Filed 2/20/14 P. v. Arroyo CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                             C073089

                   Plaintiff and Respondent,                                (Super. Ct. No. SCR1725)

         v.

SHANE CARLOS ARROYO,

                   Defendant and Appellant.




         Defendant Shane Carlos Arroyo appeals from the trial court’s orders extending his
not guilty by reason of insanity (NGI) commitment to June 27, 2014, and denying his
petition for transfer to outpatient treatment. He contends insufficient evidence supports
the orders. We will affirm both orders.




                                                             1
                              FACTUAL BACKGROUND

       In 1995, defendant was found NGI of burglary and attempted vehicle theft. He
was first committed to Atascadero State Hospital. Two years later, defendant was
transferred to Napa State Hospital (hereafter NSH).

       On January 25, 2012, a petition to extend defendant’s commitment was filed
pursuant to the October 2011 written report of NSH’s acting medical director. The report
requested an extension of defendant’s commitment based on his severe mental illness
(schizoaffective disorder, bipolar type) which caused him to represent a substantial
danger to others. The report reflected that defendant’s psychiatric symptoms were not in
complete remission and he remained suspicious, had limited insight into his mental
illness, and needed to develop a better understanding of how paranoia caused him to
exhibit dangerous behavior. The report described the 1995 offenses. Defendant broke
into an occupied home and when the resident confronted defendant, he said he believed
in God. He then walked into the garage where the police found him. He claimed he did
not have a name and was restoring the car to its original condition. The report noted that
in 2000, defendant entered the outpatient conditional release program (CONREP).
Outpatient treatment was revoked in 2009 when defendant “decompensat[ed]” and sent a
threatening letter to the president of the Latter Day Saints (Mormon Church) in Salt Lake
City, Utah. Defendant was recommitted to NSH and had remained there since 2009.
Defendant is a member of the Mormon Church. He believed that the church was out to
destroy him and he would “ ‘harm them before they harm him.’ ”

       On April 23, 2012, defendant filed a request for transfer to outpatient treatment.
In his October 2012 written opinion, staff psychiatrist Harinder Auluck, M.D., of NSH
recommended that defendant be placed in CONREP.




                                             2
       At the January 2013 bench trial, the prosecution called two witnesses, Laurie
Rubel, defendant’s CONREP social worker, and Dr. Auluck. Rubel testified as follows
about defendant’s comments and behavior.

       In 2005, defendant stated that the “Columbine High School killers were not right,
but their actions were justified.” Defendant believed that CONREP and the Mormon
Church had conspired to deny his rights. Defendant stated that he wanted those
conspiring against him “ ‘to experience the pain that [he had] experienced.’ ” Defendant
claimed a Mormon bishop told him that he was scaring younger women in the
congregation and the bishop did not want defendant talking to them.

       In 2006, defendant told Rubel that he “enjoyed making provocative statements to
others so they would respect and fear him.” Defendant claimed church elders were
“ ‘trying to silence [him] and take away [his] rights.’ ” A church elder also told
defendant that he scared people and to stay away from young women. Defendant stated
that he felt “abused by his church, by law enforcement, and by all of America” and
wanted “to get vengeance on ‘all those who want to be gods over [him] and take away
[his] rights.’ ” At work on one occasion, he screamed disturbing and threatening
comments, which he did not self-report to CONREP. Defendant told a woman that the
“ ‘Columbine killers were the patron saints of high school students.’ ” Defendant told
Rubel that “ ‘People should get their just deserves by burning in hell.’ ” He stated that he
felt powerful when he was angry. Later, defendant reiterated that he enjoyed being angry
and wished “ ‘vengeance against [his] enemies.’ ” Defendant worked at the Salvation
Army and felt persecuted by the women who worked there. In 2006, defendant also had
financial problems and was unable to maintain a clean living area.

       In 2007, defendant described himself as having “ ‘superior, prophet-like’ ” and
“ ‘God-like qualities’ ” and abilities. While on CONREP, defendant was for the most
part medication compliant. However, there were times when defendant had not been


                                             3
medication compliant, which he reported after the fact; he had forgotten to get or take
prescriptions. During a therapy session, when defendant was confronted for laughing
inappropriately at something that was sad, defendant got angry and asked the therapist if
she would like it if defendant “ ‘sent a bunch of pyromaniac arsonists to [the therapist’s]
neighborhood.’ ” In a group session, defendant stated that he understood how the
Virginia Tech shooter felt, alienated and alone. Defendant made comments about the
Virginia Tech shooting to a Salvation Army customer who called the police. As a result,
CONREP increased the level of defendant’s supervision to every day. In another group
session, defendant stated that he wanted to “ ‘go after people at the church who are
always telling [him] to stay away from women.’ ” Defendant claimed the church was
oppressing him. Defendant wanted the women who rejected him to be punished.
Defendant became inordinately angry or upset when a woman rejected his invitation to
have a cup of coffee. At one point, defendant stated that he did not know how he could
function without CONREP.

       In May of 2008, defendant’s behavior improved and, as a result, his medications
were adjusted at his request. Four months later, he felt persecuted by old high school
classmates and started sending angry, accusatory online messages. His antipsychotic
medications were increased. A couple of months later, defendant entered a local store
and told the owner that he “ ‘Felt like a failed savior.’ ” The owner called the police.
CONREP supervision increased. Defendant’s finances became chaotic and there was
another change in medications.

       In 2009, a female high school classmate rejected defendant when he called her and
rejected him again when he called the next day. Defendant claimed his loneliness causes
him to act “ ‘crazy.’ ” Defendant had a heated telephone conversation with a Mormon
elder in defendant’s church. Defendant later visited a Mormon thrift shop and told the
supervisor that defendant “ ‘forgives the enemies of [his] enemies.’ ” Defendant then


                                             4
wrote the threatening letter to the president of the Mormon Church. His letter referred to
a “semi-tanker full of whooping.” Rubel would have felt “very threatened” if she had
received the letter.

       Rubel was willing to accept defendant back into CONREP provided that he
developed a written plan for dealing with church members. To Rubel’s knowledge,
defendant had not done so.

       The 37-year-old defendant was first diagnosed with schizophrenia when he was 13
or 14 years of age. Dr. Auluck testified that defendant’s symptoms were under control
with medication and therapy at NSH. Defendant, who suffers from schizoaffective
disorder of the bipolar type, was prescribed high dosages of psychiatric medications to
keep his symptoms in remission. The hospital monitored the effects of the medications
through blood work. The hospital also monitored defendant’s other medical issues
including hyperthyroidism which, if not properly regulated, could result in symptoms of
mood disorder. Even while taking all his medications, defendant still had a bit of
grandiosity and some paranoia that he has been mistreated. If lower dosages were
prescribed, Dr. Auluck believed defendant’s symptoms would worsen. And if defendant
stopped taking his medications, he would decompensate in one to two weeks and become
angry, impulsive, more abrasive, and even threatening.

       Dr. Auluck opined that defendant posed a substantial danger of physical harm to
others having considered defendant’s entire mental health history contained in the
hospital records as well as defendant’s 1995 commitment offenses. Dr. Auluck testified
that Rubel’s testimony provided additional details that supported his opinion as did
defendant’s letter to the president of the Mormon Church. Even after nine years of
CONREP supervision, defendant became psychotic. While at NSH, defendant had not
engaged in acts of physical aggression but had had some difficulty with peers; with the
assistance of staff, defendant was able to resolve the issue. Defendant had recently stated


                                             5
that he had the “ ‘capacity for being dangerous, but the consequences ke[pt] [him] from
being violent.’ ” Risk factors for violence included: (1) defendant’s mental illness
history, which included psychotic symptoms of paranoia, persecutory delusions, and
threat of retaliation; (2) stressors, which included his interpersonal and family
relationships; (3) his act of breaking into a stranger’s occupied home; and (4) his
threatening letter to the president of the Mormon Church.

       Dr. Auluck was concerned about defendant’s plan to seek services from local
mental health providers if released without supervision because services in the area were
very limited and at times difficult to obtain. Defendant had not been in the community
without supervision since 1995.

       When asked whether defendant had serious difficulty controlling his dangerous
behavior, Dr. Auluck testified that defendant had been very impulsive in the past and,
without supervision, that impulsivity may return. Even though controlled with
medications, defendant still believed the Mormon Church treated him poorly and he still
had some grandiosity. Dr. Auluck believed defendant may become anxious under stress
and that, without supervision, he would not be reminded to take his medications without
which his symptoms would not be controlled.

       Dr. Auluck agreed that defendant, who was not actively or acutely psychotic,
could be released to outpatient treatment under CONREP supervision. Defendant knew
he had been diagnosed with a mental illness and knew he needed treatment and
medication so his symptoms of paranoia and delusional thinking did not recur and he
would “ ‘possibly become dangerous again.’ ” Dr. Auluck believed that it would be
impossible for defendant to stay away from the church because the social life of the
organization was what defendant wanted most of the time. Without CONREP
supervision, Dr. Auluck opined that defendant would be a substantial danger of physical
harm to others.


                                              6
       For the defense, NSH staff psychologist Melody Samuelson, Psy.D., opined that
defendant did not present a substantial danger of physical harm to others because he had
not been physically aggressive with people. She acknowledged that in 1995, defendant,
who was off his medications, attempted to hit jail officers with a pillowcase filled with
wet clothes. She agreed that if defendant stopped taking his medication, he would
decompensate in one to two weeks but still did not present a substantial danger since his
history included only one instance in 1995 of attempting to harm anyone. Samuelson
opined that defendant would take his medication and see a psychiatrist even if released
without CONREP supervision since he is medication compliant and committed to being
mentally stable. She agreed defendant would face stressors if released in the community
and that defendant’s symptoms would return if he went off his medications. Samuelson
had not seen an October 2011 psychiatric progress note reporting defendant’s delusional
statement that a parole agent had raped and killed his girlfriend, that defendant was very
angry, and that defendant wished a “natural calamity should befall them to serve karmic
justice.”

       The trial court issued a detailed written ruling, extending defendant’s commitment
and denying his request for outpatient treatment. After summarizing the procedural
history and the witnesses’ testimony, the trial court concluded that defendant “has and
will have serious difficulty in controlling his dangerous behavior if released,” noting
Dr. Auluck’s testimony that “it will be impossible for [defendant] to disassociate himself
from the Mormon Church as it has historically been a large part of [defendant’s] [social]
life.” The court found that defendant “has never been able to control his infatuation,
disdain and pervasive if not perpetual course seeking revenge on the Mormon Church and
associated persons” and that “[h]is current residual symptoms include continuing
paranoia from perceived mistreatment including allegedly by the Mormon Church.” The
court concluded that defendant had failed to prove the affirmative defense that he could



                                             7
control his mental condition through the very high doses of medication he currently took,
considering the fact that on CONREP supervision, defendant had failed to be medication
compliant at all times and failed to self-report his failure to take prescribed medications
for days at a time. The court also cited Rubel’s testimony that despite the highest levels
of supervision possible on CONREP, defendant had become psychotic and written the
threatening letter to the president of the Mormon Church. The court also noted
Dr. Auluck’s testimony that defendant would decompensate within one to two weeks if
he failed to take his medications as prescribed.

                                      DISCUSSION

       Defendant contends there is insufficient evidence that he (1) presents a substantial
danger of physical harm, and (2) lacked the volitional capacity to control dangerous
behavior. We conclude sufficient evidence supports both findings.

       Commitment to a state hospital under Penal Code section 10261 may be extended
only if the defendant was committed for a felony and “by reason of a mental disease,
defect, or disorder represents a substantial danger of physical harm to others.” (§ 1026.5,
subd. (b)(1).) Section 1026.5, subdivision (b)(1) requires “proof that a person under
commitment has serious difficulty in controlling dangerous behavior.” (People v.
Galindo (2006) 142 Cal.App.4th 531, 533, 536-537 [applying the holding in In re
Howard N. (2005) 35 Cal.4th 117, which interpreted Welf. & Inst. Code, § 1800 et seq.
as containing the requirement]; People v. Bowers (2006) 145 Cal.App.4th 870, 878
(Bowers).)

       “ ‘ “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


1 Undesignated statutory references are to the Penal Code.


                                              8
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[, subdivision] (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; accord, People v. Zapisek (2007)
147 Cal.App.4th 1151, 1165.)

       Here, Dr. Auluck testified that defendant posed a substantial danger of physical
harm to others in view of defendant’s mental health history, his 1995 offenses, and
Rubel’s testimony concerning defendant’s behavior and comments while on CONREP
supervision during which defendant became psychotic. Defendant was diagnosed with
schizoaffective disorder of the bipolar type, a major psychiatric mental disorder, due to
which defendant has grandiose and paranoid delusions and that, even though controlled
with medications, defendant still had some grandiosity and believed he had been
mistreated by his church. When asked whether defendant had a mental disorder that
rendered it seriously difficult for him to control his dangerous behavior, Dr. Auluck noted
defendant’s impulsivity and that, without supervision to remind him to take medications,
his symptoms would return quickly without the medications. Even the defense expert
agreed and acknowledged defendant’s 1995 act of aggression/violence when he was off
his medications (attempted to hit jailers with a pillowcase full of wet clothes).

       The evidence established defendant posed a substantial danger of physical harm to
others and has a mental disorder that, by its very nature, causes him to have serious
difficulty controlling his behavior. As a result of his mental disorder, defendant has
grandiose and paranoid delusions he cannot completely control with medications. He


                                              9
presents a danger to the physical safety of others, as evidenced by his threats against the
president of the Mormon Church. Sufficient evidence supports the trial court’s order
extending defendant’s commitment.

       We also conclude that the trial court did not abuse its discretion in denying
defendant’s request for transfer to outpatient treatment.

       “ ‘Outpatient status is not a privilege given the [offender] to finish out his sentence
in a less restricted setting; rather it 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.’ ” (People v. Sword (1994) 29 Cal.App.4th 614, 620 (Sword).)

       The trial court determines whether the defendant “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.” (§ 1026.2, subd. (e).) The “defendant has the burden of
proving [at an outpatient status hearing], by a preponderance of the evidence, that he is
either no longer mentally ill or not dangerous.” (Sword, supra, 29 Cal.App.4th at p. 624.)

       A defendant may be released on outpatient status upon the recommendation of the
director of the state hospital and the community program director if the court approves
after a hearing. (§ 1603.)

       “The release decision is not solely a medical or expert decision. The court’s role
is to apply a community standard to the release decision . . . not to rubber-stamp the
recommendations of the . . . doctors and the community release program staff experts.”
(Sword, supra, 29 Cal.App.4th at p. 628.) The recommendations are “prerequisites for
obtaining a hearing,” but the trial court has discretion to approve or disapprove the
recommendations. (Ibid.)




                                              10
      Orders denying outpatient status are reviewed under an abuse of discretion
standard. (Sword, supra, 29 Cal.App.4th at p. 619, fn. 2; People v. Henderson (1986)
187 Cal.App.3d 1263, 1267-1268, 1270.) “Discretion is abused only if the court exceeds
the bounds of reason, all of the circumstances being considered.” (Henderson, supra, at
p. 1268.)

      Rubel was willing to accept defendant back into CONREP provided he developed
a written plan for dealing with church members but he had not done so. Dr. Auluck
believed it would be impossible for defendant to stay away from the church because
defendant wanted the social life the church provided. At the time of defendant’s offense,
he was having delusions that were religious in nature. He became psychotic even while
on CONREP supervision and wrote a threatening letter to the president of the Mormon
Church. The trial court provided legitimate reasons supported by the record for denying
defendant’s application for outpatient release. We do not find any abuse of discretion.

                                     DISPOSITION

      The order extending defendant’s commitment to June 27, 2014, is affirmed. The
order denying outpatient treatment is affirmed.




                                                       BUTZ                 , J.



We concur:



      ROBIE                , Acting P. J.



      MAURO                , J.

                                            11
