Filed 7/31/14 P. v. Kennedy CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                       F067348
         Plaintiff and Respondent,
                                                                         (Super. Ct. No. CF97595449)
                   v.

PAUL ANDREW KENNEDY,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
         Rachel Lederman, 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, Kathleen A. McKenna, Melissa
Lipon and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Gomes, J. and Detjen, J.
                                    INTRODUCTION
       Following a bench trial, the court ordered appellant, Paul Andrew Kennedy,
recommitted to the State Department of Mental Health for one year for treatment as a
mentally disordered offender (MDO) pursuant to Penal Code sections 2970 and 2972.1
On appeal, appellant contends the evidence was insufficient to support the MDO
recommitment order and, alternatively, that the court erred in denying his request that he
be released on outpatient status pursuant to section 2972, subdivision (d)
(section 2972(d)). We affirm.
                                          FACTS
       The hearing occurred on May 22, 2013. The People’s witness was Robert
Wagner, Ph.D. Dr. Wagner is a forensic psychologist who contracts to provide services
with the Department of State Hospitals, Coalinga, where appellant is a patient.2
Dr. Wagner evaluated appellant as an MDO, who is a person with a severe mental
disability or illness and because of that condition poses a potential danger to others. Dr.
Wagner explained that appellant suffers from paranoid schizophrenia that has symptoms
such as agitation, delusions, hallucinations, disorganized thinking, and difficulty
expressing emotions. In paranoia, the patient exhibits suspiciousness, grandiose
delusions, and persecutory delusions.
       Appellant exhibited difficulty with reality contact because he has delusional
beliefs that he is rich and of some importance. At times he is the King of England, other
times he believes he is the President of the United States. During Dr. Wagner’s
testimony, appellant interrupted Dr. Wagner to state that he is always the King of
England. Appellant asked for books on the New York Stock Exchange, with the goal to



1      Except as otherwise indicated, all statutory references are to the Penal Code.
2      Except as otherwise indicated, our factual summary is taken from Dr. Wagner’s
testimony.


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control it. He also had delusions about the NASDAQ. Appellant was delusional about
either being Margaret Thatcher’s child or being Margaret Thatcher’s father.
        Dr. Wagner interviewed appellant in October 2012 and in May 2013. The first
interview was requested by appellant, but ended early because appellant was nervous and
wanted it over. Appellant believed he was the King of England and did not know the
date.
        Dr. Wagner interviewed appellant in May 2013. When Dr. Wagner asked
appellant if he had spoken to his attorney, appellant replied that he did not need an
attorney because he had been to the Supreme Court. Appellant believed he had an
address in Washington, D.C.
        Appellant did not believe he had a mental illness, but admitted he was depressed at
times and that the medication he was given helped him sleep. When asked about the
crime appellant was charged with in 1997, appellant explained that nothing had
happened. Appellant told Dr. Wagner he had talked to the military about this and to the
President of the United States. Appellant ended the conversation with Dr. Wagner and
left the room.
        Dr. Wagner explained that appellant was taking antipsychotic medications,
although Dr. Wagner was not positive which medications appellant was taking.
Appellant does not take his medications willingly and appellant’s psychiatrist believed
the medications were effective “up to a point.” Appellant believes he does not need
medications and they are administered involuntarily pursuant to a court order.
Dr. Wagner believes appellant has been diagnosed with a mental disorder and that it is
severe.
        Appellant’s mental illness was not in remission at the time of the hearing.
Dr. Wagner did not believe appellant’s illness could be kept in remission without
continued treatment. Without medications, Dr. Wagner believed appellant would rapidly
deteriorate and become paranoid, delusional, and oppositional. During a stay in Fresno


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County Jail within the preceding year, the jail failed to administer medications while
appellant was incarcerated there for three months and he returned to the hospital
believing he was a Russian boxer.
       Concerning appellant’s MDO status, Dr. Wagner believed appellant still presented
a risk to others if out in the community. At the time of the original offense, appellant was
delusional and psychotic when he attempted the sexual molestation of a young family
member. The attempted crime appeared to be spontaneous, was not well thought out,
was disorganized, and there was no predatory element to it. The attempted offense
occurred sometime after appellant exhibited bizarre behavior. Appellant was
immediately hospitalized. He was tried and convicted, sentenced to state prison, and was
later evaluated and found to be an MDO. Thereafter, appellant was hospitalized.
       Appellant battered an inmate in 2000 with the use of a weapon while in prison. In
September 2002, appellant would become agitated and threaten to kill anyone who came
through the door. Appellant was initially hostile to taking medications and told
authorities that if they poisoned him, they would eat their own poison. When asked in
2008 if he would attend a hearing to determine whether he would be involuntarily
medicated, appellant asked the questioner if that person wanted to become a cadaver. In
2009, appellant adopted a tense posture with a person he believed was the president of a
bank and told the person he would kill him and take his cash. Dr. Wagner believed
appellant would pose a substantial danger of physical harm if released from the hospital.
       At the time of the offense, appellant was actively psychotic and delusional.
During incarceration and hospitalization, appellant remained psychotic. Medications had
to be forced on appellant for at least the previous five years. Dr. Wagner and the
psychiatrist he consulted during his evaluation of appellant believed that medications
helped appellant with behavioral control, although appellant’s psychotic beliefs continue
to be strong. Appellant has stated that he does not have a serious mental illness and does




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not want to take medications. During the five years he has been on forced medications,
there have been no incidents involving physical threats or violence.
       Appellant has a history of deteriorating rapidly when he does not take medications
and there was no guarantee from appellant that he would take medications once in the
community. Dr. Wagner explained this would cause appellant to lose contact with the
real world and, once doing so, Dr. Wagner believed appellant would pose a strong
possibility of danger to others.
       Although the hospital runs a large number of groups and offers individual
counseling, appellant has refused to participate in therapy. Appellant also has refused to
take training or courses in managing his mental illness, medication management, anger
management, or social skills. Appellant had a history of drug usage, including alcohol,
hallucinogens, LSD, marijuana, and cocaine. Appellant has not availed himself of
substance abuse treatment even though it is available at the hospital.
       If appellant began to use controlled substances again, it would increase the
likelihood of very unpredictable behavior. Everyone in the unit appellant is assigned to
at the hospital is aware of appellant’s delusional system and no one challenges it. If it
was challenged in the community, however, there was the probable potential of violence
by appellant. Dr. Wagner opined that appellant’s severe mental illness, that was not in
remission, posed a substantial risk of physical harm to others if he was released into the
community.
                                      DISCUSSION
       Appellant contends the evidence was insufficient to support a finding that he
currently represents a substantial danger of physical harm to others and, therefore, the
court’s order extending him MDO commitment for one year must be reversed. We
disagree.
       The MDO Act was enacted in 1985. It requires that offenders who have been
convicted of violent crimes related to their mental disorders, and who continue to pose a


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danger to society, receive mental health treatment until their mental disorder can be kept
in remission. (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez),
disapproved on another point in People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2.)
Commitment as an MDO is not indefinite. An MDO is committed for one-year periods
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. (Lopez, supra, at p. 1063.)
       A recommitment under the MDO law requires proof beyond a reasonable doubt
that the patient has a severe mental disorder; the disorder is not in remission or cannot be
kept in remission without treatment; and by reason of that disorder, the patient represents
a substantial danger of physical harm to others. (§ 2970; People v. Burroughs (2005) 131
Cal.App.4th 1401, 1404.)
       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.) This requires us to determine, on the whole record,
whether 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. The evidence must be reasonable, credible, and of solid value. 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. (See People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [§ 1026.5
commitment].) Expert medical opinion evidence, however, cannot constitute substantial
evidence if it is based upon a guess, surmise or conjecture, rather than relevant, probative
facts. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504 (Anthony C.).)




                                             6.
       Dr. Wagner testified that in his opinion, appellant, by reason of his severe mental
disorder, represents a substantial danger to others. Dr. Wagner’s expert opinion
testimony, in our view, constitutes substantial evidence on this point. Appellant argues it
does not, asserting that Dr. Wagner’s opinion on the question of appellant’s current
dangerousness lacks an adequate factual basis.
       Here, there was evidence that appellant had a past dependency on drugs, he took
his medications involuntarily, his mental illness quickly deteriorated when he stopped
taking medications, and the use of illegal drugs exacerbated the worst symptoms of
appellant’s mental illness, including his paranoia and delusions. When delusional,
appellant had a history of violently acting out on those delusions. Even with medications,
appellant remained delusional and demonstrated this during the hearing when he
corrected Dr. Wagner’s testimony that appellant believed he was either the President of
the United States, or the King of England, to which appellant stated that he always
believed he was the King of England. We agree with appellate counsel that this delusion,
by itself, would not be sufficient evidence to continue appellant’s commitment. But this
was not the only evidence of the effect of appellant’s paranoia and delusions before the
trial court.
       Appellant’s ability to achieve remission from his mental health condition is greatly
impeded by his failure to attend personal or group therapy, substance abuse classes, or
any other training and/or self-help programming in the state hospital. Dr. Wagner
testified that therapy, classes, training, and self-help programs are available to patients in
the state hospital, but appellant has never participated. The foregoing demonstrates that
Dr. Wagner based his opinion that appellant posed a current risk to others in the
community not on conjecture and surmise, but on “‘relevant, probative facts.’”
(Anthony C., supra, 138 Cal.App.4th at p. 1504.)
       Appellant further bases his contention on the principle that the safeguards of
personal liberty embodied in the guaranty of due process in the federal Constitution


                                              7.
prohibit the involuntary confinement of a person on the basis that he or she is
dangerously disordered without proof the patient has serious difficulty in controlling his
or her behavior. (People v. Williams (2003) 31 Cal.4th 757, 759-760, 773-778, quoting
Kansas v. Crane (2002) 534 U.S. 407, 413; In re Howard N. (2005) 35 Cal.4th 117, 127-
132.)
        Here, there was evidence that appellant, even in the controlled environment of the
state hospital, had difficulty controlling his behavior. Appellant has shown no signs of
remission of his mental illness, was involuntarily given medications, did not believe he
had a serious mental illness, and refused to participate in any treatment or self-help
services provided by the hospital. Appellant had a history of his mental health
deteriorating quickly in the community by using illegal narcotics and failing to take his
prescribed medications. Appellant also had a history while being institutionalized of
making threats to physically harm and to kill others. We conclude there was sufficient
evidence adduced at the hearing that appellant presents a current risk of harm to the
community due to his severe mental illness and find no error in the trial court’s
recommitment of appellant.
                                      DISPOSITION
        The judgment is affirmed.




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