Filed 4/22/13 P. v.Voishvillo 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                     2d Crim. No. B242862
                                                                               (Super. Ct. No. 1253306)
     Plaintiff and Respondent,                                                  (Santa Barbara County)

v.

ANDREI VOISHVILLO,

     Defendant and Appellant.


                   Andrei Voishvillo appeals a judgment extending his commitment to the
State Department of State Hospitals (SDSH) for treatment as a mentally disordered
offender (MDO) (Pen. Code, §§ 2962, 2970), following his 2008 conviction for battery
by gassing (§ 243.9).1 We conclude, among other things, that: 1) substantial evidence
supports the finding that Voishvillo suffers from a severe mental disorder, and 2)
Voishvillo has not shown that the trial court misunderstood the People's burden of
proof. We affirm.
                                                         FACTS
                   In 2008, Voishvillo pled guilty to one count of battery by gassing. He was
sentenced to two years in state prison. In 2009, the Board of Parole Hearings (BPH)
determined that he met the requirements for commitment for treatment as an MDO. He


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    All statutory references are to the Penal Code.
received treatment at the Atascadero State Hospital (ASH) and his commitment was
extended.
              On November 21, 2011, the ASH medical director notified the Santa
Barbara County District Attorney that Voishvillo's "severe mental disorder is not in
remission and cannot be kept in remission" unless his treatment is continued.
              On December 12, 2011, the district attorney filed a petition requesting the
superior court to extend Voishvillo's commitment as an MDO. (§ 2970.)
              At trial, Brandi Matthews, a psychologist at ASH, testified that Voishvillo
suffers from "schizophrenia, paranoid type," a severe mental disorder which is not in
remission. Voishvillo represents "a substantial danger of physical harm to others." He
hears voices and is "experiencing paranoia that's at a psychotic level." He believed
"staff was trying to kill him." He was "delusional." He claimed someone was "banging
[his] wife," but he was never married. Matthews said, "He has had multiple incidents of
engaging in violent behavior." Voishvillo had physically attacked hospital staff and
needed to be restrained.
              Matthews said that "[e]ven when [Voishvillo] is medicated, he [has] a
history of engaging in violent behavior." Voishvillo also has Asperger's, a
developmental disorder, which would not qualify as a severe mental disorder. But his
"history of exhibiting psychotic symptoms" goes "far beyond" Asperger's. His behavior
from 2008 shows symptoms of schizophrenia.
              In the defense case, Jessica Mosich, an ASH psychologist, testified
Voishvillo's "case is very complex." Voishvillo has Asperger's. Mosich said, "He
scored high in the same subtests that other people with Asperger's typically score high
in, and low in the subtests that people with Asperger's typically score low in." On
cross-examination, she said Voishvillo's treatment team in February 2012 diagnosed
him with "schizophrenia paranoid type." The prosecutor asked, "[Y]ou haven't
reviewed all of the material necessary in order to really determine whether Mr.
Voishvillo does not suffer from schizophrenia, isn't that true?" Mosich: "I haven't


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reviewed all of the information." The prosecutor: "[Y]ou can't say that Dr. Matthews'
opinion about Mr. Voishvillo suffering from a severe mental disorder, specifically
schizophrenia and paranoia, is incorrect? You can't say that?" Mosich: "No. I don't."
              Bobby Thrani, a clinical psychologist at ASH, testified that Voishvillo
suffers from Asperger's syndrome. There was no indication that he suffers from
schizophrenia. On cross-examination, he said Voishvillo's statement to staff that he
heard voices "could be" consistent "with someone who suffers from paranoid
schizophrenia."
              Robert Zeszotarski, an ASH psychiatrist, testified that Voishvillo has
"Axis 1 alcohol abuse and Asperger's disorder." Voishvillo does not "suffer from
schizophrenia." The trial court asked, "[C]an you have a developmental disability that
is so extreme that it can be characterized as a severe mental disorder?" Zeszotarski:
"Well, in certain cases those conditions are actually considered severe mental disorder."
He said that Voishvillo's threats against ASH staff "could be" consistent with Asperger's
and "could be" consistent with schizophrenia paranoid type.
              In rebuttal, David Fennell, M.D., the director of forensics at ASH,
testified that he agreed with Matthews' assessment that Voishvillo's symptoms were
consistent with both Asperger's and schizophrenia paranoid type.
              The trial court found there was sufficient evidence for an extended
commitment at ASH. It said, "[T]he testimony of Doctors Matthews and Fennell were
persuasive in terms of convincing me that he suffers from a severe mental disorder."
                                     DISCUSSION
                                  Substantial Evidence
              Voishvillo contends there is insufficient evidence to support the trial
court's finding that he suffers from a severe mental disorder. We disagree.
              In determining the sufficiency of the evidence, we review the record in the
light most favorable to the judgment drawing all reasonable inferences in support of the
trial court's findings. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) Continued


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involuntary treatment requires a finding that the individual "has a severe mental
disorder" that is not in remission and that he or she "represents a substantial danger of
physical harm to others." (§ 2970.)
               Voishvillo notes that his experts testified that he suffers from Asperger's,
which is not a severe mental disorder. But the issue is not whether some evidence
supports his position; it is whether substantial evidence supports the judgment. The
testimony of Matthews and Fennell supports the trial court's finding that he suffers from
a severe mental disorder. They were qualified medical experts. Voishvillo has not
shown why the court could not rely on their opinions about his mental disorder. (People
v. Ward (1999) 71 Cal.App.4th 368, 374.)
               Voishvillo contends the trial court should have given greater weight to the
testimony of his experts because they treated him. He argues that Matthews' and
Fennell's testimony is less credible because they did not have sufficient direct contact
with him. But we do not reweigh the evidence, and "'"'it is the exclusive province of the
trial judge . . . to determine the credibility of a witness and the truth or falsity of the
facts on which that determination depends.'"'" (People v. Clark, supra, 82 Cal.App.4th
at p. 1083.) Voishvillo suggests the court had to accept the opinions of his experts that
he only had Asperger's. But the trier of fact "may disregard the expert's opinion, even if
uncontradicted, and draw its own inferences from the facts." (Kennemur v. State of
California (1982) 133 Cal.App.3d 907, 923.)
               Here Mosich conceded that she did not review all the material necessary
to conclude that Voishvillo did not suffer from schizophrenia. She said she was unable
to testify that Matthews' opinion was incorrect. Thrani said Voishvillo's statements that
he heard voices "could be" consistent with paranoid schizophrenia. Zeszotarski said
Voishvillo's threats against staff could be consistent with schizophrenia paranoid type.
This portion of their testimony does not conflict with the opinions of Matthews and
Fennell. The trial court could accept these facts and reject the defense experts' ultimate



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conclusions. (Kennemur v. State of California, supra, 133 Cal.App.3d at p. 923.) The
evidence is sufficient.
                                The People's Burden of Proof
               Voishvillo contends that during trial the trial court made remarks
indicating it did not understand that the People had to present proof beyond a reasonable
doubt. He suggests the court consequently applied a different standard of proof. We
disagree.
               Voishvillo notes that during trial the trial court made the following
remarks: "[T]his Court is not required to decide that the correct diagnosis is one or the
other. I don't have the capacity to do that, the professionals can't agree on it." "[W]e're
all struggling . . . . [I]sn't it a concern where there is . . . some uncertainty about
whether the primary diagnosis is one or the other, isn't it of some concern how he's
going to be treated if he's released? And shouldn't there be a plan in place?"
               Voishvillo suggests these remarks and others show the trial court did not
know the standard was proof beyond a reasonable doubt. But these comments were
made during counsel's oral arguments. They were questions, responses to counsel and
rhetorical statements. The court understood the correct burden of proof. It said, "All
that is necessary in terms of the prosecution's burden of proof is I conclude beyond a
reasonable doubt that Mr. Voishvillo suffers from a severe mental disorder." (Italics
added.) The court's tentative or earlier remarks will not impeach the judgment where its
ultimate material findings are supported by substantial evidence. (Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 268; Bogacki v. Board of Supervisors (1971) 5
Cal.3d 771, 780, fn. 7; see also Jermstad v. McNelis (1989) 210 Cal.App.3d 528, 552.)
There is no error if the earlier remarks conflict with its ultimate conclusion because the
court may change its prior rulings at any time before entry of judgment. (Shaw, at
p. 268; Horning v. Shilberg (2005) 130 Cal.App.4th 197, 203.) Here the court
ultimately found that Matthews' and Fennell's testimony was "persuasive in terms of



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convincing [it] that [Voishvillo] suffers from a severe mental disorder." That finding is
supported by substantial evidence.
              We have reviewed Voishvillo's remaining contentions and we conclude he
has not shown error.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




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                                 Brian E. Hill, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


             Gerald J. Miller, under appointment by the Court of Appeal, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A.
Taryle, Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.




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