P. v. Kelso











Filed 6/29/12 P. v. Kelso CA1/5









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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

FIRST APPELLATE DISTRICT

DIVISION FIVE









THE PEOPLE,



Plaintiff and Respondent, A133127



v. (>Solano >County

Super.
Ct.> No. FCR190338)

JOHN DONALD KELSO,



Defendant and Appellant.

___________________________________/



John Donald Kelso appeals from an
order that extends his commitment as a mentally
disordered offender (MDO) for one year.
He contends the order must be reversed because it is not supported by
substantial evidence. We disagree and
will affirm.

I.
FACTUAL AND PROCEDURAL BACKGROUND

In February 2011, the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Solano
County District Attorney filed a petition under Penal Code section 2970href="#_ftn1" name="_ftnref1" title="">[1]
seeking to extend appellant’s commitment as an MDO. The petition alleged appellant had been
convicted of battery on a peace officer (§ 243, subd. (c)(2)), and that
while confined in state prison, appellant had been committed to Patton State Hospital as an MDO.

The case proceeded to a jury trial
in August 2011, where Dr. Stoyan Rusev testified. Dr. Rusev is a board certified href="http://www.sandiegohealthdirectory.com/">psychiatrist who treated
appellant from June 29, 2010, through October
11, 2010. Dr. Rusev also reviewed appellant’s mental
health records and consulted with Dr. John Thiel, who was then treating
appellant. Based on that review Dr.
Rusev diagnosed appellant as suffering from severe href="http://www.sandiegohealthdirectory.com/">mental disorder known as
schizoaffective disorder bipolar type and polysubstance dependence in a
controlled environment.

Appellant’s disorders caused a
variety of symptoms. Appellant
experienced auditory hallucinations and had manic episodes where he displayed
disorganized behavior such as smearing feces on his face and body. Appellant also had paranoid delusions that he
was being kept as a political prisoner and that people were stealing his
property. At the time of trial,
appellant believed there was a needle stuck in his eye.

Appellant had a long history of threatening
and violent behavior including assaulting a police officer and a sexual
offense. Then in 2009, appellant
threatened to kill a female staff member and his own psychiatrist. After these incidents, appellant was ordered
by a court to receive an antipsychotic injection each month.

Appellant denied he had a serious
mental illness or that he suffered from delusions or hallucinations. As a result, Dr. Rusev believed that if
appellant was released, he would stop taking his medications and his condition
would become significantly worse.

Dr. Rusev believed appellant was a
substantial danger to the community because of his mental illness. Appellant’s history of violent conduct, his
lack of insight into his mental disorder, and his threatening behavior all
suggested appellant was at risk for future dangerous behavior.

Jurors considering this evidence
found the allegations of the petition to be true. Subsequently, the court extended appellant’s
commitment for one year to April 1, 2012.


II.
DISCUSSION

A.
Whether the Appeal is Moot

Before we turn to the arguments
appellant has advanced, we must first address a procedural issue. As we have noted, the trial court extended
appellant’s commitment for one year to April 1, 2012.
While this appeal was being briefed, respondent provided and this court
took judicial notice of a recent order of the Solano County Superior Court that
shows appellant stipulated to an extension of his commitment for one more year
until April 1, 2013.
Respondent now argues the appeal must be dismissed as moot because the
commitment appellant challenges has expired.

While there is considerable merit to
respondent’s argument (People v.
Hartshorn (2012) 202 Cal.App.4th 1145, 1151), we are also aware of
authority that indicates where an appellant’s commitment has been extended, a
pending appeal is not moot because the appellate court’s decision “may still
affect the lower court’s right to continue jurisdiction under the original
commitment as well as the recommitment.”
(People v. Fernandez (1999) 70
Cal.App.4th 117, 135.) Under these
circumstances, we decline to dismiss the appeal as moot and will turn to the
arguments appellant has advanced.

B.
Sufficiency of the Evidence

Appellant contends his commitment
must be reversed because it is not supported by substantial evidence.

Section 2972, subdivision (c) states
an MDO may be recommitted for an additional term of one year “[i]f the . . .
jury finds that the patient has a severe mental disorder, that the patient’s
severe mental disorder is not in remission or cannot be kept in remission
without treatment, and that by reason of his . . . mental disorder, the patient
represents a substantial danger of physical harm to others . . . .” The findings supporting a recommitment order
will be affirmed on appeal so long as they are supported by substantial
evidence. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.)

Here, appellant challenges the
jury’s findings in two respects. First,
he argues there was no substantial evidence to support the conclusion that he
was “dangerous by reason of a mental disorder.”
We disagree. Dr. Rusev addressed
this point specifically. He agreed
appellant represented a substantial danger to others because of his severe
mental disorder. This conclusion was
supported by a variety of factors.
Appellant’s history of violent conduct, his lack of insight into his
mental disorder, and his threatening behavior all suggested appellant’s
judgment was poor and that he was at risk of future dangerous behavior. Plainly there was substantial evidence to
support the conclusion that appellant was dangerous because of his mental
disorder.

The arguments appellant makes do not
convince us a different conclusion is required.
Appellant contends Dr. Rusev’s conclusion was invalid because he “never
actually described any dangerous behavior.”
This is incorrect. The doctor
said appellant threatened to kill a female staff member and his own psychiatrist. No more was required.

Appellant also complains that his
threatening behavior was “not current” because it occurred in 2009. Appellant has not cited any authority that
holds that prior threatening conduct must occur in any specific time period,
and in our view, appellant’s threats were sufficiently serious and sufficiently
recent to be relevant.

Appellant also complains that Dr.
Rusev was not treating him at the time of the trial and that he had not treated
him for nearly a year. While that is
true, Dr. Rusev also stated he had consulted with the psychiatrist who was treating
appellant at the time of trial, Dr. John Thiel.
Any claimed deficiency on this point went simply to the weight of Dr.
Rusev’s testimony.

Furthermore, all of appellant’s
arguments on this point fail for a more fundamental reason. The issue on appeal is whether there is
substantial evidence to support the conclusion that appellant was dangerous by
reason of a mental disorder and as we have stated, there was substantial
evidence to support that conclusion. The
fact that the record also contains other evidence that might have supported a
different conclusion is irrelevant. (>People v. Castro (2006) 138 Cal.App.4th
137, 140.)

Appellant’s second argument fares no
better. He contends the evidence
presented at trial was insufficient to support the conclusion that he “lacked
the volitional capacity to control [his] dangerous behavior.”href="#_ftn2" name="_ftnref2" title="">[2] This is incorrect. Dr. Rusev testified that appellant suffers
from a serious mental disorder that causes him to be a substantial danger of
physical harm to others. The problem is
so serious that appellant has been ordered by a court to receive antipsychotic
injections. But appellant denies that he
has a serious mental disorder. This
denial not only makes it “impossible” to treat appellant, it “increases his
potential for violence because he cannot
recognize . . . [the] worsening of his condition.” (Italics added.) Jurors considering this evidence reasonably
could conclude that appellant’s inability to recognize that he is suffering
from a serious mental disease makes him unable to control his dangerous
behavior.

The primary cases upon which
appellant relies are distinguishable.
The court in In re Anthony C. (2006)
138 Cal.App.4th 1493, ruled expert testimony that established the minor was at
“moderate” risk of reoffense was insufficient to support the conclusion that he
had “‘serious difficulty’” in controlling his behavior. (Id.
at p. 1507.) The court in >In re Howard N. (2005) 35 Cal.4th 117,
138, found no evidence that any expert had found the juvenile’s mental disorder
made him unable to control his dangerous behavior. And in People
v. Galindo (2006) 142 Cal.App.4th 531, the court found the trial court’s
failure to consider the “control” issue was not harmless beyond a reasonable
doubt because there was no evidence the defendant had even tried to control his
dangerous behavior. (>Id. at pp. 538-539.)

Here, by contrast the evidence shows
not only that appellant has not controlled his aberrant behavior, but that he
lacks the ability to do so because he does not even recognize he suffers from a
serious mental disorder. The cases
appellant relies upon are not controlling.

We conclude the order is supported
by substantial evidence.

III.
DISPOSITION

The commitment order is affirmed.



_________________________

Jones,
P.J.





We concur:



_________________________

Needham, J.



_________________________

Bruiniers, J.