Filed 6/15/16 P. v. Hoiby CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON HO IBY

,

Defendant and Appellant. 2d Crim. No. B26 7533 (Super. Ct. No. 1 5 PT

- 00 419 ) (San Luis Obispo County)

Jason Hoiby appeals an order of the superior court committing him for

treatment as a mentally disordered offender (MDO). (Pen. Code, § 2962.) We conclude,

among other things, that substantial evidence supports the trial court’s finding that Hoiby

pose s a substantial risk of physical harm to other persons because of his mental disorder

.

We affirm.

FACTS

In 2011, Hoiby was convicted of assault with a firearm and sentenced to a

state prison term.

In 2015

, t he Board of Parol e Hearings (BPH) determined that Hoiby met the

criteria to be committed for treatment as a MDO. Hoiby filed a superior court petition to

challenge th at BPH determination. T he trial court appointed counsel for him. Hoiby

waived his right to a jury trial.2 At trial, Dia Gunnarsson , Ph.D., testified Hoiby has a delusional disorder

which constitutes a “severe mental illness.” Hoiby ’ s 2011 commitment offense was for

assault wi th a firearm. Neighbors had complained about loud music coming from Hoiby’s

house. When the police arrived

, Hoi by “appeared with a firearm, wa ved it towards the

police officer’s head and threatened” the officer. From a window

, Hoiby pointed a gun at

an officer’s head. He was four feet away from the officer. Hoiby called a police dispatch

center and made threats against the police officers.

The police called for “required backup” and “air support.” Gunnarsson said

Hoiby’s mental illness played “a rol e in his qualifying offense.” Hoiby ’ s behavior that day

was “indicative of paranoia.” He believed someone was following him, that the police

were harassing him “because of a faulty alarm system

, ” or because someone thou ght he

was a bank robber. He did n ot believe the law enforcement officers who arrived were

actually police officers.

Gunnarsson said Hoiby ’ s disorder is not in remission. Hoiby is still

“demonstrating delusional beliefs.” He believed th at “unseen entities” were “stabb ing

him” and that his medications “ruined his immune system.” Gunnarsson said Hoiby m eets

all the requirements for a MDO commitment and poses “a substantial risk of physical harm

to others by reason of his mental disorder.” She said that Hoiby ’ s commitment offense

was “pr etty v iolent, pretty dangerous” and that he lack s insight as to his mental illness.

Hoiby ’ s delusional beliefs and substance abuse are risk factors “when he does leave the

hospital.”

In Hoiby ’ s defense

, Trayci Dahl, Ph.D., testified Hoiby meets all the

r equirements for a MDO commitment, except one

— he does not pose a substantial risk of

physical harm to others because of his mental disorder. She said he had no history of

violence prior to his commitment offense and he “did not cause any substantial bodily

harm to anyone. ” His offense was “very threatening” but “threats won’t harm me.”

The trial court found Hoiby met all the “requisite criteria” for a MDO

commitment. It ordered that he be committed to the California Department of Sta te

Hospitals for tre atment as a MDO.3 DISCUSSION

Substantial Evidence

Hoiby contends there is insufficient evidence to support the trial court’s

finding that he represents a substantial danger of physical harm to other persons. We

disagree.

“We view the evidence in the lig ht most favorable to the judgment drawing

all reasonable inferences in support of the court’s findings.” ( People v. Itehua (2014) 227

Cal.App.4th 356, 359.) “We do not decide the credibility of witnesses or weigh the

evidence.” ( Ibid. ) To commit a defe ndant for treatment as a MDO the People must prove

that he or she poses a “substantial risk of physical harm” to another person. ( People v.

Baker (2012) 204 Cal.App.4th 1234, 1247.)

Gunnarsson testified that Hoiby poses a substantial risk of physical har m to

others because of his mental condition. Her testimony constitutes substantial evidence to

support the trial court’s finding. She said Hoiby lacks insight about his mental illness.

Hoiby has been resistant to taking the medications that he needs to control his symptoms.

When Gunnarsson asked Hoiby about “continuation of treatment in the community upon

discharge ,” Hoiby told her that “he did not believe he needed any mental health treatment.”

Hoiby also has a history of substance abuse but he does “ not have any insight into his

problems with substances.” He was “ unable to verbalize any relapse

- prevention plan.”

Gunnarsson said alcohol and drugs “minimize the effectiveness of psychiatric

medications” and “aggravate or exacerbate mental health sympto ms.”

Gunnarsson testified Hoiby’s commitment offense was violent. Factors that

played a ro le in that offense included Hoiby ’ s “ delusional beliefs” and substance abuse,

and those “are still going to be risk factors when he does leave the hospital.” He wa s not

“ [medication] compliant in March 2015.” T he trial court could reasonably infer Hoiby

was suffering from the same symptoms he had when he committed his commitment

offense.

Hoiby cites to evidence that he claims supports his position on appeal. But

the issue is not whether some evidence supports appellant, it is only whether substantial4

evidence supports the judgment. Here there was a conflict in the testimony of Gunnarsson

and Dahl as to whether Hoiby posed a substantial risk of danger to others b ecause of his

mental condition. But t he credibility of the expert witnesses and the weight given to their

testimony are matters exclusively determined by the trier of fact. ( People v. Itehua

, supra
, 227 Cal.App.4th at p. 359.)

The trial court could rea sonably question the credibility of Dahl’s conclusion

about Hoiby’s risk of danger to others given her testimony that she believed his offense of

assault on a police o fficer with a firearm was a non violent crime. The characterization of

that offense was n ot consistent with the facts. Moreover, much of Dahl ’ s testimony

supports the court’s finding. She said that when she interviewed Hoiby he “was floridly

psychotic” and “was talking about all sorts of delusional things.” She conceded that he

committed a “scary crime” and “he had not been compliant with his medications.” She

also said Hoiby “doesn’t really appreciate the utility of medications.” The evidence is

sufficient.

We have reviewed Hoiby ’s remaining contentions and we conclude he has

not shown error.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.5 Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointm ent by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.

Matthews, Supervising Deputy Attorney General, and Scott A. Taryle, Deputy Attorney

General, for Plaintiff and Respondent.