Opinion
B299697
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. CORY GAUTHER, Defendant and Appellant.
Gerald J. Miller, 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 Supervising Deputy Attorney General, Paul M. Roadarmel, Jr. and Blake Armstrong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ZM042254) APPEAL from a judgment of the Superior Court of Los Angeles County, James N. Bianco, Judge. Affirmed. Gerald J. Miller, 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 Supervising Deputy Attorney General, Paul M. Roadarmel, Jr. and Blake Armstrong, Deputy Attorneys General for Plaintiff and Respondent.
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INTRODUCTION
When, as a condition of parole, a prisoner is being confined and treated at a state hospital for a severe mental health disorder that was a cause of their underlying crime, the People may file a petition under Penal Code section 2970 prior to the termination of that parole, seeking to extend the prisoner's commitment for a year. At the hearing on the petition, the People must prove beyond a reasonable doubt that "the patient has a severe mental health disorder, that the patient's severe mental health disorder is not in remission or cannot be kept in remission without treatment, and that by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others." (Pen. Code, § 2972, subds. (a)(2) & (c).)
On June 19, 2019, following a bench trial, the court found the People had proven these elements with regard to appellant Cory Gauther, and extended his confinement to June 16, 2020. The issue on appeal is whether substantial evidence supports the court's finding that Gauther represented a substantial danger of physical harm to others. Gauther makes six arguments: (1) the People's only evidence of Gauther's dangerousness is his mental illness and lack of remission, which are separate elements that cannot be "bootstrapped" to prove dangerousness; (2) the court was precluded from relying on a conclusion that Gauther lacked insight into his mental illness because Gauther was taking his medication and once asked to be placed in restraints when he believed he might attack someone; (3) the opinion given by the second of the state's experts was "improper" because it was based on an evaluation conducted nine months earlier, and was insufficient to support a finding of current dangerousness; (4) the state's experts impermissibly relied on the fact that Atascadero State Hospital (where Gauther has been confined and treated since June 17, 2015) consistently rated Gauther as a "high risk" for violence because that rating was hearsay and unsupported by evidence; (5) concerns regarding Gauther's discharge plans should be disregarded because one expert did not remember what those discharge plans were; and (6) the court impermissibly required Gauther to prove he was not dangerous when it was the People's burden to show he was.
As detailed below, we conclude that substantial evidence supports the court's finding and we reject each of Gauther's arguments: (1) there was evidence of Gauther's dangerousness apart from his mental illness and lack of remission; (2) substantial evidence supported the conclusion that Gauther lacked insight into his mental illness; (3) the testimony provided by the second state expert was properly admitted and considered; (4) by failing to object below, Gauther forfeited any hearsay or foundational objections to the testimony that he was consistently rated as a "high risk" for violence; (5) the record demonstrates that while the expert did not initially recall Gauther's discharge plans, her recollection was refreshed after consulting her report; and (6) Gauther fails to rebut the presumption that the court properly placed the burden on the People to prove their case. Accordingly, we affirm the judgment.
STATEMENT OF RELEVANT FACTS
A. Gauther Is Committed to Atascadero After Assaulting Two Nurses
On September 20, 2012, in a rehabilitation and convalescent home in which he was residing, Gauther attacked two nurses over their refusal to give him a piece of candy. In a later interview, he admitted that during the attack, he was hearing voices that told him what to do. After conviction of assault with a deadly weapon and imprisonment, he was admitted to Atascadero State Hospital on June 17, 2015, as a Mentally Disordered Offender (MDO). His commitment was originally set to expire June 16, 2018.
B. Gauther Is Involved in Several Violent Incidents While at Atascadero
During his first three years at Atascadero, Gauther was involved in at least eight violent incidents. Specifically:
- On August 12, 2015, he struck a staff member and was placed in bed restraints for 13.5 hours.
- On September 2, 2015, he repeatedly struck another patient until the patient fell to the ground, after which Gauther threw a chair at him. Gauther was placed in bed restraints for 60.5 hours.
- On October 22, 2015, Gauther punched another patient twice in the face. He was placed in bed restraints for 29.7 hours.
- On September 17, 2016, Gauther "suddenly and without warning punched a staff member who he had been interacting with in a relative[ly] calm manner moments before." He later reported he had been feeling "'bad, like people were watching me' and his voices 'flipped on me, they were acting like "When you gonna stand up for yourself?"'" He was placed in bed restraints for 21 hours.
- On October 9, 2016, he threw a cup of liquid medication into the face of a staff member, later explaining he had been experiencing paranoid delusions about being bullied by others and needing to lash out to assert himself. He was placed in bed restraints for 14 hours.
- On February 2, 2017, Gauther struck a patient who was pacing in the hallway, later stating he was struggling with paranoid thoughts that others might be targeting him for unspecified reasons. This led to bed restraints for 17 hours.
- On June 17, 2017, Gauther repeatedly struck a staff member without provocation. He was placed in full bed restraints for over 38 hours and subsequently transferred to the Enhanced Treatment Unit.
- On November 7, 2017, without apparent provocation, Gauther stood up and flipped a table over "with considerable force." He was put in full bed restraints for 73 hours.
The Enhanced Treatment Unit is a locked unit at Atascadero that houses patients with a "higher incidence of mental illness-related violence, who have been more violent than the average patient on the units due to their mental illness" until they can be stabilized and returned to a normal treatment unit.
Additionally, on September 20, 2015, he informed staff that he "'might have to hurt somebody'" and asked to be placed in "room seclusion."
C. Atascadero Requests Continued Commitment for Gauther
On March 7, 2018, acting on a request from Atascadero's Medical Director, the District Attorney's Office filed a petition for involuntary treatment under Penal Code section 2970, seeking to extend Gauther's commitment for a year. Gauther denied the petition and, on April 8, 2018, pursuant to Gauther's motion, the court appointed Dr. Mary Jane Alumbaugh to examine him and prepare a report. On the People's motion, the court later appointed Dr. Gordon Plotkin to do the same.
Dr. Plotkin submitted a report, based on his September 5, 2018 evaluation of Gauther, opining that he represented "a substantial danger of physical harm to others" "[d]ue to his severe mental disorder." During Dr. Plotkin's examination, Gauther admitted that when he committed the underlying crime, he was having auditory hallucinations and was a "'little'" delusional. Gauther stated that his medications were supposed to help him, but he was not sure that they did, and that he probably did not need them. Gauther also stated he had "'never thought about'" whether he had a mental illness, but thought he was "'pretty normal.'" Dr. Plotkin opined that Gauther still represented a "substantial danger of physical harm to others" because he was still having auditory hallucinations and "grandiose and paranoid delusions," which were the same symptoms that "precipitated his MDO crime."
Though Gauther's commitment originally was set to end June 16, 2018, the hearing to extend his commitment was continually extended with his consent.
On October 19, 2018, Atascadero's Medical Director requested the District Attorney's Office file another petition for the continued involuntary treatment of Gauther. Six days later, Atascadero submitted to the court a report from Dr. Dia Gunnarsson, a forensic psychologist who worked at Atascadero and was Gauther's forensic evaluator (but not his treating psychiatrist), opining that Gauther suffered from schizophrenia, was not in remission, and "represent[ed] a substantial danger of physical harm to others." Among other things, the report noted Gauther was still experiencing auditory hallucinations and paranoia, and though he knew his diagnoses, he agreed with them only in order to "'get out'" of the hospital, and did not believe he was mentally ill. Gauther also opined that he was given a "basic" diagnosis of schizophrenia because others thought he was not very smart, so he was not given "'Bipolar or one of those special [diagnoses] like white kids or Asian kids.'" He stated he did not think he needed medication and, if released, would take medication only when he truly needed it.
The director acknowledged that Gauther's current commitment date ended June 16, 2018, but noted the ongoing petition to extend it to June 16, 2019. Pursuant to Penal Code section 2970, the director's request was required to be sent to the District Attorney's Office "[n]ot later than 180 days prior" to Gauther's release. (Pen. Code, § 2970, subd. (a).)
On February 21, 2019, the court held a hearing to determine whether Gauther's commitment should be extended to June 16, 2019. After hearing testimony from Drs. Gunnarsson and Plotkin as well as Gauther himself, the court decided it should. That judgment was not appealed.
Dr. Alumbaugh was not called to testify at this hearing.
On March 1, 2019, Dr. Gunnarsson submitted a progress report to the court. She noted Gauther still experienced auditory hallucinations, was "increasingly paranoid [and] anxious," and demonstrated "increased signs of psychiatric decompensation." In a February 28, 2019 meeting with Gauther, she noted he was actively responding to internal stimuli and "verbalized some delusional beliefs" such as that once he left the hospital, he would "go to New York and be picked up by 'white politicians' who will employ him to sell crack cocaine for them." Gauther acknowledged experiencing paranoia as recently as February 27, 2019. Gauther was able to identify his diagnosis and key symptoms, but had limited insight into how his medication helped him, saying only that it "'gives me stuff to think about.'" When asked what could happen if he stopped taking his medication, he responded that he "'[m]ight get a little nervous.'" He also showed limited insight into his substance abuse history and how it could affect his mental illness. He opined that using cocaine might make him feel less nervous. The report noted that on February 15, 2019, Gauther asked to be placed in restraints because he was nervous about his upcoming court trial and "wanted to lash out and hit someone." The report concluded, "Overall, Mr. Gauther appears to be more symptomatic at this time than he was during the previous evaluation on 10/18/18. . . . This increase in symptoms appears to be impacting Mr. Gauther's insight and discharge plans as well and elevating his risk of mental illness related violence. He would benefit from further treatment and stabilization." On March 26, 2019, the court "read[] and consider[ed]" this report.
Also on March 1, 2019, the District Attorney's Office filed another petition for involuntary treatment under Penal Code section 2970, seeking to extend Gauther's commitment to June 16, 2020. Gauther denied the petition, and the court again appointed Drs. Alumbaugh and Plotkin to examine him. Both parties waived the right to a jury trial.
D. The Court Holds a Hearing to Extend Gauther's Commitment to June 16 , 2020
On June 19, 2019, the court held a hearing to decide whether to extend Gauther's commitment to June 16, 2020. Drs. Gunnarsson, Alumbaugh, and Plotkin, as well as Gauther himself, testified. The relevant portions of their testimony are summarized below.
1. Dr. Dia Gunnarsson
Dr. Gunnarsson testified that Gauther had schizoaffective disorder, "some substance abuse diagnoses, as well as personality disorder," and was not in remission. In the past year, she had interviewed Gauther twice, once in October 2018, and once in February 2019. In October, Gauther had periods of confusion during the interview, and at times was slow to respond due to internal preoccupation, but was not actively responding to internal stimuli. In February, he was fairly confused, and it was "hard to have a linear discussion with him." He seemed more symptomatic, was actively responding to internal stimuli, talked to himself under his breath, and admitted to hearing voices "right then and there during [the] interview." When asked what he would do if released, Gauther stated he would go to New York and be "'picked up by white politicians once he got there, who would employ him to sell crack cocaine for them.'" He also stated it might be better for him to use the cocaine because it would "make him feel happy and he wouldn't be nervous."
In total, Dr. Gunnarsson had conducted five evaluations of Gauther.
Dr. Gunnarsson opined that Gauther had limited insight into his mental illness. She noted that in October 2018, he claimed to have no mental illness, and believed he was given a diagnosis of schizophrenia because staff thought he was "stupid." Gauther admitted to symptoms of paranoia, and could identify the medications he was taking, but did not seem to understand how they helped him. Gauther thought if he stopped taking his medications, someone in his family would have him involuntarily committed again, but did not otherwise understand the connection between the medication and his symptoms. Dr. Gunnarsson also noted that until April 20, 2019, Gauther was under a Qawi order.
A Qawi order, so named after In re Qawi (2004) 32 Cal.4th 1, authorizes a state hospital to involuntarily administer antipsychotic medication to treat a severe mental disorder. (Id. at 9-10; State Dept. of State Hospitals v. A.H. (2018) 27 Cal.App.5th 441, 443.)
Dr. Gunnarsson concluded that Gauther "still represents a danger due to his mental illness" based on "[t]he lack of remission, his limited insight [into his mental illness], concerns about his discharge plans, the fact that he is still considered a high risk within the hospital, of violence, and being treated and managed as such, such as being on a behavior plan specifically designed to . . . help the staff help him manage his behavior and incentivize good behavior."
2. Dr. Mary Jane Alumbaugh
Dr. Alumbaugh interviewed Gauther on April 12, 2019. She agreed that Gauther had a serious mental disorder which was not in remission, but opined he nevertheless did not represent a substantial danger of physical harm to others. She noted that his mental disorder was "much improved" and that he had "not exhibited any violence since 2017. Regarding the February incident in which he requested to be placed in restraints, she testified this demonstrated Gauther's ability "to realize the fact when he's escalating and needs to initiate coping responses." She further testified that the February incident occurred before dinner, which Gauther had refused to attend because "'people were picking on [him] and making fun of [him],'" which caused him to escalate and ask to be placed in restraints.
Dr. Alumbaugh testified she had interviewed Gauther twice, though the date of the second interview is unclear. Given that she was appointed on April 8, 2018 to examine Gauther for the first Penal Code section 2970 hearing which occurred on February 21, 2019, her initial examination likely took place between those two dates.
We note that California law specifically provides that a finding of "'substantial danger of physical harm' does not require proof of a recent overt act." (Pen. Code, § 2962, subd. (g).)
Dr. Gunnarsson's March 1, 2019 report stated the incident occurred because Gauther was nervous about his upcoming court trial.
Dr. Alumbaugh stated that Gauther's discharge plan to "move to be with his family and stay with them" was a "reasonable discharge plan." However, she also stated that "because of his history of violence, Mr. Gauther need[ed] to be carefully managed" and that he did well in a "structured and strict behavioral plan." But Dr. Alumbaugh did not know what sort of structure or behavioral plan would be available for Gauther if he were released. She opined it was "probably more than likely" his family would not have the sort of restraints that Gauther had requested in the February incident, and she did not know if they would be able to administer "as-needed" medications.
Dr. Alumbaugh also stated she had not reviewed a May 20, 2019 "violence risk assessment" conducted by Atascadero, but her opinion would not change even if that assessment rated Gauther as a "high risk" for violence because "he's consistently marked as a high risk for violence," due to his history of serious incidents, some of which were "extremely violent in nature."
3. Dr. Gordon Plotkin
Because, by the time of the hearing, Dr. Plotkin had failed to submit a written report on his most recent interview with Gauther, the court limited his testimony to opinions based only on his September 2018 interview of Gauther, and anything he had heard at the current hearing. Dr. Plotkin opined that Gauther continued to represent a substantial danger of physical harm to others. He based his opinion on Gauther's continuing auditory hallucinations and delusions, the fact that Gauther's mental illness was not in remission and was the same illness that caused the underlying offense and at least one other assault at Atascadero, Gauther's disorganized thinking, his lack of insight into his mental illness, his lack of a plan for care of his mental illness, and his lack of a plan to avoid substance abuse. Over Gauther's objection, Dr. Plotkin noted that Gauther had been consistently evaluated to have a "high level of violent risk," which was a rating Dr. Plotkin rarely saw in individuals he evaluated in state hospitals. He stated that 90 percent of the time, the individuals he evaluated were rated a "low" risk, and he usually did not see anyone higher than "moderate" risk. Out of the approximately 2,000 patients he had evaluated, Dr. Plotkin believed fewer than 50 had been rated a "high" risk. Dr. Plotkin noted that Gauther had not been taking his prescribed medication when he committed the underlying crime and, during their September 2018 interview, Gauther had expressed a desire not to take his medication. Dr. Plotkin opined that during the September 2018 interview, Gauther had "very little in the way of any kind of relapse prevention plan or understanding of what type of treatment he needed."
4. Cory Gauther
Gauther testified that his discharge plan was to eat regular meals, take his medications, stay "violence-free," stay safe, see his doctor on a regular basis, and live with his family. His plan for avoiding drugs was that he would not do drugs because he needed to "sustain [his] sanity" and did not want to end up back at Atascadero. Gauther stated he had been diagnosed with paranoid schizophrenia in 2002, for which he took and would continue to take medication, even after released. He claimed to have always taken his medication, except for the times that he "reluctantly forgot" because he did not "realize how important it is." However, "through the years and years since [he] became older and understanding [of his] mental illness, [he] realized that Cory [Gauther] needs to take his medication, and [he] will continue to take [his] medication, because that's what [he] need[s] to do to stay functional in society." Regarding the February incident, he stated he was nervous and panicking and anxious and did not know what to do with himself. He was "not going to commit any violent offenses" but thought that it would be best to go into restraints. He was given some "PRNs" -- as-needed medication -- before being placed in the restraints. When asked what he thought would have happened had he not been placed in restraints, he responded: "I don't know. I'm not a -- I'm not Houdini. I don't -- I don't -- I don't know what's going -- I can't predict the future. I don't know what's going to happen in the future. I probably would just end up getting by pretty good. Just have to lay down, just wait for everything to resolve itself naturally. But other than that, I can't tell you what's gonna happen when I'm not in front of it. I -- who predicts the future in this world?"
E. The Court Rules
After hearing closing arguments, the court stated, "it's a close case, but I do believe the people have met their burden, and the reason is this. Despite the gains Mr. Gauther has made in the structured setting of the hospital, I don't believe there's solid evidence that he would follow the plan that he's outlined if he were released from the hospital." After commenting on the difficulty in finding Gauther's discharge plan to be reasonable, the court continued: "The fact that he's remained out of trouble for at least some period of time in the hospital is a very positive sign, but at this point I do believe that the People have met their burden." Therefore, the court informed Gauther that "I find that you have a severe mental disorder that is not in remission and, by reason of a severe mental disorder, that you represent a substantial danger of physical harm to others." The court extended Gauther's commitment to June 16, 2020. Gauther timely appealed.
DISCUSSION
"Under the MDO statute, defendant's commitment may not be extended unless the prosecution proves, beyond a reasonable doubt, that he has a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and that, as a result of the disorder, defendant represents a substantial danger of physical harm to others." (People v. Noble (2002) 100 Cal.App.4th 184, 190.) In this appeal, Gauther challenges only the finding that he represents a substantial danger of physical harm to others. As set forth below, we conclude substantial evidence supports the court's finding.
A. Substantial Evidence Supports the Court's Finding That Gauther Represented a Substantial Danger of Physical Harm to Others
"In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. (E.g., People v. Miller (1994) 25 Cal.App.4th 913, 919 .) '"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. . . .' [Citation.]"' (Ibid., quoting People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103]; accord, People v. Pace (1994) 27 Cal.App.4th 795, 797 .)" (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.)
At the June 16, 2019 hearing, evidence was presented that Gauther was still suffering from the same mental illness that precipitated his underlying crime, and was still experiencing auditory hallucinations and delusions. Evidence was also presented that for a three-year period after Gauther was committed to Atascadero (i.e., June 17, 2015 to June 16, 2018), Gauther violently assaulted either Atascadero staff or other patients on several occasions, and in one instance flipped over a table "with considerable force." Each of these incidents resulted in Gauther being placed in restraints for a duration ranging between 13.5 and 73 hours. In September 2015, Gauther also had an incident in which he told the hospital staff that he "'might have to hurt somebody'" and asked to be placed in "room seclusion." While there was no evidence of a violent incident after 2017, on February 15, 2019, Gauther told hospital staff that he was feeling like he might lash out at someone, and asked to be placed in restraints. The hospital consistently rated Gauther to be at a "high risk" for violence, which Dr. Plotkin opined was rare -- out of over 2,000 patients he had examined, he estimated only 50 had such a designation (the remainder were rated at a low or moderate risk).
Concerns were also presented regarding the level of Gauther's insight into his mental illness, in addition to how he would function if released. Gauther had previously stated he did not think he was mentally ill, but would agree that he was in order to get out of Atascadero. In interviews with Dr. Gunnarsson, he demonstrated little understanding of the benefits of his medication, or the dangers of not taking it. While Gauther testified he would live with his family and continue to take medication if released, there was no evidence he had any support system in place to aid him. Dr. Alumbaugh, the only expert who testified that Gauther was no longer a danger, opined that he needed to be carefully managed with a structured and strict behavioral plan, but admitted she did not know whether there would be such a plan for him if released. She also testified that it was "probably more than likely" that his family would be unable to provide him with the restraints he had requested in February, when he believed he was going to hurt someone. Nor did she know if Gauther's family was equipped to provide Gauther "as-needed" medication. On this record, we find substantial evidence supports the court's finding beyond a reasonable doubt that Gauther represented a substantial danger of physical harm to others if released.
B. Gauther's Arguments to the Contrary Are Unavailing
1. Evidence Beyond Gauther's Mental Illness Supported the Court's Finding of Dangerousness
In People v. Gibson (1988) 204 Cal.App.3d 1425, the court of appeal held that a previous version of Penal Code section 2962 "requiring a person who had been sentenced to a determinate sentence . . . to be confined in a mental hospital as a condition of parole . . . violates equal protection because it mandates involuntary confinement and treatment of former prisoners who are mentally ill without proof of dangerousness." (Id. at 1429.) In response, the Legislature "amended the statutes effective July 1989 to comply with Gibson." (People v. Robinson (1998) 63 Cal.App.4th 348, 350.) Specifically, the Legislature added a provision requiring the People to prove that "by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others." (Former Pen. Code, § 2962, subd. (d)(1) and former Pen. Code, § 2970, subd. (b), effective July 27, 1989; see also Former Pen. Code, § 2972, subd. (c), effective July 27, 1989 [adding requirement that the factfinder find "that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others"].) These provisions were effective at the time of the June 2019 hearing, and are still substantively effective today. (Former Pen. Code, § 2970, subd. (b), effective January 1, 2014; former Pen. Code, § 2972, subd. (c), effective June 27, 2012.)
The current version of the statutes replaced "by reason of his or her several mental health disorder" with "by reason of the person's severe mental health disorder" in the case of Penal Code section 2970, and "by reason of the patient's severe mental health disorder" in the case of section 2972. (Pen. Code, § 2970, subd. (b) and § 2972, subd. (c), italics added.)
Gauther argues that the court's finding of dangerousness runs afoul of Gibson because the only evidence of dangerousness was that his mental illness, which precipitated the underlying crime, was not in remission. Gauther is incorrect. As discussed above, there was also evidence of: (a) Gauther's history of violence toward staff and patients alike at Atascadero; (b) a recent incident where his feeling that he would hurt someone was powerful enough to warrant a request to be placed in restraints; (c) the fact that the hospital consistently rated him as a "high risk" for violence, something Dr. Plotkin testified was only true of approximately 2.5 percent of the 2,000 patients he had examined; and (d) valid concerns that if Gauther were released, he would have no structure in place, and would have no access to the behavior plans, the "as needed" medications, or the restraints available to him at Atascadero to help moderate his behavior. Because evidence other than Gauther's lack of remission supported the court's finding of dangerousness, the trial court's finding does not conflict with the principles set forth in Gibson.
2. Gauther's Lack of Insight into His Mental Illness Supported a Finding of Dangerousness
Gauther argues the evidence regarding his lack of insight into his mental illness "did not support a finding of dangerousness" because "that claim was contravened by Gunnarsson's admission that appellant was medically compliant . . . as well as by the February 2019 incident, in which appellant voluntarily placed himself into restraints, based on his feelings of anxiety regarding an upcoming court date." Gauther complains that "[n]owhere do Gunnarsson or Plotkin explain why someone would take medication, or voluntarily seek to be restrained, for a disorder that he believed he did not have." In other words, while Gauther does not deny that a lack of insight into one's mental illness would support a finding of dangerousness, he argues there was no basis to conclude Gauther lacked such insight.
Dr. Gunnarsson testified that, based on her interviews with Gauther, her professional opinion was that he had limited insight into his mental illness. Gauther was able to identify his diagnosis and key symptoms, but had limited insight into how his medication helped him (saying only that it "'gives me stuff to think about'") and, when asked what could happen if he stopped taking his medication, he said only that he "might get a little nervous." He also had limited insight into his substance abuse history and how it could affect his mental illness, suggesting instead that after his release, taking cocaine might make him feel less nervous. Gauther had previously stated he did not think he was mentally ill, but that in order to secure his release from Atascadero, he would agree to say he was.
Gauther denies none of this evidence. Instead he appears to argue that because he was taking his medication and once voluntarily requested to be placed in restraints, the court was compelled to disregard any conclusion that he lacked insight into his mental illness. We disagree. There are a myriad of reasons for Gauther to have taken his medication without having insight into his mental illness. As noted, he previously acknowledged he would admit to mental illness though he did not believe he was mentally ill in order to facilitate his release from Atascadero. It is reasonable to conclude Gauther would take his medication for the same reason. Additionally, while asking to be restrained when he felt he might attack someone was commendable, such a request evidenced only Gauther's ability in a single instance to sense a pending assault -- it does not conclusively demonstrate he understood why he was about to attack someone or that he would be able to refrain from doing so in the future. The court did not err in relying on Dr. Gunnarsson's conclusion that Gauther had limited insight into his mental illness, and Gauther's evidence fails to invalidate Dr. Gunnarsson's conclusion.
Moreover, until April 20, 2019, Gauther was under a Qawi order, meaning that if he did not voluntarily take his medication, it would have been forcibly administered.
We note also that Gauther made a similar request on September 20, 2015 -- to be placed in "room seclusion" because he "'might have to hurt somebody'" -- and then proceeded to be involved in six other violent incidents over the next 29 months.
3. Dr. Plotkin's Opinion Was Admissible; It Is Irrelevant Whether It Would Be Sufficient to Support the Court's Finding on Its Own
Gauther argues that Dr. Plotkin's testimony was "improper," because it was based on his evaluation of Gauther in September 2018, and the issue before the court was Gauther's "current" dangerousness. "At an extension proceeding, the questions are: Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others? ([Pen. Code,] § 2972, subd. (c).) A defendant's condition a year earlier is relevant but not dispositive of these questions." (People v. Cobb (2010) 48 Cal.4th 243, 252, italics added.) Therefore, any issues with Dr. Plotkin's opinion would go toward its weight, not its admissibility. Indeed, in his reply brief, Gauther does not deny Dr. Plotkin's testimony was admissible, but argues it was "insufficient to establish beyond a reasonable doubt appellant's present condition or present dangerousness."
Preliminarily, we note that Dr. Plotkin's opinion was based not only on his interview with Gauther nine months prior, but also on the testimony of Drs. Gunnarsson and Alumbaugh describing their more recent interviews. Because the testimony confirmed Gauther's current condition as similar to what Dr. Plotkin observed in his interview in September 2018, Dr. Plotkin's opinion that Gauther was still dangerous supports the court's finding of current dangerousness.
In any case, it is irrelevant whether Dr. Plotkin's testimony alone would have been sufficient to support the court's finding because the court also considered the testimony of Dr. Gunnarsson. "A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant's commitment under [Penal Code] section 1026.5." (People v. Bowers (2006) 145 Cal.App.4th 870, 879.) Thus, even without Dr. Plotkin's testimony regarding Gauther's current dangerousness, substantial evidence would still support the court's finding.
Penal Code section 1026.5 authorizes keeping a person beyond his or her date of maximum confinement "if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (Pen. Code, § 1026.5, subd. (b)(1).)
4. The Court Did Not Err in Permitting the Experts to Rely on Atascadero's Rating of Gauther as Being a "High Risk" for Violence
Gauther argues that "the reliance by both Gunnarsson and Plotkin on the risk assessment of appellant performed by persons at the hospital, which considered appellant to be at a high risk of violence . . . cannot support a finding of dangerousness, both because there was no evidence of any facts on which the assessment was based, and because the mere recitation by the People's experts of that assessment constituted 'case specific' hearsay and the improper 'channeling' of other, nontestifying individuals."
We need not decide whether the testimony regarding Gauther's risk level constituted "case specific" hearsay because Gauther forfeited this objection by failing to raise it below. All three experts -- Drs. Gunnarsson, Alumbaugh, and Plotkin -- testified that staff at Atascadero had assessed Gauther as a "high risk" for violence. While Gauther interposed an objection when Dr. Plotkin so testified, he failed to do so when Drs. Gunnarsson and Alumbaugh -- both of whom testified before Dr. Plotkin -- gave the same testimony. (People v. Williams (2008) 43 Cal.4th 584, 620 ["'"questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal"'"].) Thus, even had the court's overruling of Gauther's objection to Dr. Plotkin's testimony been erroneous, the testimony of Drs. Gunnarsson and Alumbaugh would still stand.
We interpret Gauther's argument that there was "no evidence" to support the risk assessment as a contention that the assessment lacked foundation. Again, no such objection was raised below when Drs. Gunnarsson and Alumbaugh testified about Gauther's "risk" level, and therefore cannot be raised now. Moreover, Dr. Alumbaugh testified that Gauther's consistent "high risk" assessment was based on "very serious incidents" in his history, some of which were "extremely violent in nature." The court did not err in permitting the experts to rely on the risk assessment.
5. Dr. Gunnarsson Competently Testified to Gauther's Discharge Plans
Gauther argues that Dr. Gunnarsson's concerns regarding Gauther's discharge plans did not support a finding that Gauther was dangerous because Dr. Gunnarsson allegedly "did not recall what [the discharge plans] were and did not discuss them with appellant." But the record shows that while Dr. Gunnarsson did not immediately recall what Gauther's discharge plans were, her recollection was refreshed after reviewing her report, and that Gauther's plan as relayed to Dr. Gunnarsson was that he was going to New York where he would be "picked up by white politicians once he got there, who would employ him to sell crack cocaine for them." We think it self-evident that Dr. Gunnarsson would be rightly concerned with this discharge plan.
6. The Court's Concerns About Gauther's Discharge Plans Demonstrated No Misunderstanding of the Burden of Proof
Finally, Gauther argues that when the court stated, "'I don't believe there's solid evidence that [appellant] would follow the plan that he's outlined if he were released from the hospital'" the court "improperly blamed appellant for his 'failure' to prove that he was not dangerous," which was "an improper inversion or shifting of the burden of proof in MDO proceedings, which . . . is on the People." We do not find the court's statement indicated a misunderstanding of the law.
One of the court's first remarks in ruling was that it believed "the People have met their burden." The court repeated this statement immediately before finding the petition true. "Evidence Code section 664 provides that '[it] is presumed that official duty has been regularly performed.' . . . [A] number of criminal cases unequivocally hold that th[is] rule encompasses a presumption that the trial court applied the proper burden of proof in matters tried to the court." (Ross v. Superior Court of Sacramento County (1977) 19 Cal.3d 899, 913-914.)
As detailed previously, although Dr. Alumbaugh opined that Gauther needed to be carefully managed with a structured and strict behavioral plan, she had no idea what sort of plan there would be for him if he were released. Nor did she think he would have access to the restraints that he had requested in the February incident. She testified that she did not know if Gauther's family was equipped to provide Gauther with "as-needed" medication.
On this record, it is reasonable to interpret the court's statement as a comment that the People had demonstrated that, in order for Gauther to follow his plan of staying "violence-free," at the very least he needed to be in a structured environment with people who could ensure he took his medications, and could provide him with a behavioral plan, "as-needed" medications, and proper restraints when necessary; the evidence at trial was that there would be no such environment for Gauther if released. Gauther fails to rebut the presumption that the court followed the law. (See People v. Valdez (2012) 55 Cal.4th 82, 176 [defendant has burden of proving court failed to follow law]; Evid. Code, §§ 660, 606.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: COLLINS, J. CURREY, J.