Opinion
A161196
08-12-2021
THE PEOPLE, Plaintiff and Respondent, v. CALEB FOX, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H53418
BROWN, J.
Defendant Caleb Fox was found not guilty by reason of insanity of false imprisonment for the purpose of protection against arrest under Penal Code section 210.5. He began his civil commitment at Napa State Hospital on March 11, 2014. On June 5, 2019, defendant filed an application for restoration of sanity pursuant to section 1026.2, which was denied following a court trial. Defendant contends the court erred in finding that he would continue to pose a danger to the health and safety of others upon conditional release. We shall affirm.
All further statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
On April 24, 2012, defendant attempted to rob a bank in Hayward. Defendant took a hostage at knifepoint and dragged the hostage through the bank lobby. Upon arriving, the police persuaded defendant to release his victim and took defendant into custody.
The Sonoma County District Attorney charged defendant with kidnapping to commit a sex crime (§ 209, subd. (b)(1)); false imprisonment for the purpose of protection against arrest (§ 210.5); assault with a deadly weapon (§ 245, subd. (a)(1)); attempted robbery (§§ 664, 211); and second degree burglary of a vehicle (§ 459). Defendant was found not guilty by reason of insanity of false imprisonment for the purpose of protection against arrest, and the District Attorney dropped the remaining charges. (§ 210.5.) Defendant began his civil commitment at Napa State Hospital on March 11, 2014.
On June 5, 2019, defendant filed an application for restoration of sanity, which the court construed as a petition for conditional release. (§ 1026.2.) The court appointed clinical psychologist Dr. Marlin Griffith to evaluate defendant and determine whether he would pose a danger to the health and safety of others due to mental disorder if under supervision and treatment in the community. (§ 1026.2, subd. (e) .)
A court trial was set for September 11, 2020, and Dr. Griffith testified as to his assessment. Dr. Aaron Bartholomew, defendant's treating psychologist at Napa State Hospital, also testified as to defendant's readiness for conditional release and outpatient treatment.
Although an applicant has “substantial procedural safeguards” at the outpatient hearing stage, the right to a jury is not included. (People v. Dobson (2008) 161 Cal.App.4th 1422, 1422 (Dobson), citing People v. Tilbury (1991) 54 Cal.3d 56, 70.)
Dr. Marlin Griffith
Dr. Griffith testified based on his review of records and his 90-minute evaluation of defendant on August 28, 2019. According to Dr. Griffith, defendant suffers from schizoaffective disorder, bipolar type and mild alcohol use disorder. Defendant has a history of delusions and hallucinations as well as depression, mania, and being suicidal. While Dr. Griffith stated that defendant's alcohol use disorder is in remission due to his incarceration, he believed the alcohol use would not be an issue in the community. Dr. Griffith declined to say that defendant's schizoaffective disorder was in remission., he declined to say the same regarding defendant's schizoaffective disorder. Defendant seemed slightly depressed and anxious during the evaluation, but not to the level of a psychiatric disorder. Dr. Griffith administered psychological tests and determined that defendant's cognitive functioning is impaired and his intellectual function was in the low range of intellectual ability.
The tests Dr. Griffith administered addressed defendant's intellectual capacity and cognitive functioning. Dr. Griffith did not administer any psychiatric tests geared toward violence risk assessment.
Dr. Griffith testified that defendant understands his diagnosis of schizoaffective disorder, complies with his medication, and no longer shows signs of having a psychotic process. Dr. Griffith also noted that defendant has not been involved in any altercations since 2015. Dr. Griffith did not view defendant's limited participation in group treatment as an indication of dangerousness, instead attributing it to shyness. Defendant has had no problems interacting one-on-one with his therapists, psychologists, and doctors. However, Dr. Griffith conceded that attendance in treatment groups was important, as treatment professionals would want to assess whether psychiatric symptoms may emerge in a group setting; and Dr. Griffith admitted that as of 2019, defendant was attending only 17 percent of the groups. Although he believed defendant minimized and had “at best, limited insight” into his alcohol use disorder, Dr. Griffith's evaluation suggested there was a “very low likelihood” defendant would relapse.
Dr. Griffith was unaware that defendant is currently under the most restrictive level of care at Napa State Hospital. He admitted that this “would be a major factor [indicating] some lack of readiness.” And while Dr. Griffith acknowledged that it would be important for defendant to understand the antecedent triggers that led to his criminal behavior, he could not recall discussing those triggers with defendant. Dr. Griffith nonetheless opined that defendant “does not present a danger to the health and safety of others due to mental defect, disease or disorder if under [] supervision and treatment in the community.”
Dr. Griffith disclosed that he was unfamiliar with CONREP, the conditional release program, and the section 1026- related programs at Napa State Hospital, such as the relapse prevention plan. In addition, Dr. Griffith had not read defendant's most recent evaluation from Napa State Hospital, which was dated nearly one year after Dr. Griffith's single interview of defendant in 2019.
Dr. Aaron Bartholomew
The prosecution presented the testimony of Dr. Aaron Bartholomew, who agreed with Dr. Griffith that defendant suffers from schizoaffective disorder, bipolar type and mild alcohol use disorder. Dr. Bartholomew also attributed defendant's remission from mild alcohol use disorder primarily to the lack of access to alcohol at Napa State Hospital.
Although he is medically compliant, defendant told Dr. Bartholomew that he was not interested in continuing to take his anti-psychotic medication. Defendant acknowledges his mental disorder but believes that his medication would be unnecessary as long as he has enough sleep. Dr. Bartholomew believed that defendant's reluctance to continue taking his medication increases his risk of having another psychotic episode and engaging in dangerous behavior. Dr. Bartholomew worried that defendant's lack of insight into his mental disorder may lead to a lower likelihood of engaging in treatment, complying with medication, and understanding the factors that exacerbate his mental illness.
After noting that defendant is in the most restrictive unit within the hospital, Dr. Bartholomew recommended that defendant progress to less restrictive levels at Napa State Hospital before his release, as patients often become “stressed out, anxious, or overwhelmed” by the increasing demands of treatment and expectations as they approach the prospect of discharge. These less restrictive environments closely mirror the environment under CONREP. In assessing the risk of dangerousness, Dr. Bartholomew emphasized the importance of whether patients engage in treatment, take their medication, and attend to their mental health in these less restrictive environments, where patients would be without constant supervision.
Dr. Bartholomew stated that defendant has failed to participate in symptom management and substance recovery groups. Defendant also expressed an unwillingness to work with CONREP and has not yet developed a relapse prevention plan. Dr. Bartholomew testified that these factors indicate that defendant currently poses a danger to the health and safety of others due to his mental disorder. Defendant's lack of altercations since 2015 did not persuade Dr. Bartholomew that defendant is not dangerous, as defendant is under constant supervision.
After hearing testimony from Dr. Griffith and Dr. Bartholomew, the court denied defendant's application. Defendant filed a timely notice of appeal.
Defendant's commitment date ended on April 23, 2021, but the Sonoma County District Attorney filed a petition to extend defendant's commitment pursuant to section 1026.5, subdivision (b). As defendant remains committed, this case is not moot.
DISCUSSION
I. Statutory Framework Governing Restoration of Sanity Proceedings
A defendant found not guilty of a crime by reason of insanity may be committed to the Department of State Hospitals. (§ 1026, subd. (a).) The purpose of civil commitment is to “treat the individual's mental illness and protect him and society from his potential dangerousness.” (Jones v. United States (1983) 463 U.S. 354, 368.) The defendant may be released from civil commitment “(1) upon restoration of sanity pursuant to the provisions of section 1026.2, (2) upon expiration of the maximum term of commitment under section 1026.5 [citation], or (3) upon approval of outpatient status pursuant to the provisions of section 1600 et seq. (§ 1026.1.)” (People v. Sword (1994) 29 Cal.App.4th 614, 620 (Sword).)
“A defendant who has been acquitted by reason of insanity and committed to a state hospital can obtain release upon a finding that his or her sanity has been restored. (§ 1026.2.) Section 1026.2 sets forth the procedures for obtaining release. [¶] ‘The first step in the release process requires the defendant, who has filed a release application, to demonstrate at a hearing that he or she will not “be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community.” (§ 1026.2, subdivision (e).) If the court finds such at the hearing, the defendant is then placed in “an appropriate forensic conditional release program for one year.” (§ 1026.2, subdivision (e).) This is commonly called the outpatient placement hearing.' ” (People v. Endsley (2016) 248 Cal.App.4th 110, 116 (Endsley I).)
“ ‘The second step in the release process, often referred to as the restoration of sanity trial, normally occurs one year after the defendant has been placed in an outpatient program. Typically after one year, the court holds a trial to determine whether the defendant's sanity has been restored. Section 1026.2, subdivision (e), defines restoration of sanity as follows, “[T]he applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.” Unlike during the first step in the proceedings, the restoration of sanity trial requires the defendant to demonstrate that he or she is no longer a danger to the health and safety of others under all circumstances. During the first step of the release process, all the defendant must demonstrate is that she or he will not be a danger while “under supervision and treatment in the community.” (§ 1026.2, subd. (e); [citations].)' ” (Endsley I, supra, 248 Cal.App.4th at p. 117.)
At the first step of the process, the applicant must prove by a preponderance of the evidence that he or she would not pose a danger to the health and safety of the others due to mental disorder if under supervision and treatment in the community. (Endsley I, supra, 248 Cal.App.4th at p. 117; § 1026.2, subds. (e), (k).) If the applicant meets this burden, “the court shall order the applicant placed with an appropriate forensic conditional release program for one year” of outpatient supervision and treatment. (§ 1026.2, subd. (e).) If the application is denied at the first step and the applicant is not conditionally released, no new application may be filed for one year from the date of denial. (§ 1026.2, subd. (j).)
After either one year in a conditional release program or upon the recommendation of a conditional release program director, the court proceeds to the second step of the process, determining whether the applicant “is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.” (Endsley I, supra, 248 Cal.App.4th at p. 117; § 1026.2, subds. (e), (h).) The court “may either discharge the defendant, order confinement in a treatment facility, or renew its approval of outpatient status.” (Sword, supra, 29 Cal.App.4th at pp. 620-621, fn. omitted.) If the application for restoration of sanity is denied at the second stage, the applicant must wait one year to reapply. (§ 1026.2, subd. (j).)
II. Denial of Defendant's Application
This appeal follows the trial court's denial of defendant's application for restoration of sanity at the first step of the section1026.2 process, as the court construed his application as a petition for conditional release.
A. Standard of Review
The denial of a petition for conditional release under section 1026.2 is generally reviewed for an abuse of discretion. (Dobson, supra, 161 Cal.App.4th at p. 1433; People v. Bartsch (2008) 167 Cal.App.4th 896, 900 (Bartsch).) Under that standard, an appellate court defers to the decision of the trial court unless the trial court “exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jackson (1992) 10 Cal.App.4th 13, 19.) An abuse of discretion exists when the trial court's “factual findings critical to its decision find no support in the evidence” (People v. Cluff (2001) 87 Cal.App.4th 991, 998), but not when the defendant merely shows “ ‘facts afford[ing] an opportunity for a difference of opinion” (Sword, supra, 29 Cal.App.4th at p. 626).
Defendant asks us not to follow these authorities and urges us instead to review the trial court's decision under the substantial evidence standard. He relies on cases governing petitions for conditional release in contexts outside of section 1026.2: Under the sexually violent predator (SVP) commitment statutes and under the commitment scheme for mentally disordered offenders (MDOs). (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504 [substantial evidence standard applies to review of SVP petitions for conditional release]; People v. Gregerson (2011) 202 Cal.App.4th 306, 320 (Gregerson) [substantial evidence standard applies to review of MDO petitions for conditional release].)
We need not decide the applicable standard of review because we find that even under the substantial evidence standard, the evidence presented by Drs. Griffith and Bartholomew is more than sufficient to support the trial court's denial of defendant's petition for conditional release. Indeed, “[i]n this case, as in many others, ‘[t]he practical differences' between the abuse of discretion and substantial evidence standards of review are not significant.” (Gregerson, supra, 202 Cal.App.4th at p. 319.)
B. Analysis
Defendant first contends that the trial court's finding of dangerousness is speculative, as defendant has had only one altercation at Napa State Hospital and no violent or criminal action other than his underlying offense. However, Dr. Bartholomew attributed defendant's lack of dangerous behavior to the fact that he is in a highly controlled environment and under supervision 24 hours a day. In addition, violent behavior is merely one of the many factors to be considered in assessing dangerousness. (People v. Endsley (2018) 28 Cal.App.5th 93, 99 (Endsley II) [failure to participate in group therapy supported a finding of dangerousness]; People v. Parker (2014) 231 Cal.App.4th 1423, 1427 (Parker) [limited insight into mental disorder and lack of relapse prevention plan relevant in assessing dangerousness]; Bartsch, supra, 167 Cal.App.4th at p. 900-901, 903 [substance abuse disorders and failure to address triggers that resulted in harmful behavior relevant in finding of dangerousness].)
The court appropriately relied on other relevant factors in finding that defendant would continue to pose a danger to the health and safety of others upon conditional release. For example, Dr. Bartholomew noted that defendant has “limited insight into his mental disorder, ” believing that a lack of sleep is the major cause of his psychiatric symptoms. This lack of insight makes defendant less likely to engage in treatment, comply with medication, and be mindful of factors that may exacerbate the symptoms of his mental illness.
Defendant has also failed to develop a relapse prevention plan, which is designed to help patients deal with the symptoms of their mental illness that may lead to dangerous behavior. Dr. Griffith could not recall discussing with defendant the factors that triggered his mental illness and led to his criminal behavior. And although defendant has been medically compliant, his reluctance to continue taking his anti-psychotic medication underscores his lack of insight into his schizoaffective disorder. Dr. Bartholomew testified that defendant's failure to continue his medication would increase his risk of having another psychotic episode and engaging in dangerous behavior.
Defendant also asserts that the court's finding that he was likely to use alcohol upon conditional release was not based on an assessment of defendant's specific, individualized risk. But Dr. Griffith admitted that defendant has “at best, limited insight” into his mild alcohol use disorder, which is in remission, and Dr. Bartholomew emphasized that defendant is likely in remission because has not had access to alcohol while at Napa State Hospital. Defendant need not be fully recovered from his mild alcohol use disorder before conditional release, but the distinction between remission and recovery is nonetheless important in assessing dangerousness. (Bartsch, supra, 167 Cal.App.4th at p. 902, fn. 7.) These factors, in addition to defendant's failure to engage in a substance recovery group to support his ongoing sobriety, are both specific to defendant and relevant in assessing dangerousness, and they provide substantial evidence supporting the court's ruling. (Id. at p. 898.)
Defendant next contends that the court erroneously relied on his minimal participation in group treatment activities and his placement within the most restrictive level at Napa State Hospital in denying his petition for conditional release. This argument is meritless. Dr. Griffith acknowledged the importance of whether defendant's psychiatric symptoms would emerge in a group setting when assessing his readiness for conditional release. Dr. Bartholomew added that progress through the hospital system to less restrictive settings allows psychologists to assess whether patients can successfully and independently engage in treatment, take their medications, and take care of their mental health without constant supervision from staff. Moreover, Dr. Griffith gave his opinion that defendant is not dangerous while unaware that defendant is in the highest level of care at Napa State Hospital; when confronted with this fact, he admitted that this would “be a major factor in some lack of readiness.” The trial court appropriately considered defendant's failure to show that he is comfortable interacting with others and that he is capable of looking after his mental health while unsupervised.
Defendant's final argument comparing this case to People v. Johnson (2020) 55 Cal.App.5th 96 (Johnson), also falls short. In Johnson, the court reversed an order extending the defendant's commitment under the MDO statutory framework despite testimony that “[defendant] posed a substantial danger of physical harm to others based on evidence that [he] did not participate fully in his treatment and did not have a relapse prevention plan; that he did not have insight into his illness and the need for medication; that he was unlikely to take his medication if released; and that without medication, he was likely to decompensate and have more severe symptoms.” (Id. at p. 108.) Defendant argues that the trial court's reliance on these same factors was misplaced, and, absent any evidence that defendant had engaged in dangerous or violent behavior since his underlying offense, the trial court's decision should be reversed.
Defendant, however, fails to mention that Johnson had spent approximately 11 years in the community under CONREP, displaying an “unremarkable record” devoid of a single violent or aggressive incident. (Johnson, supra, 55 Cal.App.5th at p. 109.) The defendant in Johnson produced evidence of complying with CONREP's terms, except for going absent without leave and quitting his medication for a total of three months on two separate instances. (Ibid.) “Indeed, the evidence show[ed] that when he did stop taking his medication for two months, although his symptoms of schizophrenia increased, he did not engage in any violent behavior whatsoever.” (Ibid.) Although a lack of “violent or aggressive behavior of any kind over a long period of time is necessarily an important, objective factor that must not be ignored when determining” dangerousness, defendant fails to carry his burden of proof by demonstrating a similarly lengthy and “unremarkable record” in a setting less restrictive than his current one, where he is under constant supervision. (Id. at pp. 109-110.) And as defendant acknowledges, while the prosecution in Johnson carried the burden of proof beyond a reasonable doubt, defendant carries the burden of proof in this case. (Id. at pp. 106-107; §§ 2972, subds. (a)(2), (e), 1026.2, subds. (e), (k).)
Ultimately, although the experts disagreed on whether defendant would pose a danger to the health and safety of others upon conditional release, the court did not err in giving greater weight to the testimony of Dr. Bartholomew. While Dr. Bartholomew had been defendant's treating psychologist for two years, Dr. Griffith had not seen defendant since August of 2019, was unaware that defendant was subject to the most restrictive level of commitment, and had not reviewed defendant's most recent reports prior to testifying. Dr. Griffith was also unfamiliar with CONREP and other patient programs at Napa State Hospital.
The court also appropriately relied on factors typically considered in assessing a patient's dangerousness upon conditional release, including defendant's failure to address the triggers that lead to symptoms of his mental illness, his lack of insight into his mental illness, his lack of a relapse prevention plan, and his limited participation in group therapy. (Parker, supra, 231 Cal.App.4th at p. 1427; Bartsch, supra, 167 Cal.App.4th at pp. 900-901, 903; Endsley II, supra, 28 Cal.App.5th at p. 99.)
Accordingly, even accepting defendant's contention that the substantial evidence standard applies to our review, we conclude that substantial evidence supports the trial court's determination that defendant failed to show that he would no longer pose a “danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community.” (§ 1026.2, subd. (e).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: STREETER, ACTING P. J., TUCHER, J.