Opinion
2d Crim. No. B232605
01-09-2012
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GRISINGER, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F455071)
(San Luis Obispo County)
Daniel Grisinger appeals from an order determining him to be a mentally disordered offender (MDO), and committing him to the Department of Mental Health for treatment. (Pen.Code, § 2962 et seq.) He contends that the evidence is insufficient to support the finding that his severe mental disorder was a cause or an aggravating factor in the commission of the commitment offense. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Appellant has a history of at least 30 years of mental illness. His primary diagnosis is bipolar disorder, manic, severe with psychotic features, but he has also been diagnosed at various times with dysthmia and schizoaffective disorder. His history also includes irritable, aggressive and assaultive behavior associated with his mental illness.
The commitment offense occurred on September 20, 2009, while appellant was housed in an administrative segregation unit. As a correctional officer walked by, appellant assaulted him on the arm with a urine-saturated piece of toilet paper, which he threw through a food tray slot. Officers removed appellant from his cell. He then "threw a jail issue tumbler containing urine soaked toilet paper at an officer [and] the tumbler struck the officer in the leg." According to appellant, he threw a milk carton through his tray slot because the correctional officer "was ignoring us and the water was off."
Appellant was charged with assault by gassing (§ 243.9, subd. (a)) and other crimes. He was found incompetent to stand trial, placed on psychiatric medication, later found competent, tried, and convicted of assault by gassing and other crimes. On June 24, 2008, the court sentenced him to state prison for two years.
On December 2, 2010, the Board of Prison Terms (BPT) certified that appellant met the MDO criteria. He petitioned for a review of the certification pursuant to section 2966. He waived his right to a jury trial.
During the hearing, the trial court considered and admitted reports of four doctors who evaluated appellant: Harry Goldberg, Psychologist, California Department of Mental Health (September 25, 2010 report); Kathi Studden, Forensic Psychologist (September 26, 2010 report); Brandi Mathews, Forensic Psychologist (January 31, 2011 report); and Michael J. Selby, Ph.D. (Board Certified in Forensic Evaluation and Medical/Legal Neuropsychology) (October 15, 2010 report). The doctors concurred that appellant suffered from a severe mental disorder. Drs. Selby and Studden concluded that he met all of the requisite MDO criteria to support the commitment order. Drs. Greenberg and Mathews concluded that there was not sufficient evidence that appellant's severe mental disorder was the cause of, or an aggravating factor in, the assault by gassing.
Dr. Mathews's report explained that appellant told her that the officers had turned off the water in his unit and the officers were ignoring the inmates' request to turn the water on. Appellant stated, "I decided to do something about the officers ignoring us. So I threw the milk carton to get the officer's attention." A relevant excerpt from Dr. Mathews's report follows: "Based on his description it is evident his behavior was goal-directed and purposeful. Based on [appellant's] description of the offense and lack of evidence suggesting he was displaying psychiatric symptoms at the time of the offense, . . . there is insufficient evidence to conclude that [his] severe mental disorder was a causative or aggravating factor in the [commitment] offense." At the hearing, she opined that there was no evidence that appellant was displaying psychotic symptoms at the time of the offense.
The trial court made the following statements regarding the challenged finding: "I have read and considered the [doctors'] reports. [¶] I did listen very carefully to Dr. Mathews' testimony . . . that she could not find . . . enough information by which she could conclude that as to criterion No. 3 [appellant's] severe mental disorder was a cause or aggravating factor. [¶] In reviewing the reports of these doctors I believe that . . . although Dr. Goldberg . . . ma[d]e a finding that [appellant] did not meet . . . criterion No. 3, [Dr. Goldberg] laid out [information] in the history that, . . . gives this court sufficient evidence to find beyond a reasonable doubt that [appellant's] severe mental disorder was a cause or aggravating factor. [¶] I am relying upon information in Dr. Goldberg's report that [appellant] had a history of mental health issues going back to the 1970's; that on August 6, 2009, within two months prior to the [assault by gassing], he had been reported to be talking in a bizarre manner about being a deacon and had claimed that an officer had committed a sexual battery on him; that [a] psychologist recommended he be monitored by mental health treatment staff; that at the time of the commitment offense, according to Dr. Matthews' MDO status report, [appellant] was in, quote, administrative segregation lock down pod, which is reserved for inmates displaying [5150] behavior presumably referring to Welfare and Institutions Code section 5150 in that he represented a danger to himself or others. [¶] More importantly, that on September 23, 2009, a week after the incident occurred, he was evaluated and determined to be incompetent to stand trial, that the same evaluator saw him again on October 7, 2009, after he had been prescribed psychiatric medication and noted that he had significantly improved and that he was judged at that point to be competent [and] responding to the medication. [¶] I am not persuaded by Dr. Mathews' testimony that [appellant's] self report, that the only reason he did this was because he was simply trying to get the attention of the officers, is credible[,] primarily because it appears that all four of the doctors are in agreement that [he] does not recognize that he has a severe mental disorder and, according to Dr. Goldberg, . . . his statements are, quote, often unreliable.
Therefore, based on all the evidence . . . before me, . . . I am persuaded that [appellant's] severe mental disorder . . . was at least an aggravating factor [in the commitment offense], and I'm making that finding beyond a reasonable doubt."
DISCUSSION
"The purpose of the MDO law is to protect the public by identifying those prisoners who would pose a danger to society upon release due to their mental disorder. [Citation.]" (People v. Martin (2005) 127 Cal.App.4th 970, 974.) Six criteria must be met for a prisoner's initial commitment as an MDO. (§ 2962, subds. (a)-(d)(1).) One of those criteria is that the prisoner's severe mental disorder was one of the causes or an aggravating factor in the commission of the crime for which he was sentenced to prison. (Id. at subd. (b).)
"We review the court's finding on an MDO criterion for substantial evidence, drawing all reasonable inferences, and resolving all conflicts, in favor of the judgment. [Citations.]" (People v. Martin, supra, 127 Cal.App.4th at p. 975.) We cannot determine the credibility of witnesses or reweigh the evidence. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082- 1083.)
In challenging the sufficiency of the evidence that his severe mental disorder caused or at least aggravated the commitment offense, appellant stresses Dr. Mathews's conclusion that there was no evidence of his display of psychotic symptoms. Her conclusion, however, is based in large part upon her acceptance of appellant's explanation. For example, her report stated that based on appellant's description, "it is evident his behavior was goal-directed and purposeful," and that based on his "description of the offense and lack of evidence suggesting he was displaying psychiatric symptoms at the time of the offense, . . . there is insufficient evidence to conclude that [his] severe mental disorder was a causative or aggravating factor in the [commitment] offense." Although Dr. Greenberg agreed with Dr. Mathews regarding the cause/aggravating factor criterion, he acknowledged that appellant's statements are often unreliable. Further, two other psychologists who interviewed appellant and reviewed his file and medical history concluded that his severe mental disorder was a cause of or aggravating factor in the assault by gassing.
Relying upon Dr. Mathews's report, appellant argues that his conduct during the assault by gassing was logical and goal-oriented (to get the officers' attention), rather than bizarre or symptomatic of a mental illness. That assertion might be plausible if he had thrown urine just once to get the officers' attention. However, he threw urine a second time, after their attention was directed at him, and after they decided to remove him from his cell. Further, the symptoms of his severe mental disorder have included irritable and aggressive behavior. Substantial evidence supports the finding that appellant's severe mental disorder was a cause of, or an aggravating factor in, the commission of the assault by gassing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
YEGAN, J.
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.