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Filed 4/10/15 P . v. Luther CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publishe d for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DI VISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. DA ROLD LUTHER, Defendant and Appellant. A141546
(San Mateo County Super. Ct. No. SC016567A)

Defendant Da rold Luther appeals the trial court ’s order extending for two years h is
civil commitment to a state mental facility

. 1 He contends that insufficient evidence supported the trial court’s determinations that he poses a substantial danger of physical
harm to others if released and has serious difficulty controlling his dangero us behavior.
We affirm the trial court’s order.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND Luther was originally committed to a state mental facility in 1986 after being
found n ot guilty by reason of insanity for discharging a firearm into an inhabited dwelling. (§ 246.) Since then, he h as remained under state custody but was a n outpatient during several periods. Each of these periods, including those in 1993, 1999, and 2000,
ended with Luther’s outpatient status being revoked due to his “noncompliance with his

1 The order extending Luther’s civil commitment was issued under Penal Code section 1026.5 All statutory references are to the Penal Code.2

medications and psychiatric decompensation.” In 2011, Lut h er was once again on outpatient status, but he was returned to a hospital setting after he went absent without leave (AWOL)

. This appeal arises from two related petitions filed in late 2013 and early 2014. In September 2013, Luther filed an application for a restoration of sanity under
section 1026.2. I n February 2014
, the San Mateo District A ttorney filed a pe tition for an
additional two

- year extension of Luther’s civil commitment

. Luther waived his right to a jury trial, and a bench trial was held in March 2014 on both petitions

. At trial, Napa State Hospital staff psychiatrist James Eyerman , M.D., testified as an expert for the prosecution. Dr. Eyerman has treat ed Luther at the hospital for several years, and he prepared the hospital’s report recommending an extension of Luther’s civil commitment and opining that Luther did not meet the criteria fo r outpatient treatment . He testified
that Luther has a diagnosis of bipolar disorder and exhibits both manic and depressive symptoms. He explained that people with bipolar disorder “may indeed have a lack of what we would consider good judgment or lack o f behavior as a reasonable person
would

. . . . [T] hey would be more likely to do rash or irrational things.” At the time of trial, Luther was assigned to a locked unit. Dr. Eyerman testified
that b efore a patient at Napa State Hospital can be transferre d from a locked unit to an open unit, and from there placed on an outpatient status, he or she must first be “ stable” for six months to a year

. Luther was assigned to the locked unit because in the months leading up to the trial (“around the holiday period”) his behavior was considered to be
unstable. Dr. Eyerman testified that Luther’s behavior involved “periods of irritability and mood swing and that sometimes he actually gets somewhat threatening to the staff.”
He testified that Luther had verbal ly threatened both nu rsing and auxiliary staff, and
Dr. Eyerman perceived this behavior “ as dangerous. ” Around the holiday period, Luther
told Dr. Eyerman , “You’re going to get yours.” In response to this regressive behavior,
Luther’s medication was “titr ated upward substantially.” Although Luther has not physically harm ed any staff at Napa h ospital, in 1993 he assaulted a staff person at a
different inpatient facility

.3

Dr. Eyerman described Luther as generally “very insightf ul and very cooperative
, ”
b ut he has also gone through periods where he was “more depressed, irritable, or more agitated and grandiose.” According to Dr. Eyerman, Luther “sometimes has difficulty in accepting medication changes or having insight into the fact that he’s getting ill

. . . . [ H e] may tend to blame staff, or other patients, or other circumstances, sometimes circumstances which have not much to do with anything on the unit. [This s ] eems to be a fabrication of his imagination

. ” Dr. Eyerman opined that Luther posed “a d anger to others if left unchecked” due to these characteristics and his history of bipolar disorder

. Dr. Eyerman concluded that Luther was still assigned to the locked unit because he “ has not yet been able to have a long enough period where he was felt s afe to transfer to the open unit.” Dr. Eyerman stated
, “at this point in time [Luther] would still have a few more months to go given the episode of the sort of deterioration that he experien ced around the holiday period. ”
T he trial court extended Luther ’s civil commitment until April 17, 2016. It
observ ed , “I do feel that the People have established beyond a reasonable doubt both the
existence of the mental disease

. . . but also that there is a significant danger of physical
harm to others based on the totality of circumstances certainly including the episode at the holiday which is troublesome and threatening.” The court also denied Luther’s application for restoratio n of sanity.
II. D ISCUSSION
A. The Governing Statute and the Standard of Review

. Und er section 1026.5, a defendant’s civil commitment may be extended by two

years where the defendant has been convicted of a felony and has “a mental disease, defect, or disorder” that causes him or her to “represent [] a substantial danger of physical
harm t o others.” (§ 102 6.5, subd. (b)(1).) The statute has been interpreted to require the prosecution to prove beyond a reasonable doubt that a de fendant’s mental disorder causes him or her to have serious difficulty controlling his or her dangerous behavior. ( In re
Howard N. (2005) 35 Cal.4th 117, 135; People v. Zapisek (2007 ) 147 Cal.App.4th 1151
,4

1164

- 1165; People v. Galindo (2006) 142 Cal.App.4th 531, 537. ) “The People are not required to prove the defendant ‘ “is completely unable to control his behavior.” ’ [Citation.] Instead, the defendant’s ‘impairment need only be serious, not absolute.’ [Citation.]” ( People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370, original italics.)

“ [ P ] roof of a recent overt act is not const itutionally required to extend the commitment of a person found to be criminally insane .” ( People v. Overly (1985) 171 Cal.App. 3d 203,
208 .)

“ ‘ “ ‘Whether a defendant “ by reason of a mental disease, defect, or disorder represent s a substantial danger of physical harm to other s ” under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.’ [Citation.] ‘ In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the
test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a rea sonable doubt. [Citatio ns.]’ [Citation.]” [Citation.] ’ ” ( People v. Zapisek
, supra , 147 Cal.App.4th at
p. 1165 .) “A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the
defendant’s commitment under section 1026.5. [Citation .]” ( People v. Bowers (2006)
145 Cal.App.4th 870, 878

- 879 .) On the other hand, a n expert medical opinion “that is based upon a ‘ “ guess, surmise or conjecture ” ’

. . . cannot constitute substantial evidence.” ( In re Anthony C. (2006 ) 138 Cal.App.4th 1493, 1504.)
B

. Substantial Evidence Supports t he Trial Court’s Order.
Luther c hallenges the trial court’s order in two related respects. First, he argues
there was insufficient evidence to support a find ing he pose s a substantial danger of physical harm to others. Second, he argues there was in suff icient evidence to support a finding he had serious difficulty controlling his dangerous behavior. We are not persuaded. The trial court explained that its decision was “based on the totality of circumstances certainly including the episode at the holida y which is troublesome and5

threatening.” The “ episode at the holiday ” referred to a holiday period spanning several
weeks and included instances when Lu ther verbally threatened staff
, reported unhappiness and trouble sleep ing
, and expressed “grandiose pla ns with regard to either inventions or something to do with the government.” Dr. Eyerman described how many
of Luther’s troubling bipolar symptoms were recurring and sometimes present even when Luther was taking his medications. They were present at the time of the initial offense,
when he went AWOL, and during the period before the trial. When he went AWOL in 2011, he “was grandiose and labile and was using poor judgment” even though he was taking his psychotropic medication as prescribed

. Dr. Eyerman’s testimony and the
record as a whole establish that Luther has continued periodically to exhibit the same symptoms and behaviors he demonstrated when he engaged in the original felony

. In our view, this provides substantial evidence suppor ting the trial court’s finding that Luther
continue s to pose a substantial danger to others

. W e disagree with Luther’s characterization of D r. Eyerman’s testimony as based
on “ ‘ “ a guess, surmise or conjecture. ” ’ ” ( Cf. In re Anthony C. , supra , 138 Cal.App.4th at p. 1504.) After several years of monitoring Luther at Napa State Hospital,
Dr. Eyerman was well aware of L uther’s history and mental state. Luther’s reliance on I n re Anthon y C. is therefore misplaced. In that case, the appellate court r eversed a commitment order because the expert witness failed to prepare a formal risk

- assessment evaluation, showed a lack of preparation, was unable to state the risk factors at trial, and was reluctant to quantify the defendant’s risk level. ( Id. at pp. 1506

- 1507 .) Here, by
contrast, Dr. Eyerman knew Luther, had treated him for several years, and was definitive in his opinions. Again, “ [a] single psychiatric opinion that an individual is dangerous
because of a mental disorder c onstitutes substantial evidence. ” ( People v. Bowers
, supra , 145 Cal.App.4th at p. 879.) Luther attempts to distinguish his situation from Bowers , where the court affirmed
an extension of the defendant’s commitment because the defendant suffe red from
command hallucinations and poor anger control and exhibited assaultive behavior. ( People v. Bowers, supra, 145 Cal.App.4th at p. 879

. ) Luther claims that the trial court’s6

order cannot be sustained because his symptoms are not as severe as the defendant’s in
Bowers

. But section 1026.5 does not define “ ‘ a mental disease, defect, or disorder, ’ ”
and trial courts must rely on expert testimony to evaluate whether the standard has been
satisfied. ( Bowers , at pp. 877

- 878

. ) The trial court relied on Dr. Eyerman’s testimony in concluding that Luther represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder, and we, as a reviewing court, are in no position to question that reliance

. Luther argues that Dr. Eyerman failed to prov ide the Hare Psychopathy Checklist as proof o f hi s dangerousness ( People v. Galindo
, supra , 142 Cal.App.4th at p. 534 [the
Checklist has “ ‘ one of the bigger correlation s with future dangerousness ’ ”] ) and that
Dr. Eyerman incorrectly made his recommendati on based on internal hospital standards rather than the statutory requirements. But Luther provides no authority , and we are aware of none, suggesting that an expert must rely on the Hare Checklist and may not
refer to internal hospital standards.
Luther ’s ar gument that the prosecution failed to present substantial evidence that his bipolar disorder caused him serious difficulty controlling his dangerous behavior also
lacks merit

. Dr. Eyerman testified that Luther has had “episodes where he lacks insight ,” raising the concern that he lacks the self

- awareness to realize he is “slipping into his bipolar symptoms or that medication issues may be present.” Similarly, Dr. Eyerman’s report submitted to the trial court describes when Luther went AWOL in 2011 an d how he was decompensating, becoming argumentative, and having “paranoid delusions about
a Northstar [an outpatient treatment program] cli ent raping a staff.” These behaviors and symptoms are much the same as described during the holiday period, creating the
reasonable inference that Luther would again regress if released at this time. Although it is true that Dr. Eyerman described Luther as “ very well controlled ” at the time of trial, this description was in response to Luther’s medication having be en

“ titrated upward substantially” after the holiday period. As descri bed above, Luther’s symptoms can be unpredictable and subject to fluctuation , especially when Luther fails to
adhere to his medication protocol

. Because Luther was exhibiting many troublin g7

symptoms and a lack of self

- awareness in the period prece ding trial, substantial evidence demonstrates that Luther’s bipolar disorder caused him serious difficulty controlling his
behavior.
T he cases upon which Luther relies in arguing to the contrary a re distinguishable.
Unlike in In re Howard N. , supra , 35 Cal.4th at page 138, where there was no testimony that the defendant’s disorder caused him serious difficulty controlling his deviant behavior, here Dr. Eyerman testified to Luther’s serious difficu lty with control. This case also is distinguishable from In re Anthony C. , supra , 138 Cal.App.4th 1493, where the appellate court pointed to defendant’s appropriate behavior while confined as evidence he had impulse control. ( Id. at p. 1508 .) Here, by contrast, Luther had “been verbally threatening which is considered on the same yardstick as a physical assault.” This is sufficient evidence that Luther’s symptoms create a serious difficulty in his ability to control his behavior and to act app ropriately toward staff and others. We cannot say that the prosecution failed to meet its burden simply because Luther did not physically harm anyone during his recent commitment.
V iewing the record , as we must, in the light most favorable to the trial c ourt’s order, we conclude that D r. Eyerman’s testimony and the record as a whole constituted
sufficient evidence to establish that Luther ha s serious difficulty contro l l ing his behavior and would pose a substantial danger of physical harm to others if rele ased. ( People v. Zapisek
, supra , 147 Cal.App.4th at p. 1165.)
III. D ISPOSITION
The t rial court’s order is affirmed.8 _________________________ Humes, P.J.

We concur:

_________________________ Dondero, J.

_________________________ Banke, J.