People v. Marler CA5

Filed 9/12/22 P. v. Marler CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083274
Plaintiff and Respondent,
(Super. Ct. No. FP004504A)
v.
NICOLE L. MARLER, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. Judith K. Dulcich,
Judge.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William
K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Smith, J. and Meehan, J.
Defendant Nicole L. Marler appeals from an order extending her commitment as a
mentally disordered offender (MDO) pursuant to Penal Code sections 2970 and 2972.1
On appeal, she contends that substantial evidence did not support the findings that (1) her
mental disorder was not in remission and (2) she posed a substantial risk of physical harm
to others. The People disagree. We affirm.
PROCEDURAL SUMMARY
On November 8, 1996, defendant pled no contest to manslaughter (§ 192,
subd. (a)) and admitted she personally used a firearm in the commission of the offense
(§ 12022.5, subd. (a)).
On October 13, 2020, the Kern County District Attorney filed a petition pursuant
to sections 2970 and 2972 to extend defendant’s commitment as an MDO. The petition
alleged that on September 14, 1999, defendant was committed to the State Department of
State Hospitals as an MDO pursuant to section 2962 as a special condition of parole. The
petition further alleged that defendant “suffer[ed] from a severe mental disorder that
[was] not in remission or [could not] be kept in remission if treatment [was] not
continued and by reason of mental disorder, she represent[ed] a substantial danger of
physical harm to others.
In support of the petition, the People submitted a recommendation, affidavit, and
evaluation by the medical director for the State Department of State Hospitals at Patton
State Hospital (PSH), opining that defendant had a severe mental disorder that was not in
remission and that, by reason of the severe mental disorder, defendant represented a
substantial danger of physical harm to others. Also in support of the petition, the People
submitted a report by a senior forensic psychologist at PSH, reaching the same
conclusions as the medical director and explaining the basis for those conclusions in
detail.
1 All further statutory references are to the Penal Code.
2.
On September 2, 2021, following a bench trial, the trial court granted the petition
and extended defendant’s commitment to PSH for one year.
On September 3, 2021, defendant filed a notice of appeal.
FACTUAL SUMMARY
A. The People’s Case
On September 1, 2021, Dr. Jenna Tomei was a licensed psychologist and an expert
in forensic psychology who worked at PSH. Part of her duties at PSH included
conducting evaluations of patients (including MDOs) to determine whether their
commitments should be extended. Her process involved interviewing the patient;
reviewing medical records, including hospital treatment progress notes; and consulting
with members of the patient’s treatment team. In conducting a commitment extension
evaluation, Tomei considered whether the patient has a severe mental disorder, whether
the disorder is currently in remission or cannot be kept in remission without treatment,
and whether the patient poses a substantial risk of physical harm to others due to the
severe mental disorder.
Tomei conducted a commitment extension evaluation of defendant. She
interviewed defendant on July 20, 2021, reviewed her medical records, and consulted
with her treatment team and medical professionals at PSH. Tomei further reviewed
defendant’s hospital and legal records and determined that defendant was committed to
PSH in 1999 as an MDO. She reviewed hospital records and legal records related to the
qualifying offense that led to defendant’s commission as an MDO. Defendant had shot
her husband in the head. She learned that defendant suffered auditory hallucinations
before the offense that led to her commitment. Reviewing records related to a patient’s
qualifying offense assisted Tomei in understanding how a patient’s “severe mental
disorder may have affected her behavior at the time of the qualifying offense.”
Understanding how the “severe mental disorder may have contributed to violence in the
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past” helped Tomei “conceptualize how it could contribute to violence in the future and
what sort of plan needs to be in place in order to keep [the patient] safe in the future.”
In reviewing defendant’s medical records, Tomei also discovered that defendant
was prescribed a regimen of psychiatric medication. Understanding a patient’s
medication regimen helped Tomei understand how a patient responded to medications.
Learning a patient’s history of compliance with medication helped Tomei assess the
patient’s current status and future risk.
Tomei opined that defendant had a severe mental disorder, specifically,
schizoaffective disorder, bipolar type. “Schizoaffective disorder is a combination of
having mood episodes, so episodes of … depression or mania, as well as psychotic
symptoms, so hallucinations or delusions.” Psychotic symptoms such as hearing voices
or harboring false beliefs impair a person’s perception of reality. A person suffering such
symptoms may not have sound judgment because they make decisions based on
perceptions not rooted in reality. The mood episodes and psychotic symptoms can occur
independent of each other. Tomei reached this diagnostic conclusion by interviewing
defendant to ask about current and prior symptoms, and reviewing defendant’s medical
records to determine the symptoms previously observed by other providers and diagnoses
made by other providers. Review of a patient’s prior symptoms and history of
medication was important to Tomei because a medicated patient may present differently
because of the medication.
In interviewing defendant on July 20, 2021, Tomei learned that defendant reported
that she continued to suffer auditory hallucinations. Tomei’s review of defendant’s
medical records showed her that defendant reported previously having suffered auditory
hallucinations and reported that her auditory hallucinations caused her distress and had
contributed to her offense. Based on defendant’s reports of auditory hallucinations to
Tomei and Tomei’s review of defendant’s records, she opined that those hallucinations
impaired her perception of reality. For instance, defendant described that at the time of
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her offense “she believed that she was possessed by Satan and that she was hearing
voices telling her to obtain a weapon, and she was very concerned about these voices, and
it impaired her ability to understand what was real versus not real.” Defendant also
recently reported to Tomei “that she had experienced an idea of reference, which is a
false belief that some sort of innocuous stimuli was directed towards her. Specifically,
she reported hearing a preacher on TV and believed that the message was” directed
toward her. While defendant was presently able to manage her symptoms better than she
had at the time of the offense, “she still ha[d] to engage in a reality testing where she has
to look at whether or not they are real versus not real.”
Tomei next opined that defendant’s severe mental disorder was not in remission.
Tomei explained that defendant reported “continued auditory hallucinations, a recent idea
of reference, and her medical records suggest[ed] some continued anxiety and possibly
depressive symptoms.” Specifically, defendant described “voices that were perverted in
nature” and told “her to masturbate.” She mentioned that they were “related to religion,
and she believe[d] the voices were evil.” Tomei noted that at the time of defendant’s
offense, she was also hearing voices “related to demons and devils.” Tomei also noted
that defendant’s medical records in the past year reflected that she continued to hear
voices and continued to suffer from anxiety and depression. Because defendant reported
continuing to experience active psychotic and mood symptoms, although less frequently,
she was not in remission.
Tomei also opined that even if defendant could be considered in remission, she
could not be kept in remission without continued treatment because she had not been
following her treatment plan as would a reasonable person. The treatment given in PSH
was more intensive than would be typically available in the community. Tomei testified
that in the past year, even in the PSH setting, defendant required staff support and
administration of medication on an as-needed basis to manage her symptoms. Defendant
also had not “enrolled in a lot of core treatment programming, and … still continue[d] to
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display some impaired insight to her symptoms and how her symptoms are affected by
her medical condition.” However, at least part of defendant’s failure to participate in
treatment groups was because she received dialysis treatments for her kidney failure
four times per week. She attended some individual treatment sessions to make up for
treatment programming missed due to dialysis treatments. Tomei further noted that
defendant’s primary psychologist also opined, based on defendant’s statements to her
during treatment, that she is not ready for discharge.
Finally, Tomei testified that defendant represented a substantial danger of physical
harm to others by reason of her severe mental disorder. In forming that opinion, she
relied upon the “Historical Clinical Risk Management-20, Version 3” assessment tool
(historical clinical risk management tool) that looks at risk factors for future violence.
The risk factors are sorted into categories: historical risk factors; clinical risk factors,
based on current risk factors and current presentation; and risk management factors or
factors that give rise to problems in the future.
Tomei explained that the historical risk factors are relevant to predicting future
risk of violence because they provide a baseline level of risk based on things that are
unchangeable and not amenable to treatment. Defendant’s historical risk factors included
“a history [of] violence, traumatic experiences, violent attitudes, poor treatment and
supervision compliance, substance abuse,” and her medical conditions insofar as they
were tied to her psychiatric stability. The onset of defendant’s medical condition, kidney
failure, appeared to correlate with an increase in psychiatric symptoms based on
defendant’s report and her medical records. Historically, when defendant experienced
psychiatric symptoms, she engaged in violence. Defendant’s history of violence when
experiencing psychiatric symptoms demonstrated difficulty in controlling her conduct
when she experienced psychiatric symptoms. Defendant reported that when she heard
voices prior to her offense, the voices told her to obtain a weapon and shoot her husband.
In that prior experience, defendant reported that she felt as though “she was
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possessed ….” Defendant also reported having suffered trauma which was tied to her
violent behavior. Further, while she was incarcerated and was not taking medications,
defendant “decompensated” and engaged in “aggressive and erratic behavior ….”
Although defendant had a history of medication and treatment noncompliance, she was
presently in compliance with her medication. While committed to PSH, defendant had
several instances of “physical and verbal aggression” that were relevant to Tomei’s
assessment. Those aggressive incidents supported Tomei’s conclusion that defendant
would be violent when decompensated and experiencing active symptoms.
The second consideration, the clinical factors based on defendant’s current
presentation, include the dynamic or changeable factors that are impacted by treatment.
Defendant exhibited such factors, including that “she continued to report problems with a
major mental disorder[,] … continued to present with affective instability, some anxiety,
some fatigue[,] … [and] poor insight into her mental health condition and how her
medical condition impacted her psychiatric stability ….” Tomei explained that those
factors are related to future violence. Defendant’s risk of violence “remains elevated
because she still presents with some current problems.”
Third, Tomei considered risk management factors—“plans for the future and how
that could manage any of the historical or clinical risk factors ….” Specifically, she
looked for adequate plans to manage and monitor symptoms appropriately and whether
enough support or structure is available to help the patient function safely. As a threshold
matter, Tomei was concerned with defendant being released to any less structured
environment because she presently had support from staff in monitoring her mental
illness and medical condition and would likely have difficulty managing both on her own.
When Tomei discussed the prospect of functioning in the community with defendant,
defendant “was very concerned because she was still hearing voices[, suggesting] that she
was not ready to be discharged.” In reviewing defendant’s discharge plan with
defendant, Tomei concluded that the plan was “underdeveloped.” If released to the
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community to live with her mother, defendant had no plan for how she would manage her
psychiatric and medical conditions.
Defendant was released on a conditional release program from 2001 to
January 2015, when she voluntarily requested to return to PSH. Tomei reviewed
defendant’s records from that period and found no reports that would indicate d efendant
engaged in any violence other than notations of some verbal aggression toward her
second husband. Defendant appeared to be medication compliant during that time but
returned to PSH because of an increase in symptoms. That defendant elected to return to
PSH showed Tomei that she had some level of insight into her symptoms. Defendant
was released on conditional release in August 2015 until October 5, 2015, when she was
readmitted due to symptoms of psychosis and verbal abuse of her second husband. Since
readmission on October 5, 2015, defendant consistently reported auditory hallucinations
and some delusional ideation.
Dr. Ryan Jordan was a licensed clinical psychologist at PSH and an expert in
forensic psychology. He described the same three criteria as did Tomei regarding
extensions of MDO commitments pursuant to section 2970—whether a patient has a
severe mental disorder, whether it is in remission or can be kept in remission without
treatment, and whether the patient poses a substantial danger of physical harm to others
by reason of the severe mental disorder. He conducted an evaluation of defendant based
on those criteria to determine whether her commitment should be extended. The final
version of his report was submitted in August 2020, and he conducted a follow-up
interview of defendant in August 2021.
Jordan concluded defendant suffered from a severe mental disorder, specifically,
schizoaffective disorder, bipolar type. His diagnosis was based on defendant’s records
from PSH, her conditional release records, probation reports, the original MDO
evaluation created prior to her original commitment, and past interviews of defendant.
He did not interview defendant when he prepared his original report because her unit was
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quarantined for an extended period as a result of the COVID-19 pandemic. However, he
did interview her in August 2021. He described defendant’s symptoms as including
psychotic symptoms and bipolar traits with both manic and depressive episodes.
“Specifically, she has a documented history of paranoid and persecutory delusions
involving religious and sexual themes as well as auditory hallucinations, including
command auditory hallucinations, rapid speech, racing thoughts, severe irritability, mood
irritability, subjective depressed moods, [and] abolition, meaning lack of drive, all of
which would be consistent with [her] diagnosis.” Defendant’s mood and psychotic
symptoms presented separately from each other. She has presented with those symptoms
“for many, many years and in different settings ….” Her symptoms substantially
impaired her thinking, her perceptions of reality, and her behavior. They led to her
qualifying offense and her 2015 revocation of conditional release.
Jordan opined that as of his August 2020 report, defendant’s severe mental
disorder was not in remission. He based that opinion on his review of her psychiatric
notes, psychology notes, social worker notes, therapy notes, nursing notes, her most
recent conditional release evaluation report, and interdisciplinary notes. Those notes all
supported the ongoing presence of auditory hallucinations, 2 command auditory
hallucinations, noted irritability, depressed mood, and some abolition. Jordan
acknowledged that defendant’s depressed mood and fatigue could be due in part to her
dialysis treatments. While her symptoms had improved with medication, they were not
controlled. Further, defendant’s enrollment in treatment programs was low (71%
participation, rather than the goal of 90% participation), in part due to the medical
treatment required by her medical condition and the restrictions on groups offered during
the COVID-19 pandemic. Nevertheless, Jordan opined that defendant should participate
2 Jordan noted that at the time of his August 2021 interview of defendant, she
denied auditory hallucinations.
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in core clinical treatment groups, including a relapse prevention group and a cognitive
behavioral or dialectical behavioral group. While her nonparticipation was not
necessarily her fault, it left her without the beneficial treatment she required. He opined
that her overall engagement with treatment had been unsatisfactory, and she had not
followed her treatment plan as would a reasonable person even in light of her medical
needs, to wit, dialysis.
Finally, Jordan opined that were defendant “directly released to the community
without supervision, she would remain a substantial danger of physical harm to others by
reason of her severe mental disorder.” His opinion was based on defendant’s
documented history of violent behavior associated with her symptoms, her ongoing
symptoms (although significantly improved), her history of supervision failure in the
community and decompensation even when she remained medication complaint, her
history of treatment noncompliance, and her inconsistent (although improved) insight
into her symptoms. Jordan also noted that defendant’s conduct and mental state at the
time of her commitment offense demonstrated she has the capacity for very severe
violence in relation to her more serious symptoms. “One of the strongest predictors for
future violence is the history of violence.” Jordan also noted that defendant had
psychiatrically decompensated the last time she was on conditional release and her
release was revoked even though she was medication complaint. In 2016, while
committed to PSH, she displayed physical and verbal aggression. Those incidents of
aggression were significant to Jordan because it showed that even with structural support
and medication compliance, defendant remained psychiatrically unstable, and her
symptoms led to physical violence in the past. Jordan’s conclusion that defendant
remained dangerous considered the period from 2016 to the date of his testimony where
defendant exhibited no verbal or physical aggression. Although her conduct had
improved, it had only done so in a controlled setting with behavioral support.
10.
In forming his opinion regarding defendant’s risk of violence, Jordan used the
historical clinical risk management tool. He identified eight out of 10 historical risk
factors as present for defendant: “her history of violence, her delusional instability,
unemployment history, substance use, her diagnosis of a severe chronic mental illness,
documented identified traumatic experiences in her history, violent attitude and beliefs
associated with her more serious psychotic traits, [and] … the history of noncompliance
and supervision failure in the community.” He also identified as present the following
clinical risk factors: “ongoing symptoms …, inconsistent insight, … mood treatment
engagement[,] … low group enrollment, [and] the low group attendance rate.” Finally,
Jordan found four of five risk management factors present in defendant if she were to be
released directly into the community with no supervision or support: “her risk for not
utilizing professional services in the community, her lack of a stable living situation, her
potential for treatment compliance and substance relapse, and the severe stress she would
certainly experience if discharged in this matter.” Jordan also noted that defendant
appeared to have family support in that her mother is actively involved with her and
would provide support in the community.
B. Defendant’s Case
Defendant testified that she recalled her offense of commitment. In 1993, she shot
her husband in the head. At the time she had a mental disorder, schizoaffective disorder.
She agreed that she presently had schizoaffective disorder, bipolar type. She believed
that mental illness played a role in her killing her husband. At the time, she was
homeless, received no treatment, was unmedicated, and heard voices. As a result of those
auditory hallucinations, she shot her husband.
After her offense, defendant received treatment for her mental disorder and
learned about her diagnosis. She understood that schizoaffective disorder, bipolar type
involves a mood component, including anxiety, depression, and lack of drive, and a
thought component, including auditory hallucinations.
11.
Defendant spent several years in prison and at the state hospital as a result of her
offense. She was transferred from prison to the state hospital because she was suicidal in
prison and was hearing voices. While she was committed to the state hospital, she
learned about her medications. She recognized the importance of taking her medications.
In 2001, she was released on a conditional release. While on conditional release, she
learned about the resources available to her in the community including psychiatrists,
psychologists, and therapists. She spoke to a psychologist and a therapist weekly for
approximately 15 years when she was on conditional release. She also received mental
health assistance through Kern County Mental Health services. She took classes at the
YMCA and volunteered at a museum, and transported herself there with public
transportation.
In 2015, defendant asked to return to PSH because she was experiencing
symptoms: her eating habits changed, her sleeping habits changed, she heard voices, and
she started being verbally aggressive toward her husband and family. At that time,
defendant understood that she was being considered for release from conditional release
into the community. When defendant returned to PSH, she learned that she had kidney
failure. She began dialysis three times per week at four hours per sitting. Eventually her
dialysis was increased to four times per week. The process was very disturbing for her
because she had to wake up at 5:00 a.m. to travel outside PSH so she could sit with a
needle in each arm for four hours. She felt “very drained, very tired, and sometimes …
irritable” after each treatment. Recently, when defendant returned to PSH after dialysis
treatments, she engaged in available mental health treatment. When pandemic-related
quarantine measures no longer restricted her activity, she attended a mental health group
once per week, regularly attended alcoholics anonymous meetings, and attended most of
the arts and crafts groups.
Defendant listed her medications, the purpose of some medications, and her
schedule for taking her medications. She acknowledged that at PSH her medications
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were brought to her every day and provided her treatment. The medications kept her
“balanced” and helped prevent auditory hallucinations. Defendant testified both that she
currently did not experience auditory hallucinations and that she did currently experience
auditory hallucinations, but they were less severe than in the past and currently sounded
like “background noise” or “static.” She told Tomei that she heard voices approximately
two months before her testimony, but the voices did not tell her to do things. She also
testified that she had learned to manage her auditory hallucinations through coping
mechanisms like drawing, listening to the radio, exercising, and going to groups.
Defendant described her plan upon release from commitment. She would continue
her education, continue taking her medication, continue her dialysis treatments, continue
“to be involved with mental health if that is what is asked of [her], … and maybe get a
part-time job.” She also testified that she would “definitely” seek out a psychologist, a
therapist, and a psychiatrist if she was released. She would live with her 78-year-old
mother. Her mother said that she would help defendant go to dialysis, attend mental
health appointments, and seek social security assistance. Her mother had a room
prepared for her. Defendant testified that she was ready to be released from PSH. When
she told Tomei that she was not ready to be released from the hospital, she meant that she
needed a hernia surgery and a surgery on her arm before she wanted to be released. She
also told Jordan that she needed a few more months in PSH “a little less than a month”
before her trial testimony. Defendant has not heard voices directing her to hurt people
since 1993. If she heard voices or thought her behavior was changing, she would tell her
mother and then call the police.
Defendant apologized for her crime of commitment. She testified she had learned
a lot since then, including things about herself, things about “being in relationships,” how
to avoid being around “the wrong people,” and how to avoid doing “the wrong things.”
She testified that she had changed, and she wanted to do what was right. She was
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worried that staying at PSH might worsen her symptoms because she found PSH to be
stressful.
DISCUSSION
Defendant argues two of the findings required for the recommitment order—that
defendant was not in remission or could not be kept in remission without treatment and
that she posed a substantial danger to society—were not supported by substantial
evidence. Specifically, defendant argues that the evidence that she was not in remission
was lacking because the record contained no evidence that she “overtly or openly
displayed psychotic traits.” She argues that the evidence that her severe mental condition
could not be kept in remission without treatment was also lacking because no evidence
supported the doctors’ conclusions that she had not followed her treatment plan. Finally,
she argues that proof of her dangerousness was lacking because the record contained no
evidence demonstrating that she was currently dangerous (rather than that she might be
dangerous at some unknown future time) or that she had difficulty controlling her
behavior. The People disagree, as do we.
I. Trial Court’s Conclusions
The trial court concluded that defendant suffered from a severe mental disorder.
The court explained that whether a defendant’s severe mental disorder is in remission
turns on whether the “external signs and symptoms of the severe mental disorder are
controlled by either psychotropic medication or psychosocial support.” It commented
that she had self-reported auditory hallucinations and concluded the disorder was not in
remission. Finally, as to defendant’s current dangerousness, the court recited that the
doctors reviewed defendant’s entire mental health history, both considered the same tool,
and both concluded that the formal structure of PSH was necessary to prevent physical
harm to others. In light of defendant’s plan to release directly to the community and the
doctors’ concern about a lack of structure causing her to decompensate, the trial court
found that defendant presently represents a substantial danger of physical harm to others.
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II. Relevant Law and Legal Standard
“ ‘Enacted in 1985, the [Mentally Disordered Offender Act (MDO Act)] requires
that an offender who has been convicted of a specified felony related to a severe mental
disorder and who continues to pose a danger to society receive appropriate treatment until
the disorder can be kept in remission.’ [Citation.] The MDO Act provides for treatment
at three stages of commitment: as a condition of parole (§ 2962), in conjunction with the
extension of parole (§ 2966, subd. (c)), and following release from parole (§§ 2970,
2972). [Citation.] [¶] … [¶] Sections 2970 and 2972 govern the third and final phase
of MDO commitment, which begins once the offender’s parole term has expired.
Section 2970 permits a district attorney, on the recommendation of medical professionals,
to petition to recommit an offender as an MDO for an additional one-year term. An
offender will be recommitted if ‘the court or jury finds [1] that the patient has a severe
mental disorder, [2] that the patient’s severe mental disorder is not in remission or cannot
be kept in remission without treatment, and [3] that by reason of his or her severe mental
disorder, the patient represents a substantial danger of physical harm to others.’ (§ 2972,
subd. (c).)” (People v. Foster (2019) 7 Cal.5th 1202, 1207–1208.) At a recommitment
hearing, the issue is whether the defendant’s “current condition justifie[s] extension of his
[or her] commitment.” (People v. Cobb (2010) 48 Cal.4th 243, 252.)
“The term ‘remission’ means a finding that the overt signs and symptoms of the
severe mental health disorder are controlled either by psychotropic medication or
psychosocial support. A person ‘cannot be kept in remission without treatment’ if during
the year prior to the question being before … a trial court, the person has been in
remission and has been physically violent, except in self-defense, or … has not
voluntarily followed the treatment plan. In determining if a person has voluntarily
followed the treatment plan, the standard is whether the person has acted as a reasonable
person would in following the treatment plan.” (§ 2962, subd. (a)(3).)
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While “ ‘ “substantial danger of physical harm” does not require proof of a recent
overt act’ ” for purposes of recommitment as an MDO (In re Qawi (2004) 32 Cal.4th 1,
24 (Qawi), quoting § 2962, subd. (f)), that does not negate the statutory requirement of
proof beyond a reasonable doubt that the person currently poses a substantial danger of
physical harm to others, before recommitment as an MDO is permitted. (See § 2972,
subds. (a)(2), (c), (e).)
Review for sufficiency of the evidence in the MDO recommitment context uses
the same standard applied in the criminal conviction context—the substantial evidence
rule. (People v. Labelle (2010) 190 Cal.App.4th 149, 151.) “In considering the
sufficiency of the evidence to support MDO findings, an appellate court must determine
whether, on the whole record, a rational trier of fact could have found that [a] defendant
is an MDO beyond a reasonable doubt, considering all the evidence in the light which is
most favorable to the People, and drawing all inferences the trier could reasonably have
made to support the finding.” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)
A single opinion by a psychiatric expert that a person is currently dangerous due to
a severe mental disorder can constitute substantial evidence to support the extension of an
MDO commitment. (See People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v.
Zapisek (2007) 147 Cal.App.4th 1151, 1165.) An expert’s testimony in civil commitment
cases on a person’s dangerousness or likely dangerousness may be the only evidence
available on the issue. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) However,
“[e]xpert opinion testimony constitutes substantial evidence only if based on conclusions
or assumptions supported by evidence in the record. Opinion testimony which is
conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’ ”
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
16.
III. Severe Mental Disorder Not in Remission or Could Not Be Kept in
Remission Without Treatment
Defendant contends that the evidence did not support the conclusion that she
displayed “overt signs and symptoms” of her severe mental disorder as required by
section 2962, subdivision (a)(3). She argues that because both experts testified that she
self-reported experiencing auditory hallucinations and those symptoms were not overtly
observed, the record did not support any finding of overt signs and symptoms. She
further cites to the notes by her social worker, psychologist, doctor, and nurse between
March 16, 2020, and August 9, 2021, that she did not appear to exhibit any external
psychotic symptoms.
The People argue that an “overt” sign of severe mental disorder need not be
observable. Instead, they argue, a symptom is overt if it is “clear, plain, and
unmistakable.” Under that reasoning, they argue that defendant’s auditory hallucinations
were overt. To that end, the People note that defendant reported experiencing auditory
hallucinations and Tomei commented that defendant reported an “ ‘idea of reference’ ”
regarding a television preacher speaking directly to her. They rely on Tomei’s
description of her symptoms as “ ‘active symptom[s] of psychosis.’ ”
Even assuming a symptom must be observable, the People argue that Tomei’s
testimony that defendant’s auditory hallucinations “still distract her, and [that] she still
has to engage in a reality testing where she has to look at whether or not [the
hallucinations] are real versus not real” shows that defendant had observable symptoms
of her severe mental disorder. Further, the People direct us to Jordan’s testimony that
defendant “present[ed] with irritability” and “evidenc[ed] abolition,” which are
symptoms of psychosis, and defendant having presented with depressed mood and
“notable stress” as a result of her auditory hallucinations.
The People cite to no authority, and we have discovered none, in support of their
contention that an unobservable symptom can be “overt” within the meaning of
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section 2962, subdivision (a)(3). As defendant correctly notes, the definition of “overt”
includes an element of “open[ness] and observab[ility].” (Black’s Law Dict. (11th ed.
2019), overt.) While it is our view that defendant’s self-reporting of auditory
hallucinations constituted an overt sign that she was in fact suffering auditory
hallucinations—i.e., an open sign that defendant suffered a covert symptom—sufficient
for the trial court to have concluded that her severe mental disorder was not in remission,
we need not rely only on that conclusion. The record contains other evidence that
supports the trial court’s finding that defendant’s severe mental disorder was not in
remission: Tomei testified defendant’s auditory hallucinations “distracted” her, which
Jordan characterized as an observable feature of a hallucination; defendant told Tomei
that a television preacher sent a message directly to her through the television, which was
an expressed and “active symptom of psychosis”; and she presented with a depressed
mood and irritability, both of which Jordan characterized as “primary external
symptoms” and “consistent with her diagnosis.” Those observable symptoms were overt
signs or symptoms of a severe mental disorder that were not controlled by medication or
psychosocial treatment.
Sufficient evidence supported the trial court’s conclusion that defendant’s severe
mental disorder was not in remission.3
IV. Substantial Danger of Physical Harm to Others
Defendant contends that the evidence was insufficient to prove that she
“ ‘currently poses a substantial danger of physical harm to others.’ ” She contends the
3 Because we conclude that sufficient evidence supported the trial court’s
conclusion that defendant was not in remission, we do not reach whether the record
contained sufficient evidence to support a finding that defendant’s severe mental disorder
could not be kept in remission without treatment. However, we note that the record
contains testimony by Jordan and Tomei that defendant had not followed her treatment
plan as would a reasonable person, even considering the limitations posed by her physical
illness.
18.
doctors’ opinions were that she might, at some future time, become dangerous if released.
Those opinions, she argues, were too speculative and did not address her present danger.
The People disagree, as do we.
A substantial danger of physical harm to others means “a prediction of future
dangerousness by mental health professionals.” (Qawi, supra, 32 Cal.4th at p. 24.) “A
single psychiatric opinion that a person is dangerous because of a mental disorder
constitutes substantial evidence to justify the extension of the commitment.” (People v.
Williams (2015) 242 Cal.App.4th 861, 872; People v. Mapp (1983) 150 Cal.App.3d 346,
352 [when supported by the record, “predictions of future dangerousness may be
rationally projected and the drawing of such an inference is properly within the expertise
of a qualified mental health expert”].) However, an expert’s opinion carries weight only
if it is factually supported by evidence in the record. (Roddenberry v. Roddenberry,
supra, 44 Cal.App.4th at p. 651.)
Here, Tomei and Jordan both testified that defendant presently represented a
substantial danger of physical harm to others by reason of her severe mental disorder.
Both utilized the historical clinical risk management tool as an aide for the exercise of
their professional judgment to determine that defendant was presently dangerous. Tomei
testified she interviewed defendant on July 20, 2021, reviewed her medical, legal, and
PSH records, and consulted with her treatment team and medical professionals at PSH.
Jordan reviewed the same records and consulted with defendant’s treatment team but did
not interview defendant prior to his assessment. Both doctors concluded that defendant
presented with historical, clinical, and risk management factors that caused her to present
a substantial danger of physical harm to others if not confined to a hospital. To name a
few of the factors the doctors considered, defendant had been physically violent and
verbally aggressive in the past as a result of auditory hallucinations which have impaired
her perceptions of reality and behavior, she presently suffered from auditory
hallucinations and some delusional ideation, she had a history of poor treatment
19.
compliance, she had a history of decompensation even when involved in treatment and
medication compliant, she was aggressive when on conditional release, she had a history
of substance abuse, she demonstrated inconsistent insight into her disorder and need for
treatment, her plan for functioning in the community was underdeveloped, and she posed
a risk of treatment and medication noncompliance if released. Based on that evidence
and the doctors’ testimony regarding defendant’s risk of violence, sufficient evidence
exists in the record to support the trial court’s conclusion that defendant represented a
substantial danger of physical harm to others as a result of her severe mental disorder.
That defendant did not commit an overt dangerous act while institutionalized in the past
year and that the doctors could not predict with certainty when defendant would
psychiatrically decompensate and commit an act of violence does not undermine that
conclusion. (Qawi, supra, 32 Cal.4th at p. 24; see People v. Sumahit (2005) 128
Cal.App.4th 347, 353.)4
We find no error.
DISPOSITION
The order is affirmed.
4 Defendant also briefly claims that there was no evidence supporting the required
finding that defendant had “serious difficulty in controlling [her dangerous] behavior” as
required. (Kansas v. Crane (2002) 534 U.S. 407, 413.) We disagree. Jordan and Tomei
both testified that defendant’s severe mental disorder impaired her perception of reality,
her judgment, and her behavior. That impairment directly contributed to her offense of
commitment and revocation of conditional release. That evidence was sufficient to
support a finding that defendant had serious difficulty in controlling her dangerous
behavior as a result of her severe mental disorder.
20.