Opinion
A156278
11-14-2019
THE PEOPLE, Plaintiff and Respondent, v. CHARLES JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 948224MH)
Appellant Charles Johnson appeals from the trial court's order extending his involuntary commitment at Napa State Hospital as a mentally disordered offender (MDO) for one year, until December 2019. He contends the matter must be remanded to the trial court because the record of his commitment hearing affirmatively reveals that the court misunderstood and misapplied the governing legal standard. We shall affirm the order extending appellant's commitment.
PROCEDURAL BACKGROUND
On February 3, 1990, appellant committed assault with force resulting in great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following nine years in prison, with five failed attempts at parole to the community, appellant was paroled to Atascadero State Hospital on June 22, 1999. In March 2000, he was classified as an MDO and committed to Napa State Hospital. In May 2003, appellant was released to the Conditional Release Program (CONREP). In 2004, 2005, 2006, and 2007, the court renewed his outpatient status and ordered continued CONREP supervision.
All further statutory references are to the Penal Code unless otherwise indicated.
On January 6, 2008, appellant went absent without leave (AWOL) from his housing facility, which led the court to revoke his outpatient status and issue a bench warrant. On February 1, police apprehended appellant and subsequently returned him to Napa State Hospital.
On May 8, 2008, the court reinstated appellant's outpatient status. The court then renewed his outpatient status under CONREP supervision in 2009, 2010, 2011, 2012, and 2013. On January 18, 2014, appellant again went AWOL from the CONREP program, and the court revoked his outpatient status and issued a bench warrant. On March 14, the police apprehended appellant and returned him to Napa State Hospital. On January 21, 2015, following a bench trial, the court found appellant to be an MDO and committed him to Napa State Hospital.
On November 10, 2015, the Alameda County District Attorney petitioned to extend appellant's commitment for one year, until December 3, 2016. The court granted the petition and ordered him committed for an additional year. On August 30, 2016, appellant waived trial and stipulated to an additional one-year commitment, until December 3, 2017. On December 8, 2017, following a court trial, the court granted the district attorney's petition to extend appellant's commitment until December 3, 2018.
On July 11, 2018, the district attorney filed a petition to extend appellant's commitment for an additional year, until December 3, 2019. Appellant waived his right to a jury trial, and on December 20, 2018, following a court trial, the court granted the petition and ordered appellant's MDO commitment extended for one year, until December 3, 2019.
On January 15, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Appellant's commitment extension trial took place in December 2018, when appellant was 68 years old.
Dr. Robert Picker, appellant's treating psychiatrist, testified as an expert qualified to opine regarding whether a person meets the criteria for an MDO commitment extension. Appellant had been his patient since March 2018. Dr. Picker had diagnosed appellant with "schizophrenia continuous," i.e., schizophrenia not yet in remission, because his illness was only partially controlled. Appellant was cooperative in taking his antipsychotic medication, haloperidol, which controlled his illness enough so that he was not violent in the hospital. "[B]ut should he stop taking this outside of the hospital," Dr. Picker "would be very concerned about recurrence of violence."
Dr. Picker opined that appellant represented a substantial danger of physical harm to others as a result of his schizophrenia. Appellant had not been violent in the hospital and Dr. Picker believed he was at low risk of dangerousness while in the hospital. If appellant were released from the hospital, however, Dr. Picker believed there were many factors that would raise his level of dangerousness. These included his past assault conviction and failure to acknowledge ever committing a crime or being in prison, which indicated the persistence of delusional thinking, which he defined as "a fixed irrational belief that is not amenable to the facts . . . ." Dr. Picker was concerned that, should appellant relapse in his illness and become psychotic, he would be at great risk for violence.
Another factor that Dr. Picker believed would increase appellant's risk of dangerousness outside of the hospital was appellant's failure to follow his treatment plan even in the hospital, including a 25 percent participation in treatment groups and failure to start working on a relapse prevention plan. Also of concern was appellant's refusal to meet with CONREP or to be released with CONREP, as well as his twice going AWOL from CONREP. Another factor was appellant's indication that he wanted to stop taking his psychiatric medication if he were released into the community. If he stopped taking his medication, Dr. Picker believed appellant would again be a danger to others.
Rafael Chang, appellant's case manager at CONREP, testified that appellant refused to meet with him, which meant Chang could not fully assess whether he was ready to make the transition to CONREP. Appellant's history of two AWOLs from CONREP was part of the information Chang used to determine whether he would be compliant with treatment. Based on his review of appellant's hospital records and his inability to evaluate appellant due to appellant's refusal to meet with him, Chang did not believe appellant was amenable to treatment.
Dr. Tiffany Savage, appellant's treating psychologist, testified as an expert in whether an individual meets the criteria for extension as a mentally disordered offender. Appellant had been her patient for one and one-half years and, during that time, she had discussed his treatment with him twice a week. Like Dr. Picker, Dr. Savage had diagnosed appellant with "schizophrenia continuous," which meant that appellant was not in remission. Instead, he continued to present with overt symptoms of schizophrenia, including apathy, lack of motivation, disorganized speech, and "delusions of persecution, which present as paranoia," where he thinks that someone is after him or out to get him.
Dr. Savage opined that appellant represented a substantial danger of physical harm to others as a result of his schizophrenia. Specifically, he had several risk factors, which, if he were not in a structured environment, were likely to lead to a high risk of violence in the community. These risk factors included his stating on multiple occasions that he did not have a major mental illness or related symptoms and that he did not need medication, which he only took because staff gave it to him. In addition, he lacked insight into his illness, which included a lack of awareness that he had a mental illness and the related symptoms, which increased his risk for violent behavior. He also lacked support in the community and had denied committing the 1990 offense, to which his mental illness had contributed. Appellant's history of violence also was a factor in her opinion about his risk for future violence.
Dr. Savage testified that appellant's history of violence included both the 1990 assault offense and another episode that occurred in 1989, when appellant was detained in jail, did not want to take his medication, and "assaulted a peace officer; put one in a headlock and broke one's finger."
Appellant also had not been voluntarily following his treatment plan. He lacked motivation to attend treatment groups, which he had attended at a rate of 34 percent over the past year, and had not completed a forensic relapse prevention plan. To move into a more advanced unit, a patient would have to attend at least 60 percent of the required treatment groups. He had also said he was not interested in working with CONREP anymore. This was a concern because without a structured environment, Dr. Savage did not believe appellant would remain on his medication. Likewise, he had reported that his two AWOLs from CONREP were due to his not wanting to take his medication and because "they take his check." Finally, although appellant had some cognitive impairments, other individuals in the unit with such impairments did have insight and awareness, and were motivated to participate in treatment and complete relapse prevention plans.
At the conclusion of trial, the court concluded appellant "suffers from a severe mental disorder that is not in remission or cannot be kept in remission without treatment. The court further finds that by reason of this severe mental disorder, [appellant] represents a substantial danger of physical harm to others." The court therefore extended appellant's commitment at Napa State Hospital for an additional year.
DISCUSSION
Appellant contends the matter must be remanded to the trial court because the record of his commitment hearing affirmatively reveals that the court misunderstood and misapplied the governing legal standard.
I. Statutory Framework of the MDO Law
"The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. ([] § 2960 et seq.) . . . [T]he purpose of the scheme is to provide MDOs with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder. [Citation.]" (In re Qawi (2004) 32 Cal.4th 1, 9.)
After a defendant's initial commitment as an MDO, the district attorney may petition the court to continue MDO treatment for one year. (§ 2970.) Section 2972 sets forth the procedures for hearing a petition for continued MDO treatment. (§ 2972, subds. (a) & (b).) Pursuant to subdivision (c) of section 2972, "[i]f the court or jury finds that the patient has a severe mental health disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed . . . . The commitment shall be for a period of one year from the date of . . . previous commitment . . . ." (§ 2972, subd. (c); see People v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2.)
CALCRIM No. 3457 sets forth the criteria for recommitment along with definitions of terms used, as follows:
"The petition alleges that <insert name of respondent> is a mentally disordered offender.
"To prove this allegation, the People must prove beyond a reasonable doubt that [at the time of (his/her) hearing before the Board of Prison Terms]:
"1. (He/She) (has/had) a severe mental disorder;
"2. The severe mental disorder (is/was) not in remission or (cannot/could not) be kept in remission without continued treatment;
"AND
"3. Because of (his/her) severe mental disorder, (he/she) (presently represents/represented) a substantial danger of physical harm to others.
"A severe mental disorder is an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or that grossly impairs his or her behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely. [It does not include (a personality or adjustment disorder[,]/ [or] epilepsy[,]/ [or] mental retardation or other developmental disabilities[,]/ [or] addiction to or abuse of intoxicating substances).]
"Remission means that the external signs and symptoms of the severe mental disorder are controlled by either psychotropic medication or psychosocial support.
"[A severe mental disorder cannot be kept in remission without treatment if, during the period of the year prior to <insert the date the trial commenced> the person:
"<Give one or more alternatives, as applicable.>
"[1. Was physically violent except in self-defense; [or]]
"[2. Made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family; [or]]
"[3. Intentionally caused property damage; [or]]
"[4. Did not voluntarily follow the treatment plan.]]
"[A person has voluntarily followed the treatment plan if he or she has acted as a reasonable person would in following the treatment plan.]
"[A substantial danger of physical harm does not require proof of a recent overt act.]
"You will receive [a] verdict form[s] on which to indicate your finding whether the allegation that <insert name of respondent> is a mentally disordered offender is true or not true. To find the allegation true or not true, all of you must agree. You may not find it to be true unless all of you agree the People have proved it beyond a reasonable doubt."
II. Trial Court Background
At the conclusion of appellant's commitment extension trial, just before the prosecutor and defense counsel gave their closing arguments, the court stated: "Okay. So we have completed the evidence and what I have done this morning is I've reviewed CALCRIM No. 3457. I also looked at the statute [section] 2972, [subdivision] (c). I reviewed my notes from the witnesses. I have the exhibits in front of me." Following counsel's arguments, the court discussed the evidence in the context of the various factors set forth in CALCRIM No. 3457: "Okay. So I listened carefully to Mr. Chang from CONREP and Dr. Picker from Napa State Hospital, and both of you [i.e., the prosecutor and defense counsel] talked about Dr. Savage, and I would agree, she provided the greatest clarity of the three. Although the other two certainly provided some context.
"Let me come at it this way: If I follow CALCRIM No. 3457 or if I look at Penal Code section 2972[, subdivision] (c), obviously the CALCRIM reflects the statute. So CALCRIM [No. 3457] lays out some factors for purposes of the extension.
"The first element is that [appellant] has a severe mental disorder. I think there is no question about that. No one is arguing about that, but that's been clearly established actually by all three witnesses . . . .
"The second element is that the mental disorder is not in remission or cannot be kept in remission without continued treatment. That also is clear from all three witnesses. As I said, Dr. Picker described [appellant] being in partial remission. Dr. Savage described him as not being in remission at this time, and certainly both, as well as the CONREP case manager, Mr. Chang, all indicated that a number of things are necessary to keep [appellant's] schizophrenia under control. That includes staying with the medication regimen, being in a structured environment. So those things are present now, and the concern is that they would not be present if he is released.
"The third element is because of his severe mental disorder, his substantial danger of physical harm to others exists, and in reviewing this, CALCRIM [No. 3457] gives us another set of elements to go through, and so in the year prior Elements 1, 2, 3 do not apply.
"Element 1 is that he was physically violent during that year. There is no indication of that. . . . [B]ut where the rub is, is it has to do with his willingness to follow the treatment plan, and all three witnesses had something to say about that, but in particular, Dr. Savage indicated that [appellant] is not interested in participating in the WRAP plan [Wellness Recovery Action Plan], which has to do with learning to recognize triggers, to import structure such that when he begins to decompensate, he can do things to get himself into a safer position. Dr. Savage noted that he lacks any community support. No family has come to visit him. There is no one there to reach out for help, so he is very much in need if he leaves the structured environment to have structure somewhere such as CONREP. He has twice been AWOL from CONREP.
"He's expressly indicated to Dr. Savage and Dr. Picker that he does not want to be in CONREP. He has indicated to both that he wants off the medications. He declines to participate in . . . their education program as to learning how to deal with his disease. He denies that he has mental illness. He denies that he has mental illness symptoms. He denies the commitment offense; and part of the problem here is that even though the commitment offense is old, it has a certain level of intensity, enough to support personal infliction of great bodily injury, and so it's highly assaultive conduct with a high degree of violence in it.
"I certainly appreciate that [appellant] is stable in his current environment, but he has not been able to matriculate to the next level, which is the precursor step to going to CONREP, because he is unwilling to participate in the program. Again he doesn't want to be in CONREP. He doesn't want to be on medication. And so I understand in looking at this that this is where the fourth element, did not voluntarily follow the treatment plan [sic].
"So, [defense counsel], you got into some issues related to cognitive abilities, learning disabilities, those kinds of things, and clearly both what Dr. Picker and Dr. Savage responded with is that that is not the determinative factor. The determinative factor is the person's willingness, and [appellant] does not have that.
"So when I take all of those factors into consideration, all this testimony, and I look at not only CALCRIM [No.] 3457, but also Penal Code Section 2972[, subdivision] (c), I do find that there is proof beyond a reasonable doubt here to support extending [appellant] for a year until December 3rd of 2019."
III. The Trial Court's Understanding and Application of the Legal Standard
"Ordinarily statements made by the trial court as to its reasoning are not reviewable. An exception to this general rule exists when the court's comments unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law. [Citation.]" (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1440 (Jerry R.); accord, People v. Butcher (1986) 185 Cal.App.3d 929, 936-937; cf. Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"].) An appellate court thus may "consider a judge's statement when, taken as a whole, the judge's statement discloses an incorrect rather than a correct concept of the relevant law, 'embodied not merely in "secondary remarks" but in [the judge's] basic ruling.' [Citations.]" (People v. Tessman (2014) 223 Cal.App.4th 1293, 1302-1303 (Tessman).)
In the present case, the court discussed the elements required for commitment extension under section 2972, subdivision (c), also set forth in CALCRIM No. 3457, including the first two elements: that appellant "has a severe mental disorder" and "that the mental disorder is not in remission or cannot be kept in remission without continued treatment." The court next described the third element: that "because of his severe mental disorder, his substantial danger of physical harm to others exists." It then further stated, "and in reviewing this, CALCRIM [No. 3457] gives us another set of elements to go through, and so in the year prior Elements 1, 2, 3 do not apply," but "where the rub is, is it has to do with his willingness to follow the treatment plan . . . ." After discussing the evidence, the court summarized the evidence presented at trial, concluding that "in looking at this that this is where that fourth element, did not voluntarily follow the treatment plan [sic]."
As noted, the first three factors in CALCRIM No. 3457, which are to be used in determining whether a severe mental disorder cannot be kept in remission without treatment, provide: "[1. Was physically violent except in self-defense; [or]] [¶] [2. Made a serious threat of substantial physical harm upon the person of another . . . ; [or]] [¶] [3. Intentionally caused property damage . . . .]"
The court's statements incorrectly described the four factors set forth in CALCRIM No. 3457 that are specifically applicable to whether appellant's schizophrenia could be kept in remission without treatment, indicating its apparent belief that those factors are directly applicable to the issue of appellant's dangerousness. Consequently, the question here is whether these comments were "merely . . . secondary remark[s]" or were instead "unambiguously embodied in the trial judge's ruling." (Tessman, supra, 223 Cal.App.4th at pp. 1303-1304.) As we shall explain, the record as a whole leads us to conclude the court's comments were not unambiguously embodied in its ruling. (See ibid.)
Despite its muddled description of the four bracketed factors set forth in CALCRIM No. 3457, the court made clear that it was familiar with the requirements of section 2972, subdivision (c), and was taking those requirements into account when it found that the evidence supported, beyond a reasonable doubt, extending appellant's commitment. After its questionable comments about the fourth factor related to remission in CALCRIM No. 3457, the court explicitly stated the basis of the commitment extension as follows: "So when I take all of those factors into consideration, all this testimony, and I look at not only CALCRIM No. 3457, but also . . . section 2972[, subdivision] (c), I do find that there is proof beyond a reasonable doubt here" to support the commitment extension. This statement does not unambiguously show that the court's "basic ruling" was based on a misunderstanding of the law, but instead suggests that the dangerousness finding was based on all of the evidence presented and the requirements of the applicable statute, which clearly lays out the elements that need to be proven before a defendant may be recommitted. (Jerry R., supra, 29 Cal.App.4th at p. 1440; see Tessman, supra, 223 Cal.App.4th at pp. 1303-1304; see § 2972, subd. (c).)
This conclusion is borne out by the fact that much of the evidence cited by the court in support of its ruling spoke to the question of dangerousness generally, without particular reference to appellant's willingness to follow his treatment plan. For example, the court discussed Dr. Savage's testimony that "he lacks any community support. No family has come to visit him. There is no one there to reach out for help, so he is very much in need if he leaves the structured environment to have structure somewhere such as CONREP." The court also cited evidence showing that appellant had twice been AWOL from CONREP, wanted to stop taking his medication, and "denies that he has mental illness. He denies that he has mental illness symptoms. He denies the commitment offense; and part of the problem here is that even though the commitment offense is old, it has a certain level of intensity . . . and so it's highly assaultive conduct with a high degree of violence in it." All of this evidence cited by the court relates to appellant's lack of insight and support, as well as his history of violence, which the doctors believed increased his risk for violent behavior.
The court's discussion of this evidence substantially tracked the evidence the prosecutor cited to in his closing argument to support his assertion that "there is more than sufficient evidence to find that he currently represents a substantial danger based upon his severe mental disorder." For example, the prosecutor discussed Dr. Savage's testimony, during which "[s]he articulated a number of risk factors that are present. I think the most notable being that he seems to want to go off his medications. He doesn't have—he lacks insight, and historically, in [appellant's] past, regrettably, his mental illness has resulted in him being violent; and I think but for the supportive structure that he is currently in, that violence would manifest itself again, and the doctors all testified to that."
Finally, the evidence showing that appellant did not voluntarily follow his treatment plan plainly overlapped with the question of dangerousness, given the court's finding that appellant's mental illness could not be kept in remission without treatment and the evidence showing that his failure to participate in his treatment plan was partly responsible for his lack of insight, which, as noted, the experts believed increased his dangerousness. Moreover, appellant did not want to be on his medication, and both experts believed that going off his medication would be a serious risk factor for dangerousness. Thus, all of the evidence the court cited in support of its ruling—only some of which related specifically to appellant's treatment plan—was relevant to its ultimate finding that, because of his schizophrenia, which was not in remission or could not be kept in remission without treatment, appellant represented a substantial danger of physical harm to others. (§ 2972, subd. (c); CALCRIM No. 3457.)
Appellant quotes the record out of context when he states in his opening brief that "[i]n weighing appellant's dangerousness, the court simply concluded that '[t]he determinative factor is the person's willingness [to follow the treatment plan], and [appellant] does not have that.' " In fact, the court was responding to defense counsel's claim that appellant could not fully participate in his treatment plan due to his limited cognitive abilities. The court stated that both doctors had testified "that this [i.e., his cognitive ability] is not the determinative factor. The determinative factor is the person's willingness, and [appellant] does not have that." In context, the court's reference to the "determinative factor" clearly concerned the effect of appellant's cognitive limitations on his participation in his treatment plan, and not the ultimate question of appellant's dangerousness.
We therefore conclude, considering the court's review of the evidence showing dangerousness and its repeated statement that it had read and was relying on section 2972, subdivision (c), the court's comments about the factors set forth in CALCRIM No. 3457 did not reveal that it was improperly basing its dangerousness finding solely on appellant's failure to voluntarily follow his treatment plan. Instead, we conclude that, "when, taken as a whole" (Tessman, supra, 223 Cal.App.4th at p. 1302), the court's comments do not "unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law." (Jerry R., supra, 29 Cal.App.4th at p. 1440.)
People v. Butcher, supra, 185 Cal.App.3d 929, relied on by appellant in support of his argument that the court's decision in this case was based on an erroneous application of subdivision (c) of section 2972, is distinguishable. In Butcher, the conviction of the defendant after a court trial was based on the trial court's misunderstanding of a material element of the offense charged. (Id. at p. 935.) The appellate court concluded the trial court's statements as a whole revealed that it had found the defendant guilty "based upon a legally invalid theory of the law." (Id. at p. 937.) Similarly, in Jerry R., supra, 29 Cal.App.4th at page 1436, a minor was charged with willfully discharging a firearm and the relevant statute required proof that the minor intended to fire the weapon, and an honest belief that gun was empty would negate that mental state. The trial court's statement that "[a]s far as I am concerned, whether or not he knew the gun was loaded is immaterial" unambiguously revealed its misreading of the elements of the statute and its misapplication of relevant law. (Id. at p. 1440.) In both Butcher and Jerry R., the trial courts' statements that led to reversal of the judgments involved unambiguous legal errors that had plainly affected the courts' decisions. Here, as discussed, because the court's comments do not unambiguously show that it misapplied the governing legal standard in reaching its decision, the rule that "statements made by the trial court as to its reasoning are not reviewable" applies. (See Jerry R., at p. 1440.)
DISPOSITION
The trial court's order extending appellant's MDO commitment for one year is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.