Opinion
A150715
12-11-2017
THE PEOPLE, Plaintiff and Respondent, v. GREGORY ANTONYIO FITCH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN166082)
In 1999, appellant Gregory Antonyio Fitch by his own account assaulted a San Francisco bus driver on a bus, causing the driver to sustain physical injuries, while Fitch was not taking his medication for mental illness. Fitch pled guilty to assault and was later committed to a state hospital under Penal Code section 2962, which provides for the commitment of mentally disturbed offenders (MDOs) who, by reason of a severe mental disorder that is not in remission or in remission only due to continued treatment, represent a substantial danger of physical harm to others. Since that time, other than a failed time in a conditional release program (CONREP), Fitch, who has been diagnosed with schizophrenia among other things, has been committed to a state hospital.
All statutory references are to the Penal Code unless otherwise stated.
Fitch appeals from the trial court's latest order, issued after a bench trial on the People's petition under section 2970, extending his civil commitment as an MDO, this time to April 2018. He argues the trial court prejudicially erred by relying on case-specific hearsay evidence in violation of our Supreme Court's holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and that any failure by his trial counsel to object to this evidence was ineffective assistance of counsel. We do not need to reach these issues because we conclude that substantial, non-hearsay and expert evidence supports the trial court's extension order. Fitch himself acknowledged at trial that he had recently experienced schizophrenic delusions, causing him to became frustrated, angry and upset, and indicated he could not manage these symptoms other than to seek rest and the help of hospital staff. A psychiatrist who treated Fitch testified that Fitch displayed symptoms of a schizophrenia that was in only partial remission despite medication and treatment, and that he had shown in the past year a wavering insight into his disorder and treatment, indicated wrongly that he does not need medication at all, outright refused medication on one occasion, and presented a relapse prevention plan for his release that had no real substance even though she had repeatedly reminded him of the need to prepare one. The psychiatrist, based on her observations and review of records, opined that Fitch represented a substantial danger of physical harm to others. This evidence was sufficient to support the court's extension order. Therefore, we affirm.
BACKGROUND
I.
Past Events
In July 1997, Fitch pled guilty to one count of felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) in the Superior Court for the City and County of San Francisco for his assault of the bus driver. The trial court sentenced him to serve two years in state prison, with credits.
In April 1998, the trial court committed Fitch to a state hospital as an MDO under section 2962 based on a diagnosis of "schizophrenia, undifferentiated type; polysubstance abuse; and antisocial personality disorder." From 2000 to 2016, the trial court continually extended this commitment upon petition by the district attorney's office, sometimes with Fitch's consent and sometimes after trial. In January 2013, the court granted Fitch's request to be conditionally released to a CONREP, but later revoked this status.
II.
The People's Petition Under Section 2970
In September 2016, the district attorney's office filed a petition under section 2970 to extend Fitch's commitment to April 2018. Attached to the petition was an affidavit from the Medical Director of Napa State Hospital. She recommended that Fitch's commitment be extended because "[Fitch] qualifies for continued involuntary treatment under Section 2970 . . . in that by reason of his severe mental disorder he represents a substantial danger of physical harm to others."
Also attached to the petition was a September 1, 2016 psychiatric evaluation (evaluation) authored by Dr. Cheryline Mancusi, a staff psychologist at Napa State Hospital who had treated Fitch. She recommended that his commitment be extended another year. Dr. Mancusi wrote that, according to records, Fitch's "committing offense occurred on December 10, 1995 when he . . . attempted to hold the door of a bus open and the bus driver was struck in the head several times. [Fitch] appeared to be responding to auditory and/or visual hallucinations at the time." His CONREP status was revoked in September 2013 after he purchased a cell phone and contacted people from his past without CONREP personnel's knowledge and exhibited a "disregard of authority figures" that "jeopardized his stability and increased his risk for reoffending."
The People point out that the commitment offense was described in greater detail in a 2005 evaluation that is contained in the clerk's transcript. However, the People have not shown this document was before the court when it considered the petition and, therefore, we do not consider it.
Dr. Mancusi stated that Fitch, 55 years old, suffered from a severe mental disorder, "Schizoaffective Disorder, Bipolar Type," that his symptoms were in partial remission and could not be kept in remission by either medications or psychosocial support, and that he had "been violent and did not voluntarily follow his treatment plan." His schizophrenia was a psychotic disorder characterized by an uninterrupted period of at least one month that included "at least two of the following: Delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, or negative symptoms (e.g., avolition)." Fitch had a history of psychiatric symptoms dating back to 1984, and was "diagnosed with Schizophrenia in 1993 . . . after a suicide attempt and was started on antipsychotic medications. Mr. Fitch exhibited delusions and hallucinations in the absence of substance use, disorganized thought processes with recurrent impulsive and aggressive behavior, and cognitive and negative symptoms—some of which persist."
Dr. Mancusi reported that Fitch suffered from other problems. He had a history of abusing drugs and alcohol starting when he was 10 years old, and showed "an inability to stop using these substances by repeated use of more drugs than planned or use of the drugs over longer periods of time than planned," resulting in his own physical and psychological harm. He met diagnostic criteria for Antisocial Personality Disorder, including "a long criminal history as well as a pattern of taking advantage of others" that began when he was a juvenile. Also, in 2012, Fitch was diagnosed with a separate, unspecified neurocognitive disorder " '[i]n light of his history of head injuries, increased prominence of his upper torso tics, and intellectual functioning decline from 2001.' "
Dr. Mancusi also cited as support for her recommendation that Fitch's commitment be extended certain records indicating he had made various statements and been involved in certain noteworthy incidents and events in the previous year, including a January 2016 incident in which he was repeatedly punched by another patient and responded by repeatedly punching back.
III.
The Trial
The court held a one-day bench trial in February 2017. It admitted Dr. Mancusi's September 1, 2016 evaluation into evidence over Fitch's counsel's hearsay objection and heard testimony from Dr. Mancusi and Fitch.
A. Dr. Mancusi's Testimony
Dr. Mancusi, an expert witness in forensic psychology on the People's behalf, testified about Fitch based on her review of records, discussions with his treatment team and her own encounters with him. She thought he presently represented a substantial danger of physical harm to others because he had a severe mental disorder that was not fully in remission and had not demonstrated a commitment to medication and therapy sufficient to be safely managed in the community.
Dr. Mancusi said that Fitch suffered from the severe mental disorder of "Schizophrenia, Continuous," for which he was taking antipsychotic medication and, asked if he suffered from any other serious mental disorders, referred to substance abuse disorders, antisocial personality disorder and an unspecified neurocognitive disorder. She had only limited knowledge of Fitch's commitment offense, but considered it in her assessment.
Dr. Mancusi testified about Fitch in part based on her review of his records. She also said she had personally observed symptoms of Fitch's schizophrenia within the past six months. These symptoms, she said, "have been evident in his speech. He's displayed times of showing disorganized thought processes, rambling speech, difficulty conveying ideas that make it difficult for others to follow his ideas. [¶] He's also had a few instances, from what I have observed, of misperceiving the intentions of others which has at times led to some agitation or irritability." Dr. Mancusi had not seen Fitch exhibit delusions or hallucinations. She thought his symptoms were "largely stable," but that he showed "some residual symptoms of schizophrenia," so she "would not say that his symptoms are in full remission." She believed "that the structured setting that's provided by the hospital" had "contributed to his stability . . . because of the medication monitoring that is provided, the frequent interventions with staff and the therapy that's provided."
Also, Dr. Mancusi said, Fitch's "insight has wavered over the past year. More recently, he has shown some periods of having insight or at least a fair understanding of what his diagnosis is, what some of his medications are, what some of his symptoms are." She continued, "I would say that he still lacks insight into his need for treatment. This was an area that particularly wavered. He's had some periods of acknowledging that he does need psychotropic medications as well as some periods where he has reported that he does not believe he needs medications, psychiatric medications, but only medication for pain or medical ailments." She also thought Fitch's "insight is lacking . . . in terms of his risk for reoffending or for violence and . . . the level of support that he would need in order to best succeed in the community."
Further, Dr. Mancusi testified, Fitch "lack[ed] . . . a plan . . . to manage his risk in the community." She continued, "I've spoken with Mr. Fitch about this on a number of occasions. His preference is to go back into the community without the support of a treatment program like CONREP. He has not established a sufficient plan to find housing, to insure he'd have a psychiatrist to follow up with regularly, to manage his medications. [¶] Not having a plan with these things, in addition to the stress that places him under, puts him at increased risk." In her opinion, Fitch should be "residing in a highly structured setting that would monitor his medication compliance, would monitor any use of illicit substances or alcohol and also provide ample opportunities for therapy."
On cross-examination, Dr. Mancusi said she had been treating Fitch since June 2016. She saw him in both individual and group sessions; the individual sessions occurred, on average, twice a month. She also saw Fitch every day in the hallway. She was asked if the schizophrenia symptoms she described observing in Fitch could also have resulted from his documented history of head injuries. She said records indicated a head injury, but that "[t]he impairments directly from that head injury are not clear." Still, it was "possible" that Fitch's disorganization was a symptom of a neurocognitive disorder, although she understood from a psychological assessment of his cognitive impairments that "the impairments he was demonstrating were in addition to the impairments he had as a result of schizophrenia." The symptoms he displayed were consistent with schizophrenia, but "[s]ymptoms like that could also surface from a head injury, so I can't say for sure where the impairment's coming from." Fitch's "difficulties with conveying ideas . . . could result from cognitive impairment," while the "disorganization of thought," which she had personally observed, "would result from schizophrenia." She could not say unequivocally that Fitch's tendency to misperceive the motives of others was attributable to his cognitive disorder, schizophrenia, or a combination of the two.
Dr. Mancusi said she was aware that Fitch had one time in the previous year refused his medication, but she did not know the details of his refusal and did not discuss his reasons with him. She knew at the time that he had asked for changes in his medication, but did not know if these changes were happening. However, she thought it was inappropriate for a patient to refuse to take a scheduled medication without consulting a psychiatrist unless there was an emergency or life-threatening situation. Further, Fitch's refusal to take his medication "followed a conversation that I had with Mr. Fitch on the previous day in which he reported that he did not believe he needed medication."
Dr. Mancusi was also cross-examined about her opinion that Fitch's insight into his mental disorder and treatment wavered. She indicated that her opinion was based in part on her own interactions with Fitch.
Finally, Dr. Mancusi said on cross-examination that after she had written her evaluation, Fitch "did begin to work on a [relapse prevention] plan. He had submitted it to me. I reviewed it with some feedback to him. So following the [evaluation] he did formulate a plan." She was not aware that Fitch was in touch with his family, including his sister, and, although she had recently talked to him "about support in the community," he had not provided that information to her.
B. Fitch's Testimony
Fitch testified that he suffered from "[d]elusions, schizophrenia and paranoia," and that he had for a long time. He took Abilify for his delusional thinking, which calmed him down and kept him in a "good mood," and he had not experienced delusions while taking it. He said he needed medication to take care of his mental illness and would continue to take medication if he were released.
Fitch indicated that he had had "delusional thinking in the last six months." Asked what kind, he said, "When I go to groups, ask a staff member for help and I don't get help. I get frustrated and angry and upset and I just carry it on. I don't say nothing. I mind my business and go to my room." He said he became mad and angry, and had learned to respond to the thoughts that caused his anger by laying down, sleeping, resting and talking to staff.
Fitch also acknowledged that he refused to take a medication, Olanzapine, one time in September 2016, although he understood he was required to take it. He had asked to be taken off it because it caused him stress and to feel "real sick." His medication was changed that evening to Abilify.
Fitch said he was attending certain groups, where "we talk about things like . . . how do we act when we on medication or when . . . there's a fight with somebody what you supposed to do, how you supposed to act, when staff treats somebody wrong and you feel that you don't know what to do or how you're supposed to act." Asked what he had learned, he said, "I got a job in the laundry room. I learned how to work with staff, that if while I'm working with them if I'm in a bad manner and inconsistent, they don't take things out on me and say we're going to write you up or write bad things about you. They work with me instead ahead of time before that even happens. Say, 'Mr. Fitch, can I help you with anything.' They're nice enough to do that.' " He was doing a lot better since he had learned these things.
Fitch said he had prepared a relapse prevention plan in the last month or so, but did not have it with him because there had been a "shakedown" in his unit. Everything in his locker had been taken and all his papers had been thrown away, including his relapse prevention plan. He planned to live with his sister, had talked with his doctors and social worker about it, and understood his social worker had talked to his sister. He first talked to Dr. Mancusi about his plan that day or the day before, and told her it had been thrown away.
Asked if he would find a psychiatrist in the community if released, Fitch said, "I would get some kind of help knowing where a psychiatrist was." He indicated that he had gotten help from community clinics in the past, would take medication for his mental illness if prescribed for him by a psychiatrist, and had talked with his sister about "what [his] needs might be if he lived with her." If he started to have symptoms of delusions, such as that people "weren't talking nice" about him, he would talk to his doctor or go to one of his social workers and tell them he had a problem and ask for some help.
Fitch acknowledged he had used drugs and alcohol in the past, including before he committed offenses. He had been clean and sober for about 17 years and attended a substance recovery group at the hospital. Asked about his "biggest trigger," he said, "My biggest trigger is drugs has its own use, smoking them," and referred to crack cocaine and marijuana. He continued, "Once I get used to it, I can't stop." He did not think he would have the desire to use drugs because, he said, "I know better." He was aware of substance abuse treatment programs like Narcotics Anonymous (NA), Alcoholics Anonymous (AA) and others. He said, "I can go to those to help me much, much more," and said he would go to them "[m]aybe once, twice, three times a week" if he were released. He also went to a group on "emotion management." He thought he had learned a lot, and was "doing good," attending all his groups, "maintaining" as he was supposed to and "not getting myself upset or anything." He thought he was safe to go home.
Fitch was asked to describe his commitment offense. He said, "I was riding the bus and I was on a drug called marijuana, and one of the ladies that was a senior citizen was on the bus and she got her arm caught in a bus door so I took her arm out of the bus door, and I asked the bus driver if he can call the ambulance for her to help the lady. So he cussed me out and told me, 'You and the F'ing lady get away from the door.' I said, 'That's not the right way to talk. We need to talk right. Can we talk things over? Can you come to the back of the bus' because the front door was open. And he came to the back of the bus. He asked me what did I want. He kicked me in the shin, and I went on the bus and I rushed him up to his seat. I didn't hit him. I didn't touch him. I just like threw punches like I was going to hit him and screaming at him. And when I swung, his head bumped on the bus driver's door part and bumped his eye and he got bruised up from me being too close to him." Asked how he would behave differently in that situation based on all the things he had learned since then, he said, "I would learn something kind of like how do you treat me in groups, nicer. I would study. I would have my booklet, big books, writing books."
Fitch indicated he thought being off his medication when the crime occurred was the reason he acted as he did. He thought that when he was on medications, "if there was a problem with me and I was in the community and that a reaction would happen to me and I would focus real badly, I got enough training where I learned what you do, go to my doctor or worker and let them know, 'Hey, I got a problem.' "
C. The Court's Findings and Order
The court then heard argument and stated its views. The court thought it was "clear . . . that Mr. Fitch, especially recently, has made some progress in the right direction; but it also appears . . . at this point that he still is suffering from a severe mental disorder that . . . cannot be kept in full remission without treatment, and that due to the mental disorder there is a substantial danger of physical harm to others, even though progress has been made. And I listened carefully to [Fitch] testify. I'm only sitting a few feet away. I can see the effort he's making to speak clearly to impress the court and to answer . . . questions candidly, and I think he made those efforts. But I have the doctor's information, and I'm concerned . . . when the doctor tells me that [Fitch] has wavered over the past year regarding his insight into his mental illness. [¶] . . . [T]hat the doctor tells me that [Fitch] has reported to her that he does not need medication is significant, that he is currently taking antipsychotic medications, that he's not in full remission." The court emphasized that it was "important information" that Fitch told Dr. Mancusi he did not need medication, and that the court could not "ignore that uncontradicted testimony that he's made that statement."
The court found the People's allegations were true, in that Fitch had a severe mental disorder that was not in remission without treatment, and that by reason of the severe mental disorder, he represented a substantial danger of physical harm to others. It ordered that Fitch's commitment be extended to April 23, 2018. Fitch filed a timely appeal from this order.
DISCUSSION
Fitch argues we must reverse the trial court's order extending his commitment for several reasons: first, the court erroneously admitted case-specific hearsay contained in Dr. Mancusi's September 1, 2016 evaluation and in her testimony in violation of our Supreme Court's holding in People v. Sanchez, supra, 63 Cal.4th 665; second, the admission of this case-specific hearsay was prejudicial to him under the "miscarriage of justice" standard for evaluating state law evidentiary errors; third, although his trial counsel sufficiently objected below to the admission of the case-specific hearsay, any failure to object was ineffective assistance of counsel; and fourth, the record lacks substantial evidence that he represented a substantial danger of physical harm to others.
The People argue that Fitch forfeited any Sanchez claims by his trial counsel's failure to object on that specific basis. Further, this failure was not ineffective assistance of counsel because Dr. Mancusi's evaluation was admissible as a business record and, therefore, Dr. Mancusi could rely on it in her testimony; and, further, counsel had a tactical reason for not objecting on a Sanchez ground because she relied on the evaluation and other records in cross-examining Dr. Mancusi. In any event, they contend, Fitch was not prejudiced by any failure to object because the hearsay evidence "was largely insignificant to the prosecution's case and the trial court's ruling."
I.
Fitch's Hearsay and Ineffective Assistance of Counsel Claims
In Sanchez, our Supreme Court determined that an expert witness on gangs testifying in a criminal jury trial could not relate case-specific hearsay of which he had no personal knowledge to explain the basis for his expert opinion because "those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.) The court concluded the long-standing "paradigm" that an expert may testify about case-specific hearsay to show the basis for his or her opinion "is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.) The Sanchez court emphasized that an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
The Sanchez court also discussed the admissibility of such hearsay statements in a criminal trial if made for testimonial purposes under the confrontation clause of the federal Constitution and Crawford v. Washington (2004) 541 U.S. 36. (Sanchez, supra, 63 Cal.4th at pp. 679-681.) This analysis does not apply to civil trials (id. at p. 680, fn. 6), including an MDO commitment extension proceeding. (People v. Wrentmore 196 Cal.App.4th 921, 928, overruled in part on other grounds in People v. Blackburn (2015) 61 Cal.4th 1113, 1136 [MDO commitment extension trial is a civil hearing], citing § 2972, subd. (a); see People v. Allen (2008) 44 Cal.4th 843, 860-861 [confrontation clause protections and Crawford do not apply to civil commitment proceedings under the Sexually Violent Predator Act, Welf. & Inst. Code, § 6600, et seq.].)
"Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) On the other hand, an expert's testimony about general knowledge in his or her field of expertise is admissible. (Id. at pp. 676-677.)
Here, some of Dr. Mancusi's evaluation and testimony related as true certain incidents, events and other information that she obtained from incident reports and other records. Further, whether or not the People are correct that the court properly considered Dr. Mancusi's September 1, 2016 evaluation because it was admissible as a business record under Evidence Code section 1271—an issue which we do not decide—the People do not contend with the layers of hearsay that are contained within the evaluation. (See, e.g., San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1304 [conversation described in an admissible business record had to fall within its own exception to the hearsay rule to be admissible].) Thus, it is apparent that the People will have to contend further with the hearsay rules, including those articulated in Sanchez, if they pursue further commitment extensions for Fitch.
Evidence Code section 1271 provides that evidence of a writing made as a record of an act, condition or event is not made inadmissible by the hearsay rule when offered to prove the act, condition or event if the writing was made in the regular course of business at or near the time of the act, condition or event; a custodian or other qualified witness testifies to its identity and the mode of its preparation; and the sources of information and method and time of preparation were such as to indicate its trustworthiness.
However, we do not need to resolve the hearsay rules now because, as the People suggest in contesting Fitch's ineffective assistance of counsel claim, clearly admissible, non-hearsay evidence provides sufficient support for the trial court's decision to extend Fitch's commitment. Further, regardless of the resolution of Fitch's hearsay claims, the parties' debate over the sufficiency of Fitch's trial counsel's objections below and Fitch's alternative claim of ineffective assistance of counsel, Fitch was not prejudiced in any way by the admission of any purported case-specific hearsay because this evidence was not critical to the trial court's decision, which was firmly rooted in and supported by substantial, non-hearsay and expert evidence that Fitch represented a substantial danger of physical harm to others as the result of a serious mental disorder that was in only partial remission. We turn now to this analysis.
II.
Substantial Non-Hearsay and Expert Evidence Supports the Court's Extension Order.
"The Mentally Disordered Offenders Act (§ 2960 et seq.) provides for involuntary civil commitment as a condition of parole for prisoners who are found to have a 'severe mental disorder' if certain conditions are met. (§ 2962, subds. (a)-(f).) The commitment is for a term of one year and the district attorney may extend the commitment annually for an additional year by filing a petition. (§ 2972, subds. (c), (e).)" (People v. Alsafar (2017) 8 Cal.App.5th 880, 882, fn. omitted.) Among other things, the petition must specify that (1) the MDO "has a severe mental disorder" (2) that is "not in remission or cannot be kept in remission if the person's treatment is not continued," and (3) that, "by reason of his or her severe mental disorder, the [MDO] represents a substantial danger of physical harm to others." (§ 2970, subd. (b).) The People must prove these three elements beyond a reasonable doubt before the MDO's commitment can be extended for another year. (§ 2972, subds. (a), (c); People v. Noble (2002) 100 Cal.App.4th 184, 190.)
Inherent in this third element is the federal constitutional requirement that the MDO "suffer[s] from a seriously and substantially impaired capacity to control his behavior." (People v. Putnam (2004) 115 Cal.App.4th 575, 581-582.)
Fitch contends there is insufficient evidence to establish these three elements in his case, the third element in particular. In considering his claim, "we view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence—i.e., evidence that is reasonable, credible, and of solid value—to support the [trier of fact's] finding." (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398.) If the record contains substantial evidence, reversal is not merited "simply because the circumstances might also reasonably be reconciled with a contrary finding," and we neither reweigh the evidence nor reevaluate a witness's credibility. (People v. Albillar (2010) 51 Cal.4th 47, 60.)
A. There Is Substantial Evidence of a "Severe Mental Disorder."
Regarding the first element, that the MDO has a "severe mental disorder," this term "means an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment . . . . The term . . . does not include a personality or adjustment disorder, . . . developmental disabilities, or addiction to or abuse of intoxicating substances." (§ 2962, subd. (a)(2).) Dr. Mancusi testified that Fitch had been diagnosed with schizophrenia, among other things. Fitch agreed that he suffered from schizophrenia, and that it caused him to engage in delusional thinking and other things. Clearly, there is substantial evidence of this first element.
B. There Is Substantial Evidence That Fitch Is Not in Remission.
Regarding the second element, that the MDO is not in remission or cannot be in remission without continued treatment, "[t]he term 'remission' means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support. A person 'cannot be kept in remission without treatment' if during the year prior to the question being before . . . a trial court, he or she has been in remission and . . . he or she has not voluntarily followed the treatment plan." (§ 2962, subd. (a)(3).)
Here, Dr. Mancusi testified that Fitch's schizophrenia was in only partial remission, even though she, and Fitch, testified that he was taking an antipsychotic medication. Dr. Mancusi said that despite taking such medication, Fitch had displayed symptoms that were consistent with schizophrenia, including disorganized thought processes, rambling speech, difficulty conveying ideas that make it difficult for others to follow his ideas and misperceptions about the intentions of others at times led to some agitation or irritability. On cross-examination, Dr. Mancusi acknowledged that such symptoms were also consistent with a cognitive disorder caused by Fitch's documented head injury. However, she was unequivocal that Fitch's disorganized thought processes were a symptom of schizophrenia. Disorganized thought processes were evident in some of Fitch's testimony, such as when he did not testify coherently when questioned about what he had learned about dealing with some of his schizophrenia symptoms and how he would act differently in the circumstances leading to his commitment offense.
Also, Fitch himself testified that he had experienced delusional thinking in the six months prior to the hearing, and did not dispute that this is a symptom of schizophrenia. He also indicated that this delusional thinking caused him to be frustrated, angry and upset in groups, emotional states Dr. Mancusi said were consistent with schizophrenia.
Fitch also testified that he had not had delusions since taking his Abilify medication, which he began taking in September 2016, about five months before the hearing. Regardless, under our substantial evidence standard of review, we must consider his testimony that he had had delusions in the six months prior to the hearing.
Also, Dr. Mancusi and Fitch provided evidence that Fitch was not voluntarily following the treatment plan. Dr. Mancusi testified that Fitch had said he did not need medication, and Fitch himself testified that he refused prescribed medication on one occasion. Further, Fitch had no relapse prevention plan of any real substance to present to the court, although Dr. Mancusi said she had repeatedly asked him about this plan. He simply indicated that he would stay with his sister, seek help to find a psychiatrist and take any medications the psychiatrist prescribed, and participate in an undetermined amount in NA and AA groups; and he did not indicate that he had done anything to arrange for any of this to occur. In short, there was substantial evidence that established this second element.
C. There Is Substantial Evidence That Fitch, Because of His Schizophrenia, Represents a Substantial Danger of Physical Harm to Others.
Regarding the third element, that by reason of the severe mental disorder the MDO represents "a substantial danger of physical harm to others," the MDO statutes do not define this phrase beyond stating that it "does not require proof of recent overt act." (§ 2962, subd. (g).) However, our Supreme Court has instructed that, while " 'substantial danger of physical harm to others' is without definition," "[i]n context, it appears to mean a prediction of future dangerousness by mental health professionals." (In re Qawi (2004) 32 Cal.4th 1, 24.) Further, courts, including ours, have recognized that "[a] single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of the commitment." (People v. Williams (2015) 242 Cal.App.4th 861, 872 (Williams); accord, People v. Bowers (2009) 169 Cal.App.4th 1442, 1450; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.)
Here, Fitch expressly "does not dispute that his commitment offense demonstrated a lack of control that led to physical violence." He also testified that he committed that offense because he was off his medication, as well as under the influence of marijuana. Based on this evidence, the trial court could reasonably conclude that due to his mental illness and his unwillingness at the time to take his medications (as well as his substance abuse), Fitch had caused physical harm to others. The court then had to determine whether he continued to represent a substantial danger of physically harming others again. There was substantial evidence that he did.
First, the court could reasonably rely on Dr. Mancusi's expert opinion that Fitch, because of his schizophrenia, represented a substantial danger of physical harm to others. Dr. Mancusi testified that she thought he presently represented a substantial danger of physical harm to others because he had a severe mental disorder that was not fully in remission and had not demonstrated a commitment to medication and therapy sufficient to be safely managed in the community. This opinion was well-grounded in, and well supported by, Dr. Mancusi's own observations about Fitch based on her encounters with him. We have already discussed her testimony that Fitch exhibited to her a disorganized thought process, which she unequivocally identified as a symptom of a schizophrenia, and that he declared he did not need medication. Dr. Mancusi also testified that she had repeatedly asked Fitch about his relapse prevention plan, but that he never provided one to her. While Fitch's own testimony was that he had no plan to present to the court because hospital staff had thrown it away, the court could reasonably conclude this testimony was not credible in light of Fitch's failure to provide any specificity about any of his plan's details. Indeed, his testimony did not indicate that he had made any efforts to find psychiatric help or support groups such as NA and AA upon release, regardless of his indications that he was willing to do so. Without a viable relapse prevention plan and in light of his wavering understanding of his need for medication, his efforts to control his violent behavior in the hospital's structured environment did not undermine the trial court's conclusion that he presented a risk of violence upon release. (See Williams, supra, 242 Cal.App.4th at p. 875 ["Since [defendant] had no credible relapse prevention plan, his lack of violence in confinement was not substantial evidence that he could control his impulse toward violence on unsupervised release"].)
Further, nothing in Sanchez prohibited Dr. Mancusi from relying on hearsay evidence in forming her opinion. As we have discussed, Sanchez prohibits an expert from "relat[ing] as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) However, Sanchez expressly states, "[a]ny expert may still rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he did so." (Id. at p. 685.) Appellate courts have since repeatedly recognized this distinction. (People v. Bona (2017) 15 Cal.App.5th 511, 522; Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1285; People v. Roa (2017) 11 Cal.App.5th 428, 451.)
Further supporting the trial court's finding is Fitch's own testimony that in the past six months he continued to experience delusions that caused him to be frustrated, angry and upset in groups, and his inability to explain what he had learned about how to deal with his symptoms, other than to rest and consult hospital staff. Repeatedly, when asked what he would do in challenging situations, he indicated he would seek help, but did not say from whom. In view of his belief that he did not need to participate in CONREP, and his failure to identify psychiatric resources in the community where he intended to live, his assertion that he would "seek help" does little to vitiate the risk he posed. Also, asked how he would behave differently in the situation that led to his commitment offense, he gave a virtually incomprehensible answer that included, "I would study. I would have my booklet, big books, writing books." He also acknowledged the role of drugs in his commitment offense and that he could not stop taking them once he got used to them; the court could reasonably conclude that his testimony that he would not take them because "I know better" was insufficient to demonstrate he would avoid them upon release.
In short, the trial court could reasonably conclude from Fitch's and Dr. Mancusi's testimony that Fitch not only continued to engage in disorganized thought processes symptomatic of schizophrenia, but also to experience delusions and aggressive emotions over which he had very limited control, and that he was not able or willing, on release, to continue medication and obtain the treatment necessary to prevent him from engaging in violence of the kind involved in his commitment offense.
Many of Fitch's arguments amount to a request that we reweigh the evidence, which, when considering a claim of insufficient evidence on appeal, we do not do. Rather, we "determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment." (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465.)
Fitch argues, for example, that there is no direct evidence that he engaged in an overt violent act in the year prior to the hearing (and that the hearsay evidence indicated he acted in self-defense). As he acknowledges, the MDO statute expressly states that an overt act is not required to establish the third element, and there was other evidence, such as Dr. Mancusi's opinion, that supports the court's determination of his dangerousness. (§ 2962, subd. (g).) Similarly, Fitch is dismissive of Dr. Mancusi's testimony that he was only in partial remission and demonstrated a wavering insight into his disorder and how to cope with it. Instead he focuses on the fact that he refused to take medication only on one occasion and contends Dr. Mancusi's testimony shows only that he needs continued treatment. He apparently would have us give no weight to Dr. Mancusi's testimony that he told her he did not need medication at all or to his own testimony that he had suffered delusions in the previous six months. Again, it is not our function to reweigh the evidence.
Fitch contends his circumstances are similar to those discussed in Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453. In Jesse G., this court concluded that the evidence did not support issuance of a conservatorship order under the Lanterman-Petris-Short Act, section 5000 et seq., because it did not establish that Jesse G. was gravely disabled, although he continued to exhibit symptoms of his schizophrenia. The case is inapposite. The "gravely disabled" standard we applied in Jesse G. involved a condition " 'in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.' " (Jesse G., at p. 460.) This is distinct from the "substantial danger of physical harm to others" standard we must apply in MDO proceedings, and in any event Jesse G. neither had a history of causing physical harm to others nor had recently stated he did not need medication.
The circumstances below are similar to those discussed in Williams, supra, 242 Cal.App.4th 861. In 1993, Williams was tried for injuring two police officers and a police dog, including with the use of a machine gun, while on bail for previous offenses. (Id. at p. 863.) He was found not guilty by reason of insanity and committed to a state mental hospital with a maximum commitment date in 2014. (Ibid.) Williams apparently had not engaged in violent actions while hospitalized. (Id. at p. 875.) In 2014, the superior court ordered his involuntary commitment extended under section 1026.5, subdivision (b), and Williams appealed. (Williams, at pp. 863, 871.)
Before 2013, Williams had been diagnosed with alcohol and amphetamine dependence and a personality disorder that was not otherwise specified (NOS). (Williams, 242 Cal.App.4th at p. 864.) In 2013, a treating doctor concluded that Williams did not have a mental disorder, including because "voluntary intoxication" did not qualify as one under section 1026. (Williams, at p. 865.) This doctor thought Williams had engaged in, and was committed to engaging in, appropriate conduct and treatment, and recommended his discharge, although the doctor acknowledged he had a very limited support system in place. (Ibid.) The People petitioned to extend Williams's commitment, and at a subsequent bench trial the doctor testified consistent with these conclusions. (Id. at pp. 866, 869-870.) William's treating psychiatrist at the state hospital also urged his release. (Id. at p. 866.)
The People presented the testimony of another doctor at the state hospital, who had known Williams since 2010. (Williams, supra, 242 Cal.App.4th at p. 866.) That doctor testified that Williams suffered from a personality disorder NOS, had resisted treatment for a long time after being hospitalized, and had only increased his participation in treatment and " 'softened' " his oppositional stance in the last few months. (Id. at pp. 866-867, 869.) The doctor opined that Williams posed a " 'really significant' " danger if released without supervision, including because he "was still defiant toward staff he disliked, even to the point of refusing prescribed medication," "his personality disorder was 'a very, very important part of his crime' and could manifest again similarly," "he had no realistic relapse plan," and his "ability to abstain from alcohol and drugs in the hospital setting did not prove he could do so on his own." (Id. at p. 867.) The trial court extended Williams's commitment based on this doctor's testimony. (Id. at pp. 870-871.)
Williams appealed, contending there was not substantial evidence that he suffered a mental disorder that created a substantial danger of physical harm to others. (Williams, 242 Cal.App.4th at pp. 871-872.) The appellate court disagreed. It concluded that "there is no credible evidence that [Williams] has learned to control the manifestations of his personality disorder outside a hospital setting." (Id. at p. 873.) As evidence to support this view, the court noted, among other things, that Williams remained defiant towards staff, refused to treat a potentially terminal illness, had no support system in the community, and had a late-constructed and very limited relapse prevention plan that failed to deal with his substance abuse problem. (Id. at pp. 873-875.) The court characterized some of Williams's arguments as requests that the court reweigh the evidence. (Id. at p. 874.) It rejected Williams's contention that his lack of violence since hospitalization showed he could control his behavior because of his prior history of violence connected to his substance abuse and his lack of a credible relapse prevention plan. (Id. at p. 875.) Further, the court concluded, "[t]he issue is not whether [Williams] could put on a façade of friendliness and cooperation in the hospital setting in order achieve his goal of unsupervised release, but whether he would have serious difficulty in controlling dangerous behavior once he had attained that goal and no longer had expert help or support to keep him on the straight and narrow. The trial court was entitled to rely on . . . [the] opinion [of the doctor testifying on behalf of the People] that [Williams's] personality disorder would cause him to have such difficulty." (Ibid.)
Fitch attempts to distinguish Williams by contending that Fitch did take steps to prevent his relapse into substance abuse by attending substance abuse recovery groups, testing negative for illegal drugs at the hospital, remaining sober for 17 years, acknowledging the relationship between his past drug use and trouble with the law, and indicating he would attend an undetermined number of AA and NA meetings if released. This, however, is simply another effort to persuade us to reweigh the evidence. There are striking similarities between the present case and Williams. Similar to Williams, Fitch continued to displayed symptoms of a severe mental disorder that caused him to act violently in the past, showed limited and wavering insights into his disorder and treatment, refused to take prescribed medication on one occasion and declared he did not need medication at all on another, and did not present a relapse prevention plan of any real substance.
Fitch also contrasts his circumstances with those discussed in three cases in which persons found not guilty by reason of insanity had their commitments extended because these persons continued to experience the same delusions and paranoias that had caused their initial commitment, which he contends he does not. (See People v. Sudar (2007) 158 Cal.App.4th 655, 665 [finding harmless an erroneous jury instruction because the defendant "does not recognize he suffers from mental illness or needs treatment" and "continues to suffer from complex delusions that overpower his judgment"]; People v. Zapisek, supra, 147 Cal.App.4th at p. 1166 [noting that defendant "continued to believe wholeheartedly in delusions and experience paranoia . . . of the type that has led him to act violently in the past"]; People v. Bowers (2006) 145 Cal.App.4th 870, 879 [referring to evidence that the defendant suffered from a schizoaffective disorder, was in an unstable condition, and continued to experience auditory hallucinations which commanded her to hurt herself or others].) However, the evidence showed Fitch did continue to suffer some of the symptoms of his mental illness, and nothing in the cases he cites indicates that a person who remains in something less than the full grasp of their severe mental disorder may not continue to pose a substantial danger of physical harm to others.
In short, there is substantial evidence that at the time of the bench trial, Fitch continued to suffer from the severe mental disorder that led him to cause physical harm to another in the commitment offense; that this severe mental disorder was only in partial remission and only with the help of antipsychotic medication and professional treatment; that Fitch continued to display symptoms of this disorder, including delusions and angry emotions; that Fitch indicated in the previous year that he did not need his antipsychotic medication and on one occasion refused it; that he at times demonstrated a lack of insight into his disorder and the treatment necessary to control it; and that he did not have a realistic relapse prevention in place. Furthermore, Dr. Mancusi, one of Fitch's treating psychiatrists, opined that Fitch, because of his severe mental disorder, represented a substantial danger of physical harm to others if released, and that opinion was corroborated by her own observations of, and encounters with, him. The trial court could reasonably conclude from this evidence that Fitch, if released, would have serious difficulty controlling his mental disorder behavior and committing to the necessary treatment for it and, therefore, represented a substantial danger of physical harm to others. Because the trial court's order is supported by substantial evidence, including expert opinion and non-hearsay testimony, Fitch was not prejudiced by any purported errors by the trial court in admitting and relying on case-specific hearsay evidence, or by any purported deficient performance by his trial counsel in failing to object to the admission of such evidence on Sanchez grounds.
DISPOSITION
The order appealed from is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.