Filed 3/22/16 P. v. Serebryakova CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068006

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. MH110688)

ELENA SEREBRYAKOVA,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Steven E.

Stone, Judge. Reversed with directions.

         Suppa, Trucchi and Henein, and Teresa Trucchi 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 Michael P.

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Elena Serebryakova (Appellant) appeals from an order after hearing

which denied her petition for relief from a prohibition imposed upon her rights to
ownership or possession of a firearm. (Welf. & Inst. Code,1 § 8103, subd. (f)(1).) She

contends no substantial evidence supports the trial court's order, or alternatively, the court

abused its discretion in denying a motion she made to reopen her case, at the end of the

hearing while the court was issuing its order of denial.

       Appellant is employed as a border patrol officer, and she became subject to the

firearms prohibition after submitting to hospitalization for her own protection, at the

recommendation of the psychiatrist who had been treating her for a few years for

depression. In September 2014, Appellant told her psychiatrist that she was having

work-related problems and was considering taking pills to kill herself. At the beginning

of her hospitalization in September 2014, an emergency room nurse prepared an

administrative record designating her admission as falling within the scope of section

5150, as a person who presented a danger to herself.2 Upon her discharge from the

hospital three days later, the consulting doctor noted that her treatment had been

voluntary in nature and referred her for elective outpatient care, which she pursued. She



1      Statutory references are to the Welfare and Institutions Code unless otherwise
noted.

2       Section 5150, subdivision (a), part of the Lanterman-Petris-Short Act (§ 5000 et
seq.; the LPS Act), reads in pertinent part: "When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer [or designated mental health professional]. . . may, upon probable cause, take, or
cause to be taken, the person into custody for a period of up to 72 hours for assessment,
evaluation, and crisis intervention, or placement for evaluation and treatment in a
facility" designated by the county and approved by the State Department of Health Care
Services for such care. When such a detention or apprehension has occurred, section
8102, subdivision (a), requires confiscation by law enforcement officers of any firearms
in that person's possession.
                                              2
was notified that her firearm had been confiscated and she could seek a hearing, pursuant

to section 8103.

       At the hearing on her request for relief from the statutory prohibition on use or

possession of firearms, Appellant presented medical records and psychiatric testimony in

support of her claim that she was never subject to an involuntary hold due to any referral

made by law enforcement or other authorities, but instead she had acted on the

recommendation of her treating psychiatrist to present herself for inpatient treatment.

Appellant interpreted the terms of section 8103, subdivision (f)(1) as inapplicable, in that

they prohibit the ownership or possession of a firearm by a person "who has been (A)

taken into custody as provided in Section 5150 because that person is a danger to himself,

herself, or to others, (B) assessed within the meaning of Section 5151, and (C) admitted

to a designated facility within the meaning of Sections 5151 and 5152 . . . ."3 (Italics

added.)

       Appellant thus argued her circumstances of voluntary treatment, however labeled,

did not qualify under this definition and there was no statutory or factual basis to deny

her the requested relief. (See City of San Diego v. Kevin B. (2004) 118 Cal.App.4th 933,

937 (Kevin B.) [power to seek forfeiture of firearms following an owner's reported mental

health crisis is predicated on the assessment and evaluation required by the LPS Act;


3       Section 5151 outlines the permitted time frame for LPS Act detention and
evaluation, and further provides: "Prior to admitting a person to the facility for treatment
and evaluation pursuant to Section 5150, the professional person in charge of the facility
or his or her designee shall assess the individual in person to determine the
appropriateness of the involuntary detention." (Italics added.) Section 5152 sets forth
procedures for such evaluation, treatment, care, and release and referral.
                                             3
absent a custodial assessment or evaluation, section 8102 did not permit a forfeiture

order].)

       Having reviewed the record, we conclude that in this context of an emergency

mental health hospitalization that was voluntary in nature, the trial court misapplied the

statutory criteria of section 8103, subdivision (f)(1). In light of the burden of proof stated

in section 8103, subdivision(f)(6), the prosecutor did not demonstrate that at the time of

hospitalization, Appellant had been taken into custody or placed in a facility for 72-hour

treatment and evaluation treatment, within the meaning of the LPS Act, section 5150,

subdivision (a). At the time of the hearing, there was no evidence controverting

Appellant's showing that the hospitalization was voluntary and the requirements were not

met to enable the statutory prohibition of section 8103 (applicable to a person taken into

custody and admitted as provided in section 5150 et seq.) to go into effect. The trial

court's order did not comply with the statutory scheme and lacks substantial support in

the record. We reverse with directions to issue a different order granting the petition.

                   FACTUAL AND PROCEDURAL BACKGROUND

                                   A. Hospital Treatment

       As of September 2014, Appellant was 64 years old and had served as a customs

and border protection officer for 20 years, with the Department of Homeland Security

and its predecessor agency. She had immigrated to the United States from Russia while

in her 20's and had previously pursued other training and careers. She started having

depression problems when she lost her mother in 2001 and again in 2008 when she had

serious complications of major surgeries and was unable to work for a time. Her

                                              4
coworkers donated leave for her and she eventually recovered and returned to work.

Since 2008, she has been seeing a psychiatrist, Dr. Nicodemus J. Garcia, M.D., and

taking standard medications for depression and anxiety (Pristiq and BuSpar).

       In September 2014, Appellant was having work-related issues with a new

supervisor whom she felt had "singled her out" for "disciplinary punishment." She was

very "upset" and in fear of losing her job. She went to Dr. Garcia on September 8, 2014,

telling him she would take her own life if she lost her job, by taking an overdose of her

depression pills. He recommended hospitalization and attempted to place her at Mesa

Vista Hospital, but no bed was available. He advised her to go to the emergency room at

Palomar or Pomerado Hospital and her sister, with whom she lives, took her to Pomerado

on September 9, 2014.

       During intake at the emergency room, hospital staff determined that they did not

have a bed available for such treatment. Appellant knew that her health insurance would

not pay for such care, and she requested and received admission after the psychiatric

nurse at the emergency room filled out paperwork for an involuntary hold under section

5150. During her stay at the hospital, she signed a voluntary admissions form and was

discharged to go home on September 12, 2014. In the hospital discharge documentation,

psychiatrist Dr. Robert A. McAuley, M.D., noted that her treating psychiatrist had

recommended that she pursue inpatient hospitalization, and she had been voluntarily

hospitalized for the past 72 hours and had improved significantly. He evaluated her as

having developed a number of strategies and plans to deal with her unsatisfactory work

environment.

                                             5
       In the discharge documents, Dr. McAuley stated that he had discussed the issue of

firearms with Appellant and had been reassured that she would not use her service pistol

to harm herself, and in his opinion, it would be reasonable and safe for her to have access

to and carry a firearm. He adjusted her medication to add Abilify and referred her back

to her treating psychiatrist.4

       Following Appellant's discharge, Dr. Garcia maintained her on her medications

and referred her to an outpatient day program at Sharp Mesa Vista Hospital, which she

voluntarily attended and paid for from September 26 through October 17, 2014. She

returned to work on limited duty in early November 2014, but was unable to go out into

the field because hospital admissions documents were filed with law enforcement

authorities, indicating that she was not allowed to carry a firearm. (§ 8102, subds. (b),

(c).) Her request for a hearing on the prohibition was filed on September 15, 2014. By

January 2015, an evaluating psychiatrist found her to be fit for full duty, including

firearms use.

                                 B. Hearing and Continuance

       For the scheduled hearing on the petition on October 24, 2014, Appellant

submitted subpoenaed medical records from her treatment at Pomerado and Sharp Mesa

Vista hospitals. Dr. Garcia was available to testify at that time, but at Appellant's request,

the matter was continued until April 13, 2015. At that time, the deputy district attorney



4      Abilify or aripiprazole is a medicine used to treat major depressive disorder (in
combination with other antidepressants), or other conditions such as schizophrenia or
bipolar disorder. Appellant's diagnoses did not include any psychotic features.
                                              6
had just received the medical records, and the court considered postponing the hearing

again, but after some discussion, both counsel represented they were ready to proceed.

       The court accordingly received into evidence the subpoenaed records, as well as

the January 2, 2015 "psychiatric fitness for duty evaluation" prepared by Dr. Dominic

Addario, M.D., who testified at the hearing. Dr. Addario spent three and one-half hours

interviewing Appellant and about six to seven hours reviewing her medical records, and

concluded that she had voluntarily undertaken to be admitted to the hospital in September

2014, and had requested rather than resisted treatment. His review of the records

indicated that her treating physicians felt she could safely and lawfully handle a firearm

and was not a "threat to herself or others." She had been evaluated as a competent

employee and she had never drawn a weapon at work, although she had been involved in

various hostile situations in which she had to pursue individuals physically. Her

symptoms were in remission, her prognosis was "excellent" and she was unlikely "to fall

back into the major depression based upon possible stress factors at work."

       According to Dr. Addario's review of the records, Appellant did not meet the

requirements for an involuntary hold under section 5150, since she was not clearly a

threat to herself or others nor unwilling to obtain treatment. In his evaluation of her

fitness for duty, Dr. Addario stated that it was a "significant administrative misjudgment"

on the part of Pomerado Hospital staff to place her on a section 5150 hold "simply

because she had passive suicidal ideation, even though she was fully compliant and

voluntary." He and Dr. McAuley thought her visit to Dr. Garcia, telling him she would

take pills to kill herself, was more of a cry for help than an actual risk. Dr. Addario did

                                              7
not see evidence in the records that she would be a threat to herself or others, such as if

she had showed noncompliance with treatment or risk factors for impulsive behavior.

Although some individuals with depression may act out violently, her profile did not

show that she was likely to do so. She did not have a history of paranoia or problems

with explosive behavior or losing control.

       The court questioned Dr. Addario about when he talked to Appellant (in

December for the three and one-half hour evaluation, and on the day of the hearing for 10

minutes) and whether he had talked to Dr. Garcia or Appellant's sister (no). Dr. Addario

told the court he relied on Appellant's self-reporting that she was in compliance with her

treatment plan. Appellant submitted another exhibit, a November 19, 2014 letter from

Dr. Garcia, stating that he did not believe that Appellant was in any imminent danger of

hurting herself or hurting others. The deputy district attorney did not object and the court

identified the exhibit for the record and reviewed its contents, including Dr. Garcia's

statement, "I am now recommending that she be allowed to return back to her previous

job assignment. She feels she is ready. I truly feel she is ready to return to full duty. She

had done her job for so many years and she claims to be very familiar with her job

assignments and responsibilities. She reports she is physically able. I professionally

believe she is emotionally and mentally stable to return to full duty."5




5       Although the court did not formally admit the letter into evidence, it was identified
for the record and relied on in the ruling. It has now been lodged with this court as an
exhibit and may be considered in our review. (§ 8103, subd. (f)(5) [hearsay evidence
permitted at such hearings]; Rupf v. Yan (2000) 85 Cal.App.4th 411, 425-426 (Rupf).)
                                              8
       Appellant testified she had carried a firearm for 20 years at work and had never

drawn it in the course of her duties. When she went to Pomerado that day at Dr. Garcia's

recommendation, the nurse at the emergency room told her about putting her "on a hold"

pursuant to "5150," but she did not understand what he meant. She understood she would

be getting a bed at the hospital that way, and she stayed there for over three days, leaving

when Dr. McAuley told her he thought she was ready. He had explained to her that he

thought her stated intention to take an overdose of pills was merely an impulse and was

not really a plan to do anything, and she agreed. She was most recently scheduled to see

Dr. Garcia in early April, shortly before the hearing, but his office notified her he was

away. On occasion, she also sees psychologists in his office and from her employee

assistance program. She has received limited duty accommodations at work.

       Appellant felt that she had benefited from her treatment and the outpatient

program she attended, where she learned about how to handle different situations and

understand the point of view of the other person. She paid for it herself, since her

insurance would not cover it. Nobody told her that she should continue to participate in

other outpatient programs. Appellant feels she does not get angry easily and rather was

feeling upset at the time of her hospitalization, and had never threatened anyone. The

medication she took reduced agitation.6 The matter was submitted.



6       At the hearing, the deputy district attorney inaccurately referred to Appellant's
reported plan to overdose on her "antipsychotic medication," but the medications she was
on at that time were antidepressants. The Abilify medication was added at the hospital,
and is sometimes prescribed as an antidepressant or an antipsychotic medication.
Appellant's diagnoses do not contain any references to psychoses.
                                              9
       In issuing its ruling, the court first noted that the burden was on the People to

show by a preponderance of the evidence, which was not a high standard, that Appellant

would not be likely to use firearms in a safe and lawful manner. The court characterized

Dr. Addario as very well qualified and truthful, but it gave his testimony "very little

weight." The court explained that the September 2014 incident was comparatively recent

and Dr. Addario's report indicated that Appellant has continued difficulty in dealing with

conflict at work and with anger. Although "there were a lot of equities in her favor," her

own doctor had raised those as problematic issues. The court questioned why Dr.

Addario had not interviewed Appellant more extensively or spoken to her other treating

mental health professionals, such as the psychologist she had evidently been seeing

recently, or her sister, rather than simply reviewing her medical records.

       The court further expressed concerns that nothing had been presented about what

Dr. Garcia thinks at this time, since his letter was a few months old and did not

specifically address firearms. The court acknowledged that reasonable inferences could

be drawn that the doctor did not think Appellant had a problem with firearms. In

response, Appellant's attorney asked for a continuance or to reopen her case so that such

testimony could be presented. The court denied the request, noting that the matter had

already been continued once at Appellant's request and the burden was on the People.

       The court next characterized Appellant's testimony as showing that she lacked

insight into her depression, which had lasted since 2001 or 2008, and concluded that she

was downplaying it. The court said that although she comes across as a very nice person

who cares about her job, and who had properly sought medical help before, her agitation

                                             10
during testimony (apparently, frustration or impatience during cross-examination)

showed a different side of her. This raised concerns for the court that she might fail to

seek help if she became distressed while back on full duty with a firearm. At that point,

Appellant is reported as saying, "don't take it from me please."

       Appellant's attorney again sought another continuance of the hearing for Dr.

Garcia to testify, explaining that at the original hearing, the court had not planned on

witnesses being called, which resulted in the current continuance. Counsel argued that

Appellant's employment would be adversely affected if the restriction were not lifted.

The court found no evidence had been presented on that subject and there was no good

cause for delaying resolution of the case. Appellant's petition was denied and she filed

this notice of appeal.

                                       DISCUSSION

       Appellant argues the record demonstrates that the district attorney's office failed to

carry its statutory burden to prove, by a preponderance of the evidence, that she would

not be likely to use firearms in a safe and lawful manner. (§ 8103, subd. (f)(5), (6).) She

points out that the evidence was essentially undisputed that her hospitalization was

voluntary in nature, and argues that for purposes of applying the statutory criteria, the

hospital admissions nurse's use of the LPS designation to facilitate Appellant's obtaining

treatment and for insurance purposes should not be dispositive.

       Appellant thus contends that no substantial evidence in her medical records, in Dr.

Addario's testimony and evaluation that she was fit for full duty, or in her own testimony,

supported the order denying her petition. Appellant further contends the trial court

                                             11
abused its discretion in denying her motion to reopen her case to present testimony from

Dr. Garcia.

                                              I

                           APPLICABLE LEGAL PRINCIPLES

                                         A. Review

       For a motion for relief brought under section 8100 et seq. (the firearms prohibition

scheme), "[b]oth the gun owner and the authorities have the opportunity to present

evidence of the gun owner's mental condition, including introduction of testimony by

medical professionals. The [trial] judge's task is to consider the evidence presented,

weigh the credibility of witnesses, and render a decision." (Rupf, supra, 85 Cal.App.4th

411, 424.) A broad range of evidence may be presented, including hearsay. (People v.

Keil (2008) 161 Cal.App.4th 34, 37-38 (Keil); § 8103, subd. (f)(5).)

       In reviewing a trial court's order on such a petition, we apply the substantial

evidence standard. (Rupf, supra, 85 Cal.App.4th 411, 429.) " 'In determining whether a

judgment is supported by substantial evidence, we may not confine our consideration to

isolated bits of evidence, but must view the whole record in a light most favorable to the

judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in

favor of the decision of the trial court.' " (DiMartino v. City of Orinda (2000) 80

Cal.App.4th 329, 336; People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553

(Jason K.).) " 'We may not substitute our view of the correct findings for those of the

trial court; rather, we must accept any reasonable interpretation of the evidence which

supports the trial court's decision.' " (Ibid.) Substantial evidence is that " 'of ponderable

                                              12
legal significance . . . reasonable . . . , credible, and of solid value . . . .' " (Kuhn v.

Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) "While substantial

evidence may consist of inferences, such inferences must be 'a product of logic and

reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere

speculation or conjecture cannot support a finding [citation]." (Ibid.)

       When determining the credibility of a witness, the court may consider matters that

have "any tendency in reason to prove or disprove the truthfulness of [the] testimony at

the hearing, including but not limited to any of the following: (a) [Her] demeanor while

testifying and the manner in which [s]he testifies. [¶] (b) The character of [her]

testimony." (Evid. Code, § 780, subds. (a), (b).) Demeanor evidence is an "elusive but

significant type of evidence," that is relevant on issues of credibility. (People v. Adams

(1993) 19 Cal.App.4th 412, 438.) "[D]emeanor evidence does not appear on the record,

and for that reason has led to the rule that the fact-finder is the exclusive judge of

credibility." (Ibid.)

       In evaluating expert testimony, a trial court may reject some or all of the expert's

conclusions, "so long as the rejection is not arbitrary." (Conservatorship of McKeown

(1994) 25 Cal.App.4th 502, 509; see Keil, supra, 161 Cal.App.4th 34, 39 [conc. opn. of

Gilbert, P.J.].) The same principle applies to lay witnesses, even if the witness's evidence

is uncontradicted. (McKeown, supra, at p. 509.) "Except where additional evidence is

required by statute, the direct evidence of one witness who is entitled to full credit is

sufficient for proof of any fact." (Evid. Code, § 411.)



                                                13
       "Substantial evidence review turns on whether the facts presented in each case

support the findings of the trial court." (City of San Diego v. Boggess (2013) 216

Cal.App.4th 1494, 1502.) Looking to the specific facts reported in other published cases

is unhelpful to a substantial evidence analysis. (Ibid.) Our concern is whether

Appellant's petition for relief, or the trial court's denial of it, complied with the statutory

scheme.

                       B. Interplay of LPA Act and Firearms Statutes

       "Section 8103 (and its counterpart section 8102, which permits confiscation of

firearms) are preventative in design; the fundamental purpose is to protect 'firearm

owners and the public from the consequences of firearm possession by people whose

mental state endangers themselves or others.' [Citation.] These protective statutes 'limit

the availability of handguns to persons with a history of mental disturbance . . . to protect

those persons or others in the event their judgment or mental balance remains or again

becomes impaired.' " (Jason K., supra, 188 Cal.App.4th 1545, 1558; italics added.)

       Sections 8102 and 8103 ordinarily come into play when a person has been

detained under section 5150, upon probable cause that he or she is a danger to himself or

others. (Keil, supra, 161 Cal.App.4th 34, 37.) "A person who has so been detained may

not own, possess, control, receive or purchase any firearm for a period of five years after

the detention [citation], unless the person requests a hearing and the trial court finds that

the People have not met their burden to show 'by a preponderance of the evidence that the

person would not be likely to use firearms in a safe and lawful manner.' " (Id. at p. 38;

Jason K., supra, 188 Cal.App.4th 1545, 1557 [preponderance of the evidence standard

                                               14
"properly allocates the risk of an erroneous judgment pertaining to firearm use between

the government and an individual who was hospitalized after a finding that he or she

presented a danger to himself or others (§§ 5150, 5151)."].)

       In analyzing the scope of the counterpart statute, section 8102, this court in

Kevin B., supra, 118 Cal.App.4th 933 discussed the procedural limits placed upon the

police power to retain firearms. Normally, persons who have been " 'justifiably

apprehended or detained to have their mental condition evaluated are subject to its

reach.' " (Id. at p. 941; italics omitted.) Section 8102 " 'is not arbitrarily directed against

anyone who owns or possesses a gun." (Kevin B., supra, at p. 941; italics omitted.)

Rather, the firearms prohibition scheme "establishes a system of correlative powers,

duties and rights that arise when a law enforcement officer is confronted with a person

who is a danger to himself or others as a result of mental illness. . . . [¶] When, under

section 5150, a person has been detained, section 8102, subdivision (a), requires that law

enforcement officers confiscate any firearms or weapons in that person's possession.

Upon the person's release the mental health facility which has evaluated the person must

notify the law enforcement agency which confiscated the weapons [thus invoking the

petitioning process for forfeiture or release]." (Kevin B., supra, 118 Cal.App.4th at

p. 940; italics added.) "[I]t is not possible to read these provisions as permitting the

forfeiture of firearms or weapons where a person has not received an assessment and

evaluation of his or her mental condition." (Id. at p. 941.)

       This court in Kevin B., supra, 118 Cal.App.4th 933, continued the analysis of

permissible forfeiture of weapons under section 8102 by reading the statute's plain terms,

                                              15
and concurring with the substantive due process analysis in Rupf, supra, 85 Cal.App.4th

411, 423, that "the assessment and evaluation required by sections 5151 and 5152 are

important limitations on the power to confiscate and withhold weapons." (Kevin B.,

supra, at p. 941; italics added.) Otherwise, the power to confiscate and forfeit weapons

would not be adequately "tethered" to the assessment and evaluation required by sections

5151 and 5152, and "a risk arises that weapons will be taken from law-abiding citizens

who in fact are not a danger to themselves or others." (Kevin B., supra, at p. 942.) We

said, "Given the literal language of the applicable statutes and the risk of erroneous

confiscation and forfeiture, it suffices to conclude that in permitting confiscation and

forfeiture of weapons, the Legislature intended that no permanent deprivation occur in

the absence of the assessment required by section 5151 and, upon admission to a mental

health facility, the evaluation required by section 5150." (Kevin B., supra, at p. 942;

italics added.) In that case, the firearms owner was never "assessed or evaluated," and

thus the City had no power to bring a petition under section 8102, subdivision (c), and the

trial court's order had erroneously allowed forfeiture. (Kevin B., supra, at p. 943.)

                                             II

                                 ANALYSIS OF RECORD

                 A. Statutory Criteria of Section 8103, subdivision (f)(1)

       We first use a plain text, "literal reading" approach for evaluating the scope of

section 8103, and then an alternative substantial evidence analysis of whether the

hospitalization of Appellant was equivalent to that of a person required to have her

mental condition evaluated under the LPS Act. (See Kevin B., supra, 118 Cal.App.4th

                                             16
933, 941-942.) The interrelated statutory analyses in this area require a balancing of the

risks among an individual's loss of the right to possess firearms and the state's strong

interest in protecting society from the potential misuse of firearms by a mentally unstable

person. (Jason K., supra, 188 Cal.App.4th 1545, 1557-1558; see Rupf, supra, 85

Cal.App.4th at p. 422 [in applying section 8102, there need not be a relationship between

"the weapons possessed and the incident precipitating the [LPS Act] detention"].)

       In the case before us, Appellant arrived at the hospital under emergency mental

health circumstances, but the record does not support a conclusion she was "detained"

within the meaning of the LPS Act, section 5150. We draw this conclusion from the

terms of section 5150, subdivision (a), which initially refers to "a person [who], as a

result of a mental health disorder, is a danger to others, or to himself or herself." For

such a person, appropriate public officials may, "upon probable cause, take, or cause to

be taken, the person into custody for a period of up to 72 hours for assessment,

evaluation, and crisis intervention, or placement for evaluation and treatment" in an

approved facility. (§ 5150, subd. (a).)

       In turn, section 5150, subdivision (c) requires the facility officials to "assess the

person to determine whether he or she can be properly served without being detained."

Section 5151 outlines the permitted time frame for treatment and assessment and further

provides that "[p]rior to admitting a person to the facility for treatment and evaluation

pursuant to Section 5150, the professional person in charge of the facility or his or her

designee shall assess the individual in person to determine the appropriateness of the

involuntary detention." Under section 5152, the person taken into custody and admitted

                                              17
to a facility on a 72-hour hold must receive an evaluation as soon as possible and

appropriate treatment and information.

       But here, the only invocation of LPS care under section 5150 was made by the

emergency room admissions nurse, and apparently for purposes of ensuring payment for

a certain category of care. It was not established at Appellant's hearing that she was

taken "into custody" by public officials. (§ 5150, subd. (a).) The record does not show

the kind of full assessment required by section 5151 was performed, by "the professional

person in charge of the facility or his or her designee" of "the appropriateness of the

involuntary detention," prior to admission for treatment and evaluation pursuant to

section 5150. (§ 5151.)

       In Rupf, supra, 85 Cal.App.4th at page 424, the appellate court explained that a

trial court "may properly consider whether the circumstances leading to the section 5150

detention might occur again and whether possession or control of those confiscated

weapons in such circumstances would pose a risk of danger to appellant or to others."

Technically, there was no substantive section 5150 detention in Appellant's case, and as a

matter of law, the forfeiture of her firearm rights was not adequately "tethered" to the

assessment and evaluation required by section 5150 et seq. (Kevin B., supra, 118

Cal.App.4th at p. 942.)

                           B. Substantial Evidence Evaluation

       Since inferences can be drawn that Appellant voluntarily sought out the same

kinds of "assessment, evaluation, and crisis intervention, or placement for evaluation and

treatment," that are described in section 5150, subdivision (a), we next consider if the

                                             18
provisions of section 8103, subdivision (f) were properly invoked, even absent a

"custody" or "involuntary detention" determination. (§§ 5150, subd. (a), 5151.) For our

purposes, this translates into the inquiry of whether substantial evidence supports the trial

court's determination that the People carried their burden of proof that Appellant was

taken into custody, assessed and admitted to a facility because she was a danger to herself

and others, as described in section 8103, subdivision (f)(1)(A), (B), and (C). (§ 8103,

subd. (f)(6) [burden on prosecutor to show by a preponderance of evidence "that the

person would not be likely to use the firearm in a safe and lawful manner."].) We

examine each stated basis for the ruling and any supporting inferences.

       In section 8103, subdivision (f)(2), (3), (4) and (5), the firearms prohibitions

scheme provides for prompt notice to a patient detained at a mental health facility of the

confiscation of weapons and the right to request a hearing. Appellant's request for a

hearing was duly filed September 15, 2014, but the initial hearing on the petition, set for

October 24, 2014, was continued until April 13, 2015. In the interim, Dr. Addario

interviewed her and prepared his fitness for duty report January 2, 2015. One of the trial

court's reasons for denying the petition was that only six months had passed since the

hospitalization, possibly suggesting her treatment was incomplete and her status

unknown. However, the lapse of time was not alone dispositive, since the statute allows

for a prompt hearing.

       In Jason K., supra, 188 Cal.App.4th at page 1554, this court noted that a single

incident leading to a section 5150 commitment can support a section 8103, subdivision

(f) finding. In Jason K. the individual suffered from a "severe" depressive disorder and

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had acted out violently under it, and his efforts to improve his mental health "did not

necessarily show that it would not occur again, particularly when some of the stress

factors that precipitated this incident were still present . . . [and] there was a reasonable

basis for the court to find that the factors triggering the handgun incident had not been

entirely eliminated, and that if there was another episode of mental instability, Jason

could repeat this action, creating a serious safety concern for Jason and those around

him." (Jason K., supra, at p. 1554.)

       In contrast, this Appellant's depression was repeatedly diagnosed as "moderate"

and she had not acted out violently in the past. On a voluntary basis, she underwent a

professional assessment and evaluation in an equivalent setting to those described in the

LPS Act and firearms prohibitions scheme, about the risks to be posed by her ongoing

access to firearms. There was conflicting evidence about the severity of the incident

leading to the hospitalization and whether she or the experts thought the suicide threat (by

pills, not gun) was made as a cry for help. The trial court's ruling expressed concerns that

Appellant was downplaying the incident leading to her hospitalization, and she lacked

insight into her depression. She also seemed to the court to become agitated during the

progress of the hearing.

       Certainly, the trial court had the responsibility to evaluate the credibility of

Appellant as a witness, and we do not substitute our deductions for those it expressed.

(Evid. Code, § 780, subds. (a), (b) [court may consider regarding truthfulness of

testimony the witness's demeanor and character of the testimony].) However, witness

credibility was not the entire issue, but only one factor toward evaluating the showing

                                              20
required by statute. Under section 8103, subdivision (f)(6) the burden was placed on the

government "to show the individual would not be likely to use the weapons in a safe

manner." (Jason K., supra, 188 Cal.App.4th at p. 1558.) The statute allocates risks

between an individual's loss of the right to possess firearms and the state's strong interest

in protecting society from the potential misuse of firearms by a mentally unstable person.

(Kevin B., supra, 118 Cal.App.4th 933, 941-942.) Although the medical evaluators could

not guarantee that Appellant would not have another episode of mental instability, they

did not foresee that her restored firearms possession would raise any serious safety

concerns for herself or others, in light of her previous "passive suicidal ideation" and the

nonaggressive nature of the depressive disorder she had showed over the years, and

which she had voluntarily addressed.

       In view of the record as a whole, the trial court seemed, erroneously, to be placing

the burden on Appellant to show she was unquestionably fit for firearms possession,

rather than keeping the statutory burden on the district attorney's office to show there

were specific reasons to conclude she would be dangerous to herself or others if her

firearms access were restored. Dr. Addario testified that the existence of a depressive

condition does not mean the person having it is unsafe or a threat to others, stating:

"Millions of people have depression and behave in a perfectly appropriate manner." We

are concerned that the inferences impliedly drawn by the trial court, that the

hospitalization was the result of a severe threat demonstrating that Appellant had a

present danger of engaging in firearms violence, did not "rest on the evidence" about the

nature of her mental condition and depression, but rather, they amounted to speculation

                                             21
or conjecture. (Kuhn, supra, 22 Cal.App.4th at p. 1633.) When the trial court rejected

the whole of Dr. Addario's and Dr. Garcia's conclusions, it showed some degree of

arbitrariness in faulting the procedures they used and in criticizing the extent of the

investigation and interviews they performed. (See Conservatorship of McKeown, supra,

25 Cal.App.4th at p. 509.) Although Appellant did not explain why Dr. Garcia was not

brought back to testify at the continued hearing on April 13, the record included

consideration of his favorable letter and also showed that he was away at the time of her

scheduled appointment as of early April.

       Admittedly, both Appellant and the deputy district attorney could well have

provided more evidence, but we must evaluate the record as it was developed and with

attention to the burden of proof imposed by section 8103, subdivision (f)(6). In

reversing, we determine only that the record as it currently stands does not support the

order denying the petition and a different order must be directed. We need not resolve

Appellant's additional claim of abuse of discretion in the denial of her motion to reopen

her case to present testimony from Dr. Garcia.

                                       DISPOSITION

       The order is reversed with directions to grant the petition.




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                                 HUFFMAN, J.

WE CONCUR:


         McCONNELL, P. J.


               HALLER, J.




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