Opinion
A153951
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLISON MILLARE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN211312)
Defendant Ellison Millare appeals from an order denying his petition for conditional release into community supervised outpatient treatment pursuant to Penal Code section 1026.2. Appointed counsel filed a brief indicating he has reviewed the record and found "no arguable issues" to be pursued on appeal. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544.) The brief provides a narrative of the facts relevant to the pertinent legal issues. Counsel provided defendant with a copy of this brief and informed him of the right to file a supplemental brief. Defendant has done so and raises two issues—that he "did not have the chance to cross-examine witnesses" at his conditional release hearing and that he "wanted a court-appointed doctor to evaluate" his case. While it would be appropriate under Ben C. to dismiss this appeal, we have reviewed the record and affirm the order from which he appeals. (Ibid.; People v. Dobson (2008) 161 Cal.App.4th 1422, 1436, 1438-1439.)
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
We recount only those facts relevant to the issues on appeal. --------
Defendant was found not guilty by reason of insanity of one count of murder (§ 187, subd. (a)). Almost two years later, on June 22, 2017, defendant petitioned the trial court for transfer to outpatient services pursuant to section 1026.2. After ordering an updated evaluation on July 19, the court conducted a hearing on the matter and denied the petition on February 27, 2018.
At the beginning of the section 1026.2 hearing, defendant presented his most recent forensic prevention plan. The court noted it had received and read a copy of a February 14, 2018, letter from Dr. Danielle Bryce, a staff psychologist at the state hospital.
Defendant testified on his own behalf, going over his diagnoses, medications, groups and activities in which he participated, and his forensic relapse prevention plan. He also discussed the symptoms of his diagnoses and triggers and what he would do if he were to experience either while in the community. Before making its determination, the court asked counsel if there was any objection to the court's "considering either the February 14, 2018, letter that we have all read and referenced earlier or the FRPP that [defendant] just testified about," and both counsel replied they had no objection.
While the court was "optimistic" that in the future defendant would be eligible for CONREP (forensic conditional release program) and that the February 14 letter reported "very positive things" on behalf of defendant, the court did not believe defendant had sustained his burden under section 1026.2, subdivision (e). The court cited concerns expressed in that same letter for its decision, namely that defendant continued "to have challenges thinking and communicating his thoughts clearly when he is experiencing increased stress and emotions," which placed him at a "greater risk for responding violently." Defendant also "struggled to independently describe the ways and circumstances in which he remained at risk for future violence" and this in turn impaired "his development of [an] adequate plan to prevent future violence effectively."
DISCUSSION
Defendant first contends he did not have the opportunity to cross-examine Dr. Danielle Bryce. Hearings on unconditional release are " 'trials' " before the superior court and, thus, should reflect a defendant's right to "substantial procedural safeguards associated with trials, including, among other things, the right" to confront or cross-examine adverse witnesses. (People v. Tilbury (1991) 54 Cal.3d 56, 69, citing § 1026.2, subd. (e).) However, here no adverse witnesses were called. Both parties made no objection to the court considering Dr. Bryce's February letter, and defendant could have called Dr. Bryce to testify, but did not do so. (§ 1026.2, subd. (k) ["In any hearing authorized by this section, the applicant shall have the burden of proof by a preponderance of the evidence."].)
Next, defendant contends he "wanted a court-appointed doctor to evaluate [his] case." He made no such request either before or during the section 1026.2 hearing. And while defendant, in the prayer for relief in his petition, asked the trial court for an "independent psychiatric examination" to evaluate his present mental status, he has cited no authority which states he has a right to such appointment at his conditional release hearing. A provision for court-appointed psychiatrists or psychologists does exist when a defendant pleads not guilty by reason of insanity. (§ 1027 ["When a defendant pleads not guilty by reason of insanity the court shall select and appoint two . . . psychiatrists, or licensed psychologists . . . to examine the defendant and investigate his or her mental status."], italics added.) However, there is no corresponding requirement at a conditional release hearing. (Compare § 1026.5, subd. (b)(7) [providing specific provision for "[a]ppointment of necessary psychologists or psychiatrists"].)
We therefore conclude the trial court acted well within its discretion in denying defendant's petition. (People v. Dobson, supra, 161 Cal.App.4th at p. 1433; People v. Bartsch (2008) 167 Cal.App.4th 896, 900 [appellate review of the denial of section 1026.2 petition is for abuse of discretion].)
DISPOSITION
After a full review of the record, we find no arguable issues and affirm the order denying defendant's section 1026.2 petition for conditional release into the community for supervised outpatient treatment.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.