People v. Jaimes-Mendoza CA1/2 ( 2020 )

Filed 11/30/20 P. v. Jaimes-Mendoza CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A156715
v.
JUAN GABRIEL JAIMES- (Solano County
MENDOZA, Super. Ct. No. FCR276110)
Defendant and Appellant.
In 2012, defendant Juan Gabriel Jaimes-Mendoza was found not guilty
of murder by reason of insanity for killing his wife in 2010 and committed to
a state hospital. In 2018, the director of the state hospital recommended
conditional outpatient treatment for defendant as provided under Penal Code
section 1600, et seq.,1 and, pursuant to that statutory scheme, the trial court
held an evidentiary hearing to consider the recommendation. The state
hospital doctors who treated defendant and the representative of the county
conditional release program who interviewed him and developed an
outpatient treatment plan for him testified that defendant had no current
symptoms of mental illness and was suitable for outpatient treatment with
supervision. The People questioned the state hospital doctors’ diagnosis of
1 Further undesignated statutory references are to the Penal Code.
1
amphetamine-induced psychotic disorder and presented witnesses who had
reached different diagnoses of defendant when they evaluated him in 2011 in
connection with the proceedings that resulted in a finding that defendant was
not guilty by reason of insanity. But the People’s witnesses had not seen
defendant since 2011, and the People did not dispute that defendant had
been symptom-free and a cooperative patient for the length of his
commitment and that he never exhibited any violence or behavioral
problems. At the conclusion of the hearing, the trial court denied defendant
outpatient status, apparently on the ground that it could not accept the state
hospital doctors’ current diagnosis in light of the different diagnoses
defendant had received in 2011.
This appeal followed. We shall now reverse and remand because,
although the trial court may have had nonarbitrary reasons for questioning
defendant’s current diagnosis, it does not appear that the court considered
whether defendant would be dangerous under supervised outpatient
treatment, an inquiry it was required to make. (People v. McDonough (2011)
196 Cal.App.4th 1472, 1493 (McDonough); see § 1603, subd. (a).)
STATUTORY OVERVIEW
We begin with a brief discussion of the statutory framework that
governs outpatient treatment of persons found not guilty by reason of
insanity.
When a defendant is found not guilty by reason of insanity, the trial
court may order the defendant committed to a state hospital or other
appropriate facility unless it appears the sanity of the defendant has been
fully restored. (§ 1026, subd. (a); People v. Cross (2005) 127 Cal.App.4th 63,
72 (Cross).) A defendant so committed to a state hospital may be released in
one of three ways: “(1) upon restoration of sanity pursuant to the provisions
2
of section 1026.2, (2) upon expiration of the maximum term of commitment
under section 1026.5 [citation], or (3) upon approval of outpatient status
pursuant to the provisions of section 1600 et seq. (§ 1026.1.)” (People v.
Sword (1994) 29 Cal.App.4th 614, 620 (Sword).)
Under the third procedure (which was invoked in this case), a
defendant “may be placed on outpatient status upon the recommendation of
the state hospital director and the community program director with the
court’s approval after a hearing.” (Cross, supra, 127 Cal.App.4th at p. 72,
citing § 1603 and Sword, supra, 29 Cal.App.4th at p. 620.)
In deciding whether to grant outpatient status, the trial court must
consider whether the director of the state hospital or other treatment facility
“advises . . . that the defendant would no longer be a danger to the health and
safety of others, including himself or herself, while under supervision and
treatment in the community, and will benefit from that status” and
“[w]hether the community program director advises the court that the
defendant will benefit from that status, and identifies an appropriate
program of supervision and treatment.” (§ 1603, subds. (a)(1), (2).) The court
also “shall consider the circumstances and nature of the criminal offense
leading to commitment” and the defendant’s prior criminal history. (§ 1604,
subd. (c).)
The defendant has the burden to prove by a preponderance of the
evidence that he “is ‘either no longer mentally ill or not dangerous.’ ”
(McDonough, supra, 196 Cal.App.4th at p. 1491.) Upon carrying that burden,
“[a] patient has a right to outpatient treatment.” (Id. at p. 1475.)
3
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Offense, NGI Verdict, and Commitment
On May 9, 2010, defendant killed his wife. In February 2012,
defendant pleaded no contest to murder (§ 187, subd. (a)) and admitted to
discharging a rifle causing death (§ 12022.53, subd. (d)). The issue whether
defendant was not guilty by reason of insanity (NGI) was submitted to the
trial court on the psychological evaluations of three psychologists, including
Drs. Nakagawa and Winkel. Each psychologist’s report was prepared in
September 2011. Nakagawa concluded defendant met the diagnostic criteria
for a psychotic disorder not otherwise specified (NOS) or a delusional disorder
NOS. Winkel observed defendant was hallucinating and delusional and
concluded he met the diagnostic criteria for paranoid schizophrenia.2
The trial court found defendant not guilty by reason of insanity. In
March 2012, the trial court committed defendant to Napa State Hospital
(NSH) for a maximum term of commitment of 50 years to life.
Recommendation for Conditional Outpatient Treatment
On February 20, 2018, the medical director of NSH notified the trial
court of the hospital’s recommendation that defendant be released for
conditional outpatient treatment.
A seven-page report prepared by NSH staff psychiatrist Muhammad
Tariq (2018 NSH report) was filed with the notice. Defendant was reported
to have been symptom-free from the start of his hospitalization. Defendant’s
participation in treatment was excellent, and his risk of violence if placed in
the community with supervision was assessed as low because he was likely to
remain treatment adherent with supervision.
2A third psychologist, Stephen Pittavino, also prepared a psychological
evaluation of defendant.
4
In May 2018, the community program director of the conditional
release program (CONREP) for Solano County, Christie Vice, filed an 11-page
placement recommendation report (2018 CONREP report) detailing
defendant’s forensic profile, his social, medical, substance abuse, criminal
and psychiatric history, the results of a clinical interview with defendant, and
the CONREP treatment program. The report concluded that defendant could
safely and effectively be treated in the community.
Section 1604 Hearing
In January 2019, the trial court conducted a three-day hearing on
NSH’s recommendation for conditional outpatient treatment pursuant to
section 1604. Defendant called five witnesses.
Dr. Tariq
Tariq, who testified as an expert in psychiatry, was defendant’s current
treating psychiatrist at NSH and had been treating him for about two years.
Tariq met with defendant for monthly visits of 10 to 20 minutes and saw him
daily in common areas. About every six months, he would meet with
defendant for one to two hours before writing the semiannual court report
required under section 1026, subdivision (f) (§ 1026(f)).3 When Tariq began
treating defendant, he would meet him with the help of a Spanish
interpreter. But defendant had been taking English classes at the hospital
and “now he converses fairly well in English,” so Tariq no longer used an
interpreter.4
3 When a defendant found NGI is committed to a state hospital, section
1026(f) requires the medical director to submit “a report in writing to the
court and the community program director of the county of commitment . . .,
setting forth the status and progress of the defendant” at six-month intervals.
4 A Spanish interpreter assisted defendant at the section 1604 hearing.
5
Tariq diagnosed defendant with amphetamine-induced psychotic
disorder with onset during intoxication, amphetamine-use disorder, and
alcohol-use disorder. Defendant had not taken antipsychotic medications or
any medications for these disorders during the time he was under Tariq’s
care. Tariq testified defendant was cooperative with all people in his unit
and in the hospital and generally did “[w]hatever he’s supposed to be doing.”
Tariq testified defendant was suitable for supervised treatment in the
community based on the following: defendant was not showing signs or
symptoms of mental illness and was stable in that regard; he had not had any
incidents of aggression or other concerning behaviors since he had been
hospitalized; he participated in groups and substance-use-disorder-related
meetings; he was willing to work with CONREP and do whatever was
required of him in the community; and recently, defendant had been in touch
with his family, who could provide some emotional support in the
community.5 Others NSH professionals who interacted with defendant
included a psychologist, a social worker, a rehabilitation therapist, and
nursing staff, and Tariq was not aware of anyone on defendant’s treatment
team who disagreed with the recommendation that defendant was ready for
community supervision.
In cross-examination, the prosecutor asked whether defendant had
more insight into his offense than he previously had, and Tariq responded
that defendant still did not remember killing his wife but he now
5Tariq knew that defendant’s father, cousin, and at least one of his
sons had been visiting defendant.
6
acknowledged that he killed her.6 Tariq testified defendant might never
remember the offense because of dissociation, meaning “he could not make
any memory of that event.” Tariq testified that the dissociation “was due to
his drug use, so it’s not like he has a dissociative disorder or anything like
that.” Tariq believed there would be “a risk again if [defendant] does drugs.”
Tariq explained the diagnosis of “amphetamine-induced psychotic
disorder with onset during intoxication” did not mean defendant was
intoxicated at the time of the killing. “The onset during intoxication mean[s]
that maybe less than one month before that event, he was doing meth. And
that made him psychotic. That . . . psychosis can go for months and years,
but the diagnosis would still be the onset during intoxication.” Tariq testified
that usually drug- or alcohol-induced psychosis “clears up within days to
weeks, months. It’s rare that it would go on for many months or years.”
Asked about Dr. Winkel’s and Dr. Nakagawa’s NGI evaluations of
defendant from September 2011, Tariq testified the psychologists “[c]ould be”
wrong in their diagnoses.7
Tariq agreed with the statement in DSM-5 (as stated by the prosecutor)
that “it may be difficult to distinguish a substance-abuse-induced psychotic
disorder . . . from the independent psychotic disorder.” On questioning from
the trial court, he agreed that it was common for people with a psychotic
disorder, schizophrenia, or delusional disorder to self-medicate with alcohol
or illegal drugs. Tariq is not a forensic psychiatrist.
6In redirect, Tariq testified that defendant did have insight into the
disorders that he was diagnosed with in that he acknowledged that he had
them.
7 In redirect, Tariq agreed it was a possibility that when the original
forensic evaluations were done, defendant was still experiencing drug-
induced psychosis.
7
Tariq has treated patients with paranoid schizophrenia and is familiar
with their symptoms when they are not medicated. Such symptoms could be
auditory or visual hallucinations, delusional thinking (which would be having
false fixed beliefs or paranoia), and disorganized thoughts. In his two years
interacting with defendant, Tariq was not aware of defendant exhibiting any
of these symptoms and was not aware of any staff at NSH reporting
defendant had any of these symptoms. He testified that a patient diagnosed
with psychosis NOS, who is not medicated, could display symptoms of
hallucinations, delusional thinking, and disorganized thoughts, but “[t]here’s
a possibility that they could be very stable without any of those symptoms,
even though they make the criteria of the disorder in the past.” Tariq was
not aware of defendant having any symptoms associated with psychosis NOS
in the two years he had been treating defendant.
Tariq had looked at Winkel’s evaluation from September 2011 and
knew he conducted psychological tests.8 He was not aware of any
psychological testing done at NSH. He agreed in general that someone with
a depersonalization disorder is more dangerous than a person who does not
have the disorder.
Dr. Pretkel
NSH psychologist Peter Pretkel testified as an expert in clinical
psychology. At NSH, his duties include providing violence risk assessments,
court reports, treatment planning, and group therapy. Dr. Pretkel became
defendant’s psychologist in February 2014 when defendant was transferred
to unit T12, a dual diagnosis specialized substance treatment unit; he treated
8Tariq testified he looked at the reports by Drs. Nakagawa and Winkel
“mostly for the parts that were interesting or relevant to me. I have not
looked at those reports, every page, every line, or every paragraph.”
8
defendant until the fall of 2016 when defendant was transferred to Dr.
Steward. Pretkel would see defendant on an almost daily basis because his
office was in the unit, and he interacted with defendant at group therapy and
for treatment conferences. He also prepared a violence risk assessment of
defendant which he completed in January 2017. The violence risk
assessment used the HCR20, an instrument that considers historical factors
and current dynamic factors. Dynamic factors include “insight, behavioral,
cognitive, and affective stability, violent ideation, treatment response, . . .
current symptoms,” and “ability to handle stress.” Defendant’s English was
good enough that Pretkel was able to review the violence risk assessment
with defendant in detail.9
Pretkel concluded (as reported in the 2018 NSH report) that
defendant’s violence risk in the hospital and in the community under
CONREP supervision was low and his risk in the community without
supervision was moderate/high. For treatment in the community, Pretkel
testified defendant generally “just needs substance disorder treatment.” At
NSH, defendant never evidenced any delusions like those reported by his
family members at the time of the offense. Pretkel never saw defendant
respond to internal stimuli (which would indicate auditory hallucinations),
and there were no reports of disorganized speech or behavior. Also,
defendant was not diagnosed with antisocial personality disorder, which was
“a positive for his violence risk.”
9 Pretkel did note that defendant had worked with a Spanish-speaking
therapist since around 2014 or 2015, but he could not confirm that she was
still working with defendant. Defendant also attended Spanish-language
groups.
9
Pretkel was asked how he reconciled the 2011 diagnoses (paranoid
schizophrenia, psychotic disorder NOS) with his current diagnosis of
methamphetamine-induced psychotic disorder. He responded, “[I]t’s a matter
of time.” “[A]t the time of his reports for not guilty by reason of insanity, one
investigator said that he was really clear-thinking, although he had some
thought-blocking and some residual symptoms, I believe . . . . And the other
investigator, I think, did say that he showed signs of schizophrenia.[10]
[¶] And that was a matter of time. So if those assessments were done three
months after his offense, or even six months—and some cases, you know, up
to a year, but that’s relatively rare[,] . . . it still may be methamphetamine-
induced . . . psychotic disorder. He has to go for a period of a year without
use of amphetamines to really finalize the diagnosis of amphetamine-induced
psychotic disorder.” At the time of the hearing, defendant had been at NSH
and in T12 for more than four years, and Pretkel testified, “We’d certainly see
psychosis in those years.”
Defense counsel noted that Pretkel’s violence risk assessment indicated
dissociative amnesia and depersonalization disorder were “a risk factor of
insight” and asked Pretkel to explain this. Pretkel responded that he started
with Dr. Winkel’s NGI evaluation, which stated defendant had a tendency for
dissociative symptoms. Pretkel looked for additional evidence of these
symptoms in the record and asked defendant’s therapist about it. Defendant
“has reported that he can feel unreal in times of family stress or financial
stress.” Pretkel testified that the diagnoses of dissociative amnesia and
10 Without going into detail on the evaluators’ confidential reports from
2011, which are part of the record in this appeal, we note that Pretkel’s
recollection of the evaluators’ descriptions of defendant’s current state at the
time of the interviews was generally correct.
10
depersonalization disorder helped explain why defendant could not remember
killing his wife. He testified that dissociative amnesia and depersonalization
disorder are often caused by prior experiences of trauma and defendant had
significant trauma.11 Pretkel testified the depersonalization disorder
diagnosis means “in trauma or in memory of trauma or under stress,
[defendant] can sometimes feel the world as unreal or . . . him lacking in
connection.” Even with these diagnoses, Pretkel assessed defendant as a low
risk for violence under community supervision. He explained the diagnoses
were “descriptive for what his experience looked like and what his experience
is,” but “they’re not causal factors.”
Pretkel testified people are less prone to violence “if they have stable
family relationships and, in addition, if the family participates in some way
in their plan for success in the community,” and defendant had improved his
relations with this family.
Pretkel also testified about two incidents in T12 he found noteworthy.
In one incident, defendant was assaulted by another patient and suffered
minor injuries, and defendant reacted appropriately. He did not “return any
punches” and was cooperative with staff. The other incident was that
defendant tested positive for Tramadol. About the second incident, Pretkel
testified, “I don’t know what to make of this. . . . I can’t say he did or didn’t
use Tramadol. What I can say is that we did have a lot of problems on the
unit with anomalous results.” He recalled another patient whose test results
showed exactly a different patient’s medications, so it seemed there had been
11 Pretkel referred to childhood trauma of defendant witnessing
someone killed with a machete when he was eight years old and seeing
someone killed by a bullet at a rodeo when he was a child. He further
testified that there are no medications prescribed for these disorders, which
are “more along the lines of post-traumatic stress disorder.”
11
some mix-up of samples. Pretkel testified that was the only time defendant
ever tested positive for anything.
Since he completed his violence risk assessment in 2017, Pretkel has
not learned of anything that would increase defendant’s risk in the
community.
In cross-examination, Pretkel agreed one would “kind of get high” from
Tramadol. If the positive test for Tramadol were accurate, defendant may
have gotten the drug from another patient. That concerned Pretkel “a bit,”
but he testified, “even if he had relapsed, in a sense, on Tramadol for a brief
high, you have to look at the overall picture of his behavior and treatment
adherence.” This was “one possible relapse over five years,” and it did not
change Pretkel’s risk assessment. He believed CONREP would provide
frequent testing, which would manage defendant’s risk in the community.
Pretkel also testified that in his experience, after patients realize they had
psychosis due to methamphetamine, “they’re more able to know why they
shouldn’t use methamphetamine.”
Pretkel did not conduct any psychological testing of defendant. He
testified that testing is “only an adjunct for diagnosis. [¶] . . . [D]iagnosis can
almost always be done by looking at history and a clinical interview and so
forth. . . . I’ve worked for the state hospital system for ten years, and I’ve seen
. . . testing on this and that, and I’ve done testing on this and that. And . . .
the utility of testing is . . . in my estimation, marginal at best.”
The prosecutor then asked Pretkel a series of questions about Winkel’s
NGI evaluation from September 2011. He reminded Pretkel of his testimony
that symptoms of methamphetamine-induced psychosis do not last more than
a year after last drug use and pointed out that Winkel observed defendant
still showing psychotic symptoms a year and a half after killing his wife.
12
Pretkel responded, “I read [Winkel’s] report really thoroughly, and so I would
have had to have gone through the thinking that I’m pondering right now.
But I don’t recall my thought process around that, because I don’t have access
to the report right now.”
Nonetheless, Pretkel stood by his own diagnosis: “Dr. Wink[el] may
have used the Rorschach and the MMPI, and he may have come up with
conclusions that there’s an underlying severe psychosis. But he hasn’t
observed Mr. Mendoza on a unit for over two-and-a-half years. [¶] And the
thing about a psychotic disorder is that you see it. You see it in front of you.
And, otherwise, a person doesn’t have the diagnosis. [¶] So, I would actually
push back on Dr. Wink[el] and say that he didn’t have the information he
needed. He had a one-time assessment in front of the patient. He did some
tests that . . . can support a diagnosis, but . . . I’ve actually seen Mr. Mendoza
on the unit and have synthesized . . . all my knowledge about his behaviors,
. . . documents about his behaviors, chart notes, police reports,[12] and my own
interactions with him. And I stand by my diagnosis.”
Pretkel speculated that defendant may have used methamphetamine in
jail, which, in turn, could have continued “propelling him into psychosis.”
Pretkel had no knowledge of defendant using drugs in jail, but he testified
there needed to be an explanation for defendant’s psychosis at the time of his
assessment by Winkel.
12 Pretkel recounted that defendant’s family started noticing strange
behavior around the time of his mother’s death about a year before the
killing, that defendant reported he increased his drug use at that time, that
defendant’s father knew defendant was taking drugs, and that a coworker
said defendant used methamphetamine the day of or the day before the
killing.
13
Pretkel disagreed with the statement in Winkel’s NGI evaluation that
it was common for a first serious schizophrenic break to occur at defendant’s
age. Pretkel testified that first schizophrenic breaks commonly occur
between the ages of 17 and 22, but defendant was about 33 years old when he
killed his wife. “That’s really uncommon. It’s really unusual.”
Pretkel agreed with the prosecutor’s statement “if someone has been
using methamphetamine, and they also have an underlying psychotic
disorder, they can blend together a little bit.” But, he explained, the hospital
“does a good job” of disentangling drug use from underlying psychotic
disorders. At NSH, defendant was not taking anti-psychotic medications, he
was not using methamphetamine, and he had no symptoms for five years.
This, he testified, “really shows that the correct diagnosis is
methamphetamine-induced psychosis.” Pretkel noted that
methamphetamine “does get into the hospital sometimes,” but they saw no
methamphetamine use by defendant.13
In redirect, Pretkel acknowledged that Winkel reported that defendant
presented “with rather florid psychosis, both in an interview and in testing,”
but his own experience with defendant and defendant’s history at NSH were
completely different. Pretkel reiterated that no NSH staff reported
defendant had psychotic symptoms. In morning meetings with clinicians and
in monthly psychiatric assessments, “no one mentioned any psychotic
symptoms or the need to intervene for psychotic symptoms. I mean, that’s
our basic job. It’s a psychiatric hospital, and most of what we see are patients
with schizophrenia and schizoaffective disorder and other psychotic
After defendant reached the highest privilege level at T12, he was
13
randomly drug-tested monthly.
14
disorders. And the primary treatment is medication, anti-psychotic
medication.”
Dr. Steward
NSH psychologist John Steward, who also testified as an expert in
clinical psychology, worked in T12 and replaced Pretkel as defendant’s
supervising psychologist. He interacted with defendant in English. In March
2018, Dr. Steward prepared a violence risk assessment for defendant like the
one Dr. Pretkel prepared in January 2017. He diagnosed defendant with
methamphetamine-induced psychosis, dissociative amnesia, and
depersonalization disorder.
Steward testified defendant’s risk for violence was very low in the
hospital, low in the community under CONREP, and moderate to high,
“tending toward the high range,” without supervision. He concluded
defendant’s risk in the community with supervision was low based on his
behavior in the hospital: “Juan doesn’t create any problems on the unit. He
does everything he’s supposed to do. He goes to groups. He’s involved. He’s
motivated. He’s responsible. If he needs to talk with me about something,
he’ll come up and initiate with me. When I’ve spoken with him, he has been
attentive and has sought to understand the topic of discussion. So given the
fact that he’s done so well in a treatment environment, the assumption is
that he’ll do well in a treatment environment on the outside, with
supervision.”
Steward testified that during defendant’s time as his patient, he “has
had an ongoing and improving relationship with his family” and reconnecting
with his family made defendant happier. Steward was not aware of any
family members participating in defendant’s treatment planning. Steward
15
testified that no new information had changed his violence risk assessment
since he prepared his report in March 2018.
In cross-examination, the prosecutor focused on demonstrating that
Steward improperly copied Pretkel’s January 2017 violence risk assessment.
He asked if Steward “copied a lot of” Pretkel’s report when writing his own.
Steward answered that he used “[t]he parts that were relevant” and “there’s
no sense in redoing it.” He testified it was still his own independent
evaluation “because I am the one who is doing the interviewing and who is
then making sure that the report is accurate.” The prosecutor asked if he
recalled copying Pretkel’s report “word-for-word except for the last three
bullet points.” Steward initially disputed this characterization, but later
reviewed the two reports and agreed the only difference between them was
the bullet points at the end.
The prosecutor asked why Steward did not use psychological testing
when making risk assessments. Steward began his answer by noting it was
“very, very difficult to predict violent behavior, future behavior. The best
predictor of future behavior is past behavior.” He testified that objective
psychological tests “are poor predictors of behavior; otherwise, we could give
those. That’s why there’s been . . . a whole area of research, where people
have tried to come up with, develop these kinds of tests or assessments,
evaluations, to try to increase the validity and reliability of predicting
violence. So it’s a tough area, an area of psychology, and so that’s why they
come up with this kind of a—it’s—it’s the—objective—looking at the facts,
plus the evaluator’s judgment and opinion.” Steward testified that because
“the best predictor of future behavior is past behavior,” “drug treatment is so
important; how they are—that they develop an awareness of their triggers
and warning signs; that they are committed to living drug-free lives; that
16
they have insight. I mean, these are the factors that really contribute to one
being able to make an educated assessment as to the likelihood or probability
of them either tending to be violent or not violent.”
Christie Vice
Vice previously held position of community program director of the
Solano County CONREP14 and wrote the 2018 CONREP report for defendant.
Vice began interviewing defendant in 2016 and met him at least six times.
She explained that when a state hospital notifies Solano County CONREP
they have a patient who may be ready for outpatient treatment, CONREP
interviews the patient for appropriateness, consults regularly with the
patient’s treatment team through liaison visits, and evaluates whether the
patient is ready for outpatient care. CONREP does not always agree with the
state hospital’s recommendation.
In May 2018, Vice determined defendant was appropriate for
outpatient treatment. She noted that defendant had been asymptomatic for
his entire hospital stay, had no behavioral issues, and was “considered a
model patient, by most standards.”
Vice knew defendant’s diagnosis was amphetamine-induced psychosis.
She was not aware of his prior diagnoses although she did review
Nakagawa’s and Winkel’s evaluations.
Vice explained that if a patient is not doing well on community
supervision, “whether it’s noncompliance with the program, a relapse in
substance use or an increase in psychiatric symptoms,” CONREP can
rehospitalize the patient under section 1610.
14 She left the position in December 2018.
17
In cross-examination, Vice testified she was not aware of defendant’s
diagnoses of amnesia and depersonalization disorder, but she did know that
defendant did not have memory of the offense itself. Vice believed defendant
“has the appropriate amount of insight, given the consideration.” She
explained, “If he has a dissociative amnesia disorder, there’s going to be
things that he doesn’t remember. When confronted with physical evidence
showing otherwise, he’s been very accepting of his culpability in that, and
very remorseful.”
Dr. Brown
At the time of the hearing, Dr. Molly Brown was the acting community
program director of Solano County CONREP and would be partially
responsible for implementing the outpatient treatment plan for defendant.
Brown was not familiar with defendant and did not write his treatment plan
(Vice did), but she had implemented outpatient treatment for other patients
for whom she had not authored the treatment plan in the past. In cross-
examination, she agreed that she “would feel much more comfortable making
[her] own independent evaluation and [her] own independent treatment plan,
before anything was implemented for the defendant.”
The People opposed outpatient status and called two psychologists who
had evaluated defendant in 2011.
Dr. Nakagawa
Dr. Janice Nakagawa was appointed by the court to evaluate defendant
for his NGI trial in 2011. At that time, she reviewed records provided by
defense counsel, summary reports by the investigators in the case, interviews
by detectives, jail mental health records, and psychological testing completed
in August and September 2011 by Dr. Winkel, who had been privately
18
retained by defense counsel. She also interviewed defendant once in August
2011 for about two or three hours.
When Nakagawa interviewed defendant, he acknowledged using
methamphetamines but indicated he had not used it in the days prior to the
offense. She testified that defendant reported he had increased his
methamphetamine use “in the few months before” the offense. Nakagawa
asked him about “whether he was seeing things and had mental health issues
even before he increased his methamphetamine use,” and defendant said he
saw things in the sky and described “an array of symptoms that conveyed
delusional, as well as visual, a lot of visual hallucinations.” Defendant told
her “he felt some ‘strange phenomenons,’ . . . even when he was not using
drugs.”
Nakagawa had never heard a psychological expert say (as Pretkel did)
that psychological testing was of marginal value. She believed “psychological
testing can play a very critical, if not prominent, role in assessments. I’d
liken it to the physician, who may order a battery of testing, and it can be for
purposes confirming, ruling out or even pointing to other possible symptoms,
that were not clearly noted . . . by the clinician . . . .”
In 2011, Nakagawa concluded defendant met the diagnostic criteria for
psychotic disorder NOS or delusional disorder NOS. She testified defendant
exhibited symptoms 15 months after the offense: “By the time I saw him in
August, he continued to evidence delusional thinking, talked about evil
spirits, talked as if it were still true for him at that point.” Nakagawa
testified defendant did not want to talk about his mental health issues and
her impression was that he did not want to present as having serious mental
health symptoms. She testified he was “not trying to fake them or trying to
exaggerate them, which is critical in this kind of assessment in particular.”
19
Nakagawa testified it was her experience that psychotic disorder NOS
and delusional disorder do not just go away over time but added “anything
can happen.” She agreed that defendant’s diagnoses of dissociative amnesia
and depersonalization disordered based on his lack of memory of the offense
would be cause for concern. “In a dissociative state, one is not aware of
what’s happening. If the argument is that this individual was experiencing,
if any, dissociative amnesia or dissociative episodes at the time of the instant
matter, in which that individual acted out in a very unpredictable violent
manner, there certainly is cause for concern that that potentially may happen
in the future; but who knows?”
In cross-examination, Nakagawa testified she had not seen defendant
since August 2011 and did not review any of his NSH records regarding his
treatment. She has treated patients in state prison hospitals and agreed
some were misdiagnosed. She observed that in the prison system, once a
person receives an initial diagnosis, it may be repeated in a rote fashion.
Asked whether she would expect to see symptoms in an unmedicated
psychotic person within two months, Nakagawa responded, “It’s not clear, . . .
for example, with a delusional disorder—and that’s what I said in this case
. . . —there are individuals who can present as very rational, can complete
day-to-day tasks, can respond to directives, can look ‘normal,’ in quotes, but
may . . . evidence delusions, and unless that’s actively discussed or probed or
the focus of discussion, that may never come—become known even by the
clinician.” She testified an unmedicated delusional person could hide it for a
year or two years. (She was not asked about longer periods of time.)
Presented with the hypothetical of “an unmedicated person, with a psychotic
disorder, who does not manifest any dangerous behavior [for] six years,”
Nakagawa could not say the person was “likely a low risk.”
20
Nakagawa testified she had no opinion about defendant’s current
situation and it would be unethical for her to speculate. She agreed “the
literature indicates that drug-induced psychosis can impact people, over a
year, up to two years.” She agreed that it was possible that when she met
defendant, he could have been suffering drug-induced psychosis 15 months
after using methamphetamine. She testified that, in that case, “I would have
been wrong” “in my opinion.”
Dr. Winkel
Dr. Ricardo Winkel, a clinical and forensic psychologist, was hired by
the defendant’s attorneys (the public defender’s office) in 2011 to give “a
general impression of the defendant’s psychological functioning, particularly
at the time of the alleged offense.” After reviewing police records on the
investigation, he met with defendant twice (in August and September of
2011) to conduct a clinical diagnostic interview and administer psychological
tests.15 Winkel is fluent in Spanish, and he interacted with defendant in
Spanish.
Winkel testified that at the time of the clinical interview, defendant
“was completely psychotic . . . . He was hallucinating. He was delusional. At
times, his thinking was disorganized.” He noted that defendant “was not
uncomfortable with the fact that he was having delusions.” In contrast to
patients who are distracted by their hallucinations, “defendant was not
distressed. Another way to put it is he was far too gone to realize at the time
15Winkel gave the following tests: the Beck’s Depression Inventory,
2nd edition; dissociative experience scale; Miller Forensic Assessment of
Symptoms; Minnesota Multiphasic Personality Inventory, 2nd edition;
Neurobehavioral Cognitive Status Examination; the Personality Assessment
Inventory; the Rogers Criminal Responsibility Assessment; Rorschach
Inkblot test; and the Trail test.
21
that he was having psychotic symptoms. Winkel’s impression was that
defendant “exercised very poor judgment based on . . . a severely distorted
perception of reality.”
Winkel’s testing showed “some indications of cognitive dysfunction” and
“very clearly indicated the presence of a psychotic condition, possibly and
most likely, schizophrenia.” Winkel testified the test results were consistent
with defendant’s reported mental condition and with clinical observation, and
he diagnosed defendant with paranoid schizophrenia.
Winkel concluded defendant suffered from a lifelong schizophrenic
condition. He testified schizophrenia typically starts in the late teens into
the 30s. He stated it was “rather common” for schizophrenic patients to use
drugs “partly in an effort to self[-]medicate, to soothe the inner turmoil, to
calm down ideas and emotions.”
Winkel testified at length about how to differentiate between
substance-induced psychosis and schizophrenia: “[T]here are typical markers
or signs or symptoms that guide or drive the diagnosis. I relied on them to
determine that the defendant was suffering from paranoid schizophrenia, not
from any other condition. There are specific markers that would have driven
a different diagnosis. There are neurological signs that help differentiate
amphetamine-induced psychosis from other conditions, including
schizophrenia.
“Those are what they call stereotype, involuntary movement, which is
rubbing the fingers or rubbing the face; facial twitches; dyskinesia, or gross
movement disorders, usually [a]ffects gait. There is an increase in
norepinephrine, and that can be tested. There are neuropsychological or
cognitive signs under the heading of non[-]age-related cognitive decline. The
reason is that that type of drug is favored, or liked, by certain parts of the
22
brain. Mostly the frontal striatal lobes, the parts of the frontal lobes and the
limbic system that’s part of the so-called pleasure circuit, and factual in
terms of actual measurable behavior that can be seen as decreases in episodic
memory, processing speed and mostly [a]ffecting functioning. This is the
ability to do things. [¶] That’s very observable, People that are seriously
[a]ffected by methamphetamine addiction have more trouble doing the things
. . ., more than they would have had if they were not addicted or using large
amounts of amphetamines. There was no indication that that was the case.
“They’re also purely psychological signs. The presentation initially can
be very similar in one condition and the other. Drug induced versus
schizophrenia. [¶] In both cases, your likely to see delusions and
hallucinations. Persecutory delusions such as was the case with the
defendant . . . . You have to have a narrative that someone is after you and
intent on causing harm. [¶] In schizophrenia, . . . there’s an additional
phenomena that those are bizarre delusions, unorganized, and there was
plenty of evidence that the defendant had bizarre delusions dating back to his
late childhood, early adolescence, and that’s not a marker of amphetamine-
induced psychosis.”
Winkel also testified that a symptom unique to amphetamine-induced
psychosis is tactile hallucinations such as a feeling of “insects crawling under
your skin,” which is often accompanied by “sores all over the body.”
Defendant did not complain about such sensations, and Winkel did not
observe sores on his skin. He concluded that “all the signs pointed uniformly
in the direction of paranoid schizophrenia and none in the direction of a drug-
induced condition.”
Winkel testified that schizophrenia does not go away and cannot be
cured; it can only be treated. He testified that, if defendant had paranoid
23
schizophrenia but he was only treated for drug abuse, then “the underlying
psychosis would be left untouched and untreated.” He further testified that
“the more restrictive the environment, the less likely you are to see
observable signs of schizophrenia,” suggesting this could explain how NSH
staff did not observe symptoms in defendant for years.
Asked whether Steward behaved appropriately in copying Pretkel’s
report, Winkel suggested that Steward’s conduct was of the type that “would
compromise [his] license, most likely lead to . . . probation or loss of [his]
license, suspension or loss.” He also testified it was a violation of the
American Psychological Association’s code of ethics.
In cross-examination, Winkel acknowledged that he had not seen
defendant since the meetings in 2011 and that he had not reviewed his NSH
records. He agreed that defendant’s psychotic delusions during the 2011
interviews were so pervasive that defendant did not recognize they were
psychotic. But Winkel did not agree with the suggestion that defendant’s
type of severe mental illness would necessarily be difficult to hide from
psychological professionals. He noted that there are high functioning people
who suffer from chronic schizophrenia who have learned to keep their
symptoms private. On the other hand, Winkel did agree that he observed
defendant’s psychosis and did not see any indication that defendant “was
trying to cover up or hide or dissimulate his symptoms.” He testified that a
person is not dangerous just because he is a paranoid schizophrenic and that
the “most dangerous situation is an angry paranoid schizophrenic that has
delusions of persecution.”
Winkel could not say whether a patient who is unmedicated and
asymptomatic is likely to be less dangerous. “That would require a thorough
evaluation,” and he would not make such a determination without “a
24
thorough psychological evaluation with forensic indicated and validated tests,
beyond the smaller tests that are oftentimes used in the state hospital, like
the HR-20.”
Winkel did not have an opinion about defendant’s current level of
dangerousness. He testified that, without assessing defendant, it would be
unethical to opine on whether defendant was ready for community
supervision.
The trial court asked Winkel how old defendant was when he reported
his early visions or hallucinations. Winkel recalled that defendant reported
he “saw a female figure at the tip of his penis,” among other visions, “in his
late adolescence.” Winkel testified defendant “reported what we, as
clinicians, would consider bizarre hallucinations, which are different from
what you would get with a drug-induced psychosis. Those are more typical of
a schizophrenic process.”
In addition to hearing the foregoing testimony, the trial court reviewed
defendant’s mental health records from NSH and heard counsels’ argument.
Defense counsel acknowledged the NSH witnesses were “not as impressive as
Dr. Winkel in their testimony, in their report preparation,” but she urged
that the medical records nonetheless showed defendant had no symptoms of
mental illness or behavioral problems. The prosecutor suggested Dr.
Pretkel’s opinion was questionable because he did not believe in psychological
testing and argued Steward’s violence risk assessment should be disregarded
because “[h]e just plagiarized it.” He argued Tariq’s recommendation was
only as reliable as Pretkel’s since he was “really relying on Dr. Pretkel’s
report from 2017.”
25
Trial Court Ruling
The trial court denied defendant outpatient status. The court stated its
reasoning on the record as follows:
“I’m going to start with some comments before I tell you what my
ruling is. And just recite some of the evidence that I heard. So Dr. Pretkel
testified in front of me that if you see symptoms of psychosis persist for over a
year following cessation of meth use, that’s more an indication of an actual
psychotic disorder. . . . [¶] Dr. Tariq testified that he briefly reviewed the
reports of Dr. Nakagawa and Dr. Winkel and Dr. Pittavino from the 1026
process. . . .
“Really difficult for the Court to place any reliance on what Dr. Steward
testified to. I went through his written report, compared it to Dr. Pretkel’s
report from a year-and-a-half or so earlier. He’s got just identical wording. I
mean, not even a few words different for some of these paragraphs that start
with the phrase: At his interview for this report, referring to Dr. Steward’s
interview the time he spent with Mr. Jaimes-Mendoza. [¶] He denied under
oath that he copied Dr. Pretkel’s report. So he testified under oath: I didn’t
copy his report. I’m sorry, I think that was untrue. That was untrue
testimony by Dr. Steward. His whole report is primarily a cut and paste job
from Dr. Pretkel’s earlier report. [¶] So the People saying he plagiarized Dr.
Pretkel’s report, I agree with that. But more to my point, I think he was
untruthful when he testified in front of me. After being sworn to tell the
truth. I frankly was just appalled by all of that.
“Dr. Nakagawa testified that people with delusional disorders can
present as normal.
“Dr. Winkel, I think, did the most thorough workup of all of the doctors
that testified, past or present, in front of me in this hearing. He did his
26
testing, malingering testing, other tests. He spoke Spanish with the
defendant. One of the things he said is he didn’t observe any tactile
dyskinesia back in 2011 meth-induced or substance use psychosis that’s often
a sign of that.
“Something—and this isn’t fundamental to my decision today, but I
went through a June 2017 CONREP liaison report, there’s a program that
the defendant has to actively participate in. It’s called the ISRU program.
It’s designed to help patients understand how their history of alcohol and
drug use lead to their crimes or led to their crimes. There’s an oral
component, verbal component and a written component, but the workbooks
are only in English, so they’ve waived the requirement that Mr. Jaimes-
Mendoza participate in a written form of that.
“Is that a big issue? Probably not, since he’s programming in the oral
part of it, but is that good practice when you’re assessing risk to the
community and even your own hospital that has diagnosed him with the
prominent risk related to substance use and not some other independent
health condition? This is . . . in an era where Hispanic individuals . . .,
they’re the most populace racial or ethnic group in our state right now. Even
our schools have materials in Spanish, written materials in Spanish.
[¶] Now, I’m not saying that all Spanish speaking individuals can’t also read
and write English, I’m sure the majority of them can, that’s not what I’m
saying, I just found that disturbing, that as of 2017, for Spanish speaking
patients at the hospital, at least in that program, there’s no written
materials.
“What am I to make of this evidence from—so May of 2010 is the
defendant’s arrest. August, September—July, I think Dr. Nakagawa
interviewed him. So July, August, September of 2011, the forensic interviews
27
for the NGI plea, 15, 16 months, 14, 15 months after, arguably, all meth use
has ceased, and yet both Dr. Nakagawa and Dr. Winkel testified that they
observed the defendant being floridly psychotic in 2011.
“I think all of the testifying doctors, both from Napa and those two
doctors said that that’s a real stretch to believe that psychotic symptoms in
August and September of 2011 would relate to methamphetamine use, if the
meth use stopped in 2010, in May of 2010.
“I have no evidence before me that Mr. Jaimes-Mendoza was using
methamphetamine or other substances in the jail setting. [¶] So am I to
conclude that he just flat out lied to Dr. Winkel, Dr. Nakagawa, and Dr.
Pittavino, and that he was such a good liar that he could fake those
symptoms to three different doctors, pass the anti-malingering test, complete
the Rorschach test in a way that demonstrated psychosis, when in fact he had
no psychosis? [¶] And if that’s the Court’s conclusion, what does that say
about the current risk assessment? Because if those reports are only briefly
reviewed and that possible explanation for the 2011 observations by the
doctor is not accounted for, how can I have any confidence that the Napa folks
have accurately, reasonably assessed the defendant’s current risk to the
community? I really don’t think I can.
“And then the flipside of it is, they haven’t been treating him for a
psychotic disorder. So if they haven’t been treating him for a psychotic
disorder because they don’t believe he has one, but in fact he does have one,
as diagnosed by Dr. Nakagawa and Dr. Winkel, and, to some extent, Dr.
Pittavino, then, again, the risk hasn’t been accurately or adequately assessed.
“So either way, . . . I don’t think the current risk assessment is
accurate. And frankly, I just don’t believe the testimony I heard from the
Napa doctors. I found it shocking that if that’s your diagnosis,
28
methamphetamine-induced disorder, you’re telling the Court the defendant
was never legally insane, wasn’t legally insane at the time of the crime, that’s
the l[i]nchpin of your argument for release, and you’ve only briefly reviewed
those diagnostic reports from 2011. I just . . . can’t come to closure with that.
“So I appreciate that he hasn’t received psychotropic or antipsychotic
medications in the jail, but I just am not satisfied that the burden of proof
has been met, the preponderance that it is, not beyond a reasonable doubt.
There’s just some really disturbing things here that I just can’t reconcile
without denying the petition. So that’s the Court’s ruling.”
DISCUSSION
Defendant contends the trial court abused its discretion in denying him
outpatient status because there was no evidence he would be dangerous as a
result of a mental disorder if he were conditionally released for supervised
treatment.
A. Standard of Review
We review the trial court’s denial of outpatient status for abuse of
discretion. (Cross, supra, 127 Cal.App.4th at p. 73.) “[I]t is not sufficient to
show facts affording an opportunity for a difference of opinion” (ibid.), and a
trial court has the discretion to “disregard [doctors’] recommendations for
nonarbitrary reasons” (Sword, supra, 29 Cal.App.4th at p. 629). The court’s
role “is not to rubber-stamp the recommendations of the [state hospital]
doctors and the community release program staff experts,” (id. at p. 628);
rather, the court is “entitled to consider the validity of the opinions presented
to it in determining whether defendant met his burden of proving that he [is
no longer] dangerous” (id. at p. 630).
Still, the abuse of discretion standard is deferential, not empty. (People
v. Giordano (2007) 42 Cal.4th 644, 663.) “A court can abuse its discretion by
29
applying an erroneous legal standard or by making a ruling unsupported by
substantial evidence.” (People v. Armstrong (2019) 6 Cal.5th 735, 756.)
B. Analysis
Here, as defendant observes, the trial court “share[d] its thought
process in great detail” in stating its ruling. In short, the court was not
persuaded by defendant’s witnesses that the appropriate diagnosis was
methamphetamine-induced psychosis.
The trial court appears to have found Dr. Winkel, who diagnosed
defendant in 2011 with paranoid schizophrenia, to be the most impressive
and reliable witness. Indeed, defendant recognizes, “the court clearly found
[Winkel] to be the most convincing expert.” The trial court noted that Winkel
did “the most thorough workup of all the doctors that testified,” that he spoke
Spanish with defendant, and that he did not observe any tactile dyskinesia in
defendant, which would have indicated methamphetamine-induced
psychosis. These observations are supported by the record.
And the court offered reasons for questioning the NSH doctors’ current
diagnosis of methamphetamine-induced psychosis. The court discounted Dr.
Steward’s testimony because it appeared that he copied Dr. Pretkel’s violence
risk assessment and then lied about having done so at the hearing. Appellate
counsel does not take issue with the court’s credibility finding in this regard.
The court noted that Dr. Tariq only “briefly reviewed” the 2011 NGI
evaluation, indicating the court questioned Tariq’s conclusions because the
doctor failed to take Winkel’s evaluation fully into account in reaching his
own diagnosis. As for Dr. Pretkel’s testimony, the court correctly noted that
Pretkel testified psychotic symptoms from methamphetamine-induced
psychosis last no more than a year. This made it difficult for him to explain
how Winkel observed psychotic symptoms in defendant in August and
30
September 2011 when defendant had been in custody since May 2010.
Pretkel speculated that defendant used drugs in jail as this was the only
explanation he could come up with for the psychotic symptoms lasting so
long. But the court correctly noted no evidence was presented that defendant
used drugs in jail. Thus, the trial court gave reasons for crediting Winkel’s
diagnosis from 2011 and for questioning the different current diagnosis of the
NSH doctors, and at least some of those reasons find support in the record.16
The issue before the trial court, however, was not solely defendant’s
diagnosis but also whether supervised outpatient treatment would benefit
defendant “ ‘and cause no undue hazard to the community.’ ” (Sword, supra,
29 Cal.App.4th at p. 620; see § 1603, subd. (a)(1) [the court shall consider
whether the director of the state hospital advises “the defendant would no
longer be a danger to the health and safety of others, including himself or
16 Defendant points out that not every statement in the trial court’s
ruling is supported by the record. The trial court stated, “all of the testifying
doctors, both from Napa and those two doctors said that that’s a real stretch
to believe that psychotic symptoms in August and September of 2011 would
relate to methamphetamine use, if the meth use stopped in 2010, in May of
2010.” (Italics added.) The Attorney General concedes the record only
partially supports this finding. In fact, only two NSH doctors testified that
drug-induced psychosis rarely or never causes psychotic symptoms that last
over a year, and the remaining witnesses did not so testify. Dr. Nakagawa, to
the contrary, testified drug-induced psychosis can last “over a year, up to two
years.” Dr. Winkel was not asked how long drug-induced psychotic symptoms
may continue after last drug use. And it does not appear Dr. Steward
testified on this question either.
The trial court also stated the 2011 NGI evaluations were “only briefly
reviewed” by the NSH doctors. The record supports this observation as to Dr.
Tariq, but Dr. Pretkel testified he read Winkel’s report “really thoroughly.”
Defendant argues, “it appears the trial court improperly discredited Dr.
Pretkel’s testimony by mistakenly conflating his diligent efforts with the less
meticulous efforts of Dr. Tariq.”
31
herself, while under supervision and treatment in the community, and will
benefit from that status”].)
“One who had been found to be not guilty by reason of insanity ‘may be
held as long as he is both mentally ill and dangerous, but no longer.’ ”
(McDonough, supra, 196 Cal.App.4th at p. 1493, quoting Foucha v. Louisiana
(1992) 504 U.S. 71, 77, italics added.) In McDonough, a trial court denied an
appellant outpatient status on the ground she had not identified an
appropriate program of supervision and treatment. (Id. at p. 1492.) The
Court of Appeal found the trial court overstepped its authority explaining,
“absent a determination the committed person is mentally ill and dangerous,
flaws found in the proposed outpatient treatment plan . . ., do not justify
denying outpatient status.” (Id. at p. 1493.) The McDonough court reversed
the lower court’s denial order “because the trial court did not find appellant is
currently mentally ill and dangerous . . . .” (Ibid.)
Similarly, in the present case, the trial court did not appear to find that
defendant would be a danger while under supervision in the community; it
stated only that it could not accept NSH doctors’ current diagnosis.17
17 The Attorney General argues the court “implicitly found that as of
January 2019 appellant was still mentally ill or dangerous.” (Italics added.)
Clearly, the trial court could not deny outpatient status based solely on
defendant’s current mental illness if defendant was not also dangerous. (See
Cross, supra, 127 Cal.App.4th at p. 74 [“the persistence of [defendant]’s
mental illness was not alone sufficient to deny him outpatient status if he
was no longer dangerous”].) Assuming the Attorney General meant to say
the trial court implicitly found defendant was currently mentally ill and
dangerous, we are not convinced. Rather, we agree with defendant, who
posits, “the absence of even an implied finding in this regard—when the trial
court offered such a detailed oral statement of reasons for refusing [to] place
appellant on outpatient status—is a telling omission in this case given the
lack of any expert opinion from either side’s witnesses suggesting appellant
32
Because the trial court denied outpatient status without making a finding on
dangerousness, we reverse.
Here, there was strong evidence defendant would not be dangerous in
supervised outpatient treatment. It was not disputed that defendant never
had an incident of aggression or concerning behavior since he entered NSH in
May 2012. Nor was it disputed that defendant was on no medication yet
exhibited no symptoms of mental illness during his commitment. Dr. Tariq
testified defendant was cooperative and was “willing to work with CONREP
in the community and willing to do whatever they require him to do in the
community.” Vice testified defendant “met all of the discharge criteria, that
both his hospital team has requested and the CONREP has requested. He’s
been asymptomatic for his entire length of his hospital stay. He’s not on
medication, although he has agreed to medication if it’s clinically indicated.
He has had no behavioral issues since his time in the state hospital. He’s
been considered a model patient, by most standards.” Dr. Pretkel testified
about a recent incident in which defendant was assaulted by another patient
and defendant reacted appropriately and was cooperative with staff.18 And
although Dr. Winkel could not opine on defendant’s current level of
dangerousness (having not assessed him since 2011), he did testify that a
person is not dangerous just because he is a paranoid schizophrenic. Rather,
was dangerous. Appellant had the burden of proving that he would not be
dangerous in a supervised outpatient setting, yet in denying the conditional
release petition the trial court made no mention of dangerousness and did not
make a single comment that indicated appellant was in fact dangerous.”
18Dr. Steward testified defendant was “involved,” “motivated,” and
“responsible.” Of course, the trial court discounted Steward’s testimony
because of his apparent ethical lapse in copying Dr. Pretkel’s report.
Nonetheless, we note Steward’s observations are consistent with all the
witnesses who have interacted with defendant since his commitment.
33
a person is most dangerous if “angry” with “delusions of persecution.” The
record does not reflect that defendant displayed anger or delusions of
persecution at the time of the 2019 hearing.
We reverse and remand for the trial court to determine whether
defendant has established by a preponderance of the evidence that he is
either no longer mentally ill or not dangerous under supervised outpatient
treatment. On remand, the court shall consider the evidence already
submitted and any other relevant evidence offered by the parties. (See
McDonough, supra, 196 Cal.App.4th at p. 1493; Cross, supra, 127
Cal.App.4th at p. 75.)
DISPOSITION
The order denying outpatient status is reversed. The matter is
remanded to the trial court for further proceedings consistent with this
opinion.
34
_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A156715, People v. Jaimes-Mendoza
35