Filed 8/17/16 P. v. Zimmerman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN NEAL ZIMMERMAN,

Defendant and Appellant.

F071013

(Super. Ct. No. VCF025487-87)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tulare County. Joseph A. 

Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) 

Paul Bernstein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. 

O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Kane, Acting P.J., Peña, J. and Smith, J.
2

Appellant Kevin Neal Zimmerman appeals from the trial court’s order granting a 

petition extending his commitment pursuant to Penal Code section 1026.5.1 On appeal, 

he contends the evidence is insufficient to support the granting of the petition. We 

affirm.

FACTS

Background

On August 10, 1987, Zimmerman, who was then 19 years old, waited in a stolen 

truck in the parking lot of a hospital until he saw a female staff member drive off and he 

began following her. Zimmerman passed the woman and stopped his truck in a narrow 

part of the road, forcing the woman to stop her car. Zimmerman exited the truck with a 

gun in his hand, pointed it at the woman, and ordered her out of her car. He then grabbed 

her by the arm and attempted to get her into his truck. After the woman broke free, 

Zimmerman fired a shot in the air and threatened to shoot her. Zimmerman again 

grabbed her by the arm and attempted to force her into his truck. As they struggled, 

Zimmerman hit the woman in the head with the gun. When another vehicle approached, 

Zimmerman got in his truck and left, alone. 

On January 29, 1988, the district attorney filed a first amended information 

charging Zimmerman with attempted kidnapping (count I/§§ 664/207, subd. (a)) and 

assault with a firearm (count II/§ 245, subd. (a)(2)). Each count also alleged a personal 

use of a firearm enhancement (§ 12022.5). Zimmerman then pled not guilty and not 

guilty by reason of insanity (NGI) to both charges. 

Dr. Frank Kleist and Dr. Dwight Sievert were appointed by the court to examine 

Zimmerman. During the evaluation by Dr. Kleist, Zimmerman stated that he had been 

experiencing mounting tension in the weeks and months prior to committing the 

 

1 All further statutory references are to the Penal Code.
3

underlying offenses. During the two weeks prior to assaulting the victim, he smoked a 

high grade of marijuana daily. A week before he assaulted the victim he took a “hit of 

acid,” and in the 24 to 48 hours prior to committing his offenses he freebased a quarter 

gram of cocaine.

In the two years prior to the underlying incident, Zimmerman had a delusional 

belief that he was changing from a man to a woman. He felt his chest getting flabby, that 

he was growing breasts, and that his voice was becoming more feminine. He also began 

having homosexual thoughts about men and boys and thoughts that he was having 

intercourse with himself in his dreams. Zimmerman felt women made him feel that way. 

He blamed the victim and other women for making his body change and it made him 

angry at them. Zimmerman assaulted the victim because he wanted to degrade her and 

make her not feel like a woman, the same way that he did not feel like a man. On the day 

Zimmerman assaulted the victim, he was coming down from freebasing cocaine. Just 

prior to committing the assault, he ingested about three tablets of Xanax that he stole 

from his father’s medicine cabinet. Dr. Kleist noted that Zimmerman experienced 

auditory hallucinations including hearing crushing sounds and deep voices that whispered 

to him. 

In his evaluation, Dr. Sievert noted that Zimmerman would experience somatic 

hallucinations, e.g., that his hands and feet were splitting open or that his voice was

becoming more feminine. Both doctors, in pertinent part, diagnosed Zimmerman as 

suffering from chronic schizophrenia, paranoid type, and recurrent major depression with 

psychotic features, and both concluded that he was legally insane when he assaulted the 

victim on August 10, 1987.2 

On February 19, 1998, after Zimmerman pled guilty to attempted kidnapping and 

admitted the arming enhancement attached to that count, the court found him not guilty 

 

2 Zimmerman was noncompliant with his medication when he assaulted the victim. 
4

by reason of insanity. On March 24, 1988, pursuant to section 1026, Zimmerman was 

committed to Atascadero State Hospital for a maximum term of 6 years. His 

commitment was extended several times pursuant to section 1026.5. On September 4, 

2014, the district attorney filed another petition to extend Zimmerman’s commitment. 

The Hearing on the Petition

On February 4, 2015, at a bench trial on the petition, Dr. Hasnain Maqsood 

testified that he had been Zimmerman’s treating psychiatrist for three months at Napa 

State Hospital (NSH), where Zimmerman was then committed, and that he examined 

Zimmerman in preparation for the hearing. Dr. Maqsood also reviewed Zimmerman’s 

legal chart, his social worker’s notes, and his progress notes. He consulted with 

Zimmerman’s treatment team, which consisted of a psychologist, a social worker, the 

nursing staff and the psychiatric technicians on Zimmerman’s unit. 

Dr. Maqsood diagnosed Zimmerman with schizophrenia with multiple episodes 

that was in partial remission. The criteria for a diagnosis of schizophrenia included 

delusions, hallucinations, disorganized thoughts, and negative symptoms, which include 

lack of emotional expression, lack of interest, evolution, and minimization of psychiatric 

symptoms. According to Dr. Maqsood, although schizophrenia is a progressive disease, 

Zimmerman’s symptoms were currently under control because he was in treatment and 

he was only experiencing the negative symptoms noted above. Previously, however, 

Zimmerman had met additional criteria for schizophrenia. For example, at the time of his 

commitment offense, he was delusional, heard voices, and thought that someone was 

threatening and chasing him. Additionally, in 2004, Zimmerman was discharged from 

the Conditional Release Program (CONREP) because he became delusional and 

barricaded himself in his room, believing someone was plotting against him and trying to 

rape him. On September 15, 2014, Zimmerman was heard talking to himself and stating, 

“She kill you. The bitch from hell.” The next day he was found pacing and talking to 

himself loudly in his room. 
5

Zimmerman also had experienced three episodes of water intoxification, i.e., the 

excessive ingestion of water. The most recent episode occurred in August 2014 when he 

gained 10 to 11 pounds in one day from drinking water.

Zimmerman also had a history of traumatic brain injury. When he was 17 years 

old, his father pushed him against a wall, causing him to hit his head and leaving him in a 

coma for 10 days. An MRI done 10 years later disclosed that the frontal lobes of his 

brain had atrophied and shrunk. According to Dr. Maqsood, frontal lobe damage can 

cause poor impulse control and patients with this type of injury can become aggressive 

and violent. Although he had not exhibited poor impulse control in the preceding year, 

Zimmerman had a history of being aggressive and physically assaultive. 

Zimmerman had been discharged under CONREP and returned to the hospital on 

two prior occasions. In addition to his 2004 termination from the program, in 1997, his 

CONREP was revoked and he was readmitted to NSH as a TANGI3 patient because he 

was using his money to buy pornographic material and hire exotic dancers. On both 

occasions the CONREP director found that he posed an imminent threat of harm.

Zimmerman was currently taking four medications nightly and another medication 

by intramuscular injection every two weeks. He was not currently exhibiting any 

symptoms of schizophrenia aside from the previously mentioned negative symptoms 

because these medications were controlling his symptoms. 

Dr. Maqsood opined that despite his compliance with his medication, 

Zimmerman’s schizophrenia caused him to pose a substantial danger of physical harm to 

others if released because his delusions could cause him to become violent again. Dr. 

Maqsood based his opinion on a myriad of circumstances including: (1) Zimmerman’s 

 

3 TANGI refers to a temporary admission of a patient who had been found not 

guilty by reason of insanity. 
6

criminality, history of substance abuse,4 which was “the biggest risk predictor for future 

violence,” and his history of chronic mental illness and past violence, which were also 

risk factors for future violence; (2) his history of noncompliance with his medication; 

(3) his failure to have a relapse prevention plan and to participate in substance abuse 

groups and other groups he was assigned to; (4) his failure to meet the criteria for 

CONREP release;5(5) his inability to understand his need for medication; (6) his 

inability to identify “triggers” that caused him to decompensate or to ingest drugs; (7) his 

inability to express remorse or empathy for the victim; (8) his poor insight into his illness 

and lack of understanding of his commitment offense; and (9) a risk assessment 

performed by another psychologist who concluded that Zimmerman posed a moderate 

risk of violence in the community. 

Dr. Maqsood also opined that without medication Zimmerman would have serious 

difficulty controlling his dangerous behavior.6 Dr. Maqsood acknowledged that 

Zimmerman was compliant with his treatment plan while confined at the hospital, and 

that his medications had controlled the more serious symptoms of his schizophrenia,

including his delusions. Nevertheless, based on Zimmerman’s history of noncompliance, 

Zimmerman’s limited insight into his mental health issues, and his own assessments, Dr. 

Maqsood opined that Zimmerman would not continue to take his medication if he was 

not supervised.

 

4 Zimmerman’s substance abuse began when he was 14 years old and included 

abuse of alcohol, cocaine, marijuana and opioids. At a young age he was in a 

rehabilitation program for a year. In 2005 he tested positive for opioids. 

5 The criteria for CONREP release included: being free of drugs for six months, 

participation in all groups assigned to him, the ability to perform “his functions” socially 

on the open unit, and full compliance with his treatment plan. 

6 Dr. Maqsood did not identify the specific circumstances on which he based this 

opinion. Nevertheless, it is clear from the record that he based it on many of the 

circumstances he cited in support of his opinion that Zimmerman posed a danger to 

others because of his schizophrenia. 
7

In granting the petition for recommitment, the court, in pertinent part, found that 

Zimmerman had a mental disease, i.e., schizophrenia, and that as a result of his 

schizophrenia he posed a danger of physical harm to others and had serious difficulty 

controlling his dangerous behavior. 

DISCUSSION

Zimmerman contends the evidence is insufficient to sustain the court’s order 

granting the petition for recommitment because the record does not contain substantial 

evidence that supports a finding that Zimmerman had serious difficulty in controlling his 

dangerous behavior. We disagree.

“Under section 1026.5, subdivision (b)(1), ‘[a] person may be 

committed beyond the term prescribed by subdivision (a) only under the 

procedure set forth in this subdivision and only if the person has been 

committed under Section 1026 for a felony and by reason of a mental 

disease, defect, or disorder represents a substantial danger of physical harm 

to others.’ The maximum term of commitment prescribed in subdivision 

(a) is ‘the longest term of imprisonment which could have been imposed for 

the offense or offenses of which the person was convicted ....’ (§ 1026.5, 

subd. (a)(1).) 

“At no less than 90 days before the term of commitment ends, the 

prosecuting attorney may file a petition for extended commitment in the 

superior court which issued the original commitment. (§ 1026.5, subd. 

(b)(2).) The person named in the petition has a right to be represented by 

an attorney and the right to a jury trial. (§ 1026.5, subd. (b)(3).) If, after 

trial, the court or jury finds the patient ‘by reason of a mental disease, 

defect, or disorder represents a substantial danger of physical harm to 

others,’ the patient will be recommitted for an additional period of two 

years from the date of termination of the previous commitment. (§ 1026.5, 

subd. (b)(8).)” (People v. Bowers (2006) 145 Cal.App.4th 870, 876 

(Bowers).)

In Howard N. (2005) 35 Cal.4th 117 (Howard N.), after recognizing that a civil 

commitment constitutes a significant deprivation of liberty that requires due process 

protection, our Supreme Court held that the extended detention scheme of such a 

commitment required “ ‘that the state demonstrate that the “mental ... deficiency, 
8

disorder, or abnormality” causes the person to have serious difficulty controlling his 

dangerous behavior.’ ” (Bowers, supra, 145 Cal.App.4th at pp. 876-877, italics added.)

“ ‘ “Whether a defendant ‘by reason of a mental disease, defect, or 

disorder represents a substantial danger of physical harm to others’ 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 reasonable doubt. [Citations.]” [Citation.]’ [Citation.] 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.” (Bowers, supra, 

145 Cal.App.4th at pp. 878-879.)

Here, Dr. Maqsood testified that Zimmerman posed a danger if released because 

he suffered from chronic schizophrenia with delusions and he suffered a brain injury at 

age 17 that could cause him to have poor impulse control and to become aggressive and 

violent. His opinion was based on the delusional nature of Zimmerman’s symptoms and 

several other factors, including Zimmerman’s belief that he was not mentally ill and did 

not need medication, his substance abuse, which was the biggest risk predictor for future 

violence, and his failure to participate in any substance abuse programs at the hospital. 

Zimmerman’s inability to identify “triggers” that could cause him to decompensate or to 

ingest drugs, his lack of insight into his illness, lack of understanding of his commitment 

offense, and his inability to express remorse or empathy for the victim provided further 

support for Dr. Maqsood’s opinion that Zimmerman would pose a danger to others if 

released. Thus, the record contains substantial evidence that supports the court’s finding 

that Zimmerman posed a serious danger to others if released.

“The People are not required to prove the defendant ‘ “is completely unable to 

control his behavior.” ’ [Citations.] Instead, the defendant’s ‘impairment need only be 

serious, not absolute.’ [Citation.] As the [Supreme Court in Kansas v. Crane (2002) 
9

534 U.S. 407, 411, 151 L.Ed.2d 856 (Crane)] explained, ‘there may be “considerable 

overlap between a ... defective understanding or appreciation and ... [an] ability to 

control ... behavior.” ’ ” (People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370.) It is 

undisputed that Zimmerman suffered from a severe mental disorder that without 

medication caused him to be delusional, impulsive, paranoid and violent. It was also 

undisputed that Zimmerman had limited insight into his behaviors that caused him to be 

violent or his need for medication. Thus, the record also contains substantial evidence 

that supports the court’s finding that Zimmerman would have serious difficulty 

controlling his dangerous behavior if released. (Cf. ibid.)

Zimmerman misplaces his reliance on People v. Galindo (2006) 142 Cal.App.4th 

531 (Galindo) and In re Anthony C. (2006) 138 Cal.App.4th 1493 (Anthony C.) in 

support of his insufficiency of evidence claim. In Galindo, the trial court held a bench 

trial and extended an NGI commitment of a defendant who was diagnosed with bipolar 

disorder. Because the trial occurred prior to the Supreme Court issuing its Howard N.

decision (Galindo, supra, 142 Cal.App.4th at p. 539), the trial court did not make an 

express or implied finding that the defendant’s mental disorder caused him to have

serious difficulty in controlling his dangerous behavior. In order to sustain the judgment, 

the appellate court was required to find that the failure to make this finding was harmless 

beyond a reasonable doubt. In finding the error prejudicial, the court noted there was 

“abundant evidence that defendant’s behavior was dangerous and that he did not, in fact, 

control it.... [T]he fact he did not control his behavior does not prove that he was unable 

to do so, thus making him ‘dangerous beyond [his] control.’ ” (Ibid.) Remand was 

therefore necessary to allow the issue of control to be determined. (Ibid.)

Galindo is inapposite because in that case the trial court failed to make an express 

or implied finding that the defendant’s mental disease, condition, or disorder caused him 

serious difficulty in controlling his dangerous behavior. Thus, to sustain the judgment 

the appellate court had to find that the failure to make a finding on this issue was 
10

harmless beyond a reasonable doubt. Here, because the court addressed this issue, the 

standard of review is whether substantial evidence supported the trial court’s 

recommitment order. Further, unlike Galindo, here the record contains evidence, 

including Dr. Maqsood’s expert testimony, that supported the trial court’s finding that 

Zimmerman’s mental disorder caused him serious difficulty in controlling his dangerous 

behavior.

Anthony C., is inapposite because, as noted by Zimmerman, in that case the 

expert’s opinion “fail[ed] to satisfy the quantitative requirement that [the defendant had] 

‘serious difficulty’ in controlling his behavior.” (Anthony C., supra, 138 Cal.App.4th at 

p. 1507.) Here, Dr. Maqsood testified that Zimmerman’s mental disorder caused him to 

have serious difficulty in controlling his behavior, his opinion is supported by the record, 

and as noted ante, one expert’s opinion is sufficient to support the court’s finding as to 

this issue. (Cf. Bowers, supra, 145 Cal.App.4th at pp. 878-879.) Accordingly, we reject 

Zimmerman’s sufficiency of the evidence challenge to the court’s order extending his 

commitment.

DISPOSITION

The order extending Zimmerman’s commitment pursuant to section 1026.5 is 

affirmed.