1

Filed 8/16/24 P.v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ERWIN ANTONIO LOPEZ,

Defendant and Appellant.

 A169212

 (Solano County Super. Ct. No. 

FC40940)

Erwin Antonio Lopez appeals from the trial court’s order 

extending his commitment to a state mental hospital pursuant to 

Penal Code section 1026.5, subdivision (b), which governs the 

procedures for extending the commitment of individuals found 

not guilty by reason of insanity.

1 Lopez’s court-appointed 

attorney filed a brief identifying no specific issues as grounds for 

relief, asserting that our independent review of the record is 

required under People v. Wende (1979) 25 Cal.3d 436 (Wende). In 

the alternative, his attorney requests that we exercise our 

discretion to conduct an independent review of the record under 

Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.). Having 

now independently reviewed the record, we affirm. 

1 Undesignated statutory references are to the Penal Code.
2

BACKGROUND

A.

Section 1026.5, subdivision (b), sets forth the procedural 

and substantive requirements for extending the commitment of a 

person who, like Lopez, has been committed after having been 

found not guilty of a felony by reason of insanity. (See People v. 

Kendrid (2012) 205 Cal.App.4th 1360, 1366 (Kendrid).) To justify 

continued commitment in a treatment facility, the People must 

prove, beyond a reasonable doubt, that the person “represents a 

substantial danger of physical harm to others” because of “a 

mental disease, defect, or disorder.” (§ 1026.5, subd. (b)(1); 

Kendrid, supra, at pp. 1366, 1370.) As part of that showing, the 

People must establish that the committed person “ ‘has serious 

difficulty in controlling dangerous behavior.’ ” (Kendrid, supra,

at p. 1366; see also People v. Zapisek (2007) 147 Cal.App.4th 

1151, 1164-1165 (Zapisek).) A single psychiatric opinion that the 

person is dangerous due to a mental disorder can constitute 

substantial evidence in support of an extended commitment. 

(Zapisek, supra, at p. 1165.) Whether a person presents a 

substantial danger of harm to others is a fact question. (Kendrid,

supra, at p. 1370.) 

The committed person may establish a defense to recommitment by showing, by a preponderance of the evidence,

that he no longer presents a substantial danger of physical harm 

to others because he is now taking medication that controls his 

condition, and he will continue to take that medication if 

released. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 

1600-1602.)

Although the proceedings are civil (see People v. Martinez

(2016) 246 Cal.App.4th 1226, 1238 (Martinez)), committed 

persons in section 1026.5, subdivision (b) proceedings are 

“entitled to the rights guaranteed under the federal and State 

Constitutions for criminal proceedings.” (§ 1026.5, subd. (b)(7).) 
3

Among the procedural rights specified by statute are the right of 

the committed person to a jury trial and to be represented by 

counsel. (§ 1026.5, subds. (b)(3)-(4), (b)(7).) Section 1026.5 also 

sets forth the deadlines applicable to a petition for extended 

commitment. (See § 1026.5, subds. (b)(1)-(2), (b)(4).)

If the jury (or court, if jury trial is waived) finds that the 

committed person poses a substantial danger of physical harm to 

others due to a mental disorder, the court must order the person 

recommitted for a period of two years. (§ 1026.5, subd. (b)(8).)

B.

Lopez was originally committed to a state mental hospital 

in 1996 after being found not guilty by reason of insanity of two 

counts of battery on a corrections officer and one count of 

possession of a deadly weapon by a prisoner. At the time of the

extension proceedings, Lopez was an in-patient receiving 

treatment at Patton State Hospital, a locked psychiatric facility.

His most recent commitment was due to expire on December 23, 

2023.

Based on the People’s May 11, 2023, petition to extend 

Lopez’s commitment, the court held a jury trial beginning in

October 2023, during which Lopez was represented by counsel. 

Because Lopez had a medical condition requiring him to attend 

dialysis three days a week, he elected to attend the trial 

remotely, via video. The parties also agreed the witnesses would 

testify remotely.

At the conclusion of the trial, the jury found true “the 

allegation that . . . Lopez is a person who currently poses a 

substantial danger of physical harm to others as a result of a 

mental disease, defect or disorder, and that is not controlled 

through medication, within the meaning of . . . section 1026.5[, 

subdivision] (b).” The trial court thereafter entered an order 
4

extending Lopez’s commitment by a period of two years, to 

December 23, 2025.

C.

At the trial, based on the parties’ stipulation, the court 

informed the jury that in 1996, Lopez had been convicted of three 

felony offenses committed while he was incarcerated: two counts 

of battery and one count of weapon possession. In addition, the 

court informed the jury that Lopez had been found not guilty of 

those felony crimes by reason of insanity, and was committed to a 

state mental hospital as a result.

The People presented five witnesses, each of whom Lopez’s 

trial counsel cross-examined. The witnesses included three staff 

members from Patton State Hospital who had experience treating 

or working with Lopez: a staff psychiatrist (Dr. Ashrah Helmy), a 

forensic evaluator and unit psychologist (Dr. Brittany Dey), and a 

licensed clinical social worker (Kim Braxton). Another witness

(Dr. Ryan Jordan) was a senior psychologist specialist at Patton

and the final witness (Dr. Kelly Hunsicker) was a forensic 

psychologist at Patton. The parties stipulated that Dr. Helmy 

was an expert in psychiatry, Dr. Dey and Dr. Jordan were

experts in psychology, and Dr. Hunsicker was an expert in 

forensic psychology.

Lopez conceded at trial that he has a mental illness. 

Consistent with that concession, the trial testimony established

that Lopez had been diagnosed with schizoaffective disorder, 

bipolar-type, a “chronic” or “severe and persistent mental 

disorder [¶] . . . [¶] . . . that lasts a lifetime.” In addition, Lopez 

had been diagnosed with moderate alcohol use disorder.

Symptoms of schizoaffective disorder, bipolar-type, include 

major depression or manic episodes, accompanied by “a period of 

significant presence of psychotic symptoms.” The psychotic 

symptoms may include paranoia, delusions, or hallucinations, 
5

which involve “responding to stimuli that are not present in 

reality,” as well as disorganized thinking or behavior. The illness 

also involves elevated (manic) or irritable moods, with periods of 

mania being accompanied by grandiosity or “having an inflated . . 

. sense of self, distractibility, talkativeness, racing thoughts, 

increase in speech, pressured speech, increase in goal-directed 

activities,” impulsivity, and “taking risks that [the individual] 

wouldn’t normally take.”

At Patton, Lopez was compliant with his prescribed

medication regime, which required taking two psychotropic

medications to help manage his symptoms. Although Lopez 

continued to experience residual symptoms of his mental illness 

while on medication within the structured hospital setting, “his 

symptoms [we]re not so severe and exacerbated that he [wa]s in 

danger and requiring one-to-one observation, five-point restraints 

or frequent [intramuscular] medications.” If Lopez were to stop 

taking his medication, however, he “would be at a higher 

likelihood of having an acute exacerbation of the schizoaffective 

disorder, bipolar-type illness,” meaning “[h]e would be at an 

increased risk for having” an uncontrolled psychotic episode.

As a result of Lopez’s treatment, including medications, the 

symptoms of his mental illness were in partial remission and his 

behavior had been stable. Braxton testified that she tended to 

get along with Lopez, whom she described as a “cool person” who 

likes to joke around a lot. She had never observed Lopez assault 

or verbally abuse anyone on his psychiatric unit. Dr. Helmy 

similarly testified that he had never seen Lopez being physically 

violent or abusive to anyone. 

Lopez had been involved in two incidents of conflict with 

other patients, one involving pushing and one in which the other 

patient assaulted Lopez and broke his glasses; Lopez reported to 

Dr. Helmy that he did not bear a grudge against those patients 

and had no plans to retaliate against them. Dr. Jordan recounted
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that according to Lopez, there was one incident in August 2023 in 

which Lopez had been “horse playing on the unit” and “wrapped 

his arm around a staff member’s neck in a playful manner.” 

Lopez recognized that his behavior was concerning to the staff, 

who had been preparing to give him an intramuscular shot of 

medication to bring his symptoms under control; because Dr. 

Jordan arrived to take Lopez off the unit for a meeting, however, 

staff did not administer the injection.

Lopez continued to exhibit a variety of symptoms of his 

mental illness while residing in the controlled environment at 

Patton. Dr. Dey, who was Lopez’s treating psychologist for two

and one-half years before becoming a forensic evaluator, testified 

that despite his medication, she still observed in Lopez instances 

of delusional thinking, grandiosity, elevated mood, irritability, 

thought disorganization and problems with impulsivity. Based 

on her interview with him, Dr. Hunsicker observed that Lopez

displayed ongoing psychosis, including paranoia, impulsivity, 

thought disorder, and hypomania, and he suffered from grandiose 

delusions.

Lopez continued to grapple with a “lack of orientation to 

reality.” For example, one of Lopez’s grandiose delusions 

involved his plan to make a movie about Patton after he is 

released: he stated that the movie “will be great. People say 700 

million. And, they are making commercials and coming out with 

movies that are made off of me.” Lopez also discussed having 

played for the Dodgers in the World Series and commented that 

Dr. Jordan was “Donald Trump’s right-hand man.”

In addition, Lopez continued to have paranoid delusions. 

Dr. Helmy testified that Lopez had an “on-and-off” delusion that 

the state was punishing him by making him do dialysis. Lopez 

shared with Dr. Hunsicker his paranoid delusion that a 

Cambodian gang was targeting him and that as a result, he 
7

needed a bullet-proof vest to attend his medical appointments, 

otherwise, he said, “ ‘I am going to get shot.’ ”

Dr. Dey and Dr. Hunsicker also testified that Lopez 

exhibited ongoing persecutory or paranoid delusions about the 

victims of his 1996 battery offenses. According to Dr. Dey, Lopez 

“believ[ed] the victims of his offense” (two correctional officers)

“were . . . out to sabotage him” and he believed that the victims

“had threatened to ‘cut his balls off.’ ” Lopez reportedly told Dr. 

Hunsicker that the victims of his offenses “were out to get him 

and that he actually did not do anything wrong.”

Dr. Hunsicker opined that at the time of his 1996 offenses, 

Lopez’s “decision making was compromised as a result of his 

mental illness.” Lopez acknowledged to Dr. Hunsicker that at 

the time of the offenses, he was noncompliant with his 

psychiatric medications and was experiencing racing thoughts. 

But Lopez also denied hitting anyone, insisted that the victims 

were “out to get [him],” failed to express any remorse, and had no 

“plans for how he could prevent such an act from happening 

again in the future.” Dr. Hunsicker concluded that Lopez had 

“very minimal to zero insight into understanding how his mental 

health disorder influenced him at the time” of his offenses. Dr. 

Helmy similarly testified that Lopez minimized his 1996 offenses 

and was unable to understand the connection between his mental 

illness and his behavior that led to the crime. And Dr. Dey

reported that Lopez “never expressed any understanding of how 

his mental health symptoms impacted his behavior in the context 

of his controlling offense.”

More generally, several witnesses testified that Lopez had 

limited insight into the connection between his mental illness 

and his behavior, and they observed that he was unable or 

unwilling to identify or discuss his triggers or warning signs 

preceding a psychotic episode. Dr. Dey stated that Lopez did not 

report any understanding of his psychosis-related symptoms, 
8

“which concerned [her] given the fact that that so heavily has 

impacted past evidence of violence with him.” When Dr. 

Hunsicker asked Lopez to describe his symptoms, Lopez stated: 

“ ‘I am coming to reality. This is one of my psychosis, too, is my 

triggers, too, religious psychosis. I thought it was raining in my 

cell and my cell caught on fire. I had the Bibles.’ ” When Dr. 

Helmy asked Lopez how he would cope with a psychotic episode if 

he is released into the community, he had no response.

With respect to Lopez’s plans should he be released from 

the hospital, he was unwilling to commit to continuing his 

medications. He “did not feel that . . . stopping medications 

would be problematic.” When Dr. Hunsicker asked if he would 

continue to take his medications, Lopez stated: “ ‘Well, maybe not 

forever. I mean, do I really need them?’ ” Lopez similarly asked 

Dr. Helmy whether “the medicines are . . . necessary.” Dr. Helmy

described Lopez as “ambivalent” about whether he would 

continue to take his medication if released.

Lopez voiced his desire to go to Hollywood and make a 

movie if released, or to “go back to [his] gang life.” He reportedly 

had no other plans for how he would support himself, nor did he 

communicate plans as to where he would live or where he would 

get treatment. Although committed individuals at Patton have 

the option of developing a “Wellness and Recovery Action Plan”

with respect to their mental illness—a plan to ensure they do not 

relapse if released into the community—Lopez did not have such 

a plan. He had previously developed one that was years old, but 

he never updated it and reported that he had thrown it away. In 

addition, although substance abuse would exacerbate the 

symptoms of his mental illness, Lopez had no relapse prevention 

plan to address his alcohol use disorder and was not committed to 

maintaining his sobriety.

Dr. Hunsicker opined that Lopez’s plans were “highly 

problematic and completely neglect[ed] his severe mental health 
9

disorder, his risk for future violence, and his risk for psychiatric 

decompensation.” In her opinion, “Lopez d[id] not have the 

ability to understand . . . the symptoms of his illness in the 

moment to know when they are worsening and to know when he 

needs to seek help.” Lopez’s lack of insight was concerning 

because the ability to recognize his symptoms and ask for help in 

the moment “is a critical component to community safety.” Based 

on her evaluation of Lopez and the testimony of all the other 

witnesses, Dr. Hunsicker opined that “if [Lopez] were to be 

released to the community[,] . . . he does represent a substantial 

danger of harm to others by reason of his severe mental illness.” 

She added that Lopez would have “a serious difficulty controlling 

[his] dangerous behavior” if he were in the community.

DISCUSSION

Lopez’s appellate counsel advised him of his right to file a 

supplemental brief within 30 days of the date of filing the 

opening brief, but Lopez has not submitted any such brief. 

Lopez’s counsel contends that independent review of the record in 

this case is required under Wende. Counsel’s brief does not 

address cases from other districts holding that, consistent with 

Ben C., independent appellate review is not required when a 

committed person’s attorney identifies no arguable issues in an

appeal from an order extending commitment under section 

1026.5, subdivision (b). (See People v. Luper (2022) 73 

Cal.App.5th 1077, 1080-1083; Martinez, supra, 246 Cal.App.4th 

at pp. 1230, 1231-1240.) We need not decide in this case whether 

independent review is mandatory or discretionary in section 

1026.5, subdivision (b), appeals however, because we have chosen 

to conduct such a review regardless. Based on our review, we 

conclude there are no arguable errors that would result in a 

disposition more favorable to Lopez.
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DISPOSITION

The trial court’s order extending Lopez’s commitment to 

Patton State Hospital to December 23, 2025, is affirmed.

BURNS, J. 

WE CONCUR:

SIMONS, ACTING P.J.

CHOU, J.

People v. Lopez (A169212)