Filed 6/1/17 P. v. Bachmeier 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

GEORGE LOUIS BACHMEIER,

Defendant and Appellant.
H043302
(Santa Clara County
Super. Ct. No. 95953)
Defendant George Louis Bachmeier, having previously been found not guilty by reason of insanity and committed to a state hospital, appeals from an order extending his commitment under Penal Code section 1026.5. At the court trial to extend his commitment, the prosecution’s case was based solely on a report by the state hospital where defendant was committed. The court concluded that defendant represents a substantial danger to others because of a mental disorder and extended his term of commitment for two years. (Id., subd. (b)(1) & (8).)
On appeal, defendant contends that, because the trial court merely took judicial notice of the hospital report and did not admit the report into evidence, there is insufficient evidence to support the court’s decision to extend his commitment. To the extent he forfeited an objection to the report, defendant argues that his trial counsel rendered ineffective assistance.
For reasons that we will explain, we will affirm the order for extended commitment.
BACKGROUND
The Petition
In May 2015, the district attorney filed a petition to extend defendant’s term of commitment for two years, from February 11, 2016, to February 11, 2018, pursuant to section 1026.5, subdivision (b). According to the petition, defendant was admitted to Atascadero State Hospital in 1986, after having been found not guilty by reason of insanity of a violation of section 245, subdivision (a), with an enhancement pursuant to section 12022.7. He was transferred to Napa State Hospital and later released on outpatient status. Defendant was eventually re-hospitalized, and his term of commitment has been periodically extended by the court. The petition further alleged that defendant, by reason of a mental disease, defect, or disorder, continues to represent a substantial danger of physical harm to others.
The Report from Napa State Hospital
The medical director of Napa State Hospital filed a report, dated September 8, 2015, with the trial court on October 15, 2015. The report was filed pursuant to section 1026, subdivision (f), which requires the medical director to submit a report to the court at six-month intervals regarding the status and progress of a defendant confined as an inpatient. The record indicates that a copy of the report was provided to the prosecutor and to defense counsel. (See ibid.)
In the report, a staff psychologist from Napa State Hospital recommended that defendant be retained at the hospital for continued treatment, and that defendant did not meet the criteria for outpatient treatment. In support of these opinions, the staff psychologist provided the following information in the report.
Defendant’s primary diagnosis is schizophrenia. His “most prominent symptoms,” which “are chronic in nature and continue to be present,” include paranoid and grandiose delusions. His symptoms “have caused marked impairment in social and occupational functioning and have resulted in psychiatric hospitalization.” Defendant was taking three psychotropic medications, including aripiprazole (Abilify) for psychosis and another medication for psychotic agitation.
The underlying offense, assault with a deadly weapon with great bodily injury, for which defendant was found not guilty by reason of insanity, occurred in late 1983. Defendant went to confront his family about his van and all his belongings being taken away. During an argument with his stepfather, defendant stabbed him in the eye with a small pairing knife, which caused a loss of vision. At the time of the offense, defendant was not taking medication and was experiencing thought disorganization, paranoid delusions, and auditory hallucinations.
Defendant had not been involved in any physical altercation nor had he damaged any property in the past year. However, he continued to make “vague threats demanding his medications not be changed in any way ‘or there will be physical confrontation’ and [he] angrily [told] staff members ‘you shut up; you are not important and thus unable to speak.’ ” His “demeanor is regularly hostile and irritable,” and he “continues to require regular intervention from staff and the structure of a stabilization unit at [Napa State Hospital].”
Defendant had been released under the supervision of a county conditional release program (CONREP) on four occasions between 1990 and 2012. He was eventually readmitted to Napa State Hospital after each release, with the final release lasting only a few days due to significant paranoia, violation of CONREP rules, and treatment noncompliance. “The primary barrier to [defendant’s] success was his inconsistent participation in treatment and pervasive paranoid ideations and ideas of reference.” Defendant “experienced beliefs that he was receiving special messages from the TV and radio informing him about government conspiracies and/or negative intentions of others. He became increasingly isolative, irritable and suspicious. Bizarre behavior such as answering and talking on the phone when it was not ringing, following peers suspiciously and talking to himself were observed by peers and staff. [Defendant] would often become focused on a specific individual (CONREP therapist, roommate, peer, etc[.]). During his last CONREP placement, peers started reporting feeling fearful of [defendant] due to these symptoms.”
Currently, defendant is “isolative” and “minimally engaged in treatment.” He “talks to himself in a manner indicative of experiencing auditory hallucinations, relays paranoid beliefs about there being a secret conspiracy against him and relays grandiose beliefs about him having a ‘special relationship’ with the Supreme Court in which ‘they have already ordered my release[] and you will be informed.’[] He also continues to experience ideas of reference, in which he believes that the TV, phone and radio communicates with him.” “He can be irritable and verbally hostile.”
Defendant “lacks understanding, awareness and appreciation of his current[] symptoms of mental illness,” and he denies that he is currently experiencing any symptoms. He also “does not understand how his symptoms of mental illness relate to his potential for violent acts.” “Historically, when [defendant] is stable and symptom free he is able to . . . identify and describe his diagnosis and associated symptoms. As soon as his symptoms return, he is suddenly unable to relay any self-awareness or observation that he is experiencing symptoms of mental illness. This has posed a significant challenge in his treatment.” Defendant does not believe he needs to be hospitalized or take psychotropic medications. He has indicated that all he needs is a medical marijuana card.
“Although [defendant] takes his medications regularly, he often relays that they are ‘incorrect.’ ” He has intermittently refused to take his medications, stating “ ‘I don’t need it.’ ” Defendant is also “regularly argumentative with his treating psychiatrist(s) demanding that he does not need to take medications and insisting that his medications are not changed.”
The “contributing factors to dangerousness as seen in [defendant’s] . . . offense are: paranoid ideations, ideas of reference, these beliefs being focused on an identifiable individual, lack of insight/awareness into symptoms of mental illness, medication non-compliance, lack of adequate support network, isolation/withdrawal and treatment non-compliance.”
Defendant’s current plans are “ ‘[t]o wait for them to release me as has been ordered.’ ” Defendant “has not been working on the development of a relapse prevention plan nor is he able to articulate any rational or realistic plan to successfully manage his symptoms of mental illness and dangerous behavior if in the community.”
A “CONREP liaison evaluation” was completed in early August 2015. It was determined that defendant was not “ready” because he lacked insight into his mental illness and exhibited threatening behavior towards others. During the interview process, defendant “exhibited signs of anger and aggression towards CONREP and their staff.”
The Pre-Trial Proceedings
A hearing on the petition to extend defendant’s commitment was held in November 2015. Defense counsel appeared by closed circuit television from Napa State Hospital. Defense counsel informed the court that defendant had “filled out a waiver” and that he had refused to appear at the hearing that morning. The prosecutor added that defendant was offered the opportunity to appear at the hearing to either personally waive his right to trial or not waive it, but he had refused to come. The court continued the matter.
The Court Trial
Two additional hearings were held before defendant appeared with counsel by closed circuit television from Napa State Hospital on February 1, 2016. At the February 1, 2016 hearing, the court stated its understanding that defendant intended to waive his right to a trial regarding the petition to extend his commitment.
Defense counsel responded: “Your Honor, he will be waiving his right to a jury trial hearing. But I would like to make a case for a court trial right now. I understand that the report will be admitted into evidence. But I would like to contest it with argument today.” (Italics added.) The court indicated its understanding, and defendant personally confirmed that he was waiving his right to a jury trial and that he was requesting a court trial.
The court indicated that it was proceeding with the trial on the extension petition. The court stated, “Let me note on the record that the Court has received a report from Napa State Hospital dated October 15th, 2015, with regard to [defendant]. And I have reviewed that report in advance.” (Italics added.) Defense counsel responded, “Thank you, Your Honor.” The court continued, “That report recommends that [defendant] be retained for treatment at Napa State Hospital. [¶] My understanding is . . . that you would like to contest that recommendation.” Defense counsel responded affirmatively.
Defense counsel argued that defendant had not been involved in a physical altercation nor damaged property in the last year, and that “vague threats” were defendant’s “worst conduct.” Counsel argued that although the hospital stated that defendant complained about his medication dosage, defendant never refused his medications and had been “medication compliant.”
During the course of his argument, defense counsel asked defendant several questions. Defendant stated that he had been taking Abilify since 2004 and that he found the medication helpful. He denied showing any aggression at the hospital, he asserted that aggression had been directed at him, and he stated that his response was usually to walk away.
The trial court stated that if counsel was going to have defendant testify, defendant should be sworn in. Counsel agreed and defendant was sworn as a witness.
Defendant testified that the last time he had been placed in a five-point restraint was in 2001. He also testified that the last time he had refused medication was around 2001 or 2002. When asked whether he agreed with the diagnosis of schizophrenia, paranoid type, defendant stated that “there have been episodes in my lifetime where that . . . it’s fair to say that I have [¶] . . . [¶] . . . [s]hown those symptoms.” He stated that Abilify had “stabilized” the paranoid symptoms, and that he would continue to take all medications that are prescribed for him if he was released in the community. He clarified, “Not that I want to. But I could.” He further clarified that he “would” take Abilify, and that he also needed other medications to stop the side effects. Defendant testified that he had “been a model patient at Napa State Hospital for some time,” and that he understood his symptoms.
After defense counsel concluded his questioning of defendant, counsel indicated that defendant was available to answer questions by the prosecutor or the court.
On cross-examination by the prosecution, defendant admitted feeling “many times” that he did not need medication. Defendant testified that he would take anything the doctors recommended, and that if he disagreed with a recommendation he would discuss it with the doctor. Defendant denied that he had told the hospital medical staff there would be a physical confrontation if his medications were changed.
The trial court, before asking defendant questions, stated that the court had “received an evaluation from the hospital that is dated September of 2015. And I’m going to take judicial notice of that report that I’ve been given.” (Italics added.) The court proceeded to ask defendant questions based on the report. The court observed that the hospital in its report had stated that defendant had not been developing a release prevention plan, nor was he able to articulate a plan to successfully manage his symptoms of mental illness and dangerous behavior while in the community. The court asked defendant to “explain . . . why they would say that.” Defendant responded that the hospital was “wrong,” and that he had a “wonderful relapse prevention plan . . . of 43 pages” in his locker. When the court asked about the hospital’s approval of the plan, defendant clarified that he was “not saying the hospital has approved it or fully read it.” When the court asked defendant about CONREP, defendant indicated that he did “not intend to go out on CONREP,” and that he “intend[ed] to be released . . . .”
After defense counsel and the prosecutor indicated that they did not have additional questions for defendant, the matter was submitted. The trial court granted the petition to extend defendant’s commitment, and a written order was filed that same day on February 1, 2016. The court found beyond a reasonable doubt that defendant, “by reason of mental disease, defect or disorder, continues to represent a substantial danger of physical harm to others, and continues to be a person described in paragraph (1) of Section 1026.5(b).” The court ordered that defendant’s commitment term extended for two years, to February 11, 2018.
DISCUSSION
A. The Parties’ Contentions
The record reflects that the trial court, after receiving testimony from defendant and taking judicial notice of the September 2015 Napa State Hospital report, which had been previously filed with the court in October 2015 (see § 1026, subd. (f)), determined that defendant represents a substantial danger to others because of a mental disease, defect, or disorder.
On appeal, defendant concedes that the hospital’s report, if admitted into evidence, would constitute sufficient evidence to support the trial court’s judgment. He contends, however, that the report was not admitted into evidence and therefore there is not substantial evidence to support the court’s finding that he was mentally ill and dangerous. He further argues that, although the court could take judicial notice of the existence of the hospital’s report, the court could not take judicial notice of the truth of most of the facts in the report. Because the court could not consider the contents of the report for their truth, defendant contends that there is not substantial evidence to support the court’s decision to extend his term of commitment. Further, to the extent he forfeited an objection to the trial court’s use of the contents of the report, defendant argues that trial counsel rendered ineffective assistance.
The Attorney General contends that defendant’s trial counsel specifically agreed to the court’s consideration of the hospital’s report without the need for an expert witness to testify. By failing to make an objection to the report in the trial court, the Attorney General argues that defendant has forfeited the issue on appeal. The Attorney General also contends that defendant’s own testimony provides substantial evidence to support the trial court’s findings. However, to the extent the trial court erred in considering the report as evidence, the Attorney General contends the matter should be remanded for a new trial. Lastly, the Attorney General argues that defendant fails to establish ineffective assistance of counsel.
B. Analysis
“Under section 1026.5, subdivision (b)(1), a person found [not guilty by reason of insanity] is subject to extended commitments, beyond the maximum period of penal confinement, if ‘by reason of a mental disease, defect, or disorder [the person] represents a substantial danger of physical harm to others.’ ” (People v. Bowers (2009) 169 Cal.App.4th 1442, 1450.) “ ‘ “Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt.” ’ [Citation.] ‘A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5.’ [Citation.]” (Ibid.)
1. The trial court properly considered the content of the hospital’s report
We determine that the trial court properly considered the content of the Napa State Hospital report, and that substantial evidence therefore supports the trial court’s judgment.
The record reflects that the parties agreed, and the court understood, that the prosecution’s case would be submitted on the hospital’s report, without any prosecution witness testifying at trial. Near the outset of the proceeding on February 1, 2016, when defense counsel was explaining defendant’s intent to waive a jury trial and to proceed by court trial, defense counsel stated, “I understand that the report will be admitted into evidence.” (Italics added.) Defense counsel then explained that he wanted to “contest” the report “with argument today.” The trial court indicated its understanding of the procedure and stated, “Let me note on the record that the Court has received a report from Napa State Hospital dated October 15th, 2015, with regard to [defendant]. And I have reviewed that report in advance.” (Italics added.) Defense counsel responded, “Thank you, Your Honor.” (Italics added.) The court continued, “That report recommends that [defendant] be retained for treatment at Napa State Hospital. [¶] My understanding is . . . that you would like to contest that recommendation.” Defense counsel responded affirmatively. Based on this exchange between defense counsel and the trial court, it is apparent that (a) defense counsel knew the prosecution’s case would be submitted on the hospital’s report, (b) defense counsel knew that the court would and did in fact consider the report at trial as evidence, and (c) defense counsel had no objection to the court considering the substance of the report, although counsel intended to challenge the hospital’s recommendation that defendant be retained at the hospital for continued treatment. Although defendant characterizes his trial counsel’s statement about counsel “understand[ing] that the report will be admitted into evidence” as merely “reluctant acceptance of the inevitable” on counsel’s part, the fact remains that defense counsel “underst[oo]d that the report [would] be admitted into evidence” and never objected to the admission of the report into evidence, the court taking judicial notice of the report, or the court considering the content of the report.
In sum, based on the record, it is apparent that in taking judicial notice of the report, the trial court was acknowledging the existence of the report by the hospital. The record further reflects that the court considered the report as evidence in support of the prosecution’s case, based on the parties’ agreement and understanding at the outset of the trial that the court would do so, and without any objection by the parties. The record also reflects that the court considered defendant’s trial testimony in addition to the report, and that the court weighed all of this evidence in reaching the decision to extend defendant’s commitment. Because the record reflects that the court properly considered the hospital’s report as evidence, substantial evidence supports the court’s findings and order in this case.
2. Defendant forfeited the asserted error in taking judicial notice of the report
As we have just explained, the trial court properly considered the contents of the hospital’s report as evidence, based on the parties’ agreement that the prosecution would submit its case based on the report and without any prosecution witness testifying. Even assuming, however, that the court erred by taking judicial notice of the report and/or its contents (see, e.g., Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files”]), we determine that defendant has forfeited the claim of error.
An objection on the ground that a matter is not the proper subject of judicial notice, or that judicial notice may not be used in the manner sought, is forfeited if the objection is not raised below. (Evid. Code, § 353, subd. (a); People v. Woodell (1998) 17 Cal.4th 448, 458; In re Angelia P. (1981) 28 Cal.3d 908, 925-926; In re Rocco M. (1991) 1 Cal.App.4th 814, 819; People v. Rubio (1977) 71 Cal.App.3d 757, 765-766, disapproved on another ground in People v. Freeman (1978) 22 Cal.3d 434, 438-439; Younan v. Caruso (1996) 51 Cal.App.4th 401, 406, fn. 3; see People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 322-323.) In this case, defendant did not raise any objection to the trial court taking judicial notice of the hospital’s report, including its contents. Any objection to the propriety of judicial notice of the report or its contents was therefore forfeited.
3. Ineffective assistance of counsel has not been shown
Defendant contends that his “trial counsel could have had no tactical reason for failing to make any necessary objections.”
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
As we have explained, the record reflects that the parties understood and agreed that the prosecution’s case would be submitted based on the hospital’s report without any witness testifying for the prosecution at trial. Under these circumstances, there was no need or reasonable basis for defense counsel to object to the trial court’s consideration of the content of the report. In addition, defense counsel may have reasonably determined as a matter of sound trial strategy that it was better to agree to the admission of the hospital’s report, rather than risk the presentation of in-court testimony from witnesses (expert and/or lay) whose adverse testimony may have been more damaging to defendant. (See In re Angelia P., supra, 28 Cal.3d at pp. 926-927.) Moreover, given the understanding and agreement of the parties that the prosecution’s case would be submitted based on the hospital’s report, an objection by defense counsel that the content of the report was not the proper subject of judicial notice would have undoubtedly led the prosecution to propose and/or the court to expressly state that it was admitting the report into evidence. In sum, defendant fails to establish that trial counsel’s performance was deficient or that counsel’s deficiencies resulted in prejudice.
DISPOSITION
The order for extended commitment filed February 1, 2016, is affirmed.






___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Bachmeier
H043302