Filed 8/12/14 P. v. Dominguez CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067131
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF03906078)
                   v.

CYNTHIA GONZALEZ DOMINGUEZ,                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a postjudgment order of the Superior Court of Fresno County.
Wayne R. Ellison, Judge.
         Paul Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Detjen, J. and Franson, J.
       Following a jury finding that appellant, Cynthia Gonzalez Dominguez, currently
poses a substantial danger of physical harm to others because of a severe mental disorder
that is not in remission or cannot be kept in remission, the trial court extended appellant’s
involuntary mental health commitment under the Mentally Disordered Offender Act
(Pen. Code, § 2960 et seq.) for one year. On appeal, appellant contends the evidence was
insufficient to support the extension of her commitment as a mentally disordered offender
(MDO). Specifically, she argues that the evidence was insufficient to establish beyond a
reasonable doubt that she posed a substantial danger of physical harm to others by reason
of a mental disorder or that she lacked the volitional capacity to control dangerous
behavior. We affirm.
                                          FACTS
Testimony of Terri Scher, LCSW
       Terri Scher testified to the following: She is a licensed clinical social worker
(LCSW). At the time of trial, she had been employed in that capacity for five months by
a Veterans Administration hospital. Prior to that, she had been employed for seven years
as an LCSW by a conditional-release program known as CONREP, where her duties
included group and individual psychotherapy of persons suffering from mental disorders,
including persons with schizoaffective disorder with a bipolar component. As an LCSW,
she is qualified to make mental health diagnoses.
       In April 2012, in response to a report to CONREP from appellant’s husband that
appellant, who was on outpatient status, was “acting strange,” Scher went to appellant’s
home where she found appellant outside, using a hose to “water[] the couch down to
clean it.” The kitchen chairs had been “destroyed,” and appellant explained she had
“broke[n] them up with her fist” and was “going to remodel” them. Appellant’s baby
was crying, and appellant said she (appellant) was tired and “couldn’t handle the baby
crying.” Appellant, at Scher’s request, showed Scher her medication and Scher,




                                              2
observing that appellant had not taken her medication that day, asked her to do so.
Appellant complied.1
       Scher became appellant’s “primary clinician” in August 2012, after appellant was
remanded from the CONREP outpatient program to the Northstar residential treatment
program, a more restrictive treatment option than CONREP, for failing to follow the
CONREP program rules. Scher spoke with appellant approximately five times when
appellant was at Northstar.
       Scher reviewed “reports from other clinicians.” She also reviewed reports which
revealed the following regarding appellant’s “criminal history”: Appellant’s “committing
offense” was “assaulting a hospital worker” in a hospital emergency room when appellant
“became paranoid[,] thinking that the … worker was talking about [appellant’s] weight.”
Appellant “knocked the … worker down and then started banging her head against the
ground.” Appellant also “had one … juvenile offense, stabbing a female peer in 1990.”
       Scher, based on her review of “criminal history reports,” “mental health reports,”
the April 2012 incident, and Scher’s meetings with appellant at Northstar, diagnosed
appellant as suffering from a “severe mental disorder,” viz., “schizoaffective disorder[,]
bipolar type.” Persons with that disorder “have psychotic symptoms like hallucinations,
delusions, … not thinking clearly, [and] disorganized thinking.”
       Based on her review of “reports” and her experience “assisting” appellant, Scher,
when asked how appellant’s “specific mental disorder impacted her day-to-day living,”
responded: “Sometimes she wouldn’t take her medications or would skip a medication.
And I don’t necessarily think she was unwilling. But because she was impacted by her
mental illness she didn’t take it.” Appellant’s failure to take her medications initiated a
“vicious cycle,” in that “[i]f you are not taking your medication like you are supposed to,
then you have your symptoms increase,” including delusions, hallucinations and


1      We refer to the incident described above as the April 2012 incident.


                                              3
“disorganized thoughts.” Scher opined that if appellant was unsupervised and was
experiencing this “cycle” in which appellant’s symptoms were increasing, she would not
“come out of it.” She would need treatment and “her medication would have to be
adjusted.” “Because [appellant] has to have her medication in order to function the best
that she can,” Scher opined further, if appellant was living on her own without
supervision, she “would [not] do very well.”
       Asked if she believed appellant “posed a substantial danger of harm[] to others” at
the time Scher last saw her at Northstar, in September 2012, approximately seven and
one-half months prior to the trial in April 2013, Scher answered, “Yes,” and explained
that appellant could “have … disorganized thinking,” as in the April 2012 incident, that
could lead her to have “delusions [that] someone is out to get her,” “[a]nd she could harm
them.” Scher further testified that “if [appellant] had her child with her and she was not
taking her medication and had those symptoms, … I believe that the child could suffer
from that.”2 In Scher’s opinion, the “likelihood” was “[h]igh” that appellant “would
become psychotic and possibly reoffend without the continued treatment and
supervision.”
Testimony of Jonathan Berry, M.D.
       Jonathan Berry, M.D., testified to the following: He is a staff psychiatrist at Napa
State Hospital (NSH), where his duties include diagnosing and treating mental illness.
The last time he encountered appellant in a professional setting was in February 2013,
when appellant was admitted to NSH, where Berry worked in the admission unit.
Appellant did not exhibit psychotic symptoms during the interview or during her time in
the admission unit, but after reviewing records and meeting with appellant, Berry, based
on those records and appellant’s “report of historic symptoms” during the interview,
diagnosed her as suffering from schizoaffective disorder, bipolar type. Persons with this

2      Appellant testified she has three children. Scher testified she (Scher) was aware
appellant did not have custody of her children.


                                             4
disorder display a combination of “psychotic symptoms,” including “markedly
disorganized thinking like auditory hallucinations[] [and] delusions, combined with
significant mood symptoms,” viz., depression or mania. Appellant reported to Berry
“having depressive mood” with “significant decrease in energy,” “suicidal thoughts” and
a feeling of being “mentally slow and physically slow” that “[s]ometimes … goes with
depression”; “manic symptoms,” including “decreased need for sleep” and “grandiose
sense of self”; “delusional thoughts”; and “feeling paranoid,” i.e., thinking that people
had “said something negative about her” but concluding later that “[t]hat isn’t what really
happened.”
       Appellant’s mental illness could “substantially impair” her “thought processes,”
“perception of reality” and “emotional process or judgment,” and could “grossly impair
her behavior.” She requires medication to control the symptoms of her disorder.
       Berry did not do a “formal assessment” of whether appellant’s mental illness “was
an aggravating factor in her underlying crimes,” but “[i]t certainly sounded like that was
the case,” in that when she spoke with Berry about the assault on the hospital worker, she
recognized, in retrospect, that her belief that “ER staff members were saying negative
things about her weight” was “maybe … [not] the case.”
       At the time Berry spoke with appellant at her admission, “there was a suggestion
of a bit of paranoia.” She “seemed a little bit hypervigilant.” She thought that her
“peers” were looking at her when she was in the bathroom, but she recognized that
“[m]aybe [she was] running a little paranoid.”
       If appellant stopped taking her medication, Berry “would expect that she would be
more likely to have recurrence of manic episodes or depressive episodes and return of …
auditory hallucinations, paranoia[,] delusional beliefs, that sort of thing.”
       When asked if appellant, if not taking her medications and not receiving treatment,
would present a “substantial danger of physical violence to others,” Dr. Berry responded
that “she has a chronic moderate risk for violence.” He was “not sure about the term


                                              5
‘substantial.’” He explained, “We use [the terms] low, moderate, high or severe.” He
was “not sure where [the term] substantial fits,” but “[m]oderate,” though “[l]ess than
severe,” is “significant.”
Appellant’s Testimony
       Appellant testified to the following: She was pregnant around October 2010 and
when she first found out, in March 2010, while she was in the outpatient program, her
obstetrician directed her to immediately stop taking her psychotropic medications. The
incident involving watering the couch occurred not in April 2012, but in June 2010, when
she was off those medications. She began taking them again in December 2010.
       She suffers from a “thought disorder similar to … schizophrenia,” which also
includes a “severe mood disorder” and causes “disorganized thinking.” Her disorder
does not “caus[e] [her] … difficulty controlling [her] behavior.” She began taking a
medication called Invega in November 2011, and since that time she has experienced
some disorganized thinking, but no delusions or hallucinations and she has engaged in no
violent behavior.
       If released from NSH, appellant would live at “The Lighthouse,” a residential
treatment program, or, if she were placed on a waiting list for that program, at her
mother’s home. She would continue to take her medications.
                                      DISCUSSION
       Appellant first contends reversal is required because the evidence was insufficient
to support findings that (1) she suffers from a severe mental disorder, and (2) that as a
result of that disorder, she poses a substantial danger of physical harm to others.
Legal Background
       The Mentally Disordered Offender Act
       “‘The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires
that offenders who have been convicted of violent crimes related to their mental
disorders, and who continue to pose a danger to society, receive mental health treatment


                                              6
... until their mental disorder can be kept in remission.’” (Lopez v. Superior Court (2010)
50 Cal.4th 1055, 1061, disapproved on another point in People v. Harrison (2013) 57
Cal.4th 1211, 1230, fn. 2.) “Commitment as an MDO is not indefinite; instead, ‘[a]n
MDO is committed for ... one-year period[s] and thereafter has the right to be released
unless the People prove beyond a reasonable doubt that he or she should be recommitted
for another year.’” (Id. at p. 1063.) “A recommitment under the [MDO] law requires
proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the
disorder ‘is not in remission or cannot be kept in remission without treatment’; and (3) by
reason of that disorder, the patient represents a substantial danger of physical harm to
others. (Pen. Code, § 2970.)”3 (People v. Burroughs (2005) 131 Cal.App.4th 1401,
1404.)
         Standard of Review
         On appeal, we assess the sufficiency of the evidence to support an MDO
commitment under the substantial evidence standard. (People v. Clark (2000) 82
Cal.App.4th 1072, 1082-1083 (Clark).) This requires us to determine “whether, on the
whole record, a rational trier of fact could have found that defendant is an MDO beyond a
reasonable doubt, considering all the evidence in the light which is most favorable to the
People, and drawing all inferences the trier could reasonably have made to support the
finding. [Citation.] ‘“‘Although we must ensure the evidence is reasonable, credible,
and of solid value, nonetheless it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts on which that
determination depends.’”’” (Ibid.)
         A single opinion by a psychiatric expert that a person is currently dangerous due to
a severe mental disorder can constitute substantial evidence to support the extension of a
commitment. (Cf. People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [section 1026.5

3    We sometimes refer to the third component of the showing required for
recommitment under the MDO Act as the dangerousness component.


                                              7
commitment].) However, “expert medical opinion evidence that is based upon a ‘“guess,
surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial
evidence.”’” (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504 (Anthony C.).)
Analysis
       Both Scher and Berry opined, based on information acquired through personal
contact with appellant and review of records, that appellant suffers from schizoaffective
disorder, bipolar type, a severe mental disorder, the symptoms of which include
delusions, hallucinations and, in Berry’s words, “markedly” disorganized thinking. In
addition, both clinicians testified that appellant needed medication to control her
psychotic symptoms. Under the principles of appellate review summarized above, this
evidence was sufficient to support the jury’s finding that appellant suffered from a severe
mental disorder that was not in remission or could not be kept in remission without
treatment.
       The evidence was also sufficient to support the jury’s finding as to the
dangerousness component. Scher testified, based on her review of records—which
showed that on occasion, appellant, while hospitalized, failed to take her medication—
and on her direct personal experience with appellant—which included the April 12
incident in which appellant, while on outpatient status experienced extreme disorganized
thinking after failing to take her medication—that appellant sometimes would fail to take
her medications, such failure would cause her to experience psychotic symptoms,
including delusions, and that if this occurred while appellant was “unsupervised,” she
would not be able to stop the “cycle” of worsening symptoms on her own. As a result,
Scher opined further, appellant posed a substantial danger to others as a result of her
mental illness because such delusions could include the false belief that “someone was
out to get [appellant],” and that appellant, acting on this belief, could harm someone.
This opinion finds support in the records Scher reviewed which indicated that appellant
committed her commitment offense, an assault, when she “became paranoid,” i.e.,


                                              8
formed the delusional belief that other persons were talking about her weight. Scher
concluded that the “likelihood” was “[h]igh” that appellant “would become psychotic and
possibly reoffend without the continued treatment and supervision.” Based on the
foregoing, we conclude that from Scher’s testimony alone, the jury reasonably could
conclude that appellant posed a substantial danger to others as a result of a severe mental
illness that was not in remission or could not be kept in remission without treatment.
       Berry’s testimony provides further support for the jury’s finding of dangerousness.
As indicated above, Berry testified that appellant’s mental illness would “substantially
impair” her thought processes, perception of reality and judgment; and that he “would
expect” that if appellant stopped taking her medication she would be “more likely” to
experience psychotic symptoms, including delusions.
       Appellant challenges the sufficiency of the evidence supporting the jury’s findings
on a number of grounds. First, she argues that Scher’s testimony regarding appellant’s
diagnosis and Scher’s opinion regarding appellant’s potential for causing physical harm
to others, cannot, as a matter of law, support the jury’s findings and, indeed, must be
totally disregarded, because Scher, as an LCSW, was not licensed to make diagnoses or
“assess and predict violence.” (Unnecessary emphasis and capitalization omitted.)4 We
disagree.
       We assume without deciding that making mental health diagnoses and assessments
of the likelihood of a mentally ill person causing harm to others are beyond the scope of
an LCSW’s license. This would not establish, and appellant cites no case holding or even
suggesting, that the testimony of an LCSW on matters beyond the scope of his or her
license is, as a matter of law, incompetent. Evidence Code section 720, subdivision (a)


4      The People argue that appellant has forfeited this challenge to Scher’s testimony
because appellant did not object to Scher’s testimony on the ground that as an LCSW she
was not licensed to make diagnoses or assess dangerousness. We assume without
deciding that this contention is cognizable on appeal.


                                             9
provides, in relevant part, that “[a] person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education sufficient to qualify him as an
expert on the subject to which his testimony relates.” Thus the key question is not the
scope of matters covered by Scher’s LCSW license, but the scope of her knowledge of
the matters about which she testified. (Cf. Agnew v. City of Los Angeles (1950) 97
Cal.App.2d 557, 565-566 [“The determinative test [for a medical expert witness] is
whether the witness has disclosed sufficient knowledge of the subject to entitle his
opinion to go to the jury”]; People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142 [“it
cannot be said as a matter of law that an individual is not qualified to give a medical
opinion just because that person is not a licensed physician”].)
       Scher testified to the following: She worked for seven years for CONREP, during
which time she acted as the primary clinician for persons with mental disorders, including
schizoaffective disorder, providing group and individual psychotherapy, and underwent
training on an annual basis in mental health forensics. Also during that time, she worked
for the “Counseling and Psychotherapy Center” on a part-time basis.
       The jury reasonably could conclude, based on Scher’s testimony, that Scher, as a
result of the knowledge she had gained through her experience and training, was qualified
to diagnose appellant as suffering from a severe mental disorder and to render an opinion
that appellant, because of that disorder, posed a substantial danger to others. (See Evid.
Code, § 720, subd. (b) [“A witness’ special knowledge, skill, experience, training, or
education may be shown by any otherwise admissible evidence, including his own
testimony”].) Further, the jury reasonably could credit Scher’s testimony on these points.
       Appellant next argues that Scher’s testimony was, in any event, insufficient to
establish that appellant suffers from a severe mental disorder because, she asserts, Scher
did not adequately state the basis for her diagnosis of appellant. We disagree. Scher
testified that she based her diagnosis on reports regarding appellant’s criminal history and
mental health, and on her in-person contacts with appellant. Appellant’s argument that


                                               10
Scher did not adequately state the facts and reasoning underlying her diagnosis is, in
essence, a claim that we should reweigh the evidence. We will not do so. As indicated
earlier, that is not the function of an appellate court. (Clark, supra, 82 Cal.App.4th at
pp. 1082-1083.)
       Appellant also attacks Scher’s opinion testimony that appellant poses a substantial
physical danger to others as a result of a severe mental disorder. As indicated above,
Scher’s testimony as to the dangerousness component can be summarized as follows: It
was likely appellant would fail to take her medications if unsupervised; if she failed to
take her medications, it was likely she would experience psychotic delusions, including
delusions that other persons were “out to get her”; and she would respond to such
delusions with physical violence.
       Scher’s conclusion was supported by evidence in appellant’s records, cited by
Scher, that appellant assaulted a hospital worker while under the delusion that other
persons were talking about her weight. Appellant challenges this point, arguing that this
assault did not support Scher’s conclusion that appellant posed a danger of physical harm
to others “by reason of” a severe mental disorder because, notwithstanding the records
upon which Scher relied that showed, according to Scher’s testimony, that appellant
committed the attack when she “became paranoid,” it was not established that the assault
was caused by a mental disorder.
       Appellant’s point is not well taken. We are not compelled to conclude, as
appellant asserts, that Scher used the word “paranoid” in “a lay, non-clinical sense.” As
indicated above, we consider all evidence in the light most favorable to the jury’s
findings and draw all inferences that the jury could reasonably have made. The jury
reasonably could conclude from Scher’s reference to appellant becoming paranoid that
Scher based her opinion in part on evidence that appellant committed the assault as a
result of being under the delusional belief that other persons were speaking ill of her.




                                             11
         Appellant also argues that Scher’s opinion that appellant posed a substantial
danger of physical harm to others was unsupported because the April 12 incident did not
involve violence; appellant’s outpatient status was revoked for not following rules, not
for acting violently; and, she asserts, there was no evidence she ever experienced the
delusion that someone was “out to get her.” These claims amount to a request that we
reweigh the evidence. As indicated earlier, such is not the proper function of an appellate
court.
         Appellant also argues that Dr. Berry’s testimony was insufficient to support the
jury’s findings. She first argues Berry offered inadequate support for his diagnosis of
schizoaffective disorder because he noted that in his contacts with appellant he observed
only “irritability” but no psychotic symptoms. There is no merit to this contention.
Berry testified he based his diagnosis on review of the records and appellant’s reports of
“historic” psychotic symptoms, both proper bases for expert opinion.
         Finally, appellant challenges Berry’s opinion testimony that appellant presents a
“chronic, moderate risk for violence.” Appellant contends Berry “did not support this
conclusion with the facts and reasoning necessary to constitute substantial evidence.”
(See Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135
[“Where an expert bases his conclusion upon assumptions which are not supported by the
record, upon matters which are not reasonably relied upon by other experts, or upon
factors which are speculative, remote or conjectural, then his conclusion has no
evidentiary value”].) We need not address this contention, because, as demonstrated
above, Scher’s testimony is sufficient to establish the dangerousness component, and is
supported by other parts of Berry’s testimony.
Volitional Capacity
         “[T]he safeguards of personal liberty embodied in the due process guaranty of the
federal Constitution prohibit the involuntary confinement of persons on the basis that
they are dangerously disordered without ‘proof [that they have] serious difficulty in


                                              12
controlling [their dangerous] behavior.” (People v. Williams (2003) 31 Cal.4th 757, 759
(Williams), quoting Kansas v. Crane (2002) 534 U.S. 407, 413 (Crane).) Invoking this
principle, appellant argues reversal is required because “[t]here was … no evidence that
[appellant] lacked the volitional capacity to control dangerous behavior.” We disagree.
       In In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), which dealt with the
statutory scheme providing for the extended detention of dangerous juveniles (Welf. &
Inst. Code, § 1800 et seq.), our Supreme Court held that to maintain its constitutionality
under United States Supreme Court and California Supreme Court authority,5 that
scheme should be interpreted to contain a requirement that the person’s mental
deficiency, disorder, or abnormality caused serious difficulty in controlling his or her
behavior. (Howard N., at pp. 132-133.) The court further held that failure to instruct on
volitional control, coupled with a lack of evidence that the mental abnormality caused the
defendant serious difficulty controlling his behavior, was not harmless error. (Id. at
p. 138.)
       The court, however, distinguished Williams, supra, 31 Cal.4th 757, where it was
held the lack of a volitional control instruction was harmless, on the ground that in that
case, “the mental abnormality with which defendant was diagnosed[] was ‘a mental
disorder characterized by intense and recurrent fantasies, urges, and behaviors about sex
with nonconsenting persons, which symptoms persist for six months or more and cause
significant dysfunction or personal distress.’” (Howard N., supra, 35 Cal.4th at p. 138.)
Had such evidence been presented, the court suggested, a rational jury could have found
that the defendant was volitionally impaired. The evidence in the instant case that
appellant’s mental illness causes her to suffer from delusions, and that such delusions
could cause appellant to physically harm others, was similar to the evidence in Williams


5      See Crane, supra, 534 U.S. at pp. 412-413; Kansas v. Hendricks (1997) 521 U.S.
346, 358, 360; Williams, supra, 31 Cal.4th at p. 759; Hubbart v. Superior Court (1999)
19 Cal.4th 1138, 1156, 1158.


                                             13
that the defendant in that case had intense and recurrent fantasies which caused
significant dysfunction. Such evidence was sufficient to establish that appellant had
serious difficulty in controlling her behavior.
       We find instructive People v. Putnam (2004) 115 Cal.App.4th 575 (Putnam). In
that case, the patient challenged his MDO recommitment on the basis the jury was not
adequately instructed on the requirement that the prosecution establish he had serious
difficulty in controlling his behavior. (Id. at p. 579.) Instructions given informed the jury
of the following: “[I]n order to find that appellant had a severe mental disorder, it had to
find that he had ‘an illness or disease or condition that substantially impair[ed] [his]
thoughts, perception of reality, emotional process, or judgment, or which grossly
impair[ed] [his] behavior’”; “in order to find that the disorder was not in remission, the
jury had to find that ‘the overt signs and symptoms of the severe mental disorder’ were
not under control”; and the jury “had to find that ‘by reason of such severe mental
disorder, [appellant] represents a substantial danger [of] physical harm to others.’ (Italics
added.)” (Id. at p. 582.) The court held there was no instructional failure because “the
instructions given …, which tracked the language of the MDO statute, necessarily
encompassed a determination that appellant had serious difficulty in controlling his
violent criminal behavior ….” (Ibid.)
       Here, as demonstrated above, substantial evidence supported each of the points
covered in the jury instructions given in Putnam. And, as Putnam explains, these points
“necessarily encompass[]” (Putnam, supra, 115 Cal.App.4th at p. 582) the showing
required to establish serious difficulty in controlling behavior. Therefore, appellant’s
challenge to the sufficiency of the evidence that she had serious difficulty controlling her
behavior fails.
                                      DISPOSITION
       The postjudgment recommitment order is affirmed.




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