People v. Hernandez CA1/5 ( 2024 )

Filed 9/9/24 P. v. Hernandez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
A169386
v.
JOSHUA HERNANDEZ, (Humboldt County
Super. Ct. No. CR040354S)
Defendant and Appellant.
Following a jury finding that defendant and appellant Joshua
Hernandez (appellant) was an offender with a mental health disorder (OMD)
subject to continued commitment under Penal Code section 2972,1 the trial
court denied appellant’s request for outpatient treatment. Appellant argues
insufficient evidence supports the trial court’s determination there was no
reasonable cause to believe outpatient treatment would be safe and effective.
We affirm.
BACKGROUND
In 2005, appellant was convicted of three counts of attempted murder
(§§ 187, subd. (a), 664), five counts of assault with a deadly weapon (§ 245,
subd. (a)(1)), one count of first degree burglary (§§ 459, 460, subd. (a)), one
count of infliction of unjustifiable physical pain or mental suffering on a child
1 All undesignated section references are to the Penal Code.
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(§ 273a, subd. (a)), and one count of second degree burglary (§§ 459, 460,
subd. (b)).2 Appellant was sentenced to 22 years in prison.
Appellant was admitted to the Department of State Hospitals in
December 2021. In August 2023, the Humboldt County District Attorney
filed a petition to extend appellant’s commitment. In December 2023,
following a jury trial, appellant was found to be subject to continued
commitment as an OMD under section 2972. The trial court denied
appellant’s motion for outpatient treatment under the conditional release
program (CONREP) and extended his commitment for one year. The present
appeal followed.
DISCUSSION
I. Applicable Law
Section 2970 authorizes a petition to extend the commitment of an
OMD when the person “has a severe mental disorder, that . . . is not in
remission or cannot be kept in remission if the person’s treatment is not
continued, and that, by reason of the person’s severe mental disorder, the
[person] represents a substantial danger of physical harm to others.” (§ 2970,
subd. (b).) If the petition is found true, section 2972 mandates a one-year
extension of the commitment. (§ 2972, subd. (c).) Regarding outpatient
treatment, section 2972, subdivision (d), provides: “A person shall be released
on outpatient status if the committing court finds that there is reasonable
cause to believe that the committed person can be safely and effectively
treated on an outpatient basis.” A person seeking outpatient treatment bears
the burden of proof. (People v. Gregerson (2011) 202 Cal.App.4th 306, 316
(Gregerson).) “Thus, to obtain outpatient treatment, the patient must raise a
2 It is unnecessary to summarize the facts of the underlying offenses to
resolve the present appeal.
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strong suspicion in a person of ordinary prudence that outpatient treatment
would be safe and effective.” (Id. at p. 319.) The patient “need not meet ‘the
higher burden’ [citation] set by the preponderance standard of showing it is
more likely than not that outpatient treatment would be safe and effective.”
(Ibid.) “If the [trial] court denies outpatient treatment, its order will be
affirmed if substantial evidence shows there was no such reasonable cause.”
(Id. at p. 320.)
II. Summary of the Evidence
Dr. Rebecca Aponte, a forensic psychologist, testified at the trial
resulting in extension of appellant’s commitment and denial of his motion for
outpatient treatment. Dr. Aponte met appellant in September 2022, when
she evaluated him for a Board of Parole hearing. Appellant had been
diagnosed with schizophrenia with symptoms including auditory and visual
hallucinations, delusions, disorganized thought process, and disorganized
behavior. Following that evaluation, Dr. Aponte testified before the Board of
Parole that she believed appellant met the criteria for continued
commitment. Thereafter, appellant refused to meet with her. He also
stopped speaking to most of his treatment team.
In their September 2022 meeting, appellant told Dr. Aponte that the
medication he was taking was helpful to his mental health, but he
complained of side effects. The doctor opined that appellant’s condition was
not “completely in remission” because he appeared guarded, his thought
process was disjointed, and “[a]t times it was difficult to follow what he was
saying.” Appellant said he was not having hallucinations at that time.
Dr. Aponte was aware from appellant’s medical record that he had blinded
himself by removing his own eyes. Appellant said it happened when he was
in prison and was having hallucinations, but otherwise he did not want to
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discuss the matter. Appellant did state that he had previously had
“command hallucinations about self harm.”
In her December 2023 testimony, Dr. Aponte opined that appellant’s
condition was still not in remission. She based that opinion on his behavior
in the September 2022 interview; the circumstance that appellant’s
medications had not changed since that time; and appellant’s refusal to meet
with her or his treatment providers, which indicated “likely continued
paranoia.” Furthermore, although appellant continued to take his
medication, he was unwilling (because of the side effects) to follow his
psychiatrist’s advice to increase the prescribed amount. Also, although
appellant was attending the “psychosocial treatment groups” to which he had
been assigned, he did “not participate in any discussions about mental
health.” Dr. Aponte explained her concerns as follows: “The fact that he . . .
declined to participate actively in groups or to accept medication increases or
to speak with his treatment team members indicates that he doesn’t fully
understand how impaired he is by his condition and the substantial risk to
himself and to other people that he can pose because of his symptoms.”
Although appellant denied any plan to discontinue his medication,
Dr. Aponte testified it was “very common” for patients who regularly take
medication in a confined setting to stop doing so when no longer subject to
the same level of monitoring. She explained that patients released on the
CONREP program need to get to psychiatric appointments and group
sessions, pick up medication, and remember to take their medication.
Dr. Aponte was concerned that, in light of appellant’s refusal to actively
participate in treatment at the hospital and his complaints about medication
side effects, he might “take less of his medication, skip doses or potentially
stop taking his medication if he’s not under tight monitoring in a controlled
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environment.” The doctor was also concerned that, in the September 2022
interview, appellant “frequently attributed his symptoms to his belief that he
had been poisoned.” She explained that appellant would be more likely to
stop or reduce his medication if he did not really think he had schizophrenia.
Although appellant did acknowledge having a mental illness, Dr. Aponte
characterized his overall insight as “partial.” Furthermore, appellant
attributed some of his “past psychosis” at the time of the underlying offenses
to marijuana use, but he also “discussed potentially using marijuana again in
the future.” Dr. Aponte explained that, “[f]or individuals who have a
psychotic disorder, [marijuana use] can exacerbate symptoms, particularly
hallucinations, and it can lead to exacerbated instability.”
On cross-examination, Dr. Aponte agreed that, since appellant’s 2021
admission to the hospital, he had not been violent, had not made threats, and
had not damaged any property. She also agreed appellant acknowledged he
has a mental illness and needs medication. Finally, she admitted it was
“possible” that appellant’s appropriate behavior could continue “if” he
remained on medication and off controlled substances during outpatient
treatment.
Dr. Aponte opined that appellant presented “a substantial risk of
danger to others” “based on his history of violence associated with his mental
illness, as well as his remission status, his apparent level of insight, his
history of substance use and his discharge plan.” After the jury returned its
verdict, appellant’s counsel moved for outpatient treatment. The court
denied the request, stating, “Based upon the evidence presented in our trial,
specifically the testimony of Dr. Rebecca Aponte, I find that it would be
premature to at this time order outpatient treatment for [appellant] through
CONREP.”
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III. Analysis
Appellant argues that, “[b]ased just on the lack of violence, voluntary
medication compliance, and stable condition, there was substantial evidence
to raise a strong suspicion in a person of ordinary prudence that outpatient
treatment would be safe and effective for appellant.” But Dr. Aponte’s
testimony supports the trial court’s finding to the contrary. As explained
above, the doctor testified that appellant’s condition was not fully in
remission, that he had only partial insight into his illness, that he refused a
recommended increase in his medication, that he raised the possibility of
future use of marijuana, and that he was not participating in therapy. She
also explained why outpatient treatment presented a risk of non-compliance
with medication, especially in the circumstances of appellant’s case.
Although appellant was non-violent and compliant with his medication
regime while in the hospital, appellant points to no evidence in the record
addressing any of the concerns identified by Dr. Aponte. Among other things,
appellant’s refusal to communicate with Dr. Aponte and his treatment
providers leaves the record absent of any evidence from which a reasonable
person could conclude Dr. Aponte’s concerns are unfounded.
Substantial evidence supports the trial court’s conclusion that
appellant failed to show reasonable cause that outpatient treatment would be
safe and effective. (Gregerson, supra, 202 Cal.App.4th at p. 320.)
DISPOSITION
The trial court’s orders are affirmed.
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SIMONS, Acting P.J.
We concur.
BURNS, J.
CHOU, J.
(A169386)
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