Filed 4/19/21 P. v. Andrew H. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B306542
(Super. Ct. No. 20PT-00188)
Plaintiff and Respondent, (San Luis Obispo County)
v.
ANDREW H.,
Defendant and Appellant.
Andrew H. appeals an order continuing his commitment to
the Department of Mental Health for treatment as a mentally
disordered offender (MDO). The MDO Act (Pen.Code, § 2960 et
seq.)1 “permits the government to civilly commit for mental
health treatment certain classes of state prisoners during and
after parole.” (In re Qawi (2004) 32 Cal.4th 1, 23 (Qawi).)
This is appellant’s second appeal concerning his MDO
status. In a 2020 opinion, we affirmed the original commitment
order. (People v. Andrew H. (Jan. 14, 2020, B298502) [nonpub.
All statutory references are to the Penal Code unless
1
otherwise stated.
opn.] (B298502).) Appellant contends the evidence is insufficient
to show that, “by reason of [his] severe mental health disorder,
[he] represents a substantial danger of physical harm to others
. . . .” (§ 2972, subd. (c).) We affirm.
Procedural and Factual Background
After a hearing conducted on February 20, 2020, the Board
of Parole Hearings (BPH) determined that appellant met the
MDO criteria. It continued his involuntary mental health
treatment for an additional year. Appellant petitioned for a court
hearing as to whether he met the MDO criteria. He waived his
right to a jury trial.
The court hearing was conducted on May 26, 2020. The
sole prosecution witness was Dr. Dia Gunnarsson, a forensic
psychologist at Atascadero State Hospital. She testified as
follows: Appellant suffers from a severe mental disorder –
bipolar disorder. He has been treated for the disorder since at
least 2016. “Prior to [2016], he had been treated for P.T.S.D.
[post-traumatic stress disorder] since about 2013.” At the time of
the BPH hearing in February 2020, his bipolar disorder was in
remission. “[H]e had been in remission since about November or
December of 2019.” “[A]s of the Board of Parole hearing date,”
appellant could not be kept in remission without appropriate
treatment, which includes the taking of his medication. He must
continue taking the medication for the rest of his life.
Dr. Gunnarsson opined that, because of his severe mental
disorder, as of the BPH hearing date appellant represented a
substantial danger of causing physical harm to others. Her
opinion was based on several factors. The first was “[t]he
severity of the injury to the victim [of the commitment offense –
assault by means of force likely to produce great bodily injury –]
2
and the suddenness and bizarre nature of [appellant’s] behavior
at the time.” Dr. Gunnarsson did not relate the facts underlying
the commitment offense. The facts are set forth as follows in our
prior 2020 unpublished opinion:2
“The assault was committed in July 2016. The victim said:
‘[Appellant] and [victim] were drinking when [appellant]
“snapped.” [Appellant] yelled “I don’t give a Fuck, I have PTS
. . . , I’ll murder you!” [Appellant] began punching [victim] for no
reason. [Victim] lost consciousness for an unknown amount of
time. [Victim] woke up with [appellant] sitting over him and
[appellant] was punching him in the face. [Appellant] was
laughing as he was assaulting [victim].’
“Victim’s niece said: At a family party, she ‘saw her step-
father, [appellant], choking her uncle, [victim].’ Victim was
‘intoxicated and “talking crap” toward [appellant]. [Appellant]
then grabbed [victim by the] left side of his neck with his right
hand and then threw [victim’s] head against the kitchen counter.
[Victim’s] head hit the edge of the kitchen counter and he fell on
the kitchen floor on his back. [Appellant] . . . mounted [victim]
with both his legs on top of [victim’s] hips. [Appellant] then
punched [victim] in the face about eight times.’
“Appellant said that victim ‘became disrespectful and
started threatening [him]. [Victim] belonged to a gang and was
telling [appellant] he was going to have members of [the] gang
murder [appellant]. [Victim] leaped forward in an aggressive
manner and [appellant] pushed [him] back in self-defense.
2 Pursuant to Evidence Code sections 459 and 452,
subdivision (d)(1), we take judicial notice of our prior opinion.
The same counsel who represented appellant in the prior appeal
also represents appellant in the present appeal.
3
[Victim] fell backwards and hit his head on the kitchen counter.
[Appellant] lost his balance and fell on top of [victim]. [Victim]
continued to attack [appellant] while [victim] was on the floor.
[Appellant] punched [him] two times in self-defense.’
“Victim ‘had lacerations on his left nostril, above his right
eye, inside his mouth and on [the] right side of his lip. [He] also
had severe contusions in both eyes, lumps on his forehead and a
broken nose.’” (B298502 at pp. 2-3, brackets in original.)
The second factor considered by Dr. Gunnarsson was that
although appellant “showed improved insight” into his mental
illness, the improvement “was very recent.” Dr. Gunnarsson
noted that on October 2, 2019, less than five months before the
BPH hearing on February 20, 2020, appellant exhibited “physical
aggression.” Because of his aggressive behavior, hospital staff
“had to [put] him . . . in full bed restraints.” The aggression
occurred when appellant refused to comply with an involuntary
medication order issued pursuant to Qawi, supra, 32 Cal.4th 1.
Appellant’s treatment team applied for the order because for
about five months he had refused to take his medication. After
14 days of involuntary medication, the treatment team allowed
the Qawi order to expire because appellant agreed to voluntarily
continue taking his medication. Since the expiration of the Qawi
order, appellant has regularly taken his medication.
The third factor considered by Dr. Gunnarsson was
appellant’s “history of substance abuse.” He had abused
“[a]lcohol, cocaine, marijuana, and methamphetamine.”
Appellant “tended to attribute a lot of his problematic behaviors
in the past and at the time of [the commitment] offense to
excessive alcohol use.” At the time of the BPH hearing, he had
completed only the second stage of a five-stage substance abuse
4
treatment program. Substance abuse could “interfere with
[appellant’s] medications, or [his] willingness to take
medications. [Appellant] . . . reported that he had used
substances instead of medications in the past . . . to calm down
his symptoms . . . .”
Dr. Gunnarsson also considered appellant’s “[r]emission
status,” “history of mental illness related violence,” and
“reasonable discharge plans.” “[A]side from the substance abuse
treatment, he . . . didn’t have any specifics or relapse prevention
plan.” Dr. Gunnarson believed that appellant’s discharge plan
was “appropriate . . . for him,” but she was concerned that “he’s
had similar resources available to him in the past, and . . . had
not taken advantage of them.”
Dr. Gunnarson noted that, once appellant started regularly
taking his medication, his improvement was “pretty dramatic.”
His insight into his mental disorder improved “[d]ramatically.”
Since October 2, 2019, he has not exhibited physical aggression.
At the court hearing Dr. Lawrence Levy was called as a
defense witness. He is appellant’s treating psychiatrist at
Atascadero State Hospital. Dr. Levy testified: Since the
expiration of the Qawi order, appellant has taken his medication
“voluntarily each and every day.” Appellant’s discharge plan
includes a “link up with the Veteran’s Program in San Diego” and
a “[r]esidential program with mental health services.” Dr. Levy
understood that this program would be “available” to appellant.
Defense counsel asked Dr. Levy, “Do you think he needs
more substance abuse treatment within the hospital prior to
being discharged?” Dr. Levy responded, “I can’t comment on
that. I’ve not followed the course of that treatment for him.” Dr.
Levy opined that, if appellant were to engage in substance abuse,
5
it would “negatively impact the effectiveness of the prescribed
psychotropic medication.”
As to the incident of physical aggression on October 2,
2019, Dr. Levy testified: “His refusal to take medication at that
time meant that he lacked insight, and so he lacked capacity to
recognize the need for medication. It became dangerous when he
was told he had to take medication. Prior to that, he had not
been dangerous on the unit.”
Dr. Levy opined that appellant is ready to be discharged
from the hospital provided that he has “the right supports.” “[H]e
needs to be in a program.”
Appellant was the only other defense witness. He testified
that he “get[s] symptoms of mania at times” if he does not take
his medication. He has “been fine ever since” he started taking
his medication pursuant to the Qawi order. If necessary, he is
prepared to take his medication for “the rest of [his] life.”
Appellant continued: He is a former Marine. He “went to
Iraq, then [to] Afghanistan.” He was diagnosed with P.T.S.D. If
released on parole, he intends “to get into Veteran’s Village in
San Diego” and enter “[a] year-long treatment program” there.
In the past he had been pre-approved for the program. But
appellant stated, “I don’t know where I stand now.” He “meet[s]
the criteria” for entry into the program, but “it’s hard to get into.”
Appellant is still at level 2 of the substance abuse program.
Because of the Covid-19 pandemic, he “was not allowed to pursue
it anymore. We are locked down.”
Appellant attributed his commission of the commitment
offense to excessive drinking, his P.T.S.D., and the bipolar
disorder: “If we had not been drinking, it wouldn’t have become
that situation. I was so intoxicated.” “Really bad things happen
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when people drink something . . . . I thought he [the victim] was
going to kill me. That’s why I reacted the way I did because of
the P.T.S.D., the bipolar.” Appellant understood “that substance
abuse can be very dangerous” for him. He said that he “cut off
drinking.” If released on parole, “I won’t be going to bars. . . . If
you drink and take the meds, it really screws you up.”
Appellant was asked, “[D]o you have any problem with
waiting until there is a program set up for you so that you can be
released from the hospital into that program that Dr. Levy feels
necessary for you?” Appellant replied: “I have no problem at all.
Be appropriate to wait.”
Trial Court’s Ruling
The court remarked, “I think this is about as difficult a case
as I’ve heard. I’m very impressed with [appellant].” But the
court was “most concerned” that a “relapse plan” and treatment
program were not in place for him at the time of the BPH
hearing. The court concluded: “[I]t’s better for him and better for
the community if that plan is in place beforehand. And without
having that plan in place, . . . the court believes that,
unfortunately, each of the [MDO] criteria have been met beyond
a reasonable doubt.”
Sufficiency of the Evidence
The question before the trial court was whether appellant,
“as of the date of the Board of Prison Terms [now Board of Parole
Hearings] hearing, met the [MDO] criteria . . . .” (§ 2966, subd.
(b); see also People v. Bell (1994) 30 Cal.App.4th 1705, 1710 [“at
both a hearing challenging the parolee's initial commitment and
at an annual review hearing continuing that commitment, the
trier of fact is required to determine that the parolee met the
MDO criteria on the date of the most recent [Board of Prison
7
Terms] hearing”].) Appellant claims that the evidence is
“insufficient . . . to establish [the MDO criterion] that [he]
constituted a substantial danger of physical harm to others by
reason of his severe mental disorder.”
“The substantial evidence rule applies to appellate review
of the sufficiency of the evidence in MDO proceedings. [Citation.]
We review the record in the light most favorable to the judgment
to determine whether it discloses substantial evidence—‘evidence
that is reasonable, credible, and of solid value’—such that a
reasonable trier of fact could find beyond a reasonable doubt that
[appellant met the MDO criteria].” (People v. Labelle (2010) 190
Cal.App.4th 149, 151.) “‘[W]e “‘presume[ ] in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ . . .”’” (People v. Harris (2013) 57
Cal.4th 804, 849.)
Appellant argues that, in concluding that appellant
represents a substantial danger of physical harm to others, Dr.
Gunnarsson and the trial court “relied on facts that were
demonstrably improper and/or contrary to the evidence. In
particular, Gunnarsson’s reliance on the commitment offense and
appellant’s past history of mental illness violated basic case law
holding that those factors constituted separate and independent
requirements under the MDO statute, and cannot support a
finding of dangerousness.” But appellant cites no authority
forbidding a court from considering these factors in determining
an MDO’s dangerousness. The only authority cited is People v.
Gibson (1988) 204 Cal.App.3d 1425, 1438-1439.3 Gibson
3“[T]he MDO statutory scheme was declared
unconstitutional in [Gibson].” (People v. Robinson (1998) 63
Cal.App.4th 348, 350.) “[T]he Legislature amended the [MDO]
8
concluded that it would be a violation of due process to
conclusively presume a person’s dangerousness “from proof of
mental illness so long as it had once been proved the illness was
causally related to or an aggravating factor in the commission of
a criminal offense.” (Id. at p. 1439.) Here, the trial court did not
make such a conclusive presumption. It considered several
factors in addition to appellant’s mental illness.
Appellant maintains that Dr. Gunnarsson’s reliance on
appellant’s commitment offense, history of mental illness,
“purported acts of aggression and medical noncompliance and her
concern over the recency of appellant’s improvement, violated the
principle that an individual’s dangerousness . . . must be
determined with reference to the individual’s current condition.”
The court properly considered these factors because they were
relevant in assessing whether appellant’s condition at the time of
the BPH hearing rendered him dangerous to others.
Appellant claims that Gunnarsson improperly relied on his
history of substance abuse and completion of only the second
stage of a five-stage treatment program. We disagree. The
substance abuse issue was of extreme importance. Appellant
testified that, but for his excessive drinking, he would not have
committed the offense of assault by means of force likely to
produce great bodily injury. Dr. Levy opined that, if appellant
were to engage in substance abuse, it would “negatively impact
the effectiveness of the prescribed psychotropic medication.”
According to Dr. Gunnarsson, substance abuse could “interfere
statutes effective July 1989 to comply with Gibson.” (Ibid.)
Gibson was criticized on grounds not relevant here in People v.
Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837, 839.)
9
with [appellant’s] medications, or [his] willingness to take
medications.” In view of appellant’s mental disorder, history of
substance abuse, completion of only the second stage of the
substance abuse program, and the uncertainty whether he would
be admitted into the Veteran’s treatment program, the trial court
was reasonably concerned that, if released on parole, appellant
would relapse into substance abuse that would once again lead to
violent conduct. We reject appellant’s contention that these
factors were “insufficient to overcome [his] remission.” Dr.
Gunnarsson opined that appellant could not be kept in remission
without treatment that included taking his medication.
“Finally,” appellant alleges, “Gunnarsson’s reliance on a
purported October 2, 2019 incident of aggression by appellant,
and his prior refusal to take medications . . . was also
improper . . . .” Appellant claims that his medication refusal and
aggression did not reasonably relate to his condition at the time
of the BPH hearing because these acts had occurred more than
four months before the hearing. But the acts were recent enough,
and the aggression was of sufficient severity, to be relevant in
determining appellant’s dangerousness. His aggressive behavior
was uncontrollable and, according to Dr. Levy, “dangerous.”
Hospital staff “had to [put] him . . . in full bed restraints.”
After reviewing the entire record in the light most
favorable to the order continuing appellant’s commitment as an
MDO, we are convinced that a reasonable trier of fact could find
beyond a reasonable doubt that, because of his severe mental
health disorder, appellant represented a substantial danger of
physical harm to others at the time of the hearing before the BPH
in February 2020.
10
Disposition
The order continuing appellant’s commitment to the
Department of Mental Health for treatment under the MDO law
is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
11
Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Gerald J. Miller, under appointment by the Court of Appeal
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Charles S. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
12