Filed 1/27/15 P. v. Diaz CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C075831

                   Plaintiff and Respondent,                                     (Super. Ct. No. MHO0303)

         v.

ELTON JUAN LUIS DIAZ,

                   Defendant and Appellant.




         Thirty-six-year-old defendant Elton Juan Luis Diaz appeals from an order
extending his civil commitment as a mentally disordered offender (MDO). He was
originally committed to a state hospital as an MDO in 2004 following his conviction for
assault with a deadly weapon with great bodily injury for demanding money from a store
clerk, shoving the clerk, and hitting the clerk in the face with his fist. His current
diagnosis was for schizoaffective disorder, bipolar type, which played an “active role in
his behavior, impairing his decision making,” and antisocial personality disorder. He



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also had polysubstance abuse disorder for alcohol, methamphetamine, and marijuana use
that was in remission.
       On appeal, defendant contends there was insufficient evidence that he was
currently dangerous and that his severe mental disorder caused serious difficulty in
controlling dangerous behavior. We conclude the evidence was sufficient and affirm the
trial court’s order extending his commitment.
                                       DISCUSSION
       “ ‘The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires
that offenders who have been convicted of violent crimes related to their mental
disorders, and who continue to pose a danger to society, receive mental health
treatment . . . until their mental disorder can be kept in remission.’ ” (Lopez v. Superior
Court (2010) 50 Cal.4th 1055, 1061, disapproved on another point in People v. Harrison
(2013) 57 Cal.4th 1211, 1230.) “Commitment as an MDO is not indefinite; instead, ‘[a]n
MDO is committed for . . . one-year period[s] and thereafter has the right to be released
unless the People prove beyond a reasonable doubt that he or she should be recommitted
for another year.’ ” (Lopez, at p. 1063.)
       To obtain an extension of one year, the People must prove that: (1) the person
continues to have a severe mental disorder; (2) the person’s mental disorder is not in
remission or cannot be kept in remission without treatment; and (3) because of his mental
disorder, the person continues to represent a substantial danger of physical harm to
others. (Pen. Code, § 2972, subd. (c); People v. Lopez, supra, 50 Cal.4th at p. 1063;
People v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399.) Furthermore, an involuntary
civil commitment requires proof that the person’s mental disorder causes serious
difficulty in controlling dangerous behavior. (In re Howard N. (2005) 35 Cal.4th 117,
122.) A mental health professional “may and should take into account the prisoner’s
entire history in making an MDO evaluation. This includes prior violent offenses as well
as the prisoner’s mental health history.” (People v. Pace (1994) 27 Cal.App.4th 795,

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799.) We review for substantial evidence the MDO findings. (People v. Clark (2000) 82
Cal.App.4th 1072, 1082-1083.)
       Here, there was sufficient evidence of the two elements defendant disputes --
current dangerousness and serious difficulty controlling dangerous behavior caused by a
severe mental disorder. Dr. Michael Glasser, a staff psychiatrist at Napa State Hospital
who treated defendant in 2011 and again in 2013, testified at the bench trial regarding
extending defendant’s MDO commitment. Defendant’s schizoaffective disorder, which
is “not under control,” “plays an active role in his behavior, impairing his decision
making.” His “[i]nsight to the disorder is variable at times,” as he still believes that other
people can read his mind. When asked about how treatment and medication help him,
defendant stated, “ ‘it prevents you [from] acting out.’ ” On some occasions, defendant
has said that “while he’s willing to take his medication, he doesn’t feel he really needs to
take it.” Dr. Glasser believed that this posed the risk that defendant would stop taking the
medication that controlled his schizoaffective disorder and “act[] out,” as defendant put
it, because he did not “fully and completely recognize it’s an absolute necessity” to keep
his disorder under control.
       According to Dr. Glasser, defendant “has a history of medication noncompliance,
so without treatment to monitor his use of medications . . . he has a history of relapsing.”
His history of relapsing included defendant’s long history of substance abuse and mental
illness leading to violent criminality, followed by institutionalization and release into the
community, only to repeat that same cycle. Defendant was a juvenile delinquent for
committing “numerous offenses,” including violating “the rights of others,” and
eventually ended up in the California Youth Authority after unsuccessful placements with
his family and group homes. He was diagnosed with schizophrenia at age 17. He has
“ ‘behaved violently in virtually every setting in which he has lived.’ ” For example,
while released on probation in a community residential program in 2012, defendant “was
physically menacing and had verbal altercations with the female [b]oard and [c]are

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operator and select peers” and was not “forthright” with his therapist “when confronted
about these incidents.” Within less than a year of being placed on probation, he was
found “ ‘hanging out at a tattoo parlor,’ ” smelling of alcohol, and irritated and agitated.
Upon returning to the state hospital, defendant had a brief stay on a less restrictive unit,
but was returned to a locked unit for “difficulties attending his treatment activities.”
       Dr. Glasser believed that “based on [defendant’s] history,” “chances are not good
that he would continue to follow through with expectations of medication and treatment
unless supervised carefully.” And defendant currently was only in a level 2 ward, which
meant that the medications he needed to take both in the morning and at night to control
his schizoaffective disorder were administered in a supervised setting and were being
crushed so he would not sell them or divert them in another way (like snorting or
injecting them). Only when defendant reached level 3 (which he had not) would he be
allowed to take pills intact, demonstrating responsibility and a “critical step . . . in their
transition . . . to the community.”
       This evidence was sufficient that defendant’s schizoaffective disorder made him
currently dangerous and that he had serious difficulty controlling dangerous behavior
caused by a severe mental disorder.
                                        DISPOSITION
       The order is affirmed.


                                                           ROBIE                  , J.
We concur:



      HULL                   , Acting P. J.



      MAURO                  , J.


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