Filed 4/27/18 P. v. Ramirez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH ADALBERTO RAMIREZ,

Defendant and Appellant.
D072061



(Super. Ct. No. SCS240623)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Joseph Adalberto Ramirez appeals from a postjudgment order revoking his placement in a conditional release program (CONREP) and recommitting him to a state hospital. (Pen. Code, § 1608.) He contends we must reverse the order because (1) the report submitted by the CONREP requesting the revocation was unreliable; (2) the CONREP violated the revocation procedures in section 1610 in multiple respects; (3) the trial court relied on case-specific hearsay to make the revocation decision in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (4) the revocation decision is not supported by substantial evidence; and (5) the revocation decision violated federal and state constitutional due process requirements.
We conclude the first three contentions were forfeited and Ramirez has not established the forfeitures were the result of the ineffectiveness of his trial counsel. We further conclude Ramirez has not established the CONREP report was unreliable, the CONREP violated the revocation procedures in section 1610, or the court violated Sanchez, supra, 63 Cal.4th 665. Finally, we conclude there is substantial evidence to support the revocation decision and Ramirez has not established any violation of federal and state constitutional due process requirements. We, therefore, affirm the order.
II
BACKGROUND
A
Ramirez used a piece of broken glass to make deep cuts into the forearms of one of his children, saying he and his children were going to see Jesus. About a week before the incident, Ramirez became very interested in religion and was baptized. Beginning two days before the incident, Ramirez began telling the children's mother he was scared something evil was out to get him. They called and spoke with a priest at a nearby church. The priest thought there was something inside Ramirez and Ramirez needed an exorcism. Ramirez and the children's mother arranged for someone to come and bless their home the next day. They then went home and encountered a person they had previously tried to help, but who they now thought had brought evil into their home. Consequently, they went to the church and spoke with the priest again. This time the priest referred Ramirez to a mental health counselor.
On the day of the incident, they planned to drop their children off at an extended family member's home and then go to a mental health hospital to have Ramirez evaluated. However, when they arrived at the extended family member's home, Ramirez abandoned the plan and they drove away.
Ramirez was scared and crying. He started saying "I'm the one that they want, they're following me and they're using him." He thought every black car he saw was the devil trying to follow him, which prompted him to run through red lights and roll through stop signs to get away.
Ramirez decided he wanted to visit his uncle's grave. He stopped at a market and bought some sangria, snack bars, candles, and other items. He then drove to the cemetery and stopped at his uncle's gravesite. When he saw the cemetery's security guard, he said, "Oh, he's the devil."
Once at the gravesite, Ramirez placed a blanket on the ground and laid out the things he purchased at the market. At some point one of the candles fell over and broke. When his children and their mother joined him, he opened up a snack bar and made everyone take a bite, saying, "Bread." He then made everyone take a drink of water and sangria, saying, "The blood of Christ." He told them this was their last supper.
The children's mother asked him if something bad was going to happen right then. Ramirez said, "Yeah." She said, "Let's go" and he said, "Okay." Before they left, he removed her shirt from her body because he thought the shirt's red color was attracting the devil and making evil follow him. He gave her his white shirt to wear instead. His shirt had blood stains on it because at some point after the candle broke he cut his forearms trying to kill himself.
They headed back to the car, but before they got in, he grabbed the children and started saying he was Jose, son of Jesus. She tried to pull the children away from him, but he held onto them tightly and accused her of being the enemy or the devil. She then ran away screaming and got help.
B
Ramirez pleaded guilty to attempted murder and admitted he inflicted great bodily injury on the victim and personally used a deadly and dangerous weapon. The parties stipulated to a finding he was not guilty by reason of insanity. The court ordered him committed to a state hospital under section 1026 until he regained his sanity or completed his maximum term of confinement, which was 13 years less 447 days' credit for time served.
C
Approximately three years after Ramirez's commitment, on the recommendation of a state hospital psychiatrist, a court-appointed psychiatrist, and a court-appointed psychologist, the court ordered him placed in the CONREP over the CONREP's objection. The court stated it expected the CONREP to strictly and intensively monitor him, and the court informed him he could be returned to the state hospital if he did not comply with the CONREP.
D
Approximately five months after Ramirez's placement in the CONREP, the CONREP submitted a report to the court. The report stated Ramirez had been returned to the state hospital and requested revocation of Ramirez's outpatient status. The court set a revocation hearing and appointed two psychologists to evaluate Ramirez.
1
At the revocation hearing, the parties stipulated the court could read and consider the CONREP report requesting revocation of Ramirez's outpatient status and the reports of the two psychologists who evaluated him for the hearing.
a
The CONREP report indicated Ramirez was not taking any prescribed psychotropic medication when he was admitted to the state hospital. About 10 months after his admission, he began taking psychotropic medication and took it for about five months before he began refusing it. He has not taken any psychotropic medication since then.
During the transition period after Ramirez's placement in the CONREP, he remained psychiatrically stable, cooperated with the program's rules, engaged in treatment, and participated in individual and group therapy. Although he did not have any formal rule violations, his adherence to the program's rules was superficial and selective. At one point, he appeared to have made an impermissible, indirect attempt to contact the victim via a letter to other family members.
After Ramirez completed the transition period and was placed in the community, he repeatedly violated the CONREP's rules, including gambling with his peers for money, violating curfew, and attending unauthorized activities, which caused him to be absent without leave for a period of time. When confronted with the violations, he claimed confusion or lack of knowledge about the rules.
Additionally, during a routine room search, staff found contraband and unusual items in Ramirez's room. The items included a large bag of clothing tags, wooden pencils soaking in a bottle of mouthwash, multiple notebooks containing extremely detailed accounts of his daily schedule, lists of random items, miscellaneous charger cords, super glue, sharp tools, and a photo album of pictures of female buttocks. When asked about the items, he explained the clothing tags had special meaning to him because he was unable to wear his own clothing at the state hospital, he was soaking the pencils to make prison-style mechanical pencils, and he kept detailed to-do lists and logs to help him stay on track and not miss any signs of psychiatric decompensation. Although he did not feel any of the items were unusual or inappropriate, the psychologist who prepared the report believed they indicated the presence of anxiety and possible obsessive-compulsive tendencies. The clinical implications of the items was never explored because most of Ramirez's subsequent therapy sessions focused on his preoccupation with his clothing allowance and personal items or with his dissatisfaction with the CONREP. Ramirez was also unwilling to cooperate with his forensic clinician's efforts to outline a course of treatment to restore him to sanity.
Two weeks before the CONREP sought revocation of Ramirez's outpatient status, the CONREP learned he had manipulated a peer into allowing him to use the peer's cell phone. With the peer's cell phone, he searched his own social media account and the accounts of two females, one of whom lived in the area and was the sister of his former jail cellmate. A forensic clinician confronted him about the conduct and asked him for a list of his social media accounts, e-mails, and passwords. He admitted the conduct, but repeatedly declined to provide the requested information even after the CONREP explained it needed the information to effectively supervise him and the failure to provide the information could result in his rehospitalization. When he persisted in his refusal to provide the requested information, the CONREP returned him to the state hospital indicating his demonstrated lack of amenability to supervision and treatment elevated his risk of dangerousness and rendered him unable to be safely and effectively supervised in the community.
b
The first court-appointed psychologist who evaluated Ramirez believed he had a severe mental disorder, but the disorder was in remission. The psychologist also believed he did not represent a substantial danger of physical harm to others and his difficulty following some of the CONREP rules were best handled as a treatment issue in conjunction with the loss of program privileges, as needed.
c
The second court-appointed psychologist who evaluated Ramirez also believed he had a severe mental disorder, but he was psychiatrically stable and was not manifesting overt symptoms of psychosis. Nonetheless, the psychologist believed his "noncompliance with various forms of treatment, attempts to guide his own treatment, resistance to directives by clinical staff, agitation as a result of feedback, manipulation of a peer, and his negative attitude towards the CONREP program indicate that he is not amenable to the psychosocial component of community outpatient treatment." The psychologist further believed, "[w]ithout [his] full acceptance of the CONREP supervision and commitment to the treatment offered by the program, his risk of dangerousness is elevated" and "he cannot be effectively supervised in the community." Consequently, the psychologist recommended he be returned to the state hospital.
2
After considering the reports and the parties' arguments, the court revoked Ramirez's outpatient status and ordered him recommitted to the state hospital. The court found he violated the terms of his outpatient placement by being absent without authorization on two occasions, gambling, violating curfew, asking a peer to check social media accounts, refusing to allow the CONREP staff to access the accounts, and possessing contraband items.
III
DISCUSSION
A
"A person committed to a state hospital after a verdict of not guilty by reason of insanity may apply for conditional release after a period of 180 days from the date of the order of commitment. [Citations.] Subdivision (e) of [section 1026.2] establishes a two-step procedure for processing such an application. First, the court holds a hearing to determine whether the applicant 'would be a danger to the health and safety of others, due to mental defect, disease or disorder, if under supervision and treatment in the community.' If the court finds no impediment, it shall order the person to be placed in a local outpatient program for a period of one year. At the end of the year, the court shall conduct a trial 'to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.' The court may not set the trial before the person has completed a year of outpatient treatment unless the program director recommends an earlier release." (People v. Beck (1996) 47 Cal.App.4th 1676, 1681 (Beck).)
Before a person's placement in the outpatient program may be revoked, the prosecution must establish by a preponderance of the evidence the person requires (1) extended inpatient treatment or (2) refuses to accept further outpatient treatment and supervision. (§ 1608; People v. DeGuzman (1995) 33 Cal.App.4th 414, 419 (DeGuzman); In re McPherson (1985) 176 Cal.App.3d 332, 339–340 (McPherson).) We review a court order revoking the person's outpatient status for abuse of discretion. (See People v. Henderson (1986) 187 Cal.App.3d 1263, 1267–1268.)
B
The CONREP report requesting revocation of Ramirez's outpatient status was submitted under a signature block stylized as follows:
"Respectfully submitted,

"[Name], Psy.D.
"Community Program Director (PC 1605)
"[CONREP]

"By:
"[Signature]
"[Name], Psy.D.
"Forensic Clinician/Waivered Psychologist
"[Forensic] Community Treatment Program
"[CONREP]

"Reviewed and Approved by:

"[Signature]
"[Name], Psy.D.
"Clinical Supervisor/Director of Evaluations
"[Forensic] Community Treatment Program
"[CONREP]"

Ramirez contends the CONREP report was unreliable and warrants reversal of the judgment because the community program director, whose name appears first in the signature block, purportedly has a website advocating hypnotic past life regression therapy. To support this contention, Ramirez filed a companion motion requesting we take judicial notice of the community program director's website.
We conclude Ramirez forfeited this issue because he did not object to the CONREP report on this basis below. (People v. Sivongxxay (2017) 3 Cal.5th 151, 197.) To the contrary, he stipulated the court could read and consider the CONREP report in reaching its decision.
Although Ramirez acknowledges the forfeiture, he contends the issue is cognizable on appeal because his trial counsel's failure to raise the issue below constituted ineffective assistance of counsel. However, on direct appeal, we may not reverse a court order for ineffective assistance of counsel unless there is affirmative evidence in the record showing counsel had no rational tactical purpose for counsel's claimed action or omission. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Ramirez has not identified any such affirmative evidence in this record.
Further, the style of the signature block used on the CONREP report is typical of those this court sees from agency litigants, including public defenders' offices, district attorneys' offices, and the attorney general's office. Although the signature block may support an inference the forensic clinician who signed the report is a designee of the community program director, the signature block does not, by itself, support an inference the community program director had any direct role in Ramirez's treatment, supervision, or the decision to return him to the state hospital and seek revocation of his outpatient status. (See Pen. Code, § 1605, subd. (c) [the community program director may delegate to a designee the responsibility for supervising the treatment of a person placed in the CONREP].)
There is also no other evidence in the record to support such an inference. The CONREP report was written based primarily on the interactions, observations, investigations, and recommendations of the psychologist who signed it. The report does not mention or allude to any interactions, observations, investigations, or recommendations by the community program director. Moreover, there is no evidence in the record indicating Ramirez received, was recommended to receive, or declined to receive hypnotic past life regression therapy. There is also no evidence his receipt of or failure to receive this therapy played any role in the CONREP's decision to return him to the state hospital and seek revocation of his outpatient status. Accordingly, evidence of the community program director's purported advocacy of this therapy is irrelevant and would have been inadmissible in the revocation hearing even if Ramirez's trial counsel had attempted to raise the point. (Evid. Code, § 350.)
C
Ramirez next contends the CONREP violated section 1610 by (1) taking him into custody prior to filing the revocation request, (2) failing to demonstrate he represented an imminent risk of harm before returning him to the state hospital, and (3) not providing him with ongoing treatment from the time he was returned to the state hospital through the revocation proceeding. As with the prior issue, Ramirez has forfeited this issue because he did not raise it below. (People v. Sivongxxay, supra, 3 Cal.5th at p. 197.) Also, as with the prior issue, Ramirez has not identified any affirmative evidence in the record from which we could conclude his trial counsel's failure to preserve the issue for appeal constituted ineffective assistance of counsel rather than a rational tactical choice. (People v. Mickel, supra, 2 Cal.5th at p. 198.) To the extent there is evidence in the record on this point, it does not show a violation of section 1610 occurred.
As relevant to this appeal, section 1610 provides: "Upon the filing of a request for revocation under Section [1608] and pending the court's decision on revocation, the person subject to revocation may be confined in a facility designated by the community program director when it is the opinion of that director that the person will now be a danger to self or to another while on outpatient status and that to delay confinement until the revocation hearing would pose an imminent risk of harm to the person or to another." (§ 1610, subd. (a).) "The facility ... may be a state hospital, ... a county jail, or any other appropriate facility, so long as the facility can continue the person's program of treatment, provide adequate security, and minimize interference with the person's program of treatment." (§ 1610, subd. (b).) "The facility ... shall continue the patient's program of treatment, shall provide adequate security so as to ensure both the safety of the person and the safety of others in the facility, and shall, to the extent possible, minimize interference with the person's program of treatment." (§ 1610, subd. (a).)
Here, the record shows on the day the CONREP returned Ramirez to the state hospital, the CONREP sent a letter notifying the court of Ramirez's rehospitalization. The letter indicated the rehospitalization was pursuant to sections 1608 and 1610, relating to the revocation of outpatient status. The letter also informed the court the reasons for the rehospitalization were Ramirez's repeated rule violations and his verbalized unwillingness to comply with the CONREP supervision requirements. The letter provided examples of the violative conduct and the efforts to redress it. The letter concluded by stating Ramirez could no longer be safely supervised in the community and the CONREP would be generating a more comprehensive report of its reasons for returning Ramirez to the state hospital and seeking revocation of his outpatient status.
Eight days later, the CONREP sent the court the comprehensive report. The report detailed the conduct by Ramirez prompting the revocation request. The report also indicated Ramirez had an elevated risk of dangerousness and could no longer be safely and effectively supervised in the community because he was not amenable to outpatient treatment or supervision. Pending the court's decision on revocation, the CONREP returned Ramirez to the same state hospital that had housed and treated him before the court ordered him placed in the CONREP. These actions by the CONREP substantially complied with the requirements in section 1610.
Although Ramirez contends the CONREP did not comply with the requirements in section 1610 applicable when the CONREP requests confinement in a county jail, this argument ignores the fact the CONREP made no such request in this case. Rather, the record shows the CONREP returned Ramirez to a state hospital and the court subsequently ordered him to be brought to the county jail at the request of his trial counsel. Accordingly, Ramirez has not established the CONREP violated section 1610 in its handling of the revocation request.
D
Ramirez additionally contends the court impermissibly considered case-specific hearsay contained in the CONREP report and the reports of the two court-appointed psychologists who evaluated Ramirez for the revocation hearing. (Sanchez, supra, 63 Cal.4th at pp. 676, 686 [an expert's statements relating and treating case-specific facts as true are hearsay unless the expert has percipient knowledge of the facts].) Once again, Ramirez has forfeited this issue because he did not raise it below. (Evid. Code, § 353; People v. Seumanu (2015) 61 Cal.4th 1293, 1328 & fn. 7.) To the contrary, the record shows Ramirez's trial counsel stipulated without qualification to the court reading and considering the reports. (Id., at p. 1328 [a party who enters into a voluntary stipulation is generally precluded from challenging the stipulation on appeal]; see People v. Russel (1968) 69 Cal.2d 187, 199, fn. 12 [hearsay is admissible if it falls within an exception to the hearsay rule or is admitted by stipulation], superseded by statute on another point as stated in People v. Anderson (2001) 25 Cal.4th 543, 575.)
Ramirez has also not identified any affirmative evidence in the record from which we could conclude his trial counsel's failure to preserve the issue for appeal constituted ineffective assistance of counsel rather than a rational tactical choice. (People v. Mickel, supra, 2 Cal.5th at p. 198.) Moreover, we can readily conceive of three rational tactical reasons for counsel's stipulation. First, most of the case-specific facts contained in the reports were covered by an exception to the hearsay rule because they were admitted by Ramirez (i.e., the facts of Ramirez's crime and the conduct prompting the CONREP's request for revocation). (Evid. Code, § 1220.) Second, most of the remaining case-specific facts were favorable to Ramirez (i.e., his explanations for his conduct). Stipulating to the court reading and considering the reports eliminated the need for Ramirez to testify and be cross-examined to get these facts before the court. Finally, one of the psychologist's reports was highly favorable to Ramirez. Stipulating to the court reading and considering the reports eliminated the possibility the psychologist's opinions would be undermined by the prosecution's cross-examination of the psychologist. Accordingly, we conclude Ramirez has not established the court's consideration of the case-specific facts contained in the reports warrants reversal of the court's revocation order.
E
Ramirez further contends the court's order revoking his outpatient status is not supported by substantial evidence. " 'When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.' " (People v. Flores (2006) 144 Cal.App.4th 625, 632.)
As previously stated, a court may revoke a person's outpatient status under section 1608 if the person refuses to accept further outpatient treatment and supervision. (DeGuzman, supra, 33 Cal.App.4th at p. 420; In re McPherson, supra, 176 Cal.App.3d at pp. 339–340.) In this case, the evidence in the record shows Ramirez had ongoing difficulty complying with the CONREP's rules despite knowing he would be subject to close supervision on outpatient status and despite efforts by the CONREP's staff to counsel and assist him in his compliance. In addition, he adamantly refused to provide the CONREP with information about his social media accounts and passwords despite knowing his failure to provide the information would result in his return to the state hospital. The psychologist who authored the CONREP report and one of the court-appointed psychologists both believed his recalcitrance demonstrated a lack of amenability to outpatient treatment and supervision, elevated his risk of dangerousness, and precluded him from being safely treated and supervised in the community.
Although Ramirez contends there is no evidence his conduct which prompted the CONREP revocation request actually violated any of the CONREP rules, the record is to the contrary. As part of the court's initial decision to place Ramirez into the CONREP, the court approved and Ramirez agreed to comply with numerous terms and conditions. Among these terms and conditions, Ramirez agreed to:
1. Fully cooperate with the CONREP staff treating him;
2. Not have any contact or communication with the victim or the victim's family without the prior approval of his outpatient supervisor;
3. Not have any contact with, visit, or pursue relationships with a family member, friend, acquaintance, or romantic partner without prior written approval from his outpatient supervisor;
4. Not use the internet for any purpose without the prior written approval from his outpatient supervisor;
5. Before acting, obtain clarification of any rules about which he was uncertain or had questions;
6. Immediately notify his outpatient supervisor of any terms and conditions he violated or suspected he violated, whether intentionally or inadvertently; and
7. Not engage in any form of gambling.
The record shows Ramirez engaged in conduct that either directly violated these terms and conditions or appeared to violate them. As to the terms and conditions he appeared to violate, principally relating to the reasons for his unauthorized internet use, he refused to cooperate with the CONREP's efforts to substantiate or disprove the violations by repeatedly declining to provide the CONREP with his social media accounts and passwords. This evidence amply supports the court's decision to revoke his outpatient status for effectively refusing to accept outpatient treatment and supervision. (See DeGuzman, supra, 33 Cal.App.4th at p. 420.)
F
Finally, Ramirez contends his return to the state hospital violated his federal and state constitutional due process rights because the state statutory scheme governing his commitment provides no timely method for him to obtain an unconditional release. More particularly, he contends (1) he may only be confined in a mental institution if he is mentally ill and dangerous; (2) there is no evidence he is currently mentally ill or dangerous; and (3) he must wait an undue length of time (six months to be eligible to apply for the CONREP and one year of participating in the CONREP) before he may have a trial to determine whether his sanity has been restored. (See Pen. Code, § 1026.2, subds. (d) & (e).)
While we agree Ramirez's continued commitment requires he be both mentally ill and dangerous (see Kansas v. Hendricks (1997) 521 U.S. 346, 358 [117 S.Ct. 2072, 138 L.Ed.2d 501]; Foucha v. Louisiana (1992) 504 U.S. 71, 77 [112 S.Ct. 1780, 118 L.Ed.2d 437]), we disagree there is no evidence of such in the record. Both court-appointed psychologists who evaluated him for the revocation hearing believed he has a severe mental disorder, although the disorder was in remission at the time of the hearing. The presence of a currently diagnosed mental disorder meant the revocation proceeding turned on whether he presented a danger to the community. (People v. Bartsch, supra, 167 Cal.App.4th at pp. 902–903.) On this point, the psychologist who authored the CONREP report and one of the court-appointed psychologists both believed Ramirez's resistance to the CONREP's outpatient supervision elevated his risk of dangerousness and prevented him from being safely treated and supervised in the community.
We also disagree with Ramirez's contention the statutory scheme requires him to wait an undue length of time before he may have a restoration of sanity trial. As explained in Beck, supra, 47 Cal.App.4th 1676, there is strong public interest in avoiding the premature release of persons, like Ramirez, who have a demonstrated history of mental illness and criminal activity. (Id. at pp. 1682–1685.) Requiring such persons to complete the CONREP before they are unconditionally discharged into the community is a reasonable way to further that interest. (Ibid.) Accordingly, Ramirez has not established his continued commitment violates any substantive or procedural due process requirements.
IV
DISPOSITION
The order is affirmed.



MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



IRION, J.