Opinion
E074615
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY HOWARD, Defendant and Appellant.
Kimberly Howard, in pro. per.; and Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FELJS19000218) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Dismissed. Kimberly Howard, in pro. per.; and Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 24, 2019, defendant and appellant Kimberly Howard filed a petition challenging the special condition of parole requiring her to accept treatment from the Department of State Hospitals (DSH) under Penal Code section 2962.
All further statutory references are to the Penal Code unless otherwise indicated.
On December 19, 2019, defendant waived her right to a jury trial. On January 22, 2020 the court returned its decision and found that defendant met the criteria of a mentally disordered offender (MDO).
On January 29, 2020, defendant fled a timely notice of appeal.
B. FACTUAL HISTORY
On July 22, 2019, the board of prison terms found that defendant met the criteria to qualify as an MDO under section 2962.
1. DEFENDANT'S QUALIFYING OFFENSE
On October 16, 2018, pursuant to a plea agreement, defendant was convicted of stalking under section 646.9, subdivision (b).
According to a Santa Barbara probation report, the victim filed a complaint on August 27, 2013, October 14, 2015, and April 13, 2016, that defendant was stalking the victim via telephone calls and text messages. These contacts violated a previously served civil restraining order that prohibited defendant from contacting both the victim and her husband. On April 14, 2016, the victim contacted the sheriff's department again and claimed that defendant had left a voice mail where she threatened to kill the victim. On August 15, 2016, defendant was arrested in Orange County. Defendant was transported and booked into the Santa Barbara County jail on August 18, 2017.
According to one of the mental health reports, defendant was upset at the victim's husband because his body language was "sexual towards me" and when asked about him his body language, "she had a 'physiological response to him.' " Defendant reported "screaming at the [victim] because her husband was 'pervert.'" Defendant denied threatening the victim.
Defendant stated that she met the victim's husband while attending Santa Barbara City College as a student. "She felt like [the victim's husband's] behavior was not conducive to [him] being a teacher and felt 'targeted' by him. She further indicated she had no romantic feelings toward him, however, claimed he would make sexual comments to her and believed his comments triggered her Post Traumatic Stress Disorder (PTSD) from being sexually abused as a child." Defendant acknowledged that her actions were not productive, were fueled by trauma, and disturbed the victims. Defendant, however, stated that she believed the victim's husband to be "guilty" of wrongdoing.
2. DEFENDANT'S MENTAL DISORDER
The record contains two evaluations of defendant. Dr. Kathleen Dumain diagnosed defendant with delusional disorder; major depressive disorder, recurrent, severe, without psychotic features; obsessive compulsive disorder; alcohol use disorder, moderate, in a controlled environment; and antisocial traits. Dr. Michelle Vorwerk diagnosed defendant with "a severe mental disorder that is marked by symptoms of mood swings, impulsivity, delusions, obsessive thoughts, anxiety, depression, paranoia, and self-injurious behaviors." Dr. Vorwerk characterized defendant as likely suffering from delusional disorder persecutory type, a mood disorder, and probably PTSD as well. The diagnosis was based on symptoms displayed by defendant during the previous six months. The symptoms included disturbed sleep, anxious mood, irritability, agitation, paranoia, delusions, combativeness, hostility, obsessive and compulsive behaviors, depression, self-injury, and moodiness.
3. CAUSE OR AGGRAVATING FACTOR
During the interview with Dr. Dumain, defendant acknowledged that at the time of her offense she was agitated, anxious and unable to calm down. She was also having anger outbursts. When the doctor asked if her beliefs about the victim's husband could have been delusionary, defendant said she did not think so because "my body had warnings about him before I met him. I looked at the man's name and something told me he was wonderful. Something said to me to watch out." Dr. Dumain, therefore, concluded that defendant's disorder was at least an aggravating factor in her offense.
Dr. Vorwerk believed that defendant's history of mental illness predated the crime and her delusional disorder may have developed out of the sexual abuse and trauma that defendant experienced from her father during her childhood. The delusions held by defendant about the victim's husband's inappropriateness were similar to what defendant described from her father as a child. Defendant attributed her response to the victim's husband by stating, "I have pre-thoughts before this and knew it would happen. My body was having premonitions about him." In addition, because defendant continued to contact the victim and the victim's husband even with the restraining order suggested that defendant's mental disorder was at least an aggravating factor in the crime.
4. REMISSION
Dr. Dumain opined that defendant was not in remission and could not be kept in remission without treatment. The doctor noted that defendant had displayed a number of symptoms during the previous six months. Moreover, during the past year, defendant had been threatening to others even when she was compliant with treatment.
Dr. Vorwerk also opined that defendant was not in remission. Dr. Vorwerk, however, concluded that "there is no evidence it cannot be kept in remission without treatment."
5. DAYS OF TREATMENT
Both Dr. Dumain and Dr. Vorwerk stated that defendant entered the mental health program at the prison on October 29, 2018, and remained in the program in May and June of 2019. Therefore, defendant received more than 90 days of treatment.
6. SUBSTANTIAL DANGER OF PHYSICAL HARM
Dr. Dumain opined that defendant represented a substantial danger of physical harm to others as a result of her severe mental disorder. Defendant's thought and mood disturbances continued throughout her incarceration and were not yet in remission. Even though defendant did not harm anyone in prison, she continued to exhibit threatening and hostile behavior. Moreover, she had two recent admissions into the mental health treatment program based upon being a danger to herself and others. Furthermore, defendant did not understand her symptoms or her offenses and showed no remorse for the victim and the victim's husband. Defendant still believed her interpretation of the events to be true. The doctor believed that defendant still presented a danger of harm to others. Based upon defendant's history and behaviors, Dr. Vorwerk also conclude that defendant still presented a danger of physical harm to others.
7. DEFENDANT'S TESTIOMONY
Defendant testified that she was housed at Patton State Hospital but was in prison for five months prior to that. During her time in prison, she received mental health treatment and was voluntarily taking medication. Moreover, she was evaluated by Dr. Dumain and Dr. Vorwerk in prison. Defendant believed that both interviews went well and she did not experience any psychosis during the interview.
Defendant acknowledged that when she was in prison, she had an anxiety attack when her roommate was being moved. Defendant was comfortable with her roommate and was worried about who would be assigned as her roommate. Defendant screamed but was not screaming threats. She simply shouted that she was not a criminal. She did not hear voices or see hallucinations.
Defendant admitted that one time in prison, she hit herself on the head. She was worried about being transferred out of the receiving unit into a different yard because this was her first time in prison.
Defendant testified that if she were released, she did not have plans to contact the victims. When asked what defendant could have done differently, she stated that she should have stopped and thought about her actions. She could have taken deep breaths and asked for help. She stated that she currently had better control of her emotions—not because of the treatment but because of the medication she was taking. She stated that she did not believe that she was a danger to herself or others because she was not a violent person.
On cross-examination, defendant admitted that she was diagnosed with obsessive compulsive disorder, PTSD, and severe depression. She did not agree with her delusional disorder diagnosis. She claimed that the providers in Santa Barbara diagnosed her with delusional disorder but neither the doctor at Patton nor the doctors at prison diagnosed her with delusional disorder. Although defendant acknowledged that Drs. Dumain and Vorwerk made the delusional disorder diagnosis, defendant stated that her current treatment team did not make that diagnosis.
Defendant testified that her father was controlling and angry. She believed that he sexually abused her although she had no memory of the abuse, only triggers. When certain men, who are like her father, trigger her, they look or sound like her father.
Defendant stated that the victim's husband told defendant that it was okay for a father to have sex with his child if mentally ill. Defendant insisted that was true and not delusional. When asked by the court to repeat the comment she attributed to the victim's husband, defendant stated: "it's ok for a father to have sex with his handicapped child as long as it feels good . . . it is ok for a father to have sex with his child if they are mentally—if they are handicapped as long as it feels good. Like if they have a mental—a slow mental problem." Defendant insisted that the victim's husband made those statements during an ethics class.
Defendant also denied prison records, which indicated that she was loud, agitated, screaming, and/or howling. She did admit hitting herself.
Defendant stated that starting in 2012, she would reach out to the victim's husband "for an explanation of his behavior that matches my psychology—psychological ways." She contacted him via email and texts. She got his number from his Facebook page. Defendant claimed that she contacted him once a day from 2012 to 2015. Defendant first contacted the victim in 2014 by saying "hi" to her and then called and left a "really traumatic message" in 2015. Thereafter, defendant left the victim at least four additional messages.
Defendant was arrested and then put in jail and released. She was arrested again because she continued to contact the victim and the victim's husband. At the end of 2016, she was arrested even though she contacted the victim's husband every other day at that time. She did not contact the victim as often at that time.
Defendant continued to believe that the professor was a pervert and had a sexual addiction problem because her "body had warnings" and she "did not make up anything that he did." Defendant claimed that the victim's husband's behavior was explicit; he targeted defendant and one other student. Defendant also claimed that she encountered a man who claimed that the victim's husband was a pervert and hurt a friend psychologically. Defendant denied threatening to kill either the victim or the victim's husband.
DISCUSSION
After defendant appealed, and upon her request, this court appointed counsel to represent her. Appointed appellate counsel has filed a brief summarizing the facts and proceedings below and drawing this court's attention to the applicable law on sufficiency of the evidence in mentally disordered offender (MDO) proceedings. Counsel presents no actual argument for reversal and requests this court to review the commitment proceedings in accord with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. In making this request, counsel notes that in People v. Taylor (2008) 160 Cal.App.4th 304, the Court of Appeal considered whether Wende/Anders procedures were applicable to MDO commitment cases and concluded they were not. In Taylor, the court stated that "appeals from civil commitments under the [MDOA] are . . . exempt from the Anders/Wende review requirements." (Id. at pp. 307-308.) Moreover, counsel acknowledged that in In re Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) the California Supreme Court held that the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000 et seq.) conservatorship proceedings are not subject to Wende/Anders review. (Ben C., at p. 535.) We agree with Taylor, supra, and decline to apply Wende/Anders procedures to this MDO case.
In accordance with recommendations set forth in Ben C., supra, 40 Cal.4th at page 544, counsel has prepared a brief setting forth the facts and the law, and has provided appellant with a copy of the brief and informed her of her right to file a supplemental brief. On April 8, 2020, defendant filed a one-page handwritten brief. In the brief, defendant essentially stated that she should be released from Patton because she can be treated "in the community." She stated: "I have been rehabilitated and feel my mental illness is in remission to where I can safely live out in the community." She also went on to deny initiating contact with the victim's husband. Defendant, however, does not identify any issues concerning the involuntary commitment proceeding.
Because defendant has failed to raise an arguable issue on appeal from an order of recommitment, we decline to retain this case as is permitted by Ben C. and dismiss the appeal. (Ben C., supra, 40 Cal.4th at p. 544; People v. Serrano (2012) 211 Cal.App.4th 496, 501.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.