Filed 11/10/15 P. v. A.C. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062517

v.                                                                       (Super.Ct.Nos. FELSS1304551 &
                                                                                        FELJS1404496)
A.C.,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Lorenzo R.

Balderrama, Judge. Affirmed.

         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Sean M.

Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.




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                                              I

                                     INTRODUCTION

       Appellant A.C. appeals from a trial court order revoking his outpatient placement

as a mentally disordered offender (MDO) under Penal Code section 1608.1 Appellant

contends he received ineffective assistance of counsel (IAC) by his trial attorney, who

failed to prepare properly for trial by not having psychologist Meg Matty available to

testify at trial. Appellant argues Dr. Matty’s testimony was relevant to establishing his

baseline mental state and, had she been permitted to testify, appellant would have

achieved a more favorable outcome. We conclude there was no IAC and affirm the

judgment.

                                              II

                      FACTS AND PROCEDURAL BACKGROUND

       Appellant, who is 47 years old, was convicted of assault with a deadly weapon

(§ 245, subd. (a)(1)) after attacking his mother’s boyfriend with a fireplace poker without

provocation in 2001. As a condition of parole, in 2004, appellant was committed to the

Department of Mental Health pursuant to section 2962. His MDO status was extended in

2008, and each year thereafter under section 2972. In 2008, appellant was transferred to

Patton State Hospital (Patton). In October 2013, the district attorney filed a petition to

extend appellant’s commitment under section 2970. After the jurors were unable to reach

a unanimous verdict, the trial court declared a mistrial.


       1   Unless otherwise noted, all statutory references are to the Penal Code.

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       In June 2014, the San Bernardino County Department of Behavioral Health

submitted a letter to the trial court stating that the San Bernardino/Riverside Conditional

Release Program (CONREP) had determined that appellant could not be safely treated

and supervised in an outpatient treatment program. The parties nevertheless stipulated at

a status conference hearing that appellant was amenable to conditional outpatient

treatment. In August 2014, appellant agreed to the terms and conditions of outpatient

treatment.

       On September 2, 2014, Doctors Matty and Michael Ilas, staff psychologists at

Patton, wrote a Dispositional Court Report (September 2014 report) recommending the

district attorney file a petition to reestablish a section 2972 civil commitment for

appellant. Dr. Frederick Falvo, the medical director at Patton, also recommended the

district attorney file a petition for continued involuntary treatment of appellant and

extension of his commitment to 2016 under section 2970. In accordance with these

recommendations, in September 2014, the district attorney filed a petition for appellant’s

commitment as an MDO under section 2970 (petition).

Outpatient Commitment

       At the hearing on the petition, on October 10, 2014, appellant admitted the petition

allegations. The court found appellant had a severe mental disorder that was not in

remission and could not be kept in remission without treatment; because of appellant’s

severe mental disorder, he represented a substantial danger of physical harm to others;

and appellant could be safely and effectively treated on an outpatient basis. Against the



                                              3
recommendations of Patton and CONREP staff, the court ordered appellant placed in

outpatient treatment.

       Appellant arrived at a Gateways Satellite Program (Gateways) outpatient

treatment facility on November 12, 2014. The next day he had his first session with his

clinician, Dr. Tara Hyde. He reportedly had difficulty remaining focused and sitting still,

and repeatedly approached staff, asking the same questions. However, he appeared to

respond well to reassurances and repetition. At appellant’s second individual session on

November 17, 2014, appellant appeared open and engaged. He acknowledged and

endorsed his problems with alcohol abuse. In response to being asked what his goals

were while at Gateways, he stated, “‘better understanding my condition,’” which he

correctly identified as schizophrenia. He also stated he “‘used to think that people were

out to get [him]’” or did not like him.

       Gateways staff reported on November 21, 2014, around 10:00 a.m., that appellant

had been awake all night and repeatedly went outside to smoke, pacing around the

facility, and attempting to watch TV. He was repeatedly told to return to his room and

try to sleep. Appellant was noncompliant. Appellant appeared agitated and internally

preoccupied, and struggled with stating his requests. Hyde evaluated appellant.

Appellant told her he was concerned his medication had been replaced with Viagra. His

statements were illogical and irrelevant. He was unable to respond to clear, simple

questions. He stated, “‘I have a cap on my head . . . It feels like a cut,’” and “‘I have a

hollow ear.’” Because appellant had previously experienced delusions regarding

governmental agencies, his commitment terms and conditions restricted him from calling

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governmental agencies. Appellant acknowledged having called the Coast Guard and a

local hospital in the past two days. When Hyde asked him if he was worried about

something, appellant responded, “‘I was circumcised as a child, is that normal?’” and

then immediately asked Hyde if she could help him get a job. As appellant left the

session with Hyde, he was observed talking to himself.

       A Gateways staff nurse reported appellant had been physically intrusive in her

personal space that morning. He followed her closely despite redirection. After Hyde’s

session with appellant on November 21, 2014, she checked on him every 15 to 30

minutes and observed that he was internally preoccupied, speaking to himself, and having

difficulty sitting still. Hyde described appellant as “floridly psychotic.” It was

determined he could no longer be safely and effectively treated in the community because

of the intensity, severity, and unpredictability of his symptoms.

       At 12:30 p.m., an ambulance arrived to transport appellant to Patton. Appellant

was confused, his speech was illogical, and he was noncompliant when repeatedly told to

sit on the gurney. Eventually, at 12:45 p.m., after several staff members spoke to

appellant while police were called to assist, appellant voluntarily sat on the gurney and

was transported to Patton. When he arrived there, he told the admitting doctor he had

been drinking alcohol at Gateways. Hyde concluded appellant represented a danger to

the health and safety of the community. She recommended revocation of appellant’s

outpatient status under section 1608, to allow for treatment during an extended stay at

Patton.



                                              5
       On November 21, 2014, the community program director for MHM Services of

California submitted a notification of rehospitalization, informing the court that on

November 21, 2014, appellant had been rehospitalized at Patton due to “psychiatric

decompensation.” The notice served as CONREP’s written request for revocation of

appellant’s outpatient status. On November 25, 2014, the community program director,

Seaaira Reedy, Psy.D, filed a detailed report in support of CONREP’s request for

revocation of appellant’s outpatient status.

Revocation Hearing

       At the hearing on the request for revocation of outpatient status on December 5,

2014, the trial court granted the request and ordered appellant’s outpatient status revoked.

During the hearing, Hyde testified that during her initial meeting with appellant the day

after he arrived at Gateways, he was fairly cooperative but she was nevertheless

concerned about his psychiatric stability. Hyde’s observations were similar during her

second session with appellant on November 17, 2014. He still presented some anxiety,

pressured speech, tangential speech, and rumination on issues.

       When Hyde met with appellant on November 21, 2014, he was “very much

psychotic.” His speech was rambling and incoherent, and he was “demonstrating flight

of ideas.” Appellant was incapable of responding to any of her basic questions with a

real response as to whether he was experiencing symptoms, feeling unsafe, or having

thoughts of going off his psychotropic medications. Appellant could not provide her with

any responses from which she could evaluate his level of risk. Appellant disclosed he

had called the Coast Guard and a hospital within the last couple days, in violation of his

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terms and conditions, which prohibited him from contacting governmental agencies.

Appellant was unable to communicate, was responding to internal stimuli, and was

uncooperative.

       After speaking to the nurse, who told Hyde appellant had been intrusive, Hyde

consulted with the clinical director. Rehospitalization procedures were initiated. When

the ambulance arrived, appellant refused to get on the gurney and left the room. After

staff talked to him for about 15 minutes, he decided to sit on the gurney and cooperate.

Appellant was transported to Patton.

       Hyde concluded appellant had decompensated. His appearance, presentation, and

behavior had changed almost overnight. He was initially fairly logical, cooperative, and

responsive to Hyde’s questions and directives. Two days later he was completely

incapable of responding. Hyde initiated revocation proceedings based on her review of

his records and knowledge that appellant had a pattern of violent and criminal behavior

when in a decompensated state. Hyde was concerned for the safety of the public and

staff. Gateways’ staff believed it was beyond their capacity to manage appellant at the

outpatient center. Hyde believed appellant would benefit from extended treatment at the

hospital. The records Hyde reviewed included the September 2014 report filed with the

court and an initial MDO report.

       The prosecutor objected to appellant’s attorney questioning Hyde regarding the

September 2014 report on relevancy grounds because decompensation can occur within a

matter of days. Therefore observations of appellant in September 2014 were irrelevant to

whether he decompensated in November 2014. Appellant’s attorney argued the report

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was relevant to show appellant’s baseline condition and that all of the behaviors Hyde

stated showed appellant’s decompensated state already existed in September 2014.

       The court permitted appellant’s attorney to ask questions regarding the September

2014 report. In response, Hyde stated that regardless of what the September 2014 report

stated, she based her opinion appellant decompensated on her observation of appellant

over a period of two days in November, when his behavior changed rapidly and

drastically to the point of non-manageability. Hyde acknowledged appellant’s behavior

when she first saw him was a concern because it was recommended he not be placed in

outpatient treatment. Hyde agreed appellant was not ready at that time for outpatient

treatment. However, when Hyde first met appellant in November, she was able to have a

conversation with him and he was able to answer her questions. On November 21, 2014,

he was no longer able to answer her questions or have a conversation with her. This was

in part why Hyde concluded appellant had decompensated.

Request for a Continuance

       Appellant’s attorney requested a one-week continuance of the trial so that he could

call Dr. Matty as a witness to establish appellant’s baseline mental condition. The trial

court denied a continuance, concluding there was enough evidence establishing

appellant’s baseline and Dr. Matty’s testimony regarding appellant’s baseline in

September 2014 was not relevant to the issue of whether to revoke appellant’s

community outpatient treatment. The court further found appellant decompensated while

at Gateways and had become unmanageable. The court concluded appellant was

dangerous to himself and the community and could no longer be safely treated and

                                             8
supervised in a community outpatient treatment facility. The court ordered appellant’s

outpatient status revoked under sections 1608 and 1610, and ordered that he be retained

and treated at the state hospital until expiration of his commitment on April 29, 2016,

subject to being extended by the district attorney filing another petition. Appellant

appeals the December 5, 2014 order revoking his community outpatient status.

                                             III

                                            IAC

       Appellant contends his trial attorney’s failure to subpoena Dr. Matty to testify and

have her present at the trial constitutes IAC. This deficient conduct, defendant asserts,

led to the need for a continuance and the trial court’s denial of the request.

       To secure the reversal of a conviction based on IAC, a defendant must show (1)

his counsel’s performance was deficient when measured against the standard of a

reasonably competent attorney, and (2) counsel’s deficient performance was prejudicial

because it so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result. The appellate court must presume

counsel’s conduct fell within the wide range of reasonable professional assistance and

accord great deference to counsel’s tactical decisions. (People v. Lewis (2001) 25 Cal.4th

610, 674 (Lewis).)

       Because it is inappropriate for a reviewing court to speculate about the tactical

reasons for counsel’s actions, when the reasons are not readily apparent in the record, the

court will not reverse unless the record discloses no conceivable tactical purpose. (Lewis,

supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for

                                              9
counsel’s actions, an IAC claim is more appropriately decided in a habeas corpus

proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

       Appellant acknowledges in his appellate opening brief that under California Rules

of Court, rule 3.1332(c), there were no valid grounds for granting a trial continuance.

Appellant also concedes that the trial court could have denied a continuance based on

“the lack of notice for the motion itself or the lack of any legitimate justification for a

continuance.” Nevertheless, appellant argues there was IAC because his attorney failed

to subpoena Dr. Matty and have her available to testify at trial. Appellant assumes such

conduct constituted substandard performance and the only disputed issue is whether such

conduct was prejudicial.

       To establish prejudice, a defendant must show a reasonable probability that, but

for counsel’s failings, the result of the proceeding would have been more favorable to the

defendant. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).) Without a

showing of prejudice, we may reject defendant’s IAC claim without determining the

adequacy of counsel’s performance. (People v. Brodit (1998) 61 Cal.App.4th 1312,

1332.) A determination of prejudice requires an analysis of whether appellant suffered

any prejudice from his attorney not having Dr. Matty available to testify at trial. We

conclude there was no prejudice because Dr. Matty’s testimony regarding appellant’s

mental state in September 2014 was irrelevant and cumulative. Dr. Matty’s September

2014 report was part of the trial court file and Hyde testified concerning the contents of

Dr. Matty’s September 2014 report, which evaluated appellant’s mental state at that time.



                                              10
       More importantly, evidence concerning appellant’s mental condition in September

2014 was not relevant, and therefore it is reasonably probable that, had Dr. Matty

testified, appellant would not have achieved a more favorable result. The trial court’s

finding that appellant decompensated to a point where he required extended inpatient

treatment, thereby requiring revocation of his outpatient status, was based on evidence

that appellant’s behavior changed drastically after he arrived at Gateways on November

12, 2014. Although Hyde testified that appellant’s mental stability was borderline when

she first saw him on November 13, 2014, Hyde provided compelling testimony that

appellant decompensated while at Gateways and presented a risk of danger to the public.

       Citing Turner v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner), appellant

contends principles of collateral estoppel and res judicata require the outpatient order in

October 2014 be accepted as “law of the case.” Appellant asserts that revocation of

outpatient status under section 1608 requires there be “material changes” in a defendant’s

mental condition in order for an outpatient order to be revoked. Section 1608 permits the

outpatient treatment supervisor to request revocation of an outpatient order “at any time”

the supervisor believes a defendant needs “extended inpatient treatment or refuses to

accept further outpatient treatment and supervision.”

       Appellant argues that his condition on November 21, 2014, was essentially the

same as his condition at the time the outpatient order was entered in October 2014.

Therefore the trial court was rehearing the same issue with essentially unchanged

evidence, in violation of collateral estoppel and res judicata principles. Collateral

estoppel can operate to “preclude a party to prior litigation from redisputing issues

                                             11
therein decided against him.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815,

828.)

        In Turner, the court held that facts involving any mental defect or dangerousness

existing at the time of a prior proceeding finding the defendant not to be a sexually

violent predator (SVP) cannot be relitigated. Although a defendant may become

dangerous after a not-true finding due to a change in his mental health or other factors,

the Turner court held that a jury cannot simply reach a different conclusion based on the

same evidence presented to an earlier jury. Turner relied on principles of collateral

estoppel designed to protect the individual from “the fundamental [un]fairness of a

scheme that would permit the government to file successive petitions against an

individual in the same forum and on the same facts” and the justice system from

repetitive litigation. (Turner, supra, 105 Cal.App.4th at p. 1057.)

        The court in Turner recognized that a defendant’s mental health can, and often

does, change. (Turner, supra, 105 Cal.App.4th at p. 1060.) Given that the court in the

instant case was charged with assessing appellant’s current mental condition to predict

the risk of his current dangerousness, collateral estoppel and res judicata did not bar the

court’s ruling revoking appellant’s outpatient commitment. The principles of collateral

estoppel and res judicata do not apply here because the trial court’s ruling in the instant

case was not based on the same evidence before the court when it determined that

appellant qualified for outpatient commitment status. Unlike in Turner, in the instant

case the trial court appropriately relied on evidence of appellant’s subsequent conduct,



                                             12
after the October 2014 determination of outpatient commitment status, which

demonstrated he decompensated in November 2014.

       It is also not reasonably probable that Dr. Matty’s testimony regarding appellant’s

behavior in September 2014 would have changed the trial court’s findings that appellant

decompensated and posed a risk of danger to the public, thereby requiring revocation of

his outpatient status. As the court noted in Turner, “[a]lthough an individual against

whom an SVP petition is filed has a strong liberty interest, this interest is outweighed by

the government’s significant interest in protecting the public from mentally ill persons

who are likely to prey upon them. [Citations.] This interest is not diminished because of

the existence of earlier proceedings that pertained to the individual’s mental state and

dangerousness at a different time.” (Turner, supra, 105 Cal.App.4th at p. 1057.) This

applies equally here to appellant’s MDO petition. Ultimately, there was a determination

based on substantial evidence that appellant’s mental state deteriorated significantly after

being placed in Gateways’ outpatient program, such that he posed a serious and well-

founded risk of danger to the public and should not remain in an outpatient placement.

       Appellant has not shown there was deficient performance of counsel or prejudice.

(Strickland, supra, 466 U.S. at pp. 694, 697.) Appellant’s attorney’s failure to subpoena

Dr. Matty and produce her as a witness at trial does not constitute conduct deficient under

prevailing professional norms, because her testimony regarding appellant’s mental state

in September 2014 was unnecessary and irrelevant to appellant’s decompensation in

November 2014. Furthermore, as discussed above, there was no prejudice in appellant’s

attorney not making Dr. Matty available at trial because, even if Dr. Matty were

                                             13
permitted to testify, her testimony would have added little, if any, relevant evidence.

Appellant has not demonstrated a reasonable probability that, but for counsel’s failure to

produce Dr. Matty as a witness, the result of the proceeding would have been more

favorable to appellant. (Id. at p. 694.)

                                             IV

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                CODRINGTON
                                                                                          J.

We concur:


HOLLENHORST
          Acting P. J.


McKINSTER
                           J.




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