v. Moua
Filed
1/16/13 P. v. Moua CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY MOUA,
Defendant and Appellant.
F062976
(Super. Ct. No. CF05909490)
APPEAL
from a judgment of the Superior Court of
County. Gary R. Orozco, Judge.
Paul
Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna
and Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Appellant
Billy Moua was found to be a mentally
disordered offender (MDO) and involuntarily committed to a mental health
facility for one year for treatment.
Moua contends his commitment as a MDO is invalid pursuant to either
Penal Code section 2962 or 2970.
the finding that he: (1) has a severe
mental disorder or (2) lacks the ability to control his dangerous behavior.
The
People concede section 2962 cannot support Moua’s commitment, but assert the
commitment is valid under section 2970 and that substantial evidence supports
the findings.
We
agree and will affirm.
FACTUAL AND PROCEDURAL SUMMARY
On
June 8, 2011, the Fresno County District Attorney’s Office filed a petition
pursuant to sections 2962 and 2970 seeking to commit Moua as a MDO. Moua was originally convicted of assault with
a deadly weapon. Moua had become
agitated when an ice cream truck was in the parking lot of the apartment
complex where he lived; Moua yelled at the driver and then attacked the truck
with an object, breaking the window.
A jury was
empanelled to try the case on July 13, 2011.
In support of the petition, the People presented testimony from Dr.
Donald Tweedie, a clinical psychologist.
Tweedie opined that Moua suffers from a severe
Moua’s history of signs and symptoms, his behavior during an in-person
interview, and Moua’s prior mental health evaluations.
Moua
showed signs of impulsivity, aggression towards others, episodes of high
energy, episodes of depressive mood, and great difficulties with impulse
control. His symptoms included
depression, anxiety, difficulty sleeping, and agitation. Tweedie also described specific instances
where Moua showed aggression toward others.
Tweedie also noted that Moua has an extensive history of psychiatric
hospitalizations.
Tweedie
diagnosed Moua with mood disorder not otherwise specified, which is a general
diagnosis. Tweedie concluded that Moua’s
disorder qualified as a severe mental disorder because it significantly
impaired Moua’s impulse control.
Tweedie also
opined that Moua’s disorder was not in remission. A patient can demonstrate that a severe
mental disorder cannot be kept in remission without treatment in four
ways: (1) engaging in violence toward
others; (2) making threats toward others; (3) failing to comply with treatment;
and (4) destroying property. Tweedie
opined that Moua demonstrated some of these factors, as shown by Moua’s failure
to take his medications on numerous occasions and to comply with treatment;
threats he made to officers taking him into custody; and fights while in
custody.
Dr. Emily
Wisniewski also testified for the People as an expert in the area of forensic
psychology. She opined that Moua
suffered from a mood or psychotic disorder and that it was a severe mental
disorder. Wisniewski noted that Moua’s
symptoms included elevated mood, fast or pressurized speech, loud speech,
hyper-talkativeness, tangential thoughts, auditory hallucinations, aggression,
agitation, paranoia, and delusional beliefs.
Moua also engaged in numerous instances of assaultive behavior while
incarcerated or hospitalized at Atascadero State Hospital.
Wisniewski
testified that in her opinion, Moua’s mental disorder was at least an
aggravating, if not the causative factor, in the commission of his crime. She also testified that Moua’s mental
disorder was not in remission.
Wisniewski opined that Moua presents a substantial danger to others, in
that he had a history of violent behavior toward others when he was symptomatic
and not stabilized on medication.
Moua testified
in his own behalf. He stated that he did
not have serious difficulty controlling his behavior; each time he engaged in
assaultive conduct, he was in control and knew what he was doing; and he did
not pose a substantial risk of harm to others.
On
July 18, 2011, the jury found the allegations of the petition to be true. The trial court ordered Moua to undergo
continued treatment for an additional year.
DISCUSSION
Moua
contends the petition to extend his commitment as a MDO was invalid under
either section 2962 or 2970. He also
contends there is insufficient evidence to support the findings that he has a
severe mental disorder and that he has serious difficulty in controlling his
behavior.
Petition to Extend Commitment
Moua contends
the petition to extend his commitment as a MDO was invalid because it failed to
establish he previously had been certified as a MDO. Alternatively, he contends the People sought
to pursue a section 2962 and a section 2970 commitment in a single petition.
The People
concede that the requirements of section 2962 were not satisfied. Therefore, we will address only whether there
is a proper recommitment pursuant to section 2970.
Section 2970
provides, in relevant part: “Not later
than 180 days prior to the termination of parole, … if the prisoner’s severe
mental disorder is not in remission or cannot be kept in remission without
treatment, the medical director of the state hospital which is treating the
parolee, … shall submit to the district attorney … his or her written
evaluation on remission.… [¶] The district attorney may then file a
petition with the superior court for continued involuntary treatment for one
year. The petition shall be accompanied
by affidavits specifying that treatment, while the prisoner was released from prison
on parole, has been continuously provided … either in a state hospital or in an
outpatient program. The petition shall
also specify that the prisoner has a severe mental disorder, that the severe
mental disorder is not in remission or cannot be kept in remission if the
person’s treatment is not continued, and that, by reason of his or her severe
mental disorder, the prisoner represents a substantial danger of physical harm
to others.â€
In July 2008,
Moua was certified as a MDO and committed for treatment. In November 2010, San Luis Obispo County
Superior Court decertified Moua as a MDO because his mental disorder appeared
to be in remission. Moua was released on
parole on November 10, 2010. On
November 14, 2010, Moua was arrested for public intoxication and making
threats, and was returned to custody.
Moua was placed in a mental health unit.
Moua contends
the petition for continued treatment as a MDO was invalid because there was no
commitment for treatment in place that could be continued. He is mistaken.
First, the
petition was accompanied by an affidavit from O. Del Pilar, the chief
psychiatrist at Wasco State Prison.
Pilar’s affidavit stated that Moua had been continuously treated by the
State Department of Mental Health as a condition of parole. Second, the petition alleged that Moua’s
severe mental disorder was not in remission, could not be controlled by
psychotropic medications or psychological support, and that by virtue of his
severe mental disorder, Moua presented a substantial danger of physical harm to
others if released. The petition and
accompanying affidavit alleged all the requisite facts for a continued
commitment. (§ 2970.)
Nothing in
section 2970 requires the People to plead the existence of a valid section 2962
petition. Moreover, if the petition was
defective, Moua should have raised this issue in the trial court, for failure
to raise a defect in the petition constitutes a waiver of the defect. (People
v. Williams (1999) 77 Cal.App.4th 436, 459 & fn. 11.)
appropriate when the alleged defect involves factual issues, such as here where
Moua now claims the existence of a section 2962 petition had to be pled and
proven, because if Moua had demurred or otherwise raised the alleged defect in
the trial court, the People would have had an opportunity to correct any
defect. (People v. Williams, supra,
Moua cites
Cal.App.4th 612 for the proposition that an offender cannot be recommitted as a
MDO under section 2970 if the offender was never committed as a MDO under
section 2962. Crivello stands for the limited proposition that an offender who
could not be committed under section 2962 because of a failure of proof of the
static criteria—whether a severe mental disorder was an aggravating or
causative factor in the offenses—cannot later be subject to a section 2970
petition. (Crivello, supra, at pp.
616-617.) Moua’s reliance on
initially certified pursuant to section 2962.
Moua’s brief decertification was based on a failure of proof of dynamic
criteria—whether the severe mental disorder was in remission. (Lopez
v. Superior Court (2010) 50 Cal.4th 1055, 1062.)
Substantial Evidence
Moua contends
there is no substantial evidence to support the finding that: (1) he has a severe mental disorder and
(2) lacks the ability to control his dangerous behavior. We review the trial court’s findings for substantial
evidence. (People v. Pace (1994) 27 Cal.App.4th 795, 797.)
The trial court must recommit a MDO
for an additional year of psychiatric treatment where the court or jury find
beyond a reasonable doubt that the offender (1) has a severe mental disorder,
(2) the severe mental disorder is not in remission or cannot be kept in
remission without continued treatment, and (3) by reason of the severe mental
disorder, the MDO represents a substantial danger of physical harm to
others. (§§ 2970, 2972.) A severe mental disorder is defined as:
“an illness or disease or condition
that substantially impairs the person’s thought, perception of reality,
emotional process, or judgment; or which grossly impairs behavior; or that
demonstrates evidence of an acute brain syndrome for which prompt remission, in
the absence of treatment, is unlikely.â€
(§ 2962, subd. (a)(2).)
Here,
two experts testified regarding the signs and symptoms presented by Moua and
offered their opinions that Moua suffered from a severe mental disorder. Tweedie testified regarding Moua’s
impulsivity, aggression toward others, episodes of high energy, episodes of
depressive mood, difficulty with impulse control, auditory hallucinations,
depression, anxiety, and agitation.
Tweedie concluded that Moua suffered from a severe mental disorder,
diagnosed as a mood disorder not otherwise specified.
Wisniewski
also concluded that Moua suffered from a severe mental disorder, which she
diagnosed as a mood disorder
or psychotic disorder. She based
this diagnosis on Moua’s symptoms and signs, which she described in her
testimony as elevated mood, fast or pressurized speech, loud speech,
hyper-talkativeness, tangential thoughts, auditory hallucinations, aggression,
agitation, paranoia, and delusional beliefs.
Moua
contends that the diagnoses of Tweedie and Wisniewski were not specific enough
to support the jury’s finding that he suffered from a severe mental
disorder. Section 2962, however,
does not require a specific diagnosis to support a finding of a severe mental
disorder. Where testimony regarding an
expert diagnosis is supported by evidence of the defendant’s history, symptoms,
treatment, and medication, as here, this constitutes substantial evidence
supporting a finding of a severe mental disorder. (People
v. Butler (1999) 74 Cal.App.4th 557, 563.)
Where
the evidence is sufficient to support the finding, this court does not reweigh
or reinterpret the evidence. (
p. 798.)
Behavior
Moua
also contends the evidence is insufficient to support a finding that because of
his severe mental disorder, he lacked the ability to control his dangerous
behavior. We disagree.
The
standard of proof at trial for determining whether Moua presents a “substantial
danger of physical harm to others†is proof beyond a reasonable doubt.
(§ 2972, subds. (a) & (c).) In context, substantial danger of physical
harm to others “appears to mean a prediction of future dangerousness by mental
health professionals.†(
24.) “‘[S]ubstantial danger of physical
harm’†does not require proof of a recent overt act. (§2962, subd. (f); see People v. Hubbart (2001) 88 Cal.App.4th 1202, 1219.)
Both
Tweedie and Wisniewski opined that Moua presented a substantial danger of
physical harm to others as a result of his severe mental disorder. A mere four days after Moua was released on
parole, he was arrested for public intoxication and making threats, and was
returned to custody. After violating his
parole and being placed into custody, Moua instigated two fights while in
custody and was written up for battery on inmates. These instances of violence against other
inmates occurred after it was reported that Moua had an elevated mood and was
agitated. Moua’s original offense was an
assault on an ice cream vendor, and while hospitalized for treatment, Moua
committed assaults.
Wisniewski
opined that Moua’s disorder was a causative factor in his original criminal
assault offense. Shortly before
committing that assault, Moua had been involuntarily hospitalized for
psychiatric treatment. After the
assault, Moua expressed paranoid beliefs about the victim. Tweedie opined that Moua’s history of assaultive
behavior, combined with his substance abuse problem and history of gang involvement
were factors that were to be considered when assessing whether Moua presented a
danger to others as a result of his severe mental disorder, because those
factors impacted Moua’s ability to comply with any outpatient treatment.
Moua
cites In re Anthony C. (2006) 138
Cal.App.4th 1493 for the proposition that substantial evidence he presents a
danger of physical harm to others is not present in his case. In the case of In re Anthony C., however, unlike here, the expert testimony was
that the defendant posed “‘some risk, moderate at least,’†but not a serious
risk. (Id. at p. 1507.) Expert
opinion testimony presented also disclosed that the expert had not prepared a
formal risk assessment evaluation; was unable to identify the risk factors for
the defendant; and was reluctant to quantify how high a risk the defendant
posed. (Ibid.) In Moua’s case, both
experts interviewed and evaluated him, identified the risk factors, and
quantified the risk, with both concluding that Moua posed a substantial danger
of physical harm to others.
DISPOSITION
The
judgment is affirmed.
_____________________
Kane,
Acting P.J.
WE CONCUR:
_____________________
Poochigian, J.
_____________________
Franson, J.
name="_ftn1" title="">[1] References to code sections are to the Penal Code unless
otherwise specified.
name="_ftn2" title="">[2] Although the loss of the right to
challenge a ruling on appeal because of the failure to object in the trial
court is often referred to as a “waiver,†the correct legal term for the loss
of a right based on failure to timely assert it is “forfeiture,†because a
person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the “‘“intentional
relinquishment or abandonment of a known right.â€â€™â€ (In
re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Nevertheless, since the cited cases use the
term “waiver†in this context, we use it also.
