P. v. Milentijevic

















Filed 3/14/13 P. v. Milentijevic CA4/3















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MILOSAV MILENTIJEVIC, Defendant and Appellant.

G046744 (Super. Ct. No. C-36111 ) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.

Susan K. Shaler, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Donald W. Ostertag,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In 1976, the trial court
found defendant Milosav Milentijevic not guilty of murder (Pen. Code,
§ 187; all further unspecified statutory references are to the Penal Code)
by reason of insanity, and committed him to the California Department of Mental
Health. Since the verdict, the court has
extended Milentijevic’s commitment (§ 1026.5, subd. (b)) several
times. This appeal arises from the
court’s recent decision to again extend Milentijevic’s commitment for two more
years under section 1026.5. Milentijevic
challenges the sufficiency of the evidence to support the court’s finding he
had serious difficulty in controlling his dangerous behavior. Specifically, Milentijevic contends the
evidence demonstrated the medication Haldol “controlled his dangerousness” and
that he would “continue to take Haldol as a condition of release.” For the reasons expressed below, we affirm.

I

Factual and Procedural Background

Milentijevic
beat his mother to death with a table leg because of a paranoid delusion she
stole his Social Security income and secretly gave him psychotropic medications. Three weeks before the killing, he
left a mental health hospital against medical advice. He has remained at Patton
State Hospital
since his initial commitment in 1976.

Dr.
Jody Ward, a clinical
forensic psychologist, testified at Milentijevic’s April 2012 commitment
extension hearing. Ward was familiar
with Milentijevic’s medical and behavioral history, and interviewed
Milentijevic on numerous occasions between 2005 and 2012. Ward opined Milentijevic suffers from
incurable schizophrenia, undifferentiated type, which is a major psychotic
disorder consisting of delusions, hallucinations, and disordered thinking and
behavior. Ward believed Milentijevic’s
delusions cause him “serious difficulty [in] controlling his dangerous
behavior.” Milentijevic takes the
antipsychotic medication Haldol to manage his schizophrenia and will need
medication for the rest of his life.

Ward
also testified Milentijevic suffers from poly-substance drug dependence,
primarily marijuana and LSD, although Milentijevic does not acknowledge he has
a drug problem. Milentijevic’s lack of
insight regarding substance abuse “worsen[s] the prognosis” of his
schizophrenia.

Before
April 2009, Milentijevic committed 25 to 30 instances of physical violence
requiring seclusion and five-point restraints.
As a result, the court ordered involuntary medication. Milentijevic has not engaged in physical
violence since he began taking his prescribed medication, but the absence of
recent physical violence did not change Ward’s opinion Milentijevic currently
presents a substantial danger to others.
Ward attributed Milentijevic’s improvement to Haldol, but noted it was
“very likely” he “would become dangerous as soon as he stopped” medicating. She also believed Milentijevic “experienced
delusions” and exhibited “symptoms of his illness over the past…year” while
taking Haldol.

Ward
explained Milentijevic lived in a highly-structured environment where staff
provided all his needs, which reduced his stress and dangerous behaviors. Ward believed, however, it was important to
analyze how Milentijevic would function outside of his structured setting. The best indicators of outside functioning
concern how well a patient follows treatment programs and instructions. Here, Milentijevic failed to participate in
treatment for mental illness and substance abuse. His history at Patton showed either an
express refusal to take his medication or an effort to avoid swallowing it
while pretending to take it. He would
hide from staff instead of attending therapy, and did not actively participate
in those therapy sessions he attended.
Milentijevic also did not have a complete relapse prevention plan in
place. For Ward, Milentijevic’s lack of
insight into his illness made struggle in an outside environment likely.

Even
while taking Haldol, Milentijevic engaged in verbally assaultive behavior on
numerous occasions. On May 15, 2011, he told a staff member
to “shut up” after the employee attempted to discuss Milentijevic’s use of
cigarettes indoors. On April 11, 2011, Milentijevic
told a staff member “fuck you” when the employee attempted to search him. On March
6, 2011, he told a staff member to “move your fucking ass from
behind me” because he felt the staff member stood too close to him in the
dining room. On December 30, 2011, he called a staff member a
“bitch” after she told him to move away from a fence where he was talking to a
girlfriend.

By
the April 2012 hearing, Milentijevic took his medication voluntarily. In January 2012, Milentijevic told Ward his
schizophrenia was in remission because of Haldol, he would continue medicating
if released, and he would “get a prescription of Haldol and a backup
prescription.” Nonetheless, Ward felt
Milentijevic believed he did not need medication.

Indeed,
Milentijevic testified he was “all right” without the medication, he did not
believe his mental illness made him violent or dangerous, and he would only
take the medication when released because he is “forced” to do so. Ward noted Milentijevic’s history
demonstrated vacillation, “one moment saying he will take his medication, at
the next moment saying he doesn’t need it, and then saying again that he will
take it and [then again] that he doesn’t need it.”

According
to Ward, within the previous six months Milentijevic asked if he could stop
taking his medication. Ward concluded
Milentijevic did not appreciate the “need for the medication over a long period
of time,” and had not “made the commitment” to medicate “when not forced to do
so.” Ward believed Milentijevic’s
medical condition was not in remission.

The
trial court found Milentijevic had “serious difficulty in controlling his
dangerous behavior,” and found Milentijevic’s testimony consistent with Ward’s
finding that Milentijevic will not medicate voluntarily. The court therefore granted the petition to
extend Milentijevic’s commitment another two years.

II

Discussion

>Substantial Evidence Supports the Court’s
Order

Milentijevic contends
there was insufficient evidence demonstrating serious difficulty in controlling
his dangerous behavior. He argues the
evidence showed the drug Haldol “controlled his dangerousness,” and that he
would “continue to take Haldol as a condition of release.”

We review the entire
record in the light most favorable to the extension order to determine whether
any rational trier of fact could find the requirements of section 1026.5 (b)(1)
beyond a reasonable doubt. (>People v. Crosswhite (2002)
101 Cal.App.4th 494, 507-508 (Crosswhite).) We defer to the trier of fact if substantial
evidence supports the order. (>People v. Ochoa (1993) 6 Cal.4th 1199,
1206 (Ochoa).) In conducting our review we do not reweigh
evidence or revisit witness credibility issues.
(Ibid.) After reviewing the record, we conclude
substantial evidence supports the trial court’s decision.

Where a person is found
not guilty of a felony by reason of insanity, the court may commit the person
to a mental hospital for a period no longer than the maximum imprisonment term
the offense carries. (§ 1026.5, subd.
(a)(1).) The People may petition the
court to extend the commitment in two-year increments. (§ 1026.5, subd. (b).) The People must prove the person “by reason
of a mental disease, defect, or disorder represents a substantial danger of
physical harm to others.” (§ 1026.5,
subd. (b)(1).) To comply with due
process, the People must show the mental disease, defect, or disorder causes
the person “serious difficulty in controlling dangerous behavior.” (People v. Bowers (2006) 145
Cal.App.4th 870, 878 (Bowers); In re Howard N. (2005) 35 Cal.4th 117, 127-128 (Howard N.) [commitment constitutes a
significant deprivation of liberty and due process requires a finding the
defendant has serious difficulty in controlling dangerous behavior]; Addington v. Texas (1979) 441 U.S. 418, 425.)

Whether the defendant
represents a substantial danger under section 1026.5 is a question of fact to
be resolved with the assistance of expert testimony. (Crosswhite,
supra, 101 Cal.App.4th at 507.) A single expert opinion that an individual is
dangerous because of a mental disorder constitutes substantial evidence to
support a commitment extension under section 1026.5. (Bowers,
supra, 145 Cal.App.4th at 879.)

Here, substantial
evidence demonstrated Milentijevic remained dangerous despite not physically
assaulting anyone since taking Haldol.
Milentijevic engaged in verbally threatening behavior on numerous
occasions despite the medication. Ward
opined Milentijevic’s highly-structured lifestyle at Patton State Hospital
reduced the incidents of dangerous behaviors and it was likely he would
struggle outside an institutional setting.
She noted he failed to participate in treatment for mental illness and substance
abuse, he did not have a complete relapse prevention plan in place, and he
lacked the necessary insight to treat his symptoms personally. Ward believed Milentijevic “experienced
delusions” and exhibited “symptoms of his mental illness over the past . . .
year,” his schizophrenia was not in remission, and he currently presented a
substantial danger to others.

The evidence also
suggested Milentijevic would stop medicating once released. Ward testified Milentijevic’s record of
voluntarily medicating was “spotty.”
While Milentijevic testified he would take Haldol if released, he also
testified he would only take the medication because he was “forced”, he was
“all right” without the medication, and he did not believe his mental illness
made him violent or dangerous. As Ward
stated, Milentijevic historically vacillated over the issue of voluntarily
medicating, “one moment saying he will take his medication, at the next moment
saying that he doesn’t need it, and then saying again that he will take it and
[then again] that he doesn’t need it.”
In the previous six months, Milentijevic asked to stop his
medication. According to Ward,
Milentijevic had not “made the commitment that he will take the medication” and
had not “seen [the] need for the medication over a long period of time.” Ward believed it was “very likely”
Milentijevic “would become dangerous as soon as he stopped taking . . .
medication.” In sum, the record reflects
Milentijevic does not believe he needs medication, will not take Haldol if
given his druthers, and the court could not rely on his promise to medicate
because he changed his stance from moment to moment.

Milentijevic contends
the trial court could order him to receive Haldol intravenously to ensure it
stays in his bloodstream. But there is
no evidence in the record the court could monitor Milentijevic sufficiently to
ensure he receives medication by injection.
The method of administering Milentijevic’s medication means little if he
refuses to cooperate. Moreover, the
argument ignores Ward’s point that Milentijevic only controls his dangerousness
through a combination of medication and
a structured environment. In addition,
Ward found Milentijevic “experienced delusions” and exhibited “symptoms” of
schizophrenia last year while taking Haldol.


Milentijevic relies on >In re Anthony C. (2006) 138 Cal.App.4th
1493 (Anthony C.). In Anthony
C., a juvenile committed a lewd act on a child under age 14. (Id.
at p. 1500.) When he turned 21, the
prosecution filed a petition to extend the ward’s commitment under Welfare and
Institutions Code section 1800.href="#_ftn1" name="_ftnref1" title="">[1] (Id.
at p. 1502.) The appellate court found
there was insufficient evidence of serious difficulty controlling sexually
deviant behavior. (Id. at p. 1507.) The court
noted the Youth Authority staff did not prepare a formal risk assessment, and
the testifying staff psychologist could not credibly describe the factors
quantifying the ward’s risk level. (>Id. at pp. 1506-1508.) The psychologist wavered regarding the ward’s
risk level, stating it was “‘above low risk, at least medium risk or higher’”
and “‘some risk, moderate at least.’” (>Id. at p 1506-1507. ) The psychologist did not testify about the
degree of the ward’s disorder, or that the ward’s condition was incurable,
repetitive, or compulsive.

The appellate court
concluded the ward’s crime was one of opportunity rather than compulsion, and
the expert testimony did
not “constitute substantial evidence that Anthony has serious difficulty
controlling his behavior.” (Anthony C.,
supra, 138 Cal.App.4th at
p. 1507.) The court found the
expert based his testimony “as much on guesswork . . .as on relevant probative
facts,” and that moderate risk meant “‘not seriously or permanently disabling
or incapacitating.’ [Citation.]” (Ibid.) The court noted medication controlled the
ward’s attention deficit hyperactivity disorder and the psychologist did not
know the correlation between a lack of impulse control and the risk of
reoffending because of pedophilia. (>Id. at p. 1507, fn. 10.)

name="sp_4041_1508">name=B012122009055268> Here, as explained above, Ward performed
multiple evaluations of Milentijevic over a seven-year period. Her testimony articulated the risk factors
forming the basis of her opinions. Ward
opined Milentijevic’s schizophrenia was incurable and prompted him to kill his
mother. Ward also asserted Haldol did
not completely prevent Milentijevic’s delusions or change the fact he presents
a current danger. Milentijevic had
difficulty accepting the dimensions of his disorder and believed he did not
need medication. Overall, the evidence
illustrates Milentijevic’s serious difficulty controlling dangerous behavior
and distinguishes him from the patient in Anthony
C.

Milentijevic also relies
on People v. Galindo (2006) 142
Cal.App.4th 531 (Galindo). There, name="SDU_533">the trial court committed defendant under section 1026 for
felon in possession of a firearm, and later extended his commitment under
section 1026.5. (>Id. at p. 533.) The Attorney General
conceded the trial court failed to consider whether section 1026.5 required
proof of serious difficulty in controlling dangerous behavior, as required
under Howard N., supra, 35
Cal.4th 117. (Galindo, supra, 142 Cal.App.4th at p. 533.) Thus, the >Galindo court had to determine whether
the trial court’s failure to consider the “‘control’” issue was
prejudicial. (Ibid.)

In Galindo, the defendant
suffered from bipolar disorder, antisocial personality disorder, and
polysubstance dependence. (Galindo,
supra, 142 Cal.App.4th at p. 533-534.)
He denied suffering from a bipolar disorder, disavowed needing treatment
or medication, and expressed ambivalence about medicating if released. (Id.
at p. 534.) The prosecution’s
psychiatrist opined defendant would stop taking medication immediately if
released. name="SDU_534">(Id. at
p. 533.) A defense psychiatrist evaluated the
defendant, concluded he was sane, and stated defendant could take several
preventative steps to reduce his dangerousness in the community. (>Id. at p. 536.)

The court noted href="http://www.fearnotlaw.com/">civil confinement under section 1026.5 is
limited to those who suffer volitional impairments rendering them dangerous
beyond their control. (>Galindo, supra, 142 Cal.App.4th at
p. 537.) But “dangerous” persons
possessing volitional control are more properly dealt with through criminal
proceedings. name=B00332009729016>name="sp_4041_539">(Ibid.) The court noted
defendant could control his behavior although he had not done so in the past,
finding “little, if any,
evidence” that he “encountered serious difficulty” in controlling his behavior. (Id.
at p. 539.) Rather, “the evidence
strongly suggested that defendant did not try to control his
dangerous behavior [ ] because he perceived no reason to do so.” (Ibid.) Thus, the trial court’s failure to find the
defendant had serious difficulty in controlling dangerous behavior was
prejudicial because the evidence also supported a determination the defendant
could exercise the requisite control over his actions. (See id.
at p. 539.)

Here, the trial court
considered the evidence under the appropriate standard and expressly found
Milentijevic had serious difficulty controlling his dangerous impulses. Galindo
measured the prejudicial effect of the trial court’s error, but our task is not
to determine prejudice, but whether substantial evidence supports the trial
court’s finding. (See People v. McCune
(1995) 37 Cal.App.4th 686, 694-695; Galindo,
supra, 142 Cal.App.4th at 536-538.)
It does.









III

Disposition

The
order is affirmed.







ARONSON,
J.





WE CONCUR:







O’LEARY, P. J.







MOORE, J.