Opinion
D072555
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES BERNARD BREWER, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR53053) APPEAL from an order of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Charles Bernard Brewer appeals from an order extending his outpatient status as a mentally disordered sex offender (MDSO; former Welf. & Inst. Code, § 6300) in a conditional release program (CONREP) for an additional year. Brewer contends the court's order is not supported by substantial evidence primarily because the record lacks expert testimony that he is still an MDSO or currently dangerous, and the sole evidence before the court was that he should be discharged from his MDSO commitment. We reject the contention, and hold the court's order extending Brewer's outpatient status is supported by evidence of recent changes to some of the factors that mitigated Brewer's risk of reoffending, and that such negative life changes called into question whether he would benefit from further outpatient treatment in CONREP and remained a danger to the community. Accordingly, we affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The trial court received and had before it a May 18, 2017 annual review report and a June 30, 2017 addendum to that report. We take some of the background facts concerning Brewer's offenses and MDSO commitments from those documents.
At the time of the court order at issue in this matter Brewer was 63 years old, with borderline intellectual functioning. In 1972, he was convicted of rape and rape with use of a weapon after he sexually assaulted three approximately 10-year-old girls, resulting in his first adjudication as an MDSO and MDSO commitment. After spending two years at Camarillo and Patton State Hospitals, he was released into the community. Thereafter, Brewer was arrested for disorderly conduct/soliciting a lewd act and attempted rape. Records indicate that after his first release, Brewer struggled to gain employment, telling an examiner that he did not know how to get a job, felt lost, and lacked an adequate support system. The resulting frustration and self-pitying "led [Brewer] to revert back into sexual fantasies and eventually returning to sexual acting out behavior."
In January 1981, Brewer threatened to kill a 12-year-old boy, took him to an isolated location, then forced the boy to perform oral sex and attempted to sodomize him after the boy refused Brewer's request to help him push his car. After his arrest, Brewer admitted to police he had sexually assaulted another boy days earlier, similarly taking the boy to an isolated location, sodomizing and fondling him. In August 1981, Brewer was again adjudged an MDSO and admitted to Patton for his crimes of oral copulation and lewd and lascivious acts with a child. (Pen. Code, § 288a, subds. (b), (c).)
At some point Brewer admitted to committing additional sexual assaults against children; he estimated he molested approximately 16 male and female children, as well as two of his sisters (one of whom was six years old at the time) and one of his brothers.
On numerous occasions between November 1992 and June 1998, Brewer underwent evaluations after Patton's medical director recommended that Brewer be placed in an outpatient facility. Each time, the trial court denied the request for release.
In September 1992, the court found Brewer would be a substantial danger if placed in the community specifically given his prior offenses, other 1991 and 1992 reports finding he was a danger, his current diagnosis as a pedophile with borderline intellectual disability, and the fact the outpatient program would permit Brewer to go out at will with unrestricted access to children in the community. In October 1995, the court found Brewer presented a danger to the health and safety of children in the community, and that the proposed outpatient program of supervision was "totally inadequate" as staff's availability and concern for Brewer 24 hours a day did not constitute 24-hour supervision. The remaining orders indicate the court considered Brewer's evaluation for conditional release and denied the request without express findings.
In April 1999, the court ordered that Brewer be released from Patton to a transitional residential program in Los Angeles when it had space available to him, and Brewer was transferred there the next month. Brewer completed that program and in September 1999 transitioned to outpatient status under the supervision of San Diego CONREP. The court renewed Brewer's outpatient status yearly from that time until 2016.
Penal Code section 1602 provides in part: "(a) Before any person subject to the provisions of subdivision (b) of [Penal Code s]ection 1601 may be placed on outpatient status, the court shall consider all of the following criteria: [¶] (1) In the case of a person who is an inpatient, the director of the state hospital or other treatment facility to which the person has been committed advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, and will benefit from such outpatient status. [¶] (2) In all cases, the community program director or a designee advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, will benefit from such status, and identifies an appropriate program of supervision and treatment. [¶] . . . [¶] (d) Any evaluations and recommendations pursuant to paragraphs (1) and (2) of subdivision (a) shall include review and consideration of complete, available information regarding the circumstances of the criminal offense and the person's prior criminal history." (See People v. Harner (1989) 213 Cal.App.3d 1400, 1404.)
In February 2017, CONREP submitted a 90-day progress report for Brewer's status and progress in community outpatient treatment. The report, written by Maria Ortiz, Ph.D., a CONREP forensic clinician, and reviewed and approved by Suzanne O'Brian, Ph.D., CONREP's community program director, acknowledged Brewer's diagnosis of borderline intellectual functioning, and observed that his problem-solving skills "are quite limited." Dr. Ortiz recommended Brewer's treatment be continued at a "transitional" level of care given Brewer's prior assessments of personality functioning, stating it had been noted that Brewer " 'has difficulty managing even minor stresses, and can easily become preoccupied and disorganized. As the stresses in his life increase, he tends to become agitated and distraught. He has little tolerance for frustration and may act out impulsively if he is unable to find sufficient external support.' " Dr. Ortiz stated: "Such pattern of limited frustration, tolerance, preoccupation, and disorganization has been observed in Mr. Brewer by CONREP staff at various points in time when he has encountered unexpected, yet seemingly minor stresses. Going forward, CONREP will continue providing Mr. Brewer with support and monitoring to ensure that he does not victimize anyone in the future as a form of coping with negative emotional experiences or unmet sexual needs." Based on this record, the trial court found Brewer's status unchanged.
In May 2017, CONREP submitted a recommendation for review of Brewer's community outpatient status to the court. CONREP's May 18, 2017 annual report by Dr. Ortiz stated that as of that month, Brewer had been placed on the "aftercare" level, appropriate for someone who might be unconditionally released in the near future. Dr. Ortiz observed that in addition to his CONREP activities, Brewer regularly attended the Bayview Clubhouse, a program providing peer support and life skills training for adults living with mental illness, and with the assistance of that program had obtained a volunteer position at a local hospital, which had recognized him for his dedication and hard work. According to Dr. Ortiz, records showed Brewer "has grown comfortable in this setting and very much enjoys the work, and also derives a great deal of self-esteem from this position." Brewer recognized that "fulfilling his current volunteer obligations not only give[s] him a sense of purpose and boosts his self-esteem, but it also keeps him occupied and helps combat boredom, which could be a risk factor for him."
The court's order states: "The Court is in receipt of a recommendation from Gateways CONREP San Diego, filed May 18, 2017, requesting the defendant's community outpatient status be continued pursuant to the provisions of Penal Code Section(s) 1606. [¶] It is hereby ordered the matter be set for a hearing . . . to consider the recommendation of defendant's continued outpatient status." The minutes of the hearing indicate that it was conducted "pursuant to Penal Code section 1606."
Dr. Ortiz characterized Brewer's risk for future violence as moderate based on his historic risk factors alone, but in the low range based on dynamic risk factors: factors that when present, could increase a person's risk for violence. She stated his overall risk of violence was "Low-Moderate," explaining the most likely scenario for future violence would be "if [he] were no longer a part of the CONREP program, stopped affiliating with his church congregation and/or relinquished socialization with his community programs, was unable to manage the stressors associated with daily living, and encountered significant negative emotional states (self-pity, inadequacy, frustration, rage, etc.)." Dr. Ortiz stated Brewer's risk was mitigated with CONREP's ongoing treatment and supervision. She pointed out that Brewer had made numerous strides, had remained offense-free and maintained good standing in the community, mitigated risk factors, and outlasted the predictive window of most if not all static risk instruments. Dr. Ortiz concluded, "There is not much more benefit that [Brewer] can gain from continued treatment and supervision with CONREP."
On June 30, 2017, Dr. O'Brian submitted an addendum to CONREP's May 2017 annual report. She reported that since May 2017, Brewer had suffered two "major losses," namely, dismissal from his volunteer job and closure of the clubhouse he frequented due to a loss of funding. She wrote: "Initially CONREP was very concerned with how Mr. Brewer would handle the loss of his job, a position where he excelled and he gained a lot of positive feedback. He lost the volunteer position (that he held for approximately 10 years) due to a background check that revealed his criminal history. Rather than feel sorry for himself, he has coped with this loss exceedingly well, takes stock in what a good experience it has been, and what he has gained from it. Thus, he is using the cognitive coping skills he has learned in treatment." Dr. O'Brien reported that Brewer also handled the loss of his clubhouse "with grace and ease," and had already sought out membership at another community socialization center. She observed, "The manner in which [Brewer] handled these losses—by seeking out support independently, not personalizing losses, and maintaining a positive outlook and sense of self—exemplify how he has changed his manner of coping with emotionally upsetting situations or loss. His efforts to continue to structure his time and create a set routine bode well for his future." Dr. O'Brian stated that it was CONREP's view that Brewer no longer required the supervision and treatment from the program, and she recommended he be discharged: Brewer had mitigated the risk factors that could lead to reoffense and outlasted the predictive windows of most static risk instruments used to estimate future risk of sex offense. She concluded: "There truly is not much more benefit that Mr. Brewer can gain from continued treatment and supervision with CONREP. The manner in which he accepted and addressed the losses he has experienced last month demonstrate his ability to seek out support independently, to not personalize losses, and manage significant change demonstrate many of the skills he spent years in treatment developing."
In July 2017, the court held a hearing on the matter. It heard from Dr. O'Brian, who stated she had known Brewer just over three years. She testified that Brewer's mental illness—pedophilic disorder in which he was sexually attracted to children—was not an active disorder but "in remission" based on polygraph results and relevant criteria, though she observed from testing he had shown interest in prepubescent children in around 2012 or 2013. Dr. O'Brian acknowledged CONREP's conclusion that the most likely scenario for future violence would be if Brewer were no longer part of the CONREP program and stopped affiliating with his church or community programs, and that within the past two months he had lost his clubhouse and volunteer job and was no longer undergoing treatment or therapy outside of CONREP. As for Brewer's losses, she testified he had replaced his clubhouse with another and used his coping skills without experiencing self-pity or anger; while she did not have a "crystal ball," she did not think he required the program and did not see him as a danger to others.
On cross examination, Dr. O'Brien pointed out that Brewer was not on medication; he had lived independently in his own apartment since she knew him, relied on public transportation, and was able to mingle with society while on CONREP. She was unaware that he had experienced any violations in the past year, and was able to use his coping skills to manage his illness, but Dr. O'Brian admitted there was no cure for mental illness; it could be in remission, which was the case for Brewer. She acknowledged his illness was not something he would "get over." Counsel turned to CONREP's historical and clinical risk assessment factors, confirming Dr. O'Brien's opinion that Brewer's risk was low. The following exchange then occurred:
"[Brewer's counsel:] And so based on your review of the records and your supervision, there hasn't [sic] been any incidents in the '90's; correct?
"[Dr. O'Brien:] To my knowledge, no.
"[Brewer's counsel:] And no incidents in early 2000; correct?
"[Dr. O'Brien:] To my knowledge, no.
"[Brewer's counsel:] No incidents before 2010; correct?
"[Dr. O'Brien:] Not to my knowledge.
"[Brewer's counsel:] And no incidents in the last seven to eight years.
"[Dr. O'Brien:] Not that I'm aware of.
"[Brewer's counsel:] Which is why you feel confident about your recommendation that he be released from his MDSO commitment?
"[Dr. O'Brien:] Yes.
"[Brewer's counsel:] It's your opinion that he's no longer an MDSO.
"[Dr. O'Brien:] Yes.
"[Brewer's counsel:] Okay. Let's talk about—we talked about—I just want to be clear. [¶] When you—you talked about outlasting risk instruments. And you described . . . these risk instruments as having years, these risk instruments that are there for five years. You look to see if a guy is a risk or a danger within five years.
"[Dr. O'Brien:] As an example, the Static 99, the folks who created that put forth—they tried to—you know, you can't create—no one has a crystal ball. But they tried to create percentages that within certain periods, five years, 10 years, 15 years, the likelihood people would reoffend based on their score on the static. [¶] So for instance, in 2008, an individual affiliated with CONREP did an assessment of Mr. Brewer. In 2008, he had a static score of 6 on the Static 99. The psychologist looked at the estimates for within five years what's the likelihood of reoffense. After 10 years, what's the likelihood of reoffense. For 15 years. Mr. Brewer's been in the community for well over 15 years. It's 18 years now without reoffending.
"[Brewer's counsel:] So that's what you meant.
"[Dr. O'Brien:] That's what I meant, yes.
"[Brewer's counsel:] So he's actually proven that he
"[Dr. O'Brien:] He's outlasted
"[Brewer's counsel:] —that he's a low risk.
"[Dr. O'Brien:] Yes." (Italics added.)
On redirect, Dr. O'Brien confirmed that low risk did not equal "no danger at all." She explained that as a mental illness, a pedophilic disorder could come back and a person suffering from it would no longer be in remission. However, Dr. O'Brien characterized Brewer as a "model client" in the manner he checked in and took responsibility. She agreed it was unusual that she was making a recommendation for Brewer's release from CONREP.
Dr. O'Brien also agreed it was unusual for her to make a recommendation that a person be released from civil commitment. But her remark to that effect was generic, not related to Brewer's case.
Following Dr. O'Brien's testimony, Brewer's counsel asked the court to release Brewer from the MDSO commitment and from CONREP, remarking, "We believe that the People have not met their burden beyond a reasonable doubt that my client remain in MDSO" and representing that the law put the standard of proof as reasonable doubt for "all the proceedings in MDSOs." The district attorney expressed some confusion about who the petitioner was in the hearing, but asked the court to rule that Brewer "remain in CONREP and not be discharged from CONREP . . . ."
Stating it had read the reports and listened to the testimony, the court observed Brewer was doing "pretty well." However, it pointed to the fact Brewer's disorder could not be cured, his short time in aftercare, the recent changes in risk factors, and the still-existing risk for violence. It stated: "I would think at some point Mr. Brewer is going to be releasable to the community. I am concerned he's only been in aftercare for two months. He suffered these things that we discussed within the last two months after he went into aftercare. He does have a low risk for violence, but there is still a risk for violence. [¶] I'm looking at the statute. The Court has to find that the person will not benefit by further care. The doctor seemed to indicate that. And he's not a danger to the health and safety of others. I think that the People have shown that he remains a danger to the health and safety of others. So I'm not going to release him from CONREP at this time."
The court's order states Brewer "still meets the criteria for an [MDSO]; remains a danger to others; and will benefit from continued outpatient status at Gateways CONREP San Diego." It extended Brewer's outpatient status for one additional year.
Brewer filed this appeal.
DISCUSSION
I. Legal Principles
Brewer was committed as an MDSO under laws that were repealed as of 1982 (see former § 6300 et seq.; Stats. 1967, ch. 1667, § 37, p. 4107 [enacted]; Stats. 1981, ch. 928, § 3, pp. 3485-3486 [repealed]; Baker v. Superior Court (1984) 35 Cal.3d 663, 665; see Hudec v. Superior Court (2015) 60 Cal.4th 815, 820.) The former law remains applicable to a person under commitment or extended commitment as an MDSO until his or her commitment is terminated and he or she is returned to the court for resumption of criminal proceedings. (Baker v. Superior Court, at pp. 666-668; People v. Superior Court (Henry) (1993) 12 Cal.App.4th 1308, 1310, fn. 1.) The scheme has been replaced by the Sexually Violent Predators Act (SVPA, § 6600 et seq.; see People v. McKee (2010) 47 Cal.4th 1172, 1196 [MDSO law was the "forerunner" of the SVPA]; People v. Curlee (2015) 237 Cal.App.4th 709, 716.)
Former section 6300 defined an MDSO as "any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others." (People v. Burnick (1975) 14 Cal.3d 306, 310, fn. 1.) The People were required to prove MDSO status beyond a reasonable doubt, and a defendant was constitutionally entitled to a unanimous jury verdict, unless a jury was waived. (Hudec v. Superior Court, supra, 60 Cal.4th at pp. 820-821; People v. Burnick, supra, 14 Cal.3d at pp. 310, 332 [proof beyond a reasonable doubt standard applies to initial order of commitment, and "any stage of the proceedings in which the person is committed or recommitted to the State Department of Health pursuant to a finding that he is a mentally disordered sex offender," italics added].) If the defendant was found to be an MDSO and amenable to treatment, the court was required to "state in the commitment order the maximum term of commitment, . . . [which] shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the defendant was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed less any applicable credits . . . and disregarding any credits which could have been earned . . . ." (Former § 6316.1, subd. (a).)
An MDSO's commitment term could be extended on a showing beyond a reasonable doubt (1) that the person suffers from a mental disease, defect and disorder, and as a result is predisposed to the commission of sex offenses to such a degree that he presents a serious threat of substantial harm to the health and safety of others. (Former § 6316.2, subd. (a); see Hudec v. Superior Court, supra, 60 Cal.4th at p. 821.) Under the procedures for an extended MDSO commitment, the defendant was entitled to all rights guaranteed under the Federal and State Constitutions for criminal proceedings (former § 6316.2, subd. (e)), and such proceedings were to accord with applicable constitutional guarantees: rules of criminal discovery applied, the defendant had a right to appointed counsel if indigent, and trial was by jury unless waived. (Hudec, at pp. 821, 828 [holding in enacting former section 6316.2, the Legislature did not merely codify particular constitutional rights, but stated a broader rule that MDSO commitments "call for procedural protections otherwise applicable in criminal cases"]; but see People v. Blackburn (2015) 61 Cal.4th 1113, 1119-1120 [some constitutional protections available in the criminal context apply as a matter of due process to defendants in certain civil commitment proceedings, but other constitutional protections (ex post facto considerations, independent appellate review, double jeopardy principles) have been found inapplicable].)
A person committed as an MDSO could be placed on outpatient status if the state hospital or other treatment facility delivered to the committing court a recommendation that the defendant be placed on outpatient status, and the court approved the request. (Former § 6325.1; Pen. Code, § 1604.) " 'Outpatient status is not a privilege given the [offender] to finish out his sentence in a less restricted setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [offender] and cause no undue hazard to the community.' " (People v. Sword (1994) 29 Cal.App.4th 614, 620; see People v. Cross (2005) 127 Cal.App.4th 63, 72.) If approved, the period of outpatient status was not to exceed one year, and the State Department of State Hospitals was responsible for the person's supervision and obligated to submit 90-day progress reports. (Pen. Code, §§ 1605, subds. (a), (d), 1606.) While on outpatient status, the maximum term of an MDSO's commitment did not run. (Former § 6332; People v. Superior Court (Henry), supra, 12 Cal.App.4th at p. 1310.) Thus, a person could remain an outpatient indefinitely, without any right to a section 6316.2 extension hearing, as long as the court determines he or she is not a danger to others and would benefit from an outpatient program. (Id. at p. 1312.) Such indefinite outpatient status does not violate the due process rights of the MDSO or equal protection, as an MDSO who serves his full term in actual custody and an MDSO who accepts outpatient status are not similarly situated. (Id. at pp. 1312-1313.) "Although an MDSO who is on outpatient status may suffer some restraint on his freedom, the MDSO who has served his full term in custody suffers a much greater restraint on his freedom." (Id. at p. 1313.)
Penal Code section 1604 provides that in any hearing on the question of whether a person was eligible for outpatient status, "the court shall consider the circumstances and nature of the criminal offense leading to commitment and shall consider the person's prior criminal history." (Pen. Code, § 1604, subd. (c).)
An MDSO on outpatient status is entitled to annual review hearings pursuant to Penal Code section 1606, after which the court can "either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status." (Pen. Code, § 1606.) The court's power to discharge an MDSO commitment is addressed in former sections 6325 and 6327. Under former section 6325, subdivision (a), the outpatient treatment supervisor could certify to the committing court that an outpatient "will not benefit by further care and treatment and is not a danger to the health and safety of others . . . ." When a supervisor or director certifies such an opinion, "then a hearing may be held under [former] section 6325.2 to review the correctness of that opinion. That hearing is the statutorily provided procedure to review the correctness of the director's opinion that the defendant is no longer an MDSO. If the outcome of the hearing is a finding that defendant is not an MDSO, then . . . in the plain language of [former] section 6325, subdivision (c), 'the committing court shall order the return of the person to the committing court. The committing court shall thereafter cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge. . . . Such court shall resume the proceedings . . . .' . . . In short, resumption of criminal proceedings is mandatory after a finding of non-MDSO status." (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 721.)
In full, Penal Code section 1606 provides: "Outpatient status shall be for a period not to exceed one year. At the end of the period of outpatient status approved by the court, the court shall, after actual notice to the prosecutor, the defense counsel, and the community program director, and after a hearing in court, either discharge the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status. Prior to such hearing, the community program director shall furnish a report and recommendation to the medical director of the state hospital, where appropriate, and to the court, which the court shall make available to the prosecutor and defense counsel. The person shall remain on outpatient status until the court renders its decision unless hospitalized under other provision [sic] of the law. The hearing pursuant to the provisions of this section shall be held no later than 30 days after the end of the one-year period of outpatient status unless good cause exists. The court shall transmit a copy of its order to the community program director or a designee."
Former section 6325, subdivision (a) provides in part: "Whenever a person who is . . . placed on outpatient status . . . has been treated to such an extent that in the opinion of the medical director of the state hospital or other facility or the outpatient treatment supervisor . . . , the person will not benefit by further care and treatment and is not a danger to the health and safety of others, the medical director or person in charge of the facility or county mental health director or a designee where the person is on outpatient status, shall file with the committing court a certification of that opinion including therein a report, diagnosis, and recommendation concerning the person's future care, supervision, or treatment."
Under former section 6327, the patient could initiate the same process. That section states that the question at that hearing is whether the person is still a MDSO within the meaning of the law. (Former § 6327.)
II. Contentions
Characterizing his hearing as one held under former section 6325, Brewer contends that expert testimony is required to establish a person is still an MDSO so as to justify a civil commitment and demonstrate a likelihood of reoffending in the future. He argues the sole evidence at his Penal Code section 1606 hearing was the two CONREP reports indicating he was ready to be discharged from his commitment, and Dr. O'Brian's testimony, which he argues was consistent with those reports. Relying on People v. Ward (1999) 71 Cal.App.4th 368, and People v. Henderson (1980) 107 Cal.App.3d 475 for the proposition that civil commitments mandate expert psychiatric or psychological testimony akin to medical malpractice cases, Brewer maintains that absent expert testimony that he was still mentally ill and dangerous as a result of that mental illness, the court could not extend his civil commitment.
Brewer complains that here, the trial court "apparently believ[ed] that under former section 6325 even the slightest bit of dangerousness is enough to prevent [his] release." He acknowledges that a court's decision whether to discharge an MDSO under former section 6325, subdivision (a) "presents a significantly different standard" from what is required for the initial commitment as an MDSO, as well as the standard for recommitment of an MDSO following the maximum term of commitment under former section 6316.2. However, he suggests that use of three differing standards presents constitutional problems that this court should avoid by construing former section 6325 as requiring proof of continued presence of a mental illness, such that dangerousness is tied to the mental illness as required by Foucha v. Louisiana (1992) 504 U.S. 71. He characterizes the trial court's conclusion about his dangerousness as "misguided speculation."
In Foucha v. Louisiana, supra, 504 U.S. 71, the United States Supreme Court held that to commit a person to a mental institution in a civil proceeding, the state must prove by clear and convincing evidence that the person suffers from a mental illness and hospitalization is required for his own welfare and protection of others. (Id. at pp. 75-76.) A person is entitled to release when the person has recovered his sanity or is no longer dangerous: "the acquittee may be held as long as he is both mentally ill and dangerous, but no longer." (Id. at p. 77.)
The People do not address the nature of the court's hearing. They respond that substantial evidence supports the court's decision; that "[t]he evidence adduced at the review hearing, which the court found persuasive, was that [Brewer] continues to satisfy [the test for an MDSO] absent continuing outpatient treatment" and "[b]ecause of [Brewer's] diagnosis and history, he is predisposed to committed [sic] sexual offenses."
III. Standard of Review
Both parties presume that our review of the court's ruling is for substantial evidence. We need not decide whether the substantial evidence test is the appropriate standard (People v. DeGuzman (1995) 33 Cal.App.4th 414, 420 [order approving revocation of outpatient status]; In re McPherson (1985) 176 Cal.App.3d 332, 341-342 [same]) or the review standard is abuse of discretion (see People v. Cross, supra, 127 Cal.App.4th at p. 66 [involving hearing as to whether defendant should be granted outpatient status]; People v. Sword, supra, 29 Cal.App.4th at p. 619, fn. 2 [order denying outpatient status]). To establish an abuse of discretion, Brewer must show that the court's decision exceeds the bounds of reason, all of the circumstances being considered. (People v. Cross, supra, 127 Cal.App.4th at p. 73.) Under that standard, a court will abuse its discretion if "the factors cited by the trial court in denying appellant's application either are not supported by the record or are inadequate." (Id. at p. 75.) If the court relies on factors that are not supported by the record, its decision is not based on substantial evidence. As we explain, we reach the same result in this case under either review standard.
IV. Analysis
Preliminarily, we conclude the hearing at issue here was not one conducted under former section 6325. The court's minute order for the July 2017 hearing indicates it was held to review Brewer's outpatient status under Penal Code section 1606, and before the hearing CONREP submitted its annual report and recommendation expressly citing Penal Code section 1606. Dr. Ortiz did not state that Brewer was no longer an MDSO in her May 2017 annual report, nor did she conclude he was not a danger to the health and safety of others; rather, she characterized his risk of violence as "Low-Moderate" and related her opinion that there was "not much more benefit" Brewer could gain from continued supervision and treatment from CONREP. Dr. O'Brien's addendum report recommended Brewer be discharged from his commitment, but did not render an opinion as to whether Brewer was no longer an MDSO or whether he was not a danger to the health and safety of others. Nor can her testimony at the hearing be reasonably read as rendering such a conclusion; Dr. O'Brien clarified in the exchange recounted above that her conclusion was that Brewer's risk was low, not that he was no longer an MDSO.
Thus, Penal Code section 1607 did not apply to compel the court to set a hearing under former section 6325. Penal Code section 1607 provides that if the outpatient supervisor is of the opinion that a person is no longer an MDSO, the community program director shall submit his or her opinion to the state hospital's medical director and the court, which "shall calendar the case for further proceedings under . . . [former s]ection 6325 . . . ." As stated, neither the May 2017 report nor the June 2017 addendum contained such an opinion. --------
The record contains no certification under former section 6325, nor a motion under former section 6327. As Brewer points out, the court made no formal efforts to comply with the requirements of former section 6325, and understandably so, because the hearing at issue was merely an annual review hearing to determine whether Brewer's outpatient status should be renewed, or whether he should be discharged from commitment "under appropriate provisions of the law" (i.e., the procedures set forth in former sections 6325 or 6327) or ordered confined to a treatment facility. (Pen. Code, § 1606.) Section 1606 does not contain specific requirements for the conduct of the annual outpatient status review proceedings as does former section 6325, and those proceedings do not require a finding as to a defendant's status as an MDSO.
We further reject any suggestion by Brewer that he is no longer a threat to the community and should be discharged from any future obligations under the MDSO laws, or that there is no justification for his continued civil commitment absent expert testimony that he remains an MDSO. The law does not support such a contention, since, as we have summarized above, Brewer was long ago adjudged an MDSO and given a term of commitment (with one year, four months and 19 days remaining as of June 30, 2017), and his time spent on outpatient status does not count against that term of commitment. (Former § 6332; People v. Superior Court (Henry), supra, 12 Cal.App.4th at p. 1312.) Brewer is eligible for discharge only when his term of commitment has expired; he can remain under MDSO commitment indefinitely as long as he remains in outpatient status. (Henry, at p. 1312.)
In the absence of a certified opinion that Brewer would not benefit from further care or treatment and is not a danger to the health or safety of others (triggering the procedures and opportunity for a new examination and hearing in former sections 6325 and 6325.2), the annual review hearing on his outpatient status ascertained whether he "will not be a danger to the health and safety of other while on outpatient status, will benefit from such status," and has "an appropriate program of supervision and treatment." (Pen. Code, § 1602, subd. (a)(2).) The annual review procedure presupposed that Brewer remains an MDSO, and thus it was unremarkable that the trial court made a finding to that effect at Brewer's counsel's erroneous insistence, in addition to a finding that Brewer's outpatient status should be renewed. The court's finding in favor of outpatient status renewal is supported by the evidence: specifically, the fact Brewer recently suffered the loss of his job and place of socialization, both factors that mitigated Brewer's risk of violence. In determining the question of Brewer's continued outpatient status, the court "was not required to follow the essentially unanimous recommendations of the expert witnesses" (People v. Cross, supra, 127 Cal.App.4th 63, 73 [reviewing trial court's decision denying defendant's application for outpatient status]; People v. Sword, supra, 29 Cal.App.4th at p. 629 [same]) and thus it did not have to adopt either Dr. Ortiz or Dr. O'Brien's opinion that Brewer would not benefit from continued care or treatment with CONREP. "The trial court is entitled to consider the validity of the opinions presented to it in determining whether defendant met his burden of proving that he was not dangerous." (Sword, at p. 630.) And its reasons for disregarding those recommendations were not arbitrary. (Cross, at p. 73; Sword, at p. 629.) The court had reviewed the documentary evidence of Brewer's criminal history, as well as the testimony, and reasonably could conclude that given Brewer's very short duration in aftercare, the fact that minor changes in his life—less than those he had just experienced—tended to trigger his reoffending, and Brewer's still low-to-moderate risk, that Brewer would continue to benefit from outpatient care and treatment, that he still presented a danger to others, and that his outpatient status should be renewed for one additional year. For these reasons, the court's ruling was also well within its discretion.
Neither of the authorities cited by Brewer compel unquestioned adoption of expert testimony on the inquiry at issue in an annual outpatient review hearing. In People v. Ward, supra, 71 Cal.App.4th 368, the appellate court merely held the court did not abuse its discretion in admitting expert testimony on the question of whether the defendant met the criteria for an SVP; it observed "expert prediction may be the only evidence available" in a civil commitment case. (Id. at p. 374.) People v. Henderson, supra, 107 Cal.App.3d 475, involved a hearing to extend the defendant's commitment as an MDSO under former section 6316.2, and similarly decided if the court was within its discretion in admitting expert testimony on whether the defendant posed a substantial threat of harm to the health and safety of others. (Id. at p. 480, 486.) In concluding the court did not abuse its discretion, the appellate court pointed out that courts in MDSO proceedings are required to identify those who come within the reach of the statute " 'with the assistance of psychiatrists . . . .' " (Id. at p. 485.) And in proceedings under former section 6316.2 specifically, the court was statutorily "required to appoint the necessary psychologists or psychiatrists 'in accordance with this article' " so as to ascertain whether the person was an MDSO. (Id. at p. 485.) "Thus appointed psychological and psychiatric experts have long been required by statute in original MDSO commitment proceedings to bring to bear on the question of an individual's future conduct, i.e., his dangerousness, their admittedly imprecise diagnostic techniques." (Id. at pp. 485-486, italics added.) Even if Henderson can be read to mandate expert testimony on the question of whether one qualifies as an MDSO, that was not the question at hand in the different procedural context of a Penal Code section 1606 annual outpatient review hearing.
We reject Brewer's constitutional arguments, which rely on cases addressing standards pertaining to eligibility for civil commitments. (E.g., Kansas v. Crane (2001) 534 U.S. 407, 436; see In re Howard N. (2005) 35 Cal.4th 117, 128 [involving extended detention and civil commitment of juveniles and pointing to requirement that "to be involuntarily civilly committed as a sexually violent predator, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior"]; In re Carol K. (2010) 188 Cal.App.4th 123, 137 [Howard N. standards are directed at the involuntary civil commitment of individuals and do not apply to the Lanterman-Petris-Short Act].) There is no claim (nor can there be at this stage) that Brewer was adjudged an MDSO and committed under inappropriate standards or without constitutional protections. As we have stated, Brewer, who voluntarily accepted outpatient status, is not similarly situated to other MDSO's who have served their terms in custody or are facing extended commitment. (People v. Superior Court (Henry), supra, 12 Cal.App.4th at pp. 1312-1313.)
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.