People v. Larson CA3 ( 2021 )

Filed 10/13/21 P. v. Larson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C091578
Plaintiff and Respondent, (Super. Ct. No. CM018145)
v.
IAN KEITH LARSON,
Defendant and Appellant.
In 2003, defendant Ian Keith Larson pleaded no contest to several crimes and was
found not guilty by reason of insanity. In 2019, defendant petitioned the trial court for
outpatient treatment under Penal Code section 1026.2.1 After holding a hearing on the
petition, the trial court denied the petition finding defendant was a danger to the health
1 Undesignated statutory references are to the Penal Code.
1
and safety of others due to mental defect, disease, or disorder. On appeal, defendant
challenges this finding, arguing the trial court abused its discretion. We affirm.
BACKGROUND
Underlying Offense
During a drug-induced psychotic episode, defendant broke into his landlady’s
home with a baseball bat and forced her to orally copulate him. Defendant was charged
with forcible oral copulation (§ 288a, subd. (c)(2), count 1) with enhancements (§ 667.61,
subds. (a), (b), and (e)), assault with the intent to commit a felony (§ 220, count 2),
assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd.
(a)(1), count 3), criminal threats (§ 422, count 4), and first degree residential burglary
(§ 459, count 5).
On November 3, 2003, defendant pleaded no contest to counts 1, 3, and 5, and
admitted the enhancements to count 1. He also pleaded not guilty by reason of insanity.
On January 26, 2004, the trial court found defendant not guilty by reason of insanity and
committed him to the Department of State Hospitals.
Petition for Outpatient Treatment
In May 2019, defendant filed a petition under section 1026.2 for outpatient
treatment. Two doctors testified regarding defendant’s petition. Dr. Don Stembridge, a
forensic clinical psychologist, was appointed by the court for defendant and submitted a
report for the purposes of defendant’s petition. Dr. Ana Kodzic, a forensic evaluator at
defendant’s hospital, testified for the People and her most recent progress report on
defendant, dated July 30, 2019, was submitted into evidence.
Dr. Stembridge
On January 30, 2020, Dr. Stembridge testified, largely reading from his report,
that defendant did not pose a substantial danger to others if released from the hospital.
He said defendant had shown significant improvement in the hospital, including
recovering from illicit substance use, reduced his antisocial attitudes, and understood his
2
need for ongoing treatment and supervision if transferred to a supervised treatment
facility. Dr. Stembridge also said defendant had no incidences of violence or serious rule
breaking for four years, although in February 2019, defendant insisted to hospital staff
that he be provided pain medication, going to multiple staff members, which showed
poor boundaries and “staff-splitting” behavior.
Dr. Stembridge also testified that as of July 2019, defendant “remained
asymptomatic, consistent with a lack of psychotic disorder,” his “mood disorder being in
remission,” and he had “maintained behavioral stability for 53 months.” He noted that
defendant’s treatment team and evaluators agreed “he does not suffer from a major
mental health illness and has been essentially asymptomatic for the past 4 years.” He
also agreed with their conclusion that defendant does not “have a major psychiatric
illness.”
Dr. Stembridge explained that, though defendant had antisocial traits, he did not
have antisocial personality disorder. Instead, Dr. Stembridge testified that he would
diagnose defendant as having an “unspecified personality disorder with antisocial
personality traits.” He further explained that defendant “does not qualify as having any
major psychiatric illness so he . . . can’t really be a danger due to a psychiatric illness that
he doesn’t have.” Thus, Dr. Stembridge concluded defendant should “certainly be
considered for a step-down placement out of” the hospital, although he testified that he
believed defendant should only be released to a “locked” and “highly structured treatment
environment.”
Dr. Kodzic
On February 6, 2020, Dr. Kodzic testified defendant “doesn’t have a severe mental
illness that we would normally find in a psychiatric facility” but does have a remissive
major depressive disorder, remissive substance abuse disorders, and “antisocial
personality disorder.” She explained antisocial personality disorder is a disorder in the
DSM-5, so it is a “psychotic or a mood disorder.” She acknowledged defendant had not
3
recently acted physically aggressive, but he had broken small rules consistent with
antisocial personality disorder, like misusing pain medication, signing out
inappropriately, and talking back to a staff member. Though the incidences of rule
breaking are “insignificant” on their own, “the overall pattern does speak to an inability
to conform to societal norms.” Dr. Kodzic also testified defendant’s substance abuse
disorders were in remission but was a high-risk situation for him, and “if he’s med
seeking, then that is not an appropriate behavior for the high risk situation.”
Dr. Kodzic believed the issue of whether defendant would pose a danger to others
was a “tough one.” There are “a lot of risk factors that would increase his dangerousness,
but there are also controls in place that would mitigate those risks” so the “risk factors
and protected factors” are “about even.” Ultimately, Dr. Kodzic felt defendant posed a
“moderate risk.” This meant the degree of risk depended on “what the contingencies
would be for him if he were to be released into the community.” But at the hearing she
declined to provide a final opinion on whether defendant was appropriate for outpatient
treatment, saying she was “happy that [she doesn’t] have to make that decision;
ultimately, the trier of fact does.”
Dr. Kodzic’s July 2019 progress report stated defendant did continue to pose a
danger to others due to a mental defect, disease, or disorder and recommended the
hospital “retain and treat” him. But Dr. Kodzic conceded she also stated multiple times
throughout her report that defendant was not mentally ill and appeared psychiatrically
stable with no psychotic and/or mood disorders. Dr. Kodzic explained the seemingly
contradictory testimony as “one of those things where clinical practice and the law do not
speak the same language . . . . When I say that he isn’t mentally ill, by that I mean he
doesn’t have a mood or psychotic disorder that would originate from a chemical
imbalance or structural changes in the brain that would respond to psychotropic
medication. When I say that he has Antisocial Personality Disorder, what I mean by that
is he has a pattern of behavior that fits into a certain criteria that is different from the
4
norm” and is “in the DSM-5.” Though had she authored a report specifically for this
hearing, she thought “it would be likely that [she] would suggest that [defendant] be
placed in outpatient treatment.”
Court’s Ruling
After taking the matter under submission, and relying on the testimony of Drs.
Stembridge and Kodzic as well as theirs and others’ reports, the trial court found “by a
preponderance of the evidence that [defendant] would be a danger to the health and safety
of others due to a mental disorder if under the supervision and treatment in the
community.”
The court explained it was “basing its decision on the fact that there was evidence
presented to the Court that [defendant] continues to engage in manipulative behavior and
conduct. Although he has made tremendous progress in his treatment over the course of
the last five years, there still appears [to be] areas that he needs to work on. There is
evidence that during the most recent reporting period, [defendant] engaged in staff
splitting. In addition to that behavior, there was evidence of drug seeking behavior when
he attempted to obtain extra pain medication from hospital staff. That is a particular
concern in light of the fact that the behavior for the underlying offenses, such as the [not
guilty by reason of insanity] finding were fueled by his use of the illicit substances. [¶]
More importantly, these behavioral issues caused the Court concern about his overall
judgment and his ability to control his behavior in a less structured environment.”
The trial court commended defendant on his progress and thought that he was
“very close to being ready to transition into outpatient treatment . . . but he’s not quite
there yet based on what has been presented.”
DISCUSSION
Defendant argues the court improperly denied his petition because there is no
evidence he is exhibiting any psychotic symptoms or that he currently suffers from a
primary psychotic disorder. He posits that the psychosis that led him to be an insanity
5
acquittee has been resolved so there no longer exists a basis to hold him in commitment.
The People counter that it does not matter whether defendant still qualifies as legally
insane because he currently poses a danger due to a mental disorder. They assert Dr.
Kodzic diagnosed defendant with antisocial personality disorder and Dr. Stembridge
diagnosed him with an unspecified personality disorder, each being sufficient to deny
outpatient treatment. We agree with the People.
“A person who has been found not guilty by reason of insanity and committed to a
state hospital may apply to the superior court for release from commitment ‘upon the
ground that sanity has been restored.’ ” (People v. Bartsch (2008) 167 Cal.App.4th 896,
899.) “The court shall hold a hearing to determine whether the person applying for
restoration of sanity would be a danger to the health and safety of others, due to mental
defect, disease, or disorder, if under supervision and treatment in the community. If the
court at the hearing determines the applicant will not be a danger to the health and safety
of others, due to mental defect, disease, or disorder, while under supervision and
treatment in the community, the court shall order the applicant placed with an appropriate
forensic conditional release program for one year.” (§ 1026.2, subd. (e).)
The defendant “shall have the burden of proof by a preponderance of the
evidence.” (§ 1026.2, subd. (k).) To carry their burden, the defendant must show “that
she is ‘either no longer mentally ill or not dangerous.’ ” (People v. McDonough (2011)
196 Cal.App.4th 1472, 1491; Foucha v. Louisiana (1992) 504 U.S. 71, 77 [“the acquittee
may be held as long as he is both mentally ill and dangerous, but no longer”].) “The
court makes the final determination: ‘[I]t is still the judiciary, not the medical experts,
which decides whether to release a defendant who has been found to have committed a
criminal act while insane.’ ” (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.)
“We review the court’s order for an abuse of discretion. [Citation.] ‘Under that
standard, it is not sufficient to show facts affording an opportunity for a difference of
opinion. . . . “[D]iscretion is abused only if the court exceeds the bounds of reason, all of
6
the circumstances being considered.” ’ ” (People v. Bartsch, supra, 167 Cal.App.4th at p.
900; People v. Dobson (2008) 161 Cal.App.4th 1422, 1433.)
The trial court did not abuse its discretion here because its decision found support
in the testimony of both doctors. Dr. Kodzic testified defendant has antisocial personality
disorder, which is a “psychotic or a mood disorder” in the “DSM-5.” She explained the
conflict with this diagnosis and her later testimony and statements in her report that
defendant did not suffer from a mental illness were due to the nomenclature used between
clinical practice and law. She then confirmed again that defendant does have antisocial
personality disorder. Dr. Kodzic’s progress report also concluded defendant was still a
danger to others and testified she found defendant’s overall pattern of rule breaking
exhibited an inability to conform to societal norms. This included defendant’s medicine
seeking behavior, which was not appropriate for his high-risk substance abuse disorder.
Although she acknowledged the ultimate decision was a tough one and that she might
now recommend outpatient treatment, she refused to make a final recommendation.
Dr. Stembridge’s testimony also supports the trial court’s ruling. Though
Dr. Stembridge ultimately believed defendant would not be a danger, he did acknowledge
defendant still suffered from an “unspecified personality disorder with antisocial traits,”
still broke rules, still posed a risk, even if a moderate one, and most telling, said
defendant still should be in a locked facility. This latter testimony significantly undercuts
the weight of his position that defendant did not pose a danger.
Even if experts unanimously agree a defendant no longer has a mental illness and
does not pose a danger, a court does not abuse its discretion by denying a section 1026.2
petition if the decision was not arbitrary. (People v. Cross (2005) 127 Cal.App.4th 63, 73
[“The trial court was not required to follow the essentially unanimous recommendations
of the expert witnesses”]; People v. Sword (1994) 29 Cal.App.4th 614, 629-631 [finding
the trial court did not abuse its discretion in not following the unanimous
“recommendations of the doctors and other expert witnesses” because it disregarded
7
“those recommendations for nonarbitrary reasons”].) Defendant’s case is not so extreme.
Both expert witnesses provided evidence of defendant’s ongoing mental disorder and
potential danger to the community, which leads us to conclude the trial court’s denial of
defendant’s petition was not an abuse of discretion.
Finally, defendant also argues that California’s process of requiring a committed
individual who is no longer insane to prove he will not pose a danger violates a
constitutionally protected liberty interest. This argument has been unanimously rejected
by other courts. (See People v. Sword, supra, 29 Cal.App.4th at pp. 622-624 [finding “no
due process problem with the California procedure” under section 1026.2]; Hartman v.
Summers (C.D. Cal. 1995) 878 F.Supp. 1335, 1344 [“requiring an insanity acquittee to
rebut the presumption of continuing mental illness and dangerousness by a
preponderance of the evidence does not violate the Due Process Clause of the Fourteenth
Amendment”].) We are persuaded by the analyses in those cases and reject defendant’s
contention for the same reasons.
DISPOSITION
The judgment (order) denying the petition is affirmed.
/s/
Duarte, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
8