Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE504098
RUSHING, P.J.
I. Statement of the Case
Defendant Ngai Fung Fong was committed to the Department of Mental Health after he was found not guilty by reason of insanity (NGI) of eight counts of attempted murder, and one count each of injuring a cohabitant, threatening unlawful bodily injury, false imprisonment, dissuading a witness by threat or force, and attempted carjacking. (Pen. Code, §§ 664, subd. (a), 187, 273.5, subd. (a), 422, 236, 237, 136.1, subd. (c)(1), 215, 1026, 1026.5.) In 2008, the trial court granted defendant outpatient treatment status, and he was released to the South Bay Conditional Release Program (CONREP). (§§ 1601, subd. (a), 1603, 1604.) In 2009, the court revoked his outpatient status. (§ 1608.)
All unspecified statutory references are to the Penal Code.
Defendant now appeals from the order revoking his outpatient status. He claims the order is not supported by substantial evidence. We disagree and affirm the order.
II. Background
The facts underlying the offenses that led to the NGI verdict were summarized in a 2009 report by CONREP. On February 5, 2005, defendant was in a psychotic state, he tied up his girlfriend, hit her on the head, held a knife to her throat, and threatened to kill her. He then fled in a car. While driving, he saw a family walking with a stroller, thought they were humiliating him, and plowed his car into them. He then turned around and drove back, hitting them and some people who were helping them. He stopped and got out of his car waiving a knife. He reportedly said, “ ‘Can the police shoot me in the head?’ ” and “ ‘I want to kill myself.’ ”
In July 2008, the court granted defendant outpatient treatment status. In January 2009, CONREP submitted its quarterly report. It expressed concern about defendant’s capacity to participate in his treatment. For example, although he responded to direct questions about his mental illness, he took a minimalist approach to reporting, showed little insight into his pathology, and had slight understanding of his relapse cycle. Although he claimed to be disciplined, he did not conform to rules concerning money and had opened a checking account, which caused the staff to consider him a flight risk and retain his passport. Although he was polite and had not exhibited any aggressive behavior, he resisted restrictions on him. The report further noted that defendant believed that his medication had stabilized him enough to return to his high-tech job. However, staff found that defendant’s job had been a stress trigger and considered a return to a high-tech job to be a risk factor that defendant failed to appreciate. The report opined that the crux of defendant’s treatment centered on his willingness to be accountable for his violent conduct and accept the potential for relapse. Consequently, “[v]igilant reporting, self-awareness and receptivity to feedback” were essential to help him reduce that potential.
In May 2009, CONREP submitted its annual report. Although defendant did not pose an imminent danger, he still suffered from serious mental illness, showed minimal insight into his potential for relapse, demonstrated grandiosity, and exhibited a lack of empathic attunement. Therefore, staff believed that continued treatment was necessary to prevent defendant from decompensating and posing a danger. The report noted that defendant’s progress fluctuated between an apparent willingness to consider how his mental illness has affected his life and volunteering little information about his current mental state. And although he claimed to be peaceful and symptom free, he had to be told to do things, he swore under his breath, he did not accept the limitations placed on him, he considered restrictions on him to be unreasonable, and he was dismissive of any feedback that did not support his agenda. Moreover, staff did not think he would report symptoms if he had them; nor did staff find him to be committed to the introspection necessary help prevent a relapse. He also continued to envision a return to the high-tech field, which “[d]emonstrat[ed] unrealistic self-assessment skills and a willingness to put others at risk, to protect his ego.”
Defendant disagreed with the report and its recommendation for continued outpatient treatment and refused to sign off on it. The district attorney then sought an extension of his status. However, before the court held a hearing on the request, CONREP submitted a formal request to revoke defendant status on the ground that he could no longer be safely treated in an outpatient setting. Kris Campbell, LMFT, a Forensic Mental Health Specialist, filed a detailed report listing the grounds for revocation and the facts support them. The grounds were as follows: (1) defendant was flight risk; (2) he was unwilling to accept feedback; (3) he had gained no insight into his mental illness; (4) his memory and self-reporting was selective and minimal; (5) he resisted treatment while trying to appear compliant; (6) the very personality traits that underlay his offenses, including grandiosity, lack of empathy, and social isolation and rigidity, remained intact; and (7) he overestimated his functional abilities.
The court held a hearing to determine defendant’s status. At that time, defense counsel stated that defendant had disagreed with the recommendation for continued outpatient treatment and sought an order that his sanity had been restored. However, because CONREP now sought to revoke his outpatient status, defendant was willing to accept a “TANGI”-i.e., temporary admission to the state hospital, not guilty by reason of insanity)-in lieu of a formal revocation of outpatient status because the TANGI hospitalization left open the possibility of defendant’s release back to the community on outpatient status. Counsel represented that CONREP was agreeable to a TANGI hospitalization.
The prosecutor acknowledged that CONREP would accept a TANGI solution. However, the prosecutor argued against it and sought a formal revocation. He noted that defendant had had the benefit of outpatient status and attentive and thoughtful care and services from CONREP, and yet he had failed. The prosecutor opined that defendant currently posed a risk of danger and argued that CONREP’s detailed request seeking revocation supported that conclusion. He noted the findings that defendant lacked sufficient awareness and had not made it through various safety checks.
Defendant spoke and said that he had gained insight, was sorry for what happened, and regretted the pain he had caused. He argued against revocation of his status and asserted that, if anything, a TANGI hospitalization was more appropriate.
The court expressed its familiarity with the case, having been the court that found defendant NGI and having read all of the reports from CONREP. The court emphasized that the issue was whether the community would be safe if defendant were returned to it. The court expressed great concern about defendant’s attitude toward money, his secrecy, his failure to be forthcoming in treatment, and, most of all, the demonstrated lack of insight concerning his mental illness, its causes, and triggers. The court acknowledged defendant’s profession of apology and regret, but it deferred to the opinions of the experts at CONREP who found that defendant had not gained insight or demonstrated empathy for his victims. The court stated that defendant’s lack of self-awareness about his condition and violent behavior as well as his lack of empathy were important in determining whether defendant posed a threat to the community.
The court further noted that each time it had extended defendant’s outpatient status, it had done so with the express proviso that it could be revoked if defendant failed to follow CONREP’s recommendations. The court noted that each time defendant promised to follow through on those recommendations, gain insight, and acknowledge the “red flags” underlying his mental problems and behavior. However, the court failed to see him do so. The court also found persuasive circumstantial evidence that defendant posed a flight risk. The court noted that defendant had asked for $250 to buy luggage saying he needed it to store his belonging, and when CONREP refused and offered $30 for storage bins, he turned it down.
The court acknowledged that CONREP had even more recently requested a TANGI hospitalization, but the court denied that request “because I think I’ve extended that to you on a number of occasions and that simply hasn’t worked.” The court then declined to find that defendant had been restored to sanity and revoked his outpatient status, finding that he “represent[ed] a flight risk” and a “risk to the community.”
III. Applicable Legal Principles
Section 1608 provides, in relevant part, as follows. “If at any time during the outpatient period, the outpatient treatment supervisor is of the opinion that the person requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the community program director shall notify the superior court... of such opinion by means of a written request for revocation of outpatient status.”
Upon receipt of such a request, the court must hold a hearing to determine whether to revoke outpatient status. (§ 1608.) The prosecutor bears the burden to prove by a preponderance of evidence that outpatient status should be revoked. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419.) On appeal, the court will uphold an order revoking outpatient status if it is supported by substantial evidence. (In re McPherson (1985) 176 Cal.App.3d 332, 341-342.)
IV. Discussion
Defendant contends that the order revoking his outpatient status is not supported by substantial evidence. We disagree.
There was substantial circumstantial evidence to support the court’s finding that defendant posed a flight risk. CONREP staff reported that defendant had withdrawn several hundred dollars from a bank account, closed it, and opened an unauthorized account, and after doing so, he had provided conflicting information about it. He said he wanted money to buy luggage for storage, but when that request was denied, he declined an offer for storage bins. He also asked for his passport saying he just needed to get information from it to fill out a renewal application.
There was also substantial circumstantial evidence to support the court’s finding that defendant posed a risk to the community. In particular, there is evidence that defendant was unwilling to accept feedback from staff about his mental illness. He underestimated his mental problems and felt able to manage his psychotic symptoms solely with medication. He refused to accept that his dangerous tendencies resulted not just from his psychosis but also from personality features that would cause him to overreact to perceived injuries to his ego. And he avoided accountability for the seriousness of his conduct, minimized it, and accused staff of being paranoid.
There was evidence that defendant continued to under-appreciate the gravity of his conduct and its causes. Staff reported that he could not identify the precursory behaviors that signaled erratic and dangerous conduct. He claimed to understand his emotions but could not identify anything that he had learned. His explanation for his violent driving assault was simply that he woke up one morning feeling paranoid. And he denied that significant events in his life before the incident were manifestations of his psychosis.
There was evidence that defendant was unable and unwilling to reveal pertinent information about himself. Staff reported that he did so only when confronted with evidence and then he revealed relevant information in a selective, minimal and distorted way. He also did not keep his family informed of his treatment or progress. He denied having had visual hallucinations and trying to hide his paranoia. And he declined to disclose and denied significant triggering events in his life that occurred before the driving incident.
There was evidence that defendant feigned compliance with and then resisted treatment. Staff reported that defendant had been advised that his treatment required rigorous and honest self-reporting. However, he adopted a minimalist approach and defended doing so. He was directed to keep a journal, but his compliance was inadequate and consisted of discussing sporting events. And when confronted with his poor performance, he was intolerant and tried to undermine his treatment.
There was evidence that certain of the personality features that contributed to his dangerous conduct remained intact. Staff reported that he continued to manifest grandiose self-perceptions. He believed that he was better than others and thought that he deserved more freedom than other patients because he had been more successful in life. Defendant overestimated his ability to deal with his psychotic symptoms and return to work. He continued to lack empathy for his former girlfriend and the people he had rammed with his car. He said that they had just gotten in his way. Staff also reported that defendant had minimal social interactions and tended to be inflexible, which made getting along with him difficult.
In our view, evidence before the court in the various reports, as summarized above, provides ample, if not overwhelming, evidence to support the court’s implicit findings that defendant not only required extended inpatient treatment but also refused to accept the outpatient treatment and supervision he had been receiving.
The record also supports the court’s decision to reject an alternative TANGI hospitalization, even though CONREP appeared to seek it as an alternative to formal revocation. In this regard, we reject defendant’s suggestion that CONREP’s willingness to accept a TANGI disposition somehow eliminated the factual basis for the findings necessary to justify a revocation.
CONREP submitted a formal request for revocation. Notwithstanding the representations by counsel and the prosecutor, there was no evidence that CONREP opposed complete revocation. There is no evidence that CONREP sought to withdraw its report or disagreed with the factual bases and analyses underlying its request for revocation. There was no new evidence that defendant had made sufficient progress in his treatment to make formal revocation inappropriate. Under the circumstances, the court was authorized to rule on the request for revocation and make an independent determination concerning whether it was appropriate. That CONREP was willing to accept a TANGI disposition was a factor that the court could consider. CONREP’s willingness was neither dispositive nor controlling.
VI. Disposition
The order revoking defendant’s outpatient status is affirmed.
WE CONCUR: PREMO, J., ELIA, J.