People v. Radtke CA2/6 ( 2021 )

Filed 7/7/21 P. v. Radtke CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B308828
(Super. Ct. No. 20PT-00441)
Plaintiff and Respondent, (San Luis Obispo County)
v.
GERALD CHARLES
RADTKE,
Defendant and Appellant.
Gerald Charles Radtke appeals from an order
extending his commitment as a mentally disordered offender
(MDO). (Pen. Code,1 § 2970.) He contends the commitment order
must be reversed because there was insufficient evidence he had
serious difficulty controlling his dangerous behavior. We affirm.
1 Further unspecified statutory references are to the Penal
Code.
FACTUAL AND PROCEDURAL HISTORY
Radtke was convicted of assault with force likely to
cause great bodily injury (§ 245, subd. (a)(4)). In 2017, he was
committed to Atascadero State Hospital for involuntary
treatment as an MDO (§ 2962). The involuntary treatment was
scheduled to expire in September 2020.
In June 2020, the district attorney petitioned to
recommit Radtke as an MDO. (§ 2970.) At a court trial, Dr.
Kavita Chowdhary, a psychologist at Atascadero State Hospital,
opined that Radtke suffers from schizoaffective disorder, bipolar
type. She based her opinion on her observations, an interview
with Radtke, consultation with his treating physicians, his
medical records, the probation report, a police report, and the
prior MDO evaluations.
Dr. Chowdhary testified that Radtke has a “long
history of mental health treatment” “over the last few decades,”
including treatment in the state hospital and California
Department of Corrections systems. He has two prior MDO
findings (§ 2962). Radtke exhibits “symptoms of auditory
hallucinations, persecutory delusions, paranoia, disorganization
and poor self care, irritability, [and] aggression.” He also suffers
mood lability (mood changes) and psychomotor agitation (periods
of restlessness causing pacing and aggressive behavior).
Radtke had two strokes in 2014 and 2016 which
severely impaired his speech and cognitive abilities. The
treatment providers reported it was more difficult to treat Radtke
after his strokes, and he was not compliant with taking
medication. He “continues to remain paranoid, irritable, but he’s
become harder to treat with the fragility.”
2
Dr. Chowdhary opined that Radtke’s disorder is not
in remission. She testified that he shows “overt signs and
symptoms of his disorder, [which are] not controlled by [his
treatment].” He told Dr. Chowdhary that he suffers from
paranoia. His treatment providers noted that he sits in the
corner of a room to watch people because of his paranoia. He also
becomes “easily irritated.” Dr. Chowdary said that his symptoms
“continue to be present.”
Dr. Chowdhary opined that Radtke could not be kept
in remission without treatment. Her opinion was based on his
issues with medication compliance. Radtke would “cheek” his
medication or refuse to take his medication. Because of this,
Radtke is subject to an involuntary medication order until
September 2021.
Dr. Chowdhary mentioned “some incidents of
aggression” due to his refusal to take his medication. He had one
incident in September 2019 and three in January 2020. During
one incident, he lunged and hit a staff member. He had to be
stabilized against a wall and placed in restraints. Two weeks
later, he lunged at another staff member, struggled when staff
members tried to stabilize him, and was placed in full bed
restraints. She also mentioned incidents of aggression that
occurred when staff tried to help him shower or change his
clothes.
Dr. Chowdhary opined that Radtke poses a
“substantial risk of physical harm to others because of his mental
illness.” She based her opinion on Radtke’s “long history of
psychotic symptoms, particularly paranoia, irritability and
aggression” and “several incidents of aggression in the past that
involve . . . medication compliance.” She explained that Radtke’s
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refusal to take his medication is due to his paranoid belief that
the treatment staff is trying to poison him. Radtke’s treatment
compliance issues have been “longstanding” and “continue to
affect his ability to remain safe in the future.” Dr. Chowdhary
stated that his “long history of aggression which [is] ongoing”
“indicates that it’s likely to continue.”
Dr. Chowdhary said that Radtke has “some insight
into his symptoms but limited ability to really understand and
monitor his paranoia and behaviors that are affected by that.”
She noted that “he has several cognitive limitations so there are
certain aspects that he does not show, he’s not able to indicate by
speaking what his insight into his illness is or how he can
manage it. He also does not have any discharge plans” due to his
limitations.
On cross-examination, defense counsel asked Dr.
Chowdhary if the fact that Radtke “didn’t throw more than one
punch at a time show that he has actually has some degree of
control over his behavior? In other words, he’s not volitionally
impaired, would you agree?” Dr. Chowdhary answered: “He’s not
volitionally impaired, but he [does] not have enough control. He
had to be contained right away by staff members.”
At the conclusion of the court trial, the court granted
the petition and ordered him to undergo continued treatment as
an MDO for one year (until September 15, 2021). (§ 2972.)
DISCUSSION
Radtke contends the trial court erred when it granted
the section 2970 petition because the evidence was insufficient to
support a finding that he had serious difficulty controlling his
dangerous behavior. We disagree.
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The MDO Act (§ 2960 et seq.), “‘requires that
offenders who have been convicted of violent crimes related to
their mental disorders, and who continue to pose a danger to
society, receive mental health treatment . . . until their mental
disorder can be kept in remission.’” (Lopez v. Superior Court
(2010) 50 Cal.4th 1055, 1061, disapproved on another point in
People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2.)
Pursuant to section 2970, the district attorney may
petition to recommit a person as an MDO for an additional
one-year term. The person will be recommitted if the trier of fact
finds beyond a reasonable doubt that (1) the patient has a severe
mental disorder; (2) the disorder “is not in remission or cannot be
kept in remission without treatment”; and (3) by reason of that
disorder, the patient represents a substantial danger of physical
harm to others. (§ 2972; People v. Burroughs (2005) 131
Cal.App.4th 1401, 1404.)
Moreover, federal due process “prohibit[s] the
involuntary confinement of persons on the basis that they are
dangerously disordered without ‘proof [that they have] serious
difficulty in controlling [their dangerous] behavior.’” (People v.
Williams (2003) 31 Cal.4th 757, 759 (Williams), citing to Kansas
v. Crane (2002) 534 U.S. 407, 413; People v. Putnam (2004) 115
Cal.App.4th 575, 579 (Putnam).) There is “‘no requirement of
total or complete lack of control.’ [Citation.].” (Williams, supra,31 Cal.4th at p. 771.) “[T]he impairment [to behavioral control]
need only be serious, not absolute.” (Id. at p. 773.)
We review the trial court’s findings for substantial
evidence. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) We
consider all the evidence in the light most favorable to the
5
prevailing party and draw all inferences the trier of fact could
reasonably have made to support the findings. (Ibid.)
The trial court’s findings on the statutory elements
for the MDO commitment “necessarily encompass[] a
determination that [Radtke] had serious difficulty in controlling
his violent criminal behavior.” (Putnam, supra, 115 Cal.App.4th
at p. 582.) In Putnam, the appellant challenged his MDO
recommitment on the ground that the jury instruction was
constitutionally defective because it did not expressly require the
jury to find that he had serious difficulty in controlling his
dangerous behavior. (Id. at p. 579.) The trial court had
instructed the jury of the statutory elements as follows: “[I]n
order to find that appellant had a severe mental disorder, it had
to find that he had ‘an illness or disease or condition that
substantially impair[ed] [his] thoughts, perception of reality,
emotional process, or judgment, or which grossly impair[ed] [his]
behavior.’” (Id. at p. 582.) “[I]n order to find that the disorder
was not in remission, the jury had to find that ‘the overt signs
and symptoms of the severe mental disorder’ were not under
control.” (Ibid.) And the jury “had to find that ‘by reason of such
severe mental disorder, [appellant] represents a substantial
danger [of] physical harm to others.’” (Ibid.) The court held
there was no instructional error because the instructions, “which
tracked the language of the MDO statute,” necessarily required
the jury to find that “as a result of appellant’s mental disorder, he
suffered from a seriously and substantially impaired capacity to
control his behavior, and that, for this reason, he represented a
substantial danger of physical harm to others.” (Ibid.)
We agree with Putnam, supra, 115 Cal.App.4th at
p. 582, that the trial court’s findings on the statutory elements
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for an MDO recommitment necessarily encompass a
determination that Radtke had serious difficulty controlling his
dangerous behaviors. Radtke exhibited “overt signs and
symptoms of his disorder, [which are] not controlled by [his
treatment].” These symptoms included irritability, aggression,
and paranoia. He had several instances of aggression toward
treatment staff members within the prior year. In two instances,
he lunged at or hit staff members and had to be placed in
restraints. Based on his “long” and “ongoing” history of
aggression, Dr. Chowdhary opined that his aggressive behavior is
“likely to continue.”
Radtke argues that based on Dr. Chowdhary’s one
statement that he was not “volitionally impaired,” the evidence is
insufficient to support the MDO finding. But, Dr. Chowdhary’s
statement was in response to defense counsel’s question
regarding the recent incidents of aggression. And, she specified
that Radtke “[does] not have enough control,” and that “[h]e had
to be contained right away by staff members” during those
incidents. Her statement regarding his volitional impairment
does not eliminate the substantial evidence of his “serious
difficulty” in controlling his dangerous behavior.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. YEGAN, J.
7
Roger T. Picquet, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.