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Filed 3/21/22 P. v. Purcell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

HENRY PURCELL,

Defendant and Appellant.

C092783

(Super. Ct. No. 79077)

In 1987, the trial court found defendant Henry Purcell not guilty by reason of 

insanity of assault with intent to commit rape and ordered him committed to a state 

hospital for a maximum of six years. The trial court has granted successive petitions 

extending defendant’s commitment by two-year terms. In 2020, the People filed the

latest such petition. Upon a jury verdict that defendant suffered from a mental disease, 

defect, or disorder, and that, as a result thereof, he posed a substantial danger of physical 

harm to others and had serious difficulty controlling his dangerous behavior, the trial 
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court granted the petition, extending defendant’s commitment by two years. On appeal, 

defendant asserts the verdict is not supported by substantial evidence. We affirm.

I. BACKGROUND

A 1987 information charged defendant with assault with intent to commit rape. 

(Pen. Code, § 220.)1 The trial court found defendant not guilty by reason of insanity and 

found him to be a danger to the health and safety of others. The court ordered defendant 

committed to Atascadero State Hospital for a maximum term of six years pursuant to 

section 1026. 

In 1992, the trial court granted the People’s petition pursuant to section 1026.5,

subdivision (b)(1) to extend defendant’s commitment by two years. The court has 

granted numerous successive petitions extending defendant’s commitment by two-year 

terms. In 2020, the People filed the current petition for another two-year extension. 

A. The Trial Evidence

Dr. Nilda Diaz, a forensic psychologist for the State Department of State 

Hospitals, was the only witness at trial. Diaz testified as an expert in forensic psychology 

specific to the area of persons pleading not guilty by reason of insanity. 

Diaz attempted to meet with defendant to perform a forensic evaluation. When 

she introduced herself, defendant said, “ ‘I already talked to you last night.’ ” Diaz had 

never met defendant before. Defendant insisted they had talked the previous night and 

indicated he had no interest in speaking with her. 

Although unable to meet with defendant, Diaz prepared a report. She reviewed 

hospital documentation and defendant’s criminal history. Before testifying, she also 

reviewed hospital documentation prepared since she completed her report. 

1

 Further undesignated statutory references are to the Penal Code.
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Diaz described six reports distilled to a statement of stipulated facts upon which 

she relied. One was a monthly progress note prepared in April 2020 by defendant’s 

treating psychiatrist. Three were monthly progress notes prepared between October 2019 

and February 2020 by a clinical social worker. Another was a registered nurse’s progress 

note from January 2020. The last was a rehabilitation therapy assessment prepared by a 

certified treatment rehabilitation specialist in October 2019. 

B. Defendant’s Diagnoses

Defendant’s primary psychiatric diagnosis was schizoaffective disorder, bipolar 

type. This is a disorder characterized by psychotic symptoms. “Psychosis is the inability 

to correctly interpret what’s happening in reality.” A person experiencing psychosis may 

misperceive others’ behaviors or actions. Such a person may also experience outside 

stimuli that, in reality, are not there such as auditory, visual, and tactile hallucinations. 

Defendant had a history of auditory hallucinations; he hears voices telling him to do 

things, which are known as command hallucinations. Defendant’s auditory command 

hallucinations included voices telling him to harm others and that people are “after him,”

which Diaz described as paranoid ideation. Defendant believes “everybody is out to 

harm him, . . . specifically his treatment team.” 

The bipolar aspect of defendant’s diagnosis included symptoms of a mood 

disorder. Defendant experiences manic episodes that have included hostile and 

aggressive behavior towards others. 

Defendant also had three “underlying diagnoses”: cannabis use disorder, alcohol 

use disorder, and antisocial personality disorder. His use of cannabis and alcohol have 

both contributed to maladaptive behaviors that had “gotten in the way of him being able 

to effectively function in society.” Defendant was not in remission for his use disorders 

because he had not completed any treatment. In relation to his past drug use, he had 

expressed the opinion that there was nothing wrong with him. 
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Antisocial personality disorder “is a pervasive pattern of maladaptive ways of 

interacting with others in society.” It can manifest itself in disobeying the law and social 

norms. Additionally, there is a criterion of antisocial personality disorder including lack 

of remorse for behaviors that harm others. Other criteria include social isolation, 

aggression, and hostility towards the personal space and boundaries of others, and 

disregard for the health and safety of others. 

With regard to her opinion defendant presented a substantial danger of physical 

harm to others, Diaz looked at three areas in relation to his primary mental illness: 

(1) defendant’s history, (2) defendant’s clinical presentation/current functioning, and (3) 

risk management. 

C. Defendant’s History

Diaz considered defendant’s past diagnoses, past symptoms, past compliance with 

treatment, and past behavior, including his criminal history. Defendant had a pattern of 

“decompensation.” He would go through treatment, but, once unsupervised, he quickly 

decompensated, meaning his psychotic symptoms escalated, causing him to again pose a 

risk, and he had reoffended. Similarly, in relation to defendant’s criminal history, he 

would go through treatment, be released, be rearrested related to his mental illness, and 

be rehospitalized. This pattern had occurred on three occasions since 1972. Defendant’s 

criminal history demonstrated escalation: “He went from a vehicle theft to a battery on a 

person. After that, he was treated and then subsequently re-arrested for a felony assault, 

likely to produce great bodily injury, an increase in the level of violence that was 

exhibited even after he was at the state hospital setting. So a good indicator of potential 

dangerousness and violence is past behavior, and I took the pattern . . . shown by 

[defendant], as a main contributor to his current level of dangerousness, if he were to be 

released without supervision.” 
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D. Clinical Presentation/Current Functioning

Defendant continued to be verbally aggressive towards others. He cursed at his 

treatment team and his peers and made illogical statements that could demonstrate 

disorganized thinking. His presentation also indicated hallucinations and responsiveness 

to unseen stimuli, indicating ongoing psychosis. He exhibited poor decisionmaking. He 

also demonstrated “poor boundaries with others,” requiring hospital staff to intervene and 

redirect him so he would not harm or be harmed by others. 

In February 2020, a social worker documented an incident in which defendant 

took a peer’s cup and drank from it without permission. Diaz testified this demonstrated 

poor decisionmaking skills and inability to make appropriate decisions about others’ 

personal space. This incident “increased his risk for being harmed by others, as well as 

his reaction to the situation went quickly from making a poor decision to an outburst of 

aggression towards another person.” Defendant’s inability to make good decisions would 

place him and others at a substantial risk of physical harm due to his impulsivity in his 

interactions with others and his poor perception of others’ intent. 

A nurse’s note from January of 2020 indicated defendant had ongoing delusions 

and paranoia, responded to auditory hallucinations, cursed at staff, stating, for example, 

“ ‘kill the bitch,’ ” and referred to himself as Jesus Christ. Defendant continued to 

express delusions and false beliefs. He “quickly resorts to aggressive . . . hostile 

verbalizations to others that can be perceived as aggressive and potential for danger.” 

In another documented incident, a social worker tried to redirect defendant when 

she found him attempting to eat food from the trash. Defendant’s response was “very 

aggressive and hostile.” Defendant cursed at the nurse and staff redirected him for his 

safety and the safety of staff. Diaz considered this additional evidence of defendant’s 

inability to make good decisions regarding health, hygiene, and grooming. 

In another incident, when the social worker attempted to perform an annual 

evaluation, defendant “grumble[d] under his breath . . . and his body posture was leaning 
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forward with clenched hands and he ended the interaction with ‘fuck off,’ while fingers 

imitated a gun and made a gesture to simulate shooting” the social worker. This was 

further support for Diaz’s opinion that defendant’s interactions tended to be aggressive 

and hostile and put others at risk of physical harm. Defendant “continues to have the 

symptoms of misinterpreting reality, misinterpreting other people’s intent, as noted as his 

paranoia.” 

A therapist noted defendant had a history of aggression and that he had hit peers. 

While he did not hit hard, such actions put defendant at risk of being hit back. Diaz 

opined this supported the conclusion defendant had a pattern of engaging in physical 

violence toward others. Defendant “tends to be impulsive, aggressive and hostile, which 

could result in harm to others.” Diaz acknowledged defendant had “been free from actual 

physical assault for four years.” However, she opined that “has been more of a result of 

the structure of the hospital setting and the daily routine of redirection from the staff, that 

prevent him from having the ability to actually, physically harm others.” 

E. Risk Management

Defendant had failed to develop mitigating behaviors or skills that would reduce 

his risk. Defendant had failed to create a relapse prevention plan, he had not developed a 

positive relationship with, and continued to be paranoid about, his treatment team, and he 

continued to insist he does not have any mental illness. Diaz characterized this as of 

great concern. Diaz testified that someone like defendant, who did not believe he had a 

mental illness, would be unlikely to continue medication if placed in the community. 

According to the report by defendant’s treating psychiatrist, if defendant did not take his 

medication, he would decompensate and “pose an increased risk of aggression and 

violence.” Diaz testified that, since defendant’s 1987 commitment, he had not made any 

progress in understanding his mental illness, learning how to cope, or developing any 

plan. 
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F. Additional/Interrelated Considerations

Diaz testified it is essential to go through core treatment to achieve remission. 

However, defendant did not participate in core treatment therapies. He was not enrolled 

in the relapse prevention plan group nor the core groups for awareness of mental illness 

or substance abuse. A main criterion for discharge readiness is a patient’s “ability to 

develop insight and awareness into their own mental illness and develop skills in order to 

manage the symptoms.” Having declined participation, defendant posed “a very, very 

high risk of decompensation if he were released and he would not meet criteria for a 

discharge from the hospital.” 

Defendant complied with his medication program in the hospital but “he requires 

daily redirection to take that medication. So without the prompting of staff, it’s 

unlikely.” In the past, when defendant had undergone a change or adjustment in 

medication, defendant experienced increased episodes of violence and aggression 

towards peers. Defendant still experiences psychosis and impairment in his daily 

functioning despite his medication. 

G. Diaz’s Conclusions

Diaz concluded defendant still represented a substantial danger of physical harm 

to others due to his continued symptoms of his severe mental illness. Diaz further opined 

defendant had serious difficulties controlling his dangerous behavior. 

Explaining her opinion that defendant represented a substantial danger of physical 

harm to others due to his diagnosis of schizoaffective disorder, bipolar type, Diaz 

testified: “Based on my review of his progress and treatment over the past year, or the 

lack thereof, [defendant] has continued to present with symptoms of psychosis. As noted 

in the six different reports . . . , [defendant] has continued to exhibit experience of 

auditory hallucinations; he has continued to experience paranoid ideation; he has also 

demonstrated poor reality testing, in that he has not been oriented to what is going on 

around him accurately; he has also demonstrated what’s called disorganized thoughts and
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disorganized speech, so when staff have attempted to interact with him, his responses do 

not make sense, logically, to the questions he’s being asked. He has also presented with 

maladaptive behaviors over the past year. Those have included verbal aggression 

towards peers and staff. He has required daily redirection and supportive interaction by 

staff in order to complete basic skills of daily living, such as his hygiene and grooming, 

taking his medications and maintaining appropriate boundaries with his peers, as well as 

other staff. He’s also demonstrated social isolation that has been demonstrated by his 

poor attendance and engagement in his treatment. He’s been noted to only attend and 

participate in treatment that includes recreation on the unit. . . . [A]ny core treatments 

that include[] awareness of his mental illness education, awareness of his medication 

regime, development of coping skills, development of a relapse prevention plan for 

substance abuse or crises or his mental illness symptoms, he has refused to engage with 

for the past year. [¶] So due to those listed behaviors and observations, he still 

represents a substantial danger of physical harm to others, secondary to his severe mental 

illness, which is schizoaffective disorder.” 

H. Verdict and Extension of Commitment

The jury found true the petition’s allegation that defendant suffered from a mental 

disease, defect, or disorder, and that, as a result thereof, he posed a substantial danger of 

physical harm to others and had serious difficulty in controlling his dangerous behavior. 

The trial court extended defendant’s commitment by two years to August 18, 2022. 

II. DISCUSSION

Defendant asserts the judgment is not supported by substantial evidence that his 

mental illness currently causes him serious difficulty controlling dangerous behavior. 

According to defendant, the prosecution did not provide any evidence to support Diaz’s 

“bare conclusion” that defendant had such difficulty. 

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 
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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 last element also requires proof that the person has 

serious difficulty controlling his dangerous behavior.” (People v. Williams (2015) 

242 Cal.App.4th 861, 872 (Williams).) Defendant only challenges the sufficiency of the 

evidence with regard to the element addressed to whether his mental illness currently 

causes him serious difficulty controlling dangerous behavior.

“We review an order to extend commitment under section 1026.5 by applying the 

substantial evidence test, examining the entire record in the light most favorable to the 

order to determine whether a rational trier of fact could have found the requirements of 

the statute satisfied beyond a reasonable doubt.” (Williams, supra, 242 Cal.App.4th at 

p. 872.) Substantial evidence is “ ‘evidence that is reasonable, credible, and of solid 

value,’ ” from which a reasonable trier of fact could have made the requisite finding 

under the applicable standard of proof. (People v. Covarrubias(2016) 1 Cal.5th 838, 

890.) “ ‘We presume in support of the judgment the existence of every fact the trier of 

fact reasonably could infer from the evidence. [Citation.] If the circumstances 

reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted 

simply because the circumstances might also reasonably be reconciled with a contrary 

finding.’ ” (Ibid.)

Diaz concluded defendant represented a substantial danger of physical harm to 

others due to his continued symptoms of his severe mental illness. Diaz further expressly 

opined defendant had serious difficulties controlling his dangerous behavior. As 

defendant notes, “expert medical opinion evidence that is based upon a ‘ “guess, surmise 

or conjecture, rather than relevant, probative facts, cannot constitute substantial 

evidence.” ’ ” (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.) Here, we 

conclude relevant, probative facts supported Diaz’s conclusion.
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Defendant’s primary diagnosis, schizoaffective disorder, bipolar type, is a 

psychotic disorder. “Psychosis is the inability to correctly interpret what’s happening in 

reality.” Defendant has a history of experiencing auditory command hallucinations 

including voices telling him to harm others and that people are “after him.” He currently 

demonstrates signs of hallucinations and responsiveness to unseen stimuli, indicating his 

ongoing psychosis. He has poor reality testing and is not accurately orientated to what 

was going on around him. His bipolar disorder causes him to exhibit hostile and 

aggressive behavior towards others. He exhibited maladaptive behaviors including 

verbal aggression. 

Defendant’s use of cannabis and alcohol have contributed to maladaptive 

behaviors that had “gotten in the way of him being able to effectively function in 

society.” Defendant has not completed any treatment relative to his use disorders. 

Antisocial personality disorder, which defendant has, can manifest itself in 

disobeying the law and social norms, experiencing lack of remorse for behaviors that 

harm others, aggression and hostility, and disregard for the health and safety of others. 

Defendantshows poor decision making and inability to make appropriate 

decisions about the personal space of others. His inability to make good decisions would 

put him, and others, at a substantial risk of physical harm due to his impulsivity and his 

poor perception of others’ intent. 

A nurse’s note indicated defendant had ongoing delusions, false beliefs, and 

paranoia, responded to auditory hallucinations, cursed at staff stating, “ ‘kill the bitch,’ ” 

and referred to himself as Jesus Christ. Defendant “continues to have the symptoms of 

misinterpreting reality, misinterpreting other people’s intent.” He also had a history of 

aggression and he hit peers, although not hard. Defendant is impulsive, aggressive, and 

hostile. 

A main criterion for discharge readiness is a patient’s “ability to develop insight 

and awareness into their own mental illness and develop skills in order to manage the 
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symptoms.” Defendant failed to develop any sort of relapse plan and continues to insist 

he does not have any mental illness. 

According to Diaz, someone like defendant, who does not believe he has a mental 

illness, would be unlikely to continue medication if placed in the community. According 

to the report by defendant’s treating psychiatrist, if defendant did not take his medication, 

he would decompensate and “pose an increased risk of aggression and violence.” When 

defendant has undergone a change or adjustment in medication, he experienced increased 

episodes of violence and aggression towards peers. 

It is essential to go through core treatment to achieve remission. Defendant did 

not participate in core treatment therapies. Having declined participation, defendant 

posed a “very high risk of decompensation if he were released.” 

We conclude the foregoing constitutes substantial evidence amply demonstrating

defendant’s mental illness currently causes him serious difficulty controlling dangerous 

behavior. Diaz testified as an expert to that very fact. (Cf. Williams, supra, 

242 Cal.App.4th at p. 872 [“A single psychiatric opinion that a person is dangerous 

because of a mental disorder constitutes substantial evidence to justify the extension of 

commitment”].) Moreover, based on the evidence marshaled ante, the jury could 

reasonably infer that defendant’s mental illness, psychosis, command hallucinations, 

paranoia, misinterpretations of reality and the intentions of others, clear patterns of 

decompensating, impulsivity and aggression, denial that he has any mental illness, and 

the likelihood he would not comply with his medication program established defendant’s 

mental illness currently causes him serious difficulty in controlling dangerous behavior. 

Defendant’s history of hitting peers demonstrated serious difficulty controlling dangerous 

behavior. Moreover, although defendant had “been free from actual physical assault for 

four years,” this “has been more of a result of the structure of the hospital setting and the 

daily routine of redirection from the staff, that prevent him from having the ability to 

actually, physically harm others.” Defendant’s reaction to a social worker attempting to 
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conduct an annual evaluation, clenching his hands, telling her to “ ‘fuck off,’ ” and 

making a hand gesture like shooting a gun at her also illustrates his inability to control 

dangerous behavior. Defendant has no plan for dealing with his mental illness, 

psychosis, substance abuse, hostility, and aggression. Substantial evidence supports the 

jury’s verdict.

Defendant attempts to distinguish cases in which substantial evidence supported 

the determination that the defendant had serious difficulty controlling dangerous 

behavior. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159; People v. Bowers

(2006) 145 Cal.App.4th 870.) However, for the most part, we find the circumstances in 

those cases more analogous to defendant’s circumstances than distinguishable. Each case 

obviously involves facts not present here. (Zapisek, supra, at p. 1166 [the defendant 

taped over hospital alarm sensors needed for medical emergencies because he believed he 

was under surveillance; he also experienced delusions of the same type as those he 

previously experienced when he assaulted a stranger with a knife believing the stranger 

was the devil]; Bowers, supra, at p. 879 [Bowers told doctors she was able to resist 

command hallucinations, but “she was not always able to do so, as evidenced by her 

suicide attempt two months before her interview”].) However, as the People point out, 

these cases do not establish a minimum showing required to support a conclusion that a

patient has serious difficulty controlling dangerous behavior. They establish no more 

than that, in those cases, substantial evidence supported the findings of the triers of fact.

Defendant also relies on People v. Galindo (2006) 142 Cal.App.4th 531.

However, the proceedings in the trial court in Galindo predated the recognition of the 

requirement that “section 1026.5, subdivision (b)(1), must be interpreted as requiring 

proof that a person under commitment has serious difficulty in controlling dangerous

behavior.” (Id. at p. 536.) Thus, “neither the parties, nor the witnesses, nor the court had 

the opportunity to consider the control issue.” (Id. at p. 539) Here, Diaz expressly
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testified defendant had serious difficulties controlling his dangerous behavior, an opinion 

we have found to be supported by substantial evidence. 

III. DISPOSITION

The order extending defendant’s commitment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

MAURO, Acting P. J.

/S/

 

DUARTE, J.