v. Beeson (2002) 99 Cal.App.4th 1393, 1398; People v. Pace (1994) 27 Cal.App.4th 795, 797.) Pursuant to this standard the appellate court views the entire record in the light most favorable to the judgment and determines whether it discloses substantial evidence, i.e., evidence that is reasonable, credible and of solid value, to support the trier of facts finding. (Beeson, at p. 1398.) If that 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 [trier of fact]. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)

The MDO law does not expressly define substantial danger of physical harm to others. However, section 2962, subdivision (f) provides, As used in this chapter, substantial danger of physical harm does not require proof of a recent overt act. Defendant relies on People v. Putnam (2004) 115 Cal.App.4th 575, 582, which stated that in order for an MDO petition to be sustained, the trier of fact must have found that as a result of the defendants mental disorder, the defendant suffered from a seriously and substantially impaired capacity to control his behavior, and that, for this reason, he represented a substantial danger of physical harm to others.

Defendant argues that in light of Dr. Stolesens testimony that he posed only a moderate risk of danger to others, there was insufficient evidence that he had serious difficulty controlling dangerous behavior and therefore was a substantial danger of physical harm to others. Contrary to defendants paraphrasing of her opinion, Stolesen evaluated defendants risk if released to the community as moderate, but potentially severe.

Defendant asserts that the evidence established that his mental illness kept him from getting involved in what he perceived as a potentially dangerous situation. However, contrary to defendants assertion, the evidence established that in the past, defendants paranoia that someone was intending to harm him resulted in his being assaultive and was likely to result in his being assaultive if he were released into the community.

Defendant also appears to argue, in reliance on People v. Noble (2002) 100 Cal.App.4th 184, 190, that there was no substantial evidence that if released he would not take his prescribed medication, and in an unmedicated state presented a substantial danger of physical harm to others. However, as the People argue in response, Noble addressed an MDO who defended against an extension of commitment on the ground that his mental disorder was in remission as a result of his medication. In this case, the undisputed evidence was that defendants condition was not in remission, and his symptoms were reduced, not eliminated, by medication.

Finally, defendant argues that because, under the MDO law, severe mental disorder does not include substance abuse or addiction, the court erroneously relied on the possibility of his relapse into drug use as a factor in its recommitment analysis. But the court considered defendants history of substance abuse not as a severe mental disorder in itself, but as a factor which increased his risk of becoming violent when coupled with his paranoid schizophrenia. Moreover, it was only one of numerous factors considered by the court.

The undisputed evidence established that defendant suffers from paranoid-type schizophrenia, he was not stable on his medication, was not in remission, was unable to take his medication without supervision, and was a definite danger to others. Even on medication, he continued to have delusions and some paranoia, and posed a risk of substantial physical harm to others. Based on defendants history of assaulting people when paranoid the expert testimony established that, if upon release to the community, defendant continued to have delusional symptoms that people were out to harm him, such symptoms would lead him to become assaultive. We conclude the evidence amply supports the courts recommitment order.

Disposition

The order is affirmed.

SIMONS, J.

We concur.

JONES, P. J. GEMELLO, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] All undesignated section references are to the Penal Code.

^[2] The ritualistic behaviors included cutting ahead of peers waiting in line, irritating them and then becoming assaultive, tossing towels in the air and stepping back and forth when entering through doors.