P. v. Hunter
Filed 6/20/12 P. v. Hunter CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
DAVID HUNTER,
Defendant and
Appellant.
2d Crim. No.
B235495
(Super. Ct.
No. F458493)
(San
Luis Obispo County)
David Hunter appeals an
order recommitting him to the California Department of Mental Health as a
(MDO). (Pen. Code, § 2962 et seq.)
insufficient to support the trial court's finding that his severe mental
disorder was not in remission as of the date of Board of Prison Terms (BPT)
hearing (§ 2962, subd. (a).) We affirm.
Facts and Procedural
History
On March 28, 2011, appellant filed a superior court
petition challenging a BPT determination that he met the criteria for treatment
as an MDO. (§ 2966, subd.
(b).) Appellant waived jury trial and
stipulated that Doctor J. Odom's report be received into evidence.
Doctor Odom, a staff
psychiatrist at Atascadero State Hospital (ASH), reported that appellant
suffered from schizoaffective
disorder, bipolar type, exhibitionism, polysubstance dependency, and
MDO criteria and the severe mental disorder was not in remission because
appellant exhibited overt signs and symptoms (argumentativeness, intrusiveness,
exposing genitals to female staff, masturbation and sleep disturbance) in the
year prior to the BPT hearing.
Forensic Psychologist
Alette Coble-Temple, Ph.D. interviewed appellant two months before the BPT
hearing and testified that appellant was in "partial remission." When asked if appellant was in remission as
of date of the BPT hearing (March 25,
2011), Dr. Coble-Temple
stated, "I haven't seen him since January 14 [2011], so I can't speak to
symptoms after the 15th."
Substantial
Evidence
Appellant argues that
the trial court erred in finding that he was not in remission. As in any sufficiency-of-the-evidence appeal,
we review the entire record in the light most favorable to the judgment to
ascertain if there is any reasonable, credible evidence to support the
challenged finding. (People v. Beeson
(2002) 99 Cal.App.4th 1393, 1398.)
A prisoner is subject to
involuntary treatment as an MDO if the prosecution demonstrates, among other
factors, that the prisoner's severe mental disorder "is not in remission
or cannot be kept in remission without treatment." (§ 2962, subd. (a)(1).) "The term 'remission' means a finding
that the overt signs and symptoms of the severe mental disorder are controlled
either by psychotropic medication or psychosocial support. A person 'cannot be kept in remission without
treatment' if during the year prior to the question being before the Board of
Prison Terms or a trial court, he or she has been in remission and he or she
has been physically violent, except in self–defense, or he or she has made a
serious threat of substantial physical harm upon the person of another so as to
cause the target of the threat to reasonably fear for his or her safety or the
safety of his or her immediate family, or he or she has intentionally caused
property damage, or he or she has not voluntarily followed the treatment plan."
(Ibid, (a)(3).)
The trial court
discredited Dr. Coble-Temple's testimony because the doctor opined that
appellant was in "partial remission" in January 2011 but had no
opinion whether appellant was in remission on the date of the BPT hearing,
March 25, 2011. The doctor did, however,
say that appellant manifested no overt symptoms when she interviewed him on January 14, 2011.
Appellant argues that
Doctor Odom's MDO findings do not establish, as a matter of law, that the
mental disorder was not in remission.
Doctor Odom's report refers to a February
28, 2011 incident in which appellant was "observed naked
openly masturbating in his room . . . . "
Hospital staff charted the incident as a "target symptom[]:
mania." Doctor Coble-Temple said
the incident could be an active symptom of the mental disorder but it could
also be a healthy coping mechanism to avoid angry outbursts.
Appellant claims that
hospital staff saw him masturbating during a room check and it is absurd to
conclude the incident is a mental illness symptom. He argues that Doctor Odom's MDO findings
lack foundation because the doctor did not interview him and referred to
medical records outside the one-year BPT hearing period.
Doctor Odom opined that
appellant "continued to experience mania during the past year" and cited instances of inappropriate conduct
with female staff, exhibitionism, hyperactive thought and speech, and
confrontational behavior. The report
stated that these signs and symptoms tracked a long history of mental illness dating
back to 1996 when appellant exposed his genitals to female staff and engaged in
open masturbation. Appellant was subject
to a Keyhea involuntary medication order 2007. (See Keyhea v. Rushen (1986) 178
Cal.App.3d 526, 542; In re Qawi (2004) 32 Cal.4th 1, 27.) A follow-up evaluation noted that appellant
continued to suffer from visual and auditory hallucinations, manic features,
rapid speech, and sexually inappropriate behaviors such as exposing himself and
masturbating in front of staff.
Doctor Odom reported
that appellant was admitted to ASH as a MDO in December 2009 and continued to
receive psychotropic medications pursuant to the Keyhea order until February 1, 2010. After the order expired, appellant refused
his medication on March 12, 2010.
Doctor Odom opined that
the mental disorder was not in remission because appellant exhibited the
following signs and symptoms in the year prior to the BPT hearing: 1. On April
22, 2010, appellant engaged in an act of exhibitionism by exposing
his genitals to female staff. Hospital
staff noted that appellant "showed symptoms of mania." A phallometric assessment was conducted on July 21, 2010 and "indicated
significant arousal responses to confrontation with exhibitionistic behavior
toward female adults." ~
2. On July
14, 2010 appellant was treated for "hyperactive . . . rapid
speech, circumstantial thought process," and "irritable"
behavior. On July 30, 2010, appellant exhibited increased
symptoms of mania. 3. On September
8, 2012 appellant acted inappropriately toward female staff and was
"yelling with rapid and pressured speech." 4. On October
6, 2010, appellant's lithium medication was restarted "because
of increased symptoms of mania (i.e., pressured speech, racing thoughts and
insomnia . . . loud and confrontational with others)." 5. On December
20, 2010, appellant exhibited "rapid speech. . . blunted
effect." `6. On February 28, 2011, appellant was
"observed naked openly masturbating in his room." Hospital staff diagnosed the behavior as
"target symptoms: mania."
Appellant complains that
Doctor Odom's report is based on hearsay and out-dated medical records but
waived the error by not objecting. It is
settled that medical experts may base their opinions on any matter made known
to the expert that is the type of information reasonably relied upon by an
expert in forming his opinion. (Evid.
Code § 801, subd. (b); People v. Catlin (2001) 26 Cal.4th 81,
137.) "A psychiatrist may and
should take into account the prisoner's entire [medical] history in making an
MDO evaluation." (People v. Pace
(1994) 27 Cal.App.4th 795, 799.)
Although Doctor
Coble-Temple believed that appellant was in partial remission, the trial court
was free to reject her MDO findings and accept Doctor Odom's report. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.) We do not reweigh the evidence on
appeal. (People v. Butler (1999)
74 Cal.App.4th 557, 563.) The evidence
amply supports the trial court's finding that the severe mental disorder was
not in remission and could not be kept in remission without treatment. (See People
v. Bowers (2006) 145 Cal.App.4th 870, 879 [single psychiatric opinion
constitutes substantial evidence]; People v., Superior Court (Williams) (1991) 233 Cal.App.3d 477,
490 [same].)
The judgment
(recommitment order) is affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Barry
T. LaBarbara, Judge
Superior
Court County of San Luis Obispo
______________________________
Gerald J. Miiller, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. ,
Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated.
