P. v. Zapisek
P. v. Zapisek
Filed 6/27/11 P. v. Zapisek CA1/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
(San Francisco City & County
Super. Ct. No. 169095)
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.
waived his statutory right to a timely
trial on the present extended commitment petition. On May 14,
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
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.
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.
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.
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.
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.
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.
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.
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.
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.)
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.
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.)
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.
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.