Filed 4/19/21 P. v. Andrew H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANDREW H.,

 Defendant and Appellant.

2d Crim. No. B306542

(Super. Ct. No. 20PT-00188)

(San Luis Obispo County)

Andrew H. appeals an order continuing his commitment to 

the Department of Mental Health for treatment as a mentally 

disordered offender (MDO). The MDO Act (Pen.Code, § 2960 et 

seq.)1 “permits the government to civilly commit for mental 

health treatment certain classes of state prisoners during and 

after parole.” (In re Qawi (2004) 32 Cal.4th 1, 23 (Qawi).) 

This is appellant’s second appeal concerning his MDO 

status. In a 2020 opinion, we affirmed the original commitment 

order. (People v. Andrew H. (Jan. 14, 2020, B298502) [nonpub.

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

opn.] (B298502).) Appellant contends the evidence is insufficient 

to show that, “by reason of [his] severe mental health disorder, 

[he] represents a substantial danger of physical harm to others

. . . .” (§ 2972, subd. (c).) We affirm.

Procedural and Factual Background

After a hearing conducted on February 20, 2020, the Board 

of Parole Hearings (BPH) determined that appellant met the 

MDO criteria. It continued his involuntary mental health 

treatment for an additional year. Appellant petitioned for a court 

hearing as to whether he met the MDO criteria. He waived his 

right to a jury trial. 

The court hearing was conducted on May 26, 2020. The 

sole prosecution witness was Dr. Dia Gunnarsson, a forensic 

psychologist at Atascadero State Hospital. She testified as 

follows: Appellant suffers from a severe mental disorder –

bipolar disorder. He has been treated for the disorder since at 

least 2016. “Prior to [2016], he had been treated for P.T.S.D. 

[post-traumatic stress disorder] since about 2013.” At the time of 

the BPH hearing in February 2020, his bipolar disorder was in 

remission. “[H]e had been in remission since about November or 

December of 2019.” “[A]s of the Board of Parole hearing date,” 

appellant could not be kept in remission without appropriate 

treatment, which includes the taking of his medication. He must 

continue taking the medication for the rest of his life. 

Dr. Gunnarsson opined that, because of his severe mental 

disorder, as of the BPH hearing date appellant represented a 

substantial danger of causing physical harm to others. Her 

opinion was based on several factors. The first was “[t]he 

severity of the injury to the victim [of the commitment offense –

assault by means of force likely to produce great bodily injury –] 
3

and the suddenness and bizarre nature of [appellant’s] behavior

at the time.” Dr. Gunnarsson did not relate the facts underlying 

the commitment offense. The facts are set forth as follows in our

prior 2020 unpublished opinion:2

“The assault was committed in July 2016. The victim said: 

‘[Appellant] and [victim] were drinking when [appellant] 

“snapped.” [Appellant] yelled “I don’t give a Fuck, I have PTS 

. . . , I’ll murder you!” [Appellant] began punching [victim] for no 

reason. [Victim] lost consciousness for an unknown amount of 

time. [Victim] woke up with [appellant] sitting over him and 

[appellant] was punching him in the face. [Appellant] was 

laughing as he was assaulting [victim].’

“Victim’s niece said: At a family party, she ‘saw her stepfather, [appellant], choking her uncle, [victim].’ Victim was 

‘intoxicated and “talking crap” toward [appellant]. [Appellant] 

then grabbed [victim by the] left side of his neck with his right 

hand and then threw [victim’s] head against the kitchen counter. 

[Victim’s] head hit the edge of the kitchen counter and he fell on 

the kitchen floor on his back. [Appellant] . . . mounted [victim] 

with both his legs on top of [victim’s] hips. [Appellant] then 

punched [victim] in the face about eight times.’

“Appellant said that victim ‘became disrespectful and 

started threatening [him]. [Victim] belonged to a gang and was 

telling [appellant] he was going to have members of [the] gang 

murder [appellant]. [Victim] leaped forward in an aggressive 

manner and [appellant] pushed [him] back in self-defense. 

2 Pursuant to Evidence Code sections 459 and 452, 

subdivision (d)(1), we take judicial notice of our prior opinion. 

The same counsel who represented appellant in the prior appeal 

also represents appellant in the present appeal.
4

[Victim] fell backwards and hit his head on the kitchen counter. 

[Appellant] lost his balance and fell on top of [victim]. [Victim] 

continued to attack [appellant] while [victim] was on the floor. 

[Appellant] punched [him] two times in self-defense.’

“Victim ‘had lacerations on his left nostril, above his right 

eye, inside his mouth and on [the] right side of his lip. [He] also 

had severe contusions in both eyes, lumps on his forehead and a 

broken nose.’” (B298502 at pp. 2-3, brackets in original.)

The second factor considered by Dr. Gunnarsson was that 

although appellant “showed improved insight” into his mental 

illness, the improvement “was very recent.” Dr. Gunnarsson 

noted that on October 2, 2019, less than five months before the 

BPH hearing on February 20, 2020, appellant exhibited “physical 

aggression.” Because of his aggressive behavior, hospital staff

“had to [put] him . . . in full bed restraints.” The aggression 

occurred when appellant refused to comply with an involuntary 

medication order issued pursuant to Qawi, supra, 32 Cal.4th 1. 

Appellant’s treatment team applied for the order because for 

about five months he had refused to take his medication. After 

14 days of involuntary medication, the treatment team allowed 

the Qawi order to expire because appellant agreed to voluntarily 

continue taking his medication. Since the expiration of the Qawi 

order, appellant has regularly taken his medication. 

The third factor considered by Dr. Gunnarsson was 

appellant’s “history of substance abuse.” He had abused 

“[a]lcohol, cocaine, marijuana, and methamphetamine.” 

Appellant “tended to attribute a lot of his problematic behaviors 

in the past and at the time of [the commitment] offense to 

excessive alcohol use.” At the time of the BPH hearing, he had 

completed only the second stage of a five-stage substance abuse 
5

treatment program. Substance abuse could “interfere with 

[appellant’s] medications, or [his] willingness to take 

medications. [Appellant] . . . reported that he had used 

substances instead of medications in the past . . . to calm down 

his symptoms . . . .” 

Dr. Gunnarsson also considered appellant’s “[r]emission 

status,” “history of mental illness related violence,” and 

“reasonable discharge plans.” “[A]side from the substance abuse 

treatment, he . . . didn’t have any specifics or relapse prevention 

plan.” Dr. Gunnarson believed that appellant’s discharge plan 

was “appropriate . . . for him,” but she was concerned that “he’s 

had similar resources available to him in the past, and . . . had 

not taken advantage of them.” 

Dr. Gunnarson noted that, once appellant started regularly 

taking his medication, his improvement was “pretty dramatic.” 

His insight into his mental disorder improved “[d]ramatically.” 

Since October 2, 2019, he has not exhibited physical aggression. 

At the court hearing Dr. Lawrence Levy was called as a 

defense witness. He is appellant’s treating psychiatrist at 

Atascadero State Hospital. Dr. Levy testified: Since the 

expiration of the Qawi order, appellant has taken his medication 

“voluntarily each and every day.” Appellant’s discharge plan 

includes a “link up with the Veteran’s Program in San Diego” and 

a “[r]esidential program with mental health services.” Dr. Levy 

understood that this program would be “available” to appellant. 

Defense counsel asked Dr. Levy, “Do you think he needs 

more substance abuse treatment within the hospital prior to 

being discharged?” Dr. Levy responded, “I can’t comment on 

that. I’ve not followed the course of that treatment for him.” Dr. 

Levy opined that, if appellant were to engage in substance abuse,
6

it would “negatively impact the effectiveness of the prescribed 

psychotropic medication.” 

As to the incident of physical aggression on October 2, 

2019, Dr. Levy testified: “His refusal to take medication at that 

time meant that he lacked insight, and so he lacked capacity to 

recognize the need for medication. It became dangerous when he 

was told he had to take medication. Prior to that, he had not 

been dangerous on the unit.” 

Dr. Levy opined that appellant is ready to be discharged 

from the hospital provided that he has “the right supports.” “[H]e 

needs to be in a program.” 

Appellant was the only other defense witness. He testified 

that he “get[s] symptoms of mania at times” if he does not take 

his medication. He has “been fine ever since” he started taking 

his medication pursuant to the Qawi order. If necessary, he is 

prepared to take his medication for “the rest of [his] life.” 

Appellant continued: He is a former Marine. He “went to 

Iraq, then [to] Afghanistan.” He was diagnosed with P.T.S.D. If 

released on parole, he intends “to get into Veteran’s Village in 

San Diego” and enter “[a] year-long treatment program” there. 

In the past he had been pre-approved for the program. But 

appellant stated, “I don’t know where I stand now.” He “meet[s] 

the criteria” for entry into the program, but “it’s hard to get into.” 

Appellant is still at level 2 of the substance abuse program. 

Because of the Covid-19 pandemic, he “was not allowed to pursue 

it anymore. We are locked down.” 

Appellant attributed his commission of the commitment

offense to excessive drinking, his P.T.S.D., and the bipolar 

disorder: “If we had not been drinking, it wouldn’t have become 

that situation. I was so intoxicated.” “Really bad things happen 
7

when people drink something . . . . I thought he [the victim] was 

going to kill me. That’s why I reacted the way I did because of 

the P.T.S.D., the bipolar.” Appellant understood “that substance 

abuse can be very dangerous” for him. He said that he “cut off 

drinking.” If released on parole, “I won’t be going to bars. . . . If 

you drink and take the meds, it really screws you up.” 

Appellant was asked, “[D]o you have any problem with 

waiting until there is a program set up for you so that you can be 

released from the hospital into that program that Dr. Levy feels 

necessary for you?” Appellant replied: “I have no problem at all. 

Be appropriate to wait.” 

Trial Court’s Ruling

The court remarked, “I think this is about as difficult a case 

as I’ve heard. I’m very impressed with [appellant].” But the 

court was “most concerned” that a “relapse plan” and treatment 

program were not in place for him at the time of the BPH 

hearing. The court concluded: “[I]t’s better for him and better for 

the community if that plan is in place beforehand. And without 

having that plan in place, . . . the court believes that, 

unfortunately, each of the [MDO] criteria have been met beyond 

a reasonable doubt.” 

Sufficiency of the Evidence

The question before the trial court was whether appellant, 

“as of the date of the Board of Prison Terms [now Board of Parole 

Hearings] hearing, met the [MDO] criteria . . . .” (§ 2966, subd. 

(b); see also People v. Bell (1994) 30 Cal.App.4th 1705, 1710 [“at 

both a hearing challenging the parolee's initial commitment and 

at an annual review hearing continuing that commitment, the 

trier of fact is required to determine that the parolee met the 

MDO criteria on the date of the most recent [Board of Prison 
8

Terms] hearing”].) Appellant claims that the evidence is 

“insufficient . . . to establish [the MDO criterion] that [he] 

constituted a substantial danger of physical harm to others by 

reason of his severe mental disorder.” 

“The substantial evidence rule applies to appellate review 

of the sufficiency of the evidence in MDO proceedings. [Citation.] 

We review the record in the light most favorable to the judgment 

to determine whether it discloses substantial evidence—‘evidence 

that is reasonable, credible, and of solid value’—such that a 

reasonable trier of fact could find beyond a reasonable doubt that 

[appellant met the MDO criteria].” (People v. Labelle (2010) 190 

Cal.App.4th 149, 151.) “‘[W]e “‘presume[ ] in support of the 

judgment the existence of every fact the trier could reasonably 

deduce from the evidence.’ . . .”’” (People v. Harris (2013) 57 

Cal.4th 804, 849.)

Appellant argues that, in concluding that appellant 

represents a substantial danger of physical harm to others, Dr. 

Gunnarsson and the trial court “relied on facts that were 

demonstrably improper and/or contrary to the evidence. In 

particular, Gunnarsson’s reliance on the commitment offense and 

appellant’s past history of mental illness violated basic case law 

holding that those factors constituted separate and independent

requirements under the MDO statute, and cannot support a 

finding of dangerousness.” But appellant cites no authority 

forbidding a court from considering these factors in determining 

an MDO’s dangerousness. The only authority cited is People v. 

Gibson (1988) 204 Cal.App.3d 1425, 1438-1439.

3 Gibson

3 “[T]he MDO statutory scheme was declared 

unconstitutional in [Gibson].” (People v. Robinson (1998) 63 

Cal.App.4th 348, 350.) “[T]he Legislature amended the [MDO]
9

concluded that it would be a violation of due process to

conclusively presume a person’s dangerousness “from proof of 

mental illness so long as it had once been proved the illness was 

causally related to or an aggravating factor in the commission of 

a criminal offense.” (Id. at p. 1439.) Here, the trial court did not 

make such a conclusive presumption. It considered several 

factors in addition to appellant’s mental illness.

Appellant maintains that Dr. Gunnarsson’s reliance on 

appellant’s commitment offense, history of mental illness, 

“purported acts of aggression and medical noncompliance and her 

concern over the recency of appellant’s improvement, violated the 

principle that an individual’s dangerousness . . . must be 

determined with reference to the individual’s current condition.” 

The court properly considered these factors because they were 

relevant in assessing whether appellant’s condition at the time of 

the BPH hearing rendered him dangerous to others.

Appellant claims that Gunnarsson improperly relied on his

history of substance abuse and completion of only the second 

stage of a five-stage treatment program. We disagree. The 

substance abuse issue was of extreme importance. Appellant 

testified that, but for his excessive drinking, he would not have 

committed the offense of assault by means of force likely to 

produce great bodily injury. Dr. Levy opined that, if appellant 

were to engage in substance abuse, it would “negatively impact 

the effectiveness of the prescribed psychotropic medication.” 

According to Dr. Gunnarsson, substance abuse could “interfere 

statutes effective July 1989 to comply with Gibson.” (Ibid.) 

Gibson was criticized on grounds not relevant here in People v.

Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837, 839.)
10

with [appellant’s] medications, or [his] willingness to take 

medications.” In view of appellant’s mental disorder, history of 

substance abuse, completion of only the second stage of the 

substance abuse program, and the uncertainty whether he would 

be admitted into the Veteran’s treatment program, the trial court 

was reasonably concerned that, if released on parole, appellant 

would relapse into substance abuse that would once again lead to 

violent conduct. We reject appellant’s contention that these 

factors were “insufficient to overcome [his] remission.” Dr. 

Gunnarsson opined that appellant could not be kept in remission 

without treatment that included taking his medication. 

“Finally,” appellant alleges, “Gunnarsson’s reliance on a 

purported October 2, 2019 incident of aggression by appellant, 

and his prior refusal to take medications . . . was also 

improper . . . .” Appellant claims that his medication refusal and 

aggression did not reasonably relate to his condition at the time 

of the BPH hearing because these acts had occurred more than 

four months before the hearing. But the acts were recent enough,

and the aggression was of sufficient severity, to be relevant in 

determining appellant’s dangerousness. His aggressive behavior

was uncontrollable and, according to Dr. Levy, “dangerous.” 

Hospital staff “had to [put] him . . . in full bed restraints.” 

After reviewing the entire record in the light most 

favorable to the order continuing appellant’s commitment as an 

MDO, we are convinced that a reasonable trier of fact could find 

beyond a reasonable doubt that, because of his severe mental 

health disorder, appellant represented a substantial danger of 

physical harm to others at the time of the hearing before the BPH

in February 2020.
11

Disposition

The order continuing appellant’s commitment to the 

Department of Mental Health for treatment under the MDO law 

is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
12

Timothy S. Covello, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael R. Johnsen, Supervising 

Deputy Attorney General, Charles S. Lee, Deputy Attorney 

General, for Plaintiff and Respondent.