Filed 3/28/14 P. v. Stockman CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137286
v.
GREGORY CHATTEN STOCKMAN,                                            (Sonoma County
                                                                     Super. Ct. No. SCR20626)
         Defendant and Appellant.


         In 1993, defendant Gregory Chatten Stockman was charged with attempted
murder and assault with a deadly weapon. (Pen. Code, §§ 187 subd. (a), 664, 245, subd.
(a)(1).)1 He was found not guilty by reason of insanity and committed to Napa State
Hospital. Defendant appeals from an order denying him conditional release under section
1026.2 to a supervised outpatient program. We affirm.
                                            FACTUAL BACKGROUND
         This appeal is the latest in a series of disputes concerning defendant’s treatment
and rehabilitation.
         Defendant has been diagnosed with Bipolar I Disorder, alcohol dependence, and
Personality Disorder Not Otherwise Specified. On two occasions, from 2001–2003 and
from 2004–2006, the state hospital authorized his conditional release on an outpatient
basis.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.


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       In 2006, the trial court revoked outpatient status because there was substantial
evidence he needed inpatient treatment or had refused outpatient treatment and
supervision. We affirmed this order in 2008 in a nonpublished opinion. (People v.
Stockman (July 18, 2008, A117559).) As a result of the revocation order, the trial court
ruled defendant was ineligible for a final-phase restoration-of-sanity trial. We also
affirmed this order. (People v. Stockman (Nov. 25, 2008, A120518) [nonpub. opn.].)
       Recognizing that he needed to regain outpatient status as the first step in the
restoration-of-sanity process, defendant, in 2009, sought outpatient status by application
under section 1026.2. The trial court denied this application, crediting expert testimony
defendant would be dangerous to others if released, because he had shown an
unwillingness to comply with essential requirements of his treatment plan and was
guarded and non-communicative with his treatment team. We concluded the court’s
findings were supported by substantial evidence, and affirmed in 2010 in a nonpublished
opinion. (People v. Stockman (Oct. 22, 2010, A126735).)
       Section 1026.2 allows successive applications for outpatient release or restoration
of sanity, so long as the defendant waits a year after each denial. (§ 1026.2, subd. (j).)
Defendant filed a new application on July 11, 2012.
       The trial court requested a current report from Napa State Hospital, which
defendant submitted with his court filings. (See § 1026.2, subd. (l) [when application for
outpatient release is by defendant, “no action on the application shall be taken by the
court without first obtaining the written recommendation of the medical director of the
state hospital or other treatment facility”]; see also People v. Sword (1994)
29 Cal.App.4th 614, 635–636 [court may consider medical records of committee, despite
hearsay concerns].) According to the report, defendant “should be retained for treatment,
as he has a severe mental illness, continues to be a danger to others, and therefore cannot
be treated in a lower level of care or a less secure facility at this time.”



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       Although the report noted no incidents of verbal or behavioral aggression and no
major relapse since defendant’s initial offense, and also noted other positive
developments (such as defendant having previously held a job at the hospital and
defendant’s new willingness to share information about his financial transactions), the
report also catalogued a number of concerns. For instance, defendant, despite
medication, exhibits some residual symptoms of his disorder, including “paranoia and
some obsessive qualities”; defendant’s most recent doctor, Dr. Sachdeb, found defendant
had poor judgment and an unwillingness to follow his treatment plan; defendant was not
compliant with conditions when previously an outpatient and he presently was refusing to
meet with certain staff who handle the outpatient release program; and defendant was
recently relocated from an “open unit” to a “closed” or “locked” unit after refusing to
take Abilify, which had been prescribed (in addition to the Lithium he was already taking
for the bipolar disorder) to reduce the “paranoid symptoms related to his mental illness
that lead him to be excessively guarded and interfere with his treatment.” According to
the report, his unwillingness to cooperate in his treatment, as most seriously and recently
evidenced by his refusal to take Abilify, indicates “he may not cooperate with his
treatment team if he is placed in community supervision.” His “excessive guardedness
creates uncertainty that he will openly share symptoms with his team, making it harder to
ensure they will be able to provide the optimal treatment to prevent future
decompensation and the much higher risk level that such a decompensation would
entail.” Further, the treatment team views defendant’s unwillingness to cooperate as a
risk factor for dangerous behavior.
       The court held a hearing on defendant’s section 1026.2 application over three days
in November 2012. Five witnesses testified.
       Dr. Eugene Roeder, retained by defendant, reviewed defendant’s records and
interviewed defendant. He opined defendant would not be a danger to others if placed on
outpatient release. He believed defendant would continue to take his Lithium. Although

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prescription of medications was beyond Dr. Roeder’s expertise, he was allowed to offer
his opinion that defendant’s refusal to take Abilify would not increase defendant’s danger
to society. Yet Dr. Roeder testified medication noncompliance, with Lithium in
particular, would be a marker of dangerousness. Further, Dr. Roeder believed some of
the hospital-imposed “compliance” conditions, such as the requirement that defendant
disclose a particular loan transaction from 2006, did not relate to dangerousness, even if
an uptick in spending could be, in general, a marker for relapse.
       Dr. Anita Sachdeb, a psychiatrist from Napa State Hospital, treated defendant
during the four to five months prior to his most recent application. She confirmed Abilify
was prescribed—and recommended by three different doctors—to address defendant’s
guarded, suspicious, and paranoid behavior, and elaborated that Abilify also treats
Bipolar I Disorder and it was hoped Abilify might address residual symptoms the
Lithium had not completely addressed. She also testified defendant had problems while
in the community before 1993 staying on Lithium, although there had not been a problem
with Lithium since. She also noted an incident in 2007 when defendant refused
Risperdal. The failure to take Abilify was a “really important criteria” and the “main
concern.” Even if he might continue to take Lithium as an outpatient, he would almost
certainly not take Abilify or other similar drugs prescribed by his doctors. According to
Dr. Sachdeb, defendant was having ongoing trouble confiding in his treatment team and
they had difficulty knowing what was going on inside his head. A lack of transparency
could “lead to a lot of problems” and the missing of warning signs of impending danger.
Ultimately, Dr. Sachdeb concluded defendant would be dangerous if not in the hospital
environment and he stopped taking his medications.
       Dr. Amarpreed Singh, a senior psychiatrist at Napa State Hospital, had offered a
second opinion regarding the prescription of Abilify, and believed it should be prescribed
to defendant both for his Bipolar I Disorder and for his personality issues. He did not,
however, offer an opinion on dangerousness.

                                             4
       Dr. Eytan Bercovitch treated defendant during parts of the preceding three years,
until defendant was moved into the locked unit under Dr. Sachdeb’s care. Dr. Brecovitch
testified there would be concern that “if you don’t know what [someone who has Bipolar
I Disorder is] doing,” the individual could relapse. Although defendant’s hospital records
might show “in full remission,” that must be understood as within a secure hospital
setting. Dr. Bercovitch conceded defendant did not show any dangerous behavior during
his five years of outpatient release between 2001 and 2006, but said that had to be
balanced against his “worrisome” lapses in taking Lithium prior to his tenure at the
hospital. A past pattern of not taking medications, even if presently stopped, increases
the risk of relapse and danger to society.
       Finally, Ms. Christina Barasch, Director of Sonoma County’s conditional release
program, testified as an expert in forensic social work. She stated there were numerous
things defendant had failed to do while previously on conditional release between 2001
and 2006, such as calling back his outpatient supervisor or vocational rehabilitation and
reporting significant financial transactions. Ms. Barasch opined defendant was guarded
and secretive in his interactions with his treatment team, which stymied communication
and undermined trust. Such behavior could put society at risk because it would be far
more difficult for those administering treatment to recognize warning signs that
defendant was relapsing and becoming dangerous. She also stated no conditional release
program in the state would take a defendant who was refusing any medication, whether
for psychiatric or medical purposes. Finally, she reported a 2008 risk assessment study
found defendant presented a moderate risk of violence.
       At the end of the third hearing day, the trial court ruled from the bench. First, it
believed the conditional release hearing had been premature and unnecessary because a
prerequisite under section 1603 was absent: the state hospital did not support defendant’s
conditional release. Second, the trial court found defendant’s conditional release would
endanger the community. The court was particularly concerned about the evidence

                                              5
defendant had refused to take Abilify and maintain open communications with his
treatment team. It noted even defendant’s expert Dr. Roeder believed “medication
compliance is the ‘foremost marker for dangerousness’ ” and had conceded the
importance of, in general, keeping treatment providers appraised of financial matters.
The trial court concluded defendant’s lack of compliance pointed “directly to his
potential for dangerousness in the community.”
                                        DISCUSSION
       “A person committed to a state hospital or other treatment facility under the
provisions of Section 1026 shall be released from the state hospital or other treatment
facility only under one or more of the following circumstances: [¶] (a) Pursuant to the
provisions of Section 1026.2. [¶] (b) Upon expiration of the maximum term of
commitment as provided in subdivision (a) of Section 1026.5, except as such term may
be extended under the provisions of subdivision (b) of Section 1026.5. [¶] (c) As
otherwise expressly provided in Title 15 (commencing with Section 1600) of Part 2.”
(§ 1026.1; see also People v. Cross (2005) 127 Cal.App.4th 63, 72.) “In this case, the
only issue relates to the first option . . . whether defendant should be released pursuant to
the provisions of section 1026.2.” (People v. Soiu (2003) 106 Cal.App.4th 1191, 1195–
1196 (Soiu).)
       Section 1026.2 allows a defendant (or his treatment facility director or his
outpatient program director) to submit an application for release based on restoration of
sanity. (§ 1026.2, subd. (a).)2 “Section 1026.2 involves what has been described as a


       2
         Section 1026.2, subdivision (a), provides: “An application for the release of a
person who has been committed to a state hospital or other treatment facility, as provided
in Section 1026, upon the ground that sanity has been restored, may be made to the
superior court of the county from which the commitment was made, either by the person,
or by the medical director of the state hospital or other treatment facility to which the
person is committed or by the community program director where the person is on
outpatient status . . . .”


                                              6
two-step process. [Citations.] The first step in the release process requires the defendant,
who has filed a release application, to demonstrate at a hearing that he or she will not ‘be
a danger to the health and safety of others, due to mental defect, disease, or disorder, [if]
under supervision and treatment in the community.’ (§ 1026.2, subd[.] (e).)3 If the court
finds such at the hearing, the defendant is then placed in ‘an appropriate forensic
conditional release program for one year.’ (§ 1026.2, subd[.] (e).) This is commonly
called the outpatient placement hearing.” (Soiu, supra, 106 Cal.App.4th at p. 1196,
italics omitted.) “The second step in the release process, often referred to as the
restoration of sanity trial, normally occurs one year after the defendant has been placed in
an outpatient program.” (Soiu, supra, 106 Cal.App.4th at p. 1196.) “Unlike during the
first step in the proceedings, the restoration of sanity trial requires the defendant to
demonstrate that he or she is no longer a danger to the health and safety of others under
all circumstances.” (Ibid.) This appeal concerns the first, not the second, step of the
process.
       The section 1026.2 process is distinct from, and should not be confused with, the
process under title 15 and section 1600 et seq. (See People v. Sword (1994)


       3
          Section 1026.2, subdivision (e), provides: “The court shall hold a hearing to
determine whether the person applying for restoration of sanity would be a danger to the
health and safety of others, due to mental defect, disease, or disorder, if under supervision
and treatment in the community. If the court at the hearing determines the applicant will
not be a danger to the health and safety of others, due to mental defect, disease, or
disorder, while under supervision and treatment in the community, the court shall order
the applicant placed with an appropriate forensic conditional release program for one
year. The court at the end of the one year, shall have a trial to determine if sanity has
been restored, which means the applicant is no longer a danger to the health and safety of
others, due to mental defect, disease, or disorder. The court shall not determine whether
the applicant has been restored to sanity until the applicant has completed the one year in
the appropriate forensic conditional release program, unless the community program
director sooner makes a recommendation for restoration of sanity and unconditional
release as described in subdivision (h). The court shall notify the persons required to be
notified in subdivision (a) of the hearing date.”


                                               7
29 Cal.App.4th 614, 620 (Sword); see also People v. McDonough (2011)
196 Cal.App.4th 1472, 1490.) Under the title 15 procedure, “a defendant may be placed
on outpatient status if the director of the state hospital and the community program
director so recommend, and the trial court approves the recommendation after hearing.”
(Sword, supra, 29 Cal.App.4th at p. 620, italics added.) A defendant is not empowered,
him or herself, to seek outpatient status under title 15, and indeed the status is a
“ ‘discretionary form of treatment to be ordered by the committing court only if the
medical experts who plan and provide treatment conclude that such treatment would
benefit the [offender] and cause no undue hazard to the community.’ ” (Ibid.) Since a
decision to order outpatient status under title 15 is discretionary (§§ 1600, 1602, 1603;
Sword, at p. 620 [all stating defendant “may be placed on outpatient status” if various
conditions met]), such a decision is reviewed for abuse of discretion (Sword, at p. 619,
fn. 2; People v. Cross (2005) 127 Cal.App.4th 63, 66 (Cross)).
       When outpatient status is sought under section 1026.2, however, the statute
specifies the trial court “shall” grant that status if it “determines the applicant will not be
a danger to the health and safety of others, due to mental defect, disease, or disorder,
while under supervision and treatment in the community.” (§ 1026.2, subd. (e).) “The
statute’s use of the term ‘shall’ signifies that the trial court has no discretion but must
order” outpatient treatment “when the required factual showing is made.” (People v.
Rasmuson (2006) 145 Cal.App.4th 1487, 1504.) Accordingly, the trial court is called on
to make a factual determination, which we ordinarily review under the substantial
evidence standard. (Id. at pp. 1503–1505 [the “substantial evidence standard . . . is used
in reviewing any disputed factual question, whether it arises at trial or otherwise”]; id. at
p. 1503 [when conditional release of a sexually violent predator “shall” be granted upon
showing of whether defendant “likely” to engage in such behavior due to a mental
disorder if supervised and treated in the community, review of denial of release reviewed
for substantial evidence]; see also People v. Gregerson (2011) 202 Cal.App.4th 306, 320

                                               8
[“If the court denies outpatient treatment” under the Mentally Disabled Offender Act
(MDO), “its order will be affirmed if substantial evidence” supports necessary
determination outpatient care not “safe and effective,” the MDO statutory standard.].)4
       There is ample evidence in the record supporting the trial court’s implicit finding
that defendant’s release would pose a danger to the health and safety of others, including
the evidence of defendant’s refusal to take Abilify and other forms of noncompliance and
guardedness creates too great a treatment challenge and too great a risk of danger. In
fact, it appears, given defendant’s recent refusal of medication and transfer to a locked
unit, the situation is arguably worse than it was when defendant unsuccessfully applied
for restoration of sanity in 2010. That defendant presented contrary evidence, or that the
prosecuting attorney characterized this as a “close” case, does not change the fact that the
trial court sat as the trier of fact and was entitled to credit the testimony of the state’s
witnesses, and that its ruling is supported by substantial evidence. “ ‘All presumptions
favor the trial court’s ruling, which is entitled to great deference because the trial judge,


       4
          We recognize some decisions involving section 1026.2 have applied the same
abuse of discretion standard applicable to title 15 proceedings. (See, e.g., People v.
Bartsch (2008) 167 Cal.App.4th 896, 900 (Bartsch); People v. Dobson (2008)
161 Cal.App.4th 1422, 1433 (Dobson).) However, neither Bartsch nor Dobson analyzed
use of the abuse of discretion standard and, instead, simply cited to Sword or Cross, cases
that concerned the alternative, discretionary means of obtaining outpatient status under
title 15. (Sword, supra, 29 Cal.App.4th at p. 619, fn. 2; Cross, supra, 127 Cal.App.4th at
p. 66. Further, Dobson’s mention of the abuse of discretion standard occurred amidst a
broad discussion of section 1026.2, and Dobson held only that an appeal from denial of a
petition to restore competency under that section is not subject to “[People v. ]Wende
[(1979) 25 Cal.3d 436]” review procedures. (Dobson, supra, 161 Cal.App.4th at
p. 1435.) In any event, whether we employ the abuse of discretion or substantial
evidence standard of review, the outcome we reach here is the same. Indeed, some courts
have defined abuse of discretion in this context in a way that is practically
indistinguishable from substantial evidence review. (See People v. McDonough (2011)
196 Cal.App.4th 1472, 1489 [“In determining whether the trial court abused its
discretion, we look to whether the court relied on proper factors and whether those
factors are supported by the record.”].)


                                                9
having been present at trial, necessarily is more familiar with the evidence and is bound
by the more demanding test of weighing conflicting evidence rather than our standard of
review under the substantial evidence rule. . . . [W]e do not reassess the credibility of
witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light
most favorable to the judgment, accepting every reasonable inference and resolving all
conflicts in its favor.’ ” (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442,
452.)
        The issue is not, as defendant claims, whether he is currently dangerous. A
determination under section 1026.2, subdivision (e), that a defendant would not be
dangerous “[if] under supervision and treatment in the community” does not call on the
trial court to assess how dangerous a defendant is in his or her secure, hospitalized
environment. Section 1026.2 necessarily calls for extrapolation and hypothesizing in
order to predict a future condition—namely, the defendant’s behavior when supervised as
an outpatient. (See People v. Williams (1988) 198 Cal.App.3d 1476, 1479, italics added
[requiring trial court to give this jury instruction: “ ‘in order to have the Defendant’s
sanity legally restored, while in a medicated state, you must also find, by a preponderance
of the evidence, that the Defendant will continue to take his medication as
prescribed’ ”].) Nor does the trial court’s decision here implicate constitutional concerns.
(See People v. Beck (1996) 47 Cal.App.4th 1676, 1682 [outpatient release under
section 1026.2 is not governed by constitutional mandates to release a defendant who is
no longer mentally ill and would pose no danger if released outright without conditions].)
        Given that the trial court’s substantive finding under section 1026.2 is supported
by substantial evidence, we need not address the court’s alternative ruling that it should
not have proceeded with a hearing without a positive recommendation from defendant’s
treatment providers. We note, however, the Attorney General has not defended this
ruling, and the positive recommendation requirement appears applicable only in title 15
proceedings, not section 1026.2 proceedings. In any case, “we review the ruling, not the

                                             10
court’s reasoning and, if the ruling was correct on any ground, we affirm.” (People v.
Geier (2007) 41 Cal.4th 555, 582.)
                                      DISPOSITION
      The order denying conditional release as an outpatient is affirmed.


                                                _________________________
                                                Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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