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People v. Presley

California Court of Appeals, Sixth District

February 14, 2017

THE PEOPLE, Plaintiff and Respondent,
ECCLESIASTES PRESLEY, Defendant and Appellant.

         Monterey 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

          Premo, J.

         Defendant Ecclesiastes Presley appeals from an order revoking his outpatient status pursuant to Penal Code section 1608[1] and directing his confinement in a state hospital.

         Presley 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.

         Though 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.

         I. Factual and Procedural Background

         Presley, who has been certified as a mentally disordered offender (MDO), [2] 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.

         After 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.

         In 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.

         Presley 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.

         On 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.

         Presley 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.

         Dr. 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 authority.”

         When 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.

         Dr. 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 pleasant surprise.”

         After 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.

         The 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.

         On 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.

         On 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 1608.

         On 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.

         On 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.

         The 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.”

         As 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.

         Presley 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.

         On 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 ...

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