P. v. Brown
Filed 7/16/12 P. v. Brown CA1/4
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDERICK
DELAWRENCE BROWN,
Defendant and Appellant.
A133101
(Contra
Costa County
Super. Ct. No. 2-272445-8)
I.
Introduction
Appellant
Frederick Delawrence Brown appeals from the third successive denial of his
restoration of sanity petition brought pursuant to Penal Code
section 1026.2, subdivisions (a) and (h).
discretion in denying the latest petition because there was no
to be a danger to the public “due to mental defect, disease, or disorder.†(§ 1026.2, subd. (e).) Respondent argues there is substantial
evidence supporting the lower court’s decision to deny the petition.
Regardless
of whether we apply an abuse of discretion or substantial evidence standard of
review, we conclude it was not error to deny appellant’s petition, and
therefore, we affirm.
II.
Procedural Background
Appellant
was initially charged by the
County District Attorney in a criminal complaint filed in 2001 with two
counts of attempted murder (§§ 187, 664, subd. (a)), and one count of
second degree commercial burglary (§§ 459, 460, subd. (b)). Numerous sentencing enhancements were also
alleged. Appellant entered a plea of not
guilty by reason of insanity on August
28, 2002.
Thereafter,
appellant waived his right to a jury
trial on the issue of his sanity, and the case was heard by the trial court
on February 6, 2003. After hearing from counsel, the court found
that appellant had committed all of the charged crimes, but that he was not
guilty by reason of insanity. All of the
alleged enhancements also were found to be true, except the court made no
finding relative to the allegations of prior conviction and state prison terms,
within the meaning of section 667.5, subdivision (b). Appellant was referred to the director of the
Contra Costa County Department of Mental
Health (county director) for an evaluation and recommendation.
A
report and recommendation was submitted to the court by the county director,
and on February 28, 2003,
appellant received a life commitment to the California Department of Mental
Health at Napa State Hospital Pilot Program, pursuant to section 1026.
In
February 2006, appellant filed a petition to be transferred to outpatient
treatment under the supervision of Contra
Costa County’s
Conditional Release Program (CONREP), and requested that a hearing be set to
determine his suitability for conditional release. A hearing on the petition was held on June 21, 2006. After hearing testimony from appellant and Dr. Joginder
Singh, and considering related exhibits, the court denied the petition. On May
22, 2007, appellant filed another petition for transfer to
outpatient treatment, and a request that a hearing be set to determine his
suitability for conditional release.
Based
on the recommendation of CONREP, the court ordered that appellant be released
to outpatient treatment under CONREP
supervision on November 13, 2007. An order extending appellant’s commitment for
one year, or until November 8, 2009,
was filed on October 28, 2008. Appellant’s commitment was extended again by
order dated March 1, 2010.
On
April 11, 2011, appellant
filed the instant petition for restoration of sanity and for unconditional
release, pursuant to section 1026.2, subdivisions (a) and (h). A hearing on that petition was held on June 30, 2011, at which appellant
testified, as did Dr. Bluford Hestir, a licensed psychologist with CONREP. At the conclusion of testimony, the trial
court noted that appellant had made significant progress since 2001, but denied
his request for restoration of sanity and for unconditional release. Instead, the court extended appellant’s
commitment an additional year on supervised outpatient treatment status. This appeal followed.
III.
Discussion
Standard of Review
Appellant
claims that the trial court abused its discretion in not granting his petition
under section 1026.2, because there was no substantial evidence supporting its
finding that appellant continues to be dangerous “due to mental defect,
disease, or disorder.†(§ 1026.2,
subd. (e).)
Section
1026.2 provides a mechanism whereby criminal defendants previously committed
upon a finding of not guilty by reason of insanity may be released in cases
where they have recovered their sanity.
The statute allows an application for release to be brought before the
superior court by either the medical director of the facility where the person
is being held or by the patient.
(§ 1026.2, subd. (a).)
Preconditions to filing an application for unconditional release are
that the patient: (1) has been on
outpatient status for at least six months following the commitment order; and
(2) that the patient has been in a “forensic conditional release programâ€
for one year. Placement in outpatient
status for one year qualifies as participation in a “forensic conditional
release program.†§ 1026.2, subds.
(d), (e), (f).) Appellant satisfies
these prerequisites.
The
applicant has the burden of proving by a preponderance of evidence that the
conditions for unconditional release have been met (§ 1026.2, subds. (h),
(k)); to wit: he or she “is no
longer a danger to the health and safety of others due to a mental defect,
disease, or disorder.â€
The
parties disagree as to the standard of review on appeal from a trial court’s
denial of an application for unconditional release. Appellant contends it is abuse of
discretion. (People v. Bartsch (2008) 167 Cal.App.4th 896, 900.) Respondent argues it is whether the court’s
findings, express or implied, are supported by substantial evidence. (People
v. Dobson (2008) 161 Cal.App.4th 1422, 1431; People v. Crosswhite (2002) 101 Cal.App.4th 494, 507.) We conclude that our result is the same regardless
of which standard is applied. (See
(1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as
stated in Cesar V. v. Superior Court
(2001) 91 Cal.App.4th 1023, 1032 [“[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence
for the rulingâ€].)
B. The Hearing on Appellant’s Application
The
first and only witness to appear at the restoration of sanity hearing on
appellant’s behalf was appellant himself.
After admitting the underlying crimes of two counts of
that he believed he committed the crimes because he failed to take enough
medication to control his mental illness.
He was driven to the crimes by voices saying “we’re going to get
you.†He now understands that he suffers
from schizoaffective bipolar-type illness.
Since coming to Napa, appellant stated that he has not been hearing
voices any longer. If he were to hear
them, he would tell his therapist. He
also thinks that the medication he has been taking, 40 milligrams of Zydis, has
helped him. Although appellant admitted
on cross-examination that he would probably hear voices again if he stopped
taking his medication, he testified that if he were to be released, he would
continue to take the medication.
Upon
release, appellant would also continue to seek the help of mental health
professionals at a county health facility, most probably in Oakland. He has developed a support system consisting
of his mother, sister, niece, and nephew, and he would continue to seek their
help if he were released. Structure
helps appellant reduce stress, and he notes that he works three days each week
as a volunteer for the food bank in Concord.
He also plays table games with the people in the community home in which
he lives. Although he likes structure,
he has been warned about becoming overwhelmed with too much responsibility.
Appellant
also explained that he has been clean and sober for more than seven years. To help him maintain his sobriety, appellant
attends AA meetings regularly. One such
meeting is held at the home where he lives each week.
Appellant
testified that during a recent visit with his therapist, he told the therapist
he had the feeling that people were staring at him as he walked down the street
in Concord. He has learned to ignore
stares and not to take them personally.
On
cross-examination, appellant admitted that he had been committed to Atascadero
State Hospital before he committed the crimes in question. At the time of the current offenses, he had
been released under CONREP for two months and was living with relatives.
Appellant
has been told by his doctors that, in addition to bipolar disorder, he also
suffers from antisocial personality disorder, but he disagrees with that
diagnosis. Appellant admitted that he
had been in three physical altercations while he was in Napa. According to appellant, “they started it.â€
The
prosecution called licensed psychologist Dr. Bluford Hestir. Dr. Hestir has a Ph.D. in psychology, and is
an outpatient supervisor at the CONREP forensic mental health unit. Dr. Hestir is appellant’s assigned outpatient
supervisor. In his opinion, appellant
suffers from a “serious mental illness†called schizoaffective disorder with
bipolar type. Persons with this
condition suffer from hallucinations, distortions of perception, and mood
swings with depression. Appellant also
has polysubstance dependence.
In
Dr. Hestir’s opinion, appellant should not be released. He still presents a unacceptably high risk of
reoffending. Although he has shown
improvement, given his history, the risk remains high.
For
example, presently appellant is still struggling with impulsive behaviors. He is taking a “very hefty dose†of
Zydis. When he first left Napa,
appellant was still “pretty symptomatic†in terms of hearing voices and
problematic behaviors. The drug helped
decrease his symptoms, although he still experiences them. Appellant takes a dosage of Zydis that is
more than the maximum normally prescribed as a standard adult dose.
Dr.
Hestir testified that, despite taking his
medication, appellant still has paranoia.
He does not understand that this is a symptom of his current
illness. He is also secretive about his
journaling. The size and neatness of his
handwriting is also consistent with his paranoid way of thinking. These symptoms show that, despite his
treatment, the illness “is still very much present.â€
Dr.
Hestir testified further that appellant still gets into conflicts with the
people with whom he lives. On one
occasion, people in his group therapy session were concerned that appellant was
going to act out in a violent way. The
situation de-escalated when appellant left the room.
Areas
where appellant needs to improve before he can be unconditionally released
include more work on self-management.
This includes improving his money managing, following social rules, a
better understanding of society’s expectations and how to meet them, continuing
to work on remaining sober, and a greater understanding about his mental
illness and how it effects his relationships with other people.
At
the conclusion of the hearing, the court complimented appellant on his
significant progress made since his initial commitment, but denied the petition,
and ordered that appellant’s outpatient treatment status be renewed and
extended for another year.
The Trial Court Did Not Abuse Its Discretion In Denying Appellant’s
Petition
Appellant’s
abuse of discretion claim is grounded on three arguments:
(1) Dr. Hestir did not directly
relate any current assessment of appellant’s dangerousness to a “mental
defect, disease, or disorderâ€; (2) Dr. Hestir failed to link any of
appellant’s mental health symptoms to a finding of dangerousness; and
(3) any residual mental illness is controlled by medication rendering
appellant non-dangerous.
We
note initially that appellant’s arguments disclose some apparent confusion
about the burden of proof in a hearing under section 1026.2 seeking the
restoration of sanity and an unconditional release. There is no burden on the prosecution to
prove that the defendant still suffers from mental illness that makes him or
her a danger to others if released. The
burden is on the defendant to prove
by a preponderance of evidence that he no longer suffers from a mental illness
that would render him a danger to others if released. (People
v. Bartsch, supra, 167
Cal.App.4th 896; People v. Dobson,
hearing, the defendant is presumed to
be still suffering from a mental illness that renders him or her a danger to society if released. (In re
Franklin (1972) 7 Cal.3d 126, 141.)
Based
on the evidence appellant presented, he clearly had not established his right
to a restoration of sanity and an unconditional release. Not only did appellant not call any health
care professional to opine on whether he met the conditions for unconditional
release, he failed to even express his own belief that conditions for release
existed. (See People v. Mapp (1983) 150 Cal.App.3d 346, 350, 352-353 [directed
verdict proper where defendant failed to produce evidence demonstrating
conditions for release existed under section 1026.2].)
The
prosecution witness, Dr. Hestir, cast even more doubt on the merits of
appellant’s petition. In his opinion,
appellant should not be released because
risk of reoffending. Although he has
shown improvement, given his history, the risk remains high. Dr. Hestir pointed out that appellant suffers
from a “serious mental illness†called schizoaffective disorder with bipolar
type. Persons with this condition suffer
from hallucinations, distortions of perception, and mood swings with
depression. Appellant also has polysubstance
dependence.
Appellant
is still struggling with impulsive behaviors, despite his medication. When he first left Napa, appellant continued
to hear voices and he exhibited inappropriate behavior. While the Zydis has helped decrease his
symptoms, he still experiences them.
Also,
despite his medication, appellant still experiences paranoia, exemplified in
part by his secretiveness and the ongoing, potentially violent, conflicts he
has with others with whom he lives.
These symptoms show that, despite his treatment, his mental illness “is
still very much present.â€
The
quarterly medical report authored by Dr. Hestir for the period of January to
March 2011, which was entered into evidence, further supports the conclusion
that appellant failed to prove by a preponderance of the evidence that he no
longer is a danger to others due to his mental illness.
For
example, appellant had a number of issues arise concerning his living
conditions. After attaining outpatient
status in 2007, he went AWOL in 2010, and eventually was rehospitalized. He was last rereleased to outpatient status
in September 2010, only nine months before the hearing.
During
the reporting quarter, appellant had ongoing “difficulties†with the staff
assigned to his residential facility. He
complained that he was being singled out for criticism. Appellant also has ongoing “paranoid
perceptions about other people in the community watching him.†He also was verbally abusive to staff during
the last quarter. He also was still
struggling with impulsive behavior. Dr.
Hestir concluded that appellant’s current symptoms make him difficult to manage
in treatment. His anger has been
escalating to “highly inappropriate verbal aggression.†If it were not for the highly structured
nature of the outpatient program and the potential for hospitalization,
appellant “at some point would not stop with mere verbal behavior.â€
Importantly,
Dr. Hestir’s report also discusses the level of appellant’s insight into his
mental illness:
“Less
than a year ago Mr. Brown had been hospitalized [sic] after being AWOL from the program. During the hospitalization he was in three
fights that he initiated. In community
placement he has significant though [sic]
disorder and paranoid thinking. Yet he
currently he denies [sic] having a
mental illness and believes himself to be ready for restoration to sanity.â€
As
to the crimes which led to appellant’s hospitalization in 2001, the report
summarizes that appellant committed two attempted murders when he “entered a
Safeway store in a paranoid state, took a display knife and stabbed a customer
repeatedly. He then attempted to stab
another individual who he thought was trying to stop him.â€
Given
the legal standard applicable to consideration of appellant’s petition seeking
an order restoring him to sanity and ordering his unconditional release from
outpatient status back into the community, we have no hesitation in concluding
that the trial court did not err in denying appellant’s petition.
IV.
Disposition
The
order denying appellant’s petition under section 1026.2 is affirmed.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
Penal Code unless otherwise indicated.
court also observed: “In proceedings of this kind testimony of a mental
health expert often is the only way to establish whether the requisite
dangerousness exists. [Citation.]†(People
v. Mapp, supra, 150 Cal.App.3d at
p. 352.)
