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(Solano County Super. Ct. No. FCR190338)
John Donald Kelso appeals from an order that extends his commitment as a mentally disordered offender (MDO) for one year. He contends the order must be reversed because it is not supported by substantial evidence. We disagree and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2011, the Solano County District Attorney filed a petition under Penal Code section 2970 seeking to extend appellant's commitment as an MDO. The petition alleged appellant had been convicted of battery on a peace officer (§ 243, subd. (c)(2)), and that while confined in state prison, appellant had been committed to Patton State Hospital as an MDO.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The case proceeded to a jury trial in August 2011, where Dr. Stoyan Rusev testified. Dr. Rusev is a board certified psychiatrist who treated appellant from June 29, 2010, through October 11, 2010. Dr. Rusev also reviewed appellant's mental health records and consulted with Dr. John Thiel, who was then treating appellant. Based on that review Dr. Rusev diagnosed appellant as suffering from severe mental disorder known as schizoaffective disorder bipolar type and polysubstance dependence in a controlled environment.
Appellant's disorders caused a variety of symptoms. Appellant experienced auditory hallucinations and had manic episodes where he displayed disorganized behavior such as smearing feces on his face and body. Appellant also had paranoid delusions that he was being kept as a political prisoner and that people were stealing his property. At the time of trial, appellant believed there was a needle stuck in his eye.
Appellant had a long history of threatening and violent behavior including assaulting a police officer and a sexual offense. Then in 2009, appellant threatened to kill a female staff member and his own psychiatrist. After these incidents, appellant was ordered by a court to receive an antipsychotic injection each month.
Appellant denied he had a serious mental illness or that he suffered from delusions or hallucinations. As a result, Dr. Rusev believed that if appellant was released, he would stop taking his medications and his condition would become significantly worse.
Dr. Rusev believed appellant was a substantial danger to the community because of his mental illness. Appellant's history of violent conduct, his lack of insight into his mental disorder, and his threatening behavior all suggested appellant was at risk for future dangerous behavior.
Jurors considering this evidence found the allegations of the petition to be true. Subsequently, the court extended appellant's commitment for one year to April 1, 2012.
A. Whether the Appeal is Moot
Before we turn to the arguments appellant has advanced, we must first address a procedural issue. As we have noted, the trial court extended appellant's commitment for one year to April 1, 2012. While this appeal was being briefed, respondent provided and this court took judicial notice of a recent order of the Solano County Superior Court that shows appellant stipulated to an extension of his commitment for one more year until April 1, 2013. Respondent now argues the appeal must be dismissed as moot because the commitment appellant challenges has expired.
While there is considerable merit to respondent's argument (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1151), we are also aware of authority that indicates where an appellant's commitment has been extended, a pending appeal is not moot because the appellate court's decision "may still affect the lower court's right to continue jurisdiction under the original commitment as well as the recommitment." (People v. Fernandez (1999) 70 Cal.App.4th 117, 135.) Under these circumstances, we decline to dismiss the appeal as moot and will turn to the arguments appellant has advanced.
B. Sufficiency of the Evidence
Appellant contends his commitment must be reversed because it is not supported by substantial evidence.
Section 2972, subdivision (c) states an MDO may be recommitted for an additional term of one year "[i]f the . . . jury finds that the patient has a severe mental 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 his . . . mental disorder, the patient represents a substantial danger of physical harm to others . . . ." The findings supporting a recommitment order will be affirmed on appeal so long as they are supported by substantial evidence. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.)
Here, appellant challenges the jury's findings in two respects. First, he argues there was no substantial evidence to support the conclusion that he was "dangerous by reason of a mental disorder." We disagree. Dr. Rusev addressed this point specifically. He agreed appellant represented a substantial danger to others because of his severe mental disorder. This conclusion was supported by a variety of factors. Appellant's history of violent conduct, his lack of insight into his mental disorder, and his threatening behavior all suggested appellant's judgment was poor and that he was at risk of future dangerous behavior. Plainly there was substantial evidence to support the conclusion that appellant was dangerous because of his mental disorder.
The arguments appellant makes do not convince us a different conclusion is required. Appellant contends Dr. Rusev's conclusion was invalid because he "never actually described any dangerous behavior." This is incorrect. The doctor said appellant threatened to kill a female staff member and his own psychiatrist. No more was required.
Appellant also complains that his threatening behavior was "not current" because it occurred in 2009. Appellant has not cited any authority that holds that prior threatening conduct must occur in any specific time period, and in our view, appellant's threats were sufficiently serious and sufficiently recent to be relevant.
Appellant also complains that Dr. Rusev was not treating him at the time of the trial and that he had not treated him for nearly a year. While that is true, Dr. Rusev also stated he had consulted with the psychiatrist who was treating appellant at the time of trial, Dr. John Thiel. Any claimed deficiency on this point went simply to the weight of Dr. Rusev's testimony.
Furthermore, all of appellant's arguments on this point fail for a more fundamental reason. The issue on appeal is whether there is substantial evidence to support the conclusion that appellant was dangerous by reason of a mental disorder and as we have stated, there was substantial evidence to support that conclusion. The fact that the record also contains other evidence that might have supported a different conclusion is irrelevant. (People v. Castro (2006) 138 Cal.App.4th 137, 140.)
Appellant's second argument fares no better. He contends the evidence presented at trial was insufficient to support the conclusion that he "lacked the volitional capacity to control [his] dangerous behavior." This is incorrect. Dr. Rusev testified that appellant suffers from a serious mental disorder that causes him to be a substantial danger of physical harm to others. The problem is so serious that appellant has been ordered by a court to receive antipsychotic injections. But appellant denies that he has a serious mental disorder. This denial not only makes it "impossible" to treat appellant, it "increases his potential for violence because he cannot recognize . . . [the] worsening of his condition." (Italics added.) Jurors considering this evidence reasonably could conclude that appellant's inability to recognize that he is suffering from a serious mental disease makes him unable to control his dangerous behavior.
This element, which is not contained in the MDO statute, has been added by case law. (See People v. Putnam (2004) 115 Cal.App.4th 575, 582.)
The primary cases upon which appellant relies are distinguishable. The court in In re Anthony C. (2006) 138 Cal.App.4th 1493, ruled expert testimony that established the minor was at "moderate" risk of reoffense was insufficient to support the conclusion that he had "'serious difficulty'" in controlling his behavior. (Id. at p. 1507.) The court in In re Howard N. (2005) 35 Cal.4th 117, 138, found no evidence that any expert had found the juvenile's mental disorder made him unable to control his dangerous behavior. And in People v. Galindo (2006) 142 Cal.App.4th 531, the court found the trial court's failure to consider the "control" issue was not harmless beyond a reasonable doubt because there was no evidence the defendant had even tried to control his dangerous behavior. (Id. at pp. 538-539.)
Here, by contrast the evidence shows not only that appellant has not controlled his aberrant behavior, but that he lacks the ability to do so because he does not even recognize he suffers from a serious mental disorder. The cases appellant relies upon are not controlling.
We conclude the order is supported by substantial evidence.
The commitment order is affirmed.