Filed 10/14/15 P. v. Adams CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO

THE PEOPLE,                                                          B261641

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA051127)
         v.

JAMES JON ADAMS,

         Defendant and Appellant.



THE COURT:*

         James Jon Adams (defendant) appeals the decision of the Los Angeles County
Superior Court denying his petition, filed under Penal Code section 1026.2,1 to declare
his sanity restored. Appellant has, via appointed counsel, filed a brief asking this court to
conduct an independent review of the record, i.e., a review similar to that required
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and determine if there are
any issues in the record deserving of further briefing. Defendant has also personally filed
a brief asking this court to reverse the trial court’s order denying his petition. We have
reviewed the briefs and the record in the trial court. Based on that review, we affirm the
trial court’s order.

*
         BOREN, P.J.,                           ASHMANN-GERST, J.,                              HOFFSTADT, J.
1        All further statutory references are to the Penal Code unless otherwise indicated.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Defendant and L.H. graduated from the same high school in 1984 but were not
acquainted. Following their 10-year high school reunion in 1994, defendant wrote
several letters to L.H., some of which he dropped off at her church. Some of the letters
expressed his love for L.H., while others asserted that L.H’s father was having an affair
with defendant’s ex-wife, and accused L.H. and others of plotting to take away
defendant’s children. Defendant also made numerous phone calls to L.H.’s home and left
threatening voice messages. L.H. reported the letters and calls to the police. Between
1994 and 2002 she moved three times but defendant was able to obtain her new phone
number and address each time.
       In late 2002, defendant called L.H.’s home and asked where his children were.
One day he showed up at the home and was told to leave by L.H.’s husband. At
3:00 a.m. the following day he broke into L.H.’s home, went to her bedroom, and
charged towards her and her husband. A struggle ensued and he was forced out of the
home. Defendant was standing on the street in front of the home yelling loudly when he
was arrested by the police.
       Defendant, then 36 years old, was convicted of two counts of assault by means
likely to produce great bodily injury (§ 245, subd. (a)(1)), burglary (§ 459), and stalking
(§ 646.9, subd. (a)). Defendant raised a defense of not guilty by reason of insanity. He
introduced evidence that, prior to the charged incidents, he had been hospitalized due to
violent behavior related to delusional beliefs on four occasions: In 1995 he struck his
mother; in 1998 he entered his doctor’s office with a knife; in 1999 he threatened harm to
his father and fought with police officers; and in 2002, after he stopped taking his
medication, he was described as ‘“combative and difficult to handle”’ when found living
in the woods. The jury credited this evidence and found defendant not guilty by reason
of insanity. The trial court committed defendant to Patton State Hospital pursuant to
section 1026 for a term not to exceed 17 years, 4 months.



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       By 2009, defendant was participating in outpatient treatment through the
Gateways Community Conditional Release Program (CONREP).
       On October 25, 2011, he filed an application in superior court for restoration of
sanity pursuant to section 1026.2. Defendant waived his statutory right to a jury trial and
a court trial took place on December 18th and 19th, 2014.
       Defendant called two witnesses. He called Dr. Kory Knapke (Knapke), a forensic
psychiatrist who had examined defendant a total of five times. In 2009, Knapke found
that defendant’s symptoms were in remission. In a report dated May 7, 2012, Knapke
concluded that defendant had been restored to sanity. Knapke examined defendant a
third time on April 4, 2013; on this occasion, Knapke reached the conclusion that
defendant’s sanity had not been restored because defendant told him that the delusions
defendant experienced at the time of the October 2002 crimes involving victim, his ex-
wife, and a relationship between his ex-wife and victim’s father were based in reality. At
that time, Knapke opined, defendant did not appear to be able to “differentiate delusion
from reality.” In response to the court’s inquiries, Knapke testified that it was not clear
what caused defendant’s “decrease in his insight about his illness.” Knapke also testified
that defendant was compliant with his medications during this period, and acknowledged
that not being able to identify the particular stressor that caused defendant’s lapse could
be “risky” in terms of looking to the future and considering restoration of sanity. In his
final two evaluations of defendant—on April 22, 2014, and December 17, 2014, (the day
before the restoration of sanity hearing)—Knapke found that defendant had been restored
to sanity.
       Defendant testified. He acknowledged that he had a mental illness–schizophrenia
paranoid type–for which he takes daily medication. He was aware of the symptoms of
his illness, the triggers that caused them, and how to deal with the symptoms. He had no
desire to contact the victim of his stalking behavior; described his living arrangements if
released; and recounted his intention to continue to seek therapy.



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       The People called Dr. Bentley Hess (Hess), a CONREP outpatient therapist. Hess
worked with defendant for the six months prior to the hearing. She testified that
defendant had made progress but still became argumentative and defensive as recently as
a week ago when discussing his delusions. Hess was concerned that defendant had
recently told hospital staff that he had difficulty accepting his mental illness; had not been
engaging in treatment; was having difficulty in deciphering between his delusional
beliefs and reality; desired to lower his medication; and tended to minimize past events
that led to either his arrests or hospitalizations.
       During its examination of Knapke, the People also elicited evidence that Dr. Mark
Jaffe (Jaffe), a court-appointed doctor, had examined defendant in October 2012. Jaffe
had found defendant had not been restored to sanity and still had active symptoms of
mental illness and still had the same delusional beliefs and paranoia that contributed to
his committing offenses.
       The court denied defendant’s application, concluding that defendant had failed to
meet his burden of proof by a preponderance of the evidence. The court was concerned
because it had not been provided with any explanation for what caused Knapke to change
his opinion in 2013. The court was looking for an explanation that would give it a
“comfort level” that those issues had been addressed, and that it did not need to be
concerned that defendant would present a threat to the community.
       Defendant filed a timely appeal and we appointed counsel to represent defendant
on appeal.
                                        DISCUSSION
       As a threshold matter, we must decide whether to conduct a Wende review in this
case. Wende mandates that the Court of Appeal conduct an independent review of the
record for error on appeal of a criminal conviction. (Wende, supra, 25 Cal.3d at
pp. 441–442.) Our Supreme Court has held that no such review is required on appeal of
the creation of a conservatorship under the Lanterman-Petris-Short Act (Welf. & Inst.
Code, § 5000 et seq.). (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 535 (Ben C.).)

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Our sister appellate courts have extended Ben C. to appeals of other types of civil
commitment, including appeals, like this one, from the denial of a sanity restoration
hearing. (People v. Taylor (2008) 160 Cal.App.4th 304, 308 [no Wende review for
mentally disordered offender proceedings]; People v. Dobson (2008) 161 Cal.App.4th
1422, 1436 [no Wende review of sanity restoration determinations].) Because Ben C.
deals with a different type of commitment and because we are persuaded that our review
of the record appropriately recognizes the importance of the liberty interests at stake, we
elect to conduct Wende review in this case.
       A.     Legal Standards
       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
to determine if the person may be placed in an outpatient program for one year. This first
step is not involved in defendant’s application, because he has been in an outpatient
program under supervision of CONREP since 2009. (§ 1026.2, subd. (f).)
       In the second step of section 1026.2, subdivision (e), the court “shall have a trial to
determine if 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, defendant needs to show that he is not
likely to cause injury or pain or expose himself or others to injury. (Franklin, at
p. 145; People v. Williams (1988) 198 Cal.App.3d 1476, 1480.)
       B.     Standard of Review
       Because we are reviewing the trial court’s determination that the defendant did not
carry his burden to prove his sanity and dangerousness by a preponderance of the

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evidence (§ 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”]), we will review this determination—like any other determination by a fact
finder—for substantial evidence. (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”].)
       C.     The Contentions in Defendant’s Supplemental Brief Lack Merit
       In his supplemental brief, defendant makes three arguments as to why the trial
court erred in denying his section 1026.2 petition.
       First, defendant argues that the verdict was “not supported by a preponderance of
the evidence.” In this regard, he levels three criticisms. To begin, he urges that we
disregard Hess’s testimony because CONREP never recommends patients for release.
We decline to do so. In this case, Hess’s testimony did not reflect any across-the-board
policy; to the contrary, Hess provided a detailed explanation for her opinion—namely,
that defendant was argumentative, was defensive, minimized the severity of his past
transgressions, was not engaging in treatment, and had difficulty accepting his mental
illness as recently as a few weeks prior to the court trial.
       Further, he argues that the number of medical reports in his favor outnumber the
number against him. But this argument puts the quantity of favorable reports over their
content. Relatedly, defendant asserts that the trial court’s ruling is infirm because his
counsel did not introduce the opinion of Dr. Sanjay M. Sahgal (Sahgal), who concluded
that defendant was restored to sanity on May 2, 2013 (approximately three weeks after




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Knapke’s unfavorable report) and on March 12, 2014.2 However, Sahgal’s additional
reports would not have altered the court’s determination. The court rested its ruling in
large measure upon its concern that defendant’s change in sanity—noted by Knapke in
2013—was never explained and thus could suggest a further risk of relapse or danger.
This concern was not sufficiently addressed by the only person who could do so—
Knapke. Neither Sahgal report would have allayed this concern.
       Second, defendant contends his due process and/or speedy trial rights were
violated because the sanity restoration trial was continued indefinitely. Defendant
presents no argument. Even if we assume that speedy trial protections apply in this
context, any due process or speedy trial claim would, as a threshold matter, be premised
upon a showing of prejudice due to the delay. (People v. DePriest (2007) 42 Cal.4th 1,
26.)
       The record indicates that defendant filed his section 1026.2 petition in
October 2011. The court received favorable reports from Sahgal (Jan. 27, 2012) and
Knapke (May 7, 2012), followed by unfavorable reports from Jaffe (Dec. 30, 2012) and
Knapke (Apr. 11, 2013), and finally two additional favorable reports from Knapke
                                                               3
(Apr. 29, 2014, and Dec. 17, 2014). Except on two occasions, the minute orders during
that entire period do not disclose the reason for the numerous continuances that occurred,
and defendant presents no argument on this issue. Because we cannot presume prejudice,
and defendant has not independently established any, his speedy trial/due process claim
fails. (People v. Fernandez (1999) 70 Cal.App.4th 117, 131.) Defendant has suffered no
actual prejudice in any event because an earlier trial would have simply precluded
defendant from being able to offer the later, favorable reports from Knapke.




2      Defendant provided us with Sahgal’s 2014 report, but was unable to produce any
report from 2013.
3     On April 10, 2014, the matter was continued at the request of the defense, and on
September 11, 2014, the matter was continued at the request of CONREP.
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       Lastly, defendant contends that he received ineffective assistance of counsel, that
his counsel’s ineffectiveness was the reason the petition was denied, and that he is
entitled to a new trial with new counsel. (See Strickland v. Washington (1984) 466 U.S.
668, 687 (Strickland).) Strickland requires a showing that, but for counsel’s deficient
performance, it is reasonably probable that the outcome of the proceeding would be
different. (Ibid.)
       Defendant raises three claims of ineffectiveness, all of which fail under Strickland.
He argues that his counsel erred in not introducing the favorable Sahgal reports, but it is
not reasonably probable that their admission would have lead to a different result
because, as noted above, they did not address the trial court’s primary reason for denying
defendant’s petition. Defendant asserts that his counsel failed to exclude Hess from the
courtroom during defendant’s testimony and failed to cross-examine the witnesses
properly, but our review of the transcripts shows no inadequate performance by
defendant’s counsel in either direct examination of defendant and Knapke, or competent
cross-examination of the state’s expert witness, Hess.
                                      DISPOSITION
       The trial court’s order denying defendant’s petition is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




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