Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo, Jac A. Crawford, Judge, Ct. No. F394723
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Lisa J. Brault, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Gregory Gavino entered a plea of guilty to stalking. (Pen. Code, § 646.9, subd. (a).) After serving his sentence, the Board of Prison Terms (BPT) determined that he met the criteria for treatment as a mentally disordered offender (MDO) under section 2962. The BPT recommended that he be confined to Atascadero State Hospital (ASH) as a condition of parole. Appellant filed a petition requesting that the trial court overturn the determination of the BPT. (§ 2966, subd. (a).)
All further statutory references are to the Penal Code.
The trial court found that appellant met the statutory criteria beyond a reasonable doubt, certified him as an MDO and ordered him committed to ASH. Appellant appeals from the judgment. He challenges the sufficiency of the evidence supporting the trial court's findings that 1) he represented a substantial danger of physical harm to others; and 2) he received 90 days or more of treatment within the year prior to his parole or release. We affirm.
FACTS
Standard of Review
The substantial evidence rule applies to appellate review of MDO proceedings. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We review the record in the light most favorable to the judgment to determine whether it discloses "evidence [that] is reasonable, credible, and of solid value" such that a reasonable trier of fact could find beyond a reasonable doubt that appellant met the MDO criteria. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) We may not reweigh the evidence and substitute our judgment for the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) All conflicts must be resolved in favor of the judgment. (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Testimony of Doctor Alarcon
Jan-Marie Alarcon is appellant's treating psychologist at ASH. She testified that appellant suffers from a severe mental disorder, chronic paranoid schizophrenia. His symptoms are visual hallucinations, fixed delusions, psychotic symptoms, including paranoid ideation.
Appellant's commitment offense was the stalking of a woman for a seven-year period. He had seen her acting in a play. After the performance, he asked her for a date and she refused. The victim had no further personal contact with him. Appellant would often send her gifts and appear at her house. He sent her strange items, such as broken toys and dirty dishes. He believed that the victim was his soul mate and they would have six children together.
The victim moved several times, but on each occasion, appellant was able to find her new residence. She said she was terrified of appellant and did not know what he might do. She was afraid to be alone and had asked her boyfriend to move in with her. The victim feared for her safety and for that of her family.
Despite three restraining orders, appellant continued to stalk the victim. At the time of his arrest, he was running away from the victim's house and screaming that her grandfather was trying to kill him. He had in his possession a sketchbook which contained a drawing of her residence. It contained his name written alongside hers, with the notation "in the future 6 kids." He told the arresting officer that the victim was his soul mate, given to him by God.
Appellant was sentenced to prison, execution of his sentence was suspended, and he was placed on five year's probation. He violated probation by failing to consistently take his medications. As a result, he decompensated and began having auditory hallucinations of the victim's voice. His outpatient treating psychologist expressed concern to appellant's probation officer that appellant might "act out" and be a danger to the victim or her family.
Near the time of the BPT hearing, appellant called 911 saying that he was being beaten by another patient, but the assault was not physical, it was in his mind. When a female staff member came to interview him, he said he could not speak to her because "her ovaries were in the way." Appellant was encouraging the African-American patients to date the African-American female staff members "and leave the white female staff members to him."
Dr. Alarcon testified that appellant continues to have the fixed delusional belief that the victim is his soul mate and has similar delusional beliefs concerning other female staff members in the hospital. He has not been compliant with treatment and has not accepted that he has a mental disorder or needs medication. Dr. Alarcon acknowledged that appellant had no history of violence nor was there a record of violence in prison. She indicated, however, that he is involuntarily medicated because his behavior on the unit is considered a danger to others.
Written Reports of Doctors Anderson and Goldberg
Kathryn J. Anderson, is a forensic psychologist at the California Department of Corrections. Two months after appellant was incarcerated, she conducted an evaluation and concluded that he met all six statutory criteria.
Dr. Anderson recounted that appellant was arrested when the police received a radio call from a neighbor that appellant was running and screaming, "[h]e is going to kill me," while being chased by the victim's grandfather. The grandfather told the police that appellant had been stalking his granddaughter. Appellant told the officers that he heard the victim's voice saying that she would kill his children. When the officers informed appellant that the victim did not want to have any contact with him, he responded that she "is my wife, we live together and we are spiritually connected." During the police questioning, appellant constantly yelled and ranted about why the officer was asking so many questions.
Dr. Anderson reported that, after appellant's arrest, he was deemed incompetent and hospitalized at Patton State Hospital. He was transferred to Metropolitan State Hospital and was subsequently found competent to stand trial. After entering a guilty plea, he was sentenced to prison, sentence was suspended and he was placed on probation. He violated probation and was sent to prison. The basis for the revocation was that appellant was not taking his psychotropic medication, had failed to seek and maintain full-time employment or to attend school and failed to complete an approved 52-week stalking program.
Dr. Anderson expressed concern, because, during the course of her interview with appellant, he asked many questions and seemed "overly curious" about her "residency." She was aware of an incident in which appellant contacted a probation officer, told her she was beautiful, and invited her to a potluck party.
Psychologist Harry Goldberg, from the Department of Mental Health, submitted a written evaluation in which he found that appellant did not meet the statutory criteria. He concluded that appellant's offense was a crime of force or violence, and he had received 90 days of treatment. Dr. Goldberg did not believe, however, that appellant represented a substantial danger of physical harm to others because he had never behaved aggressively towards the victim. He had no history of violent conduct, and did not display any violence while in prison.
DISCUSSION
The MDO Act allows the state to civilly commit certain types of prisoners for mental health treatment as a condition of parole. To qualify as an MDO the trial court must find that the prisoner: (1) suffers from a severe mental disorder; (2) used force or violence in committing the underlying offense; (3) his severe mental disorder was a cause or an aggravating factor in the commission of the offense; (4) his disorder is not in remission or capable of being kept in remission without treatment; (5) he was treated for the disorder for at least 90 days prior in the year prior to parole or release; and (6) because of the disorder he represents a substantial danger of physical harm to others. (§ 2962, subds. (a)-(d).) Appellant claims that he does not represent a substantial danger of physical harm because he did not threaten force or violence and did not receive 90 days of treatment within the year prior to his parole or release.
Substantial Danger of Physical Harm/Threats of Force or Violence
The MDO enumerates various qualifying offenses, but stalking is not among them. (§ 2962, subd. (e).) However, the statute contains a "catch-all" provision stating that a qualifying offense may include "[a] crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used. . . . [S]ubstantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury." (§ 2962, subd. (e)(2)(Q).) The statute further states that "'substantial danger of physical harm' does not require proof of a recent overt act." (§ 2962, subd. (f).)
We have previously held a conviction for stalking constitutes a qualifying offense under section (e)(2)(Q). (People v. Butler (1999) 74 Cal.App.4th 557, 561-562.) Appellant attempts to factually distinguish Butler. There, the defendant was arrested and taken into custody after beating his girlfriend. He called her and threatened to kill her and members of her family and said he would burn down her house. After his release, he went to her place of employment on several occasions and threatened her. He was arrested while following her in his car and was subsequently convicted of stalking.
Appellant argues that, unlike the Butler defendant, "[he made] no threats of violence and no attempted or actual assaults that would give rise to a reasonable expectation that force or violence would be used." However, in Butler we indicated that we had not relied on the corporal injury charge and had restricted our analysis to the defendant's actions following his release. (People v. Butler, supra, 74 Cal.App.4th at p. 560, fn. 2.) There, we concluded that the defendant's conduct in following his girlfriend and threatening to kill her and members of her immediate family were threats made in "'such a manner that a reasonable person would believe and expect that force or violence would be used.'" (Id. at pp. 561-562.)
Citing People v. Gibson (1988) 204 Cal.App.3d 1425, appellant contends that he must be presently dangerous to justify his continued involuntary commitment. Gibson is no longer controlling authority. There we held that the MDO statutory scheme was unconstitutional, partly because it did not require proof of present dangerousness. (Id. at p. 1436.) The Legislature responded by amending the law to require proof that the defendant represents a substantial danger of physical harm to others. After the statutory amendment, we decided People v. Robinson (1998) 63 Cal.App.4th 348, 352, abrogating our holding in Gibson.
Appellant claims that the trial court and the Attorney General have viewed his behavior through a subjective lens, rather than applying an objective standard to his behavior. He is incorrect. The court must first look at the effect of appellant's behavior upon the victim, and then determine whether a reasonable person would be affected in the same manner. For seven years appellant has followed a woman he does not know. He has appeared at her house and is able to find her when she has moved. Appellant has repeatedly told her that she is his soul mate and wife. He has drawn a sketch of her home, including a notation that they will have children together.
Appellant does not understand that his attention is unwanted, although the victim has obtained three restraining orders against him. He is undeterred by arrest, jail time, a prison sentence and the prospect of an MDO commitment. He continues to operate under the delusion that his behavior is justified because the victim is his soul mate and has been given to him by God. He believes he is entitled to marry and bear children with the victim. Her consent is not a factor.
The intensity and duration of appellant's irrational behavior represents an implied threat of substantial physical harm. Appellant walked onto the victim's property, sent her letters and gave her gifts that a reasonable person would regard as trash. By his actions, he has "impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used." (§ 2962, subd. (e)(2)(Q), italics added.)
Ninety Days of Treatment
Dr. Alarcon testified that appellant had received 90 days of treatment within the year prior to his parole or release. She specified that he received outpatient treatment from January 10, 2006 to February 27, 2006; treatment at the county jail from February 28, 2006 to June 13, 2006; and treatment in prison from June 19, 2006 to September 8, 2006. Appellant correctly argues that his outpatient therapy cannot be considered in determining whether he has received 90 days of treatment. (People v. Del Valle (2002) 100 Cal.App.4th 88, 93.) However, his argument is irrelevant because he received nearly 6 months of treatment while in county jail and state prison, well in excess of the 90-day requirement.
Appellant contends that he may not have received mental health treatment because there is conflicting evidence concerning whether he was taking medication. It is unclear whether appellant is arguing that he refused his medication or that it was not provided to him. Whichever is the case, there is evidence in the record that appellant was being followed by a mental health team while incarcerated. He received mental health treatment, thus the statutory criterion was met.
The undisputed facts of appellant's offense and the testimony and reports of the mental health professionals provide substantial evidence to support the trial court's finding that he met the MDO criteria.
The judgment (order of commitment) is affirmed.
We concur: GILBERT, P.J., PERREN, J.