Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. 070383
HULL, J.Defendant Brett Allen McGraw’s psychiatric history began in his teens. By the age of 23, defendant was found not guilty by reason of insanity of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) after he fired a rifle towards his neighbor, sending a bullet whizzing past the neighbor’s head. After defendant was evaluated by a doctor, the trial court found his sanity had been restored and ordered him to outpatient treatment.
In 1985, defendant’s outpatient status was revoked and he was committed to a state mental hospital with a maximum period of confinement set at four years. He was eventually transferred to Napa State Hospital. His commitment there was extended numerous times over the course of the next 20 years.
At the hearing on the latest petition seeking an extension of defendant’s commitment pursuant to Penal Code section 1026.5, defendant’s psychiatrist testified defendant does not recognize past symptoms of his mental illness, and “cannot recognize any symptoms of decompensations in the future.” The psychiatrist stated defendant was in denial of the existence of his illness and did not want to take medication for it. When asked whether defendant posed a risk for violence, the psychiatrist opined, “If he, potentially, if he decompensates with his significant history of violence and symptoms of recurring polydipsia, I believe he may potentially pose a risk, significant risk.” She explained that decompensation would be triggered if defendant stopped taking his medications, which was quite likely, particularly if he were released without close supervision as he wanted. The psychiatrist felt defendant posed a substantial danger of physical harm to others “because of his decompensation of his mental illness and potential violence that actually occurred in the past when he was decompensating.” The psychiatrist testified that defendant’s last decompensation episode occurred sometime between July and September 2006, when he stopped taking some of his medication despite that his medication intake was being monitored by the hospital at that time. Since September 2006, defendant has been “reluctantly compliant with medication.”
Defendant’s psychologist from January 2007 to August 2007 testified defendant “begrudgingly” participates in group therapy, acting sarcastic and oppositional and arguing with other participants. The psychologist noted defendant could not identify the symptoms of his mental illness and downplays the impact of alcohol abuse on his behavior. The psychologist stated defendant’s diagnosis was “Schizoaffective disorder bipolar type, alcohol abuse in a controlled environment and cannabis abuse in a controlled environment, as well as polydipsia,” explaining symptoms associated with schizoaffective disorder include delusions, hallucinations and disorganized speech and behavior. Defendant’s bipolar type means he has a history of clinical depression, as well as mania. However, defendant “actively argues that he doesn’t have any of those symptoms.” The psychologist noted that, while defendant was willing to take medication, he did not understand the need to take it and did not believe it was doing him any good. When asked whether defendant would pose a danger of physical harm to others if he were released, the psychologist responded that, based on defendant’s past behavior, his history of violence and substance abuse, and his mental disorders, “there is a high likelihood [defendant] could be a danger to other people” if he stopped taking his medication, particularly “[i]f he’s stressed on a daily level.”
On September 13, 2007, the court issued the order extending defendant’s commitment. Defendant appeals from that order.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Our review of the record revealed the need to remand this matter to the trial court for further hearing as discussed below.
Discussion
Commitment to a state hospital under section 1026 may only be extended if the defendant was committed for a felony “by reason of a mental disease, defect, or disorder represent[ing] a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1).) That section has been interpreted to require “proof that a person under commitment has serious difficulty in controlling dangerous behavior.” (People v. Galindo (2006) 142 Cal.App.4th 531, 536 (Galindo); see also In re Howard N. (2005) 35 Cal.4th 117, 128 (Howard N.); People v. Bowers (2006) 145 Cal.App.4th 870, 878.)
“‘“Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ 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 is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers, supra, 145 Cal.App.4th at pp. 878-879; accord, People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.) “One single recent act of violence unrelated to the original crime, or a single psychiatric opinion that an individual is dangerous as a result of a mental disorder, constitutes substantial evidence to support an extension. [Citation.]” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.)
The defendant in Galindo suffered from bipolar disorder and an antisocial personality disorder, and had a history of substance abuse and criminal activity, all of which he denied. He also denied needing the medication he was given, and his psychiatrist believed he would stop taking the medication if released. (Galindo, supra, 142 Cal.App.4th at pp. 533–534.) The affidavit in support of the petition to extend the defendant’s commitment attested to defendant’s manic behaviors, his inability to effectively communicate with peers and staff, his resistance to following rules and policies, and his lack of progress while committed. (Id. at p. 535.) Based upon those continuing behaviors, coupled with his history of crime and violence, his past suicide attempts and his lack of insight into the role his medication plays in controlling his behavior, the defendant’s treatment team opined that he represented a substantial danger of physical harm to others due to his mental illness. (Id. at pp. 535-536.)
We noted, however, that the fact that the defendant’s behavior was dangerous and he did not, in fact, control it “does not prove that he was unable to do so, thus making him ‘dangerous beyond [his] control.’ [Citation.]” (Galindo, supra, 142 Cal.App.4th at p. 539.) “There was little, if any, evidence that he tried to control his behavior, that he encountered serious difficulty when trying to do so, or that his difficulty was caused by his mental condition. Rather, the evidence strongly suggested that defendant did not try to control his dangerous behavior, because he perceived no reason to do so . . . . [¶] No expert opined that defendant’s scores on standardized tests, his pursuit of another patient, or any other evidence demonstrates that he tried to control his dangerous behavior but encountered serious difficulty in trying to do so. . . . To the extent that defendant did not try to control his dangerous behavior, the evidence did not suggest that he would ‘have serious difficulty controlling his dangerous behavior,’ were he to try to do so. (Howard N., supra, 35 Cal.4th at p. 128.)” (Galindo, supra, 142 Cal.App.4th at p. 539.)
We are confronted with facts similar to those in Galindo here. Defendant has a significant history of violence and mental illness. However, defendant’s psychiatrist and psychologist both testified he is in denial as to the existence of his mental illness and the role medication takes in controlling that illness. Defendant vows to stop taking his medication if released, an act that would no doubt lead to decompensation, triggering symptoms associated with his schizoaffective disorder bipolar type and potentially causing him to relapse into alcohol and cannabis abuse and polydipsic behaviors.
Here, there was an abundance of evidence presented at the hearing that defendant was dangerous and did not control his dangerous behavior, and that he would be unable to control his dangerous behavior if he stopped taking his medication. However, there was little, if any, evidence that he “tried to control his dangerous behavior but encountered serious difficulty in trying to do so.” (Galindo, supra, 142 Cal.App.4th at p. 539.) Like Galindo, the evidence suggests defendant did not try to control his dangerous behavior “because he perceived no reason to do so.” (Ibid.) Like Galindo, defendant does not think he is mentally ill. He has a history of poor compliance with taking medication and denies the need for it. While he is reluctantly compliant now, he vows to stop taking it once he is released. His participation in group therapy is minimal, and he takes little, if any, responsibility for his criminal acts. However, neither defendant’s psychologist nor his psychiatrist opined that these behaviors demonstrated defendant tried to control his dangerous behaviors but had serious difficulty doing so. We presume those experts were unaware of the need to address that issue. A further hearing is necessary to determine whether there is evidence that defendant tried to control his dangerous behaviors and encountered serious difficulty doing so.
Disposition
The judgment is reversed and the case remanded to the trial court for a new commitment trial consistent with this opinion.
We concur: RAYE , Acting P. J., MORRISON , J.