Opinion
H050362
08-30-2024
THE PEOPLE, Plaintiff and Respondent, v. PAUL GENE GAUWAIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 113483).
LIE, J.
Appellant Paul Gene Gauwain appeals from the trial court's order extending his commitment as an offender with a mental health disorder (OMHD) under Penal Code section 2972. Gauwain argues that insufficient evidence supports the findings that he has a severe mental health disorder that is not in remission or that he is a substantial danger of physical harm to others due to his severe mental health disorder. He also contends the trial court erred by placing the burden on him to prove he would take his medications upon release, and his commitment violates federal and state due process principles because of delays in holding his prior recommitment hearings. Finding no error, we affirm.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
A. Procedural History
In April 1987, Gauwain was found guilty of two counts of lewd and lascivious acts on a child in violation of former section 288, subdivision (a) and was sentenced to two concurrent six-year prison terms. In 1989, he was committed to the state hospital under section 2962, and between 1989 and 2022, his commitment was regularly extended by the trial court.
Section 2972 at the time designated individuals committed under its provisions as mentally disordered offenders (MDOs). (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1095, fn. 3.)
In February 2022, the Santa Clara County District Attorney filed a petition seeking to compel Gauwain's continued treatment under section 2970 for another year from July 29, 2022 to July 29, 2023.
In June 2022, Gauwain moved to dismiss the petition on the grounds that his continued commitment violated his federal and state due process rights. Gauwain argued that his last valid commitment had expired in July 2020 and that delays in adjudicating petitions to extend his commitment beyond that expiration date rendered invalid the orders compelling his continued treatment, including his current commitment. The trial court denied the motion and held a recommitment trial in July 2022.
As discussed post, on Gauwain's prior appeal from his previous commitment, this court affirmed the trial court's order committing Gauwain as an OMHD after concluding that any violation of his due process rights due to the delayed trial did not affect the validity of the recommitment. (People v. Gauwain (Oct. 25, 2023, H049116) [nonpub. opn.] (Gauwain I).)
B. The Court Trial 1. Dr. Kittimongcolporn
Dr. Saowarut Kittimongcolporn, a psychiatrist at Coalinga State Hospital, testified as an expert in the diagnosis and treatment of mental disorders. She was Gauwain's treating psychiatrist between August 2019 until April 2022 and last interviewed Gauwain in April 2022. Kittimongcolporn assessed Gauwain as exhibiting schizophrenia, anti-social personality disorder, and "maybe" some substance use disorder. In her opinion, his "baseline symptoms" of schizophrenia included "fixed delusions mostly about religion, about being held against his will in a hospital, sometimes being forced to take medicine even after he was no longer on court order to take medication." Although he denied experiencing symptoms, Kittimongcolporn observed Gauwain mumbling to himself "many times," which indicated he may be hearing voices. Other symptoms Gauwain sometimes displayed included becoming easily irritated or agitated, getting into verbal altercations with peers, and becoming verbally aggressive to staff. Kittimongcolporn did not believe Gauwain's mental disorder was in remission.
Kittimongcolporn acknowledged, however, that some of Gauwain's delusions had faded. In early 2020, unhappy about being forced to take medication, Gauwain would say that "the Lord and his Father brought the [COVID-19] pandemic in the world" as "punishment" for the hospital's treatment of Gauwain and other patients. Kittimongcolporn had not heard Gauwain endorse this belief recently, as he had become "more stable" in 2021 and 2022.
Kittimongcolporn found concerning Gauwain's inability to recognize his own baseline symptoms, because it demonstrated his lack of insight into his mental health and his need to take medication. Her conversations with Gauwain persuaded her that Gauwain had never believed he had a mental illness or needed treatment; to her knowledge, Gauwain had never participated in any group treatment programs.
In the last five or six months Kittimongcolporn had treated him, Gauwain was stable on his current medication regimen. Gauwain had been subject to an involuntary medication order between September 2019 and May 2021. After the expiration of that order, Gauwain had agreed to continue his schizophrenia medication on a voluntary basis. Although he complied with his regular regimen, he resisted taking medications offered to him "as needed when . . . agitated or anxious or not sleeping" (PRN medication). Gauwain had also refused to submit to an EKG, but he later complied once told that taking the test was necessary to his keeping his hospital job.
Gauwain had not been in a physical altercation since 2019, around the time he was placed on an involuntary medication regimen. (At that time, Gauwain had to be placed in a five-point restraint.) Kittimongcolporn recalled one instance when Gauwain held a mop while another patient took a "fighting stance," but Gauwain appeared to be defending himself and the altercation did not get physical. His recent verbal arguments were not with other patients, never escalated to violence, and involved "him having some intense argument on his own behalf when he wanted to make a point."
Kittimongcolporn opined that Gauwain's lack of understanding of his own mental illness affected his ability to take medication and that if Gauwain were in the community with "less structure," he would not continue his medications. According to Kittimongcolporn, if Gauwain stopped taking his medications, "[h]e likely would have symptoms coming back, and then eventually become aggressive and then a danger to others." Kittimongcolporn noted "issue[s]" with Gauwain's medication compliance even in the hospital. For Gauwain to be released to the community successfully, Kittimongcolporn believed that he needed to gain insight into his mental illness, work with his treatment providers, and enroll in treatment groups to learn coping skills.
2. The Hospital Records
Gauwain's hospital records detailed one incident in September 2019 where Gauwain yelled at peers," '[F]uck you! [F]uck you!'" then confronted hospital staff in a "threatening posture" less than a foot away, flailing his arms "wildly" while yelling," 'You want some of this?'" Hospital staff tried unsuccessfully to redirect Gauwain, and when staff attempted "wall stabilization," Gauwain physically resisted and "banged his head against [the] . . . wall." Gauwain was placed in a five-point restraint because he was "attempting to harm staff" as well as himself.
In April 2020, a staff psychiatrist noted that Gauwain had been involved in an incident with a peer. Although Gauwain insisted that it was the peer who had been aggressively pursuing him, the psychiatrist noted that Gauwain was "dismissive of feedback" when informed that staff had observed him being aggressive.
In a July 2020 evaluation, a staff psychiatrist noted that Gauwain had been in a verbal altercation with a peer but "reacted well" and walked away once redirected by staff.
And in another incident in January 2021, Gauwain "accused staff of not addressing [an] issue" involving a peer who had accused Gauwain of "running into him." Gauwain was "so agitated" that he had to take PRN medication.
In some quarterly reviews through 2021, staff noted that although COVID-19 restrictions limited Gauwain's ability to enroll in certain recommended treatments, he had also refused to participate in two available on-unit treatment groups.
3. Gauwain
Gauwain was 57 years old at the time of his recommitment trial. He testified that he had completed up to 11th grade before dropping out of school. Before being hospitalized, he had held several jobs, including at a foundry, as a busboy, and for a "janitorial service, tile and carpet."
Gauwain did not consider himself to have a mental illness: everyone has "problems," but it was "just the system labelling it as mental illness." Although he disliked the "mental illness" label, Gauwain acknowledged that he was taking medication for "problems they call mental illness." Gauwain denied experiencing delusions but said he would voluntarily take medication if released into the community. Gauwain affirmed that he was willingly taking his medication in the hospital and volunteered that he had also been doing so "out there in the [1980's] . . . when [he] turned [himself] in." Gauwain had a job at the hospital; he wiped down tables and chairs, mopped the floor, and took out the trash. According to Gauwain, he had not participated in group therapy partly because sessions had been paused during the COVID-19 pandemic. Gauwain, however, was willing to participate in certain groups like Narcotics Anonymous and anger management.
Gauwain attributed his verbal altercations to his being upset when other patients manipulated staff members to "start hounding [him] and stuff when [he] did nothing." The incident with the mop involved another patient who had yelled, hit the office door, and charged at Gauwain. Gauwain had been mopping as part of his hospital job, and he held the mop defensively to keep the other patient from assaulting him.
When asked about whether he talked to himself, Gauwain explained that he had read a "lot of things," including the New Testament of the Bible, that "rattl[ed] around in [his] head," but he denied hearing voices. Gauwain said that he "prayed to hear [his] girlfriend where I could hear her talking to me, her spirit and her soul and what concerns ...."
Responding to Kittimongcolporn's testimony about his religious delusions, Gauwain acknowledged, "[T]hey have claimed that I've had delusions of grandeur. But bottom line, it's not that I say that I'm anything but [what] my [F]ather has said I am."
Gauwain said he was willing to meet with doctors but acknowledged that he sometimes had a "bad day" when he "just can't put up with it." Because most meetings with his doctors were short, "[m]aybe 15 minutes," Gauwain doubted his doctors knew him or his current condition.
If released, Gauwain would register as a sex offender and get a psychiatrist or psychologist and a Narcotics Anonymous sponsor. He would also like to renovate his house that he "bought back in 2018 before [he] came here" to set it up as a rental home, and he would live with either his mother or his "brother and my brethren Caruthers."
Gauwain spoke of establishing visitation with his four-year-old son. Having been committed for more than four years to the state hospital, Gauwain said that his "brethren" and family had hired a "surrogate mom [who] worked at the hospital" to bear his child from "eggs . . . bought from a psych[] tech at Napa." (Gauwain denied any "hanky-panky between staff and me there.") Gauwain reported having previously had a girlfriend for over a year before he had to "kick her to the curb" for cheating on him.
Asked about his finances, Gauwain explained that his "brethren" would "hook me up with the other cash, the cash that I use[d] to buy the house there in Napa, the cash that they used for the surrogate mom, the cash that they've been using to get certain people working in [the] place I've been at in California and stuff." Gauwain said that his "brethren" assured him they had" 'billions'" but warned him that" 'CONREP would try to control and harass [the brethren] about that money. [The brethren] can't have that.'" Although Gauwain understood that CONREP provided therapeutic services, he planned to use the internet to find a psychiatrist and a Narcotics Anonymous sponsor.
For his relapse prevention plan ("wellness recovery action plan" or WRAP plan), Gauwain identified his triggers as "people that try us[ing] religion against me and don't even know about it" and included in his action plan keeping his family and himself "focused of prayer and on track." Gauwain left blank some answers in the section dedicated to "Post[-]Crisis Planning" but wrote that he hoped to "just keep taking things easy until fully adjusted" and would avoid "all the same of past lifestyle I had."
C. The Trial Court's Decision
At the end of the trial, the trial court found that the prosecution had met its burden to prove beyond a reasonable doubt the requirements set forth in section 2972, subdivision (c)-that Gauwain had a severe mental health disorder that was not in remission and that he was a substantial risk of physical danger to others. The trial court in part concluded that the evidence reflected that Gauwain could revert to violent behavior if not on his medication. Furthermore, Gauwain's WRAP plan did not have "significant solid plans" for dealing with crisis. The trial court granted the recommitment petition, extending Gauwain's commitment to July 29, 2023.
The record is silent as to Gauwain's current commitment status, although the Attorney General notes that the district attorney filed another petition to extend Gauwain's commitment beyond the July 29, 2023 expiration date of the commitment at issue here.
II. DISCUSSION
A. Substantial Evidence Supports the Recommitment Order
Gauwain does not dispute that he has schizophrenia, a severe mental health disorder, but challenges the trial court's findings that his schizophrenia is not in remission and that he represents a substantial danger of physical harm to others. There being substantial evidence to support the trial court's findings, we discern no error.
A "severe mental health disorder" in the OMHD context does not include personality or adjustment disorders or addiction to or abuse of intoxicating substances. (§ 2962, subd. (a)(2).)
1. Legal Principles and Standard of Review
For certain offenders with severe mental health disorders who have been convicted of specified crimes, the OMHD statutory scheme authorizes commitment for compulsory treatment by the Department of State Hospitals as a condition of parole. (§ 2962.) And "if the parolee's or prisoner's severe mental health disorder is not in remission or cannot be kept in remission without treatment" at the conclusion of the parole term (§ 2970, subd. (a)), the district attorney may petition the superior court to order "continued involuntary treatment for one year" (§ 2970, subd. (b)).
At the recommitment trial, "[i]f the court or jury finds that the patient has a severe mental health disorder, that the patient's severe mental health disorder is not in remission or cannot be kept in remission without treatment, and that by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility." (§ 2972, subd. (c).) At the hearing, the issue is whether the defendant's "current condition justifie[s] extension of his [or her] commitment." (People v. Cobb (2010) 48 Cal.4th 243, 252 (Cobb).)
Section 2962, subdivision (a)(3) defines "remission" as "a finding that the overt signs and symptoms of the severe mental health disorder are controlled either by psychotropic medication or psychosocial support." The statute does not define a "substantial danger of physical harm" except by specifying that this element "does not require proof of a recent overt act." (§ 2962, subd. (g); see In re Qawi (2004) 32 Cal.4th 1, 24.)
Furthermore, "[a] person 'cannot be kept in remission without treatment' if during the year prior to the question being before the Board of Parole Hearings or a trial court, the person has been in remission and has been physically violent, except in self-defense, or has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for their safety or the safety of their immediate family, or the person has intentionally caused property damage, or has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard is whether the person has acted as a reasonable person would in following the treatment plan." (§ 2962, subd. (a)(3).) Here, the trial court specifically found that Gauwain was not in "remission," not that his severe mental health disorder could not be kept in remission without treatment.
The standard of proof at a recommitment proceeding under section 2972 is proof beyond a reasonable doubt. (§ 2972, subd. (a)(2).) Upon finding that the prosecution has met its burden, the recommitment shall be for one year from the expiration of a previous commitment. (§ 2972, subd. (c) .)
"In considering the sufficiency of the evidence to support [OMHD] findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an [OMHD] beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding." (People v. Clark (2000) 82 Cal.App.4th 1072, 1082 (Clark).) It is up to the trier of fact to determine the credibility of witnesses, and we do not substitute our judgment for the fact finder's. (Id. at p. 1083.)
2. Severe Mental Health Disorder that is Not in Remission
Both expert testimony and Gauwain's own testimony at trial sufficed to support the trial court's factual finding that his schizophrenia was not in remission.
Kittimongcolporn supported her opinion that Gauwain's schizophrenia was not in remission by describing his continued "baseline symptoms." She had seen Gauwain mumble to himself "many times" as if he were hearing voices, including in her most recent month treating him in April 2022. And Kittimongcolporn testified that Gauwain's incidents of verbal aggression toward staff were in her view symptomatic of his disorder.
The trial court also considered Gauwain's own testimony to have bolstered Kittimongcolporn's assessment, and we defer to the trial court's inference. Given the duration of Gauwain's confinement in state hospitals and his apparently limited personal means, the trial court was entitled to consider implausible his testimony that he had a four-year-old child born via surrogacy during his hospitalization and a house in Napa, both paid for by his billionaire "brethren." And having made that factual finding, the court could infer based both on Gauwain's and Kittimongcolporn's testimony that Gauwain continued to experience delusions consistent with active, unremitted schizophrenia.
Gauwain argues that Kittimongcolporn's testimony that she had seen him mumbling and speaking to himself, which she believed indicated that he might be hearing voices, was "hardly a substantial basis" to conclude that he was not in remission. He argues that he offered a credible explanation at trial that there were a lot of "things going around in his head," and that he was not hearing voices. But faced with competing testimony on this point, the trial court was entitled to credit Kittimongcolporn's assessment over Gauwain's explanation. (Clark, supra, 82 Cal.App.4th at p. 1083.)
Substantial evidence thus supports the trial court's conclusion that Gauwain's schizophrenia was not in remission.
3. Substantial Danger of Physical Harm to Others
Gauwain next challenges the trial court's finding that he poses a substantial danger of physical harm to others. Although the record supports the inference that Gauwain's condition had largely become more stable in the past few years, there was substantial evidence from which the trial court could reasonably conclude that he nonetheless posed a substantial risk of physical harm to others.
Gauwain had not been in any recent physical altercations, but the trial court was entitled to consider Kittimongcolporn's account of his last one in 2019, which ultimately required his five-point restraint, as evidence of the risks posed by allowing his commitment to lapse. Gauwain's hospital records confirmed that during this incident in 2019, he was "attempting to harm staff" in the process. According to Kittimongcolporn, this incident took place around the time when Gauwain was refusing to take medication and was subject to an involuntary medication order.
There was also evidence that Gauwain had incidents of verbal aggression, with incidents as recently as 2021. Though these incidents did not result in physical violence, their resolution, according to hospital records, was usually facilitated by hospital staff redirecting Gauwain or directing him to take PRN medication to calm down. From this, the trial court could also reasonably infer that absent the structured hospital environment, it remained unclear whether Gauwain's incidents of verbal aggression would progress into physical aggression.
We do not consider the trial court to have treated these instances of verbal or past physical aggression as dispositive, standing alone. Rather, the trial court properly weighed these in connection with Gauwain's ability "to abide by his medication in the community." Kittimongcolporn testified that Gauwain had yet to gain insight into his mental illness, which she believed affected his willingness to take medication, so she remained concerned that Gauwain would likely be less inclined to take medication in an unstructured environment. Kittimongcolporn's testimony and Gauwain's hospital records reflect that Gauwain had refused to participate in groups, and Kittimongcolporn opined that Gauwain had never believed he had a mental disorder. Indeed, Kittimongcolporn testified that if Gauwain stopped taking his medication, she believed that he would likely have his symptoms return and "then eventually become aggressive and then a danger to others." Given that as recently as in 2019, Gauwain's symptoms resulted in physical aggression, the trial court's conclusion that Gauwain posed a substantial risk of physical harm to others was supported by substantial evidence. (See, e.g., People v. Bowers (2006) 145 Cal.App.4th 870, 879 [single psychiatric opinion that individual is dangerous can be substantial evidence to support extended commitment as under the not guilty by reason of insanity (NGI) commitment scheme].)
Gauwain on appeal disputes Kittimongcolporn's competence to opine on dangerousness, a subject not explicitly identified when the trial court deemed her qualified as an expert in the diagnosis and treatment of mental disorders. But we question the premise that clinical expertise in the diagnosis and treatment of mental disorders does not extend to experience with whether behaviors symptomatic of those mental disorders may be dangerous and whether a patient's progress in treatment has mitigated that danger. Additionally, when Kittimongcolporn was asked about her opinion of Gauwain's potential to be dangerous if unmedicated, his counsel made no objection at trial, opting not to litigate the issue in the trial court or preserve the issue for appeal. (Evid. Code, § 353, subd. (a); see People v. Rodriguez (2014) 58 Cal.4th 587, 638 [claim that expert testified beyond scope of expertise not cognizable on appeal due to failure to object below].)
Arguing otherwise, Gauwain insists that Kittimongcolporn's testimony on its face was not substantial evidence of his risk of physical harm. We agree that "expert medical opinion evidence that is based upon a' "guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence." '" (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.) But Kittimongcolporn's testimony was based on her evaluation of Gauwain, including his mental health history and her most recent meeting with him in April 2022, which took place around the same time that Kittimongcolporn observed Gauwain still exhibiting symptoms of his mental illness. Although Kittimongcolporn acknowledged that Gauwain had continued taking his schizophrenia medication even after the expiration of his involuntary medication order, there had been issues with Gauwain taking his PRN medication when asked. And Gauwain's involuntary medication order had only recently expired in May 2021, with only about a year transpiring between the expiration of the involuntary order and the recommitment trial. The trial court could have thus reasonably attributed little significance to his recent compliance while hospitalized relative to other indicators that Gauwain would resist treatment if discharged.
Gauwain analogizes his case to People v. Jenkins (2023) 95 Cal.App.5th 142 (Jenkins). There, Jenkins challenged her recommitment as an OMHD, arguing that there was no substantial evidence that she represented a substantial danger of physical harm to others. (Id. at pp. 151-152.) The Fourth District agreed, finding no substantial evidence that Jenkins posed a substantial risk of physical harm. (Id. at pp. 155-156.) But in that case, "there [was] no evidence [Jenkins had] been violent or physically aggressive since her commitment offense in 1999," more than two decades before the recommitment proceedings. (Id. at p. 151, italics added.) Jenkins at the time of the hearing was almost 70 years old, in poor health, and had started to use a wheelchair due to decreased mobility. (Id. at p. 153.) The Fourth District further found that the expert opinions that Jenkins posed a substantial risk of physical harm were speculative-for example, one expert opined that Jenkins had a risk of violence given her history but could not identify any violence since the commitment offense; thus, a conclusion that Jenkins remained" 'at risk for violence' [did] not meet the statutory threshold that [Jenkins] 'represents a substantial danger of physical harm to others.'" (Jenkins, at p. 155, quoting § 2972, subds. (a)(2) &(c), italics omitted.)
This case is unlike Jenkins. We agree that "[s]ection 2972 requires more than a conclusory speculation that a person who committed a violent offense in the past might pose a substantial danger of violence two decades later." (Jenkins, supra, 95 Cal.App.5th at p. 155.) Furthermore, we assume that "structured risk assessment tools are more reliable than unstructured clinical judgment." (Id. at p. 158 (conc. opn. of Buchanan, J.).) Concurring in Jenkins, Justice Buchanan noted that "unstructured clinical predictions of violence about someone . . . who has committed no violent act for decades should not suffice to support a civil commitment and satisfy the requirement of substantial evidence ...." (Id. at p. 159 (conc. opn. of Buchanan, J.).) Here, Kittimongcolporn was asked by the prosecution "what type of danger" Gauwain would likely create in the community if released and whether based on her "medical experience" Gauwain would take medication; on cross-examination, however, Gauwain did not interrogate the methodological basis for these opinions. But on substantial evidence review we must view the evidence in a light most favorable to the prosecution. Because Gauwain did not raise this issue in the trial court, and given the ambiguity in the testimony, we may not presume that Kittimongcolporn's opinion was uninformed by validated measures. And unlike Jenkins, Gauwain had been violent about three years before the hearing date and more recently had instances of verbal aggression of the sort that had precipitated the earlier incident. Kittimongcolporn also questioned Gauwain's insight and ability to maintain his medication due to his own understanding of his mental illness, expressing concern that he may decompensate and revert to physical aggression.
Although defense counsel briefly commented that Kittimongcolporn was "not doing the forensic evaluation," this was merely to qualify counsel's question about "what it would take" for Gauwain to "successfully progress to . . . discharge to the community."
Gauwain also cites several other cases to support his position, but like Jenkins those cases are distinguishable because there was no evidence of the defendants' post-commitment or recent propensity for violence. In People v. Johnson (2020) 55 Cal.App.5th 96, the only evidence of violence stemmed from the "appellant's violence from decades earlier, with only friendly and nonconfrontational behavior ever since, even while he was AWOL from [the conditional release program], off his medications for a significant period of time, and decompensating." (Id. at p. 110, fn. omitted.) In People v. Cheatham (2022) 82 Cal.App.5th 782, the Court of Appeal noted that "Cheatham has never engaged in behavior dangerous to others because of his mental disorder" and that "[Cheatham] has [not] given any indication that he would subject others to potential physical harm." (Id. at p. 790.) And in People v. Redus (2020) 54 Cal.App.5th 998, there was no "hint of violence, threatening behavior, or aggressiveness of any kind on the part of [the] appellant over multiple decades, even through [supervised] releases and medication lapses." (Id. at p. 1012.)
Our review for substantial evidence is deferential to the trial court, and" '" '[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.'" '" (Clark, supra, 82 Cal.App.4th at pp. 1082-1083.) On this record a rational trier of fact could have found that Gauwain posed substantial risk of physical harm to others.
4. Improperly Shifting the Burden of Proof
Finally, Gauwain argues that the trial court improperly shifted the burden of proof to him by requiring him to prove that he would take his medication upon his release. (See People v. Noble (2002) 100 Cal.App.4th 184, 189-190 [error to impose burden of proof to defendant at recommitment proceeding to show that defendant is not a substantial risk of physical harm upon others while medicated and that defendant would continue to take medication after release].) As support for this proposition, Gauwain cites the trial court's discussion of his post-release plan: "[T]he concern is when Mr. Gauwain is off his medication, that he does revert to more violent behavior. And so that plan for making sure that he would be able to abide by his medication in the community is one that I think is important and relevant to dangerousness and one that he has not been able to show the [c]ourt that he's able to manage." Drawing all inferences in favor of the judgment, as we must, we do not read this portion of the trial court's ruling as unequivocally demonstrating that it shifted the burden of proof.
As a general rule," 'a trial court is presumed to have been aware of and followed the applicable law.'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114 [noting Evid. Code, § 664 presumption "that official duty has been regularly performed"].) Although the presumption can be rebutted "when 'irregularity is clearly shown'" (In re Hare (2010) 189 Cal.App.4th 1278, 1292), no such irregularity is shown here. The trial court's characterization of shortcomings in Gauwain's post-release plans can reasonably be interpreted as a determination that-the prosecution having met its burden to demonstrate that Gauwain posed a substantial risk of physical danger to others and that he likely would not take his medication upon his release-Gauwain's post-release plans did not undermine the totality of the circumstances overcoming the prosecution's proof beyond a reasonable doubt as to his risk of danger.
Indeed, at a later point in the hearing, the trial court reiterated that it believed that "the People have met their burden" to demonstrate that Gauwain fit the criteria to be recommitted under the OMHD statute. The trial court also made its ruling while detailing its reasons for finding Gauwain to be a substantial risk of physical danger, starting with Kittimongcolporn's concern about his lack of insight, which also increased the likelihood that Gauwain "would not be able to recognize potential triggers, potential signs or symptoms of that illness, and be able to appropriately address them." The trial court also highlighted Gauwain's lack of ability or willingness to "attend groups," which would have helped him better understand his condition or recognize the signs and symptoms of his mental disorder. The trial court at no point stated that it believed Gauwain bore the burden of proving that he would take his medication or that he did not pose a danger.
The trial court thus did not improperly shift the burden of proof to Gauwain at the hearing.
B. Due Process Violation
Gauwain also argues that the trial court erred by denying his motion to dismiss his recommitment petition on the ground that his prior commitments were invalid. His motion to dismiss was premised on his claim that the petitions extending his commitment between 2020 through 2021 and 2021 through 2022 were invalid because his prior recommitment terms had expired without a timely hearing. We considered and rejected these identical arguments in Gauwain's appeal from his prior recommitment proceedings in Gauwain I, supra, H049116. Gauwain accordingly is precluded from relitigating the claim here. (People v. Curiel (2023) 15 Cal.5th 433, 451-452 (Curiel).)
On our own motion, we take judicial notice of our unpublished opinion in case No. H049116. (Evid. Code, §§ 452, 459.)
In Gauwain I, this court held that under Cobb, supra, 48 Cal.4th 243, the statutory deadline for commencing an OMHD recommitment trial was directory and not mandatory; therefore, the trial court did not lose jurisdiction to entertain the disputed recommitment petitions even though the prior commitment term has expired. (Gauwain I, supra, H049116, at p. 12.) We also held that under Cobb and People v. Lara (2010) 48 Cal.4th 216, any violation of Gauwain's due process rights in the delayed trial of the recommitment proceeding did not affect the validity of the ensuing commitment. (Gauwain I, supra, H049116, at pp. 16-17; Cobb, at p. 253; see also Lara, at p. 236.)
Here, the requirements of issue preclusion are met:"' "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." '" (Curiel, supra, 15 Cal.5th at pp. 451-452.) The basis for Gauwain's motion to dismiss in this instant proceeding is the same basis raised in the motions to dismiss in his earlier recommitment proceedings, and the issue was litigated and decided on his direct appeal in Gauwain I. The parties are also the same. Gauwain is thus barred from relitigating his claim that his prior recommitments were invalid. (See Curiel, at pp. 451-452.)
III. DISPOSITION
The trial court's order extending Gauwain's commitment is affirmed.
WE CONCUR: GROVER, ACTING P. J. BROMBERG, J.