Opinion
H035732
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JOHN KELLIHER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 76642)
Patrick John Kelliher appeals from the order extending his commitment for an additional two year period pursuant to Penal Code section 1026.5, subdivision (b), following a court trial. Appellant Kelliher challenges the sufficiency of the evidence to show that "he currently presents a danger if not committed" and "he has difficulty controlling his dangerous behavior." He also claims the evidence was sufficient to show that he is not a danger when he is on his medication and he would continue to take his medication if ordered by his doctor.
All further statutory references are to the Penal Code unless otherwise stated.
We affirm the order extending his commitment. A. Procedural Background
By information filed September 15, 1980, appellant was charged with assault with the intent to commit rape (§ 220) and false imprisonment (§§ 236-237).
A petition for an extended commitment (§§ 1026, 1026.5, subdivision (b)) was filed on January 22, 2010. It alleged that appellant was admitted to Atascadero State Hospital on December 30, 1980 after he was found not guilty by reason of insanity of assault with intent to commit rape. It averred that appellant was transferred to Patton State Hospital on November 6, 1985 and released on outpatient status to South Bay CONREP on December 18, 1986. It further stated that appellant's outpatient status was revoked and an arrest warrant issued after he went AWOL from CONREP. It stated that appellant was arrested out of state and brought to California in 2007 and returned to the hospital. The petition alleged that appellant, "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."
A court trial was held on June 17, 2010. The court ordered that appellant's commitment be extended two years to July 22, 2012. The written order of commitment was filed the same day. B. Sufficiency of the Evidence Supporting Order of Commitment
1. Governing Law
A person found not guilty reason of insanity (NGI) may be committed beyond the "maximum term of commitment," as statutorily defined by section 1026.5, subdivision (a), "only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1).) In addition, section 1026.5, subdivision (b)(1), has been interpreted "as requiring proof that a person under commitment has serious difficulty in controlling dangerous behavior." (People v. Galindo (2006) 142 Cal.App.4th 531, 536; see People v. Bowers (2009) 169 Cal.App.4th 1442, 1450; People v. Bowers (2006) 145 Cal.App.4th 870, 877-878; see also In re Howard N. (2005) 35 Cal.4th 117.)
In In re Howard N., supra, 35 Cal.4th 117, the California Supreme Court examined the extended detention scheme under Welfare and Institutions Code section 1800 et seq. that then provided for the civil commitment of individuals under the control of the California Youth Authority (now Division of Juvenile Facilities). It observed: "A recent series of cases both in the United State Supreme Court and in this court has clarified that to be involuntarily civilly committed as a sexually violent predator, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior. (Kansas v. Crane (2002) 534 U.S. 407, 412-413, 122 S.Ct. 867, 151 L.Ed.2d 856 (Crane); Hendricks, supra, 521 U.S. at pp. 358, 360, 117 S.Ct. 2072; People v. Williams (2003) 31 Cal.4th 757, 759, 772, 774 . . . ; Hubbart, supra, 19 Cal.4th at pp. 1156, 1158 . . . .)" (Id. at p. 128.) The court "consider[ed] whether the extended detention scheme violates due process because it does not expressly require a finding that the person's mental deficiency, disorder, or abnormality causes serious difficulty in controlling his dangerous behavior." (Id. at p. 131.) In order to preserve the extended detention scheme's constitutionality, the court interpreted the extended detention scheme as requiring a showing that the person has "serious difficulty in controlling dangerous behavior." (Id. at p. 132.)
" '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.]" (People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-508.) 2. Evidence
Mark Lo, M.D., a psychiatrist, who was recognized by the court as an expert in the diagnosis and treatment of mental disorders and risk assessment, had been appellant's treating psychiatrist since 2007. Dr. Lo indicated that the underlying offense involved appellant "picking up [a] female victim with [the] intent to rape her." The evaluation of appellant indicated that "at that time he was having the delusions that the government [was] controlling him and want[ed] him to have sex with females especially [females] who [were] widows or divorced."
Dr. Lo diagnosed appellant with schizoaffective disorder, bipolar type. Appellant's mood was sometimes depressed, sometimes irritable and anxious. Appellant also "presented with delusions and paranoid ideations." The combination of the paranoid disorder with the mood problem is referred to as schizoaffective disorder. The "bipolar type" indicated that appellant was agitated and angry, not only depressed, at times.
Appellant had sometimes experienced a "hallucination" that "some bug [was] crawling on his face and causing him to have pain, and he believe[d] that that [was] caused by the government." The last report of such a hallucination was a "long, long time ago." In Dr. Lo's opinion, appellant still suffered from delusions. Appellant believed that the government was controlling people and him and monitoring him in the hospital. He also had other delusions and distorted thinking.
Appellant believed that the victim of the underlying assault wanted to have sex with him and, even after many years, he said he was "doing the lady a favor to rape her" and believed that she had made a pass at him as she walked by. As recently as May 16, 2010, a nurse had recorded in her written notes, that appellant was certain that "he did not do anything to the woman and . . . he was helping her." On April 18, 2010, a nurse indicated that appellant believed he "was just trying to help this woman." Appellant had never expressed any remorse for his acts but rather had continued to maintain he was helping the victim.
Dr. Lo indicated that appellant's abnormal beliefs were not restricted to the victim of the underlying offense but also related to other females. Dr. Lo related an incident that occurred while appellant was homeless and had gone in the mornings to a location where individuals waited to be chosen for work. Appellant told the doctor that, when a woman selected the person standing behind him for work, it meant that she liked appellant and she "treat[ed] him that way because she want[ed] to push him to some kind of helpless situation that he need[ed] to go [to] her for help."
When appellant had been on the community release program through CONREP, appellant had visited a church and "disturbed a female there." People from the church contacted the CONREP program and asked that appellant not return. Nevertheless, appellant believed that the ladies at the church liked him. He told Dr. Lo, and insisted several times when they had talked, that the priest at the church had liked him and the priest had wanted appellant to marry his daughter.
During his last hospital admission, appellant had misunderstood the intent of the female staff and had gotten into a confrontation with a social worker.
Dr. Lo believed that, if appellant were released into the community, appellant posed "a very dangerous situation [for] the ladies in the community." Appellant's continuing delusions were a factor that indicated dangerousness. Appellant had committed the original crime under delusion and the delusion still existed.
Appellant's lack of remorse was another reason for the doctor's conclusion that appellant was dangerous. In Dr. Lo's opinion, this lack of remorse "may be quite dangerous" because individuals are not motivated to change if they do not have remorse.
A further factor indicating dangerousness was the fact appellant had not completed sex offender treatment. Appellant misunderstands the intent of the females with whom he interacts. In Dr. Lo's opinion, appellant needed to finish the sex offender treatment program, which was a CONREP requirement. It was critical for appellant to make progress in treatment and, if he did, there was a chance that he would understand his own behavior better and learn to prevent it from happening again.
The final factor was appellant's lack of compliance in treatment when he was in the community. Appellant complained a lot to his doctors. He did not want to take his medication because he believed it was causing weight gain. Appellant's medication was changed and then appellant complained the new medication was going to cause him cancer. The treating doctor did not think that was a risk and would not change appellant's medication again. Appellant then ran away. He had no remorse about running away and said "at least my cancer was cured." Appellant did not have cancer at the time of trial and cancer does not go away without treatment.
In Dr. Lo's opinion, if appellant is not under treatment, he will have a relapse. During the previous extension hearing, appellant was in jail for only a few weeks and he had a relapse. He stated that appellant's mental illness was not that stable.
When asked whether appellant had serious difficulty in controlling his dangerous behaviors, Dr. Lo responded that appellant had no insight into his mental illness. Appellant did not admit that he has a mental illness and believed that he does not need any medication. Appellant said that "he's doing the doctor a favor to take his medication." Although Dr. Lo had not seen any dangerous behavior on the unit over the past two years, appellant had been on medication and under 24-hour-a-day supervision. In Dr. Lo's opinion, dangerous behaviors would reoccur without that level of supervision.
Dr. Lo described a Wellness Recovery Action Plan, known as WRAP. It is a relapse prevention plan that helps individuals with mental illness to understand the warning signs and triggers and the kind of help available in the community. He indicated that the first step for appellant would be to admit that he has a mental illness and he needed to prevent problematic behavior from happening again.
On cross-examination, Dr. Lo admitted that appellant had been making progress and was a likeable person. During the prior year of treatment, Dr. Lo had not noted any physical or verbal acts of aggression by appellant. Appellant regularly attended and participated in group therapy at Patton State Hospital.
Appellant was receiving a relatively low dosage of antipsychotic medication, a milligram of Risperdal in the morning and two milligrams of Risperdal in the evening. But the reason for the low dosage was that appellant would not agree to a higher dosage. Dr. Lo would increase the dosage if appellant agreed. Patton State Hospital did not allow the administration of such medication without patient permission.
Dr. Lo met with appellant once a month. Appellant sometimes attended the doctor's group. Dr. Lo made his rounds of all the patients every morning and appellant could talk to him at that time. When Dr. Lo performed a mental status examination the previous month, appellant was oriented to person, time, and place. Appellant understood the purpose of the present hearing.
During his treatment of appellant, Dr. Lo had not recently noted that appellant was having any auditory or visible hallucinations. Appellant knew that the doctors insist he has a mental illness but he has limited acceptance of his illness and the need to take medication. He goes along with the medication "to help the doctor" and had said that "at least no lady complain against me after I take the medication." Dr. Lo had not been successful in getting appellant to acknowledge his wrongdoing in regard to the 1980 crime. The doctor was aware that, after attending a sex offender group, appellant had written something "partially" admitting he might be misunderstanding the social rules regarding women.
Dr. Lo did not necessarily agree that, as appellant got older, he was less of a danger to others. It depended on an offender's thinking, not age.
Appellant was called to testify for the People. When asked whether he had a mental disorder, appellant said that his public defender had told him in 1980 that "since the woman told [appellant] to stop when [he] picked her up that meant she did not want to have sex with [him]." But he was "under the impression that she was flirting with [him], and she wanted to have sex with [him]" even though "she obviously screamed no." He acknowledged that his thoughts were "a mistake on [his] part" that "[s]ome call delusional thinking" and he had "made a major mistake of thinking delusional thinking, which is a symptom of mental illness." He stated that he guessed that he had a mental illness according to that definition.
When asked about his May 2010 statement that he had not harmed the victim but rather helped her, appellant indicated that he had left no bruises and had not dragged her into the bushes. When asked whether he thought he was helping her in any way, appellant indicated that he was hitchhiking and "she walked right past" him and he "thought that she made a pass at [him]." Appellant then digressed and spoke about being homeless and having trouble getting and keeping a job and having been a student at UCLA and eligible for the GI bill. When asked again about helping the victim, appellant recalled asking whether he could hold hands with her "before [he] grabbed her" and "she did not answer at all." He said he had "thought that maybe, maybe she wanted something more than physically . . . holding hands" so he put his "arm around her waist, lifted her up, [and] swept her off her feet . . . ." He said that when "she screamed stop in a frightened way," he "immediately put her down."
When asked whether he believed that the government was dropping leaflets telling him to rape or have sexual relationships with women who were single and divorced so that they could have sex without guilt, appellant said that he did not think the government was dropping leaflets for him to pick up. When asked if he believed that was true in 1980, he spoke about being homeless, and hitchhiking out in the sun for hours and hours with no water or food, and going days without getting a ride. He then asked, "Are you still talking about the leaflets?" He was asked if he ever believed that was true. Appellant said, "Yes. I may have been dehydrated and hungry and sunstroke almost."
Appellant acknowledged that he was currently taking medication. When asked whether he thought he needed that medication, appellant stated: "All I know [is that] it doesn't have any bad effects like the other ones that lead [sic] me to go AWOL from CONREP" and rambled on about gaining 50 pounds in two and a half months, being told by his CONREP psychiatrist that he was on the verge of getting diabetes, having trouble losing weight in CONREP because of all the changes in his medication, and receiving a diagnosis of schizoaffective, bipolar type. Appellant was asked whether he was concerned that the medications were causing cancer. He explained that, about two or three months before he went AWOL from CONREP, he thought he had cancer and this belief was based on what a doctor said about an abscess on his lip and he was "afraid that CONREP would pressure [him] in to [sic]getting [his] lip cut off . . . ." Appellant continued with a rambling answer. Appellant was asked whether he thought the medications were the cause of the problem with his lip; he stated, "I think it had more to do with the weight gain, because as I gained the weight the thing got bigger, and he said it was cancer, so I thought if I could get away—get away from CONREP and the medication, and I did, I went AWOL. I went to Las Vegas. I was free for a year. I took no medication for a year. . . . [T]he cancer shriveled away as I lost the weight. I didn't get diabetes, and you know, I didn't get my lip cut off or anything. [¶] . . . I'm not feeling bad about that. I think it is most understandable that I would go AWOL under those situations."
Appellant did not take any medication while he was AWOL and, according to him, he functioned fine without the medication. When asked if he did not need medication, appellant indicated that he goes along with what the doctor says, "particularly if [he is] in the hospital" and expected to take it.
Appellant acknowledged that he was currently in a sexual offender treatment program at Patton. He indicated that it was helping him and he would be willing to continue treatment. When asked whether he would be willing to go to CONREP again, appellant said he spent 20 years in CONREP and he had not done anything wrong in those 20 years. When asked if he would go AWOL from CONREP again, appellant said, "No. . . . [He] would go for the sanity hearing after one year. . . ."
Appellant explained that he signed the extension papers two years ago because he was in jail for 47 days waiting for his jury trial and he could not take the noise in his cell. He said that he "buckled under the noise" and he "didn't want to attack [his] noisy cellmate" "[s]o [he] volunteered to go back to Patton State Hospital."
When asked what he wanted the judge to order, appellant gave a long, nonresponsive answer. When asked the same question again, appellant gave another long, nonresponsive answer. When asked if there were "any specific points" that he wanted the court to know, appellant told the court: "I thought the lady was flirting with me back in 1980. Now, in 1978, I was a student at UCLA, and I was a senior and I was a decorated war veteran and the women were flirting with me at that school, and I was used to it. And I wasn't surprised when this lady seemed to make a pass at me, which I wasn't absolutely sure. And so . . . I went along with my public defender saying I would go NGI . . . and here it is 30 years later I'm still under their thumb."
On cross-examination, appellant indicated he attended group psychotherapy and had a very good relationship with the psychologist who ran the group, a Dr. Berger. He always attended when he was supposed to. When asked whether he always takes his prescription medication, Risperdal, he stated that they know that he swallows his medication and "they don't even . . . check [his] mouth." When asked whether he would continue to seek psychiatric treatment and take his medicine if he were released from the hospital without supervision, appellant stated that he was applying for a PTSD diagnosis and that, if released, he thought he "would seek out maybe some kind of support group from PTSD and keep within the mental health system in that way." Appellant also said that if Dr. Lo wanted him to continue taking Risperdal then he was "very happy with Risperdal after being over a rocky road of those other medications" and he had "found a medication that [he] can accept and not be afraid of."
Appellant said he had never heard any voices in his life. He denied having "any sort of delusional type thinking," like the kind that got him trouble in 1980, during his three years on Risperdal. Appellant was asked if he understood that his delusional thinking as a result of his mental illness got him into the trouble with the criminal justice system in 1980. Appellant gave a nonresponsive answer, indicating in a long reply that his choice had been to plead NGI or go to trial on an attempted rape charge and risk a long sentence.
Appellant indicated that he was in CONREP for 20 years. He lived in various board and care facilities and he was free to go and come. For about 15 of those years, appellant stayed in one facility, where he had his own room and there were three or four other female residents and a female caretaker. When asked if he was ever charged with a violent crime or a sexual offense during those 15 years, appellant answered, "Not even a jaywalking." He indicated that he was a law-abiding citizen. He also attended San Jose State for two years. He said that he had hurt no one in the last 30 years and he did not see why he posed any danger to anybody. But he still stated that "to [him] the original offense was a misunderstanding . . . ."
Appellant recognized that he had caused the victim of the offense to be severely frightened and admitted that she had sounded frightened. He indicated that he had remorse for his actions. But then appellant reiterated that the victim did not answer when he asked if he could hold her hands and stated that, according to Pope Benedict the VIII, silence gives consent and "all the popes agree, because they believe they are . . . infallible, in matters of faith and morals."
When appellant was asked if there were anything else he would like to tell the court, appellant indicated that he was worried about registering as a sex offender on his birthday and every time he changed his address and he "would have to juggle whatever [he] was doing with that in the back of [his] mind."
3. Analysis
a. Serious Difficulty Controlling Dangerous Behavior
Appellant now contends that the evidence was insufficient to establish that he has serious difficulty controlling his dangerous behavior. Appellant does not dispute that Dr. Lo opined that he poses a substantial danger if he is released. Rather, he challenges the basis for that opinion. He claims that "Dr. Lo's opinion was little more than his personal opinion, based in part on speculation." He asserts that "the evidence as a whole shows that [he] has not engaged in dangerous behavior in thirty years.' He maintains that the time he spent AWOL from CONREP shows that he is able to control his dangerous behavior because he stopped taking his medication yet there was no incident.
The evidence established that appellant suffered from schizoaffective disorder, bipolar type. He understood that the doctors insisted he had a mental illness, but he continued to minimize the underlying offense and his mental disorder. Appellant lacked insight into his mental illness and did not fully accept that he had a mental illness and needed to take medication.
The evidence showed that appellant's delusions and distorted thinking regarding women, which led to his criminal behavior against a female victim in 1980, had persisted over time and he had been treated for a long time with very little progress. At the trial, he was still saying that the underlying criminal offense was "a misunderstanding" and he had thought that the victim had made a pass at him. Appellant was still rationalizing his behavior based on the victim's failure to respond to his overture as she walked by him on the street, stating that Pope Benedict VIII had said silence means consent. Even in the recent months before trial, appellant had continued to make statements that he had been helping the victim of the underlying offense. Appellant did not fully appreciate how his delusional and distorted thinking had led him to commit the underlying offense.
The fact that appellant did not commit any dangerous acts while being treated in the state hospital, or while he was conditionally released to CONREP for outpatient treatment and supervision, did not necessarily mean that he was no longer dangerous to others or did not have serious difficulty in controlling dangerous behavior. (See People v. McCune (1995) 37 Cal.App.4th 686, 692 ["even though a defendant may be helped through treatment over the years, he or she may still represent a substantial danger of physical harm to others because of a mental disease, defect, or disorder"].) The continuation of delusions and distorted thinking as a result of his mental disorder, which had resulted in appellant's dangerous conduct in the underlying offense, coupled with appellant's lack of insight and apparent inability to recognize his delusional and distorted thinking, suggests that the underlying offense is an appropriate indicator of his dangerousness and continuing difficulties controlling his dangerous behavior. In Dr. Lo's opinion, his dangerous behavior would reoccur without supervision. The time spent AWOL does not necessarily prove otherwise since the trier of fact could reasonably conclude that appellant is not an accurate historian and there is no independent evidence of what occurred while he was a runaway.
As the United States Supreme Court recognized in Kansas v. Crane (2002) 534 U.S. 407 , "there may be 'considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior.' American Psychiatric Association Statement on the Insanity Defense, 140 Am. J. Psychiatry 681, 685 (1983) (discussing 'psychotic' individuals)." (Id. at p. 415.) With regard to proof of serious difficulty in controlling behavior, the court did not give "the phrase 'lack of control' a particularly narrow or technical meaning." (Id. at p. 413.) It "recognize[d] that in cases where lack of control is at issue, 'inability to control behavior' will not be demonstrable with mathematical precision." (Ibid.)
Appellant attempts to distinguish People v. Zapisek (2007) 147 Cal.App.4th 1151, which is cited by the People. Zapisek had argued in his appeal that "he did not represent a substantial danger of physical harm to others, and point[ed] to the evidence that he had not been involved in any incidents resulting in physical harm to others in the eight years he ha[d] been hospitalized, that he did not physically harm anyone prior to the 1997 assault, and that no one was physically harmed by his acting upon his delusions while in the hospital." (Id. at p. 1167.) Zapisek had insisted that "there was no evidence that he had a serious difficulty controlling his potentially dangerous behavior" and the expert opinions " 'amounted to nothing more than mere speculations regarding future dangerousness.' " (Ibid.)
The appellate court rejected Zapisek's arguments: "Although Zapisek's delusions do not command him directly to commit acts of violence, the court was entitled to rely on the expert testimony that he continued to act inappropriately based on delusions of the type he experienced in 1997, including in ways that could harm others, such as when he taped over hospital alarm sensors needed for medical emergencies." (Id. at p. 1168.) The court determined that the recommitment order was supported by substantial evidence that Zapisek had a mental disease, defect, or disorder that caused serious difficulty in controlling his dangerous behavior. (Id. at pp. 1165, 1168.)
Appellant argues that, "[u]nlike the defendant in Zapisek, appellant had been previously released into the community for a substantial length of time, over twenty years, without committing any new offense and without having his outpatient status revoked." In addition, appellant emphasizes that the evidence in Zapisek "showed that the defendant not only continued to harbor his delusions, but he acted on them." Appellant asserts that in the present case there was no evidence that he "had recently taken action on any delusions from which he may have suffered."
To the contrary, there was evidence that appellant has continued to act inappropriately as a result of his mental disorder. Based on irrational beliefs that his medication for his psychiatric disorder was causing a cancer on his lip and CONREP might pressure him into have his lip cut off, appellant left CONREP without permission and discontinued his medication. At the time of the hearing, he still believed his reasons for going AWOL were reasonable even though they were based on those irrational beliefs. The evidence did not show that appellant had developed sufficient ability to recognize his own delusional and distorted thinking that would allow him to control his dangerous behavior.
Appellant cites In re Anthony C. (2006) 138 Cal.App.4th 1493,1504, a case involving extended detention pursuant to Welfare and Institutions Code section 1800 et seq., for the principle that expert opinion cannot be based on guess, surmise, or conjecture. The appellate court in In re Anthony C. found that the expert witness's testimony did not constitute substantial evidence that the appellant had serious difficulty controlling his behavior. (Id. at p. 1507.) An expert who had prepared a formal risk assessment was unable to testify as scheduled. (Id. at p. 1506.) Another expert was asked to review that report and testify regarding the appellant's risk of reoffending. (Id. at pp. 1506-1507.) The testifying expert "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.)
In contrast, Dr. Lo had been appellant's treating psychiatrist since 2007 and was familiar with appellant. Dr. Lo explicitly testified to the relevant risk factors that he had considered in forming his opinion regarding appellant's dangerousness to others. In his opinion, appellant, if released, posed a substantial risk to "the ladies in the community" because of his delusions. In his opinion, the only reason that appellant had not engaged in dangerous behaviors since his return was that appellant was taking medication and under direct supervision 24 hours a day in a state hospital and, otherwise, the dangerous behaviors would reoccur. It may be inferred from Dr. Lo's testimony that appellant had serious difficultly controlling his dangerous behavior because of his delusional and distorted thinking.
Appellant claims that the factors relied upon by Dr. Lo did not show that he was unable to control his behavior, again emphasizing that the evidence did not disclose that he had committed any dangerous acts since the underlying offense. As to the lack of remorse factor, appellant now questions how remorse affects a person's ability to control behavior. It may be reasonably inferred from Dr. Lo's testimony that appellant's genuine remorse would indicate some understanding of wrongdoing and perhaps recognition of his mental disorder, which would be a first step toward being able to control his behavior.
Appellant also complains that Dr. Lo did not explain how sex offender treatment would affect a person suffering from delusions and how appellant managed to remain in the community for decades without such treatment and why he could not do so again. Appellant was not released into the community unsupervised; he was on outpatient status. Dr. Lo indicated that completion of the sex offender treatment program was a CONREP requirement. He stated, if appellant were able to progress in sex offender treatment, there was a chance that he would understand his own behavior better and would learn how to prevent it from happening again. Although Dr. Lo's testimony may not have answered all of appellant's present questions about Dr. Lo's reasoning in relying upon the sex offender treatment factor, appellant was free at trial to cross-examine Dr. Lo on "the matter upon which his . . . opinion [was] based and the reasons for his . . . opinion." (Evid. Code, § 721, subd. (a).)
The record does not establish that Dr. Lo's opinions rested upon improper matter, conjecture or speculation, irrelevant facts, or an incorrect legal theory. (See Evid. Code, § 801, subd. (b); Cal. Law Revision Com. com, 29B Pt. 3A West's Evid. Code (2009 ed.) foll. § 801, pp.25-26; Zemke v. Workmen's Compensation Appeals Bd. (1968) 68 Cal.2d 794, 798.) Dr. Lo's testimony constituted credible evidence of solid value and the court was entitled to rely on his opinions. (See People v. Bowers, supra, 145 Cal.App.4th 870, 879 ["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"]; Evid. Code, § 411 ["direct evidence of one witness who is entitled to full credit is sufficient proof of any fact"].) The evidence as a whole established that appellant suffers from a mental disorder, he poses a substantial danger of physical harm to others as a result, and he has serious difficulty controlling his dangerous behavior. b. Control of Mental Disorder through Medication as Affirmative Defense
Appellant was entitled to raise the affirmative defense "that his medication is effective in controlling his behavior and he will, in a completely unsupervised environment, take his medication without fail." (People v. Bolden (1990) 217 Cal.App.3d 1591, 1602, see id. at p. 1600, see also CALCRIM No. 3453 (2010 ed.) p. 1046.) Appellant had the burden of proving such defense by a preponderance of the evidence. (People v. Bolden, supra, 217 Cal.App.3d at p. 1602; see also CALCRIM No. 3453 (2010 ed.) pp. 1046-1047.)
Appellant now argues that he presented sufficient evidence to prove by a preponderance of the evidence that he is not dangerous when taking his medication and he will continue taking his medication in an unsupervised setting. He stresses that there was no evidence that he had ever refused his medication until he left CONREP when he perceived the medication was a hazard to his physical health.
"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves." (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129 . . . .)" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) " ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933.)
The court impliedly determined that appellant had not proved the defense and the evidence was sufficient to support this determination. Appellant was still experiencing delusional and distorted thinking of the type leading to the underlying offense even while on medication. It was reasonable to infer from the evidence that there was a very high risk that appellant would discontinue taking medication if released without supervision.
Appellant's choice to run away from CONREP was connected to his irrational perceptions about the medication he was taking. While he was unsupervised for about a year, he took no medication. Although appellant said that he was willing to go along with Dr. Lo and take the Risperdal medication, "particularly if [appellant was] in the hospital and [he was] expected to take medication," the evidence indicated that appellant believed he had functioned fine without it. Appellant was unwilling to take the higher dosage that Dr. Lo thought was appropriate.
Based on the evidence, a reasonable trier of fact could conclude that appellant had not proved both that (1) he no longer poses a substantial danger of physical harm to others because he is taking medication that controls his mental disorder and (2) he would continue to take his medication in an unsupervised environment.
DISPOSITION
The trial court's order of commitment is affirmed.
ELIA, J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.