APPEAL from an order of the Superior Court of Madera County. Eric C. Wyatt, Judge. (Super. Ct. No. MCR08613).
The opinion of the court was delivered by: Gomes, J.
CERTIFIED FOR PUBLICATION
In December 2001, defendant Edith Ann Bowers was found not guilty by reason of insanity (NGI) of two counts of battery on correctional officers. (Pen. Code, § 4501.5.)*fn1 The court committed Bowers to the Department of Mental Health (DMH). In 2005, after waiver of a jury trial, Bowers's commitment was extended to August 16, 2007. We affirmed the order extending Bowers's commitment in People v. Bowers (2006) 145 Cal.App.4th 870 (Bowers).
On May 8, 2007,*fn2 Bowers was conditionally released to the Central California Conditional Release Program (CONREP) for outpatient treatment and supervision. In October 2007, CONREP requested Bowers's outpatient status be revoked because she violated the terms and conditions of her release. The court remanded Bowers into the custody of the Madera County Department of Corrections pending a hearing on CONREP's request.
A petition for extended commitment under section 1026.5, subdivision (b) was filed on December 4 alleging that Bowers continued to possess a mental disease, defect or disorder, and by reason of such mental disease, defect, or disorder, represented a substantial danger of physical harm to others. The petition was based on an attached declaration from Jeffrey Zwerin, D.O., Medical Director at Napa State Hospital (NSH), which incorporated a March 5 hospital case summary.
At the December 13 trial confirmation hearing, Bowers's counsel informed the court she wanted to "waive her right to a hearing." The court explained what that meant: "In this case it would be a jury trial on an extended commitment and agree to an extended commitment and being sent back to Patton for a period of two years." Bowers responded, "Yes." The court took Bowers's waiver of her right to a jury trial, in which her counsel joined. The court asked defense counsel whether "in this case is it going to be by means of submission on the reports or is it going to be by stipulation to the findings that by reason of mental disease, defect or disorder, Miss Bowers represents a substantial danger of physical harm to others?" Defense counsel responded, "Stipulation of the reports I believe, Your Honor." The court explained it would mark as Exhibit 1 "for purposes of what would be a Court trial, instead of a jury trial, the report that was filed by Mr. Duarte. And based upon that you understand having read that, I will make the findings as indicated and I will extend your commitment for a period of two years? Okay." Bowers acknowledged that she understood that. The parties stipulated to the admission of a November 16 report by CONREP's community program director, Mark L. Duarte, and its primary clinician/designee Shannon M. Parkinson. Dr. Zwerin's report also was admitted as evidence. The attorneys submitted the matter and "[b]ased upon those reports[,]" the court found by reason of mental disease, defect or disorder Bowers represented a substantial danger of physical harm to others. The court consequently extended her commitment for two years.
The court prepared a written order, which stated that Bowers had agreed to have "the matter determined by the court instead of by means of a jury trial," the parties stipulated the court could admit the two reports into evidence, and "[t]he case was then submitted to the court for decision by the attorneys for both parties." The order further stated that having received the evidence and considered the arguments, the court made factual findings and orders, including that it was established beyond a reasonable doubt that Bowers continues to suffer from a mental disease, defect or disorder and as a result, she represents a substantial danger of physical harm to others and has serious difficulty controlling her dangerous behavior. Finally, the order stated Bowers's prior commitment was extended to December 23, 2009.
On appeal, Bowers contends the order extending her commitment violated due process as the evidence was insufficient to prove that she was a danger to others and could not control her dangerous behavior. The People assert the issue is waived because she stipulated to her recommitment, and even if not waived, substantial evidence supports the court's findings. As we shall explain, we disagree that the issue is waived, but agree substantial evidence supports the court's findings.
Dr. Zwerin stated in his affidavit that he had reviewed Bowers's case and in his opinion, she qualified for extension of her commitment under section 1026.5, in that in her present status and condition, by reason of a mental disease, defect or disorder, Bowers represented a substantial danger of physical harm to others. Based on this, Dr. Zwerin recommended application to the court for an extension of Bowers's commitment. Dr. Zwerin stated his opinion and recommendation were supported by the "recent hospital case summary," which was attached and incorporated by reference.
The hospital case summary, dated March 5, was prepared by a team of five DMH staff members, which included a psychiatrist, a medical doctor, a social worker and a psychologist. The summary related the following information. Bowers, who was 43 years old, had been diagnosed with schizoaffective disorder, depressed type, alcohol dependence (in institutional remission), and borderline personality disorder. Bowers was committed after attacking a social worker during a counseling session by attempting to hit him with a table and then grabbing him, making contact with his face and tearing the pocket off of his shirt; when correctional officers intervened, she kicked an officer's hand into the wall, jamming his thumb. Bowers has a criminal record that includes three convictions for section 452 and 451, subdivision (d), arson of property/forest land. Bowers stated "she must set fires, 'because the voices tell me to do it and I am helping the country by setting the fires.'" Bowers also has a history of periodic hallucinations commanding her to engage in dangerous acts under the threat of death. Bowers has been hospitalized 26 times for psychiatric reasons, the first time when she was 14 following her first suicide attempt. Bowers has attempted suicide numerous times and reports chronic suicidal ideation, depression, paranoia, and anxiety.
The focus of treatment was to help Bowers gain a better understanding of her mental illness, including its triggers and warnings, in order to develop a comprehensive wellness and recovery plan, which must also adequately address her alcohol dependence. She had progressed over the past six months, as she had remained on the open unit and was attending her assigned groups. Bowers usually adhered to hospital expectations, but at times needed to be reminded of unacceptable behaviors. Although she was less needy, she had periods in which she exhibited a variety of complaints as a way to seek staff attention. She remained free of violence and had not acted in a self-injurious manner over the past six months. Bowers had been largely free of symptoms of psychosis, took her medications willingly, and denied any untoward side effects. Her understanding of her mental illness had improved slightly and she had begun to work on her wellness and recovery plan, which would require "considerable work to be adequately completed." The team was concerned that Bowers did not acknowledge alcohol as being problematic despite having been diagnosed with alcohol dependence. The team noted that because of her denial, she had not addressed the issue in her plan, which would be considered incomplete until she did so, and that her ...