APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. (Super. Ct. No. F04800339-4)
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This is an appeal from an order for recommitment of a mentally disordered offender pursuant to Penal Code sections 2970 and 2972.*fn2 Appellant Daniel Hernandez contends the district attorney did not have statutory authority to file a petition under section 2970 for continued involuntary treatment because the medical director did not recommend recommitment and did not find him to be dangerous. We hold that the district attorney's statutory authority to file a petition under section 2970 is not conditioned on a finding by the medical director that the prisoner is dangerous or on a recommendation by the medical director for recommitment.
Appellant further asserts the petition was defective on its face, and the evidence was insufficient to support the jury's verdict on the petition. In the unpublished portion of this opinion, we reject these contentions.
Accordingly, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Upon his release from prison in 2008, appellant was committed, as a condition of parole, as a mentally disordered offender (MDO). (See § 2962.) He was placed at Atascadero State Hospital. In February 2010, a forensic psychologist evaluated him. As a result of that evaluation, the medical director of Atascadero State Hospital submitted his "written evaluation on remission" (see § 2970) to the Fresno County District Attorney. The director did not recommend continued commitment for involuntary treatment. The evaluation included the conclusions that appellant did have a severe mental illness, was in remission, did not represent a substantial danger to others, but could not be kept in remission without treatment. The evaluation also stated that appellant had engaged in physical violence.*fn3
Pursuant to section 2970, the district attorney filed a petition for continued involuntary treatment for one year. The petition specified that appellant had a severe mental disorder, that the severe mental disorder was controlled by medication and/or psychosocial support, but that it could not be kept in remission without treatment. The petition acknowledged that the hospital staff stated appellant was not a danger to others as a result of his severe mental disorder, but alleged: "The District Attorney, by the undersigned deputy, states that the statement, 'the patient cannot be kept in remission without treatment' contradicts the statement 'the patient does not represent a substantial danger of harm to others.' Therefore the District Attorney states that Daniel Hernandez does represent a risk of substantial harm to others." Appellant contested the petition and, after various continuances, jury trial began on September 3, 2010.
At the trial, the district attorney presented one witness, Dr. Joe DeBruin, the forensic psychologist who had conducted the recommitment evaluation of appellant. DeBruin testified that he had evaluated appellant on three occasions. The first was upon his initial commitment, the second was for an annual review, and the third was regarding recommitment. At the time of the annual review, appellant was still suffering symptoms from his mental disorder. Several months later, at the time of the recommitment evaluation, appellant was, as testified to by DeBruin, "very different than I had seen him in the past." He "was groomed appropriately. He was not delusional. He had normal thinking. He wasn't paranoid. He was not showing a lot of impaired thinking. His mood was maybe a little bit sullen, a little bit. His affect or his facial appearance was what we called a little flat, just kind of didn't have a lot of emotion to it. That is common, you know, as an ongoing symptom, so to speak, of people who have this kind of disorder. He was not reporting any symptoms. He was not reporting that he [was] hearing voices. When people are hearing voices, they are often mumbling and talking to themselves, kind of talking to their voices. He wasn't doing that. I did not see any evidence during my interview that this [was] a gentleman that [was] still having symptoms."
DeBruin testified that his evaluation included a 40-minute interview with appellant, consultation with appellant's treating psychiatrist, and review of appellant's voluminous hospital record. He concluded appellant still suffered from a severe mental disorder, and likely would do so for the rest of his life. He further concluded, however, that the mental disorder was in remission because appellant was not exhibiting symptoms of the disorder, but that the symptoms would reappear if appellant stopped taking his medication. DeBruin acknowledged that appellant had a substantial history of violence and substance abuse, and that he had performed poorly on probation in the past. DeBruin also acknowledged that appellant had attended only 50 percent of his substance abuse classes in the months prior to preparation of the report, and that appellant had missed many other scheduled therapy sessions. DeBruin contended, however, that the more important question for him as an evaluator was whether a patient's treatment team was "pleased with how the patient [was] participating in treatment, et cetera," implying, though not expressly stating, that appellant's treatment team was satisfied with his participation in therapy groups.
DeBruin also testified that appellant was "a little ambivalent" about continuing his medication after his release from the hospital. "But he also was open to continue talking with staff. Sometimes patients go, I'm not going to take meds, I don't need meds, when I get out of here, I'm never taking meds. But this was a patient who was, again, a little ambivalent, a little bit mixed, but he was open. He was stating he was open. I asked him and he stated he was open to continue the conversation with staff on that, concerning that issue."
Appellant did not testify or present other evidence.
The jury found the petition true. The court recommitted appellant to the state hospital for a period of one ...