Filed 2/11/13 P. v. Christopher CA4/2
Received from the court on 12/26/13
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E053885

v.                                                                       (Super.Ct.No. INC082845)

JEFFERSON BRUCE CHRISTOPHER,                                             OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge.

(Retired judge of the Mun. Ct. for the Central Orange Jud. Dist. assigned by the Chief

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Ronald R. Boyer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Alana Cohen Butler

and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Jefferson Bruce Christopher suffers from schizoaffective disorder. In

2004, after serving his time on a conviction for aggravated assault, he was committed for

treatment as a mentally disordered offender (MDO). In 2011, he was recommitted for an

additional one-year term; the trial court refused to place him on outpatient status.

       Defendant challenges the refusal to place him on outpatient status, arguing:

       1. The trial court erred by ruling that it did not have the authority to place

defendant on outpatient status.

       2. The trial court did not apply the correct legal standard, which required it to

place defendant on outpatient status if there was reasonable cause to believe that he could

be safely and effectively treated as an outpatient.

       3. Because there was insufficient evidence that defendant would be dangerous

even if treated as an outpatient, the trial court’s refusal to place defendant on outpatient

status violated due process.

       We find no error. Hence, we will affirm.

                                              I

                               FACTUAL BACKGROUND

       A.     The People’s Evidence.

       Defendant had a history of mental illness dating back to 1976, when he was

diagnosed as having schizophrenia. He had repeatedly been involuntarily detained for

psychiatric evaluation under Welfare and Institutions Code section 5150.




                                              2
       In 1987, defendant was charged with attempted murder. He was found to be

incompetent to stand trial and committed to Patton State Hospital (Patton). Thereafter, he

was found not guilty by reason of insanity. Thus, he remained at Patton until 1992.

       In 2000, the manager of a McDonald’s asked defendant to leave; because

defendant believed the manager was following him, he threatened to “blow [the

manager’s] brains out.” As a result of this incident, defendant was convicted of making a

criminal threat. (Pen. Code, § 422.)

       In 2001, defendant accused a friend of his mother of stealing his Social Security

checks; he punched her in the face six or seven times. As a result, in 2002, defendant

was convicted of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and sentenced to

prison. In 2004, at the end of his sentence, he was found to be an MDO and committed

to Patton.

       Defendant’s current diagnosis was schizoaffective disorder, bipolar type. His

symptoms included delusional beliefs. For example, he believed that every time he got

arrested, there was a hurricane on the eastern seaboard. He also believed that there were

holes in the north and south poles and civilizations that lived under them, all of which

was related to a secret federal government project. He claimed to have lost $300 million.

Some of his delusions were persecutory or paranoid.

       At the time of trial, defendant was taking two antipsychotic medications, Seroquel

and Abilify. He took the medication willingly.




                                             3
       In the opinion of defendant’s treating psychiatrist at Patton, Dr. Mubashir Farooqi,

defendant’s mental illness was not in remission, because he continued to have delusional

beliefs. Also, his insight regarding his illness was “questionable.” While he would tell

Dr. Farooqi that he had a mental illness, he told other staffers that he did not.

       However, also in Dr. Farooqi’s opinion, defendant’s mental illness was under

control, meaning that his behavior had improved significantly. He followed the rules.

He was not at risk of committing homicide or suicide. He had not been violent or

threatened anyone with violence. He was not using drugs or alcohol. He attended

Alcoholics Anonymous and Narcotics Anonymous meetings regularly. His hygiene and

grooming were good. He worked at Patton as a janitor.

       Finally — and again, in Dr. Farooqi’s opinion — defendant still presented a

substantial danger of physical harm to others. Dr. Farooqi explained that “the biggest

predictor of future violence is . . . past violence.” He also explained that, because

defendant lacked insight regarding his mental illness, if “left to his own accord,” he

would not take his medication. Defendant had a history of not taking his medication, and

he had committed “almost all his offenses” when he was not taking any medication.

Dr. Farooqi concluded, “We just want to make sure . . . that he’ll keep taking his

medication and he will not resort to street drugs. If those two factors can be controlled,

then I would . . . feel that he would be safe.”

       Dr. Farooqi testified regarding CONREP, which stands for “conditional release

program.” It is a “step down” program, meaning that patients are gradually granted more



                                              4
freedom as they improve. A patient could go into CONREP only if the authorities at

Patton recommended this, and then only if CONREP accepted the patient.

        Previously, in 2007, defendant had been discharged into CONREP. However,

when asked for a urine sample, he stated that he had smoked marijuana. As a result, his

CONREP status was revoked within three hours after his discharge, which Dr. Farooqi

described as “the record in our unit for now.” Ultimately, defendant’s drug test was

actually negative. Dr. Farooqi believed that defendant “got panicky during the intake

interview . . . .”

        After that, defendant had “adamantly declined” CONREP, because he felt the

rules were too strict. Hence, in his written report, Dr. Farooqi had recommended that

defendant should not be placed on outpatient status.

        By the time of trial, defendant had changed his mind and agreed to go to

CONREP. Accordingly, Dr. Farooqi had changed his recommendation; he believed that

defendant should be discharged to CONREP. Dr. Farooqi, however, had “heard . . . that

CONREP did not accept him at this time.”

        B.      Defendant’s Evidence.

        Defendant testified that, in the commitment offense, the victim had stolen his

Social Security check. When he asked her for his money, she spit in his face and

punched him, so he punched her back. He did not feel any remorse or regret, but he

would not do it again.




                                             5
       Defendant testified that there had, in fact, been a hurricane “each time they booked

me on 5150s,” but it was only a coincidence; he denied any causal connection.

       Defendant wanted to go into CONREP. He did not feel that he had a mental

illness, but he agreed that he needed medication, and he was willing to take it. In 2007,

his CONREP status had been revoked because he truthfully admitted smoking marijuana

at Patton in the past; he had not meant that he had smoked it recently. The CONREP

authorities told him they would reevaluate him in six months, but they never did.

                                             II

                                       MOOTNESS

       An MDO commitment lasts for one year; after that, the defendant must be either

released or recommitted. (Pen. Code, §§ 2970, 2981, subd. (c).) Thus, the trial court

recommitted defendant for a period ending April 21, 2012.

       In a footnote, the People note that if, during the appellate process, defendant was

recommitted and placed on outpatient status, this appeal would be moot. (People v.

Gregerson (2011) 202 Cal.App.4th 306, 321.) However, they have not filed a motion to

dismiss the appeal as moot. They have not shown (or even claimed) that defendant has,

in fact, been placed on outpatient status. Because there is no evidence before us that the

appeal is moot, we may proceed to decide it.




                                             6
                                              III

             FAILURE TO APPLY THE CORRECT LEGAL STANDARD

       Defendant contends that the trial court erred by refusing to place him on outpatient

status without ever deciding whether there was reasonable cause to believe that he could

be safely and effectively treated as an outpatient.

       A.     Additional Factual and Procedural Background.

       After the jury returned its verdict, there was this exchange:

       “[DEFENSE COUNSEL]: . . . [¶] . . . I’m asking if the Court would order that

Mr. Christopher may go into the CONREP program . . . .

       “THE COURT: I appreciate your request. And I listened to it and I’ve heard it,

but I don’t think the Court has the authority actually to do it.

       “[DEFENSE COUNSEL]: Well, I’m informed that the Court does, but at the

same time CONREP may accept or reject him.

       “THE COURT: CONREP can determine if they want to accept him. And I’m not

prepared to make such an order. If I had the authority, I would deny it.”

       Accordingly, the trial court ordered defendant returned to Patton.

       B.     Analysis.

       Penal Code section 2972, subdivision (d) provides: “A person shall be released on

outpatient status if the committing court finds that there is reasonable cause to believe

that the committed person can be safely and effectively treated on an outpatient basis.”




                                              7
       The defendant has the burden of showing that he or she is suitable for outpatient

treatment. (People v. Gregerson, supra, 202 Cal.App.4th at p. 316.) “[T]o obtain

outpatient treatment, the patient must raise a strong suspicion in a person of ordinary

prudence that outpatient treatment would be safe and effective.” (Id. at p. 319, fn.

omitted.)

       It is not entirely clear whether the applicable standard of review is substantial

evidence or abuse of discretion. (See People v. Gregerson, supra, 202 Cal.App.4th at

p. 319, and cases cited.) In practice, however, there is little difference between the two.

(Id. at pp. 319-320.) “[W]e look to whether the court relied on proper factors and

whether those factors are supported by the record. [Citation.]” (People v. McDonough

(2011) 196 Cal.App.4th 1472, 1489 [denial of outpatient status to defendant found not

guilty by reason of insanity].)

       The People concede that under Penal Code section 2972, subdivision (d), the trial

court had the authority to place defendant in CONREP, and hence, its ruling that it lacked

such authority was “mistaken.” They note, however, that the trial court also ruled that,

even if it did have the authority to place defendant in CONREP, it would not. They

argue that its refusal to place defendant in CONREP should be affirmed on this

alternative ground.

       Defendant responds that, because the trial court apparently was unaware of its

authority under Penal Code section 2972, subdivision (d), it must also have been unaware

of the fact that that subdivision required it to determine whether “there is reasonable



                                              8
cause to believe that the committed person can be safely and effectively treated on an

outpatient basis.” He concludes that it must have used an erroneous legal standard.

       Preliminarily, it appears to be undisputed that placing an MDO on outpatient

status and placing an MDO in CONREP are one and the same thing; in other words,

CONREP is the only outpatient program there is. (See Welf. & Inst. Code, § 4360

[statutory authorization for CONREP].) Thus, as the People concede, Penal Code section

2972, subdivision (d) did give the trial court the authority to place defendant in

CONREP.

       As the trial court’s comments demonstrate, however, the real question, in its mind,

was whether it had the authority to place defendant in CONREP if CONREP had already

rejected him. Dr. Farooqi testified that he had recommended defendant for CONREP;

however, he had “heard” that CONREP had rejected defendant. Although this was

arguably hearsay, defense counsel did not object; accordingly, it was substantial

evidence. (People v. Panah (2005) 35 Cal.4th 395, 476.)

       Dr. Farooqi had also testified that a patient can be placed in CONREP only if

CONREP accepts him or her. However, this was a legal conclusion. Even though

defense counsel did not object, it simply was not substantial evidence. (Downer v.

Bramet (1984) 152 Cal.App.3d 837, 841 [Fourth Dist., Div. Two].)

       Penal Code section 1600 et seq. sets forth the procedures governing outpatient

placement and treatment for various types of forensic committees, including persons

found incompetent to stand trial (Pen. Code, § 1367 et seq.), persons found not guilty by



                                             9
reason of insanity (Pen. Code, § 1026), mentally disordered sex offenders (Welf. & Inst.

Code, former § 6300 et seq.), and sexually violent predators (Welf. & Inst. Code, § 6600

et seq.). (Pen. Code, § 1600.) Under these procedures, a person cannot be placed in

CONREP unless and until CONREP accepts the person and prepares a treatment plan.

(Pen. Code, § 1602, subd. (a)(2).)

       However, Penal Code section 2972, subdivision (d) expressly allows a trial court

to place an MDO in CONREP. Moreover, it provides, “Except as provided in this

subdivision, the provisions of [Penal Code section 1600 et seq.] shall apply to persons

placed on outpatient status pursuant to this paragraph.” (Italics added.) One court has

therefore concluded that “the Legislature intended separate rules to apply to outpatient

treatment of civilly committed MDO’s . . . .” (People v. May (2007) 155 Cal.App.4th

350, 362; see also id. at pp. 359-363.) Moreover, the May court indicated that MDO’s

are not subject to the “require[ment of] consultation with local programs and the

development of a treatment plan before . . . subjects may be placed on outpatient status

. . . .” (Id. at p. 361.) It concluded that Penal Code section 2972, subdivision (d)

provided “a more streamlined process for MDO’s held by a civil commitment only, as

compared with other offenders.” (May, at p. 362.)

       May, however, was a decision of the Court of Appeal for the First District,

Division Three. As far as our research has revealed, it stands alone; no other case has

decided, one way or the other, whether a court can place a recommitted MDO in




                                             10
CONREP, even if CONREP does not want to accept him or her. In theory, at least, this

court could disagree with May.

       The trial court therefore proceeded cautiously but properly. First, it assumed that

it lacked the authority to place defendant in CONREP without CONREP’s consent.

Alternatively, however, it assumed that it did have the authority to place defendant in

CONREP without CONREP’s consent; it concluded, however, that such a placement was

unwarranted.

       Nothing in the record suggests that, in making the latter decision, the trial court

failed to apply the correct statutory standard. “‘On appeal, we presume that a judgment

or order of the trial court is correct, “‘[a]ll intendments and presumptions are indulged to

support it on matters as to which the record is silent, and error must be affirmatively

shown.’” [Citation.]’ [Citation.]” (People v. Labora (2010) 190 Cal.App.4th 907, 913-

914 [Fourth Dist., Div. Two].) Moreover, “[i]n the absence of evidence to the contrary,

we presume that the court ‘knows and applies the correct statutory and case law.’

[Citations.]” (People v. Thomas (2011) 52 Cal.4th 336, 361.)

       We therefore conclude that defendant cannot show that the trial court failed to

apply the correct statutory standard.




                                             11
                                             IV

                   VIOLATION OF SUBSTANTIVE DUE PROCESS

       Defendant contends that the trial court’s refusal to place him on outpatient status

violated due process because there was insufficient evidence that, if placed on outpatient

status, he would be dangerous.

       The People respond that defendant is essentially challenging the jury’s finding

that, by reason of his mental disorder, he represented a substantial danger of physical

harm to others. Hence, we begin by determining precisely what defendant is actually

arguing.

       Some confusion is understandable, because dangerousness crops up again and

again in a recommitment proceeding.

       First, as an overarching principle of substantive due process, an involuntary civil

commitment requires proof that the committee “[is] unable to control [his or her]

behavior and . . . thereby pose[s] a danger to the public health and safety.” (Kansas v.

Hendricks (1997) 521 U.S. 346, 357 [117 S.Ct. 2072, 138 L.Ed.2d 501]; see generally

id., at pp. 357-358; see also Foucha v. Louisiana (1992) 504 U.S. 71, 78 [112 S.Ct. 1780,

118 L.Ed.2d 437].)

       Second, as a statutory matter, in an MDO recommitment proceeding, the trier of

fact must find, among other things, that “by reason of his or her severe mental disorder,

the patient represents a substantial danger of physical harm to others . . . .” (Pen. Code,




                                             12
§ 2972, subd. (c).) We note that, while this requirement is statutory, it is necessary in

order to make the statute conform with the federal Constitution.

       Third — and again as a statutory matter — the trial court must determine whether

“there is reasonable cause to believe that the committed person can be safely and

effectively treated on an outpatient basis.” (Pen. Code, § 2972, subd. (d).) If, so, the

person must be released on outpatient status. (Ibid.) The question of whether the person

can be treated “safely” necessarily involves a determination of dangerousness.

       This third finding, however, differs from the first and second findings. The first

two inquiries basically ask whether the person would be dangerous if not recommitted

and not treated. By contrast, the third inquiry asks whether the person would be

dangerous even if recommitted and treated as an outpatient.

       Defendant, citing authorities such as Foucha, asserts that this requirement, too, is

constitutionally mandated. However, this does not logically follow. Even though the

statute refers to being “released on outpatient status” (Pen. Code, § 2972, subd. (d),

italics added), an outpatient is, nevertheless, recommitted (see id., subds. (c), (d)).

CONREP entails significant restrictions on a committee’s freedom. As Dr. Farooqi

testified, an outpatient starts out “kind of in a locked facility, but then gradually, as they

improve, get more accommodated into . . . society . . . .”

       Thus, defendant’s position is not simply that a civil commitment requires proof

that the committee is dangerous; rather, he is necessarily arguing that a more restrictive




                                              13
civil commitment requires proof that the committee would be dangerous in a less

restrictive civil commitment.

       In support of this view, he cites People v. Rasmuson (2006) 145 Cal.App.4th

1487. Rasmuson stated that Welfare and Institutions Code section 6608, subdivision (a),

which allows a sexually violent predator to petition for conditional release, “satisfies, in

part, th[e] constitutional mandate” of Foucha. (Rasmuson, at p. 1505.) It is not at all

clear that by using the words “satisfies, in part,” the court meant that Welfare and

Institutions Code section 6608, subdivision (a) is in itself constitutionally mandated. In

any event, no such constitutional issue was presented in Rasmuson. Thus, this language

is dictum.

       In our view, dangerousness is a factor in deciding whether a person can be civilly

committed at all. It is not necessarily a factor in deciding whether the conditions of

confinement comply with due process. “[D]ue process requires that the conditions and

duration of confinement . . . bear some reasonable relation to the purpose for which

persons are committed. [Citations.]” (Seling v. Young (2001) 531 U.S. 250, 265 [121

S.Ct. 727, 148 L.Ed.2d 734], and cases cited.) While dangerousness may play some part

in this analysis, it is hardly the constitutional touchstone that defendant suggests.

       We therefore reject defendant’s constitutional challenge. We repeat, however, that

as a statutory matter the trial court must determine whether the defendant can be safely

treated on an outpatient basis. Moreover, as already discussed in part III, ante, the trial

court’s finding on this issue must be supported by evidence in the record. Defendant



                                              14
does not argue — separate and apart from his constitutional challenge — that there was

insufficient evidence that he could not be safely and effectively treated as an outpatient.1

Nevertheless, if only out of an excess of caution, we examine this issue briefly.

          Dr. Farooqi emphasized that the two biggest factors in whether defendant was

dangerous were whether he was taking his medication and whether he was using street

drugs. There was no evidence that CONREP would effectively ensure that defendant

took his medication and stayed off street drugs. As noted in part III.B, ante, the burden

of proof was on defendant. For this reason alone, the record supports the trial court’s

ruling.

          Defendant points to Dr. Farooqi’s recommendation, as of the time of trial, that he

be placed in CONREP. One possible inference would be that CONREP could effectively

control defendant’s drug use and abuse. However, this was not the only possible

inference. For years, defendant had resisted going into CONREP, because he felt the

rules were too strict. Thus, it was inferable that he would try to get around any

restrictions it imposed. Also, CONREP would allow defendant more and more freedom

over time. He had a history of not taking his medication and, because he did not believe

he had a mental illness, he lacked the motivation to keep taking his medication. And

presumably at some point he would be able to obtain street drugs, if he so desired.

Finally, even though Dr. Farooqi had recommended defendant for CONREP, CONREP

          1        In his reply brief, he explicitly states: “This argument was not based upon
statute . . . .”



                                                 15
itself had apparently rejected him. Thus, it was fairly inferable that defendant could not

be safely and effectively treated in CONREP.

                                              V

                                      DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RICHLI
                                                                                             J.
We concur:


HOLLENHORST
         Acting P. J.

McKINSTER
                          J.




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