Filed 3/3/09 P. v. Porter CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES CLEVELAND PORTER,

Defendant and Appellant.

A120191

(Solano County

Super. Ct. No. VC32496)

Charles Cleveland Porter appeals from an order extending his commitment as a mentally disordered offender (MDO) for another year pursuant to Penal Code sections 2970 and 2972. Porter contends that the trial court’s finding that his mental disorder could not be kept in remission without treatment was not supported by substantial evidence. He further argues that the trial court erroneously used a “high likelihood” standard to assess whether he would continue taking his medications if released. We conclude that substantial evidence, in the form of testimony by Porter’s treating psychologist and psychiatrist, supported the trial court’s findings. Moreover, Porter has not met his burden of showing that the trial court used an improper standard of proof in making those findings. Consequently, we affirm.

BACKGROUND

According to a report prepared by Porter’s treatment team which was not entered into evidence at trial, Porter, who is 56 years old, has had more than 20 psychiatric hospitalizations since his first psychiatric admission at age 21. He has a long criminal record, which includes arrests for disturbing the peace, battery, assault with a deadly weapon, petty theft, rape, forced oral copulation, robbery, burglary, vandalism, kidnapping, vehicle theft, and sexual battery. His controlling offense, as alleged in the petition for continued involuntary treatment (Petition), is assault with intent to commit sexual battery in violation of section 243.4, to which he pleaded no contest in 1992.

Before Porter’s involuntary commitment was set to expire on November 21, 2007, the district attorney timely filed the Petition, seeking to extend Porter’s commitment for another year. The Petition charged that Porter was an MDO “who, by reason of a severe mental disorder that is not in remission or cannot be kept in remission without treatment, represents a substantial danger of physical harm to others.” Porter waived his right to a jury trial on the Petition.

At the bench trial on the Petition, the sole witnesses were Porter’s treating psychologist, Dr. Alex Kettner, and one of his treating psychiatrists, Dr. Jonathan Berry, both of whom were called by the prosecution. At the trial’s conclusion, the court found true the allegations in the Petition and issued an order extending Porter’s MDO commitment until November 21, 2008.

DISCUSSION

I. Substantial Evidence Supports the Trial Court’s Findings

Porter claims that insufficient evidence supported the court’s finding that he could not be kept in remission without treatment within the meaning of section 2962. The Attorney General asserts that the court in fact found that Porter suffered from a mental disorder that was not in remission, that there was substantial evidence to support this finding, and, alternatively, that there was substantial evidence that Porter’s disorder could not be kept in remission without treatment. We conclude that there was substantial evidence in support of the court’s findings under either interpretation of what those findings were.

A. Background

i. Dr. Kettner’s Testimony

Dr. Kettner testified that Porter had been diagnosed with “schizoaffective disorder, bipolar type, and polysubstance dependence.” According to Dr. Kettner, Porter continued to exhibit symptoms of his mental illness. Dr. Kettner opined that Porter was not an appropriate candidate the conditional release program (CONREP), which treats people with mental illness who have been released from the California State Hospital system. Dr. Kettner explained that if someone had a sustained period of little or no symptoms of his mental illness and was compliant about taking medication and following rules, then the person could be eligible for CONREP. In Dr. Kettner’s opinion, Porter was not currently a good CONREP candidate because he continued to lack insight into his mental illness, continued to deny needing medication, and had not yet completed a required sex offender treatment program.

Dr. Kettner agreed that the purpose of the psychotropic medications Porter was taking was to control the symptoms of his mental illness, including aggressive and violent behavior. Dr. Kettner opined that if Porter did not take these medications, he “would likely become highly agitated and aggressive.” Although Porter had not been physically aggressive toward hospital staff in the previous year, in the more distant past Porter had been aggressive toward others when he had refused to take his medications.

Dr. Kettner opined that Porter would not continue to take his medications unless forced to do so, noting that Porter in the past had refused to take his medications and, recently, had been repeatedly saying he did not believe he needed medication. In the more distant past, “not necessarily this year or last,” Porter “was given forced medication” after he had refused to take it and the medical staff determined that he was in danger if he did not take it.

On recross-examination, Dr. Kettner agreed that Porter frequently requested pro re nata medication, meaning medication as needed, for example, when he felt agitated. The nurses gave him this medication if they felt it was warranted. Dr. Kettner also agreed that the “present status” section of the September 2007 “wellness and recovery plan,” which was not admitted into evidence, indicated that Porter was “medication compliant,” meaning he was taking his medication. Finally, Dr. Kettner agreed that plan indicated that Porter had been cooperative in the unit, and that this was an accurate assessment regarding “the last year or so.”

ii. Dr. Berry’s Testimony

Dr. Berry testified that Porter had been transferred from an open unit to his current closed unit because he had not complied with taking his medication, was in a hypomanic state, and had been verbally aggressive toward others. Porter had “periods of agitation and verbal aggression” in the past “couple of years,” but Dr. Berry was “not sure whether his last act of physical aggression falls within that two-year window.” However, Porter had not displayed violent behavior, as distinguished from aggressive behavior, within the past year.

Dr. Berry said that Porter had “a schizoaffective disorder, bipolar type and polysubstance dependence,” as Dr. Kettner had testified., and also an Axis-II diagnosis of antisocial personality disorder. He opined that all three of these diagnoses carried an increased risk of violent behavior.

Dr. Berry prescribed the medications Porter was taking at the time of trial. Without these medications, particularly the anti-psychotic Trifluoperazine, Dr. Berry believed that Porter would again experience the psychotic symptoms which he had experienced in the past. Dr. Berry estimated that these symptoms would reappear “within the first few months of discontinuing the medications.” Dr. Berry cited Porter’s past pattern of multiple state hospital admissions and of non-compliance with his medications as evidence that it was “highly likely that he would not continue his medications” if released without supervision. Porter had recently been more compliant in taking his medications, but also had been given medication involuntarily in the past.

Dr. Berry agreed that it was highly likely that Porter would have difficulty controlling his behavior if he did not take his medication. Dr. Berry stated that although Porter’s medications lessen his symptoms significantly, they did not completely control the symptoms, “particularly with regard to psychotic symptoms.” The medications simply reduced the risk of the symptoms reoccurring and reduced the symptoms’ severity.

After being examined by the parties, the trial court asked Dr. Berry what in his opinion Porter would have to do (1) to be transferred from a closed unit to an open one and then (2) to become eligible for CONREP. Dr. Berry responded that Porter was just about ready for an open unit based on improved behavior during the past few months. However, Dr. Berry noted that Porter had a positive urine test for methamphetamine about six months before trial, and would need a certain amount of time with clean tests to be eligible for the open unit. Before transitioning to CONREP, Dr. Berry believed that Porter needed to stop denying his mental illness and his need for medication, needed to achieve greater insight into his mental illness, and needed to complete sex offender and substance abuse treatment, noting that Porter’s substance abuse had “played a significant role.”

B. Analysis

“The MDO law is a civil commitment scheme targeting state prisoners with severe mental disorders who are about to be released . . . . Once a prisoner has been certified as an MDO, inpatient treatment under the supervision of [the State Department of Mental Health (DMH)] is usually required unless DMH certifies that the prisoner can be treated in an outpatient program.” (People v. Martin (2005) 127 Cal.App.4th 970, 973 (Martin).) “The purpose of the MDO law is to protect the public by identifying those prisoners who would pose a danger to society upon release due to their mental disorder.” (Id. at p. 974.) “We review the court’s finding on an MDO criterion for substantial evidence, drawing all reasonable inferences and resolving all conflicts, in favor of the judgment.” (Id. at p. 975.) “Substantial evidence” in this context, just as in a criminal case, means “evidence that is reasonable, credible, and of solid value – to support the [court’s] finding.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398 (Beeson); People v. Miller (1994) 25 Cal.App.4th 913, 919-920 [the substantial evidence test used in criminal appeals also applies to appellate review of MDO proceedings].)

Under section 2972, a court may order an MDO recommitted to his current state mental facility for an additional year if (1) the MDO continues to have “a severe mental disorder” ; (2) the MDO’s “mental disorder is not in remission or cannot be kept in remission without treatment”; and (3) the MDO continues to represent a “substantial danger of physical harm to others.” (Beeson, supra, 99 Cal.App.4th at pp. 1398-1399, italics added; § 2972, subds. (c), (e).)

Porter is correct that the trial court never specifically stated that Porter’s mental disorder was not in remission. The court stated at the end of trial “that Mr. Porter suffers from a severe mental disorder and cannot be kept in remission without medication.” The court’s order extending Porter’s commitment merely stated that the court had found that Porter “does have a severe mental disorder, pursuant to Penal Code section 2970 which would cause [Porter] to represent a substantial danger of physical harm to others . . . .” However, whether the court found, by implication, that Porter’s severe mental disorder was in remission but could not be kept in remission without treatment, or whether the court found both that his disorder was not in remission and could not be kept in remission without treatment, there was substantial evidence to support the court’s overall finding that the required elements for recommitting Porter were satisfied.

First, there was substantial evidence that Porter’s disorder was not in remission. Such a finding, standing alone, was a sufficient basis for the recommitment order. (§ 2972, subds. (c), (e).) “The term ‘remission’ means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.” (§ 2962, subd. (a).) Dr. Kettner testified that at the time of trial Porter continued to exhibit the symptoms of his mental illness. Dr. Berry, the doctor who prescribed Porter’s medications, testified that while he wished that Porter’s psychotropic medications controlled the symptoms of his mental disorder, they did not completely control those symptoms, particularly the psychotic ones. Dr. Berry testified that Porter’s medications merely reduced the risk of the symptoms reoccurring and tended to reduce their severity. There was no evidence regarding the impact of psychosocial support on Porter’s symptoms. Drawing all reasonable inferences from the evidence in favor of the court’s order (Martin, supra, 127 Cal.App.4th at p. 975), there was substantial evidence that Porter’s symptoms were not being controlled either by psychotropic medication or psychosocial support. (§ 2962, subd. (a).)

Second, even assuming that Porter’s mental disorder was in remission, there was substantial evidence that his disorder could not be kept in remission without treatment—another sufficient basis for the recommitment order. (§ 2972, subds. (c), (e).) “A person ‘cannot be kept in remission without treatment’ if during the year prior to the question before the . . . trial court, he . . . has been in remission and he . . . has made a serious threat of substantial physical harm upon the person of another . . . , or he . . . has intentionally caused property damage, or he . . . has not voluntarily followed the treatment plan.” (§ 2962, subd. (a).)

There was no evidence that within the year prior to trial Porter had physically threatened anyone or intentionally caused property damage. Instead, the main factual issue regarding remission in this case centered on Porter’s compliance with his treatment plan. It can be shown that a defendant’s mental disorder cannot be kept in remission without treatment “by establishing that the defendant has failed to voluntarily follow his treatment plan.” (Beeson, supra, 99 Cal.App.4th at p. 1399.) “[N]ot voluntarily following the treatment plan is essentially an exception to the finding that the illness is in remission.” (Id. at p. 1400.) “Even when a person does not exhibit violent or threatening behavior, his failure to participate in his treatment plan also may reveal whether he can reenter society without the constraints and protections afforded in a structured environment. In other words, rather than relying on the presence of overt symptoms, the Legislature provided additional factors in gauging a person’s current condition.” (Ibid.) “In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan.” (§ 2962, subd. (a).)

It can be reasonably inferred from the testimony of both Dr. Kettner and Dr. Berry that Porter’s treatment plan consisted of Porter fulfilling the requirements for admission first into an open unit from his current closed unit, and then for admission into CONREP. (Martin, supra, 127 Cal.App.4th at p. 975) Dr. Kettner testified that CONREP often requires that an MDO be transferred to an open unit prior to release into the community. Both Dr. Kettner and Dr. Berry testified that at the time of trial, Porter was in a closed unit, having been transferred in early 2005 from an open unit because he had not complied with medication, had failed to follow rules, had been in a hypomanic state, and had been verbally aggressive with the staff. Dr. Berry indicated that Porter was not yet ready to be transferred to an open unit, in part because of a positive urine test for methamphetamine about six months before trial.

Regarding CONREP, both witnesses testified that they did not believe that Porter was currently eligible. They both testified that Porter had not yet completed a sex offender treatment program required for CONREP. More significantly, Dr. Kettner testified that within the past year Porter had repeatedly said that he did not believe he needed medication. In part because of this belief, Dr. Kettner opined that Porter would not voluntarily continue taking his prescribed medications if released into the community, which in turn would result in Porter becoming highly agitated and aggressive. Dr. Berry expressed the same opinions. And both Dr. Kettner and Dr. Berry emphasized that Porter lacked insight into and continued to deny his mental illness. Such insight is another prerequisite for admission into CONREP.

In Beeson, the defendant similarly “was inconsistent in acknowledging his mental illness and his need for medication and treatment.” (Beeson, supra, 99 Cal.App.4th at p. 1399.) The court in Beeson concluded that this was substantial evidence of not voluntarily following the treatment plan per section 2962, explaining that a “reasonable person, whose mental disorder can be kept in remission with treatment, must, at minimum, acknowledge if possible the seriousness of his mental illness and cooperate in all the mandatory components of his treatment plan.” (Ibid.) Similarly, in People v. Noble (2002) 100 Cal.App.4th 184 (Noble), there was evidence that the defendant believed he did not need medication and that he would relapse if he stopped taking his medication. (Id. at p. 191.) Like Dr. Kettner and Dr. Berry, the defendant’s treatment professionals in Noble opined that, “without treatment and supervision, [the defendant] would discontinue the medication and ‘become more aggressive.’ ” (Ibid.) Based on this evidence, the court in Noble concluded that a “jury could reasonably conclude that defendant meets the statutory criteria for an extension of his MDO commitment.” (Ibid.)

Based on the foregoing testimony and authorities, we conclude that there was substantial evidence that within the year prior to trial Porter had not voluntarily followed his treatment plan (§ 2962, subd. (a)), having not even met the requirements for being transferred from his current closed unit to an open unit, let alone the requirements for admission into CONREP.

II. The Trial Court’s Reference to the Likelihood of Taking Medications

A. Procedural Background

Although the prosecutor acknowledged during closing argument that the People bore the burden of proving the MDO elements beyond a reasonable doubt, he also argued that Porter bore the burden of proving by a preponderance of the evidence that he would “take his medication in an unsupervised environment” if Porter’s counsel was relying on this defense. The prosecutor argued, “if that’s [Porter’s] defense, he has to put on evidence and there’s been no evidence produced, in fact, there’s been evidence produced by two doctors called by the prosecution [that] if Mr. Porter was put in the open level at Napa State [Hospital], their opinion is he would not take these medications.” Counsel for Porter did not rely upon this defense. Instead, his counsel simply argued that the prosecution had not met its burden of proving the MDO elements by failing to prove that Porter was not in remission and by failing to prove that Porter could not be kept in remission without treatment.

In granting the Petition and stating its findings that Porter suffers from a severe mental disorder and that his disorder cannot be kept in remission without medication, the trial court did not refer to the standard of proof either orally or in its written order. However, the court stated immediately after announcing its findings at trial that “[t]here’s a high likelihood that if unsupervised [Porter] would not take his medications based on his past history.”

B. Analysis

Porter argues that the court’s statement shows that it erroneously used a “high likelihood” standard to assess whether Porter would continue taking his medications if released, instead of using the statutorily required proof beyond a reasonable doubt standard (see § 2972, subd. (a)), and further argues that the court “premised its ruling” on this erroneous standard. Applying the applicable presumptions in favor of the trial court’s order, we conclude that Porter has failed to establish that the court used an improper standard of proof in making the required findings for this case.

Porter is correct that he did not bear the burden of proving by a preponderance of evidence that he would take his medication in an unsupervised environment. (See People v. Noble, supra, 100 Cal.App.4th at p. 187 [it was prejudicial error to allocate to the defendant the burden to prove by a preponderance of the evidence that, as a result of medication, his mental disorder was in remission and he was not dangerous to others].) Instead, as the prosecutor acknowledged during closing argument, the People bore the burden of establishing all of the MDO elements beyond a reasonable doubt. (§ 2972, subd. (a); Noble, supra, at p. 190.)

However, it is Porter’s burden on appeal to overcome the presumption that the trial court applied the correct burden of proof. “ ‘Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.’ [Citation.] ‘ “We must indulge every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error—it will not be presumed. [Citation.]” [Citations.]’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) The defendant “bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant.” (Ibid.) Consistent with these principles, “ ‘ “a trial court is presumed to have been aware of and followed the applicable law. [Citations.]” [Citations.] This rule derives in part from the presumption of Evidence Code section 664 “that official duty has been regularly performed.” ’ [Citation.] The effect of the rebuttable presumption created by section 664 is ‘ “to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.” [Citation.]’ [Citations.]” (Id. at pp. 549-550.)

First, we note that the prosecutor did correctly state during argument that the People bore the burden of establishing the MDO elements beyond a reasonable doubt. Although at one point the prosecutor invited the court to apply a preponderance of the evidence standard, he made it clear that such a standard would apply only if Porter’s counsel was relying on the defense that he would “take his medication in an unsupervised environment.” Counsel for Porter did not rely upon this defense. Consequently, it is unlikely that the court was misled by the erroneous portion of the prosecutor’s argument.

Second, even assuming the court’s statement indicates that it applied a “high likelihood” standard regarding the issue of taking medication if unsupervised, we can reasonably interpret the statement as a stand-alone remark that does not explain or support the court’s main findings pursuant to sections 2970 and 2972 that Porter suffered “from a severe mental disorder” and could “not be kept in remission without medication.” Based on our obligation to resolve “any uncertainty in the record” against Porter (Sullivan, supra, 151 Cal.App.4th at p. 549), we must adopt this interpretation.

As discussed in the first section of this opinion, the issues at trial were whether Porter’s mental disorder was in remission, meaning he did not display overt symptoms, and whether, assuming he was in remission, he had voluntarily followed his treatment plan within the year prior to trial. (§ 2962, subd. (a).) Consequently, in order to grant the Petition, the court did not need to make any specific finding about the likelihood that if unsupervised Porter would not take his medications. Where, as here, defense counsel only requests that the trial court deny the Petition on grounds that the defendant is no longer for qualified for commitment as an MDO, the trial court has no sua sponte duty to make such a finding. (See People v. Rish (2008) 163 Cal.App.4th 1370, 1384 [there is no sua sponte duty by the court in such a situation to determine whether the defendant can be safely and effectively treated on an outpatient basis].) Indeed, the court did not include a finding regarding the likelihood of taking medication if unsupervised in its written order granting the Petition or anywhere else in the record. Consequently, Porter has not established that the trial court premised its ruling on a “high likelihood” standard.

DISPOSITION

The order extending Porter’s commitment to November 21, 2008, is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.