Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 070383
RAYE, J.Defendant Brett Allen McGraw appeals the trial court’s order granting a petition to extend by two years his commitment pursuant to Penal Code section 1026.5. In particular, he contends there is insufficient evidence to support the court’s finding that he poses a substantial danger of physical harm to others and that he has serious difficulty controlling his dangerous behavior. We will affirm the court’s order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s psychiatric history began in his teens. By the age of 23, defendant was found not guilty by reason of insanity of assault with a deadly weapon after he fired a rifle toward his neighbor, sending a bullet whizzing past the neighbor’s head. After defendant was evaluated by a doctor, the trial court found his sanity had been restored and ordered him to outpatient treatment.
In 1985 defendant’s outpatient status was revoked and he was committed to a state mental hospital with a maximum period of confinement set at four years. He was eventually transferred to Napa State Hospital (NSH). His commitment there was extended numerous times over the course of the next 20 years.
On September 13, 2007, the court issued another order extending defendant’s commitment at NSH. Defendant appealed that order and we remanded for a new commitment trial “to determine whether there is evidence that defendant tried to control his dangerous behaviors and encountered serious difficulty doing so.”
People v. McGraw (Nov. 19, 2008, C057230) [nonpub. opn.].
A new commitment trial was held on April 6, 2009. Defendant waived his right to be present at trial and his right to trial by jury. The court acknowledged having reviewed records from NSH regarding defendant’s medical and psychiatric history. The People called three witnesses to testify as to their opinions regarding “defendant’s ability to control his dangerous behavior and whether or not there’s any difficulty in doing so.”
First to testify was Toby Lamb, a clinical psychologist at NSH who treated defendant from January 2007 to July 2008. Lamb testified that he reviewed the records related to defendant’s original crimes resulting in his placement at NSH, as well as records related to his prior hospitalization at Atascadero State Hospital. According to those records, defendant was originally diagnosed with “schizophrenia, undifferentiated type, ” as well as alcohol and other substance abuse beginning at the age of 14 or 15. Based on the records and Lamb’s observations, Lamb diagnosed defendant as “Schizo Effective [sic] Disorder Bipolar Type, ” a combination of schizophrenia (a thought disorder) and a mood disorder, usually characterized by delusions. Defendant was taking Haldol and Zyprexa (a mood stabilizer), and being treated for conflict resolution, anger management, and polydipsia, a rare condition where a person loses the ability to self-regulate how much fluid he drinks.
Lamb stated that defendant had difficulty communicating things because of his thought disorder and had little desire to discuss much of his past. Although he acknowledged his crimes, he refused to discuss them. Defendant did not believe he had a problem with anger management, conflict resolution, or polydipsia. Defendant did not acknowledge that he had a mental illness, nor did he understand that he needed medication to treat that mental illness. He told Lamb and other members of the treatment team that he did not want to take his medications and did not think he needed them, and that he would rather not take them when he gets out of the hospital.
Lamb recalled that during the period from January to July 2008, defendant was involved in several incidents. The first occurred on January 4, 2008, when staff informed him that they wanted to search his pockets and he threatened to kick them if they got any closer. He capitulated when several more staff members arrived. The second occurred on January 17, 2008, when staff asked defendant to weigh in and he became belligerent. He called a female staff member a “bitch” and “got in her face.” Staff intervened and “separate[d] him.”
The third incident occurred on July 7, 2008, when defendant was “[s]ort of playing around” with staff, became belligerent, and “got in [a] female staff member[’]s face.” When staff asked if he wanted to talk to somebody, defendant took a fighting stance and said, “Do you want a piece of me? Do you want a piece of me?” When Lamb tried to talk with defendant after the incident, he became irate, was “basically just inconsolable, ” and could not be calmed down. Defendant went out to the courtyard to “scream and vent” before he finally calmed down.
Lamb testified that defendant often got upset and blew things out of proportion, noting that “there was no physical like, you know, altercations, physical assault type things, but it was a lot of this verbal and posturing and threatening, you know, on a pretty frequent basis.” When asked whether he felt that defendant posed a substantial danger of physical harm to others by reason of his mental disease, defect, or disorder, Lamb responded affirmatively and stated, “I base the opinion on not only his history, which has a sort of pattern of aggressiveness towards others. So there’s the history of that. There’s also the symptoms of his disorder that I have actually witnessed, which is impulsivity, difficulty understanding what other people are trying to communicate to him, and also difficulty communicating his thoughts. And I’ve witnessed this on many occasions that when something is a conflict or sort of impasse that his sort of go[-]to response is aggression; be it verbal aggression or verbally threatening something. That’s sort of his first response to adversity.”
Lamb concluded, based on defendant’s conduct at the hospital as witnessed by Lamb, that defendant has difficulty controlling his behavior. In particular, Lamb noted that defendant had difficulty controlling his behavior “when he has conflicts with other people.” Lamb opined that it was unlikely defendant would continue to take his medications if discharged from NSH, given defendant’s indications “on many occasions” that he would not.
Next to testify was Eytan Bercovitch, a clinical psychologist at NSH who began treating defendant in November 2008. Bercovitch testified he treated defendant for schizoaffective disorder with treatment groups to help him understand how to manage his mental illness. Bercovitch focused on helping defendant manage relationships with people and deal with his unacknowledged substance abuse problem. Bercovitch stated that defendant was selective about the parts of treatment in which he would participate. He opined that defendant had “a pattern of very gradual progress” in treatment, “with set backs [sic] at times.”
Bercovitch reviewed defendant’s NSH records going back to 1979, when he was first hospitalized, noting the criminal conduct that resulted in his hospitalization was part of a pattern of disturbances and conflict with people often linked to his mental illness and substance abuse. Bercovitch also noted that defendant’s initial placement on outpatient status in a board and care home was revoked when he became extremely threatening to other people, including threatening his wife’s life with a knife. While at the board and care home, defendant stopped taking his medication and continued to use alcohol in violation of the terms of his outpatient status. Bercovitch was concerned that because defendant continues to deny having a substance abuse problem and refuses to talk about the issues, he will not be prepared to manage his problems in the event he leaves the structured environment of the hospital.
According to Bercovitch, defendant has difficulty communicating and is difficult to understand when he talks, both of which are symptoms of a “serious thought disorder.” He concluded, based on defendant’s “history and his current behavior, ” that defendant posed a substantial danger of physical harm to others if released. He concluded further that defendant had serious difficulty controlling his behavior, based on the fact that defendant becomes so confused and agitated he cannot “stay in the place he was or continue with the activity he was doing” and he leaves. He uses unpleasant words when he becomes uncomfortable and needs to get away from the situation. On occasion, he says “F.U.” when he does not want to talk, and he also thinks the doctors are trying to “dope him up and control him with medicine.”
Last to testify was Margaret Miller, a staff psychologist at NSH since 1996, who began treating defendant in November 2008. Miller testified that defendant was diagnosed with schizoaffective disorder bipolar type, characterized by delusions, paranoia, and disorganized thinking, along with irritability.
Miller witnessed defendant become very angry and hostile in February 2009 when he was required to do a lab draw. He was “escalating” and could not immediately be calmed down. She stated that, although defendant is compliant with taking his prescribed Haldol, he does not acknowledge his mental condition or his substance abuse problem. He also has difficulty connecting his thoughts, making communication with others very difficult. Miller opined that defendant has had a “serious mental illness” for some time, and that he is “severely” and “chronically” mentally ill and therefore needs supervision. Miller recalled that during one incident, defendant became very suspicious when Miller wanted to increase his medication, claiming she was just trying to “dope [him] up, ” and asked for his lawyer. Miller expressed concern for defendant if he were to be discharged with no supervision because he gets easily frustrated and appears not to understand conversations. She added, “He can misperceive what other people are saying, thinking, doing, and easily becomes angry. That could put him in jeopardy of being harmed. I mean, other people could be very put off or threatened by him, and he can be -- at times can posture in a very threatening manner. He’s done that with me, and he can be very scary when he’s upset.” Based on his past behavior, Miller did not believe defendant would continue taking medication if he were discharged without supervision.
Miller recalled an incident involving defendant on March 26, 2009, during which a female psychiatric technician had taken defendant and several other patients out on a group walk when defendant started tapping her on the shoulder. The technician told defendant to stop and walked away. Defendant followed her and continued to tap her on the shoulder. Despite the technician’s repeated instruction to defendant to stop, he did not. Instead, he put his foot out to trip her. The technician became afraid and “picked up a stick because [defendant] was so close to her.” The other patients became concerned about defendant’s behavior as well. Defendant then slapped the technician across the back of the head.
After the incident, Miller brought defendant and the technician into a conference room and told defendant that he “really frightened [the technician], ” explaining that when she said no, she meant no. Defendant began posturing in anger, leaning back with his arms crossed. When the technician explained that she was frightened and asked him why he did what he did, defendant said, “you guys are wrong” and refused to apologize. Instead, he became very defensive and “jumped at” them with a mean facial expression, clenching his teeth and making a sound.
Miller referred to this behavior as “face jumping.”
The next morning, Miller recommended that defendant’s medication be increased. He refused to talk about the incident and became upset and hostile, to the extent that Miller and other staff members considered reaching for their alarms because they did not know if he was going to strike out. They begged defendant to let them increase his medication, but he “would having nothing to do with it” and asked to speak with his lawyer.
Miller explained that she was concerned because the technician was “very scared, ” and despite the fact that defendant knows the technician and has a “nice relationship” with the nursing staff overall, he did not pick up on the cues and did not realize she was afraid. She stated she did not think defendant had the ability to think he was wrong or that he needed to apologize.
Miller opined that defendant represented a substantial danger of physical harm to others because of a mental disease, defect, or disorder based on his hospital records and what she had observed, including his inability to judge situations and the fact that he becomes frustrated and angry and postures. She added that while “he has not hurt anybody, well except this staff person who he tripped and hit, but otherwise he hasn’t hurt anybody on the unit, ” he “does get hostile.” When asked whether defendant tried to control his dangerous behavior, Miller responded, “Well, let’s see, has he tried to control it? Well, he did stomp away from the group when the patients and the nurse said stop, stop. Apparently[, ] he stomped away by himself. So he didn’t continue to hurt her. So he did walk away.” When asked whether he had serious difficulty controlling his dangerous behavior, Miller replied, “Well yes, when he’s interacting like at the conferences when at times when he gets upset and does that lunging thing, so --, ” adding that this type of behavior would be encountered if he were discharged without supervision because “it’s with people that he has problems.”
Miller conceded that defendant “can be very cordial” and “can be very nice, ” and that he might have thought it was just a game when he was tapping the technician on the shoulder, but noted, “I think it went from a game to a higher level” when he tried to trip the technician.
With regard to defendant’s “overall gradual improvement” since coming to NSH, Miller noted that he was no longer exhibiting polydipsic behavior. She also agreed that he has shown an overall pattern of gradual improvement in his mental illness, but not to the extent that she felt he should be released without supervision.
The court concluded defendant “does continue as a result of a mental disease, defect or disorder to represent a substantial danger of physical harm to others and... continues to and currently has serious difficulty in controlling his dangerous behavior, ” and granted the request for extension of his commitment by two years. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends there is insufficient evidence to support the trial court’s finding that, because of his mental illness, he represents a substantial danger of physical harm to others, or that he has serious difficulty controlling his dangerous behavior.
Commitment to a state hospital under section 1026 may only be extended if the defendant was committed for a felony “by reason of a mental disease, defect, or disorder represent[ing] a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1).) Section 1026.5, subdivision (b)(1) requires “proof that a person under commitment has serious difficulty in controlling dangerous behavior.” (People v. Galindo (2006) 142 Cal.App.4th 531, 536; see In re Howard N. (2005) 35 Cal.4th 117, 128; People v. Bowers (2006) 145 Cal.App.4th 870, 878 (Bowers).)
“‘“Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt. [Citations.]” [Citation.]’ [Citation.]” (Bowers, supra, 145 Cal.App.4th at pp. 878-879; accord, People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.)
The court’s findings that defendant is a substantial danger of physical harm to others and that he has a serious difficulty controlling his dangerous behavior are supported by substantial evidence. “A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (Bowers, supra, 145 Cal.App.4th at p. 879.) Here, three expert witnesses testified as to defendant’s dangerousness. Each of the three witnesses treated defendant while he was at NSH. Each witness reviewed defendant’s records and familiarized himself or herself with his history. Each witness diagnosed defendant based on his or her review of the records as well as his or her own personal experience in treating defendant.
Lamb testified that defendant did not acknowledge his problem with anger or that he suffered from mental illness and required medication to treat it. According to Lamb, defendant admitted he would likely not take his medication if released from NSH. Lamb recalled three recent incidents where defendant threatened to kick staff members, became belligerent and combative, and/or “got in [a staff member’s] face.” In two of the incidents, staff had to intervene in order to diffuse the situation. In the third incident, defendant could not be calmed down and had to go outside to the courtyard to “scream and vent” in order to calm down. While Lamb never witnessed defendant commit a physical assault on anyone, he did witness defendant become physically and verbally threatening and opined that defendant posed a substantial danger of physical harm to others based on what he termed a “pattern of aggressiveness towards others” causing defendant to respond to adversity with aggression and threats. Lamb based his conclusion that defendant had difficulty controlling his dangerous behavior on conduct witnessed by Lamb, as well as on defendant’s consistent declarations that he would not take his medications if discharged from NSH.
Bercovitch similarly concluded that defendant posed a substantial danger of physical harm to others based on defendant’s past history of disturbances and conflict with people and on defendant’s “current behavior” as witnessed by Bercovitch, including defendant’s continued denial regarding his substance abuse problem. Bercovitch based his conclusion that defendant had difficulty controlling his dangerous behavior on defendant’s tendency to easily become confused and agitated, and to use unpleasant words.
Like the first two witnesses, Miller concluded defendant posed a substantial danger based on his history and on her own observations of defendant while in her care at NSH. Miller considered the incident in which defendant tapped a psychiatric technician on the shoulder despite her repeated instruction that he stop, then tried to trip her and eventually ended up slapping her across the back of the head, as particularly troubling because defendant did not respond to the technician’s verbal and physical cues, did not recognize that the technician was afraid, and did not take responsibility even when confronted after the incident. He refused to apologize, became defensive and began “face jumping, ” and ultimately refused to allow staff to adjust his medication. In addition to defendant’s tapping, trying to trip, and slapping the technician across the back of the head, Miller based her opinion that defendant had serious difficulty controlling his dangerous behavior on his tendency to become upset and hostile when dealing with people, and to lunge at or “face jump” them in a threatening manner.
Each witness’s testimony alone was sufficient to support the court’s order, given that “[o]ne single recent act of violence unrelated to the original crime, or a single psychiatric opinion that an individual is dangerous as a result of a mental disorder, constitutes substantial evidence to support an extension. [Citation.]” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.) Here, three witnesses—all psychologists who had recently treated defendant—attested to defendant’s dangerousness and his inability to control his dangerous behavior. Moreover, Lamb attested to three incidents in which defendant exhibited threatening behavior ending short of any physical violence. Violence was averted by staff intervention and de-escalation after defendant had time to “scream and vent” and calm down. Miller attested to a specific incident in which defendant struck a psychiatric technician in the back of the head and then became aggressive to the point of “face jumping” at staff when confronted about it later.
Defendant argues that the evidence shows he can control himself to avoid dangerous behavior, as demonstrated by the fact that none of the episodes testified about led to any physical altercations or assaults. He argues further that the experts’ opinions are based on conjecture and speculation, not fact and reason. We disagree.
Defendant’s characterization of the evidence is mistaken. Certainly, “[a] trial court... may not admit an expert opinion based on information furnished by others that is speculative, conjectural, or otherwise fails to meet a threshold requirement of reliability. [Citations.]” (People v. Dodd (2005) 133 Cal.App.4th 1564, 1569.) However, the three experts based their opinions and conclusions on defendant’s past history, as set forth in his medical and psychiatric records from as far back as the initial crime, as well as their own observations of defendant’s current behavior. The experts’ testimony here meets the required threshold. There is sufficient evidence to support the court’s order extending defendant’s commitment.
DISPOSITION
The trial court’s order is affirmed.
We concur: NICHOLSON, Acting P. J., CANTIL-SAKAUYE, J.