Filed 5/21/15 P. v. Cabrera CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                     2d Crim. No. B255549
                                                                              (Super. Ct. No. F408680)
     Plaintiff and Respondent,                                                (San Luis Obispo County)

v.

DAVID CABRERA,

     Defendant and Appellant.



                   David Cabrera appeals an April 3, 2014 order extending his commitment
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pursuant to Penal Code section 1026.5 subdivision (b)(1). In 2009, appellant was
committed to Atascadero State Hospital after pleading not guilty by reason of insanity
to theft of an ambulance and felony evading an officer. (§ 1026.) Appellant contends
that the evidence does not support the finding that he is currently dangerous by reason
of his mental disorder (schizophrenia) or that he has serious difficulty controlling his
dangerous behavior. (§ 1026.5, subd. (b)(1); People v. Galindo (2006) 142 Cal.App.4th
531, 539.) We affirm.
                                         Facts and Procedural History
                   In 2007 appellant stole a Los Angeles Fire Department ambulance and led
the California Highway Patrol on a high speed chase. Appellant was delusional and
1
    All statutory references are to the Penal Code unless otherwise stated.
said he was in route to Louisiana to help the Hurricane Katrina victims. Appellant was
also under the influence of drugs.
              After criminal charges were filed, the trial court found appellant mentally
incompetent to stand trial, suspended criminal proceedings, and ordered appellant
committed to Atascadero State Hospital until his mental competence was restored. (§
1368.) On September 9, 2009, the trial court determined that appellant's mental
competency had been restored and reinstated criminal proceedings.
              Appellant waived jury and entered a plea of not guilty by reason of
insanity to theft of an ambulance (Veh. Code, § 10851, subd. (b)) and felony evading an
officer (Veh. Code, § 2800.2, subd. (a)). Based on the reports of two psychiatrists, the
trial court found appellant not guilty by reason of insanity and committed appellant to
Atascadero State Hospital on November 12, 2009 for a maximum term of four years
eight months. In 2012, the commitment was extended because appellant was a
substantial danger to others.
              On January 10, 2014, San Luis Obispo County District Attorney filed a
petition to extend the commitment two more years. Appellant waived jury.
              Doctor Brandon Yakush, a forensic psychologist at Atascadero State
Hospital, testified that appellant suffered from schizophrenia, disorganized type,
manifested by paranoid delusions that hidden cameras were videotaping in his home,
that people were out to get him, and that family members had been replaced by robots
(Capgras Delusion). Doctor Yakush stated that appellant exhibits other symptoms,
"things like limited affect or lack of spontaneous speech or lack of motivation."
              When Doctor Yakush interviewed appellant and asked about the
commitment offense, appellant said he was high on methamphetamine and stole the
ambulance because it had drugs in it. Appellant also said that he stole the ambulance to
help Katrina Hurricane victims. Although appellant exhibited no overt psychiatric
symptoms (paranoid delusions), appellant was not symptom free. Doctor Yakush
explained that "lack of motivation, is a negative symptom of his illness. But it may



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honestly be just part . . . of his personality and/or attitude, so that is a very hard thing to
tease out, though I know clinicians in the hospital have attributed his lack of motivation
to negative parts of his illness."
               When asked whether appellant was a danger to others, Doctor Yakush
said there are "mitigating factors . . . . [¶] . . . [¶] . . . On the mitigation side, is the
psychiatric stability and the fact he's not been violent in over three years -- but I have to
weigh against that that Mr. Cabrera has not consistently demonstrated the motivation to
take care of his mental illness in the community." When appellant tried to get into
CONREP in 2013, his group treatment attendance was above 90 percent. After
CONREP rejected appellant, his attendance plummeted. Appellant "pretty much just
stopped going to groups. [¶] One treatment note said he was 90, 100 percent down to
19 percent. And basically. . . took a 'You know what? Forget it. I'm not going to try'
attitude. And when I asked him in March [2014] about that, he said, yeah, he wasn't
motivated to do anything." )~
               Appellant denied that he had a mental illness and was ambivalent about
what would happen if he went off his medication. Doctor Yakush testified that
appellant was "not showing the motivation to say, 'Okay. I have an illness. I need to
take care of my illness.' " That is a concern because if appellant is "released to the
community, especially in the absence [of] CONREP, it would be 100 percent his
responsibility to take care of that illness. And he's not been demonstrating that at the
hospital."
               Doctor Yakush opined that appellant was a danger to others, that it was
the product of his mental illness, and that appellant would not be able to control his
dangerous behavior if released. Appellant's substance abuse (methamphetamine,
cocaine, and marijuana) was a factor in the 2007 offense and an ongoing concern. The
hospital progress reports stated that appellant was not sure that he can abstain from
drugs and was not willing to participate in substance abuse treatment. Doctor Yakush
testified that appellant should not be released until he has "better insight, complet[ed]



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the substance abuse treatment program, and demonstrat[ed] . . . dedication to his
treatment for a sustained period of time. . . ."
              Crediting Doctor Yakush's testimony, the trial court found that appellant
posed a substantial danger to others by reason of his mental disorder. "Hopefully Mr.
Cabrera will get into the substance abuse treatment programs and complete that . . . but
that's going to be up to him."
                                 Substantial Danger to Others
              " ' "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.]' "
(People v. Bowers (2006) 145 Cal.App.4th 870, 878.) As in any sufficiency-of-the-
evidence appeal, we review the 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. (Id., at pp. 878-879.) "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. [Citation.]" (Id., at p. 879.)
              Section 1026.5, subdivision (b)(1) requires that the prosecution prove that
appellant is a substantial danger to others by reason of his mental disorder or disease.
(People v. Bolden (1990) 217 Cal.App.3d 1591, 1599.) "[S]ection 1026.5 defines
dangerousness without regard to the effect of medical treatment." (Ibid.) Here the
evidence shows that appellant is a danger to others due to his mental disorder, his lack
of insight, and his lack of motivation to take care of himself when he is released into the
community.
              Appellant argues that lack of motivation, standing alone, does not show
that he has serious difficulty controlling his dangerous behavior. (In re Howard N.
(2005) 35 Cal.4th 117, 128-129; People v. Galindo, supra, 142 Cal.App.4th at p. 536.)
Doctor Yakush agreed that appellant has not exhibited overt psychiatric symptoms for



                                              4
more than a year and has not engaged in violence or threatening behavior in three years.
But that is not the whole psychiatric picture. Appellant's paranoia and impaired
judgment is fueled by his drug use. Hospital psychiatrists rated the danger to others
"Moderate/high" based on appellant's thought disturbance and refusal to address his
alcohol/drug addiction problem. In a July 21, 2013 progress report, two psychiatrists
reported that appellant is "a profoundly limited and impaired individual" and that his
criminal behaviors are driven by his psychosis and craving for drugs. Even in a
controlled hospital setting, appellant could not control his violent behavior and engaged
in two acts of violence in 2008, was physically aggressive to staff in 2009 (death
threats, kicking, biting, and spitting), and fought peers in 2010 and 2011 about which
TV channel to watch.
              When asked what "triggers" his violence, appellant said "I don't know. I
have been here four years." When asked about the early warning signs of
decompensation, appellant replied, "When I am too sleepy. Nothing else." Appellant's
substance abuse is a concern because it fueled his psychotic behavior in 2007 when he
stole the ambulance and led the police on a high speed (100 miles per hour) chase.
Before he was committed, appellant consumed 1/2 ounce of methamphamine every
other day, used cocaine weekly, smoked marijuana, and had a history of sniffing paint,
using intravenous heroin, and abusing alcohol.
              Doctor Yakush opined that appellant is a danger to others by reason of his
mental illness and lack of motivation to care for himself and keep his mental illness in
remission. Appellant lacks insight, is ambivalent about what would happen in he went
off his medication, and still holds onto the paranoid delusion that triggered the 2007
offense. "[A] single psychiatric opinion that an individual is dangerous as a result of a
mental disorder constitutes substantial evidence to support an extension. [Citation.]"
(People v. Superior Court (Williams ) (1991) 233 Cal.App.3d 477, 490.) Viewed in the
light most favorable to the extension order, the evidence supports the trial court's
finding that appellant is a danger to others by reason of his mental disorder and has



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serious difficulty controlling his dangerous behavior. (People v. Zapisek (2007) 147
Cal.App.4th 1151, 1166-1168; People v. Bowers, supra, 145 Cal.App.4th at p. 879.)
              The judgment (order recommitting appellant pursuant to section 1026.5,
subdivision (b)(1)) is affirmed.
              NOT TO BE PUBLISHED.



                                                       YEGAN, J.


We concur:



              GILBERT, P.J.



              PERREN, J.




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                             Hugh F. Mullin, III, Judge

                      Superior Court County of San Luis Obispo

                        ______________________________


             Paul Bernstein, under appointment by the Court of Appeal, for Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, David C.
Cook, Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.




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