Opinion
B299416
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. VIOLA BOWSER, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. ZM047342 APPEAL from an order of the Superior Court of Los Angeles County, James Bianco, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
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Viola Bowser appeals from a trial court order finding her a developmentally disabled person dangerous to herself or others, and committing her for one year under Welfare and Institutions Code section 6500 (section 6500). We affirm.
BACKGROUND
On October 19, 2018, the South Central Los Angeles Regional Center requested a petition for the commitment of Bowser, a client of the regional center diagnosed with mild intellectual disability. Bowser was living in an apartment under court order, and receiving supported living services through regional center vendor We Are Family, after she was charged with battery under Penal Code section 242 and was found incompetent to stand trial. On October 23, 2018, the Los Angeles County District Attorney filed a petition to commit Bowser as a developmentally disabled person under section 6500, alleging she was dangerous to herself or to others, and there was no suitable alternative to judicial commitment. Bowser denied the petition, and the trial court appointed counsel.
At a hearing on December 11, 2018, the court appointed psychiatrist Dr. Kory Knapke as an expert to evaluate Bowser and submit a report. Dr. Knapke interviewed Bowser, and filed a 10-page report on May 23, 2019.
At a court trial on June 25, 2019, Nowana Buchanan, an administrator with We Are Family, testified Bowser was now living in a hotel, but the agency had an apartment in place for her. Buchanan had worked with Bowser since August 2018, talking to her daily or every other day, and helping with money management and transportation. Bowser had "highs and lows," and generally was "nice [and] kind." But when she had a bad day or had difficulties, she became anxious and impatient, and might get loud. Bowser would get upset but would not get out of control, and she eventually could be talked out of it. Bowser no longer took her prescription medication because she was pregnant. Buchanan got along with Bowser, understood her disability, and wanted to help her be able to make good choices.
The parties stipulated to Dr. Knapke's expertise. He testified he had reviewed documents submitted to him by the regional center, including internal memoranda and the police reports of the February 2018 battery charged against Bowser, in preparing his section 6500 evaluation. He also interviewed Buchanan and the regional center case manager.
Bowser was calm and cooperative when Dr. Knapke interviewed her on April 24, 2019. Dr. Knapke's opinion was that Bowser was "a very low functioning individual," much lower functioning than many other individuals he had evaluated under section 6500. Bowser told him she had been committed to Patton State Hospital, but her documentation did not support that claim. She was unable to provide much of a history of herself, answer very simple questions, or spell simple words. "It was very clear to me that she is someone . . . that is intellectually disabled." Bowser had been taking Trileptal, a mood stabilizer that helped a great deal with her behavior, but the drug was dangerous for a pregnant woman. Bowser was "such a poor historian" that she could not discuss her previous battery and claimed it had been against a woman, although the alleged victim was a male security guard at the regional center. She also claimed to have been in a drive-by shooting.
Bowser looked forward to having her own apartment, becoming more independent, perhaps marrying her current boyfriend, and getting custody of her children (although she was aware they had been adopted). Dr. Knapke believed Bowser's current placement was appropriate, and Buchanan had a good therapeutic rapport with her. But his review of records from the regional center, and his conversations with the regional center case manager, raised concerns that Bowser was a danger to others. He thought her behavior was improving and she was containing herself more, but it would be best to continue the section 6500 commitment for a year "because I do believe that she is very volatile, and I do believe that she presents a risk to the community." Dr. Knapke was also concerned that Bowser had stopped taking Trileptal, and that could increase her volatile behavior.
Dr. Knapke believed Bowser's developmental disability was a substantial factor in her dangerousness, as she had a history of impulsivity. During the interview she told him she had been arrested and incarcerated for batteries. Bowser had episodes, which included becoming extremely agitated when she had to wait for the doctor at the Social Security Administration office. Security had to be called. "[T]hat type of impulsive behavior has been repeated over and over again." Although he believed she was improving, he was concerned about her ability to control her anger appropriately.
Bowser then testified that her placement helped her not with her temper, but with her mood. She needed more money and wanted her freedom. She had been bipolar since the age of 14, and "I know I have a real bad temper. I know that. But I'm—I am trying to cope with stuff that it don't have nothing to do with me." She would accept housing and assistance from the regional center and We Are Family, but resented that now they could cash her checks and "I'm not going to be quiet with that situation."
Asked whether she could control her dangerous behavior, Bowser denied having a temper, but said anyone would get angry if they were not allowed to cash their own checks, and she believed "[t]hey've been cashing it with forged [sic]." She had asked in a nice way for her checks, but then had to "get really upset. I'm really upset when it comes down to my money and my kids and my fiancé and my money. You will get hurt. You know you taking my money and cashing my money," and it made her mad every month. She was bipolar, but she had people who loved her and didn't fight anymore. "I'm growing up. No, I'm not going to hit you. I'm just going to call the police. That's the best thing to do."
On cross-examination, Bowser said the regional center was "bullying me with gloves on" and she did not want to spend another six months in a program. "Anybody can live in a society with bipolar and they do not have to take medicine." After she had her baby, she wanted to get rid of Buchanan's agency We Are Family, because "[t]here's a lot of stress dealing with these people."
The district attorney argued Bowser was doing well but needed services and redirection to keep her mood stable. Bowser was a danger to others. She wanted to get rid of all her services after she gave birth, and then she would be unable to stabilize her mood. Bowser had impulse control issues, especially around her checks. The battery charge against her related to her emotional outburst when she could not get that check.
Bowser's attorney argued that regional center services would always be available to Bowser if she sought them out. "Also I don't think that there's been proof of actual dangerousness. Dr. Knapke's opinion and its basis related to this one battery that brought her into the system back in March of last year," which Bowser claimed was self-defense. Bowser was verbally loud and aggressive, which did not rise to the level of dangerousness.
The district attorney argued in rebuttal that Bowser had stopped taking the medication that had been helping her, and Dr. Knapke had reviewed all the records and concluded that he believed Bowser would be dangerous.
The court complimented Bowser on working hard and making progress, and commended Buchanan for her compassion and her part in Bowser's improvement. But the court believed that without a court order, given her impulsive tendencies, Bowser would not continue to engage in services. "I think without the services that she's currently getting she is a danger to herself and a danger to others. So I do believe the People have met their burden." Based on the evidence, the court found Bowser was a developmentally disabled person who was a danger to herself and others and there was no alternative to judicial commitment. The court committed Bowser to the State Department of Developmental Services for one year, until June 25, 2020. The court continued Bowser's current placement through the regional center as the most appropriate and least restrictive.
Bowser filed this timely appeal.
DISCUSSION
Section 6500, subdivision (b)(1), states: "A person with a developmental disability may be committed to the State Department of Developmental Services for residential placement other than in a state developmental center or state-operated community facility . . . if the person is found to be a danger to self or others." Such an order of commitment expires automatically after one year. (§ 6500, subd. (b)(1)(A).) "If the person with a developmental disability is in the care or treatment of a . . . developmental center . . . at the time a petition for commitment is filed pursuant to this article, proof of a recent overt act while in the care and treatment of [the] developmental center . . . is not required in order to find that the person is a danger to self or others." (§ 6500, subd. (b)(3).)
The prosecution had the burden to prove beyond a reasonable doubt that Bowser was developmentally disabled and a danger to herself or to others, and that her developmental disability was a substantial factor in causing her serious difficulty controlling her dangerous behavior. (In re O.P. (2012) 207 Cal.App.4th 924, 928.) The evidence must show proof of current dangerousness linked to the defendant's developmental disability. (Id. at p. 932.) "[T]he 'danger' referenced in section 6500 must involve conduct that presents the likelihood of serious physical injury." (People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1153-1154.)
To evaluate Bowser's argument that none of these elements was supported by sufficient evidence, we review the entire record in the light most favorable to respondent, and we presume in support of the order of commitment the existence of every fact the court could deduce from the evidence, which must be reasonable, credible, and of solid value. (People v. Cuevas (2013) 213 Cal.App.4th 94, 106-107.)
First, substantial evidence supports the conclusion that Bowser had a developmental disability, which includes intellectual disability. (Welf. & Inst. Code, § 4512, subd. (a).) Dr. Knapke's expert testimony that Bowser was intellectually disabled and low functioning, supported by his review of Bowser's records and his description of the interview and his observations, was substantial evidence to support the court's conclusion that Bowser was an intellectually disabled person. Expert testimony on a person's mental functioning can serve as substantial evidence that the person is intellectually disabled, and a single mental health expert opinion constitutes substantial evidence. (People v. Ary (2004) 118 Cal.App.4th 1016, 1022; People v. Bowers (2006) 145 Cal.App.4th 870, 879.) This is not a case in which the expert opinion was based on a guess or conjecture. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.)
Second, substantial evidence supports the conclusion that Bowser was a danger to herself and others. Dr. Knapke testified that Bowser's history showed her intellectual disability made her very volatile and impulsive. She had been recently charged with battery. She told Dr. Knapke she had been arrested and incarcerated for other batteries. Security had to be called when she became very agitated while waiting for a doctor's appointment, a type of behavior that she repeated again and again. Despite her improvement, Dr. Knapke was concerned that she could not control her anger. Viewing this evidence in the light most favorable to respondent, the court could reasonably conclude that Bowser's impulsiveness, volatility, and multiple batteries presented the potential for serious physical injury.
Third, substantial evidence supports the conclusion that Bowser's intellectual disability was a substantial factor in causing her difficulty controlling her potential for dangerous behavior. Dr. Knapke testified that Bowser's intellectual disability made her impulsive and led her to repeated acting out, including the recent battery charge that prompted the regional center to request the commitment petition.
Bowser's underlying argument is that Dr. Knapke's expert opinion could not serve as substantial evidence to support the commitment order, because the records he testified he reviewed, and his lengthy report, were not themselves formally admitted into evidence, the facts in those records were hearsay, and his testimony therefore had no value. While hearsay is generally inadmissible unless covered by an exception, "an expert witness may offer opinions based on any matter, including special knowledge, skill, experience, training, and education, 'whether or not admissible, that is of a type that reasonably may be relied upon' by experts in the field." (People v. Yates (2018) 25 Cal.App.5th 474, 482.) Nevertheless, the expert may not testify to the content of documents never admitted into evidence, never shown to meet the requirements to qualify for an exception to the hearsay rule, or independently established by competent evidence. (Id. at p. 485.)
Here, the court repeatedly cautioned Dr. Knapke not to testify to case-specific facts contained in Bowser's records, citing People v. Sanchez (2016) 63 Cal.4th 665. Bowser does not identify any case-specific hearsay evidence considered or allowed into evidence by the court. And in any event, "[a]n expert may rely upon hearsay and other inadmissible matter in forming an opinion," as long as the hearsay relied upon " 'provide[s] a reasonable basis for the particular opinion offered.' " (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.)
Finally, Bowser argues that the court erred when it mentioned she had " 'walked away' " from services, requiring the issuance of a bench warrant, without taking judicial notice of the warrant and its recall when Bowser eventually returned. Bowser's counsel made no objection at trial, forfeiting this argument. (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512, fn. 4.) In any event, the trial court could properly take judicial notice of the records of any court of this state. (Evid. Code, § 452, subd. (d).)
Substantial evidence supported the order of the trial court.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
DHANIDINA, J.