Opinion
F077993
12-14-2020
THE PEOPLE, Plaintiff and Respondent, v. DANIEL WALTER HICKS, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF010468A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gregory A. Pulskamp, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
INTRODUCTION
In 2011, appellant Daniel Walter Hicks was charged with assault of a prison correctional officer, among other charges and special enhancement allegations. The trial court subsequently found him incompetent to stand trial, and he was committed to Patton State Hospital (PSH) for competency restoration. After his competence was restored, he was found not guilty by reason of insanity, and he was committed to the State Department of State Hospitals for a maximum of 15 years.
In 2017, appellant filed a petition under Penal Code section 1026.2 requesting a conditional release to a supervised outpatient program. The trial court denied his petition after a hearing in August 2018, and appellant appealed. Appellant argues because his bipolar diagnosis was changed to a brief psychotic disorder with marked stressors, and because his remaining diagnoses are not mental health diseases or defects, there was no mental defect or disorder present. As a result, appellant's continued commitment at a state hospital is a substantive due process violation absent civil commitment proceedings. We disagree and affirm the trial court's denial of release.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL SUMMARY
I. Hearing on Appellant's Petition for Conditional Release
A. Dr. Bercovitch's Court Report
Submitted as part of the proceedings was a November 2017 report created by Dr. Bercovitch regarding appellant's mental health status. Dr. Bercovitch indicated the report was based on his review of the records and not recent interaction with appellant. At the time of the report, appellant had been out of the hospital and in jail for "court reasons[]" since May 11, 2017. The last time Dr. Bercovitch had interviewed appellant, it was part of a violence risk assessment conducted on May 3, 2017.
Dr. Bercovitch noted appellant had been diagnosed with the following disorders: (1) brief psychotic episode with marked stressors; (2) attention deficit/hyperactivity disorder (ADHD), predominantly hyperactive/impulsive presentation; (3) other-specified trauma and stressor related disorder; and (4) other-specified personality disorder (antisocial traits).
While at Napa State Hospital (NSH), Dr. Bercovitch noted appellant had been referred to Transition 2 level, which was a level reserved for patients who have had stable psychiatric and behavior symptoms for six months and who comply with treatment. Appellant's treatment team then began working with him to meet the criteria for transfer to the discharge unit, and by December 2016, appellant's team was hopeful he was getting close to being referred to the discharge unit. After an incident with a work supervisor about not following work rules, appellant was taken out of Transition 2 level status. After that incident, appellant improved his understanding that reflected changes in his diagnosis. The treatment team dropped appellant's bipolar diagnosis, and added a diagnosis for brief psychotic episode to account for the psychotic symptoms at the time of his instant offense. A diagnosis of ADHD was added to account for appellant's symptoms of hyperactivity, and his medications were changed to reflect this new diagnosis.
In considering appellant's insight into his mental illness and treatment, Dr. Bercovitch noted that prior to taking "court leave[,]" appellant had continued to gain insights into his illness and need for treatment, but appellant told Dr. Bercovitch on several occasions prior to May 2017 that he did not have a major mental illness and for that reason could not be held in a state psychiatric hospital and he did not believe that his diagnosis was compatible with his representing a danger to the community. Dr. Bercovitch noted appellant's confidence that he already knows about his risk factors was regarded by appellant's treatment team as evidence that he lacked full insight into his mental illness and his risk for violence.
The report recommended appellant be retained at the hospital for continued treatment; he was not ready for outpatient treatment.
B. Appellant's Evidence
Dr. Mateescu is a staff psychiatrist at NSH, who was on appellant's treatment team until May 2017 when appellant was transferred out of NSH. He testified there were variations in appellant's diagnoses between 2015 and 2017. The original diagnosis was for bipolar disorder, but Dr. Mateescu never witnessed appellant having any manic episodes; those were shown historically in his records. Dr. Mateescu had looked for evidence of manic episodes because he was trying to understand why the diagnosis for bipolar was established. He believed that because appellant had always been medicated with Depakote or Neurontin, which are used to treat bipolar disorder, appellant did not exhibit bipolar symptoms at NSH due to proper medication. The diagnosis was removed because the team had not witnessed symptoms meeting the criteria, but Dr. Mateescu opined appellant suffers from a milder form of bipolar disorder that was in remission due to proper medication.
Court evaluations and those from PSH indicate Depakote was administered.
Dr. Mateescu testified bipolar disorder is not curable and without treatment it might cause appellant to experience moments of mania, which Dr. Mateescu had never witnessed. In appellant's case, Dr. Mateescu felt appellant was correctly treated and he was responding to the medication. He never noted appellant exhibiting physical aggression toward anyone and most of the time he was very polite and courteous. There were times when appellant would raise his voice and become upset and show anxiety in instances where he thought someone wronged him, but he never made threats of physical violence against anyone. In fact, when appellant was assaulted a couple of times in the hospital, he managed to move away without retaliating, which indicated he was able to refrain from responding to aggressive behavior in that very structured place; appellant showed good judgment in those instances.
What made Dr. Mateescu "uneasy" was that appellant did not have full insight into his conditions or his need for treatment. When he had talked to appellant last, appellant had expressed that he would do well without medication if he were released and felt he might not need treatment at that time. But Dr. Mateescu believed he needed to continue his treatment. According to Dr. Mateescu, once an individual with bipolar disorder stops taking medications, it begins to cause problems. He testified if the medication is stopped, symptoms will come back with a vengeance and can be even worse than the first episode. He noted appellant had a history of violent behavior, and if he were to stop taking the mood stabilizer, he would pose a risk of danger to the health and safety of others. Dr. Mateescu agreed with Dr. Bercovicth's report recommending against releasing appellant because, in Dr. Mateescu's opinion, appellant lacked insight into his need for treatment.
Dr. Mateescu felt appellant complied with his medication at NSH because he saw it as necessary to getting out of the hospital, not because he actually believed he needs it. He testified bipolar disorder affects the capacity for insight into the condition; thus, it is not that appellant does not want to have insight into his condition—the disorder itself prevents it. With more and proper treatment Dr. Mateescu believed appellant might be able to gain more insight that would propel him toward a better prognosis. He did not envision appellant being aggressive with proper treatment, but appellant needed to have insight that continued medication and treatment was the solution for his problem. He felt that if appellant were to stop taking his medication, he would pose a risk of danger to the health and safety of others. He pointed out appellant's judgment had been poor in the past. While people with appellant's history who are compliant with medication can curb their aggressive behavior in the hospital settings, appellant is more likely to be physically aggressive off his medication than when he is on it.
At the time he was transferred out of NSH, appellant was taking Neurontin, which is the brand name for Gabapentin. Gabapentin is used to treat chronic pain symptoms, but Dr. Mateescu noted that medication also acts as a mood stabilizer, which is why it had been chosen for appellant. Dr. Bercovitch's report did not list any medications for psychosis and there was no note about mood stabilization being the reason for the Gabapentin/Neurontin prescription, which Dr. Mateescu thought he probably overlooked. Dr. Mateescu pointed out appellant's prescription for 1,000 milligrams of Gabapentin/Neurontin is a "pretty good" dose.
Glenna Briney is a clinical social worker employed at PSH; she testified appellant was on her caseload and she was part of his interdisciplinary treatment team. She interacted with him about five days per week for about two years between 2014 and 2015. She never witnessed him being physically aggressive, and there was only one incident his treatment team discussed with him; but his behavior was nonaggressive, and no disciplinary write-up or other actions were taken against him for this incident.
Dr. Patrick O'Reilly is a clinical psychologist who testified appellant participated in a weekly treatment group led by Dr. O'Reilly at NSH. Dr. O'Reilly remembered appellant being consistently courteous and respectful to the other men in the group and to the female co-facilitator, and he participated in a relevant way. Nothing in appellant's behavior during the group sessions evidenced him to be suffering from any kind of psychosis, psychotic ideation or paranoid ideation, and Dr. O'Reilly was constantly looking for such signs. Dr. O'Reilly was not part of appellant's treatment team at NSH, and he was not assigned to appellant's unit or ward. However, in reviewing one of his own treatment notes from March 2017, it recorded his diagnostic impression that appellant suffered from bipolar disorder.
Dr. Samuelson is a staff psychologist at NSH who co-facilitated the group with Dr. O'Reilly in which appellant participated. She testified she had enough interaction with appellant to make some diagnostic impressions. He did not have any behavior problems while in the group, he was open about his criminal background, he talked about his experiences and expressed remorse, and he seemed to learn from the group. He was aware of the consequences of his criminal behavior and seemed very committed to not suffering those consequences again.
She did not note any symptoms of psychosis or delusions, nor did she observe any physical, violent aggression—appellant was high functioning. Dr. Samuelson had reviewed Dr. Bercovitch's November 2017 report, which indicated appellant had not been verbally or physically aggressive while at the hospital, which she found extremely significant in terms of appellant's mental stability. She explained ADHD does not ever involve psychosis; it involves difficulty sustaining attention and remembering and there are often impulsivity issues and hyperactivity. Her view of appellant's clinical posture was limited, however, because she was not part of his treatment team and the only clinical contact she had with him was during group sessions and then observing him before group sessions
C. The People's Evidence
Dr. Heitzig worked for Kern County Behavioral Health in the conditional release program (CONREP), where she was the community director and a clinical psychologist. She met with appellant on November 30, 2017, to evaluate him for outpatient placement. Dr. Heitzig opined appellant would be a risk in the community, which was based on her interactions with appellant and her review of his records. She noted the treatment team's analysis weighed heavily on her opinion, and she observed that appellant had a real lack of insight into his mental illness diagnoses. He had difficulty identifying any treatment goals or plans in the community, which is something they consider in evaluating a person's suitability for outpatient care. She felt his attitude was superficial, he minimized his criminal history, his mental illness, and his need for treatment. When they met, he told her that no matter what she recommends to the court, the judge would order him released either way because he does not have any mental health symptoms. He believed that he needed support, but after a year he would be "good to go[,]" and he was not dangerous and knew how to protect himself. He said, "I'll let you guys and the state pay for my services for one year and then I'll be let off CONREP." Dr. Heitzig opined appellant represented a risk in the community if released to outpatient treatment and recommended he continue to receive treatment at the state hospital.
II. The Court's Decision
The trial court gave great weight to the treatment team's assessment and gave weight to Dr. Bercovitch's report because he was part of the assessment team. The court deferred to the multiple health experts, who opined appellant was not at a point where he was suitable for an outpatient release program at that time, and the court denied appellant's petition.
DISCUSSION
I. General Legal Principles and Standard of Review
A. Substantive Due Process and Commitment Proceedings
"[C]onsistent with 'substantive' due process requirements, the state may involuntarily commit persons who, as the result of mental impairment, are unable to care for themselves or are dangerous to others. Under these circumstances, the state's interest in providing treatment and protecting the public prevails over the individual interest in being free from compulsory confinement." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1151 (Hubbart); Kansas v. Hendricks (1997) 521 U.S. 346, 388-389 [considering constitutionality of involuntary civil commitment].)
In Addington v. Texas (1979) 441 U.S. 418 (Addington), the United States Supreme Court held that to commit an individual to a mental institution in a civil proceeding, due process requires the state to prove by clear and convincing evidence that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and for the protection of others. Proof by a preponderance of the evidence, the court held, fell short of satisfying due process in that type of civil commitment proceeding. (Id. at pp. 426-427.)
When a person who committed a crime is found not guilty by reason of insanity, however, a state may commit that person without satisfying the Addington burden with respect to mental illness and dangerousness. (Jones v. United States (1983) 463 U.S. 354, 363 (Jones).) In Jones, the court upheld a statute that required a defendant who was acquitted by reason of insanity and committed to an institution to show that he was no longer insane or dangerous by a preponderance of evidence in order to be released. (Id. at pp. 366-368.)
The Jones court determined that "a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society." (Jones, supra, 463 U.S. at p. 366.) The court reasoned the conviction itself was sufficient evidence that the defendant was dangerous and the statute allowed the defendant to prove, after a period of time, that he had recovered and therefore should be released. (Id. at pp. 364-366.) As such, the concerns critical to the decision in Addington for civil commitment proceedings were found diminished or absent in the case of insanity acquittees, and the court concluded there was no reason to adopt the same standard of proof for both types of cases—the preponderance of the evidence standard comported with due process for commitment of insanity acquittees. (Id. at pp. 367-368.)
In Foucha v. Lousiana (1992) 504 U.S. 71 (Foucha), a criminal defendant was found not guilty by reason of insanity and was committed under a Louisiana statute to a psychiatric facility until his release was both medically recommended and judicially approved. (Id. at pp. 73-75.) The Louisiana statutory scheme prohibited the release of a person committed in this manner so long as he was dangerous to himself or others, regardless of whether he was also insane or mentally ill. Upon seeking release, the committed person bore the burden of proving he was not dangerous. (Id. at p. 73.)
After several years of confinement, judicial proceedings began to determine whether Foucha should be released. The trial court determined Foucha was still dangerous within the meaning of the statute and recommitted him. The evidence showed that he was no longer insane or mentally ill because the drug-induced psychosis leading to his initial commitment had resolved, and the state did not argue he had any mental illness. Although no expert opined he posed a danger to himself or others if released, the doctors who examined him as part of the proceedings refused to certify that he would not be dangerous based on his unruly behavior while institutionalized and his antisocial personality traits. The trial court's denial of release was upheld on review in state court, but the United States Supreme Court reversed the judgment. (Foucha, supra, 504 U.S. at pp. 73-75, 86.)
The court reaffirmed Jones's holding that an insanity acquittee may initially be held without complying with the procedures applicable to civil committees under Addington. However, the court held that an insanity acquittee may be held only so long as he is both mentally ill and dangerous, but not longer. Since there was no evidence Foucha was presently insane or mentally disturbed, the basis for confining him as an insanity acquittee had disappeared. Because he could no longer be held as an insanity acquittee, his continued confinement was constitutionally improper without civil commitment proceedings of current mental illness or dangerousness. That standard had not been met in Foucha's recommitment proceedings because clear and convincing evidence of a mental disorder had not been introduced. In fact, the state did not even claim that Foucha was mentally ill. (Foucha, supra, 504 U.S. at pp. 77-80.)
In discussing the lack of evidence that Foucha was dangerous, the court noted that his continued confinement could not be based solely on the fact that he once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which an expert had testified there was no effective treatment. That rationale, the court noted, would permit the state to hold any acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. (Foucha, supra, 504 U.S. at pp. 81-83.)
B. Insanity Acquittees Under California Law
If a defendant charged with a crime is found insane at the time the offense was committed, the court shall direct (unless the defendant appears to have recovered his sanity fully) that the defendant be committed to the State Department of State Hospitals or any other appropriate public or private treatment facility, for care and treatment. (§ 1026, subd. (a).)
A defendant found not guilty of a crime by reason of insanity may be released from a state hospital (1) "upon the ground that sanity has been restored[]" (§ 1026.2, subd. (a)); (2) expiration of the maximum term of commitment, which is the "longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted[]" (§ 1026.5, subd. (a)(1)); or (3) approval of outpatient status pursuant to the provisions of section 1600 et seq. (§ 1026.1, subd. (c)). (People v. Dobson (2008) 161 Cal.App.4th 1422, 1432.) Here, appellant sought to be released from NSH based on a petition for restoration of sanity under section 1026.2, the first method listed.
Section 1026.2, subdivision (e), establishes a two-step procedure for such application. The first step is to "hold a hearing to determine whether the person applying for restoration of sanity would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community." (Ibid.) The defendant has the "burden of proof by a preponderance of the evidence." (Id., subd. (k).) The second step, which is not involved here, usually occurs one year after the defendant's placement with a conditional release program and requires the trial court to hold a trial to determine whether the defendant's sanity has been restored. (Id., subd. (e).)
C. Standard of Review of Denial of Petition for Release
The standard of review of a determination under the first step of section 1026.2, subdivision (e)—whether a defendant-applicant will be a danger to others while under supervision and treatment—is generally held to be abuse of discretion. (People v. Bartsch (2008) 167 Cal.App.4th 896, 900.) Under this standard, it is not sufficient to show facts affording an opportunity for a difference of opinion; rather, abuse of discretion is shown only if the court exceeds the bounds of reason, all circumstances being considered. (People v. Cross (2005) 127 Cal.App.4th 63, 73.) If substantial evidence does not support the trial court's factual findings, it has abused its discretion. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1006.) Any determinations of law are reviewed independently. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
II. Analysis
There are three essential components to appellant's argument: first, appellant suffered from brief psychotic episode with marked stressors during the offense to which appellant pleaded not guilty by reason of insanity. However, these symptoms have resolved and his treatment team believes his current symptoms relate to his other diagnoses. Thus, because the condition that supported his initial commitment has resolved, there is no mental illness to support continued commitment as a matter of law, similar to Foucha. Second, and relatedly, despite Dr. Mateescu's testimony that appellant suffers from a mild form of bipolar disorder, which is in remission, that opinion was equivocal and unsupported by the treatment records so it is not sufficient evidence to support continued commitment. Finally, none of appellant's other diagnoses are actually mental illnesses that could support continued commitment as a matter of law—ADHD and his other-specified trauma and stressor disorder are simply not mental illnesses, and Foucha held antisocial personality disorder by itself is not a mental illness sufficient to support continued commitment.
A. Changes In Symptoms or Diagnosis After Initial Commitment
Both the facts and the statute at issue in Foucha are different from this case. In Foucha, the issue was not simply that the originally diagnosed condition had resolved—the doctors were unwilling to opine Foucha had any mental illness (Foucha, supra, 504 U.S. at pp. 74-75), and the court held commitment could not continue solely on the basis of dangerousness for which there was no evidence anyway (id. at pp. 80-83). Foucha does not hold that resolution of certain symptoms or a change from the diagnosis that originally supported commitment precludes continuing commitment.
Beyond that, the statute at issue in Foucha improperly allowed the government to keep Foucha committed regardless that he had no mental illness. Section 1026.2 is not similar to Foucha in that regard—it requires consideration whether the acquittee would be 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).) The question under section 1026.2 is not whether the diagnosis supporting the initial insanity commitment is still applicable at the time of the release hearing, the question is whether there remains any mental defect, disease or disorder that causes dangerousness. Placing the burden of proof on an acquittee does not violate due process because "'it is reasonable to presume ... that [the] defendant's insanity ... has continued to the date of ... the release hearing." (People v. Sword (1994) 29 Cal.App.4th 614, 624.)
Whether doctors have altered the original diagnosis supporting the insanity acquittal or concluded that some symptoms supporting initial commitment have resolved does not necessarily mean there are no other underlying conditions that may have contributed to the original insanity commitment and/or that continue to implicate a mental defect, disease or disorder that poses a risk of danger to the health and safety of others. If, like Foucha, the evidence indicates the insanity acquittee has no remaining mental illness, then release is required absent civil commitment proceedings with the burden and standard of proof as described in Addington. But that is not the situation here, where no doctor has opined there are no further mental defects or disorders remaining.
Appellant's citation to O'Connor v. Donaldson (1975) 422 U.S. 563 does not aid him in this regard either. There, the civil committee was denied release even though his purported mental illness required no actual treatment nor was there any showing he was dangerous. The court held confinement of the harmless mentally ill does not establish a constitutionally adequate purpose for the confinement. Even if there had been a constitutionally sufficient basis to support his original confinement, that basis no longer existed—i.e., he was not dangerous. (Id. at pp. 573-576.)
We are not persuaded that as a matter of law the resolution or alteration of the initial commitment diagnosis in and of itself means that any subsequent continued commitment is a violation of substantive due process. The fact that appellant's psychotic symptoms have resolved does not mean outpatient release is required as a matter of law—the evidence must establish he is not dangerous to the health and safety of others due to a mental defect, disease or disorder.
B. Bipolar Disorder Was Not Established by Substantial Evidence
Appellant disputes that Dr. Mateescu's opinion about his bipolar condition was sufficient to support continued commitment, especially since the team had removed that diagnosis and replaced it with the diagnosis of brief psychotic disorder with marked stressors, which had resolved.
There was a conflict in the evidence presented at the hearing whether appellant suffers from a mild form of bipolar disorder, which has been nonsymptomatic since coming to NSH due to proper medication or whether appellant's bipolar diagnosis was removed because he really never suffered from bipolar disorder, but rather exhibited psychotic symptoms that have now fully resolved.
In November 2016, a court report was filed under section 1026, subdivision (f), by Dr. Bercovitch that indicated appellant was diagnosed with bipolar disorder in full remission. However, in the November 2017 report from Dr. Bercovitch, it was noted appellant's treatment team at NSH had removed appellant's diagnosis of bipolar disorder and added a diagnosis of brief psychotic episode to account for his history of psychotic symptoms at the time of his offense. According to Dr. Bercovitch, the team determined appellant's psychotic symptoms had resolved. The treatment team viewed appellant's current symptoms as related to his diagnosis of ADHD as well as a history of trauma (captured in his diagnosis of other-specified trauma related disorder) and his tendency to approach challenges in an aggressive manner (related to his other-specified personality disorder with antisocial traits).
Section 1026, subdivision (f), requires the medical director of a state hospital where the defendant is confined to submit a report to the court at six-month intervals that sets forth the status and progress of the defendant.
However, Dr. Mateescu testified he nonetheless believes appellant suffers from a mild form of bipolar disorder even though the treatment team, which includes Dr. Mateescu, had agreed to remove this diagnosis entirely because they had not witnessed symptoms meeting the diagnostic criteria. Dr. Mateescu had sought a reason for the original diagnosis and indicated his belief that because appellant had always been treated with mood stabilizers, including Gabapentin/Neurontin, his bipolar disorder was in remission. Dr. Mateescu was concerned, though, about appellant's ambivalence for the need of any mood stabilizers once he left the hospital. He explained appellant did not believe he had bipolar disorder, which is common when someone goes on medication, gets better, and then decides they do not need the medication any longer. He believed appellant would pose a risk of danger to the health and safety of others if he stopped taking his medication. Dr. Mateescu explained because there was violence in appellant's past, this was the best predictor of future actions. He felt appellant was more likely to be physically aggressive off medication than when he was compliant with medication in a hospital setting.
Whether Dr. Mateescu's opinion in this regard constitutes substantial evidence is a close call. Expert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Opinion testimony that is conjectural or speculative does not rise to the level of substantial evidence. (Ibid.)
On the one hand, Dr. Mateescu was appellant's treating physician for over a year, and he offered an explanation why the diagnosis was removed and why he believed appellant continues to suffer from bipolar disorder albeit in remission. He also explained that while appellant was taken off the medication Latuda when his bipolar diagnosis was removed, the team had prescribed Gabapentin because it would treat appellant's chronic pain and act as a mood stabilizer, thus treating the underlying bipolar disorder. Dr. Mateescu felt Dr. Bercovitch, who is not a medical doctor, had overlooked this use of Gabapentin in his report. Whether Dr. Mateescu knew more about appellant's condition as his treating psychiatrist than Dr. Bercovitch would implicate the weight of the opinion, not whether it may constitute substantial evidence.
Appellant argues Gabapentin is not a mood stabilizer and it is not used to treat bipolar disorder. Appellant's citation to WebMD.com is not sufficient to undercut Dr. Mateescu's expert medical testimony.
On the other hand, if appellant's bipolar disorder was in full remission, it is unclear why Dr. Mateescu agreed to remove the diagnosis entirely and replace it with a different diagnosis rather than continuing to denote the bipolar disorder as being in remission. His opinion is inconsistent with what he and the rest of the treatment team decided with respect to the bipolar condition. It is not just that Dr. Mateescu has a different opinion from the treatment team or Dr. Bercovitch, it is that Dr. Mateescu's testimony is inconsistent with his own treatment decisions as recorded in the treatment notes.
Moreover, Dr. Mateescu opined that appellant poses a danger to others by reason of his bipolar disorder condition if he stops taking Gabapentin. It was obviously not clear to Dr. Bercovitch in reviewing appellant's treatment records that Gabapentin was prescribed as continued treatment for bipolar in remission. If the need for mood stabilizing medication is critical to maintaining the remission of appellant's bipolar disorder, it seems the bipolar diagnosis would remain noted in the records and the reason for the Gabapentin prescription would be specified. It makes no sense that this type of information would be omitted from the treatment records for the court, counsel and, most importantly, any subsequent treating teams or physicians to intuit. Dr. Mateescu agreed to remove the diagnosis entirely, no intra-team disagreement is noted, and if he truly believed there was a possibility of relapse in discontinuing appellant's mood stabilizer, he surely would have indicated this in the treatment records. Dr. Mateescu's opinion in this regard is not corroborated by the treatment records that Dr. Mateescu himself helped to create. Dr. Mateescu's testimony about appellant's purported bipolar disorder is not substantial evidence of its existence.
C. There is Substantial Evidence of Mental Defect, Disease or Disorder
Nevertheless, there remains other substantial evidence of a mental defect, disease or disorder to support the denial of outpatient release. Appellant argues he no longer suffers any mental disease or defect because none of his remaining conditions qualify as such. These conditions are limited to ADHD, an other-specified trauma and stressor related disorder not meeting the criteria for posttraumatic stress disorder, and an other-specified personality disorder with antisocial traits. Appellant points out ADHD is not a psychosis nor does it ever involve psychosis, thus it cannot be a basis to continue his commitment. He argues his trauma and stressor related disorder stems solely from his time in prison, and there was no testimony this qualifies as a mental illness or insanity. As for the other-specified personality disorder with antisocial traits, appellant argues that under Foucha these types of social disfunctions cannot be the basis for continued commitment of insanity acquittees, even if they pose a danger to others.
The other-specified personality disorder with antisocial traits is a mental defect, disease or disorder the court was entitled to consider and Foucha does not hold otherwise. As explained in People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202 (Blakely), Foucha did not address whether a diagnosis of antisocial personality disorder may constitute a mental disorder for the purpose of an extended commitment and, thus, does not stand for the proposition that a diagnosis of antisocial personality disorder as a matter of law is insufficient to warrant extended commitment. (Blakeley, supra, at pp. 211-213.)
Based on this discussion of Foucha, the opinion in Blakely was cited with approval by the California Supreme Court in Hubbart, supra, 19 Cal.4th 1138, 1158. Notwithstanding Justice Werdegar's concurrence in Hubbart stating concerns that "'diagnosed mental disorder'" as described in Welfare and Institutions Code section 6600, subdivision (a), of the Sexually Violent Predators Act (SVPA), may prove too imprecise a category when considering antisocial personality disorder (Hubbart, supra, at pp. 1179-1181 (conc. opn. of Werdegar, J.)), the majority opinion clearly held that "[n]othing ... in Foucha ... purports to limit the range of mental impairments that may lead to the 'permissible' confinement of dangerous and disturbed individuals. [Citation.] Nor did Foucha state or imply that antisocial personality conditions and past criminal conduct play no proper role in the commitment determination[]" (Hubbart, supra, at p. 1161). Thus, we do not agree that appellant's diagnosis of other-specified personality disorder with antisocial traits cannot, as a matter of law, constitute a mental defect, disease or disorder that rendered appellant a danger to others, particularly in combination with appellant's other diagnoses and symptomatology. This is not a case where appellant's sole remaining issue is antisocial tendencies. As explained in Blakely, this was an issue for the trier of fact to resolve with the assistance of expert testimony. (Blakely, supra, 60 Cal.App.4th at p. 213.)
Hubbart was a convicted felon who had a history of committing violent acts against women; before he was scheduled to be released from prison, the state sought his civil commitment under the SVPA. Hubbart argued the definitions of mental impairment and dangerousness used for commitment under the SVPA were flawed because they permit commitment based on a range of diagnosed mental impairments broader than what is allowed. He pointed specifically to Foucha, arguing it held that a diagnosed antisocial personality disorder can never be used as a basis for civil commitment. The court rejected this argument, noting that due process requires an inability to control dangerous conduct and does not restrict the manner in which the underlying impairment is statutorily defined. The court also explained that Hubbart had mischaracterized Foucha and held nothing in Foucha purports to limit the range of mental impairments that may lead to the permissible confinement of dangerous and disturbed individuals. (Hubbart, supra, 19 Cal.4th at pp. 1142, 1151-1152, 1158-1161.)
Justice Werdegar pointed out in her concurring opinion that the diagnosis of antisocial personality disorder is founded on behavioral categories that include a history of criminality. Individuals who are convicted of one or more sexually violent acts fall within the provision of the SVPA so long as the offender has a currently diagnosed mental disorder that makes the person a danger to the health and safety of others. A "'diagnosed mental disorder'" may be too imprecise a category if it fails to distinguish between offenders whose violent predatory conduct stems in some way from their abnormality of thought, perception or affect, and those offenders, who by virtue of their deviant conduct may be described as abnormal, but their abnormality traces circularly back to their conduct. Justice Werdegar's concern was that if one commits a criminal act and is deemed to have antisocial personality as a result, one could be held indefinitely though not mentally ill. (Hubbart, supra, 19 Cal.4th at pp. 11791181 (conc. opn. of Werdegar, J.).)
Appellant argues neither his ADHD nor his other-specified trauma and stress disorder could ever be considered mental defects, diseases or disorders, but we have been directed to no authority for this blanket proposition. While it is difficult to conceive of a situation where ADHD by itself would be a mental defect, disease or disorder that would pose any type of danger to the health and safety of others, it is unclear that its symptomatology would not complicate a person's overall diagnostic profile or the risks associated with the other disorders diagnosed here. As for appellant's claim no testimony was elicited that the other-specified trauma and stress disorder constituted a mental illness or insanity, Dr. Bercovitch's report frequently referred to appellant's diagnostic profile as one of mental illness, and Dr. Mateescu testified the four diagnoses together represented a very complicated profile.
Dr. Bercovitch's report indicated that although appellant had not shown any recent psychotic symptoms, there remained mental health issues. As his treatment team reported, appellant showed a tendency to become impatient and anxious, and he appeared to have a baseline of being easily activated and to take more time than typical to calm down. When he was highly activated, which happened on a regular basis, his speech became somewhat rapid, pressured and loud, he often appeared to have anxious affect and a low threshold for irritability. His team linked these symptoms to his three diagnoses besides the psychotic symptoms that they felt had resolved. Notably, appellant did not agree with the team that he had a major mental illness or that his diagnoses were compatible with being a danger to the community. The treatment team, including Dr. Bercovitch, had repeatedly suggested to him that his current symptoms put him at a higher level of risk than the general population. To the team, this was evidence he lacked full insight into his mental illness and his risk for violence; thus, his team did not agree he was ready for discharge.
The treatment team had asked appellant to question his belief that he could become dangerous only if he were placed back in the hostile prison environment and solitary confinement for a long period. While the team agreed appellant had done well in avoiding violence at the hospital, they were concerned that appellant had a history of violence related to interpersonal conflicts even when he had not been having psychotic symptoms. Dr. Bercovitch noted these additional risk factors for his violence include symptoms of ADHD and the prominence of his antisocial traits; he also appeared to have some continuing trauma symptoms related to victimization when he was a child and when he was in prison. Dr. Bercovitch echoed the treatment team's recommendation that appellant be retained for treatment at NSH rather than be discharged for outpatient treatment. Uniformly, the doctors and psychologists who considered appellant's current health status recommended against release to outpatient treatment.
That appellant's psychotic symptoms supporting his initial commitment resolved does not in and of itself render his continued confinement a substantive due process violation absent the civil commitment proceedings indicated in Addington. An insanity acquittee may be held until he is no longer mentally disordered and dangerous. (Jones, supra, 463 U.S. at p. 370; § 1026.2, subd. (e).) The court was entitled to consider the diagnosed other-specified personality disorder with antisocial traits together with the symptoms of appellant's other conditions that aggravated his risk factors for violence even in the absence of psychotic symptoms. Section 1026.2 does not indicate only psychotic disorders or symptoms qualify as mental defects, diseases or disorders. The treatment team here clearly indicated appellant's specific constellation of symptoms and diagnoses together presented a mental health defect that, given appellant's lack of insight into his conditions, rendered him a danger to the health and safety of others in an outpatient placement. The trial court's denial of appellant's petition for outpatient release did not violate the Fourteenth Amendment, substantial evidence supports the denial, and there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.