Filed 7/24/14 P. v. D.W. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058640

v.                                                                       (Super.Ct.No. FELSS1103171)

D.W.,                                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Katrina West,

Judge. Affirmed.

         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant D.W., a Mentally Disordered Offender (MDO), appeals from an order

revoking his outpatient status under Penal Code section 1608.1 He contends the

mandatory statutory procedures outlined in sections 1608 and 1610 were not followed,

and his statutory and due process rights were violated when the trial court allowed the

admission of unlimited hearsay. Rejecting his contentions, we affirm.

                     I. PROCEDURAL BACKGROUND AND FACTS

       Defendant was committed and admitted to Atascadero State Hospital on

November 2, 2003, after being certified as an MDO, parolee, pursuant to section 2962.

He was administratively transferred to Patton State Hospital (Patton) on June 7, 2005,

and his legal status was converted to MDO, former parolee, on November 2, 2006,

pursuant to section 2972. His controlling crime was a violation of section 4501.5, battery

on a nonprisoner.

       Prior to August 31, 2012, the San Bernardino County District Attorney petitioned

the court pursuant to section 2970 to establish that defendant met the criteria of an MDO.

On August 31, 2012, defendant withdrew his opposition to the petition and agreed to

proceed with a placement hearing. As a result of the hearing, the trial court ordered that

defendant receive community outpatient treatment via the Gateways Conditional Release

Program (CONREP).2 In preparation for this placement, CONREP met with defendant to


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

       2 CONREP is “an involuntary treatment program created by the Legislature and
includes requirements for treatment and supervision.” (People v. DeGuzman (1995) 33
Cal.App.4th 414, 416.)

                                              2
have him sign the terms and conditions of outpatient treatment and to assess his current

functioning for purposes of developing a treatment plan. Following the meeting,

Dr. Nicole Paglione, psychologist, submitted a letter to the trial court dated

September 28, 2012, opining that defendant required the level of care offered at a state

hospital; nonetheless, CONREP continued complying with the court’s order to place

defendant in outpatient treatment.

       Following delays in receiving the necessary documentation to facilitate the

transfer from Patton to CONREP, Dr. Paglione sent another letter to the court dated

January 3, 2013, informing the judge about defendant’s “serious decompensation” and

her request that the court rescind its placement order. On January 24, 2013, the trial court

held a hearing pursuant to sections 2966 and 2970. After hearing the testimonies of three

doctors, the trial court found “no specific accounts of violent behavior, or any destruction

of property. The hallucinations have not been violent in nature . . . .” The court ordered

defendant released to CONREP “in the community outpatien[t] treatment program

IMMEDIATELY . . . .”

       On April 2, 2013, Drs. Daniel J. Lance, forensic clinician, and Wendy A. Hatcher,

Psychologist, along with Dr. Daniel Sussman, Program Director, filed a letter with the

court entitled “Notification of Rehospitalization.” In the letter, Dr. Sussman notified the

court under sections 1608 and 1610 that defendant had been rehospitalized on that date

“due to psychiatric decompensation, behavioral instability, and non-compliance with

program rules and the terms and conditions of outpatient treatment.” Dr. Sussman further

stated CONREP was “seeking a revocation of [defendant’s] outpatient status,” and that it

                                              3
would also submit a more detailed report regarding the circumstances leading up to the

rehospitalization. The detailed report was submitted via an April 10, 2013, letter entitled

“Request for Revocation of Outpatient Status.”

       On April 22, 2013, the trial court held an evidentiary hearing. After listening to

the testimonies of the various experts, the court found that defendant had violated the

terms and conditions of his outpatient program and that he could not be safely and

effectively treated in the community, and ordered the outpatient treatment program

revoked under section 1608. Defendant appeals.

                                      II. DISCUSSION

A. Statutory Procedures for Revocation of Outpatient Treatment

       Defendant contends that CONREP’s failure to comply with the statutory

requirements of sections 1608 and 1610 resulted in his illegal hospitalization for eight

days and his counsel being deprived of “a full opportunity to prepare for the hearing.”

Noting that “no specific remedy for this violation of [his] rights is provided by the

statute,” defendant “suggests . . . that the appropriate remedy is the reversal of the

judgment of the trial court and an order placing [him] back into the conditional release

program.”

       Section 1608 provides, in relevant part: “If at any time during the outpatient

period, the outpatient treatment supervisor is of the opinion that the person requires

extended inpatient treatment or refuses to accept further outpatient treatment and

supervision, the community program director shall notify the superior court in either the

county which approved outpatient status or in the county where outpatient treatment is

                                              4
being provided of such opinion by means of a written request for revocation of outpatient

status. . . . [¶] Within 15 judicial days, the court where the request was filed shall hold a

hearing and shall either approve or disapprove the request for revocation of outpatient

status. If the court approves the request for revocation, the court shall order that the

person be confined in a state hospital or other treatment facility approved by the

community program director. . . .”

        Section 1610, in relevant part, provides: “(a) Upon the filing of a request for

revocation under Section 1608 . . . and pending the court’s decision on revocation, the

person subject to revocation may be confined in a facility designated by the community

program director when it is the opinion of that director that the person will now be a

danger to self or to another while on outpatient status and that to delay confinement until

the revocation hearing would pose an imminent risk of harm to the person or to

another. . . .”

        Here, on April 2, 2013, CONREP submitted a letter to the court, notifying it

pursuant to sections 1608 and 1610 that defendant had been rehospitalized on that date

“due to psychiatric decompensation, behavioral instability, and non-compliance with

program rules and the terms and conditions of outpatient treatment.” The letter informed

the court that CONREP was seeking revocation of defendant’s outpatient status and that a

full report regarding the circumstances of defendant’s rehospitalization would be

provided forthwith. On April 10, 2013, CONREP sent a letter entitled “REQUEST FOR

REVOCATION OF OUTPATIENT STATUS.”



                                              5
          On April 19, 2013, defendant’s counsel objected to the “late filing of the request

for revocation” on the grounds he was “having to try to be ready in a short time.” Given

the April 2 controlling date, the trial court set a hearing on April 22, within the 15 judicial

days as required by section 1608. On April 22, defense counsel again objected on

grounds of insufficient notice. In response, the prosecutor noted that the statute required

a hearing date no later than April 22 unless defendant waived time. Thus, she stated that

“if counsel feels unprepared, he can always waive time on behalf of his client.” Defense

counsel replied: “Well, I believe I’m sufficiently prepared to question Dr. Lance. The

only issue that may occur is whether or not we need Dr. Reddy to testify . . . with regard

to the medication that [defendant] was prescribed prior to his release from Patton. I don’t

believe we’ll need him based upon what I anticipate will come from the witnesses here

today. . . . But we may have to . . . request a brief continuation in the hearing so that we

can have Dr. Reddy available.” The court confirmed that defense counsel was not asking

for additional time, but objecting because he should have had more notice. Defendant’s

primary complaint was that CONREP waited eight days while he was at Patton before

submitting the letter outlining the circumstances supporting revocation of his outpatient

status.

          On appeal, defendant argues that the April 2 letter failed to qualify as a request for

revocation pursuant to section 1608. However, he offers no legal authority to support his

argument. We turn to the language in the statute, which provides that a program director

is only required to notify the court in writing of its “opinion that [defendant] requires



                                                 6
extended inpatient treatment or refuses to accept further outpatient treatment and

supervision.” (§ 1608.) The April 2 letter complied with the statutory requirements.

       Regarding defendant’s claim that his counsel was “deprived” of the ability to fully

prepare for the revocation hearing because he did not receive any paperwork until

April 17, we note the record shows that counsel was aware that defendant had been

rehospitalized as early as April 13, and he was given, but refused, the opportunity to

continue the hearing to allow for more time to prepare. Further, counsel represented that

he was sufficiently prepared and was not asking for more time. In fact, defense counsel

specifically discussed the opportunity to continue the hearing with defendant and

confirmed that they were “not asking for a continuance.” Defense counsel represented

that the only potential issue was that he may need to call a witness who had not yet been

subpoenaed, and thus, a brief, partial continuance may be necessary. The court expressed

its willingness to accommodate any request for a brief continuance. Given the record

before this court, there is no evidence that would support a finding that defendant

suffered from the court setting a hearing date on April 22, 2013.

       Notwithstanding the above, defendant disputes the meaning of the April 2, 2013,

letter. He submits it should be “interpreted as being exactly what it says it is, a

‘Notification for Rehospitalization.’” Thus, he argues that CONREP’s request for

revocation of outpatient status was not made until April 10, 2013. Assuming defendant’s

argument is correct, we are at a loss as to his complaint. As the People aptly point out,

section 1608 does not provide a minimum notice period before which a hearing can be

held. Instead, it specifies the maximum amount of time that can pass before a hearing is

                                              7
held. This maximum timeline serves to protect the individual’s liberty interests so that he

or she is not unduly confined without a proper showing by the state. Whether we use the

April 2 or the April 10 date as the starting date, defendant’s revocation hearing was held

within 15 judicial days of either date.

       To the extent defendant contends CONREP lacked the authority to transfer him

back to Patton on April 2, pending its April 10 letter requesting revocation of outpatient

status, he has not provided, nor have we found, any requirement that CONREP continue

to maintain defendant in outpatient treatment pending the conclusion of the revocation

hearing.

B. Violation of Due Process Rights by Admission of Hearsay Evidence

       Defendant contends his statutory and due process rights were violated when the

trial court erroneously admitted “unlimited hearsay” during the hearing. He claims that,

without the hearsay evidence, there was insufficient evidence to support the court’s

decision. Defendant acknowledges that his trial counsel did not object to each item of

hearsay; however, he argues (1) based upon the trial court’s rulings, repeated objections

would have been futile, and/or (2) the failure to object constituted ineffective assistance

of counsel.

       We begin by reviewing the evidence admitted at the hearing. Dr. Daniel Lance,

defendant’s primary therapist at CONREP, testified. The doctor began treating defendant

on February 20, 2013. He was being treated for “schizoaffective disorder, bipolar type.”

Dr. Lance testified that on September 14, 2012, defendant had signed the terms and

conditions of outpatient treatment, and on November 7, 2012, he signed an addendum to

                                              8
the document. Dr. Paglione, defendant’s forensic evaluator, informed Dr. Lance that she

was present when defendant signed the terms and conditions and that she had discussed

them with defendant, who understood them.

       Dr. Lance wrote the April 10, 2013, letter. He explained that defendant’s

outpatient status was revoked due to noncompliance with the terms and conditions, as

well as an increase in psychiatric symptoms and behaviors. Specifically, defendant

violated Other Individual Terms and Conditions No. 2, that he take all of his prescribed

medications; No. 3, that he comply with procedures, including mouth checks and blood

draws; No. 5, that he refrain from engaging in acts of self-harm, such as swallowing

foreign objects, refusing multiple consecutive meals, head banging and other suicidal

gestures; and No. 10, that he immediately report to staff any worsening of his mental

illness, including auditory hallucinations, feelings of panic, anxiety, restlessness, inability

to sleep, appetite or mood disturbances, delusional thinking, and agitation.

       Defendant began violating the terms and conditions within a few days of arriving

at CONREP. Regarding condition No. 2, Dr. Lance testified that at his initial meeting

with defendant, defendant indicated he had some anxiety for which he was prescribed

Celexa; however, he refused to take it. Within a week of arriving at CONREP, defendant

became noncompliant with his medications. Regarding condition No. 5, Dr. Lance

observed or was informed by staff that defendant refused meals for three days and threw

away entire plates of food on multiple occasions; that he frequently did not drink or finish

his Ensure, a supplemental nutrition drink prescribed; and that he took full Ensure bottles

to his room, which were found during a room search. Dr. Lance had explained to

                                              9
defendant the importance of complying with the rules regarding his meals and of

complying with the terms and conditions of his treatment.

       Regarding condition No. 10, because defendant’s record showed that he had a

history of having auditory hallucinations, he was to report any hallucinations. Staff

reported that defendant was talking to himself on at least three occasions; however, when

Dr. Lance asked defendant about this, he denied it. Staff also reported that defendant was

restless, clenched his fists, and paced while he was talking to himself. Dr. Lance

explained that when a person speaks to himself, it is indicative of responding to internal

stimuli such as auditory or visual hallucinations, and the clenching of fists indicates

anger. Defendant did not sleep the night of April 1; he did not report it, and when asked

about it, he said it was not an issue.

       Defendant had numerous gastrointestinal complaints, which Dr. Lance opined

were delusions. He based his opinion on reports from Patton that indicated multiple

physical assessments had been completed and no medical issue had been found.

Dr. Lance personally observed defendant’s preoccupation with his gastrointestinal issues

and believed defendant’s thought process was substantially impaired by the delusions.

       Although defendant began violating his terms and conditions soon after his

transfer to CONREP, CONREP did not seek revocation of his treatment status

immediately because they wanted to help him become compliant. In Dr. Lance’s

opinion, when defendant was returned to Patton it was because he represented a

substantial danger of physical harm to others due to his severe mental disorder. The basis

of his opinion was defendant’s continued noncompliance with the terms and conditions of

                                             10
his treatment, the active symptoms of his mental disorder, his refusal to eat certain meals,

his breaking minor rules, and his interactions with staff. According to Dr. Lance,

defendant’s refusal to take his medication would likely lead to decompensation, which

would exacerbate symptoms such as delusions and hallucinations, which could lead to

acting out violently. Further, defendant’s anxiety, if untreated, could cause him to

become agitated, making him more likely to act out against others.

       The court questioned Dr. Lance about his report. Dr. Lance testified that he saw

contraband, consisting of a large garbage bag full of food, in defendant’s room. This

violated condition No. 5, which required defendant to eat his meals, and it violated

“additional house rules” because it is a health hazard and “against CCL licensing” for

patients to have food in their rooms. Defendant was told, both before and after the

violation, that it was a violation to store food in his room. Defendant was caught on

multiple occasions saying that he was going to call 911. On one occasion Dr. Lance was

present. Defendant’s reason for wanting to call 911 was to talk to his father about his

gastrointestinal problems. Dr. Lance was concerned because of how quickly defendant

became angry and agitated when asked questions. Dr. Lance opined that based on his

own conversations with defendant, as well as those reported by defendant’s treating

psychiatrist, “it seemed as if [defendant] does not have insight as far as his mental illness

[is concerned].” This made treatment difficult because defendant would fixate on issues,

such as being unjustly medicated, and would deny other problems the staff discussed with

him.



                                             11
       At the conclusion of the hearing, the court approved the request for revocation. In

reaching its decision, the court explained that: (1) it was “very familiar” with defendant,

having presided over the multiple-day trial that resulted in defendant’s release to

CONREP; (2) it was concerned that defendant was “clenching his fists [and] yelling at

staff”; (3) it was concerned that defendant was difficult to redirect and was fixated on

“imagined somatic symptoms” to the point that he was agitated and wanted to call 911;

(4) it was concerned that defendant was hording food in his room while refusing to eat or

drink his Ensure; and (5) it was concerned about his refusal to take his mood-stabilizing

medication, along with his failure to report hallucinations and sleep disturbances. The

court noted that in a short period of time defendant had violated, on multiple occasions, a

significant number of terms and conditions of his outpatient treatment. Because the

situation was not merely a violation of one term, the court approved the request for

revocation.

       Before an individual’s outpatient status may be revoked pursuant to section 1608,

the prosecution must prove, by a preponderance of the evidence, that the individual

requires (1) extended inpatient treatment, or (2) refuses to accept further outpatient

treatment and supervision. (§ 1608; People v. DeGuzman, supra, 33 Cal.App.4th at p.

419.) The trial court’s broad discretion to revoke the outpatient status of a committed

acquittee will be upheld absent an abuse of discretion (People v. Henderson (1986) 187

Cal.App.3d 1263, 1267-1268); on review, the revocation order will be reversed only if

not supported by substantial evidence. (In re McPherson (1985) 176 Cal.App.3d 332,

341-342.)

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       Defendant primarily faults the trial court for admitting and relying upon hearsay

evidence. The contention is meritless. The sole witness to testify at the hearing was

Dr. Lance, who provided his expert opinion regarding the need to revoke defendant’s

outpatient status. “A witness testifying in the form of an opinion may state on direct

examination the reasons for his opinion and the matter . . . upon which it is based, unless

he is precluded by law from using such reasons or matter as a basis for his opinion.”

(Evid. Code, § 802.) Also, an expert witness may rely on competent hearsay as the basis

for an opinion, so long as it is “of a type that reasonably may be relied upon by an expert

in forming an opinion upon the subject to which his [or her] testimony relates . . . .”

(Evid. Code, § 801, subd. (b); see People v. Arias (1996) 13 Cal.4th 92, 184.) Thus, there

is no error in permitting an expert to describe the basis for his or her opinion, even if it

entails placing otherwise inadmissible hearsay on the record. (People v. Gardeley (1996)

14 Cal.4th 605, 617-6193; Arias, supra, at p. 184.)

       Moreover, in this case, Dr. Lance had the opportunity to interact with and evaluate

defendant personally. The doctor testified that he had been working with defendant since

his arrival at CONREP, and he was familiar with defendant’s case history and record.

       3  “Expert testimony may . . . be premised on material that is not admitted into
evidence so long as it is material of a type that is reasonably relied upon by experts in the
particular field in forming their opinions. [Citations.] . . . . [¶] So long as [the] threshold
requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form
the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence
Code section 802 allows an expert witness to ‘state on direct examination the reasons for
his [or her] opinion and the matter . . . upon which it is based,’ an expert witness whose
opinion is based on such inadmissible matter can, when testifying, describe the material
that forms the basis of the opinion. [Citations.]” (People v. Gardeley, supra, 14 Cal.4th
at pp. 618-619.)

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This is not a case where the expert on whose testimony the trial court based its

determination had no personal knowledge of the defendant’s behavior, history and

condition. (Cf. In re McPherson, supra, 176 Cal.App.3d at pp. 340-341 [outpatient

revocation order reversed, where trial court wrongly failed to conduct de novo hearing

and relied on hearsay testimony of doctor who had virtually no personal knowledge of

defendant’s behavior in applying abuse of discretion standard to outpatient supervisor’s

opinion regarding defendant’s treatment needs].)

          We reject defendant’s challenge to the court’s admission of hearsay evidence and

conclude there was no violation of his statutory or due process rights. Accordingly,

defendant’s claim that his counsel was ineffective is moot. Furthermore, we conclude

that substantial evidence supports the court’s decision to revoke defendant’s outpatient

status.

                                        III. DISPOSITION

          The order revoking defendant’s outpatient status is affirmed.

          NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                                         J.
We concur:


          RAMIREZ
                                 P.J.

          RICHLI
                                   J.


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