Filed 2/3/15 P. v. Thomas CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication
                                    or ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059843

v.                                                                       (Super.Ct.No. FELSS1301511)

TRINA THOMAS,                                                            OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Victor R. Stull,

Judge. Affirmed.

         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and

Respondent.




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        Defendant and appellant Trina Thomas was declared a Mentally Disordered

Offender (MDO) pursuant to Penal Code 1 section 2962 in November 2006. In addition,

in 2010 defendant was deemed an MDO in connection with charges filed against her in

2009. On April 16, 2013, the People filed a petition to extend defendant’s mos t recent

commitment term, which was to expire on September 12, 2013. After a jury trial,

defendant’s commitment was extended for another year, or until September 12, 2014.

        On appeal, defendant argues the People failed to present substantial evidence

proving that she is currently dangerous to others. (§ 2972, subd. (c).) We disagree and

affirm the judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

        Defendant’s initial MDO commitment occurred after she served a prison sentence

for attempted arson. The 2009 charges that led to defendant’s second MDO commitment

were for assault with a deadly weapon, not a firearm, and battery with serious bodily

injury arising from an incident at Patton State Hospital (Patton), where she had been

receiving treatment pursuant to the 2006 MDO commitment.

        At trial, the jury heard testimony from Dr. Steven Galarza, a staff psychiatrist at

Patton who had been treating defendant for over two years. He diagnosed defendant with

schizophrenia, paranoid type, which has been marked by olfactory and auditory

hallucinations and false but fixed beliefs that she or her family members were about to be


        1   Unless otherwise indicated, all further statutory references are to the Penal
Code.


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killed or seriously injured. Although medications had decreased defendant’s symptoms

to some degree, Dr. Galarza testified that, on a nearly daily basis, hospital staff members

have observed defendant yelling obscenities and other unpleasant things at the walls or

unseen objects. According to Dr. Galarza, other patients know to stay away from

defendant at these times because “she will get irritated” if people try to talk to her.

       Dr. Galarza also diagnosed defendant with cocaine dependence and antisocial

personality disorder. Although neither condition is a qualifying disorder for purposes of

MDO commitments, Dr. Galarza explained that each has a “synergistic” relationship with

defendant’s schizophrenia. This means that using cocaine again could aggravate or cause

psychotic symptoms, as well as that defendant would be more likely to break rules if she

became symptomatic.

       Dr. Galarza commented that he had seen “significant improvement” in defendant

in the eight months before trial. However, he nonetheless opined that she was not in

remission at the time of trial because her almost daily outbursts still caused disturbances

in her ability to function.

       In addition, Dr. Galarza testified that, for two main reasons, defendant posed a risk

of physical harm to others, even though her last act of documented physical violence

toward another was in 2010. First, she was still actively psychotic, and defendant’s

history showed that she “tends to have a greater propensity to be violent” when this

condition is met. Because patients and staff at the hospital knew to leave defendant alone

during her hallucinations but people outside the hospital would not have the same



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knowledge about defendant’s tendencies, Dr. Galarza expressed concern that defendant

would become violent toward a stranger who approached her during an episode.

       Second, Dr. Galarza opined that defendant has limited insight into her mental

illness, which means she does not always recognize when her symptoms are recurring so

that she can ask for help and address the situation in a “rational manner.” Although she

started attending treatment groups at Patton shortly before trial, defendant’s attendance

had previously been at only 30 percent. Defendant had also been suspended from two

drug abuse education programs, once due to bad attendance and once because she had

been caught in possession of batteries, which are contraband at the hospital. Although

defendant had recently stated to Dr. Galarza that she would not do any drugs if released,

she had previously indicated that smoking marijuana would be permissible, and she had

failed drug tests twice at Patton. In addition, although defendant had complied with

medication orders while at Patton, Dr. Galarza expressed concern that, given her lack of

education about her condition, she would have more difficulty regularly taking

medications once she became responsible for acquiring prescriptions, having them filled,

and consuming them without monitoring.

       In Dr. Galarza’s opinion, defendant met all three criteria for recommitment as an

MDO: she had a severe mental disorder, the disorder was not in remission, and

defendant represented a risk of physical harm to others. (§ 2972, subd. (c).) The jury

apparently agreed, as it also found that defendant met all applicable recommitment

criteria.



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                                        ANALYSIS

       Defendant’s sole argument on appeal is that the evidence we have summarized is

insufficient to support the jury’s finding that she was dangerous to others at the time of

trial. After rejecting the Peoples’ contention that this appeal is moot because the

commitment period defendant challenges has expired, we explain why defendant’s lone

contention fails.

       1. This appeal is not moot

       “ ‘[A] case becomes moot when a court ruling can have no practical effect or

cannot provide the parties with effective relief. [Citation.]’ ” (People v. Rish (2008) 163

Cal.App.4th 1370, 1380 (Rish).) Generally, an appeal from a commitment order becomes

moot if the commitment period expires. (People v. Merfield (2007) 147 Cal.App.4th

1071, 1074 (Merfield); see also People v. Jenkins (1995) 35 Cal.App.4th 669, 672, fn. 2

(Jenkins), abrogated on other grounds by People v. Robinson (1998) 63 Cal.App.4th 348,

352, fn. 2.)

       However, an appeal from a MDO recommitment has a practical effect and is not

moot if its decision would affect the trial court’s jurisdiction over subsequent

recommitment proceedings. (People v. J.S. (2014) 229 Cal.App.4th 163, 170 [Fourth

Dist., Div. Two] (J.S.).) For example, in J.S., we concluded that an appeal from an order

dismissing a petition to challenge an initial commitment (§ 2966) was not moot because,

“if an offender’s initial commitment is improper, any extended commitment would also

be improper.” (J.S., at p. 171.) Similarly, in People v. Fernandez (1999) 70 Cal.App.4th



                                              5
117, 134-135 (Fernandez)), even though the appellant’s commitment term had expired,

the reviewing court “conclude[d] that the appeal is not moot because [its] decision may

still affect the lower court’s right to continue jurisdiction under the original commitment

as well as the recommitment.” The issue on which the court provided guidance was

whether a trial court lost jurisdiction over a petition to extend an MDO commitment

when certain procedural deadlines were not met. (Id. at pp. 126-127; see also People v.

Mord (1988) 197 Cal.App.3d 1090, 1114-1115 (Mord) [appeal not moot because

resolution of allegations that procedural errors had occurred in the process for

recommitting defendants found not guilty by reason of insanity (§ 1026.5) could affect

the lower court’s jurisdiction to keep the appellant confined].) In both Fernandez and

Mord, the court issued a full opinion on the merits even though it rejected contentions

that procedural irregularities deprived the trial court of jurisdiction to keep the defendant

confined on the instant or on subsequent recommitment petitions. (Mord, at p. 1115

[“Our conclusion reached herein does continue the court’s jurisdiction pursuant to its

recommitment order made in 1985”]; Fernandez, at pp. 134-135 [citing Mord for the

proposition quoted above].)

       In sum, then, an appeal from a commitment order becomes moot if the

commitment period expires and no question is raised that could alter the superior court’s

jurisdiction over the defendant’s confinement. In this case, defendant asserts that the

presence of a single recommitment order that was not supported by substantial evidence

of an MDO’s dangerousness “puts a hole in the entire fabric” of ongoing commitments



                                              6
“like a dropped stitch,” such that a holding from us that defendant’s 2013 extension was

not supported by substantial evidence would influence the outcome of later commitment

proceedings. We need not decide whether this position is correct, since we find that the

jury verdict here was supported by substantial evidence. Still, under Fernandez and

Mord, the fact that defendant makes contentions that could, if successful, affect later

recommitment proceedings means that the appeal is not moot. We therefore proceed to

the merits of defendant’s contentions.

       2. Substantial evidence supports the finding that defendant was dangerous

       Once a prisoner has been committed as an MDO (§ 2962), she may be

recommitted annually on petition by the People (§ 2970, subd. (b)). At the

recommitment stage, the People need prove that, at the time of trial, “the patient has a

severe mental disorder, that the patient’s severe mental disorder is not in remission or

cannot be kept in remission without treatment, and that by reason of his or her severe

mental disorder, the patient represents a substantial danger of physical harm to others.”

(§ 2972, subd. (c).) We review trial court determinations regarding MDO criteria “for

substantial evidence, drawing all reasonable inferences, and resolving all conflicts, in

favor of the judgment.” (People v. Martin (2005) 127 Cal.App.4th 970, 975, disapproved

on other grounds by People v. Achrem (2013) 213 Cal.App.4th 153, 157.)

       In essence, defendant’s attack on the judgment boils down to a complaint that the

jury cannot have found her to be dangerous because she has complied with medication

orders, and because her only acting out since her last act of violence in 2010 has taken the



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form of verbal, but not overtly physical, outbursts. Even though the record supports the

assumptions that defendant is medication compliant and has not been physically violent

in several years, the conclusion defendant draws about her dangerousness does not

automatically follow.

       First, the decrease in violent behavior may stem not from an increase in self-

control on defendant’s part, but from the fact that, as Dr. Galarza noted, staff and other

patients at Patton now know not to disturb defendant when she is actively hallucinating.

Second, defendant makes no attempt to undermine Dr. Galarza’s opinion that, even if she

has not been violent in the very recent past, she would likely become so now or in the

future if an unknown member of the public approached her during a hallucinatory

episode. Finally, defendant fails to account for Dr. Galarza’s opinion that she has only

limited insight into her schizophrenia, which means she is simultaneously more likely to

return to using illegal drugs that exacerbate her symptoms and less likely to take

medication or use psychosocial support options, as well as that she will not know, once

released into the community, how to prevent her symptoms from interfering with her life

or the lives of others or how to address problematic behavior should it occur.

       For these reasons, substantial evidence supports Dr. Galarza’s conclusion that

defendant’s schizophrenia, which is not in remission, renders defendant dangerous to

others outside the controlled environment of the hospital because she has limited insight

into her diagnosis and tends to respond violently when people interrupt her during a

hallucinatory episode. We therefore affirm the judgment.



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                                  DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                RAMIREZ
                                                          P. J.


We concur:


McKINSTER
                        J.


MILLER
                        J.




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