Filed 10/24/13 P. v. Sheppard CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B243354

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA017693)
         v.

JAMES SHEPPARD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Daniel B. Feldstern, Judge. Affirmed.


         Jean Matulis, 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, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
                                       INTRODUCTION
       In 1994, defendant and appellant James Sheppard was found not guilty by reason
of insanity of attempted murder and assault with a deadly weapon causing great bodily
injury. In 2012, defendant was released from state hospital and placed in an outpatient
treatment center. After defendant went on absent without leave (AWOL) from the center,
the trial court revoked his outpatient status and ordered him back to the state hospital. He
contends on appeal that the revocation order violated his due process rights. We disagree
and affirm the judgment.
                     FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       A.     Facts underlying defendant’s commitment to state hospital.1
       In July 1994, “while in an acutely psychotic state precipitated by the sudden
cessation of alcohol use, [defendant] entered the home of an elderly woman and stabbed
her with a knife. He then went to the office of her brother, with whom he had a complex
and conflicted relationship. He hit the man, knocking him to the ground, and then kicked
him in the head. The man’s relationship to [defendant] reportedly included elements of
father, benefactor/employer, and lover. However, [defendant] has stated experiencing a
great deal of ambivalence and feeling uncomfortable about the sexual relationship. He
has a significant history of alcohol to which his conflicted feelings about the relationship
contributed. He was experiencing withdrawal from alcohol at the time of the incident,
which contributed to command auditory hallucinations telling him to punish the victims
and delusional beliefs that the two victims were his parents and, thus, he was the product
of incest.”




1
    The facts are from the notification to the trial court that defendant had gone
AWOL from his outpatient placement.


                                             2
       Defendant was charged with attempted murder and two counts of assault with a
deadly weapon causing great bodily injury. He was found not guilty by reason of
insanity (Pen. Code, § 1026)2 and placed in Patton State Hospital with a maximum term
of commitment for life. Defendant’s primary psychiatric diagnosis was alcohol-induced
psychotic disorder.
       B.      History of defendant’s outpatient placements.
       Defendant was first released from state hospital in March 1998, but he was
readmitted in May 1998 after drinking alcohol and leaving the treatment facility. He also
violated the terms and conditions of his treatment by maintaining contact with his male
victim.
       He was released a second time to a community outpatient treatment program in
April 2000. After leaving the facility without permission, he failed an alcohol and drug
screening in November 2000. He was missing until February 2001 and returned to Patton
in May 2001.
       Defendant was released a third time to a locked rehabilitation facility in January
2006. In August 2006, however, he jumped a fence and bought alcohol, which he shared
with his peers on his return to the facility. He reportedly intimidated his roommate into
drinking with him. After going AWOL from the facility, he was readmitted to Patton in
September 2006.
       C.      Defendant’s current release to an outpatient program.
       In 2011, Dr. Anna Kafka, a psychologist and evaluation manager for Gateways
Conditional Release Program (CONREP), evaluated defendant for outpatient placement
from Patton to CONREP, and he was approved for release to that facility, where he lived.
Defendant signed an agreement concerning the terms and conditions of his release to
CONREP. He agreed not to have alcohol, to leave the premises only with the permission
of his outpatient supervisor, to provide all information about his finances to CONREP,
and to obtain approval of all people he wanted to contact.


2
       All further undesignated statutory references are to the Penal Code.

                                             3
       On the morning of April 22, 2012, defendant signed out from CONREP with a
“buddy pass”—a pass allowing defendant to leave with a peer—to go to church. When
the peer decided not to go, defendant left alone, in violation of CONREP’s rules. After
going to church, defendant drank and spent the night outside. The next morning, he took
a bus to Pasadena to visit Clayton Gibson, the nephew of his male victim. This nephew
also managed defendant’s money, and defendant asked him to transfer $500 to Geraldine
West, the elderly mother of a patient at Patton.3
       After leaving the nephew, defendant, later that night, was admitted to the
Alhambra Medical Center just before 9:00 p.m. He had a blood alcohol content of .431
and lacerations above his left eye and on his hands. According to the medical records, a
passerby called 911 after finding defendant lying on the sidewalk. At that time he voiced
no cardiac or respiratory complaints. Defendant, however, told Dr. Kafka that after
leaving church he had a heart attack and fainted, which was how he ended up in the
hospital. According to hospital staff, there was no indication defendant suffered a recent
heart attack. After being in the hospital for about 12 hours, defendant pulled out his I.V.
and left against medical advice.
       Eight hours later, about 5:30 p.m. on April 24, he was readmitted to the hospital,
after being found asleep in front of a church. His blood alcohol content was .421, and he
did not complain of cardiac symptoms. After being at the hospital for about three and
one-half hours, defendant again left against medical advice. Defendant told Dr. Kafka
that he walked to Seal Beach, where Geraldine West lived, intending to see her. Police
detained him in the early morning hours and took him to St. Mary’s Medical Center
because he reported having a heart attack.
              D.     Experts’ opinions.
       In Dr. Kafka’s opinion, defendant’s outpatient status should be revoked based on
his “history, remote history in CONREP as well as recent history in CONREP, and his
current functioning.” This was defendant’s third time in CONREP and his fourth time on

3
        CONREP patients are sometimes allowed to have outside funds, but approval from
the treatment team must be obtained first.

                                             4
conditional release. Defendant had been unable to maintain sobriety and comply with
rules for more than a little over seven months; hence, he was unable to complete a year of
outpatient treatment successfully. Dr. Kafka found the circumstances of this “AWOL
were particularly alarming,” because he was drinking heavily and was en route to the
home of “a wealthy elderly woman” who did not know he was coming and to whom he
had sent money. “So it was setting the stage for a scenario where he was going to show
up unannounced at the home of this woman, asking for his money, while heavily
inebriated or perhaps by that point withdrawing from alcohol because of lack of funds,
and it was setting the stage for reoffense.”
       When Dr. Kafka discussed what happened with defendant, he lacked insight. He
said that CONREP’s rules and being in the system triggered his drinking, and that if he
were free of CONREP and could be his own man and do just an alcohol rehabilitation
program, then he wouldn’t have this problem. Based on this, Dr. Kafka said that
defendant “is clearly not where we thought he was in terms of his understanding about
his potential for relapse and his potential for violence, as well as his understanding of the
things that trigger relapse and violence.” He does not even appear ready to have a
conversation about this, “to accept feedback from others about what really may be at the
root of these things and what needs to be done to manage it. So for that––for those
reasons, we believe he is not somebody who can be managed in outpatient at this time.
He needs to return to the state hospital and receive intensive long-term treatment there.”
This was the unanimous opinion of the administration at CONREP.
       From December 2011 to April 22, 2012, defendant was a client of Diane Levy, a
forensic clinician and primary therapist at Gateways Satellite. Levy testified that she met
with defendant once a week and, until he went AWOL, defendant said he was doing well.
During their therapy sessions, Levy and defendant discussed his alcoholism. In Levy’s
opinion, defendant’s outpatient status should be revoked. He needs extended inpatient
treatment to learn to recognize warning signs and triggers for his behavior. Levy
acknowledged, however, that defendant had not had a relapse of his psychotic symptoms
during any of his prior outpatient failures.

                                               5
II.       Procedural background.
          On April 26, 2012, Levy and CONREP’s clinical supervisor and program
coordinator filed with the trial court a notification defendant had gone AWOL and a
request for revocation of his outpatient status. After a revocation hearing, the trial court,
on August 8, 2012, revoked defendant’s outpatient status and returned him to Patton State
Hospital.
                                           DISCUSSION
I.        Revocation of defendant’s outpatient status did not violate his due process
rights.
          Defendant makes three arguments why the judgment revoking his outpatient status
should be reversed: first, the trial court abused its discretion and violated defendant’s due
process rights by failing to consider an alcohol recovery program as a placement opinion;
second, committing defendant to a state hospital violated his due process rights because
he does not currently have a mental illness; and, third, the evidence did not establish by
clear and convincing evidence that defendant was demonstrably dangerous.
          “An insanity acquittee committed to a state hospital may be released from the
hospital as provided by [Penal Code] section 1600” and companion sections. (People v.
McDonough (2011) 196 Cal.App.4th 1472, 1490.) If at any time during the outpatient
period, the outpatient treatment supervisor is of the opinion the patient requires extended
inpatient treatment or refuses to accept further outpatient treatment and supervision, the
supervisor shall make a written request for revocation of the person’s outpatient status
and the court shall hold a hearing on the request. (§ 1608.) Unlike section 1609,4 section
1608 does not require a showing of dangerousness. It focuses on the treatment of the
outpatient, while section 1609 is concerned with the safety of the community. (See
People v. DeGuzman, supra, 33 Cal.App.4th at pp. 419-420 [“section 1608 focuses on an
outpatient’s well-being, while section 1609 is concerned with protecting community

4
       Section 1609 provides that the prosecutor may petition for revocation of outpatient
status. A petition under section 1609 must show that the person is a danger to the health
and safety of others. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419-420.)

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safety”]; In re McPherson (1985) 176 Cal.App.3d 332, 339-340.) Section 1608 does not
specify the standard of proof. (DeGuzman, at p. 419.) But section 1609, providing for
revocation of outpatient status based on danger to the community, specifies that the
standards are the same as those applicable to probation revocation hearings, which
require a preponderance of the evidence. (DeGuzman, at pp. 419-420; In re McPherson,
at p. 340.)
       The standard of review of an order revoking outpatient status is unclear.
DeGuzman applied a substantial evidence standard of review. (People v. DeGuzman,
supra, 33 Cal.App.4th at p. 420; see also In re McPherson, supra, 176 Cal.App.3d at
pp. 341-342.) The Attorney General applies an abuse of discretion standard of review.
(See People v. McDonough, supra, 196 Cal.App.4th at p. 1489 [applying the abuse of
discretion standard of review to an order denying, as opposed to revoking, outpatient
status].) We need not decide which standard of review applies, because under either, the
trial court’s order revoking defendant’s outpatient status met the standard.
       Defendant’s first contention is that the trial court violated his due process rights by
failing to consider sending him to an alcohol treatment program. At issue, however, was
defendant’s fourth release to an outpatient program. On the three prior occasions
defendant was released from state hospital to an outpatient facility, he violated the terms
and conditions of his release by drinking alcohol and leaving the facility without
permission. Defendant’s current release was no different. He left the premises on a
“buddy pass,” although he was unaccompanied. While gone, he drank, becoming so
intoxicated he passed out and had to be taken to the hospital, where his blood alcohol
level was found to be well above the legal limit. Against medical advice, defendant left
the hospital but was readmitted hours later, still with a blood alcohol content above the
legal limit. Defendant again left the hospital but was detained by police. In addition to
the overwhelming evidence that defendant was drinking, the circumstances of this
incident was “particularly alarming” to Dr. Kafka, because defendant tried to see an
elderly lady. This was reminiscent of defendant’s underlying crime, which involved him
stabbing an elderly woman. Both Dr. Kafka and Levy, defendant’s therapist,

                                              7
recommended revoking defendant’s outpatient status. They both said that defendant
lacked understanding about his potential for relapse and for violence. According to
Dr. Kafka, the entire CONREP administration agreed that defendant’s outpatient status
should be revoked.
       Despite this overwhelming evidence supporting the trial court’s decision,
defendant argues he should have been placed in an alcohol rehabilitation program,
because he has never had a second psychotic episode induced by his drinking. The trial
court expressly said it was not considering that option. Given that defendant’s alcohol
abuse was a focus of his therapy sessions with Levy and defendant nonetheless drank
each time he was placed in an outpatient setting, the court’s decision not to consider the
option of such a program, which, in any event, was not the issue before the court, was
supported by the record.
       Defendant relies on Foucha v. Louisiana (1992) 504 U.S. 71, to support his
second argument that revocation of his outpatient status violated his due process rights
because he is no longer mentally ill. Foucha reiterated that an “acquittee may be held as
long as he is both mentally ill and dangerous, but no longer.” (Id. at p. 77.) In Foucha,
however, the state conceded that the defendant no longer suffered from a mental illness,
although he did have an antisocial personality. No such concession was made by the
state here. In fact, the evidence was that defendant drank so heavily, he passed out and
visited the nephew of his victim. Although Dr. Kafka and Levy acknowledged that there
was no evidence defendant’s ongoing alcohol abuse caused him to have other psychotic
episodes, they did not say that his primary diagnosis of alcohol induced psychosis was no
longer valid. It may be defendant’s opinion he suffers only from alcoholism, but that was
not the experts’ opinions. Defendant offered no contrary expert opinion concerning his
mental condition.
       Again citing Foucha, defendant finally argues that although section 1608 does not
require a showing of dangerousness by clear and convincing evidence, such a showing is




                                             8
constitutionally mandated.5 (Foucha v. Louisiana, supra, 504 U.S. at p. 80 [“The State
may also confine a mentally ill person if it shows ‘by clear and convincing evidence that
the individual is mentally ill and dangerous’ ”]; see also People v. DeGuzman, supra, 33
Cal.App.4th at p. 420 [“Section 1608 requires a finding that the patient needs extended
inpatient treatment or refuses to accept further outpatient treatment. It does not require
the court to find that the patient is a danger to the health and safety of others”].) The first
problem with this argument is that this case does not concern whether defendant should
be committed or whether his commitment should be extended. The issue here concerns
whether his outpatient status should be revoked, namely, in what placement should his
treatment continue.
       The second problem with defendant’s argument is that even if we agreed a
dangerousness finding was necessary, the trial court made that finding. The court, after
noting that defendant, while AWOL, had enough alcohol in his system to kill himself and
that he contacted his victim’s relative, said:
       “I don’t have to find that you are a danger to other people here, at least as I
understand the rules here. Under [section] 1608, when it’s the program that is requesting
revocation, as opposed to a prosecutor, if there is sufficient evidence to establish that you
need extended inpatient treatment or you refuse to accept further outpatient treatment,
supported by competent evidence, then your status can be revoked and rightly should be
revoked if those findings exist.
       “But as I was listening to the testimony unfold and understanding what was going
on, that you put yourself in such a high state of intoxication where you wind up in a
hospital with a gash over your eye, any reasonable person would say that you are a
danger to yourself under those conditions, let alone other people. And as I say, if we
were to take this scenario and extend it to a more private setting where you were not on
the sidewalk or out in the public or in some place where someone could find you and
bring you into a hospital, at some point in time you have to withdraw from that alcohol,

5
      Defense counsel did raise an objection in the trial court under Foucha that
defendant was not currently mentally ill.

                                                 9
and that brings us to the original diagnosis that led you to your commitment in the first
place. Alcohol and its abuse in your life and those other diagnoses that you feel were one
time affairs are inextricably tied together.”
       “But I am finding that there was sufficient evidence to convince me that you are in
need of extended inpatient treatment and that, based upon the totality of evidence that I
heard, you are not in a condition to accept further outpatient treatment, based upon your
statements, your attitude, and your conduct in April that led you to this courtroom today.
I’m also, though I’m not required to consider the possibility of your danger to the public,
I am finding also that based upon your conduct after you AWOL-ed from your CONREP
facility in this particular instance, which formed a pattern of AWOLs that pre-existed
your current dilemma, that you do in your actions constitute a danger to the public. And I
believe that these are directly tied into the diagnoses for which you were originally
committed.”
       These statements show that the trial court expressly found that defendant was a
danger to himself and to others. We therefore reject defendant’s contentions that his due
process rights were violated.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                        ALDRICH, J.


We concur:


             KLEIN, P. J.




             CROSKEY, J.




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