P. v. May

Filed 7/16/07 P. v. May CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

William Edward Preston May appeals from an order recommitting him to the California Department of Mental Health for treatment after the trial court determined that he was a mentally disordered offender. (MDO; Pen. Code,  2962 et seq.)^[1] Appellant claims that the evidence does not support the finding that he represents a substantial danger of physical harm to others due to his mental disorder. ( 2972, subd. (c).) We affirm.

Facts and Procedural History

Appellant suffers from paranoid schizophrenia, a severe mental disorder that dates back to 1991. In 2002, he was convicted of making terrorist threats ( 422) after he threatened to stab his girlfriend in the heart with an 18 inch knife. Appellant was sentenced to three years state prison.

The Board of Prison Terms (BPT) twice determined that appellant was an MDO and committed him to Atascadero State Hospital for treatment. After the BPT recommitted him on March 24, 2006, appellant filed a petition in superior court and waived jury trial. ( 2966, subd. (b).)

Doctor John Eiel testified that he has been appellant's treating psychologist since November 2005. Doctor Eiel opined that appellant met all the MDO criteria and stated that appellant was "somewhat delusional and . . . has difficulty trusting other people." The severe mental disorder was manifested by auditory hallucinations, delusions, and paranoid persecutory beliefs in which appellant thought people were out to get him.

Doctor Eiel stated that appellant had improved since the BPT hearing "but he's not quite there yet." The doctor opined that appellant was a substantial danger to others because the severe mental disorder was not in remission, because appellant suffered from delusions and persecutory beliefs, and because appellant had a violent criminal history and had done poorly on parole.

Dangerousness

A MDO recommitment requires proof beyond a reasonable doubt that (1) the defendant has a severe mental disorder, (2) the disorder is not in remission or cannot be kept in remission without treatment, and (3) by reason of the disorder, the defendant represents a substantial danger of physical harm to others. ( 2972, subd. (c).)

Appellant argues that the evidence does not establish the third MDO factor, i.e., that by reason of the mental disorder, appellant represents a substantial danger to others. Doctor Eiel's testimony was uncontroverted and supported by appellant's rap sheet which showed four parole violations and convictions in 1980 for escape with force, a 1980 second burglary conviction, a 1984 conviction for unlawful sexual intercourse with a minor, a 1987 conviction for oral copulation and assault with attempt to commit rape, a 1991 battery conviction, a 1992 conviction for indecent exposure, a 1993 conviction for sexual battery, a 1994 conviction for annoying or molesting a child, a 1996 conviction for indecent exposure, and the 2002 conviction for making terrorists threats on a girlfriend.

Appellant asserts that his criminal history is not a valid factor in determining dangerousness or the potential future violence. We disagree. A mental health professional may and should take into account the prisoner's entire history in making an MDO evaluation. This includes prior violent offenses as well as the prisoner's mental health history. (People v. Pace (1994) 27 Cal.App.4th 795, 799.) Whether the prisoner "is mentally ill and dangerous to either himself or others . . . turns on the meaning of facts which must be interpreted by expert psychiatrists and psychologists." (Addington v. Texas (1979) 441 U.S. 418, 429; 60 L.Ed.2d 323, 333].)

Doctor Eiel testified that that the severe mental disorder symptoms included auditory hallucinations, paranoid persecutory beliefs, and delusions. Before the BPT hearing, appellant believed a female staff member was romantically interested in him which was not the case. Doctor Eiel stated that appellant was "somewhat delusional" and "misreads cues in a social environment, and that has caused him problems." Although appellant did not specifically threaten anyone, his behavior made female staff very uncomfortable. It showed that appellant, by reason of his mental illness, had serious difficulty controlling his behavior. (See In re Howard N. (2005) 35 Cal.4th 117, 131-132.) Under the MDO statute, " 'substantial danger of physical harm' does not require proof a recent overt act" of violence. ( 2962, subd. (f); see In re Qawi (2004) 32 Cal.4th 1, 24.)

The trial court found that appellant "meets the [MDO] criteria. I did review the rap sheet, and there is a history of some sexual misreading of social cues, and if that did occur, it could be very serious, and also his persecutory beliefs that he has admitted, were another indication of dangerousness . . . . [Appellant's] done poorly on parole, and he hasn't apparently followed his treatment in that situation."

Appellant argues that he has significantly improved since the BPT hearing and is following his treatment plan. Dr. Eiel acknowledged that appellant's symptoms had abated enough to refer him to a conditional release program (CONREP). The trial court, however, was required to take a "snapshot view" of appellant's mental status as of the time of the BPT hearing. (People v. Tate (1994) 29 Cal.App.4th 1678, 1682.) "Subsequent evidence concerning a change or improvement in the prisoner's mental condition is not relevant." (Ibid.; see also People v. Butler (1999) 74 Cal.App.4th 557, 563.)

Appellant claims that the trial court exceeded its authority in finding that appellant would be better off released on CONREP even if appellant was not an MDO. The argument misconstrues the record. The trial court found that appellant fit the MDO "criteria. The petition is denied. I think he should be released on CONREP before he gets out." The trial court was referring to Doctor Eiel's testimony that hospital staff had already referred appellant to CONREP for possible outpatient treatment. (See e.g., People v. Miller (1994) 25 Cal.App.4th 913, 916, fn. 1.)

In a sufficiency of the evidence appeal, we may not reweigh the evidence or determine the credibility of witnesses. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) Substantial evidence supports the finding that appellant, by reason of the severe mental disorder, represented a substantial danger to others at the time of the BPT hearing.

The judgment (MDO recommitment order) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Christopher G. Money, Judge

Superior Court County of San Luis Obispo

______________________________

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

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Marc E. Turchin, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

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