P. v. Zapisek


P. v. Zapisek

Filed 6/27/11 P. v. Zapisek CA1/2

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




Plaintiff and Respondent,
Defendant and Appellant.


(San Francisco City & County
Super. Ct. No. 169095)

Appellant Paul Zapisek appeals from the May 14, 2010 order extending his involuntary commitment to September 10, 2011 pursuant to Penal Code section 1026.5, subdivision (b) (further references are to the Penal Code unless otherwise stated). Appellant’s appointed counsel has not identified any appellate issues and asks this court to conduct a review of the record and disposition of the case in accordance with the procedures outlined in Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.).
Appellant was originally found not guilty by reason of insanity of an offense in which he stabbed a stranger whom he believed was the devil on the street in 1997. On April 27, 2009, the San Francisco District Attorney filed a petition to extend appellant’s present commitment for two years, to September 10, 2011, pursuant to section 1026.5, subdivision (b). Appellant’s commitment was previously extended as well.
Appellant waived his statutory right to a timely trial on the present extended commitment petition. On May 14, 2010, appellant personally waived his statutory right to a trial by jury and a bench trial was held that same day regarding the petition. The court sustained the petition and extended appellant’s commitment until September 10, 2011. Appellant filed a timely notice of appeal.
Appellant was 67 years old at the time of the May 2010 bench trial. At the trial, Dr. Anthony S. Rabin, a senior psychologist at Napa State Hospital, was the only witness presented by the People, testifying as an expert in section 1026.5 commitments. Dr. Rabin interviewed appellant in August 2009 in order to assess the risk that appellant would commit violent acts if he was released into the community. Before interviewing appellant, Dr. Rabin reviewed various written reports, including reports prepared in 2009, and also met a second time with appellant to tell him the assessment results. Before testifying, Dr. Rabin reviewed the latest interdisciplinary notes and a September 2009 physician’s progress report regarding appellant, and spoke with appellant’s treatment team.
Dr. Rabin testified that appellant suffered from schizoaffective disorder, which caused appellant difficulty perceiving reality and “rather severe” mood swings that affected his impulse control. Dr. Rabin’s diagnosis was based on appellant’s history of delusional beliefs. These included that appellant claimed to have “millions and millions of dollars,” to be married, and to have two sets of identical twins that were four and six years old, although he had been in the hospital for over 10 years. Appellant also exhibited paranoia, believing people were trying to harm him, including the Republican Party, Ronald Reagan, and George Bush; and he stabbed a stranger whom he believed was the devil in 1997. In his interview, appellant told Dr. Rabin that his 1997 belief was a hallucination, but also said it had occurred because the Republican Party had tainted his medication.
Dr. Rabin further testified that appellant denied having a mental illness, could not name his children, claimed to own a number of mansions, including Aaron Spelling’s house, said the Republican Party was poisoning his medications, and said he had been visited by two Obama Administration representatives with duffel bags full of weapons who said they would protect him. He told Dr. Rabin that he sent Dr. Rabin’s soul to another place by clicking his fingers during the interview.
Dr. Rabin also testified that records indicated appellant had said he had flown President Obama and others to a spaceship by snapping his fingers; had said the year before the trial that a psychologist in his unit was the devil, as he had said of his victim in 1997; and had refused to take his medication on a number of days earlier in 2010.
Dr. Rabin concluded that appellant had stabbed a stranger in 1997 because of his schizoaffective disorder, which was consistent with “persecutory paranoid delusional beliefs” and “problems with impulse control.” Dr. Rabin concluded that appellant still suffered from this disorder. He also thought that appellant posed a substantial danger of physical harm to others because he had a history of serious dangerousness, and continued to show delusional beliefs, including that he was being persecuted. Dr. Rabin believed that appellant, were he released into the community unsupervised, would stop taking his medication and pursue his delusional beliefs. As a result, he “could be at great risk of creating the same type of event that happened in 1997,” which would create risk for anyone in San Francisco given that appellant had stabbed a stranger.
Dr. Rabin also used actuarial instruments to evaluate the danger appellant posed to other people, they being the Violence Appraisal Guide (VRAG), the Hare Psychopathy Checklist (PCLR), and the History or Clinical Risk 20 (HCR-20). The VRAG indicated that appellant presented a “[m]oderately low” risk of recidivism, his score consistent with an original sample group of which 17 percent went on to commit a violent act within seven years, and 31 percent did so within 10 years. Appellant scored very low on the PCLR, but Dr. Rabin indicated that was to be expected because the PCLR was meant just to measure appellant’s construct of psychopathy, not his history of mental illness or current symptoms of mental illness. Appellant exhibited evidence of several indicators of dangerousness on the HCR-20, including active symptoms of mental illness, a lack of insight into his mental illness, and partial nonresponsiveness to treatment, as well as several risk management issues.
Dr. Rabin testified that appellant’s alcohol dependence was in institutional remission. Dr. Rabin found no evidence that appellant had committed violent acts recently in his record, and acknowledged that a number of progress reports described him as a gentle man.
Appellant testified, via a videoconference, as the only witness on his behalf. Among other things, appellant testified that at one point the television talked back to him, which was how he got in touch with Ronald Reagan, and that he was ”dogged” by the Republicans. He told the court it could listen to him on the evening news that evening.
The California Supreme Court concluded in a four-to-three decision that the procedures available in criminal proceedings pursuant to People v. Wende (1979) 25 Cal.3d 436 are inapplicable to appeals of Lanterman-Petris-Short Act (LPS) conservatorship proceedings (Welf. & Inst. Code, § 5350 et seq.). (Ben C., supra, 40 Cal.4th 529.) The majority in Ben C. held that “[i]f appointed counsel in a conservatorship appeal finds no arguable issues, counsel need not and should not file a motion to withdraw. Instead, counsel should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law.” (Id. at p. 544.) In addition, “[t]he conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief.” (Id. at p. 544, fn. 6.) Moreover, even though dismissal of the appeal does not violate the California Constitution, the Court of Appeal has the discretion to “retain the appeal.” (Id. at p. 544, fn. 7.)
Since Ben C., a number of appellate courts have held Wende review inapplicable to other types of civil commitment appeals as well. For example, in People v. Dobson (2008) 161 Cal.App.4th 1422, the Fifth District held that Wende procedures do not apply to appeals from the denial of a petition for restoration of sanity filed pursuant to section 1026.2. Similarly in People v. Taylor (2008) 160 Cal.App.4th 304, the Second District concluded that Wende review procedures do not apply to appeals from mentally disordered offender extended commitments pursuant to section 2900 et seq.
We are mindful of the dissent in Ben C. authored by Chief Justice George and joined by Justices Kennard and Moreno, which stated, “It is undisputed that the private interests at stake are of the most fundamental nature as the conservatee may be subjected to restraints upon physical freedom and personal autonomy for lengthy periods, and may be denied other basic civil rights as well.” (Ben C., supra, 40 Cal.4th. at p. 545.) As the dissent indicated, under the circumstances it is a small matter for the Court of Appeal “to confirm that proper procedures were followed and that the order is supported by sufficient evidence.” (Id. at p. 555.) As also stated by this dissent, “The majority’s holding that independent review is not constitutionally required in LPS appeals in no way prevents the Courts of Appeal from expending the minimal effort required to provide these appeals with a second look and to provide an opinion that briefly notes the court has reviewed the record and that identifies the findings and evidence supporting the order.” (Id. at p. 556.)
Accordingly, we have reviewed the entire record of these proceedings. We conclude the appellant was represented by counsel at all times, was informed, as far as possible of his rights, that the trial court treated appellant in a considerate fashion and fully informed itself regarding appellant’s condition. We are satisfied that the trial court made findings supported by substantial evidence, including the evidence we have summarized, before concluding that it was necessary to extend appellant’s commitment.
Our review of the record also confirms that appellant has been notified by his counsel that a brief conforming with the procedures set forth in Ben C. would be filed in this case and further advising appellant of his right to personally file a supplemental brief. No supplemental brief has been filed by appellant on his own behalf.
The judgment extending appellant’s commitment through September 10, 2011, is affirmed.
Lambden, J.

We concur:

Kline, P.J.

Haerle, J.

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