legal news


Register | Forgot Password

P. v. Fekadu

P. v. Fekadu
04:05:2013





P














P. v. Fekadu















Filed 4/5/13 P. v. Fekadu CA4/1

>

>

>

>

>

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>






THE PEOPLE,



Plaintiff and Respondent,



v.



BERIHU HADARA FEKADU,



Defendant and Appellant.




D062855







(Super. Ct.
No. SCD109580)






APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Laura H. Parsky, Judge. Affirmed.



Berihu
Hadara Fekadu appeals from a decision granting a petition to extend his
commitment as a person found not guilty by reason of insanity (NGI) for an
additional two-year period (Pen. Code,href="#_ftn1" name="_ftnref1" title="">[1]
§ 1026.5). He contends there is not
sufficient evidence to prove that because of his href="http://www.sandiegohealthdirectory.com/">mental illness he remains a
danger to others. We will find the
evidence sufficient to support the trial court's findings and therefore we will
affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

In 1995 a
jury found Fekadu NGI as to two counts of a forcible lewd act with a child
(§ 288, subd. (b)) and three counts of felony assault (§ 245, subd.
(a)(1)). The court found Fekadu had not
recovered his sanity at that time and he was committed for treatment. In 1998 and 1999, Fekadu was on outpatient
status for a short period of time.
Otherwise, he has been confined since the original trial.

Fekadu
waived his right to a jury and, following a court trial, the petition to extend
his commitment was granted and he was committed until October 2014.

The parties
are essentially in agreement as to the evidence presented at trial, although
they differ in their analysis of that evidence.
We find the appellant's summary of the facts accurately sets forth the
evidence presented and thus we will include that statement here.

Dr. Stacey
Berardino is a forensic
psychologist
who interviewed appellant in the San
Diego County jail
in July of 2012, and reviewed all his medical reports and records. The judge specified that none of those
records were part of the body of trial evidence, except as specifically offered
by counsel. The court admitted some weekly
nursing progress reports, discussed below.


Dr.
Berardino described the main commitment offenses, in which appellant sexually
fondled some girls, ages 13 and 14, then followed them into a restaurant
brandishing a knife. He left and
returned, by which time the girls' mothers had hid with them behind a closed
door in the restaurant, as he tried to get inside. There was also an incident at a bar in which
he molested a woman, then fought with a bartender and gave him a black
eye. In the state hospital system in
1994 he fondled a minor patient on three separate occasions. In 1995 he hit and kicked a jail deputy. In March of 2011 he physically assaulted his
psychiatrist at Napa Hospital,
whom he considered to be "out to get him."

Dr.
Berardino diagnosed appellant as having a severe mental disorder, paranoid
schizophrenia, which is not in remission, and currently renders him a
substantial physical danger to others.
He had no incidents of violence or threats since the March 2011
incident, except that about three months before trial, he talked to a staff
member about fighting, and asked if that person knew kung fu. He has hallucinations and delusions on at
least a monthly basis, including fixed beliefs that he has special powers from
God, and therefore has the right to do things, which are wrong for others. This included the assault on the deputy, and
touching girls and women inappropriately.


Medication
is basic to control of schizophrenia, and while appellant has not refused
medication recently, the assessor opined that was because he had virtually no
choice because he is under an involuntary medication order. He told Dr. Berardino he needs no medication
because the spirit of God is inside him.
Some of his medications are injected on a monthly basis. Appellant was on a conditional release
program (CONREP) in 1998 and 1999. He
committed no acts of violence during that time, but his parole was revoked
because he was not taking his medications, and became irrational. Even with medication he can be delusional,
paranoid, and violent, but medication reduces his acting out of his
delusions.

Dr.
Berardino found it noteworthy that appellant describes his "WRAP"
(wellness recovery program) as a discussion of current events. His plan for maintaining mental health upon
release is unrealistic. It consists of
praying, returning to his home country of Ethiopia, and going to the university
there. Appellant told the assessor his
medication is torture, and part of a Nazi conspiracy. He refuses blood draws to check medication
levels. He would not be likely to take
medication if released outright, or even if conditionally released. There would be more stressors on appellant if
he were released or in CONREP, and CONREP cannot administer involuntary
medication orders.

Dr.
Berardino agreed appellant was not currently violent, homicidal, or
suicidal. He also agreed that his weekly
nursing evaluations (from January through July of 2012) were positive, and
reflected much progress in control of appellant's illness. Dr. Berardino stood by the opinion that
appellant still required confinement, partly because he attributed the progress
appellant showed, to the intramuscular injections of appellant's main
medication, Zyprexa.

Psychiatrist
Jaganath Glassman also reviewed appellant's medical files from Napa State
Hospital, and interviewed him in the San Diego County Jail, in July of
2012. He described appellant's
commitment offenses of sexual assaults and other physical assaults, as being
caused by appellant's severe mental disorder.
Appellant's paranoid schizophrenia impairs his perception of
reality. He has grandiose delusions,
including that he has special powers from God.
Therefore he has the right to touch others in a sexual or assaultive
manner, and he believes he can heal others with his touch.

Dr.
Glassman found that appellant was not in remission, and that he did pose a
substantial physical danger to others because he has a history of acting out
violent and sexual impulses, and no control over his misbehaviors. This has been documented since he was first
jailed on the original sex offenses, then committed assaults in the jail. While he had no incidents of violence at Napa
for over a year before the trial in October of 2012, since he attacked his href="http://www.sandiegohealthdirectory.com/">psychiatrist (in March of
2011), he had many incidents where he appeared to be on the edge of committing
violent acts, or in Dr. Glassman's view issued threats. As Dr. Glassman interviewed appellant in the jail,
he suddenly became enraged thinking the doctor was against him, and leaned
forward, speaking rapidly and more loudly.
Dr. Glassman noted he found this frightening, even though he knew
appellant was behind bars and could not reach him. He terminated the interview, feeling
appellant was too delusional to talk further.


Dr.
Glassman disagreed that nurse's notes from January through July of 2012
reflected substantial improvement, in that while he had no aggressive or
violent behavior, he was still actively href="http://www.sandiegohealthdirectory.com/">psychotic and delusional. Dr. Glassman also emphasized appellant's
history of fighting and challenging staff, and refusing blood work to check
medication levels. He opined that
appellant's condition would rapidly deteriorate, if he were outside of a
structured setting. CONREP would not
provide the necessary structure and support.
Dr. Glassman agreed that appellant is quite bright, and of average or
above average intelligence.

Appellant
testified that he wanted CONREP again.
He considered his illness healed because in his view reading the Bible
can heal us, even of conditions such as schizophrenia. He would not repeat his 1994 sexual
offense. He did wish to become a leader
in Ethiopia if he were completely discharged, but denied he said he wanted to
be president there. He did not like
Seroquel because it made his eyes weak, but he denied telling assessors he
needed no medication. He has no
delusions, and was not hearing voices.
He would take medication as ordered.


DISCUSSION

>SUFFICIENCY OF THE EVIDENCE

Fekadu
contends the evidence is insufficient to prove, beyond a reasonable doubt, that
his mental illness causes him to still be a danger to others. We believe a fair application of the
appropriate standard demonstrates there is sufficient substantial evidence to
support the trial court's decision.

A. Standard of Review

When a
defendant is found not guilty by reason of insanity, and confined to the state
hospital, the commitment may be extended for two-year periods, if due to mental
illness and the defendant continues to pose a substantial danger of physical
harm to others. (§ 1026.5, subd.
(b)(1); People v. McKee (2010) 47
Cal.4th 1172, 1207; People v.
Kendrid
(2012) 205 Cal.App.4th 1360, 1369-1370.)

When we
review the decision of a trial court granting the prosecution's petition to
extend a defendant's commitment under section 1026.5, we apply the familiar
substantial evidence standard of review.
Under that standard we review the entire record, drawing all reasonable
inferences in favor of the trial court's decision. We do not make credibility decisions, nor do
we weigh the evidence. Rather, we
determine whether there is sufficient substantial evidence in the record, from
which a reasonable trial court could find the defendant remains a danger to
others, beyond a reasonable doubt. (>People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165; >People v. Bowers (2006) 145 Cal.App.4th
870, 879.)

B. Legal Principles

In order to
find a defendant continues to be dangerous, the evidence must demonstrate,
beyond a reasonable doubt, that there is a serious impairment of volitional
control of the person's behavior. (>People v. Williams (2003) 31
Cal.4th 757, 773; People v. Kendrid,
supra, 205 Cal.App.4th at p. 1370.)

Whether a
person, by reason of mental illness, poses a substantial risk of physical harm
to others can be established by expert
opinion testimony
. The testimony of
one expert that the defendant meets the test of dangerousness is sufficient to
support a trial court's finding. (>People v. Bowers, supra, 145
Cal.App.4th at p. 879; People v.
Crosswhite
(2002) 101 Cal.App.4th 494, 507-508.)

C. Analysis

In this
case, two mental health professionals examined Fekadu, and reviewed his
criminal and mental health history. Both
agreed he continues to suffer from severe mental illness, that he lacks insight
as to that illness, that he will likely stop taking medication if released, and
that he continues to suffer delusions and aggressive and sometimes violent
behavior. Both experts agreed that even
under medication and in a controlled environment, Fekadu poses an unreasonable
risk of physical harm to others.

The experts
were aware of the crimes involved and the delusional system underlying those
crimes. They agreed that Fekadu still
suffers from the same illness and delusions.
The experts cited to Fekadu's objection to medication and to acts of
violence both in and out of mental
health confinement
. His last
documented assault occurred in 2011 when he attacked his psychiatrist while in
the state hospital.

Fekadu
focuses on bits of testimony he deems beneficial and seeks to advance his own
interpretation of some of the testimony.
For example, he argues he has committed no physical violence since
2011. He notes that nurses notes from
the county jail show appropriate behavior in the six months preceding
trial. And, he interprets Dr. Glassman's
comments about the interview where the doctor noted the agitation from Fekadu's
delusions became so intense that the doctor ended the interview, as simply
evidence that some people are frightened at the appearance and manner of a
person with his mental illness.

As we have
noted above, it is not our role to weigh the evidence. In the trial court there was unanimous expert
opinion that Fekadu was a danger to others.
Those opinions are well supported by the prior history, the interviews
and the professional experience of the experts.
Plainly the trial court credited their opinions and gave them great
weight. Those opinions are more than
adequate to support the trial court's decision.



DISPOSITION

The judgment is affirmed.







HUFFMAN, Acting P. J.



WE CONCUR:







NARES,
J.





IRION,
J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.








Description Berihu Hadara Fekadu appeals from a decision granting a petition to extend his commitment as a person found not guilty by reason of insanity (NGI) for an additional two-year period (Pen. Code,[1] § 1026.5). He contends there is not sufficient evidence to prove that because of his mental illness he remains a danger to others. We will find the evidence sufficient to support the trial court's findings and therefore we will affirm.
Rating
0/5 based on 0 votes.

    Home | About Us | Privacy | Subscribe
    © 2025 Fearnotlaw.com The california lawyer directory

  Copyright © 2025 Result Oriented Marketing, Inc.

attorney
scale