P. v. McDonough
Filed 2/5/13 P. v. McDonough CA4/3
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opinion has not been certified for publication or ordered published for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.
MARIE CHANTAL McDONOUGH,
Defendant and Appellant.
G046021
(Super. Ct. No. 98NF3762)
O P I
N I O N
Appeal from an order of
the Superior Court
of
County, M. Marc Kelly, Judge.
Affirmed.
Harry Zimmerman, 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, Barry Carlton and Joy Utomi, Deputy
Attorneys General, for Plaintiff and Respondent.
* * *
Appellant
Marie Chantal McDonough, who had been committed to the state hospital as a
result of having been found not guilty by reason of insanity in a felony
prosecution. Eight years later, the
director of the Metropolitan State
Hospital filed a semiannual report
recommending appellant be placed in outpatient
treatment. (Pen. Code, § 1603, subd.
(a)(1); all statutory references are to the Penal Code unless otherwise
stated.) The superior court held a
hearing on the matter and denied appellant outpatient treatment. In a published opinion we reversed “because
the trial court did not find appellant is currently mentally ill
status because it did not find the treatment program appropriate.†(People
v. McDonough (2012) 196 Cal.App.4th 1472, 1493.) We directed the trial court on remand to
consider the evidence from the trial, any other relevant evidence the parties
may offer, and determine whether appellant carried her burden by a
entitled to outpatient treatment. (
The parties offered no
new evidence on remand. The trial court
reviewed the evidence from the first hearing and again denied outpatient
treatment, finding appellant to be currently dangerous.
I
FACTS
As no new evidence was
offered and admitted on remand, we use the facts set forth in our first opinion
in this matter. (People v. McDonough, supra,
196 Cal.App.4th 1472.)
“
Setting
1999, an information alleged appellant assaulted her father, Ernest, with a
firearm (§ 245, subd. (a)(2)), committed two acts of elder abuse (§ 368, subd.
(a)), one count naming her father as the victim and the other naming her mother
as the victim, on December 29, 1998. The information also alleged appellant
personally used a firearm in the commission of each of the offenses. (§ 12022.5, subd. (a).) As a result of delusions, appellant purchased
a shotgun and went to her parents’ residence to protect her mother from her
father. During the incident at her
parents’ home, she chased her father, threatened to assault him, and discharged
the weapon, hitting the ceiling. No one
was harmed.
“Criminal proceedings
were suspended at one point because appellant was not competent to stand
trial. (§ 1368.) Once competency was restored, she entered a
plea of not guilty by reason of insanity to each charge. After considering the reports of the two
doctors who evaluated her, the court found appellant not guilty by reason of
insanity and set her maximum term of commitment at 16 years. The court ordered appellant committed to Patton
State Hospital
on May 10, 2000. She was transferred to MSH on December 5, 2000.
“In August 2002,
appellant filed an application for release and outpatient treatment pursuant to
section 1026.2. She withdrew the
petition a month later. Appellant filed another section 1026.2 application for
outpatient treatment in January 2004.
That application was also withdrawn.
In November 2004, appellant filed a petition for restoration of sanity
pursuant to section 1026.2, subdivision (e).
That petition was subsequently withdrawn as well. Appellant filed a petition for restoration of
sanity and unconditional release in September 2005. The court appointed Drs. Kaushal Sharma, a
psychiatrist, and Veronica Thomas, a psychologist, to examine appellant. Up to this point in time, every semiannual
report filed by Patton State Hospital and MSH recommended appellant’s retention
at the hospital because she continued to be mentally ill and a danger to the
health and safety of others, even if furnished supervision and treatment in the
community.
“The court held a
hearing on appellant’s petition in October 2006. During the hearing, appellant
withdrew the petition for restoration of sanity. The court found appellant had not carried her
burden and denied the request for outpatient treatment.
“In April 2008, MSH’s
semiannual interval report recommended placing appellant in outpatient
treatment. The report stated the consensus
of the wellness and recovery treatment team was that appellant was ready for
outpatient treatment, appellant had been accepted for community outpatient
treatment, and she no longer posed a danger while under supervision in
community.
“
Outpatient Treatment: Expert Testimony
“The court held a
hearing on the recommendation in September 2009.
(§
1604, subd. (c).) As the Attorney
General acknowledges, appellant presented the testimony of a number of mental
health professionals, all of whom agreed she could safely be released to an
outpatient program. The prosecution did
not present any expert testimony.
“Dr. Stephanie Walker
has been a staff psychologist at MSH since December 2007 and has treated
appellant since that time. Walker
is familiar with appellant’s psychiatric history. Appellant started experiencing symptoms,
primarily delusions, in her early 20’s and has been hospitalized nine to 11
times. Her initial diagnosis of mental
illness occurred around 1986. There have
been several diagnoses, including delusional disorder (persecutory type),
schizophrenia, and bipolar disorder. Walker
said appellant never received stable outpatient treatment and was never
stabilized on psychiatric medication until her current hospitalization. Appellant is currently prescribed Abilify, an
antipsychotic, and Zoloft, an antidepressant.
“Walker
reviewed appellant’s wellness and recovery plan. Appellant is in a maintenance stage. This involves creating a relapse prevention plan. The plan requires appellant to have insight
into her diagnosis and to learn coping skills.
Insight requires knowledge of her symptoms and the triggers that impact
those symptoms. According to Walker,
appellant knows both. She knows her
biggest coping skill is taking her medication.
She has been taking Abilify since 2005, and would exhibit delusional
symptoms if she stopped taking the drug.
“Walker
said appellant’s specific relapse prevention plan is ‘very extensive’ and
involves knowing what resources she can go to if symptoms appear. Appellant is ‘very familiar’ with the Fresno
CONREP facility and whom to contact there.
She also knows of groups she can attend there, the hospital, and that
she can consult her psychiatrist.
“Walker
said appellant is friendly with staff, patients, and has been danger free for
the past 18 months. Appellant has been
symptom free since Walker has
worked with her. Walker
concluded appellant is not a danger to herself or others and has benefitted to
the maximum extent possible from the groups at the hospital, has ‘exceptional
insight,’ and can safely be treated in the community. Appellant is ready to transfer to Fresno
CONREP outpatient treatment and the transition would benefit her. In fact, Walker
stated it would be detrimental to keep appellant in the hospital, receiving the
same treatment she has already received with nothing more to learn there.
“Walker
said appellant does not attend group therapy classes that repeat what she has
already learned. For example, the
medication and wellness class is a 12-week course and the curriculum
Algebra I class over and over again.
Appellant does, however, consistently attend groups with a curriculum
that changes from time to time.
“Dr. Thomas Grayden
evaluated appellant at the request of her attorney. Grayden has previously qualified as an expert
in forensic psychiatry in Orange County Superior Court. After having reviewed appellant’s record,
interviewing appellant, and speaking with a number of staff, his primary
diagnosis is that appellant has an unspecified bipolar disorder, characterized
by a history of depressive episodes and at least one manic or hypomanic episode
historically. The unspecified subtype
allows a ‘description to have other co-morbid type of diagnoses in conjunction
with it such as a delusional disorder.’
Grayden said his review of the records indicates appellant has not had
any psychotic symptoms for three years.
He further testified she does not pose a threat to herself or others and
lacks risk factors that would otherwise be cause for concern. He concluded she does not require a locked
state hospital setting and outpatient treatment away from her family is
appropriate. He recommended placement in
a less restrictive setting such as Fresno CONREP, and added that from a safety
standpoint, it would give appellant distance from her father and provide a
means of lessening her enmeshment with her mother, allowing appellant to get on
with her own life.
“The prosecutor asked
Walker and Grayden about an April 8, 2008 entry in appellant’s file. That entry noted appellant was lying on the
floor during a writing activity and was instructed to get off the floor. According to the note, appellant became hostile,
loud, and verbally abusive, telling the staff member who made the entry, ‘you
are lying and making this up . . . .’
The incident did not change either doctor’s opinion.
“Dr. Inessa Essaian, a
psychiatrist at MSH, has treated appellant since August 2007. Appellant’s current diagnosis is delusional
disorder, persecutory type. She has also
been diagnosed in the past with schizophrenia and bipolar disorder. The doctor stated all three diagnoses
‘overlap at some point,’ but believes appellant’s main problem is the
persecutory delusions. Bipolar disorder
and delusional disorder overlap as well when one has a special manic episode
with delusional beliefs. However,
bipolar disorder requires a history of at least one manic episode and there are
no such documented episodes in appellant’s history.
“A hospital report dated
July 9, 2009, indicates appellant has met all objectives and discharge criteria
of the hospital. Essaian agrees with the report’s recommendation for CONREP
placement. In the two years she has
worked with appellant, Essaian has not observed any behavior that would lead
her to conclude appellant would be a danger to anyone. She added that appellant has been
asymptomatic for two years, has good coping skills, and has developed good
insight into her mental illness.
“The
facts surrounding the crime that resulted in appellant’s commitment offense and
a prior incident, where appellant purportedly poured gasoline on her father and
tried to light a match, would not change the doctor’s opinion. Those incidents occurred because appellant
was having intense delusions and had been drinking and using drugs around that
time. Essaian said appellant is ‘very
stable right now’ and it is important to transition her to outpatient treatment
at this time. Appellant has met all the
goals in the hospital, developed good insight into her illness, and has a
viable relapse prevention plan. The
different diagnoses do not affect Essaian’s opinion. The treatments for bipolar
disorder and delusional disorder are the same and appellant has a good history
of medication compliance.
“Mark Duarte is a
licensed clinical social worker and the director of Central California’s CONREP
since 1987. He has testified as an
expert on the subject of whether an individual can be treated safely while
under the care of CONREP and whether the person poses a danger to self or
others. He knows appellant. He said appellant started experiencing
depressive episodes in college and experimented with drugs that would
exacerbate a mental illness and create a thought disorder. She was in ‘full-blown psychosis for a lot of
that time.’ She was committed
temporarily pursuant to Welfare and Institutions Code section 5150, medicated,
stabilized, and released. Once released, she stopped taking her medication, did
not keep her appointments with mental health professionals, and relapsed. Duarte said appellant had been committed 12
times.
“Appellant’s hospital
records contain a report by Dr. Burchuk stating appellant stated the
television, radios, and birds were sending messages to her. Duarte said those are common psychotic
symptoms. Appellant also thought red
cars meant her mother was going to be killed by the devil.
“Duarte submitted a
report to the court in May 2008, after meeting with clinical staff and
reviewing appellant’s medical and clinical records at MSH. He also met appellant’s parents. His report recommended outpatient treatment
and supervision in CONREP.
“Fresno CONREP has a
one-to-10 staff-to-client ratio and presently has 74 clients, each with a
mental disease or defect that cannot be cured.
CONREP’s purpose is to provide enhanced protection to the community
through a standardized system of treatment and supervision. Individual therapy and group therapy are
provided and CONREP performs home visits, toxicology screening, collateral
contacts, and annual assessments. During
the first year, home visits might occur every other week, but daily visits are
made as needed.
“When one is admitted to
CONREP, CONREP usually picks the patient up at the hospital. CONREP provides five levels of treatment:
intensive, intermediate, supportive, transitional, and aftercare. For those in need of ‘decompression from the
hospital,’ CONREP has a 90-day transitional residential program. CONREP also furnishes shared living
apartments or houses. Duarte does not
feel appellant needs a 90-day transitional setting. Rather, he intends to place her in an
intensive setting in an unsecured two-bedroom apartment with other peers in
CONREP. No mental health professionals
live in the apartment, but the apartment is within walking distance of the
program. The residential setting is
supervised by staff.
“Duarte described the
setting as follows: ‘There are two
female clients in the conditional release program that each have primary
clinicians, that each have access to clinical staff 24 hours a day, seven days
a week via telephone after hours or emergency home visits that we do after
hours. She’ll check in daily with us. We will make home visits. We will see her daily for at least the first
90 days that she is out in the program and we will get her a bus pass and we
will get her clothes and we will get her medical attention and we will get her
registered for school if that is what she wanted to do. We will find out by talking with [appellant]
everyday what she is capable of doing, what she is motivated to do, and what is
the best activity schedule for her . . . .’
“The clients who do not
go to school or have a job check in with CONREP by 9:30 a.m. each day. If the person is late or nonresponsive, a
home visit is immediately made. CONREP
has the key to every client’s residence.
The clients are subject to search and seizure and Duarte stated CONREP
is ‘very intrusive.’ CONREP corroborates
everything the clients do, including what groceries they have, what their
activities are, and whom they associate with.
CONREP is involved in ‘a very intense and direct way’ with each client
and seeks to be aware of all the client’s major life decisions. Clients are not permitted to travel out of
the county without written permission.
“By the time a patient
is placed with CONREP, CONREP will have made an assessment of the community
resources and benefits the person will need, and CONREP will walk the person
‘through every day until they can navigate pretty much on their own.’ Upon release to the program, appellant would
be assigned a primary clinician who would arrange for individual sessions,
daily at first, and perform certain case management functions such as helping
to establish eligibility for Social Security benefits. Arrangements for food, clothing, and shelter
would be made, and necessary medical attention is provided. Duarte stated that ‘as long as the person
follows their regimen[,] they do very well.’
“If it appears a client
has not been taking prescribed medications, the client is immediately remanded
into custody to await transfer to the state hospital. If the client is not from Fresno County, a
section 1610 hold is placed on the client and the committing court is
notified. The section 1610 hold may be
for up to 180 days if medication reevaluation is needed and a return to the
community is anticipated. In the past
when a client has absconded from CONREP, CONREP went to court, obtained a bench
warrant for the client’s arrest, and filed a section 1610 petition for
remanding the client into custody.
CONREP has a zero tolerance policy for unlawful drug use and would
petition the court to revoke outpatient status if a client uses unlawful
drugs. If granted outpatient treatment
with CONREP, appellant would not be permitted to stop treatment.
“Whether diagnosed as
bipolar or with delusional disorder makes no difference in appellant’s
treatment plan because she must comply with her medication regimen, which at
present includes Abilify and Zoloft.
Appellant is currently ‘quite stable’ on those medications. Fresno CONREP would assure medication
compliance by observing appellant take medications. Duarte will also watch a client take his or
her medication if there are concerns about medication compliance. Appellant would have routine lab work
performed and see CONREP’s psychiatrist once a month. Her behavior would be noted daily.
“Appellant signed the
terms and conditions of outpatient treatment.
The terms and conditions ‘are guidelines that are required by [Duarte’s]
conditional release program and have been standardized with the Department of
Mental Health throughout the state of family conditional release
programs.’ Fresno CONREP’s plan for
appellant’s treatment was filed in the court in May 2008. Appellant’s treatment goal is to ‘do good and
avoid evil.’
“Duarte said appellant
will not pose a danger to the health and safety of others if she is released in
a court-ordered outpatient treatment program.
He has not spoken with appellant’s siblings, but said he would if
appellant is released to CONREP. He did
interview appellant’s parents. They are
eager to have appellant released.
“CONREP requires a
client’s list of collateral contacts before being placed in the community. One of the purposes of the contact list is to
check and corroborate a client’s activities and statements. It aids in making CONREP aware of whether the
client is associating with people who might encourage her to consume alcohol or
illegal drugs. In other words, the
contact list is a means of determining whether the client’s stability may be
affected by the associations. The only
contacts appellant disclosed were her parents.
Appellant knows she is to have no contact whatsoever with her sister
Michele and her brother Dennis. Duarte
said appellant’s brother and sister are free to contact him about any concerns
or questions.
“Duarte knew ‘there have
been several instances of infractions on the units’ after his initial report,
but was not aware appellant’s grounds privileges had been ‘pulled.’ He said that if the grounds privileges were
pulled because she did not comply with unit routine, that would not affect his
opinion. He looks for six months of infraction-free conduct, but what is important
is whether the infraction was serious or minor.
“HCR-201
is a standardized test sometimes used to assess the risk of individuals to be
released into the community. The test
has not been given to appellant and would be administered once she is transferred
to CONREP.
“The parties stipulated
Dr. Jody Ward is qualified to testify as an expert in the field of forensic
psychology. Ward was appointed by the
court to evaluate appellant at the request of the district attorney, and to give
an opinion as to appellant’s readiness for outpatient treatment. Ward has
performed at least 100 evaluations to determine whether a patient in a secure
hospital should be transitioned into the community. Most of her appointments have come at the
request of the district attorney. The
vast majority of the time (75 to 80 percent), Ward concludes the patient is not
ready to leave the secure hospital setting.
She described herself as very conservative in this regard, having worked
at Napa State Hospital and MSH.
“The doctor met with
appellant in April 2009. Appellant told
Ward that she had been ‘a party animal’ in college. She said she used marijuana, alcohol, and
tried cocaine and mushrooms. Appellant
also told the doctor she felt the drugs ‘tipped off’ her mental illness. She then started having vivid dreams, became
more delusional over time, and began to believe her father was hurting her
mother. She got a gun and tried to shoot
him.
“Ward also considered
writings attributed to appellant predating the commitment offense by a year or
more. Those had to do with appellant
wanting to kill a college professor she believed was a rapist. Ward said the writings were clearly written
by someone who was not of a sound mind.
“Ward made a June 2009
followup report at the request of the prosecutor, who asked Ward to review
transcripts of the deputy’s interviews of appellant’s brother and sister. Ward considered the transcripts.
“The doctor concluded
appellant ‘is ready for CONREP.’ The
doctor said appellant made the effort to change her release from Orange County
to Fresno as a concession to her family, which the doctor thought was
noteworthy and a ‘very positive thing,’ because appellant did not have to do
that.
“In reaching her
conclusion, Ward considered the committing offense, appellant’s mental illness
at the time of the offense, the hospital records indicating appellant ‘has not
shown any persecutory delusions for the last three years,’ and her interview
with appellant. The interview was
important to determine appellant’s insight into her mental illness and her plan
for treating the illness once she was released from the hospital. Ward said appellant has insight into the
mental illness, knows the delusions are false, and knows how the delusions
developed through vivid dreams and her prior thinking that the dreams were
special and significant. Appellant knows
dreams are triggers and that she has to pay close attention to that fact. Appellant also acknowledged that she was not
going to spend too much time alone, because she felt that was a trigger as
well.
“Ward and appellant
discussed stressors appellant is likely to encounter in a conditional release
program. Appellant said she would let
those around her know that she has been mentally ill before so that they can call
CONREP or intervene if the need arises.
Ward concluded appellant would pose no danger to herself or others. The fact that Fresno CONREP does not plan to
have appellant spend the first 90 days in a secure location does not change
Ward’s opinion. Neither does the fact that appellant has expressed a plan to
get married.
“Ward said that while
she is not a medical doctor, she does not believe medications affect delusional
disorders. In her opinion, the
therapeutic environment in the hospital heals the patients with delusional
disorders. Having said that, she is of
the opinion that the antipsychotic and antidepressant medications appellant
takes are important to her treatment.
Ward’s opinion about the role of medications is different if a patient
has a bipolar disorder as opposed to a delusional disorder. The chemical imbalance present in patients
with a bipolar disorder needs to be controlled by medication. Ward was unaware that a doctor opined
appellant suffers from a bipolar disorder and not a delusional disorder, but
she disagrees that appellant has a bipolar disorder.
“
“The prosecution
presented one witness, Dr. Stacey Berardino, a forensic psychologist. Berardino did not testify as an expert. Rather, she testified only to statements
appellant made to her when she evaluated appellant in 2005 and 2006. The court overruled appellant’s objections to
Berardino’s testimony.
“Berardino spoke with
appellant about posttraumatic stress disorder on November 6, 2006. During that conversation, appellant said she
had been French-kissed by her father when she was 11 years old. Appellant said she had negative thoughts
about the incident and that she worried about it. She said she thinks about the incident every
two to three weeks when her parents visit and her father kisses her. Berardino asked how the family dynamics
played into the underlying commitment offense and appellant responded, ‘I
haven’t worked on this,’ but that anger at her father may have been involved in
the commitment offense. Appellant also
made statements about having nightmares.
“Berardino asked
appellant about medication and appellant stated the medication helps her think
more clearly and that she liked the medication, but that she went off the
medication for two years when she suffered a side effect from the
medication. Appellant said being off the
medication did not adversely affect her.
When Berardino interviewed appellant in 2005, appellant said the
medication does not do anything and that there is nothing for the medication to
do. She said talking is everything and
medication does not change who you are.
She added that she would have hurt her father even if she had been on
medication and that talk therapy is the key for her. Berardino asked her why she needed medications
and appellant answered that everybody in the hospital has to take medications
and she needs to take medicine to get on CONREP. She further stated she takes the medication
because her doctor thinks she should, and added that she had not suffered any
delusions since she has been in the hospital.
“Berardino admitted on
cross-examination that a patient’s understanding of the need to take medication
can change over time. She was not able
to state how quickly such a view may occur.
“In 1997, appellant’s
sister, Michele, found documents written by appellant inside appellant’s
car. She asked appellant about the
documents during a telephone conversation a day or two before the commitment
offense. Appellant said the documents
were her private journal and nobody else’s business. The writings were admitted into evidence and
contained appellant’s plans to kill Michele and her children, other family
members, and appellant’s former math professor.
“Michele said she is
skeptical appellant will comply with her medication regimen, based upon what
she perceives as appellant’s ‘long-standing pattern’ of agreeing to take
medications and not following through.
She was also skeptical because she had a telephone conversation with
appellant 10 years earlier, before the commitment offense, and appellant said
similar things about doing better.
During that conversation, appellant attempted to set up a face-to-face
meeting with their brother and the rest of the family. Appellant ‘clearly indicated that she would
not hurt anybody.’
“Michele has not had any
conversations with appellant since 1999.â€
(People v. McDonough,
1476-1485.)
The trial court denied
appellant outpatient status (§ 1604, subd. (d)) after the first trial. We reversed and remanded the matter “because
the trial court placed an undue burden on appellant, denying outpatient status
not because she would not benefit from outpatient treatment, but rather because
the court was not satisfied with the day-to-day details of the proposed
outpatient treatment program.†(
The parties did not
introduce any additional evidence on remand.
Appellant’s counsel took the position that as the trial court did not
make a finding as to dangerousness at the conclusion of the first trial,
appellant was entitled to outpatient status.
The People asserted the court had made a determination of dangerousness
in the first trial. The trial court read
the transcripts from the first trial and denied appellant outpatient status,
finding appellant did not carry her burden of proving by a preponderance of the
evidence that she is not dangerous. This
appeal ensued.
II
DISCUSSION
“Appellant was committed to the state hospital
because she had been found not guilty by reason of insanity. (§ 1026, subd. (a).) An insanity acquittee committed to a state
hospital may be released from the hospital as provided by section 1600 et seq.
(People v. Soiu (2003) 106
Cal.App.4th 1191, 1194-1195; §§ 1026.1, 1600.)
Pursuant to section 1600 et seq. ‘a defendant may be placed on
outpatient status if the director of the state hospital and the community
program director so recommend, and the trial court approves the recommendation
after hearing. [Citation.]’ [Citation.]â€
(People v. McDonough,
“We review the court’s
decision denying outpatient status for an abuse of discretion. [Citation.]â€
(People v. McDonough,
discretion in this matter, “we ‘consider whether the record demonstrates
reasons for the trial court’s disregard of the opinion of the treating doctors
and other specialists who [all] testified that defendant is no longer
dangerous.’ [Citation.]†(Ibid.) The mere fact that all the experts testified
in appellant’s favor does not necessarily mean a court errs in finding an
individual does not qualify for outpatient treatment because he or she remains
a danger. A trial court does not act as
a rubber stamp that merely approves the experts’ recommendation to place an
insanity committee on outpatient status.
(People v. Sword (1994) 29
Cal.App.4th 614, 628.)
The discretion to be
exercised by the trial court “‘is neither arbitrary nor capricious, but is an
impartial discretion, guided and controlled by fixed legal principles, to be
exercised in conformity with the spirit of the law, and in a manner to subserve
and not to impede or defeat the ends of substantial justice. [Citations.]’
[Citation.] ‘Obviously the term
is a broad and elastic one [citation] which we have equated with “the sound
judgment of the court, to be exercised according to the rules of law.†[Citation.]’
[Citation.] Thus, ‘[t]he courts
have never ascribed to judicial discretion a potential without restraint.’ [Citation.]
‘Discretion is compatible only with decisions “controlled by sound
principles of law, . . . free from partiality, not swayed by sympathy or warped
by prejudice . . . .†[Citation.]’ [Citation.]
‘[A]ll exercises of legal discretion must be grounded in reasoned
judgment and guided by legal principles and policies appropriate to the
particular matter at issue.’
[Citation.]†(
The insanity committee
(patient) must bear the burden in the trial court of proving by a preponderance
of evidence that he or she should be granted outpatient status. (People
v. Cross (2005) 127 Cal.App.4th 63, 72.)
To qualify for outpatient treatment, the court must find the patient is
no longer mentally ill or no longer dangerous.
(People v. McDonough,
status in this matter there certainly would have been sufficient evidence to
support the decision. All the experts
testified in favor of placing appellant in outpatient treatment, even the
expert appointed at the prosecutor’s request.
The court, however, denied outpatient status and found appellant was
still dangerous.
In 2000, appellant was
found not guilty by reason of insanity in a prosecution for assault with a
firearm and elder abuse. In the incident
underlying the prosecution, appellant assaulted her father with a shotgun, discharging
it once, and placed both her mother and father in a situation where their
health was endangered. Appellant
attacked her father because “[s]he had the idea that she needed to protect her
mother from her father, which actually had been a common thread through many of
her delusional episodes.†She was
thereafter committed to the state hospital under Penal Code section 1026,
subdivision (a).
In finding appellant to
be presently dangerous, the court considered the evidence previously presented
and stated it had “problems with a lot of the expert testimony presented by the
defense.†It appears the problem
consisted of the failure of experts to perform “a complete analysis with
respect to the patient’s history and with respect to her medications and
noncompliance, [and] with respect to changing diagnoses in terms of her mental
disease, disorders or defects.â€
While the testimony of
the witnesses seems quite credible on the cold record we review, it is the
trial court that observed the appearance and demeanor of the witnesses and
determines their credibility. (
187, 199-200.) The issue of witness
credibility and the weight to be given a witness’s testimony is for the trier
of fact to determine. (
614.) In this matter, the trial court
stated it did not accept as true all the evidence presented. Addressing the expert testimony, the trial
court stated, “Some of it also appeared
unbelievable, unreasonable, or
unsupported by the evidence.â€
(Italics added.) Specifically,
the court pointed to Dr. Stephanie Walker’s testimony about conflicting
diagnoses and the apparent bias in the testimony of the experts.
The original trial on
appellant’s petition for outpatient treatment took place in 2009. Dr. Walker, one of appellant’s treating
psychologists, stated appellant was aware of her disorder, can identify its
symptoms, and that appellant has “exceptional insight†into her diagnosis and
what circumstances trigger her symptoms.
The doctor said appellant would again become delusional if she stopped
taking her medication, and added she was not aware of any occasion of appellant
refusing medication. Clare Domingo, a
clinical social worker who has worked with appellant at the hospital since
2007, however, acknowledged there was a time prior to 2007 when appellant had
been noncompliant with her medication regime.
Walker was also asked
about an interdisciplinary note from 2008 in appellant’s file. Appellant had been lying on the floor and was
told to return to her room. The note
stated appellant became hostile and verbally abusive to the person who prepared
the note, stating, “You are lying and making this up, asshole.†There was another note from 2008 indicating
appellant continues to test the limits with staff, particularly male staff.
People’s witness, Dr.
Berardino, spoke with appellant in 2005.
She did not offer an opinion on appellant’s suitability for outpatient
treatment. Appellant told Bernardino the
medication she was taking did nothing for her, medication does not change who
one is, and that even if she had been on medications at the time of the
underlying incident she would still have tried to hurt her father. Appellant stated her belief that she had to
be on medication to be placed in outpatient treatment, but that
stopped taking the medication.
Appellant said everyone in the hospital must take medication to get
outpatient treatment through CONRP. She
said she does not have symptoms when she does not take medication, and the
medication is given as a prophylactic.
According to appellant, the key to her treatment is talk therapy. Appellant’s statements concerning taking medication
to remain in remission — that the symptoms would not return if she stopped
taking the medication — is contradicted by expert testimony and relates to
whether she is dangerous. Wells
testified appellant would become delusional again if she stopped taking her
medication.
As the evidence makes
evident, appellant is dangerous when she is delusional. Not only was there the episode with the
shotgun when she was delusional, there were other instances demonstrating
appellant’s dangerousness when delusional.
In 1997, two years before appellant’s attack on her father, appellant’s
sister Michelle found notebooks in appellant’s car. The notes were in appellant’s handwriting and
revealed her plans to kill Michelle, Michelle’s child and other family members,
as well as a math professor from college.
In December 1998, Michelle spoke with appellant on the telephone about
the writings. Appellant said the journal
was her private business and none of Michelle’s business.
Michelle was skeptical
of appellant’s claim that she will continue to take her medication. She said appellant has “a long-standing
pattern†of saying she will comply with a medication regimen and saying what
she needs to say to be released. A few
days before the shooting incident that caused her to be committed to the state
hospital system, appellant talked to Michelle, represented she was doing
better, and made promises (apparently of compliance with medications). In that conversation, appellant said she
wanted to have a face-to-face meeting with Michelle, their brother Dennis, and
the rest of the family. Appellant said
she would not hurt anyone.
Appellant’s sister also
said appellant has been hospitalized 13 times, and while she always promised to
comply with her medication regimen, she never followed through once
released. She said appellant has a
history of running away, as well. The
shooting incident with her father occurred within a year of appellant’s release
from a hospital. In 2006, when Michelle
visited appellant in the hospital, appellant said it was Michelle’s fault she
had been hospitalized so often.
Appellant spoke with
Dennis in 2006. When they spoke, he got
the impression she was hiding something.
She told him Michelle, a mental healthcare worker, attempted to murder
her three times. According to appellant,
Michelle was responsible for appellant’s institutionalization and as a result,
responsible for the three times the drugs appellant was prescribed at the
hospital nearly killed her.
During the same
conversation, appellant went off on a tangent about the presence of so many red
cars on the road and the fact that factories could not be making that
many. Dennis said appellant “had this
thing about the color red at least as far [back] as 1998.†Hospital records indicate appellant thought
red cars meant her mother was going to be killed by the devil and that
televisions, radios, and birds were sending messages to her.
As
to her taking her medication, appellant told Dennis, “I’m on record as saying
that the drugs I am currently being given are not appropriate for my conditionâ€
and “I take them because it’s expected of me and they give them to me because
it’s their job to drug people.â€
Dennis said in the
decades of his observing appellant’s behavior, he has been constantly reminded
of the “cyclical nature of her improvement and subsequent collapse†that have
followed healthcare professionals saying appellant has improved. He also related her statement that before
going to shoot their father, she had gone to a shooting range to practice. When confronted about her writing about
killing their sister and her baby, appellant said only that she wrote “kill all
the disgusting snots,†meaning all
the family members, and that she was sorry he read that.
The evidence concerning
appellant’s particular mental illness was in conflict as well. Walker said appellant suffers from a
delusional disorder and was prescribed Abilify to control delusions and Zoloft,
an antidepressant. Dr. Thomas Grayden
diagnosed appellant as suffering from a bipolar disorder. He said appellant’s symptoms and history are
diagnosis of a long-term delusional disorder.
Appellant had also been diagnosed in the past with schizophrenia.
Berardino also spoke to
appellant in 2006 about a recent posttraumatic stress syndrome diagnosis. In response to questioning about the
diagnosis, appellant stated her father had French-kissed her when she was 11
years old. Appellant said she had
negative thoughts about the incident and thought about it every two or three
weeks. In response to being asked
whether that incident played into the shotgun attack on her father, appellant
said, “I haven’t worked on this.†The
court concluded this issue was never addressed by the experts. “There is also evidence that there was a
sexual molestation by her father; that she was still angry at her father and
still harbored resentment concerning that.
To me, in analyzing all the testimony, that really was never
addressed. And the fact that there still
may be some anger issues there indicates that the defendant is still a danger .
. . if she’s released into the outpatient setting.â€
Six months before she
attacked her father with a shotgun, appellant poured gasoline on him and
attempted to set him aflame. The
existence of the gasoline incident caused the trial court to discredit Dr.
Grayden’s opinion that appellant was not dangerous. Grayden based his conclusion that appellant
was not dangerous, in part, on appellant not any history of fire setting and no
other violent behaviors other than the offense that lead to her commitment.
Notwithstanding the fact
that there would have been substantial evidence justifying an order granting
appellant outpatient status, the above evidence demonstrates certain of the
trial court’s reasons for discrediting the experts support a conclusion the
court did not act arbitrarily or capriciously, and did not abuse its discretion
in finding appellant did not carry her burden of proving by a preponderance of
the evidence she is not dangerous.
III
DISPOSITION
The order denying
appellant outpatient status is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P.
J.
THOMPSON, J.
Historical-clinical risk-management-20 test.
