County Super. Ct. No. SS051124A Hon. Julie R. Culver Judge
Counsel for Plaintiff/Respondent: The People Kamala D. Harris
Attorney General Gerald A. Engler Chief Assistant Attorney
General Jeffrey M. Laurence Acting Senior Assistant Attorney
General Catherine A. Rivlin Supervising Deputy Attorney
General Karen Z. Bovarnick Deputy Attorney General
Counsel for Defendant/Appellant: Ecclesiastes Presley Under
appointment by the Court of Appeal Julia Freis
Ecclesiastes Presley appeals from an order revoking his
outpatient status pursuant to Penal Code section
1608 and directing his confinement in a
argues the trial court: (1) unlawfully deprived him of his
right to have a jury decide his commitment status; (2)
violated his due process rights by holding the hearings on
revoking his outpatient status in his absence; (3) erred by
considering inadmissible testimony from his treating
psychologist; and (4) revoking his outpatient status without
substantial evidence to support its decision.
we agree that Presley was improperly deprived of a jury
trial, his absconding from outpatient treatment before the
trial court ruled on his commitment status forfeited the
claim of error. We find no merit to Presley's remaining
arguments and will affirm.
Factual and Procedural Background
who has been certified as a mentally disordered offender
(MDO),  was placed into an outpatient
conditional release program (CONREP) by court order in August
2013. He was initially housed at a board and care facility,
where he was subject to weekly drug screening, group therapy,
and individual counseling. After approximately six months,
Presley's family asked if he could live in their home
during his outpatient treatment program.
assessing the family's home, CONREP determined it was
acceptable. Presley's prescription was transferred to a
nearby pharmacy and his mother was placed in charge of
monitoring his medication. CONREP visited him at least once a
month and stayed in contact with family members to monitor
his adjustment. Presley would also take a bus to the CONREP
facility for group therapy and twice-monthly drug screening.
April 2014, the People moved for a hearing to extend
Presley's outpatient treatment for one year pursuant to
section 1606. The hearing was continued at the request of
Presley's counsel on several occasions, but was
ultimately set for pretrial conference on July 8, 2014 and
court trial on August 15, 2014.
did not appear at the July 8 pretrial conference. At that
conference, the court noted that it had received a report
from CONREP, dated February 23, 2014, recommending that
Presley's outpatient treatment be extended another year.
The trial court scheduled another pretrial conference for
August 5, 2014, but maintained the August 15 trial date. A
second CONREP status report, dated May 16, 2014, was filed
with the court on July 10. This May 16 report indicated that
Presley continued to meet the criteria of an MDO.
August 4, the trial court filed a third CONREP status report,
dated August 1, 2014. In this report, CONREP recommended that
Presley's commitment be terminated, opining that he no
longer met the criteria of an MDO. For reasons which are not
set forth in the record, the August 15, 2014 hearing was
continued to August 29.
appeared at the August 29 hearing along with his counsel. The
only witness who testified was CONREP director (and
Presley's treating psychologist), Dr. Akira Suzuki. Dr.
Suzuki testified that he or a staff member would visit
Presley at his family's home once or twice a month and
Presley would come to the CONREP board and care facility
twice a month for drug testing and group counseling.
Presley's mother and Presley were responsible for
ensuring he complied with his medication regimen, although
Dr. Suzuki would also count Presley's pills when he came
for a visit.
Suzuki was aware that Presley had a history of refusing to
take his medications, though Presley had more recently
“seemed to have accepted that this [i.e., taking his
medications] is something he has to do.” On one
occasion in February 2014, Presley left the CONREP board and
care facility without authorization and was missing for a
couple of days. When he returned, Presley said he met a woman
he liked and they “decided to go out together.”
Dr. Suzuki testified he viewed this incident as being part of
Presley's “personality, ” explaining that
Presley “had a long history of being resistant to
asked about Presley's insight into his mental illness,
Dr. Suzuki agreed that it was “still limited.”
Dr. Suzuki testified about an incident which took place in
May 2014 where Presley had been in downtown Bakersfield and
got into an altercation with someone. Presley said he
“talked to somebody[, and]... said something, ”
and then was punched in the face so hard he lost
consciousness and needed reconstructive surgery. Presley did
not know who punched him, and he did not report the attack to
the police. Instead, he called his mother who picked him up
and took him to the emergency room.
Suzuki opined that Presley did not “at this
point” pose a danger, because his “insight has
increased.” He admitted that, if Presley were to stop
taking his medications, he would have a “resurgence of
psychotic symptoms such as hallucinations, and
delusions.” However, Dr. Suzuki believed that Presley
would “continue [his] treatment on a voluntary
basis.” Dr. Suzuki noted that Presley had even brought
his medications with him to the hearing, which “was a
the close of evidence, the People argued that Presley should
remain under CONREP's supervision for an additional year.
Presley's counsel focused his argument on Dr.
Suzuki's opinion that Presley no longer met the criteria
of an MDO and thus he should be released from commitment. At
a minimum, Dr. Suzuki's opinion required the trial court
to schedule a jury trial on whether Presley met the MDO
criteria under section 2972.
trial court invited the parties to submit additional briefing
by September 26, 2014, on the effect of Dr. Suzuki's
recommendation that Presley be discharged from his
commitment. The hearing was continued to October 3, 2014, to
consider the matter. In the interim, defense counsel agreed
that, pending the trial court's ruling, Presley would
remain under CONREP supervision and outpatient treatment
pursuant to section 1606.
September 17, 2014, the People filed a brief essentially
conceding that Presley should be discharged based on Dr.
Suzuki's opinion that he no longer met the qualifications
of an MDO. The People also conceded that, although the issue
was moot, pursuant to section 2972.1, Presley would have been
entitled to a jury trial on his MDO status. Defense counsel
did not submit any further briefing as he believed it
unnecessary in light of the prosecution's concessions.
October 2, 2014, Dr. Suzuki wrote to the trial court
requesting that it revoke Presley's outpatient status
because he had “gone AWOL” on or about September
23, 2014. Presley had not made contact with anyone at CONREP,
had left his medications at his mother's home and,
according to his mother, had reunited with his girlfriend,
“the victim of the prior [domestic violence]
conviction.” According to Dr. Suzuki, Presley's
mother discovered Presley's girlfriend abusing drugs,
asked her to leave and Presley left with her. The People
immediately filed a request for hearing pursuant to section
October 3, 2014, the trial court revoked Presley's
outpatient status, issued a bench warrant based on his
failure to appear and set an evidentiary hearing for October
15, 2014. The trial court expressly indicated it was not
making a ruling on whether or not to extend Presley's
outpatient status under section 1606 as had been originally
contemplated at the August 29 hearing.
October 15, 2014, Presley did not appear at the hearing,
although his counsel was present. His counsel objected that
the trial court, having revoked Presley's outpatient
status on October 3, no longer had jurisdiction to hold a
subsequent hearing. He further objected to the hearing on the
ground that Presley had not been located and had no formal
notice of the hearing and proceeding in his absence would
violate his right to procedural due process as well as his
right to confront adverse witnesses.
trial court observed that, pursuant to section 1608, it was
required to hold a hearing within 15 judicial days to approve
or disapprove a request to revoke outpatient status. As to
Presley's absence, the trial court noted “the
statute [i.e., section 1608] does not say that the defendant
must be present[, ] [a]nd in fact, given... everyone's
attempts to get the defendant here... [it] would be
appropriate to state that the defendant has voluntarily made
himself absent from these proceedings by having left the
CONREP situation and having not been in contact with anyone
to update himself on the status of the process.”
before, the only witness to testify was Dr. Suzuki. Dr.
Suzuki said that he received a telephone call from
Presley's mother on September 29, 2014, informing him
that Presley had left the house three or four days prior. Dr.
Suzuki went to her house to investigate and take possession
of Presley's prescription medications, at which point he
discovered that Presley had not renewed his antipsychotic
prescription for the month of September. Dr. Suzuki was
concerned about the risk that Presley would become violent if
he did not take his medications. Presley was also required to
contact the CONREP program once a week, and had not done so
in the four weeks prior to Dr. Suzuki notifying the court
about his going AWOL.
did go to CONREP at Dr. Suzuki's request on October 6,
2014 and provided a urine sample. Dr. Suzuki asked the staff
to tell Presley to return the following day so they could
talk, but Presley did not do so. Presley called Dr. Suzuki on
October 10, 2014 and Dr. Suzuki asked him to stop by the
following Monday (October 13). Dr. Suzuki advised him there
was a hearing scheduled for October 15 and they needed his
current address, but Presley did not provide one. Dr. Suzuki
also discussed helping Presley make arrangements to travel to
Monterey County for the hearing. Presley did not show up for
his appointment with Dr. Suzuki on October 13.
three different occasions, Dr. Suzuki visited the address
where Presley was reportedly living, but no one was ever
there. Presley's mother seemed to be protective of
Presley and told Dr. Suzuki she believed Presley was giving
money to ...