Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 95953.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant George Louis Bachmeier appeals from an order extending his commitment under Penal Code section 1026.5 for two years. He contends that there is insufficient evidence to support the trial court’s finding that he represents a substantial danger of physical harm to others, as required by section 1026.5, subdivision (b)(1). As we find that substantial evidence supports the trial court’s order, we will affirm the order for extended commitment.
All further statutory references are to the Penal Code.
BACKGROUND
Defendant’s Prior Commitments
On December 20, 1983, defendant stabbed his stepfather in the eye with a small paring knife. His mother also received injuries while attempting to stop the assault. Criminal proceedings were instituted, charging defendant with assault with a deadly weapon with personal infliction of great bodily injury. (§§ 245, subd. (a)(1), 12022.7). He was admitted to Atascadero State Hospital (Atascadero) on February 24, 1984, after being found incompetent to stand trial. On March 27, 1986, he was found not guilty by reason of insanity (NGI) (see § 1026), and was thereafter readmitted to Atascadero. On October 11, 1990, defendant was placed under the supervision of the Santa Clara County Conditional Release Program (CONREP).
Defendant remained under the supervision of CONREP for the next 14 years with hospitalization at Napa State Hospital (Napa) various times for periods of two weeks to three months. On December 14, 2004, defendant was returned to Napa after an eight-month CONREP placement. He continued his assaultive and paranoid behavior at Napa. On April 10, 2007, defendant’s treatment team determined that, because of a mental disease, defect, or disorder, defendant represented a substantial danger of physical harm to others, and recommended that his maximum term of commitment be extended pursuant to section 1026.5. The Acting Medical Director of Napa sent a letter to the District Attorney of Santa Clara County on June 8, 2007, requesting that a petition be filed for extension of defendant’s commitment, which would expire on January 14, 2008.
The district attorney filed a petition for a two-year extension of defendant’s commitment on July 26, 2007. A court trial was held on the petition on April 24, 2008. After hearing testimony by Toby Lamb, Ph.D., a staff psychologist at Napa, and a statement by defendant, the court found the petition true and extended defendant’s commitment for two years. This court affirmed the extended commitment order in an unpublished decision. (People v. Bachmeier (May 12, 2009, H033016).)
The Current Extended Commitment Order
On May 28, 2009, defendant’s treatment team determined that, because of a mental disease, defect, or disorder, defendant represented a substantial danger of physical harm to others, and recommended that defendant’s maximum term of commitment be extended pursuant to section 1026.5. The Medical Director of Napa sent a letter to the District Attorney of Santa Clara County on July 2, 2009, requesting that a petition be filed for the extension of defendant’s commitment, which would expire on January 14, 2010. The district attorney filed a petition for a two-year extension of defendant’s commitment on July 10, 2009. A court trial on the petition was held on February 25, 2010.
Dr. Lamb testified as an expert in the diagnosis of mental disorders and the assessment of risk. He has been defendant’s staff psychologist at Napa for three years, during which time he has given defendant ongoing treatment. Defendant’s diagnosis is chronic schizophrenia, paranoid type. “[H]e has a tendency to misperceive the intentions of others, misperceive social interactions, and in the past this misperception has caused him to act aggressively towards others.... [H]e tends to see things different than other people do, he tends to react in a hostile manner.” In April or May 2009, defendant threatened to do bodily harm to the medication nurse at Napa because he believed that the nurse was poisoning him.
Sometime in May or June 2009, defendant decided that he was going to start cooperating with his treatment team. He has become a model patient. He has been participating in his treatment groups. He has talked about his crime, and for the first time he has expressed remorse. He has welcomed the opportunity to go out into the community through CONREP. And he has developed and discussed his relapse prevention plan.
In Dr. Lamb’s opinion, defendant “needs to stay at Napa State Hospital for a little bit longer.” “[W]hile Mr. Bachmeier is better now than he was before, there remains that tendency for his symptoms to exacerbate again for him to become paranoid and distrustful of the environment and those around him, and that tendency is what... causes him to be a risk to others. That tendency to not see things as other people do and then to react in a hostile manner.” Although defendant is currently “med compliant, ” “it is likely that he may decide to discontinue his meds if he was not supervised.” On at least two prior occasions, when defendant was released through CONREP, his noncompliance with his medication and treatment was the reason he was readmitted to Napa. And, defendant has expressed his desire to not take his medication during the past three years while at Napa, because he believes that he is not mentally ill and that his symptoms are caused by his medication.
Defendant’s treatment team would like to transition him from his locked unit to an open unit. He would still have 24-hour supervision, but his daily living activities would not be directed. He has been on a waiting list to get into an open unit, but there is currently not a bed available for him. After three to six months in the open unit, defendant would be released to CONREP. “[T]hat is what they want to see him do. They are willing to take him out again just being mindful of the fact that his symptoms might come back, and we would hate to see him, you know, leave and have a little bit of a downturn and lose some of the insight that he had and decide to stop taking his medication because he doesn’t think he needs them at this time.” If defendant stopped taking his medication, there is a likelihood that defendant would misperceive things, think that people are out to get him, react hostilely, and hurt other people. Defendant’s CONREP representative recently visited defendant, and it is CONREP’s recommendation that defendant is not yet ready to go to CONREP.
Defendant testified in his own defense. He acknowledged that he is mentally ill, and that he has chronic paranoid schizophrenia. Although he resents the fact that he is in a locked mental institution, he participates in his treatment. He recognizes that he has had “difficulties” with his mental illness, and he feels that the time that he has spent in the institution has been necessary and productive, in that he has been able to complete his wellness and recovery action plan. He believes that his medication has suppressed the hallucinations and delusions he has had, and he thinks that some comparable medication “would be applicable in [his] situation.” If CONREP accepted him immediately, he would take the medication that it required him to take. He believes CONREP would be helpful to him in transitioning back into society.
The court ruled that “the People have met their burden of proof, and I will find the petition true.” The court told defendant that it was “impressed by the efforts” that he had recently made, and that it appeared as though he was “on the right track.” The court stated that it hoped that there would be room for him in the open unit so that he could “progress smoothly and relatively quickly into outpatient status.”
The court’s commitment order, filed the same day as the hearing, states in pertinent part: “The Court finds that [defendant], by reason of mental disease, defect or disorder, continues to represent a substantial danger of physical harm to others, and continues to be a person described in paragraph (1) of Section 1026.5(b) of the Penal Code. [¶] IT IS HEREBY ORDERED that [defendant’s] commitment be extended for an additional period of TWO (2) YEARS from the date of January 14, 2010 to January 14, 2012.”
DISCUSSION
Defendant contends that there is insufficient evidence to support the commitment order. Specifically, he argues that there was not substantial evidence that he had a serious difficulty controlling his dangerous behavior. “Over the [prior] ten months, [defendant had] demonstrated absolutely no difficulty controlling his dangerous behavior. The prosecution’s own expert characterized him as a model patient. He [had] been medication compliant and, in every possible way, [had] demonstrated the treatment program [had] been successful and he [was] no longer dangerous.”
The Attorney General contends that defendant “continued to present a substantial danger of physical harm to others.” “[W]hile [defendant] had not acted out over the [previous] eight months, an expert witness who was also a physician personally familiar with [defendant’s] mental stability testified that [defendant] was not yet ready to be released back into the community.”
“Section 1026.5, subdivision (b) provides that a two-year recommitment may be ordered where the trier of fact finds that the NGI committee poses a substantial risk of physical harm to others as a result of a mental disease, defect, or disorder.” (People v. Powell (2004) 114 Cal.App.4th 1153, 1157.) At trial, the prosecution bore the burden of proving beyond a reasonable doubt that defendant is mentally ill and poses a substantial risk of physical harm to others. (People v. Overly (1985) 171 Cal.App.3d 203, 207 (Overly).)
“ ‘ “Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we 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. [Citations.]” [Citation.]’ [Citation.] 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 [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879; People v. McCune (1995) 37 Cal.App.4th 686, 694-695; Overly, supra, 171 Cal.App.3d at p. 209.) “Conflicts in evidence, and even testimony, which are subject to justifiable suspicion do not justify reversal of a judgment. [Citations.]... Moreover, proof of a recent overt act is not constitutionally required to extend the commitment of a person found to be criminally insane. [Citation.]” (Id. at p. 208.)
In Overly, the defendant had been charged with felony assault with a deadly weapon. The trial court found the defendant guilty of the charged felony and then not guilty by reason of insanity. The court then committed him to Atascadero. (§ 1026.) When the district attorney filed a petition to extend the commitment, the court heard testimony of three expert witnesses as well as the defendant. The court then ordered the defendant recommitted to Atascadero for an additional two years. (Overly, supra, 171 Cal.App.3d at p. 206.) On appeal, the defendant contended that the evidence was insufficient to support the trial court’s recommitment decision because one of the three experts, Dr. Dennis, testified that the defendant had a propensity for being a substantial danger to others, but Dr. Dennis would not say that the defendant represented a substantial danger of physical harm to others. (Id. at pp. 206-207.)
The appellate court found that Dr. Dennis stated that the defendant was a chronic paranoid-schizophrenic who responds to internal stimuli and who, at times, was not fully in contact with reality. Dr. Dennis attributed the defendant’s recent behavioral improvement to being in a very highly structured environment and receiving high doses of medication. Dr. Dennis was uncertain whether the defendant’s improved functioning would continue in a less structured setting and the doctor mentioned that defendant had not taken his medication when previously released to the community. (Overly, supra, 171 Cal.App.3d at p. 207.) In addition, the two other experts testified that, in their opinion, defendant represented a substantial danger of physical harm to others. (Id. at p. 208.) The appellate court concluded that substantial evidence supported the recommitment order because “[t]he trial court had before it evidence which was reasonable, credible, and of solid value, from which it could find that [the defendant] posed a substantial danger of physical harm to others.” (Ibid., citing People v. Thompson (1980) 27 Cal.3d 303, 322-323; see also People v. Johnson (1980) 26 Cal.3d 557, 576.)
In the case before us, Dr. Lamb testified that defendant is a chronic paranoid-schizophrenic who has a tendency to misperceive social interactions, which causes him to act hostilely and aggressively towards others. In the prior eight months, defendant had been a model patient, and had been “med compliant, ” but he was living in a locked unit where his daily activities were directed by others during that period of time. Defendant needed to successfully live and remain “med compliant” in an open unit for three to six months before he was ready to be released into the community. Dr. Lamb testified that it was likely that defendant would stop taking his medication in an unstructured setting as defendant had stopped taking his prescribed medication twice before when he was released to CONREP, and then had to be recommitted. When defendant stops taking his medication, he is likely to misperceive the actions of others and react hostilely and aggressively. Therefore, both Dr. Lamb and defendant’s CONREP representative believed that, even though defendant had been a model patient for several months and he had testified that he would continue to take his prescribed medication if he were immediately released to the community, defendant was not yet ready to be released into the community. The testimony by Dr. Lamb was sufficient evidence to support the trial court’s finding that defendant posed a substantial risk of harm to others as a result of a mental disease, defect or disorder. (Overly, supra, 171 Cal.App.3d at p. 209; People v. Bowers, supra, 145 Cal.App.4th at pp. 878-879; People v. McCune, supra, 37 Cal.App.4th at pp. 694-695.) Accordingly, we will not set aside the recommitment order.
DISPOSITION
The order for extended commitment filed February 25, 2010, is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.