Opinion
F084636
05-03-2024
THE PEOPLE, Plaintiff and Respondent, v. CORD WILLIAM CURTIS, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. SC067901A, Therese M. Foley, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Appellant Cord William Curtis was charged with kidnapping, kidnapping a person under 14 years of age, multiple counts of forcible lewd and lascivious acts on a person under 14 years of age, and sale of marijuana to a minor in 1996. He was found not guilty by reason of insanity and committed to the Department of State Hospitals (DSH) for mental health treatment. In 2019, appellant sought a conditional release by filing a petition for restoration of sanity, which was denied.
Appellant argues he met the burden of establishing, by a preponderance of the evidence, that his release under supervision would not pose a danger to the health and safety of others. Appellant argues this court should review the denial of his petition for substantial evidence, or, alternatively, the court abused its discretion when denying the petition. Appellant further argues the superior court's comments regarding appellant's failure to testify deprived appellant of his statutory privilege against self-incrimination and equal protection under the law. We affirm.
PROCEDURAL HISTORY
In an information filed on September 27, 1996, the Kern County District Attorney charged appellant with kidnapping (Pen. Code, § 207, subd. (a); count 1), kidnapping of a person under 14 years of age (§ 208, subd. (b); count 2); forcible lewd or lascivious acts on a person under 14 years of age (§ 288, subd. (b); counts 3-10), and unlawful sale of marijuana to a minor (Health &Saf. Code, § 11361, subd. (a); count 11). The information further alleged appellant used a deadly or dangerous weapon in commission of counts 1 and 2, as well as numerous other enhancements.
Further undesignated references to code are to the Penal Code.
On April 7, 2000, appellant was deemed not guilty by reason of insanity on all counts, and committed to the custody of the DSH for treatment. Appellant's term of commitment was life, with a minimum of 180 days. Appellant has resided at DSH- Coalinga since 2016.
On December 10, 2019, pursuant to section 1026.2, subdivision (a), appellant filed a petition for restoration of sanity. The petition was denied on July 12, 2022. This appeal follows.
STATEMENT OF FACTS
Commitment Offense
The facts of the commitment offense are taken from the partially redacted assessment report submitted to the court on March 13, 2022, pursuant to section 1026.2, subdivision (b).
"[Appellant] encountered an 11-year-old boy while driving and forced him into the vehicle at knifepoint. He drove the victim to a condominium in the Palm Springs area. Once there, [appellant] handcuffed the boy to a bed and committed acts of sodomy and oral copulation. He threatened to kill the boy while holding the knife to his neck. The following day, [appellant] drove the victim to a bus station in Los Angeles and released him...."
Assessment Report
Dr. Stephen G. Davis prepared the assessment report submitted to the court. The report was admitted as an exhibit at the outpatient placement hearing.
The report summarized appellant's history. Appellant has been diagnosed with dissociative identity disorder (DID), posttraumatic stress disorder and "[o]ther [s]pecified [p]ersonality [d]isorder." Appellant was found not guilty by reason of insanity as a result of the role his DID played in the commitment behavior. Appellant had been dissociating since the 1960's and his most recent period of dissociation or amnesia was in 2014-2015.
Appellant entered the DSH-Coalinga sex offender treatment program (SOTP) upon his arrival at the hospital and sought transfer to the hospital for the program. At the time of the report, although appellant continued to participate in groups and completed an interpersonal relationship skills group in November 2021, appellant declined any sex offender treatment-related assessments. Because he continued to decline such assessments, including the phallometric assessments and polygraph examination, he was unlikely to advance in treatment. Appellant stated the reason he declined the assessments was because he has a heart condition that would produce an erroneous result, and appellant believes his history of sexual abuse preconditions him to have a positive phallometric assessment. However, appellant's social worker described appellant as "a relatively healthy 60-year-old male" who did not present with any significant health issues. When pressed about participating in these assessments, appellant agreed that participating could be to his benefit, but otherwise remained ambivalent.
The report noted several concerning incidents appellant was involved in. In February 2020, appellant was observed throwing cards at a peer's hand and saying "'You're a f****ing piece of trash.. .you're a loser.'" Appellant stated that his peer had tried to minimize a mistake made in a card game, which triggered appellant. In June 2021, appellant's treatment team expressed concerns appellant was bartering and extorting other patients. In July 2021, appellant was found in possession of other patients' IRS documents, which he was filling out for a fee so the patients could receive their IRS stimulus checks, from which appellant took a fee. In March 2022, appellant's treatment team and staff noted appellant exhibited concerning "grooming behavior" toward another new, younger-looking patient in the unit. At one point, appellant was observed in the patient's room, and the patient's pants were off. When approached about this behavior or asked to monitor the time appellant spent with the patient, appellant became defensive and did not abide by the recommendation.
When asked about this patient, appellant stated that the patient had schizophrenia and appellant had a "calming effect on him" and was helping him. Appellant stated he helped the patient take his medication and clip his toenails. Appellant denied that staff members instructed him to limit his interactions or stop associating with the patient, and that appellant was only instructed to keep his privacy curtain open when the patient was in the room with him.
Regarding his physical health, appellant described having concerns for his heart function and stated he developed an irregular heartbeat due to COVID-19. He stated he was having trouble sleeping due to noise in the unit, and had recently had his nose broken by another patient.
Regarding appellant's DID, appellant denied experiencing any recent dissociation. Appellant journaled and called his mother to help keep account of his life in a systemic way and check whether lapses occurred, but commented that his clinicians did not fully understand his disorder and he felt he was put on the "'back burner.'" Appellant had not gained any more insight into his various alters, and said Phillip, the alter who was in control when he sexually assaulted the victim, acted out in a very aggressive way and had limited coping strategies. Appellant said that traits of his alters are always present in some way, and he understood that he engaged in sexually deviant and antisocial behaviors through his various alters. Appellant did say he did not feel he was on the cusp of fragmentation at all times.
But, appellant then stated that three nights prior to his interview with Dr. Davis, he was on the cusp of fragmentation, and was able to stay grounded and avoid dissociation despite not receiving DID treatment.
Appellant was rated an average risk to reoffend pursuant to the Static-99R score. Appellant's current risk as measured by the VRS-SO was also in the average range.
The Static-99R is an actuarial measure of relative and absolute risk for sexual offense recidivism.
The VRS-SO consists of 17 dynamic factors that assess sexual recidivism.
The report concluded:
" ... [Appellant] has a significant history of violent and sadistic childhood trauma at the hand of his father and a neighbor. As a result of this trauma, as a means to protect himself, he developed a complex framework of different personalities that served different purposes for him throughout this life .. This condition has caused significant clinical distress, has interfered with his relationships, occupations, and scholastic endeavors, and has led to significant legal issues.... [Appellant] relayed that over his time at DSH-P[atton], he worked with a treatment provider, Dr. Walstrom, to reintegrate the various aspects of his personality into a cohesive whole. As such, after this treatment, [appellant] feels that his DID is in remission and refers to himself as a reintegrated and whole individual .. While [appellant] claims this, he continues to lack knowledge concerning the alter who committed the sexual assault in 1996. As part of the 07/12/21 interview, [appellant] was able to discuss the different aspects of his personalities but seemed to have only integrated the more socially desirable aspects of his personality structure and has avoided addressing issues related to his antisocial, borderline, and sexually deviant personalities. As such, while he has done an extensive amount of work to reintegrate the socially acceptable parts of his personality structure, I question whether he can say that he is 'fully' reintegrated at this point in his treatment. The term 'fully integrated' would seem to indicate that he has a full understanding of the more sexually deviant and antisocial aspects of his personality. As part of the 07/12/21 interview, [appellant] related that Phillip was 'in the shadows' and said that he has little knowledge of him and his origins. As part of the 03/09/22 interview, [appellant] said that Phillip was less threatened by adolescent males.
". While there has not been a pattern of over problematic behavior, . [o]f most concern, however, is [appellant's] reluctance to listen to the treatment team's feedback concerning how this relationship appears from the outside. Overall, while the treatment team cannot forbid [appellant] to engage the patient, the treatment team has encouraged [appellant] to be mindful about his interaction with the other patient .. Despite this feedback, [appellant] has continued to insist the relationship is appropriate in nature and of no concern.. [Appellant's] hesitance to embrace the treatment team's recommendations is concerning as this raises questions about how [appellant] may follow instructions in the community.
". [Appellant] has readily admitted that parts of his fragmented self still exist within his integrated personality. Furthermore, [appellant] admits Phil[l]ip still resides in his current personality, adding that he knows the least about Phil[l]ip. As such, within his personality, there abides a fragment who is sexually interested in sadistic sexual behavior with adolescent boys. While [appellant] cannot have access to adolescent males in the hospital, he appears to be engaging in a proxy behavior, potentially nurturing that deviant sexual desire. Concerns such as these could be alleviated by participation in polygraph and phallometric assessments. However, as [appellant] has declined to participate in these assessments, the concerns remain unresolved. [¶] ... [¶]
"As noted above, [appellant] has made significant strides in addressing [his] overall risk to sexually recidivate. He has worked to address issues related to his DID and has made strides in his attempts to reintegrate his personality structure. He has demonstrated an ability to avoid fragmentation in stressful situations and has learned a variety of coping strategies to manage his mental illness. However, his hesitance to heed the warnings of his treatment team concerning his involvement with his peer leaves unresolved concerns related to his willingness to listen to and heed the direction of . treatment providers and staff.."
Dr. Davis concluded, in his opinion, appellant continued to present as a significant danger to the community and would be a danger to the health and safety of others at this time, even while under supervision and treatment in the community.
Appellant's Case
Andrew Choi was a registered nurse at DSH-Coalinga assigned to appellant's unit. When at the unit for approximately five years, until 2021, Choi would see appellant every day. Choi described appellant as "high functioning" and respectful. He also testified he had not seen appellant have issues with following directives or instructions. However, Choi testified he did not have training in mental health diagnosis. Choi admitted he was aware of appellant's commitment behavior and diagnosis and had not seen appellant around young children because children were not allowed in the unit.
Jorge Lopez was a psychiatric technician on appellant's unit. Lopez's job included passing out medication, monitoring patients and working on the floor in the unit. Lopez was assigned to appellant's unit for two years, until March 2022. Lopez described appellant as respectful and courteous with staff and peers. Appellant also had a job in the unit cleaning showers, which required him to be incident-free for six months. Lopez stated that he had never seen appellant threaten any other patients or staff, either verbally or physically, and believed appellant did not present a risk of physical harm at the hospital. But Lopez stated that he was not trained to diagnose mental health conditions and did not know much about DID. Lopez also did not know about appellant's commitment behavior and had not seen appellant interact with young children.
Ikenesit Johnson was a psychiatric technician assistant on appellant's unit. Johnson had been working on the unit from 2014 to January 2022. Johnson testified she did not observe any major issues with appellant and did not witness appellant being abusive or physically aggressive with patients and staff. Johnson testified that she was not qualified to give mental health diagnosis and was not aware of appellant's mental health history.
Arlene Rudikoff was a senior psychiatric technician on appellant's unit. Rudikoff worked on the unit on and off since appellant came to the facility in 2016. Rudikoff described appellant as high-functioning, and as an asset to the unit. Rudikoff stated appellant would help with other patients and she has seen appellant frustrated, but has never directed appellant to take emergency medication or had a negative experience with appellant. Rudikoff stated she believes the only medication appellant takes is vitamins.
Rudikoff testified appellant was particularly helpful with a newer, younger patient. Rudikoff described appellant as a mentor to the patient and the only person the patient would talk to. While Rudikoff did not herself observe any grooming behavior toward that patient, she did hear people talking about that issue. Rudikoff concluded that she did believe he could function in the community. On cross-examination, Rudikoff testified that she had never seen appellant have a bad rapport with a staff member. However, further questioning revealed that appellant had come to her to complain about another staff member appellant described as "rude" and "mean," and who appellant believed was "out to get him." Rudikoff also admitted she was not aware of appellant's commitment behavior and did not factor that in her opinion that appellant would be successful in the community.
This is the patient mentioned in the assessment report where appellant's treatment team was concerned with grooming behaviors.
Rebecca Miller was a behavioral specialist on appellant's unit and retired in 2020. Miller facilitated different therapy groups for the SOTP and appellant was a participant in a "Breaking Barriers" group Miller facilitated. Miller described appellant as a quiet, but active member of the group. She was not aware that appellant was diagnosed with DID and did not speak to him about his offense. Miller concluded that appellant would be a good candidate for an outpatient program. However, Miller stated that she did not have an opinion on appellant's possible dangerousness if released into an outpatient program. Miller was also not aware whether appellant had resolved his DID triggers.
Lidcey Magdaleno Andrade was a clinical social worker who would meet with patients, including appellant, once a month. Andrade worked with appellant for 21 months. She also facilitated two groups appellant was in-the SOTP module II, and a program called interpersonal relationship skills. Appellant completed a portion of module II with Andrade facilitating, but did not progress to the next module because he refused to take a penile plethysmograph (PPG) assessment. Appellant has been directed by staff to take the PPG and a polygraph, and he has not been compliant with that instruction.
Appellant performed satisfactorily in the module II group. He appeared to have insight into his mental health disorder and took personal responsibility for the offense. Andrade confirmed that appellant had befriended a young patient new to the unit, previously discussed in the assessment report. She also confirmed that appellant was found in the patient's room with the curtain closed, and the patient not wearing pants. Andrade denied that appellant's treatment team encouraged him to reduce contact with the patient and stated that they only asked that appellant keep the curtain to his room open. Andrade said she did not personally have any concerns about appellant's relationship with the patient.
Andrade confirmed that appellant was found filling out IRS forms for other patients and taking 10 percent of the stimulus payments the patients received. Andrade stated that this was prohibited, and appellant knew this was prohibited. Andrade then testified that she believed appellant resolved his triggers with respect to the commitment act and to the diagnosis of DID. However, Andrade admitted she was not qualified to diagnose or treat DID. She also stated she had never taken steps to ensure that the alter ego responsible for the commitment act will never emerge again. She concluded that she was not qualified to make a determination of dangerousness based upon appellant's DID diagnosis.
Dr. Marguerite Ann Saunders was the correctional psychologist at DSH-Coalinga who led groups appellant attended. She was not the psychologist assigned to appellant's unit. Dr. Saunders primarily ran the level one (module I) SOTP group that appellant participated in.
Dr. Saunders described appellant as committed to understand, to rectify, and to go on with treatment with an understanding that he was admitting culpability and wanting to be a safe member of the community. Dr. Saunders believed appellant was prepared to do "what's necessary" to work through treatment. However, Dr. Saunders was prohibited from going to appellant's unit and was unaware of any interactions appellant had within his unit. She also could not testify as to his current mental health status because she was not involved in appellant's treatment past running the level one group.
Finally, Dr. Carol Matthews, a licensed clinical psychologist who was appointed by the court to examine appellant, testified about her evaluation of appellant on November 9, 2020. Dr. Matthews did not observe any behaviors indicating a psychiatric disorder and believed that he could follow staff directives if placed in an outpatient treatment program. She believed appellant's positive coping strategies mitigated his risk that his sanity had been restored. She also disagreed with the use of PPG or polygraphs as treatment tools because they indicate that the administrator of the tests doesn't trust the patient.
People's Case
Dr. Stephen Davis, a forensic evaluator at DSH-Coalinga, and the author of the assessment report discussed above, testified for the People. In addition to reviewing his findings in the assessment report, Dr. Davis expanded on his concern about appellant's relationship with the young patient. Dr. Davis testified that appellant's DID is not resolved, and that appellant was engaging in proxy behaviors at the hospital. Dr. Davis noted "[a]n individual who is sexually attracted to young children cannot have access to young children at the hospital; however, they engage in other behaviors that kind of facilitate that fantasy and that kind of fantasy life, that kind of defiance." Dr. Davis commented that he believed appellant was engaging in this proxy behavior in part because he would become very defensive when Dr. Davis brought it up to him.
Dr. Davis also testified that PPG's are part of the acceptable medical treatment for sex offender treatment programs, which purpose is to show that an individual has gained control over stimuli that were previously determined to be arousing and to show over time that an individual has learned how to manage their arousal. This examination is also a requirement to progress treatment in the sex offender treatment program.
Dr. Ashley Heitzig, a licensed psychologist who worked for Kern Behavioral Health and Recovery Services as a behavioral health unit supervisor and community program director for DSH's conditional release program, testified for the People. Dr. Heitzig disagreed with Dr. Matthews characterization of PPG assessments and noted that polygraphs are a required condition for sexual offender outpatient treatment. Dr. Heitzig also disagreed with Dr. Matthews that appellant did not pose a threat if placed on conditional release. Dr. Heitzig noted that while appellant had developed coping skills, those skills would not translate well into stressors out in the community.
Court's Ruling
The trial court issued a written ruling denying appellant's petition. The court found by a preponderance of admissible evidence that appellant suffered from DID at the time he perpetrated the predicate offense. Based on appellant's predicate offense, the court found the risks of physical harm to others potentially posed by the release of appellant to the community include "sexual violence; threats of great bodily harm, including, but not limited to, the use of dangerous weapons, to perpetrate crimes of physical violence; non-consensual physical restraint of victims during course of commission of a crime; predatory acts of coercive sexual violence targeting an especially vulnerable population, i.e., children under the age of 14 years; and providing underage children access to mind-altering, illegal substances." (Fn. omitted.)
The court carefully and fully reviewed the evidence admitted, considered each witness's testimony and examined the testimony of Dr. Davis with heightened care due to a claim of bias. The court noted appellant's position that he was not a danger to the health and safety of others, including appellant's progress in the SOTP at DSH-Coalinga and development of insight and coping strategies for his disorder, his taking responsibility for committing the underlying offense, his management of his DID, successful integration of his alters and going a long period of time without dissociating, and his role as a leader and asset to his unit despite the environment in the unit being unstable and chaotic.
Dr. Davis sent the prosecutor an unsolicited text message during a break in Dr. Davis's testimony, asking "'How are we doing?'" The prosecutor promptly reported the message to the court and advised Dr. Davis that he could not speak because Dr. Davis was still on the stand. The trial court denied appellant's motion to exclude Dr. Davis's testimony and report, but ruled the claim of bias went to the weight of Dr. Davis's testimony.
However, the trial court was deeply concerned with the lack of evidence concerning any treatment appellant may have received for his DID. The court noted that the evidence shows appellant has not received any formal treatment for his disorder since transferring to DSH-Coalinga in 2016, and what little evidence there was of appellant's treatment he received at his prior hospital, DSH-Patton. There was also no evidence introduced from any qualified mental health professional who treated appellant for his DID regarding any aspect of that treatment. The court found, without such information, an assessment cannot be made with reasonable confidence regarding whether treatment was successful in mitigating the risk that fragmentation and the emergence of dangerous personalities might occur.
The court also referred to Dr. Davis's assessment, where Dr. Davis questioned whether appellant had fully integrated and whether he had a full understanding of the more sexually deviant and antisocial aspects of his personality. Testimony also pointed to appellant not remembering much of the events that occurred during the commission of the criminal acts. The court concluded that it was not persuaded that appellant understood Phillip or what Phillip's motivations and triggers are or were at the time of the predicate offense.
The court then addressed appellant's claim that his DID was in recovery or remission, or at the very least managed using the tools and skills appellant acquired while hospitalized. The court noted that any evidence of remission was based on appellant's own self-reporting and the absence of reports made by Coalinga staff. However, there was no evidence presented that DSH-Coalinga staff were trained to recognize the signs of dissociation, or that staff on the frequently chaotic unit would have recognized if appellant was in a fugue state. There was no evidence presented regarding the degree of monitoring and scrutiny when appellant was permitted to be off-unit in community areas of the hospital. The court also noted that it was disadvantaged when evaluating the weight of appellant's claims that he has been able to avoid fragmentation using tools such as reaching out to trusted family, staff, meditation and journaling, and that he attributes his achievement to self-regulation and self-control, because appellant chose not to testify.
The court then discussed whether monitoring and supervision in the community might be sufficient to mitigate any danger of physical harm to others appellant might pose. The court noted, implicit in the notion of successful supervision is the assurance that there will be full and prompt compliance with all of the requirements supervision imposes, and it was not convinced appellant could or would do so at all times.
The court first described Phillip as "an unknown and potentially very dangerous factor," and concluded there is substantial uncertainty as to the efficacy of any mental health treatment with respect to Phillip and his behaviors. The court noted "[i]f Phillip were to reemerge while [appellant] is in the community, it is difficult to envision how a conditional release program could respond and intervene in time[] to prevent or intercept the danger posed to a very vulnerable segment of the population." The court found the sufficiency of the evidence does not support the conclusion that Phillip is no longer a significant threat.
The court then noted that appellant's behaviors on his unit indicated a resistance to direction. Evidence of this included appellant's prolonged and unremitting resistance to taking the PPG in order to advance in treatment, charging his peers for services despite knowing this behavior was against the rules, and continuing to engage with a lower-functioning peer despite recommendations from his treatment team not to do so.
The court was especially concerned with appellant's refusal to take the PPG, and noted while the test is voluntary, appellant claims he intentionally sought transfer to DSH-Coalinga in order to participate in the SOTP, and refusal to take the test calls into question appellant's commitment to address and resolve his issues of sexually deviant behavior.
The court explained, the results of the test or the admissibility of such results were not germane to the issue, but rather "[t]he willingness to follow directions, the good sense to accept instructions that will advance your best and ultimate interests, the humility to recognize that compromise and even concessions can be vital to achieving one's longer-term goals, the absence of an ego that insists on having its way-that's what this court considers important and illuminating when evaluating suitability for release under supervision."
The court also commented on appellant's relationship with his peer. The court found aspects of the relationship unsettling, considering the nature of the offense appellant was confined for. At the very least, the court found the actions ill-advised, and appellant's "resistance to taking direction from his treatment team regarding his personal boundaries with this peer raises valid concerns not only about the degree to which [appellant] would comply with supervision requirements if released on outpatient status, but also about his judgement."
Finally, the court noted that appellant's concerning behaviors all occurred after the filing of his petition for restoration of sanity and before the hearing. No sufficient evidence had been offered to explain why these decisions were of such importance to appellant that he was willing to risk compromising the likelihood of securing his release. The court then found appellant had not met his burden of producing and persuading the court, by a preponderance of the evidence, that he would not pose a danger to the health and safety of others, due to his mental disorder, were he to be released to the community under supervision and treatment.
DISCUSSION
Appellant argues that he established by a preponderance of the evidence that he would not pose a danger if released into supervised treatment in the community. He urges this court to adopt a substantial evidence standard when reviewing the trial court's denial of his petition, to adopt the section 1026.5, subdivision (b)(1), standard of dangerousness, review the denial itself de novo as a violation of his due process rights, and to find appellant had a Fifth Amendment right against self-incrimination that was additionally violated when the trial court commented on appellant's decision not to testify at the outpatient placement hearing. We find no error and affirm.
I. The Court Did Not Abuse Its Discretion Denying Appellant's Section 1026.2 Petition
Appellant first argues that he has met his burden by establishing by a preponderance of the evidence that he would not 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. (§ 1026.2, subds. (e), (k).) Appellant argues this court must review the trial court's factual findings for substantial evidence, and that the denial itself violated his due process rights and must be reviewed de novo. Appellant additionally argues this court must look to section 1026.5, subdivision (b)(1), when defining "danger to the health and safety of others." (§ 1026.2, subd. (e).) Finally, appellant argues the trial court's ruling was an abuse of discretion because it was not supported by sufficient evidence. We find no abuse of discretion and no due process violations.
A. Legal Standard
"A defendant found [not guilty by reason of insanity] may petition the court to be released from a state hospital prior to the expiration of his or her maximum term of commitment on the grounds of restoration of sanity. (§ 1026.2.) The petition involves a two-step process. The first step is an outpatient placement hearing, at which the applicant must prove by a preponderance of the evidence that he or she will not 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.' (§ 1026.2, subds. (e), (k).) If the court makes this finding, the applicant is 'placed with an appropriate forensic conditional release program for one year.' (§ 1026.2, subd. (e).)" (People v. Diggs (2022) 80 Cal.App.5th 702, 709 (Diggs).)
"'The second step in the section 1026.2 release process is referred to as the restoration of sanity trial, and can only be reached if the applicant has already met the threshold test for placement in "an appropriate forensic conditional release program."'" (Diggs, supra, 80 Cal.App.5th at p. 709.) "The applicant again bears the burden to prove by a preponderance of the evidence that he or she will not be a danger due to mental defect, disease, or disorder." (Ibid.)
Standard of Review
The instant appeal concerns a petition for outpatient placement under the first step of section 1026.2. It is well established that the denial of such a petition is reviewed for abuse of discretion. (Diggs, supra, 80 Cal.App.5th at p. 709; People v. Dobson (2008) 161 Cal.App.4th 1422, 1437 (Dobson); People v. Cross (2005) 127 Cal.App.4th 63, 73.)
"The term judicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. [Citation.] 'When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.]' [Citation.] Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Henderson (1986) 187 Cal.App.3d 1263, 1268.)
Appellant argues this court should apply a substantial evidence standard to the trial court's factual findings, and the ruling itself should be reviewed de novo. Appellant equates proceedings under Penal Code section 1026.2 to a sexually violent predator seeking outpatient status under Welfare and Institutions Code section 6608.
The court in People v. Rasmuson (2006) 145 Cal.App.4th 1487, found the denial of a petition for conditional release pursuant to Welfare and Institutions Code section 6608 is reviewed for substantial evidence. (Rasmuson, supra, at p. 1504.) However, Welfare and Institutions Code section 6608 is not comparable to Penal Code section 1206.2. "[C]ommitment under the [Sexually Violent Predator Act] is a civil commitment procedure, which by recent amendments commits a defendant indefinitely, after he has already paid his debt to society by serving out his prison term. This circumstance warrants closer appellate review than permitted by the abuse of discretion standard." (Rasmuson, supra, at p. 1504, fn. omitted.)
Insanity acquittees such as appellant fall into a special class distinct from civilly committed persons. (People v. Beck (1996) 47 Cal.App.4th 1676, 1686.) "[I]nsanity acquittees [have] 'demonstrated dangerousness by committing a criminal offense.... [T]here has been an adjudication that [they] committed a criminal act and [were] legally insane when [they] did so.'" (Ibid.) An insanity acquittee's maximum term of commitment is the longest term of imprisonment that could have been imposed for the offense or offenses of which the person was convicted-in this case, life. (§ 1026.5, subd. (a)(1).)
This distinction is especially evident in the fact that a Court of Appeal does review an order to extend a state hospital commitment under section 1026.5, subdivision (b), for substantial evidence. (People v. Williams (2015) 242 Cal.App.4th 861, 872.) It is the commitment to custody beyond the length of a maximum term of imprisonment-that triggers the heightened level of review. Appellant's maximum term of imprisonment is life. As such, we review the denial of the instant petition for abuse of discretion.
Danger to Health and Safety of Others
Section 1026.2, subdivision (e), directs a court to determine whether a 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. The section does not define the term "danger to the health and safety of others." Appellant urges this court to turn to a similar term used in section 1026.5, subdivision (b)(1), which allows commitment beyond a proscribed term where a person represents a "substantial danger of physical harm to others." However, neither the terms, nor the sections are comparable.
This language was used throughout the hearing and by the trial court in its written ruling. Arguably, the trial court did apply this heightened standard of dangerousness, although it had no requirement to do so.
"All of the persons who are committed by virtue of section 1026 are in the same general class in that they are all insane. It does not follow that, even at the time of hospitalization, they all represent a substantial danger of physical harm to others or themselves. Whether they do represent a danger or not, depends on the nature of their mental disease, defect, or disorder and the underlying crime. Neither does it follow that all persons within the purview of section 1026 may become subject to the provisions of section 1026.5, subdivision (b)(1); only the violent offender may be subject to it.. There is no requirement that there be a threat of physical harm to others for commitment under section 1026; and it should not be engrafted onto section 1026.2. Therefore, it is neither logical nor reasonable to make the standard of section 1026.5, subdivision (b)(1) applicable to section 1026.2." (People v. Woodson (1983) 140 Cal.App.3d 1, 4.)
B. Analysis
No Abuse of Discretion
Based on the totality of the record, we cannot say that the trial court exceeded all bounds of reason and abused its discretion in denying appellant's petition for outpatient treatment. (People v. Henderson, supra, 187 Cal.App.3d at p. 1268.) The trial court's findings were based on evidence presented at the hearing and the courts conclusions were not arbitrary or capricious. (Ibid.)
The trial court found appellant suffered from DID at the time he perpetrated the predicate offense. The court then found no evidence was presented that appellant had received any formal treatment for his DID since transferring to DSH-Coalinga in 2016. The trial court was also understandably and reasonably concerned that no evidence was presented about any aspect of appellant's prior treatment. The trial court's conclusion that an assessment could not be made about the efficacy of whatever treatment, if any, appellant had at one point received, was reasonable.
The court's finding that no evidence was presented DSH-Coalinga staff were trained to recognize the signs of dissociation, which called into question appellant's claim that his disorder was in recovery or remission, was also reasonable. Appellant's progress in treating and managing his DID was entirely self-reported. The trial court did not give these reports much weight, especially considering appellant declined to testify.
The court then considered whether monitoring and supervision might be sufficient to mitigate any danger of physical harm appellant might pose.
Dr. Davis stated in his assessment report, and on the stand, that he questioned whether appellant had fully integrated, and believed appellant did not have a full understanding of the more sexually deviant and antisocial aspects of his personality. Appellant admitted to Dr. Davis that Phillip still resided in appellant's personality. The court's conclusion that Phillip, a personality "who is sexually interested in sadistic sexual behavior with adolescent boys," as described by Dr. Davis, posed a significant threat even under supervision was also not unreasonable.
Finally, the court found appellant's recent behaviors on his unit indicated a resistance to direction, which raised concerns about the degree to which appellant would comply with supervision requirements if released on outpatient status, and about his judgment. This finding was not unreasonable. Appellant refused to take a polygraph or PPG in order to advance in his treatment, he violated facility rules when he charged patients to fill out IRS documents, and he continued to interact with a younger-looking, low-functioning patient even after his treatment team raised concerns that appellant was engaging in "'grooming'" behavior. And, as noted by the court, this was all done after appellant filed his section 1026.2 petition. It is not unreasonable to conclude that these behaviors show a resistance to supervision, an impulsivity, or even manipulative tendencies that call into question whether appellant would be able to maintain his regime and treatment in an outpatient treatment program.
In sum, the trial court's conclusion that appellant did not prove by a preponderance of the evidence, that he would not pose a danger to the health and safety of others, due to his mental disorder, were he to be released to the community under supervision and treatment, is well supported by the record.
No Due Process Violation
Appellant appears to argue that the denial of his petition violated his due process rights, because he has proven he has been restored to sanity and the Constitution prohibits the government from confining an individual once their sanity is restored. (See Jones v. United States (1983) 463 U.S. 354, 370 [finding the government may confine an individual on the basis of an insanity judgment "until such time as he has regained his sanity or is no longer a danger to himself or society"].)
However, section 1026.2 is the statutory framework for proving an insanity committee's sanity has been restored. Appellant's failure to meet his burden of proof pursuant to section 1026.2, subdivisions (e) and (k) necessarily means appellant's sanity has not been restored and his confinement is not unconstitutional.
Insofar as appellant attacks the constitutionality of section 1026.2 as a whole, the procedures outlined in section 1026.2 have long been found constitutional. The California Supreme Court in In re Franklin (1972) 7 Cal.3d 126 found that section 1026a, placing the burden of proof on an insanity committee to prove, by a preponderance of the evidence, their sanity was restored, was not unconstitutional.
Renumbered to section 1026.2 on September 28, 1979.
Because we find the trial court did not abuse its discretion in denying appellant's petition, and the trial court found appellant did not prove by a preponderance of the evidence that he is not a danger to the health and safety of others, due to his mental disorder, appellant necessarily has not regained his sanity and remains a danger to himself or others. His confinement is not unconstitutional.
II. Section 1026.2 Does Not Implicate Appellant's Right Against Self-incrimination
Appellant argues insanity committees in outpatient placement hearings pursuant to section 1026.2 are similarly situated to insanity committees in proceedings under section 1026.5. Thus, appellant asserts he is entitled to all "'rights guaranteed under the federal and State Constitutions for criminal proceedings'" pursuant to section 1026.5, subdivision (b)(7), including the Fifth Amendment right against self-incrimination. In light of that right, appellant concludes the trial court's comments about appellant's failure to testify at the hearing constituted error pursuant to Griffin v. California (1965) 380 U.S. 609 (Griffin).
A. Background
The court made two references to appellant's decision not to testify in its written ruling. First, stating "[d]espite these disruptive conditions on the unit, [appellant] has reported no experience of fragmentation of his integrated personality. He apparently attributes that achievement to self-regulation and self-control, other abilities acquired through treatment. In evaluating this information and determining its evidentiary weight, the court is disadvantaged by the fact that [appellant], the petitioner in this proceeding, chose not to testify at the hearing."
Second, stating "[n]o evidence was presented that persuades this court [appellant] has been closely scrutinized for therapeutic purposes unless he was in group therapy sessions (largely non-existent for most of the past two years due to the spread of Covid-19), in his once-per-month 1:1 sessions with his clinical social worker, or he presented himself voluntarily to staff. Testimony from [appellant] would have greatly assisted the court in evaluating the reliability of much of this information and in determining its weight. [Appellant] did not testify at the hearing on his petition."
B. Legal Standard
"Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all." (Hudec v. Superior Court (2015) 60 Cal.4th 815, 819 (Hudec); accord, U.S. Const., 5th Amend.; Cal. Const., art. 1, § 15.)
Section 1026.5, subdivision (b)(7), provides insanity committees facing recommitment proceeding "shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.." It has therefore been held "committees facing a commitment extension hearing enjoy the trial rights constitutionally guaranteed to criminal defendants, which include the right to refuse to testify in the People's case-in-chief." (Hudec, supra, 60 Cal.4th at p. 832.)
Section 1026.2 does not have language comparable to section 1026.5, subdivision (b)(7). Section 1026.2, subdivision (e), states only "The court shall 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...."
Appellant argues he is nonetheless similarly situated to those committees facing proceedings under section 1026.5, and equal protection extends the privilege against self-incrimination to him at an outpatient hearing pursuant to section 1026.2.
"'"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged."' [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws." (People v. McKee (2010) 47 Cal.4th 1172, 1202.) "If the groups are similarly situated, the next question is whether the disparate treatment can be justified by a constitutionally sufficient state interest." (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1102 (Eric B.).)
C. Analysis
Appellant argues a person seeking conditional release under section 1026.2 is similarly situated to a person facing an extension of their commitment under section 1026.5, because they are the same individuals committed for the same purpose under the same conditions.
However, we cannot overlook the fact that an insanity committee facing recommitment proceedings pursuant to section 1026.5 is facing an extension of their commitment beyond the maximum prescribed term for the criminal act for which they were committed. An insanity committee seeking restoration of sanity pursuant to section 1026.2 necessarily has not reached the maximum term of commitment for the criminal act for which they were committed.
The procedures for hearings pursuant to each section are substantially different. In a section 1026.2 outpatient placement hearing, appellant bears the burden of proof, by a preponderance of the evidence, that he would not be a danger to the health and safety of others if under supervision and treatment in the community. (Id., subds. (e), (k), (m).) In a section 1026.5 recommitment hearing, the prosecution must show beyond a reasonable doubt that the committee is mentally ill and a substantial physical danger to others. (Id., subd. (b)(7; People v. Buttes (1982) 134 Cal.App.3d 116, 125.)
While it is true that an insanity committee under section 1026.2 has "'substantial procedural safeguards' at the outpatient placement hearing, including the right to counsel and to confront and cross-examine witnesses," an outpatient status hearing "'is not a criminal proceeding. '" (Dobson, supra, 161 Cal.App.4th at pp. 1432-1433.) For example, a committee does not have the right to a jury trial at the outpatient placement hearing. (People v. Tilbury (1991) 54 Cal.3d 56, 62 (Tilbury).) The Legislature's decision to omit the language in section 1026.5, subdivision (b)(7), from section 1026.2 entirely further separates the nature and function of these two hearings.
Appellant argues there are many cases where other committees have been found similarly situated to insanity committees facing commitment extensions under section 1026.5. Appellant is correct. In People v. Flint (2018) 22 Cal.App.5th 983, the appellate court found sexually violent predators and insanity committees were similarly situated in relevant part, because "'[b]oth groups have committed a criminal act and have been found to suffer from a mental condition that might present a danger to others. [Citation.] At the end of the [sexually violent predator's] prison term, and at the end of the term for which an [insanity committee] could have been imprisoned, each is committed to the state hospital for treatment if, at the end of that period, the district attorney proves in a jury trial beyond a reasonable doubt that the person presents a danger to others as a result of a mental disease, defect, or disorder.'" (Id. at p. 990.)
In Eric B., the California Supreme Court found prospective conservatees under the Lanterman-Petris-Short Act (LPS) were similarly situated to insanity committees facing recommitment under section 1026.5. (Eric B., supra, 12 Cal.5th at pp. 1102-1103.) "[T]he most striking and decisive similarity between the groups is the potential loss of liberty both face in the proceedings at issue. Like [insanity committees], LPS conservatees are subject to physical confinement and the loss of many personal rights." (Id. at p. 1103.) "Like these conservatees, [insanity committees] no longer stand accused of crimes. And, like conservatorships, [insanity commitment] extension proceedings are civil in nature and examine only whether the statutory grounds for commitment have been met." (Id. at pp. 1105-1106.)
"'The right to not be compelled to testify against oneself is clearly and relevantly implicated when a person is called by the state to testify in a proceeding to [commit or] recommit him or her even if what is said on the witness stand is not per se incriminating.' [Citation.] The privilege's role in enforcing fair play, and ensuring the government meets its burden, is not unique to the criminal context. Like [insanity committees], traditional LPS conservatees also face the prospect of extended involuntary confinement and the loss of other liberties." (Eric B., supra, 12 Cal.5th at p. 1106, italics added.)
However, much like insanity committees facing a commitment extension, an LPS conservatee or a sexually violent predator committee both face "'a proceeding to [commit or] recommit'" them, beyond the scope of, or sometimes even entirely absent a criminal conviction. (Eric B., supra, 12 Cal.5th at p. 1106.) An insanity committee at an outpatient placement hearing is not being committed or recommitted to custody. They are in custody and lawfully remain in custody until the end of their maximum term of confinement. This is reflected in the fact that the insanity committee brings the petition and bears the burden of proof both at the initial hearing and subsequent trial for restoration of sanity. (§ 1026.2, subds. (h)(2), (k).) The government bears no burden of proof. In stark contrast, an insanity committee who is not recommitted under section 1026.5 and who reaches the expiration of their maximum term of commitment is released from custody with no further proceedings. (§ 1026.1, subd. (b).)
For these reasons, we find an insanity committee at an outpatient placement hearing pursuant to section 1026.2 is not similarly situated to an insanity committee facing a commitment extension pursuant to section 1026.5. The disparate treatment between these two classes of insanity committees, therefore, does not implicate the equal protection clause of the Fourteenth Amendment.
Appellant otherwise concedes the Fifth Amendment privilege against self-incrimination does not apply to civil proceedings under section 1026.2. Griffin holds that "the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin, supra, 380 U.S. at p. 615, fn. omitted.) Because the Fifth Amendment right against self-incrimination is not implicated at an outpatient placement hearing, the trial court's comments about appellant's failure to testify did not constitute Griffin error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, Acting P.J., SNAUFFER, J.