P. v. Abraham

Filed 9/28/07 P. v. Abraham CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Arthur Rohith Abraham is presently committed to Napa State Hospital following determinations that he was not guilty by reason of insanity of the offenses of murder, inducing criminal abortion, and separately charged sexual assaults of his common law wife. This appeal follows his petition for release pursuant to Penal Code section 1026.2.^[1]We affirm.

Background

The facts of defendants underlying criminal case have been set forth in detail in our opinion affirming a previous order denying his release under section 1026.2,^[2]and shall not be repeated here. In 1985, a jury found defendant not guilty by reason of insanity of the original charges of second degree murder and inducing criminal abortion. Defendant was committed to Atascadero State Hospital for a maximum term of 17 years to life. The district attorney later filed additional charges of sexual assault against the same victim, which were alleged to have occurred prior to her murder. In 1988, the parties stipulated to a finding that defendant was not guilty by reason of insanity as to these charges as well. Defendant was again committed to Atascadero State Hospital and his maximum term was set at 27 years. Defendant was transferred to Napa State Hospital in 1994. In 1996, he petitioned for outpatient treatment pursuant to section 1026.2. The trial court found that defendant had not sustained his burden of proof and denied his petition; we affirmed that decision on appeal. (See fn. 2, ante.)

In 2005, defendant filed a writ of habeas corpus in the trial court, alleging that he was no longer mentally ill or dangerous. The trial court denied defendants habeas on procedural grounds, finding that he had an adequate remedy at law under section 1026.2, subdivision (e), and ordered that the habeas petition be treated as a petition for restoration of sanity pursuant to that section. The court also ordered the Golden Gate Conditional Release Program (CONREP) to evaluate defendant as to whether he should be placed on outpatient treatment status or remain confined in a state hospital. The court conducted a hearing on the matter and subsequently denied defendants petition. This timely appeal followed.

Discussion

A defendant found not guilty by reason of insanity and committed to a state hospital may petition the court for placement in a conditional release program, under section 1026.2, subdivision (a). The court determines the matter without a jury; the defendant has the burden to demonstrate by a preponderance of the evidence that he is not a danger to others if released under supervision and treatment in the community. ( 1026.2, subd. (k); People v. Cross (2005) 127 Cal.App.4th 63, 72-73.) We review the trial courts determination for an abuse of discretion, drawing every reasonable inference in favor of the trial courts determination. To show an abuse of discretion, it is not sufficient to show facts affording an opportunity for a difference of opinion. [Citation.] . . . . [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] [Citation.] (Cross, supra, at p. 73.) As defendant concedes in his reply brief, this Court should defer to the trial courts express and implied factual findings regarding [defendants] suitability for outpatient treatment . . . .

Here the evidence at defendants most recent hearing regarding his suitability for outpatient treatment was mixed. The evidence was undisputed that defendant still suffered from a mental disorder; both the defense expert as well as the expert for the prosecution agreed that defendant suffered from a borderline personality disorder with narcissistic and antisocial features. Indeed, defendants expert, Stephen Donoviel, Ph.D., described this disorder as significant and indicated that defendant was clearly paranoid and suspicious. He indicated that defendants anger showed through quite readily. The prosecutions expert, Margaret Miller, M.D., described defendant as suffering from smoldering anger rage, and indicated that he was impulsive, and engaged in intimidating behavior, including verbal aggression.

Defendant contends, however, that despite this continuing mental disorder, he demonstrated by a preponderance of the evidence that he would not be a danger if released under community supervision and care. On this issue, Dr. Miller, who has been defendants treating psychiatrist since 2003, opined that defendant represented a risk of harm to the community even under supervision and treatment. This opinion was concurred in by the director of Golden Gate CONREP, Christopher Chapa, who indicated when called as a defense witness that defendant was not ready for release into the community. Even defendants expert, Dr. Donoviel, testified that individuals with defendants diagnosis could have psychotic episodes when under stress, and that the potential for such an episode would accrue[] if defendant were to become involved in another relationship and feel abandoned as he did in the relationship with his common law wife.^[3]Both Miller and Chapa expressed concern regarding defendants willingness to discuss his offenses and his reluctance to take full responsibility for the crimes.^[4] Miller felt that defendants unwillingness to discuss his mental illness in a significant way increased his risk if released into the community. She also felt that defendants denial of the rape made him a high risk for reoffending.

Chapa expressed concern that because defendant does not have a major mental disorder and they therefore are not able to visually see whether or not he would become dangerous, they would have to completely rely on him to be forthcoming about his thought, feelings, and emotions . . . . Chapa felt that defendant had not done that while confined in the hospital, and he did not expect that he would do so if released as an outpatient. Indeed, defendant has a history of being less than truthful when it serves him. For example, he lied about his mental condition originally when trying to avoid prison by claiming that he suffered from a mental disorder, he previously lied to his treatment team about the rape in order to try to obtain his release, his sworn affidavit contained false information regarding the psychotherapy he had received, and he misrepresented the facts regarding whether he had a gun prior to committing the murder. Relying upon defendant to be forthcoming would not appear to be a wise course of action.

Both Chapa and Miller also expressed concern about defendants ability to meaningfully participate in therapy if released on outpatient status. Chapa noted defendants domineering and obtrusive approach to psychotherapy. Defendants psychotherapy was, in fact, discontinued because defendant was very intimidating and wanted to run the sessions. When confronted with a therapeutic inquiry about his commitment crimes, defendant would become very angry and intimidating. Dr. Miller noted that defendant was closed and guarded about his sexuality and did not want to talk about this subject area. Defendant also denied committing the sexual assaults. As a result of these factors, defendant had no relapse prevention plan relating to the crime. Defendant recently had not wanted to discuss a relapse prevention plan about the murder, as well. Miller also noted that defendant had problems engaging in therapy at all, relating an incident in 2004 when his treatment team asked how they could assist him and he indicated that he wanted to be left alone, as he did good on his own and that [i]t gets old still having to listen to all this redundant bullshit. Defendant had refused to participate in rehabilitative therapy groups. Dr. Miller opined that defendants intimidating behavior would not serve him well in CONREP. Despite defendants generally positive participation in treatment programs at the hospital, Dr. Miller expressed concern that his unwillingness to discuss his mental illness in any significant way increased his risk of reoffending.

Defendant did present evidence which supported his desire to be released as an outpatient under community supervision. Dr. Donoviel testified that over the 20 years that defendant has been hospitalized, he has formed new relationships, including romantic ones, and has interacted with other patients at the hospital. Defendant assumed a leadership role in the patient advisory council. While he did have verbal confrontations with people, none of them involved physical confrontations. Drs. Donoviel and Miller both indicated that defendant had not physically harmed or attempted to harm a single person during his stay at the hospital. Defendant had the privilege of residing on an open unit at the hospital and he was permitted to go on the grounds without escort; in the past (when it was still permitted) he was also allowed to go into the community. Dr. Donoviel testified that defendant appeared to have been an active participant in group therapy and he felt that defendant would therefore be amenable to individual therapy. He also felt that defendants lack of history of substance abuse and age (55 years old at the time of the hearing) reduced his risk of recidivism. Dr. Donoviel opined that defendant could adequately address his continuing issues while under supervision in the community. Defendant also testified at the hearing, and indicated that he had learned to seek therapy rather than acting out violently, when faced with situations similar to those that preceded the crimes against his common law wife.^[5]

Given the totality of the evidence, and drawing every reasonable inference in favor of the trial courts determination, the trial court did not abuse its discretion in finding that defendant failed to demonstrate by a preponderance of the evidence that he would not be a danger to others if released under supervision and treatment in the community. (People v. Cross, supra, 127 Cal.App.4th at pp. 72-73;  1026.2, subd. (e).) The fact that the evidence demonstrates a difference of opinion on the issue of defendants suitability for outpatient treatment does not suffice to show that the trial courts determination exceeded all bounds of reason. (Cross, supra, at p. 73.)

Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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^[1]All further section references are to the Penal Code unless otherwise specified.

^[2]People v. Abraham (Jul. 14, 1997, A074868) [nonpub. opn.].

^[3]Dr. Donoviel felt, however, that this risk could be managed with outpatient supervision and treatment.

^[4]Dr. Miller indicated that while defendant had been willing in the past to take responsibility for the murder, he had been less so recently and was resistant to discussing the rape. Chapa indicated that defendant was unwilling to take responsibility for the rape and grossly minimized the murder.

^[5]Defendant here specifically referenced his reaction when he learned that his new wife, a patient at the hospital, had cheated on him before their marriage and had become pregnant during the affair. His ability to handle such situations was not always as positive, however. Defendant also engaged in the past in an inappropriate relationship with a female staff member, and when the relationship ended, defendant harassed her by making repeated hang-up phone calls to her. His conduct was reported to the police. Also, with regard to his current wife, we note that she is being treated for substance abuse. Dr. Donoviel testified that one of the stressors that influenced defendant at the time of the murder of his common law wife was the victims substance abuse.