Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Harry Brauer, Judge, Ct. No. 05CM0067
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant Ellis Edward Evans appeals from an order committing him to Atascadero State Hospital (ASH), after a jury first found him guilty of one count of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) and one count of driving with a blood alcohol level of 0.08 percent or more (Veh. Code, § 23152, subd. (b)), and acquitted him of one count of evading a police officer (Veh. Code, § 2800.2, subd. (a)). The trial court then found defendant not guilty by reason of insanity (Pen. Code, § 1026). Defendant’s sole contention on appeal is that the trial court erroneously determined that defendant had not fully recovered his sanity under section 1026. We affirm.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
The charges in this case were originally filed on February 3, 2005. On June 30, 2005, the trial court found defendant incompetent to stand trial and referred the matter to the community program director to evaluate defendant and to make a recommendation for placement. On August 2, 2005, the trial court ordered defendant committed to ASH for treatment. On November 28, 2005, based on a report from ASH, the trial court found defendant competent to stand trial.
On March 3, 2006, defendant expressed a desire to plead not guilty by reason of insanity, and the trial court appointed two experts to evaluate defendant, a psychologist, Dr. Melvin Macomber, and a psychiatrist, Dr. Howard Terrell. In the appointment orders, the court asked the experts to evaluate whether defendant was insane at the time of the offenses, and whether defendant had fully recovered his sanity (“i.e., has [he] improved to such an extent that [he] is no longer a menace to the health and safety of others, including [himself]?”).
In the reports they submitted to the trial court, both experts concluded that defendant was insane at the time of the offenses, but they differed on the question of whether defendant had fully recovered his sanity, with Dr. Macomber answering the question in the positive, and Dr. Terrell answering the question in the negative. Both experts reported that defendant suffered from severe mental illness and had a serious history of alcohol abuse. Defendant also had an admitted history of amphetamine use, although he claimed not to have used in recent years. At ASH, defendant was diagnosed as having schizoaffective disorder and polysubstance dependence.
On the question of whether defendant had fully recovered his sanity, Dr. Macomber concluded:
“Due to his treatment at Atascadero State Hospital and his ongoing use of psychotropic medication to control the symptoms of his mental disorder, he has ‘fully recovered his sanity.’ He has improved to such an extent that he is no longer a menace to the health and safety of others, including himself.”
In contrast, Dr. Terrell concluded:
“[Defendant] has derived substantial benefit from inpatient psychiatric hospitalization at Atascadero State Hospital which has included antipsychotic and antidepressant medication. I do not believe that he was a danger to himself or others at the time I evaluated him, however, I believe if released into the community at this time, there would be an extremely high likelihood of relapse such that he would represent a danger to himself or others in a manner typical of his prior track record, especially driving a motor vehicle in a psychotic and intoxicated state.
“I would therefore recommend that [defendant] be remanded to an inpatient psychiatric treatment facility (such as Atascadero [S]tate Hospital) for further treatment until he is deemed no longer a danger to the community and suitable for release into the Conditional Release Program (CONREP).”
Dr. Terrell commented later in his report:
“[Defendant] has a long history of psychotic mental disorder and a substantial prior history of involuntary inpatient psychiatric hospitalizations due to being a danger to himself. Individuals with psychotic mental disorders will frequently ‘self medicate’ with alcohol and street drugs in order to try and ‘feel better.’ I believe that has been the case with [defendant]. [¶] … [¶]
“Although he appears to be doing much better now while on antipsychotic and antidepressant medication, in an environment where it is extraordinarily difficult for him to obtain alcohol or street drugs, I do not believe it is safe to release him back into the community at this time. I believe he is at high risk of relapse if released back into the community at this time.
“I would recommend that [defendant] be remanded to a locked inpatient, psychiatric treatment facility (such as Atascadero State Hospital) for further treatment until such time that he is deemed safe to be released back into the community on the Conditional Release Program (CONREP).”
Defendant’s jury trial commenced on June 14, 2006. The jury returned its verdict on June 16, 2006. Immediately afterwards, the court made the following findings:
“The defendant has previously waived his right to a trial and jury trial on the issue of whether he was, at the time of the commission of the offense, insane as that term is defined in the law, and has agreed that the matter be submitted to the Court on the reports of the two – one is a psychiatrist, one is a psychologist who have evaluated him. As both of the experts concluded that he was insane at the time of the commission of this offense, I have no alternative but so to find.
“I also find that he is not at this time restored to capacity, and therefore the matter will be referred to the county program director to evaluate the defendant, and to suggest – to submit a written recommendation within 15 days. And, the D.A. is to prepare the order.”
On July 14, 2006, the trial court ordered defendant committed to ASH for treatment.
DISCUSSION
Defendant contends the trial court erroneously determined that he had not fully recovered his sanity under section 1026. Defendant argues that, although Dr. Terrell concluded in his report that defendant had not fully recovered his sanity, Dr. Terrell applied an incorrect legal standard in rendering his opinion upon which the trial court relied in making its finding. If Dr. Terrell (and hence the trial court) had evaluated the evidence under the correct legal standard, defendant argues, the court would have concluded that defendant had fully recovered his sanity. We disagree with defendant’s argument and conclude the trial court properly found that defendant had not fully recovered his sanity under section 1026 based on the experts’ reports.
After the jury convicted defendant of driving under the influence and driving with an alcohol level of 0.08 percent or above, the trial court found that defendant was not guilty by reason of insanity. “A finding of not guilty by reason of insanity establishes the legal status of insanity. It is an adjudication that determines that the accused was insane at the time that the crime was committed and his mental condition negated the requisite criminal intent. [Citations.]” (In re Locks (2000)79 Cal.App.4th 890, 895.)
Section 1026, subdivision (a) provides in pertinent part: “If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility approved by the community program director .…”
As aptly summarized by the court in People v. Williams (1988) 198 Cal.App.3d 1476, 1479-1480: “The Legislature has delineated the commitment process after acquittal by reason of insanity in section 1026, and the procedure out of commitment and supervision into the community in section 1026.2. Initially after acquittal of a criminal offense by reason of insanity, the court must determine if the defendant has fully recovered his sanity. If the defendant has not fully recovered, he is then hospitalized and ‘…shall not be released from confinement, parole, or outpatient status unless and until the court which committed the person shall … find and determine that the person’s sanity has been restored.’ (§ 1026 subd. (b).) A defendant is committed for institutional evaluation if there is any evidence the defendant is still suffering from a mental illness. (People v. De Anda [(1980)] 114 Cal.App.3d 480, 489.)” (People v. Williams, supra, 198 Cal.App.3d at pp. 1479-1480, fns. omitted.)
“Once confined, the defendant faces a different set of standards for release. After 180 days of confinement the defendant may apply for a hearing to show he or she is no longer a danger to the health and safety of others, including himself or herself, while in treatment in the community. If successful, the defendant is placed in a local mental health program consisting of outpatient supervision and treatment. After one year, a trial is mandated to determine if sanity has been restored, ‘...which means the applicant is no longer a danger to the health and safety of others, including himself or herself.’ (§ 1026.2, subd. (e).)” (People v. Williams, supra, 198 Cal.App.3d at p. 1480.)
“Thus three distinct standards apply in the commitment and release of a person acquitted by reason of insanity. The person is committed if ‘any mental illness is present, ’ then placed in a local mental health program ‘if no longer dangerous while in treatment, ’ and finally restored to sanity ‘if no longer dangerous.’ The no longer dangerous standard under section 1026.2 is far less stringent than full restoration of sanity under section 1026. In order to be restored to sanity, the defendant need not show he is no longer legally insane [citation]. He need show only he is not likely to cause injury or pain or expose himself or others to injury. [Citation.]” (People v. Williams, supra, 198 Cal.App.3d at p. 1480.)
Here, after considering the two experts’ reports, the trial court found defendant had not fully recovered his sanity and ordered him committed under section 1026. Both reports reflected that defendant still suffered from mental illness and needed psychotropic medication and psychiatric treatment to control his symptoms and to keep his substance abuse in remission. Thus, the evidence amply supported the trial court’s finding that defendant had not fully recovered his sanity under the standard applicable at that stage in the commitment process (i.e., after defendant’s acquittal by reason of insanity). A finding that defendant had not fully recovered his sanity was proper because the evidence established he was still suffering from a mental illness even if his use of medication helped control the symptoms. (People v. De Anda, supra, 114 Cal.App.3d at pp. 489-490; see also People v. Froom (1980) 108 Cal.App.3d 820, 830-832.) “Since the purpose of a commitment under section 1026 is ‘to protect the defendant and the public during the period necessary to appraise the defendant’s present sanity’ (People v. Froom, supra, at p. 831) psychopharmaceutical restoration of sanity should not be considered a ‘full’ recovery within the meaning of section 1026, subdivision (a) and under such circumstances an institutional examination is necessary to truly evaluate the dangers posed by a defendant.” (People v. De Anda, supra, 114 Cal.App.3d at p. 490.)
Although the trial court’s appointment orders directed the experts to consider whether defendant was still a danger to himself or others, contrary to defendant’s assertion on appeal, this is not the applicable standard for determining whether a defendant has fully recovered his sanity under section 1026. Rather, this is the standard to be applied under section 1026.2, when determining whether someone already committed under section 1026 has been restored to sanity. Like the defendant in People v. Froom, supra, 108 Cal.App.3d 820, defendant here relies on older, inapposite case authority to support the standard he asserts was applicable to this case.
“Initially, we note that the cases cited by defendant were not concerned with the standard to be applied by a trial court under Penal Code section 1026, rather, they considered the standard to be applied under former Penal Code section 1026a (now renumbered § 1026.2) which provided the procedure for the release of a person already committed under section 1026. (See In re Franklin (1972) 7 Cal.3d 126, 145; In re Lee (1978) 78 Cal.App.3d 753, 757-758; In re Jones (1968) 260 Cal.App.2d 906, 912; People v. Mallory (1967) 254 Cal.App.2d 151, 155.)” (People v. Froom, supra, 108 Cal.App.3d at pp. 830-831.)
In People v. Froom, supra, 108 Cal.App.3d 820, 830-832, the court rejected the defendant’s argument that the trial court applied an incorrect standard in determining whether he had recovered his sanity under section 1026, and that the court should have considered whether he was still a danger to himself and others. The court explained:
“…The correct standard to be applied by the trial court in determining whether the defendant has regained his sanity under section 1026 has not been the subject of a judicial opinion. We need not consider whether the ‘danger to himself or others’ standard is applicable to the determination under Penal Code section 1026, however, since it does not appear on the record that the trial court in fact applied a different standard. [¶ ] … [¶ ]
“The purpose of a commitment under Penal Code section 1026 is to protect the defendant and the public during the period necessary to appraise the defendant’s present sanity. (In re Franklin, supra, 7 Cal.3d at p. 136.) The Legislature has deemed an institutional examination period necessary for the special class of persons who have committed crimes and then, by a preponderance of the evidence, proven themselves to be insane. (Id., at pp. 144-145.) The standard proposed by defendant would force a trial court prematurely to evaluate the danger posed by an insane defendant to himself and others, without the benefit of the institutional examination period the Legislature has determined to be necessary for that very purpose. (Ibid.) Moreover, the court would be forced to make the determination upon evidence which was not intended to aid in the resolution of this issue. (Ibid.)
“The Supreme Court in Franklin specifically held that a defendant is not entitled to a precommitment hearing under Penal Code section 1026, but that his right to hearing comes after he has completed the period of his institutional examination. (Id., at pp. 145-147.) This is so because by being found to have been insane at the time of a criminal offense the defendant is not merely a potential danger, but has already been judicially determined to have endangered both the public safety and his own as the result of his mental condition. (Id., at p. 147.) Under such circumstances the defendant may properly be committed for a reasonable evaluation period, and the trial court should limit inquiry to whether the defendant has ‘fully recovered his sanity.’ (Pen. Code, § 1026, subd. (a).).…
“The facts of the instant case illustrate this legislative scheme. There was no question that defendant had not regained his sanity. All parties agreed that he had not. There was some question whether he was still dangerous, however. The evidence at trial was not introduced to resolve this issue and was inadequate for that purpose. (See In re Franklin, supra, 7 Cal.3d at pp. 143-144.) In order properly to evaluate defendant under the danger to others standard and to provide both sides with an opportunity to be heard on that issue, the trial court would have been required to conduct a precommitment evidentiary hearing, which the Supreme Court specifically disapproved of in Franklin. (Id., at p. 144.) The trial court, having determined that defendant was guilty of an offense involving the serious threat of bodily harm to others and that he had not fully recovered his sanity, should not be held to have erred in committing defendant.…” (People v. Froom, supra, 108 Cal.App.3d at pp. 831-832.)
Following Froom, the court in People v. De Anda, supra, 114 Cal.App.3d 480 held at pages 488-490: “[I]t appears that the appropriate standard should be whether defendant has ‘fully recovered his sanity.’ If there is any evidence that the defendant is still suffering from a mental illness, the defendant should be ordered to undergo the appropriate evaluation pursuant to section 1026.” Under this test, both experts’ reports supported the conclusion that defendant still suffered from mental illness and therefore the trial court properly ordered him committed under section 1026.
However, even if the applicable standard was whether defendant was still a danger to the health and safety of others, as defendant asserts, Dr. Terrell’s report fully supported a finding that defendant was still dangerous. Dr. Terrell did not apply a different standard than Dr. Macomber in assessing defendant. In their reports, both explicitly considered the question posed by the court’s appointment order. Contrary to defendant’s assertions on appeal, Dr. Terrell did not opine that defendant would be dangerous if he relapsed. Rather, Dr. Terrell opined that there was “an extremely high likelihood” defendant would relapse and thus continued to pose a danger to others, including himself. Moreover, Dr. Terrell’s assessment of the likelihood that that defendant would relapse was based not on speculation but on a reasoned analysis of defendant’s lengthy psychological history, which was documented in detail in the expert’s report. Thus, there was evidence supporting Dr. Terrell’s conclusion that defendant had not fully recovered his sanity even though defendant, as a result of his treatment with antipsychotic medication, was not currently suffering the type of paranoid delusions he was suffering at the time of the commission of the offenses.
Thus, In his opening brief, defendant argues: “[I]t appears, that the question that the trial court should have resolved is whether [defendant] has recovered his mental health to the point where he is no longer a threat to the health or safety of others. [¶] Obviously, Dr. Macomber concluded that [defendant] had recovered to this point. On the other hand, Dr. Terrell evaded that question and focused his concern on the danger that [defendant] might relapse if released into the community. However, the standard does not appear to be whether or not the person who has been found ‘not guilty by reason of insanity’ would be dangerous if he relapsed after being released into the community. If that were the standard, no one would ever be found to have fully recovered their sanity because, obviously, everyone would be dangerous if they relapsed.”
In short, the evidence supports the trial court’s conclusion that defendant had not fully recovered his sanity (§ 1026) under the applicable legal standard. Accordingly, we find no reversible error.
“But [defendant] is not without a judicial remedy. At any time after 180 days of commitment, [defendant] or [Atascadero State Hospital] may petition the court for release upon the ground that his sanity has been restored.” (In re Locks, supra, 79 Cal.App.4th at p. 897.)
DISPOSITION
The judgment (order of commitment) is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.