Filed 8/17/16 P. v. Zimmerman CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F071013
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. VCF025487-87)
                   v.

KEVIN NEAL ZIMMERMAN,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Paul Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Kane, Acting P.J., Peña, J. and Smith, J.
          Appellant Kevin Neal Zimmerman appeals from the trial court’s order granting a
petition extending his commitment pursuant to Penal Code section 1026.5.1 On appeal,
he contends the evidence is insufficient to support the granting of the petition. We
affirm.
                                                FACTS
Background
          On August 10, 1987, Zimmerman, who was then 19 years old, waited in a stolen
truck in the parking lot of a hospital until he saw a female staff member drive off and he
began following her. Zimmerman passed the woman and stopped his truck in a narrow
part of the road, forcing the woman to stop her car. Zimmerman exited the truck with a
gun in his hand, pointed it at the woman, and ordered her out of her car. He then grabbed
her by the arm and attempted to get her into his truck. After the woman broke free,
Zimmerman fired a shot in the air and threatened to shoot her. Zimmerman again
grabbed her by the arm and attempted to force her into his truck. As they struggled,
Zimmerman hit the woman in the head with the gun. When another vehicle approached,
Zimmerman got in his truck and left, alone.
          On January 29, 1988, the district attorney filed a first amended information
charging Zimmerman with attempted kidnapping (count I/§§ 664/207, subd. (a)) and
assault with a firearm (count II/§ 245, subd. (a)(2)). Each count also alleged a personal
use of a firearm enhancement (§ 12022.5). Zimmerman then pled not guilty and not
guilty by reason of insanity (NGI) to both charges.
          Dr. Frank Kleist and Dr. Dwight Sievert were appointed by the court to examine
Zimmerman. During the evaluation by Dr. Kleist, Zimmerman stated that he had been
experiencing mounting tension in the weeks and months prior to committing the


1         All further statutory references are to the Penal Code.


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underlying offenses. During the two weeks prior to assaulting the victim, he smoked a
high grade of marijuana daily. A week before he assaulted the victim he took a “hit of
acid,” and in the 24 to 48 hours prior to committing his offenses he freebased a quarter
gram of cocaine.
       In the two years prior to the underlying incident, Zimmerman had a delusional
belief that he was changing from a man to a woman. He felt his chest getting flabby, that
he was growing breasts, and that his voice was becoming more feminine. He also began
having homosexual thoughts about men and boys and thoughts that he was having
intercourse with himself in his dreams. Zimmerman felt women made him feel that way.
He blamed the victim and other women for making his body change and it made him
angry at them. Zimmerman assaulted the victim because he wanted to degrade her and
make her not feel like a woman, the same way that he did not feel like a man. On the day
Zimmerman assaulted the victim, he was coming down from freebasing cocaine. Just
prior to committing the assault, he ingested about three tablets of Xanax that he stole
from his father’s medicine cabinet. Dr. Kleist noted that Zimmerman experienced
auditory hallucinations including hearing crushing sounds and deep voices that whispered
to him.
       In his evaluation, Dr. Sievert noted that Zimmerman would experience somatic
hallucinations, e.g., that his hands and feet were splitting open or that his voice was
becoming more feminine. Both doctors, in pertinent part, diagnosed Zimmerman as
suffering from chronic schizophrenia, paranoid type, and recurrent major depression with
psychotic features, and both concluded that he was legally insane when he assaulted the
victim on August 10, 1987.2
       On February 19, 1998, after Zimmerman pled guilty to attempted kidnapping and
admitted the arming enhancement attached to that count, the court found him not guilty

2      Zimmerman was noncompliant with his medication when he assaulted the victim.


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by reason of insanity. On March 24, 1988, pursuant to section 1026, Zimmerman was
committed to Atascadero State Hospital for a maximum term of 6 years. His
commitment was extended several times pursuant to section 1026.5. On September 4,
2014, the district attorney filed another petition to extend Zimmerman’s commitment.
The Hearing on the Petition
       On February 4, 2015, at a bench trial on the petition, Dr. Hasnain Maqsood
testified that he had been Zimmerman’s treating psychiatrist for three months at Napa
State Hospital (NSH), where Zimmerman was then committed, and that he examined
Zimmerman in preparation for the hearing. Dr. Maqsood also reviewed Zimmerman’s
legal chart, his social worker’s notes, and his progress notes. He consulted with
Zimmerman’s treatment team, which consisted of a psychologist, a social worker, the
nursing staff and the psychiatric technicians on Zimmerman’s unit.
       Dr. Maqsood diagnosed Zimmerman with schizophrenia with multiple episodes
that was in partial remission. The criteria for a diagnosis of schizophrenia included
delusions, hallucinations, disorganized thoughts, and negative symptoms, which include
lack of emotional expression, lack of interest, evolution, and minimization of psychiatric
symptoms. According to Dr. Maqsood, although schizophrenia is a progressive disease,
Zimmerman’s symptoms were currently under control because he was in treatment and
he was only experiencing the negative symptoms noted above. Previously, however,
Zimmerman had met additional criteria for schizophrenia. For example, at the time of his
commitment offense, he was delusional, heard voices, and thought that someone was
threatening and chasing him. Additionally, in 2004, Zimmerman was discharged from
the Conditional Release Program (CONREP) because he became delusional and
barricaded himself in his room, believing someone was plotting against him and trying to
rape him. On September 15, 2014, Zimmerman was heard talking to himself and stating,
“She kill you. The bitch from hell.” The next day he was found pacing and talking to
himself loudly in his room.

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       Zimmerman also had experienced three episodes of water intoxification, i.e., the
excessive ingestion of water. The most recent episode occurred in August 2014 when he
gained 10 to 11 pounds in one day from drinking water.
       Zimmerman also had a history of traumatic brain injury. When he was 17 years
old, his father pushed him against a wall, causing him to hit his head and leaving him in a
coma for 10 days. An MRI done 10 years later disclosed that the frontal lobes of his
brain had atrophied and shrunk. According to Dr. Maqsood, frontal lobe damage can
cause poor impulse control and patients with this type of injury can become aggressive
and violent. Although he had not exhibited poor impulse control in the preceding year,
Zimmerman had a history of being aggressive and physically assaultive.
       Zimmerman had been discharged under CONREP and returned to the hospital on
two prior occasions. In addition to his 2004 termination from the program, in 1997, his
CONREP was revoked and he was readmitted to NSH as a TANGI3 patient because he
was using his money to buy pornographic material and hire exotic dancers. On both
occasions the CONREP director found that he posed an imminent threat of harm.
       Zimmerman was currently taking four medications nightly and another medication
by intramuscular injection every two weeks. He was not currently exhibiting any
symptoms of schizophrenia aside from the previously mentioned negative symptoms
because these medications were controlling his symptoms.
       Dr. Maqsood opined that despite his compliance with his medication,
Zimmerman’s schizophrenia caused him to pose a substantial danger of physical harm to
others if released because his delusions could cause him to become violent again. Dr.
Maqsood based his opinion on a myriad of circumstances including: (1) Zimmerman’s




3      TANGI refers to a temporary admission of a patient who had been found not
guilty by reason of insanity.


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criminality, history of substance abuse,4 which was “the biggest risk predictor for future
violence,” and his history of chronic mental illness and past violence, which were also
risk factors for future violence; (2) his history of noncompliance with his medication;
(3) his failure to have a relapse prevention plan and to participate in substance abuse
groups and other groups he was assigned to; (4) his failure to meet the criteria for
CONREP release;5 (5) his inability to understand his need for medication; (6) his
inability to identify “triggers” that caused him to decompensate or to ingest drugs; (7) his
inability to express remorse or empathy for the victim; (8) his poor insight into his illness
and lack of understanding of his commitment offense; and (9) a risk assessment
performed by another psychologist who concluded that Zimmerman posed a moderate
risk of violence in the community.
       Dr. Maqsood also opined that without medication Zimmerman would have serious
difficulty controlling his dangerous behavior.6 Dr. Maqsood acknowledged that
Zimmerman was compliant with his treatment plan while confined at the hospital, and
that his medications had controlled the more serious symptoms of his schizophrenia,
including his delusions. Nevertheless, based on Zimmerman’s history of noncompliance,
Zimmerman’s limited insight into his mental health issues, and his own assessments, Dr.
Maqsood opined that Zimmerman would not continue to take his medication if he was
not supervised.

4      Zimmerman’s substance abuse began when he was 14 years old and included
abuse of alcohol, cocaine, marijuana and opioids. At a young age he was in a
rehabilitation program for a year. In 2005 he tested positive for opioids.

5      The criteria for CONREP release included: being free of drugs for six months,
participation in all groups assigned to him, the ability to perform “his functions” socially
on the open unit, and full compliance with his treatment plan.
6      Dr. Maqsood did not identify the specific circumstances on which he based this
opinion. Nevertheless, it is clear from the record that he based it on many of the
circumstances he cited in support of his opinion that Zimmerman posed a danger to
others because of his schizophrenia.


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      In granting the petition for recommitment, the court, in pertinent part, found that
Zimmerman had a mental disease, i.e., schizophrenia, and that as a result of his
schizophrenia he posed a danger of physical harm to others and had serious difficulty
controlling his dangerous behavior.
                                      DISCUSSION
      Zimmerman contends the evidence is insufficient to sustain the court’s order
granting the petition for recommitment because the record does not contain substantial
evidence that supports a finding that Zimmerman had serious difficulty in controlling his
dangerous behavior. We disagree.

               “Under section 1026.5, subdivision (b)(1), ‘[a] person may be
      committed beyond the term prescribed by subdivision (a) only under the
      procedure set forth in this subdivision and 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.’ The maximum term of commitment prescribed in subdivision
      (a) is ‘the longest term of imprisonment which could have been imposed for
      the offense or offenses of which the person was convicted .…’ (§ 1026.5,
      subd. (a)(1).)

               “At no less than 90 days before the term of commitment ends, the
      prosecuting attorney may file a petition for extended commitment in the
      superior court which issued the original commitment. (§ 1026.5, subd.
      (b)(2).) The person named in the petition has a right to be represented by
      an attorney and the right to a jury trial. (§ 1026.5, subd. (b)(3).) If, after
      trial, the court or jury finds the patient ‘by reason of a mental disease,
      defect, or disorder represents a substantial danger of physical harm to
      others,’ the patient will be recommitted for an additional period of two
      years from the date of termination of the previous commitment. (§ 1026.5,
      subd. (b)(8).)” (People v. Bowers (2006) 145 Cal.App.4th 870, 876
      (Bowers).)
      In Howard N. (2005) 35 Cal.4th 117 (Howard N.), after recognizing that a civil
commitment constitutes a significant deprivation of liberty that requires due process
protection, our Supreme Court held that the extended detention scheme of such a
commitment required “ ‘that the state demonstrate that the “mental … deficiency,


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disorder, or abnormality” causes the person to have serious difficulty controlling his
dangerous behavior.’ ” (Bowers, supra, 145 Cal.App.4th at pp. 876-877, italics added.)

               “ ‘ “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.]’ [Citation.] 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.” (Bowers, supra,
       145 Cal.App.4th at pp. 878-879.)
       Here, Dr. Maqsood testified that Zimmerman posed a danger if released because
he suffered from chronic schizophrenia with delusions and he suffered a brain injury at
age 17 that could cause him to have poor impulse control and to become aggressive and
violent. His opinion was based on the delusional nature of Zimmerman’s symptoms and
several other factors, including Zimmerman’s belief that he was not mentally ill and did
not need medication, his substance abuse, which was the biggest risk predictor for future
violence, and his failure to participate in any substance abuse programs at the hospital.
Zimmerman’s inability to identify “triggers” that could cause him to decompensate or to
ingest drugs, his lack of insight into his illness, lack of understanding of his commitment
offense, and his inability to express remorse or empathy for the victim provided further
support for Dr. Maqsood’s opinion that Zimmerman would pose a danger to others if
released. Thus, the record contains substantial evidence that supports the court’s finding
that Zimmerman posed a serious danger to others if released.
       “The People are not required to prove the defendant ‘ “is completely unable to
control his behavior.” ’ [Citations.] Instead, the defendant’s ‘impairment need only be
serious, not absolute.’ [Citation.] As the [Supreme Court in Kansas v. Crane (2002)


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534 U.S. 407, 411, 151 L.Ed.2d 856 (Crane)] explained, ‘there may be “considerable
overlap between a … defective understanding or appreciation and … [an] ability to
control … behavior.” ’ ” (People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370.) It is
undisputed that Zimmerman suffered from a severe mental disorder that without
medication caused him to be delusional, impulsive, paranoid and violent. It was also
undisputed that Zimmerman had limited insight into his behaviors that caused him to be
violent or his need for medication. Thus, the record also contains substantial evidence
that supports the court’s finding that Zimmerman would have serious difficulty
controlling his dangerous behavior if released. (Cf. ibid.)
       Zimmerman misplaces his reliance on People v. Galindo (2006) 142 Cal.App.4th
531 (Galindo) and In re Anthony C. (2006) 138 Cal.App.4th 1493 (Anthony C.) in
support of his insufficiency of evidence claim. In Galindo, the trial court held a bench
trial and extended an NGI commitment of a defendant who was diagnosed with bipolar
disorder. Because the trial occurred prior to the Supreme Court issuing its Howard N.
decision (Galindo, supra, 142 Cal.App.4th at p. 539), the trial court did not make an
express or implied finding that the defendant’s mental disorder caused him to have
serious difficulty in controlling his dangerous behavior. In order to sustain the judgment,
the appellate court was required to find that the failure to make this finding was harmless
beyond a reasonable doubt. In finding the error prejudicial, the court noted there was
“abundant evidence that defendant’s behavior was dangerous and that he did not, in fact,
control it.… [T]he fact he did not control his behavior does not prove that he was unable
to do so, thus making him ‘dangerous beyond [his] control.’ ” (Ibid.) Remand was
therefore necessary to allow the issue of control to be determined. (Ibid.)
       Galindo is inapposite because in that case the trial court failed to make an express
or implied finding that the defendant’s mental disease, condition, or disorder caused him
serious difficulty in controlling his dangerous behavior. Thus, to sustain the judgment
the appellate court had to find that the failure to make a finding on this issue was

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harmless beyond a reasonable doubt. Here, because the court addressed this issue, the
standard of review is whether substantial evidence supported the trial court’s
recommitment order. Further, unlike Galindo, here the record contains evidence,
including Dr. Maqsood’s expert testimony, that supported the trial court’s finding that
Zimmerman’s mental disorder caused him serious difficulty in controlling his dangerous
behavior.
       Anthony C., is inapposite because, as noted by Zimmerman, in that case the
expert’s opinion “fail[ed] to satisfy the quantitative requirement that [the defendant had]
‘serious difficulty’ in controlling his behavior.” (Anthony C., supra, 138 Cal.App.4th at
p. 1507.) Here, Dr. Maqsood testified that Zimmerman’s mental disorder caused him to
have serious difficulty in controlling his behavior, his opinion is supported by the record,
and as noted ante, one expert’s opinion is sufficient to support the court’s finding as to
this issue. (Cf. Bowers, supra, 145 Cal.App.4th at pp. 878-879.) Accordingly, we reject
Zimmerman’s sufficiency of the evidence challenge to the court’s order extending his
commitment.
                                      DISPOSITION
       The order extending Zimmerman’s commitment pursuant to section 1026.5 is
affirmed.




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