Filed 12/10/13 P. v. R.A. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057108

v.                                                                       (Super.Ct.No. FELSS1104808)

R.A.,                                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Katrina West,

Judge. Affirmed.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Marilyn George and Meagan

J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
          Defendant R.A. challenges the trial court’s order continuing his involuntary

treatment as a mentally disordered offender (MDO). He contends the trial was untimely,

violating his due process right to a fair trial; he was not advised of his right to a trial by

jury; and the evidence was insufficient to support the court’s finding. We disagree and

affirm.

                       I. PROCEDURAL BACKGROUND AND FACTS

          On October 20, 2011, the San Bernardino County District Attorney’s office filed a

petition for commitment as an MDO pursuant to Penal Code1 section 2970 et. seq. (the

Petition). The Petition alleged that defendant was presently a patient at Patton State

Hospital (PSH), was born in 1961, and his maximum commitment date was February 25,

2012. Attached to the Petition were the declaration of Deputy District Attorney Diane M.

Harrison, the recommendation of PSH Medical Director George Christison, M.D., and

the evaluation of Ai-Li Arias, M.D. Ms. Harrison declared that, based upon her review of

the evaluation and recommendation, defendant “has a severe mental disorder,” not in

remission, which caused him to represent a “substantial danger of physical harm to

others.” The nature of the “severe mental disorder” was not specified. However,

defendant was described as exhibiting such symptoms as agitation, paranoia, and poor

insight.

          In her evaluation attached to the Petition, Dr. Arias summarized defendant’s

history, noting his initial commitment on November 15, 1993, pursuant to section 1026,

          1   All further statutory references are to the Penal Code unless otherwise indicated.

                                                 2
following charges that he had threatened to “torch” his family’s home. (§ 422.)

Defendant was conditionally released on August 15, 1995; however, his release was

revoked approximately one year later for using methamphetamine, being absent without

leave, failing to make a scheduled appointment with his clinician, and making threats

against his mother. He was again released in May 1998, but his return to abusing illicit

substances and an attack on a deputy sheriff led to his being hospitalized at PSH in

August 2000. On March 1, 2001, defendant was convicted of assault with a deadly

weapon and resisting an officer, for which he was sentenced to three years in state prison.

After five months, defendant was transferred to PSH, where he stayed until November 4,

2002, when he was discharged to outpatient treatment. He resumed his work as a pipe

fitter, living with his parents until 2004, when he committed and was convicted of

violating section 368, subdivision (b)(1). Upon learning that he was to return to a mental

health facility, it was reported that defendant threw a computer into the fireplace and

struck both of his parents. On January 3, 2008, defendant was transferred from prison to

Atascadero State Hospital (ASH) pursuant to section 2684, subdivision (a), for acute

depressive symptoms and self-destructive impulses. Eight months later, he was found to

meet the criteria for treatment by the Department of Mental Health as a condition of

parole. On January 22, 2009, the San Luis Obispo County Superior Court decertified

defendant as an MDO and ordered him released.2 He was discharged from ASH on


       2 Defendant requests augmentation of the record to include documentation from
the San Luis Obispo County Superior Court regarding its order decertifying him as an
                                                                 [footnote continued on next page]

                                             3
January 27, 2009. However, effective February 24, 2009, defendant’s parole was

suspended and he was returned to prison. On March 11, he was reinstated on parole. On

June 24, 2009, defendant’s mother reported that he had called her and “seemed

incoherent.” He was arrested and charged with violating a condition of parole that

prohibited contact with any victims, including his mother. Parole was revoked on

July 22, 2009, and he was re-admitted to ASH on November 30 following his

recertification as an MDO. His controlling discharge date was set for February 25, 2012.

        On October 28, 2011, counsel was appointed to represent defendant. On

December 13, 2011, the parties stipulated and the court ordered the release of relevant

records from the California Department of Corrections and Rehabilitation, including

defendant’s mental health and medical records, to both parties. Multiple hearings were

scheduled, continued, and rescheduled over a period of 10 months. Defendant was not

present at any of these hearings, including the one when his counsel waived his right to

trial prior to his discharge date of February 25, 2012. Because of the delays, on

August 2, 2012, the medical director at PSH submitted a request for another petition for

continued involuntary treatment through February 25, 2014. Attached to the request was

a report by Dr. Steven Berman, a psychologist, who observed that defendant “has a

severe mental disorder” that is not in remission. Again, the nature of the “severe mental



[footnote continued from previous page]

MDO. The People oppose the request. We grant it and order the record augmented with
the four pages attached to the request.

                                             4
disorder” was not disclosed; however, defendant’s symptoms included agitation,

paranoia, poor insight, social withdrawal, and affective volatility.

       On August 29, 2012, trial on the Petition commenced. Defense counsel moved to

dismiss the Petition based on the fact that defendant was not personally notified or

brought to court within the statutory time limits of section 2970, and that he was denied

his due process rights. The motion was denied. The following evidence was presented to

the trial court: Defendant testified that he was 50 years old and being housed at PSH. He

admitted that he had a mental illness and was diagnosed with Schizo-Affective Disorder,

and depression; however, he insisted that his disorder was all due to substance abuse, i.e.,

when he does not use drugs or abuse alcohol, he does not have psychotic symptoms. He

described past crimes dating back to when he was 16. He also admitted punching his

mother, who was 66, and his father, who was 70, throwing their computer into the

fireplace, and running naked into the woods. This occurred after he drank too much beer,

too many energy drinks, and Claritin medication. He claimed that most of his violence

occurred when he was under the influence of controlled substances, and when he is sober

he does not have violent outbursts.

       Dr. Arias opined that defendant suffers from a severe mental disorder “described

in the psychotic spectrum.” “He has a lot of psychotic symptoms including auditory

hallucinations, delusions that have religious, persecutory, grandiose, and bizarre themes

in the past. He also has a lot of anxiety, a lot of paranoia about other people in general,

including patients and staff. [¶] He has also shown a lot of mood volatility in that he’ll


                                              5
be calm and blow up for no reason if requested to do something simple like hold up his

arm for blood pressure.” According to Dr. Arias, defendant has a delusional belief that

he is not an MDO, despite having been recertified as such in November 2009. In spring

2012, defendant threatened to kill his psychiatrist. In May 2012, he yelled at staff for

perceived threats to himself. He thought the hospital staff was trying to kill him.

Dr. Arias described defendant as being “quite psychiatrically unstable” and not in

remission, as evidenced by recent episodes of agitation, verbal abuse towards staff for

denying his requests, and threats to his psychiatrist.

       Dr. Arias’s report noted that defendant’s criminal history included arrests and/or

convictions for receiving stolen property, battery, showing false identification to a peace

officer, criminal contempt, petty theft, grand theft auto, assault with a deadly weapon,

spousal abuse, trespassing, vandalism, threatening crime with intent to terrorize, and

injury to an elder person likely to cause great bodily injury or death. He failed multiple

times to comply with parole and other conditional releases. In the months before the

hearing, defendant’s symptoms had quieted; however, he remained psychiatrically

unstable. Dr. Arias testified that defendant does not follow his treatment plans because

he fails to participate meaningfully in group therapy, continues to attempt to obtain

Sudafed in order to get high, and he has a history of hoarding pills so that he can later

crush and snort them to achieve a high. Defendant was diagnosed with Schizo-Affective

Disorder. The doctor opined that in an unsupervised setting, where multiple stressors

could exacerbate his symptoms, defendant would be unable to control his disorder


                                              6
because he was unlikely to use his medications appropriately given his poor insight into

his mental illness.

       According to Dr. Arias, while defendant understands that using illegal substances

and drinking alcohol will exacerbate his mental disorder, “he perseverates in his denial

that he actually has a primary psychotic disorder [which] prevents him from

understanding the gravity of the situation, and that he must stay away from abusing even

legal medications that are used typically for colds and allergies.” Given the actions that

led to his last arrest, Dr. Arias opined that defendant represents a substantial danger of

physical harm to others. Dr. Arias further reported that prior to the underlying offense,

defendant was talking with God all day, drank a six-pack of beer combined with Red

Bull, and took more than two days’ worth of Claritin. The resulting intoxication

“exacerbated his Schizo-Affective Disorder,” causing him to become violent, punch both

of his parents in the face, ransack their house, and set it on fire. When the police arrived,

defendant was “running around in the forest naked behind his parent[s’] residence,”

yelling incoherently “something about they are killing his babies.” He also had delusions

that he was born in 1960 instead of 1961, and was kept in a freezer for one year;

grandiose delusions that he was Richard the Lionhearted; and delusions that his cell

mates killed people and ate their body parts.

       Dr. Arias noted that at one point, a psychopharmacology consultant diagnosed

defendant as having “Substance Induced Psychotic Disorder.” Once the underlying

psychotic disorder emerged, it did not go away; rather, it persisted without substance use.


                                                7
The doctor was aware of studies that showed some effects of chronic use of

methamphetamine can cause lifetime mental illness; however, she noted that defendant

tends to improve when on a therapeutic dose of antipsychotic medication. Defendant had

recently agreed to take Abilify, an antipsychotic medication; however, previously he

“only wanted to take an anti-depressant because he’s firm in his belief that his only

problem is depression for being hospitalized at [PSH].” Dr. Arias opined that defendant

was not in remission, because he continued to have “a lot of underlying paranoia, mood

volatility, delusional beliefs, and very poor insight,” and he posed a substantial danger of

physical harm to others because he “continues to have ongoing symptoms of a severe

mental disorder, which impairs his . . . perception of reality, and leads to poor judgment

and behavior.” The doctor added that historically when defendant decompensated and

had active symptoms of his severe mental disorder, he became impulsive and aggressive

and caused injury to others.

       At the close of the hearing, the trial court observed that defendant had improved

since he had been on the antipsychotic medication; however, the court found that

defendant continues to suffer from a severe mental disorder that is not in remission and

cannot be kept in remission without continued treatment. The court concluded that

because of his severe mental disorder, defendant represents a substantial danger of

physical harm to others, and thus, it extended his commitment to February 25, 2013, or

until further order of the court. Defendant appeals.




                                             8
                                II. DUE PROCESS RIGHTS

       Defendant begins by arguing that his fundamental due process rights were violated

in these proceedings.

       A. Right to Speedy Trial

       Defendant faults both the trial court and his counsel for failing to advise him of his

right to a speedy trial. Moreover, he claims the trial court erred in denying his motion to

dismiss for lack of a speedy trial.

       Recognizing that MDO proceedings are civil in nature, defendant bases his claim

not on the Sixth Amendment’s speedy trial guarantee, but on statutory law and the

constitutional right to due process. (See generally People v. Williams (2003) 110

Cal.App.4th 1577, 1590 [“MDO commitment proceedings are civil in nature and

therefore defendants presented with possible commitment do not enjoy the constitutional

rights accorded criminal defendants”].) By statute, a hearing on a petition to extend an

MDO’s commitment should be held at least 30 days prior to his or her scheduled release

date. (§ 2972, subd. (a).) However, “th[is] 30-day trial deadline . . . ‘is directory and not

mandatory,’ and ‘is primarily designed to serve the interests of the public, rather than the

MDO, by providing reasonable assurance that an MDO . . . will not be released unless

and until a determination is made that he or she does not pose a substantial danger to

others.’ [Citation.] A trial commenced less than 30 days before an MDO’s scheduled

release date is not automatically invalid, nor does the trial court lose jurisdiction if trial




                                               9
commences after the deadline has passed.” (People v. Noble (2002) 100 Cal.App.4th

184, 188, quoting People v. Williams (1999) 77 Cal.App.4th 436, 451, 454.)

       It does not appear that defendant is arguing that the continuances of the trial

prejudiced him. On this record, they did not. Nonetheless, defendant claims that the

failure “to bring the matter to trial within the maximum time allowed was error.” Even if

we assume that error exists, defendant has not explained how he was prejudiced by this

error, other than to claim “[a]n extensive delay should be presumed prejudicial.” The fact

that section 2972, subdivision (a), is directory rather than mandatory means that the delay

in bringing the matter to trial is not reversible error in the absence of prejudice. (Cal.

Const., art. VI, § 13; see People v. Williams, supra, 77 Cal.App.4th at pp. 446-447.)

Having failed to show prejudice, his claim must fail and the assumed error is not

reversible.

       B. Right to a Jury Trial

              1. Waiver by counsel

       Defendant acknowledges this court has previously held that an attorney may waive

the client’s right to a jury trial in MDO and other civil commitment proceedings. (See

People v. Montoya (2001) 86 Cal.App.4th 825, 830 [Fourth Dist., Div. Two] (Montoya).)

However, he argues that the case is distinguishable and asks us to reconsider our holding.

Citing People v. Allen (2008) 44 Cal.4th 843, he insists that even though the right to a

jury trial granted in civil commitment proceedings is statutory, the potential for

deprivation of liberty implicates his constitutional due process rights.


                                              10
       An MDO proceeding is a special proceeding of a civil, rather than a criminal,

nature. (People v. Fisher (2009) 172 Cal.App.4th 1006, 1013.) It does not implicate all

of the constitutional and procedural safeguards afforded to criminal defendants. (People

v. Beeson (2002) 99 Cal.App.4th 1393, 1407 [Fourth Dist., Div. Two].) “Generally in

civil cases, an attorney has ‘complete charge and supervision’ to waive a jury.

[Citations.]” (People v. Otis (1999) 70 Cal.App.4th 1174, 1176 (Otis).) In Otis, the court

specifically held that section 2966, subdivision (b) does not require personal waiver by

the defendant. That subdivision (b) states in part: “The trial shall be by jury unless

waived by both the person and the district attorney.” (§ 2966, subd. (b).) However,

“nothing in the requirement that the waiver must be by ‘the person’ precludes the

person’s attorney from acting on his behalf. The Legislature did not say the waiver had

to be made ‘personally.’” (Otis, supra, at p. 1176.) “Section 2966 concerns persons who

have been found by the Board of Prison Terms to be mentally disordered. The

Legislature must have contemplated that many persons, such as Otis, might not be

sufficiently competent to determine their own best interests. There is no reason to

believe the Legislature intended to leave the decision on whether trial should be before

the court or a jury in the hands of such a person. That the Legislature specified a waiver

of time could be by the petitioner ‘or his or her counsel’ does not lead us to conclude in

the context of this statute that the petitioner must personally waive a jury.” (Id. at p.

1177.) We continue to agree with the analysis in Otis and in this court’s opinion in

People v. Montoya, supra, 86 Cal.App.4th at pages 831-832.


                                              11
       Nonetheless, defendant asserts that our state’s highest court has “acknowledged its

reliance on a balancing of the four factors identified in Morrissey v. Brewer [(1972)] 408

U.S. 471, to determine what due process is required. (Allen, supra, 44 Cal.4th at pp. 862-

870.)” Thus, he claims that a “new assessment of the situation presented in Montoya” is

required. The relevant factors identified in People v. Allen, are: “‘(1) the private interest

that will be affected by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; (3) the government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail; and (4) the dignitary interest in informing the

individuals of the nature, grounds, and consequences of the action and in enabling them

to present their side of the story before a responsible government official. [Citation.]’

[Citation.]” (People v. Allen, supra, 44 Cal.4th at pp. 862-863, fn. omitted; see also

People v. Otto (2001) 26 Cal.4th 200, 210.) However, defendant makes no attempt to

balance the applicable factors. The first factor (the individual’s liberty interest) weighs in

favor of affording all reasonable procedures to guard against erroneous deprivation of

liberty interests. “[T]he fact that the interests involved in involuntary commitment

proceedings are fundamental enough to require a jury trial does not lead ineluctably to the

conclusion that the waiver of a jury trial in such proceedings must be personal as in

criminal prosecutions.” (People v. Rowell (2005) 133 Cal.App.4th 447, 454.) The

second (the risk of erroneous deprivation of the private interest and the value of substitute


                                             12
procedural safeguards) and third (governmental interests) factors weigh in favor of

vesting the waiver of jury trial with the attorney rather than allowing the defendant to

overrule the attorney’s tactical decision. The fourth factor (the dignity interests of a

person subject to involuntary commitment) also does not weigh in favor of allowing the

individual to overrule counsel’s decision to waive a jury trial. The dignity interests of

being informed of the nature, grounds, and consequences of the action (MDO

commitment), and in enabling the defendant to present his or her side of the story are not

affected by permitting counsel to waive the defendant’s jury trial right.

       Regarding this court’s “discussion of the courts’ presumptions about the abilities

of various defendants,” we decline the invitation to proliferate meta-proceedings, or

trials-within-trials, on the nuances or levels of defendant’s mental capacities. As we

stated in Montoya, “Although it is certainly conceivable, as defendant suggests, that a

patient might be mentally disordered for some purposes and not for others, it is

particularly difficult to sort those categories out in a case of schizophrenia, as all of the

doctors testified.” (Montoya, supra, 86 Cal.App.4th at p. 831.) Neither do we mean to

single out schizophrenia. “For whatever reasons (drug damage, inherited characteristics,

other mental illnesses), defendant’s mind, as even his attorney admitted, did not function

normally.” (Ibid.) Defendant has long suffered from poor judgment and aberrant and

dangerous behavior: he has already numerous times been adjudged an MDO who is not

in remission. As in Montoya, “there was no reason to believe that defendant was capable




                                              13
of making a reasoned decision about the relative benefits of a civil jury trial compared to

a civil bench trial,” (ibid., fn. omitted) regardless of state of mind.

       In People v. Cobb (2010) 48 Cal.4th 243 (Cobb), the Supreme Court held that

because the time limits in the MDO statute, section 2960 et seq. are not jurisdictional,

when, without good cause or a time waiver, a trial to extend a defendant’s one-year

commitment under that statute does not begin before the defendant’s scheduled release

date, the defendant may be entitled to release pending trial. (Cobb, supra, 48 Cal.4th at

p. 252.) However, no other relief is available to the defendant when the statutory time

limits for filing an extension petition or for commencing trial on that petition are violated.

(Id. at p. 253.) No remedial action need be taken if the defendant suffered no prejudicial

harm. (People v. Lara (2010) 48 Cal.4th 216, 235-236.) As previously noted, defendant

has not suggested any actual harm to himself other than the length of the delay and the

failure to allow defendant to exercise his right to a jury trial. However, according to the

record before this court, the proceedings were fundamentally fair. Absent evidence to the

contrary, no remedial action is necessary.

       An MDO defendant does have legitimate due process interests in the fairness of

the proceedings. However, it is fully consistent with due process in such special civil

proceedings to permit counsel to waive a jury trial, regardless of the defendant’s personal

objection.




                                               14
              2. Failure to advise of right

       Pursuant to section 2972, subdivision (a), the trial court was required to advise

defendant of his right to a jury trial. The statutory language is couched in mandatory

terms. The record does not affirmatively show that the trial court fulfilled this duty;

nothing in the record indicates the trial court or counsel gave the mandatory jury trial

advisement. Nonetheless, the record shows that defense counsel waived such right on

behalf of defendant. Because the right to a jury trial in MDO proceedings is granted by

statute, we review any violation under the harmless error standard of People v. Watson

(1956) 46 Cal.2d 818, 836. (See People v. Wrentmore (2011) 196 Cal.App.4th 921, 928-

929 and People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1275-1276 [Fourth Dist., Div.

Two] [wrongly denying a jury trial to an MDO was held harmless under Watson].)

Under that standard, it is not reasonably probable that defendant would have achieved a

more favorable result in the absence of the error. Even if the trial court had properly

advised defendant of his statutory right to a jury trial, defendant’s attorney could have

waived that right, even over defendant’s objection.

                           III. SUFFICIENCY OF EVIDENCE

       Defendant contends the trial court erred in finding he should remain committed as

an MDO because there was insufficient evidence that the mental disorder that caused or

was an aggravating factor in the predicate offense was the same as that for which he had

been treated and which the People’s expert claimed was not in remission.




                                              15
       Under the MDO Act, “[a]s a condition of parole, a prisoner may be designated and

civilly committed as an MDO for involuntary treatment of a ‘severe mental disorder’ if

certain conditions are met. [Citations.]” (People v. Allen (2007) 42 Cal.4th 91, 99, fn.

omitted.) Once an initial MDO commitment is established, before that period expires,

“the district attorney may petition to extend that commitment by one year. [Citation.]”

(Ibid.) If it is extended, “the district attorney may file subsequent petitions to [further]

extend the MDO’s commitment in one-year increments. [Citations.]” (Id. at p. 100.)

       In order to extend an MDO’s commitment by one year, “the medical director of

the state hospital, the community program director, or the Director of Corrections first

‘shall submit’ to the district attorney a written evaluation of the prisoner ‘[n]ot later than

180 days’ before the prisoner’s termination of parole or release, ‘unless good cause is

shown’ for delay. [Citation.] If the district attorney files a petition for continued

involuntary treatment for one year [citation], the trial court will hold a hearing on the

petition, and the trial ‘shall commence no later than 30 calendar days’ before the time the

prisoner would have been released, ‘unless the time is waived by the person or unless

good cause is shown.’ [Citation.]” (People v. Allen, supra, 42 Cal.4th at p. 99.)

       At the MDO recommitment hearing, the People must prove beyond a reasonable

doubt that: (1) the parolee continued to have a severe mental disorder; (2) the mental

disorder was not in remission or could not be kept in remission without treatment; and (3)

by reason of the mental disorder, the parolee continued to represent a substantial danger




                                              16
of physical harm to others. (§§ 2962, subds. (a) & (d)(1), 2972, subd. (e); People v.

Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837.)

        The same standard of review used in determining a claim of insufficiency of the

evidence in a criminal case applies to appellate review of mentally disordered offender

proceedings. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) “We consider the

entire record in the light most favorable to the judgment and must affirm if there is any

substantial evidence supporting the finding. [Citations.]” (People v. Valdez (2001) 89

Cal.App.4th 1013, 1016.) A single opinion by a psychiatric expert that the defendant is

currently dangerous due to a mental disorder can constitute substantial evidence to

support the extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th

1151, 1165.)

        An expert may generally base his or her opinion on any “matter,” personally

known or made known to him, whether or not admissible, “that is of a type that

reasonably may be relied upon by an expert in forming an opinion upon the subject to

which his testimony relates . . . .” (Evid. Code, § 801, subd. (b).) “Psychiatrists, like

other expert witnesses, are entitled to rely upon reliable hearsay, including the statements

of the patient and other treating professionals, in forming their opinion concerning a

patient’s mental state. [Citations.] On direct examination, the expert witness may state

the reasons for his or her opinion, and testify that reports prepared by other experts were

a basis for that opinion. [Citation.]” (People v. Campos (1995) 32 Cal.App.4th 304, 307-

308.)


                                             17
       Defendant first notes the Petition failed to identify the specific mental disorder at

issue. However, he does not argue that such failing has prejudiced him. Rather, he

attacks the trial court’s ruling, claiming that it “did not clearly indicate it found the

mental illness ongoing and not in remission.” (Underlining in original.) Citing People v.

Garcia (2005) 127 Cal.App.4th 558, pages 565 through 567 [Fourth Dist., Div. Two] (the

People sought an MDO extension with evidence of a new mental disorder different from

the one which defendant had been receiving treatment and had been declared to be in

remission), defendant argues the People failed to produce substantial evidence of the

identity of the mental disorder. The People agree that “the medical and procedural

history in this matter was not set forth as straight-forwardly as one would like.”

However, they argue that “a rational fact-finder could and did find that [defendant] was

tormented by a continuing severe psychotic mental disorder, and that his Schizo-

Affective Disorder caused or was an aggravating factor in his physical abuse of his

parents, and that he remained a danger to the public.” We agree with the People.

       Only two people testified at the hearing: defendant and Dr. Arias. During

defendant’s testimony, defendant stated that his psychosis is mostly drug induced and his

violent behavior and delusions occur when he is under the influence of substances. He

agreed he had a mental illness; however, he opined it was related to his drug use. He

pointed out specific incidents involving criminal behavior and explained they were

related to his drinking alcohol or taking illegal substances. He attributed his depression




                                               18
to being hospitalized. Overall, he did not believe he fit the criteria for MDO commitment

because he has a drug problem rather than a mental illness.

       Both witnesses noted defendant’s extensive criminal record, which included

arrests and/or convictions for receiving stolen property, battery, criminal contempt, petty

theft, grand theft auto, assault with a deadly weapon, spousal abuse, trespassing,

vandalism, threatening a crime with intent to terrorize, and injury to an elder person

likely to cause great bodily injury or death. In addition, while committed as an MDO,

defendant threatened to kill his psychiatrist and yelled at staff for perceived threats to

himself. According to Dr. Arias, defendant’s history of violent crime posed a severe

danger to others. He had suffered from a severe mental disorder for many years. His

psychosis included breaks from reality, auditory hallucinations and delusions with

religious, persecutory, grandiose, and bizarre themes. During the year prior to the

hearing, defendant’s moods were volatile. He reacted negatively and aggressively in

response to perceived fear when there was no actual danger present. Although defendant

was taking medication, Dr. Arias believed he continued to remain threatening and

unpredictably volatile in unexpected situations. She opined that defendant remained a

danger because of his belief that he does not have a mental illness or a substance abuse

problem, does not need antipsychotic medications, and continues to seek any drugs with a

stimulant effect.

       In contrast to the facts in People v. Garcia, supra, 127 Cal.App.4th 558, here the

People presented documentation from PSH that defendant had a severe mental disorder


                                              19
(initiating his commitment in 1993) for which he was continuously treated, with the

exception of the period between January and November 2009 when he was decertified as

an MDO. The documents described the continuing symptoms defendant exhibited over

the years since his elder abuse offense in 2004, and continuing through the time of the

filing of the Petition. These symptoms were consistent with his diagnosis of Schizo-

Affective Disorder. Dr. Arias’s testimony constituted overwhelming evidence to support

a finding that defendant posed an unreasonable risk of harm to others due to his mental

disorder, specifically, Schizo-Affective Disorder. Defendant failed to present an expert

to testify that he was not currently dangerous. Nor did he present evidence that

contradicted or impeached Dr. Arias, or suggested her testimony was merely speculative.

Rather, he testified as a witness for the People and conveyed his own opinion that he did

not suffer from a mental illness, but a drug problem.

       Ultimately, the evidence supporting defendant’s extended MDO commitment

consisted entirely of the testimony of the expert witness, whom the court found to be

credible. We must accord due deference to the court’s evaluation of credibility. (People

v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083 [Fourth Dist., Div. Two].) Thus,

viewing the evidence in the light most favorable to the People, we conclude that there

was more than enough evidence to support the extension of defendant’s commitment.

                      IV. DEFENDANT’S STATUS SINCE 2009

       Defendant contends the evidence presented at the hearing focused on events and

conditions prior to the January 2009 trial, at which defendant was found to be in


                                            20
remission and not a danger to society. He faults the People for failing to offer

information of his behavior post-2009. Basically, defendant claims that the single finding

in January 2009 that he was not an MDO was insufficiently rebutted at this hearing, and

the judgment should be reversed. We disagree.

       According to the record before this court, there were significant current conditions

“materially” different from those in 2009 to support the finding that defendant fit the

description of an MDO. Dr. Arias’s report noted that in June 2009, defendant called his

mother and was “‘rambling and seemed incoherent and was located in a cave in San

Diego.’” In July 2009, defendant was admitted to a “Mental Health Care Bed . . . for

suicidal ideation.” He was deemed a “‘danger to himself and others’ for ‘banging his

head against the wall.’” While incarcerated at the Correctional Treatment Center in

September 2009, defendant assaulted his cell mate for allegedly “‘badmouthing his

girlfriend.’” On November 29, 2009, defendant was again found to be an MDO. In

August 2010, defendant “charged at the Unit Supervisor” at Atascadero. Less than one

month later, he was “‘involved in an aggressive act toward [a] peer’” and placed in

seclusion. When the treating psychiatrist confronted him about possessing contraband,

defendant “‘became enraged (violent posturing to hit) and threatening to his psychiatrist

(“I will kill that bitch”).’” Defendant refused to take his medications; however, he would

hoard certain medications for the purpose of crushing and “snorting” them in an attempt

to get high. While committed at ASH, defendant refused to attend group therapy. While

he did attend group therapy at PSH, he refused to participate in a “30-day Social Work


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Assessment” for June 2011. Dr. Arias noted that defendant exhibited signs and

symptoms of his severe mental disorder, was physically violent towards others,

threatened others, and refused to follow his treatment plan. She testified to the above at

the hearing.

       On June 14, 2012, a second report was completed by Dr. Anca Chiritescu, M.D.,

and senior supervising psychologist, Steven Berman. Although it incorporated much

from the earlier report, it did add a notation that defendant had, according to records,

“experienced symptoms of his severe mental disorder in the absence of substance

intoxication or withdrawal and that these symptoms are not due to the direct

physiological effects of a general medical condition.” It was noted that defendant “has

been rendered a diagnosis of Amphetamine induced psychosis in the past,” but that the

present evaluators felt further psychological testing should be conducted in light of “his

continued Axis I symptoms.” The nature of the “severe mental disorder” was not

specified or identified; however, defendant’s signs and symptoms included “agitation,

paranoia, poor insight, social withdrawal, and affective volatility.”

       According to the report, defendant exhibited displays of verbal anger and was seen

muttering to himself that the “‘meds are no good’” and the doctor was “‘against’” him.

Delusions were identified based on defendant’s expressed belief that he did not have a

mental illness beyond depression and that his commitment was illegal. Defendant was

reportedly “becoming more psychiatrically stable on his current psychotropic




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medications,” but the doctors were cautious given his earlier behavior and statements,

refusal of medication, and failure to attend groups at ASH.

       Defendant failed to acknowledge his severe mental disorder. He claimed that his

actions were the result of his drug use, pointing out that a psychopharmacology

consultant had previously diagnosed him as having Substance Induced Psychotic

Disorder. Again, the doctors had noted this diagnosis; however, they opined that once

the underlying psychotic disorder emerged, it did not go away; rather, it persisted without

substance use.

       Given the above, the evidence was more than sufficient to show that defendant’s

mental condition had materially changed since January 2009. Defendant suffered a

severe mental disorder (Schizo-Affective Disorder) which was not in remission or

capable of being kept in remission, which caused him to be a physical danger to the

public, and which he had been treated for at least 90 days in the prior year.

                                      V. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                HOLLENHORST
                                                                                         J.
We concur:

       RAMIREZ
                               P.J.

       MCKINSTER
                                 J.


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