Opinion
2d Crim. No. B230294
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEONARD, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F453836)
(San Luis Obispo County)
Richard Leonard appeals from an order denying his petition for review of the determination of the Board of Prison Terms (BPT) that he met the criteria as a mentally disordered offender (MDO), and committing him to the Department of Mental Health for treatment. (Pen.Code, § 2962 et seq.) We affirm.
All statutory references are to the Penal Code unless otherwise stated.
We appointed counsel to represent appellant in this appeal. After his examination of the record, counsel filed an opening brief in which no issues were raised. On April 4, 2011, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On April 14, 2011, we received a supplemental letter brief from appellant.
On May 2, 2011, respondent filed a motion to dismiss appellant's appeal. Because appellant has filed a supplemental brief, we deny respondent's motion. (Compare People v. Taylor (2008) 160 Cal.App.4th 304, 313 [MDO appeal dismissed where appellant and appointed counsel raised no issues on appeal].)
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we address appellant's written claims. He argues in effect that there is not sufficient evidence to support the trial court findings that (1) by reason of appellant's severe mental disorder he represents a substantial danger of physical harm to others and (2) his disorder cannot be kept in remission without treatment.
Appellant was convicted and sentenced to prison for attempted false imprisonment. (§§ 664/236.) Prison officials transferred him to Atascadero State Hospital (ASH) before his scheduled September 5, 2010 release date. (§ 2684.) On November 3, 2010, the BPT determined that appellant met the criteria set forth in section 2962, qualifying him as an MDO, and required him to accept treatment as a condition of parole. He sought review of the MDO certification and waived his right to a jury trial. (§ 2966, subd. (b).)
During the January 3, 2011 proceedings, the parties stipulated that Dr. Joan Odom, an ASH staff psychiatrist, was qualified to render an opinion as to whether appellant met the criteria set forth in section 2962. Dr. Odom reviewed appellant's psychiatric file and MDO reports, and discussed his case with his treating team. She tried to interview appellant but could not do so because he was not available. She concluded that he suffered from paranoid schizophrenia, a severe mental disorder. His symptoms included auditory hallucinations, paranoid throught, disorganized thinking, and self-destructive behavior, including head-banging. In the weeks prior to the BPT hearing, appellant expressed his belief that staff members were lying or making false reports about him.
Dr. Odom opined that appellant's severe mental disorder caused or aggravated his commitment offense (attempted false imprisonment) which involved his unprovoked attack on the victim. He approached the victim, knocked off his glasses, and threatened to kill him. Appellant later told a doctor that he had thought the victim "was going to hit him [appellant] the way he got in [appellant's] territory." Dr. Odom also opined that appellant's disorder could not be kept in remission without treatment, because he failed to follow his treatment plan at ASH. He refused medication from early September to mid-October, and had attended less than 25 percent of his group treatment sessions. He destroyed state property by shredding his hospital clothing on September 24, 2010. Appellant received at least 90 days of treatment for his disorder in the year before the BPT hearing, in the prison mental health delivery system from May 6, 2010, through September 5, 2010.
Dr. Odom opined that as of November 3, 2010, appellant represented a substantial danger of physical harm to others by reason of his severe mental disorder, due to its nature, including the fact that it causes misattributed malice and a propensity to inaccurately perceive the environment as hostile or threatening. She also cited appellant's lack of insight regarding his illness; his substance abuse, which requires further treatment; his prior poor performance while on supervised release, and the lack of a viable relapse prevention plan.
Appellant testified, denied that he was not available to meet with Dr. Odom, and denied that he refused to take his medication. He just requested a medication change. He attended substance abuse counseling at ASH during an earlier commitment and had been clean for about three years as of 2008. He did not engage in any violent acts at ASH, or punch or threaten to kill the commitment offense victim. Their conflict was just a verbal altercation.
"The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released on parole." (People v. Martin (2005) 127 Cal.App.4th 970, 973.) Among the six criteria necessary for an MDO commitment are (1) the prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment; and (2) the prisoner poses a risk of danger to others. (Lopez.v. Superior Court (2010) 50 Cal.4th 1055, 1062.) In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082; People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We review the evidence and draw all reasonable inferences therefrom in favor of the order. (Ibid.)
After acknowledging the conflicts between appellant's description of the facts of the commitment offense and those described by Dr. Odom, the trial court explained why it found her description to be more credible. We do not reweigh the evidence nor do we substitute our decision for that of the trial court. (People v. Clark, supra, 82 Cal.App.4th at pp. 1082-1083.)
In his April 11, 2011, brief, appellant claims that he has been going to "92 percent of [his] groups." During the January 3, 2011 proceedings, he acknowledged that earlier, his participation in treatment groups was low and that he "came to the game late." Dr. Odom testified about his low attendance rate in the relevant period, preceding the BPT hearing. Appellant asserts that Dr. Odom did not interview him and lied about her reasons for not doing so. She could render her opinion concerning the MDO criteria after considering reports of other treatment professionals, and probation or parole officers. (People v. Campos (1995) 32 Cal.App.4th 304, 307-308 [treating professionals]; People v. Miller, supra, 25 Cal.App.4th at p. 917 [probation report]; People v. Dodd (2005) 133 Cal.App.4th 1564, 1569 [parole].)
Having reviewed the entire record and appellant's written contentions, we are satisfied that his attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441; People v. Kelly, supra, 40 Cal.4th at p. 126.)
DISPOSITION
The judgment (order of commitment) is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
YEGAN, J.
John A. Trice, Judge
Superior Court County of San Luis Obispo
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.