Opinion
D074618
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. ANDREW B., Defendant and Appellant.
Gatzke Dillon & Ballance and John W. Dillon for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler and Amanda L. Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MH114713) APPEAL from an order of the Superior Court of San Diego County, Jay M. Bloom, Judge. Affirmed. Gatzke Dillon & Ballance and John W. Dillon for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana R. Butler and Amanda L. Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Welfare and Institutions Code section 8103, subdivision (f)(1) presumptively prohibits a person who has been involuntarily admitted to a mental health facility as a danger to himself or others (§ 5150 et seq.) from owning or possessing firearms for a period of five years from the date of the person's release from the mental health facility. However, such a person may request a hearing in the superior court seeking relief from this prohibition. (§ 8103, subd. (f)(5).) At the hearing, the People have the burden of proving, by a preponderance of the evidence, that the person would not be likely to use firearms in a safe and lawful manner. (§ 8103, subd. (f)(6).)
Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code. Section 8103 has recently been amended in ways that are not material to this appeal. (Stats. 2018, ch. 861, § 1.) All references to section 8103 are to the statute in effect prior to the 2018 amendments.
After his involuntary hospitalization in a mental health facility pursuant to section 5150, Andrew B. (Andrew) filed a request for relief from the section 8103, subdivision (f)(1) firearm prohibition. The trial court denied the petition, finding that the People had carried their burden of establishing that Andrew would not be likely to use firearms in a safe and lawful manner. On appeal, Andrew contends that there is not substantial evidence in the record to support the trial court's denial. Although the evidence was far from overwhelming, we conclude that there is substantial evidence to support the trial court's ruling, and we therefore affirm the order.
In addition to section 8103's prohibition on firearm ownership and possession, section 8102, subdivision (a) requires peace officers to confiscate firearms from a person who has been detained for an examination of his or her mental condition. Section 8102, subdivision (c) provides that the confiscating law enforcement agency may petition the court for a hearing to determine whether return of any confiscated firearms would likely endanger the person or others. If, after a hearing, a trial court determines that the return of the firearms would likely endanger the person or others, the law enforcement agency may destroy the firearms. (§ 8102, subd. (h).)
In March 2018, the City of San Diego (City) filed a petition to retain and destroy Andrew's firearms pursuant to section 8102. The trial court held a joint hearing on Andrew's request for relief under section 8103, subdivision (f)(5) and the City's section 8102 petition. After denying Andrew's petition, the court dismissed the City's petition as moot. Thereafter, Andrew's counsel requested that Andrew be allowed to sell his firearms to "an FFL [federal firearms license] [holder] and to reduce his costs rather than destroy the firearm[s] as it is an option under [section] 8102." After determining that the City had no objection, the trial court granted Andrew's request.
The trial court's ruling on the section 8102 petition is not before this court. We refer to the briefing and proceedings on the City's section 8102 petition only insofar as they are relevant to this appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Andrew's involuntary hospitalization pursuant to section 5150
The Chief Executive Officer (CEO) of the company for which Andrew worked called police after learning that Andrew had posted certain photographs and messages on Facebook. The posts included photographs of firearms and other posts with messages stating, among other things, "Keep Calm and Kill Everyone," and "I Love Saint Valentine's Day. Best. Massacre. Ever." (Some capitalization omitted.) The CEO explained that she had known Andrew since he was three years old, and described him as "very antisocial, [and] always nervous." Another of Andrew's coworkers informed police that Andrew was "highly antisocial."
After police detained and interviewed Andrew, an officer took him to a hospital for a psychiatric evaluation and mental health treatment pursuant to section 5150. A staff psychiatrist at the hospital assessed Andrew and determined that it was appropriate to involuntarily admit him to the hospital. (§§ 5151, 5152.) After his admission, the doctors hospitalized Andrew for approximately two days before releasing him. B. Andrew's request for relief from the firearms prohibition
A few days after his release, Andrew filed a request for hearing for relief from the section 8103, subdivision (f)(1) firearm prohibition, pursuant to section 8103, subdivision (f)(5). In April 2018, Andrew filed a supporting memorandum of points and authorities. In the memorandum, Andrew argued that, when considered in context, his Facebook posts were not threatening. In support of this contention, Andrew noted that his posts that contained messages were merely reposts of content referring to a horror movie (Friday the 13th - "Keep Calm and Kill Everyone") and a historical reference (the St. Valentine's Day Massacre of 1929 - "I Love Saint Valentine's Day. Best. Massacre. Ever."). (Some capitalization omitted.) He also noted that he had an interest in firearms and that the photographs of firearms merely depicted images related to this lawful hobby.
Andrew stated that the memorandum served as both a brief in support of his request for relief under section 8103, subdivision (f)(5) and as his opposition to the City's section 8102 petition.
Andrew argued that the CEO's statement that he was antisocial was "false and prejudicial" and that a similar statement from another of his coworkers was "not supported by any evidence or facts." In support of these statements, Andrew offered numerous letters from other coworkers in which they described him as friendly and sociable. Andrew also noted that the character letters described him as "a caring, attentive friend [who] goes out of his way to help others."
Andrew noted that he offered a total of 32 character letters in support of his request for relief, 15 of which were from his coworkers. We have carefully read the letters, which attest to Andrew's numerous admirable qualities.
Andrew further argued that medical evaluations performed during his involuntary hospitalization "confirm the lack of 'any' evidence [that he] presents a danger to others." (Capitalization and boldface omitted.) In support of this contention, Andrew noted that the admission evaluation from a staff psychiatrist stated that Andrew appeared "open, cooperative and friendly" and that he did not appear to be psychotic or intoxicated.
Andrew also pointed out that a discharge note from another staff psychologist stated, "We do not have any evidence that [Andrew] presents an acute danger to himself or others." In addition, Andrew quoted the following portion of the discharge note, which indicated that Andrew did not appear to suffer from any mental illness and that Andrew's Facebook posts were not particularly concerning:
"[Andrew] has, what could be seen as a very reasonable explanation for the post that caused those concern and that it was made before he was aware of the sensitivity about statements about massacres at the
time.[] We reviewed his Facebook posts and although they often do mention patriotism or guns, they are not out of line for someone who is a gun enthusiast and involved in that culture. The Facebook posts also do support that he has friends and support, but he has been future oriented [sic] and showed a sense of humor about these issues. [Andrew's] [f]amily supports the idea that he has no history of violence, no criminal history, no history of mental illness, and has in fact shown a reluctance to use his weapons even against animals. If anything, he has a preoccupation with enforcing social order and defending the people he perceives as innocent. There is no indication that he recently has increased his gun buying or has had any acute stress within the last week or so that would cause him to be more agitated or threatening. There are no indications of mental illness."C. The hearing on Andrew's petition
The record indicates that Andrew's coworkers were concerned about Andrew's post—"I Love Saint Valentine's Day. Best. Massacre. Ever."—since the message was posted on the same day as the February 14, 2018 mass school shooting at Marjory Stoneman Douglas High School in Florida. However, it is undisputed that Andrew posted the message before the shooting. Andrew explained in testimony in the trial court that the post referred to a historical event and that he did not intend for it to express any support for the Florida shooting.
In his brief on appeal, Andrew requests that we take judicial notice of the timing of the Florida shooting in relation to his post. A request for judicial notice must be made by way of separate motion. (See Cal. Rules of Court, rule 8.252(a)(1).) Thus, Andrew's request is procedurally improper. In any event, we deny Andrew's request as moot given that it is undisputed that Andrew made the post prior to the shooting.
In June 2018, the trial court held a joint hearing on Andrew's request for relief under section 8103, subdivision (f)(5) and the City's section 8102 petition. (See fn. 2, ante.)
1. Documentary evidence presented at the hearing
At the outset of the hearing, the City, Andrew, and the People all stipulated to the admission of a series of exhibits. The exhibits included the following evidence.
a. Andrew's gun ownership
After obtaining a warrant, police searched Andrew's residence and found 14 firearms, hundreds of rounds of ammunition, shooting targets, and several Airsoft weapons.
b. Andrew's alleged commission of a rape
Several of Andrew's medical records reflected that he was a subject of a pending rape investigation. For example, San Diego County Psychiatric Hospital staff psychiatrist, Dr. Robert McLay stated in his discharge note, "The police . . . indicated that [Andrew] is a subject of a rape investigation." Dr. McLay's note also states:
While Andrew objected to the trial court's consideration of evidence of the rape allegation under Evidence Code section 352 in his memorandum of authorities, he did not obtain a ruling on his objection or raise his objection at the hearing, as is required to preserve such an objection for appeal. (See, e.g. Mundy v. Pro-Thro Enterprises (2011) 192 Cal.App.4th Supp. 1, 6 ["In order to preserve a claim of evidentiary error for appellate review, the appealing party must make a contemporaneous and specific objection in the trial court"].) In any event, Andrew does not raise a distinct claim of evidentiary error on appeal. Accordingly, evidence that Andrew was the subject of a rape investigation is properly in the record.
"When confronted with the fact that he had alleged sexual assault charges[] against him, [Andrew] did say that yes, he had been involved with this woman and after he declined to become intimate with her, she became upset and he believes she was being vindictive. He claimed that the two never had sex. He said he did have a lawyer engaged on this and felt confident in regard[ ] to the outcome of it."
It appears that Dr. McLay used the word "charges," to refer to the victim's allegation and not to any pending formal criminal proceeding, because a separate medical record states that police had indicated that "no charges were placed," in connection with the rape allegation.
c. Andrew's alleged prior discharge of a firearm
San Diego County Psychiatric Hospital staff psychiatrist, Dr. Izhak Fridman, stated the following in his admission note:
"Police reported not to discuss this [rape investigation] with [Andrew] as it is an ongoing investigation and no charges were placed, but when police attempted to contact [Andrew], he discharged a firearm in his backyard as the police were knocking on his door. This resulted in the police being concerned as to confront [Andrew] directly as they were afraid of a potential standoff and as such, they took [Andrew] into custody after he left his house and was entering his car."
Dr. McLay's discharge note states:
"The police also indicated that [Andrew] is a subject of a rape investigation and there was an indication in the PERT note[] that upon police approach in the past, he had been heard firing his weapons in the backyard and therefore they had been afraid of confronting him at that time."
In their brief, the People state that "PERT" refers to "Psychiatric Emergency Response Team." The "PERT note" referred to in Dr. McLay's discharge note is not in the record.
d. Andrew's alleged prior brandishing of a firearm
Dr. Fridman's admission note states:
"Police were hesitant to confront [Andrew] at his home given . . . previous incidents in 2014. It was reported that [Andrew] was charged with a 417,[] which is exhibiting a firearm with high likelihood of causing harm after somebody drove into his fence where [Andrew] held the individual at gunpoint until police arrived."
Dr. Fridman stated elsewhere in his report that Andrew was "per police charged with a 417, which is brandishing a weapon gun or firearm or deadly weapon [sic] in 2014 . . . ."
Dr. Fridman also stated that Andrew's brother had called hospital staff and had stated following about that incident:
"[Andrew's brother] feels that sometimes [Andrew] reacts first rather than waiting during situations such as when [Andrew] pulled a weapon on an individual in 2014, which he was charged with a 417. [Andrew's] brother reported that someone was trying to break into [Andrew's] house and he was holding them in until police arrived, rather than what police reported, which was that somebody drove into his fence and [Andrew] was holding them at gunpoint."
Dr. McLay's discharge note states:
"Other areas of concern were that the police indicated they had one previous incident in which [Andrew] was brandishing a firearm when he had stopped someone, who was fleeing after that person crashed a car into a fence around his home."
Dr. McLay's note also stated that police had verified that Andrew had no arrest history and that Andrew had provided an explanation of the encounter that was supported by a news video related to the event:
"Police verified that [Andrew] had no arrest history. [Andrew] said that in regard to the events where he had had a weapon on the individual who crashed his car that the police were actually highly supportive of him of [sic] that time. We were able to find a news video online that supported his version of events."
Finally, Dr. McLay's note states the following with respect to this issue:
"There were obvious concerns about a danger to others at presentation with these being based on [Andrew] owning multiple firearms, having at least two run-ins with the police that involved firearms, although no arrests were involved and in at least one of these cases he appeared to be supporting police services. There were also concerns that he has been alleged to have committed a serious crime of rape and there was concern in an overall pattern that presented as someone who potentially could be dangerous; however, [Andrew] consistently denied any intent to harm anyone."
e. Andrew's Facebook posts
Andrew's Facebook page included photographs of rifles, handguns, and ammunition. In addition, his Facebook page included a post containing a picture of a mask with the words, "Keep Calm and Kill Everyone," underneath the mask. (Some capitalization omitted.) Another portion of the page contained a post with a picture of a cat that appeared to be frowning and the message, "I love Saint Valentine's day. Best. Massacre. Ever." (Some capitalization omitted.) One photograph depicted a black box with the words "Not Legal in California and w/high capacity magazine," printed on what appears to be a sticker on the box.
f. Andrew's workplace temperament
Andrew worked as a mailroom clerk. The CEO of the company for which Andrew had worked for approximately 15 years told police that she had known Andrew since he was a small child. The CEO told also police that Andrew was "very antisocial, always nervous and [that he] has trouble speaking." The CEO recalled an incident during which Andrew had become angry with her after she had hired an employee who had been in jail. The CEO stated that during this incident, Andrew "became red in his face and yelled at [the CEO]." The CEO also stated that, if she were to have to fire Andrew, she would be scared because he always appeared angry or upset. The CEO also reported that Andrew had been working from his residence for some time, but that he had been brought back to work in the office because he was not keeping up with his workload. However, the CEO also reported that Andrew "has never been in trouble at work."
The police report does not state the reason why Andrew was performing work duties from his residence. However, Dr. Fridman's admission note states:
"It was reported that his coworker[ ]s are afraid of him given his odd behavior and referred to him as antisocial and difficult. Per the PERT team member, his supervisors were scared of him and allow him to work from home. He was not working at home and they reluctantly brought him back."
One of Andrew's coworkers described him as "highly antisocial," and stated that she "does not talk to him much." This coworker explained that she had been discussing the Florida high school shooting with another coworker, who showed her the images on Andrew's Facebook page described in part II.C.1.e, ante. The coworker who had been shown the images subsequently informed a human resources representative about Andrew's Facebook page, and the human resources representative in turn informed the CEO.
Andrew submitted numerous character letters, many from his coworkers, which attested to his friendly, outgoing, and caring personality.
f. Stressful events in Andrew's life
Andrew's brother reported to Dr. Fridman that Andrew had suffered from a speech impediment that caused him to be "picked on as a child." Andrew also acknowledged to Dr. Fridman that he had gotten into "frequent fights as a child." More recent stressors included the death of his mother, which had occurred the previous year, and the ongoing rape investigation. A medical record from Andrew's hospitalization entitled "Activity Therapy Assessment," states, "[Andrew [endorsed] feeling depression." However, Dr. McLay stated that Andrew denied "feeling consistently sad or depressed."
g. Therapy recommendation
Dr. McLay's discharge note stated that doctors had recommended that Andrew "follow up for outpatient psychotherapy." Dr. McLay also stated that Andrew had said that he was "willing to engage in exploratory psychotherapy, which should help him if there are any underlying issues."
2. Testimony presented at the hearing
At the hearing, Andrew testified that he had an interest in firearms. Andrew also discussed his Facebook posts in detail, explaining that the "Keep Calm and Kill Everyone," (some capitalization omitted) image was a meme that he found on the Internet and that he reposted it on "[e]very Friday the 13th," because it was a reference to a popular horror film. Andrew provided a similar explanation for the Valentine's Day Massacre post, explaining that it was a "picture of grumpy cat," and contained a reference to an historical event in which "Al Capone sent . . . four of his men after Bugs Moran's men." Andrew considered the post to be a joke. He also explained that he had posted the Valentine's Day Massacre meme on the morning of the Florida school shooting, before the shooting had occurred, and that he did not intend for the post to provide any support for the shooting. The parties stipulated that Andrew would provide similar testimony with respect to the other images that he had posted on his Facebook page.
The court summarized the stipulation as being that Andrew had "not originally prepare[d] any of these [photographs collected from Facebook]. These were reposts." Andrew's counsel clarified that this was correct with the exception of a few photographs of Andrew and his friends shooting firearms at a range.
Andrew also testified that he had never received any formal discipline from his employer, and that he had formed many friendships with coworkers. Andrew also stated that he had never threatened the CEO or anyone else at his workplace
Andrew's coworker, Victor Reyes, testified that Andrew is friendly, that he is not antisocial, and that he had never behaved in a manner that caused Reyes any concern.
The parties stipulated that a second witness, Chris Bond, would testify consistently with a letter that he had submitted on Andrew's behalf. Bond stated in the letter that he considered Andrew to be his best friend, that he had known Andrew for over 20 years, and that during that time, Bond had "never known him to be anything other than calm."
The People did not provide any live testimony and did not cross-examine any of Andrew's witnesses.
3. Closing arguments
Andrew's counsel argued that there was no evidence in the record that Andrew suffered from any mental illness. Andrew's counsel further contended, "They [the doctors in Andrew's medical records] make claims that he's been charged in the past . . . that [Andrew] has been charged with a 417, brandishing of a firearm. The facts don't support that. In fact, they support that [Andrew] lawfully stopped a fleeing felon. There's news articles that are referenced in both the medical examination reports. They looked it up, checked it out, and they confirmed that."
Counsel further argued that the Facebook posts had not constituted a sufficient basis to hospitalize Andrew, given that he had merely reposted a reference to a movie. Counsel continued by arguing that the People had "offered zero evidence whatsoever that [Andrew] has ever [misused] a firearm, has ever had an accidental discharge, has ever threatened anyone with a firearm." Finally, counsel maintained that Andrew was not "liable for people's irrational fear of guns," adding, "If he posts a picture of a gun and someone considers that scary, that's their problem."
The prosecutor argued that Andrew's medical records established that he "endorsed feeling depressed." The prosecutor pointed out that Andrew had "indicated . . . that he would follow up with psychiatrists after his release from his involuntary hospitalization but that there was no evidence that Andrew had sought additional mental health care since his release. Thus, the prosecutor maintained, "there's no evidence before the Court that his mental state is one that he would not be a danger to himself or others." The People added:
"Even throughout his testimony there's absolutely no recognition on his part that this is toxic, and . . . I'm talking about toxic speech or toxic gun ownership. We're talking about the mix, and the mix represents what he thinks, and we're talking about somebody being a danger to the community. We're talking about mix. We're talking about these images using death, massacre, kill, in combination with weapons that kill."
The prosecutor argued that Andrew presented a "recipe for disaster," given "his lack of insight."
In her closing argument on the City's 8102 petition, the city attorney argued that the "totality of [the] circumstances" supported the conclusion that Andrew was a danger to himself or others. In support of this contention, counsel noted that some of Andrew's coworkers feared him, Andrew's Facebook posts referred to a massacre, medical professionals had considered Andrew to be potentially dangerous, Andrew admitted feeling depressed, and Andrew failed to obtain mental health treatment upon his discharge despite a medical recommendation that he do so. The prosecutor joined in the city attorney's arguments.
In rebuttal, Andrew's counsel reiterated his argument that there was "absolutely zero evidence that he's going to be a danger to others or getting back his right to own a firearm will endanger others." D. The trial court's ruling
Prior to giving his rebuttal closing argument, the court permitted Andrew's counsel to reopen questioning in order to ask Andrew, "[D]id you ever express that you were depressed?" Andrew responded, "No."
At the conclusion of the hearing, the trial court denied the petition, ruling:
"Well, the standard before the Court [is that] the People have to prove by a preponderance that the petitioner would not be likely to use a firearm in a safe and lawful manner, and I suppose this case is a little bit unusual in the sense that normally you would have classic mental illness issues and delusions and things like that, but you also have to consider in this case you have evidence of posts that, even if they're not, his . . . judgment is really poor. I will give him the
benefit of the doubt. He didn't know about the massacre that day. I will make a finding that he didn't, but I still think given the conduct and the reposting, and I think as [the prosecutor] points out, even today, there was no comment, 'I'm really sorry I did it,' or 'I shouldn't have done it.' There's still no judgment on that.E. Andrew's appeal
"And given the amount of weapons, I'm concerned that he's not safe with these weapons. So I'm going to agree with the People on the 8103 petition and find by a preponderance of the evidence that the petitioner would likely not use a firearm in a safe and lawful manner. The petition is denied. The petitioner remains subject to the prohibition of ownership, receipt, possession, and purchase of a firearm and whether I can consider it or not, I'm a human being. I can't blind myself to the world as it exists today with all of the shootings. I think there's been 28 shootings at schools in the last six months or something like that, and I think I have an obligation to use my judgment to protect the public, and that's what I'm doing."
The court further stated: "I believe by denying that [Andrew's] section 8103 request for relief] moots out the [section] 8102 petition. So that will be dismissed as moot at this point."
Andrew appeals from the trial court's order denying his request for relief from the section 8103, subdivision (f)(1), (6) firearm prohibition.
The order is appealable. (See People v. Mary H. (2016) 5 Cal.App.5th 246, 254 (Mary H.).)
III.
DISCUSSION
Andrew claims that "[n]o substantial evidence exists to support the trial court's denial of [his] [section] 8103 petition." (Boldface omitted.) A. The operative statutory scheme
Section 8103, subdivision (f)(1) provides:
"No person who has been (A) taken into custody as provided in Section 5150 because that person is a danger to himself, herself, or to others, (B) assessed within the meaning of Section 5151, and (C) admitted to a designated facility within the meaning of Sections 5151 and 5152 because that person is a danger to himself, herself, or others, shall own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility. A person described in the preceding sentence, however, may own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm if the superior court has, pursuant to paragraph (5), found that the people of the State of California have not met their burden pursuant to paragraph (6)."
Section 8103, subdivision (f)(5) provides that a person may seek relief from this prohibition and specifies the procedures pursuant to which a trial court is to determine whether to order such relief. The statute provides in relevant part:
"(5) A person who is subject to paragraph (1) who has requested a hearing from the superior court of his or her county of residence for an order that he or she may own, possess, control, receive, or purchase firearms shall be given a hearing. The clerk of the court shall set a hearing date and notify the person, the Department of Justice, and the district attorney. The people of the State of California shall be the plaintiff in the proceeding and shall be represented by the district attorney. . . . The district attorney may notify the county behavioral health director of the hearing who shall provide information about the detention of the person that may be relevant to the court and shall file that information with the superior court. That information shall be disclosed to the person and to the district attorney. . . . Notwithstanding any other law, declarations, police reports, including criminal history information, and any other material and relevant evidence that is not excluded under Section 352 of the Evidence Code shall be admissible at the hearing under this section."
Section 8103, subdivision (f)(6) specifies that "[t]he People shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner." B. Standard of review
In Mary H., supra, 5 Cal.App.5th at page 261, the Court of Appeal outlined how the deferential "substantial evidence" standard of review is to be applied in reviewing a trial court's denial of a section 8103 petition:
" 'We must "affirm if 'substantial evidence supports the court's determination that return of the firearms to appellant would be likely to result in endangering appellant or other persons.' " ' [Citations.] 'In determining whether a court's ruling is supported by substantial evidence, we view the whole record in a light most favorable to the ruling, resolving all evidentiary conflicts and drawing all reasonable inferences supporting the court's decision.' ([People v.] Jason K., [(2010) 188 Cal.App.4th 1545, 1553]; see People v. Redmond (1969) 71 Cal.2d 745, 755 ['Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it'].) 'If " 'there is "substantial evidence," the appellate court must affirm . . . even if the reviewing justices personally would have ruled differently had they presided over the proceedings below, and even if other substantial evidence would have supported a different result.' " ' [Citations.] ' "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." [Citation.]' [Citation.]"C. Application
As stated in the introduction of this opinion, the evidence that Andrew would not be likely to use firearms in "in a safe and lawful manner" was, in our view, far from overwhelming. (§ 8103, subd. (f)(6).) However, we cannot say that there is not substantial evidence in the record from which the trial court could have reached such a finding. In particular, we observe that Dr. Fridman stated in his admission note that Andrew "discharged a firearm in his backyard as the police were knocking on his door." While Andrew contends that this statement is "unsupported by the record," the record includes Dr. Fridman's note. (See also § 8130, subd. (5) ["The district attorney may notify the county behavioral health director of the hearing who shall provide information about the detention of the person that may be relevant to the court and shall file that information with the superior court"].) Thus, there is evidence in the record to support a finding that Andrew discharged a firearm in his backyard as officers approached his house to speak with him.
The Legislature authorized a trial court considering a section 8103 petition to consider a "broad range of evidence" (People v. Keil (2008) 161 Cal.App.4th 34, 38), including "hearsay evidence" that might not be admissible under the ordinary rules of evidence. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429)
Although it is not entirely clear from the record, it appears that this incident is alleged to have occurred at a time when police were attempting to speak to Andrew in connection with a rape investigation that was pending as of the time of Andrew's involuntary hospitalization. (See pt. II.C.1.c, ante.)
Moreover, while Andrew asserts in his brief that Dr. Fridman's statement is "false," and contends in his brief that the incident "never happened," (italics omitted) Andrew was not asked a single question about the incident during the hearing. Assertions in briefing are not evidence. (See e.g., York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1190-1191 [assertions of counsel are not evidence].) In short, the only evidence in the record about this incident are the two statements in Andrew's medical records indicating that he discharged a firearm in his backyard as police approached his residence. (See pt. II.C.1.c., ante.)
Similarly, while the evidence in the record is equivocal with respect to whether Andrew was previously charged with brandishing a weapon, there is evidence in the record from which a trial court could reasonably have determined that Andrew had in fact been charged with this offense. While Andrew contends that Dr. Fridman's note contains "unsubstantiated allegations and unfounded conclusions regarding . . . nonexistent criminal charges," Andrew was not asked at the section 8103 hearing whether he had ever been charged with brandishing a weapon and he did not provide any testimony with respect to the incident referred to in Dr. Fridman's note. Thus, while Andrew's counsel maintained in his closing argument that "[t]he facts don't support" the statements in Andrew's medical records that indicated that Andrew had previously been charged with brandishing a weapon, the trial court reasonably could have found otherwise, particularly since Andrew provided no contrary testimony. (See Cox v. Griffin (2019) 34 Cal.App.5th 440, 451 [" ' "[i]t is axiomatic that argument is not evidence" ' "].)
Specifically, Dr. Fridman stated in his report that Andrew was "per police charged with a 417, which is brandishing a weapon gun or firearm or deadly weapon [sic] in 2014 . . . ." In addition, Dr. Fridman stated, "[Andrew's brother] feels that sometimes [Andrew] reacts first rather than waiting during situations such as when [Andrew] pulled a weapon on an individual in 2014, which he was charged with a 417." However, we note that Dr. McLay stated in his report, "Police verified that [Andrew] had no arrest history." It thus appears that if Andrew was in fact charged with brandishing a firearm, he was never arrested for that offense.
In addition to these statements about Andrew's past use of firearms, the trial court could have reasonably found that Andrew was presently facing a number of stressful life situations, including undisputed evidence that Andrew was the subject of a pending rape investigation and that he had recently suffered the loss of a parent and "the death[s] of other friends." The court also could have reasonably considered undisputed evidence that Andrew had engaged in physical violence in the past and could have inferred that such violence was related to prior stressful challenges that he was facing at the time.
Dr. Fridman stated that Andrew informed him that he "got into frequent fights as a child." Dr. Fridman said that Andrew's brother reported that Andrew had "a speech impediment and when he was young, he got 'a lot of grief.' " In addition, Andrew's brother said that Andrew "sometimes . . . reacts first rather than waiting during situations such as when he pulled a weapon on an individual in 2014 . . . ."
There was also evidence from which the trial court could have found that Andrew was depressed, and there was no evidence that Andrew had followed through on a doctor's recommendation to begin psychotherapy. In addition, while the evidence of Andrew's temperament at work was equivocal, there is evidence in the record both that he had angrily yelled at the CEO and that at least some coworkers viewed him as antisocial and were afraid of him. There also is evidence that Andrew had previously been permitted to work from home for reasons that appear to have been related to his workplace disposition. Thus, while we agree with Andrew that his Facebook posts, standing alone, would not support prohibiting him from owning or possessing weapons, his posts do not stand alone.
A 2013 performance review stated, "[Andrew] needs to be consistent in his interactions with his customers, because at time he still comes across as being unhappy."
In sum, while there is certainly contrary evidence in the record that would have supported the trial court granting Andrew's petition, we conclude that the trial court could have reasonably found that the People carried their burden of proving, by a mere preponderance of the evidence, that Andrew "would not be likely to use firearms in a safe and lawful manner." (§ 8103, subd. (f)(6).)
Preponderance means " 'more likely than not.' " (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, fn. 28.) An application of the preponderance standard in this context " 'requires the individual [subject to the firearm prohibition] to share equally in the risk of an erroneous adjudication.' " (Mary H., supra, 5 Cal.App.5th at p. 258.) --------
In reaching this conclusion, we emphasize that the applicable standard of review requires that we affirm if there exists "substantial evidence" supporting the trial court's finding, even in cases where "the reviewing justices personally would have ruled differently had they presided over the proceedings below." (Mary H., supra, 5 Cal.App.5th at page 262.)
IV.
DISPOSITION
The order denying Andrew's request for relief from the section 8103, subdivision (f)(1), (6) firearm prohibition is affirmed. Andrew is to bear costs on appeal.
AARON, J. WE CONCUR: BENKE, Acting P. J. DATO, J.
Andrew's May 2013 employee performance review indicated that Andrew 's title at that time was "Claims Clerk." The review also stated that Andrew was "currently working from home," and remarked that, "[w]hen he comes to the office, he looks happier and is open to suggestions given by Supervisor." The evaluation also stated that Andrew "has adjusted well to working from home." However, the evaluation indicated that while Andrew's demeanor and his interactions with coworkers had improved, he still had room to improve with respect to his interpersonal skills with customers:
"Andrew is working well from home. When he is here he has demonstrated to be in a better spirit and smiles when greeting personnel. Andrew has made some improvement in this area. He needs to be consistent in his interactions with his customers, because at time he still comes across as being unhappy."
In addition, the evaluation stated, "There has been significant improvement in his interactions with coworkers. He enjoys working from home and this has made a big difference the times he is in the office."