Opinion
B295578
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ERICK M., Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. ZM044465) APPEAL from an order of the Superior Court of Los Angeles County, Robert S. Harrison, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
INTRODUCTION
In May 2018, appellant Erick M. was taken into custody on a "5150 hold," i.e., a brief detention in a medical facility authorized by a peace officer's perception that appellant posed a danger to himself or others as a result of a mental disorder. (See Conservatorship of M.B. (2018) 27 Cal.App.5th 98, 101, fn. 2, citing Welf. & Inst. Code, § 5150, subd. (a).) Upon appellant's release, he was prohibited from possessing or otherwise exerting control over firearms for a period of five years, pursuant to Welfare and Institutions Code section 8103. Appellant filed a request in the trial court for an order lifting the prohibition, initiating a proceeding in which respondent People of the State of California bore the burden of proving by a preponderance of the evidence that appellant would not be likely to use a firearm in a safe and lawful manner. (Welf. & Inst. Code, § 8103, subd. (f)(6).) The trial court appointed a psychologist to evaluate appellant and prepare a report at the People's expense.
At an evidentiary hearing, the People -- proceeding first in the presentation of evidence and argument -- called the psychologist, who opined that: (1) appellant suffered from paranoia as a result of a diagnosed schizoaffective disorder; and (2) appellant was not then ready to safely possess a firearm. Appellant testified and argued that his conduct preceding his 5150 hold was a reasonable reaction to the conditions in his neighborhood, not a symptom of paranoia, and that he could safely possess a firearm for self-defense. Relying on the psychologist's testimony, the court rejected appellant's request to lift the firearm prohibition, commenting, inter alia, "At this point I don't think you're ready to have your gun rights restored, so the petition is going to be denied. [¶] And then the court finds that presently you cannot -- you have not established that you can safely handle a firearm, but that's denied without prejudice at this time." The court's written order made no reference to appellant's failure to establish any showing, instead stating the court found by a preponderance of the evidence that appellant was unable to safely and lawfully use a firearm.
On appeal, appellant contends the court imposed the burden of proof on him, rather than on the People, in prejudicial violation of Welfare and Institutions Code section 8103, subdivision (f)(6). We conclude appellant has failed to rebut the presumption that the court, following established law, properly imposed the burden of proof on the People. Accordingly, we affirm.
PROCEEDINGS BELOW
A. Appellant's Request
Appellant was placed on a 5150 hold on May 30, 2018. As described post, the circumstances leading to his 5150 hold are disputed. Upon his release on June 6, 2018, he was forbidden to own, possess, control, receive, or purchase any firearm. (Welf. & Inst. Code, § 8103, subd. (f)(1)(A).) In July 2018, appellant filed a request in the trial court for an order lifting the firearm prohibition, as authorized by Welfare and Institution Code section 8103, subdivision (f)(4).
Appellant's detention exceeded 72 hours, the typical maximum duration of a 5150 hold. (See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 81.) Nevertheless, the parties agree that he was placed on a 5150 hold and that the trial court understood as much.
The court appointed psychologist Dr. Efrain Beliz, Jr., to examine appellant and prepare a report on his mental status "within the meaning of Section 8103 WIC." The court ordered appellant to obtain his medical records from the facility where he had been held and to provide them to Dr. Beliz. The court ordered the district attorney -- representing the People pursuant to Welfare and Institutions Code section 8103, subdivision (f)(5) -- to pay for Dr. Beliz's report. At two subsequent hearings, the court noted that it had received and read Dr. Beliz's report and set the case for evidentiary hearing. On the morning of the evidentiary hearing (January 25, 2019), the court informed appellant the hearing would start that afternoon because the People had subpoenaed Dr. Beliz to appear in the afternoon.
B. The People's Evidence
At the outset of the evidentiary hearing, the court invited the People to call their first witness. The People called Dr. Beliz, who testified that he received appellant's medical records and evaluated appellant in September 2018. During the evaluation, Dr. Beliz also spoke with appellant's brother, who reported that appellant had "abused substances regularly" for a time.
According to Dr. Beliz, appellant's account of the circumstances leading to his 5150 hold differed from the account in the medical records. He summarized appellant's account as follows: "[S]omeone had scratched his car and . . . he was already tripping [which Dr. Beliz interpreted to mean he was under the influence of controlled substances]. So he called the L.A.P.D. for assistance, and they responded. He let them know he had a firearm and he was armed. And apparently they took him into custody . . . ." The medical records, in contrast, indicated that police responded to appellant's home because appellant had a loaded firearm there and reportedly was going to shoot himself or others. The records further indicated that appellant was admitted for his 5150 hold with a diagnosis of schizoaffective disorder, bipolar type. Though appellant had sought mental health treatment in 2013, he was not in treatment at the time of the evaluation, during which he told Dr. Beliz he believed he did not need treatment. The medical records "indicated that he does not follow through with treatment regularly."
"The statute specifically allows the use of hearsay evidence at the hearing." (Rupf v. Yan (2000) 85 Cal.App.4th 411, 426, citing Welf. & Inst. Code, § 8103, subd. (f)(5).)
Dr. Beliz opined that appellant suffered from paranoia. He explained the basis for that opinion, in part, as follows: "[Appellant's] self-report that he believes people are messing with him; the documentation that I reviewed that led to his 5150, where he suspected that people were going to do him harm, ergo he had a loaded firearm. And the diagnosis of schizoaffective bipolar disorder frequently carries a host of symptoms and symptomatology, and one is paranoid thinking. [¶] He also . . . has had a history of unsuccessful employment. And he's not sure why, but he doesn't really last more than two years. And he says that things happen and that he's let go and they get somebody else." Further, appellant reported that he had a tattoo of the video game character Pac-Man (a character incessantly followed by ghosts), which "signified for him that people might be following him."
When asked for his opinion "whether [appellant] is mentally stable and competent to possess a firearm in a nondangerous manner," Dr. Beliz responded that appellant was "not ready yet to have his firearms [rights] restored." He explained the reasons for that opinion as follows: "[S]chizoaffective disorder, bipolar type, is a chronic, persistent, and severe mental disorder that is not going to go away. It responds to treatment, medication, and support that he is not involved in or wasn't involved in when I saw him. So that's number one. [¶] Subsequent to the schizoaffective disorder and the bipolar disorder, he does have a paranoid view of the world, and that impairs his reality testing. [¶] He told me directly that he does believe that people are messing with him; only that he can't see them. He implied that that's the reason why he has not been able to achieve autonomy, work, sustained employment, live alone, date. A lot of things are not happening for him. [¶] Complicating the fact is that he minimized his alcohol use but says that when he does drink, he'll have about five beers in a day, but he considers it social. [¶] The other is that he did start abusing marijuana at the age of 19 and smokes it regularly. And when I asked him when was the last time he had gotten high with marijuana, he couldn't remember. And he feels that he has had some memory issues and that that may be because he wants to make room for new memories. [¶] So those factors suggest a somewhat marginal individual, who, from time to time, has impaired reality testing with a paranoid view. He believes that others might be out to harm him. There's a relationship between schizophrenia and substance abuse, relative to violence; it's high."
C. Appellant's Evidence
Appellant testified that he lived in a neighborhood with a "gang problem" and "lack of police patrol," noting that a murder occurred near his home the previous year. Long before his 5150 hold, he made at least two reports to the police about unidentified people entering and damaging his car (the court reviewed two reports of damage made by keys). He speculated that the people who "randomly bothered" him were trying to scare him away from parking in front of their homes. He wanted to restore his right to possess firearms in order to defend himself, his family, and his property.
When he made the 911 call that led to his 5150 hold, he was not depressed, but instead "confused" about the random bothering. He mentioned on the call that he was armed and had been an armed security guard. He described the call and his placement on a 5150 hold as follows: "[T]here was screaming, and it sounded like fireworks, maybe gunshots. I called for help -- for assistance to my vehicle. [¶] . . . I did have my [fire]arm, but it was in its container inside the backpack. They -- I just wanted them to just cruise by . . . so I can make sure it's safe to [go to] my vehicle. [¶] And then -- so then the police came, and they weren't -- they just didn't want to hear me. They just grabbed my stuff -- my backpack. They went into the house, started grabbing, like, my weapon and even the ammunition. And then they said that I was paranoid." He never told the police he had a loaded firearm. The police placed him on a 5150 hold "because they said that I was paranoid about what's going on in the street, but it's not paranoia; it's really happening."
According to a resume and certificate reviewed by the court, appellant had been certified for employment as an armed security guard, but never obtained such employment.
Appellant testified that he sought medical treatment for depression in 2013 but had been fine since then, as he was able to cope. He was prescribed medication for depression in 2013, but stopped taking it at some point. The medicine gave him anxiety, and he did not feel it was as helpful as talk therapy. He stopped undergoing talk therapy as well because his therapist was far from his residence and he was unable to make appointments.
D. Argument , Ruling , and Appeal
The People's counsel argued first, summarizing the supporting evidence for Dr. Beliz's opinion that "currently [appellant] is not mentally stable and competent to possess a firearm in a nondangerous manner." Appellant argued next, denying that he had told Dr. Beliz he used marijuana regularly and asserting that his "being scared, or acting in an abnormal manner" was a reasonable reaction to the conditions in his neighborhood, not a symptom of paranoia.
The court accepted Dr. Beliz's opinion that appellant had schizoaffective disorder, noting that this disorder caused appellant depression and might also cause mania and delusions. The court found that the conditions in appellant's neighborhood were triggering the symptoms of his disorder. It further found that even assuming appellant's 911 call was a reasonable response to conditions in his neighborhood rather than an act of paranoia, "there was something about the situation that showed that [appellant] needed some extra help, and that's why they brought [him] into the hospital." The court indicated appellant needed to develop "coping skills" to remove "the yoke around [his] neck," and suggested he contact a mental health clinic to seek low- or no-cost treatment and vocational training.
The court then denied appellant's request to lift the firearms prohibition, stating, "It's kind of a lot to think about and do, but it will ultimately change your life, I think. [¶] At this point I don't think you're ready to have your gun rights restored, so the petition is going to be denied. [¶] And then the court finds that presently you cannot -- you have not established that you can safely handle a firearm, but that's denied without prejudice at this time. [¶] Bring in a new petition when you've started doing the treatment and seeing - I think you're going to find that some of the medications that they gave you will really free you up and make you stronger and able to cope better with all the craziness that happens in [your neighborhood]."
Appellant is ineligible to file a subsequent request to lift the firearm prohibition because a person such as appellant, subject to a five-year firearm prohibition, may make only a single request to lift the prohibition. (Compare Welf. & Inst. Code, § 8103, subd. (f)(4) [person subject to five-year prohibition may make only "single" request], with § 8103, subd. (f)(1)(B), (f)(10)-(11) [person subject to lifelong prohibition as result of multiple 5150 holds in single year may file subsequent requests, no less than five years apart].) Appellant does not rely on the trial court's invitation to file a subsequent petition, and we do not construe the invitation as evidence that the court relieved the People of their burden of proof. With respect to an initial request, the statute unambiguously places the burden of proof on the People regardless of the duration of the prohibition. (See id., § 8103, subds. (f)(1)(C), (f)(6)-(7); cf. id., § 8103, subd. (f)(11) [on any subsequent request filed by person subject to lifelong prohibition, that person bears burden of proof].)
The court's minute order stated, "Petition denied. [¶] Court finds that by a preponderance of the evidence [appellant] is not able to use a firearm in a safe and lawful manner . . . and that there exists a current danger to self and others, pursuant to Section 8103 of the Welfare and Institutions Code." Appellant timely appealed.
DISCUSSION
Appellant contends the trial court imposed the burden of proof on him, rather than on the People, in prejudicial violation of Welfare and Institutions Code section 8103, subdivision (f)(6).
A. Principles
Any person placed on a 5150 hold "shall not own, possess, control, receive, or purchase . . . any firearm for a period of five years after the person is released from the facility." (Welf. & Inst. Code, § 8103, subd. (f)(1)(A).) At the person's request, the superior court must set a hearing for an order lifting this prohibition. (Id., § 8103, subd. (f)(4)-(5).) The person who initiates the proceeding by filing the request is not the plaintiff; instead, the People are the plaintiff. (Id., § 8103, subd. (f)(5).) Consistent with the People's role as the plaintiff, the People "bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner." (Id., § 8103, subd. (f)(6).) Accordingly, the People typically must present evidence and argument before the petitioner does. (See Code Civ. Proc., §§ 607, 631.7 [unless the court "for special reasons" orders otherwise, plaintiff must present evidence before defendant, and plaintiff must commence closing arguments]; Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701 (Orient) [Code of Civil Procedure section 607 has been interpreted to confer right to commence argument on party bearing burden of proof, subject to court's reasonable discretion].) If the court finds that the People have not met their burden, the person's firearm rights are restored. (Welf. & Inst. Code, § 8103, subd. (f)(1)(C).)
"It is presumed that official duty has been regularly performed." (Evid. Code, § 664.) "[S]cores of appellate decisions, relying on this provision, have held that 'in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law.'" (Ross v. Superior Court of Sacramento County (1977) 19 Cal.3d 899, 913 (Ross); accord, People v. Thomas (2011) 52 Cal.4th 336, 361 ["In the absence of evidence to the contrary, we presume that the court 'knows and applies the correct statutory and case law'"].) "[T]he rule encompasses a presumption that the trial court applied the proper burden of proof in matters tried to the court." (Ross, supra, at 913-914.) An appellant contending a trial court failed to follow established law bears the burden of rebutting the presumption to the contrary. (See People v. Valdez (2012) 55 Cal.4th 82, 176 (Valdez).)
B. Analysis
Appellant fails to rebut the presumption that the trial court properly placed the burden of proof on the People. It was established law that the People bore the burden of proof. (Welf. & Inst. Code, § 8103, subds. (f)(1)(C), (f)(6).) Thus, we begin with the presumption the court placed the burden of proof on the People. (See Evid. Code, § 664; Ross, supra, 19 Cal.3d at 913-914.) That presumption is supported by the court's insistence that the People proceed first in the presentation of evidence and argument. (See Orient, supra, 192 Cal.App.3d at 701 [party bearing burden of proof typically proceeds first]; People v. Esparza (2015) 242 Cal.App.4th 726, 741-743 (Esparza) [construing trial court's requirement that defense counsel proceed first in presenting evidence and argument as evidence court erroneously placed burden of proof on defendant].)
Appellant has identified no evidence sufficient to rebut the presumption and its supporting evidence. He relies principally on the trial court's oral comment that appellant failed to establish that he could safely handle a firearm. It is true that the language of this comment differed from the required finding that the People had established that appellant would not be likely to safely handle a firearm. (See Welf. & Inst. Code, § 8103, subd. (f)(6).) As explained below, however, the comment was ambiguous, and therefore insufficient to rebut the presumption and its supporting evidence. (See Valdez, supra, 55 Cal.4th at 178-179 [trial judge's comments were ambiguous regarding whether judge had fulfilled duty to review guilt phase record, and were therefore insufficient to overcome presumption and supporting evidence, where judge never "affirmatively state[d] that he had not reviewed the guilt phase record"]; In re Stevenson (2013) 213 Cal.App.4th 841, 859-862 (Stevenson) [Board of Parole Hearings panel's statements did not "affirmatively overcome" presumption that panel followed established law in reaching decision to deny parole; in concluding otherwise, superior court had "myopically focused" on single remark and improperly speculated regarding its significance].)
First, the court's minute order did not mention appellant's failure to establish any showing or to meet any perceived burden. Instead, the order stated that the court found by a preponderance of the evidence that appellant was "not able to use a firearm in a safe and lawful manner . . . ." The language of the court's written finding corresponded to the showing the People were required to make. (See Welf. & Inst. Code, § 8103, subd. (f)(6) [state must show person requesting restoration of firearm rights would not be likely to use firearms in safe and lawful manner].) Thus, the court's written order implies the court recognized the People's burden to make that showing and found that they had made it.
Second, contrary to appellant's suggestion, the court did not state that it found appellant unready for restoration of his firearm rights because appellant failed to establish his ability to safely handle a firearm. Instead, the court stated, "I don't think you're ready to have your gun rights restored, so the petition is going to be denied. [¶] And then the court finds that presently you cannot -- you have not established that you can safely handle a firearm . . . ." A reasonable interpretation of these two sentences, in sequence, is that: (1) the People met their burden of proof, warranting denial of appellant's request for restoration of his firearm rights; and (2) one reason the People met their burden of proof was appellant's failure to meet the burden of production he bore in response to the People's prima facie case. (See California Farm Bureau Federation v. State Water Resources Control Bd. (2011) 51 Cal.4th 421, 436 ["'[T]he burden of producing evidence as to a particular fact [initially] rests on the party with the burden of proof as to that fact. . . . But once that party produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case'" (italics omitted)], quoting Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667-1668.)
Were we to focus myopically on the language relied upon by appellant, we might conclude the trial court erroneously placed the burden of proof on him. In context, however, that language was ambiguous, and therefore insufficient to rebut the presumption (buttressed by supporting evidence) that the court properly placed the burden of proof on the People. (See Valdez, supra, 55 Cal.4th at 178-179; Stevenson, supra, 213 Cal.App.4th at 859-862.)
Likewise insufficient is the court's order for appellant to provide his medical records to Dr. Beliz for his evaluation. Appellant cites no authority construing such an order as evidence that a court placed the burden of proof on the wrong party, and we are aware of none. Further, the court ordered the People to pay the costs of Dr. Beliz's report and acknowledged that the People had subpoenaed Dr. Beliz to appear at the evidentiary hearing, implying the court's awareness that the People bore the burden of securing Dr. Beliz's opinion.
The cases on which appellant relies are distinguishable. (See Esparza, supra, 242 Cal.App.4th at 742-743 [presumption that trial court followed established law did not defeat defendant's showing that court erroneously relieved prosecution of burden of proof, where prosecution's burden was not "'established'" law and court required defense counsel to proceed first in presenting evidence and argument]; In re L.S. (2014) 230 Cal.App.4th 1183, 1193-1194 [trial court placed burden of proof on correct parties but erred by requiring them to meet clear and convincing evidence standard rather than preponderance standard].)
In sum, appellant has failed to rebut the presumption that the court, following established law, properly imposed the burden of proof on the People.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: COLLINS, J. CURREY, J.