Filed 5/11/15 P. v. Turner CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B254811

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA175940)
         v.

MIKONA TURNER,

         Defendant and Appellant.




                   APPEAL from an order of the Superior Court of Los Angeles County,
Richard S. Kemalyan, Judge. Affirmed.


                   Paul Bernstein, under appointment by the Court of Appeal, for Defendant
and Appellant.


                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
       After attempting to kill her infant daughter in 1998, appellant Mikona Turner was
found not guilty by reason of insanity. Since 2001, except for a brief time more than
eight years ago when she requested hospitalization, Turner has resided in a supervised
outpatient board and care facility under a forensic conditional release program
(CONREP). Medications have controlled her symptoms. Turner has not endangered or
threatened anyone since her commitment.
       Pursuant to Penal Code section 1026.2,1 Turner applied for release on the ground
that her sanity has been restored. In the trial on her application, two psychiatrists
recommended that Turner be found restored to sanity, citing, among other things, her
improved insight into her mental condition and her well developed safety plan. Turner
testified that she is committed to her medication regimen and has developed a support
network she would rely upon if her symptoms returned. Turner’s CONREP therapist,
however, recommended against restoration.
       The court denied Turner’s application. Although it noted that Turner had made
progress, the court agreed with the CONREP therapist’s view that Turner needed to
demonstrate better financial management to pay for her medication, exercise better
decision making regarding personal relationships, and show progress toward a less
supervised setting within CONREP. Turner, the court concluded, had not met her burden
of showing that restoration to sanity was appropriate. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In 1998, during a psychotic episode in which Turner experienced delusional voices
threatening torture, Turner cut the wrists of her two-month-old child with a razor blade.2
In 1999 she was found not guilty by reason of insanity and sentenced to a maximum term
of ten years in the state mental hospital.




1      Statutory references are to this code.
2      The child survived and was adopted; Turner’s parental rights were terminated and
she has had no contact with the child.

                                                2
       Turner was committed to the state hospital in 1999. In 2001 Turner was released
to an outpatient setting supervised by CONREP and, except for 10 months in 2006, has
lived under CONREP’s auspices in a board and care facility. There Turner has received
individual and group therapy and medication, and she is subject to strict supervision. In
February 2006, because she recognized the return of symptoms of mental illness, Turner
voluntarily requested return to a hospital setting. That placement lasted until December
2006 when she returned to outpatient residency at the Gateways Forensic Community
Treatment Program.
       Since her commitment, Turner has not threatened or endangered anyone. She has
attended therapy and group meetings, complied with her medication regimen, volunteered
at her church, and displayed insight into her mental illness. She has on occasion
displayed questionable judgment regarding relationships and, in 2013, missed making
medication co-payments for several months.
       In 2013 Turner petitioned for restoration of sanity under section 1026.2. The court
conducted a trial over the course of several days in January and February 2014. Turner
offered the testimony of two psychiatrists, her pastor, and her own testimony. The
People offered the testimony of Turner’s CONREP psychologist. The court also
reviewed the court file and the reports submitted by the witnesses.


       1. Turner’s evidence in support of her application for restoration of sanity


       Two psychiatrists who testified on Turner’s behalf recommended that she be
restored to sanity because she was not a danger to the community. Dr. Gordon Plotkin
testified that based on his two hour interview and review of records, he found Turner very
insightful about her mental illness, explaining that “in the forensic community treatment
program at CONREP, insight really is significant.” He characterized Turner as “within
the top 10 percent of the people that I have evaluated at that particular program.” Dr.
Plotkin testified that Turner did not pose a danger to the health and safety of others as a
result of mental disease and that her current medication regimen controls her mental

                                              3
condition. Dr. Plotkin stated that without treatment, Turner “would decompensate,” that
is, her defenses to pathology would deteriorate. He stated that “in an out-patient program
with an out-patient psychiatrist, hopefully, therapist and some social worker access like
what’s available in the community, she’d be just fine.”
       Dr. Plotkin’s opinion was that Turner will continue to take her medicine in an
unsupervised environment. Asked about Turner’s prospects if she is restored to sanity
and released, he testified, “based on her level of insight, I believe she’s going to stay
compliant with her medication.” He explained that Turner understands why she needs
the medications and what they do: “She plans on staying on them and she’s also able to
say to me what would happen if she went off of them and had excellent insight about that.
And that’s usually the missing factor.” On the ultimate question of the “risk of her
stopping her medication,” Dr. Plotkin stated, “fortunately, I don’t have to make that
decision.” Dr. Plotkin said he was a “little bit” concerned about Turner’s ability to
manage her finances; he stated that it would be crucial that she do so, it may be difficult
for her initially, and she may need guidance with that. With respect to Turner’s transition
plan to a less supervised setting, Dr. Plotkin considered it “thorough” and “appropriate,”
noting, “I’d like to have all of my patients have a plan like that.” Dr. Plotkin noted that
more important than having a detailed written plan, Turner could explain its contents.
       The court’s questions to Dr. Plotkin focused on Turner’s potential transition from
the highly structured and supportive environment she had been in for over 12 years. In
Dr. Plotkin’s judgment, Turner was likely to continue to take her medication in an
unsupervised environment, and posed no danger to others while she was taking her
prescribed medication. Dr. Plotkin did not know whether the resident facility delivers
medication to Turner, or whether she is responsible for taking her own medication. The
court also asked whether, if Turner is restored to sanity, CONREP could assist her before
she departs. Noting that “it’s a little bit of a Catch-22,” Dr. Plotkin explained that
CONREP does not provide any assistance until the patient is actually restored. Later, he
elaborated on the court’s concern about the transition to restored status:


                                              4
              [Dr. Plotkin]: And unfortunately, CONREP’s position is until a
       judge restores the person’s sanity, that they’re not going to have any part of
       that and so they really actually say to the person, you have to find out
       yourself, we’re not going to help you.

             The Court: One day a judge says you’re restored to sanity and all of
       a sudden they help or how does that work, do you know?

             [Dr. Plotkin]: I sure hope they’re going to help because as I said, it’s
       a daunting task.



       Dr. Plotkin described CONREP as having “draconian” rules, but also having good
intentions and being committed to improving the lot of the patients in their care. In Dr.
Plotkin’s view, CONREP appeared to lack the ability to “let themselves say, this person’s
restored, because I think, frankly, they let the bench decide that.”
       Dr. Sanjay Sahgal, another psychiatrist, also testified on behalf of Turner. His
opinions were based on a review of the records and a one hour interview with her. Asked
about Turner’s likelihood of continuing to take her medications, Dr. Sahgal stated that
while he could not predict the future, the data suggest “that she falls into the very-high-
likelihood category of staying on her medications and consulting with doctors as
recommended to make sure that her medications are working.” Dr. Sahgal observed no
signs of delusional thought in Turner:

               She was calm, alert, well-groomed and neatly attired in casual
       clothing. Her speech was clear and fluid. She was forthright,
       communicative. Somewhat distraught, perhaps understandably so given
       her situation, but not significantly depressed, anxious, irritable or manic.
       She demonstrated no signs of psychosis such as delusional thinking or
       response to hallucinations and her cognitive performance throughout the
       entire was intact. Based upon screening questions for memory,
       language, concentration and attention, she appeared to be above-average
       intelligence.




                                              5
       Dr. Sahgal testified that Turner demonstrated insight into her illness and the events
that led to her institutionalization. She spoke about the charged offense with “courage
and forthrightness that was remarkable in the sense that she talked about what happened
and her symptoms at the time. She spontaneously demonstrated an understanding of the
link between her not being on medication at the time of the controlling offense and her
manifestation of psychosis. . . . She acknowledged that the medications have been useful,
that they are currently essential.” Dr. Sahgal stated that Turner displayed insight during
the interview, and presented a “written plan for relapse prevention that was one of the
more thorough plans I’ve seen in my practice.” He also found significant that Turner
“was able to articulate the plan without having to have the written material in front of
her,” which indicated that “this is information that she carries around with her and
understands.” Moreover, Turner had a “backup plan,” which Dr. Sahgal stated was
“remarkable.”
       Dr. Sahgal commented on the “difficult alliance” between the patient and
CONREP where, “by necessity, there is a limit to . . . confidentiality. The psychotherapy
session is by its very structure, part treatment and part assessment to be reported to all.”
He stated that in contrast to a typical psychotherapeutic relationship, in which
confidentiality is intended to promote candor and trust, “if you know that the therapy
notes and the things that go on in therapy are going to be reported to a court of law,
which in turn will be deciding your civil commitment status, it would lead to more
distrust [and] misunderstanding . . . .” This “dual-role-therapy” is stressful, Dr. Sahgal
testified, and indeed, continued commitment for a person in remission because of their
medication could be antithetical to treatment. In Dr. Sahgal’s 15 to 17 years consulting
on over 500 restoration cases, he knew of not a single time CONREP ever recommended
that a person be restored.
       Summarizing his conclusions, Dr. Sahgal opined that Turner posed a low risk of
harm to others: “She represents an elevated risk of dangerousness to the community due
to her mental disorder compared to the general population that will never change. . . .
However, compared to the population of individuals in her situation, . . . she has

                                              6
addressed all changeable or elastic risk factors such that she is a very low risk of physical
harm to others compared to the population of folks who are found insane by the court.”
On the important question of whether, in an unsupervised environment, appellant would
continue to take her medication, Dr. Sahgal stated that he believed she would, based on
her understanding of why she is taking it, the plan she has made, and the “treatment
allies” where she will live. He stated that for the clinical treatment of schizophrenia,
“that’s about as good as it gets.”
       In cross-examination, Dr. Sahgal noted that before she committed the offense in
1998, Turner had gone off her medications. Turner’s current relapse prevention plan is
similar to one she had offered in 2009, when the court had previously declined her
request to be restored.
       The court inquired about Turner’s housing arrangements if she were to be
restored. Dr. Sahgal stated that Turner wanted to stay at the board and care facility she is
at now; her backup was to work with an organization called SHARE, which would find
her housing and a roommate and organize transportation to clinics and services. The
court received a letter from SHARE, identified as the Self-Help and Recovery Exchange,
indicating that Turner had been participating in the program since 2013, and that she
would have the opportunity to move into its program if she were restored. The court
inquired further of Dr. Sahgal’s opinion about Turner’s risk of danger to others. His
“very low risk” opinion was based on Turner’s continuing medication compliance,
insight into her illness, history of no episodes of violence, the existence of a social
support system, and the absence of current symptoms.
       Turner also testified. She identified her psychiatric diagnosis and stated that it
meant, “I have a mental illness and . . . I have to take medication and go to groups and
have a doctor and a therapist for the rest of my life.” She described the harrowing
delusions that afflicted her the night she tried to kill her child and herself, and identified
triggers of stress that exacerbated her mental illness symptoms. Turner testified that she
“loves” not having symptoms any longer, understands that the medications control it, and
will “go through hell and high water” to pay for the medication. Asked about making

                                               7
sure to pay for her medications, Turner explained that after speaking with her therapist,
for the previous five months she had been paying her co-payment. Apparently the price
had increased from $5 per month to $20 per month, so Turner cancelled her telephone so
that she would have funds for the medicine. Turner testified that she receives
Supplemental Security Income based on her disability of $1,124 monthly. Of that,
$1,103 is paid to the board and care facility and $20 per month is for the medication co-
payment. Turner described her safety plan, her social network, and the volunteer work
she does at a church.
       Turner admitted that she had failed to pay the co-payments for her medication for
some six months in 2013, characterizing her lapse as “lazy,” but had since come to
recognize that paying for medications was a higher priority than paying for her phone.
She stated that if she were restored, she intended to remain in her current board and care
facility for 6 to 12 months, and then participate in the SHARE program. She explained
where she would purchase her medications and whom she would call if she had
problems. Turner described her fear of again experiencing the psychotic symptoms as a
reason that “I will always take my medication.” Since 1998 she has never gone off her
medications.
       A further witness for appellant was the pastor of the church where Turner attends
weekly services and performs volunteer work. Rev. Jacoba Vermaak testified that she
had known Turner for two years, saw Turner regularly twice a week, asserted she would
recognize abnormal behavior by appellant, and would help Turner if she stopped taking
her medications or otherwise exhibited symptoms of mental illness. Vermaak had no
formal mental health training and was unfamiliar with the specific medications Turner
was taking.


       2. The People’s evidence in opposition to restoration


       Opposing the application, the People offered the testimony of Turner’s primary
clinician Lindsay Salseda, a psychologist with Gateways Forensic Community Treatment

                                             8
Program. Dr. Salseda testified that she saw Turner three times a month, and, beginning
in September 2012, had had about 60 sessions with her. Dr. Salseda had never seen
Turner behave dangerously or threaten anyone; she also testified that Turner had always
taken her medications. But Dr. Salseda recommended against granting Turner’s
application for restoration of sanity. She felt that Turner had not exercised good
judgment about certain people, including members of her family, and that some of those
personal relationships were potential triggers for further symptoms. Dr. Salseda also
pointed to Turner’s lapses in financial management, which, she stated, might cause
Turner to miss co-payments for medications and thereby interrupt the medication
program that has controlled her symptoms.
        Dr. Salseda related Turner’s history at the facility. Turner came to the CONREP
program at Gateways in 2001 from the state mental hospital. In 2006 Turner recognized
the return of symptoms and asked to be returned to the hospital. She returned to
CONREP in late 2006. At CONREP Turner is at the intermediate level of care. In order
of decreasing restrictiveness, the levels of care are intensive, intermediate, supportive and
transitional. Dr. Salseda explained that the intermediate level of care was for patients
who require intervention and support. Turner, she said, saw Dr. Salseda three times per
month, had group therapy four times per month, visited with the staff psychiatrist once a
month, and participated in a social improvement program four to five times during the
week.
        Turner, according to Dr. Salseda, had not demonstrated financial responsibility or
made good relationship choices. Dr. Salseda testified that in 2013 Turner missed about
six months of co-payments, although she acknowledged that while with CONREP,
Turner receives the medications whether she pays or not. Dr. Salseda maintained that
Turner “is not suitable for restoration at this time” because:
“I don’t believe she’s demonstrated the ability to effectively manage her mental illness
without our treatment and supervision so that she doesn’t pose a risk of dangerousness to
the community,” and that her “primary concern” was Turner’s “lack of financial
responsibility with regards to her medication.” Dr. Salseda also pointed to a 2010

                                              9
occasion when Turner purchased over-the-counter medicine for a nephew. Dr. Salseda
stated that “it just demonstrates that she may put someone else’s needs before her.”
Another concern voiced by Dr. Salseda was what she called Turner’s “tendency to put
herself in a positive light and at times omit things in treatment that are relevant or
important to her treatment.”
       Dr. Salseda identified areas of progress she would like to see before Turner is
restored to sanity: “Just to be more financially responsible and . . . prioritize her
medication payments. . . . [D]emonstrate better decision-making, whether it comes to
relationships, boundaries. And then also, just move to a lower level of care within the
program.” Dr. Salseda disagreed with the assessments of Drs. Plotkin and Sahgal based
on the greater experience she had had with Turner.
       The court inquired about what would qualify Turner for a change in the level of
care at CONREP. Dr. Salseda replied “financial responsibility, paying mostly around her
medication, making good choices with regards to men, relationships, being forthcoming.”
Dr. Salseda had not considered changing Turner’s level of care. The court asked what
factors would be significant in being able to recommend restoration. Dr. Salseda
answered: making medication payments a priority, consistently paying for them,
demonstrating that she could budget and pay for them on a consistent basis, make good
relationship choices, and “transition to a supportive level where her life parallels more of
what it would look like if she was discharged.” Dr. Salseda also wanted Turner to be
“more forthcoming about, you know, she does make a bad decision, come in saying, you
know, ‘I did this . . . .’ As opposed to when there’s been times in the past where it’s, you
know, ‘Let’s try to avoid it, to cover it up,’ not bring it forward.” Dr. Salseda conceded
that “it is difficult being that we do report to the courts and the clients know that. But on
the same token, we do want them to be forthcoming and honest especially with
symptoms, stressors, things that could be difficult for them.” Dr. Salseda has never
recommended that a CONREP patient be restored to sanity.
       Dr. Salseda acknowledged that even when Turner was experiencing stress with her
family she did not become dangerous with other people and did not threaten anyone.

                                              10
During Turner’s entire time with CONREP she had always taken her prescribed
medications. Turner never told Dr. Salseda she wanted to stop taking medication; to the
contrary, “she’s expressed her intent to continue taking it.” Dr. Salseda also recognized
that although Turner had experienced some periods of increased anxiety, she had not
experienced delusions, paranoia or any of the other psychiatric symptoms that led to her
commitment. The therapist stated that her reasons for recommending against restoration
– money management, personal relationships, engagement in treatment – did not induce
Turner to stop taking her medications or cause her to experience hallucinations. Dr.
Salseda further testified that apart from the incident in 1998, and despite occasions in
which Turner reported anxiety and stress, she knew of no instance in which Turner had
ever threatened anyone. In the weekly group sessions, Turner “participates well, interacts
appropriately with her peers in that group and . . . attends on a pretty consistent basis . . .
.” Moreover, Dr. Salseda explained, Turner has learned skills while at CONREP,
including improving her boundaries, insight into her mental illness, and ways to manage
stressors. Turner’s symptoms are in remission.
       The trial court also reviewed the court file, reports of witnesses, and the safety
plan prepared by Turner. Several reports were submitted by the People, all written by Dr.
Salseda, and they substantially echo her testimony. A May 2013 report indicates that
Turner “has been psychiatrically stable throughout the reporting period,” has “shown
insight into her mental illness, is open to analyzing enmeshed family dynamics, and has
been able to manage several stressors at the same time without becoming overwhelmed.”
But Dr. Salseda expressed concern that Turner “continues to overestimate her ability to
set limits and keep them.” The report did not address whether Turner will continue
taking her medicine in an unsupervised environment.3 A July 2013 Restoration of Sanity



3     It is peculiar that this report asserts that Turner “is capable of holding a job.” That
opinion, offered without substantiation, is contrary to the finding of the Social Security
Administration that Turner, a recipient of Supplemental Security Income, is unable to
“engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . .” (42 U.S.C., § 1382c, subd. (a)(3)(A).)
                                               11
Report (“Report”) details violations of CONREP rules, especially those concerning
relationships, but offers no evidence that any of these episodes triggered a psychiatric
problem, interrupted Turner’s medication routine, or led to violent or threatening
behavior. The Report states that “[o]ne of Ms. Turner’s strengths continues to be her
level of insight into her mental illness. She is able to identify and report symptoms,
warning signs, and triggers to her mental illness.” Yet, the Report says, Turner “lacks
insight into what could be destabilizing for her and fails to make the connection between
an increase in her level of stress and rapidly becoming symptomatic.” The Report
frequently brings up the stress caused to Turner by her family, but at the time of trial the
evidence was that many of those family members had moved out of state.
       In the Report, Dr. Salseda notes the disconnect between Turner’s expressed intent
and her actions, particularly concerning finances. Acknowledging that Turner has
“remained medication compliant due to the structure of the program and has expressed
the intent to stay on her medication,” the Report states, “her actions speak otherwise,”
noting an “ongoing difficulty paying for her medication while in CONREP.”
       The Report also discusses the use of a checklist called HCR-20, which appears to
aid in making assessments by tallying various risk factors. According to the Report, it “is
not an actuarial measure that provides a numerical baseline estimation of violence risk,”
but is claimed to be useful in identifying “the presence of a constellation of factors”
associated with risk for violence recidivism. The methodology for use of this tool was
not specified, and the factors considered seem remote in time and imprecisely defined.
The HCR-20 was not discussed by Dr. Salseda in trial or offered as the basis for any
argument by the People. Without a more robust foundation it is of doubtful admissibility,
much less substantial evidence. Because this checklist does not appear to have
contributed to the court’s order, we do not consider it further.
       On behalf of Turner, Dr. Plotkin’s report took issue with CONREP’s view that
Turner lacked insight about potential triggers. Turner “has quite a bit of insight regarding
her past history of co-dependency, difficulty with boundaries, financial stress, family
interactions, inappropriate relationships, and the psychiatric illness that precipitated her

                                              12
commitment offense. It is also important to note that for the most part during the two
exacerbations of her illness, she has been the primary individual to seek treatment . . . .”


       3. The court’s denial of the application for restoration of sanity


       The superior court denied Turner’s application. In making its ruling the court
noted that it had reviewed all the reports and testimony. Turner’s application, the court
said, was governed by the standard set forth in CALCRIM jury instruction No. 3452.
The court summarized the testimony of the expert witnesses, observing that “all doctors
agree that in a supervised environment . . . Ms. Turner is not a danger to the health and
safety of others. According to Dr. Salseda, defendant is not yet suitable for restoration to
sanity because she does not manage her mental illness and is therefore a danger to the
community.” The court also summarized Dr. Salseda’s testimony that Turner had to,
“one, take and show financial responsibility for payment toward her medication, two,
show better decision-making and, three, progress to a lower level of care at Gateways
CONREP.” Noting that defendant had the burden of proof, the court stated that while it
“believes defendant is making significant progress toward restoration, there are areas of
concerns noted by Dr. Salseda. At this point in time, the court does not believe that the
defense has carried the burden of proof; and therefore, denies the petition . . . .”
       Turner appeals the denial of her application for restoration of sanity.


                                       DISCUSSION


       1. Legal standard regarding restoration of sanity


       Section 1026.2 provides that a person who has been committed to a state hospital
after being found not guilty by reason of insanity (see § 1026), may apply to the superior
court for release on the ground that his or her sanity has been restored. Section 1026.2,
subdivision (e) establishes a two-step procedure for such an application. The first step is

                                              13
to “hold a hearing to determine whether the person applying for restoration of sanity
would be a danger to the health and safety of others, due to mental defect, disease, or
disorder, if under supervision and treatment in the community.” (Ibid.) If the court
concludes the person is not a danger to others, he or she is placed in an outpatient
treatment program for one year. This first step is not involved in Turner’s application,
because she has been in an outpatient program under supervision of CONREP for over
thirteen years. (§ 1026.2, subd. (f).)
       In the second step of section 1026.2, subdivision (e), after the defendant has spent
at least one year in the outpatient treatment program, the court “shall have a trial to
determine whether sanity has been restored, which means the applicant is no longer a
danger to the health and safety of others, due to mental defect, disease, or disorder.” The
defendant-applicant bears the burden of proof by a preponderance of evidence and is
entitled to have the matter determined by a jury. (§ 1026.2, subd. (k); In re Franklin
(1972) 7 Cal.3d 126, 148 (Franklin) [interpreting then section 1026a, predecessor to
section 1026.2].)
       In order to be restored to sanity, the applicant need not show that she is no longer
legally insane; she need show only that she is not likely to cause injury or pain or expose
herself or others to injury. (Franklin, supra, 7 Cal.3d at p. 145; People v. Williams
(1988) 198 Cal.App.3d 1476, 1480 (Williams).) In Williams the Fourth District approved
a jury instruction stating sanity is restored under section 1026.2 when the applicant is no
longer dangerous in a medicated condition and will continue to self-medicate in an
unsupervised setting. (Id. at p. 1479.)4 In ruling on Turner’s application, the trial court



4       The jury instruction in Williams stated in part, “in order to have the Defendant’s
sanity legally restored, while in a medicated state, you must also find, by a preponderance
of the evidence, that the Defendant will continue to take his medication as prescribed, in
an unsupervised environment.” (Williams, supra, 198 Cal.App.3d at p. 1479.)

        CALCRIM No. 3452 was adopted in light of Williams and provides in pertinent
part: “[The law presumes that the defendant currently poses a danger to the health and
safety of others as a result of a mental disease, defect, or disorder. In order to overcome
                                             14
expressly referred to CALCRIM No. 3452, the jury instruction engendered by the
Williams decision.


       2. Standard of review


       The standard of review of a determination under the first step of section 1026.2,
subdivision (e) – whether a defendant-applicant will be a danger to others while under
supervision and treatment – is abuse of discretion. (People v. Bartsch (2008) 167
Cal.App.4th 896, 900.) Turner’s application, however, invokes the second step, which is
a determination that may be made by a jury in which the defendant-applicant has the
burden under a civil law preponderance of the evidence standard. (§ 1026.2, subd. (k);
Franklin, supra, 7 Cal.3d at p. 148; People v. Mapp (1983) 150 Cal.App.3d 346, 351
(recognizing “inherently civil nature of a section 1026.2 proceeding”).)
       Turner argues, without expressly identifying the standard of appellate review in
her briefs, that the evidence at trial was insufficient to justify denying her application.
The People discuss the burden of proof at trial but not the standard of review on appeal.
As noted, we apply an abuse of discretion standard to review the trial court’s
determination under the first step of section 1026.2. (See e.g., People v. McDonough
(2011) 196 Cal.App.4th 1472, 1489-1494 (McDonough) [“In determining whether the
trial court abused its discretion, we look to whether the court relied on proper factors and
whether those factors are supported by the record.”]; People v. Dobson (2008) 161
Cal.App.4th 1422, 1434 [“The trial court’s ruling at this stage [the first-step
determination under section 1026.2] is reviewed for an abuse of discretion.”].)
       Our search has revealed no published cases addressing the standard of review
applicable to a trial court’s determination of the second-step determination. A defendant-


this presumption, the defendant has the burden of proving that it is more likely than not
that: 1 (He/She) is no longer a danger to the health and safety of others because (he/she)
is now taking prescribed medicine that controls (his/her) mental condition; AND 2
(He/She) will continue to take that medicine in an unsupervised environment.]”
                                              15
applicant’s right to a jury trial and section 1026.2, subdivision (k)’s requirement that the
defendant-applicant prove she is no longer dangerous by a preponderance of the evidence
suggests that a substantial evidence standard applies to a review of the trial court’s
second-step determination. (See People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504
[“[T]he substantial evidence standard is . . . used in reviewing any disputed factual
question, whether it arises at trial or otherwise . . . .”]; Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [“When the trial court has resolved a
disputed factual issue, the appellate courts review the ruling according to the substantial
evidence rule. If the trial court’s resolution of the factual issue is supported by
substantial evidence, it must be affirmed.”].) We need not determine which standard
applies because we would reach the same conclusion under either standard.5


       3. The issue at trial was whether Turner was likely to continue taking her
       medication, and thus keep her mental condition in remission, in an unsupervised
       setting

       Under section 1026.2 Turner bears the burden of showing she is no longer a
danger to the health and safety of others due to mental defect, disease, or disorder.
During her entire commitment, Turner has not posed such a danger. She has not been
violent or made any threats, and has for the most part been free of any symptoms of
mental disorder. The record is undisputed that in her present medicated condition, Turner
is not a danger to others. Thus, Turner met her burden under the first prong of
CALCRIM No. 3452 that she is no longer a danger to the health and safety of others
because she is now taking prescribed medicine that controls her mental condition. The



5      Indeed, in cases involving review for abuse of discretion fact-based inquiries, the
abuse of discretion standard is sometimes defined in a very similar manner to the
substantial evidence standard: “whether the court relied on proper factors and whether
those factors are supported by the record.” (See McDonough, supra, 196 Cal.App.4th at
p. 1489 [applying the abuse of discretion standard in reviewing the trial court’s factual
finding under the first prong of section 1026.2].)
                                              16
court concluded that Turner failed to meet her burden on the second prong: whether
Turner established that she will continue to take her prescribed medicine in an
unsupervised environment. (See Williams, supra, 198 Cal.App.3d at p. 1479 [reversing
refusal to give jury instruction that a finding of restoration is warranted if the defendant is
not a danger to others while in a medicated condition and will continue to take
medication in an unsupervised environment].)
       The uncontradicted evidence was that Turner has continued to take her medication
during her entire commitment, including her entire period while under the supervision of
CONREP. All witnesses, including Dr. Salseda, testified that Turner has never indicated
a desire to stop taking the medication. Indeed, Turner has repeatedly expressed her
intention to continue to do so, primarily because she is aware of and desires to avoid the
symptoms that would recur if she stopped.
       In this appeal, we determine whether the court correctly concluded that Turner
failed to meet her burden of showing that she would continue to take prescribed
medicines in an unsupervised environment. Because the evidence upon which this
decision was based involved conflicting expert opinions, we comment on the court’s role
in evaluating expert testimony.


       4. Expert opinion testimony must have a logical link between objective facts and
       the offered opinion

       Most of the trial evidence in this case was expert opinion testimony offered by
both sides. The court must exclude opinions that are based on assumptions without
evidentiary support or on speculative, remote or conjectural factors. (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 (Sargon) [“‘[T]he
matter relied on must provide a reasonable basis for the particular opinion offered, and
. . . an expert opinion based on speculation or conjecture is inadmissible.’”], quoting
Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563; see also Leslie G. v. Perry
& Associates (1996) 43 Cal.App.4th 472, 487 [“‘[W]here an expert bases his conclusion


                                              17
upon . . . factors which are speculative, remote or conjectural, . . . the expert’s opinion
cannot rise to the dignity of substantial evidence.’”].)
       Neither party objected to the opinion testimony offered, and accordingly the court
was not asked to perform a “gatekeeping” role. To a degree, this is understandable,
because although defendant was entitled to a jury, this was a bench trial. Nevertheless as
our Supreme Court explained in Sargon, “under Evidence Code section 801, the trial
court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.” (Sargon,
supra, 55 Cal.4th at p. 770.) In Sargon the Supreme Court affirmed a trial court’s
exclusion of an expert witness’s lost profits calculation as speculative. The Court
explained that matter relied on by the expert “‘must provide a reasonable basis for the
particular opinion offered, and that an expert opinion based on speculation or conjecture
is inadmissible.’” (Ibid.) This process requires the trial court to “determine whether the
matter relied on can provide a reasonable basis for the opinion or whether that opinion is
based on a leap of logic or conjecture.” (Id. at p. 772.) Sargon, to be sure, involved a
very different case from whether a party will continue to take medicine in an
unsupervised environment. But Sargon explained that a decision about the likelihood of
future events underscores the importance of the trial court’s review of evidence:
“Because it is inherently difficult to accurately predict the future . . . it is appropriate that
trial courts vigilantly exercise their gatekeeping function when deciding whether to admit
testimony that purports to prove such claims.” (Id. at p. 781.)
       As mentioned, neither party raised objections below, so our inquiry does not
concern whether evidence should have been excluded. But in considering whether the
expert opinion evidence relied upon is reasonable, credible and of solid value – whether it
is substantial – we are directed by Sargon to inquire into whether the material on which
an expert relies “actually supports the expert’s reasoning. ‘A court may conclude that
there is simply too great an analytical gap between the data and the opinion proffered.’”
(Sargon, supra, 55 Cal.4th at p. 771, quoting General Electric Co. v. Joiner (1997) 522
U.S. 136, 146.)


                                               18
       We discuss below whether such analytical gaps exist. Because Turner may apply
again for restoration one year after denial (see § 1026.2, subd. (j)), if Turner supported
such an application with evidence that she had no recent incidents of dangerous or
menacing conduct toward others, no recurrence of symptoms of mental illness, insight
into her condition, a plausible safety plan, responsible financial management, and was
conscientiously taking prescribed medication, we would expect the People to offer
evidence linking Turner’s objective conduct with the ultimate issue of whether Turner
will have the intention, means, and incentive to continue taking her medicine in an
unsupervised environment. Such evidence might include the specific training and
education CONREP has provided to Turner to prepare her for independent medical and
financial management and the results of a scientifically validated risk assessment.6


       5. We defer to the trial court’s evaluation of the testimony and find, on this
       record, that substantial evidence supports the denial of restoration

       Turning now to the substance of the evidence, the three reasons offered by the
People in the trial for denying Turner’s application were that Turner had not been
financially responsible for medication co-payments, had not exercised good judgment in



6      See, e.g., Monahan et al., Rethinking Risk Assessment: The MacArthur Study of
Mental Disorder and Violence (Oxford University Press 2001) p. 64 [contrary to public
view, diagnosis of schizophrenia associated with a lower rate of violence than patients
diagnosed with depression or bipolar disorder]; Slobogin, Proving the Unprovable: The
Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness
(Oxford University Press 2007) [comparing and discussing limits of clinical and actuarial
prediction methodologies and courts’ receptivity to them]; Singh et al., A Comparative
Study of Risk Assessment Tools: A Systematic Review and Metaregression Analysis of 68
Studies Involving 25,980 Participants in Clinical Psychology Review (2011) [identifying
standard risk assessment tools with higher and lower predictive validity]; Monahan et al.,
An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorders in
Psychiatric Services (July 2005), vol. 56, pp. 810-815 [model combining specific
variables relating to psychiatric inpatients predicted high and low risk for violence with
considerable accuracy].

                                             19
personal relationships, and had not been “engaged,” or sufficiently prompt, in disclosing
information to her therapist.
       The latter two arguments, as applied to the evidence received here, have no
bearing on the likelihood of Turner continuing to take her antipsychotic medications in an
unsupervised setting. In the past, Turner has experienced stress from family members
who have now moved out of state. She was, in Dr. Salseda’s view, unduly generous with
a nephew. She gave a man her phone number, although she did not establish relationship
with him; there is no evidence she so much as talked to him on the phone. None of this
conduct caused any disruption in Turner’s taking of medication or constitutes substantial
evidence that Turner is likely to fail to take her medicine if restored.
       The argument that Turner had been insufficiently engaged with her therapy, as
evidenced by past delays in reporting symptoms or events, is even more amorphous and
attenuated from the issue at hand. None of these incidents affected Turner’s ability to
maintain a regular medication schedule. This argument is also troubling because of what
all witnesses recognized was the inherent conflict in the CONREP relationship with
Turner. Turner is expected to trust her clinician and disclose everything so she can
continue to improve, but CONREP may use whatever she discloses and any perceived
delay in disclosure to her disadvantage. While Dr. Salseda’s testimony on this point may
have indicated that Turner is not a perfect patient, none of the conduct attributed to
Turner indicates that if she is restored she will endanger the community by forgoing her
medicine.
       Turner’s 2013 record of missing six co-payments for her medicine is, however,
relevant to the issue of her continued adherence to her medication regimen. Although
Turner’s missed payments did not affect her ability to receive her medication while in
CONREP, all three doctors agreed that missed co-payments could result in Turner not
receiving her medication, depending on what type of residential and treatment settings
she would choose if restored and released from CONREP. Neither party disputes, and all
witnesses acknowledged, that it is imperative that Turner continues taking her medicine
in order that she not be a danger to herself or others in an unsupervised setting.

                                              20
         Of course, one should not confuse Turner’s poverty with her sanity. After paying
her $20 Medi-Cal co-payment and the fee withheld by the board and care facility it
appears that Turner has one dollar per month left. Turner herself acknowledged that she
had been “lazy” concerning the payments, although there is evidence that she had some
unusual financial problems in 2013 and also that the co-payment amount quadrupled to
$20 per month. At the time of trial Turner testified that she had made the $20 payments
for five months.
         Further, this is an issue that can be resolved in the future, and it appears that, since
she missed her co-payments in 2013, Turner has taken steps to eliminate, or at least
mitigate, the issues that could lead to missed payments once she is released to an
unsupervised environment. Most importantly, she recognizes that continuing to take her
medication is her primary concern in controlling her mental illness, and she understands
that she needs to prioritize her expenses in a manner that will always allow her to pay for
her medication going forward. For example, she has canceled her telephone subscription
to save additional money to ensure that she can make her co-payments in the future.
There was substantial evidence to support the court’s observation that Turner had made
“significant progress toward restoration.”
         Nevertheless, the court was entitled to conclude that Turner’s lapse in making her
co-payments, which was relatively recent and involved more than a single instance of
nonpayment, was sufficient to establish that Turner had not met her burden of proving
that she would likely meet her medical needs if restored. While the court made no
express findings regarding credibility, we defer to the trial court’s assessment of the
witnesses’ testimony and demeanor in evaluating their persuasive power. This is not to
say that if, in a future trial, Turner establishes a consistent record of paying for her
medication, we would view the matter similarly. But that is a matter for the superior
court to consider in the first instance. We cannot say on this record that the court abused
its discretion or that there is an absence of substantial evidence supporting the court’s
order.


                                                21
                                    DISPOSITION


      The order is affirmed.




                                                             IWASAKI, J.*


We concur:




             PERLUSS, P. J.                                  ZELON, J.




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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