Norton v. California

Filed 8/28/07 Norton v. California CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Plaintiff and appellant Alexander Norton appeals from the trial courts order denying his petition under Welfare and Institutions Code section 8103, subdivision (f).[1]Norton argues that the trial court erred because (1) it applied the incorrect legal standard in denying his petition; (2) substantial evidence does not support the courts order; and (3) the trial court failed to observe certain procedural requirements contained in section 8103. Because we conclude that the trial court apparently misapplied the lawas to which side had the burden of proof in this case, we reverse its judgment and remand the case to it for reconsideration including, if necessary, a new hearing. We do not, therefore, reach appellants other two contentions.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2004, when he was 22 years old, Norton took a vacation with his mother and another family. With them on this vacation was a woman Nortons age, the daughter of family friends. During the trip, Norton and the woman spent time together and Norton found that he kind of liked her.

However, the woman met another man on this vacation. While Norton was driving in his car, he saw the two of them together. He went on to his destination and, on his way back, passed them again. Later, the woman confronted him, stated she felt like he was stalking her, called him boring and other rude adjectives.

Shaken by this incident, Norton packed up his things and drove into Sonora, the nearest town with cell phone reception. According to the Tuolumne County Sheriffs report, he called his therapist twice this evening, sounded despondent and suicidal and was talking about dying. He told the therapist life was hopeless and asked if he would be reincarnated when he died. He admitted that he had with him a nine millimeter pistol he used to do target shooting. After speaking to his therapist, he began to feel better and decided to return to his familys home in Livermore. However, about this time the police located him, after his therapist notified them about his two calls. Norton was taken to the Tuolumne General Hospital and placed on a 72-hour hold under section 5150.

Norton described the incident to the admitting doctor, Dr. Judith Vyhmeister, at the Tuolumne General Hospital. He said that he had been in a depressed mood for the past six or seven years, beginning with an incident of rejection by a girl at school when he was in the ninth grade. This latest incident appears to have set off intrusive thoughts about that ninth-grade rejection.

Dr. Vyhmeister wrote, in her Psychiatric Intake Summary: The patient admits he has had suicidal thoughts sporadically over the years, although never made an actual attempt. He finds it hard to stay asleep, his eight hours are interrupted. Initial insomnia is intermittent. His appetite is good and concentration is fair. He is distracted easily.

In the one-page Involuntary Patient Advisement issued by the hospital and given to Norton that day, a hospital staff person wrote that he was being placed into the facility because it was, then, the opinion of the professional staff that, as a result of a mental disorder, you are likely toafter which the box Harm yourself was checked. That form then continued: We feel this is true because you are suicidal and you had a gun.

However,the next day, after observing Norton overnight, the hospital concludedthat he was not a danger to himself or others and discharged him.

Upon his discharge, Norton was notified that, under section 8103, subdivision (f), he was prohibited from owning, possessing, receiving or purchasing any firearm for a period of five years. Norton signed a form notifying him of this prohibition and also indicated that he requested a hearing to provide relief from the firearms prohibition.

That same day, Norton and the hospital completed a form entitled Request for Hearing for Relief From Firearms Prohibition. The request was apparently sent to the Alameda County Superior Court. On September 20, 2004, the Alameda County clerks office referred the request back to Tuolumne County. The request was ultimately returned to Norton, who was told it should be submitted in Alameda County.

On February 17, 2005, Norton filed a second request for a hearing. The court set March 22, 2005, as the date for a hearing on this matter. Norton appeared at the hearing. No one appearing in opposition, the matter was reset for April 19, 2005.

On April 19, 2005, an Alameda county deputy district attorney appeared. She stated that she did not have enough information from Nortons petition to state a firm position. She stated It seems to me that if Mr. Norton is willing and the Court is willing that perhaps the most expeditious way to proceed is if Mr. Norton will come to my office and sign a release for those mental health records, I can send out a subpoena today. We can come back on a date thats convenient for the Court and Mr. Norton that gives enough time for that subpoena to be responded.

The matter was continued to August 23, 2005. At that time, the People and the court had received and reviewed the medical records of Nortons hospitalization. The District Attorney opposed Nortons request to be relieved of the section 8103 firearms prohibition, arguing that [g]iven the severity of the mental health crisis that Mr. Norton suffered, barely a year ago, I think there is definitely sufficient information in the Court record now for the Court to deny his petition, and that is what I request.

Norton responded that he had been in therapy for a year, had graduated from college and was moving on with my life. He stated that he had at one time hunted with his father and done activities like target shooting and he wanted to resume doing that. He also stated that this limits me from any kind of career or future I may have in government work or law enforcement . . . .

The court pointed out that it had no indication of that. . . . Youre telling me that, but I dont have any other evidence of that. The court then stated, And the presumption is such that it is a fairly severe burden upon you to establish that this prohibition should be removed.

Norton responded, I thought the burden was on the State to prove I was unsafe.

The court told Norton, [a]ll right. It then stated, they essentially carry their burden and shift it to you correct me if Im wrong, Counsel by noting the 72-hour hold and the review of the records, which at this point in time place you in the unenviable position of having to overcome, which is, in these papers which I have, in fact reviewed, and which, in fact, to me establish sufficient reason as of the time of this report to keep the prohibition in place.

The District Attorney stated, I think Mr. Norton is right. There is an initial burden on the part of the State. I agree with the Courts characterization that that burden is met by the production of the medical records, the 5150 records, the establishment by DOJ that Mr. Norton is a person described as a person who is not to own, possess or use firearms.

The People opposed Nortons request on the ground that Norton had suffered a mental health crisis . . . barely a year ago. The court continued the hearing for sixty days in order to permit Norton the opportunity to . . . bring evidence, competent evidence of his in order to establish his ability to have firearms, that he is not a danger to himself or others.

At the hearing on October 18, 2005, Norton presented letters from his parents and from his psychologist, Dr. Lebow. In a letter dated October 1, 2005, Dr. Lebow stated that Norton was seen by him beginning a few weeks after the incident and then for sixteen visits over about a one-year period. During the year after the incident, Norton was on medication which he took consistently. His depression having lifted, Norton stopped taking medication in July 2005, and in October, when the letter was written, has suffered no ill effects.

Dr. Lebow opined that [i]t is my impression that Mr. Norton is not a danger to himself or others at the present time nor do I believe he was at the time of the aforementioned incident. The latter was more likely the results of poor communication on the part of both parties, incorrect assumptions, and Mr. Nortons difficulty in reading non-verbal signals from the opposite sex. Lebow also stated that Norton continues to need to develop better social skills and increased affective expression and I have recommended that he pursue a group with an emphasis on social skills training. I do not believe there will be a repeat of the incident occurring in the summer of 2004 or any similar incidents in the future.

The People argued that the letters from Nortons parents were not particularly relevant to the issue at hand. The People also contended that Lebows letter cuts against Mr. Nortons request in a couple of ways . . . . Specifically, the People pointed to the fact that, after the section 5150 hospitalization, Nortons follow-up care had gone on for a year, and included sixteen visits. Also of significance was the fact that Norton was no longer using medication and that without more information about when he quit taking medication, that is also of concern. The People argued it was difficult to tell from the letter whether Lebow was Nortons therapist or whether his office had seen Norton. In addition, the People expressed a concern with Dr. Lebows conclusions that Mr. Norton needs to develop better social skills, increased effective expression, because I think that was what was the cause of the original incident that led to Mr. Nortons hospitalization.

Norton responded that, in fact, Lebow was my therapist for that time frame. He stated that he had seen him for a long time, but it wasnt necessarily all about the events. Norton also pointed out that Lebow didnt believe Norton was a threat to himself or anyone else. As for the letter from his mother, Norton argued this letter was relevant because his mother was a witness to the events.

The court held as follows: I do think youve made an admirable effort to overcome the presumption of the Welfare and Institutions Code. The dilemma for you, sir, is that the code is very strong with respect to what the requirements are and what the prohibitions are. Without a clear overcoming of the presumption, the Court returns you to the admission date and the dictation of the doctor at that time, which indicates a number of admissions by you. There was this one event, but on top of the one event, there is an indication of or an admission of a depressed mood for the past six or seven years. There is an admission of sporadic suicidal thoughts. There is an admission that on the date of the incident, there was a nine-millimeter pistol. There is an admission of depression which, over the period of a year, Dr. Lebow seems to believe youve made great progress with, and I think that is I think that is wonderful and I think that is admirable. At the same time, it is not sufficient to overcome the presumption and the Court denies the petition.

After the court denied Nortons petition, this timely appeal followed.

III. DISCUSSION

As noted above,Norton argues that the trial court erred because it misstated the applicable burden of proof.

Section 8103, subdivision (f)(1), provides that no person who has been (A) taken into custody as provided in Section 5150 because that person is a danger to himself, herself or others, (B) assessed within the meaning of section 5151, and (C) admitted to a designated facility within the meaning of sections 5151 or 5152 because that person is a danger to himself, herself or others, shall own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of 5 years after the person is released from the facility.

A person may be relieved from this firearm prohibition, if, the People fail to meet their statutorily mandated burden of proof. ( 8103, subd. (f)(1).) This burden of proof is as follows: The People shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner. (8103, subd. (f)(6).)

At the August 23, 2005, hearing in which the burden of proof was specifically discussed, the court stated that, the presumption is such that it is a fairly severe burden upon you to establish that this prohibition should be removed. Norton properly pointed out, I thought the burden was on the State to prove that I was unsafe.

The court rather quizzically responded toNortons point by saying all right and then stated, they [the People] essentially carry their burden and shift it to you correct me if Im wrong, Counsel by noting the 72-hour hold and the review of the records, which at this time place you in the unenviable position of having to overcome, which is, in these papers which I have, in fact reviewed, and which, in fact, to me establish sufficient reason as of the time of this report to keep the prohibition in place.

The deputy district attorney stated: I think Mr. Norton is right. There is an initial burden on the part of the State. I agree with the Courts characterization that that burden is met by the production of the medical records, the 5150 records, the establishment by DOJ that Mr. Norton is a person described as a person who is not to own, possess or use firearms. The People discussed the contents of the records at length and made clear its opposition to permitting Norton access to firearms. The trial court, having made clear its conclusion that the People had met their burden of proof, nevertheless gave Norton the opportunity to present further evidence on the issue.

At the hearing at which the trial court considered this additional evidence and announced its decision, the court explained its reasoning as follows: I do think youve made an admirable effort to overcome the presumption of the Welfare and Institutions Code. The dilemma for you, sir, is that the code is very strong with respect to what the requirements are and what the prohibitions are. Without a clear overcoming of the presumption, the Court returns you to the admission date and the dictation of the doctor at that time, which indicates a number of admissions by you. There was this one event, but on top of the one event, there is an indication of or an admission of a depressed mood for the past six or seven years. There is an admission of sporadic suicidal thoughts. There is an admission that on the date of the incident, there was a nine-millimeter pistol. There is an admission of depression which, over the period of a year, Dr. Lebow seems to believe youve made great progress with, and I think that is I think that is wonderful and I think that is admirable. At the same time, it is not sufficient to overcome the presumption and the Court denies the petition.

Norton argues that because the trial court spoke in terms of presumptions, it misapplied the burden of proof and erred in denying the petition. We agree with Norton that the trial court was clearly incorrect in its repeated assertions, at both the August and October 2005 hearings, that Norton faced a presumption which he had to overcome. Indeed, the trial court used the term presumption twice in the August hearing and three times in the October hearing, including in the last sentence of the announcement of its decision.

As a simple reading of section 8103 establishes, and indeed as the District Attorney conceded at the August hearing, there is no such presumption. Rather, and assection 8103 provides, the People bear the burden of proving, by a preponderance of the evidence, that the person subject to the firearms prohibition would not be likely to use firearms in a safe and lawful manner. (8103, subd. (f)(6).)

We are also troubled by the relative lack of time and attention spent by the trial court on this matter. The August and October hearings consumed less than 15 minutes combined, the dispositional hearing of October 18 producing a transcript of all of four pages. Except for the records produced via subpoena, the only evidence in the record was that from Norton, who was sworn before his presentation, and who provided letters from his parents and Dr. Lebowthe only evidence, we hasten to add, that dealt with any current state of affairs.Thus, conspicuously absent from the evidence was that involving Nortons therapist, who he had twice called from Sonora (and who had subsequently called the Tuolumne County Sheriff), including

how long Norton had been seeing him or her, and what his or her opinion was then, and is now, about the safety of Norton having a pistol in his immediate possession.

Not only are we troubled by the brevity of the hearings, various indications in the record show that perhaps the trial judge did not read what was before him. Thus, for example, the court began the August 23 hearing by inquiring whether this was a 5150, as he did not see it. Section 5150 is referred to in the first paragraph of the psychiatric intake evaluation. The trial court also responded to Nortons asserted desire to enter law enforcement by observing that there was no other evidence of that. To the contrary, the personal history on the second page of the psychiatric intake evaluation states that Nortons goal is to become a forsenic psychologist.

There are, to be sure, significant policy issues present here, issues affecting both the public (and Norton) from a safety standpoint (see, e.g., Braman v. State of California (1994) 28 Cal.App.4th 344) and also affecting Norton from the standpoint of his future occupation -- of which, as noted above, the trial court seemed to be oblivious. It is, in short, a serious proceeding, with serious ramifications, to be dealt with most seriously. (See, generally, Rupf v. Yan (2000) 85 Cal.App.4th 411.)

In light of all this, we reverse the order of the trial court and remand this matter to it for its reconsideration and, if it considers it appropriate, a new hearing. Accordingly, we do not reach the substantial evidence or section 8103 procedural issues raised by Norton.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

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Richman, J.

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[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.