Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 95F04551
BUTZ, J.Defendant Ricky Dwayne Benson appeals the trial court’s order granting a petition to extend his not guilty by reason of insanity commitment to December 22, 2010. (Pen. Code, § 1026.5.) He contends insufficient evidence supports the required finding that he lacks the volitional capacity to control his dangerous behavior. We shall affirm the trial court’s order.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant has a lengthy criminal and mental health history. At seven years of age, defendant was arrested for “fire-setting.” At 13 years of age, defendant was “shooting at people in cars with a BB gun.” At 17 years of age, defendant physically assaulted a counselor while in custody at the California Youth Authority, was tried as an adult, was convicted, and was sentenced to state prison. Released on parole at 21 years of age, defendant absconded. In 1988, defendant shackled a robbery victim to a chair and tortured the victim for two hours, stabbing the victim numerous times and beating the victim with brass knuckles. Defendant was sentenced to state prison for three years. Released on parole, defendant was convicted of felony evading. While in prison, defendant physically assaulted other inmates, resulting in numerous rule violations. In 1993, defendant was convicted of violating section 273.5 and sentenced to state prison for two years. Released on parole, defendant violated parole in 1994.
From May 21, 1995, to May 24, 1995, defendant hit his wife several times, threatened her with a gun, and kept her in the residence by force. A complaint filed May 26, 1995, charged defendant with spousal abuse, felon in possession of a firearm, false imprisonment, and criminal threats, and alleged that defendant personally used a firearm and had served four prior prison terms. Defense counsel declared a doubt as to defendant’s mental competence and criminal proceedings were suspended. Based on doctors’ reports, the court found that defendant was not competent to stand trial. Based on a report from the conditional release program (CONREP), the court committed defendant to Atascadero State Hospital (ASH) in August 1995.
On October 11, 1995, ASH’s medical director certified that defendant was competent. Criminal proceedings were reinstated. Defendant entered pleas of not guilty and not guilty by reason of insanity.
On July 9, 1996, after defendant waived his right to a jury trial, the court found defendant guilty of assault with a firearm, a lesser related offense to the spousal abuse charge with personal use of a firearm, and dismissed the remaining counts on the People’s motion. Based on doctors’ reports, the court found defendant not guilty by reason of insanity.
On August 2, 1996, the court committed defendant to ASH with a maximum term of confinement of seven years with credit for a maximum commitment date of May 20, 2002. On February 26, 1997, defendant was transferred from ASH to Patton State Hospital (Patton).
In December 1997, defendant was convicted of criminal threats to a staff member at Patton. Defendant threatened a female staff member. Defendant was sentenced to state prison for one year four months and was ordered to return to Patton upon completion of the state prison sentence.
In December 2004, defendant was transferred back to ASH for abusive behavior directed towards one of the female staff members at Patton.
Defendant did not contest petitions to extend his commitment to May 20, 2004, and thereafter to May 20, 2006. With respect to the latter proceeding, the court ordered defendant’s release to outpatient status subject to the terms and conditions of CONREP’s plan. On December 8, 2005, the parties stipulated to an order for outpatient treatment.
A petition for issuance of a body attachment filed June 5, 2006, alleged that as of May 19, 2006, defendant had been absent without leave (AWOL) from the outpatient treatment program. Defendant had missed two drug tests and faced the prospect of a third drug test when he went AWOL. CONREP recommended that the court revoke outpatient status and order defendant confined at Napa State Hospital (Napa). The court ordered the issuance of a body attachment and revoked outpatient status.
On July 21, 2006, defendant was arrested for drug possession and placed in custody. On October 17, 2006, defendant pleaded guilty to drug possession and resisting a peace officer.
Defendant did not contest a petition filed October 20, 2006, to extend his commitment to December 22, 2008. The court ordered defendant to serve his prison sentence and then to transfer to Napa.
On May 16, 2007, Napa refused to house defendant based on the security risk he posed. Based on CONREP’s recommendation of June 13, 2007, the court ordered defendant committed to ASH.
On or about July 23, 2008, a petition to extend defendant’s commitment to December 22, 2010, was filed.
At a court trial, Dr. David Fennell, psychiatrist and the chief of forensics at ASH, testified. He evaluated defendant in February 2009. The 44-year-old defendant was asleep when Dr. Fennell arrived to conduct the interview. Defendant received a very high dose of methadone multiple times a day for pain and used a wheelchair to get around the hospital. During the interview, defendant repeatedly stated that he had been treated unfairly, especially by CONREP.
Dr. Fennell reviewed defendant’s records and spoke with defendant’s treating psychiatrist. Dr. Fennell diagnosed defendant as suffering from methamphetamine dependence (Axis I, major psychiatric disorders), antisocial personality disorder (Axis II, personality disorders), allergy to Haldol (antipsychotic medication), hepatitis C, hypertension, and chronic low back pain (Axis III, physical diagnoses).
With respect to defendant’s drug dependence, Dr. Fennell noted that defendant began using methamphetamine on a daily basis beginning at 12 years of age. At ASH, defendant minimized his substance abuse problem. Defendant did not want to participate in treatment. Dr. Fennell stated that this reflected a lack of insight. Defendant claimed that he was a “Satanist” and that “they were pushing God on him in the 12-step program and he resented that.”
Dr. Fennell noted that defendant’s fire-setting was an early sign of an antisocial personality disorder; defendant demonstrated poor impulse control with frequent fighting in school; and he disregarded the rights of others as shown by his shooting a BB gun at people. Dr. Fennell stated that defendant subsequently showed other signs of antisocial personality disorder including “pathological lying, unwillingness to keep commitments, unstable relationships, failure to keep a job, routine disregard of the rights of others, frequent involvement with the criminal justice system as a result of his acts in which he violates the rights of others[, ]... deceitfulness in the fact that he will frequently misrepresent facts[, ] [¶] [and]... the lack of empathy for the victims and the externalization of any responsibility of one’s actions onto others.”
With respect to lack of impulse control, Dr. Fennell stated that defendant’s 1995 offense for which he was committed was not planned—defendant kept his wife confined and beat her for days while he was high on methamphetamine. His recent behavior reflected a continued lack of impulse control. In August 2008, defendant struck another patient, made a “cold threat” towards a staff member, and had been verbally aggressive towards staff. In December 2008, defendant “put his hands around the neck of a peer and threatened to break the peer’s jaw if the peer didn’t pay him money that he was owed.” In the months leading up to trial, defendant had not been as physically violent. Dr. Fennell admitted that there had been occasions when defendant had been assaulted but did not respond. Dr. Fennell noted the reduction in defendant’s physical violence was during the same time period when he had been prescribed the large dose of methadone which sedated him.
Dr. Fennell opined that defendant had “absolutely not one scintilla of insight into his antisocial personality disorder” and that he would be a substantial danger of physical harm to others based on the disorder. Dr. Fennell noted that defendant’s recent behaviors had confirmed the same.
On cross-examination, Dr. Fennell disagreed that defendant had demonstrated good impulse control in 2008 and 2009, and instead claimed it was only fair, meaning defendant had some problems such as the incident in December 2008 when he had threatened the peer because the peer owed defendant money and in August 2008 when defendant had struck a patient. Dr. Fennell opined that defendant had serious difficulty controlling his behavior “[a]t times” such as when he becomes angry due to his antisocial personality disorder. Dr. Fennell based his opinion on defendant’s history of violence and criminal acts. Dr. Fennell noted that defendant had difficulty in the hospital, a highly structured setting, and he would have even more difficulty in a less structured setting where there was no supervision.
Dr. Michael Knapp testified. He is a psychologist at ASH and part of defendant’s treatment team since September 2008. Prior to testifying, Dr. Knapp had not reviewed defendant’s records, which included nurse’s notes about confrontations with staff and peers. He agreed with the diagnosis of antisocial personality disorder and methamphetamine dependence. He agreed that defendant had “very, very poor” insight into his disorder. Dr. Knapp noted that defendant accepted little or no responsibility for his crimes, blaming others or the circumstances. Dr. Knapp testified that defendant participated in “virtually no treatment in the hospital, ” refusing to participate in substance abuse treatment on religious grounds. Dr. Knapp also diagnosed defendant as psychopathic, someone who is narcissistic and quick to anger, demands respect and admiration, tends to act out, and is more of a danger to others.
Dr. Knapp opined that defendant had the ability to control his behavior “when he wants to and sees a purpose in it, ” noting he had been assaulted twice by other patients but had not retaliated and threatened twice but had not responded. If defendant did not see a purpose, Dr. Knapp admitted that defendant does not control his behavior in order to get what he wants. If defendant was faced with something he wanted and it required violating the rules or harming someone else, Dr. Knapp had a “great deal of concern” because of defendant’s psychopathy and how that would affect his ability to control his behavior. Dr. Knapp admitted that his opinion was based primarily upon research showing that “after 40, antisocials slow down and become more like normal people.” Dr. Knapp reiterated that defendant “was perfectly capable of controlling his behavior, ” so under the “standard” defendant did not have a “serious difficulty in controlling his behavior” and that defendant’s criminality was of his own “volitional choosing.” Dr. Knapp believed that defendant weighed the consequences when he was assaulted and, knowing he had a court trial on the extension of his commitment, he controlled his behavior. Dr. Knapp cautioned that defendant’s behavior was different when under the influence of methamphetamine which produced symptoms similar to paranoid schizophrenia but that defendant was capable of and made the choice to use again.
Weighing defendant’s prior history against the one recent incident of physical assault, and defendant’s age of over 40 when “antisocial people sort of mellow[] out, ” Dr. Knapp recommended defendant’s release from custody although he was “somewhat ambivalent.” Dr. Knapp claimed there was little treatment for defendant in the hospital because of defendant’s lack of insight into his disorder.
The trial court extended defendant’s commitment to December 22, 2010, with placement in a secure facility. The court denied defendant’s request for outpatient status.
DISCUSSION
Section 1026.5, subdivision (b)(1) provides that “[a] person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” Section 1026.5 also “require[s] proof that a person under commitment has serious difficulty in controlling dangerous behavior.” (People v. Galindo (2006) 142 Cal.App.4th 531, 533, 536-537 [applying the holding in In re Howard N. (2005) 35 Cal.4th 117, which interpreted Welf. & Inst. Code, § 1800 et seq. as containing the requirement].)
“‘“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[, subdivision] (b)(1) beyond a reasonable doubt. [Citations.]” [Citation.]’ [Citation.] 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.” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.)
Initially, we note that defendant entitles his heading to his sole argument as “Substantial Evidence Is Lacking to Support the Required Finding that [Defendant] Lacks the Volitional Capacity to Control Dangerous Behavior.” He then begins by arguing that the trial court did not “consider and rule” on the requirement or “point to evidence to support it.” To the extent defendant intends to assert as an additional contention that the trial court erred because it did not expressly find that defendant lacked the volitional capacity to control his dangerous behavior, we reject it. Although the trial court stated its ruling in the language of the statute—which does not expressly refer to volitional capacity—the trial court’s written decision clearly stated the requirements, which included the required finding that defendant lacked volitional capacity, and pointed to the evidence.
Although recognizing that there was expert opinion testimony (Dr. Fennell) that defendant had serious difficulty controlling his behavior at times, defendant argues that the expert’s opinion was that defendant had difficulty due to anger and impulsivity, not lack of volitional capacity. Further, defendant claims Dr. Fennell’s opinion was based on one incident which was unsubstantiated, that is, the December 2008 incident. Defendant argues that Dr. Fennell’s opinion does not constitute substantial evidence because the facts upon which his opinion was based were not substantiated.
At the court trial, defense counsel objected to Dr. Fennell’s reference to the December 2008 incident, complaining that he had received hospital records up to November 2008 and had been waiting for the chart notes subsequent to that time. The prosecutor responded that, at the beginning of trial, defense counsel indicated he was ready and did not state he needed more records, noting that discovery included reports with the factual summaries of the incidents. The prosecutor suggested that “we document the file before we actually ask the Court for a finding” so anything defense counsel wanted would be in the record. At the end of testimony, the prosecutor stated that he would file an additional exhibit, a disc with defendant’s charts, to which defense counsel agreed. The court issued a tentative ruling that included a finding of fact concerning the December 2008 incident: “[D]efendant victimized a lower functioning peer to pay the defendant’s debts.” The final ruling included the same finding of fact. Defendant has failed to establish that Dr. Fennell’s citation of the incident in December 2008 was false or nonexistent.
Defendant has failed to demonstrate that the trial court’s finding is not supported by the record. The disc containing ASH records is part of the record on appeal to which he fails to cite. His argument with respect to the December 2008 incident is thus forfeited. (Cal. Rules of Court, rules 8.204(a)(1)(B) & (C), 8.360(a).)
Dr. Fennell’s opinion was that defendant’s antisocial personality disorder and emotion of anger affected defendant’s volitional capacity; that is, his ability to control his impulses and the recent reduction in defendant’s physical violence were due to his sedation with large doses of methadone. Although defendant was able at times to control his dangerous behavior even while sedated, he still had difficulty in a highly structured environment as evidenced by the August 2008 incident (defendant struck another patient), the December 2008 incident, the “cold” threats, and verbal aggressiveness towards staff. As Dr. Fennell stated, defendant would have even more difficulty without supervision in a less structured environment, as demonstrated by defendant’s failure on outpatient release.
“One 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.” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.) Dr. Fennell testified that defendant posed a substantial danger of physical harm to others and opined that defendant had serious difficulty controlling his dangerous behavior at times. Dr. Fennell reviewed defendant’s records and was familiar with defendant’s mental and criminal history as well as his current behavior. Substantial evidence supports the court’s order extending defendant’s commitment.
DISPOSITION
The order is affirmed.
We concur: RAYE, P. J., NICHOLSON, J.