People v. Todd W. CA2/4 ( 2022 )

Filed 8/8/22 P. v. Todd W. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE B313612
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21HWMH00599)
v.
TODD W.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
James N. Bianco, Judge. Affirmed.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
William H. Shin and Blythe J. Leszkay, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________
Welfare and Institutions Code1 section 8103, subdivision (f)(1)
presumptively prohibits a person who has been involuntarily admitted to a
mental health facility as a danger to himself or others (§ 5150 et seq.) from
owning or possessing firearms for a period of five years from the date of the
person’s release from the facility. However, such a person may request a
hearing in the superior court seeking relief from this prohibition. (§ 8103,
subd. (f)(5).) At the hearing, the People have the burden of proving, by a
preponderance of the evidence, that the person would not be likely to use
firearms in a safe and lawful manner. (§ 8103, subd. (f)(6).)
After his involuntary hospitalization in a mental health facility
pursuant to section 5150, Todd W. (Todd)2 filed a request for relief from the
section 8103, subdivision (f)(1) firearm prohibition. The trial court denied the
petition, finding that the People had carried their burden of establishing that
Todd would not be likely to use firearms in a safe and lawful manner.
On appeal, Todd contends that the trial court’s decision is unsupported
by substantial evidence and further argues that section 8103, subdivision (f)
is unconstitutional as the statute infringes on his fundamental Second and
Fourteenth Amendment right to bear arms. We conclude that substantial
evidence supports the court’s denial of Todd’s petition and that Todd has
forfeited his claim of constitutional error by failing to raise it in the trial
court. We therefore affirm the trial court’s order.
1 All further undesignated statutory references are to the Welfare and
Institutions Code.
2 Because this matter relates to a hold under the Lanterman-Petris-
Short Act (LPS) (Welf. & Inst. Code, § 5000 et seq.), we abbreviate Todd’s
name to protect his privacy. (People v. Jason K. (2010) 188 Cal.App.4th 1545,
1549–1550, fn. 1 (Jason K.); People v. Mary H. (2016) 5 Cal.App.5th 246, 251–
252, fn. 1 (Mary H.).)
2
FACTUAL AND PROCEDURAL BACKGROUND
On June 11, 2017, Todd was detained and admitted to Intercommunity
Hospital, a mental health facility, pursuant to section 5150. He was
statutorily prohibited from owning or possessing firearms for five years as a
result of his section 5150 hold. On April 15, 2021, Todd filed the instant
petition for relief from the five-year firearm prohibition. On June 25, 2021,
after an evidentiary hearing, the court denied the petition. The following
evidence was presented at the hearing:
A. The People’s Evidence
The People presented a West Covina police report as their only
evidence.3 The police report stated that on June 11, 2017, Todd called 911
reporting he was suicidal and that he was going to hang himself. A record
check revealed that there were firearms registered to Todd.
Police went to Todd’s home, positioned themselves outside, and called
Todd several times. Todd did not answer his phone at first, and when he did,
told police that he had passed out; he said he could not go outside to meet
them because he was hanging from his bathroom door and unable to move.
The officers entered Todd’s home and found Todd sitting on the floor of
his bedroom with a belt around his neck. The other end of the belt was
attached to a nearby doorknob. Todd was conscious and breathing, and the
officers cut the belt and removed it from Todd’s neck to relieve the pressure
on Todd’s airway. Paramedics attended to him and transported him to the
3 Hearsay evidence, including police reports and medical records, is
admissible at a section 8103 hearing. (§ 8103, subd. (f)(5); see Rupf v. Yan
(2000) 85 Cal.App.4th 411, 426.)
3
hospital. Based on Todd’s statements to the police dispatchers and the way
he was found, Officer Schienle determined he was a danger to himself and
placed him on a 72-hour hold pursuant to section 5150.
Todd’s wife, Denise, arrived and identified herself. She and Todd had
argued earlier that day and she left to cool things off. Denise told officers a
safe in the bedroom might contain firearms, and allowed them to collect the
Glock 9 millimeter pistol they located inside the safe. Denise gave police
consent to search for additional firearms and they located, and collected, a
Mauser 1895 rifle and ammunition under the bed.4
Denise told an officer that Todd was previously in the Air Force and
was diagnosed with bipolar disorder and depression about eight to ten years
earlier. Around that time, Todd was placed on a 72-hour hold at Charter Oak
Hospital and spoke about hanging himself.
At the hospital, Todd told Corporal Street that “he is living in hell and
has nothing left to live for.”
4 Section 8102 authorizes the seizure and possible forfeiture of weapons
belonging to persons detained for examination under section 5150 because of
their mental condition. (Rupf v. Yan, supra, 85 Cal.App.4th at pp. 416–417.)
Neither party raises any issues relating to section 8102 and its attendant
procedures in this appeal.
4
B. Todd’s Evidence5
Todd testified that he was not contesting the fact that the police found
him hanging with a belt around his neck after he had tried to take his life.
Todd explained that after he argued with his wife that day, she left, and he
had overwhelming feelings of anger and believed the world did not deserve
him. He called 911 because he did not want his wife to find him hanging in
the home. Todd further testified that, at the time of his suicide attempt, he
was seeing a pulmonologist who was treating him for sleep apnea and he was
prescribed Provigil, which made him angry, irritable, and more depressed
and suicidal. He believed this created “the perfect storm” that resulted in
him trying to kill himself.
Todd conceded he had been hospitalized in the past for “major
depression” and suicidal ideation, but stated he only tried to act on his
ideation in the instant case that led to his involuntary section 5150 hold.
Regarding his prior hospitalizations, Todd testified that in 2010 he was
hospitalized for depression and because he had thoughts of jumping in front
of a car. These thoughts were the result of an incident that occurred while
Todd was working as a nurse at a residential facility for the elderly. A
resident had a psychotic break and ran onto a busy four lane road. Todd
chased him, and they weaved through traffic for about 45 minutes, until Todd
was able to pin his arms and remove him from the street. Todd suffered from
significant post-traumatic stress as a result of the incident and believed that
5 Todd declined the court’s offer to have a court-appointed physician
evaluate him and provide testimony at the hearing. The court noted that
such an evaluation was an “alternate procedure” and “optional.” Todd,
however, provided a letter from his own psychiatrist, dated June 23, 2021,
stating that Todd “is not presenting as a danger to self or others at this time.”
The letter was admitted into evidence.
5
if he faced his deepest fear of being hit by a car, “maybe [he] wouldn’t feel
sad.”
During cross-examination, Todd acknowledged additional
hospitalizations. In September 2007, he was admitted with major depression
and recurrent thoughts of suicide. He was having marital issues and had
difficulty with a worker’s compensation claim. He did not remember if he
told the intake nurse that he thought about “putting a gun to [his] head in
the late ‘80s.” In October 2007 he was admitted for acute depression. He
reported that he was “losing it” and thought about ending his life. He had
significant medical issues at the time and felt like a burden on his family. He
“didn’t want [his wife] to be burdened with taking care of [him] or going
through all” of their money. In January and February of 2008, Todd was
admitted to the hospital with suicidal ideation, including statements that he
wanted to hang himself. Todd did not recall being admitted for suicidal
threats in July 2008, although he did not deny that it happened.
Todd testified he is currently under treatment with his psychiatrist for
depression and post-traumatic stress disorder (PTSD), and that he sees his
psychiatrist every 90 days. Todd takes Cymbalta for depression and nerve
pain, and Lamictal as a mood stabilizer. He said he has not had any suicidal
thoughts since his attempt in 2017.
Todd and his wife have coped through attending Bible study groups,
while the pandemic has helped him to be more resourceful, spending time
listening to music and doing puzzles. He admitted he still has many medical
conditions, and is in constant pain which “contribute[s] to [him] feeling
down.” He further explained that having chronic severe pain that appeared
incurable “could grind on” him and that he is currently seeing a pain
specialist and taking Norco three times a day.
6
Todd pointed out he has possessed firearms for many years, but has
never attempted suicide with firearms. He had been a medic in the Air Force
where he was trained to use a weapon, but stated that a firearm was “the last
thing you want to use.” He had never pointed a gun at anyone, even jokingly,
and had never pulled out a gun in the heat of an argument. He hardly ever
thought about his guns; “[t]hey just kind of laid there and . . . gathered dust.”
At the conclusion of the hearing, the court commended Todd for his
military service, his candor, and further recognized that Todd had confronted
many physical and mental challenges throughout his life. The court then
found, “by the slimmest of margins” that the People had met their burden of
proving that Todd would not be likely to use firearms in a safe and lawful
manner. As such, the court denied Todd’s petition.
Todd timely appealed the trial court’s order.6
DISCUSSION
Todd contends the trial court’s refusal to lift the five-year prohibition
against his firearms possession, was unsupported by substantial evidence,
and further contends that section 8103 is constitutionally infirm. As
discussed below, we find no merit in the first contention and deem the second
contention forfeited by virtue of Todd’s failure to raise it in the trial court.
6 In his opening brief, Todd states that the trial court’s order is
appealable because it arises out of a “special proceeding” under Code of Civil
Procedure section 21, and section 8103 does not prohibit appeals. We agree.
(See Mary H., supra, 5 Cal.App.5th at p. 254 [concluding superior court order
denying relief from section 8103 firearm prohibition is appealable].)
7
I. Governing Statutory Law
Sections 5150 and 5151 permit a person to be taken into custody and
detained for 72 hours when there is probable cause he or she is a danger to
himself or others as a result of a mental disorder.7 (People v. Keil (2008) 161
Cal.App.4th 34, 38 (Keil).) Section 8103, subdivision (f) provides that when a
person is admitted into a mental health facility under these sections, the
individual may not own, possess, control, receive, or purchase firearms for
five years after release from the facility. (§ 8103, subd. (f)(1).)
However, the individual may request a hearing to lift this prohibition.
(§ 8103, subd. (f)(3), (5); People v. Keil, supra, 161 Cal.App.4th at p. 38.) The
People “bear the burden of showing by a preponderance of the evidence that
the person would not be likely to use firearms in a safe and lawful manner.”
(§ 8103, subd. (f)(6).) If the court finds that the People have not met their
burden, the restriction is removed and the person shall be entitled to own,
possess, control, receive or purchase firearms, unless another legal restriction
applies. (§ 8103, subd. (f)(1).)
7 Section 5150 provides: “When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a
peace officer, professional person in charge of a facility designated by the
county for evaluation and treatment, member of the attending staff, as
defined by regulation, of a facility designated by the county for evaluation
and treatment, designated members of a mobile crisis team, or professional
person designated by the county may, upon probable cause, take, or cause to
be taken, the person into custody for a period of up to 72 hours for
assessment, evaluation, and crisis intervention.”
Section 5151 states: “If the facility designated by the county for
evaluation and treatment admits the person, it may detain the person for
evaluation and treatment for a period not to exceed 72 hours.”
8
II. The Trial Court’s Order Denying Todd’s Petition is Supported by
Sufficient Evidence
Todd challenges the sufficiency of the evidence to support the court’s
factual conclusion that he would not be likely to use firearms in a safe and
lawful manner. In reviewing this contention, we apply the substantial
evidence standard (Keil, supra, 161 Cal.App.4th at p. 38), which requires that
we “affirm if ‘substantial evidence supports the court’s determination that
return of the firearms to appellant would be likely to result in endangering
appellant or other persons.’” (Ibid.) We view the record in a light most
favorable to the ruling—i.e., resolving all evidentiary conflicts and drawing
all reasonable inferences in support of the court’s decision. (Jason K., supra,
188 Cal.App.4th 1545, 1553.)
The record contains sufficient evidence supporting the court’s denial of
Todd’s petition. Over a ten-year period, Todd had multiple hospital
admissions, each with reports of suicidal thoughts in addition to his one
unsuccessful attempt. In September 2007, he specifically discussed ending
his life by attaching a tube to his exhaust and putting it through the car
window. Todd was admitted three times the next year with suicidal
ideations, including saying he wanted to hang himself. In 2010, he was
admitted as a result of depression and PTSD stating he had thought about
jumping in front of a car to end his life. This significant and lengthy history
was more than sufficient to support the trial court’s conclusion. Indeed, had
Todd’s previous hospital admissions been involuntary, as opposed to
9
voluntary, he could have been statutorily banned from owning or possessing
firearms for the remainder of his life. (§ 8103, subd. (f)(1)(B).)8
Even without this history, the events that led to the involuntary hold
here would have been sufficient to support the court’s decision. (Keil, supra,
161 Cal.App.4th at pp. 38–39 [a single incident leading to an involuntary
commitment can support a section 8103, subd. (f) finding].) Todd had
attempted to kill himself by tying a belt around his neck and around a
doorknob, but was unsuccessful. He passed out, and the police eventually cut
him down. This single incident of a sincere attempt to take his own life was
sufficient to support the court’s ruling. (See Jason K., supra, 188 Cal.App.4th
at p. 1554 [medical diagnosis of a “single episode” of severe depression and
threat to kill self was sufficient].)
Todd suggests that because he never used a firearm or threatened to
use a firearm in connection with his suicidal thoughts, he should not be
prohibited from possessing firearms. However, the use of a firearm is not a
necessary prerequisite to deny relief. (See Mary H., supra, 5 Cal.App.5th at
p. 262 [substantial evidence where a woman was hospitalized after purposely
overdosing and had tried to kill herself the same way four previous times].)
To the extent Todd points out that he testified he would “never harm anyone
with firearms” and that the trial court found him to be “very candid” and
“honest[,]”9 this does not, as Todd contends, render the trial court’s ultimate
decision devoid of substantial evidence.
8 Under section 8103, subdivision (f)(1)(B), a person with more than one
involuntary detention under section 5150 within one year is permanently
prohibited from owning or possessing a firearm. (§ 8103, subd. (f)(1)(B).)
9 Specifically, the trial judge told Todd, “I want to commend you for your
honesty. I think you’ve been very candid.”
10
First, although Todd may have sincerely believed that he would not
resort to a firearm in any future suicide attempt, the trial court could have
reasonably found that he would be likely to do so. The record—viewed in the
light most favorable to the ruling—shows that Todd had expressed at least
three specific ways of killing himself over the years—hanging, car exhaust,
and jumping in front of a car. Second, although Todd did not remember
telling an intake nurse during a prior hospitalization that he thought about
“putting a gun to [his] head in the late ‘80s,” he did not deny that the
statement was made, nor that the statement was reflected in his medical
records. Third, in testifying to his previous hospitalizations, Todd also made
the following remarks: “A lot of times, they would ask, you know, if you
would decide to kill yourself, how would you do it? Well, I’d hang myself—or
I’d take pills or I’d take, you know, or, you know, whatever number of
different things you can do to end your life.” (Italics added.) Fourth, during
his testimony Todd acknowledged several significant stressors in his life,
stating that he still presently suffers from chronic pain which could cause
him to feel down and “grind” on him. He further indicated that he “[doesn’t]
have any friends” and that “[e]ven conversations with [his] parents now are
strained.” (See Jason K., supra, 188 Cal.App.4th at p. 1554 [noting previous
threat to kill self could occur again—especially since some of the stressors
remained present].)10
In light of the aforementioned evidence, and Todd’s lengthy history of
depression and suicidal ideation, it was reasonable for the court to believe
10 Todd also testified that since his suicide attempt, he still “won’t go and
walk around [his] neighborhood” and that his “life is usually spent in [his]
bedroom” where he does not “bother anybody.” As to the latter statement, we
note that police found one firearm in a safe in Todd’s home but the other
under the bed in his bedroom.
11
that Todd was at risk for using a firearm in an unsafe manner. Given that
Todd’s most recent attempt by hanging failed, the court could reasonably
conclude that he would be inclined to choose a more reliable method to ensure
success. (See Mai v. United States (9th Cir. 2020) 952 F.3d 1106, 1116
[observing that “‘[a] suicide attempt with a firearm rarely affords a second
chance’” and that “‘the availability of lethal means . . . can make the
difference between life and death’”].)
In sum, while there is contrary evidence in the record that may have
also supported the trial court granting Todd’s petition, we conclude that the
trial court could have reasonably found that the People carried their burden
of proving, by a preponderance of the evidence, that Todd “would not be
likely to use firearms in a safe and lawful manner.” (§ 8103, subd. (f)(6).)
III. Todd Forfeited his Constitutional Challenge to Section 8103 by
Failing to Raise it in the Trial Court
Todd contends that section 8103, subdivision (f) is unconstitutional as
the statute infringes on his fundamental Second and Fourteenth Amendment
right to bear arms.11 Specifically, he asserts the law is invalid because it does
not require a judicial determination prior to revoking his rights, and because
once a person requests that the prohibition be lifted, a hearing may not be
held for up to 150 days. Todd acknowledges that he raised no such objection
or challenge below, but argues that the issue should not be deemed forfeited
because any objection would have been futile. Todd further points out that
he represented himself in the proceedings below, and urges us to exercise our
discretion to address his claim because it implicates important constitutional
11 Although Todd states at the outset of his argument that he intends to
challenge the statute both facially and as applied to him, he provides no
argument to evaluate the statute as applied to him.
12
rights. As explained below, we decline the request and deem the issue
forfeited.
First, to support his claim of futility, Todd states that the trial court
lacked authority to declare the statute unconstitutional. However, in so
arguing, Todd relies on a section of the California Constitution that prohibits
administrative agencies from declaring a statute unconstitutional or refusing
to enforce it unless an appellate court has first declared it unconstitutional.
(Cal. Const., art. III, § 3.5; see Burlington Northern & Santa Fe Ry. Co. v.
Public Utilities Commission (2003) 112 Cal.App.4th 881, 886.) This section
is, of course, inapplicable to the superior court as it is not an administrative
agency. (See, e.g., Cal. Const., art. VI, § 1 [“The judicial power of this State is
vested in the Supreme Court, courts of appeal, and superior courts, all of
which are courts of record”]; cf. People v. Burhop (2021) 65 Cal.App.5th 808,
812 [noting the superior court initially denied a resentencing petition on the
ground the law was unconstitutional].) Second, the fact that Todd
represented himself in the trial court proceedings does not exempt him from
the procedural requirements for preserving claims for appellate review.
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [“[A]s is the case with
attorneys, pro. per. litigants must follow correct rules of procedure”].) Third,
and finally, we decline Todd’s invitation to exercise our discretion to address
his constitutional challenges for the first time on appeal, finding no
persuasive reason for doing so in this instance. (See In re S.B. (2004) 32
Cal.4th 1287, 1293 [observing that an appellate court’s discretion to excuse
forfeiture “should be exercised rarely”]); cf. Folsom Police Dept. v. M.C. (2021)
69 Cal.App.5th 1052, 1060 [refusing to consider constitutional challenge to
§ 8102 for the first time on appeal].)
13
DISPOSITION
The order denying Todd’s request for relief from the section 8103,
subdivision (f) firearm prohibition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
14