Filed 4/8/16 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143735
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. His counsel has submitted an opening
brief indicating he has reviewed the record and found no arguable issues to be pursued on
appeal. (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544.) The brief provides
a narrative of the facts relevant to the pertinent legal issues. Counsel provided defendant
with a copy of this brief and informed him of the right to file a supplemental brief.
Defendant has done so. While it would be appropriate under Ben C. to dismiss the
appeal, we have reviewed the record and affirm the order of the trial court. (Ibid.; People
v. Dobson (2008) 161 Cal.App.4th 1422, 1436, 1438–1439.)


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


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                                        BACKGROUND2
         “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.
         “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.


         2
       We take judicial notice of our prior, unpublished opinion in People v. Stockman,
No. A137286, and quote from it in reciting the background of the case.

                                               2
       “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.’
       “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

                                                3
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. . . .
        “[¶] . . . [¶] 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.” (People v. Stockman (Mar. 28, 2014, A137286)
[nonpub. opn.].)
        Defendant filed the petition for transfer to outpatient treatment now before us in
propria persona in July 2014. After counsel was appointed, the matter was continued a
number of times, and trial before the court commenced November 24, 2014. Defendant
called four witnesses.
        Gardner Carlson, a senior psychiatric technician, testified defendant had been
successfully participating in the vocational program doing clerical work for about nine
months. Carlson was not aware of any negative interactions, but admitted he would not
necessarily be apprised of an incident unless it were serious. Carlson, who essentially
had an administrative role with the program, was not involved with defendant’s
treatment, although he can provide information to the treatment team. He had done so
once with respect to defendant, and at that time indicated defendant was participating
well.
        Robert Ingham, a teacher at Napa State Hospital, testified about defendant’s
teacher support work. Defendant had been working at the teaching facility about eight
months. He prepares teaching materials and is successfully interacting with both staff

                                                4
and students (other patients of the facility). Ingham is not aware of any negative
interactions. Ingham is not part of defendant’s treatment team, and has not been asked to
provide any input to the team about defendant’s work.
       Deborah West, also a teacher at Napa State Hospital and defendant’s supervisor,
similarly testified about his work at the educational site. She testified he performs his
support tasks very well, including taking the initiative when there is not a specific task
already assigned. West provides a monthly evaluation of his performance to defendant’s
treatment team, but does not provide input into his treatment.
       Dr. Sandy Folker, a clinical psychologist at Napa State Hospital, testified about
defendant’s treatment. As of the time she testified, she had been treating defendant for
approximately four months.3 Defendant was participating in relapse prevention therapy,
both as to his mental condition and as to substance abuse, to prepare for potential
discharge. His work experience at the teaching site was also directed to preparing him
for potential discharge.
       Dr. Folker discussed in some detail the progression patients make through
treatment units. Patients start in admission, where acute symptoms are addressed. Once
these symptoms are brought under control, patients move to the stabilization unit, which
is fairly restrictive. As they show increased stability and readiness to enter the
community, they move to the transition unit, where they have much more freedom of
movement and more responsibility, including taking medications. Once patients
demonstrate stability, they move to the discharge unit to “fine tune” their readiness for
release and to work to achieve release within the following year. In the discharge unit, a
patient undergoes a structured clinical interview which identifies the risk factors on
which he or she needs to focus. After three to four months of focusing on these factors,

       3
         While Folker believed she would not be testifying on the day she was, in fact,
called and had she known, she would have done more preparation, she also assured the
court that if she felt unable to answer questions, she would let the court know.


                                              5
the patient may be recommended for a forensic quality review panel, which considers
whether the patient will be recommended for release. If so, the hospital works with the
conditional release program (CONREP) to schedule a community outpatient treatment
readiness interview, in which the hospital and CONREP discuss the plans for the
patient’s release into the community. However, while a patient may be able to recognize
all his or her risk factors and may have the tools to address them, that does not always
mean the patient will be able to “actually practice them when given the opportunity.”
       “[I]n July” (apparently about five months before the hearing), defendant had
returned to the stabilization unit from the discharge unit, due to paranoia symptoms and
refusal to take his medications. However, his current treatment team, including
Dr. Folker, has not seen further symptoms of psychosis or paranoia, and the month prior
to the hearing, the team recommended that defendant return to the discharge unit,
bypassing the transition unit. The treatment team feels defendant has the tools and
resources to move directly back to the discharge unit and wants to provide him the
opportunity to live in a less restricted setting and show he is ready for release. However,
getting along with people is a risk factor he will need to work on during this period in the
discharge unit. Dr. Folker observed that the current treatment team, as it has had more
opportunity to work with and observe defendant, has seen that “he tends to have very
rigid thinking,” and can “become disagreeable, very argumentative, and have difficulty
considering other people’s opinions.”
       Dr. Folker also acknowledged defendant has previously been released to
CONREP, but had issues with the outpatient supervisor concerning keeping CONREP
informed of his whereabouts and consulting with them about any financial agreement
over $500. Interpersonal conflict had been identified as one of defendant’s risk factors
and was CONREP’s reason for removing defendant from the program and returning him
to the hospital. Dr. Folker commented difficulty with interpersonal relationships has



                                             6
been one of the factors that has “caused difficulty for” defendant and has “been holding
him back and preventing him from release.”
          Dr. Folker, herself, did not have a strong opinion as to whether defendant would
currently be a risk to the community while under supervision. This is a matter for the
discharge unit and for defendant’s treating psychiatrist.
          The prosecution called no witnesses, maintaining defendant had not carried his
burden to demonstrate he was entitled to immediate release to community supervision.
          The trial court ruled from the bench. It acknowledged the testimony of Carlson,
Ingham and West, all of whom have interacted with defendant and provided “very
positive feedback” as to his teacher support work. Dr. Folker was also familiar with
defendant’s work and, like the other witnesses, was not aware of any incidents of
physical violence while she has been part of his treatment team. She was not able,
however, to provide an opinion whether defendant would pose a danger to the community
as an outpatient. She explained only that he met the criteria for transfer to the discharge
unit for further work in moving toward release to CONREP. The court concluded this
was insufficient evidence to conclude defendant would pose no danger to the community
as an outpatient, noting Dr. Folker’s testimony that interpersonal conflicts remained a risk
factor.
                                          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.) “In this case, the only issue relates to the first option . . . whether defendant

                                                7
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, in turn, 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).)4 “Section 1026.2 involves what has been described as a
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).)[5] 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
       4
          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 . . . .”
        5
          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. All or a substantial portion of the program shall include outpatient supervision and
treatment. The court shall retain jurisdiction. 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.”


                                              8
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.” (Ibid.) “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.)
       Section 1026.2 specifies the trial court “shall” grant outpatient 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).) A defendant seeking outpatient status has the burden
of proving this standard has been met by a preponderance of the evidence. (People v.
Sword, supra, 29 Cal.App.4th at p. 624.) Appellate review of the denial of a
section 1026.2 petition is for abuse of discretion (People v. Bartsch (2008)
167 Cal.App.4th 896, 900; People v. Dobson, supra, 161 Cal.App.4th at pp. 1433–1434),
although this includes determining whether any factual findings are supported by
substantial evidence (see People v. Parker (2014) 231 Cal.App.4th 1423, 1435
[substantial evidence standard applied to finding that material change in the defendant’s
conduct warranted removal from CONREP and return to state hospital].)
       The trial court did not abuse its discretion in determining that defendant did not
carry his burden of proof. While defendant presented evidence he has performed well in
his work providing teacher support services and has not had any negative interpersonal
interactions in that setting, he did not provide the court with medical evidence that
compelled the court to find he would “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, in an outpatient setting.” The only medical evidence defendant presented
was the testimony of Dr. Folker. While Dr. Folker testified defendant met the criteria for
placement in the discharge unit, she also testified defendant had previously progressed

                                               9
through the discharge unit to CONREP, but had been removed from the community
program and returned to the stabilization unit and had just been approved for transfer
back to discharge unit. Dr. Folker further explained the discharge unit is an important
step in the process of returning to the community setting and entails a detailed focus on
risk factors. She also opined defendant will need to focus on the risk factor of
interpersonal relationships, which has been a challenge for him.6
                                       DISPOSITION
       The order denying conditional release as an outpatient is affirmed.




       6
           The only medical report in the trial court record, prepared by Dr. Samuelson and
dated August 4, 2014, and to which Dr. Folker referred several times, was not offered
into evidence during the hearing. Nor did the trial court make any reference to this report
in its ruling. While the parties initially believed an updated report would be prepared by
a Dr. Adams, no such report was filed with the court by the time the witnesses finished
testifying. After speaking with Dr. Adams, defense counsel chose not to ask for a further
continuance of the hearing and submitted on the evidence presented.


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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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