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The People v. Marie Chantal Mcdonough

June 7, 2011


(Super. Ct. No. 98NF3762) Appeal from an order of the Superior Court of Orange County, M. Marc Kelly, Judge. Reversed and remanded.

The opinion of the court was delivered by: Moore, J.

Certified for publication 6/29/11 (order attached)


Appellant Marie Chantal McDonough was committed to a state hospital in 2000, after having been found not guilty of by reason of insanity in a felony prosecution. In 2008, the director of the Metropolitan State Hospital (MSH) filed a semi-annual interval report (Pen. Code, § 1026, subd. (f); all statutory references are to the Penal Code unless otherwise stated) recommending appellant be placed in outpatient treatment. (§ 1603, subd. (a)(1).) The court conducted a hearing on the issue. All testifying experts concluded appellant should be placed in outpatient treatment. The court found the details of the outpatient program lacking and denied outpatient status.

We reverse because the trial court placed an undue burden on appellant, denying outpatient status not because she would not benefit from outpatient treatment, but rather because the court was not satisfied with the day-to-day details of the proposed outpatient treatment program. The court did not find appellant is currently insane. Instead, the court found the program proposed by the Fresno Conditional Release Program (CONREP) lacking.

A patient has a right to outpatient treatment upon carrying her burden of demonstrating she is no longer mentally ill or no longer dangerous. That right may not be negated by the government's failure to provide the court with the specific details of what will happen every day once the patient is released to the outpatient treatment program. We will remand the matter to the superior court for further proceedings. If the court finds appellant is either no longer mentally ill or not dangerous, but again finds the proposed outpatient treatment program lacking in some regard, it may, "in the exercise of its continuing jurisdiction over appellant," enter orders to cure the deficiencies. (People v. Cross (2005) 127 Cal.App.4th 63, 74.)


The Underlying Offenses and Procedural Setting

In 1999, an information alleged appellant assaulted her father, Ernest, with a firearm (§ 245, subd. (a)(2)), committed two acts of elder abuse (§ 368, subd. (a)), one count naming her father as the victim and the other naming her mother as the victim, on December 29, 1998. The information also alleged appellant personally used a firearm in the commission of each of the offenses. (§ 12022.5, subd. (a).) As a result of delusions, appellant purchased a shotgun and went to her parents' residence to protect her mother from her father. During the incident at her parents' home, she chased her father, threatened to assault him, and discharged the weapon, hitting the ceiling. No one was harmed.

Criminal proceedings were suspended at one point because appellant was not competent to stand trial. (§ 1368.) Once competency was restored, she entered a plea of not guilty by reason of insanity to each charge. After considering the reports of the two doctors who evaluated her, the court found appellant not guilty by reason of insanity and set her maximum term of commitment at 16 years. The court ordered appellant committed to Patton State Hospital on May 10, 2000. She was transferred to MSH on December 5, 2000.

In August 2002, appellant filed an application for release and outpatient treatment pursuant to section 1026.2. She withdrew the petition a month later. Appellant filed another section 1026.2 application for outpatient treatment in January 2004. That application was also withdrawn. In November 2004, appellant filed a petition for restoration of sanity pursuant to section 1026.2, subdivision (e). That petition was subsequently withdrawn as well. Appellant filed a petition for restoration of sanity and unconditional release in September 2005. The court appointed Drs. Kaushal Sharma, a psychiatrist, and Veronica Thomas, a psychologist, to examine appellant. Up to this point in time, every semi-annual reports filed by Patton State Hospital and MSH recommended appellant's retention at the hospital because she continued to be mentally ill and a danger to the health and safety of others, even if furnished supervision and treatment in the community.

The court held a hearing on appellant's petition in October 2006. During the hearing, appellant withdrew the petition for restoration of sanity. The court found appellant had not carried her burden and denied the request for outpatient treatment.

In April 2008, MSH's semi-annual interval report recommended placing appellant in outpatient treatment. The report stated the consensus of the wellness and recovery treatment team was that appellant was ready for outpatient treatment, appellant had been accepted for community outpatient treatment, and she no longer posed a danger while under supervision in community.

The Hearing on the Recommendation for Outpatient Treatment: Expert Testimony

The court held a hearing on the recommendation in September 2009.

(§ 1604, subd. (c).) As the Attorney General acknowledges, appellant presented the testimony of a number of mental health professionals, all of whom agreed she could safely be released to an outpatient program. The prosecution did not present any expert testimony.

Dr. Stephanie Walker, has been a staff psychologist at MSH since December 2007, and treated appellant since that time. Walker is familiar with appellant's psychiatric history. Appellant started experiencing symptoms, primarily delusions, in her early 20's and has been hospitalized nine to 11 times. Her initial diagnosis of mental illness occurred around 1986. There have been several diagnoses, including delusional disorder (persecutory type), schizophrenia, and bipolar disorder. Walker said appellant never received stable outpatient treatment and was never stabilized on psychiatric medication until her current hospitalization. Appellant is currently prescribed Abilify, an antipsychotic, and Zoloft, an antidepressant.

Walker reviewed appellant's wellness and recovery plan. Appellant is in a maintenance stage. This involves creating a relapse prevention plan. The plan requires appellant to have insight into her diagnosis and to learn coping skills. Insight requires knowledge of her symptoms and the triggers that impact those symptoms. According to Walker, appellant knows both. She knows her biggest coping skill is taking her medication. She has been taking Abilify since 2005, and would exhibit delusional symptoms if she stopped taking the drug.

Walker said appellant's specific relapse prevention plan is "very extensive" and involves knowing what resources she can go to if symptoms appear. Appellant is "very familiar" with the Fresno CONREP facility and who to contact there. She also knows of groups she can attend there, the hospital, and that she can consult her psychiatrist.

Walker said appellant is friendly with staff, patients, and has been danger free for the past 18 month. Appellant has been symptom free since Walker has worked with her. Walker concluded appellant is not a danger to herself or others and has benefitted to the maximum extent possible from the groups at the hospital, has "exceptional insight," and can safely be treated in the community. Appellant is ready to transfer to Fresno CONREP outpatient treatment and the transition would benefit her. In fact, Walker stated it would be detrimental to keep appellant in the hospital, receiving the same treatment she has already received with nothing more to learn there.

Walker said appellant does not attend group therapy classes that repeat what she has already learned. For example, the medication and wellness class is a 12-week course and the curriculum never changes. The doctor compared it to taking the same Algebra I class over and over again. Appellant does, however, consistently attend groups with a curriculum that changes from time to time.

Dr. Thomas Grayden evaluated appellant at the request of her attorney. Grayden has previously qualified as an expert in forensic psychiatry in Orange County Superior Court. After having reviewed appellant's record, interviewing appellant, and speaking with a number of staff, his primary diagnosis is that appellant has an unspecified bipolar disorder, characterized by a history of depressive episodes and at least one manic or hypomanic episode historically. The unspecified subtype allows a "description to have other co-morbid type of diagnoses in conjunction with it such as a delusional disorder." Grayden said his review of the records indicates appellant has not had any psychotic symptoms for three years. He further testified she does not pose a threat to herself or others and lacks risk factors that would otherwise be cause for concern. He concluded she does not require a locked state hospital setting and outpatient treatment away from her family is appropriate. He recommended placement in a less restrictive setting such as Fresno CONREP, and added that from a safety stand point, it would give appellant distance from her father and provide a means of lessening her enmeshment with her mother, allowing appellant to get on with her own life.

The prosecutor asked Walker and Grayson about an April 8, 2008 entry in appellant's file. That entry noted appellant was lying on the floor during a writing activity and was instructed to get off the floor. According to the note, appellant became hostile, loud, and verbally abusive, telling the staff member who made the entry, "you are lying and making this up . . . ." The incident did not change either doctor's opinion.

Dr. Inessa Essaian, a psychiatrist at MSH, has treated appellant since August 2007. Appellant's current diagnosis is delusional disorder, persecutory type. She has also been diagnosed in the past with schizophrenia and bipolar disorder. The doctor stated all three diagnoses "overlap at some point," but believes appellant's main problem is the persecutory delusions. Bipolar disorder and delusional disorder overlap as well when one has a special manic episode with delusional beliefs. However, bipolar disorder requires a history of at least one manic episode and there are no such documented episodes in appellant's history.

A hospital report dated July 9, 2009, indicates appellant has met all objectives and discharge criteria of the hospital. Essaian agrees with the report's recommendation for CONREP placement. In the two years she has worked with appellant, Essaian has not observed any behavior that would lead her to conclude appellant would be a danger to anyone. She added that appellant has been asymptomatic for two years, has good coping skills, and has developed good insight into her mental illness.

The facts surrounding the crime that resulted in appellant's commitment offense and a prior incident, where appellant purportedly poured gasoline on her father and tried to light a match, would not change the doctor's opinion. Those incidents occurred because appellant was having intense delusions and had been drinking and using drugs around that time. Essaian said appellant is "very stable right now" and it is important to transition her to outpatient treatment at this time. Appellant has met all the goals in the hospital, developed good insight into her illness, and has a viable relapse prevention plan. The different diagnoses do not affect Essaian's opinion. The treatments for bipolar disorder and delusional disorder are the same and appellant has a good history of medication compliance.

Mark Duarte is a licensed clinical social worker and the director of Central California's CONREP since 1987. He has testified as an expert on the subject of whether an individual can be treated safely while under the care of CONREP and whether the person poses a danger to self or others. He knows appellant. He said appellant started experiencing depressive episodes in college and experimented with drugs that would exacerbate a mental illness and create a thought disorder. She was in "full-blown psychosis for a lot of that time." She was committed temporarily pursuant to Welfare and Institutions Code section 5150, medicated, stabilized, and released. Once released, she stopped taking her medication, did not keep her appointments with mental health professionals, and relapsed. Duarte said appellant had been committed 12 times.

Appellant's hospital records contain a report by Dr. Burchuk stating appellant stated the television, radios, and birds were sending messages to her. Duarte said those are common psychotic symptoms. Appellant also thought red cars meant her mother was going to be killed by the devil.

Duarte submitted a report to the court in May 2008, after meeting with clinical staff and reviewing appellant's medical and clinical records at MSH. He also met appellant's parents. His report recommended outpatient treatment and supervision in CONREP.

Fresno CONREP has a one to 10 staff-to-client ratio and presently has 74 clients, each with a mental disease or defect that cannot be cured. CONREP's purpose is to provide enhanced protection to the community through a standardized system of treatment and supervision. Individual therapy and group therapy are provided and CONREP performs home visits, toxicology screening, collateral contacts, and annual assessments. During the first year, home visits might occur every other week, but daily visits are made as needed.

When one is admitted to CONREP, CONREP usually picks the patient up at the hospital. CONREP provides five levels of treatment: intensive, intermediate, supportive, transitional, and aftercare. For those in need of "decompression from the hospital," CONREP has a 90-day transitional residential program. CONREP also furnishes shared living apartments or houses. Duarte does not feel appellant needs a 90-day transitional setting. Rather, he intends to place her in an intensive setting in an unsecured two bedroom apartment with other peers in CONREP. No mental health ...

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