People v. Valencia CA2/1

Filed 9/23/14 P. v. Valencia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B250598
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA041527)
v.
EDWARD GILBERT VALENCIA III,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Tia G.
Fisher, Judge. Affirmed.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, and David Glassman, Deputy Attorney General,
for Plaintiff and Respondent.
________________________
Edward Gilbert Valencia III appeals from the trial court’s order revoking his
outpatient commitment under Penal Code section 16081 and returning him to a state
mental hospital, arguing that the court’s failure to conduct a hearing within 15 days
violated his right to due process, and the revocation was not supported by substantial
evidence. We affirm.
BACKGROUND
As described at the preliminary hearing, on July 24, 1998, a West Covina
bookstore employee saw Valencia pouring what smelled like gasoline over a book
display; Valencia told her, “‘I’ve just got to do that,’” lit the gasoline, and ran out of the
store. A fire marshal who examined the scene testified that the cause of the fire was
arson. On August 13, 1998, at a Best Western Hotel in West Covina, two hotel guests
reported a smell of gas and smoke on the third floor, and the fire alarm system activated.
The fire department put out a fire in room 309, which Valencia had rented for the night
with cash. A red plastic container similar to a gasoline can was in the bathroom, and a
television set, dresser, carpet and bedding were burned. A fire department captain
concluded that three or four separate fires had been set in the room. Also on August 13,
the manager of a Lucky supermarket heard a clerk yelling that some man was setting the
store on fire. The manager ran down an aisle and saw flames at the end, and saw
Valencia with charcoal lighter fluid in his hand, squirting the paper towels. He yelled,
“‘What the hell are you doing?’” and Valencia pulled a baseball bat out of a duffel bag
and started swinging. Valencia left the store with several people chasing him. He swung
the bat at the manager and a security guard, hitting the security guard several times.
Valencia also hit a customer who had also given chase. When Valencia was arrested and
read his rights, he admitted setting the three fires and said he was a “rebel” and the CIA
and FBI were putting chemicals in his air.
In May 1999, a five-count indictment charged Valencia with three counts of arson
in violation of section 451, subdivision (b), and two counts of assault with a deadly
1 All further statutory references are to the Penal Code unless otherwise indicated.
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weapon in violation of section 245, subdivision (a)(1). Valencia pleaded not guilty.
Valencia’s defense attorney declared his doubt as to Valencia’s mental competence, and
after Valencia waived jury trial, the court found he was not presently mentally competent
to stand trial. After Valencia spent a period of commitment in a state mental hospital, a
certification of mental competency was issued in October 2000. The trial court found
Valencia competent to stand trial, and resumed criminal proceedings. Valencia withdrew
his not guilty plea, and entered pleas of guilty to all five counts and not guilty by reason
of insanity. The trial court accepted Valencia’s guilty plea, and following a court trial
submitted on the reports of two psychiatrists, found Valencia not guilty by reason of
insanity, committing Valencia to Patton State Hospital on June 22, 2001 for a maximum
confinement time of 13 years and four months, with custody credit. Valencia was
transferred to a community outpatient treatment facility in 2004, and in 2006 he was
reassigned to a less-restrictive, nonresidential forensic community treatment program
(FCTP).
On January 28, 2013, a two-page “Notification of Rehospitalization” from the
FCTP and signed by psychologist Katie Weilbacher and the program coordinator,
notified the trial court that on that date Valencia had been rehospitalized at the state
mental hospital after he violated his terms and conditions and the rules and regulations of
the residential facility. The FCTP was preparing a report of the circumstances leading up
to rehospitalization, believing revocation of Valencia’s outpatient status was in order.
Request for Revocation
Dated February 1, 2013, a nine-page “Request for Revocation of Outpatient
Status,” signed by Dr. Weilbacher and the program coordinator and submitted to the trial
court as a report to supplement the January 28 rehospitalization letter, stated that
Valencia was not honest and forthcoming, was noncompliant with the interventions
meant to keep him and the community safe, and continuously broke rules and regulations.
Specifically, in November 2012 while living independently with his girlfriend, Valencia
was notified by social security that it had overpaid him and he owed the agency $18,000.
He turned to FCTP for help and told them he wanted to lie about the amount of money he
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had and the amount of his bills. He said that he wanted to report he paid more in rent
than he actually did and planned to have a bank account in his daughter’s name to hide
money. His checking account and bank statements showed that he had spent $5,000 from
a social security back-payment in 25 days without accounting for the expenditures, and
made multiple cash withdrawals from different ATM’s, including five $20 withdrawals at
different ATM’s in one day for fast food. He denied stress or financial problems, but his
girlfriend reported that he had been increasingly angry and stressed, and had threatened
her once that his family would “‘do something to her,’” although she considered this a
“‘play threat’” and he did not have much contact with his family. He showed “paranoid
ideation” about the government. He had not been contributing to bills and became
agitated when the subject of money arose. She was very worried about reporting this
information because she feared Valencia would get upset. When confronted on these
issues, Valencia denied any problems.
Valencia was moved to a more structured residence in December 2012 because of
concerns with his relatively unstable behavior, and continued to receive treatment at
FCTP. He continued to struggle. Staff reported that they were “unclear about his work
times, his travel times, or who he may have been getting rides from.” Although he said
he rode with a female supervisor, staff reported a man picking him up once. Valencia
was overheard telling someone on the phone he was going to get a pass for church but did
not intend to use it for that purpose, later denying he said that. Stricter monitoring was
put in place including restriction of passes and verifying that he actually went to work
when he left the facility, requiring considerable resources like those necessary for a new
admission.
In mid-January 2013,Valencia was reported to have gambled over football (a rule
violation) and lost a pair of shoes. He admitted to giving away a sweatshirt, another rule
violation, although he claimed a staff member “shrugged” when Valencia asked for
approval.
In treatment, Valencia engaged in “defensiveness and distortions suited to meet his
needs” and did not appreciate the importance of working with staff, or his own role in
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requiring more care. At a special staffing meeting where he was approached about the
issues with his behavior and treatment, he was instructed to resign from his part-time
work to concentrate on treatment and make it easier to monitor him.
On January 25, 2013 at 10:40 p.m., the on-call therapist received notice that
Valencia could not be found although staff had paged him for 45 minutes and thoroughly
searched the premises. The Los Angeles Police Department was notified. At 11:55 p.m.,
Valencia was found in his bed. He claimed he was in the restroom, although staff had
checked the restroom multiple times. He was rehospitalized on January 28, 2013.
The request for revocation sought “a revocation of his outpatient status pursuant to
[section] 1608 to allow for an extended stay in the state hospital to address the concerns
that led to his rehospitalization.”
Subsequent court orders
On February 7, 2013, pursuant to an oral request of the public defender, a judge
set a hearing on the revocation request for February 25, 2013, with a representative from
the FCTP to accompany Valencia to court; the minute order was forwarded to the FCTP.
On February 15, 2013, with no parties or counsel present, Judge Tia G. Fisher
stated that pursuant to a February 4 letter from the state hospital, Valencia was ordered
transported to court from the state hospital on February 25 for a section 1608 hearing; the
minute order was forwarded to the state hospital.
On February 22, 2013, pursuant to a telephonic request by the Los Angeles
County Sheriff’s Department, a different judge continued the hearing date to February 28,
2013.
On February 28, 2013, with the agreement of Valencia’s counsel, another judge
set the hearing for March 14, 2013, and ordered Valencia to be brought to court on that
date.
March 14, 2013 hearing
When the March 14, 2013 hearing began, Dr. Weilbacher was present to testify,
but Valencia had not arrived. Valencia’s counsel requested a continuance so she could
subpoena witnesses. The trial court expressed its concern stating, “your client is not here
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and there’s a witness here and hearing set and I know the hearing is supposed to be in 15
days and you prove it or not. . . . The findings or what needs to be said didn’t happen
because there was a request to put it over, I believe, on your behalf so you could evaluate
it.” At the February 28 hearing (before a different judge) “you were here on [Valencia’s]
behalf and your request was to put it over to transport him out for the hearing on today’s
date. . . . [¶] My assumption in reading that, since you were there, is that was okay with
you.” Counsel replied, “Yeah, I was going to be okay because I couldn’t proceed without
a client.” The court continued, “”[S]tatutorily it simply says 15-day hearing. . . . I think
we need to deal with it today. It was set today. You are present. There was a request
made however it happened, and at least hear it out even if it’s just preliminarily. . . . [¶]
Doesn’t mean that you can’t turn right around a file a petition to have him back out again
and have a full-blown hearing as to whether or not outpatient status is more appropriate
than inpatient status.” Valencia was on his way, and “regardless of how it plays out, it’s
my view I need to make some kind of ruling or at least clarify today.” The court saw the
procedure under section 1608 as requiring the court, once it received a letter notifying it
of the revocation of outpatient status, “15 days, approve or disapprove . . . . Because
that’s why that issue has to be dealt with today . . . [¶] . . . [¶] because of my concerns
with the timeline.”
The March 14, 2013 hearing reconvened in the afternoon when Valencia arrived in
court, and the court stated it was ready to proceed with a hearing under section 1608.
Although the prosecutor was ready to proceed, Valencia’s counsel said she was not:
“The last time we were here today’s date was scheduled. I did agree. I thought it was
sufficient. But in hindsight after contacting a variety of different witnesses that would be
coming in to testify regarding the rules violations in the [February 1] letter . . . , it
wouldn’t be sufficient time for service of process,” and Valencia wanted her to prepare
his defense with witnesses who would testify that he did not violate the rules. The court
repeated its “concern pertaining to the time frame on the [section] 1608. . . . [T]he
statute sets forth a very strict timeline.” The court considered the January 28 letter not a
formal filing or a request for revocation, but simply a notification of what had occurred
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that did not trigger the setting of a hearing; the February 1, 2013 letter was the request for
revocation requiring the court to take action.
Judge Fisher had been on vacation from January 25 to February 13. In her
absence another judge on February 7 had set the hearing for February 25, in apparent
response to a third letter dated February 4 and file-stamped February 6. That letter
reminded the court that Valencia had been rehospitalized, inquired whether a section
1608 hearing to approve or disapprove the rehospitalization had taken place within the
15-day period, and requested the minute order of the hearing. When Judge Fisher
returned from vacation, on February 15, she had the February 4 letter, and ordered
Valencia brought to court on the February 25 hearing date set by the other judge. The
February 7 minute order had been sent to the FCTP, not to the hospital, creating a
transport issue.
The trial court believed the court had been diligent and the hospital had followed
through, and its concern now was “timing issues,” so that the hearing could be done in 15
days from the request. Counsel for Valencia replied, “That’s gone.” The court
responded that it disagreed. The other judge had set the February 25 hearing date with
the consent of the public defender. On February 22, another judge had moved the
hearing to February 28 after a telephone request from the sheriff’s department for a
written removal order. On February 28, yet another judge had set the hearing for
March 14, with Valencia’s counsel agreeing, and issued another written removal order for
that date. Now Valencia’s counsel wanted to put the hearing over for more witnesses to
address factual issues: “There’s just no way in the world that’s ever going to happen in a
15-day period in the court’s view. . . . It’s not going to happen. Would you concur with
that?” Valencia’s counsel stated, “I agree.”
The court stated it would make a summary ruling that day especially given that the
hospital was requesting it. There had not been one “because the process takes time and
the removal orders and the lawyers, et cetera . . . court, lawyers, process, procedure.”
Counsel for Valencia stated that she had only the February 1 report, and the court had a
copy of the January 28 letter made for her. Counsel then stated she had nothing further
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other than scheduling a date for the appearance of witnesses. The court again stated that
the 15-day period requirement required a hearing by the court to evaluate whether the
treatment team had properly determined that rehospitalization was necessary to
“evaluat[e] . . . an action taken where a person has lost their liberty.” Counsel responded,
“that’s not a hearing,” and the court replied, “I know it’s not,” but after a
rehospitalization and within the 15-day period, the judge needed to determine only
whether it approved or disapproved the request for revocation in a “summary
evaluation . . . not a full-blown hearing” regarding treatment options. Counsel then asked
if within the 15 days, Valencia had the right to subpoena witnesses from the specific
examples in the rehospitalization report. The court replied no, “because how do you get
witnesses subpoenaed within that many days?” The court was now dealing with legal
issues, and asked counsel whether Valencia should be released, and counsel replied that
he should be returned to the FCTP, but “not until after the hearing.” The court asked
whether Valencia “is waiving any defect by way of the 15 days,” and counsel responded,
“I don’t know enough about it to inform him of that.” The court repeated that it was
“trying to deal with these legal issues and ensure the process is being respected though a
van is waiting . . . to take [Valencia] back to the hospital.”
The prosecutor submitted on the January 28 letter and the February 1 report
“regarding the court’s decision or the foundation upon which the court could decide
whether to approve or disapprove of revocation.”
The court again asked Valencia’s counsel if Valencia would oppose a summary
approval pending a full hearing, “because I think I need to make some determination at
least summarily because of the statute,” to give the hospital a timely judicial
determination. The court would make an initial ruling pursuant to section 1608 pending a
hearing to approve the hospitalization “without any prejudice to any hearing rights on this
issue.” The prosecutor advised the court that the author of the rehospitalization
documents was present and “willing to answer questions by the court or propounded by
counsel regarding this summary proceeding.”
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Valencia conferred with his counsel. The court clarified that he was to tell his
counsel whether “it’s fine to at least summarily approve the rehospitalization pending a
hearing and allow the court to summarily make a finding based on the documents to
approve it under [section] 1608 without any prejudice to your due process rights to have a
hearing.” Counsel stated, “He’ll agree,” and the court again addressed Valencia: “Is it
agreeable with you summarily on the paperwork to approve the rehospitalization without
any prejudice to your hearing on the issues relative to the public safety and treatment
issue within the meaning of [section] 1608 which is where the court has to review it
within a certain time limit? [¶] My view at this point there needs to be a ruling because
of the time limit, but that’s without any prejudice to any due process rights that you have
to have a hearing on the actual merits of whether or not you present a danger to the health
and safety of others while on outpatient status. That’s the same standard as a [section]
1602/1603.” Valencia stated, “I guess so,” and counsel joined. The court summarily
approved the revocation of outpatient status under section 1608, acknowledging “we are
actually beyond the 15 days.” The court then asked counsel if she was requesting a
hearing, and how much time she needed; counsel responded, “yes” and requested
April 11, 2013. The court set the hearing for that date and ordered Dr. Weilbacher to
return. The minute order states that “the court preliminarily revokes the outpatient status
of the defendant,” and with the consent of defendant and his counsel, ordered Valencia
confined “pending a hearing pursuant to . . . section 1608 regarding revocation of the
outpatient status.”
Evidentiary hearing April–July 2013
At the April 11 hearing (which began late due to transport issues for Valencia), the
prosecutor offered to submit on the report; Dr. Weilbacher was again present. Valencia
called 10 witnesses, including coworkers, relatives, family friends, and employees of the
state hospital (a psychiatrist, a social worker, a psychiatric technician, and a registered
nurse) to testify regarding specific infractions identified in the request for revocation.
The court put the hearing over to the next day but counsel for Valencia requested “more
than two weeks.” With Valencia’s consent, the court set the continued hearing for
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May 9. On May 9, the hearing was continued to May 30 due to court congestion. On
May 30, the hearing was rescheduled to June 13 as both the trial judge and Valencia’s
counsel were unavailable.
On June 13, Valencia’s girlfriend Gloria Villagomez testified that they had lived
together for six years until January 2013. Dr. Weilbacher had called her around 10 times,
and Villagomez never told her that Valencia was angry, threatened her (even in play),
was paranoid about the government, or that she did not know how Valencia spent his
money or that he became agitated and upset while discussing finances. She never told the
psychiatrist that he did not have much contact with his family or was aggressive with her.
She never read Dr. Weilbacher’s report.
Valencia testified that while in outpatient care he worked full-time at Goodwill
and then part-time at Dollar Tree. He moved out of the apartment he shared with
Villagomez when he was placed in board and care in December 2012. He had been
overpaid by social security, and the outpatient program helped him fill out forms to
address the overpayment. He had borrowed $600 a month for six months from the
outpatient program to subsidize his rent and was trying to pay that back. Valencia had
talked to his former therapist about his spending in a short period $5,000 he received
from social security, but after he showed all his receipts the therapist had no problem
with it. The court continued further testimony to July 11, 2013 with the consent of
Valencia and his counsel.
On July 11, Valencia resumed his testimony. He explained that had made several
cash withdrawals in one day because he preferred to take out twenties rather than $100
because he didn’t want to carry so much money. He never discussed an unpaid phone
bill with his girlfriend or raised his voice to her, and he had contact with his family “all
the time.” He never gambled, instead giving away a sweatshirt and shoes with what he
thought was the approval of staff, although he knew written approval of his therapist was
required. When he was purportedly AWOL he was actually drinking water in the
bathroom, and he did not hear the page because of freeway noise. On cross-examination
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he denied all the alleged infractions, and did not know why the people who reported them
had done so.
The prosecution then called Dr. Weilbacher, who testified that she worked for the
FCTP outpatient program as a forensic psychologist, and Valencia was on her case load.
She had spoken to his girlfriend on the phone 10 times from mid-November to mid-
December 2012. Villagomez disclosed that after Valencia had lost his job at Goodwill in
April 2012 he became more agitated and stressed, raised his voice, and threw clothing at
her, threatening once that his family would do something to her. Referring to notes of her
conversations with Villagomez, Dr. Weilbacher stated that Villagomez had said Valencia
was still blaming the federal government for his problems. (The court received
Dr. Weilbacher’s notes into evidence.)
Dr. Weilbacher also had been contacted the night in January 2013 when Valencia
was AWOL. She knew that social security had advised Valencia that he had been
overpaid $18,000 by social security and should no longer receive benefits, but
nevertheless he continued to use checks as they arrived, which showed financial
irresponsibility or inability, an issue she considered with all her clients. The five ATM
withdrawals were consistent with his diagnosis of “schizo-effective disorder bipolar
type.” Other residents watching the same football game with Valencia had reported to
the program director that he had gambled with his shoes and his sweatshirt. The facility
needed “strict permission” for Valencia to ride in a car with anyone, requiring
background checks, and Valencia’s ride with the unapproved male driver was another
violation. Valencia’s denial of each of the infractions was consistent with his diagnosis
of narcissistic personality disorder; “he rewrites history in a sense to benefit himself.”
Dr. Wielbacher saw two reasons for concern whether Valencia was a danger to himself or
others; first, his behavior with his girlfriend, which led to his being pulled from the
apartment, and second, his habitual rule violations. Although Valencia was first placed in
the FCTP, “a luxury for most clients,” when he did not conduct himself appropriately at
the satellite facility, revocation was the next step. On an objective measure of
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dangerousness, Valencia remained at a high level with several characteristics of
psychopathic tendency.
The trial court explained that she had on March 14 “preliminarily revoked the
outpatient status with the oral consent of defendant and counsel” and ordered Valencia
confined pending a “hearing pursuant to [section] 1608.” Counsel for Valencia objected
to the lack of notice, pointing out that the January 28 letter was not referenced to either
counsel and stated that another report was forthcoming, making it hard for Valencia’s
counsel to prepare to proceed to a hearing in 15 days. The report itself was nonspecific
and made subpoenas difficult. Counsel also challenged the substance of the report,
especially as to the AWOL, arguing that staff did not search hard enough for Valencia,
and submitted.
The court acknowledged its concern about the 15-day period, the difficulty getting
Valencia into court, and the need for a longer period of time to allow Valencia’s counsel
to subpoena witnesses and have the hearing. “[W]hat is contemplated when it’s a
revocation of outpatient status in the context of a 15-day hearing. And is that a
preliminary hearing based on a report or does it contemplate an evidentiary hearing?
When I hear due process—and I concur—due process means evidence. But what isn’t
terribly clear is what shape does that take?” The timeline had been breached, but the
remedy was not to send Valencia back to outpatient, and counsel had agreed with the
setting of the hearing.
Valencia’s counsel agreed: “I’m still fine with this. But I need to make a record
of objection in case it’s appealed.” The court pointed out “that record was never
made . . . . You never objected to it up front. You are objecting now. It’s untimely now.
That was an objection that could have been made and I didn’t hear that at the time.”
Counsel stated, “I thought when we were discussing it that I was voicing my objection,”
and the court responded, “The record is what it is.”
The court approved the revocation of outpatient status. Valencia had a “fixed
ideology of paranoid ideation” regarding the federal government. The court summarized
the evidence, commented that she observed Valencia’s complete failure to take
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responsibility on the witness stand, and concluded that Valencia would present a danger
to himself or to others while on outpatient status.
This timely appeal followed.
DISCUSSION
I. The section 1608 hearing did not violate due process.
Procedural due process requires notice and a hearing before revocation of
outpatient status. (In re McPherson (1985) 176 Cal. App. 3d 332, 337–338.) Section 1608
provides: “If at any time during the outpatient period, the outpatient treatment supervisor
is of the opinion that the person requires extended inpatient treatment or refuses to accept
further outpatient treatment and supervision, the community program director shall notify
the superior court in . . . the county which approved outpatient status . . . of such opinion
by means of a written request for revocation of outpatient status. . . . [¶] Within 15
judicial days, the court where the request was filed shall hold a hearing and shall either
approve or disprove the request for revocation of outpatient status. If the court approves
the request for revocation, the court shall order that the person be confined in a state
hospital or other treatment facility approved by the community program director. . . .”
The standard of proof for approving a revocation of outpatient status is a preponderance
of the evidence. (People v. DeGuzman (1995) 33 Cal. App. 4th 414, 419.)
Valencia argues that the evidentiary hearing violated his right to due process
because by the time it concluded in July, nearly six months had elapsed since the
February 1, 2013 request for revocation.
As described above, the initial setting of the hearing for February 25 was pursuant
to a February 7 request by the public defender; the sheriff requested a continuance to
February 28; and on February 28, with the agreement of Valencia’s counsel, the hearing
was set for March 14, 2013. At the March 14 hearing, Valencia’s counsel requested a
continuance so that she could subpoena witnesses. It was the trial court who was
concerned about the statute’s provision that the court hold a hearing to approve or
disapprove the request in 15 days. After explaining how the period had elapsed without a
determination due to vacations, transport issues, and counsel’s request for more time, the
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court indicated it was prepared to make a summary ruling, with a later full evidentiary
hearing on the merits. After conferring, Valencia and his counsel agreed to the summary
ruling “without any prejudice to your due process rights . . . to have a hearing on the
actual merits,” and the court approved the revocation of outpatient status.
When the hearing resumed on April 11 (the date requested by Valencia’s counsel),
it began late due to Valencia’s delayed transport from the hospital. Valencia called 10
witnesses, and the court proposed resuming the next day, but Valencia’s counsel
requested two more weeks. On the next date, May 9, the hearing was continued to
May 30 because of court congestion. The trial court and Valencia’s counsel were
unavailable on May 30 and a further rescheduling put the hearing over to June 13. At
that hearing, Valencia’s girlfriend testified, followed by Valencia himself; with the
consent of Valencia and his counsel, the hearing was continued to July 11. On that date,
Valencia completed his testimony, Dr. Weilbacher testified, counsel argued, and the court
approved the revocation.
Valencia does not argue that the failure to hold the full hearing within 15 days was
in itself a due process violation, acknowledging that the statutory period confers “the
right and ability to be heard . . . at some time close to” the revocation of his inpatient
status. Before the enactment of section 1600, the standard was “such a hearing ‘must be
held as soon as is reasonably possible following the patient’s return to the hospital.’” (In
re McPherson, supra, 176 Cal.App.3d at p. 338.) Further, “[w]ith respect to time limit
statutes, the general rule is that ‘requirements relating to the time within which an act
must be done are directory rather than mandatory or jurisdictional, unless a contrary
intent is clearly expressed.’” (People v. Fernandez (1999) 70 Cal. App. 4th 117, 128–
129; see id. at pp. 129–130 [listing statutes with directory deadlines].)
Counsel belatedly objected to the lapse of the 15-day period on the last day of the
evidentiary hearing, hoping to preserve her objection on appeal. As the court stated,
counsel (and Valencia) earlier had expressly agreed to the summary approval pending the
full hearing. Counsel did so to ensure that Valencia could present all his witnesses,
which she had acknowledged would not be possible in fifteen days. It was counsel’s
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effort to obtain the process due to Valencia (and her request for continuance) which
required more time than the statutory period.
Valencia does challenge various other aspects of the “tardy and confused” hearing
as prejudicing him in several ways. Again, the postponement of the hearing was due in
large part to Valencia’s repeated requests for continuances, and it was the court, not
Valencia’s counsel, that was most concerned that counsel’s requests for more time
repeatedly postponed the hearing. Nevertheless, we consider them in turn.
Valencia argues that he was prejudiced when his attorney presented his case first.
This ignores that at the start of both the March 14 and April 11 hearings, the prosecution
submitted on the basis of the January 28 notification and the February 1 request for
revocation. At the April 11 and continued hearings, Valencia presented his witnesses to
challenge the events described in the reports, and Dr. Weilbacher testified in rebuttal
regarding the evaluations she conducted as documented in the (already submitted) request
for revocation.
Valencia contends that his case depended on the trier of fact assessing his
intellectual and emotional state at the time of the events described in the request for
revocation. His demeanor was therefore critical to the trial court’s determination whether
to approve rehospitalization, and he was prejudiced because the court could not observe
his demeanor closer to the time of the infractions described in the request for revocation.
Valencia’s demeanor at the hearing, however, was not the issue. Rather, the question
before the court was whether the revocation of his outpatient status was supported by a
preponderance of the evidence at the time of the February 1 request for revocation, based
on the rule infractions, financial irregularities, conflict with his girlfriend, and other
misconduct described in the request for revocation. Beyond commenting that Valencia
absolutely refused to take responsibility and explained everything away during his
testimony, the court made no comment on his demeanor, and we fail to see how Valencia
would have benefitted had he had an earlier opportunity to deny the contents of the
request for revocation.
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We also reject Valencia’s assertion that because of the delay in the completion of
the hearing, the court was confused whether to review the request for revocation or to
determine what treatment Valencia required at the time of the hearing. The court
expressed repeatedly that the specific issue before it was whether to approve or
disapprove the revocation, and stated on the record it would not consider more recent
reports it had received before the last hearing date.
Finally, Valencia claims prejudice from irrelevant matter admitted at the hearing,
during cross-examination and during direct examination by his own counsel. He did not
object to the testimony on cross-examination (regarding alleged witnesses to the events
detailed in the request for revocation), and his own counsel elicited whether he was
dangerous at the time in the hospital, opening this issue to cross-examination by the
prosecutor. He has waived this claim. (People v. Gonzales and Soliz (2011) 52 Cal. 4th
254, 318.) Further, we do not see how delay caused the admission of the objected-to
testimony.
We find no merit to Valencia’s claim of prejudice.
II. Substantial evidence supports the court’s revocation of outpatient status.
Valencia claims that there was insufficient evidence to support the revocation of
his outpatient status. (See In re McPherson, supra, 176 Cal.App.3d at pp. 341–342.) We
disagree.
The standard of proof is a preponderance of the evidence. (People v. DeGuzman,
supra, 33 Cal.App.4th at p. 419.) The request for revocation detailed Valencia’s
infractions and erratic behavior, and Dr. Weilbacher testified in support of the findings.
Valencia points out that he offered explanations for the behaviors, and his girlfriend
denied having told Dr. Weilbacher about any threat and other behaviors. But the court
was entitled to resolve contradictions in the evidence and to determine the credibility of
the witnesses. Substantial evidence supported the trial court’s revocation of outpatient
status.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
MILLER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
17