1

F iled 11 / 30 /22 P. v. Vanhorn CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. ERIC JOHN VANHORN, Defendant and Appellant. A164107

(Lake County Super. Ct. No. CR5401)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the unpublished opinion filed on November 1, 2022, be modified as follows: On page 9 and continuing onto page 10 , the following paragraph is
deleted: In deciding whether to grant a petition for conditional release, the trial

court mus t consider whether the director of the state hospital or other treatment facility advises that the petitioner “ would no longer be a danger to the health and safety of others, including themselves . . . while under2

supervision and treatment in the community , and will benefit from that

status ” (§ 1603, subd. (a)(1)), and whether the “ community program
director

. . . advises the court that the [petitioner] will benefit from that status, and identifies an appropriate program of supervision and treatment. ” ( Id. , subd. (a)(2).) The court must also consider “ the circumstances and nature of the criminal offense leading to commitment” and the petitioner’s

“ prior criminal history. ” (§ 1604, subd. (c).) On page 10, the paragraph beginning with the sentence “Van Horn cannot satisfy this high burden” and ending with “Each factor weighed against VanHorn” is replaced with the following paragraph : VanHorn cannot satisfy this high burden. When ruling on the petition,
the trial court considered Dr. Morga n’s opinion regarding whether VanHorn would be a danger under conditional release ; the opinion of the hospital ’s
conditional release liaison that VanHorn was not ready for conditional release because he continued “to experience active psychiatric symptoms including religious and conspiratorial delusional thinking, being internally preoccupied, and presenting with paranoia” ; and VanHorn’s criminal history
and the circumstances and nature of the commitment offenses. These factors weighed against VanHorn.
Th ere is no change in the judgment. Appellant’ s petition for rehearing is denied.

Dated: _______________

____ Fujisaki

__ ____________, Acting P. J.1

Filed 11/1/22 P. v. VanHorn CA1/3 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE , Plaintiff and Respondent,

v. ERIC JOHN VANHORN , Defendant and Appellant. A1 6 4107

( Lake County Super. Ct. No. CR5401 )

Eric John VanHorn stabbed his brother in the chest

. The trial court found VanHorn not guilty by reason of insanity and committed him to a state hospital with a maximum life term

. Since his commitment, VanHorn has
been placed into a conditional outpatient release program (conditional release or conditional release program ) several times, but each time he was readmitted to the hospital due to a deterioration in his level of functioning
or rules violations

. In 2021, the trial court denied VanHorn’s petition for co nditional
releas e

. I t determined he failed to prove he does not pose “a danger to the health and safety of others, due to mental defect, disease, or disorder , i f2

under supervision and treatment in the community

. ” ( Pen. Code, § 1026.2, subd. (e) , all statutory references are to this code

. ) T he court did not abuse
its discretion in so concluding , and we affirm. BACKGROUND Between 1995 and 2001, VanHorn was arrested eight times for
substance abuse

- re lated crimes

. He began experiencing auditory hallucinations in his early 20s ; he was prescribed antipsychotic medication
but did not take it. On a February 2002 evening , VanHorn , then 2 9 years old, consumed 12 beers and ingested methamphetamine. The following morning

— while suffering from a delusion that he was kidnapped as a baby
and that his brother was a werewolf

— VanHorn stabbed his brother in the chest, puncturing his lung. The prosecution charged VanHorn with attempted first degree murder and assault with a deadly weapon

. The trial court found VanHorn not guilty by reason of insanity and committed him to
a state hospital with a maximum life term

. VanHorn has spent almost two decades in a state hospital

— the exception being t ime spent i n a conditional rele ase program , during which
he was supervised and treated in the community. Since 2010, VanHorn
has been o n conditional release eight times. In seven instances , he was readmitted to the hospital after he “ psychiatrically decompensated

. ” In 2020 ,

a three

- year period of conditional release was revoked due to his use of
alcohol and methamphetamine ; once again , he returned to the hospital

. I.
In June 2021 , VanHorn

— then 48 years old

— petition ed for
conditional release. Pursuant to a court order, his p sychologist , Camill e Morgan , PsyD., prepared a repor t opining he should not be placed i n3

a conditional release program because “ he would be a danger to the health and safety of others, due to mental defect, disease, or disorder, even while under supervision and treatment in the community. ” According to the report, VanHorn s uffers from schizophrenia . He has also been diagnosed with moderate am phetamine

- type stimulant use disorder
and severe alcohol use disorder , both of which are in r emission in a controlled
environment

. VanHorn has an extensive medication regimen , but he has

e xpressed reluctance to take certain prescribed medication. While on medication, VanHorn experience s “ delusions which are entrenched and identical to those” underlying the commitment offense s

— e.g., “ that he was
stolen

. . . a s an infant and that he may be royalty.” He has a “psychotic preoccupation with religion and the occult , ” drawing “ symbols on wall s and

prop erty in an effort to protect himself from ‘negative energy.’ ” In an interview with Dr. Morgan, VanHorn questioned his diagnosis, expressed
doubt regarding the need for

— and effectiveness of

— his medication, and persisted in the delusion that he was kidnapped as an infant. The report catalogued VanHorn’s eight prior conditional releases beginning in 2010, a s well as the circumstances result ing in his read mission to the state hospital

. In seven instances, VanHorn was readmitted for “ps ychiatric decompensation

. ” 1 In 2017, he was placed in a conditional
release program for the eighth time

. In 2019

— and while on conditional
releas e

— he abused his antianxiety and antipsychotic medication s , and he twice tested positive for methamphetamine

. In February 2020, VanHorn submitted a cold urine sample that teste d positive for adulteration and

1 For example, while on conditional release in 2016, VanHorn set fire to cardboard and other materials in a barbeque. VanHorn initially claimed he was cleaning the barbeque, but he later admitted he was conducting a “ ‘spiritual cleansing.’ ”4

methamphetamine. When asked abou t it , VanHorn initially claimed naiveté

. Eventually, however, he admitted trying “ to ‘ cheat ’ the test by storing clean urine in his refrigerator because he planned to drink alcohol.” According to the report, VanHorn’s response

— which reflect ed

“ antisocial and criminal thinking of trying to ‘ game the system ’ or beat the
odds ”

— “ places him at risk for de stabilization and ultimately dangerous
behavior. It also impairs [the program’ s ] ability to successfully supervise him and monitor his functioning in the community, as so much of [the program ’s] supervision relies on an individual ’ s transparency with the treatment team, not to mention one’s practice of sound judgment. ” VanHorn’s meth

amphetamine use , the report concluded, placed him at risk of psychiatric
de stabilization and increased his risk of violence “substantially beyond that which [the program] c an safely monitor in the community.” As the report explained, VanHorn’s mental state was “ extremely fragile ,” and he ha d

“ distortions, religiosity, and bizarre ideation that approach delusional
ideation. Historically, he has psychiatrically dec ompensated quickly and severely in the community under [conditional release]

. Engagement in any substance use place [d] him at considerable risk for psychiatric decompensation given the delicacy of his psychiatric stability ,” which in turn place d him at risk of “ dangerous behavior. ” Dr. Morgan opined that while VanHorn did not meet the criteria for an involuntary medication order based on dangerousness , he would benefit from the structure provided in the state h ospital

. The report noted he had

“ engaged in several rule

- breaking incidents and one aggressive act ” since
March 2020. The most recent incident occurred in January 2021 when he left “the dining room and forcefully and aggressively kicked the

. . . doors leading outside of the building. ”5

Dr. Morgan evaluated VanHorn’s risk of violence . She noted he

c ontinue d to exhibit symptoms of s chizophrenia, “ including paranoid and grandiose delusions which are

. . . similar, to those he exhibited around the time of his instant offense ,” and “ psychot ic preoccupation with the occult .”
She also opined VanHorn possesse d “ poor insight ” into “ his current psychiatric symptoms , and

. . . the nature of his psychiatric diagnosis ,” as he
b eliev e d his “ symptoms were drug

- induced and not due to a chronic psychotic
illness. ” According to Dr. Morgan, he also possesse d “ incomplete insight into his need for ongoing substance recovery treatment ” because he ha d not meaningfully participate d in treatment since his rehospitalization in 2020

. Finally, she opined VanHorn might be unable to maintain stability in a “more stressful community environment” because h is medication regimen had not
been stabilized and he refused to take c lozapine, a suggested medication

. Finally, t he report noted the hospital’s conditional release liaison
determine d VanHorn was “ NOT

. . . R eady” for conditional release because he continued “to experience active psychiatric symptoms including religious and conspiratorial delusional thinking, being internally preoccupied, and

prese nting with paranoia.”
II.
VanHorn testified at the hearing on his petition for conditional release

. He acknowledge d his schizophrenia diagnosis but believe d the stabbing w as the result of “drug

- induced psychosis.” VanHorn has a fixed false belief he
was stolen at birth , and he has experience d mania, depression, and psychosis.
Van H orn was using drugs and alcohol

— and not taking his medication

— when he stabbed his brother. He expressed regret for what he had done to his brother

.6

VanHorn ha s been confined in the state hospital for approximately 20

years , except for a “few times ” when he was i n a conditional release program. Each time, he was readmitted because h e experienced delusions. On his most

recent conditional release , VanHorn used methamphetamine and drank
alcohol

. He was ingesting “ caffeine substances ” bec ause he craved energy , and he claimed things “got out of hand ”

— he took methamphetamine
and drank alcohol

. But VanHorn acknowledged h e planned to use methamphetamine ; he stored clean urine because he “ wanted to be able
to continue to stay out in the community a fter just one usage

. ” VanHorn
did not think he did anything “ unsafe , ” but he acknowledged using methamphetamine i s illegal and violate d the terms of his conditional release

. Until he used methamphetamine, he had been sober for 18 years. Back at the state hospital, VanHorn regained sobriety but did not engage with substance abuse programming

. A fter attending 20 hours of
substance abuse programming e ach week for 20 years, VanHorn felt he had learned everything the hospital had to offer. He decided to take a “vacation”
from the programming and do some “inner reflecting ” instead , even though
he knew his participation was required to attain conditional release

. He planned to resume programming eventually. In the meantime, VanHorn planned t o use “coping strategies” to stay sober. He participate s in group therapy for his mental illness , and he attends weekly sessions with a psychologist

. VanHorn takes his prescribed medication because he needs it to manage his mental illness. He has not had violent or aggressive thoughts
since he stabbed his brother

— he considers himself a “reserved and quiet” person who tries to be “appropriate and peaceful.” At the hospital, h e keeps to himself and stays in h is room, in part because of a perception that hospital7

staff “are the police.” He d ecorated his room with drawings of crosses to

“ keep the holy spirit present in [his] lif e.” VanHorn kicked the dining room
doors because he “was hearing ” imaginary thing s , felt threatened , and “ was trying to get out of the chow hall.” When he is in a “good environment ”

— one free of “rough talk” and a “prison mentality”

— he feel s “ no need to try to

escape. ” If released, VanHorn would live with his 80

- year
- old mother and seek mental health treatment from a county agency

. He was willing to take prescribed medication if it d id not adversely affect him

. VanHorn had

a negative response to at least one antipsychotic medication , and he had
declined to take c lozapine because he fear ed it would weaken his immune system. VanHorn acknowledged alcohol interferes with his medication, but he hoped that when his “ mental illness [ was ] under control,” he could have a n alcoholic drink at dinner

. He , however, had no immediate plans to consume alcohol and knew it was unlikely he could have just one drink. At the conclusion of the hearing, the trial court denied the petition.
The court found VanHorn failed to establish , “ by a preponderance of the
evidence , that he is no longer a danger to the health and safety of others if supervised and treated in the community .” It acknowledged the only

“ significant incident of violence ” occurred in 2002 bu t reasoned VanHorn
committed th e incident while under the influence of drugs and alcohol and while experiencing delusions directed at h is family

. VanHorn , the court
observed , continue d to exhibit “active ” and “expanded” symptoms of schizophrenia “ similar to the ones he was having” when he stabbed his
brother. The court opined VanHorn had “poor insight” into his symptoms

— illustrated in part by his refusal to take certain prescribed medication

— and limited insight into his substance abuse disorder

— evidenced by his8

premeditated decision to use methamphetamine and to discontinue substance abuse programming upon his readmission to the state hospital. Next, t he trial court noted VanHorn had been released into the community

— and returned to the state hospital

— eight t imes

. This evidence, the court found, supported an inference he did not cop e well in a community environment. On the seven occasions w hen he returned to the hospital after decompensating , he regained stability by “getting back into his programs, back on his regimen, conducting his therapy ” and getting his “symptoms into remission.” When VanHorn was readmitted in 2020, he did not engage with substance abuse programming. In the court’s view, his failure to do so created a risk that , “out in the community facing

. . . stressors and anxiety and paranoia

- invoking situations that come with dealing with
others ,” he would present a danger to others. The court suggested that if VanHorn “gets back into the programming and active treatment

. . . he will again be eligible, in the eyes of the department,” for conditional release.
DISCUSSION A defendant found not guilty of a crime by reason of insanity may be committed to the Department of State Hospitals. (§ 1026, subd. (a).) “ The purpose of commitment following an insanity acquittal

. . . is to treat the
individual ’s mental illness and protect him and society from his potential dangerousness.” ( Jones v. United States (1983) 463 U.S. 354, 368 .) As

r elevant here, a defendant found not guilty by reason of insanity may petition
the trial court to be released from a state hospital before the expiration of his
maximum term of commitment “ upon the grou nd that sanity has been
restored , ” i.e. , that he will “ not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community .” (§ 1026.2 , subd s

. (a) , (e) ; People v. Cross (2005)9

127 Cal.App.4th 63, 72 [listing methods by which a defendant may be
released from commitment ] .)
Th is process has two steps

. At the first step, the trial court holds a hearing at which the petitioner has the burden to prove by a preponderance of the evidence that, as relevant here, he is “ ‘not dangerous.’ ” ( People v. McDonough (2011) 196 Cal.App.4th 1472, 1491 .) If the court determines the petitioner will not be a danger to the health and safety of others , he is placed

on conditional release , “which may consist of outpatient supervision and

treatment

. . . . ‘ “Outpatient status is not a privilege given the [ petitioner ] to finish out his sentence in a less restricted setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [ petitioner ] and cause no undue hazard to the community.” [Citation.]’ [Citation.] While in the outpatient program, the [petitioner] may be returned to the state facility after a hearing if determined dangerous to others.” ( People v. Dobson (2008) 161 Cal.App.4th 1422, 1433.) 2 In deciding whether to grant a petition for conditional release, the trial

court must consider whether the director of the state hospital or other treatment facility advises th at the petitioner “ would no longer be a danger to the health and safety of others, including themselves

. . . while under supervision and treatment in the community, and will benefit from that

statu s ” (§ 1603, subd. (a)(1) ) , and whether the “community program
director

. . . advises the court that the [petitioner] will benefit from that status, and identifies an appropriate pr ogram of supervision and treatment.”

2 The second step

— the restoration of sanity trial

— is reached only if the petitioner has been approved for, an d successfully completed , “one year of outpatient treatment (or less if the community program director recommends release sooner).” ( People v. Endsley (2018) 28 Cal.App.5th 93, 101.)10

( Id. , subd. (a)(2).) The court must also consider “the circumstances and nature of the criminal offense leading to commitment” and the petitioner ’s “prior criminal history.” (§ 1604, subd. (c).) We review the trial court’s ruling on a petition for conditional relea se for abuse of discretion. That phrase “ ‘ implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. [Citation.]

“ When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its ju dgment for that of the trial judge. [Citation s .] ” [Citation.] Discretion is abused only if the court exceeds all bounds of

reason [] , all of the circumstances being considered. ’ ” ( People v. Diggs (2022)
80 Cal.App.5th 702, 709 .) To establish an abuse of discretion, VanHorn must show the evidence compelled a finding in his favor as a matter of law , i.e., that his “ evidence was uncontradicted and unimpeached and of such character and weight that there is no room for a trial court determination that it was insufficient to support a finding in [his] favor. ” ( In re D.C. (2021) 60 Cal.App.5th 915, 921 [reviewing “ failur e of proof finding ” ] .) VanHorn cannot satisfy this high burden. As described above, the trial

court was obligated to consider t hree factors when ruling on the petition : the hospital director ’s opinion regarding whether VanHorn would no longer be a danger under outpatient treatment ; the program director ’ s opinion on whether there is an appropriate outpatient program for him and whether he would benefit from outpatient status ; and VanHorn’s criminal history and the
circumstances and nature of the commitment offense s

. (§§ 1603, 1604.) Each factor weighed against VanHorn.11

The trial court also found the circumstances prompting VanHorn’s

most recent state hospital readmission

— his calculated use of alcohol and methamphetamine and his dishonesty following his apprehension

— a long
with his lack of insight into the symptoms of his mental illness and his
alcohol and substance abuse disorder s , weighed against conditional release

. ( People v. Bartsch (2008) 167 Cal.App.4th 896 , 900 , 903.) “ [P] ractical issues [ such ] as the amount of stress ” VanHorn might face in the community ( and
whether he would be able to manage that stress ) also supported the court’s finding that VanHorn had failed to show he was no longer dangerous. ( People v. Sword (1994) 29 Cal.App.4th 614, 630.) It is undisputed VanHorn’s
substance use and delusions triggered the commitment offenses , that his

current mental state is extremely fragile and he continues to suffer fro m delusions , and that m ethamphetamine and alcohol have the potential to intensify those delusions. On this record, we cannot say the court abuse d its
discretion by conclud ing VanHorn failed to demonstrate his suitability for
conditional release. VanHorn’s principal contention is the evidence supporting the trial court’s dangerousness finding is speculative because he ha s not engaged in “dangerous behavior” since his commitmen t

. To support this argument, he
relies on several cases , including People v. Cheatham (2022) 82 Cal.App.5th
782 ( Cheatham )

. There, the prosecution moved to extend the defendant’s
commitment under section 1026.5 , which requires the prosecution to prove beyond a reasonable doubt the defendant both “ ‘ represents a substantial danger of physical harm to others ’ ” by reason o f a mental disease, defect, or
disorder and “ ‘ has serious difficulty controlling his

. . . potentially dangerous
behavior

. ’ ” ( Cheatham , at p. 789 , italics added .) At trial, the prosecution offered expert testimony that the defendant experience d symptoms related to12

his diagnos ed schizoaffective disorder , that he might self

- medicate if
release d, and that if he used drugs, “it would likely increase his mental health symptoms, decrease his control, and decrease his compliance with taking medications .” ( Id. at p. 787 .) Another expert opined that if the defendant stopped taking his medications and resumed using drugs and alcohol, “ ‘ he would become more dangerous ’ as he could become delusional
and think others meant him harm. ” ( Id. at p p. 787

– 788 .) But t here was no
evidence the defendant engaged in dangerous behavior no r any evidence he

“ might engage in this type of behavior.” ( Id. at p. 786 .) Cheatham reversed the commitment extension order. It accepted the premise that the defendant “ could relapse into drug and alcohol use if released, which could then increase his mental health symptoms, ” but reasoned “ this speculative outcome [was] insufficient in itself to support continued commitment due to substantial risk of danger. ” ( Cheatham , supra , 82 Cal.App.5th at p. 793 .) The court noted the defendant h ad experienced periods when he “ used drugs and periods when his mental health symptoms

were ‘ pretty bad ’ and yet the record includes not one instance in which [the defendant] evidenced any propensity to engage in dangerous or threatening behavior toward others because of his mental disorder. ” ( I bid .) Cheatham acknowledged a “ person ’ s potential for relapse and the consequences of such are, of course, meaningful considerations ” but cautioned , “ we cannot assume that people without a record of dangerous behavior will struggle to control dangerous behavior simply because they have, or are likely to have, active mental health symptoms

— whether triggered by drug use, alcohol use, or something else. ” ( Id. at p p

. 793

– 794 .) We have no quarrel with the holding in Cheatham

— that to satisfy its burden of proof on a petition to extend a defendant’s commitment, the13

prosecution must provide an evidentiary nexus between the defendant’s mental illness and his dangerousness , and speculation about what might happen if the defendan t uses drugs or decompensates is insufficient , by itself,

to support continued commitment under section 1026.5

. But Cheatham does not compel reversal

. There, the prosecution had the burden to pro ve beyond
a reasonable doub t the defendant pose s a substantial danger of physical
harm to others and that the defendant has s erious difficulty controlling his potentially dangerous behavior

. (§ 1026.5 , subd. (b)( 1)

. ) Here, it was
VanHorn ’s burden to prove he w ill not be a danger to the health and safety of
others ( § 1026. 2 , subd. ( e)) , a standard that does not require a threat of physical harm. ( People v. Woodson (1983) 140 Cal.App.3d 1, 4 .) Thus , at the hearing on his petition for conditional release , VanHorn was presumed to be suffering from a mental illness that render ed him a danger to society if
released , and it was his burden to prove otherwise. ( People v. Sword , supra , 29 Cal.App.4th at p. 62 4 ; People v. Nance (2022) 78 Cal.App.5th 784, 787 .)
Cheatham is also factually distinguishable. U nlike Cheatham , where the defendant had never engaged in dangerous behavior , VanHorn’s commitment
offenses were violent and dangerous , and t here was evidence he had recen tly committed an aggressive act

— forcefully kicking the hospital’s dining

room doors

— attributable to his mental disorde r. ( Cheatham , supra , 82 Cal.App.5th at p. 790 .) VanHorn’s reliance on two other cases

— People v. Johnson (2020)
55 Cal.App.5th 96 and People v. Redus (2020) 54 Cal.App.5th 998

— is likewise unavailing

. Johnson reversed a commitment extension order where the record was devoid of evidence suggesting the 69

- year
- old mentally disordered offender’s decompensation in an uns upervised setting would lead to violence, particularly in light of the fact that he had spent 11 years in the14

community and had stopped taking his medication for periods of time with no violent repercussions. ( Johnson , at pp. 108

– 109.) Additionally, some of the
defendan t’s delusions “ had ‘g one away ’ ” and there was no “ evidence of recent violence or aggression

. ” ( Id. at p p

. 99, 101 , 110 .) I n Redus , the appellate court concluded the prosecution failed to “provide the required link” between
the defendant’s “mental illness and his purported difficulty in controlling his potentially dangerous behavior.” ( Redus , at p. 1013.) Redus noted there had

“ not been a hint of violence, threatening behavior, or aggressiveness of any
kind ” by the 73

- year
- old defendant

— a “ ‘fragile old man’ ”

— for more than four decades , “ even through [conditional] releases and medication lapses. ” ( Id. at p p

. 1011, 1012.) Here and in contrast to these cases , VanHorn
continued to experience delusions, and he had recently engaged in aggressive conduct in response to those delusions. VanHorn’s other arguments do not convince us the trial court abused
its discretion. For example, VanHorn maintains the offenses leading to his
commitment are dissimilar from his r elapse in 2020, and he suggests there is a plausible justification for his preoccupation with his family tree. He also insists his act of kicking the dining room doors does not evince an intent to
harm others. This strategy is not persuasive. As discuss ed above, w e are not permitted to reweigh the evidence. Given Dr. Morgan’s report , which the trial court credited, w e cannot conclude it was an abuse of discretion for the court to infer VanHorn had the potential to react dangerously if pl aced on conditional release. Nor are we persuaded by VanHorn’s suggestion that the prosecuto r must demonstrate he is unable to control his behavior. Assuming a defendant’s inability to control his behavior

— a consideration under
section 1026.5

— is relevant when evaluating dangerousness under section 1026.2, the burden is on the petitioner, not t he prosecution.15

In sum, we conclude the trial court did not abuse its discretion in denying VanHorn’s petition for conditional release.
We offer two closing observations. First, the question before us is not whether we might have ruled differently. Rather, we decide only whether the
trial court abused its discretion in denying the petition

. T he answer is no. Second, we observe that over t he last two decades of his commitment, VanHorn has made progress m anaging his mental illness and substance use
disorders ; in the future

— as the court observed

— he may well demonstrate
his suitability for conditional release

. (See People v. Endsley , supra , 28 Cal.App.5th at pp. 106

– 107 [ a defendant seeking conditional release
is entitled to the appointment o f an independent expert to assist in demonstrating readiness for outpatient treatment ] .) DISPOSITION The September 2021 order denying VanHorn’s petition for conditional
release is affirme d

.16 _________________________ Rodríguez, J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Petrou, J.

A164107