P. v. Trotter

Filed 10/20/06 P. v. Trotter CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Tewanda Trotter was committed to state hospital for a potential maximum sentence of life after she was found not guilty by reason of insanity of second degree murder. She appeals from denial of her petition for conditional release, contending the trial court was arbitrary and capricious in rejecting the uncontroverted evidence that she no longer posed a danger. Finding no abuse of discretion, we affirm.

FACTS

Trotter was diagnosed with paranoid schizophrenia in 1991.

On February 14, 1997, Trotter’s mother, Savanna Gordon, called the police about her daughter. Gordon wanted Trotter evaluated for a Welfare and Institutions Code section 5150 hold because she was refusing to take her medications. The police questioned Trotter about whether she wanted to hurt herself or others. Trotter answered no, and the police determined she was not a danger or gravely disabled. Trotter told the police she would take her medicine if her mother left.

The next morning, Trotter hit a woman at the apartment complex with a large garbage bag. She walked into an unlocked apartment and spat on a man. Trotter tackled a 60-year-old woman in front of the apartments, yelling, “get over there.” Trotter got in a car and sped away. She ran a red light, swerved into the left lane and hit a bicyclist, killing him. Her actions appeared intentional.

Toxicology reports indicated there were no drugs or alcohol in Trotter’s blood.

Trotter told a detective she had not taken her medicine since the previous October or November. Trotter said she had been hearing voices for a few days. The voices told her evil spirits were taking over the world; she thought the man on the bicycle was evil.

Trotter entered a plea of no contest to second degree murder (Pen. Code, § 187), with a deadly or dangerous weapon enhancement (Pen. Code, § 12022. subd. (b)). The trial court found her not guilty by reason of insanity and committed her to a state hospital for a potential maximum term of life.

In 2001, the court denied a petition for release on outpatient status.

Trotter again petitioned for release into the Forensic Conditional Release Program (CONREP). Dr. Mark Grabau, the program director of the Central Valley Conditional Release Program, and Dr. David Kline, staff psychiatrist at Napa State Hospital, testified in support of the petition.

Dr. Grabau testified that in determining whether a patient was suitable for conditional release, they looked at the circumstances of the offense, substance abuse, medication compliance, prior history of violence, behavior prior to the diagnosis of mental illness, personality characteristics, and behavioral controls and dis-controls. Second, they look at how the hospital implemented the treatment plan and whether it was followed. They want to make sure the patient understands the signs and symptoms of mental illness and the early warning signs of decomposition and can tell staff. An acknowledgement of mental illness correlates with medication compliance.

Dr. Grabau outlined the five phases of the outpatient program. The first phase lasts six months to a year. The patient would be in the office daily for treatment, with additional monitoring, including blood tests to ensure medication compliance. With each phase, the monitoring is reduced until the patient is transferred to a community mental health center.

There were no locked facilities in the outpatient program. Patients could, and have, simply walked away. After 90 days, patients could go into the community unsupervised. In the initial period, known as the black-out period, the patient has no contact with the community and may be returned to the state hospital.

Dr. Grabau saw no impediments to treating Trotter beyond what they could monitor and account for. Trotter was not anti-social or a psychopath; psychopathy was the most robust predictor of future violence. He did not use any of the available risk assessment devices to score Trotter; he found them not applicable. Research indicated that more information was not always better in assessing risk; if too many variables were considered, it confounded the ability to make an accurate prediction.

He had reviewed Trotter’s criminal history; it was consistent with her self-reporting. In risk assessment, a stranger killing was a greater cause of concern as it could be more impulsive. He found nothing to indicate Trotter had a preoccupation with religion outside the normal.

He was not aware that Trotter’s fiancé had been released to an outpatient program, but returned to the state hospital. He could not prevent Trotter from marrying or having children. As program director, he had ultimate authority to make the rules and restrictions for any given patient; he controlled their lives.

Dr. Grabau did not see Trotter sign the terms and conditions for conditional release and so could not verify that she understood them. In fact, he recommended release before she signed the terms and conditions.

Dr. Grabau was aware that Trotter had discontinued her medication three times in the past. While he conceded that a history of discontinuing medication presented a risk of decompensation, he thought it was a leap to say it increased the risk of reoffending. In phase one of the program, medication was locked up and the staff dispensed it.

Trotter also had a history of methamphetamine and alcohol use prior to the offense. Dr. Grabau testified drugs and alcohol were readily available at Napa State Hospital and his program tested more than the state hospital.

No specific treatment plan has yet been prepared for Trotter. Dr. Grabau testified an individualized treatment plan could not be made until they met with the patient.

Dr. Kline testified Trotter was a suitable candidate for release and had been for four years. He discussed her history of medications; she had been on Prolixin when she first sought conditional release in 2001. The medication was changed due to side effects, but Dr. Kline kept her on it during that period, despite the involuntary muscle reaction of tardiv dyskinesia, to reassure people that she was taking medication and to make her a better candidate for release. The drug was changed and Trotter developed an allergy to the next drug. Her medication was adjusted and she got back to baseline when she developed cancer and had to undergo chemotherapy. During this period of stress, Trotter remembered the doctors’ orders and did what she was supposed to do. For six years Trotter had respected authority and followed directions.

Trotter was in long-term remission from substance abuse. Dr. Kline never had a concern about her behavior.

Dr. Kline admitted there was a conflict between his role as Trotter’s physician and his role to ensure public safety. He testified it was not important for him to read the incident report; it was duplicated information. He had not reviewed the court transcripts or Trotter’s interview with the detective. As to her criminal history, the murder overwhelmed everything else. Dr. Kline testified he did not always read the reports he signed; he had not read the report on Trotter.

Dr. Kline testified Trotter suffered from a combined mental disorder of paranoid schizophrenia and an affective disorder, as well as a substance abuse disorder. She killed to try to make the world better. Because she had killed before, she was more likely to do it again.

Trotter had a history of stopping medication; she had stopped due to side effects, interference with her relationship with a boyfriend or her job, and because she felt well and thought she did not need it. If she stopped her medication, she had a greater chance of having episodes. Illegal drugs could cause a rapid decompensation and exaggerate the symptoms of mental illness.

Trotter was deeply religious. No one at Napa State Hospital had discussed with her the connection between religious issues and her mental illness. When asked if he had discussed command delusions, or orders from God to do things, Dr. Kline replied, “You can’t talk to people about things that are not happening.”

Sexual relationships were discouraged, but permitted, at Napa State Hospital. Trotter was engaged to a man she had worked with at the beauty shop and they were sexually active. Her fiancé had been discharged from the hospital, but had been returned. He was currently at Patton State Hospital.

The question of a possible pregnancy was a complex one. Trotter wanted children, but pregnancy might cause interactions with her medication. The cancer treatment may have damaged her reproductive capability. If Trotter became pregnant, one option was to hospitalize her. There was a greater risk of another episode if she became pregnant.

The trial court denied the application for conditional release. It found Dr. Kline’s testimony highly questionable. Dr. Kline had a serious and personal interest in Trotter being released; he kept her on Prolixin despite irreversible physical side effects because he wanted her in outpatient treatment. He had not read her report, although he signed it. The court found insufficient consideration of Trotter’s offense and criminal history. Dr. Kline did not read the interview with the detective, which included many religious delusions; and he did not think her prior assault was important. The court believed there was insufficient consideration of the effect of command delusions and religious beliefs; the court wondered how Trotter was supposed to recognize if her religious beliefs caused problems when no one ever spoke to her about them. The record was devoid of dealing with the religion issue. Further, relationships could be a stressor and Trotter wanted to get pregnant. Dr. Kline had not discussed Trotter’s aggressive sexual approaches to patients with her.

The court found Dr. Grabau credible, but he had a commitment to get Trotter into outpatient care that caused the court concern. The terms and conditions had several blanks in them; there was no appendix or individualized program. There was no evidence the specifics had been discussed with Trotter and the court was concerned whether she understood them.

In short, the court found the expert witnesses questionable due to their bias, their lack of recollection, and their rejection of facts relating to Trotter’s crime and criminal history.DISCUSSION

Upon a finding that defendant was insane at the time she committed the offense, the trial court may commit defendant to a state hospital. (Pen. Code, § 1026, subd. (a).) Following such commitment, a person may be released upon (1) restoration of sanity pursuant to Penal Code section 1026.2, (2) upon expiration of the maximum term of commitment, or (3) upon approval of outpatient status under the provisions of Penal Code section 1600 et seq. (People v. Sword (1994) 29 Cal.App.4th 614, 620.) Under the last procedure, a defendant may be released on outpatient status upon the recommendation of the director of the state hospital and the community program director if the court approves after a hearing. (Pen. Code, § 1603.)

The trial court must determine whether the defendant “would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under the supervision and treatment in the community.” (Pen. Code, § 1026.2, subd. (e.) The “defendant has the burden of proving, by a preponderance of the evidence, that he is either no longer mentally ill or not dangerous.” (People v. Sword, supra, 29 Cal.App.4th at p. 624.)

The decision to release a defendant from a state hospital is not solely a medical or expert decision. The court applies a community standard to the release decision; it does not simply rubber-stamp the recommendations of the doctors and community release program staff experts. (People v. Sword, supra, 29 Cal.App.4th at p. 628.) The recommendations are prerequisites for a hearing, but the trial court has discretion to approve or disapprove the recommendations. (Ibid.)

Orders denying outpatient status are reviewed under an abuse of discretions standard. (People v. Sword, supra, 29 Cal.App.4th at p. 619, fn. 2; People v. Henderson (1986) 187 Cal.App.3d 1263, 1267-1268.) “Under that standard, it is not sufficient to show facts affording an opportunity for a difference of opinion. [Citation.]” (People v. Cross (2005) 127 Cal.App.4th 63, 73.) “Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]” (People v. Henderson, supra, at p. 1268.)

Trotter contends the trial court’s decision was not based on reliable evidence; the court ignored the evidence she was not a danger. There was no evidence Trotter was still delusional; instead, the evidence showed she was cooperative and compliant. There was no evidence she might walk away from the outpatient facility and no basis for concern that she would mask her symptoms, particularly since CONREP staff had more training in mental health than the police. Nor was there any evidence Trotter would resume drug abuse if released. Trotter contends the court’s decision was arbitrary and capricious.

We find no abuse of discretion. It is not an abuse of discretion to deny an application for release where there is no expert testimony supporting the conclusion that defendant is dangerous because the trial court may reject the validity of the expert opinion presented. (People v. Sword, supra, 29 Cal.App.4th at p. 630.) The question is whether the trial court relied on proper factors in disregarding the expert opinions and whether these factors have support in the record. (Id. at pp. 626-627.)

In Sword, the trial court disregarded the expert opinion that defendant was no longer dangerous for five reasons. (People v. Sword, supra, 29 Cal.App.4th at p. 629.) The court found the experts had a vested interest in their prior recommendations; the issue of whether defendant’s episodes came on gradually or suddenly was not adequately explored; the trial court was concerned with defendant’s ability to recognize signs of the illness and take the proper medication; a specific treatment plan had not been identified; and there was a “big gap” in the doctors’ failure to examine defendant’s religious beliefs and whether he had command delusions. (Ibid.) These reasons were legitimate and supported the trial court’s determination. (Id. at p. 630.)

Many of the same reasons apply here. The court found Drs. Kline and Grabau had a commitment to getting Trotter into outpatient treatment that clouded their judgment. This was particularly true of Dr. Kline, who kept Trotter on medication, despite physical side effects, to increase her chance of release, and showed a surprising disregard, almost disdain, for information about Trotter’s dangerousness that challenged his opinion. He had not read a transcript of Trotter’s interview after the killing or her mother’s description of Trotter’s behavior the four days before and saw no reason such information would be helpful. In determining whether release is appropriate, the trial court is required to “consider the circumstances and nature of the criminal offense leading to the commitment and shall consider the person’s prior criminal history.” (Pen. Code, § 1604, subd. (c).)

The court had a legitimate concern whether Trotter would continue to take her medication, particularly in light of her previous discontinuances. She had stopped because the medication interfered with relationships or work, reasons that were likely to recur on outpatient release.

The statutory scheme for outpatient release requires “the recommended plan for outpatient supervision and treatment. The plan shall set forth specific terms and conditions to be followed during outpatient status.” (Pen. Code, § 1604, subd. (b).) The court was properly concerned that not only was there no specific treatment plan, but there was no evidence that Trotter understood the terms and conditions for release. Indeed, Dr. Grabau recommended release before Trotter had been told of the terms and conditions.

The record indicated at the time of the offense Trotter was having delusions that were religious in nature. For example, she described her assaults as attempts to knock evil spirits out of people and told her mother her “heavenly mother” told her she did not need to take her medicine. As was the case in Sword, the experts gave insufficient consideration to the connection between Trotter’s religious beliefs and her mental illness. (People v. Sword, supra, 29 Cal.App.4th 614, 629.)

Finally, the doctors admitted relationships could be stressful, and potential problems were foreshadowed. Trotter was engaged, wanted to get pregnant, and had been sexually aggressive at the hospital.

Trotter relies on People v. Cross, supra, 127 Cal.App.4th 63 to show an abuse of discretion. The trial court found Cross distinguishable and so do we. In Cross, the state hospital recommended outpatient status for an insanity acquitee who had stabbed another man. The recommendation was based in part on his age, 79, and his fragile physical status, as well as that the placement would be a locked facility staffed with licensed nurses. (Id. at pp. 69, 70.) The court denied the application for release, noting defendant still suffered from mental illness. The reviewing court found an abuse of discretion. The trial court identified no deficiencies in the experts’ opinions and offered no basis to reject them. (Id. at p. 74.) The persistence of defendant’s mental illness was not a sufficient reason; the undisputed evidence was that he would not be dangerous if he took his medicine, particularly in light of his age and physical condition. Further, the proposed placement was a locked facility, not an out patient program. (Ibid.)

Here, by contrast, the trial court did identify several deficiencies in the experts’ opinions that raised concerns about their judgment. Further, the mitigating factors of old age, frailty, and a secure facility are not present here. Because the trial court provided legitimate reasons that were supported by the record for denying the application for release, we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

CANTIL-SAKAUYE , J.

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