Filed 4/18/17 P. v. Pham CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

TRI VAN PHAM,

Defendant and Appellant.
H043926
(Santa Clara County
Super. Ct. No. CC591822)

In 2005, Tri Van Pham attacked his roommate with a knife and stabbed him 14 times. Pham was convicted of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) After completing a prison term in 2008, Pham was committed to a state hospital as a mentally disordered offender (MDO). In August 2016, following a court trial on the matter, the trial court extended Pham’s commitment as an MDO under section 2972.
Pham now appeals from the trial court’s order extending his commitment. He contends the evidence was insufficient to support the trial court’s findings because the forensic psychologist for the district attorney submitted a report that was 11 months old.
We conclude sufficient evidence supported the court’s findings. Accordingly, we will affirm the commitment extension order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offense
In 2005, when Pham was 45 years old, he and his roommate were visiting a mutual friend’s home. Pham became angry with his roommate and slashed him in the forehead with a knife. After the victim passed out, friends took him home, where the victim went to bed. When the victim woke up, Pham was standing over him with a knife. The victim attempted to escape, but Pham chased him down and stabbed him 14 times. Pham was later arrested after walking into a bank covered in blood. He said he had been drinking at the time. Pham was convicted of assault with a deadly weapon with the allegation that he personally inflicted great bodily injury on the victim. (§§ 245, subd. (a)(1), 667, 1192.7.)
B. Procedural Background
In 2008, after completing a term in prison, Pham was admitted to the Atascadero State Hospital as a condition of parole under section 2962. He was transferred to Coalinga State Hospital in 2013.
On August 24, 2015, the district attorney filed a petition to compel involuntary treatment, requesting to extend Pham’s commitment to April 21, 2017. The trial court subsequently attempted three times to hold a hearing on the petition, but Pham refused to appear at the hearings.
1. July 7, 2016 Hearing
The court held a fourth and final hearing on July 7, 2016. Pham again refused to appear. Dr. Robert Wagner, a forensic psychologist, testified for the district attorney by videoconference. Dr. Wagner wrote a forensic report on Pham in August 2015. He diagnosed Pham with schizophrenia. Pham reported hearing voices and having paranoid delusions. He exhibited disorganized thoughts. Dr. Wagner opined that Pham understood the court’s role and the attorneys’ roles sufficiently to make a decision whether to waive his right to a jury trial. However, Dr. Wagner testified that Pham had refused to talk with him for the prior two years. Dr. Wagner had changed institutions and could no longer see Pham in person.
Pham’s social worker testified that he spoke with Pham about a month before the hearing and told him it was important to attend the hearing, but Pham adamantly refused to go. Speaking through a Vietnamese interpreter, Pham told his social worker, “I’m not interested in going to court. I don’t want to go to court. And the judge told me I don’t have to go to court.” The social worker tried to explain to Pham that he was legally required to appear regarding his right to a jury trial, but the social worker testified that “because of his disorganized thinking and delusional thinking, I don’t think he fully grasps the meaning of this.”
The court found sufficient evidence that Pham lacked the capacity to make a decision concerning his right to a jury trial. Pham’s counsel then waived Pham’s right to a jury trial on his behalf and the court granted the parties’ request for a court trial.
2. Dr. Wagner’s August 6, 2015 Forensic Report
Dr. Wagner based his report on Pham’s medical record and consultations with Pham’s psychiatrist, psychologist, and hospital staff. Dr. Wagner reported that Pham refused to be interviewed and was not following his treatment plan.
Dr. Wagner diagnosed Pham with schizophrenia. His symptoms included auditory hallucinations, delusions, paranoia, disorganized thinking, agitation, assaultive behavior, poor hygiene, depression, and suicidal ideation. He was first treated psychiatrically in 1990, and he was subsequently hospitalized and medicated repeatedly.
As of May 2015, Pham had been participating in monthly treatment meetings, but he had declined to meet with his social worker. He had not had any acts of physical aggression since October 2014, when he struck a peer in the face and had to be placed in seclusion. He was being medicated involuntarily and was found ineligible for outpatient treatment based on his paranoia, refusals to engage in treatment, and lack of insight into his mental illness.
On August 5, 2015, Pham’s treating psychologist reported that Pham had been “getting along very well” and was designated “Patient of the Month” in July 2015. However, Pham was reluctant to engage in conversation and tended to speak in monosyllabic terms.
On August 6, 2015, a psychiatrist reported that Pham had been involved in a shoving match with another patient, although the psychiatrist believed Pham was defending himself. Pham told the psychiatrist he did not want to leave the hospital. The psychiatrist further reported that Pham had been compliant in taking medication, but that his “insight remains poor, and is minimal at best.”
Dr. Wagner opined that Pham’s mental illness was not in remission, adding: “He appears to maintain the same pattern of psychiatric symptoms that have been foundational to his past offense. His overall presentation is one of an individual who presents as a substantial danger of physical harm to others, as a result of his severe mental disorder.”
Dr. Wagner cited multiple factors increasing the future risk of dangerous behavior by Pham. First, Pham had a history of becoming violent during psychotic episodes. In 2009, Pham had 20 incidents of throwing things and assaulting patients or staff. While in prison, Pham received three Article 115 Rule Violations: for battery on an inmate, for possession of an inmate manufactured weapon, and for battery on a peace officer. Dr. Wagner also cited the “particularly violent” nature of the underlying offense, in which Pham stabbed his roommate 14 times without provocation.
Second, Pham had a history of failing to attend treatment groups, and until recently, he had refused to take his medication voluntarily. Third, Pham lacked insight into his mental illness and did not understand what he needed to do to remain stable. Finally, Pham had a history of drug and alcohol abuse, and he failed to understand the importance of remaining clean and sober for his treatment. Based on these factors, Dr. Wagner concluded Pham met the criteria for continued commitment under section 2972.
3. The Trial Court’s Findings and Commitment Extension Order
The trial court found the petition true beyond a reasonable doubt. The court found Pham had a severe mental disorder that could not be kept in remission without treatment, and that he therefore represented a substantial danger of physical harm to others. Accordingly, the court extended his commitment to April 21, 2017.
II. DISCUSSION
Pham contends the trial court lacked sufficient evidence to support the commitment order. He argues that Dr. Wagner’s report—issued in August 2015—was too old to support the trial court’s findings as of the hearing date on July 7, 2016. The Attorney General contends the evidence was sufficient to support the court’s findings.
A. Legal Principles
“Enacted in 1985, the MDO Act requires that an offender who has been convicted of a specified felony related to a severe mental disorder and who continues to pose a danger to society receive appropriate treatment until the disorder can be kept in remission.” (People v. Harrison (2013) 57 Cal.4th 1211, 1218.) “Commitment as an MDO is not indefinite; instead, ‘[a]n MDO is committed for one-year period[s] and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.’ ” (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1063, quoting People v. McKee (2010) 47 Cal.4th 1172, 1202, disapproved on other grounds by People v. Harrison (2013) 57 Cal.4th 1211.) “[T]he three criteria that must be satisfied for continued treatment relate, not to the past, but to the defendant’s current condition. At an extension proceeding, the questions are: Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others? (§ 2972, subd. (c).) A defendant’s condition a year earlier is relevant but not dispositive of these questions.” (People v. Cobb (2010) 48 Cal.4th 243, 252.)
“In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] ‘ “ ‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. . . . ‘[Citation.]” ’ ” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082, quoting People v. Miller (1994) 25 Cal.App.4th 913, 919.)
B. Sufficient Evidence Supported the Commitment Extension Order
Pham correctly asserts that the issue before the trial court concerned his condition at the time of the hearing. (People v. Cobb, supra, 48 Cal.4th at p. 252.) He argues that it is self-evident that an 11-month-old report cannot support such a contemporaneous finding. On this second point, we are not persuaded. Pham identifies no legal authority—and we are aware of none—supporting the proposition that a commitment extension must be based on a report that is less than eleven months old. The standard for this court is whether a rational trier of fact could have found that Pham is an MDO beyond a reasonable doubt. We find that standard satisfied.
First, Dr. Wagner testified contemporaneously at the hearing and expressed opinions consistent with those set forth in his report. He gave no testimony suggesting that his opinion had changed since the time of the report. In his report, Dr. Wagner cited a number of factors inherent in Pham’s history that supported the report’s conclusions regardless of when it was issued. These factors included Pham’s 10-year history of violence during psychotic episodes, particularly the violent nature of the knife attack against his roommate. Many of the other factors remained largely constant over this period, including his general noncompliance with treatment, and his lack of insight into the nature of his illness or what was required of him to remain stable. The report noted a modest recent improvement in compliance with medication and treatment meetings, but the report also noted a recent physical altercation with another patient. We conclude Dr. Wagner’s report provided sufficient evidence from which a rational trier of fact could find Pham continued to suffer from a severe mental disorder not in remission, and that he continued to present a substantial danger of physical harm to others at the time of the hearing.
We further note that the record contains other evidence in addition to Dr. Wagner’s report and testimony. The trial court was obviously aware that Dr. Wagner’s report was somewhat dated in large part because Pham himself had refused several times to appear at prior hearings on the matter. Pham’s social worker testified that Pham had spoken with him and an interpreter four or five times in the prior two months, during which time Pham repeatedly refused to appear. The social worker opined that Pham did not “fully grasp the meaning of this” due to his delusional and disorganized thinking.
For the reasons above, we conclude sufficient evidence supported the trial court’s findings and we will affirm the order extending Pham’s commitment.
III. DISPOSITION
The order extending Pham’s commitment is affirmed.


_________________________
RUSHING, P.J.





WE CONCUR:






_________________________
PREMO, J.






_________________________
GROVER, J.
















People v. Pham
H043926