Opinion
F075197
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD WAYNE POWERS, Defendant and Appellant.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1022118)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Appellant Clifford Wayne Powers appeals from the trial court's order extending his commitment to Napa State Hospital as a mentally disordered offender (MDO). (Pen. Code, § 2972.) On appeal, Powers contends the evidence is insufficient to support the court's commitment order. We affirm.
All statutory references are to the Penal Code.
FACTS
Background
On March 7, 1990, Powers pled guilty to spousal rape involving his estranged wife in exchange for the dismissal of one count each of false imprisonment (§ 236) and domestic violence (§ 273.5).
On April 18, 1990, Powers was convicted of two offenses involving his stepdaughter, sexual penetration (§ 289, subd. (a)(1)(A)) and forcible sodomy (§ 286, subd. (c)(1)). On that date, he was also sentenced to an aggregate 18-year term.
On May 3, 2001, the Stanislaus County District Attorney filed a petition to continue Powers's involuntary treatment postparole based on his diagnosis for schizoaffective disorder (§§ 2970, 2972).
On September 28, 2001, Powers waived his right to a hearing and agreed to a one-year commitment as an MDO (§ 2970). Thereafter, his civil commitment was extended each year through 2016.
On September 29, 2016, the Stanislaus County District Attorney filed another petition to extend Powers's civil commitment (§§ 2970, 2972) from February 23, 2017, through February 23, 2018.
The Trial
On February 7, 2017, the parties waived a jury trial in this matter. At the court trial, which began the following day, Dr. Aaron Bartholomew testified that he had been Powers's staff psychologist since June 2016 at Napa State Hospital where Powers was then committed. According to Dr. Bartholomew, Powers had a history of self-harming behaviors. In the past, he cut his wrists and threatened to hang himself with items of clothing. More recently, he ingested batteries on at least two occasions. One incident caused Powers serious medical problems, including a shortened bowel. Because of his self-harming behaviors, Powers was placed on one-on-one supervision, which meant that a licensed staff member, usually a nurse, was assigned to be with him 24 hours a day. The hospital tried to decrease the supervision but was unable to because in September 2014, the court ordered the hospital to ensure that Powers did not have access to batteries. The last time Powers exhibited self-harming behavior or suicidal ideation was in September 2016, when Powers asked a peer for batteries, which the peer did not provide.
Dr. Bartholomew further testified that Powers's current diagnosis was major depressive disorder with psychotic features, exhibitionistic disorder, antisocial personality disorder, borderline personality disorder, and four moderate substance abuse disorders involving alcohol, cannabis, opioids, and amphetamines. Although in the past Powers was diagnosed with schizoaffective disorder, bipolar type, Dr. Bartholomew's diagnoses differed because he had not observed any psychotic symptoms.
Powers's borderline personality disorder had not been controlled with medication. Additionally, no evidence was presented that Powers had received any treatment for any of his substance abuse disorders. --------
Dr. Bartolomew explained that personality disorders were long standing "personality difficulties." Powers's borderline personality disorder had resulted in a history of unstable and conflictual relationships, behavior impulsivity, and poor emotional dysregulation that had regularly interfered with his functioning and he continued to suffer from these symptoms. Powers's antisocial personality disorder diagnosis was based on his history of engaging in illegal and antisocial behaviors that began when he was a juvenile and his rule breaking behavior in the hospital and in the community.
Powers also had a history of severe depressive episodes that lasted longer than six months and contributed to his self-harming behaviors. More recently, Dr. Bartholomew observed Powers with a depressed affect following the loss of his two brothers. Powers, however, was taking an antidepressant and antipsychotic medications that were managing his depression and he did not exhibit any psychotic symptoms.
Powers's exhibitionistic behavior involved exposing himself to and masturbating in front of female staff. He had a history of exposing himself and masturbating in front of the nurse's station in the unit where he was previously housed. Since being transferred to his current unit, Powers had exposed himself twice. On June 24, 2016, Powers got out of bed and masturbated as he stared at the female nurse who was working one-on-one with him. The following day he exposed himself in a hallway and he became verbally aggressive with staff members as they directed him towards his own bathroom.
During discussions with Powers about his exhibitionistic behavior, Powers told Dr. Bartholomew he was sexually aroused by female staff members. He also acknowledged some of his exposure behavior, some of which he deemed unavoidable and attributed to being on one-on-one supervision. Although Powers's exhibitionistic behavior had not occurred since June 2016 and had been controlled through medication in recent months, Dr. Bartholomew still had some concerns regarding that disorder and he believed Powers minimized his symptoms.
Powers also was involved in one violent incident in the prior eight months. On June 9, 2016, Powers threw a bowl of chili against a wall.
Powers understood his medications maintained his stability and he took them voluntarily. However, at the hospital, Powers was given a paper cup with all his pills and he acknowledged to Dr. Bartholomew not knowing what medications he had to take or their dosages.
Powers accepted responsibility for the offenses against his wife, but he minimized his responsibility for his behavior by attributing these offenses largely to his use of "substances" and a history of having a conflictual relationship. Powers denied committing any sexual offenses against his stepdaughter or being convicted of any of those offenses. He also had not completed the sex offender treatment at the hospital that Dr. Bartholomew opined he needed to complete. However, the training was offered in a different unit and Powers had to become behaviorally stable before he could be transferred to that unit.
Powers participated in dialectical behavioral therapy and he consistently went to group and participated. Nevertheless, Dr. Bartholomew was concerned with Powers's willingness to authentically disclose the emotions he experienced and that Powers was underreporting the stressors or challenges with which he had been dealing. Further, one of the challenges in assessing how well Powers was progressing was to reduce his one-on-one supervision in order to assess how well he was utilizing the skills he learned. Powers had also completed a relapse program that outlined potentially high-risk situations and taught him skills to deal with them. However, Powers's underreporting of the challenges he faced could hinder his ability to identify high-risk situations and apply to them the skills he learned.
Powers had previously been released under the supervision of the Conditional Release Program (CONREP), but he was not interested in again being released on the program because he felt the staff took his money, they were overly harsh with him, and the program had too many rules.
Dr. Bartholomew opined Powers currently presented a substantial danger of physical harm to others, particularly with respect to sexual offenses because of his minimization of his history of such offenses and his failure to complete sex offender treatment, which would allow him to address his risk factors. According to Dr. Bartholomew, acknowledging only one offense made it challenging for Powers to know how to independently avoid or manage those situations that led to his prior offenses. Dr. Bartholomew noted that although Powers acknowledged he would need continued treatment in the community, it was difficult to assess how successful he would be in obtaining that treatment if he transitioned there without any supervision. Dr. Bartholomew also believed that if Powers was released under the supervision of CONREP, he would still present a significant risk to the community. He further opined that Powers should continue to be supervised in the structured hospital setting he was currently in.
After hearing argument, the court sustained the petition.
DISCUSSION
Powers contends the evidence is insufficient to sustain the order extending his commitment because: (1) his extended involuntary treatment is not being sought for the same disorder for which Powers was treated as a condition of parole, i.e., schizoaffective disorder; (2) Dr. Bartholomew's assessment of current dangerousness was based on Powers's borderline personality disorder and personality disorders are specifically excluded from the definition of severe mental disorders under the MDO Act; and (3) Dr. Bartholomew's opinion of dangerousness was primarily based on the inability of hospital staff to assess him for dangerousness, rather than on current physically aggressive acts or symptoms. We reject these contentions.
Standard of Review
"The substantial evidence rule applies to appellate review of the sufficiency of the evidence in MDO proceedings. [Citation.] We review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence—'evidence that is reasonable, credible, and of solid value'—such that a reasonable trier of fact could find beyond a reasonable doubt that the commitment offense was a qualifying offense under the MDO statute." (People v. Labelle (2010) 190 Cal.App.4th 149, 151.)
MDO Commitments
" 'The MDO Act establishes a comprehensive scheme for treating prisoners who have severe mental disorders that were a cause or aggravating factor in the commission of the crime for which they were imprisoned. (See § 2960.) The act addresses treatment in three contexts—first, as a condition of parole (§ 2962); then, as continued treatment for one year upon termination of parole (§ 2970); and finally, as an additional year of treatment after expiration of the original, or previous, one-year commitment (§ 2972).' [Citation.]
"Section 2962 lists six criteria that must be met for the initial MDO certification. 'The trial court must consider whether 1) the prisoner has a severe mental disorder; 2) the prisoner used force or violence in committing the underlying offense; 3) the severe mental disorder was one of the causes or an aggravating factor in the commission of the offense; 4) the disorder is not in remission or capable of being kept in remission without treatment; 5) the prisoner was treated for the disorder for at least 90 days in the year before his release; and 6) by reason of his severe mental disorder, the prisoner poses a serious threat of physical harm to others. (§ 2962, subds. (a)-(d)(1).)' [Citations.]
"Three of the criteria are relevant only to the initial certification. These three 'concern past events that once established, are incapable of change: whether the prisoner used force or violence in committing the underlying offense; whether he was treated for the disorder for at least 90 days in the year before his release; and whether his severe mental disorder was one of the causes or an aggravating factor in the commission of the underlying offense.' [Citations.]
"By contrast, the three criteria that must be satisfied for continued treatment relate, not to the past, but to the defendant's current condition. At an extension proceeding, the questions are: Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others? (§ 2972, subd. (c).)" (People v. Cobb (2010) 48 Cal.4th 243, 251-252 (Cobb).)
The Prosecutor Was Not Required to Prove Powers Was Suffering From the Same Severe Mental Disorder for Which He Was Originally Committed
Powers cites People v. Garcia (2005) 127 Cal.App.4th 558, 567 (Garcia) to contend the prosecutor was required to show he was suffering from the same disorder that he was treated for as a condition of parole. (Accord, People v. Sheek (2004) 122 Cal.App.4th 1606, 1611.) Thus, he contends the evidence is insufficient to sustain the court's commitment order because it showed that he was originally committed for schizoaffective disorder and his present recommitment was not based on that disorder. Powers is wrong.
Section 2962 sets forth the criteria that must be met for initial certification as an MDO. (Cobb, supra, 48 Cal.4th at pp. 251-252.) As the Supreme Court noted in Cobb, the criteria for recommitment relate to the defendant's current condition. (Ibid.) Nothing in the statute or MDO Act, and no case of which we are aware, requires that a subsequent recommitment must be based on the same disorder that was the basis for the initial certification or on the disorder that he was treated for as a condition of parole.
Power's reliance on Garcia is misplaced. In Garcia, the defendant's mental health treatment was initiated as a condition of parole and treatment occurred during the parole period, at the conclusion of which the medical staff determined the defendant's medical disorder was in remission and could be kept in remission. (Garcia, supra, 127 Cal.App.4th at p. 565.) Despite this diagnosis, the district attorney filed a petition to declare the defendant an MDO and subject to involuntary treatment after the expiration of the parole period. The appellate court concluded the district attorney had no authority to file a petition to subject the defendant to involuntary commitment after the parole period when the mental disorder for which he had been treated during the parole period was in remission and could be kept in remission. (Ibid.)
Nevertheless, the court also found that the requirement that "the prisoner ' "has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner's ... release[]" ' " meant that "[t]he mental disorder for which extended involuntary treatment is sought must be the same mental disorder for which defendant was treated as a condition of his parole." (Id. at p. 567.)
Garcia is not controlling for several reasons, including that although the record shows Powers's initial extended commitment following his parole was based on Powers suffering from schizoaffective disorder, it does not disclose the disorder he was treated for as a condition of his parole. Further, the above finding in Garcia is dicta, it is contrary to the Supreme Court's holding that the requirement of treatment for 90 days in the prior year applies only to the initial MDO certification (Cobb, supra, 48 Cal.4th at p. 252), and, in any event, Garcia did not involve a subsequent recommitment as is involved here. Accordingly, we reject Powers's contention that the evidence is insufficient to support his commitment because the prosecutor failed to prove he was suffering from schizoaffective disorder. Dr. Bartholomew's Opinion of Dangerousness Was Not Based Primarily on the Inability of Hospital Staff to Assess Powers for Dangerousness
"If the court or jury finds that the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others, the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed ...." (§ 2972, subd. (c).)
"A person 'cannot be kept in remission without treatment' if during the year prior to the question being before the ... trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan." (§ 2962, subd. (a)(3).)
"The term 'severe mental disorder' means an illness or disease or condition that substantially impairs the person's thought, perception of
reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely." (§ 2962.)
Dr. Bartholomew testified that Powers suffered from two severe mental disorders, major depressive disorder with psychotic symptoms and exhibitionistic disorder. Thus, the record contains substantial evidence that Powers suffered from two severe mental disorders.
During an incident in June 2016, Powers became physically violent when he threw a bowl of chili against a wall. During another incident in June 2016, Powers got out of bed and masturbated in front of the staff member who was supervising him. The following day, Powers exposed himself to staff and became verbally aggressive with them. Additionally, Powers did not comply with his treatment plan because, during group sessions, he did not disclose authentically and he underreported his stressors and challenges. Thus, the record supports a finding that the remission criterion for recommitment was satisfied.
Moreover, Dr. Bartholomew testified that Powers represented a substantial danger of committing other sex offenses based, in large part, on his minimization of his history of sexual offenses and his failure to complete sexual offender treatment, which would have allowed him to address his risk factors. Further, Powers's borderline personality disorder caused him to be impulsive and to have poor emotional dysregulation and his antisocial personality disorder caused him to engage in illegal, antisocial, and rule breaking behavior, which the court could reasonably conclude increased his probability of reoffending. Powers was also diagnosed with four substance disorders and he did not present any evidence that showed he had received any treatment to deal with them. In view of this lack of treatment, the court could also reasonably conclude that once outside a controlled setting it was likely he would resume consuming these substances, which would increase the probability that he would commit another sex offense. Further, although Powers's major depression disorder and exhibitionistic disorder were controlled with medication, the court could reasonably find from Powers's lack of knowledge of which medications he took or their dosages, that it was unlikely Powers would continue to take his medications if released. Thus, the record also contains substantial evidence that Powers was currently dangerous because of a severe mental disorder. (Cf. People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [the opinion by a psychiatric expert that a person is currently dangerous due to a severe mental disorder can constitute substantial evidence to support a commitment].)
Further, there is no merit to Powers's contention that Dr. Bartholomew's opinion was based on the hospital's inability to assess his dangerousness. Dr. Bartholomew testified that one-on-one supervision made it difficult to assess how successful Powers was in applying the skills he had been learning and his ability to use them outside a closely supervised setting. However, as noted above, he did not base his assessment of Powers's dangerousness on the inability of hospital staff to assess his dangerousness because of this close supervision. Thus, we conclude that substantial evidence supports the trial court's order extending Powers's commitment.
DISPOSITION
The order extending Powers's commitment is affirmed.