People v. Scarpaci CA1/4

Filed 11/18/14 P. v. Scarpaci CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
A138406
v.
PATRICK COLE SCARPACI, (Solano County
Super. Ct. No. VCR157924)
Defendant and Appellant.
I.
INTRODUCTION
Patrick Cole Scarpaci appeals from the trial court’s order of April 5, 2013,
revoking his outpatient status, pursuant to Penal Code section 1609.1 He contends the
court’s finding under that section that appellant is a danger to the health and safety of
others is not supported by substantial evidence. We affirm.
II.
PROCEDURAL HISTORY2
On August 28, 2002, the Solano County District Attorney filed an information
charging appellant with the first degree murder of his mother, Kathryn Scarpaci. (§ 187,
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
2
Because the challenged order was issued solely based on the testimony
presented at the section 1609 hearing, we do not find it necessary to recite appellant’s
relatively long criminal and mental health histories chronicled in the record.
1
subd. (a).) Ultimately, on May 16, 2003, a plea bargain was entered pursuant to which
appellant pleaded no contest to first degree murder, and the prosecutor stipulated to
mental health assessments which concluded that appellant was not guilty by reason of
insanity. It was further agreed that appellant could be committed to a state mental
hospital for life. On June 10, 2003, appellant was committed to the Solano County
Department of Mental Health for placement at Patton State Hospital under section 1026,
subdivision (b) for a maximum term of life.
On August 14, 2009, the court found that appellant was no longer a danger to
himself or to the community and, pursuant to section 1604, ordered his conditional
release to the Solano County Conditional Release Program (CONREP) for outpatient
placement, supervision and monitoring. In 2010 and 2011, the court conducted annual
hearings pursuant to section 1606 and continued appellant’s outpatient status. However,
in September 2010, appellant was detained and placed on a 40-day temporary
hospitalization after violating the conditions of his outpatient placement. In July 2012,
appellant was hospitalized again after he began showing symptoms similar to those he
displayed when he killed his mother. In October 2012, the court filed an order continuing
appellant’s outpatient status for another year after appellant stipulated that he would
remain in Napa State Hospital and comply with all CONREP directives.
On January 23, 2013, the prosecutor filed a petition under section 1609 to revoke
appellant’s outpatient status on the ground that he was a danger to the health and safety of
others if he remained in outpatient status.3 At the time, appellant remained housed at
3
Section 1609 states, in relevant part: “If at any time during the outpatient period
or placement with a local mental health program pursuant to subdivision (b) of Section
1026.2 the prosecutor is of the opinion that the person is a danger to the health and safety
of others while on that status, the prosecutor may petition the court for a hearing to
determine whether the person shall be continued on that status. . . . If, after a hearing in
court conducted using the same standards used in conducting probation revocation
hearings pursuant to Section 1203.2, the judge determines that the person is a danger to
the health and safety of others, the court shall order that the person be confined in a state
hospital or other treatment facility which has been approved by the community program
director.”
2
Napa State Hospital but the prosecutor had learned that CONREP was considering
recommending that he be released to resume his outpatient status. The prosecutor
believed that appellant continued to pose a danger to the health and safety of others and,
therefore, requested that his outpatient status be discontinued pursuant to section 1609.
A hearing on the petition took place on April 5, 2013, at the conclusion of which
the court ordered that appellant’s outpatient status be revoked and that he be confined to a
state hospital or treatment facility approved by the Napa State Hospital. This timely
appeal followed.
III.
EVIDENCE PRESENTED AT REVOCATION HEARING
A. Prosecution Evidence
Evidence supporting the section 1609 petition consisted of the expert and
percipient testimony of Marco Sanchez, a licensed mental health clinician employed by
Solano County Health and Social Services. Sanchez testified as an expert in the area of
diagnosis and treatment of mental disorders and an individual’s level of dangerousness.
In addition, Sanchez, who was appellant’s CONREP case manager, provided extensive
testimony about events that occurred when appellant was in outpatient status.
Sanchez, who has worked in the social services field for more than 26 years, has a
B.S. degree in criminology and an M.S. degree in counseling with an emphasis on
psychology-based marriage, family, and child counseling. He is also a licensed family
therapist. In 1987, Sanchez began working as a public therapist in a juvenile sex-
offender program and, by the end of his 10 years of employment there, Sanchez was a
senior facility manager. His work included counseling, determining compliance with
program rules, and seeing that the juveniles’ treatment goals were being met. Sanchez
began doing risk assessments when he left the juvenile program to work for Yolo County
where he was the lead clinician in the violence court and drug court. This work included
determining if persons in the program were dangerous and could continue living in the
community safely. He made about 60 assessments every year and did so for six years.
Part of this risk assessment was to identify what mental health disorders the clients had,
3
and other problems that required more intervention than the program provided. He would
give his opinion to probation officers about whether the client should be out-placed.
When Sanchez moved from Yolo County to Solano County he began working with sex-
offense probationers. Soon after he arrived in Solano, he started working with that
county’s psychiatric emergency team doing two to three Welfare and Institutions Code
section 5150 evaluations each week, evaluations which required Sanchez to make
assessments of whether the clients presented a danger to themselves or others.
About three and one half years ago, Sanchez began working with CONREP. As a
case manager, his work includes conducting face-to-face assessments, making group
contacts, and making home visits. His training has included administration of the
historical risk clinical assessment (HR-20), and psychopathic checklist work. As a
CONREP representative, Sanchez has also made recommendations to courts regarding
risk assessments for dangerousness. He has testified about his assessment work
approximately 12 times, and has offered expert opinions in four or five of those cases.
His expert witness experience includes offering opinions in Solano County cases
involving the same issue as that involved here.
Substantially all of Sanchez’s career in mental health has involved people with
violent histories, including violent sex offenders, murderers, and gang members. He has
met with clients both in his office and in the community. In some cases he was called out
to the field by law enforcement to make an immediate assessment as to what the police
should do with a detained individual.
Sanchez began working with appellant in February 2010 when appellant was
placed in a residential treatment facility. As appellant’s first CONREP case manager,
Sanchez was familiar with appellant’s crime. Appellant committed his offense at a time
when he was not getting along with his mother; she wanted him to go to school and
follow her other rules and he was being defiant. Sanchez was also familiar with the
details of the charged murder; appellant stabbed his mother in her jugular vein, took her
head by the hair and slammed it against concrete, then pulled out one of her eyeballs with
his hand and cut the other one out with the knife he used to stab her. After killing her,
4
appellant bathed her and stuffed her body in a plastic hamper which he put in the truck of
her car. Finally, Sanchez was familiar with reports regarding appellant’s mental and
emotional condition at the time of the offense which indicated that appellant was
paranoid and delusional. He thought people were trying to poison him and apparently
also believed that his mother was an alien, and he wanted to see “what made her tick.”
This information was important to know so Sanchez could monitor appellant’s
symptoms, attempt to decrease his “stressors,” and provide intervention if appellant
began to decompensate.
At the section 1609 hearing, Sanchez testified about several key events during
appellant’s outpatient experience. On May 3, 2010, appellant began living independently
at a home in Fairfield. He was classified as “level one,” which meant he received the
maximum services and most intense treatment that CONREP could provide, including
weekly individual contact, home visits, and substance abuse testing. Sanchez transported
appellant between his home in Fairfield and group meetings and clinic appointments in
Vallejo which gave them more time for individual contact. Indeed, Sanchez estimated
that he saw appellant at least five times a week.
In September 2010, appellant’s case was moved from level one to less restrictive
level two care. Appellant immediately began to experience problems complying with the
conditions of the program which required, among other things, that he attend Alcoholics
Anonymous meetings twice a week, comply with a curfew, not fraternize with a known
felon, and report any police contact. These restrictions were important because they
would protect appellant from negative influences, address prior substance abuse
problems, and facilitate a healthy integration into the community. However, a few days
after appellant was moved to level two care, he went to a bar and, some time after that, he
was pulled over by the police. Appellant failed to report the incident to CONREP, but his
companion did. Sanchez met with appellant to review the conditions of his independent
living but appellant did not disclose the incident and when Sanchez confronted him about
it, he tried to minimize the event. At that point, appellant was returned to level one
status.
5
In September 2010, CONREP recommended that appellant be returned to the state
hospital in a report that Sanchez prepared. Appellant’s behaviors were similar to the way
he acted at the time he killed his mother. He was not following any of the rules, was
oppositional, stayed up all night, and was preoccupied with his music. He missed group
sessions and appeared to be asleep when he did attend. Then, during a home visit,
Sanchez found three or four people who had spent the night sleeping in appellant’s
apartment. Appellant, who had neglected his home and his personal hygiene, seemed
unaware that his acquaintances were disturbing his apartment mate, another CONREP
client. More troubling, one of the guests was a convicted felon.
Sanchez testified that CONREP recommended that appellant be hospitalized
because he was “at risk of becoming dangerous.” His symptoms paralleled his prior
offense, he was not complying with the requirements of the program and he needed to be
hospitalized to reevaluate his medication. Accordingly, appellant was returned to the
hospital for approximately 40 days. During that time, Sanchez maintained regular
contact with appellant and his treatment team, and helped identify areas that were
concerning to CONREP. When appellant was released from the hospital on November 8,
2010, Sanchez picked him up and transported him back to the same home in Fairfield
where he was placed under level one supervision. Sanchez continued to act as his case
manager.
In September 2011, Sanchez prepared an annual report of appellant’s progress for
CONREP. That report included the results of a July 2011 “HCR risk assessment” that
Sanchez performed. This type of assessment looks at historical indicators, current or risk
crimes, history of criminal behavior, and current clinical impressions in order to assess a
level of risk that the subject would pose if returned to the community. The assessment of
appellant indicated that his risk of violent reoffense was “moderate.” Several factors
contributed to this conclusion including his young age at the first violent incident,4
4
According to the report, which is in the record, appellant killed his mother
during a heated argument that occurred two days after appellant’s 18th birthday.
6
employment problems, substance use problems, early maladjustment and, finally, his
severe mental illness diagnosis of paranoid schizophrenia.
The September 2011 report also contained information about another violation of
CONREP rules that occurred the previous month. When Sanchez conducted a home
visit, appellant was with the same man Sanchez had found sleeping in appellant’s room
the year before. Not only was the visitor a convicted felon but he had previously
threatened appellant’s co-tenant with a gun. As a result of this incident, appellant was
placed on “clinical probation.” There were other compliance problems as well: missed
meetings; failure to complete program assignments; failure to search for employment;
staying up late; not eating properly; and using his grocery money to buy equipment for a
video rap music business that he wanted to start.
In September 2011, Sanchez took a medical leave to have surgery and CONREP
assigned another employee to act as appellant’s case manager. After Sanchez returned to
work at CONREP in December, he still had regular contact with appellant at group
therapy sessions and other program meetings.
On June 1, 2012, Sanchez was tasked to help appellant move from his residence in
Fairfield to an apartment in Vallejo. When Sanchez arrived, the apartment was very dirty
and Sanchez noticed that the television and other items were missing. Sanchez also
noticed a change in appellant’s behavior. He paced back and forth, was more talkative
than usual, appeared alert and vigilant and acted paranoid. Normally appellant was not
forthcoming about anything, but that day he talked a lot about his co-tenant, another
CONREP client, and about all the things that he had observed. He said his roommate
was being evil, talking about evil things, and that other people were using drugs and
coming in and out of the home. As Sanchez walked around the apartment, he noticed that
appellant kept coming up right next to him. For the first time in his 27-year career,
Sanchez felt concern for his safety. It occurred to him that he might have to fight for his
life and he found himself making a plan for how to get out of the apartment. As it turned
out, the move to Vallejo was postponed because appellant was not packed and ready to
go, and Sanchez left without incident.
7
In July 2012, appellant’s CONREP case manager conducted a home visit at
appellant’s new apartment in Vallejo. Sanchez accompanied his coworker because he
was concerned for her safety. From the time appellant opened the door, his eyes fixed on
Sanchez. Appellant had lost weight, had a foul odor, and had not showered. Sanchez
made small talk as he tried to take a look around but appellant remained right next to him.
Sanchez had that same fear for his personal safety that he experienced the previous
month, although this time it was more intensified. Appellant was more volatile and
appeared to be decompensating. Sanchez took a passive role in the visit because he was
not the case manager, but he tried to subtly highlight concerns for his partner. He pointed
out several crucifixes that were connected to form a string for activating a light that
changed colors, and he asked about a safe where appellant was storing his deodorants.
Appellant said he had the safe because he needed to protect his stuff. When Sanchez
commented on a Bible that was on top of the safe, appellant talked about how he had
been reading it and trying to cleanse himself.
Sanchez testified that he was very concerned about his personal safety after the
July 2012 home visit. He had assumed the role of making and enforcing rules in
appellant’s life and it appeared that appellant perceived him the same way he had
perceived his mother before the murder. After the visit, Sanchez shared his concerns
with other CONREP employees.
A July 2012 report that appellant’s case manager prepared on behalf of CONREP
listed several concerns about that month’s home visit, including that appellant had gotten
rid of his refrigerator because it smelled and carried germs; that he disconnected the gas
from his stove to “avoid chemicals;” that he had a strong body odor because he was
trying to avoid using chemicals; and that he had a significant weight loss because he was
not eating in order to avoid chemicals in food. During the July 2012 visit appellant had
also expressed fear that CONREP staff would come into his apartment, tamper with his
things and leave their germs. The report noted that appellant’s fear of chemicals was
similar to the fear of poisons he had at the time he killed his mother. The report also
documented appellant’s poor compliance with the general terms and conditions of his
8
independent living program. Efforts by CONREP personnel to intervene and find ways
to support appellant were met with increasing resistance, agitation and anger.
After the July 2012 incident, CONREP recommended that appellant be taken into
custody because he posed a danger to the safety of others. Sanchez testified that he was
assigned to accompany law enforcement when appellant was taken into custody. That
experience deepened Sanchez’s concern that he had become the focus of appellant’s
attention.
Sanchez testified that, although appellant has remained in the hospital since July
2012, there have been periodic discussions at CONREP about returning him to the
community. Sanchez has consistently opposed returning appellant to independent living.
He believes appellant poses a risk to his personal safety. Sanchez also testified that he
now realizes that appellant was never forthcoming or genuine in his interactions with
Sanchez. Other people might find themselves in a similar situation, facing a real danger
because they do not know what is really going on with appellant. In addition, Sanchez
sees a dangerous pattern regarding appellant’s behavior. Appellant would do better in
custody, but would deteriorate when he was in the community and, each time he was
released from a hospital stay, his behavior became more dangerous. Finally, Sanchez
expressed concern for appellant’s young daughter. During the period appellant was
living in the community, Sanchez had worked with them to reunify. But, after his own
experiences with appellant, Sanchez was concerned that appellant’s daughter might not
recognize a dangerous situation and become another victim.
At the conclusion of his hearing testimony, Sanchez offered the opinion that
appellant represents a danger to the health and safety of others and that he should not be
released. He acknowledged that other individuals involved in appellant’s treatment
disagree. However, Sanchez testified that he has had direct personal experiences with
appellant that inform his opinion. During periods that appellant was living in the
community under CONREP’s supervision, Sanchez provided approximately 95 percent
of the one-on-one contact with appellant and he testified that those types of contacts give
him a perspective that other CONREP members do not have.
9
B. Appellant’s Evidence
Dr. Kathleen O’Meara testified as an expert in the areas of psychology, risk
assessment and mental health. To formulate her opinions for this case, O’Meara
reviewed pertinent court and medical records, and CONREP reports. Then she
interviewed appellant for five hours. Ultimately, O’Meara concluded that appellant was
presently stable and not currently dangerous, although there were treatment issues to be
addressed in order to maintain a non-dangerous status.
O’Meara opined that appellant’s illness followed a pattern of deterioration which
prevented him from “harbor[ing] any kind of generalized aggressive impulses.” She also
testified that her conclusion that appellant is “okay today” was greatly affected by the fact
that he was presently medication compliant. O’Meara acknowledged she did have a
concern about whether appellant’s illness could be controlled through medication when
he was outside the structured environment of a hospital. Nevertheless, O’Meara opined
that “[a]s somebody who is not presently dangerous today,” appellant qualified for
release under section 1609.
O’Meara testified that appellant admitted he had experienced paranoia when
dealing with CONREP staff in the past, but she believed that if appellant were to relapse
it would not be a sudden occurrence but a progressive deterioration. O’Meara also
reiterated that it would be very important for appellant to continue his medication in order
to prevent him from reverting to paranoia which could result in extreme violence.
The trial court asked O’Meara if she believed appellant did not require hospital
supervision because he could be appropriately supervised by an agency like CONREP.
O’Meara offered this answer: “I think that based on the records I’ve seen, that the quality
and depth of the therapy that he’s able to get is better in Conrep than it is in the staffing,
strapped, whatever their issues are in Napa, where they . . . seem to be addressing, in my
opinion, superficial issues that don’t get to the crux of what his problems are.”
After O’Meara completed her testimony, two doctors from appellant’s treatment
team at Napa State Hospital testified on appellant’s behalf. Dr. Amrid Saini, appellant’s
treating psychiatrist for six months, testified that appellant was not a danger to others and
10
was ready for release into the community. Saini also testified that appellant’s treatment
team agreed with his conclusion. Under cross-examination, Dr. Saini testified that he
recognized Sanchez’s name but he never spoke with Sanchez, and was not aware that
Sanchez believed appellant was currently dangerous. Dr. Saini also acknowledged that a
psychologist who was no longer a part of appellant’s treatment team had expressed
serious concerns about appellant’s behavior as recently as October 2012.
Dr. Aton Bercovitch, a staff psychologist at Napa hospital, had been a member of
appellant’s treatment team since September 2012. Bercovitch testified that he had seen
appellant make progress over time and that he believed appellant would not pose a risk in
a supervised outpatient setting. Bercovitch recognized Sanchez’s name but had never
met him and was not familiar with the details of Sanchez’s prior interactions with
appellant aside from the fact that there had been some “general perspective” that
appellant had become decompensated and needed to “be removed temporarily.”
C. The Trial Court’s Ruling
At the conclusion of the hearing, the trial court found the prosecutor established
“beyond a preponderance of the evidence” that appellant posed a risk to himself and the
safety of others if he was not returned to the hospital. In reaching this conclusion the
court relied on evidence that when appellant was on out-patient status, he was not
compliant with his medication, exhibited irrational fears of being poisoned by chemicals,
had at one point become emaciated due to his fear of chemicals in food, and was only
marginally compliant with the other requirements of the program. The court also
highlighted evidence that when appellant failed to comply with the program requirements
he displayed paranoid behavior that was similar to his behavior in December 2001 when
he killed his mother.
With regard to the other experts who testified, the court expressed some concern
about the basis for Dr. O’Meara’s opinion. It appeared to the court that O’Meara lacked
confidence in the Napa State Hospital treatment program, opining that she “felt it’s pretty
weak.” The court felt that this lack of confidence in Napa’s program, when compared to
the relatively better treatment O’Meara believed appellant would receive in an outpatient
11
setting, was one of the reasons she offered the opinion that he would not be dangerous if
re-released into the community.5 The court also found that Sanchez’s interactions with
appellant had been “far more thorough and meaningful” than the other witnesses who
testified. Thus, the court concluded that Sanchez’s testimony established “beyond a
preponderance of the evidence” that appellant posed a risk to himself and the safety of
others, and ordered his outpatient status be revoked.
IV.
DISCUSSION
“Section 1609 provides that if the prosecutor believes an outpatient poses a danger
to public safety, the prosecutor may petition for a hearing on revocation of the patient’s
outpatient status, using the same standards as those used in conducting probation
revocation hearings under section 1203.2. Probation revocation proceedings are not a
part of a criminal prosecution, and the trial court has broad discretion in determining
whether the probationer has violated probation. [Citation.] The standard of proof
required is a preponderance of the evidence supporting revocation. [Citation.]” (People
v. DeGuzman (1995) 33 Cal.App.4th 414, 419-420; see also People v. Rodriguez (1990)
51 Cal.3d 437, 442.)
Here, substantial evidence supports the trial court’s order. As the CONREP
representative who had the most direct contact with appellant, Sanchez was well-
positioned to evaluate whether maintaining appellant’s outpatient status posed a
substantial danger to the safety of others. Sanchez was the only witness at the hearing
who had any contact with appellant in an outpatient environment. For most of the time
that appellant was on outpatient status, Sanchez was primarily responsible for his
5
According to the reporter’s transcript, the court made the following statement
about O’Meara: “. . . I think she has a very limited competence in the Napa State
Hospital treatment program.” When this quoted remark is read in context, however, it is
clear to us that what the court actually said or meant was that O’Meara had very little
“confidence” in the hospital treatment program. We make this point for the record
because we disagree with an assertion in appellant’s brief that the trial court rejected
O’Meara’s expert opinion because it doubted her “competence.”
12
treatment and supervision and, after Sanchez was no longer appellant’s case manager, he
remained actively involved in appellant’s case. Sanchez’s percipient testimony was
supplemented and reinforced by his expert opinion that appellant poses a substantial risk
of danger to the community. Thus, Sanchez’s testimony constitutes substantial evidence
supporting the revocation.
Appellant contends that Sanchez’s testimony does not constitute substantial
evidence because it was uncorroborated, stale and speculative. First, as a general rule,
the testimony of a single witness may constitute substantial evidence. (In re Marriage of
Mix (1975) 14 Cal.3d 604, 614.) Furthermore, Sanchez’s percipient witness testimony
was neither contested nor contradicted. The other witnesses at the hearing did not have
any interactions with appellant when he was living as an outpatient, had never met
Sanchez and were not familiar with the events that supported Sanchez’s expert opinion
that appellant is presently dangerous.
Second, Sanchez’s testimony was not stale. Appellant argues that the court should
have disregarded Sanchez’s testimony because he did not have any interactions with
appellant for several months prior to the section 1609 hearing, and thus was not in any
position to evaluate whether appellant was currently dangerous. The question before the
trial court was whether appellant’s outpatient status should be revoked because appellant
posed a danger to himself and others. (§ 1609.) Evidence of how appellant performed
while he was actually on outpatient status, even if that contact ended some months
earlier, was clearly relevant to that assessment. After all, Sanchez had virtually daily
contact with appellant for more than two years, and was the only expert witness who
engaged him in that environment.
Finally, Sanchez’s testimony was predictive rather than speculative. Since
appellant had been detained at the Napa State Hospital for a period of nine months prior
to the section 1609 hearing, any expert opinion regarding his current dangerousness in an
outpatient environment also had to be predictive. However, unlike the other experts who
testified at the hearing, Sanchez’s opinion was supported by direct observations of
appellant’s actual performance in the outpatient program. Thus, the trial court could
13
reasonably have concluded that Sanchez offered the least speculative opinion regarding
whether appellant was currently dangerous in an outpatient setting.
Appellant contends that the trial court committed reversible error by “arbitrarily”
ignoring, “without explanation,” the recommendations of the doctors on appellant’s
treatment team who testified that he was not a danger, and that he was ready to be
released to the community. According to appellant, a court may disregard an expert
witness recommendation “only for non-arbitrary reasons.” (Citing People v. Cross
(2005) 127 Cal.App.4th 63, 73.) The trial court in this case did not ignore the opinions of
appellant’s doctors without explanation. The court was presented with conflicting expert
opinions and made the reasoned decision to rely on the expert whose interactions with
appellant were “far more thorough and meaningful” than the interactions described by the
other witnesses who testified at the hearing.
Appellant insists that the order must be reversed because the “consensus opinion
among the testifying experts established that appellant was not a danger to others and
could appropriately remain on outpatient treatment.” This argument does not comport
with a substantial evidence standard of review. “A judgment will not be reversed based
on an evaluation of the strength of the opposing evidence or the relative weakness of
supporting evidence when compared to opposing evidence. It can be reversed based only
on the absence or insubstantiality of supporting evidence, as determined from a review of
all related evidence in the record. [Citation.]” (Rivard v. Board of Pension
Commissioners (1985) 164 Cal.App.3d 405, 413, fn. & italics omitted.) Here, as
explained above, Sanchez’s detailed testimony and expert opinions constitute substantial
evidence supporting the revocation order.
IV.
DISPOSITION
The order revoking appellant’s outpatient status is affirmed.
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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
15