People v. Diggs

Filed 6/30/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A162679
v. (Alameda County
MICHAEL DIGGS, Super. Ct. No. 175035)
Defendant and Appellant.
Defendant Michael Diggs appeals from the trial court’s denial of his
petition for conditional release on the ground of restoration of sanity
pursuant to Penal Code section 1026.2.1 We find that the trial court did not
abuse its discretion in denying the petition and that neither defendant’s due
process nor equal protection rights were violated. We therefore affirm.
BACKGROUND
A. The Underlying Offense and Commitment
The commitment offense was for first degree murder. In 2014, Diggs
sold methamphetamine to the victim, went to the victim’s house, and fell
asleep on the couch while the victim smoked the methamphetamine.
According to Diggs, he woke up to find the victim on top of him, unclothed.
This triggered a flashback to sexual abuse Diggs had experienced as a child
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts 2, 3, and 4 of
the Discussion.
All statutory references are to the Penal Code unless otherwise
1
specified.
and he reacted by striking the victim repeatedly with a hatchet, killing him.
Diggs proceeded to pour bleach, Epsom salt, and other products on the victim
to supposedly get rid of evil spirits. Diggs then left the house. At the time of
the offense, Diggs was on parole and had been heavily using
methamphetamine for about 45 days. He continued to use substances after
the offense.
In 2015, Diggs was found not guilty by reason of insanity (NGI) and
was committed to Napa State Hospital (Napa) for a term of 50 years to life.
Diggs was initially diagnosed with schizophrenia and posttraumatic stress
disorder (PTSD). This diagnosis later changed to amphetamine-induced
psychotic disorder, severe methamphetamine use disorder that was in
sustained remission in a controlled environment, and antisocial personality
disorder (ASPD) with narcissistic traits.
In January 2017, two Christmas cards were sent to Diggs at Napa that
contained methamphetamine. Diggs denied having any involvement with
these cards being sent. In June 2019, Diggs tested positive for
methamphetamine following a random drug test. He claimed that the result
was a false positive and that he had been set up. His sample was sent out for
a second confirmatory test that also came back positive. Following this
incident, Diggs refused to participate in any further drug testing or
treatment at Napa. In October 2019, Diggs was transferred to Patton State
Hospital (Patton).
B. Petition for Conditional Release
In December 2020, Diggs filed the subject petition for release into a
conditional release program (CONREP) pursuant to section 1026.2. In March
2021, a hearing on the petition was held. Experts on behalf of both Diggs and
the prosecution testified.
1. Defendant’s Expert
Diggs’ expert was Dr. Michael McCormick, a staff psychologist at
Patton. McCormick began working with Diggs in January 2021 and reviewed
Diggs’ treatment records and police reports. McCormick also ran a relapse
prevention group that Diggs regularly attended twice a week. McCormick
testified that Diggs’ main diagnosis was ASPD with narcissistic traits and a
stimulant use disorder that was in remission in a controlled environment.
According to McCormick, someone with ASPD may exhibit aggressive and
manipulative behavior, lack of empathy, as well as a disregard for rules and
violations. McCormick acknowledged that someone with ASPD could be
dangerous under the standards of section 1026.2 but that he did not see any
evidence that Diggs would be dangerous if released into CONREP.
In support of this opinion, McCormick testified that Diggs was able to
accept feedback from their therapy sessions and implement it into his daily
life. McCormick acknowledged that Diggs’ current diagnosis could
potentially make him dangerous if he were to use substances again but
testified that Diggs had created a Wellness Recovery Action Plan that
mitigated this danger.2 McCormick testified that Diggs expressed an
awareness of his triggers that could potentially lead to substance use again,
his lack of desire to use any substances, and a desire to continue his recovery
treatment once in the community. McCormick believed Diggs had made
advancements in his ability to deal with substance abuse, despite the fact
that he received Christmas cards containing methamphetamine in 2017 and
tested positive for methamphetamine in 2019.
2 A Wellness Recovery Plan is required of all patients at Patton who
seek to be released into CONREP.
2. The Prosecution’s Experts
The prosecution called Dr. Mario Souza, a senior psychologist specialist
in the Forensic Evaluation Department at Patton. In October 2020, Diggs’
treatment team asked Souza to conduct a violence risk assessment and
evaluation of Diggs’ current risk level and whether it was appropriate to
discharge him to the community. Souza then prepared a court report based
on his assessment. In preparing this report, Souza interviewed Diggs for
approximately five hours and reviewed police reports, CONREP placement
recommendations, and Diggs’ treatment records.
Souza diagnosed Diggs with ASPD and amphetamine use disorder.
Souza testified that Diggs had a history of not only criminal behavior, but
also impulsivity, manipulative behavior, and lack of remorse, all of which
were characteristics of ASPD. Souza further testified that Diggs’
methamphetamine use led to significant issues and caused him to experience
psychotic-like symptoms.
Souza employed the Historical Clinical Risk Management – 20 Version
3 (HCR-20) that he described was the “the gold standard of violence risk
assessment.” Of the ten historical factors that the HCR-20 considers,
violence, antisocial behavior, personality disorder, substance use, traumatic
experiences, and violent attitudes were all present and highly relevant for
Diggs. Of the risk management factors, Souza found that Diggs’ future
treatment plans were inadequate, that Diggs would face future problems
with personal support and his living situation, and that he did not have the
adequate coping skills to deal with his maladaptive personality patterns and
stressors in the community. Souza concluded that Patton was the best place
for Diggs for the time being and that he would be able to move to a less
restrictive environment once he engaged in in-depth substance abuse
treatment.
The prosecution also called Janice Avery, an assistant community
director at CONREP. Avery prepared a hospital liaison report in January
2021 that concluded that although Diggs was near readiness, he was not yet
ready to be released to CONREP. Avery testified that Diggs had more
progress to make with respect to gaining insight regarding his substance
abuse Avery was also concerned that Diggs was diagnosed with a substance
use disorder and had possibly used methamphetamine and had
methamphetamine sent to him while he was at Napa.
3. The Trial Court’s Ruling
The trial court denied Diggs’ petition at the conclusion of the hearing.
The court found that Diggs had not carried his burden in showing by a
preponderance of the evidence that he would not be a danger to the
community if released into CONREP.
The trial court stated its concern that “the nature of the offense which
brought Mr. Diggs into the state hospitals as a result of a not guilty by reason
of insanity finding, which was a murder and which occurred, apparently,
because Mr. Diggs was placed in a psychotic state through his use of
methamphetamines.”
The trial court further noted that Diggs had not conquered his
amphetamine use disorder since there were incidents of illegal possession
and use of methamphetamine when he was at Napa. This was of particular
concern to the court because the use of amphetamine, combined with Diggs’
ASPD, “provide[d] the trigger to the very violent activity that we’ve seen.”
Finally, the court stated that Diggs had not “engaged in the meaningful
treatment that is necessary for substance-use disorder to be ready for
[release] at this time.”
Diggs filed a timely notice of appeal.
DISCUSSION
1. Relevant Law and Standard of Review
A defendant found not guilty by reason of insanity (NGI) may petition
the court to be released from a state hospital prior to the expiration of his or
her maximum term of commitment on the grounds of restoration of sanity.
(§ 1026.2.) The petition involves a two-step process. The first step is an
outpatient placement hearing, at which the applicant must prove by a
preponderance of the evidence that he or she will not be “a danger to the
health and safety of others, due to mental defect, disease, or disorder, if
under supervision and treatment in the community.” (§ 1026.2, subds. (e),
(k).) If the court makes this finding, the applicant is “placed with an
appropriate forensic conditional release program for one year.” (§ 1026.2,
subd. (e).)
“The second step in the section 1026.2 release process is referred to as
the restoration of sanity trial, and can only be reached if the applicant has
already met the threshold test for placement in ‘an appropriate forensic
conditional release program.’ ” (People v. Dobson (2008) 161 Cal.App.4th
1422, 1433.) The applicant again bears the burden to prove by a
preponderance of the evidence that he or she will not be a danger due to
mental defect, disease, or disorder. (§ 1026.2, subds. (e), (k).)
The present appeal concerns a petition for outpatient placement under
the first step of section 1026.2. The trial court’s denial of Diggs’ petition is
reviewed for abuse of discretion. (People v. Cross (2005) 127 Cal.App.4th 63,
73.) “The term judicial discretion implies the absence of arbitrary
determination, capricious disposition, or whimsical thinking. [Citation.]
‘When the question on appeal is whether the trial court has abused its
discretion, the showing is insufficient if it presents facts which merely afford
an opportunity for a difference of opinion. An appellate tribunal is not
authorized to substitute its judgment for that of the trial judge. [Citation.]’
[Citation.] Discretion is abused only if the court exceeds all bounds of
reasons, all of the circumstances being considered.” (People v. Henderson
(1986) 187 Cal.App.3d 1263, 1268.)
2. Finding of Danger to the Health and Safety of Others
Diggs contends that the evidence did not support the trial court’s
finding that Diggs would be dangerous if released into CONREP. We
disagree.
As an initial issue, Diggs argues that the term “danger to the health
and safety of others” under section 1026.2 is undefined and should therefore
be read to mean “substantial danger of physical harm to others” as included
under section 1026.5, subdivision (b)(1).3 We decline to do so as we have
already addressed this issue in People v. Woodson (1983) 140 Cal.App.3d 1.
There, we stated that those committed under section 1026 need not “all
represent a substantial danger of physical harm to others or themselves.
Whether they do represent a danger or not, depends on the nature of their
mental disease, defect, or disorder and the underlying crime.” (Id. at p. 4.)
Accordingly, we held that “[t]here is no requirement that there be a threat of
physical harm to others for commitment under section 1026; and it should
not be engrafted onto section 1026.2.” (Ibid.)
Turning to the merits, the trial court did not abuse its discretion in
finding that Diggs would be a danger to the health and safety of others if
released into CONREP. There was substantial evidence to support the
court’s finding. As noted at the hearing, this case presented a “battle of the
experts” to the trial court. While Diggs’ expert McCormick testified that
3 Section 1026.5 sets forth the procedure for extending the commitment
of a person found NGI beyond his or her maximum term of commitment.
Diggs would not be a danger if released into CONREP, Souza, the
prosecution’s expert, disagreed and found that based on his assessment,
Diggs “continues to be a danger to others as a result of his severe mental
disorder.” In support of this opinion, Souza explained that Diggs had yet to
have adequate insight into the factors that drove his violence, had yet to
accept his diagnosis of ASPD, and had yet to engage in substance abuse
treatment despite testing positive for methamphetamine in 2019. On the
other hand, McCormick believed that Diggs could adequately deal with his
substance abuse despite the positive test and the incident with the Christmas
cards. Simply put, the experts disagreed as to whether Diggs posed a danger
if conditionally released.
The trial court did not by any means act capriciously or arbitrarily in
finding that Diggs posed a danger based on Souza’s testimony. (People v.
Henderson, supra, 187 Cal.App.3d at p. 1268.) Souza is a senior forensic
psychologist who received specialized training in risk assessment. He
interviewed Diggs for approximately five hours and reviewed Diggs’
treatment records from both Napa and Patton, police reports, and CONREP
placement recommendations records. As part of the interview, Souza
employed the HCR-20, the “gold standard” of violence risk assessment that
has shown to be predictive across different populations. In addition, Avery,
an assistant director at CONREP, testified that Diggs was not ready to be
released into CONREP.
Given the above, the trial court reasonably concluded that Diggs was
not ready to be released into the community based on the violent nature of
his offense, his current diagnoses of ASPD and an amphetamine-use disorder,
and lack of meaningful treatment to address his substance abuse disorder.
3. Finding of Mental Defect, Disease, or Disorder
Diggs next contends the trial court abused its discretion in finding that
he suffered from a mental defect, disease, or disorder based on his diagnosis
of ASPD. We disagree.
We first note that in denying the petition, the trial court specifically
stated that its decision was based on the combination of Diggs’ ASPD and
amphetamine use disorder. Diggs does not argue that an amphetamine use
disorder is not a mental defect, disease, or disorder for purposes of continued
commitment under section 1026.2.
Diggs relies primarily on Foucha v. Louisiana (1992) 504 U.S. 71(Foucha) to support his argument that ASPD does not constitute a “mental
defect, disease, or disorder” under section 1026.2. There, the high court held
that a person committed based on NGI “may be held as long as he is both
mentally ill and dangerous, but no longer.” (Id. at p. 77.) The high court
found that Foucha’s continued commitment was improper where the
testimony before the trial court showed that Foucha did not currently suffer
from a mental disease or illness and the only argument for continued
commitment was that his antisocial personality rendered him a danger to
himself and others.4 (Id. at pp. 77–79.)
In People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, the
Second District clarified that “in Foucha, ‘the State [did] not claim that
Foucha [was] now mentally ill’ [citation], only that he had an ‘antisocial
personality.’ [Citation.] Therefore, Foucha does not address whether a
diagnosis of antisocial personality disorder may constitute a mental disorder
4 At the hearing in Foucha, one of the doctors appointed to conduct a
pretrial examination testified that an antisocial personality is “a condition
that is not a mental disease and that is untreatable.” (Foucha, supra, 504
U.S. at p. 75.)
for purposes of an extended commitment.” (Id. at p. 213.) The court went on
to hold that whether the defendant suffered from a mental disease, disorder
or defect was “not a question of law, but rather one for the trier of fact to be
resolved with the assistance of expert testimony.” (Ibid.)
We agree with the above reasoning and do not interpret Foucha as
holding that ASPD cannot as a matter of law be a mental disease, disorder, or
defect for purposes of section 1026.2. As Diggs himself notes in his briefing,
mental health is fluid and diagnoses may change over time with a better
understanding of the illness and the patient being treated.
Whether a defendant suffers from a mental illness is a question most
appropriately left for medical experts to address and for the trier of fact to
ultimately decide. In this case, experts on both sides diagnosed Diggs with
ASPD and amphetamine use disorder. Souza testified that Diggs’ diagnosis
of ASPD was manifested in his history of impulsivity, manipulative behavior,
and lack of remorse or empathy. McCormick testified that someone with
ASPD may exhibit aggressive and manipulative behavior, lack of empathy,
and disregard for rules.
This testimony supported the trial court’s implicit finding that Diggs
suffered from a mental defect, disease, or disorder that rendered him
considered by the trial court in addition to Diggs’ amphetamine-use disorder,
to determine that Diggs posed a danger if released into CONREP. Further,
in any event, the trial court relied primarily on Diggs’ amphetamine use
disorder, with his ASPD taken into consideration, in denying his petition for
release under section 1026.2.
4. Due Process
Diggs contends that his right to due process was violated because the
trial court, in denying his petition, required that he engage in a substance
abuse treatment program that has been shut down due to the pandemic. We
are not persuaded.
The People first argue that this claim is not ripe for review because
Diggs was ordered to engage in future treatment before bringing another
section 1026.2 petition, and that Diggs had not yet suffered any cognizable
harm. We disagree. At the hearing, the trial court stated that it did not
think that Diggs had “engaged in the meaningful treatment that is necessary
for substance-use disorder to be ready for [release] at this time.” Diggs then
raised a concern that the treatment program has been shut down with no
indication of reopening, and the court responded that it shared Diggs’
frustration regarding the limitations caused by the pandemic and that it
hoped conditions would improve so that he could participate in the program.
Since one of the court’s reasons in denying the subject petition was that Diggs
had not engaged in intensive treatment (in the past), we find that his claim is
ripe for review and turn to the merits.
First, we disagree with Diggs’ contention that he has had no access to
treatment through no fault of his own. In 2019, Diggs received treatment
within the intensive substance recovery unit at Napa. After testing positive
for methamphetamine, he refused to continue treatment or submit to any
further drug testing. When Diggs was transferred to Patton, he interviewed
to be admitted into its substance abuse recovery program but was not
accepted. The reason is unknown, but Souza testified that this generally
occurs when a patient is not deemed ready to engage in intensive treatment,
such as where a patient tests positive but denies any drug use or drug
problem.
Second, we do not find that Diggs’ inability to participate in intensive
substance abuse treatment due to COVID-19 constitutes a violation of his
due process. The concept of due process is not absolute, and “the extent to
which due process will be available depends on a careful and clearly
articulated balancing of the interests at stake in each context. (People v.
Ramirez (1979) 25 Cal.3d 260, 269.) The COVID-19 pandemic was an
unprecedented global event that resulted in emergency orders and
suspension of services across the country. In balancing a criminal
defendant’s right to a fair and speedy trial with the health and safety of
jurors and staff during this time, courts have held that the pandemic
provided good cause for trial continuances. (See People v. Breceda (2022) 76
Cal.App.5th 71, 92; Stanley v. Superior Court of Contra Costa County (2020)
50 Cal.App.5th 164, 169.) Simply put, “[p]ublic health concerns trump the
right to a speedy trial.” (People v. Tucker (2011) 196 Cal.App.4th 1313, 1314.)
Here, due to COVID restrictions, Patton had to limit various services it
previously provided to patients due to limitations regarding the number of
patients who could be in a certain area at any given time. One such service
that was suspended was the Recovery Lifestyle Program, an intensive
substance abuse program Patton had offered. Despite this, Patton still
offered group substance recovery treatment at least once every two weeks
that Diggs attended. Given these limitations and the competing interest in
maintaining the health and safety of both hospital staff and patients at
Patton, we do not find that there has been a violation of Diggs’ right to due
process.
5. Equal Protection
Lastly, Diggs argues that it is a violation of equal protection to allow
continued commitment of NGIs based on a diagnosis of ASPD when this
diagnosis is insufficient to support the continued commitment of a similarly
situated group, mentally disordered offenders (MDO). Diggs initially frames
the issue broadly as whether it is constitutional for continued commitments
for MDOs to be tied to the mental disorder underlying their initial
commitments while continued commitments for NGIs are not. In his reply
brief, Diggs narrows the issue and argues that “[t]he focus is not on all
changes to a committed person’s mental state but on resolution of the
commitment disorder such that ASPD is the basis for continuing
commitment.” Our analysis accordingly, will focus on the issue of ASPD
under these two commitment schemes.5
As both parties point out, the subject claim was not raised before the
trial court. The People argue that this claim has been forfeited as a result.
Although an equal protection claim may be forfeited if raised for the first
time on appeal, we will exercise our discretion and consider the claim. (See
People v. Dunley (2016) 247 Cal.App.4th 1438, 1447.)
A. Similarly Situated
“The constitutional guaranty of equal protection of the laws means
simply that persons similarly situated with respect to the purpose of the law
must be similarly treated under the law. [Citations.] If persons are not
similarly situated for purposes of the law, an equal protection claim fails at
the threshold. [Citation.] The question is not whether persons are similarly
situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” (People v. Buffington (1999) 74 Cal.App.4th
1149, 1155 (Buffington).)
Diggs argues that NGIs and MDOs are similarly situated for purposes
of their continued commitment schemes. Diggs relies primarily on People v.
McKee (2010) 47 Cal.4th 1172. There, our Supreme Court considered an
5 Under the MDO scheme, a prerequisite to commitment and continued
commitment is the finding of a “severe mental health disorder.” (§§ 2962,
subd. (a)(2); 2972, subd. (c).) Under section 2962, subdivision (a)(2), “severe
mental health disorder” excludes a personality disorder.
equal protection challenge with respect to a law that allowed for
indeterminate commitments of sexually violent predators (SVP). (Id. at
p. 1196.) The court held that SVPs were similarly situated to MDOs in that
both commitment schemes aimed to protect the public from dangerous
offenders with mental disorders while providing treatment to them. (Id. at
p. 1203.) The court went onto hold that SVPs and NGIs were similarly
situated for these same reasons. (Id. at p. 1207.)
We acknowledge that the schemes underlying the initial commitments
of NGIs and MDOs differ in several respects. For example, “[a]n [NGI]
acquittee has raised his mental illness as a defense to his criminal conduct
and there has been an adjudication that he committed a criminal act and was
legally insane when he did so.” (People v. Wilder (1995) 33 Cal.App.4th 90,
105.) By contrast, for a MDO, commitment can be ordered as a condition of a
prisoner’s parole if it is shown that the prisoner, among other requirements,
has a severe mental disorder that caused or was an aggravating factor in the
commission of the offense. (§ 2962, subd. (b).)
In terms of continuing their commitments, the burden of proof as well
as the party who bears this burden differ for NGIs and MDOs. Under the
NGI scheme, an applicant who seeks early release must prove by a
preponderance of the evidence that he or she would not be “a danger to the
health and safety of others, due to mental defect, disease, or disorder, if
under supervision and treatment in the community.” (§ 1026.2, subds. (e),
(k).) Under the MDO scheme, the burden is on the prosecution to prove
beyond a reasonable doubt that the offender has a severe mental disorder
that causes him to be a substantial danger of physical harm to others in order
to justify extended commitment. (§ 2972.)
Despite the differences, we find that NGIs and MDOs are similarly
situated for purposes of the law in question because under both schemes,
continued commitment is only warranted if the person has a current mental
disorder that renders him or her a danger if released. These two groups need
not share identical characteristics in order for us to find them similarly
situated. (People v. McKee, supra, 47 Cal.4th at p. 1203.)
B. Similar Treatment
If two groups are found to be similarly situated, the next question
under equal protection analysis is whether they are similarly treated under
the law. (Buffington, supra, 74 Cal.App.4th at p. 1155.) “A legislature may
distinguish between persons or groups in passing legislation.” (Ibid.) “Strict
scrutiny is the correct standard of review in California for disparate
involuntary civil commitment schemes because liberty is a fundamental
interest.” (Id. at p. 1156.) Under this standard, disparate treatment is
upheld only if it furthers a compelling state interest. (Ibid.) “There is
certainly a compelling state interest in identifying, confining, and treating
persons who represent a danger to the health and safety of others. . . .”
(People v. Hubbart (2001) 88 Cal.App.4th 1202, 1231 (Hubbart).)
The question of whether equal protection requires that personality
disorders be excluded from an involuntary commitment scheme by virtue of
their exclusion under the MDO commitment scheme has been addressed by
other courts. In Buffington, the Third Appellate District held that “[e]qual
protection does not require that ‘personality or adjustment disorders’ be
excluded from the SVP mental disorder standard simply because they are
excluded from the MDO standard.” (Buffington, supra, 75 Cal.App.4th at
p. 1158.) The court found that SVPs and MDOs are similarly situated and
similarly treated “because the triggering mental disorder is defined as a
current and recognized mental condition rendering those committed
dangerous beyond their control.” (Ibid.)
In Hubbart, the Sixth Appellate District similarly found no equal
protection violation merely because personality disorders are excluded from
the MDO scheme but not under the SVP scheme. (Hubbart, supra,
88 Cal.App.4th at p. 1218.) “[T]he terms used to describe the degree of
mental disorder required for civil commitment carry no ‘talismanic
significance.’ ” (Ibid., citing Kansas v. Hendricks (1997) 521 U.S. 346, 359.)
Under both schemes, a committed person is required to have a mental
disorder that renders the person a danger to others. “While phrased
differently, the two schemes set forth similar standards for the mental
disorder necessary for commitment. The two schemes do not treat the
committed person differently for purposes of defining the requisite mental
disorder.” (Hubbart, supra, 88 Cal.App.4th at pp. 1218–1219.)
We agree with the above reasoning and do not find that there has been
a violation of equal protection on the grounds that personality disorders like
ASPD are excluded under the MDO scheme for continued commitment but
not under the NGI scheme. Once committed, the two groups are treated
similarly as their continued commitment is tied to a showing that they suffer
from a current mental disorder that renders them a danger to others.
(§§ 1026.2, subd. (e), 2972, subd. (c).)
DISPOSITION
The trial court’s order denying defendant’s petition under section
1026.2 petition is affirmed.
NADLER, J.*
WE CONCUR:
POLLAK, P. J.
STREETER, J.
* Judge of the Sonoma County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Alameda County Superior Court
Trial Judge: Honorable Allan D. Hymer
Counsel for Defendant and Julia Freis, under appointment of the Court of Appeal
Appellant:
Counsel for Plaintiff and Rob Bonta, Attorney General of California
Respondent: Lance E. Winters, Chief Assistant Attorney General
Charles C. Ragland, Senior Assistant Attorney General
Melissa Mandel, Supervising Deputy Attorney General
Teresa Torreblanca and Christen Somerville, Deputy
Attorneys General