Superior Court of the County of Solano, No. FC43506, Harry S. Kinnicutt, Judge.
The opinion of the court was delivered by: Jones, P.J.
CERTIFIED FOR PUBLICATION
(Solano County Super. Ct. No. FC43506)
Appellant Forrest Kendrid appeals from the trial court's order extending his commitment pursuant to Penal Code section 1026.5, subdivision (b), which governs the procedures for extending the commitment of persons found not guilty by reason of insanity (NGI).*fn1 Relying on a series of cases interpreting section 2970 -- part of the Mentally Disordered Offender Act -- appellant contends the prosecutor "lacked statutory authority" to file the petition to extend his commitment because the hospital medical director did not recommend an extension. Appellant also claims substantial evidence does not support the court's determination that he represented a "substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1).)
We affirm. We conclude the medical director's recommendation against extending appellant's commitment did not preclude the district attorney from filing a petition under section 1026.5, subdivision (b). We also conclude substantial evidence supports the court's order extending appellant's commitment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, appellant spit in the face of a prison correctional offer and was charged with felony battery by a state prisoner on a noninmate (§ 4501.5). The trial court found appellant NGI, imposed a ten-year maximum sentence, and committed appellant to Atascadero State Hospital (hospital). In 2004, appellant was transferred to the Department of Corrections and Rehabilitation pursuant to Welfare and Institutions Code section 7301*fn2 because of "the danger [he] represent[ed] to the patients and staff" at the hospital. The court extended appellant's commitment in 2007 and 2009 pursuant to section 1026.5, subdivision (b). In September 2010, appellant was transferred back to the hospital. Appellant's commitment was to expire in June 2011.
In January 2011, the District Attorney of Solano County filed a petition to extend appellant's commitment pursuant to section 1026.5, subdivision (b). The petition alleged the hospital director "requested this Petition not be filed[.]" The petition further alleged appellant "is an insane person who, by reason of mental disease, defect or disorder, represents a substantial danger of physical harm to others."
The petition attached an October 27, 2010 letter from hospital director Thomas G. Cahill, M.D., to the district attorney. In the letter, Dr. Cahill stated the hospital's "treatment team staff" evaluated appellant on October 22, 2010 and recommended not extending appellant's commitment pursuant to section 1026.5, subdivision (b). Dr. Cahill stated he agreed with the treatment staff's recommendation but noted, "[a]s prosecuting attorney, you have, of course, the option of seeking an extension without our recommendation." The petition also attached a report prepared by Dr. David K. Fennell, M.D., who evaluated appellant in October 2010 pursuant to section 1026.5.
Dr. Fennell's Report and the Hearing on the Petition
In his 10-page report, Dr. Fennell recommended against extending appellant's commitment. Although Dr. Fennell concluded appellant has a "mental disease, defect or disorder" and presents a "substantial danger of physical harm to others[,]" Dr. Fennell determined he "does not have serious difficulty controlling his dangerous behaviors."
Appellant waived his right to a jury trial and the court held a hearing on the petition. Dr. Fennell testified at the hearing. As he did in his report, Dr. Fennell stated appellant suffered from "antisocial personality disorder with psychopathic features and also borderline personality disorder[.]" According to Dr. Fennell, appellant is "predatory" and is "in the severe psychopathic range." Dr. Fennell opined appellant: (1) is a substantial danger to others; (2) has a callous disregard for the rights of others; and (3) is completely unable to empathize with others. According to Dr. Fennell, if appellant perceives his wishes are not being met, he acts in a violent or threatening manner. Dr. Fennell expressed his concern that appellant had "absolutely no insight into his behaviors that lead to violence and no appreciation for precursors. . . . He uses violence and intimidation to get what he wants and has no compunction with physically hurting others or violating the rights of others. [Appellant] does not see this as a problem, but instead externalizes the locus of responsibility onto others in his environment. . . ."
Dr. Fennell noted appellant's "history of repeated bouts of violence," specifically his: (1) previous convictions for battery; (2) "numerous fights with other inmates[;]" (3) "numerous batteries upon staff" at the hospital in 2003 and 2004; and (4) "14 behavioral difficulties" between September and October 2010. He testified, however, that appellant "had manifested no behavioral difficulties" in the 18 months he spent in prison before being transferred to the hospital in September 2010. Dr. Fennell explained that appellant controlled his behavior in prison because it is a highly structured environment where appellant was punished immediately for bad behavior. Dr. Fennell attributed appellant's lack of disciplinary problems in prison to the security and structure of the prison setting.
Dr. Fennell described the medications appellant takes to stabilize his moods and to decrease his angry outbursts and noted appellant would "more likely than not stop [taking] his medications" if released into the community. Dr. Fennell explained, however, that appellant would not represent a greater risk of danger to others if he stopped taking his medication because he is "not delusional . . . not hallucinating [and] doesn't have thought disorganization. These medications were prescribed primarily to slow him down a bit . . . to help with his angry ...