Filed 3/22/16 P. v. Serebryakova CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068006
Plaintiff and Respondent,
v. (Super. Ct. No. MH110688)
ELENA SEREBRYAKOVA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Steven E.
Stone, Judge. Reversed with directions.
Suppa, Trucchi and Henein, and Teresa Trucchi for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael P.
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Elena Serebryakova (Appellant) appeals from an order after hearing
which denied her petition for relief from a prohibition imposed upon her rights to
ownership or possession of a firearm. (Welf. & Inst. Code,1 § 8103, subd. (f)(1).) She
contends no substantial evidence supports the trial court's order, or alternatively, the court
abused its discretion in denying a motion she made to reopen her case, at the end of the
hearing while the court was issuing its order of denial.
Appellant is employed as a border patrol officer, and she became subject to the
firearms prohibition after submitting to hospitalization for her own protection, at the
recommendation of the psychiatrist who had been treating her for a few years for
depression. In September 2014, Appellant told her psychiatrist that she was having
work-related problems and was considering taking pills to kill herself. At the beginning
of her hospitalization in September 2014, an emergency room nurse prepared an
administrative record designating her admission as falling within the scope of section
5150, as a person who presented a danger to herself.2 Upon her discharge from the
hospital three days later, the consulting doctor noted that her treatment had been
voluntary in nature and referred her for elective outpatient care, which she pursued. She
1 Statutory references are to the Welfare and Institutions Code unless otherwise
noted.
2 Section 5150, subdivision (a), part of the Lanterman-Petris-Short Act (§ 5000 et
seq.; the LPS Act), reads in pertinent part: "When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer [or designated mental health professional]. . . may, upon probable cause, take, or
cause to be taken, the person into custody for a period of up to 72 hours for assessment,
evaluation, and crisis intervention, or placement for evaluation and treatment in a
facility" designated by the county and approved by the State Department of Health Care
Services for such care. When such a detention or apprehension has occurred, section
8102, subdivision (a), requires confiscation by law enforcement officers of any firearms
in that person's possession.
2
was notified that her firearm had been confiscated and she could seek a hearing, pursuant
to section 8103.
At the hearing on her request for relief from the statutory prohibition on use or
possession of firearms, Appellant presented medical records and psychiatric testimony in
support of her claim that she was never subject to an involuntary hold due to any referral
made by law enforcement or other authorities, but instead she had acted on the
recommendation of her treating psychiatrist to present herself for inpatient treatment.
Appellant interpreted the terms of section 8103, subdivision (f)(1) as inapplicable, in that
they prohibit the ownership or possession of a firearm by a person "who has been (A)
taken into custody as provided in Section 5150 because that person is a danger to himself,
herself, or to others, (B) assessed within the meaning of Section 5151, and (C) admitted
to a designated facility within the meaning of Sections 5151 and 5152 . . . ."3 (Italics
added.)
Appellant thus argued her circumstances of voluntary treatment, however labeled,
did not qualify under this definition and there was no statutory or factual basis to deny
her the requested relief. (See City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933,
937 (Kevin B.) [power to seek forfeiture of firearms following an owner's reported mental
health crisis is predicated on the assessment and evaluation required by the LPS Act;
3 Section 5151 outlines the permitted time frame for LPS Act detention and
evaluation, and further provides: "Prior to admitting a person to the facility for treatment
and evaluation pursuant to Section 5150, the professional person in charge of the facility
or his or her designee shall assess the individual in person to determine the
appropriateness of the involuntary detention." (Italics added.) Section 5152 sets forth
procedures for such evaluation, treatment, care, and release and referral.
3
absent a custodial assessment or evaluation, section 8102 did not permit a forfeiture
order].)
Having reviewed the record, we conclude that in this context of an emergency
mental health hospitalization that was voluntary in nature, the trial court misapplied the
statutory criteria of section 8103, subdivision (f)(1). In light of the burden of proof stated
in section 8103, subdivision(f)(6), the prosecutor did not demonstrate that at the time of
hospitalization, Appellant had been taken into custody or placed in a facility for 72-hour
treatment and evaluation treatment, within the meaning of the LPS Act, section 5150,
subdivision (a). At the time of the hearing, there was no evidence controverting
Appellant's showing that the hospitalization was voluntary and the requirements were not
met to enable the statutory prohibition of section 8103 (applicable to a person taken into
custody and admitted as provided in section 5150 et seq.) to go into effect. The trial
court's order did not comply with the statutory scheme and lacks substantial support in
the record. We reverse with directions to issue a different order granting the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hospital Treatment
As of September 2014, Appellant was 64 years old and had served as a customs
and border protection officer for 20 years, with the Department of Homeland Security
and its predecessor agency. She had immigrated to the United States from Russia while
in her 20's and had previously pursued other training and careers. She started having
depression problems when she lost her mother in 2001 and again in 2008 when she had
serious complications of major surgeries and was unable to work for a time. Her
4
coworkers donated leave for her and she eventually recovered and returned to work.
Since 2008, she has been seeing a psychiatrist, Dr. Nicodemus J. Garcia, M.D., and
taking standard medications for depression and anxiety (Pristiq and BuSpar).
In September 2014, Appellant was having work-related issues with a new
supervisor whom she felt had "singled her out" for "disciplinary punishment." She was
very "upset" and in fear of losing her job. She went to Dr. Garcia on September 8, 2014,
telling him she would take her own life if she lost her job, by taking an overdose of her
depression pills. He recommended hospitalization and attempted to place her at Mesa
Vista Hospital, but no bed was available. He advised her to go to the emergency room at
Palomar or Pomerado Hospital and her sister, with whom she lives, took her to Pomerado
on September 9, 2014.
During intake at the emergency room, hospital staff determined that they did not
have a bed available for such treatment. Appellant knew that her health insurance would
not pay for such care, and she requested and received admission after the psychiatric
nurse at the emergency room filled out paperwork for an involuntary hold under section
5150. During her stay at the hospital, she signed a voluntary admissions form and was
discharged to go home on September 12, 2014. In the hospital discharge documentation,
psychiatrist Dr. Robert A. McAuley, M.D., noted that her treating psychiatrist had
recommended that she pursue inpatient hospitalization, and she had been voluntarily
hospitalized for the past 72 hours and had improved significantly. He evaluated her as
having developed a number of strategies and plans to deal with her unsatisfactory work
environment.
5
In the discharge documents, Dr. McAuley stated that he had discussed the issue of
firearms with Appellant and had been reassured that she would not use her service pistol
to harm herself, and in his opinion, it would be reasonable and safe for her to have access
to and carry a firearm. He adjusted her medication to add Abilify and referred her back
to her treating psychiatrist.4
Following Appellant's discharge, Dr. Garcia maintained her on her medications
and referred her to an outpatient day program at Sharp Mesa Vista Hospital, which she
voluntarily attended and paid for from September 26 through October 17, 2014. She
returned to work on limited duty in early November 2014, but was unable to go out into
the field because hospital admissions documents were filed with law enforcement
authorities, indicating that she was not allowed to carry a firearm. (§ 8102, subds. (b),
(c).) Her request for a hearing on the prohibition was filed on September 15, 2014. By
January 2015, an evaluating psychiatrist found her to be fit for full duty, including
firearms use.
B. Hearing and Continuance
For the scheduled hearing on the petition on October 24, 2014, Appellant
submitted subpoenaed medical records from her treatment at Pomerado and Sharp Mesa
Vista hospitals. Dr. Garcia was available to testify at that time, but at Appellant's request,
the matter was continued until April 13, 2015. At that time, the deputy district attorney
4 Abilify or aripiprazole is a medicine used to treat major depressive disorder (in
combination with other antidepressants), or other conditions such as schizophrenia or
bipolar disorder. Appellant's diagnoses did not include any psychotic features.
6
had just received the medical records, and the court considered postponing the hearing
again, but after some discussion, both counsel represented they were ready to proceed.
The court accordingly received into evidence the subpoenaed records, as well as
the January 2, 2015 "psychiatric fitness for duty evaluation" prepared by Dr. Dominic
Addario, M.D., who testified at the hearing. Dr. Addario spent three and one-half hours
interviewing Appellant and about six to seven hours reviewing her medical records, and
concluded that she had voluntarily undertaken to be admitted to the hospital in September
2014, and had requested rather than resisted treatment. His review of the records
indicated that her treating physicians felt she could safely and lawfully handle a firearm
and was not a "threat to herself or others." She had been evaluated as a competent
employee and she had never drawn a weapon at work, although she had been involved in
various hostile situations in which she had to pursue individuals physically. Her
symptoms were in remission, her prognosis was "excellent" and she was unlikely "to fall
back into the major depression based upon possible stress factors at work."
According to Dr. Addario's review of the records, Appellant did not meet the
requirements for an involuntary hold under section 5150, since she was not clearly a
threat to herself or others nor unwilling to obtain treatment. In his evaluation of her
fitness for duty, Dr. Addario stated that it was a "significant administrative misjudgment"
on the part of Pomerado Hospital staff to place her on a section 5150 hold "simply
because she had passive suicidal ideation, even though she was fully compliant and
voluntary." He and Dr. McAuley thought her visit to Dr. Garcia, telling him she would
take pills to kill herself, was more of a cry for help than an actual risk. Dr. Addario did
7
not see evidence in the records that she would be a threat to herself or others, such as if
she had showed noncompliance with treatment or risk factors for impulsive behavior.
Although some individuals with depression may act out violently, her profile did not
show that she was likely to do so. She did not have a history of paranoia or problems
with explosive behavior or losing control.
The court questioned Dr. Addario about when he talked to Appellant (in
December for the three and one-half hour evaluation, and on the day of the hearing for 10
minutes) and whether he had talked to Dr. Garcia or Appellant's sister (no). Dr. Addario
told the court he relied on Appellant's self-reporting that she was in compliance with her
treatment plan. Appellant submitted another exhibit, a November 19, 2014 letter from
Dr. Garcia, stating that he did not believe that Appellant was in any imminent danger of
hurting herself or hurting others. The deputy district attorney did not object and the court
identified the exhibit for the record and reviewed its contents, including Dr. Garcia's
statement, "I am now recommending that she be allowed to return back to her previous
job assignment. She feels she is ready. I truly feel she is ready to return to full duty. She
had done her job for so many years and she claims to be very familiar with her job
assignments and responsibilities. She reports she is physically able. I professionally
believe she is emotionally and mentally stable to return to full duty."5
5 Although the court did not formally admit the letter into evidence, it was identified
for the record and relied on in the ruling. It has now been lodged with this court as an
exhibit and may be considered in our review. (§ 8103, subd. (f)(5) [hearsay evidence
permitted at such hearings]; Rupf v. Yan (2000) 85 Cal.App.4th 411, 425-426 (Rupf).)
8
Appellant testified she had carried a firearm for 20 years at work and had never
drawn it in the course of her duties. When she went to Pomerado that day at Dr. Garcia's
recommendation, the nurse at the emergency room told her about putting her "on a hold"
pursuant to "5150," but she did not understand what he meant. She understood she would
be getting a bed at the hospital that way, and she stayed there for over three days, leaving
when Dr. McAuley told her he thought she was ready. He had explained to her that he
thought her stated intention to take an overdose of pills was merely an impulse and was
not really a plan to do anything, and she agreed. She was most recently scheduled to see
Dr. Garcia in early April, shortly before the hearing, but his office notified her he was
away. On occasion, she also sees psychologists in his office and from her employee
assistance program. She has received limited duty accommodations at work.
Appellant felt that she had benefited from her treatment and the outpatient
program she attended, where she learned about how to handle different situations and
understand the point of view of the other person. She paid for it herself, since her
insurance would not cover it. Nobody told her that she should continue to participate in
other outpatient programs. Appellant feels she does not get angry easily and rather was
feeling upset at the time of her hospitalization, and had never threatened anyone. The
medication she took reduced agitation.6 The matter was submitted.
6 At the hearing, the deputy district attorney inaccurately referred to Appellant's
reported plan to overdose on her "antipsychotic medication," but the medications she was
on at that time were antidepressants. The Abilify medication was added at the hospital,
and is sometimes prescribed as an antidepressant or an antipsychotic medication.
Appellant's diagnoses do not contain any references to psychoses.
9
In issuing its ruling, the court first noted that the burden was on the People to
show by a preponderance of the evidence, which was not a high standard, that Appellant
would not be likely to use firearms in a safe and lawful manner. The court characterized
Dr. Addario as very well qualified and truthful, but it gave his testimony "very little
weight." The court explained that the September 2014 incident was comparatively recent
and Dr. Addario's report indicated that Appellant has continued difficulty in dealing with
conflict at work and with anger. Although "there were a lot of equities in her favor," her
own doctor had raised those as problematic issues. The court questioned why Dr.
Addario had not interviewed Appellant more extensively or spoken to her other treating
mental health professionals, such as the psychologist she had evidently been seeing
recently, or her sister, rather than simply reviewing her medical records.
The court further expressed concerns that nothing had been presented about what
Dr. Garcia thinks at this time, since his letter was a few months old and did not
specifically address firearms. The court acknowledged that reasonable inferences could
be drawn that the doctor did not think Appellant had a problem with firearms. In
response, Appellant's attorney asked for a continuance or to reopen her case so that such
testimony could be presented. The court denied the request, noting that the matter had
already been continued once at Appellant's request and the burden was on the People.
The court next characterized Appellant's testimony as showing that she lacked
insight into her depression, which had lasted since 2001 or 2008, and concluded that she
was downplaying it. The court said that although she comes across as a very nice person
who cares about her job, and who had properly sought medical help before, her agitation
10
during testimony (apparently, frustration or impatience during cross-examination)
showed a different side of her. This raised concerns for the court that she might fail to
seek help if she became distressed while back on full duty with a firearm. At that point,
Appellant is reported as saying, "don't take it from me please."
Appellant's attorney again sought another continuance of the hearing for Dr.
Garcia to testify, explaining that at the original hearing, the court had not planned on
witnesses being called, which resulted in the current continuance. Counsel argued that
Appellant's employment would be adversely affected if the restriction were not lifted.
The court found no evidence had been presented on that subject and there was no good
cause for delaying resolution of the case. Appellant's petition was denied and she filed
this notice of appeal.
DISCUSSION
Appellant argues the record demonstrates that the district attorney's office failed to
carry its statutory burden to prove, by a preponderance of the evidence, that she would
not be likely to use firearms in a safe and lawful manner. (§ 8103, subd. (f)(5), (6).) She
points out that the evidence was essentially undisputed that her hospitalization was
voluntary in nature, and argues that for purposes of applying the statutory criteria, the
hospital admissions nurse's use of the LPS designation to facilitate Appellant's obtaining
treatment and for insurance purposes should not be dispositive.
Appellant thus contends that no substantial evidence in her medical records, in Dr.
Addario's testimony and evaluation that she was fit for full duty, or in her own testimony,
supported the order denying her petition. Appellant further contends the trial court
11
abused its discretion in denying her motion to reopen her case to present testimony from
Dr. Garcia.
I
APPLICABLE LEGAL PRINCIPLES
A. Review
For a motion for relief brought under section 8100 et seq. (the firearms prohibition
scheme), "[b]oth the gun owner and the authorities have the opportunity to present
evidence of the gun owner's mental condition, including introduction of testimony by
medical professionals. The [trial] judge's task is to consider the evidence presented,
weigh the credibility of witnesses, and render a decision." (Rupf, supra, 85 Cal.App.4th
411, 424.) A broad range of evidence may be presented, including hearsay. (People v.
Keil (2008) 161 Cal.App.4th 34, 37-38 (Keil); § 8103, subd. (f)(5).)
In reviewing a trial court's order on such a petition, we apply the substantial
evidence standard. (Rupf, supra, 85 Cal.App.4th 411, 429.) " 'In determining whether a
judgment is supported by substantial evidence, we may not confine our consideration to
isolated bits of evidence, but must view the whole record in a light most favorable to the
judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in
favor of the decision of the trial court.' " (DiMartino v. City of Orinda (2000) 80
Cal.App.4th 329, 336; People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553
(Jason K.).) " 'We may not substitute our view of the correct findings for those of the
trial court; rather, we must accept any reasonable interpretation of the evidence which
supports the trial court's decision.' " (Ibid.) Substantial evidence is that " 'of ponderable
12
legal significance . . . reasonable . . . , credible, and of solid value . . . .' " (Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) "While substantial
evidence may consist of inferences, such inferences must be 'a product of logic and
reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere
speculation or conjecture cannot support a finding [citation]." (Ibid.)
When determining the credibility of a witness, the court may consider matters that
have "any tendency in reason to prove or disprove the truthfulness of [the] testimony at
the hearing, including but not limited to any of the following: (a) [Her] demeanor while
testifying and the manner in which [s]he testifies. [¶] (b) The character of [her]
testimony." (Evid. Code, § 780, subds. (a), (b).) Demeanor evidence is an "elusive but
significant type of evidence," that is relevant on issues of credibility. (People v. Adams
(1993) 19 Cal.App.4th 412, 438.) "[D]emeanor evidence does not appear on the record,
and for that reason has led to the rule that the fact-finder is the exclusive judge of
credibility." (Ibid.)
In evaluating expert testimony, a trial court may reject some or all of the expert's
conclusions, "so long as the rejection is not arbitrary." (Conservatorship of McKeown
(1994) 25 Cal.App.4th 502, 509; see Keil, supra, 161 Cal.App.4th 34, 39 [conc. opn. of
Gilbert, P.J.].) The same principle applies to lay witnesses, even if the witness's evidence
is uncontradicted. (McKeown, supra, at p. 509.) "Except where additional evidence is
required by statute, the direct evidence of one witness who is entitled to full credit is
sufficient for proof of any fact." (Evid. Code, § 411.)
13
"Substantial evidence review turns on whether the facts presented in each case
support the findings of the trial court." (City of San Diego v. Boggess (2013) 216
Cal.App.4th 1494, 1502.) Looking to the specific facts reported in other published cases
is unhelpful to a substantial evidence analysis. (Ibid.) Our concern is whether
Appellant's petition for relief, or the trial court's denial of it, complied with the statutory
scheme.
B. Interplay of LPA Act and Firearms Statutes
"Section 8103 (and its counterpart section 8102, which permits confiscation of
firearms) are preventative in design; the fundamental purpose is to protect 'firearm
owners and the public from the consequences of firearm possession by people whose
mental state endangers themselves or others.' [Citation.] These protective statutes 'limit
the availability of handguns to persons with a history of mental disturbance . . . to protect
those persons or others in the event their judgment or mental balance remains or again
becomes impaired.' " (Jason K., supra, 188 Cal.App.4th 1545, 1558; italics added.)
Sections 8102 and 8103 ordinarily come into play when a person has been
detained under section 5150, upon probable cause that he or she is a danger to himself or
others. (Keil, supra, 161 Cal.App.4th 34, 37.) "A person who has so been detained may
not own, possess, control, receive or purchase any firearm for a period of five years after
the detention [citation], unless the person requests a hearing and the trial court finds that
the People have not met their burden to show 'by a preponderance of the evidence that the
person would not be likely to use firearms in a safe and lawful manner.' " (Id. at p. 38;
Jason K., supra, 188 Cal.App.4th 1545, 1557 [preponderance of the evidence standard
14
"properly allocates the risk of an erroneous judgment pertaining to firearm use between
the government and an individual who was hospitalized after a finding that he or she
presented a danger to himself or others (§§ 5150, 5151)."].)
In analyzing the scope of the counterpart statute, section 8102, this court in
Kevin B., supra, 118 Cal.App.4th 933 discussed the procedural limits placed upon the
police power to retain firearms. Normally, persons who have been " 'justifiably
apprehended or detained to have their mental condition evaluated are subject to its
reach.' " (Id. at p. 941; italics omitted.) Section 8102 " 'is not arbitrarily directed against
anyone who owns or possesses a gun." (Kevin B., supra, at p. 941; italics omitted.)
Rather, the firearms prohibition scheme "establishes a system of correlative powers,
duties and rights that arise when a law enforcement officer is confronted with a person
who is a danger to himself or others as a result of mental illness. . . . [¶] When, under
section 5150, a person has been detained, section 8102, subdivision (a), requires that law
enforcement officers confiscate any firearms or weapons in that person's possession.
Upon the person's release the mental health facility which has evaluated the person must
notify the law enforcement agency which confiscated the weapons [thus invoking the
petitioning process for forfeiture or release]." (Kevin B., supra, 118 Cal.App.4th at
p. 940; italics added.) "[I]t is not possible to read these provisions as permitting the
forfeiture of firearms or weapons where a person has not received an assessment and
evaluation of his or her mental condition." (Id. at p. 941.)
This court in Kevin B., supra, 118 Cal.App.4th 933, continued the analysis of
permissible forfeiture of weapons under section 8102 by reading the statute's plain terms,
15
and concurring with the substantive due process analysis in Rupf, supra, 85 Cal.App.4th
411, 423, that "the assessment and evaluation required by sections 5151 and 5152 are
important limitations on the power to confiscate and withhold weapons." (Kevin B.,
supra, at p. 941; italics added.) Otherwise, the power to confiscate and forfeit weapons
would not be adequately "tethered" to the assessment and evaluation required by sections
5151 and 5152, and "a risk arises that weapons will be taken from law-abiding citizens
who in fact are not a danger to themselves or others." (Kevin B., supra, at p. 942.) We
said, "Given the literal language of the applicable statutes and the risk of erroneous
confiscation and forfeiture, it suffices to conclude that in permitting confiscation and
forfeiture of weapons, the Legislature intended that no permanent deprivation occur in
the absence of the assessment required by section 5151 and, upon admission to a mental
health facility, the evaluation required by section 5150." (Kevin B., supra, at p. 942;
italics added.) In that case, the firearms owner was never "assessed or evaluated," and
thus the City had no power to bring a petition under section 8102, subdivision (c), and the
trial court's order had erroneously allowed forfeiture. (Kevin B., supra, at p. 943.)
II
ANALYSIS OF RECORD
A. Statutory Criteria of Section 8103, subdivision (f)(1)
We first use a plain text, "literal reading" approach for evaluating the scope of
section 8103, and then an alternative substantial evidence analysis of whether the
hospitalization of Appellant was equivalent to that of a person required to have her
mental condition evaluated under the LPS Act. (See Kevin B., supra, 118 Cal.App.4th
16
933, 941-942.) The interrelated statutory analyses in this area require a balancing of the
risks among an individual's loss of the right to possess firearms and the state's strong
interest in protecting society from the potential misuse of firearms by a mentally unstable
person. (Jason K., supra, 188 Cal.App.4th 1545, 1557-1558; see Rupf, supra, 85
Cal.App.4th at p. 422 [in applying section 8102, there need not be a relationship between
"the weapons possessed and the incident precipitating the [LPS Act] detention"].)
In the case before us, Appellant arrived at the hospital under emergency mental
health circumstances, but the record does not support a conclusion she was "detained"
within the meaning of the LPS Act, section 5150. We draw this conclusion from the
terms of section 5150, subdivision (a), which initially refers to "a person [who], as a
result of a mental health disorder, is a danger to others, or to himself or herself." For
such a person, appropriate public officials may, "upon probable cause, take, or cause to
be taken, the person into custody for a period of up to 72 hours for assessment,
evaluation, and crisis intervention, or placement for evaluation and treatment" in an
approved facility. (§ 5150, subd. (a).)
In turn, section 5150, subdivision (c) requires the facility officials to "assess the
person to determine whether he or she can be properly served without being detained."
Section 5151 outlines the permitted time frame for treatment and assessment and further
provides that "[p]rior to admitting a person to the facility for treatment and evaluation
pursuant to Section 5150, the professional person in charge of the facility or his or her
designee shall assess the individual in person to determine the appropriateness of the
involuntary detention." Under section 5152, the person taken into custody and admitted
17
to a facility on a 72-hour hold must receive an evaluation as soon as possible and
appropriate treatment and information.
But here, the only invocation of LPS care under section 5150 was made by the
emergency room admissions nurse, and apparently for purposes of ensuring payment for
a certain category of care. It was not established at Appellant's hearing that she was
taken "into custody" by public officials. (§ 5150, subd. (a).) The record does not show
the kind of full assessment required by section 5151 was performed, by "the professional
person in charge of the facility or his or her designee" of "the appropriateness of the
involuntary detention," prior to admission for treatment and evaluation pursuant to
section 5150. (§ 5151.)
In Rupf, supra, 85 Cal.App.4th at page 424, the appellate court explained that a
trial court "may properly consider whether the circumstances leading to the section 5150
detention might occur again and whether possession or control of those confiscated
weapons in such circumstances would pose a risk of danger to appellant or to others."
Technically, there was no substantive section 5150 detention in Appellant's case, and as a
matter of law, the forfeiture of her firearm rights was not adequately "tethered" to the
assessment and evaluation required by section 5150 et seq. (Kevin B., supra, 118
Cal.App.4th at p. 942.)
B. Substantial Evidence Evaluation
Since inferences can be drawn that Appellant voluntarily sought out the same
kinds of "assessment, evaluation, and crisis intervention, or placement for evaluation and
treatment," that are described in section 5150, subdivision (a), we next consider if the
18
provisions of section 8103, subdivision (f) were properly invoked, even absent a
"custody" or "involuntary detention" determination. (§§ 5150, subd. (a), 5151.) For our
purposes, this translates into the inquiry of whether substantial evidence supports the trial
court's determination that the People carried their burden of proof that Appellant was
taken into custody, assessed and admitted to a facility because she was a danger to herself
and others, as described in section 8103, subdivision (f)(1)(A), (B), and (C). (§ 8103,
subd. (f)(6) [burden on prosecutor to show by a preponderance of evidence "that the
person would not be likely to use the firearm in a safe and lawful manner."].) We
examine each stated basis for the ruling and any supporting inferences.
In section 8103, subdivision (f)(2), (3), (4) and (5), the firearms prohibitions
scheme provides for prompt notice to a patient detained at a mental health facility of the
confiscation of weapons and the right to request a hearing. Appellant's request for a
hearing was duly filed September 15, 2014, but the initial hearing on the petition, set for
October 24, 2014, was continued until April 13, 2015. In the interim, Dr. Addario
interviewed her and prepared his fitness for duty report January 2, 2015. One of the trial
court's reasons for denying the petition was that only six months had passed since the
hospitalization, possibly suggesting her treatment was incomplete and her status
unknown. However, the lapse of time was not alone dispositive, since the statute allows
for a prompt hearing.
In Jason K., supra, 188 Cal.App.4th at page 1554, this court noted that a single
incident leading to a section 5150 commitment can support a section 8103, subdivision
(f) finding. In Jason K. the individual suffered from a "severe" depressive disorder and
19
had acted out violently under it, and his efforts to improve his mental health "did not
necessarily show that it would not occur again, particularly when some of the stress
factors that precipitated this incident were still present . . . [and] there was a reasonable
basis for the court to find that the factors triggering the handgun incident had not been
entirely eliminated, and that if there was another episode of mental instability, Jason
could repeat this action, creating a serious safety concern for Jason and those around
him." (Jason K., supra, at p. 1554.)
In contrast, this Appellant's depression was repeatedly diagnosed as "moderate"
and she had not acted out violently in the past. On a voluntary basis, she underwent a
professional assessment and evaluation in an equivalent setting to those described in the
LPS Act and firearms prohibitions scheme, about the risks to be posed by her ongoing
access to firearms. There was conflicting evidence about the severity of the incident
leading to the hospitalization and whether she or the experts thought the suicide threat (by
pills, not gun) was made as a cry for help. The trial court's ruling expressed concerns that
Appellant was downplaying the incident leading to her hospitalization, and she lacked
insight into her depression. She also seemed to the court to become agitated during the
progress of the hearing.
Certainly, the trial court had the responsibility to evaluate the credibility of
Appellant as a witness, and we do not substitute our deductions for those it expressed.
(Evid. Code, § 780, subds. (a), (b) [court may consider regarding truthfulness of
testimony the witness's demeanor and character of the testimony].) However, witness
credibility was not the entire issue, but only one factor toward evaluating the showing
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required by statute. Under section 8103, subdivision (f)(6) the burden was placed on the
government "to show the individual would not be likely to use the weapons in a safe
manner." (Jason K., supra, 188 Cal.App.4th at p. 1558.) The statute allocates risks
between an individual's loss of the right to possess firearms and the state's strong interest
in protecting society from the potential misuse of firearms by a mentally unstable person.
(Kevin B., supra, 118 Cal.App.4th 933, 941-942.) Although the medical evaluators could
not guarantee that Appellant would not have another episode of mental instability, they
did not foresee that her restored firearms possession would raise any serious safety
concerns for herself or others, in light of her previous "passive suicidal ideation" and the
nonaggressive nature of the depressive disorder she had showed over the years, and
which she had voluntarily addressed.
In view of the record as a whole, the trial court seemed, erroneously, to be placing
the burden on Appellant to show she was unquestionably fit for firearms possession,
rather than keeping the statutory burden on the district attorney's office to show there
were specific reasons to conclude she would be dangerous to herself or others if her
firearms access were restored. Dr. Addario testified that the existence of a depressive
condition does not mean the person having it is unsafe or a threat to others, stating:
"Millions of people have depression and behave in a perfectly appropriate manner." We
are concerned that the inferences impliedly drawn by the trial court, that the
hospitalization was the result of a severe threat demonstrating that Appellant had a
present danger of engaging in firearms violence, did not "rest on the evidence" about the
nature of her mental condition and depression, but rather, they amounted to speculation
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or conjecture. (Kuhn, supra, 22 Cal.App.4th at p. 1633.) When the trial court rejected
the whole of Dr. Addario's and Dr. Garcia's conclusions, it showed some degree of
arbitrariness in faulting the procedures they used and in criticizing the extent of the
investigation and interviews they performed. (See Conservatorship of McKeown, supra,
25 Cal.App.4th at p. 509.) Although Appellant did not explain why Dr. Garcia was not
brought back to testify at the continued hearing on April 13, the record included
consideration of his favorable letter and also showed that he was away at the time of her
scheduled appointment as of early April.
Admittedly, both Appellant and the deputy district attorney could well have
provided more evidence, but we must evaluate the record as it was developed and with
attention to the burden of proof imposed by section 8103, subdivision (f)(6). In
reversing, we determine only that the record as it currently stands does not support the
order denying the petition and a different order must be directed. We need not resolve
Appellant's additional claim of abuse of discretion in the denial of her motion to reopen
her case to present testimony from Dr. Garcia.
DISPOSITION
The order is reversed with directions to grant the petition.
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HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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