Filed 2/23/15 P. v. Timmer CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G050106
v. (Super. Ct. No. 09NF2522)
LORENA ESTHER TIMMER, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Thomas A.
Glazier, Judge. Affirmed.
Charles R. Khoury Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General,
for Plaintiff and Respondent.
Operating under the schizophrenic belief it was the end of the world,
Lorena Esther Timmer stabbed herself and attempted to kill her 15-year-old son with a
three-foot sword. Timmer pled guilty to attempted murder, child abuse, and aggravated
assault with a deadly weapon. The trial court found her not guilty by reason of insanity
and committed her to Patton State Hospital (Patton) for an aggregate maximum term of
14 years and four months. Two years later, Patton’s clinical staff filed a report pursuant
to Penal Code section 1026, subdivision (f),1 stating Timmer was no longer a danger to
the community or herself, and she would benefit from outpatient treatment under section
1603, subdivision (a). The court held a hearing to consider whether Timmer should be
placed in the Orange County Conditional Release Program (CONREP). It determined
Timmer had not met her burden of proving she would no longer be a danger to the health
and safety of others. On appeal, Timmer argues the court abused its discretion. We
disagree and affirm the order.
I
A. The Underlying Offense
In 1997 Timmer was diagnosed with having schizoaffective disorder, a
condition that causes her to experience auditory hallucinations, delusions, and depression.
For nine years she received treatment and medication from a private psychiatrist, Dr.
Ghosheh. He prescribed both anti-depressant and anti-psychotic medication. Timmer’s
delusions related to false beliefs about the Central Intelligence Agency (CIA) and
Armageddon. She also had a history of auditory hallucinations, hearing voices in her
head that did not actually exist. While under Ghosheh’s care Timmer was hospitalized
eight times for psychiatric reasons.
In 2009 Timmer moved to El Salvador and stopped taking her medication
for one year. She lived with her parents and did not work. Timmer claimed she did not
1 All further statutory references are to the Penal Code.
2
experience any symptoms of her mental illness while living in El Salvador. However,
when she returned to the United States she immediately began hearing voices and became
symptomatic.
On August 31, 2009, Timmer was experiencing severe hallucinatory
symptoms and “delusional themes.” Specifically, Timmer believed the world was
ending, everybody was actually dead, she wanted to die in her son’s arms, and she needed
to bleed. She retrieved a three-foot sword she kept in a box in her closet. After stabbing
herself in the thighs and abdomen, causing herself to bleed, she reached out and stabbed
her son’s chest area. She believed killing her son would save him “from the end [of] time
and the end of the world and save him from dying.”
Timmer’s son sustained a laceration on his chest, requiring five staples to
close the wound. Timmer would have likely killed her son if her brother had not
intervened.
B. The Underlying Conviction
In 2010 the prosecutor filed an information charging Timmer in count 1
with attempted murder (§§ 664, subd. (a); 187, subd. (a)), in count 2 with child abuse
under circumstances and conditions likely to produce great bodily harm and death (§
273a, subd. (a)); and in count 3 with aggravated assault with a deadly weapon and
instrument (§ 245, subd. (a)(1)). As to all three counts, the information alleged Timmer
personally inflicted great bodily injury pursuant to sections 12022.7, subdivision (a),
1192.7, and 667.5.
In July 2011 Timmer pled guilty to all three counts and admitted
enhancements as to counts 1 and 2. After a court trial on the issue of her sanity, the court
determined she was not guilty by reason of insanity. It committed Timmer to Patton for
an aggregate maximum term of 14 years 4 months with 811 days credit for time served.
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C. Hearing on Timmer’s Suitability
On June 24, 2013, Patton’s clinical staff filed a confidential report,
concluding Timmer was no longer a danger. The staff unanimously recommended
outpatient treatment. This prompted the trial court to order the CONREP team to
evaluate Timmer’s readiness for outpatient treatment. A few months later, in September
2013, the CONREP team submitted their evaluation. Suffice it to say, this confidential
report contained the unanimous opinion of the CONREP team that Timmer was now
ready to be safely and effectively treated on an outpatient basis. The evaluation was
submitted and signed by the County of Orange Chief Forensic Psychologist, Stacey D.
Berardino, as well as the forensic coordinator of the CONREP program, nurse Linda
Price. At the beginning of December 2013, Patton’s clinical staff submitted to the court
its confidential written recommendation that Timmer receive outpatient treatment. The
report noted Timmer had been accepted for placement at Orange County’s CONREP
program.
On March 11, 2014, the trial court held a hearing to determine whether
Timmer should be released from Patton and placed in the CONREP program. The three
confidential reports were received into evidence. The court took judicial notice of the
fact Timmer “was found guilty, but not guilty by reason of insanity” of attempted murder
with personal use of a deadly weapon that caused great bodily injury, child abuse and
aggravated assault with a deadly weapon. The court then heard from two forensic
psychologists, Berardino and Jennifer Bosch.
i. Berardino’s testimony
As the Chief Forensic Psychologist for Orange County, Berardino’s
primary duties related to the CONREP program. She was also involved in training,
mental health care, and the supervision of unlicensed psychologists.
She explained the CONREP program is designed to supervise and manage
people who have been found guilty of criminal offenses related to the mental health laws.
4
Berardino stated the court appointed her to conduct an evaluation after Patton’s treatment
team determined Timmer was ready to be released into the community under the
supervision of the CONREP program. Berardino stated Timmer’s treatment under the
CONREP program would include medication from a psychiatrist, group therapy, urine
drug screens, weekly visits with therapists, and home visits. Timmer would initially
receive the most intensive level of supervision.
Berardino stated she reviewed the records and met with Timmer before
writing her evaluation for the trial court. She opined Timmer suffers from
schizoaffective disorder depressive type. She explained, “[This condition was] basically
. . . a mood disorder in conjunction with a psychotic disorder. In her case when she gets
severely depressed, she experiences psychotic symptoms.”
After describing Timmer’s history of delusions and auditory hallucinations,
Berardino discussed Timmer’s treatment history. She noted Timmer had no behavior
issues or violent incidents at Patton. Timmer took her medication and attended group
therapy. She had completed a wellness, relapse and action plan, referred to as a WRAP
plan. In this plan, Timmer learned the nature of her mental illness and how to determine
when she was getting sick. She learned to indentify her mild, moderate, and severe
symptoms and how to manage them.
Berardino stated she discussed the criminal incident with Timmer.
Berardino noted Timmer and the treatment team believed the reason Timmer did not
experience any symptoms in El Salvador was because she was living in a relaxed
environment with her parents, without any employment stresses. Timmer told Berardino
she now knows that if a person does not understand their mental illness it can be
dangerous because “you start believing things that aren’t true or real.” They discussed
Timmer’s WRAP plan and the fact Timmer would need to keep taking her medication “in
order to not become dangerous and also watch her stress level because her history” of
becoming symptomatic when experiencing stressful situations.
5
Berardino stated Timmer’s understanding of her mental illness, how to
recognize the warning signs in the beginning stages, and her willingness to seek help
were skills relevant to making a risk assessment in terms of dangerousness. Berardino
explained, “If you can’t identify it, you can’t prevent it.”
Berardino added Timmer had a master’s degree in business and had
previously been employed as an office manager, an accountant, and in some capacity
with real estate. Timmer told Berardino the real estate job was stressful, and she quit the
accounting job based on Ghosheh’s recommendation the stress was causing her
symptoms to return. Timmer planned to eventually earn a Certified Public Accountant
degree and she stated she enjoyed working.
Berardino conducted a risk assessment measure test called the HCR-20.
She explained it was a way to organize the historical data with the patient’s clinical
current picture to forecast the “potential future picture” based on various risk factors.
She stated that of the 10 possible historical risk factors only two factors were present in
Timmer’s case. First, Timmer had a major mental illness. Second, the criminal offense
was violent. However, the second factor is mitigated by the fact there had been only one
incident and it was committed in adulthood. Other factors considered were Timmer’s
tumultuous marriage and employment problems. “Buffers to her historical risk factors”
include that she has no personality disorder, she is not a psychopath, she has no past
abuse, and there was no evidence of substance abuse.
As for the current clinical risk factors, Berardino indentified only one. At
times Timmer heard “voices of what we call at baseline, which means at her best she may
hear a voice now and then. Those voices are positive and basically tell her to love herself
at this point. She is able to identify it if it happens.” Berardino opined the voices at this
time are “very transient” and did not affect Timmer’s functioning, emotions or how she
related to other people. Berardino explained one “buffer” to the clinical risk factor was
Timmer’s insight into her mental illness, symptoms, and potential for future
6
dangerousness. Berardino believed there were no risk factors to suggest Timmer would
stop being compliant with her medications.
The last category in the HCR-20 test was to evaluate what potential future
situations could be dangerous. Berardino stated that for Timmer “it would be exposure to
stresses in a non-graduated manner. So stress with work, taking on too much with
school, family stress, relationship stress. Those are things that could put her at risk.” She
explained CONREP would be aware of these situations and must pre-approve activities.
The team would have to agree when Timmer was ready for work or school and at what
level.
Finally, Berardino discussed Timmer’s relationship with her family and
their support. Timmer’s son and other family members visit her at Patton. One of the
CONREP program’s conditions would be contact with Timmer’s family because the
program relies on family to provide information about changes in her behavior.
Berardino opined that based on all the above, she and the CONREP
treatment team believed Timmer was suitable for outpatient treatment. This opinion was
based on evidence Timmer had insight and understanding about her mental illness and
dangerousness. She had proven her ability to work with treatment staff and honestly
disclose her symptoms. Berardino stated Timmer could be safely and effectively treated
in the community, and she would benefit from this treatment. Berardino stated Timmer
would not be a danger to the community. If the team saw evidence of “decompensation”
they had several options, including sending her back to Patton or to a community hospital
if she was not severely decompensated.
On cross-examination, Berardino acknowledged Timmer’s compliance with
her medication was a key factor in recommending release. Berardino was aware that
Timmer reported not taking her medication when she was first diagnosed because it made
her gain weight. She also acknowledged Timmer recently complained about weight gain
from medication while she was at Patton.
7
The prosecutor asked Berardino if her opinion regarding medication
compliance was based on Timmer’s report she voluntarily took medication for the eight
or nine years Ghosheh treated Timmer. Berardino agreed with this statement but also
admitted she did not review the records from Western Medical Center regarding
Timmer’s eight psychiatric hospitalizations while under Ghosheh’s care. The prosecutor
asked Berardino if her opinion about Timmer would change if she knew three of these
hospitalizations were because Timmer failed to take her medication. Berardino stated she
would need to know what part of her medication regimen had changed and whether it had
been reported to Ghosheh. Berardino explained that while working with Ghosheh he may
have changed medications or there may have been medications that caused different side
effects for Timmer to be less stable. Berardino theorized Timmer might have stopped
taking one medication after telling Ghosheh it was causing a side effect, and if he
changed medication, Timmer might have gotten more symptoms resulting in
hospitalization. Berardino stated this scenario is different from a person who refuses to
take medication because they do not believe they are mentally ill.
Berardino was also cross-examined about whether individuals suffering
from mental illness will stop taking medication when they feel better or non-
symptomatic. Berardino recognized this sometimes occurred but she could not say how
often it happened. Berardino acknowledged Timmer stopped her medication in El
Salvador because she was feeling better. However, Berardino believed this would not
happen again because Timmer now understood that going off her medication was no
longer an option. Berardino opined that although Timmer was motivated to leave Patton,
she also clearly understood the nature of her illness and the danger of stopping her
medication. Berardino added that if Timmer stopped her medication or self-reporting
auditory hallucinations, it was likely others at the care facility or her family members
would notice the change in her behavior. If Timmer stopped her medication Berardino
would expect Timmer would become depressed and start experiencing psychotic
8
symptoms. Berardino stated that without medication Timmer was capable of engaging in
violent behavior.
ii. Bosch’s testimony
Bosch is a forensic psychologist. She conducts evaluations for juvenile and
adults and also works for the county as a psychotherapist, treating patients between the
ages of two and 18. Bosch stated she was appointed by the court to evaluate Timmer and
make a recommendation about whether she was appropriate for release. She reviewed
the records and Berardino’s reports. She met with Timmer and agreed with the diagnosis
that Timmer suffered from a schizoaffective disorder. Bosch spoke with Timmer about
her disorder, the criminal offense, and her treatment at Patton. Timmer told Bosch she
understood medication was “imperative” to control her symptoms. They also discussed
Timmer’s WRAP plan in detail. Bosch opined it was a “solid” plan and it was reasonable
to expect Timmer would eventually be able to move home with her family. She stated
Timmer was a good candidate for outpatient treatment because “she is aware of the fact
she has a mental illness and understands her mental illness . . . [was] a major contributing
factor to her controlling offense.” Bosch added Timmer “has a very solid WRAP plan
and has [been] building coping mechanisms and support in place. [¶] She is realistic in
wanting to go to CONREP. She doesn’t want to be released into the community right
away. She wants the support of a program and to continue to educate herself about her
mental illness and is very invested in her programming. [¶] She is very involved in her
therapeutic component in treatment planning and is attending all her groups [and]
individual therapy and wants to continue with all of those and is very compliant with
medications.”
When questioned about the fact Timmer still hears transient voices, Bosch
stated this was concerning. However, Bosch noted Timmer was aware of the need to
communicate symptoms to the treatment staff and look at medication adjustments. She
9
did not consider this concern as a bar to being treated in the community safely. She
concluded Timmer did not present a danger.
On cross-examination, Bosch agreed it was very important for Timmer to
remain on her medication. She opined Timmer would not be dangerous in the
community because she had significant family support and, more importantly, greater
insight into her mental illness and the need for medication.
D. The Court’s Ruling
After considering oral argument, the court noted, “[It was] very
commendable to have family and friends [present in court] on behalf of . . . Timmer. . . .
That is no small thing in the court’s eyes. It’s an important factor in this process in
evaluating.” Citing to section 1604, subdivision (c), the court stated it must consider the
nature of the criminal offense. The court stated it was concerned about the violent nature
of the crime “and that type of setting.” The court elaborated, “It’s fortunate it wasn’t
more serious. . . . It’s fortunate that someone interrupted the offense and it didn’t go
further. The compliance with the meds is a concern and it’s problematic.” The court
next concluded that based on all the evidence presented in the case, Timmer had failed to
meet her burden of proving by a preponderance of the evidence that she would not be a
danger to the health and safety of others. The court denied her outpatient status “at this
point in time” and returned her to Patton.
II
On appeal, Timmer faults the trial court for issuing a “terse” one-paragraph
ruling that failed to explain why it rejected the unanimous expert opinions. Timmer
asserts the court abused its discretion by apparently focusing solely on the violent nature
of the underlying offense and failing to explain why it found fault with the expert
opinions and reports. She concludes the court’s failure to conclude Timmer was
“presently dangerous” warrants reversal of the order. Although a more detailed
10
explanation would have been helpful to this court, we nevertheless conclude the court did
not abuse its discretion.
Section 1600 et seq. sets forth the procedures governing outpatient
placement and treatment for various types of forensic committees, including persons
found incompetent to stand trial (§ 1367 et seq.) and persons found not guilty by reason
of insanity (§ 1026). “We review the court’s decision denying outpatient status for an
abuse of discretion. [Citation.] In determining whether the trial court abused its
discretion, we look to whether the court relied on proper factors and whether those
factors are supported by the record. [Citation.] In other words, we ‘consider whether the
record demonstrates reasons for the trial court’s disregard of the opinion of the treating
doctors and other specialists who [all] testified that defendant was no longer dangerous.’
[Citation.]” (People v. McDonough (2011) 196 Cal.App.4th 1472, 1489 (McDonough).)
The McDonough case is instructive. Defendant was committed to the state
hospital after she was found not guilty by reason of insanity. (§ 1026, subd. (a).) The
court recognized, “An insanity acquittee committed to a state hospital may be released
from the hospital as provided by section 1600 et seq. [Citations.] . . . “‘[A] defendant
may be placed on outpatient status if the director of the state hospital and the community
program director so recommend, and the court approves the recommendation after
hearing. [Citation.]’ [Citation.]” (McDonough, supra, 196 Cal.App.4th at p. 1490.)
In McDonough, the director of the state hospital recommended outpatient
treatment and all the experts concluded defendant was not a danger and would benefit
from such treatment. (McDonough, supra, 196 Cal.App.4th at p. 1490.) The
McDonough court cautioned the “‘judge’s role is not to rubber-stamp the
recommendations of the [state hospital] doctors and the community release program staff
experts. Those recommendations are only prerequisites for obtaining a hearing.
[Citation.]’ [Citation.] In other words, a trial court is not required ‘to follow the
11
recommendations of doctors and other expert witnesses’ so long as the court’s reasons for
rejecting the recommendations are not arbitrary. [Citation.]” (Ibid, fn. omitted.)
The McDonough court discussed what considerations by a trial court would
be deemed appropriate. “A primary concern of a court called upon to decide whether to
grant outpatient treatment to an individual committed to a state hospital as the result of a
violent act caused by mental illness, is whether outpatient treatment will pose an undue
risk to the safety of the community. [Citation.] For that reason, a court considers ‘the
circumstances and nature of the criminal offense leading to commitment and . . . the
person’s prior criminal history.’ (§ 1604, subd. (c).) After all, commitment of an act
constituting a criminal offense and the fact that the act was caused by a mental illness
permit an inference that at the time of the verdict the defendant was mentally ill and
dangerous. [Citation.] As it relates to current dangerousness, however, the inference
may become weaker as substantial time elapses. (See e.g., In re Lawrence (2008)
44 Cal.4th 1181, 1219 [‘At some point . . . when there is affirmative evidence, based
upon the prisoner’s subsequent behavior and current mental state, that the prisoner, if
released would not currently be dangerous, his or her past offense may no longer
realistically constitute a reliable or accurate indicator of the prisoner’s current
dangerousness’].)” (McDonough, supra, 196 Cal.App.4th at pp. 1490-1491.)
The McDonough court stated it was defendant’s burden to show “by a
preponderance of the evidence that she is ‘either no longer mentally ill or not dangerous.’
[Citations.]” (McDonough, supra, 196 Cal.App.4th at p. 1491.) However, when all the
experts unanimously agree the defendant is no longer dangerous and would benefit from
outpatient treatment, “we look to the court’s reasons for rejecting this substantial amount
of testimony to determine whether the reasons are arbitrary.” (Ibid.)
In McDonough, the appellate court determined the trial court’s reasons for
denying release were arbitrary and reversed the judgment. It determined the trial court’s
attempt to discredit one of the experts was based on an insignificant fact and could not
12
justify the ruling. (McDonough, supra, 196 Cal.App.4th at p. 1491.) The court noted
there was nothing to refute the evidence defendant had gained “the appropriate insight
into her mental illness, knows her symptoms, triggers, and understands that her biggest
coping skill is taking her medication.” (Ibid.) In addition, the appellate court determined
it was improper for the trial court to find fault with defendant for not attending all the
CONREP group meetings because participation was not a requirement, especially when
defendant had already learned what the course had to offer and attendance “serve[d] no
legitimate purpose.” (Id. at p. 1492.)
In McDonough, the trial court found significant that defendant “had not
‘come even close to identifying an appropriate program of supervision and treatment.’”
(McDonough, supra, 196 Cal.App.4th at p. 1492.) The appellate court concluded this
was not an appropriate consideration. It recognized section 1603 “requires the
community director to ‘identif[y] an appropriate program of supervision and treatment’
(§ 1603, subd. (a)(2)), and the granting of outpatient status when ‘the court specifically
approves the recommendation and plan for outpatient status.’ (§ 1603, subd. (a)(3).)”
(McDonough, supra, 196 Cal.App.4th at p. 1492.) However, the court determined, “the
state may not continue to confine an individual who is no longer mentally ill or
dangerous by its failure to provide the court with an adequate outpatient treatment
program. To hold otherwise would place upon the patient an undue burden to prove that
which is beyond the patient’s ability or control.” (Ibid.) “In other words, absent a
determination the committed person is mentally ill and dangerous, flaws found in the
proposed outpatient treatment plan . . . do not justify denying outpatient status.” (Id.
at p. 1493.)
In the case before us, like the McDonough case, the experts unanimously
agreed defendant is not a danger to the community and would benefit from outpatient
treatment. Nevertheless, we conclude the trial court’s ruling, albeit brief, provided
adequate and rational reasons for denying Timmer’s release.
13
The trial court began its ruling by noting the underlying crime was
extremely violent, involved great bodily injury to a close family member, and would have
resulted in the victim’s death if someone had not intervened. Although the offense was
Timmer’s first brush with the law, her conduct of wielding a three-foot sword with the
intent of “saving” her teenage son by killing him is extraordinarily terrifying. The
thought of a repeat performance is reasonably a cause for concern. And because a
substantial amount of time had not elapsed since the attempted murder, the nature of the
crime was a reasonable and appropriate factor to be considered by the trial court.
(McDonough, supra, 196 Cal.App.4th at pp. 1490-1491 [courts may consider “‘the
circumstances and nature of the criminal offense leading to commitment’”].)
In addition to the nature of the crime, the court stated, “The compliance
with the [medications] is a concern and it’s problematic.” This statement is supported by
evidence in the record and is likely a reference to the prosecutor’s closing argument that
compliance with medication in a stress-free hospital setting is not the best indicator of
future behavior, especially when there was a history of medical noncompliance. The
prosecutor argued there was no guarantee Timmer would continue taking her medication
after her release from Patton and the experts agreed Timmer would return to a psychotic
state if she failed to take her medication, posing a danger to her family and the
community.
Although the experts believed Timmer would continue taking her
medication, the trial court’s role was not to rubber-stamp their recommendations.
(McDonough, supra, 196 Cal.App.4th at p. 1490.) The two experts explained their
opinions were based on Timmer’s behavior, records, tests, and statements made while she
was residing at Patton. Neither expert appeared to know much about what happened
during the eight or nine year period when Timmer was under Ghosheh’s care. Berardino
admitted she had not reviewed the medical reports from the hospital where Timmer
received treatment for several psychotic episodes. She did not appear to know that
14
several of these hospitalizations were triggered by Timmer’s purported failure to take
medication. Although Berardino was unaware of the circumstances surrounding
Timmer’s hospitalizations, she theorized and speculated as to the cause of Timmer’s
medical noncompliance. The record shows Ghosheh was not called to testify and did not
submit a declaration. Because neither Berardino nor Bosch were familiar with this
lengthy period of Timmer’s mental illness or the reasons she was hospitalized, it was
reasonable for the trial court to conclude there was inadequate evidence on the issue of
medical compliance. Based on the record before us, we cannot hold the trial court abused
its discretion in concluding Timmer failed to meet her burden of proof to be released “at
this point in time.”
On appeal, Timmer asserts the experts testified the HCR-20 test showed
“there was no risk of lack of medication compliance.” This contention misstates the
record. The experts offered no such guarantees. Berardino explained the test showed a
lack of risk factors, she did not say there was “no risk.” And while both experts did not
expect Timmer to stop taking her medication, they explained there were safeguards in the
CONREP program to detect noncompliance in case she did stop. This evidence confirms
the inference there are no guarantees. Understandably, Timmer is highly motivated to
leave Patton, start outpatient treatment, and eventually return to her family home.
However, the court need not blindly accept her promises of medication compliance and
self reporting symptoms. As mentioned above, the court was not given a complete
picture of the circumstances of Timmer’s medical noncompliance when she was working
and living outside of Patton or not resting in El Salvador. Therefore, we conclude it was
entirely reasonably for the court to be concerned about how Timmer would behave once
she left the structured and calmer hospital environment. The trial court’s concerns about
medicine compliance were not an arbitrary reason for the trial court to deny Timmer’s
release at this time.
15
III
The order is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.
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