Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC128753.
Premo, J.
Nick Bartolomeo Pascali appeals from an order extending his commitment as a person with MDO (mentally disordered offender) for another year pursuant to Penal Code sections 2970 and 2972. Pascali contends that (1) no substantial evidence supports the trial court’s finding that his mental disorder was not in remission or could not be kept in remission without treatment, (2) no substantial evidence supports the trial court’s finding that he continued to represent a substantial danger of physical harm to others, and (3) he received ineffective assistance of counsel because his counsel failed to request placement into a conditional release program. We affirm the order extending commitment for involuntary treatment.
Further unspecified statutory references are to the Penal Code.
LEGAL BACKGROUND
“The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released.... Once a prisoner has been certified as an MDO, inpatient treatment under the supervision of [the State Department of Mental Health (DMH)] is usually required unless DMH certifies that the prisoner can be treated in an outpatient program.” (People v. Martin (2005) 127 Cal.App.4th 970, 973.) “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.” (Id. at p. 974.) “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.” (Id. at p. 975.) “Substantial evidence” in this context, just as in a criminal case, means “evidence that is reasonable, credible, and of solid value--to support the [court’s] finding.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398 (Beeson); People v. Miller (1994) 25 Cal.App.4th 913, 919-920 [the substantial evidence test used in criminal appeals also applies to appellate review of MDO proceedings].)
Under section 2972, a court may order an MDO recommitted to his current state mental facility for an additional year if (1) the MDO continues to have “a severe mental disorder”; (2) the MDO’s “mental disorder is not in remission or cannot be kept in remission without treatment”; and (3) the MDO continues to represent a “substantial danger of physical harm to others.” (Beeson, supra, 99 Cal.App.4th at pp. 1398-1399, italics added; § 2972, subds. (c), (e).)
“The term ‘remission’ means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support. A person ‘cannot be kept in remission without treatment’ if during the year prior to the question being [presented]... he or she has not voluntarily followed the treatment plan.” (§ 2962, subd. (a).)
It can be shown that a defendant’s mental disorder cannot be kept in remission without treatment “by establishing that the defendant has failed to voluntarily follow his treatment plan.” (Beeson, supra, 99 Cal.App.4th at p. 1399.) “[N]ot voluntarily following the treatment plan is essentially an exception to the finding that the illness is in remission.” (Id. at p. 1400.) “Even when a person does not exhibit violent or threatening behavior, his failure to participate in his treatment plan also may reveal whether he can reenter society without the constraints and protections afforded in a structured environment. In other words, rather than relying on the presence of overt symptoms, the Legislature provided additional factors in gauging a person’s current condition.” (Ibid.) “In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan.” (§ 2962, subd. (a).)
“A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis.” (§ 2972, subd. (d).)
FACTUAL BACKGROUND
In 2001, Pascali went to his wife’s home to evict a woman who was staying in the home. He struck the woman on the head with a pipe. He pleaded no contest to inflicting corporal injury on a spouse or cohabitant. He was placed on probation, but violated probation. He was then sentenced to prison, certified as an MDO, and transferred to Atascadero State Hospital. In 2005, he was released to South Bay Conditional Release Program (CONREP). In 2007, the placement was revoked and Pascali was recommitted to the hospital.
Napa State Hospital staff psychiatrist Leif Skille testified to the following. He was Pascali’s treating psychiatrist. Pascali resided in a secured open unit treatment area T17 after progressing from the locked unit area T18. Area T17 has open doors where the patients can come and go and is the final step before a patient is discharged into the community. Pascali had a substantial head injury just before committing the instant offense and, while incarcerated, reported that he was hearing the voices of his wife and father. And he is a person who has borderline intellectual functioning. He is a person who has a cognitive mood irritability disorder with manic features that goes beyond his borderline intellectual functioning and is related to the head injury. He is undergoing treatment with “medication to control some mood irritability, impulse anger stuff with the current medication that is classified as a mood stabilizer.”
When asked whether Pascali’s mental disorder was in remission, Dr. Skille offered the following: “I would say in terms of his mood disorder he is in remission. In terms of his cognitive disorder he is not. We do not have a medication which can cure that. In terms of his alcohol dependence, he is in remission.” He affirmed that Pascali needed to have daily medication in order to be at his current level of remission: “I believe that the medication he takes which has both antipsychotic, as well as mood stabilizing properties is necessary for Mr. Pascali to remain psychotic free and to have control over his irritability, his anger, and not lose his temper so quickly which is important for safety.”
When asked whether Pascali would comply with his medication requirements if he were at liberty in the general community, Dr. Skille opined as follows: “I believe that if he was--that if he was unsupervised and didn’t get the support that he needed that, and he didn’t have that oversight to really make sure that he was sober and taking his meds that there--he would be at a higher risk to either with stress triggered by something in his life to go back to possibility [sic] drinking, and that could lead him to not taking his medication.” He also affirmed that Pascali had a history of alcohol dependence that was in remission, though one of the reasons for the termination of his placement with CONREP was because he had tested positively for alcohol and forged signatures on his Alcoholic Anonymous (AA) attendance forms.
When asked whether Pascali would present a physical danger to others if he were released to the general community, Dr. Skille stated the following: “Yes. I believe that without close supervision to make sure that he is going to A.A. groups, making sure that he is getting drug tests, making sure that he takes his meds, making sure that he talks to a counselor if he has stressors with his girlfriend, that I believe that if he didn’t have those factors, that structure and that supervision in place that he would be at risk to either drink, possibly go off his meds, and possibly result in violence to another person.” He added that Pascali required a transition to CONREP before being released into the general community where he could demonstrate his commitment to sobriety, AA attendance, medications, and stability. He explained that Pascali had not yet been returned to CONREP because Pascali had been angry at CONREP for terminating his prior placement. CONREP comes to the hospital every six months, but Pascali had “refused to meet with them.” Pascali eventually met with CONREP workers, “the first kind of reengaging with CONREP that had occurred. It was successful.” “Then CONREP came out again, and he had made some progress. He met with them. That was a good step that he met with them. Then he told the CONREP worker that Doug Johnson had lied. So that information was brought back to Doug Johnson who had concerns that Mr. Pascali was still angry at him, didn’t really understand why--fully why he was brought back to the hospital.” Dr. Skille offered that “He has now come forward about his relationship, and understand[s] that it is important to be transparent with CONREP. But at this point the next step I think which we need to get to is Doug Johnson has said that this week this next step for Doug Johnson to come to the hospital, sit down at the table with Mr. Pascali and the treatment team, and sit across from each other and make sure that they are okay with each other. Make sure that Mr. Pascali plans to be honest with them, and to follow his treatment plan, and not be deceitful the next time that conversation between the head of CONREP and Mr. Pascali I believe is critical. Because at this point what we have is, we have had people coming up from CONREP who are kind of, they are not Doug Johnson. Doug Johnson is the head, is one of the heads for that.” Dr. Skille concluded and reiterated that Pascali posed a risk to the general community without the very high level of his current supervision.
In arguing that Pascali posed a substantial danger of physical harm to others if released, the People urged that “yes, he has been in compliance with medication, but he is in compliance in a very highly structured, monitored environment.” He urged “as Dr. Skille testified, in order to reduce dangerousness we have to move him to a less supervised setting and see how he does in his supervision, see how he does with his alcohol program.”
In granting the petition, the trial court urged Pascali to reconcile with CONREP: “I have known Doug Johnson for a long time. He seems to me to be the kind of person that wants you out of the hospital as well. Now, you have always been very respectful in court. You have always been a perfect gentleman here whenever you come to court in front of me. We have seen each other now for several years. It bothers me when I hear about you lying and not telling the truth and accusing other people of lying, because these people are there to help you. So I think you do need to kind of sit down with Dr. Johnson. If you really want to get out of the hospital and get on CONREP, you need to be honest with everybody, you need to work hard. [¶] You’re at that point in your life you can’t just come in and make promises. I’m not going to just let you out of the hospital, because you promise to do the right thing. You have to show us, as you are going along in the hospital, that you are following the rules, you are doing what you should do, you have that insight that you need. [¶] And when you get to CONREP you have got to follow their rules. You have to respect them. And you have got to work with them. They are there to help you. Sometimes they may tell you to do things or may want you to say or participate in programs that you may not want to do, but that’s part of how you get out of the hospital, how you get out of CONREP, and how you get out in the community and be on your own.”
DISCUSSION
Pascali contends that “substantial evidence does not support the court’s finding that [he] was not in remission or that he cannot be kept in remission without treatment.” We disagree.
It can be reasonably inferred from Dr. Skille’s testimony that Pascali’s treatment plan consisted of Pascali fulfilling the requirements for admission into CONREP. Pascali had been placed with CONREP, the placement had failed, and Dr. Skille was facilitating another placement with CONREP. Dr. Skille opined that a placement with CONREP was a necessary first step for Pascali’s release. Pascali, however, had animosity toward CONREP and delayed the road toward another placement by refusing to meet and reconcile with CONREP. Since CONREP visited every six months and Pascali had finally come to understand the importance of being transparent with CONREP, it is reasonable to infer that the incident in which Pascali had obstructed his placement with CONREP by calling Doug Johnson a liar occurred within a year. In short, this is substantial evidence that Pascali failed to voluntarily follow his treatment plan within the past year. (Beeson, supra, 99 Cal.App.4th at p. 1399.)
Pascali next contends that “there was simply no evidence [he] would not continue taking his medications if released.” Evidence on this issue pertains to the substantial-danger element of the People’s case. We disagree with Pascali.
The People’s theory at trial was that Pascali was capable of living safely under supervision, but he was likely to stop taking medication and would represent a substantial danger of physical harm to others if he were no longer under supervision. This theory was supported by Pascali’s history of failure at CONREP, Pascali’s failure to reenter CONREP, and Dr. Skille’s opinion affirming that Pascali was still dangerous because he had only demonstrated his commitment to continue taking his medication under close supervision. From this, the trial court could have concluded that, if Pascali were not supervised, he would likely stop taking his medication.
Pascali last contends that his trial counsel was constitutionally ineffective because he did not request a release on outpatient status pursuant to section 2972, subdivision (d). For this claim, Pascali acknowledges that Dr. Skille “indicated that [he] was doing very well now, but Skille believed it would be best to release [him] under supervision. In other words, Skille believed that [he] needed to be placed in a conditional release program. Inexplicably, trial counsel did not ask the trial court to make the necessary finding under [section 2972, subdivision (d)].” Pascali emphasizes that he testified that he would be willing to work with CONREP and Doug Johnson again. Pascali fails to carry his burden to demonstrate ineffective assistance of counsel.
To establish the ineffective assistance of counsel, defendant must establish that his attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that he suffered prejudice therefrom. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) Prejudice is established by showing that there is a reasonable probability of a more favorable result absent his attorney’s shortcomings. (People v. Riel, supra, at p. 1175.) A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. (Ibid.) A reviewing court may resolve an issue of ineffective representation by counsel by deciding only the question of prejudice. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington, supra, at p. 697.)
In a case such as this one, the burden on the prejudice prong is necessarily to show that, had trial counsel made the outpatient request, the trial court would have granted it. But Pascali does not make such a showing. He merely cites factors that would support a ruling in his favor. And he concedes that his showing falls short of the required threshold: “Obviously, it is not certain that [he] would have been placed into the conditional release program.”
Moreover, the trial court summed up its outlook by telling Pascali that his best chance for release into the community was to reconcile with CONREP and be admitted to CONREP. These are not the words of a judge inclined to unilaterally order Pascali’s admission to CONREP.
DISPOSITION
The order extending commitment for involuntary treatment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.