Filed 3/21/22 P. v. Purcell CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092783
Plaintiff and Respondent, (Super. Ct. No. 79077)
v.
HENRY PURCELL,
Defendant and Appellant.
In 1987, the trial court found defendant Henry Purcell not guilty by reason of
insanity of assault with intent to commit rape and ordered him committed to a state
hospital for a maximum of six years. The trial court has granted successive petitions
extending defendant’s commitment by two-year terms. In 2020, the People filed the
latest such petition. Upon a jury verdict that defendant suffered from a mental disease,
defect, or disorder, and that, as a result thereof, he posed a substantial danger of physical
harm to others and had serious difficulty controlling his dangerous behavior, the trial
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court granted the petition, extending defendant’s commitment by two years. On appeal,
defendant asserts the verdict is not supported by substantial evidence. We affirm.
I. BACKGROUND
A 1987 information charged defendant with assault with intent to commit rape.
(Pen. Code, § 220.)1 The trial court found defendant not guilty by reason of insanity and
found him to be a danger to the health and safety of others. The court ordered defendant
committed to Atascadero State Hospital for a maximum term of six years pursuant to
section 1026.
In 1992, the trial court granted the People’s petition pursuant to section 1026.5,
subdivision (b)(1) to extend defendant’s commitment by two years. The court has
granted numerous successive petitions extending defendant’s commitment by two-year
terms. In 2020, the People filed the current petition for another two-year extension.
A. The Trial Evidence
Dr. Nilda Diaz, a forensic psychologist for the State Department of State
Hospitals, was the only witness at trial. Diaz testified as an expert in forensic psychology
specific to the area of persons pleading not guilty by reason of insanity.
Diaz attempted to meet with defendant to perform a forensic evaluation. When
she introduced herself, defendant said, “ ‘I already talked to you last night.’ ” Diaz had
never met defendant before. Defendant insisted they had talked the previous night and
indicated he had no interest in speaking with her.
Although unable to meet with defendant, Diaz prepared a report. She reviewed
hospital documentation and defendant’s criminal history. Before testifying, she also
reviewed hospital documentation prepared since she completed her report.
1 Further undesignated statutory references are to the Penal Code.
2
Diaz described six reports distilled to a statement of stipulated facts upon which
she relied. One was a monthly progress note prepared in April 2020 by defendant’s
treating psychiatrist. Three were monthly progress notes prepared between October 2019
and February 2020 by a clinical social worker. Another was a registered nurse’s progress
note from January 2020. The last was a rehabilitation therapy assessment prepared by a
certified treatment rehabilitation specialist in October 2019.
B. Defendant’s Diagnoses
Defendant’s primary psychiatric diagnosis was schizoaffective disorder, bipolar
type. This is a disorder characterized by psychotic symptoms. “Psychosis is the inability
to correctly interpret what’s happening in reality.” A person experiencing psychosis may
misperceive others’ behaviors or actions. Such a person may also experience outside
stimuli that, in reality, are not there such as auditory, visual, and tactile hallucinations.
Defendant had a history of auditory hallucinations; he hears voices telling him to do
things, which are known as command hallucinations. Defendant’s auditory command
hallucinations included voices telling him to harm others and that people are “after him,”
which Diaz described as paranoid ideation. Defendant believes “everybody is out to
harm him, . . . specifically his treatment team.”
The bipolar aspect of defendant’s diagnosis included symptoms of a mood
disorder. Defendant experiences manic episodes that have included hostile and
aggressive behavior towards others.
Defendant also had three “underlying diagnoses”: cannabis use disorder, alcohol
use disorder, and antisocial personality disorder. His use of cannabis and alcohol have
both contributed to maladaptive behaviors that had “gotten in the way of him being able
to effectively function in society.” Defendant was not in remission for his use disorders
because he had not completed any treatment. In relation to his past drug use, he had
expressed the opinion that there was nothing wrong with him.
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Antisocial personality disorder “is a pervasive pattern of maladaptive ways of
interacting with others in society.” It can manifest itself in disobeying the law and social
norms. Additionally, there is a criterion of antisocial personality disorder including lack
of remorse for behaviors that harm others. Other criteria include social isolation,
aggression, and hostility towards the personal space and boundaries of others, and
disregard for the health and safety of others.
With regard to her opinion defendant presented a substantial danger of physical
harm to others, Diaz looked at three areas in relation to his primary mental illness:
(1) defendant’s history, (2) defendant’s clinical presentation/current functioning, and (3)
risk management.
C. Defendant’s History
Diaz considered defendant’s past diagnoses, past symptoms, past compliance with
treatment, and past behavior, including his criminal history. Defendant had a pattern of
“decompensation.” He would go through treatment, but, once unsupervised, he quickly
decompensated, meaning his psychotic symptoms escalated, causing him to again pose a
risk, and he had reoffended. Similarly, in relation to defendant’s criminal history, he
would go through treatment, be released, be rearrested related to his mental illness, and
be rehospitalized. This pattern had occurred on three occasions since 1972. Defendant’s
criminal history demonstrated escalation: “He went from a vehicle theft to a battery on a
person. After that, he was treated and then subsequently re-arrested for a felony assault,
likely to produce great bodily injury, an increase in the level of violence that was
exhibited even after he was at the state hospital setting. So a good indicator of potential
dangerousness and violence is past behavior, and I took the pattern . . . shown by
[defendant], as a main contributor to his current level of dangerousness, if he were to be
released without supervision.”
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D. Clinical Presentation/Current Functioning
Defendant continued to be verbally aggressive towards others. He cursed at his
treatment team and his peers and made illogical statements that could demonstrate
disorganized thinking. His presentation also indicated hallucinations and responsiveness
to unseen stimuli, indicating ongoing psychosis. He exhibited poor decisionmaking. He
also demonstrated “poor boundaries with others,” requiring hospital staff to intervene and
redirect him so he would not harm or be harmed by others.
In February 2020, a social worker documented an incident in which defendant
took a peer’s cup and drank from it without permission. Diaz testified this demonstrated
poor decisionmaking skills and inability to make appropriate decisions about others’
personal space. This incident “increased his risk for being harmed by others, as well as
his reaction to the situation went quickly from making a poor decision to an outburst of
aggression towards another person.” Defendant’s inability to make good decisions would
place him and others at a substantial risk of physical harm due to his impulsivity in his
interactions with others and his poor perception of others’ intent.
A nurse’s note from January of 2020 indicated defendant had ongoing delusions
and paranoia, responded to auditory hallucinations, cursed at staff, stating, for example,
“ ‘kill the bitch,’ ” and referred to himself as Jesus Christ. Defendant continued to
express delusions and false beliefs. He “quickly resorts to aggressive . . . hostile
verbalizations to others that can be perceived as aggressive and potential for danger.”
In another documented incident, a social worker tried to redirect defendant when
she found him attempting to eat food from the trash. Defendant’s response was “very
aggressive and hostile.” Defendant cursed at the nurse and staff redirected him for his
safety and the safety of staff. Diaz considered this additional evidence of defendant’s
inability to make good decisions regarding health, hygiene, and grooming.
In another incident, when the social worker attempted to perform an annual
evaluation, defendant “grumble[d] under his breath . . . and his body posture was leaning
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forward with clenched hands and he ended the interaction with ‘fuck off,’ while fingers
imitated a gun and made a gesture to simulate shooting” the social worker. This was
further support for Diaz’s opinion that defendant’s interactions tended to be aggressive
and hostile and put others at risk of physical harm. Defendant “continues to have the
symptoms of misinterpreting reality, misinterpreting other people’s intent, as noted as his
paranoia.”
A therapist noted defendant had a history of aggression and that he had hit peers.
While he did not hit hard, such actions put defendant at risk of being hit back. Diaz
opined this supported the conclusion defendant had a pattern of engaging in physical
violence toward others. Defendant “tends to be impulsive, aggressive and hostile, which
could result in harm to others.” Diaz acknowledged defendant had “been free from actual
physical assault for four years.” However, she opined that “has been more of a result of
the structure of the hospital setting and the daily routine of redirection from the staff, that
prevent him from having the ability to actually, physically harm others.”
E. Risk Management
Defendant had failed to develop mitigating behaviors or skills that would reduce
his risk. Defendant had failed to create a relapse prevention plan, he had not developed a
positive relationship with, and continued to be paranoid about, his treatment team, and he
continued to insist he does not have any mental illness. Diaz characterized this as of
great concern. Diaz testified that someone like defendant, who did not believe he had a
mental illness, would be unlikely to continue medication if placed in the community.
According to the report by defendant’s treating psychiatrist, if defendant did not take his
medication, he would decompensate and “pose an increased risk of aggression and
violence.” Diaz testified that, since defendant’s 1987 commitment, he had not made any
progress in understanding his mental illness, learning how to cope, or developing any
plan.
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F. Additional/Interrelated Considerations
Diaz testified it is essential to go through core treatment to achieve remission.
However, defendant did not participate in core treatment therapies. He was not enrolled
in the relapse prevention plan group nor the core groups for awareness of mental illness
or substance abuse. A main criterion for discharge readiness is a patient’s “ability to
develop insight and awareness into their own mental illness and develop skills in order to
manage the symptoms.” Having declined participation, defendant posed “a very, very
high risk of decompensation if he were released and he would not meet criteria for a
discharge from the hospital.”
Defendant complied with his medication program in the hospital but “he requires
daily redirection to take that medication. So without the prompting of staff, it’s
unlikely.” In the past, when defendant had undergone a change or adjustment in
medication, defendant experienced increased episodes of violence and aggression
towards peers. Defendant still experiences psychosis and impairment in his daily
functioning despite his medication.
G. Diaz’s Conclusions
Diaz concluded defendant still represented a substantial danger of physical harm
to others due to his continued symptoms of his severe mental illness. Diaz further opined
defendant had serious difficulties controlling his dangerous behavior.
Explaining her opinion that defendant represented a substantial danger of physical
harm to others due to his diagnosis of schizoaffective disorder, bipolar type, Diaz
testified: “Based on my review of his progress and treatment over the past year, or the
lack thereof, [defendant] has continued to present with symptoms of psychosis. As noted
in the six different reports . . . , [defendant] has continued to exhibit experience of
auditory hallucinations; he has continued to experience paranoid ideation; he has also
demonstrated poor reality testing, in that he has not been oriented to what is going on
around him accurately; he has also demonstrated what’s called disorganized thoughts and
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disorganized speech, so when staff have attempted to interact with him, his responses do
not make sense, logically, to the questions he’s being asked. He has also presented with
maladaptive behaviors over the past year. Those have included verbal aggression
towards peers and staff. He has required daily redirection and supportive interaction by
staff in order to complete basic skills of daily living, such as his hygiene and grooming,
taking his medications and maintaining appropriate boundaries with his peers, as well as
other staff. He’s also demonstrated social isolation that has been demonstrated by his
poor attendance and engagement in his treatment. He’s been noted to only attend and
participate in treatment that includes recreation on the unit. . . . [A]ny core treatments
that include[] awareness of his mental illness education, awareness of his medication
regime, development of coping skills, development of a relapse prevention plan for
substance abuse or crises or his mental illness symptoms, he has refused to engage with
for the past year. [¶] So due to those listed behaviors and observations, he still
represents a substantial danger of physical harm to others, secondary to his severe mental
illness, which is schizoaffective disorder.”
H. Verdict and Extension of Commitment
The jury found true the petition’s allegation that defendant suffered from a mental
disease, defect, or disorder, and that, as a result thereof, he posed a substantial danger of
physical harm to others and had serious difficulty in controlling his dangerous behavior.
The trial court extended defendant’s commitment by two years to August 18, 2022.
II. DISCUSSION
Defendant asserts the judgment is not supported by substantial evidence that his
mental illness currently causes him serious difficulty controlling dangerous behavior.
According to defendant, the prosecution did not provide any evidence to support Diaz’s
“bare conclusion” that defendant had such difficulty.
Under section 1026.5, subdivision (b)(1), “[a] person may be committed beyond
the term prescribed by subdivision (a) only under the procedure set forth in this
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subdivision and only if the person has been committed under Section 1026 for a felony
and by reason of a mental disease, defect, or disorder represents a substantial danger of
physical harm to others.” “The last element also requires proof that the person has
serious difficulty controlling his dangerous behavior.” (People v. Williams (2015)
242 Cal.App.4th 861, 872 (Williams).) Defendant only challenges the sufficiency of the
evidence with regard to the element addressed to whether his mental illness currently
causes him serious difficulty controlling dangerous behavior.
“We review an order to extend commitment under section 1026.5 by applying the
substantial evidence test, examining the entire record in the light most favorable to the
order to determine whether a rational trier of fact could have found the requirements of
the statute satisfied beyond a reasonable doubt.” (Williams, supra, 242 Cal.App.4th at
p. 872.) Substantial evidence is “ ‘evidence that is reasonable, credible, and of solid
value,’ ” from which a reasonable trier of fact could have made the requisite finding
under the applicable standard of proof. (People v. Covarrubias (2016) 1 Cal.5th 838,
890.) “ ‘We presume in support of the judgment the existence of every fact the trier of
fact reasonably could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding.’ ” (Ibid.)
Diaz concluded defendant represented a substantial danger of physical harm to
others due to his continued symptoms of his severe mental illness. Diaz further expressly
opined defendant had serious difficulties controlling his dangerous behavior. As
defendant notes, “expert medical opinion evidence that is based upon a ‘ “guess, surmise
or conjecture, rather than relevant, probative facts, cannot constitute substantial
evidence.” ’ ” (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.) Here, we
conclude relevant, probative facts supported Diaz’s conclusion.
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Defendant’s primary diagnosis, schizoaffective disorder, bipolar type, is a
psychotic disorder. “Psychosis is the inability to correctly interpret what’s happening in
reality.” Defendant has a history of experiencing auditory command hallucinations
including voices telling him to harm others and that people are “after him.” He currently
demonstrates signs of hallucinations and responsiveness to unseen stimuli, indicating his
ongoing psychosis. He has poor reality testing and is not accurately orientated to what
was going on around him. His bipolar disorder causes him to exhibit hostile and
aggressive behavior towards others. He exhibited maladaptive behaviors including
verbal aggression.
Defendant’s use of cannabis and alcohol have contributed to maladaptive
behaviors that had “gotten in the way of him being able to effectively function in
society.” Defendant has not completed any treatment relative to his use disorders.
Antisocial personality disorder, which defendant has, can manifest itself in
disobeying the law and social norms, experiencing lack of remorse for behaviors that
harm others, aggression and hostility, and disregard for the health and safety of others.
Defendant shows poor decision making and inability to make appropriate
decisions about the personal space of others. His inability to make good decisions would
put him, and others, at a substantial risk of physical harm due to his impulsivity and his
poor perception of others’ intent.
A nurse’s note indicated defendant had ongoing delusions, false beliefs, and
paranoia, responded to auditory hallucinations, cursed at staff stating, “ ‘kill the bitch,’ ”
and referred to himself as Jesus Christ. Defendant “continues to have the symptoms of
misinterpreting reality, misinterpreting other people’s intent.” He also had a history of
aggression and he hit peers, although not hard. Defendant is impulsive, aggressive, and
hostile.
A main criterion for discharge readiness is a patient’s “ability to develop insight
and awareness into their own mental illness and develop skills in order to manage the
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symptoms.” Defendant failed to develop any sort of relapse plan and continues to insist
he does not have any mental illness.
According to Diaz, someone like defendant, who does not believe he has a mental
illness, would be unlikely to continue medication if placed in the community. According
to the report by defendant’s treating psychiatrist, if defendant did not take his medication,
he would decompensate and “pose an increased risk of aggression and violence.” When
defendant has undergone a change or adjustment in medication, he experienced increased
episodes of violence and aggression towards peers.
It is essential to go through core treatment to achieve remission. Defendant did
not participate in core treatment therapies. Having declined participation, defendant
posed a “very high risk of decompensation if he were released.”
We conclude the foregoing constitutes substantial evidence amply demonstrating
defendant’s mental illness currently causes him serious difficulty controlling dangerous
behavior. Diaz testified as an expert to that very fact. (Cf. Williams, supra,
242 Cal.App.4th at p. 872 [“A single psychiatric opinion that a person is dangerous
because of a mental disorder constitutes substantial evidence to justify the extension of
commitment”].) Moreover, based on the evidence marshaled ante, the jury could
reasonably infer that defendant’s mental illness, psychosis, command hallucinations,
paranoia, misinterpretations of reality and the intentions of others, clear patterns of
decompensating, impulsivity and aggression, denial that he has any mental illness, and
the likelihood he would not comply with his medication program established defendant’s
mental illness currently causes him serious difficulty in controlling dangerous behavior.
Defendant’s history of hitting peers demonstrated serious difficulty controlling dangerous
behavior. Moreover, although defendant had “been free from actual physical assault for
four years,” this “has been more of a result of the structure of the hospital setting and the
daily routine of redirection from the staff, that prevent him from having the ability to
actually, physically harm others.” Defendant’s reaction to a social worker attempting to
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conduct an annual evaluation, clenching his hands, telling her to “ ‘fuck off,’ ” and
making a hand gesture like shooting a gun at her also illustrates his inability to control
dangerous behavior. Defendant has no plan for dealing with his mental illness,
psychosis, substance abuse, hostility, and aggression. Substantial evidence supports the
jury’s verdict.
Defendant attempts to distinguish cases in which substantial evidence supported
the determination that the defendant had serious difficulty controlling dangerous
behavior. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159; People v. Bowers
(2006) 145 Cal.App.4th 870.) However, for the most part, we find the circumstances in
those cases more analogous to defendant’s circumstances than distinguishable. Each case
obviously involves facts not present here. (Zapisek, supra, at p. 1166 [the defendant
taped over hospital alarm sensors needed for medical emergencies because he believed he
was under surveillance; he also experienced delusions of the same type as those he
previously experienced when he assaulted a stranger with a knife believing the stranger
was the devil]; Bowers, supra, at p. 879 [Bowers told doctors she was able to resist
command hallucinations, but “she was not always able to do so, as evidenced by her
suicide attempt two months before her interview”].) However, as the People point out,
these cases do not establish a minimum showing required to support a conclusion that a
patient has serious difficulty controlling dangerous behavior. They establish no more
than that, in those cases, substantial evidence supported the findings of the triers of fact.
Defendant also relies on People v. Galindo (2006) 142 Cal.App.4th 531.
However, the proceedings in the trial court in Galindo predated the recognition of the
requirement that “section 1026.5, subdivision (b)(1), must be interpreted as requiring
proof that a person under commitment has serious difficulty in controlling dangerous
behavior.” (Id. at p. 536.) Thus, “neither the parties, nor the witnesses, nor the court had
the opportunity to consider the control issue.” (Id. at p. 539) Here, Diaz expressly
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testified defendant had serious difficulties controlling his dangerous behavior, an opinion
we have found to be supported by substantial evidence.
III. DISPOSITION
The order extending defendant’s commitment is affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
DUARTE, J.
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