Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 46552MH
NICHOLSON, Acting P.J.
Defendant Jeffrey Allen Boley appeals after a bench trial extending his mental health commitment. (Pen. Code, § 1026.5, subd. (b)(1).) He contends the trial court was required to but failed to find he has a serious difficulty controlling his dangerous or violent behavior and there was no substantial evidence to support such a finding. We modify the commitment order and affirm.
Further statutory references are to the Penal Code.
BACKGROUND
Defendant was initially committed in 1992 after being found not guilty of arson by reason of insanity. His maximum term expired on May 12, 1998, but has been extended since then pursuant to section 1026.5, with the most recent extension to expire on May 11, 2006.
A petition to extend his commitment was filed on January 25, 2006. Defendant waived his right to a jury trial, stipulated to the doctors’ qualifications, submitted on the doctors’ reports, and testified on his own behalf. The trial took place on May 5, 2006. The facts adduced at trial follow.
Dr. Jeffery Zwerin’s Report
A case summary dated September 13, 2005, signed by Drs. Zwerin, Aqeel and Giovanni, stated defendant had been diagnosed with schizoaffective disorder, depressive type, and polysubstance abuse for hallucinogens and alcohol. Defendant was reported to be taking a variety of psychotropic medications and was scheduled to attend several treatment groups, including Anger Management, Substance Abuse Focused Education, Addiction Awareness, Alcoholics Anonymous, and Narcotics Anonymous. The report identified the focus of treatment for defendant is “to assist him in identifying and understanding the relationship between his mental illness, substance abuse problems, and his potential for assaultive behaviors,” as well as to assist him in developing a plan for relapse prevention.
The summary stated that defendant has “declined in his involvement in treatment in the past few months. He is not as diligent in attending his required groups and has therefore lost his ground card when he hasn’t attended his groups. . . . He has been working with the social worker on development of a relapse prevention plan, but has not consistently shown interest in completing it. He does not appear to feel that he has a mental illness or that he needs medication for his illness. He has frequently asked me to try to get him off of all his medications. He also continues to minimize his crime. He is compliant with his medications, but frequently states he should be taken off the medications, because he has been on them for many years.”
The report further stated: “[Defendant] has a history of assaultive behavior when his needs are not immediately met. On September 11, 2005, he became very angry and agitated, and he picked up a chair and threw it. He has received PRN Ativan and Haldol on a regular basis several times a week in the past year. Although [defendant] has made some progress over the past year, the treatment team believes that he continues to suffer from a mental illness. He has poor impulse control and becomes angry and agitated easily. Therefore, he continues to be at risk for assaultive behavior, and is a danger to others, if released to the community, due to his mental illness. [¶] Therefore, it is our opinion that [defendant], by reason of a mental disease, defect, or disorder, represents a substantial danger of physical harm to others if his PC 1026 commitment is not extended.
Dr. Captane Thomson’s Report
In a report dated March 22, 2006, Thomson stated that defendant had been diagnosed with “‘schizoaffective disorder, paranoid type.’” Defendant had recently had his hospital privileges reduced from Level 3 to Level 2 “because of fights and arguments with other guys.” Defendant had assaulted a fellow patient two months earlier for failing to pay money after defendant allegedly sold him some soup.
The report stated: “He has not consistently shown interest in completing his relapse prevention program with a social worker. He does not appear to feel that he has a mental illness or that he needs medications for this illness and has frequently asked to be taken off all of his medications. He continues to minimize his crime. He has a history of assaultive behavior when his needs are not immediately met. On September 11, 2005 he became very angry and agitated and picked up a chair and threw it. His treatment team believes that he continues to suffer from a mental illness, has poor impulse control, and becomes angry and agitated easily. He continues to be at risk for assaultive behavior and is a danger to others, if released to the community due to his mental illness.”
Defendant’s Testimony
Defendant testified that he was recently returned to Level 3 on April 7, 2006. He acknowledged that he had “some fights or assaults a couple of months prior to March 22nd” but that he now had “four months of real good time until now, no fights or nothing, or outbursts, or fights.” He is taking his medications regularly and was participating in sports and trying to get a job. He said he does not anger easily, explaining that he’s “been working on it.” He figures it is not worth it anymore if he wants to be released.
When asked if he had gotten into fights the previous year, defendant responded: “Yeah, I’ve gotten in a few fights in a period of time. I attacked them, and that’s what’s holding me back is my fighting. If I could just quit that I could get out, 100%. I have a lady, Conner, and she said, be assault free for at least six months and then she’ll talk to me about COT.”
Defendant was likely referring to “conditional outpatient treatment.”
Trial Court’s Ruling
The trial court granted the petition and found that “by reason of mental disease or disorder [defendant] continues at present to represent a substantial danger to others.” The court told defendant, “It sounds like . . . if you can get some significance [sic] time without any of these fights that the institution is going to give you a shot at maybe independent living . . . .” Defendant replied, “I know, right. Well, first the Conrep [condition release program]. But I talked to a lot of guys in the hospital and they said, you know, told me what to do, main thing is don’t use drugs and alcohol, because they urine test you every week.” The court added, “And work on your anger.”
The court then extended defendant’s commitment to May, 4, 2008 -- two years from the trial date.
DISCUSSION
I
Under section 1026.5, subdivision (b)(1), “[a] person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” If the factfinder finds the patient “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others,” the patient will be recommitted for an additional period of two years from the date of termination of the previous commitment. (§ 1026.5, subds. (b)(1) & (b)(8).)
Defendant contends the trial court was required to find that he has serious difficulty controlling his dangerous or violent behavior and there is no substantial evidence that would support such a finding.
In In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), the California Supreme Court addressed whether the statutory scheme for “the civil commitment of a person at the time he would otherwise be discharged by statute from a Youth Authority commitment” (former Welf. & Inst. Code, § 1800 et seq.) “violate[d] due process because it d[id] not expressly require a finding that the person’s mental deficiency, disorder, or abnormality cause[d] serious difficulty in controlling [dangerous] behavior.” (Howard N., supra, 35 Cal.4th at p. 122, fn. omitted.) The court concluded “the extended detention scheme should be interpreted to contain such a requirement in order to preserve its constitutionality” and that the defendant in that case was entitled to a new commitment proceeding “because the jury was not instructed on this requirement.” (Ibid.)
In People v. Galindo (2006) 142 Cal.App.4th 531 (Galindo), this court applied the holding of Howard N. and held that a volitional element must be read into the test for recommitment in section 1026.5, subdivision (b), to make the statute comport with general due process principles regarding civil commitments. Thus, section 1026.5, subdivision (b), requires proof that “a person under commitment has serious difficulty in controlling dangerous behavior.” (Galindo, supra, at p. 533.)
“‘“Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt. [Citations.]” [Citation.]’ [Citation.] A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.)
Here, Dr. Jeffery Zwerin’s report stated defendant had declined in his treatment, has a history of assaultive behavior when his needs are not immediately met, and has poor impulse control and becomes angry and agitated easily. Dr. Zwerin opined that, “[t]herefore, [defendant] continues to be at risk for assaultive behavior, and is a danger to others, if released in to the community, due to his mental illness.” (Italics added.) Dr. Captane Thomson agreed that defendant has a history of assaultive behavior when his needs are not immediately met, has poor impulse control and becomes angry and agitated easily. Both doctors gave an example of an instance when defendant became angry and agitated and, as a result, picked up a chair and threw it. Dr. Thomson agreed that defendant continues to be at risk for assaultive behavior and is a danger to others, due to his mental illness.
These opinions clearly establish that defendant’s mental illness causes him to have serious difficulty controlling his assaultive and dangerous behavior.
Defendant’s own testimony buttresses this conclusion. Defendant acknowledged that he had “some fights or assaults” only a few months before trial. He also said he has been working on his anger and, although he claimed to be successful, he admitted he had attacked a few people over the past year and “[i]f [he] could just quit that,” he could get out of the facility. He explained that he was trying to go six months without an assault so he could be released to an outpatient program. Defendant’s explanation of his behavior and efforts at attaining self-control confirms that defendant has been unable, rather than simply unwilling, to control his assaultive behavior. (Cf. Galindo, supra, 142 Cal.App.4th at p. 539.)
Considering defendant’s history and testimony, along with the reports of Drs. Zwerin and Thomson, the evidence established that defendant has been unable to control his violent, assaultive behavior and continues to present a substantial danger to others should he be released. Thus, defendant’s claim there was no substantial evidence to support such a finding fails.
Defendant also suggests the trial court erred in failing to make the express finding that he had serious difficulty controlling his potentially dangerous behavior.
The trial court found by reason of defendant’s mental defect or disorder, he continued to present a substantial danger to others. In making its ruling, the trial court explained to defendant that if he could get some significant time without any fights, he could be released to independent living and further told defendant to work on his anger. In making its ruling, the trial court did not expressly state that it found defendant had serious difficulty controlling his potentially dangerous behavior.
Assuming for the sake of argument that the trial court was required to make an express finding that defendant had serious difficulty controlling his potentially dangerous behavior and its failure to do so constituted error, we conclude that based on the evidence presented, no rational trier of fact “‘“could have failed to find [defendant] harbored a mental disorder that made it seriously difficult for [him] to control”’” his potential dangerous behavior. (See People v. Bowers, supra, 145 Cal.App.4th at p. 879; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1166, fn. 9.) Thus, any error was harmless beyond a reasonable doubt. (People v. Bowers, supra, 145 Cal.App.4th at p. 879.)
II
Respondent notes that the trial court erroneously extended defendant’s commitment to May 4, 2008 -- two years from the trial date. Section 1026.5, subdivision (b)(8), specifies that a two-year extension commitment shall run “from the date of termination of the previous commitment.” Defendant’s previous commitment did not expire until May 11, 2006. Accordingly, the recommitment order should properly extend defendant’s commitment to May 11, 2008.
DISPOSITION
The judgment is modified to extend defendant’s commitment to May 11, 2008. As modified, the judgment is affirmed.
We concur: RAYE, J., ROBIE, J.