Filed 9/28/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v. A159208
CHARLES JOHNSON,
Defendant and Appellant. (Alameda County
Super. Ct. No. 948224MH)
Charles Johnson appeals from the trial court’s order extending his
involuntary commitment at Napa State Hospital as a mentally disordered
offender (MDO) for one year, until December 2020. He contends (1) the trial
court misapplied the legal standard for assessing the likelihood that he would
represent a substantial danger of physical harm, and (2) substantial evidence
did not support the court’s commitment extension order. Because we
conclude substantial evidence does not support the order extending
appellant’s MDO commitment, we shall reverse.
PROCEDURAL BACKGROUND
In February 1990, appellant was convicted of assault with force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(1).) 1 He served
nine years in prison before being paroled as an MDO to Atascadero State
Hospital in 1999. The following year, he was civilly committed to Napa State
Hospital under the MDO Act (§ 2960 et seq.). He was twice released as an
All further statutory references are to the Penal Code unless
1
otherwise indicated.
1
outpatient in the Conditional Release Program (CONREP) for significant
periods of time—from 2004 to 2008, and from 2008 to 2014—but was
returned to the hospital each time after he went absent without leave
(AWOL).
Most recently, following several one-year commitment extensions, the
district attorney filed a petition on August 7, 2019, to again extend
appellant’s commitment. Following a court trial, the trial court granted the
petition and ordered appellant’s MDO commitment extended for one year,
until December 3, 2020.
On December 18, 2019, appellant filed a notice of appeal.
FACTUAL BACKGROUND
The following evidence was presented at appellant’s commitment
extension trial, which took place in December 2019, when appellant, who is
schizophrenic, was 69 years old. 2
Rafael Chang, a case manager for Alameda County CONREP, testified
that he had attempted to meet with appellant in October 2019, at Napa State
Hospital, as part of an evaluation of whether appellant should again be
released for outpatient treatment under CONREP. Appellant refused to
meet with him. Appellant had also refused to meet with him in April and
October 2018, and April 2019.
Based on his review of appellant’s records, Chang did not believe
appellant was currently suitable for outpatient treatment with CONREP
because he had not been participating in his groups in the hospital. He had a
29 percent participation rate, and CONREP required at least 80 percent
2
At trial, counsel stipulated to a “Sanchez waiver,” to allow for
admission of records containing case-specific hearsay. (People v. Sanchez
(2016) 63 Cal.4th 665.)
2
participation for MDO clients. In addition, appellant did not believe he had a
mental illness or that he needed medication. CONREP depends on its clients’
willingness to cooperate and take their medications. Since appellant was
refusing to meet with Chang, it was hard for Chang to recommend him for
release.
Chang also testified that he “could not safely say that [appellant] would
not be a danger to the community.” This opinion was based on appellant’s
underlying offense, which took place in 1990, when appellant was 39 or 40
years old. During that offense, he struck “a woman he did not know
repeatedly from behind with a board causing injury that required 19 stitches
and [caused] a broken wrist. He was delusional at the time, believing she
was a renter that owed him money.” When asked how the underlying offense
played into his assessment that appellant would potentially be dangerous if
he were in the community, Chang responded that appellant “could quickly
decompensate without taking his medications, especially if he believes he
does not have a mental illness or he requires medication.” On cross-
examination, Chang testified that he did not recall seeing any other instances
of violence in appellant’s medical records.
Chang further testified that CONREP records showed that appellant
had been released to CONREP supervision in 2003, and was temporarily
returned to the hospital after he went AWOL from CONREP in 2008.
Several months later, after he was stabilized, he was again released into
CONREP. Appellant’s records did not show any incidents of violence during
that period in 2008, when he was AWOL from CONREP. Then, from 2008 to
2014, appellant was in the community under CONREP supervision with “an
unremarkable record,” during which time he essentially complied with
3
CONREP’s terms and conditions and there were no incidents of violence or
aggression.
Chang testified that in January 2014, while again participating in
CONREP, appellant was hospitalized due to a medical condition and
underwent procedures that he did not agree with. This caused him to have
an increase in symptoms of paranoia and to leave the hospital against
medical advice. Three days later, he went AWOL from CONREP. Some two
months later, in March 2014, a CONREP staff member located appellant in a
soup kitchen. He was “delusional, paranoid, not on any medications,” and
was taken into custody by the Alameda County Sheriff’s Department. It was
assumed that he had not taken any of his psychiatric medications during
those two months, since he did not have access to them. Over the two-month
AWOL period, there was again no record of any violent or aggressive
behavior.
In conversations with CONREP employees after he was located at the
soup kitchen, appellant said that he was sleeping in the park and he declined
their offer of housing and continued participation in CONREP because he
wanted to continue sleeping in the park. Chang acknowledged on cross-
examination that CONREP records reflected that appellant was “amicable”
during that conversation with CONREP staff and that, when the police
arrived to arrest him and return him to confinement, he did not resist arrest
and was, in fact, friendly, nodding in recognition from the back of the police
car to a CONREP employee he knew.
Dr. Hugo Schielke, who testified as an expert in the field of psychology,
qualified to render an opinion regarding mental disorders and diagnosis, had
been appellant’s treating psychologist for the previous three or four months.
Because appellant mostly stayed in his room and kept to himself,
4
Dr. Schielke did not encounter him often on a day-to-day basis, but did see
him occasionally at treatment conferences.
Dr. Schielke had reviewed appellant’s psychiatric and medical records.
Based on that review and his interactions with appellant, he opined that
appellant is schizophrenic, with symptoms that include paranoid delusions
and flat affect. Because he was taking psychiatric medications, appellant
primarily displayed “negative symptoms” of schizophrenia, such as the lack of
affect, lack of movement, and disengagement. Since appellant did not
interact much, Dr. Schielke had not observed appellant with “full delusions.”
But he did seem to have an inaccurate understanding of things and a lack of
clarity of thought, which could be influenced by his schizophrenia.
Specifically, appellant did not fully recognize that he had a mental
health issue and symptoms. Nor did he understand that CONREP was
responsible in the past and would be responsible in the future for his care
and treatment. Appellant did not believe CONREP should have called the
police when he went AWOL, and he seemed confused and “frustrated with
the series of events that have happened.” In addition, appellant did not
attend groups regularly, with overall attendance in the 20 percent range.
Appellant did not think he needed to be in the hospital and did not want to go
back to CONREP “because of how things unfolded.” He was not motivated to
participate in group treatment, which is important because it helps patients
to understand and plan for their symptoms and work toward release.
Dr. Alaric Frazier, a staff psychiatrist at Napa State Hospital, testified
as an expert in the criteria for MDO commitment. Dr. Frazier had been
appellant’s treating psychiatrist since August 2019. His responsibilities were
to evaluate appellant and prescribe medication. Dr. Frazier had most
recently conducted a 20-minute interview of appellant on October 31. Before
5
that, he had seen appellant on two occasions while appellant was under his
care. In preparation for his testimony, Dr. Frazier had reviewed appellant’s
psychiatric and medical records.
Based on his interactions with appellant, including the most recent
clinical interview and his review of appellant’s medical/psychiatric records,
Dr. Frazier opined that appellant met the criteria as an MDO. First, he
believed appellant suffers from schizophrenia, a severe and chronic mental
disorder. Second, he believed that appellant’s schizophrenia was “in partial
remission,” by which he meant that appellant “had severe delusions when he
is not medicated and had delusions at the time of this crime.” At present,
appellant had some delusions, but some had “gone away.” In addition,
appellant’s thought processes at the time of the underlying crime had been
“very disorganized.” His current thought process was “more organized but is
not what we call linear logical, which people without schizophrenia would
show.”
Dr. Frazier believed that appellant’s schizophrenia played a significant
role in the underlying offense and that the reason appellant “focused on the
victim was because of his delusions; that he believed she was occupying a
facility that he owned; and when he asked her to leave and pay him the rent
and give him the keys back, she wouldn’t do so; therefore, he hit her with the
board.”
In addition to his ongoing disorganized thought process, appellant still
had delusions. For example, he did not believe he committed the underlying
offense; he would say that it was another Charles Johnson or someone who
looked like him. He also believed he was sent to Napa State Hospital
“because some guy in Santa Rita wanted to collect a reward.” These ongoing
symptoms were why Dr. Frazier believed appellant was only in partial
6
remission. Dr. Frazier did not believe appellant could be kept in even this
partial remission without continued treatment. He was not voluntarily
following his treatment plan, including attending psychosocial treatment
groups to learn more about his mental illness and triggers. His attendance at
groups had been about 26 percent over the past year. To advance to level two
in the hospital, he would need at least 60 percent attendance and for level
three, at which point release to CONREP would be possible, he would need
80 percent attendance.
Third, Dr. Frazier believed appellant presently represented a
substantial danger of physical harm to others as a result of his severe mental
disorder. This opinion was based in part on the 1990 offense, which showed
that when appellant “becomes very delusional, he will act out and in
sometimes violent manners—in a violent manner.” Appellant’s lack of
insight also supported this opinion because appellant does not believe that he
has schizophrenia or needs medications. When Dr. Frazier asked if he would
take his antipsychotic medication if he were released to the community,
appellant said “he would not.” It was important that appellant take his
medication, Haloperidol, because the recommendation is that patients with
schizophrenia be on an antipsychotic medication for the rest of their lives.
When a patient discontinues antipsychotic medication, “there is a significant
chance that the patient will what we call decompensate, which means they
will experience symptoms of delusions, of hallucinations, of disorganized
thought processes. Basically their illness, the symptoms of their illness will
increase.” Given appellant’s statements that he is not mentally ill and does
not need medication, Dr. Frazier believed that if he “is released to the
community unsupervised and he does not take his medication, over time his
7
symptoms will increase and he is likely to become delusional again and is
likely to have an episode of violence related to those delusions.”
Finally, appellant did not have a forensic relapse prevention plan,
which is “a manual for [patients] in the community,” so that if they start to
experience more symptoms or do not know what to do, “they can look back at
this.” The goal is for patients to build their own specific plan as they attend
their psychosocial treatment groups. The fact that appellant did not have a
relapse prevention plan contributed to Dr. Frazier’s belief about appellant’s
dangerousness because, “[w]ithout this plan, I am concerned that he will not
be able to manage his major mental illness in the community. I am again
also very concerned that he’s expressed he is not interested in medication or
mental health treatment when he returns to the community.”
On cross-examination, Dr. Frazier acknowledged that the only evidence
of violence by appellant was the underlying offense and an episode that
occurred while he was in prison, before he was adjudged an MDO. 3 There
had been no indication of violence or aggression in all of the years appellant
had been hospitalized or in the community on CONREP following his prison
term. While in the hospital, he was commonly described by hospital staff as
“liked and cooperative.” For example, a rehabilitation therapist had written
in appellant’s treatment plan conference notes in September 2019, that he
was “a quiet gentleman in the rare occasions in which he would approach this
writer [the therapist,] he greets the person with a smile and say[s] a nice
thing.” In a progress note from November 2019, shortly before trial, a nurse
3
In response to subsequent questioning from the trial court, Dr. Frazier
reviewed his notes and testified that over 20 years earlier, while in prison in
1998, appellant had become violent and gotten into a fight with several
officers, breaking one officer’s finger. The officers noted that “he was
behaving very strangely” at the time of the battery.
8
had “reported that he is pleasant toward staff and peers and spends most of
his time in his room.”
Dr. Frazier had reviewed records regarding appellant’s 11 years in
CONREP, and believed that since his return to the hospital in 2014,
appellant had “plateaued” in terms of his level of insight and participation in
treatment, although if he increased his group attendance “some of his insight
may be a little bit better.” Dr. Frazier also acknowledged, however, that
appellant had been diagnosed with borderline intellectual functioning, which
was now called “unspecified intellectual disability.” This disability did have
some effect on his ability to understand what was going on, but Dr. Frazier
believed that repetition is key and leads to a better understanding.
Dr. Frazier further acknowledged that appellant was taking his antipsychotic
medication voluntarily “because he is expected to.”
When asked about appellant sometimes seeming confused, Dr. Frazier
acknowledged that a nurse had written in a December 2018 note in
appellant’s hospital record that appellant said that “he was trying to go to his
groups, but he doesn’t understand a lot about what they are talking about”
and that he had not started his relapse prevention plan because it was too
complicated. The nurse also wrote that appellant knew what his diagnosis
was but did not know what it meant.
Dr. Frazier agreed that not everyone who is diagnosed with
schizophrenia would be dangerous in an unsupervised setting, and that
someone with schizophrenia who has no insight into his or her mental illness
and no internal motivation to treat it is “[n]ot necessarily” dangerous in an
unsupervised setting. It would depend on the specifics of the case. He
nevertheless believed that appellant’s lack of insight and schizophrenia
9
would make him dangerous based on “the fact that in response to the
delusions in 1990, he responded violently.”
Finally, after appellant’s trial counsel noted that appellant was 39
when he committed the underlying offense and was 69 at the time of trial, he
asked Dr. Frazier, “assuming that [appellant] was not in a supervised
setting, that he would decompensate and that his symptoms would increase,”
was “there any evidence in the last 30 years that would lead you to believe
that that decompensation would result in violence?” Dr. Frazier responded,
“No.”
On redirect examination, however, Dr. Frazier testified that he still
believed that appellant currently represented a substantial danger of
physical harm to others as a result of his mental disorder because appellant
had said that if he were to be unsupervised in the community, he would not
take his medication. The longer appellant “is without his medications, the
more delusional he will become, and he is likely to act out in a violent
manner in response to those delusions.”
In response to questioning by the trial court, Dr. Frazier testified that
his first two meetings with appellant lasted about 10 minutes and the third
and final meeting lasted about 20 minutes. When asked about any side
effects from the antipsychotic medication, Dr. Frazier testified that appellant
had a tremor that had been treated with Cogentin, but he was tapered off of
that medication because it can interfere with an older person’s cognitive
abilities. When asked what would get appellant “to full remission,”
Dr. Frazier explained that would involve having “no delusions about his
instant offense and his thought process would be linear, logical, and goal
directed.” Finally, in response to the court’s question, “what treatment plan
will he need at age 70 to transition into the community given his cognitive
10
challenges and his mental health status?” Dr. Frazier testified that “the main
thing[s] that we are looking for” are “an acknowledgement of his mental
illness and an acknowledgement that he needs to be in mental health
treatment,” “acknowledging that he does need psychiatric medications,” being
“able to recognize the warning signs for when his mental illness is becoming
more severe,” and having “an action plan.” Appellant could work on all of
these issues while in the hospital.
Following arguments of counsel, the court ordered appellant’s
commitment extended for one year, explaining: “This case is a difficult one
for the court in light of the fact that the physicians cannot point to any most
recent outburst or anything that would give rise to the court having
confirmed information of overt acts that show that [appellant] is a danger to
others. [¶] . . . [¶]
“It is clear to the court beyond a reasonable doubt that [appellant] does
suffer from a severe mental disorder, namely, schizophrenia, and that his
mental disorder based upon this evidence received from the experts, is not in
remission and cannot be kept in remission without continued treatment, but
that he is in partial remission.
“I made sure that I observed [appellant] throughout these proceedings.
I noticed that he does have tremors that get more severe the longer he sits or
when he’s seemingly anxious or agitated.
“Because of his severe mental disorder, the experts indicate that he
presently represents a substantial danger of physical harm to others because
he doesn’t have appreciation for his mental disorder and that it substantially
impairs his thoughts, his perceptions of reality, his emotional process, and
his judgment, all of which become[] grossly impaired.
11
“And that was shown by his behavior when he was hospitalized and his
refusal to adhere to medical treatment or to follow any directives and then
going AWOL.
“And in the absence of treatment, this will only become exacerbated.
And that was also revealed when he was not in compliance with his
medication and they found him in a soup kitchen, and the demonstrative
personalities [sic] that he showed at that time.
“I’m not including the disorder in terms of his developmental
disabilities because I don’t believe it’s appropriate for me to consider that as a
factor, but it does give me caution in terms of my interpretation of the
evidence when the physicians say [appellant] stays in his room, he is not
participating in group, and that he doesn’t have a full appreciation. And
that’s why I wanted to know whether his age was also a factor in that and
whether he’s decompressing [sic] on a couple of levels.
“But it appears that a severe mental disorder may not be kept in
remission without treatment given the medication regimen that he has, the
need to acknowledge his medical condition, and his need to agree to be
medically compliant with medication and therapy.
“And he does not have a relapse plan nor has he been willing to
participate or even meet with CONREP.
“The psychiatrist, I was really concerned to learn over time he has
spent 40 minutes with [appellant]. I was somewhat dismayed, because I
believe psychologists and psychiatrists may have a little more influence at
the early stages than maybe a CONREP representative. But it does appear
that the evidence shows that a high possibility of decompression [sic] will
occur which could result in a serious threat of substantial physical harm to
others, harm to himself, and because of misperceptions and decompensation,
12
he can be a substantial danger, and that he does not voluntarily follow his
treatment plan.”
The court then concluded, based on the evidence presented at trial, that
appellant satisfied the criteria for recommitment as an MDO, and therefore
ordered his commitment extended until December 3, 2020.
DISCUSSION
“ ‘Enacted in 1985, the MDO Act requires that an offender who has
been convicted of a specified felony related to a severe mental disorder and
who continues to pose a danger to society receive appropriate treatment until
the disorder can be kept in remission.’ [Citation.] The MDO Act provides for
treatment at three stages of commitment: as a condition of parole (§ 2962), in
conjunction with the extension of parole (§ 2966, subd. (c)), and following
release from parole (§§ 2970, 2972). [Citation.] [¶] . . . [¶]
“Sections 2970 and 2972 govern the third and final phase of MDO
commitment, which begins once the offender’s parole term has expired.
Section 2970 permits a district attorney, on the recommendation of medical
professionals, to petition to recommit an offender as an MDO for an
additional one-year term. An offender will be recommitted if ‘the court or
jury finds [1] that the patient has a severe mental disorder, [2] that the
patient’s severe mental disorder is not in remission or cannot be kept in
remission without treatment, and [3] that by reason of his or her severe
mental disorder, the patient represents a substantial danger of physical
harm to others.’ (§ 2972, subd. (c).)” (People v. Foster (2019) 7 Cal.5th 1202,
1207–1208.) Similarly, prior to the termination of a postparole
recommitment under subdivision (c), a petition for recommitment may again
“be filed to determine whether the patient’s severe mental health disorder is
not in remission or cannot be kept in remission without treatment, and
13
whether by reason of the patient’s severe mental health disorder, the patient
represents a substantial danger of physical harm to others.” (§ 2972,
subd. (e).)
While “ ‘ “substantial danger of physical harm” does not require proof
of a recent overt act’ ” for purposes of commitment as an MDO (In re Qawi
(2004) 32 Cal.4th 1, 24, quoting § 2962, subd. (g)), that does not negate the
statutory requirement of proof beyond a reasonable doubt that the person
currently poses a substantial danger of physical harm to others, before
commitment or recommitment as an MDO is permitted. (See § 2972, subds.
(a)(2), (c), (e).)
In the present case, appellant challenges the recommitment order made
pursuant to subdivision (e) of section 2972. He first contends “[t]his case
demonstrates the misapplication of the MDO criteria based on the trial court
conflating three distinct criteria, thereby failing to separately and correctly
apply legal standards in a way that distinctly considers current
dangerousness.” According to appellant, this requires us to perform a
“rigorous review beyond that accorded by the substantial evidence standard.”
We need not address this preliminary contention, however, because we
conclude that, even under the substantial evidence standard, the evidence
presented at appellant’s recommitment trial does not support the court’s
dangerousness finding and, therefore, its order extending appellant’s MDO
commitment for another year must be reversed.
“In considering the sufficiency of the evidence to support MDO findings,
an appellate court must determine whether, on the whole record, a rational
trier of fact could have found that [a] defendant is an MDO beyond a
reasonable doubt, considering all the evidence in the light which is most
favorable to the People, and drawing all inferences the trier could reasonably
14
have made to support the finding.” (People v. Clark (2000) 82 Cal.App.4th
1072, 1082 (Clark).)
With respect to the findings the trier of fact must make before the
criteria for recommitment as an MDO are satisfied, appellant does not
challenge the court’s determinations in this case that appellant suffers from a
severe mental health disorder, schizophrenia, and that his schizophrenia is in
partial remission and cannot be kept in remission without treatment. (See
§ 2972, subds. (c), (e).) Appellant does, however, challenge the court’s finding
“that by reason of [his] severe mental health disorder, [appellant] represents
a substantial danger of physical harm to others.” (§ 2972, subd. (c); see also
§ 2972, subd. (e).) The only rationale the court offered in support of this
finding was that “it does appear that the evidence shows that a high
probability of decompression [sic] will occur which could result in a serious
threat of substantial physical harm to others, harm to himself, and because of
misperceptions and decompensation, he can be a substantial danger, and that
he does not voluntarily follow his treatment plan.” 4
At trial, Dr. Schielke addressed appellant’s diagnosis and his failure to
fully understand his illness or participate in treatment, but did not opine on
his dangerousness. Chang from CONREP, who did not testify as a mental
health expert, was concerned that appellant could be dangerous in the
4
As appellant points out in his opening brief, the court’s statement,
added on to its finding of dangerousness, “that [appellant] does not
voluntarily follow his treatment plan” appears to be taken from CALCRIM
No. 3457, which is one of several factors for determining if a severe mental
disorder cannot be kept in remission, and is not directly related to the
question of dangerousness. We will presume the court’s added language was
an attempt to explain that its finding of dangerousness was based on the
concern that appellant would not continue with treatment if he were
released, which it believed would cause him to decompensate and become
dangerous.
15
community based on his underlying offense and the risk of decompensation if
he discontinued his treatment.
Dr. Frazier, who had met with appellant three times for a total of 40
minutes, was the sole expert to opine on appellant’s dangerousness under the
MDO Act. He testified that appellant posed a substantial danger of physical
harm to others based on evidence that appellant did not participate fully in
his treatment and did not have a relapse prevention plan; that he did not
have insight into his illness and the need for medication; that he was unlikely
to take his medication if released; and that without medication, he was likely
to decompensate and have more severe symptoms. According to Dr. Frazier,
when appellant “becomes very delusional, he will act out and in sometimes
violent manners—in a violent manner,” as occurred in appellant’s 30-year-old
underlying offense, when he repeatedly hit a woman on the head with a
board while suffering from delusions, and the battery that took place in
prison before he became an MDO.
On cross-examination, however, Dr. Frazier acknowledged that a
person with schizophrenia who has no insight into his or her mental illness
and no internal motivation to treat it is “[n]ot necessarily” dangerous in an
unsupervised setting. He further acknowledged that appellant had not
engaged in any violence or aggression since he had been hospitalized 20 years
earlier but, instead, was commonly described as “liked and cooperative.”
Indeed, Dr. Frazier responded in the negative to counsel’s question whether,
assuming that if appellant “was not in a supervised setting, that he would
decompensate and that his symptoms would increase,” was “there any
evidence in the last 30 years that would lead you to believe that that
decompensation would result in violence?”
16
Although subsequently, on redirect examination, Dr. Frazier testified
that the longer appellant “is without his medications, the more delusional he
will become, and he is likely to act out in a violent manner in response to
those delusions,” there was actually evidence in the record on this point,
showing that appellant had gone off of his medications for a substantial
period of time while he was in the community, with absolutely no dangerous
or violent results.
First, during appellant’s approximately 11 years in the community
under CONREP supervision, between 2003 and 2014, there was no evidence
of a single violent—or even aggressive—incident. Instead, the evidence
reflected “an unremarkable record,” with appellant essentially complying
with CONREP’s terms and conditions, except for the two AWOL incidents. In
2008, when appellant first went AWOL from CONREP and stopped taking
his medications for up to a month, there were no violent incidents. Then,
even after he again went AWOL and stopped taking his medication in 2014,
for approximately two months, there were no incidents of violence or
aggression. When he was eventually located at a soup kitchen, there was a
noted increase in his symptoms of paranoia and delusions, but CONREP staff
nonetheless found him “amicable.” Appellant simply explained that he did
not want to return to CONREP, and instead wanted to sleep in the park. In
fact, when the police arrived to arrest appellant and return him to
confinement, he did not resist arrest or act out in any way. On the contrary,
he was friendly, nodding in recognition from the back of the police car to a
CONREP employee he knew.
Finally, Dr. Frazier testified that appellant’s level of insight and
participation in treatment had “plateaued” since his return to the hospital in
2014. With increased group attendance, “some of his insight may be a little
17
bit better.” Dr. Frazier acknowledged, however, that appellant had a
diagnosed intellectual disability, which had some effect on his ability to
understand what was going on in terms of his diagnosis and treatment. The
doctor nevertheless believed that “repetition” could still “lead[] to a better
understanding.”
All of this evidence demonstrates that appellant has schizophrenia that
is only in partial remission; that he engaged in two violent acts before he was
committed as an MDO; that without treatment, including his antipsychotic
medication, he would likely decompensate; and that he might stop taking his
medication if released. Missing from the trial court record, however, is any
evidence that this would lead him to endanger others. Indeed, the evidence
shows that when he did stop taking his medication for two months, although
his symptoms of schizophrenia increased, he did not engage in any violent
behavior whatsoever.
Respondent’s effort to compare appellant to the defendant in People v.
Williams (2015) 242 Cal.App.4th 861 (Williams) is unpersuasive. In
Williams, the defendant had been found not guilty by reason of insanity
(NGI) after he fired a machine gun and injured a police officer and the next
day shot at an officer and a police dog, while out on bail following an arrest
for methamphetamine possession. His criminal history included molestation
of his 10-year-old stepdaughter, three convictions for driving under the
influence of alcohol or drugs, and carrying a concealed weapon. (Id. at
p. 863.) During his NGI commitment, the defendant was consistently
diagnosed with alcohol and amphetamine dependence and personality
disorder, not otherwise specified. (Id. at p. 864.) His treating psychologist
believed that if the “defendant relapsed with drugs or alcohol, ‘he may very
well feel that look, I am going go to [sic] down and the system has ruined my
18
life, I am going to take someone down as well.’ Given his impaired judgment,
his grudge against authority, his age, and his terminal illness, he might act
irrationally and become physically violent.” (Id. at p. 868.)
There is evidence in the present case showing that, like the defendant
in Williams, appellant “did not think he needed treatment and did not want
to [or in this case was perhaps unable to] change.” (Williams, supra, 242
Cal.App.4th at p. 874.) Here, however, the sole evidence the court relied on to
support the dangerousness finding was appellant’s violence from decades
earlier, with only friendly and nonconfrontational behavior ever since, even
while he was AWOL from CONREP, off of his medications for a significant
period of time, and decompensating. 5
Such a complete absence of violent or aggressive behavior of any kind
over a long period of time is necessarily an important, objective factor that
must not be ignored when determining an MDO defendant’s dangerousness.
The trial court, which described this case as “a difficult one” based on
the lack of evidence of recent violence or aggression, nonetheless concluded
there was a “high possibility” that, if released, appellant could decompensate,
which it believed “could result in a serious threat of substantial physical
harm to others, harm to himself . . . .” (Italics added.) The court was
understandably concerned about appellant’s ability to function and keep
himself safe if he were to stop taking his medication and decompensate after
5
Moreover, although respondent is correct that an appellate court may
not reweigh the credibility of witnesses (see Clark, supra, 82 Cal.App.4th at
p. 1083), in the present case, we are not reevaluating the credibility of
witnesses. Rather, we have simply reviewed the totality of the evidence and
found it lacking. (Cf. In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504
[“expert medical opinion evidence that is based upon a ‘ “guess, surmise or
conjecture, rather than relevant, probative facts, cannot constitute
substantial evidence” ’ ”].)
19
being released from the hospital. However, appellant’s risk of danger to
others, not his own welfare, is what was at issue at his MDO recommitment
trial. (See § 2972, subds. (c), (e); People v. Allen (2007) 42 Cal.4th 91, 98
[While United States Supreme Court has pronounced that “states must
ensure due process protections and safeguard liberty interests when a person
is civilly committed,” it has nonetheless “ ‘ “consistently upheld . . .
involuntary commitment statutes provided the confinement takes place
pursuant to proper procedures and evidentiary standards” ’ ”], italics added.) 6
We believe appellant’s trial counsel summed the situation up well in
his closing argument, after discussing all of the evidence presented at trial:
“So, it doesn’t give us the evidence that when he goes off medication,
that he decompensates and he is likely to act in a violent way. Of course, it’s
a possibility, but the jury instruction doesn’t ask us whether it’s a possibility.
[¶] So, I think that it’s—I’m going to be honest with the court—it’s a hard
position to argue, because I can see how his health and his best interest
might be served by being confined in the hospital, but his liberty interests is
[sic] he doesn’t want to be in the hospital. So, I think we have to hold the
district attorney to their standard of proof.
“And in this situation, with the cognitive abilities we have heard about
on behalf of [appellant], on his advancing age, on the fact that he appears to
6
There are laws intended to protect individuals who are unable to live
safely on their own in the community. For example, the Lanterman-Petris-
Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.) provides for the
establishment of a conservatorship for an individual who, “as a result of a
mental health disorder, is unable to provide for his or her basic personal
needs for food, clothing, or shelter.” (Welf. & Inst. Code, § 5008, subd.
(h)(1)(A); cf. People v. Allen, supra, 42 Cal.4th at p. 105 [although defendant
no longer fell under jurisdiction of MDO Act, he “might still be involuntarily
committed and treated under the LPS Act”].)
20
have over the past five years at the hospital essentially plateaued in terms of
his level of understanding and insight into his mental illness, I don’t see any
predicted hope on the horizon that [appellant] will see the light and be able to
give us the insight and the comprehension that the district attorney and the
doctors are looking for before he goes on this other path.
“And essentially we are—you know, he is not dangerous, and we are
going to be back here every year until he is not able to move, in which case
there will be no—there will be no argument that he’s dangerous. But at that
point where could he go?
“At this point, he’s still able to care for himself, and I think it’s time to
contemplate his liberty interests and to hold the district attorney to their
standard of proof, and they haven’t proven the case beyond a reasonable
doubt that he poses a substantial danger of physical harm.”
In sum, considering the totality of the evidence presented at appellant’s
commitment extension trial, we conclude a rational trier of fact could not
have found beyond a reasonable doubt that appellant “represents a
substantial danger of physical harm to others.” (§ 2972, subd. (e); see Clark,
supra, 82 Cal.App.4th at p. 1082.) 7 The order extending his commitment for
an additional year must therefore be reversed. (Clark, at p. 1082.) 8
7
In his opening brief, appellant cited research that “confirms the error
in associating dangerousness with mental illness.” Respondent maintains
that we should not consider this evidence because it was not presented to the
trial court in the first instance. Given the dearth of evidence in the record
supporting appellant’s current dangerousness, we need not address the
propriety of considering the additional authorities cited in appellant’s
briefing on appeal.
8
In light of our holding, if any MDO commitment proceedings are held
in the future with respect to appellant, the district attorney will be required
to present some new evidence of current dangerousness before a finding can
be made that appellant satisfies the criteria for commitment as an MDO. (Cf.
21
DISPOSITION
The trial court’s order extending appellant’s MDO commitment for one
year, until December 3, 2020, is reversed.
Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1060 [appellate court
held that “where an individual has been found not to be [a sexually violent
predator] and a petition is properly filed after that finding, the professional
cannot rely solely on historical information,” but must also “explain what has
occurred in the interim to justify the conclusion the individual currently
qualifies as [a sexually violent predator]”].)
22
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Johnson (A159208)
23
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Trina Thompson
Attorney for Appellant: By Appointment Under the First District
Court of Appeal Appellate Project
Rodney Richard Jones
Attorneys for Respondent: Attorney General of California
Xavier Becerra
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Lief M. Dautch
Deputy Attorney General
Elizabeth W. Hereford
Deputy Attorney General
24