Filed 3/14/13 P. v. Milentijevic CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,

     Plaintiff and Respondent,                                         G046744

                   v.                                                  (Super. Ct. No. C-36111 )

MILOSAV MILENTIJEVIC,                                                  OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, William R.

Froeberg, Judge. Affirmed.
                   Susan K. Shaler, 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, Assistant Attorney General, James D. Dutton and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
                                      *                  *                  *
              In 1976, the trial court found defendant Milosav Milentijevic not guilty of
murder (Pen. Code, § 187; all further unspecified statutory references are to the Penal
Code) by reason of insanity, and committed him to the California Department of Mental
Health. Since the verdict, the court has extended Milentijevic’s commitment (§ 1026.5,
subd. (b)) several times. This appeal arises from the court’s recent decision to again
extend Milentijevic’s commitment for two more years under section 1026.5. Milentijevic
challenges the sufficiency of the evidence to support the court’s finding he had serious
difficulty in controlling his dangerous behavior. Specifically, Milentijevic contends the

evidence demonstrated the medication Haldol “controlled his dangerousness” and that he
would “continue to take Haldol as a condition of release.” For the reasons expressed
below, we affirm.

                                             I
                       FACTUAL AND PROCEDURAL BACKGROUND
              Milentijevic beat his mother to death with a table leg because of a paranoid
delusion she stole his Social Security income and secretly gave him psychotropic
medications. Three weeks before the killing, he left a mental health hospital against
medical advice. He has remained at Patton State Hospital since his initial commitment in
1976.
              Dr. Jody Ward, a clinical forensic psychologist, testified at Milentijevic’s
April 2012 commitment extension hearing. Ward was familiar with Milentijevic’s

medical and behavioral history, and interviewed Milentijevic on numerous occasions
between 2005 and 2012. Ward opined Milentijevic suffers from incurable schizophrenia,
undifferentiated type, which is a major psychotic disorder consisting of delusions,
hallucinations, and disordered thinking and behavior. Ward believed Milentijevic’s



                                             2
delusions cause him “serious difficulty [in] controlling his dangerous behavior.”
Milentijevic takes the antipsychotic medication Haldol to manage his schizophrenia and
will need medication for the rest of his life.
              Ward also testified Milentijevic suffers from poly-substance drug
dependence, primarily marijuana and LSD, although Milentijevic does not acknowledge

he has a drug problem. Milentijevic’s lack of insight regarding substance abuse
“worsen[s] the prognosis” of his schizophrenia.
              Before April 2009, Milentijevic committed 25 to 30 instances of physical

violence requiring seclusion and five-point restraints. As a result, the court ordered
involuntary medication. Milentijevic has not engaged in physical violence since he
began taking his prescribed medication, but the absence of recent physical violence did

not change Ward’s opinion Milentijevic currently presents a substantial danger to others.
Ward attributed Milentijevic’s improvement to Haldol, but noted it was “very likely” he
“would become dangerous as soon as he stopped” medicating. She also believed

Milentijevic “experienced delusions” and exhibited “symptoms of his illness over the
past…year” while taking Haldol.
              Ward explained Milentijevic lived in a highly-structured environment
where staff provided all his needs, which reduced his stress and dangerous behaviors.
Ward believed, however, it was important to analyze how Milentijevic would function
outside of his structured setting. The best indicators of outside functioning concern how
well a patient follows treatment programs and instructions. Here, Milentijevic failed to
participate in treatment for mental illness and substance abuse. His history at Patton
showed either an express refusal to take his medication or an effort to avoid swallowing it
while pretending to take it. He would hide from staff instead of attending therapy, and



                                                 3
did not actively participate in those therapy sessions he attended. Milentijevic also did
not have a complete relapse prevention plan in place. For Ward, Milentijevic’s lack of
insight into his illness made struggle in an outside environment likely.
              Even while taking Haldol, Milentijevic engaged in verbally assaultive
behavior on numerous occasions. On May 15, 2011, he told a staff member to “shut up”

after the employee attempted to discuss Milentijevic’s use of cigarettes indoors. On
April 11, 2011, Milentijevic told a staff member “fuck you” when the employee
attempted to search him. On March 6, 2011, he told a staff member to “move your

fucking ass from behind me” because he felt the staff member stood too close to him in
the dining room. On December 30, 2011, he called a staff member a “bitch” after she
told him to move away from a fence where he was talking to a girlfriend.

              By the April 2012 hearing, Milentijevic took his medication voluntarily. In
January 2012, Milentijevic told Ward his schizophrenia was in remission because of
Haldol, he would continue medicating if released, and he would “get a prescription of

Haldol and a backup prescription.” Nonetheless, Ward felt Milentijevic believed he did
not need medication.
              Indeed, Milentijevic testified he was “all right” without the medication, he
did not believe his mental illness made him violent or dangerous, and he would only take
the medication when released because he is “forced” to do so. Ward noted Milentijevic’s
history demonstrated vacillation, “one moment saying he will take his medication, at the
next moment saying he doesn’t need it, and then saying again that he will take it and
[then again] that he doesn’t need it.”
              According to Ward, within the previous six months Milentijevic asked if he
could stop taking his medication. Ward concluded Milentijevic did not appreciate the



                                             4
“need for the medication over a long period of time,” and had not “made the
commitment” to medicate “when not forced to do so.” Ward believed Milentijevic’s
medical condition was not in remission.
              The trial court found Milentijevic had “serious difficulty in controlling his
dangerous behavior,” and found Milentijevic’s testimony consistent with Ward’s finding

that Milentijevic will not medicate voluntarily. The court therefore granted the petition to
extend Milentijevic’s commitment another two years.

                                             II
                                       DISCUSSION

Substantial Evidence Supports the Court’s Order
              Milentijevic contends there was insufficient evidence demonstrating serious
difficulty in controlling his dangerous behavior. He argues the evidence showed the drug
Haldol “controlled his dangerousness,” and that he would “continue to take Haldol as a
condition of release.”
              We review the entire record in the light most favorable to the extension
order to determine whether any rational trier of fact could find the requirements of
section 1026.5 (b)(1) beyond a reasonable doubt. (People v. Crosswhite (2002)

101 Cal.App.4th 494, 507-508 (Crosswhite).) We defer to the trier of fact if substantial
evidence supports the order. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).) In
conducting our review we do not reweigh evidence or revisit witness credibility issues.
(Ibid.) After reviewing the record, we conclude substantial evidence supports the trial
court’s decision.
              Where a person is found not guilty of a felony by reason of insanity, the
court may commit the person to a mental hospital for a period no longer than the



                                             5
maximum imprisonment term the offense carries. (§ 1026.5, subd. (a)(1).) The People
may petition the court to extend the commitment in two-year increments. (§ 1026.5,
subd. (b).) The People must prove the person “by reason of a mental disease, defect, or
disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd.
(b)(1).) To comply with due process, the People must show the mental disease, defect, or
disorder causes the person “serious difficulty in controlling dangerous behavior.”
(People v. Bowers (2006) 145 Cal.App.4th 870, 878 (Bowers); In re Howard N. (2005)
35 Cal.4th 117, 127-128 (Howard N.) [commitment constitutes a significant deprivation

of liberty and due process requires a finding the defendant has serious difficulty in
controlling dangerous behavior]; Addington v. Texas (1979) 441 U.S. 418, 425.)
              Whether the defendant represents a substantial danger under section 1026.5

is a question of fact to be resolved with the assistance of expert testimony. (Crosswhite,
supra, 101 Cal.App.4th at 507.) A single expert opinion that an individual is dangerous
because of a mental disorder constitutes substantial evidence to support a commitment

extension under section 1026.5. (Bowers, supra, 145 Cal.App.4th at 879.)
              Here, substantial evidence demonstrated Milentijevic remained dangerous
despite not physically assaulting anyone since taking Haldol. Milentijevic engaged in

verbally threatening behavior on numerous occasions despite the medication. Ward
opined Milentijevic’s highly-structured lifestyle at Patton State Hospital reduced the
incidents of dangerous behaviors and it was likely he would struggle outside an

institutional setting. She noted he failed to participate in treatment for mental illness and
substance abuse, he did not have a complete relapse prevention plan in place, and he
lacked the necessary insight to treat his symptoms personally. Ward believed
Milentijevic “experienced delusions” and exhibited “symptoms of his mental illness over



                                              6
the past . . . year,” his schizophrenia was not in remission, and he currently presented a
substantial danger to others.
              The evidence also suggested Milentijevic would stop medicating once
released. Ward testified Milentijevic’s record of voluntarily medicating was “spotty.”
While Milentijevic testified he would take Haldol if released, he also testified he would
only take the medication because he was “forced”, he was “all right” without the
medication, and he did not believe his mental illness made him violent or dangerous. As
Ward stated, Milentijevic historically vacillated over the issue of voluntarily medicating,

“one moment saying he will take his medication, at the next moment saying that he
doesn’t need it, and then saying again that he will take it and [then again] that he doesn’t
need it.” In the previous six months, Milentijevic asked to stop his medication.

According to Ward, Milentijevic had not “made the commitment that he will take the
medication” and had not “seen [the] need for the medication over a long period of time.”
Ward believed it was “very likely” Milentijevic “would become dangerous as soon as he

stopped taking . . . medication.” In sum, the record reflects Milentijevic does not believe
he needs medication, will not take Haldol if given his druthers, and the court could not
rely on his promise to medicate because he changed his stance from moment to moment.
              Milentijevic contends the trial court could order him to receive Haldol
intravenously to ensure it stays in his bloodstream. But there is no evidence in the record
the court could monitor Milentijevic sufficiently to ensure he receives medication by

injection. The method of administering Milentijevic’s medication means little if he
refuses to cooperate. Moreover, the argument ignores Ward’s point that Milentijevic
only controls his dangerousness through a combination of medication and a structured




                                              7
environment. In addition, Ward found Milentijevic “experienced delusions” and
exhibited “symptoms” of schizophrenia last year while taking Haldol.
              Milentijevic relies on In re Anthony C. (2006) 138 Cal.App.4th 1493
(Anthony C.). In Anthony C., a juvenile committed a lewd act on a child under age 14.
(Id. at p. 1500.) When he turned 21, the prosecution filed a petition to extend the ward’s
commitment under Welfare and Institutions Code section 1800.1 (Id. at p. 1502.) The
appellate court found there was insufficient evidence of serious difficulty controlling
sexually deviant behavior. (Id. at p. 1507.) The court noted the Youth Authority staff did

not prepare a formal risk assessment, and the testifying staff psychologist could not
credibly describe the factors quantifying the ward’s risk level. (Id. at pp. 1506-1508.)
The psychologist wavered regarding the ward’s risk level, stating it was “‘above low risk,

at least medium risk or higher’” and “‘some risk, moderate at least.’” (Id. at p 1506-
1507. ) The psychologist did not testify about the degree of the ward’s disorder, or that
the ward’s condition was incurable, repetitive, or compulsive.
              The appellate court concluded the ward’s crime was one of opportunity
rather than compulsion, and the expert testimony did not “constitute substantial evidence
that Anthony has serious difficulty controlling his behavior.” (Anthony C., supra, 138
Cal.App.4th at p. 1507.) The court found the expert based his testimony “as much on
guesswork . . .as on relevant probative facts,” and that moderate risk meant “‘not
seriously or permanently disabling or incapacitating.’ [Citation.]” (Ibid.) The court


1
                Welfare and Institutions Code section 1800 allows a petition to extend
commitment of certain persons in the control of juvenile authorities (see Welf. & Inst.
Code, § 1766 et seq.) where the person “would be physically dangerous to the public
because of the person’s mental or physical deficiency, disorder, or abnormality that
causes the person to have serious difficulty controlling his or her dangerous
behavior . . . .”

                                             8
noted medication controlled the ward’s attention deficit hyperactivity disorder and the
psychologist did not know the correlation between a lack of impulse control and the risk
of reoffending because of pedophilia. (Id. at p. 1507, fn. 10.)
              Here, as explained above, Ward performed multiple evaluations of
Milentijevic over a seven-year period. Her testimony articulated the risk factors forming
the basis of her opinions. Ward opined Milentijevic’s schizophrenia was incurable and
prompted him to kill his mother. Ward also asserted Haldol did not completely prevent
Milentijevic’s delusions or change the fact he presents a current danger. Milentijevic had

difficulty accepting the dimensions of his disorder and believed he did not need
medication. Overall, the evidence illustrates Milentijevic’s serious difficulty controlling
dangerous behavior and distinguishes him from the patient in Anthony C.

              Milentijevic also relies on People v. Galindo (2006) 142 Cal.App.4th 531
(Galindo). There, the trial court committed defendant under section 1026 for felon in
possession of a firearm, and later extended his commitment under section 1026.5. (Id. at

p. 533.) The Attorney General conceded the trial court failed to consider whether section
1026.5 required proof of serious difficulty in controlling dangerous behavior, as required
under Howard N., supra, 35 Cal.4th 117. (Galindo, supra, 142 Cal.App.4th at p. 533.)
Thus, the Galindo court had to determine whether the trial court’s failure to consider the
“‘control’” issue was prejudicial. (Ibid.)
              In Galindo, the defendant suffered from bipolar disorder, antisocial

personality disorder, and polysubstance dependence. (Galindo, supra, 142 Cal.App.4th at
p. 533-534.) He denied suffering from a bipolar disorder, disavowed needing treatment
or medication, and expressed ambivalence about medicating if released. (Id. at p. 534.)

The prosecution’s psychiatrist opined defendant would stop taking medication



                                             9
immediately if released. (Id. at p. 533.) A defense psychiatrist evaluated the defendant,
concluded he was sane, and stated defendant could take several preventative steps to
reduce his dangerousness in the community. (Id. at p. 536.)
              The court noted civil confinement under section 1026.5 is limited to those
who suffer volitional impairments rendering them dangerous beyond their control.
(Galindo, supra, 142 Cal.App.4th at p. 537.) But “dangerous” persons possessing
volitional control are more properly dealt with through criminal proceedings. (Ibid.) The
court noted defendant could control his behavior although he had not done so in the past,

finding “little, if any, evidence” that he “encountered serious difficulty” in controlling his
behavior. (Id. at p. 539.) Rather, “the evidence strongly suggested that defendant did not
try to control his dangerous behavior [ ] because he perceived no reason to do so.” (Ibid.)

Thus, the trial court’s failure to find the defendant had serious difficulty in controlling
dangerous behavior was prejudicial because the evidence also supported a determination
the defendant could exercise the requisite control over his actions. (See id. at p. 539.)

              Here, the trial court considered the evidence under the appropriate standard
and expressly found Milentijevic had serious difficulty controlling his dangerous
impulses. Galindo measured the prejudicial effect of the trial court’s error, but our task is
not to determine prejudice, but whether substantial evidence supports the trial court’s
finding. (See People v. McCune (1995) 37 Cal.App.4th 686, 694-695; Galindo, supra,
142 Cal.App.4th at 536-538.) It does.




                                              10
                                         III
                                     DISPOSITION
            The order is affirmed.




                                               ARONSON, J.


WE CONCUR:



O’LEARY, P. J.



MOORE, J.




                                         11
