Opinion
H046751
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC DEWAYNE BOLTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS090856 )
Defendant Cedric Dewayne Bolton appeals from the denial of his petition for placement into a conditional release program. Defendant argues that the trial court had no authority to vacate its initial order placing him in a conditional release program. He also contends that, in subsequently denying his petition for conditional release placement, the trial court misapplied the applicable law and issued an order that was not supported by the evidence. We find no reversible error and affirm.
I. Background
In 2009, defendant was charged by information with three counts of battery by a prisoner on a nonconfined person (Penal Code, § 4501.5), and it was further alleged that he had suffered a strike prior (§ 1170.12, subd. (c)). He pleaded not guilty by reason of insanity and waived his right to a jury trial. At the guilt phase, the court found him guilty of all three counts and found the allegation true. At the sanity phase, the court found that defendant was insane when he committed the offenses. Defendant was committed under section 1026 to the Department of State Hospitals, "Atascadero State Hospital or other designated hospital," for care and treatment. The court set defendant's maximum term of commitment at 12 years.
All subsequent references are to the Penal Code.
In September 2017, defendant filed with the trial court a section 1026.2 petition for transfer to outpatient treatment. In a responsive filing, the prosecution acknowledged that defendant was entitled to a determination of his suitability for outpatient supervision. The court directed Atascadero State Hospital to report on defendant's suitability for conditional release for outpatient treatment.
Defendant had filed two prior section 1026.2 petitions, in 2011 and 2013, which were denied after hearings.
In April 2018, Atascadero State Hospital filed a report recommending that defendant be granted conditional release for outpatient treatment. The report stated, in relevant part: "Due to a mental defect, disease, or disorder, [defendant] continues to be a danger to the health and safety of others if released to the community without supervision. However, in the opinion of the undersigned, and the patient's treatment team, [defendant] would no longer be a danger to the health and safety of others while under supervision and treatment in the community, and will benefit from that status. Therefore, the recommendation is to retain and treat until he is accepted into the Conditional Release Program (CONREP) or is ordered to CONREP by the Superior Court."
In May 2018, the parties stipulated to submitting the matter based on the Atascadero State Hospital report. The trial court then granted defendant's petition for transfer to outpatient treatment: "All right. So under [section] 1026.2(e), the Court will order that the defendant be placed with an appropriate forensic conditional release program for the period of one year. All or a substantial portion of the program must include out-patient supervision and treatment. The Court will retain jurisdiction. At the end of the year the Court will have a trial to determine if sanity has been restored." After the prosecution noted that "[t]here is an option that [the conditional release] can be extended," the court added: "And it can be extended depending. [¶] We'll transmit that to the hospital."
In September 2018, Gateways CONREP filed a report with the trial court. The report was based on defendant's available records and a video interview that the Gateways CONREP program director conducted with defendant "for the purpose of preparing his CONREP treatment team for his arrival, and to inform treatment and supervision planning." After detailing defendant's history, his interview, and the interviewer's impressions, the report concluded: "[I]t is the opinion of Gateways CONREP that [defendant] remains a danger to the health and safety of others and, therefore, should be retained and treated at the state hospital. As such, we respectfully request the court rescind the May 5, 2018 order to place [defendant] in the community under the auspices of Gateways CONREP. [¶] However, should the court continue to direct [defendant's] placement in Gateways CONREP pursuant to [section] 1026.2, he will be placed at the Gateways Satellite facility, a 24-hour supervised residential setting that provides the highest level of supervision, treatment, and structure available at Gateways CONREP." (Underlining omitted.)
In October 2018, based on the Gateways CONREP report, the prosecution filed a petition pursuant to sections 1608 and 1609 to terminate defendant's outpatient status. Citing People v. Parker (2014) 231 Cal.App.4th 1423 (Parker), the prosecution argued that it could request revocation of defendant's outpatient status even before he had been placed in an outpatient program. The prosecution later filed additional authorities. Relying on People v. Wymer (1987) 192 Cal.App.3d 508 (Wymer) and People v. Sword (1994) 29 Cal.App.4th 614 (Sword), the prosecution argued that under section 1603, outpatient status can be granted " 'only if the court receives advisements from both the hospital director and [the outpatient facility] program director that the defendant is ready to be considered for an outpatient program.' " Accordingly, the prosecution requested "that the Court consider Gateways CONREP's report as the report required under the provisions of [section] 1603, and set the matter for hearing under the provisions of [section] 1603." It continued: "Should the Court deny the People's request for a rehearing on the amenability of [defendant] for treatment under [section] 1603, the People request that the Court utilize the 9/11/18 report from Gateways CONREP as a request to terminate [defendant's] outpatient status under [section] 1608."
In November 2018, Atascadero State Hospital filed a progress report (§ 1026, subd. (f)) with the court. In pertinent part, the report stated: "Due to a mental defect, disease, or disorder, [defendant] continues to be a danger to the health and safety of others." The report concluded: "[T]he recommendation is retain and treat until accepted into the CONREP. Alternatively, if [defendant] is not accepted into CONREP, the recommendation is to retain and treat until the maximum commitment date."
Defendant filed opposition to the prosecution's request to proceed under section 1603. Defendant argued that the section 1026.2 procedures for outpatient release did not require application of section 1603, that the court had already followed the procedures of section 1026.2, and that the court had already validly ordered defendant into outpatient treatment. Defendant contended that because the order committing him to the conditional release program was valid, the court could not revoke it without holding an evidentiary hearing under section 1609.
The prosecution filed a reply to defendant's opposition, contending in relevant part that: (1) section 1600 et seq. sets forth the procedures a court must use to determine whether a person committed to a state hospital under section 1026 is granted conditional release for outpatient treatment; and (2) section 1603 specifically applies to the question of whether the court should grant conditional release under section 1026.2.
In December 2018, the court held a hearing on the prosecution's petition. Defense counsel addressed the authorities cited by the prosecution and argued that those cases were inapplicable. Defense counsel acknowledged that he "underst[ood] the prosecution's argument" with respect to Parker and that "in this kind of situation, either a [section] 1609 or 1608 proceeding can be conducted." He maintained that a section 1609 hearing was "a bit more desirable in this case . . . ." The prosecution responded that "if we go under [section] 1608 I think it will be sort of like just a regular hearing. [¶] I think it's just a more informal process." The prosecution reiterated that it thought there had been "a change in the circumstances . . . because of the most recent report from the hospital which indicates that they're now taking the position that he should be retained and treated."
At the end of the hearing, the trial court ruled as follows: "All right. So after reading all the pleadings and the cases the Court's order from May . . . 2018 releasing the defendant into the community under [section] 1026.2(e) I think is invalid, so that order is rescinded or vacated, whatever the appropriate term is." The court then determined that "the procedures of [section] 1603 are appropriate. So the court is going to set a hearing pursuant to [section] 1603."
The prosecution subsequently filed a "Supplemental Points and Authorities Regarding Motion per P.C. § 1600 et. seq." In it, the prosecution argued that without reports favorable to defendant's placement in outpatient treatment from both Atascadero State Hospital and Gateways CONREP, the court should deny defendant's section 1026.2 petition without a hearing. The prosecution asserted that favorable reports from both entities were " 'prerequisites to obtaining a hearing.' " The prosecution further contended that if such a hearing took place, defendant would have the burden to prove suitability for outpatient release " 'by a preponderance of the evidence,' " and that the court could take into consideration the " 'circumstances and nature of the criminal offense leading to commitment and . . . the person's prior criminal history', when it makes its decision regarding outpatient treatment." However, because "the prerequisites to a hearing have not been met," the prosecution argued that "defendant should be returned to the state hospital for further treatment without the benefit of any hearing."
In March 2019, the court conducted a new hearing on defendant's petition for conditional release. The court stated that "the issues before the Court . . . are, A, whether the court should order a hearing; and, B, if the Court does order a hearing whether the burden has been met by the defense." Defense counsel stipulated that if the court were to grant a hearing, he and the prosecution had agreed to "submit on the reports," meaning the two Atascadero State Hospital reports and the Gateways CONREP report. The court then stated that defense counsel could "argue as to both matters, since we're submitting on the reports and not having a full hearing, I think just combining the issues."
Defense counsel proceeded to argue that the lack of positive reports was not a bar to a hearing under section 1603, and that ultimately the court "gets to make the determination itself" as to whether defendant should be granted conditional release. Defense counsel then argued that based on a close examination of all the reports, defendant should be granted conditional release. The prosecution responded: "I think the law is fairly clear with regard to whether [defendant] is entitled to a hearing. I will submit it on my statements before." The prosecution further stated: "With regards to if we go to a hearing, and I take it we are at this particular point in time, it would appear to me that I think both the hospital and Con Rep are indicating to the Court that [defendant] is making some progress, but he hasn't reached that point in time where they can actually say that he's still not a danger to himself or others. [¶] I think that's very explicit in both the hospital's recommendation and also Con Rep's. And I think that's the main focus that the Court should consider with regard to this case. And I would submit it."
The court proceeded to rule as follows: "So procedurally what the Court has done is basically combined [sic] the issues so the record is clear. [¶] As to the first issue as to whether or not there is or whether or not the defendant is entitled to a hearing, I am convinced by the argument of the [prosecution] that . . . there should be two reports, both from the state and the community program director supporting that before the Court can even order a hearing. [¶] I think that's correct. Based on the reports provided I don't believe that there is [sic] two positive reports. There is no concurrence between the two agencies to support the ordering of the hearing. So the Court would deny a hearing. [¶] But because of the nature of today's proceeding the Court has sort of encouraged a combined effort given that the parties intended on submitting on the reports. So I have heard the hearing anyhow. [¶] So if the Court were to have held a hearing or if the Court were to have heard the evidence that was presented today beyond what -- not beyond, but based on what was presented today, if the Court were to rule on a hearing, the Court would find that the defense has not met their burden by [sic] proof by a preponderance of the evidence that the defendant is no longer a danger to the health and safety of others. [¶] Both of the reports, both of the agencies recommend retaining and treating. Both find him to be a danger. I don't believe that there is a preponderance of the evidence that he's not. [¶] It does seem to be that there is progress and that's encouraging. But at this time the Court is denying the request for outpatient treatment."
II. Discussion
A. Applicable Law
1. Section 1026.2
Under section 1026.2, a defendant who has been found not guilty by reason of insanity and committed to the state hospital may petition for restoration of sanity. (People v. Tilbury (1991) 54 Cal.3d 56, 60.) "Release under section 1026.2 is a two-step process: conditional release to an outpatient treatment program for a trial period [of at least one year] and, if successful, unconditional release into the community." (People v. Endsley (2016) 248 Cal.App.4th 110, 114.)
"The first step in the release process requires the defendant, who has filed a release application, to demonstrate at a hearing that he or she will not 'be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community.' (§ 1026.2, [subd.] (e).) If the court finds such at the hearing, the defendant is then placed in 'an appropriate forensic conditional release program for one year.' (§ 1026.2, [subd.] (e).) This is commonly called the outpatient placement hearing." (People v. Soiu (2003) 106 Cal.App.4th 1191, 1196.)
With regard to the first step, either the defendant or the person in charge of the facility in which he is confined may file an application for conditional release. (§ 1026.2, subd. (a).) Section 1026.2, subdivision (e) provides that, upon receipt of such a petition, "[t]he court shall hold a hearing" to determine whether the defendant would be a danger to others while on conditional release for outpatient treatment. "Pending the hearing," the person in charge of the defendant's treatment must prepare a summary of the defendant's treatment programs and forward it to the community program director and the court. (§ 1026.2, subd. (b).) Also pending the hearing, the community program director must identify for the court a facility "within a reasonable distance from the court in which the person may be detained pending the hearing . . . ." (Ibid.)
At the hearing, the defendant has the burden of proving he would not be a danger to the health and safety of others by a preponderance of the evidence. (§ 1026.2, subd. (k).) Section 1026.2 contains two eligibility requirements for petitioning for conditional release: (1) the defendant must have been confined or placed on outpatient status for a minimum of 180 days from the date of the commitment order, and (2) one year must have elapsed from any previous denial of the defendant's petition for conditional release or application for restoration of sanity. (§ 1026.2, subds. (d), (j).)
2. Section 1600 et seq.
Section 1600 states that any person committed to a state hospital "may be placed on outpatient status from that commitment subject to the procedures of this title." Section 1601, subdivision (a) identifies certain categories of persons who are required to spend at least 180 days in the state hospital or other treatment facility before becoming eligible for outpatient treatment: "any person charged with and found incompetent on a charge of, convicted of, or found not guilty by reason of insanity of" specified violent offenses or "any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person." Section 1601, subdivision (b) provides that any person "charged with, and found incompetent on a charge of, or convicted of, any misdemeanor or any felony other than those described in subdivision (a)" may be placed in outpatient treatment "prior to actual confinement in a state hospital or other treatment facility under the provisions of law specified in Section 1600."
Section 1603 provides that "[b]efore any person subject to subdivision (a) of Section 1601 may be placed on outpatient status the court shall consider all of the following criteria: [¶] (1) Whether the director of the state hospital or other treatment facility to which the person has been committed advises the committing court and the prosecutor that the defendant would no longer be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, and will benefit from that status. [¶] (2) Whether the community program director advises the court that the defendant will benefit from that status, and identifies an appropriate program of supervision and treatment."
Section 1604 establishes the procedures for generating and submitting the reports referred to in section 1603 as well as the procedures for a hearing for conditional release. In relevant part, when the court receives a recommendation from the state hospital that a person is eligible for outpatient status, the court must forward a copy of that recommendation, along with the person's "arrest reports and state summary criminal history" to the "community program director." (§ 1604, subd. (a).) Within 30 days the community program director must submit a report "regarding the defendant's eligibility for outpatient status" and "the recommended plan for outpatient supervision and treatment." (§ 1604, subd. (b).) After conducting a hearing, "[t]he court shall . . . either approve or disapprove the recommendation for outpatient status." (§ 1604, subd. (d).)
There are two statutory bases for revoking an individual's outpatient status. Under section 1608, the director of an outpatient program can file a petition: "If at any time during the outpatient period, the outpatient treatment supervisor is of the opinion [the defendant] requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the . . . director shall notify the superior court . . . by means of a written request for revocation of outpatient status." (§ 1608.) After receiving such a request, the court must "hold a hearing and shall either approve or disapprove the request for revocation of outpatient status." (Ibid.)
Alternatively, under section 1609 the prosecution can file a petition to revoke outpatient status "[i]f at any time during the outpatient period or placement with a local mental health program pursuant to subdivision (b) of Section 1026.2" the prosecution is of the opinion that the person is a danger to the health and safety of others while on outpatient status. Under both sections 1608 and 1609, the burden is on the prosecution to show that revocation is appropriate by a preponderance of the evidence. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419-420.) A request for revocation of outpatient status under section 1608 or 1609 may be made at " 'any stage' " of the outpatient proceedings, which includes the period after a court has ordered a defendant into outpatient treatment, but before CONREP has found an appropriate placement. (Parker, supra, 231 Cal.App.4th at p. 1433.)
B. Revocation of Outpatient Status
Defendant argues that the December 2018 order vacating the May 2018 order was invalid. He contends that the May 2018 order granting his request for conditional release "was a final appealable judgment," and that "[a]fter sixty days, the time to file a notice of appeal expired and the judgment could no longer be modified." Defendant asserts that no exception to this rule applied in this case. The Attorney General contends that this argument was not made in the trial court, and therefore it was forfeited.
Generally, a claim of error will be deemed to have been forfeited and not preserved for appellate review when the party failed to bring the error to the trial court's attention by timely motion or objection. (People v. Simon (2001) 25 Cal.4th 1082, 1103 (Simon).) The purpose of the general doctrine of forfeiture is " ' " 'to encourage the [parties] to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " [Citation.] " 'No procedural principle is more familiar to [the appellate courts] than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' " ' " (Ibid.)
In this case, prior to the December 2018 hearing, defense counsel objected on the basis that section 1603 did not apply, that the court had already validly ordered defendant into outpatient treatment, and that the court should hold an evidentiary hearing under section 1609 if it wanted to validly revoke defendant's conditional release. He did not specifically argue that the May 2018 order was a final appealable judgment, that it was final after 60 days and could no longer be modified, or that no exception to this rule applied. The arguments made in the trial court did not fairly apprise the trial court of the argument that defendant now makes on appeal, and thus the argument was forfeited. (Simon, supra, 25 Cal.4th at p. 1103.)
To avoid forfeiture, defendant contends that his trial counsel was ineffective for failing to raise the issue in the trial court. To succeed on an appellate claim of ineffective assistance, a defendant must establish that his trial counsel's performance was deficient and that his defense was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.)
We need not determine whether defendant's trial counsel was deficient in not making the argument that defendant now makes on appeal because defendant cannot establish that he was prejudiced by the alleged deficiency. Here, the record shows that Gateways CONREP issued a report opining that defendant was not an appropriate candidate for conditional release. After that report was filed, the prosecution filed a petition to terminate defendant's outpatient treatment pursuant to sections 1608 and 1609. Atascadero State Hospital thereafter filed a progress report with the court, which opined that defendant "continues to be a danger to the health and safety of others," and that "the recommendation is retain and treat until accepted into the CONREP."
In sum, by the time of the December 2018 hearing, both Atascadero State Hospital and Gateways CONREP agreed that defendant should be retained and treated on an inpatient basis. The prosecution concurred in that recommendation and asked the court to terminate defendant's outpatient status. On this record, there is no reasonable probability that defendant would have received a more favorable result had defendant's trial counsel successfully argued that the court had no authority to vacate its May 2018 conditional release order. There is no dispute that the trial court had the authority to revoke defendant's outpatient status under sections 1608 or 1609. The record also shows that the trial court was aware that it could continue defendant's conditional release if it so wanted, as the Gateways CONREP report noted that "should the court continue to direct [defendant's] placement in Gateways CONREP pursuant to [section] 1026.2, he will be placed at the Gateways Satellite facility" for outpatient treatment. Had the argument that defendant now makes on appeal succeeded, the trial court would undoubtedly have continued the proceeding under sections 1608 or 1609, found that conditional release was no longer appropriate under the applicable standard, and thus revoked defendant's conditional release.
Defendant disagrees that the result would have been the same. He argues that the harmless error standard "is inapplicable in this case" because the trial court's ruling was based on a flawed premise—that if the court had known in May 2018 what it knew in December 2018, "it would not have placed [defendant] into the conditional release program in the first place." Defendant asserts that the burden of proof would have been different had the court held a section 1609 hearing.
Under sections 1608 and 1609, it is the prosecution's burden to show by a preponderance of the evidence that the defendant requires extended inpatient care or refuses to accept outpatient care (§ 1608), or that the defendant is a danger to the health and safety of others while on outpatient status (§ 1609). (DeGuzman, supra, 33 Cal.App.4th at pp. 419-420.) In this case, the prosecution's request to have defendant's outpatient status terminated was based in large part on the Atascadero Hospital report and the Gateways CONREP report. At a section 1608 or section 1609 hearing, this same evidence—two reports concluding that outpatient status should be terminated—would have been offered in support of the prosecution's termination request. There is simply no reasonable probability that the court would not have revoked outpatient status, even had it required the prosecution to bear the burden of proof, based on the evidence presented at the hearing.
Because defendant was not prejudiced by the alleged deficiency, his claim of ineffective assistance fails.
B. Petition for Transfer to Conditional Release
In denying the petition for transfer to conditional release under section 1026.2, defendant argues that the trial court erred in two significant ways: first, by applying section 1603, which was inapplicable in this context; and second, by applying a repealed version of section 1603, which caused the court to mistakenly believe that a petition for conditional release required the approval of Gateways CONREP and Atascadero State Hospital. Defendant also argues that to the extent the court held a section 1603 hearing, the court's decision was not supported by the evidence.
The Attorney General concedes that the trial court erred by applying section 1603. However, he contends that the error was harmless.
We agree with the parties that the trial court erred in at least two respects. First, the court erred by applying the procedures set forth in section 1603, when defendant had filed a petition seeking conditional release under section 1026.2. The statutes are not interchangeable. Significantly, under section 1026.2, a defendant is permitted to file a petition seeking restoration of sanity on his or her own behalf. By contrast, the outpatient placement procedures in section 1600 et seq. can begin only when "the director of the state hospital or other treatment facility to which the person has been committed" notifies the court that the person may be eligible for outpatient status. In this case, it was defendant who filed the initial petition seeking outpatient treatment in order to eventually obtain a restoration of sanity. In evaluating defendant's petition for transfer to outpatient treatment, section 1026.2 sets forth in detail the procedures to be applied to such petitions. The trial court should have looked to those provisions, not to the provisions in section 1603.
Second, the trial court erred in how it applied section 1603. Specifically, the court apparently believed that in order to even hold a hearing, there first needed to be positive outpatient recommendations from both the state hospital director and conditional release program director. The prosecution cited Wymer and Sword for this proposition. At the hearing, the court agreed with the prosecution's construction of section 1603, and found that Sword controlled. Wymer and Sword, however, were decided in 1987 and 1994 respectively. At that time, section 1603, subdivision (a) stated that "[a]ny person . . . may be placed on outpatient status if all of the following conditions are satisfied," with those conditions being that the state hospital director and community program director recommended such status. (Former § 1603, italics added.) However, effective January 1, 2015, section 1603, subdivision (a) was amended to instead provide that "[b]efore any person . . . may be placed on outpatient status, the court shall consider . . . [¶] . . . [w]hether" the state hospital director and community program director recommend such status. (Stats. 2014, ch. 734, § 3.) Thus, section 1603, subdivision (a) no longer requires that the court have two positive recommendations before proceeding with a hearing for possible outpatient placement; rather, it now requires only that the court consider such recommendations before proceeding with an outpatient placement determination.
In sum, the trial court erred in two ways: by applying section 1603 to defendant's section 1026.2 petition, and by applying a repealed version of section 1603. These errors, however, were harmless. State law errors are subject to harmless error review under the Watson standard. Under this standard, errors are harmless if it is not reasonably probable the defendant would have obtained a more favorable result in the absence of the errors. (Watson, supra, 46 Cal.2d at p. 836.)
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). --------
Here, although the court erroneously believed that no hearing was warranted, the court did conduct a section 1603 hearing. At the hearing, defense counsel sought to discount the Gateways CONREP report. He argued that the first Atascadero State Hospital report militated in favor of outpatient treatment. He also argued that the Atascadero State Hospital report writers had much more contact with defendant than the Gateways CONREP evaluator. Defense counsel also noted that the Gateways CONREP report was mostly focused on defendant's past offenses, and he argued that the report did not adequately discuss defendant's current condition. At the conclusion of the hearing, the court applied the preponderance of the evidence standard, which applies to hearings under section 1026.2. The court then found that defendant had "not met [his] burden by [sic] proof by a preponderance of the evidence that the defendant is no longer a danger to the health and safety of others. [¶] Both of the reports, both of the agencies recommend retaining and treating. Both find him to be a danger. I don't believe that there is a preponderance of the evidence that he's not."
Thus, the court carefully considered the parties' arguments and the available reports, and concluded that defendant had not shown, by a preponderance of the evidence, that he would not be a danger to the health and safety of others. On this record, it is not reasonably probable that defendant would have obtained a more favorable outcome—i.e., conditional release—had the court held a hearing under section 1026.2. (Watson, supra, 46 Cal.2d at p. 836.) Because of this, the court's error in holding a hearing under section 1603 was harmless.
With regard to the hearing the trial court did hold, defendant argues that the evidence did not support the court's ruling. We review a trial court's decision denying outpatient status for abuse of discretion. (People v. Cross (2005) 127 Cal.App.4th 63, 73 (Cross).) "Under that standard, it is not sufficient to show facts affording an opportunity for a difference of opinion. [Citation.] 'A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' " (Ibid.)
Here, the operative reports agreed that defendant should be retained and treated on an inpatient basis. The Gateways CONREP report stated defendant remained a danger to others. It found that he was "generally unchanged from [the behavior] observed during his 2013 petition for restoration to sanity." It found that he had not yet "internalize[d] any of the underlying messages throughout his course of treatment, which are essential and specifically aimed at mitigating his risk for future dangerousness." The report stressed that defendant failed to "appreciate his psychiatric fragility and related propensity to decompensate rapidly when less than optimally medicated," which could not be easily controlled under CONREP supervision. The report concluded that defendant was "ill-equipped" to contend with the demands of outpatient treatment. It warned that "when his inevitable decompensation occurs, Gateways CONREP cannot offer the structure and support currently provide[d] by the locked state hospital facility," and defendant will thereby be "expose[d] . . . to a much larger pool of potential victims." In turn, the second Atascadero State Hospital report concluded that "[d]ue to a mental defect, disease, or disorder, [defendant] continues to be a danger to the health and safety of others." It recommended that defendant be "retain[ed] and treat[ed] until accepted into the CONREP" or "until the maximum commitment date."
On the basis of the evidence adduced at the hearing, the trial court's decision was reasonable. It certainly did not " 'exceeds the bounds of reason, all of the circumstances being considered.' " (Cross, supra, 127 Cal.App.4th at p. 73.) Defendant points to details in the reports that support a contrary finding, and argues, as he did in the trial court, that the Gateways CONREP report should be discounted. Under the applicable standard of review, however, "it is not sufficient to show facts affording an opportunity for a difference of opinion." (Ibid.) The trial court did not abuse its discretion.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.