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THE PEOPLE v. JERRY WAYNE BLAYLOCK

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


November 30, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY WAYNE BLAYLOCK, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of San Bernardino County. Robert J. Lemkau, Judge. Affirmed. (Super.Ct.No. FSB031782)

The opinion of the court was delivered by: Ramirez P. J.

P. v. Blaylock

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant and appellant Jerry Wayne Blaylock appeals from an order revoking his outpatient status; he contends the evidence was insufficient to support the finding that he was a danger to anyone. We affirm.

I. BACKGROUND

On August 31, 2001, defendant entered a restaurant and argued with a patron; defendant made stabbing motions while wielding a pocket knife and chased the victim out of the restaurant. He was found guilty, but not guilty by reason of insanity, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))*fn1 and committed to the California Department of Mental Health in 2002. He was diagnosed with antisocial disorder and polysubstance abuse. He had been intoxicated at the time he conducted the assault. Following his commitment, defendant was placed in a state hospital pursuant to section 1026. In 2005, he was accepted into the conditional release program (outpatient status pursuant to § 1600 et seq.). By 2007, when a new clinical therapist assumed defendant into her caseload, defendant was employed and had worked his way through the conditional release program to reach the transitional level of service. This meant he had reduced supervision and only one individual therapeutic session a month.

In November 2007, defendant violated the terms and conditions of his outpatient treatment. He had been prescribed pain medication, but was not following protocol in getting his prescriptions filled. Defendant would be in pain from lesions on his tongue and would go the emergency room where he would be prescribed more medication. His visits were not kept secret from the conditional release program and he was taken to the hospital in an ambulance for one of the visits. The therapist thought that defendant had been "shopping around" four or five doctors in this manner. Defendant always went to the same facility; the facility had defendant's medical records and the doctors would likely know the medications he had been prescribed. In theory, the doctors should have taken away medications that were being replaced with another medication. However, "sometimes he would take some of the medication himself and put it in a different bottle so he could keep it with him," rather than turn it over to his board and care provider. Thus, the doctors could not necessarily have taken away prior medications. The therapist considered this a violation because the program's psychiatrist needed to be aware of defendant's medications, "particularly when a client of ours has a polysubstance dependence. More often than not, if there is a polysubstance dependence, substance abuse is what contributed directly to their instant offense, thus rendering them dangerous in the community."

Around this period of time defendant "was involved in a romantic relationship with a woman who was a bad character, using drugs, and [who] stole [his truck] from him. And because of that he got [an] insurance settlement." Defendant disclosed that shortly after meeting the woman, he had observed needle tracks on her arm and knew she was associating with criminals. Defendant knew the woman was still "using." Defendant incurred credit card debt without the therapist's knowledge to buy things for the woman and her children. "After [the woman's] son stabbed him in the hand, he stopped having contact with her."

Rather than seeking revocation of defendant's conditional release, the program increased the level of his supervision sometime before July 2008. This required defendant to attend a full day program and increase his individual sessions to three a month. Defendant frequently told the therapist that he resented the increased level of supervision; in particular, he was no longer able to work and he thought the program was forcing him into bankruptcy. However, defendant did not do the "very specific things that he needed to do in order to receive his previous level of freedom." On July 31, 2008, the therapist requested that the trial court revoke defendant's outpatient status. She withdrew her request after defendant's participation and attitude improved.

On October 17, 2008, the conditional release program returned defendant to the state hospital "pursuant to [sections] 1608/1610" and sought revocation of defendant's outpatient status. The bases for the request were that defendant's attitude changed, "he was again articulating a resentment," and he told the therapist "that he had received an insurance settlement" for his stolen truck and "with that insurance check he went out and purchased a new vehicle."

Defendant had permission to own the truck that had been stolen from him. However, defendant owed the program money for his board and care and was required to inform them of any financial transactions over $500. Defendant described many details of the truck purchase to the therapist: the kind of truck, the insurance arrangements, his intent to pay for the lease with his unemployment checks, the truck was on sale so had to make the purchase, and his brother drove the truck home for him. However, defendant did not actually purchase a new truck.

After the therapist discovered that no purchase took place, she did not withdraw the request to revoke defendant's conditional release. This was because it raised concerns as to whether defendant was delusional. Delusions would be a new symptom for defendant, so "it wouldn't be safe for [the conditional release program] to try to explore this in the community because [the program would] have no knowledge as to where that level of delusional, borderline psychotic-type of thought process is coming from." Even if defendant was not delusional but just made up the story, it would be a problem for supervising him. Because telling the false story "speaks to his antisocial issues" and, without understanding his motivation for blatantly fabricating the story, the program did not know how they could effectively supervise him in the community. However, the therapist also said that defendant merely telling her that he had leased a vehicle did not make it dangerous for him to be in the community.

On March 6, 2009, the trial court held a hearing pursuant to sections 1608 and 1610 regarding the revocation of defendant's outpatient status in the conditional release program. The only witness was the clinical therapist who had supervised defendant in the conditional release program since 2007. Typically, the conditional release program does not "communicate with the hospital treatment staff during the first six months after a person is revoked," but the therapist had unsuccessfully attempted to contact defendant's social worker at the hospital. The therapist concluded that she did not know how defendant was progressing as of the date of the hearing, but assuming defendant remained the same, she worried that defendant's conditional release status needed to be revoked. The therapist's testimony was the only evidence introduced.

"Based upon the preponderance of the evidence," the trial court found defendant to be "a danger to the health and safety of others." The trial court then revoked defendant's outpatient status and ordered him confined to the state hospital. The minute order states: "The court finds the Respondent is a danger to himself and health and safety of others and CANNOT be safely and effectively treated on an outpatient basis."

II. DISCUSSION

Defendant contends insufficient evidence supports the trial court's finding that defendant was dangerous.*fn2 The People contend the evidence was sufficient. We agree with the People.

If "the judge determines that the person is a danger to the health and safety of others, the court shall order that the person be confined in a state hospital or other treatment facility . . . ." (§ 1609.)

We review claims of insufficiency of evidence by examining " 'the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value.' " (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.) Because it is the trier of fact, and not the appellate court that must be convinced, " ' " ' " '[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See Id. at p. 1299.) The scope of the evidence includes both the evidence in the record as well as "reasonable inferences to be drawn therefrom." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.)

Defendant told his therapist that he had bought a truck even though he had not. Thus, defendant was either delusional or lying to the therapist. The therapist testified that if defendant was delusional, it would not be safe for the conditional release program to explore this new issue with defendant in the community. The therapist also testified that if defendant had blatantly fabricated the story then the program could not effectively supervise him in the community without understanding his motivation. Because defendant's underlying offense was an assault, the trial court could reasonably infer that defendant would be dangerous without adequate supervision. Thus, the therapist's statements provided substantial evidence supporting the trial court's finding.

We reject defendant's contention that the therapist's testimony regarding his failure to follow prescription protocol was just a belief because the testimony was asserting fact not belief. For instance, the therapist directly stated defendant "was not following protocol" and "it came to [her] attention that sometimes he would take some of the medication himself and put it in a different bottle so he could keep it with him." Defendant "would also go from doctor to doctor looking for different prescriptions."

We also reject defendant's contention that the therapist's conclusion regarding defendant's resentment was based on unreliable hearsay due to her testimony that defendant had been vocal about his anger and dissatisfaction while in the lobby. The therapist also testified that defendant directly told her about his resentment. Lastly, we also reject defendant's contention that the therapist could have simply misunderstood defendant's statements about a new truck; during cross-examination, the therapist said defendant was very detailed and it was not possible for her to have misunderstood defendant as merely indicating a desire to obtain a new vehicle.

III. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: HOLLENHORST J. McKINSTER J.


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