Opinion
A112183
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. SUNNI GAYLE HARRIS, Defendant and Appellant.
NOT TO BE PUBLISHED
Following a court determination that she was not guilty by reason of insanity on two felony charges, Sunni Gayle Harris (appellant) was committed to a state hospital and then placed on outpatient status. She appeals an order revoking that status and recommitting her to Napa State Hospital (NSH) pursuant to Penal Code section 1609, contending that section violates substantive due process because it permits the revocation of outpatient status without a finding that the person presents a danger to others as a result of a current mental defect or disease. She also contends there was no substantial evidence that she posed a danger to others while on outpatient status. We reject her contentions and affirm.
All undesignated section references are to the Penal Code.
Section 1609 provides: "If at any time during the outpatient period or placement with a local mental health program pursuant to subdivision (b) of Section 1026.2 the prosecutor is of the opinion that the person is a danger to the health and safety of others while on that status, the prosecutor may petition the court for a hearing to determine whether the person shall be continued on that status. . . . If, after a hearing in court conducted using the same standards used in conducting probation revocation hearings pursuant to Section 1203.2, the judge determines that the person is a danger to the health and safety of others, the court shall order that the person be confined in a state hospital or other treatment facility which has been approved by the community program director."
BACKGROUND
In February 1995, while under the influence of cocaine, appellant thought she saw a mans feet sticking out from under her car, argued with her boyfriend because he did not share her perception and sped away from her house. She was stopped by police for speeding and found in possession of four knives, which she would not relinquish. During a scuffle, she stabbed one of the officers in the hand.
The information charged appellant with evading an officer with willful disregard for the safety of others (Veh. Code, § 2800.2) (count 1), assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)) (count 2), and battery on a peace officer with infliction of great bodily injury (Pen. Code, § 243, subd. (c)) (count 3). Great bodily injury, deadly weapon use and serious felony enhancements (Pen. Code, §§ 12022.7, 1192.7, subd. (c) and 12022, subd. (b)) were alleged as to counts 2 and 3.
In December 1995, appellant entered into a plea bargain, pursuant to which she withdrew her not guilty plea and entered a plea of not guilty by reason of insanity. The court found her not guilty by reason of insanity as to counts 1 and 3, and dismissed count 2 and the enhancements. Following its finding that appellant was insane, the trial court committed defendant to NSH. The court then received from the Solano County Health and Social Services Department a written placement recommendation that appellant be ordered to participate in the outpatient treatment program provided by the local conditional release program (CONREP). Following that recommendation, the court granted outpatient treatment status. Her outpatient status was revoked and reinstated six times between 1997 and 2001, due to relapses of cocaine abuse.
In December 2001, the prosecutor petitioned for extension of appellants state hospital commitment. (§ 1026.5, subd. (b).) In February 2002, the court extended her commitment for two years after a jury found her to be a person who, by reason of a mental disease or defect, represented a substantial danger of physical harm to others. (§ 1026.5, subd. (b).) Over the next two and one-half years, she was placed on outpatient status and that status was revoked several more times due to her testing positive for cocaine.
In March 2004, appellant was transferred to NSH after she failed to report to her residential drug treatment program, was found sleeping/passed out in her car with the motor running and tested positive for cocaine. In April 2004, she was released to outpatient treatment and enrolled in a drug treatment program. In October and November, appellant again tested positive for cocaine after which she was placed in a highly structured program. In March and April 2005, she tested positive for cocaine and missed an April appointment with her psychiatrist. She was then placed back at NSH.
In May 2005, appellant was again placed into CONREP and enrolled in the most highly structured outpatient program available. She was experiencing some depression and in June was reported AWOL from the program. A bench warrant issued, and, in September, she surrendered on the warrant and was placed at NSH.
October 2005 Revocation Hearing
On August 17, 2005, while appellant was AWOL, the court revoked her outpatient status pursuant to section 1608. On October 28, 2005, at appellants request, the court held a hearing on the prosecutors formal petition to revoke her outpatient status pursuant to section 1609.
Section 1608 provides: "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 in either the county which approved outpatient status or in the county where outpatient treatment is being provided of such opinion by means of a written request for revocation of outpatient status. . . . [¶] . . . If the court approves the request for revocation, the court shall order that the person be confined in a state hospital or other treatment facility approved by the community program director. . . ."
Social worker Steve Williams, Community Program Director for CONREP, testified he had been involved with appellants case since 1995. He stated that at a team conference all team members agreed that appellants outpatient status should be revoked because she could not be safely and effectively treated in the community and needed to be in a locked, inpatient substance abuse treatment program. He also opined that if not hospitalized, she posed a danger to the community. Williams explained that appellants psychiatrist diagnosed her as having underlying major depression. Williams also stated that when appellant uses drugs for an extensive time period, she has a history of becoming psychotic, having visual hallucinations and anxiety. Williams said that the combination of underlying mental illness and unchecked substance abuse could result in the potential of physical harm to others. Williams conceded that appellants only violent incident was the 1995 arrest. However, he said he was concerned about the potential danger to the community due to appellants driving under the influence while on outpatient status.
Martin Shates, an unlicensed psychologist at NSH testified as a mental health professional in favor of appellant. He had known her for about a month, seeing her twice a week for individual therapy, once a week for group therapy, in the hallways and if there was a crisis. He said he had not reviewed appellants file. Shates stated that while at NSH appellant had not caused any danger to others. He opined that she definitely needed drug abuse treatment and was a drug and alcohol abuser. Shates opined that appellant would be best served by a one-year closed facility program where she does not know anyone.
Appellant testified that she thought she should be in a residential drug treatment program outside of Vallejo. She did not know whether she had a diagnosis of depression, but said she had mild depression in the past and was not taking any psychotropic drugs. She said that although she was not depressed, she had taken antidepressants from 1995 until four or five months before the hearing, to be compliant with CONREP.
The prosecutor argued that appellants danger was not simply the potential for intentional harm directed at other people, but the potential for negligent harm to others based on driving under the influence. Defense counsel asked the court to continue appellant on outpatient status so that she could be placed in a residential drug treatment facility.
The court ordered appellants outpatient status revoked after finding by a preponderance of the evidence that given her 10-year history of substance abuse, it was likely that she would be a danger to others while on outpatient status.
DISCUSSION
I. The Statutory Scheme
When the trial court determines that a defendant was insane at the time of the offense, it may commit the insanity acquittee to a state hospital or certain public or private treatment facilities, or it may order her placed on outpatient status pursuant to section 1600 et seq. (§ 1026, subd. (a); People v. Sword (1994) 29 Cal.App.4th 614, 619-620.) Because of the nature of her offenses, a person such as appellant is entitled to be placed on outpatient status without actual confinement in a state hospital (§ 1601), if the "community program director or a designee advises the court that the defendant will not be a danger to the health and safety of others while on outpatient status, will benefit from such status, and identifies an appropriate program of supervision and treatment." (§ 1602, subd. (a)(2).) Outpatient status lasts for up to one year, after which the court, following a hearing, may order the "discharge [of] the person from commitment under appropriate provisions of the law, order the person confined to a treatment facility, or renew its approval of outpatient status." (§ 1606.)
While the person is on outpatient status, if the outpatient supervisor forms the opinion the person "is no longer insane," the community program director must submit an opinion to the court, which then calendars the case for restoration of sanity proceedings under section 1026.2. (§ 1607.) On the other hand, outpatient status may be revoked and the person placed on inpatient status in either of two circumstances. First, if the outpatient supervisor concludes "the person requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the community program director" shall notify the designated superior court in a request for revocation of outpatient status. (§ 1608.) Second, if the prosecutor concludes "the person is a danger to the health and safety of others while on [outpatient] status, the prosecutor may petition the court for a hearing to determine whether the person shall be continued on that status. . . . If, after a hearing . . . the judge determines that the person is a danger to the health and safety of others, the court shall order that the person be confined in a state hospital or other treatment facility . . . ." (§ 1609.)
At the time of the original commitment, when the subject offense is a felony, the trial court must state in the commitment order the maximum term of commitment, which is the longest term of imprisonment that could have been imposed for the subject offenses. (§ 1026.5, subd. (a)(1).) The maximum term may be extended only under the procedures set forth in section 1026.5, subdivision (b), and only if the person has been committed for a felony and "by reason of a mental disease, defect or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd (b)(1).)
II. No Substantive Due Process Violation Is Demonstrated
For the first time on appeal, appellant contends section 1609 violates substantive due process because it permits the revocation of an insanity acquittees outpatient status without a finding that the danger presented by the individual results from a current mental defect, disorder, or disease. In reliance on In re Josue S. (1999) 72 Cal.App.4th 168, 170, respondent argues that appellant has waived the constitutional claim by failing to raise it below. While some Courts of Appeal have extended the doctrine of waiver to constitutional issues (see id. at pp. 170-174), other courts have held that a constitutional challenge is not waived where the challenge presents a pure question of law that can be resolved without reference to the record. (See, e.g., In re Justin S. (2001) 93 Cal.App.4th 811, 814-815.) Assuming without deciding that the waiver rule is inapplicable, we find appellants claim without merit.
Appellants due process argument rests on her assertion that "placement on outpatient status actually amounts to a form of release from civil commitment that vests the individual with a liberty interest that cannot be revoked unless the substantive due process protections that must accompany civil commitment are met." She argues that "to terminate an insanity acquittees outpatient treatment status and recommit him or her to a mental hospital, the state should have to satisfy the main substantive component of due process in this context: namely, prove that the individual presents a danger to the health and safety of others, while on outpatient status, as a result of a mental defect, disease, or disorder that creates a serious difficulty in controlling dangerous behavior." (Italics omitted.) According to appellant, imposing this requirement would bring section 1609 more in line with section 1026.2, subdivision (e), which provides for conditional release from inpatient confinement to outpatient status, and section 1026.5, which provides for extending the commitment of an insanity acquittee.
Appellants reliance on section 1026.2, subdivision (e) is misplaced. Under that statute, an insanity acquittee may apply for release upon the ground that "sanity has been restored." If the court, following a hearing, determines the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under treatment in the community, the court does not release the person. Instead, the court orders the applicant "placed with an appropriate forensic conditional release program for one year." (§ 1026.2, subd. (e).) The placement permits an evaluation in a noninstitutional setting prior to an unconditional release. (People v. Beck (1996) 47 Cal.App.4th 1676, 1681.) Upon the recommendation of the community program director during that one-year period, the court must hold a trial to determine "whether restoration of sanity and unconditional release should be granted." (§ 1026.2, subd. (h).) In other words, the release to outpatient status under section 1026.2 is a required step after a court has determined that the patient 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.
The substantive requirements for an order for outpatient treatment, following an application for a determination that sanity has been restored, has nothing to do with appellants outpatient status granted pursuant to section 1602. Unlike section 1026.2, a court releasing a person to outpatient status under section 1602 need make no finding that the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder. In this context, outpatient status is merely " `a discretionary form of treatment. " (People v. Sword, supra, 29 Cal.App.4th at p. 620.)
In addition, section 1026.5 is inapposite. Section 1026.5, subdivision (b)(1) provides for extension of an insanity acquittees maximum term of commitment if "by reason of a mental disease, defect, or disorder [the person] represents a substantial danger of physical harm to others." This extended commitment scheme has been interpreted to require proof of a serious difficulty in controlling dangerous behavior. (People v. Galindo (2006) 142 Cal.App.4th 531, 537; cf. In re Howard N. (2005) 35 Cal.4th 117, 132.) Clearly no such extension would be warranted unless the court was satisfied that the very conditions requiring commitment initially still existed. Unlike the revocation of outpatient status under sections 1608 and 1609 that rests on the presumption of continued insanity, no such presumption exists in a proceeding under section 1026.5, where the patient is entitled to the rights, including the right to a jury trial, guaranteed under the federal and California Constitutions for criminal proceedings. (§ 1026.5, subd. (b)(7).)
Finally, appellant relies on Foucha v. Louisiana (1992) 504 U.S. 71, to argue that principles of due process require that revocation of outpatient status under section 1609 include a finding that his or her dangerousness stemmed from a mental defect, disease or disorder. In Foucha, a criminal defendant was found not guilty by reason of insanity and was committed under Louisiana law to a psychiatric facility until his release was medically recommended and judicially approved. (Foucha, at pp. 73-74.) The statutory scheme barred release of a person committed in this manner if he or she posed a danger to himself or others, regardless of whether or not the person was also insane or mentally ill. Californias release provisions, including the intermediate placement on outpatient status, set forth in section 1026.2 are perfectly consistent with the requirements of Foucha. But, no reason in law or logic compels application of the Foucha requirements to the revocation of outpatient status granted under section 1608 or 1609. If appellant believes her sanity has been restored, she should apply under section 1026.2 for her release. Foucha is inapposite since a proceeding under section 1609 is not a commitment proceeding or a proceeding to extend confinement.
The requirements imposed by sections 1608 and 1609, to revoke outpatient status, are perfectly congruent with the requirements initially imposed on the patient to obtain that status under section 1602. That provision permits release on outpatient status where the trial court agrees that the defendant will not be a danger to the health and safety of others while on outpatient status, and will benefit from that status. Logically, when the patient will no longer benefit from outpatient status or is a danger to others while on that status, the status should be revocable. And, consistent with that logic, section 1608 provides for revocation if the court concludes that the patient requires extended inpatient services or refuses to accept further outpatient treatment and supervision, while section 1609 provides for revocation if the patient is a danger to the health and safety of others while on outpatient status.
Imposing the additional restriction on revocation of outpatient status sought by appellant is not only unnecessary, but counter-productive. First, the trial courts original finding that appellant was not guilty by reason of insanity permits the inference that she is both mentally ill and dangerous and there is a presumption of continued insanity. " `[I]t is reasonable to presume under such circumstances that defendants insanity, established by a preponderance of the evidence, has continued to the date of " the release hearing under section 1026.2. (People v. Sword, supra, 29 Cal.App.4th at p. 624.) Second, we should be reluctant to impose a requirement that the court redetermine whether the persons dangerousness stems from a mental disability, when the patient never had to prove she had recovered from her disability to obtain outpatient status. Finally, a significant increase in the standard to revoke outpatient status will likely result in a reduction in the willingness of courts to try that alternative treatment modality. Thus, we reject appellants substantive due process argument.
III. Substantial Evidence Supports the Courts Revocation Order
Appellant argues that the uncontroverted evidence established that she had not been involved in any incidents resulting in harm to the health and safety of others since 1995, and that prior to that time and in the 10 years since, she had not endangered anyones health or safety. She admits that evidence was presented of her long history of cocaine abuse beginning prior to the 1995 incident. Appellant dismisses as merely speculative the prosecutions assertions that her cocaine abuse will trigger a mental illness that causes her to be a danger to others or be likely to harm someone by driving under the influence. She argues that due to the lack of a sufficient showing of dangerousness, the revocation order must be reversed.
The trial court has broad discretion to revoke the outpatient status of a committed insanity acquittee. (People v. Henderson (1986) 187 Cal.App.3d 1263, 1267-1268.) A revocation order will be reversed only if not supported by substantial evidence. (In re McPherson (1985) 176 Cal.App.3d 332, 341-342.)
Aside from the 1995 incident, the evidence establishes that appellants outpatient status has been revoked numerous times due to her relapse into cocaine abuse. In 2004, she was found sleeping/passed out in her car with the motor running and tested positive for cocaine. In June 2005, she was reported AWOL from her outpatient program. In addition, Williams testified that in the past, when appellant used drugs for an extensive period of time, she became psychotic, having visual hallucinations and anxiety. According to Williams, appellants unchecked substance abuse, underlying mental illness, and potential to drive under the influence created a potential danger to the community. We conclude substantial evidence supports the courts revocation order.
DISPOSITION
The revocation order is affirmed.
We concur.
GEMELLO, J.
NEEDHAM, J.