Filed 5/19/23 P. v. Markley CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080458
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD209934)
MARY JOANNE MARKLEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Reversed.
Paul R. Kraus, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal, James M. Toohey and Randall D. Einhorn, Deputy Attorneys
General for Plaintiff and Respondent.
Seventy-year-old Mary Joanne Markley has remained committed to the
state hospital system since 2009 when she was found not guilty by reason of
insanity (NGI) on charges of felony stalking, disobeying a court order, and
contempt of court. In the intervening 14 years, the People obtained
numerous two-year extensions pursuant to Penal Code section 1026.5,
subdivision (b), including an order extending her commitment to August 10,
2022. That order is the subject of this appeal.1 Markley contends there is
insufficient evidence to support the court’s finding that due to her mental
disorder she represents a substantial danger of physical harm to others. She
further argues that, should we reverse for this reason, double jeopardy bars
any subsequent extensions of her commitment. We agree with both points
and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offenses2
Markley first met Richard H. in 1998 when she visited his antiques
store as a customer. In June 1999, they had lunch together. To Richard’s
surprise, Markley explained that she wanted to marry him, have one child,
and live in his house. He responded that he was flattered but did not know
her well enough to get married. During their second date two months later,
Markley maintained she and Richard had met previously and that she had
been introduced to his parents, none of which was true. At this point,
1 All further statutory references are to the Penal Code unless otherwise
noted.
2 The factual background regarding the offenses underlying Markley’s
commitment is taken from the State Department of State Hospitals at
Patton’s report (Patton State Hospital or Patton).
2
Richard believed there was something wrong with Markley and told her he no
longer wanted to see her.
Markley, however, continued stopping by Richard’s antiques store.
During one of these visits, Markley told Richard to stop calling her. When he
responded that he was not calling her, Markley said, “You’re sending me
messages.” Over time, Markley became more demanding and agitated. On
one occasion, she purportedly told a store employee, “I could just kill
[Richard].”
By November 1999, a three-year restraining order was entered against
Markley, but in less than a year she violated it several times. She was
arrested the same month the restraining order was issued for calling
Richard’s cellphone. Five months later, she was again arrested after visiting
Richard’s home and telling him she loved him. Two months after her release
from jail, she visited Richard’s store twice and confronted employees about
Richard’s supposed relationship with her.
From September to December 2001, Markley continued calling Richard
and visiting his home. Ultimately, she was arrested again and later
imprisoned. But the day after her release in March 2004, Markley walked
into the master bedroom of Richard’s home, which had been left unlocked for
construction work. Convicted of stalking, Markley was sentenced to another
four years in prison. She was released in August 2006. Five days later
Markley visited Richard’s store, leading to her arrest and an additional year
in custody.
B. The Initial Commitment and Prior Extensions
In August 2007, a few days after her latest release from custody,
Markley was again arrested for visiting Richard’s San Diego home and
speaking with his daughter. Charged with felony stalking (§ 646.9, subd. (a)),
3
disobeying a court order (§ 273.6, subd. (a)), and contempt of court (§ 166,
subd. (a)), the court found her not guilty by reason of insanity. She was
committed to Patton State Hospital pursuant to section 1026. The district
attorney later utilized the procedures in section 1026.5, subdivision (b),3 to
obtain three two-year extensions of Markley’s commitment to August 10,
2020.
C. The Current Extended Commitment Trial
In February 2020, the district attorney petitioned the superior court for
another two-year extension of Markley’s civil commitment to August 10, 2022
(the Petition). Because Markley asked to represent herself, the court
appointed two psychologists to evaluate whether she was competent to do so.
Both psychologists concluded she was, and the court granted her request.
The court then conducted a bench trial on the Petition. The People
called three expert witnesses (Drs. Wendy Ng, Mario Souza, and Jenna
Tomei), while Markley called four (Drs. Azhar Abdullah, Daniel Rubin, Alma
Carpio, and Valerie Rice).
1. The People’s Experts
a. Dr. Wendy Ng
The People’s primary witness was Dr. Wendy Ng, a senior psychologist
and forensic specialist at Patton. She interviewed Markley on at least one
occasion and provided much of the background information on her condition.
Ng agreed with Markley’s diagnoses—a delusional disorder (erotomanic and
somatic type) and narcissistic personality disorder. Her delusional disorder
3 Section 1026.5, subdivision (b) provides that a person who has pleaded
NGI may be committed beyond the maximum term of commitment if the
person, by reason of a mental disease, defect, or disorder, presently
represents a substantial danger of physical harm to others.
4
is characterized as “erotomanic” because of her fixed, incorrect belief that
Richard is in love with her.4 Markley’s narcissistic personality disorder
diagnosis reflects an exaggerated feeling of self-importance, a sense of self-
entitlement, and a lack of empathy for Richard.
Markley is prescribed three milligrams of Risperdal for her psychotic
symptoms and is medication compliant. Dr. Ng noted that Markley required
“a great deal of persuasion” from her treatment team before agreeing to
increase her dosage from one milligram to three milligrams. Ng did not know
how long Markley had been taking the three milligram dosage.
Dr. Ng described Markley’s treatment history. She began her
treatment at Patton in August 2009. In September 2015, she was transferred
to a locked step-down facility, Sylmar Health & Rehabilitation Center
(Sylmar), with the goal of eventually transitioning her to outpatient
treatment. However, around February 2018, she interpreted her
conversation with a Sylmar cafeteria worker as evidence that Richard was
attempting to contact her. Although her delusional beliefs continued for a
few months, she hid them from her Sylmar treatment team and began calling
Richard. Markley was sent back to Patton after Richard notified the district
attorney. When Ng asked about the situation during her interview, Markley
explained that she had felt a physical pressure to call Richard, and she could
not control those feelings even though she wanted to.
The only arguably threatening statement Markley ever made occurred
decades ago when she told a third party that she “could just kill [Richard].”
She had never been physically aggressive with Richard or with anyone else.
4 Her delusional disorder is “somatic” because of her fixed, incorrect
belief that she is infected with a rare South American parasite—a belief that
she has maintained despite several medical evaluations showing no evidence
of an infection.
5
Once years ago, she became frustrated and was described as “agitated” when
she showed up to Richard’s store and was unable to find him. During this
time, Markley continued to contact store employees and Richard’s family
members, despite repeatedly being told that Richard was not interested in
her and that he had a restraining order against her. Patton staff described
Markley as becoming easily agitated when her needs were not immediately
met, but this agitation had never escalated to physical violence.
To evaluate Markley’s risk of violence, Dr. Ng used the Historical
Clinical and Risk Management 20 (HCR-20) framework, a structured clinical
judgment tool. (See generally Douglas et al., Historical-Clinical-Risk
Management-20 (HCR-20v3): Development and Overview (2014) 13 Intern.
Assn. Forensic Mental Health Svcs. 93.) The HCR-20 is used to predict the
risk of violence incorporating “20 factors that are considered one of the gold
standard[s] in . . . risk assessments.” Ng explained that in using the HCR-20,
“We check off factors that are relevant to [the individual] that are either
absent, potentially present, or present . . . [¶] [a]nd after that, we evaluate
whether or not a certain risk factor is highly relevant to someone’s risk,
moderately relevant, or at low risk.” The historical factors are not
changeable and include history of violence, antisocial behaviors, substance
use, major mental illness, personality disorder, and trauma. When asked if
she actually performed an HCR-20 evaluation in Markley’s case or “use[d]
more the structure of it,” Ng responded that the team “used the structure of it
to guide our evaluation and risk assessment.”
Using the HRC-20 to “guide” her evaluation, Dr. Ng concluded that
Markley posed “a substantial danger of physical harm to others” and that
based on Markley’s recent revocation from Sylmar, she had previously and
continues to have “serious difficulties controlling her behavior.” Ng found
6
Markley’s poor insight into mental illness and poor response to supervision
and interventions to be relevant historical factors under the HCR-20.
As to the lack of insight factor, Dr. Ng testified that Markley does not
fully understand the seriousness of her offending behavior or the risk of her
symptoms reemerging. Markley, in Ng’s view, had a general tendency to
minimize the seriousness of her offenses and was unable to fully grasp the
importance of ongoing treatment. According to Ng, it was significant
Markley still believed that because Richard waited three months to report
the Sylmar incident, rather than disclosing it immediately, her actions were
“not as serious.” Ng opined that Markley’s narcissistic personality disorder
and sense of entitlement are a barrier to treatment because Markley
perceives herself as higher functioning and more knowledgeable than other
patients and believes that she should be teaching others rather than being
treated herself.
As part of her evaluation, Dr. Ng also reviewed Markley’s prior
“stalking risk assessment” from approximately 2012. This assessment by
another doctor found that Markley’s risk for relapse of stalking behavior
upon release was high, but that the risk her stalking behavior would escalate
into physical violence was low. Ng agreed with both conclusions “because Ms.
Markley has not physically acted out violently against her victim . . . .” The
People asked Ng if there were some factors that, if they surfaced, would
increase Markley’s risk of physical violence, and Ng responded, “Yes.
Absolutely.” She added that “without adequate supervision and support,
there is a risk that [Markley’s] false beliefs and symptoms will
reemerge . . . and there is the potential for it to escalate into something more
serious.”
7
The People asked Dr. Ng to justify her overall opinion that Markley
posed a substantial danger of physical harm to others despite Ng’s agreement
with the stalking risk assessment’s conclusion that Markley had a low risk of
her stalking behavior escalating to physical violence. Ng responded that
“there is a high risk” Markley’s stalking behavior can escalate into physical
harm when considering her past history of making verbal threats against
Richard; repeatedly showing up at Richard’s home; harassing Richard; and
her “still lacking” insight into her mental illness. Ng was also concerned that
Markley did not understand the seriousness of being released into the same
community—San Diego—where Richard may reside.
The court asked whether Markley had a low, medium, or high risk of
causing physical harm to another should she be released. Dr. Ng responded,
“That can be very difficult to determine because of the time frame at which
we complete the assessment, it is very difficult to provide that rate. [¶] If it
is in the short term, her risk of physical harm to another can be low. It can
be medium. [¶] However, if her mental status, if there is a change without
the adequate support supervision, medication management, it can change
from low all the way up to high.”
b. Dr. Mario Souza
The People next called Dr. Mario Souza, a senior psychologist at Patton
in the forensic evaluation department who interviewed Markley once. Souza
testified that Markley was not yet suitable for outpatient community
supervision and that, even if released to supervised outpatient treatment, she
would “pose[ ] a risk of physical harm to others.” He explained that, despite
Markley’s lack of prior violence, stalking is a “unique type of violence,” and
“stalking behavior is not violence until it is.” The consistency and intensity of
Markley’s delusional obsession with Richard, despite years of hospitalization
8
and incarceration, raised concerns for Souza about how Markley would
respond to “active rejection” from Richard. Souza further explained that for
the HCR-20, “violence” is defined as “the victim having intense fear for their
physical well-being or intense psychological fear,” and stalking behavior
contributes to violence in the community “quite often . . . if there is no
intervention prior to that one moment of violence.”
Upon further questioning by the court, Dr. Souza explained that the
HCR-20 did not produce a recidivism prediction but instead used
“empirically-supported risk factors” to determine someone’s violence risk.
Souza did not use any other tools besides the HCR-20 in evaluating Markley’s
risk of violence.
Dr. Souza did not know the size of the initial sample group used to
develop the HCR-20 or what percentage of the sample group consisted of
persons found not guilty of stalking by reason of insanity. When asked what
percentage of persistent stalkers like Markley escalate to physically harming
a victim, Souza responded that it “really depends on many aspects of the
crime and the individuals” and that stalking behavior is more commonly seen
in males, which is more widely studied. According to Souza, the duration and
intensity of stalking behavior and the insight of the stalker into her behavior
affect the likelihood that stalking behavior will become violent. “Intensity”
can be measured by the number of legal interventions that have occurred
even where the stalking continues.
Dr. Souza was particularly concerned by Markley’s lack of insight into
what she needs to do to manage her risk. He explained that Markley had a
significant history of failure on conditional release and upon release from
prison. He worried that Markley did not share her reemerging delusions
with treatment staff at Sylmar, where she was under a high level of
9
supervision and had to participate in daily treatment. Souza also noted that
when asked what Markley believed would be her greatest challenges if
discharged to a lower level of care, she did not identify her potential for
reemerging delusional beliefs, psychiatric decompensation due to the
stressors of community living, or potential feelings of loneliness or isolation.
Souza was also troubled by her lack of concern about being discharged to the
same city where Richard previously lived.
c. Dr. Jenna Tomei
As its final witness, the People called Dr. Jenna Tomei, a senior
psychologist at Patton in the forensic evaluation department who interviewed
Markley on two occasions. Tomei opined that as of her June 2021 report,
Markley posed a “substantial risk of harm to others” if released because of
Markley’s risk factors. Markley did not have a history of violence, which is a
“big” risk factor of future violence. But she had other risk factors associated
with an increased risk for violent behavior, including her lacking insight, still
exhibiting symptoms of her mental disorder, and her “problematic” release
plan.
As to Markley’s lacking insight, Dr. Tomei believed she had made
progress and had “some understanding” of her delusional disorder, but she
did not understand her narcissistic personality disorder and its role. Markley
was unable to identify some of the stressors she might encounter in the
community and how she might manage those appropriately. When Tomei
asked Markley how participating in a program in San Diego might be a
“trigger” for her because of Richard being from the same area, she responded
that it would “not be an issue,” and she would not discuss how she might
manage the situation if it did become a problem.
10
Dr. Tomei explained that if Markley were released and stopped
participating in her treatment, she could stop taking her medication, start
experiencing more symptoms, and start feeling the desire to reach out to
Richard. If Richard did not reciprocate, Markley’s delusions “could
potentially progress to aggression and/or violence.”
2. Markley’s Experts
a. Dr. Azhar Abdullah
Markley called her Patton treating psychiatrist, Dr. Azhar Abdullah.
Abdullah’s primary duty is to make sure Markley is on the right medication
with no side effects. Abdullah denied having seen anything indicating that
Markley could become violent and recommended that she be discharged to
the community.
On cross-examination, Dr. Abdullah testified that Markley was “cured
from delusion now” or that it was in remission. And Abdullah believed
Markley would respond to treatment in the community “fine,” despite her
personality disorder. Abdullah attributed the remission to Markley’s insight
into her problem since approximately mid-2020 or mid-2021—that she
acknowledged her medication was effective and would continue taking it.
Dr. Abdullah explained that she changed Markley’s Risperdal dose
from one to three milligrams, which has been her dose for the last two years.
According to Abdullah, erotomanic delusions “decrease[ ] with increasing
age,” and Markley’s behavior the last two years indicated that she is more
mature. Abdullah explained that Markley was initially resistant to
increasing her Risperdal to three milligrams because she had been reading
about the medication and was concerned about side effects.
11
Dr. Abdullah cosigned May 1, 2020 and November 3, 2020 reports for
Markley agreeing that she was not ready for outpatient treatment. Abdullah
clarified that she did not agree with the reports’ recommendations but that
generally, Patton psychiatrists sign the reports and cannot reject them.
The court conducted further questioning of Dr. Abdullah, who
estimated she interacted with Markley about three to four times a month for
more than ten minutes at a time. Abdullah testified that for the last two
years, she did not hear anything “abnormal” about Markley from her
treatment team.
Dr. Abdullah noted that, in 2019, Markley had a seizure and was
treated with Keppra, an antiepileptic. She theorized that because
antiepileptics are mood stabilizers, the medication further helps Markley
decrease impulsivity and stabilize her mood.
b. Dr. Daniel Rubin
Markley called Dr. Daniel Rubin, the intake coordinator for Senior
Impact and a licensed psychologist. Senior Impact approved Markley for its
mental health case management program in San Diego because it felt she
was an appropriate candidate for the program’s services. Rubin testified that
she informed Senior Impact about her hospitalization for stalking a victim,
whom she falsely believed had a romantic connection with her. Markley
indicated to Senior Impact that these had been delusional thoughts, that the
medication she was taking controlled the delusions, and that she was stable
on the medication. Rubin was not aware of Markley’s prior delusions at
Sylmar in 2018. Although he had worked with other individuals who had
delusional disorders, he did not recall if any of those individuals had stalking
behaviors.
12
c. Dr. Alma Carpio
Markley next called Dr. Alma Carpio, a psychologist who interviewed
Markley for approximately three hours. Carpio reviewed Markley’s records
from December 2020 through July 2021 and found no evidence of any overt
symptoms of psychosis or delusions, nor any evidence of dangerousness. She
concluded Markley did not meet the criteria for extension of her commitment.
On cross-examination, Dr. Carpio admitted that in her prior evaluation
in September 2020, she concluded Markley met the criteria for extension.
Carpio identified the recent increase in Markley’s medication dosage as the
basis for her prior opinion. Markley had only recently agreed to increasing
her medication to a therapeutic dose in approximately March 2020, and as of
September 2020, Carpio did not feel enough time had passed to conclude she
was in remission. She preferred to see at least a year of a medication change
and stability before concluding that a patient was in remission and would
consistently take the medication.
Upon further questioning by the court, Dr. Carpio explained the bases
for his present conclusion that Markley was no longer a substantial danger to
others: (1) her symptoms of delusional disorder had been in remission for at
least 16 months; (2) for at least this period, she had no symptoms of
assaultive behavior, aggressiveness, threats, or contacts with her victim;
(3) there had not been any further documentation of any somatic delusions;
and (4) she had been compliant with taking her medication since March 2020.
d. Dr. Valerie Rice
Markley next called Dr. Valerie Rice, a psychologist with whom she had
met approximately three times. As of her August 2021 report and the date of
trial, Rice concluded Markley did not pose a substantial danger to others if
released into the community.
13
On cross-examination, Dr. Rice admitted authoring a prior report in
September 2020 in which she believed Markley still met the criteria for re-
extension. She explained that, back in September 2020, Markley had a fairly
recent medication change and had expressed some resistance to increasing
her dosage. Rice had been concerned that, without being appropriately
medicated, Markley’s erotomanic delusions might not be under control and
that, if released, she would be at a higher risk of stalking activity similar to
her prior offense. She characterized the recent medication change as being
“really [her] only concern” at the time of her September 2020 report.
For the most recent August 2021 report, Dr. Rice reviewed Markley’s
records and did not believe Markley’s narcissistic personality disorder would
substantially interfere with her progress. According to Rice, Markley
complied with treatment and was doing pretty much everything she needed
to do, and she saw no evidence that Markley was noncompliant with taking
her medication. Although Rice acknowledged that Markley would probably
always have her personality disorder, she did not think it would interfere
with Markley’s treatment or make Markley dangerous if released into
society.
3. Court’s Ruling
At the conclusion of the testimony, the court issued its oral ruling
granting the Petition extending Markley’s commitment to August 10, 2022.
The court found that the People proved Markley has a mental disorder,
and that as a result of that mental disorder, she poses a substantial danger of
physical harm to others and has “serious difficulty controlling her behavior.”
According to the court, the case was unusual because there was no evidence
Markley ever physically harmed Richard or anyone else. It noted “the one
alarming comment, ‘I could just kill him,’ from over a decade ago,” but went
14
on to explain that “more than anything physically harmful Markley has done,
the court is persuaded by what has been described as the intensity and
chronicity of the stalking behavior”—that despite restraining orders, multiple
arrests, convictions, and incarcerations, she continued to contact Richard,
even from a controlled, locked hospital setting at Sylmar.
The court credited Dr. Souza’s testimony “that stalking is nonviolent
until it isn’t.” In the court’s view, because Drs. Carpio and Rice found
Markley met the criteria for extension back in September 2020, they had
conceded Markley’s mental disorder, if untreated, “renders her dangerous.”
The court characterized this concession as meaning that Carpio and Rice
agreed with Drs. Ng, Souza, and Tomei that Markley’s mental condition
creates a substantial danger of physical harm.
The court next considered and rejected Markley’s affirmative defense
that she no longer poses a substantial danger of physical harm because
(1) she is taking medication that controls her mental disorder and (2) she will
continue to take that medication in an unsupervised environment. According
to the court, Markley failed to carry her burden to demonstrate that she
would continue to take her medication.
Markley appealed.
D. Subsequent Commitment Extension Proceedings
On April 4, 2022, the People filed another petition (Second Petition) to
extend Markley’s commitment from August 10, 2022 to August 10, 2024. On
July 15, 2022—while Markley’s appeal of the prior commitment extension to
August 10, 2022 remained pending—the trial court heard argument on the
15
People’s Second Petition.5 Markley, who was represented by counsel, waived
her right to a jury trial and agreed to the two-year extension of her
commitment. The trial court then granted the Second Petition and extended
Markley’s commitment to August 10, 2024.
DISCUSSION
We begin by addressing the threshold question whether Markley’s
appeal of the 2020 recommitment order is mooted by the court’s subsequent
2022 recommitment order. Concluding that the appeal is not moot, we move
on to consider Markley’s substantive contentions that (1) substantial
evidence did not support the 2020 recommitment order, and (2) double
jeopardy principles preclude any reliance on the later 2022 order.
A. Mootness
Because Markley’s appeal concerns a commitment extension order that
expired on August 10, 2022, and her commitment has since been extended to
August 10, 2024, we must first consider whether her appeal is moot. She
contends, and the People concede, that her appeal is still justiciable. We
agree.
All commitment proceedings following a defendant’s initial
commitment for NGI are recommitments. (§ 1026.5, subd. (b)(1).) Thus, if we
conclude there was insufficient evidence to support Markley’s recommitment
to August 10, 2022, then the trial court lacked jurisdiction to issue her
subsequent recommitment to August 10, 2024. In other words, because there
5 On November 10, 2022, we granted the People’s motion to augment the
record on appeal with these two documents. We then granted Markley’s
request that the parties provide supplemental briefing addressing the
relevance of those documents.
16
cannot be a valid extension of an invalid recommitment, Markley’s appeal of
her now-expired recommitment to August 10, 2022 is not moot. (Cf. People v.
Rish (2008) 163 Cal.App.4th 1370, 1380 [“[A] case becomes moot when a court
ruling can have no practical effect or cannot provide the parties with effective
relief.”].)
Courts have followed this reasoning in analogous cases involving
expired commitment orders for mentally disordered offenders (MDOs)
(§ 2970). (See e.g., People v. Fernandez (1999) 70 Cal.App.4th 117, 134–135
[“[T]he appeal is not moot because our decision may still affect the lower
court’s right to continue jurisdiction under the original commitment as well
as the recommitment.”]; People v. J.S. (2014) 229 Cal.App.4th 163, 174 [“[I]f
the initial commitment period expires before the timely filed petition is heard
by the court, the petition is not rendered moot unless and until the offender’s
involuntary treatment is discontinued”].)6
Moreover, we agree with Markley that, if we reverse the recommitment
order to August 10, 2022 as unsupported by substantial evidence, then double
jeopardy would apply to bar any subsequent extension of her commitment.
(See People v. Cheatham (2022) 82 Cal.App.5th 782, 797–800 (Cheatham).)
6 We agree with the parties that People v. Redus (2020) 54 Cal.App.5th
998, 1009 (Redus) is not persuasive. Redus reasoned that the defendant’s
appeal from an expired recommitment order under section 1026.5 was moot
because it concerned the validity of a recommitment order, while the MDO
cases, including Fernandez and J.S., instead concerned the validity of an
initial commitment order. (Redus, at p. 1009.) But this is a distinction
without a difference for mootness purposes. Each recommitment proceeding
under section 1026.5 independently assesses each committee’s current
dangerousness. (People v. Kipp (1986) 187 Cal.App.3d 748, 751.) And as
Markley posits, there cannot be a valid extension of an invalid commitment,
regardless of whether that invalid commitment was an initial one or a
recommitment.
17
Although the People contend that double jeopardy does not apply to section
1026.5 based on the reasoning of People v. Superior Court (Williams) (1991)
233 Cal.App.3d 477, 481 and Hudec v. Superior Court (2015) 60 Cal.4th 815
(Hudec), we do not find this line of authorities persuasive on this issue. In
Cheatham, our colleagues in the Third Appellate District recently considered
and rejected these very arguments premised on Williams and Hudec,
concluding instead that double jeopardy applies to preclude retrial where an
NGI recommitment order is reversed for insufficient evidence. Because we
find the analysis in Cheatham to be thoughtful and well-supported, we adopt
its reasoning here. Accordingly, we turn to the merits of Markley’s appeal.
B. Sufficiency of the Evidence
Markley contends the court’s order extending her commitment to
August 10, 2022 under section 1026.5, subdivision (b) must be reversed
because there is insufficient evidence supporting the court’s finding that due
to her mental disorder she poses a substantial danger of physical harm to
others. We agree.7
Under section 1026.5, a person who is found NGI may be committed to
a state hospital for a period no longer than the maximum prison sentence for
his or her offenses. (§§ 1026, 1026.5, subd. (a)(1).) This commitment may be
extended in up to two-year increments if, because “of a mental disease, defect,
or disorder, [the person] represents a substantial danger of physical harm to
others.” (§ 1026.5, subd. (b)(1), (8).) To establish the substantial danger of
physical harm element, the prosecution must prove beyond a reasonable
7 “[W]e review the entire record in the light most favorable to the
extension order to determine whether any rational trier of fact could have
found the requirements of section 1026.5(b)(1) beyond a reasonable doubt.”
(People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 (Zapisek).)
18
doubt that the person has, “ ‘at the very least, serious difficulty controlling
his [or her] potentially dangerous behavior.’ ” (Redus, supra, 54 Cal.App.5th
at p. 1010, quoting Zapisek, supra, 147 Cal.App.4th at p. 1165; People v.
Williams (2015) 242 Cal.App.4th 861, 872; § 1026.5, subd. (b)(7).)
Here, expert testimony established, and the parties agree, that
Markley has a mental disorder. Specifically, they agree that, before
Markley’s dosage increase to three milligrams of Risperdal, she struggled to
manage her symptoms—including her erotomanic delusions that led her to
contact and stalk Richard. And the parties further agree that if Markley
were to stop taking her medication, her symptoms would likely recur. For
purposes of this appeal, then, we assume there is a substantial risk Markley
would stop taking her medication upon release and that her symptoms—
including her delusions—would likely reemerge. Thus, we consider whether
any reasonable trier of fact could find beyond a reasonable doubt that
Markley, without the benefit of her medication, would pose a substantial
danger of physical harm to others because of her mental disorder.
As we have already noted, the People’s expert witnesses concluded that
Markley would do so. To a person they reasoned that if Markley discontinued
her medication and treatment, her delusions would likely rematerialize and
she would engage in stalking that could potentially escalate into physical
violence, particularly when faced with active rejection by Richard. As
evidence that Markley had and continues to have “serious difficulties
controlling her behavior,” Dr. Ng emphasized the Sylmar incident during
which Markley repeatedly called Richard because of her delusions. The
People’s other experts appeared to share this sentiment.
But difficulty controlling one’s delusional behavior caused by a mental
health disorder was not the operative question. The question before the court
19
was whether Markley posed a substantial danger of physical harm to others.
(§ 1026.5, subd. (b)(1); see, e.g., Cheatham, supra, 82 Cal.App.5th at p. 790
[psychologist’s testimony that defendant “ ‘has serious difficulty controlling
his behaviors’ generally, not that he had serious difficulty controlling his
dangerous behavior,” was insufficient evidence for section 1026.5].) Without
evidence that Markley ever presented a physical danger to Richard in the
first place, the record did not support a nonspeculative finding of
dangerousness. Here, the record shows that 70-year-old Markley has never
engaged in physically violent behavior—whether during the late 1990s when
the stalking began; in the face of repeated rejections by Richard and his
family following multiple arrests, a restraining order, probation, and prison
time; or at any point during her more than decade-long commitment at
Patton. Nor is there any evidence that Markley has ever been physically
aggressive with Richard or anyone else over this nearly 25-year period,
regardless of her medication treatment status and relapses, and in spite of
the number of times Richard has rejected her.
Not a single expert was aware of any instances during which Markley
had behaved violently or aggressively. Indeed, as the court acknowledged,
the only arguable threat of harm Markley ever made occurred in 1999, when
she purportedly told one of Richard’s employees that she “could just kill
[Richard].” Without more, this statement from decades ago discounted by the
trial court is not substantial evidence that Markley represents the requisite
risk of inflicting physical harm to justify her recommitment. (See People v.
Johnson (1980) 26 Cal.3d 557, 578 [Evidence is “substantial” when it is
“reasonable, credible, and of solid value.”]; People v. Morrison (2004) 34
Cal.4th 698, 711 [evidence that “leads only to speculative inferences” is
irrelevant evidence].)
20
Although the People emphasize their experts’ apparent conclusion that
some individuals who experience delusions and have a stalking history like
Markley’s can have serious difficulty controlling their dangerous behavior if
their delusions recur, these experts failed to adequately link that conclusion
to Markley.8 Instead, the experts’ reasoning centered around various factors
indicating why it was medically necessary for Markley to continue her
treatment, not on the circumstances supporting the legal conclusion that she
was likely to inflict physical harm on others. For example, the experts voiced
concerns about Markley’s ongoing “lack of insight” into her mental disorder,
the fact that her narcissistic personality disorder caused her to believe she
was more knowledgeable than others and was a barrier to her mental health
treatment, and that she still did not appreciate the challenges posed by her
release to the same city as Richard. We accept that Markley is not cured of
her mental disorder and that, from a medical perspective, she requires
additional treatment before being released. Importantly, however, the
standard of care for treating Markley and whether she requires further
medical intervention is not the same question as whether, under the law
governing section 1026.5, her commitment must be extended.
Dr. Souza’s testimony does not change our conclusion. Although the
trial court appears to have found compelling Souza’s opinion that “stalking
behavior is not violence until it is,” the fact that stalking has the potential to
become violent is not substantial evidence that Markley poses a substantial
8 We further observe that some of the People’s key evidence was
seemingly contradictory. Dr. Ng, for example, struggled to explain how she
could agree with her colleague’s conclusion using a different stalking risk
assessment that Markley had a low risk of her stalking behavior escalating
into physical violence, while also simultaneously concluding that, using the
HCR-20 as a “guide,” there was a high risk Markley’s stalking behavior could
escalate into physical violence.
21
danger of physical harm to others, particularly absent any indication she has
a violent history. A similar problem is presented by Souza’s testimony that
the “intensity and chronicity” of Markley’s past stalking behavior and her low
level of insight are factors increasing the risk that her stalking could become
violent. Although an increase in this risk is relevant, the question becomes to
what extent does that risk increase? As Markley contends, testimony that
these factors generally increase the risk of violence, without any suggestion
as to the magnitude of that risk increase, does not automatically render the
resulting danger “substantial” within the meaning of section 1026.5.
Moreover, Dr. Souza admitted that the HCR-20 defines “violence” as a
victim’s intense fear for their physical well-being or intense psychological
fear. But this definition is problematic. We have found no authority to
suggest that “a substantial danger of physical harm” under section 1026.5,
subdivision (b)(1) was meant to encompass the risk of causing emotional
distress to the victim.9 Because it is the job of the Legislature, not medical
experts, to define the risk required for recommitment, the experts’
conclusions that Markley stands at high or increased risk of “violence” based
on this aspect of the HCR-20 is not substantial evidence supporting the
recommitment decision.10
9 Significantly, the stalking statute (§ 646.9) is not limited to express or
implied threats to the victim’s physical safety. (People v. Borrelli (2000) 77
Cal.App.4th 703, 719.)
10 Our dissenting colleague agrees that “a substantial danger of physical
harm” under section 1026.5, subdivision (b)(1) does not include psychological
fear as described by Dr. Souza, yet “do[es] not read the relevant parts of
Dr. Souza’s testimony to depend on that [improper] definition.” (Dis. opn.,
post, at p. 5.) But to the extent Souza’s testimony is at all ambiguous, it was
the prosecution’s burden to clarify that their expert’s conclusion was based on
the proper standard rather than an improper one.
22
The People further contend, and we agree, that a single psychiatric
opinion that an individual is dangerous because of a mental disorder
constitutes substantial evidence to support an extension of the defendant’s
commitment under section 1026.5. (Zapisek, supra, 242 Cal.App.4th at
p. 1165.) But “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.) That is precisely the problem here. As we have discussed, the
opinions of the People’s medical experts were not grounded in relevant facts
probative of Markley’s risk under section 1026.5. And the experts failed to
connect their observation—that individuals with Markley’s mental health
disorder and stalking history can have a high or increased risk of violence—to
their ultimate conclusion—that Markley represented such a danger. Rather,
they merely parroted the legal standard of section 1026.5 that, due to her
mental disorder, she posed a substantial danger of physical harm to others.
Our conclusion is strongly supported by the Third Appellate District’s
opinion in Cheatham, supra, 82 Cal.App.5th 782. After Cheatham
hallucinated voices saying that police planned to shoot him, he fled criminal
custody and resisted an officer. Found NGI, he was committed to a state
hospital. At a later trial on a section 1026.5 petition to extend Cheatham’s
commitment, psychologists testified that if released, Cheatham would pose
the requisite substantial risk of physical harm under section 1026.5 because,
should he stop taking his medications and hear similar voices threatening to
harm him, he could become dangerous. The trial court granted the petition
and extended Cheatham’s commitment. (Cheatham, at p. 785.)
The Court of Appeal reversed, reasoning in part that the psychologists
failed to connect their conclusion—that some individuals with Cheatham’s
23
mental disorder could become violent—to Cheatham’s risk of becoming
violent. In evaluating the evidence, the court accepted that there was a
substantial risk Cheatham would stop taking his medications and that his
hallucinations would likely increase. (Cheatham, supra, 82 Cal.App.5th at
p. 789.) However, it found there was insufficient evidence that Cheatham
had serious difficulty controlling his dangerous behavior. Central to the
court’s holding was the fact that “the record include[d] not one instance in
which Cheatham evidenced any propensity to engage in dangerous or
threatening behavior toward others because of his mental disorder.” (Id. at
p. 790.) Thus, the court reasoned, no reasonable juror could “make the leap”
to conclude that because Cheatham would have difficulty controlling his
behaviors in response to his hallucinations, “he also would have serious
difficulty controlling dangerous behavior.” (Id. at p. 791.)
Such is the case here. As in Cheatham, we assume there is a
substantial risk Markley will discontinue her medication and that her
delusions will recur. Yet, like the record in Cheatham, our record here is
devoid of evidence indicating that Markley has ever engaged in “dangerous
behavior” or has the propensity to do so.11 Just as the court observed in
Cheatham, no reasonable factfinder here could “make the leap” that because
some individuals with Markley’s history and disorder are more likely to
behave violently, Markley herself has serious difficulty controlling her
dangerous behavior. (Cheatham, supra, 82 Cal.App.5th at pp. 791–792; see
also People v. Johnson (2020) 55 Cal.App.5th 96, 109.)
11 We are aware of Markley’s purported comment that she “could just kill
[Richard].” But as noted previously, this can hardly be called substantial
evidence of her propensity to behave violently, considering Markley made this
comment several decades ago, and there is no indication in the record that
she planned to act on her comment then, much less now.
24
The People try to distinguish Cheatham on the grounds that there is no
dispute about Markley’s need to continue taking her medication to “control
her delusional behavior.” We are not persuaded, however, because the same
was true in Cheatham: the appellate court assumed that upon release, there
was a substantial risk Cheatham would discontinue his medications and that
his hallucinations would increase. (Cheatham, supra, 82 Cal.App.5th at
p. 790.) But the court found there was insufficient evidence Cheatham would
have difficulty controlling dangerous behavior in response to those
hallucinations because there was no evidence he had ever engaged in or had
a propensity to engage in dangerous behavior in the first place. (Id. at
p. 792.)
Redus reached a similar result. There the court reversed a
commitment extension for insufficient evidence. Despite the NGI defendant’s
continuing delusions and lack of insight about a murder he had long ago
committed, there was no “hint of violence, threatening behavior, or
aggressiveness of any kind . . . over multiple decades, even through CONREP
releases and medication lapses.” (Redus, supra, 54 Cal.App.5th at p. 1012.)
Here, the factual disconnect is even more stark because Markley’s previous
delusions had never before led to any kind of physical violence. (Compare
Zapisek, supra, 147 Cal.App.4th at p. 1166 [substantial evidence supported
court’s finding that Zapisek had difficulty controlling his potentially
dangerous behavior where, “[m]ost importantly, the experts agreed that
[Zapisek]’s delusions were of the same type as those he experienced when he
committed the 1997 assault”].)
As observed in Cheatham, “[a] serious mental disorder in and of itself
cannot justify an extension of [a] commitment. To find otherwise would
justify indefinite involuntary commitments for all those who have a serious
25
mental disorder without regard to the actual risk of [physical] harm they
pose to others because of their disorder.” Cheatham, supra, 82 Cal.App.5th
at p. 794. The same concern applies here. Because this record lacks
sufficient evidence linking Markley’s ongoing mental disorder with the
experts’ conclusion that she purportedly poses a substantial danger of
physical harm to others and has serious difficulty controlling her dangerous
behavior, we reverse.
C. Validity of the Subsequent Recommitment Order
As discussed previously, double jeopardy applies here where a
recommitment order is reversed for insufficient evidence. (Cheatham, supra,
82 Cal.App.5th at p. 797–800.) Accordingly, the recommitment to August 10,
2024 was an extension of an invalid recommitment order and should be
dismissed. Markley observes, and we agree, that on remand she will have
“the opportunity to go back to the trial court and argue that any subsequent
recommitment petition should be dismissed.”
DISPOSITION
The order extending Markley’s commitment to August 10, 2022 is reversed.
DATO, J.
I CONCUR:
BUCHANAN, J.
26
Irion, J., Dissenting.
I dissent because the majority improperly second guesses the informed
professional conclusions of three different psychologists. The psychologists
used an accepted risk assessment tool, the HCR-20, and considered Markley’s
specific history and specific mental health conditions, to conclude that
Markley’s delusional stalking behavior is dangerous behavior that presents a
substantial danger of physical harm to others. I therefore cannot agree that
the psychologists’ opinions were based on “ ‘ “ ‘guess, surmise or conjecture,
rather than relevant, probative facts.’ ” ’ ” (Maj. opn., ante, at p. 23.)
At trial, the People were required to prove beyond a reasonable doubt
that, because of her “mental disease, defect, or disorder,” Markley
(1) “represents a substantial danger of physical harm to others” (Pen. Code,
§ 1026.5, subd. (b)(1)); and, as constitutionally required, (2) has “serious
difficulty controlling [her] potentially dangerous behavior.” (People v.
Zapisek (2007) 147 Cal.App.4th 1151, 1165, italics added.) The dispute in
this appeal centers on the first issue, namely, whether substantial evidence
supports a finding that Markley “represents a substantial danger of physical
harm to others.” (Pen. Code, § 1026.5, subd. (b)(1).) If the evidence fails on
that issue, then it also fails on the second issue because the element of
potentially dangerous behavior would be missing.1 The fundamental
question, therefore, is whether a substantial risk exists that Markley will
physically harm another person if she is released, stops taking her
medication, and resumes her stalking of Richard.
1 As the opening appellate brief explains regarding the second issue,
Markley’s position is that she “doesn’t have difficulty controlling her
physically dangerous behavior because she doesn’t have physically dangerous
behavior.” (Italics added.)
1
The majority concludes that the evidence does not support such a
finding because there is no “evidence that Markley ever presented a physical
danger to Richard in the first place.” (Maj. opn., ante, at p. 20, italics added.)
According to the majority, Markley may be a stalker, but there is no evidence
she ever has been, or will be, a dangerous stalker. My colleagues reach this
conclusion in two steps. First, they point out that Markley has never been
physically violent toward Richard or anyone else. Second, they discount the
opinions of the three psychologists who opined Markley poses a substantial
risk of physical harm despite the absence of any history of violence.
According to my colleagues, those psychologists were “merely parrot[ing] the
legal standard,” and their opinions “were not grounded in relevant facts
probative of Markley’s risk” but rather on “ ‘ “ ‘guess, surmise or
conjecture.’ ” ’ ” (Maj. opn., ante, at p. 23.) As I will explain, I disagree with
that description of the psychologists’ testimony.
A. The Testimony of Dr. Souza, Dr. Ng, and Dr. Tomei
1. Dr. Souza
The psychologist who went into the most detail about the risk of
physical harm posed by Markley was Dr. Souza. As Dr. Souza explained, he
has special expertise in applying the HCR-20 risk assessment tool because he
is “one of the few who have been trained in the country . . . to train others on
the [HCR-20, version 3], which is the gold standard instrument to conduct
violence risk assessments,” with “a good portion” of his time spent “training
others on . . . violence risk assessment.” Dr. Souza explained that the HCR-
20 “uses empirically-supported risk factors to determine someone’s violence
risk,” and he confirmed that he used the HCR-20 to assess Markley’s risk of
violence.
2
Specifically, Dr. Souza authored a report dated November 4, 2021, for
the purpose of assessing whether Markley would pose “a serious risk of
physical harm to others if [she was] receiving treatment in the community.”
Dr. Souza interviewed Markley and reviewed her charts, her past
evaluations, and her long history of stalking Richard. He concluded that
Markley was not suitable for outpatient treatment because of the level of risk
that she would engage in physical violence to others. When asked to explain
why he came to that conclusion despite no past history of violence, he
explained that “stalking, it is a very unique type of violence” “in that stalking
behavior is not violence until it is.” He explained that “unfortunately, with
Ms. Markley’s case, there has been such a consistent and intense delusional
obsession with her victim, despite many, many legal problems, years of
hospitalization, years of incarceration, that this level of delusional
attachment raises a lot of concerns of what may occur if she experiences
active rejection from her victim.” According to Dr. Souza, although Markley’s
stalking behavior “has never culminated in violence in the past, it is a
behavior that does contribute to the violence quite often in the community
if . . . there is no intervention prior to that one moment of violence.”
After the parties questioned Dr. Souza, the trial court posed questions
of its own to Dr. Souza about his use of the HCR-20 to conclude that Markley
poses “a serious risk of physical harm to others.” The trial court asked Dr.
Souza to address “[w]hat percentage of persistent stalkers like Ms. Markley
escalate to physical harm of a victim.” Dr. Souza answered, “When it comes
to actual violence escalating with stalking behaviors, it really is dependent on
the intensity and chronicity of the stalking. [¶] So essentially, the longer you
see the stalking behavior occur and the more intensity of the stalking
behavior—an intensity can be measured by how many legal interventions
3
have occurred and the stalking has continued. That’s usually when we see an
increase in the level of violent outcomes. [¶] So I can’t provide a percentage
just because there is so many variables that go into it, but what we do look at
that generally increases the risk for stalking behavior is, how long has it
occurred? How many interventions have occurred that have failed? And are
there additional factors that contribute to the stalking, and so something
such as a delusional disorder?” The trial court followed up and asked
“what . . . factors” other than “intensity and chronicity . . . differentiate
stalking that becomes violent and stalking that doesn’t.”
Dr. Souza answered, “And so that becomes very case specific. And so
this is where it is some measure like the HCR-20 really steps in to provide
strength, because all the factors that are on HCR-20 have been shown to
predict violence across types of crime; so it is predictive both for crimes, for
example, arson, murder, and stuff like stalking. [¶] So other factors very
important are level of insight into the nature of their offense, level of insight
into the management services that they will require to manage their own
level of risk, and also insight into the previous failures of conditional release
with supervision.”
The trial court did not ask Dr. Souza to connect his identification of
those factors to the specific details of Markley’s case. However, it is clear
from Dr. Souza’s testimony that when he performed his analysis using the
HCR-20, he was aware of the details of Markley’s case, and he conducted his
analysis using those details. The question he sought to answer in his report
was whether Markley poses “a serious risk of physical harm to others.”
Dr. Souza concluded that Markley did pose such a risk.
Moreover, although Dr. Souza explained that the HCR-20 uses a
definition of violence that is broader than the statutory standard, in that it
4
includes psychological harm rather than only physical harm, I do not read
the relevant parts of Dr. Souza’s testimony to depend on that definition. Dr.
Souza’s testimony therefore provides substantial evidence for a finding that
Markley poses a substantial danger of physical risk to others.
2. Dr. Ng
Dr. Ng also performed an analysis using the structure of the HCR-20 to
guide her risk assessment evaluation, which she based on a detailed
knowledge of Markley’s history and mental conditions. Dr. Ng authored a
report dated December 31, 2021, in which she concluded that Markley met
the requirements for extension of her commitment. Based on her familiarity
with the details of Markley’s case, Dr. Ng stated her opinion that “by reason
of her mental disease, defect, or disorder of—delusional disorder and
narcissistic personality disorder, [Markley] does represent a substantial
danger of physical harm to others.” She explained that “in our review of her
records and her past history of repeatedly showing up to the victim’s home,
harassing him, made verbal threats against him, there is . . . a high risk that
can escalate into physical harm.” During her testimony, Dr. Ng discussed
each of the three categories of factors used in an HCR-20 analysis (historical
factors, clinical factors, and risk management factors), with a lengthy
explanation of how those factors related to the specific details of Markley’s
situation.
When the trial court questioned Dr. Ng as to whether, in her opinion,
Markley would pose a “low, medium, or high risk of causing physical harm to
another” if released to the community, Dr. Ng explained that if Markley’s
“mental status” changed while in the community based on lack of “adequate
support supervision [and] medication management, it can change from low
all the way up to high.” Dr. Ng’s testimony thus provides substantial
5
evidence to support a finding that, based on the assumption endorsed by the
majority that Markley will stop taking her medication and relapse into
stalking behavior if released, Markley poses a substantial danger of physical
harm to others.
3. Dr. Tomei
Dr. Tomei prepared an evaluation in June 2021 addressing whether
Markley should be released to community outpatient treatment, concluding
she should not. Dr. Tomei based her evaluation on an interview with
Markley, a review of Markley’s legal and medical records, and consultation
with Markley’s treatment team. Dr. Tomei explained that she specifically
addressed the issue of whether Markley would be “a substantial harm to
others.”
Dr. Tomei was asked, “What is the basis for your opinion that Ms.
Markley would pose a risk of substantial harm to others, notwithstanding the
fact that there was no violence involved in the underlying offense?” She
replied, “Ms. Markley doesn’t have a history of violence, and that certainly is
a big risk factor for future violence; however, she does present with other
factors that have been shown to increase someone’s risk for violent behavior,
some of the ones I discussed, such as problems with insight, continued
symptoms of a major mental illness, of a problematic release plan. Things
like that.” Dr. Tomei explained that Markley was at risk of resuming her
stalking behavior and “feeling the desire to reach out to the victim,” and “if
that was not reciprocated, it could potentially progress to aggression and/or
violence.”
Although Dr. Tomei was not asked whether she used any specific risk
assessment tool, such as the HCR-20, her conclusion as a psychologist with
specific knowledge of Markley’s circumstance provides substantial evidence
6
for a finding that Markley poses a substantial danger of physical harm to
others.
B. The Psychologists’ Conclusions Were Not Based on Guess, Surmise or
Conjecture, But Rather on Relevant Probative Facts
The majority dismisses the conclusion of the three psychologists by
characterizing their testimony as merely observing that “some individuals
who experience delusions and have a stalking history like Markley’s can have
serious difficulty controlling their dangerous behavior if their delusions
recur,” but “fail[ing] to adequately link that conclusion to Markley.” (Maj.
opn., ante, at p. 21.) Put another way, the majority concludes that the
psychologists “failed to connect their observation—that individuals with
Markley’s mental health disorder and stalking history can have a high or
increased risk of violence—to their ultimate conclusion—that Markley
represented such a danger.” (Maj. opn., ante, at p. 23.)
The testimony I have detailed above does not square with the
majority’s characterization. Each of the psychologists focused on Markley’s
specific history and mental conditions to conclude that she posed a
substantial danger of physical harm to others. For example, as Dr. Souza
explained, “with Ms. Markley’s case, there has been such a consistent and
intense delusional obsession with her victim, despite many, many legal
problems, years of hospitalization, years of incarceration, that this level of
delusional attachment raises a lot of concerns of what may occur if she
experiences active rejection from her victim.” Dr. Ng testified, “in our review
of her records and her past history of repeatedly showing up to the victim’s
home, harassing him, made verbal threats against him, there is—there is a
high risk that can escalate into physical harm.” Both of those witnesses used
their expertise as psychologists, assisted by the HCR-20, to specifically link
7
the facts of Markley’s case to their conclusion that Markley poses a
substantial danger of physical harm to others.
The majority recognizes that “[a] single psychiatric opinion that an
individual is dangerous because of a mental disorder constitutes substantial
evidence to support an extension of the defendant’s commitment under [Penal
Code] section 1026.5.” (People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
Moreover, in a substantial evidence review, “[i]t is not the role of this court to
redetermine the credibility of experts” (People v. Poe (1999) 74 Cal.App.4th
826, 831), “ ‘for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness’ ” (People v. Letner and Tobin (2010)
50 Cal.4th 99, 162). However, my colleagues contend that those rules are not
dispositive here because of the legal principle set forth in In re Anthony C.
(2006) 138 Cal.App.4th 1493, 1504 (Anthony C.), namely, that “expert
medical opinion evidence that is based upon a ‘ “guess, surmise or conjecture,
rather than relevant, probative facts, cannot constitute substantial
evidence.” ’ ” As I will explain, however, the use that the majority makes of
the Anthony C. language stretches it far beyond how it was used in that case,
transforming a substantial evidence review into an impermissible second-
guessing of well-informed expert opinion.
In Anthony C., an expert prepared a formal risk assessment to
determine whether to extend the civil commitment of a juvenile sex offender.
(Anthony C., supra, 138 Cal.App.4th at p. 1506.) A recommitment required a
finding that the appellant “ ‘would be physically dangerous to the public’ ”
and has “serious difficulty controlling his dangerous behavior.” (Id. at
p. 1503.) The expert who prepared the formal risk assessment was unable to
testify as scheduled. Therefore, a different expert, Dr. Herskovic, was asked
to review the first expert’s report and testify regarding the appellant’s risk of
8
reoffending. (Id. at pp. 1506-1507.) Dr. Herskovic “was unable to recall
many of the relevant risk factors bearing” on the risk of reoffense and was
unsure of the level of risk posed to the community if the appellant were
released. (Id. at p. 1507.) Anthony C. concluded, “This testimony does not
constitute substantial evidence that [the appellant] has serious difficulty
controlling his behavior. In light of Dr. Herskovic’s failure to prepare a
formal risk assessment evaluation, his lack of preparation, and his inability
to state the risk factors at trial, his reluctance to quantify how high a risk
[the appellant] posed without further study strongly suggests his opinion was
based as much on guesswork, surmise or conjecture as on relevant probative
facts. [Citation.] As such, his testimony is not a basis upon which to
establish proof beyond a reasonable doubt.” (Ibid., italics added.) In short,
Anthony C. concluded that the expert based his opinion on “guesswork,
surmise or conjecture” because he was not involved in the relevant analysis
and could not explain the basis for the conclusion.
Here, in contrast, the three psychologists who reached conclusions
about Markley’s dangerousness were the professionals who personally
conducted the evaluations based on their understanding of Markley’s specific
history and mental conditions, and they were able to provide detailed
testimony about how they reached their conclusions. Where, as here, a
mental health professional’s conclusion is based on the particular facts of the
case and premised on accepted risk assessment tools, such as the HCR-20, it
cannot fairly be described as based on “guesswork, surmise or conjecture” as
that phrase was used in Anthony C.
In several recent opinions, the Anthony C. language has been cited and
relied upon as a basic component of the legal standards that apply when an
appellate court reviews a finding that a person represents a substantial
9
danger of physical harm to others. (People v. Cheatham (2022)
82 Cal.App.5th 782, 791 [citing Anthony C. to reject what the appellate court
characterized as “an unsupported psychiatric opinion” that the appellant had
serious difficulty controlling his dangerous behavior]; People v. Redus (2020)
54 Cal.App.5th 998, 1013 [citing Anthony C. in concluding that substantial
evidence did not support a finding that the appellant had serious difficulty
controlling his potentially dangerous behavior]; People v. Johnson (2020)
55 Cal.App.5th 96, 110, fn. 5 [citing Anthony C. in reversing a finding that a
mentally disordered offender represented a substantial danger of physical
harm]; see also People v. Kerbs (Jan. 28, 2020, A155126) opn. ordered nonpub.
Apr. 15, 2020, S261125 [relying on Anthony C. to reverse a finding of
dangerousness in a recommitment proceeding under Pen. Code, § 1026.5,
subd. (b)].) Here, the majority’s use of the Anthony C. language demonstrates
the danger of that language taking on a life of its own and being employed in
a way that was never intended. I caution against the apparent trend of
appellate courts making their own credibility determinations and second-
guessing the well-informed conclusions of mental health professionals under
the guise of purportedly rejecting “expert medical opinion evidence that is
based upon a ‘ “guess, surmise or conjecture, rather than relevant, probative
facts.” ’ ” (Anthony C., supra, 138 Cal.App.4th at p. 1504.)
My colleagues appear to be bothered that the psychologists could not
provide a specific quantification of the risk of violence posed by Markley.
I have no quarrel with the general rule that “[s]peculation or conjecture alone
is not substantial evidence.” (Roddenberry v. Roddenberry (1996)
44 Cal.App.4th 634, 651.) But that principle must be applied with sensitivity
to the fact that the task of predicting whether someone poses a risk of
physical violence to others is by definition a speculative undertaking. It is the
10
role of mental health professionals, trained in the application of risk
assessment tools, to make such a prediction. Indeed, as our Supreme Court
has observed, when future dangerousness is at issue, “expert prediction,
unreliable though it may be, is often the only evidence available to assist the
trier of fact.” (People v. Murtishaw (1981) 29 Cal.3d 733, 772, italics added
[describing commitment proceedings in general].) After hearing a
psychologist’s testimony about future risk of dangerousness, a trier of fact is
free to reject that psychologist’s prediction as not credible. But it is
indisputably not our role, as an appellate court, to second-guess the
credibility of a well-informed expert conclusion that is grounded in an
accurate understanding of the facts of the case. Here, because the three
psychologists used accepted tools of analysis, and they applied those tools to
the facts of Markley’s case, their expert opinions constitute substantial
evidence to support the trial court’s finding that the People met their burden
to prove that Markley presents a substantial danger of physical harm to
others.
IRION, Acting P. J.
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