People v. Pavelko CA3 ( 2024 )

Filed 1/23/24 P. v. Pavelko CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096829
Plaintiff and Respondent, (Super. Ct. No. 04F09970)
v.
VICTOR PAVELKO,
Defendant and Appellant.
In 2005, the trial court found defendant Victor Pavelko not guilty by reason of
insanity for three counts of assault with a deadly weapon (Pen. Code,1 § 245, subd (a)(1))
with one allegation of great bodily injury (§ 12022.7). As a result, he was committed to
Napa State Hospital for a term not to exceed nine years. Thereafter, the People obtained
1 Further undesignated section references are to the Penal Code.
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further commitments of two years each (§ 1026.5, subd. (b)) in 2013, 2015, 2017, and
2019.
In 2021, the People moved to extend defendant’s commitment an additional two
years (§ 1026.5, subd. (b)), which defendant opposed. Before trial, defendant moved for
a conditional placement in an outpatient program (§ 1026.2). Because the People
maintained that a trial on defendant’s section 1026.2 petition could not occur until after
the extension petition had been decided, defendant agreed to extend his commitment an
additional two years (§ 1026.5, subd. (b)) to November 11, 2023.2
Following a bench trial during which both parties presented evidence and
argument, the trial court denied defendant’s petition. Defendant now appeals arguing the
phrase “danger to the health and safety of others” in section 1026.2 is unconstitutionally
vague and overbroad, requiring this court to interpret the proscription of dangerousness in
section 1026.2 using the dangerousness standard embodied in section 1026.5, subdivision
(b). Defendant reasons under this more stringent standard that the trial court abused its
discretion in denying his petition because the evidence in the record does not show the
required link between defendant’s dangerousness and his: (1) schizophrenia;
(2) substance abuse; or (3) lack of insight/failure to complete the Napa State Hospital’s
discharge unit level. We discern no abuse of discretion, and accordingly, we will affirm.
BACKGROUND
In 1980, defendant was diagnosed with schizophrenia at the age of 25. On
November 13, 2004, defendant repeatedly stabbed his roommate and two other residents
at a board and care facility where they lived. Responding authorities located defendant
holding a knife, which he had used to stab the three victims multiple times. Defendant
2 In light of the People’s reliance upon this procedure below, we deem forfeited the
People’s argument on appeal that the section 1026.2 procedure is unavailable to an
individual whose commitment is extended pursuant to section 1026.5.
2
believed his roommate was “messing” with him by stealing his belongings and stabbed
him nine times, including in the chest, arms, and base of the skull. Defendant failed to
take his medication the day before because he was tired of waiting in line for it. He also
drank alcohol before stabbing the victims. He believed his roommate had stolen $30 or
$40 from him.
As noted, ante, defendant was found not guilty by reason of insanity of three
counts of assault with a deadly weapon (§ 245, subd. (a)(1)) with one allegation of great
bodily injury (§ 12022.7). He was committed to Napa State Hospital for a term not to
exceed nine years. Thereafter, the People obtained orders extending his commitment to
the hospital through November 2023.
A. Defendant’s Evidence
Dr. Douglas Korpi, a forensic psychologist and former conditional release
program (CONREP) administrator, testified as an expert in “NGI assessment” as to
defendant’s appropriateness as a candidate for CONREP. He was retained by
defendant’s attorney and evaluated defendant in 2017, 2019, and 2021, ultimately
concluding defendant could be safely supervised by CONREP. In evaluating defendant’s
appropriateness, Dr. Korpi considered: (1) write-ups and violent behavior at the hospital;
(2) medication compliance; (3) the use of as-needed medications; and (4) insightfulness
concerning defendant’s mental illness and associated triggers. Dr. Korpi described the
first three considerations as “incredibly important,” while insightfulness was preferred,
but not required.
As to the first factor, defendant had not been in physical fights since his admission
to the hospital, but he did hit a dentist’s door in 2009 or 2010 seeking medication and had
many documented instances of non-overt “agitation” and “anger” since 2010, which
could suggest that he is not stable. Further, defendant had a few write-ups in 2017, one
of which was for possessing marijuana, which was concerning because of defendant’s
history of substance abuse (specifically alcohol and methamphetamine use disorders in
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remission in a controlled environment). Given that the write-up was five years old, it was
less concerning than it might have been, but it still showed defendant had not learned the
lesson of taking only his prescribed medications and staying away from other drugs. Dr.
Korpi opined that alcohol appeared “to have been a precursor to the criminal behavior in
2004.”3 Further, because defendant was over 60 years old, he was much less likely to be
violent.
As to the second factor, defendant was medication compliant, willingly taking
clozapine. In fact, defendant’s behavior was unusual because he “always ask[s] . . . for
more and more and more. He wants to lay [sic] in bed and be zoned out.” Because of
defendant’s desire for more medications, the staff “stopped giving him as-needed meds
because he was always asking for them just because he wanted to sleep more.” Even on
medication, defendant continued to have breakthrough auditory hallucinations, but they
were less frequent and intense. These voices “say mean things to him” and sometimes he
hears “women screaming,” which can make it hard to concentrate, but the voices do not
appear to have ever made him violent or threatening.
Further, as to the third factor, defendant’s seeking as-needed medications did not
concern Dr. Korpi because those medicines would make him sleepier, which would not
increase the likelihood of him stabbing anyone. Defendant did not need as-needed
medications to keep him stable and was well controlled on his regimen of Clozapine and
Depakote. Nonetheless, defendant admitted to Dr. Korpi he had used drugs and alcohol
in the past in an attempt to self-medicate his depression and drugs/alcohol were more
readily available should defendant decide to self-medicate while at the board and care
facility. Dr. Korpi also acknowledged defendant had consistently sought to increase his
prescription medication in 2019, 2020, and 2021.
3 Specifically, Dr. Korpi acknowledged that defendant had stopped taking his
medication and had been using drugs and/or alcohol prior to the 2004 stabbing.
4
Finally, concerning the fourth factor, defendant was not insightful because of his
schizophrenia, cognitive impairment, and honesty, which kept him from parroting
phrases which would make him appear “insightful.” Defendant’s preference for sedation
over insight made him less safe than someone who had identified his or her triggers and
had strategies to deal with them. Further, although defendant previously identified his
paranoia as the underlying cause for the stabbing, he no longer held that belief.
If released, defendant would be placed in a board and care facility where he would
have weekly group meetings and individual therapy, as well as monthly drug tests. He
would see his psychiatrist every one to three months. Visits with mental health
professionals would occur offsite. No one at the board and care facility is a mental health
professional, but his drugs would be distributed to him daily. A board and care facility is
“just a house,” so security is not well maintained. Nonetheless, Dr. Korpi opined
defendant would not present a risk of dangerousness if housed in a board and care facility
because he has been stable and nonviolent at the hospital.
On cross-examination, Dr. Korpi conceded he had recommended release to
CONREP in “the vast majority” of the section 1026.2 evaluations he had done in the past
five years. Further, he acknowledged that one of the symptoms of schizophrenia is
paranoia, and defendant’s commitment offense included a belief his roommate was out to
get him before stabbing him and two others who had intervened. While generally a loner
at the hospital, at a board and care facility, defendant would be forced to interact with up
to five roommates, with no professional onsite supervision. Finally, the kind of board
and care facility defendant was seeking release into was exactly the kind of facility where
he was housed when he stabbed his roommate.
B. The People’s Evidence
Dr. Jennifer Warring, a psychologist at Napa State Hospital, explained the
hospital’s goal for patients found not guilty by reason of insanity is to restore them to
sanity for a safe return to the community. To that end, patients entering the hospital
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move from the admission unit to a unit level where they are stabilized, then to a treatment
unit, and finally to the discharge level unit. At the treatment phase, medication regimes
are refined and individuals are allowed to have jobs. At the discharge phase, patients
have good insight into their illnesses (including relapse risks), are refining their forensic
relapse prevention plans, and are on stable medication regimens. While the hospital is a
locked facility, patients in the treatment and discharge units are afforded more freedoms.
Nonetheless, nurses, psychologists, doctors, and other necessary staff are all onsite and
available to assist patients around the clock.
Dr. Warring had treated defendant for approximately six months and observed he
attended groups, despite health difficulties,4 but was unable to complete the homework
associated therewith. Defendant was housed in the treatment unit and to advance to the
discharge unit level, he needed to participate more actively in groups and re-engage with
the substance recovery group. Dr. Warring believed defendant was still dangerous.
Brittany Lopez, a forensic mental health specialist with Central Valley CONREP,
evaluated defendant for his suitability for placement at a CONREP board and care
facility. Given the freedoms of a board and care facility, CONREP looks for insight and
judgment in order to determine whether an individual is appropriate for community
placement. Notably, defendant was uncomfortable discussing his commitment offense
with Lopez, failed to identify any triggers leading to the offense, and denied that his
mental illness “didn’t have a lot to do” with that offense. This created “a huge concern”
and presented a “heightened risk” because if an individual failed to understand how his
mental illness contributed to the commitment offense, CONREP would have a more
difficult time preventing re-offense. This was especially true because defendant’s violent
commitment offense had occurred at a board and care facility, the same level of care he
4 Defendant experiences shortness of breath when standing and walking.
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was seeking to be released into. Accordingly, Lopez did not recommend he could be
safely maintained at a CONREP board and care facility.
Dr. Sabina Correa, a forensic psychologist, testified as an expert regarding
forensic psychology and possible outpatient treatment. Dr. Correa evaluated defendant’s
suitability for outpatient placement under section 1026.2. In so doing, she reviewed
various materials concerning defendant and interviewed him, although defendant
terminated the interview prematurely after 30 to 45 minutes because he did not want to
discuss the commitment offense. Dr. Correa identified numerous historical risk factors
including defendant’s history of violence, his poor response to treatment, his lack of a
support network, his significant substance abuse history, and his limited work history.
Historical risk factors are important because they are the “best predictor” of future
behavior. Defendant’s history of violence included his three assaults comprising the
commitment offense, as well as other arrests and convictions for battery and substance
abuse. Substance abuse is concerning because it could be a way of coping, acting as a
disinhibitor that could cause a person to act violently or with poor judgment, and in the
case of schizophrenia, could cause rapid decompensation.
Further, Dr. Correa was concerned about defendant’s lack of insight and his
breakthrough symptoms despite aggressive medication. While defendant demonstrated
some level of understanding between his mental health disorder, related symptoms, his
medication, and substance abuse, it was not a level of understanding appropriate for
discharge. Defendant’s seeking increased dosages of his prescribed medications also
presented a concern regarding his possible substance abuse. Further, while the hospital
had a discharge unit in which patients would be afforded more freedoms and the
opportunity to practice skills necessary for a community level of treatment, defendant had
not been recommended for discharge. Participation in the discharge unit level is
important because it allows the hospital and CONREP to connect defendant with support
in the community such as Alcoholics Anonymous and an individual therapist. When
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asked whether defendant could be safely placed “without presenting a danger to the
health and safety of others due to a mental defect, disease, or disorder,” Dr. Correa
opined defendant was not ready for discharge to CONREP.
C. The Court’s Ruling
The trial court began its ruling highlighting that in the section 1026.2 context, the
law presumed defendant currently posed a danger to the health and safety of others as a
result of mental disease, defect, or disorder and that it was defendant’s burden to prove
otherwise by a preponderance of the evidence. The court then commended defendant on
his treatment progress, but ultimately concluded he had not met his burden for placement
at CONREP. Specifically, the court was concerned with defendant’s lack of insight
(including his refusal to discuss the commitment offense with two evaluators), his
breakthrough symptoms (and history of substance abuse and seeking nonprescription
drugs—including at the hospital), and his failure to be placed in and complete the
discharge unit level at Napa State Hospital wherein he could demonstrate his suitability
for outpatient placement and treatment.
DISCUSSION
Defendant complains the phrase “danger to the health and safety of others” in
section 1026.2 is unconstitutionally vague and overbroad, requiring that this court review
the denial of his petition using the dangerousness standard as embodied in section 1026.5,
subdivision (b). Utilizing that stricter standard, defendant posits the trial court abused its
discretion when it denied his section 1026.2 petition. We disagree.
A. Background
“A person who has been found not guilty by reason of insanity and committed to a
state hospital may apply to the superior court for release from commitment ‘upon the
ground that sanity has been restored.’ (§ 1026.2, subd. (a).) In 1984, the Legislature
amended section 1026.2 to ‘require that a committed person spend one year as a
supervised outpatient before applying for a sanity-restoration hearing’ to obtain
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unconditional release. (People v. Tilbury (1991) 54 Cal.3d 56, 62.) The statute now
‘involves what has been described as a two-step process.’ ” (People v. Nance (2022)
78 Cal.App.5th 784, 787-788.)
“The first step is an outpatient placement hearing, at which the applicant must
prove by a preponderance of the evidence that he or she will not be ‘a danger to the
health and safety of others, due to mental defect, disease, or disorder, if under supervision
and treatment in the community.’ (§ 1026.2, subds. (e), (k).) If the court makes this
finding, the applicant is ‘placed with an appropriate forensic conditional release program
for one year.’ (§ 1026.2, subd. (e).)” (People v. Diggs (2022) 80 Cal.App.5th 702, 709
(Diggs).)
“ ‘The second step in the section 1026.2 release process is referred to as the
restoration of sanity trial, and can only be reached if the applicant has already met the
threshold test for placement in “an appropriate forensic conditional release program.” ’
[Citation.] The applicant again bears the burden to prove by a preponderance of the
evidence that he or she will not be a danger due to mental defect, disease, or disorder.
(§ 1026.2, subds. (e), (k).)” (Diggs, supra, 80 Cal.App.5th at p. 709.)
It is the first step that we are concerned with in this appeal.
B. Constitutionality
Section 1026.2, subdivision (e) provides in pertinent part, “The court shall hold a
hearing to determine whether the person applying for restoration of sanity would be a
danger to the health and safety of others, due to mental defect, disease, or disorder, if
under supervision and treatment in the community. If the court at the hearing determines
the applicant will not be a danger to the health and safety of others, due to mental defect,
disease, or disorder, while under supervision and treatment in the community, the court
shall order the applicant placed with an appropriate forensic conditional release program
for one year.” (Italics added.)
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Defendant argues that the Legislature’s failure to define “danger to the health and
safety of others” renders the text vague and overbroad unless we import the danger
standard embodied in section 1026.5, subdivision (b) for recommitments after exhaustion
of the maximum term of confinement. We are not persuaded.
Whether an applicant represents a “danger to the health and safety of others, due
to mental defect, disease, or disorder, while under supervision and treatment in the
community” has a meaning that is readily ascertainable. (See People v. Deskin (1992)
10 Cal.App.4th 1397, 1400 [a statute with “vague or general . . . language because of
difficulty in defining the subject matter with precision . . . will be upheld if its meaning is
reasonably ascertainable”].) Indeed, it is a fact-specific inquiry that has been applied
without difficulty since its addition to the Penal Code in 1980. (Stats. 1980, ch. 547, § 3;
see, e.g., People v. Cross (2005) 127 Cal.App.4th 63; People v. Bartsch (2008)
167 Cal.App.4th 896.)
Defendant posits that the statutory proscription sweeps in dangers ranging from
serious criminal activity to relatively benign actions like refusing a vaccination.
However, it is not illegal to decline a vaccine, and there is no suggestion that an
applicant’s hypothetical noncriminal conduct would implicate the dangerousness
proscription found in section 1026.2. Accordingly, defendant has not shown the
dangerousness proscription in section 1026.2 is unconstitutional merely because
noncriminal conduct could be considered dangerous in a general sense.
C. Defendant’s Remaining Arguments
We also reject defendant’s suggestion that we must interpret the dangerousness
proscription in section 1026.2 as implicating only behavior representing a physical
danger as embodied in section 1026.5, subdivision (b). As recognized in People v.
Woodson (1983) 140 Cal.App.3d 1, 4, while everyone committed pursuant to
section 1026 is insane, only a subset of those individuals represents a danger of physical
harm to others, and only those individuals are subject to recommitment proceedings
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under section 1026.5, subdivision (b). Accordingly, Woodson refused to apply the
physical danger requirement from section 1026.5, subdivision (b) in section 1026.2
proceedings. (Woodson, at pp. 4-5.)
Defendant’s reliance on the section 1026.5, subdivision (b) physical
dangerousness proscription also ignores the procedural stance of his case. Unlike a
section 1026.5 proceeding wherein the People have the burden of proving defendant
represents “ ‘a substantial danger of physical harm to others’ . . . and has ‘serious
difficulty controlling his [or her] potentially dangerous behavior” beyond a reasonable
doubt (People v. Cheatham (2022) 82 Cal.App.5th 782, 789), in a section 1026.2 inquiry,
the law presumes the applicant is a danger to the health and safety of others as a result of
a mental disease, defect, or disorder. (CALCRIM No. 3452; see also In re Franklin
(1972) 7 Cal.3d 126, 141 [interpreting precursor statute].) It therefore was incumbent on
defendant to prove by a preponderance of evidence that he was not “a danger to the
health and safety of others, due to mental defect, disease, or disorder, if under supervision
and treatment in the community.”5 (§ 1026.2, subds. (e), (k).)
It is this procedural distinction that renders defendant’s reliance on People v.
Cheatham, supra, 82 Cal.App.5th at page 782, People v. Redus (2020) 54 Cal.App.5th
998, People v. Johnson (2020) 55 Cal.App.5th 96, and People v. Jenkins (2023)
95 Cal.App.5th 145 inapposite. None of these cases concerns a trial court’s exercise of
discretion in a section 1026.2 context, and we decline defendant’s invitation to import
section 1026.5, subdivision (b)’s requirements into the section 1026.2 inquiry. (People v.
Woodson, supra, 140 Cal.App.3d at p. 4.) If defendant believed section 1026.5,
5 It is well established that allocating the burden of proof in this manner does not
violate the Constitution. (Jones v. United States (1983) 463 U.S. 354, 366-368.) We
nonetheless recognize that if defendant was no longer mentally ill, the justification for
requiring him to prove that he was no longer a danger to society would no longer exist.
(See Foucha v. Louisiana (1992) 504 U.S. 71, 78-84.) That is not the case here.
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subdivision (b)’s requirements were no longer met, his recourse was to have a trial on
that issue. Having stipulated to an additional two-year commitment prior to his section
1026.2 hearing, we will not entertain a challenge to whether the section 1026.5,
subdivision (b) requirements were met.
Having determined that we will review the trial court’s denial of defendant’s
section 1026.2 petition under established legal parameters, we discern no abuse of
discretion. (People v. Bartsch, supra, 167 Cal.App.4th at p. 900; People v. Dobson
(2008) 161 Cal.App.4th 1422, 1433.) “ ‘The term judicial discretion implies the absence
of arbitrary determination, capricious disposition, or whimsical thinking. [Citation.]
“When the question on appeal is whether the trial court has abused its discretion, the
showing is insufficient if it presents facts which merely afford an opportunity for a
difference of opinion. An appellate tribunal is not authorized to substitute its judgment
for that of the trial judge. [Citation.]” [Citation.] Discretion is abused only if the court
exceeds all bounds of reasons, all of the circumstances being considered.’ ” (Diggs,
supra, 80 Cal.App.5th at p. 709.)
Here, the trial court found defendant had not met his burden of demonstrating by a
preponderance of the evidence that he would not be a danger to the health and safety of
others as a result of mental disease, defect, or disorder if placed through CONREP. In
making this determination, the court highlighted concerns about defendant’s lack of
insight (including his refusal to discuss the commitment offense with two evaluators), his
breakthrough symptoms (and history of substance abuse and seeking nonprescription
drugs—including at the hospital), and his failure to be placed on and complete the
discharge unit level at Napa State Hospital wherein he could demonstrate his suitability
for outpatient placement and treatment. We find each of these concerns supported by
evidence in the record as recounted above. Further, defendant has not shown the trial
court’s utilization of these specific criteria was an abuse of discretion. (See People v.
Bartsch, supra, 167 Cal.App.4th at pp. 900-903 [trial court did not abuse its discretion in
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determining mentally ill petitioner whose substance abuse was in remission was not ready
for outpatient release as confirmed by his treating clinicians].) On the contrary, these
factors directly informed whether defendant was at risk of decompensating and
reoffending if released to a board and care facility. We cannot substitute our judgment in
determining whether the trial court might have reached a different decision on the
information before it. (Diggs, supra, 80 Cal.App.5th at p. 709.) Accordingly, we must
affirm.
DISPOSITION
The trial court’s order denying defendant’s section 1026.2 petition is affirmed.
\s\ ,
Krause, J.
We concur:
\s\ ,
Robie, Acting P. J.
\s\ ,
Mauro, J.
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