People v. W.B. CA5 ( 2021 )

Filed 3/9/21 P. v. W.B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080395
Plaintiff and Respondent,
(Super. Ct. No. MI-6651)
v.
W.B., OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Kern County. Cynthia L. Loo,
Commissioner.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Cynthia J. Zimmer, District Attorney, and Michael A. Caves, Deputy District
Attorney, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
W.B. appeals from an order following a bench trial on November 13, 2019,
finding him a developmentally disabled person dangerous to himself or others, and
committing him for one year under Welfare and Institutions Code section 6500 (section
or § 6500). In part, W.B. argues the expert’s opinions that W.B. is currently dangerous
and that his developmental disabilities are causally linked to his difficulty controlling his
dangerous behavior did not constitute substantial evidence to support the commitment
order.
The one-year commitment order, however, expired on November 13, 2020. As a
result, W.B. has either been released from commitment or, likely, has been recommitted
pursuant to a new order on a different record, which is the process for recommitment
under section 6500. Thus, this appeal is technically moot. No decision we make
regarding the 2019 commitment order at issue can affect W.B.’s current commitment
status.
Despite this, we exercise our discretion to address the substantive arguments
presented: neither party has sought to dismiss the appeal as moot, the issues have been
fully briefed, and we find merit in W.B.’s substantial evidence argument—an important
issue likely to recur yet evade review.
FACTUAL SUMMARY
I. Petition for Commitment and Psychological Evaluation Certifications
On August 27, 2019, the Kern County District Attorney filed a petition pursuant to
section 6500, et seq. The petition alleged facts that W.B. poses a danger to himself
and/or others and that his developmental disability causes him to have serious difficulties
controlling his dangerous behavior. The petition alleged W.B. had a mild intellectual
disability, an autism spectrum disorder, and that W.B. had also been diagnosed with
schizoaffective disorder, depressive type. He had been charged with one count of assault
under Penal Code section 220 in March 2017, the court had ordered an evaluation of
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competency under Penal Code section 1368, and, in April 2017, Sheila D. Morris, Psy.D.,
conducted an evaluation and opined he was incompetent to stand trial.
The petition alleged W.B. thereafter became a client of Kern Regional Center in
October 2017, and currently resided at Porterville Developmental Center (PDC) pursuant
to Penal Code section 1370.1, as incompetent to stand trial due to a developmental
disability. The petition alleged that due to W.B.’s poor performance in competency
training, it was determined W.B. would not become competent at any time in the near
future.
On August 28, 2019, the court issued an order appointing Allison Little, Ph.D.,
and Michael Musacco, Ph.D., to perform psychological evaluations of W.B. On
September 19, 2019, Little’s and Musacco’s psychological evaluations of W.B. were
filed with the court, along with their certificates attesting W.B. was developmentally
disabled, he was dangerous to himself and/or others, his developmental disabilities were a
substantial factor in causing him serious difficulty in controlling his dangerous behavior,
and that placement in a state hospital/developmental center was the least restrictive
placement necessary to achieve the purpose of treatment.
II. Bench Trial
The commitment proceedings were tried before the court. At the outset, the
parties stipulated as follows: “[I]n 2014, [W.B.] became a client of Inland Regional
Center, and in March 2017, [W.B.] was arrested and charged with assault with intent to
commit rape or sodomy, in violation of Penal Code Section 220, and that he was found
incompetent to stand trial on those charges on April 3rd of 2017, and was eventually
deemed incompetent, and was remanded to the [PDC], a residential center where he
resides.”
The People called one witness, Musacco. Musacco had performed an evaluation
of W.B. at PDC where W.B. was admitted. As part of that evaluation, he conducted a
clinical interview with W.B. in August 2019 that involved asking background questions
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about W.B.’s family history, school history, and drug and alcohol history. The interview
with W.B. was hampered because W.B. provided little data describing his background or
history. According to Musacco, many times during the interview W.B. provided no kind
of response or the response “didn’t make a whole lot of sense.” W.B.’s answers were
often brief or “off point,” and Musacco was not able to obtain any detail describing any
aspect of W.B.’s history.
Musacco considered W.B. to have little insight or self-awareness, and he would
not open up to Musacco at all. W.B. refused to acknowledge any problematic behaviors
and he did not indicate any difficulty living in the community without supervision, which
Musacco felt “didn’t show a great deal of insight.” During the interview, W.B. admitted
a physical altercation with his roommate at PDC, but W.B. was unable to describe the
events that led up to that altercation.
Musacco performed a nonverbal IQ test, and W.B. obtained a score that fell in the
low borderline range, which Musacco felt overestimated W.B.’s abilities. W.B. was
evaluated in 2014 and had obtained a full-scale IQ score of 46, but Musacco felt that
underestimated W.B.’s intelligence.
As far as record review, Musacco indicated he did not have detailed records for
the evaluation. He was provided with an individual program plan (IPP) completed in
2019 and generated by the Kern Regional Center, which described a person’s function
and the services the individual is receiving to maintain their functioning. He also
reviewed several psychological reports that had been completed at PDC in the prior year.
Musacco believed there were several incident reports that described only topically, but
not in detail, some of the behavior problems W.B. had within the last year. Musacco also
had access to his prior psychological evaluation of W.B. from 2017, which contained
reference to an arrest report that described the initial charges for which W.B. was brought
into the judicial system in 2017. Finally, just prior to his testimony, the prosecutor had
given Musacco interdisciplinary notes from PDC that were consistent with the chart
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information Musacco reviewed when he conducted W.B.’s evaluation at PDC. Those
appeared to have been authored primarily by social workers and psychiatric technicians at
PDC.
Musacco was asked what he learned from these records that was significant in
forming his evaluation in this case. Musacco testified the records described symptoms
that were suggestive of a psychotic illness and there were references to numerous
instances where W.B. allegedly threatened persons with harm, to beat them up or break
their jaw, or he made sexually threatening comments to people.
Musacco testified a report noted concern that W.B. was psychotic and a danger to
others. There was a note that W.B. threatened to beat up people or referred to them in
racially derogatory terms. Musacco recited from the document that W.B. purportedly
said to staff he was “gonna break your jaws and rip the television off the wall.” Another
note indicated W.B. cursed at a staff member, called her “retarded,” and said “just wait
until I knock you out.” Another note Musacco testified about apparently indicated W.B.
had threatened a staff member by saying “if you don’t feed me and I don’t want that other
stuff, I will hunt you down and dismember your children.” The records Musacco had
reviewed for his evaluation of W.B. did not have “a lot of specific details” like those
contained in the subpoenaed PDC interdisciplinary notes. Musacco testified W.B.’s
statements in these records weigh in favor of his opinion.
After relating the content of some of the interdisciplinary notes, Musacco opined
W.B. met the criteria for an intellectual disability and autism spectrum disorder. He also
opined W.B. posed a risk of harm to others because when he had last been out in the
community there had been an allegation of assault and there was no reason to believe
W.B.’s condition had changed since then in a positive way that would reduce the risk if
he were released without supervision. He opined W.B. posed a risk of harm to others
because of his developmental disabilities, and Musacco believed W.B.’s developmental
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disabilities were a substantial factor causing W.B. to have difficulty controlling his
dangerous behavior. Musacco opined PDC was a good placement for W.B.
One witness, W.B.’s mother, testified on W.B.’s behalf. W.B. had always lived at
home with her except for one month when he moved into his own apartment. Mother
wanted W.B. to get a feel for how it was to be on his own and to develop more life skills.
W.B.’s apartment was just down the street, and she was able to keep an eye on him and
help him shop and run errands. W.B. ended up moving back in with her because it was
what was comfortable for W.B.
Mother indicated W.B. had never been in trouble before this or had gone to jail
before the 2017 incident. She had never witnessed her son making any threats. She
found W.B. to dislike crowds and that he did want to be around fights, either. He had
been labeled “retarded” when he was around four years old by a school he attended, but
she felt that was not accurate. Were W.B. to be released to her care, she would like for
him to work again at the thrift shop where he had worked in the past. She would able to
supervise him. Her plan would be to relocate them to Louisiana where they were from
originally.
III. Court’s Order
The court credited Musacco’s opinion that W.B. presents a danger to himself or to
others and that his developmental disability is a substantial factor in causing him serious
difficulty controlling his dangerous behaviors. The court concluded W.B. is a
developmentally disabled person who is a danger to himself or others and that his mental
disorder causes him to have serious difficulty controlling his dangerous behavior. The
court found the least restrictive placement was a developmental center and ordered W.B.
be committed to the State Department of Developmental Services for placement. The
court expressly held the order of commitment was to expire one year from that date,
November 13, 2019.
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DISCUSSION
As noted, the commitment order in this case expired one year after it was entered,
which was on November 13, 2019, and this appeal is technically moot. (§ 6500,
subd. (b)(1)(A).) W.B. has either been released or has been recommitted under a new set
of facts. (See § 6500, subd. (b)(1)(B).) However, because the issues are of recurring
importance and properly presented by the parties, we exercise our discretion to decide the
case on the merits. (See People v. Barrett (2012) 54 Cal.4th 1081, 1092, fn. 7; People v.
Wilkinson (2010) 185 Cal.App.4th 543, 547 [“Since a section 6500 order typically will
expire before an appeal can be heard, the issues will evade review unless we exercise our
discretion to address the merits of the issues.”].)
I. There was a Lack of Substantial Evidence to Support the Commitment
W.B. argues Musacco’s opinions that W.B. is dangerous and that his
developmental disabilities cause him serious difficulty in controlling his dangerous
behaviors were speculative, conclusory and do not constitute substantial evidence to
support the commitment order. The People argue Musacco’s opinions addressed the
issues and constituted substantial evidence to support the determination.
A. Legal Standard and Standard of Review
Section 6500, subdivision (b)(1), provides that “[a] person with a developmental
disability may be committed to the State Department of Developmental Services for
residential placement other than in a state developmental center or state-operated
community facility … if the person is found to be a danger to self or others.” Such an
order of commitment expires automatically after one year. (§ 6500, subd. (b)(1)(A).) “If
the person with a developmental disability is in the care or treatment of a …
developmental center … at the time a petition for commitment is filed pursuant to this
article, proof of a recent overt act while in the care and treatment of [the] developmental
center … is not required in order to find that the person is a danger to self or others.” (Id.,
subd. (b)(3).)
7.
The prosecution had the burden to prove beyond a reasonable doubt that W.B. was
developmentally disabled and a danger to himself or to others, and that his developmental
disability was a substantial factor in causing him serious difficulty controlling his
dangerous behavior. (In re O.P. (2012) 207 Cal.App.4th 924, 928; see Hubbart v.
Superior Court (1999) 19 Cal.4th 1138, 1158 [“due process requires an inability to
control dangerous conduct”].) The evidence must show proof of current dangerousness
linked to the defendant’s developmental disability. (In re O.P., supra, at p. 932 [“due
process demands proof of current dangerousness, linked to the defendant’s
[developmental disability]”].)
To determine whether these elements are supported by sufficient evidence, we
must review the entire record in the light most favorable to the People, and we presume
in support of the order of commitment the existence of every fact the court could deduce
from the evidence, which must be reasonable, credible, and of solid value. (People v.
Cuevas (2013) 213 Cal.App.4th 94, 106–107.)
B. Analysis
1. Musacco’s Opinion of W.B.’s Dangerousness
W.B. contends Musacco’s opinion that W.B. presents a danger to himself and/or
others as a result of his developmental disabilities was entirely speculative and
conclusory because it was based on only two incidents—the 2017 charged offense and an
altercation with a roommate at PDC in March 2018—about which there were few details
for Musacco to consider. As such, Musacco’s opinion did not rise to the level of
substantial evidence.
The danger referenced in section 6500 must involve conduct that presents the
likelihood of serious physical injury. (People v. Hartshorn (2012) 202 Cal.App.4th 1145,
1153–1154.) “The vagaries of emotional injury, mere apprehension of physical injury,
speculation and conjecture are not enough to justify the need for commitment.” (Id. at
p. 1154.) There must be evidence of current dangerousness and “not merely a
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prosecutor’s allegation that an incompetent person committed a felony.” (In re O.P.,
supra, 207 Cal.App.4th at p. 934.)1
“Although it is true that the testimony of a single witness, including the testimony
of an expert, may be sufficient to constitute substantial evidence [citation], when an
expert bases his or her conclusion on factors that are ‘speculative, remote or conjectural,’
or on ‘assumptions … not supported by the record,’ the expert's opinion ‘cannot rise to
the dignity of substantial evidence’ and a judgment based solely on that opinion ‘must be
reversed for lack of substantial evidence.’” (Wise v. DLA Piper LLP (US) (2013) 220
Cal.App.4th 1180, 1191–1192.) Similarly, “when an expert’s opinion is purely
conclusory because unaccompanied by a reasoned explanation connecting the factual
predicates to the ultimate conclusion, that opinion has no evidentiary value because an
‘expert opinion is worth no more than the reasons upon which it rests.’” (Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; cf. Thai v.
Stang (1989) 214 Cal.App.3d 1264, 1276 [expert’s conclusory declaration regarding
causation not competent evidence raising issue of fact on causation for purposes of
summary judgment].)
1 Section 6500, subdivision (a)(1), provides that “‘[d]angerousness to self or others’”
includes incompetence to stand trial when a defendant has been charged with specified violent
crimes, and also includes being charged with a felony involving death, great bodily injury, or an
act that poses a serious threat of bodily harm to another person. A violation of Penal Code
section 220 is one of the enumerated felonies under section 6500, subdivision (a)(1), but only
when the victim suffers great bodily injury, which is not itself an element of Penal Code section
220. Here, there was no stipulation the alleged violation of section 220 involved great bodily
injury to the victim, and there were no facts offered to show the circumstances of W.B.’s charged
offense posed a serious threat of bodily harm to the victim. (See In re Fuller (1981) 124
Cal.App.3d 251, 255 [considering identical language under Penal Code section 1026.5, former
subdivision (b)(1), in the context of habeas corpus petition, court concluded “[d]epending on the
facts, a kidnaping or assault to rape may constitute” “‘an act which poses a serious threat of
bodily harm to another person’”].) The trial court did not make any findings in that regard, and
neither party argues on appeal dangerousness was established statutorily by the felony charged
and/or the facts or circumstances involved.
9.
The parties stipulated that W.B. was arrested and charged with assault with intent
to commit rape or sodomy in March 2017, but no other details about those charges were
offered at trial. Musacco had reviewed those charges, apparently in forming his opinion
W.B. was incompetent to stand trial, but it is not clear from his trial testimony he knew
any of the context or details underlying that criminal complaint. As to the incident in
March 2018 with W.B.’s roommate, Musacco acknowledged W.B. was unwilling or
unable to provide any details about the altercation. On cross-examination, Musacco
indicated interdisciplinary notes from PDC showed the roommate had hit W.B. first, and
then W.B. had responded.2 Beyond that, although Musacco had reviewed chart notes
while at PDC conducting his evaluation, Kern Regional Center’s IPP notes, and several
psychological reports generated in the prior year at PDC, those records were not
admitted. Despite reference to a scattered handful of threats against staff at PDC, there
was no evidence any of the threats had led to physically aggressive behavior. The factual
basis for Musacco’s opinion of dangerousness was not well demonstrated.
Moreover, the reasons why these behaviors or incidents demonstrated
dangerousness was not explained. Musacco testified W.B. represented a risk of harm to
others because when W.B. had last been out in the community, he had been charged with
assault and Musacco did not believe his condition had changed in a positive way since
then to reduce his risk. Musacco did not demonstrate he knew much about the incident
that led to the 2017 charge of assault. And, even more importantly, Musacco did not
explain how this incident or any other behaviors noted, including those referenced in the
subpoenaed interdisciplinary notes, supported his opinion W.B. was currently a danger to
himself or others. Such an explanation was especially critical since the scant details of
2 Musacco reviewed subpoenaed interdisciplinary notes at trial, which he explained on
cross-examination indicated the altercation in March 2018 was instigated by W.B.’s peer, and
W.B. responded by throwing a chair at the peer—it was not explained whether the peer was
injured or whether the chair thrown by W.B. was in self-defense.
10.
W.B.’s underlying behaviors did not provide manifest and obvious indicia of current
dangerousness.
Without an instructive analysis as to why these incidents were indicative of W.B.’s
current dangerousness, Musacco’s ultimate opinion in this regard was merely conclusory.
This is not to say Musacco would have been unable to explain how the documents he
reviewed or what aspects of his clinical evaluation of W.B. were significant in forming
his opinion, but no testimony like this was elicited. The trier of fact was left to guess
what facts were consequential to Musacco in reaching his opinion. (People v. Bassett
(1968) 69 Cal.2d 122, 141 [“‘The chief value of an expert’s testimony in this field, as in
all other fields, rests upon the material from which his opinion is fashioned and the
reasoning by which he progresses from his material to his conclusion; … it does not lie in
his mere expression of conclusion.’”].)3
2. Causative Link Between Disability and Difficulty Controlling
Behavior
Due process demands a showing that the potential committee’s developmental
disabilities are causally linked to the person’s difficulty controlling behavior. (In re O.P.,
supra, 207 Cal.App.4th at pp. 928, 932.) In other words, the evidence must show the
developmentally disabled person has serious difficulty controlling his dangerous behavior
because of his developmental disability. (People v. Sweeney (2009) 175 Cal.App.4th
210, 225 [“[I]t must be the person’s mental deficiency, disorder, or abnormality that
causes the serious difficulty controlling behavior.”].)
3 To be clear, Musacco’s testimony was not rendered insubstantial because the underlying
records he reviewed and/or relied upon were not admitted into evidence (People v. Nicolaus
(1991) 54 Cal.3d 551, 582–583 [affirming trial court’s refusal to admit journal articles and letters
upon which expert relied]), nor are we suggesting Musacco was permitted to relate case-specific
hearsay he relied upon in forming his opinion such as the specific details of any police report he
reviewed (People v. Sanchez (2016) 63 Cal.4th 665, 686 [expert cannot relate as true case-
specific facts asserted in hearsay statements unless proven by competent evidence or covered by
a hearsay exception]).
11.
Here, there was evidence W.B. had suffered from the identified developmental
disabilities since childhood, but there was no admitted evidence of any violent tendency
until 2017, when W.B. was approximately 30 years old. Developmental disabilities do
not necessarily lead to or cause difficulty in controlling dangerous behavior. Musacco
did not explain why W.B., despite having suffered these disabilities since childhood,
suddenly had serious difficulty controlling his purportedly dangerous behavior because of
those disabilities. Without explanation, there is no obvious causative link between
W.B.’s developmental disabilities and his difficulty controlling his behavior. (People v.
Bassett, supra, 69 Cal.2d at pp. 141–146 [expert opinions must be based on facts and
supported by reasons for the conclusions reached].) Simply put, Musacco’s testimony
was undeveloped in this regard and left his ultimate conclusions unexplained. The trier
of fact was not positioned, nor are we, to fill the gaps in the testimony by independently
deciding which facts were clinically significant and then analyzing how those facts
supported Musacco’s ultimate conclusion.
This lack of explanation as to how W.B.’s developmental disabilities cause his
serious difficulty controlling his behavior is especially glaring because Musacco testified
there were several notations in the records that W.B. suffered from psychosis and
exhibited psychotic symptoms. One of the IPP narrative reports Musacco testified about
described a concern that W.B. was psychotic and a danger to others without any other
details. This notation points to a connection between W.B.’s purported dangerousness
and psychosis, not to any connection between dangerousness and his developmental
disabilities. Beyond characterizing this note as unspecific, it is entirely unexplained why
Musacco believed W.B.’s developmental disabilities rather than this noted psychosis
caused his serious difficulty in controlling his behaviors. (See People v. Cuevas, supra,
213 Cal.App.4th at pp. 107–108 [no substantial evidence of link between developmental
disability and serious difficulty controlling dangerous behavior, but there was evidence
dangerous behavior attributable almost entirely to mental illness].) Musacco may well
12.
have been able to explain what factors showed W.B.’s developmental disabilities, even in
light of noted psychotic symptoms, were the primary factors driving his difficulty
controlling his behavior, but any such testimony was critically missing.
Musacco’s conclusory opinions did not rise to the level of substantial evidence—
there had to be facts identified by Musacco as clinically significant and a reasoned basis
why those facts supported the ultimate conclusions reached; without this critical link, the
opinions were of no evidentiary value and could not constitute substantial evidence.
(People v. Bassett, supra, 69 Cal.2d at pp. 141–146.) As a result, the commitment order
is not supported by substantial evidence.
II. Case-specific Hearsay
Given our conclusion as to substantial evidence, we decline to reach the issue of
whether Musacco’s recitation of W.B.’s statements recorded in the interdisciplinary notes
was inadmissible case-specific hearsay under People v. Sanchez, supra, 63 Cal.4th 665.
DISPOSITION
Due to the expiration of the commitment order, the appeal is dismissed as moot.
MEEHAN, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DESANTOS, J.
13.