P. v.Voishvillo
Filed 4/22/13 P. v.Voishvillo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
ANDREI VOISHVILLO,
Defendant and
Appellant.
2d Crim. No.
B242862
(Super. Ct. No.
1253306)
(Santa
Barbara County)
Andrei Voishvillo
appeals a judgment extending his commitment to the State Department of State
Hospitals (SDSH) for treatment as a mentally disordered offender (MDO) (Pen.
Code, §§ 2962, 2970), following his 2008 conviction for
that Voishvillo suffers from a severe mental disorder, and 2) Voishvillo has
not shown that the trial court misunderstood the People's burden of proof. We affirm.
FACTS
In 2008, Voishvillo pled
guilty to one count of battery by gassing.
He was sentenced to two years in state prison. In 2009, the Board of Parole Hearings (BPH)
determined that he met the requirements for commitment for treatment as an
MDO. He received treatment at the
Atascadero State Hospital (ASH) and his commitment was extended.
On November 21, 2011, the ASH medical director
notified the Santa Barbara County District Attorney that Voishvillo's
"severe mental disorder is not in remission and cannot be kept in
remission" unless his treatment is continued.
On December 12, 2011, the district attorney filed a
petition requesting the superior court to extend Voishvillo's commitment as an
MDO. (§ 2970.)
At trial, Brandi
Matthews, a psychologist
at ASH, testified that Voishvillo suffers from "schizophrenia, paranoid
type," a severe mental disorder which is not in remission. Voishvillo represents "a substantial
danger of physical harm to others."
He hears voices and is "experiencing paranoia that's at a psychotic
level." He believed "staff was
trying to kill him." He was
"delusional." He claimed
someone was "banging [his] wife," but he was never married. Matthews said, "He has had multiple
incidents of engaging in violent behavior." Voishvillo had physically attacked hospital
staff and needed to be restrained.
Matthews said that
"[e]ven when [Voishvillo] is medicated, he [has] a history of engaging in
violent behavior." Voishvillo also
has Asperger's, a developmental disorder, which would not qualify as a severe
mental disorder. But his "history
of exhibiting psychotic symptoms" goes "far beyond"
Asperger's. His behavior from 2008 shows
symptoms of schizophrenia.
In the defense case,
Jessica Mosich, an ASH psychologist, testified Voishvillo's "case is very
complex." Voishvillo has
Asperger's. Mosich said, "He scored
high in the same subtests that other people with Asperger's typically score
high in, and low in the subtests that people with Asperger's typically score
low in." On cross-examination, she
said Voishvillo's treatment team in February 2012 diagnosed him with
"schizophrenia paranoid type."
The prosecutor asked, "[Y]ou haven't reviewed all of the material
necessary in order to really determine whether Mr. Voishvillo does not suffer
from schizophrenia, isn't that true?"
Mosich: "I haven't reviewed
all of the information." The prosecutor: "[Y]ou can't say that Dr. Matthews'
opinion about Mr. Voishvillo suffering from a severe mental disorder,
specifically schizophrenia and paranoia, is incorrect? You can't say that?" Mosich:
"No. I don't."
Bobby Thrani, a clinical
psychologist at ASH, testified that Voishvillo suffers from Asperger's
syndrome. There was no indication that
he suffers from schizophrenia. On
cross-examination, he said Voishvillo's statement to staff that he heard voices
"could be" consistent "with someone who suffers from paranoid
schizophrenia."
Robert Zeszotarski, an
ASH psychiatrist, testified that Voishvillo has "Axis 1 alcohol abuse
and Asperger's disorder."
Voishvillo does not "suffer from schizophrenia." The trial court asked, "[C]an you have a
developmental disability that is so extreme that it can be characterized as a
severe mental disorder?"
Zeszotarski: "Well, in
certain cases those conditions are actually considered severe mental
disorder." He said that
Voishvillo's threats against ASH staff "could be" consistent with
Asperger's and "could be" consistent with schizophrenia paranoid
type.
In rebuttal, David
Fennell, M.D., the director of forensics at ASH, testified that he agreed with
Matthews' assessment that Voishvillo's symptoms were consistent with both
Asperger's and schizophrenia
paranoid type.
The trial court found
there was sufficient evidence for an extended commitment at ASH. It said, "[T]he testimony of Doctors
Matthews and Fennell were persuasive in terms of convincing me that he suffers
from a severe mental disorder."
DISCUSSION
Substantial
Evidence
Voishvillo contends
there is insufficient evidence to support the trial court's finding that he
suffers from a severe mental
disorder. We disagree.
In determining the
sufficiency of the evidence, we review the record in the light most favorable
to the judgment drawing all reasonable inferences in support of the trial
court's findings. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) Continued involuntary treatment requires a
finding that the individual "has a severe mental disorder" that is
not in remission and that he or she "represents a substantial danger of
physical harm to others."
(§ 2970.)
Voishvillo notes that
his experts testified that he suffers from Asperger's, which is not a severe mental
disorder. But the issue is not whether
some evidence supports his position; it is whether substantial evidence
supports the judgment. The testimony of
Matthews and Fennell supports the trial court's finding that he suffers from a
severe mental disorder. They were
qualified medical experts. Voishvillo
has not shown why the court could not rely on their opinions about his mental
disorder. (People v. Ward (1999) 71
Cal.App.4th 368, 374.)
Voishvillo contends the
trial court should have given greater weight to the testimony of his experts
because they treated him. He argues that
Matthews' and Fennell's testimony is less credible because they did not have
sufficient direct contact with him. But
we do not reweigh the evidence, and "'"'it is the exclusive province
of the trial judge . . . to determine the credibility of a witness
and the truth or falsity of the facts on which that determination
depends.'"'" (
the opinions of his experts that he only had Asperger's. But the trier of fact "may disregard the
expert's opinion, even if uncontradicted, and draw its own inferences from the
facts." (Kennemur v. State of
California (1982) 133 Cal.App.3d 907, 923.)
Here Mosich conceded
that she did not review all the material necessary to conclude that Voishvillo
did not suffer from schizophrenia. She
said she was unable to testify that Matthews' opinion was incorrect. Thrani said Voishvillo's statements that he heard
voices "could be" consistent with paranoid schizophrenia. Zeszotarski said Voishvillo's threats against
staff could be consistent with schizophrenia paranoid type. This portion of their testimony does not
conflict with the opinions of Matthews and Fennell. The trial court could accept these facts and
reject the defense experts' ultimate conclusions. (Kennemur
v. State of California,
p. 923.) The evidence is
sufficient.
Voishvillo contends that
during trial the trial court made remarks indicating it did not understand that
the People had to present proof beyond a reasonable doubt. He suggests the court consequently applied a
different standard of proof. We disagree.
Voishvillo notes that
during trial the trial court made the following remarks: "[T]his Court is not required to decide
that the correct diagnosis is one or the other.
I don't have the capacity to do that, the professionals can't agree on
it." "[W]e're all
struggling . . . .
[I]sn't it a concern where there is . . . some uncertainty
about whether the primary diagnosis is one or the other, isn't it of some
concern how he's going to be treated if he's released? And shouldn't there be a plan in place?"
Voishvillo suggests
these remarks and others show the trial court did not know the standard was
proof beyond a reasonable doubt. But
these comments were made during counsel's oral arguments. They were questions, responses to counsel and
rhetorical statements. The court
understood the correct burden of proof.
It said, "All that is necessary in terms of the prosecution's burden of proof is I conclude
Voishvillo suffers from a severe mental disorder." (Italics added.) The court's tentative or earlier remarks will
not impeach the judgment where its ultimate material findings are supported by
substantial evidence. (
Cal.App.4th 229, 268; Bogacki v. Board of
Supervisors (1971) 5 Cal.3d 771, 780, fn. 7; see also
conflict with its ultimate conclusion because the court may change its prior
rulings at any time before entry of judgment.
(Shaw, at p. 268;
Cal.App.4th 197, 203.) Here the court
ultimately found that Matthews' and Fennell's testimony was "persuasive in
terms of convincing [it] that [Voishvillo] suffers from a severe mental
disorder." That finding is
supported by substantial evidence.
We have reviewed
Voishvillo's remaining contentions and we conclude he has not shown error.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Brian
E. Hill, Judge
Superior
Court County of Santa Barbara
______________________________
Gerald J. Miller, 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, Scott A. Taryle, Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code.
