Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 96CR29406
NICHOLSON, J.
In February 2004, a petition was filed seeking to extend defendant Abraham Galindo’s commitment under Penal Code section 1026.5. The petition alleged that defendant had been committed under the provisions of section 1026 for the felony of possession of a firearm by a convicted felon (§ 12021, subd. (a)), with a strike allegation (§ 667, subds. (d), (e)) and a prior prison term allegation (§ 667.5, subd. (b)). The petition alleged that defendant’s commitment, which was scheduled to end on August 31, 2004, should be extended to August 31, 2006.
Undesignated statutory references are to the Penal Code.
Section 1026, subdivision (a), provides in relevant part: “If the verdict or finding be that the defendant was insane at the time the offense was committed, the court . . . shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered . . . .”
Jury trial was waived and a court trial was held in February 2005. Defendant’s commitment was extended to August 31, 2006.
In a prior appeal to this court defendant contended, and the Attorney General conceded, that following the then-recent case of In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), section 1026.5, subdivision (b)(1), must be interpreted as requiring proof that a person under commitment has serious difficulty in controlling dangerous behavior. (People v. Galindo (2006) 142 Cal.App.4th 531, 536-540 (Galindo). Concluding that omission of the serious difficulty issue was not harmless beyond a reasonable doubt, we reversed and remanded for further proceedings. (Id. at pp. 538-540.)
Pursuant to the remand, a second court trial on the February 2004 petition was held on September 20, 2006. The court found sufficient evidence to sustain the petition and extended defendant’s commitment until August 31, 2006.
Meanwhile in March 2006, a petition was filed to extend defendant’s commitment to August 31, 2008. Following the court trial, a jury trial on the March 2006 petition was held on September 25, 2006. The jury found that defendant suffers from a mental disease, defect, or disorder that makes it seriously difficult for him to control his dangerous behavior, and, as a result of his mental disease, defect, or disorder, he poses a substantial danger of physical harm to others. The trial court extended defendant’s state hospital commitment to August 31, 2008.
On appeal, defendant contends the evidence at both trials was insufficient to support the finding of serious difficulty in controlling dangerous behavior. We affirm the judgment.
FACTS
2004 Petition: Prosecution Case
Scott Sutherland, M.D., a psychiatrist who works at Napa State Hospital (NSH), testified that defendant was on his caseload for the first time in mid-2002. He opined that defendant suffered from multiple mental disorders: bipolar disorder, with the last episode being manic; antisocial personality disorder; substance abuse; and psychopathy. The psychopathy diagnosis was “very durable” and “lifelong.” Defendant, however, did not accept that he had these disorders. It is, however, a “well-known” symptom of bipolar illness that a person denies he has a mental disorder at all.
Dr. Sutherland also testified that defendant posed a substantial danger of physical harm to others if released. In addition, he opined that defendant’s mental disorders made it seriously difficult for him to control his dangerous behavior. He explained that, if defendant “could substantially control some of these behaviors, he would have been able to follow the very carefully crafted and well set out and very clear steps that he needs to do to leave the hospital. And he and I have had this discussion before. And if he could -- if he could follow those steps and get himself out of the hospital, then I guess that would show me that he was in control of his behavior, but I haven’t seen him able to do that.”
Genevieve Monks, Ph.D., a psychologist who began working with defendant in June 2004, testified that he had been diagnosed with multiple mental diseases or disorders: bipolar disorder, with a most recent manic episode; antisocial personality disorder; and polysubstance dependence. Dr. Monks testified that on the “Hare Psychopathy Checklist,” which has a maximum score of 40, defendant had scored 31, indicating he had serious psychopathy. She described psychopathy as “a pervasive antisocial impulsive lifestyle,” which is “entrenched” and is “not something that someone can -- can control.”
Dr. Monks testified that defendant’s mental disorders make it seriously difficult for him to control his dangerous behavior. Defendant has no insight into his behavior, and he blames his victims for his conduct. He has also denied ever having a problem with substance abuse despite his record of “DUI” arrests and his having admitted to personnel at Atascadero State Hospital (ASH) that he had a substance abuse problem. Additionally, defendant has stated that he does not need medication and would stop taking it if he were released from the hospital.
Defense
Defendant testified that he was 58 years old and has been in NSH for seven years. Prior to NSH, he had been at ASH and Patton State Hospital. He testified that he could control his behaviors, as he had done for the 10 years he has been hospitalized. He conceded that he suffered from depression, but he did not agree with the other diagnoses the mental health experts had given him. He claimed he had never been charged with beating up his wife. Instead, “[t]hey beat me up.”
When asked about the doctors’ testimony that he had bipolar disorder, defendant responded, “I think they do.” He characterized “CONREP” as being for “the birds” because the program recommitted clients for “little” mistakes. He blamed “a girl” for causing him to lose his house and to sell marijuana.
“CONREP” is the Forensic Conditional Release Program, part of the Department of Mental Health’s statewide system of community-based services for specified forensic patients. (Galindo, supra, 142 Cal.App.4th at p. 534, fn. 2.)
Defendant’s sister testified that if he were released he could live with her or her daughter. She was educated through the eleventh grade and had no medical training.
2006 Petition: Prosecution Case
Sunil Kishan, M.D., a staff psychiatrist at NSH, testified that defendant had multiple mental diseases and disorders: bipolar disorder, with the most recent episode being mania; polysubstance abuse; and antisocial personality disorder.
Dr. Kishan explained that bipolar disorder is a chronic, possibly lifelong condition. During a manic episode, it is impossible for a person to control his or her actions and behaviors; thus, the person could be dangerous to other people.
Dr. Kishan testified that antisocial personality disorder involved “deceitfulness in the form of conning for personal gain or pleasure,” “constant lying,” impulsivity,” “lack of remorse,” and “a sense of entitlement.”
Dr. Kishan testified that defendant had been taking lithium, which was controlling his bipolar disorder; however, when he requested and received a lower dosage, he became moody and angry and suffered a one-day suspension from his job at the hospital.
Dr. Kishan opined that defendant had difficulty acknowledging his mental illness, his history of illegal substance abuse, and his past criminal behaviors. Defendant believed he would be fine without any medication.
Dr. Monks testified that she met defendant when she began working at NSH in June 2004. She testified that he has bipolar disorder, most recent episode manic; polysubstance dependence with institutional remission; and antisocial personality disorder. In addition, defendant has psychopathy, a disorder in which the person has no connection to others and no anxiety. Because of the lack of anxiety, the person “will do criminal behavior and not have any fear of getting caught.”
Dr. Monks testified that defendant had a score of 31 (out of a possible 40) on the Hare Psychopathy Checklist, which places him in the range of psychopathy. Defendant’s score indicated that he was more dangerous than 92 out of every 100 prison inmates.
Dr. Monks explained that a personality disorder is longstanding and pervasive, negatively affecting many different areas of a person’s life. Defendant’s combination of mental diseases or disorders makes it seriously difficult for him to control his dangerous behavior.
Dr. Monks testified that she assessed defendant using another violence risk assessment instrument, the “HCR20.” The instrument identified high risk factors including lack of insight, negative attitudes, and unresponsiveness to treatment. In his favor, defendant did not show active symptoms of psychosis. However, he still showed signs of impulsivity. Moreover, his ability to think ahead and plan for the future was poor. For instance, he planned to leave the hospital and open a business with his son; yet, he could not read or write. Further, he had rebuffed release to CONREP, which provided transitional supervision and groups for clients discharged from commitment. Without participating in CONREP, defendant would be exposed to “destabilizers” such as unlawful drugs, financial stress, and antisocial fears.
Dr. Monks opined that defendant’s family may “provide emotional support, but they would not be able to provide the -- the structure, the limit setting, the supervision that he would need considering his past behaviors, his psychopathy, his antisocial personality disorder, his substance, [sic] his longstanding substance abuse problems. They would not be able to provide the support for him. They could, you know -- they could provide emotional support.”
Dr. Monks confirmed that defendant had stated that if released from the hospital he would not take his medication: “[t]hat’s been put in his chart numerous times that staff have heard him say that.” Further, defendant denied that he was mentally ill or had substance abuse problems. He also denied that he had engaged in sexually inappropriate behavior, blaming his victims instead.
Defense
Defendant testified that if he were released he would continue taking his prescribed medication. Upon release, he would go to Mendocino County and stay with family. He denied that he had bipolar disorder with the most recent episode being manic. He also denied that he had polysubstance dependence and claimed that he had only depression. He disputed having been convicted of rape, despite legal documentation to the contrary. He reiterated that CONREP was “a revolving door, understand? [¶] . . . [¶] When you’re ready to finish CONREP, they send you right back just for any little thing.”
Defendant’s sister testified that if he were released he would live with her or her daughter. She claimed she had a “safety net” of people who would help her care for defendant. She had no training or experience in the mental health field.
DISCUSSION
Defendant contends there was “no substantial evidence to support” a finding of serious difficulty controlling dangerous behavior “for either the 2004 or 2006 petitions [sic].” We are not persuaded.
We begin with our standard of appellate review. “‘“Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ [or, as here, has serious difficulty controlling dangerous behavior] 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.] A single psychiatric opinion that an individual [has serious difficulty controlling dangerous behavior] constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879 (Bowers); accord, People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.)
Before turning to the evidence presented at the respective hearings, we note that both parties have overlooked the procedural posture of our Galindo opinion. In Galindo, “neither the parties, nor the witnesses, nor the court had the opportunity to consider the control issue.” (Galindo, supra, 142 Cal.App.4th at p. 539.) Thus, the trial court never received the “‘“assistance of expert testimony”’” on that newly identified issue. (Bowers, supra, 145 Cal.App.4th at p. 878.) After acknowledging this dearth of expert evidence, Galindo considered whether the record nevertheless contained an alternate form of proof, i.e., evidence that defendant had “tried to control his behavior” but had “encountered serious difficulty when trying to do so.” (Galindo, supra, 142 Cal.App.4th at p. 539, original italics.) We analyzed that evidence for the purpose of determining whether the lack of expert testimony on the control issue was harmless beyond a reasonable doubt. (Id. at p. 538.) Concluding that the alternate form of proof was itself insufficient, we held that omission of the control issue was not harmless. (Ibid.)
Galindo did not hold or imply that expert testimony, if presented, would be insufficient by itself to prove the control issue. Nor did Galindo suggest that proof of the defendant’s efforts to control his dangerous behavior must be adduced in every case. Thus, contrary to defendant’s argument, Galindo neither stated nor implied that the People were “required to present” evidence of his efforts on remand.
For these same reasons, we reject the Attorney General’s request that we “revisit” and “denounce” any requirement that evidence of efforts to control dangerous behavior must be adduced in every case. When Galindo is read in its procedural context, it becomes obvious that no such requirement was created, and that the control issue may be proved exclusively by expert evidence.
Retrial of 2004 Petition
Thus was the issue proved at the retrial of the 2004 petition. At the retrial, Dr. Monks described defendant’s mental disorders and testified specifically that they “make it seriously difficult for [defendant] to control his dangerous behavior.” Monks based her opinion on several factors: (1) defendant lacked insight into his behavior, (2) he blames his victims rather than taking responsibility for his actions, (3) his lack of involvement in his group therapy made his mere participation in the groups “meaningless;” (4) he had denied having a substance abuse problem, and (5) he had not been able to accept or address the nature of his mental illness.
Dr. Monks also explained that psychopathy, which is one of the best predictors of future violence, is “entrenched” and serves as a “pervasive way of interacting with others.” She opined that psychopathy is difficult to treat, and that defendant cannot change. Specifically, he cannot change behaviors such as impulsivity, failure to take responsibility, lack of insight, pathological lying, and criminal versatility.
Dr. Monks further opined that defendant has had antisocial personality disorder since at least age 18. He is not capable of controlling the disorder; the lack of control leads to dangerous behavior.
Defendant claims “the evidence must establish that he is unable to control the specific dangerous behavior (not the personality disorder generally).” (Original italics.) But because antisocial personality disorder leads to dangerous behavior, the trial court could deduce that substantial difficulty controlling the disorder causes in turn substantial difficulty controlling specific dangerous behavior.
Dr. Sutherland testified that he had known of some people with high psychopathy scores who managed to modify their behavior to the point where they posed “less” risk than other people. But defendant was not one of them.
Dr. Sutherland testified that defendant had been informed repeatedly of several prerequisites to his being released from the hospital: acceptance of his mental illness, working with the treatment team in a meaningful way, and acceptance of CONREP supervision. These were the means by which defendant could “modif[y]” or control his dangerous behavior. The fact he had not done so during 10 years of hospitalization demonstrated to Dr. Sutherland that it is seriously difficult for defendant to control his dangerous behavior. Defendant’s argument that Dr. Sutherland’s testimony “does not address or satisfy the correct standard” has no merit.
Thus, unlike at the original trial, at the retrial both experts testified that defendant has serious difficulty controlling his dangerous behavior. Either expert’s testimony alone would have been sufficient to support the extended commitment. (Bowers, supra, 145 Cal.App.4th at pp. 878-879.)
Defendant counters that he succeeded in controlling his dangerous behavior while in the hospital; thus it cannot be said that he is “unable” to control his behavior. But the issue posed by the recommitment petition is whether he would have such difficulty if released. Dr. Monks acknowledged that some people are able to function in the highly structured environment of a state hospital but are unable to function outside that environment. The trial court could deduce that defendant would have serious difficulty controlling his dangerous behavior if released, regardless of his success controlling his behavior in the hospital. The fact the evidence could also be reconciled with a contrary conclusion does not require reversal of the judgment. (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
2006 Petition
At the jury trial on the 2006 petition, Dr. Monks opined that defendant’s mental diseases, defects, and disorders, which were lifelong, made it seriously difficult for him to control his dangerous behavior. She explained that defendant could not control his antisocial personality disorder or his psychopathy. Medication treated only his bipolar disorder, not his antisocial personality disorder or his psychopathy.
Dr. Kishan explained that bipolar disorder is a chronic, possibly lifelong condition. During a manic episode, it is impossible for a person to control his or her actions and behaviors; thus, the person could be dangerous to other people. Dr. Kishan testified that defendant had been taking lithium, which was controlling his bipolar disorder; however, when he requested and received a lower dosage, he became moody and angry and suffered a one-day suspension from his job at the hospital. Dr. Kishan opined that defendant had difficulty acknowledging his mental illness, his history of illegal substance abuse, and his past criminal behaviors. Defendant believed he would be fine without any medication.
From this evidence, the jury could deduce that, if released from the hospital, defendant would cease taking the medication that controls his bipolar disorder and thus would become dangerous to other people. Defendant’s faulty understanding of his mental illness, which gives him no incentive to follow his treatment plan, makes it seriously difficult for him to control his dangerous behavior.
Thus, the testimony of both experts supported a finding that defendant has “serious difficulty in controlling dangerous behavior.” (Galindo, supra, 142 Cal.App.4th at p. 537.) Unlike the evidence at the 2005 court trial, the evidence at the jury trial on the 2006 petition adequately addressed the control issue as required by Howard N., supra, 35 Cal.4th 117. Defendant’s argument that the judgment must be reversed because the evidence was “essentially the same” as it was in the 2005 trial has no merit.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.