P. v. Castello































Filed 2/5/13 P. v. Castello CA6

>

>

>

>

>

>

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAY CASTELLO, Defendant and Appellant.

H037899 (Santa Clara County Super. Ct. No. 173008)

Anthony Ray
Castello appeals from an order extending his commitment as a href="http://www.sandiegohealthdirectory.com/">mentally disordered offender
(MDO) in a conditional release program (CONREP) for another year pursuant to
Penal Code sections 1606 and 2972.href="#_ftn1"
name="_ftnref1" title="">[1] Castello contends that no substantial
evidence supports the trial court’s finding that he continued to represent a
substantial danger of physical
harm to others. We disagree and
affirm the judgment.

LEGAL BACKROUND

“The MDO law is a civil commitment scheme targeting state prisoners
with severe mental disorders who are about to be released . . . . Once a prisoner has been certified as an MDO,
inpatient treatment under the supervision of [the State Department of Mental
Health (DMH)] is usually required unless DMH certifies that the prisoner can be
treated in an outpatient program.” (>People v. Martin (2005) 127 Cal.App.4th
970, 973, disapproved on another ground in People
v. Achrem 2013 Cal.App. LEXIS 57, [*2].) “The purpose of the MDO law
is to protect the public by identifying those prisoners who would pose a danger
to society upon release due to their mental disorder.” (Id.
at p. 974.)

“We review the court’s finding on an MDO criterion for substantial
evidence, drawing all reasonable inferences, and resolving all conflicts, in
favor of the judgment.” (>Id. at p. 975.) “Substantial evidence” in this context, just
as in a criminal case, means “evidence that is reasonable, credible, and of
solid value--to support the [court’s] finding.”
(People v. Beeson (2002) 99
Cal.App.4th 1393, 1398; People v. Miller (1994)
25 Cal.App.4th 913, 919-920 [the substantial evidence test used in criminal
appeals also applies to appellate review of MDO proceedings].) The appellate court must defer to the trial
court in its evaluation of the credibility of a witness and cannot substitute
its own evaluation of witness credibility for that of the trier of fact. (People
v. Clark> (2000) 82 Cal.App.4th 1072, 1083.)

Under section 2972.1, subdivision (e), a continuation of an MDO on
outpatient status requires the trier of fact to determine whether the
requirements of section 2972, subdivisions (c) and (d), have been met. Under section 2972, subdivision (c), a
commitment may be extended for an additional year if the prosecution proves,
beyond a reasonable doubt, that (1) the MDO continues to have “a severe mental
disorder”; (2) the MDO’s “mental disorder is not in remission or> cannot be kept in remission without
treatment”; and (3) the MDO continues to represent a “substantial danger of
physical harm to others.” (>People v. Beeson, supra, 99 Cal.App.4th at pp. 1398-1399.)

FACTUAL BACKGROUND

In 1992, Castello was convicted of attempted murder and assault with a
deadly weapon with great bodily injury after he attacked his father and two
guests with a knife at the table in his father’s residence. The attack was provoked by Castello’s mental
illness, which currently has been diagnosed as schizoaffective disorder. At the time of the incident, Castello was not
on medication, suffered from a long history of drug and alcohol abuse and had
not yet been diagnosed with a mental illness.
Castello was sentenced to 11 years in prison and later transferred to Napa State Hospital as an MDO.
He was thereafter released on outpatient status under the supervision of
South Bay CONREP in 2005 and his commitment was periodically extended by the
court. His latest commitment ran from January
14, 2011, to January
14, 2012.

Harper Medical Group Director Dr. Douglas Johnson, a clinical
psychologist who runs the conditional release program for the Department of
Mental Health in Santa Clara, Santa
Cruz, Monterey, and San Benito counties, testified to the following.

Dr. Johnson has worked with Castello since 1994 when Castello was a
patient at Atascadero State Hospital. He
is not Castello’s primary therapist but commonly interacts with him at least
twice a week and conducts his annual review.
Castello is currently living at Athena’s Room and Board, which involves
low levels of monitoring. He is
responsible for administering his own medication. Castello’s blood is tested regularly and
there has been no reason to suspect that Castello has not been taking his
medication. His current condition of
schizoaffective disorder is being treated with the anti-psychotic medication
Abilify and the mood stabilizing medication Depakote. The positive symptoms of his disease have
been kept in remission, but Castello continues to struggle with negative
symptoms such as addictive behavior to food and caffeine and occasional purchases
of lottery tickets. Castello’s negative
symptoms are not in remission. Castello
lacks motivation, regulation, and self-initiative, though the CONREP program
helps him build incentives to accomplish daily tasks. He does not experience delusions,
hallucinations, or disorganized speech common with his disease. In the past year, he has not been violent or
threatening and has not intentionally damaged any property. He has been regularly tested for drugs and alcohol
and his tests are consistently negative.
He understands that he has a mental illness but does not fully
understand how his schizoaffective disorder interferes with his ability to
control his addictive tendencies. In
October 2010, CONREP sent Castello to South Point STRP in El Cajon, a program
focused on alleviating overeating tendencies.
The program led to a loss of 12 pounds.
However, by February 2011, Castello had returned to his previous level
of functioning with a lack of motivation and increased difficulties. He continues to demonstrate an addiction to
food and an inability to manage his money.
Dr. Johnson specifically pointed to a time when Castello was allowed to
manage his own money and consequently spent $1,000 on fast food within one
month. Castello has complied with all
other mandated parts of his treatment plan.
Dr. Johnson hopes Castello will be better able to initiate activities on
his own and become more capable of adequately regulating his negative
behavior. Castello’s lack of self
initiation and regulation suggests a failure to voluntarily follow his treatment
plan.

When asked whether Castello’s inability to control his addictive
behavior makes him a danger to the community, Dr. Johnson offered the
following: “Yes. I believe that.” He further added: “If he is more lonely, less fulfilled, his
propensity for engaging in addictive behavior increases. There are now serious but not devastating
ones like the drug and alcohol that, left to his own, I would be worried. And I’m very convinced if he were to become
involved in drugs and alcohol, his mental illness schizoaffective schizophrenia
condition would be exacerbated greatly.”
Dr. Johnson affirmed that a combination of Castello’s untreated
addictions to overeating and caffeine along with use of drugs and alcohol would
affect his schizoaffective disorder and cause him to be a danger to
others. When asked about his
recommendation for Castello, he stated that Castello should remain in the
CONREP outpatient program. Further, he affirmed
that, so long as there were no interferences from other life stressors such as
drugs, alcohol, and environmental factors, Castello’s medication would continue
to limit his positive symptoms.

Dr. Johnson added that Castello has shown signs of improvement over the
last year in his ability to identify and express emotional aspects concerning
his life. When asked whether Castello
was being safely and effectively treated in the outpatient program through
CONREP, Dr. Johnson opined as follows:
“He’s being safely treated. We’re
working on being more effective. But all
in all, I don’t want to try to plug my own program, but I think the structure
of the program is very helpful.” He
offered that the structure of the program provides the necessary components to
keep Castello involved at a minimum level, and, if he were to be released and
continued to take his medication, he would nevertheless be isolated and lack
the interaction necessary to do reality testing, which could have an effect on
his positive symptoms.

When asked what it would take to change Dr. Johnson’s recommendation,
Dr. Johnson opined: “As I said, we’re
hopeful he is talking about reentering the work force in some way. We would like--I would like for him to assume
responsibility for managing his own finances.
I would like to see him continue to participate in recovery both on the
drug and alcohol and eating disorder side and to initiate more social
interaction and activity without the program, meaning outside of the
program.” He explained that, without the
program, Castello would regress back to the condition before the underlying
offense when Castello was socially isolated with no meaningful interpersonal
interactions to serve as a test for reality.

Castello testified to the following.
He has consistently complied with the treatment program and is aware of
the triggers to his disease and how to avoid them. He believes that, if released from the
program, he would continue to take his medication, obtain a job, and would not
be a danger to the public. He believes
that he is capable and ready to leave CONREP.

In granting the petition, the trial court stated that, though this last
year for Castello was one of his best, he was not ready to be released: “I don’t think you’re there quite yet, but I
think you’re well on your way to be where you want to be. Okay?
I’m encouraged by basically Dr. Johnson set out four goals for you: Re-enter the work force, assume
responsibility for your money, continue your participation in NA, AA and OA,
and show more initiative regarding activities outside of the program. Those are four goals for you that you can
work on in addition to everything else. [¶] So I am going to grant the
petition. I am satisfied by the
appropriate standard that you by reason of mental disease, effect, or disorder
continue to represent a substantial danger of physical harm to others if
continued supervision is terminated.”

DISCUSSION

Castello contends that “there was no
evidence, based upon the whole record that would allow a rational trier of fact
to find, beyond a reasonable doubt, that [he] represented a substantial danger
of physical harm to others.” We
disagree.

It can be reasonably inferred from
Dr. Johnson’s testimony that, if Castello were not in a structured program such
as CONREP, there would be a risk that his addictive behaviors would manifest
and that his use of illegal drugs or alcohol would greatly exacerbate his
schizoaffective condition and, in turn, result in violence. This reasonable inference is supported by
Castello’s long-standing history of drug and alcohol abuse, his continued lack
of motivation and self-initiative, his failure to voluntarily follow the
treatment plan, his addictive tendencies with overeating and purchasing of
lottery tickets, his inability to manage his own funds, and Dr. Johnson’s
testimony that he was “very convinced” that Castello would become dangerous if
he leaves the outpatient program and his addictions remain untreated. Though Castello urges that Dr. Johnson did
not state that his mental illness, if exacerbated, would present a substantial
danger to others, the trial court could have reasonably interpreted Dr.
Johnson’s opinion to urge that CONREP is necessary to limit or prevent the type
of addictive behavior that would enhance Castello’s mental illness and result
in violence. Though Castello was not presently
violent within the structured format of CONREP, Castello’s (1) continued
failure to voluntarily follow the treatment program through his lack of self
regulation, and (2) long history of alcohol and drug use support that he would
indulge in substance abuse and be a substantial danger to others if released
from the CONREP program. Further, Dr.
Johnson testified that Castello’s addictive behaviors about food, caffeine, and
lottery tickets are “symptom substitution[s],” a “soothing way to avoid dealing
with real life issues, just like drugs and alcohol.” Thus, the trial court could have reasonably
concluded that Dr. Johnson’s testimony established that the progress Castello
had made was due to CONREP supervision and that this supervision was necessary to
monitor Castello’s behavior so that he did not relapse into addictive
behavior. As a qualified expert, Dr.
Johnson’s opinion on Castello’s dangerousness to others constitutes substantial
evidence sufficient to support the trial court’s finding.

The trial court could have
reasonably concluded from this evidence that the People established beyond a
reasonable doubt that Castello would be dangerous to others if he were
released.

DISPOSITION

The judgment is affirmed.















Premo, J.











WE CONCUR:













Rushing, P.J.

















Elia, J.