Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR22094
Jenkins, J.
This is an appeal from an order denying appellant Kerry Mary Marlowe’s petition for conditional release for outpatient treatment pursuant to Penal Code section 1026.2. We affirm.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On October 7, 1994, a felony complaint was filed in Sonoma County charging appellant with two counts of vandalism, and one count of stalking in violation of a protective order. On October 19, 1994, appellant was found mentally incompetent to stand trial. Appellant was thus committed to Patton State Hospital, where she remained for treatment until January 1995.
In January 1995, appellant was found mentally competent to stand trial. In May 1995, she was found not guilty of all counts by reason of insanity, and was placed on outpatient status under the supervision of the Sonoma County Forensic Conditional Release Program (CONREP).
Appellant remained on outpatient status subject to certain conditions until February 11, 2003, when the trial court, on the recommendation of the Sonoma County Department of Health Services, ordered appellant recommitted to Napa State Hospital for inpatient treatment. On February 19, 2004, and again on November 9, 2005, her commitment was extended, with the last period of extension ending February 17, 2008.
On January 16, 2007, appellant filed the petition at issue here for conditional release from her mental hospital commitment under the supervision of CONREP.
On July 30, 2007, a hearing was held on appellant’s petition. Appellant and two of her treating physicians, Dr. Leif Skille and Dr. Kent Butzine, testified. We set forth the relevant testimony of each witness below.
Appellant testified that she had been diagnosed with paranoid schizophrenia, borderline personality disorder, obsessive compulsive disorder, anxiety disorder, sexual disorder, and urinary incontinence. She insisted that her medications helped her “very much,” and that she would continue taking them should her request for outpatient care be granted. She further insisted that she had not had suicidal thoughts for about two and a half to three years, and that she would not be a danger to others should she be released into CONREP.
On cross-examination, appellant admitted sometimes missing her treatment classes because she feels as if she is overmedicated. Appellant acknowledged it would be more difficult to attend her treatment classes if released, and responded: “Yes. I don’t know,” when asked whether she would nevertheless attend them. Appellant believed two of her medicines – olanzapine, a psychotropic drug, and depakote, a mood stabilizing drug – should be reduced or changed. Appellant asked her doctors to change her medications, but they refused. If released into CONREP, appellant would “try to work something out with my doctor and CONREP that I can have the medications reduced or changed.” If her doctors still refused, appellant “then . . . would” follow the same prescriptions.
Appellant acknowledged that she was currently housed in a “closed unit,” but that her treatment providers wanted her to be housed in an “open unit,” which provides patients more independence and into which patients are transferred when they are within one year of discharge. Appellant explained she did not want to be transferred into an open unit because “I decompensated the last time I was on an open unit.” Appellant is not worried about decompensating if released into CONREP, although she “do[es]n’t know” why she is not worried.
Dr. Skille later explained that, after being placed in an open unit, appellant experienced dental pain and a conflict with other patients. As a result, appellant “became very distressed, ran in front of the nursing station, disrobed, . . . and threw herself on the floor yelling out that she was a lesbian, and then after that became paranoid that . . . other patients on the open unit . . . knew about this.”
Appellant admitted sometimes losing her temper, but claimed she does not get violent and is not a danger to herself or others.
Dr. Skille, a staff psychiatrist at the hospital who has treated appellant since her admission in 2002, testified that appellant had progressed since then. However, Dr. Skille explained, appellant continued to struggle with certain things, such as becoming comfortable with her sexual identity, dealing with emotional instability (“she can be very angry and then calm the next second or crying”), and working out conflicts with others, particularly roommates. As such, Dr. Skille believed it was important that appellant transition successfully from the closed unit into an open unit.
Dr. Skille was concerned that appellant blamed her medications for many of her difficulties, such as failing to attend treatment meetings and experiencing urinary incontinence, rather than taking responsibility for them herself.
Dr. Skille believed appellant needs medication, and that it “has been difficult” for her to follow her doctors’ recommendations regarding her medication. To the extent appellant wanted her medication changed, it would be better for this to occur while appellant was receiving inpatient rather than outpatient treatment, particularly because, during a previous attempt to change her medication, “her anxiety went through the roof.”
Dr. Skille testified that, if appellant were released into CONREP, “she could potentially go off the medication,” or “maybe try to find somebody who does what she wants . . . .” When asked whether appellant would present a substantial danger of harm to herself or others if released, Dr. Skille further testified that he remained “concerned” that, under stress and away from a controlled environment, “she could hear voices again and possibly, you know, re-offend . . . .” As such, Dr. Skille reiterated his preference that appellant first successfully transition within the hospital to the open unit before being released into CONREP.
On cross-examination, Dr. Skille acknowledged appellant had not been a danger to herself or a “physical danger” to others while in the hospital. Dr. Skille further acknowledged his belief that appellant would not be at high risk of physically harming others if released. Dr. Skille reiterated, however, that appellant continued to struggle with issues relating to her sexual identity and borderline personality, which had in the past led to feelings of rejection, anger and overwhelming anxiety. Further, if appellant stopped taking her medications, it was “highly likely” her schizophrenia would resurface, making her “potentially . . . at risk of stalking again.”
Dr. Skille concluded: “At this point she hasn’t done what the treatment team would think she’s capable of doing and we would like to see her do it. Before we send her out in the community in less structure, we would like to see her demonstrate and also see how the stability of her illness, see what it looks like as she makes this change.” If she were released at the present time, “I think it’s risky. It’s risky. I mean as I said, there’s a potential that her schizophrenia could flare up. There’s a potential she may have difficulties working out conflicts with either doctors or roommates.”
Dr. Kent Butzine, a psychologist who had treated appellant at the hospital for about nine months, also testified. When asked whether he had concerns about appellant’s release into CONREP, Dr. Butzine replied: “Well, I do.” “Although she has made progress, she hasn’t really consolidated that progress. She’s – she still shows emotional lability, has emotional outbursts. In February she had a major incident where she told one of the staff to shove something up his [expletive] [expletive]. And she later regretted saying that as she typically does, but that’s an indication of the kinds of things that can happen even in a very structured setting. So I’m concerned that in a less structured setting she would get into conflicts with people that would be more extreme.”
When Dr. Butzine was asked whether it was likely appellant would engage in more stalking behavior if released into CONREP at the present time, he replied: “Well, I think it’s a real possibility. She hasn’t I don’t think fully worked through these issues of her sexual identity and some of the tendencies that are part of her borderline personality disorder to idealize and devalue people, to have, you know, extreme shifts in her mood and preferences. I wouldn’t see it happening immediately, but I think it’s a risk. And you know, we would just like her to stay in the hospital long enough so she can consolidate the gains that she’s been making. She can demonstrate this by going to an open unit where there is more responsibility and more independence, less close supervision and if she does well there, as I think there’s a real good chance that she would, then I would feel much more comfortable with her leaving the hospital and going into the community.”
On cross-examination, Dr. Butzine reiterated his belief that appellant was not ready to be released into CONREP, yet acknowledged it was unlikely appellant would be a danger to herself if released. Dr. Butzine also acknowledged that, if appellant stayed on her medication, the risk of her endangering others would be lessened. While Dr. Butzine had no reason to believe appellant would refuse her prescribed medications if released, he expressed concern that appellant would make decisions on her own about her medications, without consulting her doctors, given her current unhappiness with some of those medications. Dr. Butzine explained: “On her own there is a real risk I believe that she would be likely to alter her medication doses.”
Following the hearing, the trial court denied appellant’s petition for conditional release for outpatient treatment. This timely appeal followed.
DISCUSSION
Appellant claims on appeal that the trial court abused its discretion and violated her due process rights by denying her petition for conditional release for outpatient treatment under the supervision of CONREP. The relevant legal framework is as follows.
If, as here, a defendant is found to have been insane at the time of committing an offense, “the trial court shall commit the defendant to a state hospital or other appropriate public or private facility for the care and treatment of the mentally disordered, or place the defendant on outpatient status pursuant to section 1600 et seq. (§ 1026, subd. (a); see People v. Cross (2005) 127 Cal.App.4th 63, 72 [25 Cal.Rptr.3d 186] (Cross); People v. Sword (1994) 29 Cal.App.4th 614, 619-620, [34 Cal.Rptr.2d 810] (Sword).)” (People v. Dobson (2008) 161 Cal.App.4th 1422, 1431.)
“A successful insanity plea relieves the defendant of all criminal responsibility. [Citation.] The commitment of the defendant to a state hospital ‘is in lieu of criminal punishment and is for the purpose of treatment, not punishment. [Citation.]’ [Citation.] ‘The purpose of committing an insanity acquittee is two-fold: to treat his mental illness and to protect him and society from his potential dangerousness. [Citation.]’ [Citation.]” (People v. Dobson, supra, 161 Cal.App.4th at p. 1432.) Consistent with that purpose, once committed to a state hospital, “the medical director of the facility submits semiannual reports to the court as to the person’s status and progress. (§ 1026, subd. (f); see People v. Sword, supra, 29 Cal.App.4th at p. 620.)” (People v. Dobson, supra, at p. 1431.)
A defendant found not guilty by reason of insanity may thereafter be released from the state hospital upon the occurrence of one of three events: “ ‘(1) the restoration of sanity pursuant to the provisions of section 1026.2; (2) expiration of the maximum term of commitment, which means “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; see People v. Soiu (2003) 106 Cal.App.4th 1191, 1194-1195 [131 Cal.Rptr.2d 421] (Soiu).)’ ” (People v. Dobson, supra, 161 Cal.App.4th at p. 1432.)
Here, after being found not guilty by reason of insanity and committed to a state hospital, appellant sought to be released based upon the third event – approval of outpatient status pursuant to the provisions of section 1600 et seq. Under such circumstances, the trial court was subject to the following rules. “Under section 1026.2, the trial court must determine whether the applicant ‘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).) If the court determines the applicant will not, the court ‘shall’ order the applicant to be placed with an appropriate forensic conditional release program for one year. (Ibid.) Under section 1604, subdivision (c), the court also ‘shall consider the circumstances and nature of the criminal offense leading to commitment and shall consider the person’s prior criminal history.’ Under section 1602, subdivision (a)(3), the trial court must specifically approve the recommendation and plan for outpatient status.” (People v. Cross, supra, 127 Cal.App.4th at p. 73; see also People v. Dobson, supra, 161 Cal.App.4th at p. 1433.)
“ ‘Outpatient status is not a privilege given the [offender] to finish out his sentence in a less restricted setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [offender] and cause no undue hazard to the community. [Citation.]’ [Citation.] While in the outpatient program, the applicant may be returned to the state facility after a hearing if determined dangerous to others while in the program.” (People v. Dobson, supra, 161 Cal.App.4th at p. 1433.)
At the outpatient placement hearing held in this case, appellant thus had the burden to prove by a preponderance of the evidence that she would not “be a danger to the health and safety of others, due to mental defect, disease, or disorder, [while] under supervision and treatment in the community.” (§ 1026.2, subds. (e), (k); see also People v. Dobson, supra, 161 Cal.App.4th at p.1432; People v. Sword, supra, 29 Cal.App.4th at p. 624 [“defendant has the burden of proving, by a preponderance of the evidence, that he is either no longer mentally ill or not dangerous”].)
On appeal, we review the trial court’s ruling with respect to a request for outpatient placement for abuse of discretion. (People v. Dobson, supra, 161 Cal.App.4th at p. 1433.) “ ‘The term judicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. [Citation.] When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.]’ [Citation.] ‘Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People v. Sword, supra, 29 Cal.App.4th at p. 626.)
In applying this standard of review, we keep in mind the following: “ ‘The task of defining and redefining, on the basis of actual cases, the meaning of “dangerousness” for release purposes has been delegated to the courts and mental health administrators. The desirability of this procedure, in terms of reducing threats to community well-being, maximizing individual dignity and, more particularly, minimizing deprivations of liberty, rests upon its capacity to force into view those rarely articulated factors which are crucial variables in psychiatric and judicial decisions to release or detain. Interaction in specific cases between the court’s inherent interest in civil rights and the psychiatrists’ primary interest in therapy will [] openly define and redefine criteria for release which amalgamate and reflect these values. In addition, by this sharing of responsibility the traditional tasks of each discipline are restored and anxiety concerning community responses toward the release of any given individual can be minimized as a decisional factor.’ (Goldstein & Katz, [Dangerousness and Mental Illness, Some Observations on the Decision to Release Persons Acquitted by Reason of Insanity (1960) 70 Yale L.J. 225,] 232, fn. omitted.)” (People v. Sword, supra, 29 Cal.App.4th at pp. 628-629.)
As we have already stated, appellant’s burden was to show that she was either no longer mentally ill or not dangerous. (E.g., People v. Cross, supra, 127 Cal.App.4th at p. 74.) According to appellant, she met this burden because “[t]he only evidence presented in this case supports that appellant has not been a danger for the past six years, is not currently a danger and would not be a danger if released under CONREP supervision.”
In finding that appellant had not met the requisite burden of proof, the trial court briefly stated: “I would urge [appellant] to try to get back to the open unit and demonstrate there that you can handle that. It would certainly make looking at your next petition a lot more favorable for you.” As such, while the trial court’s precise reasoning cannot be gleaned from the record, it apparently found persuasive the testimony of both Drs. Skille and Butzine that appellant had made progress, but was not yet ready for release into CONREP. We thus turn to their testimony.
As noted above, Drs. Skille and Butzine agreed there were several areas of lingering concern that precluded them from recommending appellant’s release into CONREP at that time. In particular, both medical experts explained that appellant has a mental illness that can be controlled by medication. They remained concerned, however, that appellant may fail to take all of her prescribed medications if released, given her expressed discontent with her current dosage and selection of medications.
The medical experts also remained concerned that appellant had unresolved issues regarding, among other things, her sexual identity, emotional instability and borderline personality disorder. Given those unresolved issues, if appellant were to come under stress in a less structured environment outside the hospital, they feared her schizophrenia could flare up or she could resume dangerous conduct such as stalking, the offense that led to her initial commitment. Specifically, when asked why appellant was not yet ready for release, Dr. Skille summarized: “It’s risky. . . [T]here’s a potential that her schizophrenia could flare up. There’s a potential she may have difficulties working out conflicts with either doctors or roommates.” Dr. Butzine, in turn, added his concern that appellant could “return[] to the kinds of behavior that led her into the system in the first place because the issues we want her to continue to work on are the kinds of issues that were involved in that incident; sexual identity, conflict and confusion about that, anger.”
Consistent with these concerns, appellant herself acknowledged that, when she had previously moved to an open unit in the hospital – which provided less structure and more independence for patients – she had “decompensated,” and was thus returned to a closed unit. Dr. Skille explained that, when appellant decompensated, she, among other things, became very distressed, ran in front of the nursing station, disrobed, and fell to the floor yelling, and then later became paranoid that the other patients on the open unit knew what had occurred. At the time of the hearing, appellant remained by choice in a closed unit, despite the encouragement of her doctors to try to succeed in an open unit before seeking to be released into CONREP.
Given this record, we conclude the trial court acted neither arbitrarily nor capriciously in denying appellant’s petition for conditional release into CONREP. (See People v. Sword, supra, 29 Cal.App.4th at p. 626.) Rather, the trial court’s decision was based on the substantial evidence presented at the hearing that appellant “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).) Specifically, there was evidence appellant had unresolved issues regarding her sexual identity, emotional instability and borderline personality disorder. There was also evidence that appellant could refuse to follow her prescribed medication regimen and then revert back to emotionally unstable or even schizophrenic conduct, including stalking, the offense that led to her commitment. (See People v. Sword, supra, 29 Cal.App.4th at pp. 627, 630 [when ruling upon a petition for release, the trial court properly considered factors such as the amount of stress the defendant could be subjected to on outpatient status, certain unresolved relationship issues that the defendant had, and the risk that the defendant would not take prescribed medications]; People v. Cross, supra, 127 Cal.App.4th at p. 73 [under section 1604, subdivision (c), the trial court must also consider “ ‘the circumstances and nature of the criminal offense leading to commitment’ ” in ruling on a request for release].)
Moreover, given the trial court’s proper exercise of discretion, we find no violation of appellant’s due process rights. (Cf. People v. Beck (1996) 47 Cal.App.4th 1676, 1682 [consistent with constitutional due process, an “acquittee can be confined in a mental institution only so long as he is ‘both mentally ill and dangerous’ ”].)
We acknowledge appellant’s claim that the trial court erred by considering the risk of her “future dangerousness” if she fails to take her prescribed medications when released. According to appellant, the court “must consider the patient’s current medicated state when assessing whether or not they are dangerous – not a hypothetical or future unmedicated state.” The law, however, is otherwise. As we just pointed out, before granting a petition for release under section 1026.2, the trial court must find “the applicant 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.” (People v. Sword, supra, 29 Cal.App.4th at p. 621.) The condition that the applicant not be dangerous “while under supervision and treatment” necessarily includes a course of treatment involving the taking of medications prescribed specifically to control the applicant’s dangerous tendencies. (See id. at p. 624 [considering, when reviewing an order denying release, that “there is a danger that [the appellant’s mental illness] will manifest itself and become a danger if defendant does not take the medication”]; see also People v. Williams (1988) 198 Cal.App.3d 1476 [in a restoration of sanity hearing, defendant was entitled to an instruction that the jury could consider his medicated condition in deciding if he was dangerous].)
Accordingly, based on this record, we conclude the trial court did not abuse its discretion in finding appellant was unsuitable for immediate release into CONREP.
DISPOSITION
The order denying appellant’s petition for conditional release for outpatient treatment is affirmed.
We concur: McGuiness, P. J., Pollak, J.