1

Filed 1/28/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DANNY REUBEN KERBS,

Defendant and Appellant.

 A155126

 (Sonoma County

 Super. Ct. No. SCR-25640)

Appellant Danny Kerbs appeals from the trial court’s order extending 

his civil commitment at Napa State Hospital under Penal Code section 

1026.51 for two years, until June 2020. He contends (1) substantial evidence 

does not support the commitment extension, and (2) the extension order must 

be reversed because the record does not affirmatively establish that he 

knowingly, intelligently, and unconditionally waived his right to a jury trial. 

Because we conclude the commitment extension is not supported by 

substantial evidence, we shall reverse the court’s order. 

PROCEDURAL BACKGROUND

Appellant was originally found not guilty by reason of insanity (NGI) of 

one count of assault with a deadly weapon (§ 245, subd. (a)(1)) in 1998. He 

was committed to the state hospital system for a maximum term of four 

years. 

1 All further statutory references are to the Penal Code unless 

otherwise indicated. 
2

The original offense was described in an October 4, 2017 extension 

report as involving appellant allegedly coming upon a man at the side of the 

road who was fixing his vehicle, grabbing a screwdriver from the man and 

shouting, “ ‘Get away punk or I’ll kill you.’ He later allegedly stated he 

thought the man was a ‘shady character.’ ” Upon his arrest, police officers 

described him as “paranoid, delusional, agitated, hostile, and threatening.” 

In addition to the assault with a deadly weapon charge, appellant was 

initially charged with making criminal threats (§ 422), exhibiting a deadly 

weapon (§ 417, subd. (a)(1)), and theft (§ 484, subd. (a)). Appellant pleaded 

no contest to the assault charge, the court found him NGI, and the latter 

three charges were dismissed. 

Other than two limited periods of release to the Conditional Release 

Program (CONREP),2 appellant’s commitment was extended multiple times 

over 20 years, pursuant to section 1026.5, subdivision (b). 

On January 24, 2018, the Sonoma County District Attorney filed a 

petition under section 1026.5 to extend appellant’s civil commitment at Napa 

State Hospital for two additional years. 

On July 10, 2018, at the conclusion of a bench trial, the court sustained 

the petition and extended appellant’s commitment until June 8, 2020. 

On August 21, 2018, appellant filed a notice of appeal.

FACTUAL BACKGROUND

At the bench trial, which took place on July 8 and 9, 2018, the following 

evidence was presented. 

2 In 2009, appellant had agreed to an extension of his two-year 

commitment with the understanding that he would be placed in CONREP. 

In 2011, appellant again agreed to a two-year extension of his commitment, 

contingent on his acceptance into CONREP. The Services provided by 

CONREP are authorized by section 1615.
3

Dr. Cheryline Mancusi, a staff psychologist at Napa State Hospital, 

testified as an expert in the area of violence risk assessment, 

psychodiagnostic assessment, and psychological treatment. Dr. Mancusi had 

been appellant’s unit psychologist for about four and one-half years. She 

interacted with appellant about once a month, including during quarterly 

treatment conferences and on the unit. 

Dr. Mancusi opined that appellant, who was 61 years old at the time of 

trial, suffered from schizophrenia, with symptoms present over a continuous 

period of time. During the time she had worked with appellant, he had 

“primarily exhibited negative symptoms of schizophrenia,” which included 

“apathy, avolition, or lacking motivation, lethargy. His grooming and 

hygiene ha[d] varied from poor to fair.” Dr. Mancusi had “also witnessed 

some periods where he ha[d] displayed delusional beliefs,” though this was 

less frequent than the negative symptoms that she had observed. Some of 

the delusions appellant had expressed “included reporting that various staff 

members or individuals are on drugs, accusing individuals of being child 

molesters.” He had described his training in detecting drug use and had “also 

talked about owning various properties in various areas.” Dr. Mancusi had 

periodically discussed appellant’s diagnosis and symptoms with him, and his 

responses had varied over time, with him sometimes acknowledging the 

diagnosis and stating he agreed with it and at other times stating he believed 

it was “more of an anxiety condition.” 

Dr. Mancusi believed that, due to appellant’s “lacking engagement in 

treatment and lacking insight into his mental disorder,” he did “continue to 

pose a significant risk for violence without sufficient support and 

supervision.” 
4

As far as Dr. Mancusi knew, appellant had not had any violent 

incidents in the past year, but he had made statements that concerned her. 

First, in September 2017, during a therapeutic community meeting, 

“appellant suddenly shouted out that [Dr. Mancusi] or the staff called the 

patients violent when in fact [the staff is] violent.” Second, in August 2015, 

appellant was standing in the hallway waiting for his medications when 

another patient made a gesture indicating that appellant was “malodorous.” 

When Dr. Mancusi intervened, appellant exclaimed, “ ‘You see what he did to 

me?’ And, ‘You shut up. You’re on drugs, and I’m going to report you.’ ” 

Dr. Mancusi had not observed any other outbursts by appellant in the years 

he had been her patient. Nor was she aware of him engaging in any physical 

violence since his return to the hospital, following his almost one-year release 

to CONREP in 2011. 

With respect to appellant’s lack of engagement in treatment, which 

included medication treatment, psychological treatment, and recreational 

activities, appellant’s engagement was “fairly poor.” Although he “does take 

his medications regularly, on a daily basis . . . , at times this does require a

prompting from nursing staff to come and get his medications.” Appellant 

had said that his medications helped him with anxiety, but had not 

acknowledged the risk for engaging in violent behavior if he stopped taking 

them. 

When asked whether she believed appellant would take his medication 

in an unsupervised environment, Dr. Mancusi testified that he had 

“expressed [an] intention to continue his medication, and I do believe that he 

would follow through on that intention.” She was concerned, however, about 

the possibility that without support and prompting, he may miss his 

medications. If appellant were to stop using his medications, there was “a 
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good chance” his schizophrenia symptoms would become more pronounced 

and “a probability that delusional beliefs may become more apparent and 

that he may act on those beliefs.” 

Regarding appellant’s engagement in psychological treatment, 

Dr. Mancusi believed that appellant had become less trusting of his 

treatment team in recent years, based in part on his delusional belief that 

staff members were using drugs. Appellant had not attended any of his core 

groups over the past year and had declined most of Dr. Mancusi’s attempts to 

meet with him individually. Required core groups that appellant was 

expected to attend included a weekly Wellness Recovery Action Plan group, 

which helps patients learn how to manage warning signs that they are 

having symptoms and triggers for their symptoms. Patients also worked on 

crisis planning and building a support system. Other groups dealt with 

symptom management, emotion management, and coping skills. Appellant 

had occasionally participated in recreational activities, such as bingo and 

fundraisers. Dr. Mancusi was concerned that if appellant were removed from 

the support and continued prompting and encouragement he received in the 

hospital, his already minimal level of engagement would decline significantly. 

Appellant’s lack of engagement in treatment was connected to 

dangerousness in that “[i]ndividuals who tend to be more consistent in their 

treatment engagement tend to be more consistent in acknowledging their 

mental illness and possibilities of warning signs and triggers coming up, 

therefore, having more of a plan to address these should they arise.” 

Appellant had often cited fatigue as an issue that got in the way of his 

attending groups. He had, however, also said that he did not believe he 

needed psychological treatment or that it was beneficial to him, which was 

related to his insight. His failure to engage in treatment gave him less 
6

opportunity to understand his illness, which could lead to a “significantly 

greater risk of not adhering to treatment, not adhering to medication.” 

Dr. Mancusi believed appellant’s insight into his history of violence was 

“poor.” He had stated that he was never violent in the past and had not 

acknowledged having any future risk for violence. Nor had he “acknowledged 

the actual behaviors he’s engaged in that are considered violent or 

threatening.” This lack of insight and failure to acknowledge his risk for 

violence increased appellant’s dangerousness because “he has not considered 

what situations he needs to be aware of, what plans . . . for himself he needs 

to have in order to prevent violence in the future.” 

When asked whether, as a result of his schizophrenia, appellant had 

serious difficulty controlling his dangerous behavior, Dr. Mancusi opined 

that, as with his dangerousness, “because of his lacking engagement in 

treatment and lacking insight into [his] mental illness, he continues to pose a 

significant risk.” 

Dr. Mancusi had last conducted an HCR-20 assessment of appellant 

the previous year, in September 2017. Based on that assessment, which 

assists in determining a patient’s overall risk for violence, she estimated that 

appellant’s risk for violence in the hospital was in the low range. His risk in 

the community without supervision, however, was in the high range due to 

his failure to show a consistent understanding of his mental illness and the 

need for treatment, as well as concerns about his willingness or ability to 

follow through on his treatment plan. “[I]f his treatment compliance declined 

in the community, he would be at risk for decompensation and possible 

violent behavior.” 

Dr. Mancusi had spoken to appellant about his prior releases to 

CONREP and about why he had not been successful in that program. His 
7

account, which was fairly consistent with what was documented in 

CONREP’s report, was that he had missed the bus to get to a group and had 

also not completely followed through on engaging in certain groups; he had 

also slept through some of his groups. Dr. Mancusi was concerned that if he 

were released, appellant would continue to demonstrate similar behaviors. 

She was particularly concerned that he might sleep through his medication 

times, which, over time, “could cause him to potentially be at risk of acting 

out . . . .” 

On cross-examination, Dr. Mancusi acknowledged that she had never 

seen appellant “place his hands on anyone,” but she had “witnessed him act 

in an intimidating manner.” Appellant did not believe he needed 

psychotherapy, but he did express a willingness to work with CONREP and 

comply with treatment in the community. Appellant also said that he did not 

feel motivated to attend therapy sessions and classes in the hospital because 

his medications made him tired and also because he had been doing the 

classes over the past 20 years and believed he had gotten what he could out of 

them. Dr. Mancusi also acknowledged that when she first started working 

with him, appellant had been participating actively in treatment and 

attending groups, during which time he was “showing a lot of insight, 

engaging in discussions about symptoms and warning signs. All sorts of 

discussions we were having. He was encouraging of other patients. And that 

participation began declining over time.” 

Dr. Mancusi had recently asked appellant, in March 2018, whether he 

believed he had a mental illness, and he responded, “ ‘I guess schizophrenia. 

It just means you have thoughts other people don’t have.’ ” Appellant also 

said that the schizophrenia comes out in paranoia and anger at his 

symptoms, and that his symptoms may get worse if he stopped taking his 
8

medications. Dr. Mancusi acknowledged that these statements were 

consistent with appellant having insight that he needs to take his 

medications to avoid decompensating. Appellant had also said that he 

needed to keep taking his medications. 

Appellant also told Dr. Mancusi in March that “ ‘[m]y anger makes me 

appear, because I’m a big man, to be a threat. I think a lot of people get away 

with a lot more than I do. The moment I start to spout out, I seem to be 

taken very seriously and they think I’m a threat. It means I have to be more 

aware of my feelings and emotions. Sometimes I think that’s why the meds 

are necessary. It keeps me in check and then no one has a gripe about me 

really.’ ” In response to this statement, Dr. Mancusi had written, “Similar to 

[appellant’s] growing acknowledgement of his mental illness, this 

acknowledgement of the impact of his presentation shows progress.’ ” 

Finally, appellant expressed willingness to work with CONREP and also said 

that if he is successful on CONREP, he wants to return to Portland, where he 

is from, and work with an outpatient clinic there that he had worked with 

previously. 

Dr. Domingo Laguitan, a staff psychiatrist at Napa State Hospital, 

testified as an expert on treatment of NGI offenders and mentally disordered 

offenders (MDOs). Dr. Laguitan had been appellant’s treating psychiatrist 

for approximately four years. He spoke with appellant regularly in the 

hallways, met with him about once a month, and had quarterly conferences 

with him. 

Dr. Laguitan opined that appellant suffers from schizophrenia. His 

symptoms included “positive symptoms,” including delusions and false 

beliefs, and “negative symptoms,” such as apathy and the inability to 

maintain his hygiene. Appellant’s delusions included his belief that hospital 
9

staff members had mental illness, used drugs, and did not want to let him out 

of the hospital. Appellant’s illness had been most severe in 2015, when 

Dr. Laguitan had made some medication changes that caused a significant 

increase in his symptoms, including greater hostility, although he never 

physically attacked anyone. Once the medications were readjusted, 

appellant’s verbally aggressive behavior abated. 

Appellant was currently taking an antipsychotic medication called 

Lurasidone and a mood stabilizer called Valproic Acid, which were most 

effective at treating his symptoms. With the Lurasidone, it would “take 

many doses of missing it generally before we see any kind of changes.” If 

appellant did not take the Valproic Acid, there would be “potentially more 

impulsivity,” with a more changeable mood. The side effects of the 

Lurasidone included sedation, weight gain, and slowed thinking. With the 

sedation effects, a patient may have trouble rousing from sleep, may need a 

lot of sleep, and will not be as alert as they would otherwise be when awake. 

Dr. Laguitan testified that appellant’s ability to engage with treatment 

professionals and group sessions was affected to some extent by being on the 

Lurasidone. Appellant had never refused to take his medications during the 

four years he had been Dr. Laguitan’s patient. 

For the past year or two, appellant’s symptoms of “believing certain 

things” had not translated into him “being imminently dangerous to others. 

We’re able to communicate with him. We have sessions that go on. And 

we’re able to convey thoughts between ourselves, his thoughts to me, and vice 

versa. [¶] So he’s able to function in the unit independently. He goes to his 

meals and takes his medications.” At that level of function, he could 

participate in his treatment plan, but Dr. Laguitan believed “he’s just not 

convinced these are the things that he needs to do.” Dr. Laguitan had not 
10

seen appellant behaving in a hostile, angry manner since appellant’s 

medications were changed in 2015. 

Dr. Laguitan opined that, as a result of his schizophrenia, if appellant 

were released into the community at the present time, he would pose a 

substantial danger of physical harm to others and that, furthermore, 

appellant had serious difficulty in controlling his dangerous behavior. 

Dr. Laguitan based these opinions on the fact that schizophrenics can 

become dangerous when the illness is not treated adequately and the fact 

that, at the time of the original offense, appellant’s “uncontrolled illness . . . 

has been associated with dangerous behavior.” Dr. Laguitan further 

explained that schizophrenics “need lifelong care in terms of medications, 

psychotherapeutic support, psychosocial support.” In addition, various 

symptoms, including delusions, can be associated with dangerousness. 

Appellant continued to deny the 1997 offense as it was described in the 

records, stating that he had “never been aggressive or dangerous in his life.”

Dr. Laguitan also referred to records from appellant’s initial admission to 

Atascadero State Hospital 20 years earlier, indicating that appellant’s 

“mental state at that time” when “his illness was not taken care of . . . was 

associated with aggression and hostility.” 

There had been periods when appellant attended his core groups more 

consistently but, at least for the last quarter, he had not attended any of 

them. He had, however, attended most of his treatment conferences. Over 

the past year, appellant had acknowledged that he has symptoms and a 

mental illness, although not necessarily schizophrenia. He also 

acknowledged his need for medications, “[n]ot just to make himself calm, but 

to control his anger.” Appellant had also said that he would “go on to follow a 
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treatment program.” All of this was an improvement from the previous year, 

but was not enough for a recommendation of release to CONREP. 

Dr. Laguitan testified that appellant believed he suffered from “manicdepressive disorder.” At a recent treatment conference, in April 2018, 

appellant had “said that he didn’t have schizophrenia; although at the same 

time, he clarified that he wasn’t saying that he does not have a mental 

illness. So the implication of that statement is that he acknowledges some 

form of mental illness; it’s just not schizophrenia.” Appellant also said he 

“ ‘will follow up with mental health.’ ” 

Dr. Laguitan noted that appellant had been returned to the hospital 

from CONREP for failing to fully engage in the CONREP program and, since 

then, he had not been working on the reasons he was returned to the 

hospital. Dr. Laguitan therefore believed that “it’s unlikely that he’ll be able 

to follow up with CONREP, even with the structured setting of CONREP 

right now, that I don’t think he will be successful.” If appellant failed to 

engage in treatment, “then the symptoms will get worse, to the point that it 

could descend or devolve into the kind of mental state when the instant 

offense happened,” as well as other past instances in which records showed 

that “violence and aggression was [sic] exhibited during the times that he 

was not taking care of his illness . . . .” Appellant’s delusions, such as when 

he “accuse[d] people of being child molesters, rapists, drug dealers,” were of 

the kind that “arouse anger and hostilities toward others.” 

When asked what appellant needed to do—besides engaging in therapy 

and gaining insight into his mental illness, symptoms, and risk for violence—

to get to the point where he would not pose a danger to others and would be 

able to control his behavior, Dr. Laguitan responded that that was “the basic 

thing . . . . [Appellant] is doing a lot of things right in the unit. Actually . . . ,
12

he interacts with, you know, others. Otherwise, aside from these instances, 

appropriately he takes his medications, he works with me, and we have 

conversations. He has not been involved in, you know, aggressive act[s] 

toward others for [an] extended period of time. So a lot of things are in place, 

and it’s just engagement that is, you know, obviously lacking.” 

Dr. Laguitan did not believe that appellant’s medication compliance 

alone would be enough to keep his mental illness under control, stating that 

there are “psychotherapeutic and psychosocial supports that are also useful 

for mental illness in general. And it’s usually a combination of all these 

treatments that provide the best results.” Moreover, unlike the structured 

environment of the hospital, where staff ensured he received his medications, 

there might not be as many safeguards in a less restrictive setting, and he 

would have to use his insight and abilities to make himself get the treatment 

he needs. Dr. Laguitan had “doubts” about whether appellant would 

continue to take his medications in an unsupervised environment. 

On cross-examination, Dr. Laguitan acknowledged that appellant had 

never refused to take his antipsychotic and mood stabilizing medications. 

During their last treatment conference approximately two months before 

trial, appellant said he would continue to take his medications if he were 

released from the hospital. When asked by appellant’s attorney whether 

appellant posed a substantial danger of physical harm to others now, while 

taking his medications, Dr. Laguitan responded that he had to “qualify, you 

know, imminently. Like right now, no, he’s not. If he’s outside in the 

community right now, he’s here in the courtroom, he’s not imminently, in my 

opinion, going to be dangerous to others. You know, the question is, through 

time—and I cannot prescribe any kind of time frame for that. You know, less 

restrictive setting, would he continue to do the things that he needs to do to 
13

keep himself well? And that’s where the concern is. It’s just that, my opinion 

that, right now, I don’t have, because he doesn’t come to groups, I don’t know 

what he knows or what he intends to do, or does he even have the ability to 

recognize his symptoms right now? It’s the question of his compliance to 

treatment that, down the line, will make him decompensate and be in a 

mental state when he becomes dangerous.” 

Finally, Dr. Laguitan acknowledged that even in 2015, when appellant 

became more verbally aggressive while Dr. Laguitan was adjusting his 

medications, he never physically attacked anyone and, once his medications 

were readjusted, his aggressive behavior abated. 

Appellant testified on his own behalf. He stated that, in addition to 

medication for physical ailments, he was taking an “anti-psychotropic,” and 

“a mood stabilizer.” Appellant believed that he required medication and that 

it kept his mental illness “in check.” He also believed that “I have a[n] anger 

problem, that sometimes has led me into trouble. And I think that it 

happened and occurred when I was not on my medication.” Appellant had 

taken his medications when he was previously on CONREP and would 

continue to take them if he were released again. If he did not take his 

medications, appellant thought he “would decompensate, and be more easily 

angered in situations, less tolerant of certain people’s attitudes, and perhaps 

carry a bit of prejudice towards certain individuals.” 

If he were released to CONREP, appellant understood that he would 

have to participate in classes, counseling, and group therapy sessions. He 

would also probably have to do some volunteer work and work on weight 

control. When he was previously on CONREP, there was a woman who “ran 

the house” he lived in who distributed the medication morning and evening. 
14

On cross-examination, appellant testified that he had been at Napa 

State Hospital for 21 years and that he did not think there was anything else 

the hospital could do for him. He had received a letter in the mail from the 

director of the hospital six years earlier stating that there was nothing more 

that could be done for him there. When asked why, if he knew he had to take 

classes and participate in therapy to be successful if he were released to 

CONREP, he was not doing those things now in the hospital, appellant 

stated, “[b]ecause I believe the core groups are redundant, to have to go over 

them again and again to do the classes that I’ve already taken.” He did not 

agree that participation in core classes had anything to do with his being 

dangerous “[b]ecause I’m not harming anybody. I’m not harming myself. I’m 

not aggressive towards anybody else.” When asked if he believed he had 

schizophrenia, appellant stated that he believed he was “manic-depressive,” 

which meant that he had long periods with lots of energy and then long 

periods where he was “in kind of a slow slump and fe[lt] depressed.” This 

belief was based on diagnoses doctors had made in the 1980s, before his 

present commitment. 

Also on cross-examination, appellant testified that he had some 

property that people “owed” him, that he had made some recordings that 

were placed in the Rock and Roll Hall of Fame, and that staff in the hospital 

used drugs. Appellant also believed Drs. Mancusi and Laguitan expected 

him to pay them to get out of the hospital. Under additional questioning by 

the court, appellant testified that he believed Dr. Mancusi used drugs, 

specifically hallucinogens and heroin, and that Dr. Laguitan used drugs such 

as heroin and alcohol. He did not believe this was a delusion. Appellant also 

believed that hospital staff gave drugs to patients. 
15

When the court asked about the offense for which he was originally 

committed, appellant testified that he had walked past a van with tools lying 

on the ground. He picked up a handkerchief with a screwdriver inside of it. 

He threw the screwdriver to the side and a man approached him who seemed 

hostile and angry. Appellant could see why the man was angry since 

appellant had just taken his screwdriver. Appellant had thrown the 

screwdriver to “defuse the situation” because he thought the man had been 

waiting for him and was going to use the screwdriver on him. Appellant also 

said he threw the screwdriver “[j]ust to bother” the man because he saw that 

the man “was sitting there with a screwdriver” and he did not like the man’s 

attitude. After appellant walked past the man, a police officer came and 

reached into appellant’s pants and groped his buttocks. Appellant “screamed 

rape.” He believed the police falsely claimed he had been threatening the 

man with the screwdriver because they wanted “[t]o get a longhair off the 

street” and to cover up the officer’s inappropriate search. Appellant was not 

on any antipsychotic or mood stabilizing medications at the time of the 

incident with the screwdriver. 

At the conclusion of trial, the court stated that “some time after the 

CONREP of 2011, [appellant] gave up. I understand he’s been there 21 

years. I understand, from a human standpoint, I can understand why he 

doesn’t go to some of these sessions. Been through them several times. They 

just, and they haven’t taken on him. He goes and goes and goes, and nothing 

happens. He doesn’t move out. And he says, to heck with them. I’ve been 

through it. I’m not going to participate anymore. I’m not getting anything 

out of it. And so I think he came to that realization sometime after the 

second CONREP, the years in CONREP where they pulled him back into the 

institution. 
16

“I believe his lack of insight is significant. He still believes what 

happened back then, the crime itself, I believe that’s delusional. If he had 

somehow come to grips with that, that that was a delusion as opposed to 

reality, that might be a step toward his getting out. But he hasn’t come to 

that. In addition, he believes the D.A. has conspired with the cops to cover 

up what actually happened. . . . [I]n my experience, that’s a delusion. And 

that hasn’t been swept out of his mind. He’s sure all of that happened.”

The court continued: “His final argument, essentially I believe he’s 

medication compliant, and I think he would take his medication when he’s 

outside. . . . But I just don’t see how he’s come to grips with what’s going on. 

[¶] And when he believes he’s wronged somehow, in a delusional state, I 

think that I believe he’s capable of going off. I’m not sure what could be 

accomplished since both the doctors and he are at loggerheads with regard to 

the continued participation. I don’t know if he’ll do it with any degree of zeal. 

But they’re going to require it. 

“I don’t feel comfortable at all that he has learned anything about his 

actual situation while he’s been in the institution. For that reason, based on 

the evidence I’ve heard, the court finds the People’s Extension Petition true 

beyond a reasonable doubt, and does find that he’s a danger. Recommittal is 

ordered. He continues to represent a substantial danger of physical harm to 

others. His commitment is extended by two years.” 

DISCUSSION

Sufficiency of the Evidence to Support 

the Commitment Extension Order

Appellant contends substantial evidence does not support the trial 

court’s finding that, due to his schizophrenia, he represents a substantial 

danger of physical harm to others and has serious difficulty controlling his 

potentially dangerous behavior. 
17

Pursuant to section 1026.5, subdivision (a)(1), an NGI defendant 

committed to a state hospital after being found not guilty of an offense by 

reason of insanity pursuant to section 1026 “may not be kept in actual 

custody longer than the maximum term of commitment.” (§ 1026.5, subd. 

(a)(1).) However, under section 1026.5, subdivision (b)(1), an NGI defendant 

may be committed beyond the term prescribed by subdivision (a) if he or she 

“has been committed under Section 1026 for a felony and,” after a trial, the

trier of fact finds that he or she “by reason of mental disease, defect, or 

disorder represents a substantial danger of physical harm to others.” 

(§ 1026.5, subd. (b)(1) & (b)(3); see People v. Zapisek (2007) 147 Cal.App.4th 

1151, 1159 (Zapisek).) Proof of dangerousness also requires proof that the 

NGI defendant has “at the very least, serious difficulty controlling his 

potentially dangerous behavior.” (Zapisek, at p. 1165.) 

Under this procedure, the NGI defendant is entitled to a jury trial and 

representation by counsel, to discovery under criminal rules, to appointment 

of psychologists or psychiatrists, and to “the rights guaranteed under the 

federal and State Constitutions for criminal proceedings,” including the right 

to a jury trial. (§ 1026.5, subd. (b)(2)-(7).) If the trier of fact finds that the 

NGI defendant does represent a substantial danger of physical harm to 

others, he or she may be recommitted “for an additional period of two years 

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

(b)(8).) Further extensions can be sought at two-year intervals thereafter. 

The NGI defendant also may assert as an affirmative defense that he 

can control his dangerousness through taking medication in an unsupervised 

environment. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 1600, 1602 

(Bolden) [“section 1026.5 can reasonably be construed to require [an NGI 

defendant] who has been absolved of criminal responsibility for a felony 
18

because of his mental illness and who has already demonstrated his 

dangerousness to persuade the trier of fact, by a preponderance of the 

evidence, that his medication is effective in controlling his behavior and he 

will, in a completely unsupervised environment, take his medication without 

fail”]; CALCRIM No. 3453.)3 

“ ‘ “ ‘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. [Citations.]’ [Citation.]” (Zapisek, supra, 

147 Cal.App.4th at p. 1165.) However, “expert medical opinion evidence that 

is based upon a ‘ “guess, surmise or conjecture, rather than relevant, 

3 The elements of the medication defense are set forth in CALCRIM No. 

3453, which reads in relevant part as follows: “Control of a medical condition 

through medication is a defense to a petition to extend commitment. To 

establish this defense, [the NGI defendant] must prove by a preponderance of 

the evidence that:

“1. [He] no longer poses a substantial danger of physical harm to other 

because [he] is now taking medicine that controls [his] medical condition;

“AND

“2. [He] will continue to take that medicine in an unsupervised 

environment.” (CALCRIM No. 3453.) 
19

probative facts, cannot constitute substantial evidence.” ’ [Citations.]” (In re 

Anthony C. (2006) 138 Cal.App.4th 1493, 1504 (Anthony C.).) 

In the present case, appellant argues that the evidence adduced at trial 

“did not support the conclusion that there was a substantial danger that 

[appellant’s] schizophrenia would cause him to act in a physically violent, or 

even physically aggressive manner,” and that, “[a]t most, the evidence 

indicated a substantial danger that [appellant’s] schizophrenia might cause 

him to become verbally aggressive.” Appellant also argues that the absence 

of evidence that his minor acts of verbal aggression ever escalated into 

physical violence demonstrated that appellant “could control his potentially 

dangerous behavior.” He notes, moreover, that the court’s conclusions were 

further undermined by its finding that appellant was “medication compliant” 

and that “he would take his medication when he’s outside.” (See CALCRIM 

No. 3453(b)(2).) 

We agree with appellant that the evidence presented at his 

recommitment trial does not support the commitment extension. In 

particular, we conclude the experts’ opinions that appellant represents a 

substantial danger of physical harm to others and has serious difficulty 

controlling his potentially dangerous behavior was based on vague 

generalizations and conjecture, rather than on evidence in the record. (See 

§ 1026.5, subd. (b)(1); Zapisek, supra, 147 Cal.App.4th at pp. 1159, 1165; see 

also Anthony C., supra, 138 Cal.App.4th at pp. 1508–1509 [reversing juvenile 

sex offender’s commitment extension, concluding that “[w]hile [the juvenile] 

may have serious difficulty controlling his sexually deviant behavior, the 
20

evidence at trial fails to support such a finding in the absence of a good 

measure of speculation and conjecture”].)4 

First, the only evidence presented at trial of appellant’s aggression 

during his 20-year commitment was an incident in September 2017, in which 

appellant shouted during a therapeutic community meeting that “staff called 

patients violent when in fact staff was violent”; an incident in August 2015, 

in which Dr. Mancusi intervened after another patient indicated that 

appellant was malodorous and appellant shouted at Dr. Mancusi to shut up, 

that she was on drugs, and that he was going to report her; increased verbal 

hostility in 2015 after Dr. Laguitan had made some medication changes that 

caused a significant increase in symptoms, which abated once the 

medications were readjusted; and unspecified records referred to by 

Dr. Laguitan from the time of appellant’s original admission to Atascadero 

State Hospital, indicating that during a time when “his illness was not taken 

care of,” it “was associated with aggression and hostility.” The doctors also 

referred to the hostile, aggressive nature of the original offense, when 

appellant picked up a screwdriver and threatened a man with it, at a time 

when he was not taking any medications. 

All of this evidence, however, merely shows that appellant had on 

relatively rare occasions engaged in verbal outbursts while under these 

doctors’ care, primarily during a limited period when his medications were 

being adjusted, and that the incident that led to his initial commitment, 

while extremely aggressive, did not in fact result in physical violence and 

4 It is curious that the public defender in this case did not seek the 

assistance of a psychologist or psychiatrist as an expert witness, considering 

that an NGI defendant in a commitment extension trial is entitled to the 

same such assistance as a defendant in a criminal trial. (See § 1026.5, subd. 

(b)(7); cf. People v. Mitchell (2005) 127 Cal.App.4th 936, 941.) 
21

took place when he was unmedicated. Thus, even when he was unmedicated, 

prior to his commitment, and during the period in which Dr. Laguitan was 

attempting to adjust his medications, the fact that appellant’s hostile 

behavior never escalated into actual physical violence demonstrates that he 

could in fact control his dangerous behavior. Moreover, during his 2011 

CONREP release of almost a year, the record reflects that he did not exhibit 

any hostile or aggressive behavior whatsoever. 

Second, neither doctor believed appellant posed a danger while in Napa 

State Hospital, but instead testified vaguely that his failure to engage in his 

treatment groups and lack of insight into his illness and symptoms could 

perhaps lead to dangerousness upon his release from the hospital if he did 

not continue with treatment, particularly if he stopped taking his 

antipsychotic medications. Crucially, however, the court expressly found that 

appellant would continue to take his medications if he were released from the 

hospital. He had expressed the intent to do so and had acknowledged their 

positive impact on his symptoms. Notably, the experts testified that 

appellant had never refused to take his medications in the hospital and had 

continued to take them during his CONREP releases. 

Furthermore, with respect to his failure to engage in treatment groups, 

Dr. Laguitan testified that appellant’s antipsychotic medication caused 

significant sedation and negatively affected appellant’s ability to engage with 

treatment professionals and group sessions. Appellant did not agree that 

participation in core classes had anything to do with his being dangerous 

“[b]ecause I’m not harming anybody. I’m not harming myself. I’m not 

aggressive towards anybody else,” and he also believed the classes were 

redundant, “to have to go over them again and again to do the classes that 

[he had] already taken.” Appellant had, however, expressed both the desire 
22

to participate in CONREP and the intent to attend all of the required groups 

and activities of that program. 

The doctors’ belief that appellant lacked insight into his mental illness 

and symptoms was in large part based on his failure to engage in core 

treatment groups, his failure to understand the nature of the original offense, 

and his continuing delusions. They believed this lack of insight would 

increase his risk of dangerousness if he were released because it could lead to 

a failure to recognize symptoms or take his necessary medications. 

First, linking appellant’s lack of insight to dangerousness strikes us as 

highly speculative in the circumstances of this case, especially considering 

the court’s finding that appellant would continue to take his medications if 

released and the lack of testimony at trial that appellant had been physically 

violent while hospitalized or while out of the hospital on CONREP for nearly 

a year in 2011, despite both his ongoing delusions and a time when there 

were issues with the efficacy of his medications. In fact, Dr. Laguitan 

testified that for the previous year or two, appellant’s symptoms of “believing 

certain things,” i.e., his delusions, had not translated into him “being 

imminently dangerous to others. We’re able to communicate with him. We 

have sessions that go on. And we’re able to convey thoughts between 

ourselves, his thoughts to me, and vice versa. [¶] So he’s able to function in 

the unit independently. He goes to his meals and takes his medications.” 

(Compare, e.g., People v. Sudar (2007) 158 Cal.App.4th 655, 663–664 [NGI 

defendant suffered from same delusion that was in effect when he committed 

arson offense that led to his institutionalization “and consistently maintained 

that he would do the same thing in the same circumstances”]; Zapisek, supra, 

147 Cal.App.4th at pp. 1166–1167 [NGI defendant had repeatedly acted on 

his delusions and paranoia in inappropriate ways “so as to impose a danger to 
23

others,” “such as taping alarm sensors needed for medical emergencies 

because he believed he was under surveillance, taking steps to escape from 

the hospital for fear that workmen would return to harm him, or aggressively 

insisting on money he believed he was owed”]; People v. Bowers (2006) 145 

Cal.App.4th 870, 879 [NGI defendant “continued to experience auditory 

hallucinations which commanded her to hurt herself or others,” had recently 

attempted suicide, had poor impulse and anger control, and had a history of 

assaultive behavior toward others].) 

Second, and more importantly, the two experts’ opinions that appellant 

lacked insight is directly contradicted by the record, which contains 

substantial evidence that appellant possesses considerable insight into his 

mental illness, his symptoms, and his need for medications. For example, 

several months before trial, appellant responded to Dr. Mancusi’s question 

regarding whether he believed he had a mental illness with the following: “ ‘I 

guess schizophrenia. It just means you have thoughts other people don’t 

have.’ ” Appellant also said that the schizophrenia comes out in paranoia and 

anger at his symptoms, and that his symptoms may get worse if he stopped 

taking his medications. Dr. Mancusi acknowledged that these statements 

were consistent with appellant having insight that he needs to take his 

medications to avoid decompensating. Appellant had also told Dr. Mancusi,

“ ‘My anger makes me appear, because I’m a big man, to be a threat. I think 

a lot of people get away with a lot more than I do. The moment I start to 

spout out, I seem to be taken very seriously and they think I’m a threat. It 

means I have to be more aware of my feelings and emotions. Sometimes I 

think that’s why the meds are necessary. It keeps me in check and then no 

one has a gripe about me really.’ ” Dr. Mancusi had noted at the time of this 

statement that, “ ‘[s]imilar to [appellant’s] growing acknowledgement of his 
24

mental illness, this acknowledgement of the impact of his presentation shows 

progress.’ ” 

Dr. Laguitan also testified about times appellant had shown insight, 

including appellant’s acknowledgement, over the previous year, that he had a 

mental illness and accompanying symptoms, “although not necessarily 

schizophrenia.” He had also acknowledged his need for medications, both “to 

make himself calm” and “to control his anger.” According to Dr. Laguitan, 

appellant believed he suffered from “manic-depressive disorder,” rather than 

schizophrenia. But appellant also “clarified that he wasn’t saying that he 

does not have a mental illness. So the implication of that statement is that 

he acknowledges some form of mental illness; it’s just not schizophrenia.” 

Appellant had also said he would “ ‘follow up with mental health’ ” after his 

release. 

Appellant himself testified at trial that he required medication, which 

kept his mental illness “in check.” He also testified that “I have a[n] anger 

problem, that sometimes has led me into trouble. And I think that it 

happened and occurred when I was not on my medication.” If he did not take 

his medications, appellant believed he “would decompensate, and be more 

easily angered in situations, less tolerant of certain people’s attitudes, and 

perhaps carry a bit of prejudice towards certain individuals.”

This evidence shows that appellant’s insight, while not exalted, is 

substantial and reflects an understanding that he suffers from a mental 

illness, that his symptoms include excessive anger, that his size can make 

him seem threatening, and that he must continue to take his medications to 

avoid decompensating and keep his mental illness under control. (Compare, 

e.g., People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370 [substantial 

evidence supported court’s order extending NGI defendant’s commitment 
25

where it was undisputed that defendant had “ ‘absolutely no insight into his 

behaviors that lead to . . . violence’ ”].) 

Finally, even if the evidence supported a finding that appellant would 

represent a substantial danger of physical harm were he to discontinue his 

medications upon his release, the court specifically found, based on the 

evidence presented, that appellant would continue to take his medications 

and, as already discussed, the evidence demonstrates that his medications 

are effective in controlling his mental illness. (See Bolden, supra, 217 

Cal.App.3d at pp. 1600, 1602.)5 Thus, the evidence shows that appellant 

established the medication defense discussed in Bolden and set forth in 

CALCRIM No. 3453, proving by a preponderance of the evidence both that he 

“no longer poses a substantial danger of physical harm to others because he is 

now taking medicine that controls his medical condition” and that he “will 

continue to take that medication in an unsupervised environment.” 

(CALCRIM No. 3453; see Bolden, at pp. 1600, 1602.) 

It is easy to suspect, and many probably do, that a person found not 

guilty of a serious criminal offense by reason of insanity and committed to a 

state hospital under section 1026 likely presents “a substantial danger of 

physical harm to others.” That assumption cannot, however, be indulged in a 

proceeding such as this, because it is inimical to the due process standards 

governing the civil commitment of mentally ill persons. “The [United States 

Supreme Court] has repeatedly ‘recognized that civil commitment for any 

5 In its analysis of the medication defense, after finding that appellant 

would continue to take his medications upon release, the court stated, “But I 

just don’t see how he’s come to grips with what’s going on. [¶] And when he 

believes he’s wronged somehow, in a delusional state, I think that I believe 

he’s capable of going off.” Like the doctors’ testimony, this reason for finding 

appellant dangerous, even when medicated, does not find support in the 

record. (See Anthony C., supra, 138 Cal.App.4th at p. 1504.) 
26

purpose constitutes a significant deprivation of liberty that requires due 

process protection.’ [Citation.] ‘Moreover, it is indisputable that involuntary 

commitment to a [psychiatric] hospital after a finding of probable 

dangerousness to self or others can engender adverse social consequences to 

the individual. Whether we label this phenomena “stigma” or choose to call it 

something else is less important than that we recognize that it can occur and 

that it can have a very significant impact on the individual.’ [Citation.].” (In 

re Howard N. (2005) 35 Cal.4th 117, 127–128, quoting Addington v. Texas

(1979) 441 U.S. 418, 425–426.) 

Given the importance of the liberty interest at stake, a prosecuting 

attorney who seeks to extend a civil commitment under subdivision (b) of 

section 1026.5 must establish not just that the defendant suffers “a mental 

disease, defect, or disorder,” but as well a factual nexus between the 

defendant’s mental deficiency and his or her alleged dangerousness. As 

earlier noted, in Zapisek, supra, 147 Cal.App.4th 1151, a unanimous panel of 

this court adopted the view expressed by the Third and Fifth Appellate 

Districts in People v. Galindo (2006) 142 Cal.App.4th 531 and People v. 

Bowers, supra, 145 Cal.App.4th 870 that section 1026.5 subdivision (b)(1) 

“should be interpreted as requiring proof that a person under commitment 

has serious difficulty in controlling dangerous behavior . . . .” (Zapisek, at 

p. 1163.) Moreover, as we have emphasized, section 1026.5 makes clear that 

the requisite danger must be “of physical harm to others.” (§ 1026.5, subd. 

(b)(1).) 

The testimony of the expert witnesses in this case does not show either 

that appellant ever physically harmed another while confined in the state 

hospital or that he has difficulty controlling “dangerous behavior” that may 

result in such harm to others, and the court’s finding of dangerousness is 
27

therefore not supported by substantial evidence. (Zapisek, supra, 147 

Cal.App.4th at p. 1163.)6 

For all of the reasons discussed, the trial court’s order extending 

appellant’s civil commitment for two years must be reversed.7 

DISPOSITION

The order extending appellant’s commitment is reversed. 

6 In Conservatorship of Roulet (1979) 23 Cal.3d 219, 235, our high court 

cited an empirical study noting that “ ‘[i]nformal conversations with judges 

and attorneys suggest that they defer to psychiatric opinion because they feel 

they lack the requisite expertise and want to obtain help for those in need.’ ” 

(Quoting Hiday, Reformed Commitment Procedures: An Empirical Study in 

the Courtroom (1977) 11 Law & Society Rev. 651, 665.) Moreover, while in 

this case the competence of appellant’s counsel is undisputed, it is worth also 

noting that the inadequacy of counsel for mentally disordered persons in civil 

commitment proceedings is supported by a surprisingly large number of other 

studies, many of which are discussed in Morris, Let’s Do the Time Warp 

Again: Assessing the Competence of Counsel in Mental Health 

Conservatorship Proceedings (2009) 46 San Diego L.Rev. 283, 286–301. The 

issue is also addressed in the leading five volume treatise on disability law 

(Perlin, Mental Disability Law: Civil and Criminal (2d ed. 1998) § 3B-11, 

pp. 362–363), which asserts that the quality of counsel is “the single most 

important factor in the disposition of involuntary civil commitment 

procedures.” 

7 In light of our conclusion that substantial evidence does not support 

the commitment extension, we need not address the other issue appellant has 

raised on appeal: whether the extension order must be reversed because the 

record does not affirmatively establish that he knowingly, intelligently, and 

unconditionally waived his right to a jury trial. 
28

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Miller, J.

People v. Kerbs (A155126)
29

Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Richard P. Kalustian

Attorneys for Appellant: Under Appointment by the Court of Appeal

Jonathan Soglin

Jeremy Price

Nathaniel P. Miller

Attorneys for Respondent: Attorney General of California

Xavier Becerra

Jeffrey M. Laurence

Senior Assistant Attorney General

Eric D. Share

Supervising Deputy Attorney General

Elizabeth Hereford

Deputy Attorney General

Alisha M. Carlile

Deputy Attorney General