1

Filed 7/18/23 P. v. Shaffer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES LEROY SHAFFER,

Defendant and Appellant.

 A164840

 (Napa County

 Super. Ct. No. 

CR173868)

Defendant Charles Leroy Shaffer was found not guilty by reason of 

insanity of killing his nephew in 2016 and was committed to the Napa State 

Hospital. His commitment has been extended twice, once following a jury 

trial in 2019, and once in 2021 when he waived a trial and agreed to a twoyear extension of his commitment. Defendant appeals from the court’s

subsequent denial of his conditional release for outpatient treatment. We 

conclude the court did not abuse its discretion and affirm.

BACKGROUND

The Underlying Offense1

“On Christmas day in 2014, defendant, along with his wife and son, 

visited relatives. He drank beer throughout the day. At one point, he pulled 

1 Our factual summary is taken from our prior opinion affirming an 

order extending defendant’s commitment under Penal Code section 1026.5. 

(People v. Shaffer (Apr. 29, 2021, A158950) [nonpub. opn.]). Citation of our 
2

out a pocketknife and suggested killing some rabbits that were in cages and 

giving them to the neighbors. [¶] After dinner, defendant’s wife and son went 

home. Defendant stayed and planned to get a ride home with his nephew 

and the nephew's girlfriend, who had not been drinking. The three of them 

left the gathering at about 10:15 p.m. Defendant was very intoxicated and 

needed help getting to the car.

“Defendant was in the rear passenger seat, his nephew was in the front 

passenger seat, and the nephew’s girlfriend was driving. As they drove, the 

group chatted about what a nice Christmas it had been. The nephew asked 

defendant to stop kicking his seat, but ‘nobody was mad.’ When they drove 

onto a bridge, defendant started screaming, told the girlfriend to pull over, 

and said he was going to beat up his nephew.

“From the corner of her eye, the girlfriend saw defendant’s arm coming 

from the back seat of the car, and ‘thought he was hitting’ his nephew. She 

saw defendant hit his nephew ‘four or five times.’ Defendant yelled ‘pull the 

car over. I’m gonna beat the fuck out of this dude.’ The girlfriend pulled 

over, and ‘saw blood gushing from the side . . . of his head.’ She called 911, 

but at that point did not realize defendant had used a knife.

“Defendant then seemed to ‘snap[ ] out of it,’ and ‘looked kind of lost.’ 

The nephew’s girlfriend testified she believed defendant ‘had some kind of 

episode.’ When the 911 operator instructed her to put pressure on the 

nephew’s wound, she gave her sweatshirt to defendant who put it on the 

wound.

prior unpublished opinion is permitted by California Rules of Court, rule 

8.1115(b)(1) “to explain the factual background of the case and not as legal 

authority.” (Pacific Gas & Electric Co. v. City and County of San Francisco

(2012) 206 Cal.App.4th 897, 907, fn. 10.) 
3

“Paramedics could not revive the nephew, and he was pronounced dead 

at the scene. Police found a knife in the backseat of the car, and arrested 

defendant. They took photographs of his nephew, the knife, and the inside of 

the car, some of which were admitted into evidence at the hearing.

“A criminalist estimated that defendant’s blood alcohol level at the time 

of the killing would have been about .26, based on his tested blood alcohol 

level of .19 at about 3:00 a.m. in the morning after the incident.

“Defendant pleaded not guilty by reason of insanity to the charge of 

involuntary manslaughter and use of a knife, and was committed to Napa 

State Hospital.” (People v. Shaffer, supra, A158950.)

At defendant’s next hearing, a jury found defendant suffered from a 

“ ‘mental disease, defect, or disorder,’ and as a result of that mental disease, 

defect or disorder, he ‘now . . . [p]oses a substantial danger of physical harm 

to others if released; and . . . [h]as serious difficulty controlling his behavior if 

released.’ The court ordered his commitment at Napa State Hospital 

extended until December[] 2021.” (People v. Shaffer, supra, A158950.)

In 2020, the court approved defendant’s transfer to Canyon Manor, a 

locked facility, following a recommendation from Solano County CONREP 

that defendant be placed there as an interim step between hospitalization 

and outpatient treatment. In September 2021, Canyon Manor recommended 

defendant’s commitment be extended, and the People filed a petition to 

extend his commitment under Penal Code section 1026.5.2 Canyon Manor 

then submitted a recommendation for community outpatient treatment. 

Defendant waived a jury trial on the section 1026.5 petition and agreed to the 

two-year extension of his commitment. The court held a hearing to consider 

2 All further undesignated statutory references are to the Penal Code.
4

whether defendant should be conditionally released for outpatient treatment 

with CONREP, under section 1026.2. 

At the hearing, the nephew’s girlfriend testified about his killing. She 

was driving defendant and his nephew, with defendant in the back seat,

home after a party on Christmas day. The men were both very intoxicated, 

laughing and talking, when defendant started “yelling, telling [her] to pull 

the car over, that he was going to beat this guy’s ass.” She looked over and 

the nephew was bleeding from his neck. Defendant then “kind of snapped 

out of it and . . . tried to help [the nephew] breathe a little bit.” 

Napa County Sergeant Nathalie Hurtado investigated the killing. 

When she interviewed defendant around 3:00 a.m. the morning after the 

incident, he stated the last thing he remembered about being in the car was 

sitting in the back passenger seat behind his nephew and talking with him. 

He told her more than once he had a memory of being in the car. He also told 

her he remembered thinking about the Napa Smith Brewery when they were 

driving because “he himself own[ed] a brewery.” The next thing he 

remembered was being in the Sheriff’s Office. He reported he drank four to 

five beers that night. He also told her he had never blacked out from 

drinking alcohol.

A number of defendant’s providers testified. Michlene Wojcieszak, his 

assigned CONREP clinician at Canyon Manor, testified she had been 

working with defendant for about 15 months. Defendant was at the highest 

level at the facility, which was based on his medication adherence, program 

attendance, self-care, and behavioral control. Wojcieszak worked with 

defendant on his trauma disorder, completing a PTSD workbook and helping 

him understand his triggers. She also accompanied him on community 

outings, including to his home and to the scene of the attack where he killed 
5

his nephew. Defendant was able to express his feelings and use his coping 

mechanisms to calm himself. 

Wojcieszak also discussed defendant’s alcohol use disorder with him in 

individual therapy. She testified he “came in with a pretty solid commitment 

to abstain from alcohol. But I have seen that sustained over time.”

Defendant went on community outings to the farmer’s market where 

Wojcieszak believed there was alcohol, and to a convenience store where 

alcohol was on display. She acknowledged that “of course he could not 

partake [of alcohol] without us being aware of it and intervening.”

Defendant testified he had not had access to alcohol since 2014. He

had been taking medication to reduce his craving for alcohol since he was at 

Napa State Hospital. He raised the issue with Wojcieszak about stopping his 

medication while “ ‘under medical supervision to see if he is free of cravings 

without it.’ ” They discussed the issue more than once, but “the consensus of 

the treatment team” was that he should continue the medication, “mostly”

because CONREP prefers to make any medication changes in the community. 

Wojcieszak believed defendant had a “pretty solid” relapse prevention 

plan and opined he would not be a danger to himself or others if he was 

treated in the community on an outpatient basis under CONREP supervision. 

She agreed he could be a danger if he were released into the community and 

“drank alcohol and he became intoxicated.” 

An incident occurred during Wojcieszak’s testimony, which was given

remotely from Canyon Manor. Defendant was apparently in the room at the 

time. The following exchange took place:

“Q: [Defense counsel]: I’d like to speak with you particularly now about 

your work with Mr. Shaffer. Can you tell us how long you’ve been working 

with Mr. Shaffer? 
6

“A: I believe he was admitted in February. Oh. November. Sorry. I’m 

always mixing up his birthdate and his admission date. My bad.

“[The Court]: Mr. Shaffer, I think that’s your voice that we’re hearing 

in the background. You are not to assist the witnesses at all.

“[The Witness]: No. There is somebody in the hallway whose voice you 

hear right now.

“[The Court]: Okay. Who reminded you of his birthdate or his time 

there? Ms. Wojcieszak?

“[Defense Counsel]: Ms. Wojcieszak, it sounded like there was 

somebody—

“[The Witness]: Mr. Shaffer.

“[Defense Counsel]: It sounded like there was somebody who reminded 

you of when you had started, when Mr. Shaffer had arrived.

“[The Witness]: Yes. That was Mr. Shaffer.

“[The Court]: Okay. So again, Mr. Shaffer, you are not to assist the 

witness or any other witness at all. You’ve had your opportunity to testify. 

Please do not do that.

“(Court reporter informs the court she didn’t hear what Mr. Shaffer 

said.)

“[The Court]: That’s okay. It was muffled, but apparently it was 

enough for this witness to remember when she started working with him, and 

that’s inappropriate to assist the witness while on the witness stand.” 

Sharon Kay, the clinical program manager at Canyon Manor, testified 

she had been involved in the evaluation of defendant’s readiness to be 

released. She had signed the report prepared by Wojcieszak, relying on her 

statements about defendant’s treatment. The consensus of the treatment 

team, with which Kay agreed, was that defendant could be safely and 
7

effectively treated in the community through CONREP. Kay noted that 

therapists had taken defendant into the community twice “for some 

experiences that would trigger his P.T.S.D to see how he did.” Kay agreed he 

had been sober during the outings, and they could not accurately test 

defendant’s behavior if intoxicated. She explained “ I don’t know if you can 

even predict. I think that [defendant] is committed to staying sober, and I 

think he needs to, and I think he knows that.” When asked “But you can’t 

say with any level of certainty that [defendant] isn’t going to be released and 

consume alcohol and become dangerous, correct,” she responded “I don’t think 

I could say that for sure.” 

Robin Payne, a CONREP program director, had assessed defendant for 

outpatient treatment when he was at Napa State Hospital in 2018. At their 

first meeting, defendant stated he planned to “continue his beer brewing 

business and perhaps taste the beer for quality.” In their second meeting, he 

denied saying that. In both meetings, he “stated an intent to stay sober.” 

Dr. Melanie Cleary, a forensic evaluator and hospital liaison clinician, 

testified as an expert in forensic psychology and the assessment of the 

mentally ill for safety and efficacy of outpatient treatment. She met with 

defendant about seven times beginning in 2019, with about half of the 

meetings in person and half via video conference. She had no access to his 

Canyon Manor medical records, but “relied on email communications from 

Ms. Wojcieszak about his progress and status.”

Dr. Cleary testified defendant was “noted to be psychiatrically stable, 

meaning that he hasn’t experienced any symptoms of his diagnosis, which is 

other specified trauma and stressor related disorder, which in this case has 

encompassed some symptoms of P.T.S.D.” Defendant was able to correctly 

identify his diagnosis and his symptoms. Defendant reported he had not 
8

experienced any cravings for alcohol. Based on Dr. Cleary’s communications 

with Wojcieszak, “it sounds like [defendant] has been making excellent 

progress in that area where he’s been able to confront difficult situations, and 

be able to address his feelings about it, and emote appropriately.” Dr. Cleary 

believed defendant was committed to maintaining his sobriety because “[h]e’s 

very thoughtful about what things could trigger a desire to drink. . . .” Dr. 

Cleary testified she had been unaware that defendant had asked to stop his 

medication under medical supervision. Dr. Cleary agreed that “raise[d] some 

level of concern.” 

Of the 600 to 800 patients she had evaluated, she could not recall 

another who had a dual diagnosis of trauma-related disorder and alcohol 

abuse disorder where the patient was not violent when sober. Dr. Cleary also 

testified defendant had told her his memory of the offense was being at a 

Christmas party, drinking heavily, and his nephew and nephew’s girlfriend 

agreeing to take him home. He also told her he remembered “talking to a 

police officer on the side of the road after the offense occurred.” She did not 

know defendant had told a police officer at the time that he remembered 

being in the car and driving on Highway 29. It would “be a concern . . . if he 

wasn’t sharing with [her] as much as he remembered about the offense. 

Defendant’s wife testified defendant was “honest . . . trustworthy . . . a 

wonderful father, and a wonderful husband, wonderful caregiver.” She 

described him as “one of the most patient people I know. . . . He’s not an 

angel, but he’s a very decent human being.” She had assisted in his release 

planning by obtaining information from their health insurance provider, and 

phone numbers for the V.A., the Veteran’s Crisis line, and the Fairfield V.A. 

Clinic at Travis Air Force Base. She asked a neighbor to be his AA sponsor, 

and he agreed to be a sponsor for defendant “if he needs to.” Defendant’s wife 
9

did not think defendant started drinking more than one glass of beer or wine 

a night until about six months before he killed his nephew. She had no 

concerns about defendant’s safety or the safety of others if he was released. 

Defendant’s wife testified about incidents that occurred when 

defendant had been drinking. One night in about 2000, when he was very 

intoxicated, he came home with a female friend. His wife discovered them 

having sex in the living room, but defendant later explained he thought the 

woman was her. His wife did not talk with defendant about whether his 

alcohol use could potentially be a problem because she did not think he had a 

problem. 

Defendant’s wife also testified about a 2013 incident at a party with

some co-workers. Defendant’s wife brought him to the party, but she left 

early. She later got a call from a friend to come and pick him up. Defendant 

was on the side of a highway, intoxicated. He was “too drunk to tell [her] 

what happened” “but he didn’t remember hitting [two friends].” After the 

incident, she “wasn’t concerned about his alcohol consumption. [She] just 

didn’t want him with those people because of that incident.” 

One of those people testified about the incident. L.P. and her husband, 

who worked with defendant, hosted a party in 2013 attended by defendant 

and his wife. Defendant’s wife left early, and told the hosts to call her when 

defendant was ready to leave and she would pick him up. Around 10:00 p.m.,

L.P. called her to pick up defendant, who was intoxicated, but did not hear 

from his wife in the next hour. L.P. then called B.K., a friend who was the 

designated driver for the day, to drive defendant home. 

B.K. arrived at the party and picked up defendant. He and L.P. sat in 

the driver’s and front passenger seats, respectively, and defendant sat in the 

back seat. As soon as they got on the highway, defendant began punching 
10

B.K. in the head. L.P. turned around and calmed him down, but less than 20 

seconds later, he began choking B.K. L.P. turned around and told defendant 

“That’s [B.K.] . . . [h]e’s our friend. You work with him. And that’s when 

[defendant] said, excuse me, shut up fucking bitch, and elbowed me in the 

side of the head.” L.P told B.K. to pull over, got out of the car, and called her 

husband. Defendant was still hitting and choking B.K., who managed to 

subdue him until L.P.’s husband arrived. L.P. described defendant’s attack 

on B.K. as “unprovoked.” Defendant called her the next day to apologize, but 

“he didn’t know what he was apologizing for. . . . He didn’t know what he 

did.” 

L.P. had also observed defendant engage in other problematic behavior 

while intoxicated. On one occasion he walked up to an African American

man at a bar and “started saying racial slurs and got in his face.” On another 

occasion defendant confronted a man selling knives, got in his face, and an 

altercation ensued. L.P. testified “anything can tip him off, like walking into 

a bar and seeing someone at a bar that he thinks shouldn’t be there.” 

Defendant testified he had worked as a machinist and welder at Travis 

Air Force Base and had been married for 25 years. He had served in the Air 

Force, including active duty in Germany and Turkey, and two tours in

Afghanistan. Defendant believed his experiences in the military affected his 

mental health, causing him to be “hypervigilant,” and have nightmares, 

flashbacks, and anxiety attacks.

Defendant testified he had no memory of killing his nephew when he 

was in custody early the next morning. He first learned his nephew was dead 

when Sergeant Hurtado told him during his custodial interrogation. Up until 

that point, he “had no idea why” he was in custody. He believed he could not 

remember the event due to a “combination of dissociation out of part of the 
11

symptoms of [his] disorder . . . compounded by being intoxicated on alcohol.”

Defendant testified he experienced trauma-related symptoms, including fear 

of being in an enclosed space, sleep difficulties, hypervigilance, and 

flashbacks, while in jail after the offense. 

Defendant understood his diagnosis to be “other trauma or stressorrelated disorder . . . basically, it’s PTSD, minus a characteristic or trait.” 

When asked if it was his only diagnosed disorder, he indicated he also had “a 

mild alcohol use disorder.” 

Defendant was admitted to Napa State Hospital in March 2017. There, 

he participated in numerous groups, including anger management, substance 

recovery, PTSD recovery, and a veteran’s group. He attended job training 

and worked in the upholstery shop for three years. He was also a 

representative for the “cooperative council,” which involved “go[ing] down to 

the treatment mall, gather[ing] information, [and] bring[ing] it back and 

disseminat[ing] it through the group.” Later, he was the secretary for 

Alcoholics Anonymous. 

In November 2020, defendant was transferred to Canyon Manor, his 

placement at the time of the hearing. There, he continued to attend various 

groups, including behavioral therapy, substance recovery, and discharge 

planning. He had weekly therapy sessions with Wojcieszak, in which they 

discussed substance abuse, trauma symptoms, and stressor-related disorder. 

They also spent four months working on a 400-page workbook together, 

covering PTSD, triggers, stressors, and exposure therapy. 

As part of his exposure therapy, defendant went on outings with social 

workers in which he was exposed to “things that in the past have triggered” 

him. The outings included going out at night in the backseat of a car and 

going to the scene of the stabbing. 
12

Defendant had a “relapse prevention plan,” which was “a living 

document because it’s pretty much never finished.” He explained it “captures 

what happened from the instant offense to all kinds of other things, such as

the medication I take, support systems, being people or organizations, 

services out there, high-risk situations, affirmations.” 

He testified the symptoms of his alcohol use disorder included 

“dissociation or blackout, . . . erratic behavior, things I wouldn’t normally say 

or do. Could be rude, loud, obnoxious. You know, just things. Not the 

normal me.” His relapse prevention plan as to alcohol use was to “talk to 

somebody when I have something bothering me. . . . [¶] . . . I’ve got a friend 

now who has offered to be my sponsor. . . . I would talk to him, talk to my 

family. And I’ve got hotline phone numbers for the VA. I’ve got my doctor at 

Kaiser. When I go to CONREP, I’ll have several contacts there that I’ll deal 

with. . . . Just, I have lots of ways. Meetings you can go to. I prefer the 

SMART recovery model. But there [are] also 12-step groups everywhere.

And I have . . . a very wide variety of family, as well as friends’ support. . . .” 

If released on CONREP, defendant’s housing plan was staying at a 

room and board with others in Vallejo. He would attend groups, meet weekly 

with a therapist and monthly with a doctor, and be subject to random drug 

and alcohol screening. Eventually, he would move back to his own home with 

the same conditions. 

On cross-examination, defendant was asked about blacking out because 

of alcohol use. He testified he had blacked out three times after drinking; 

once during the incident when his wife walked in on him having sex with 

another woman in their home, once when he was being driven home from the 

party at L.P.’s house and attacked a friend, and once during the killing of his 

nephew. He admitted it was “possible” he lied to his wife about not 
13

remembering having sex with the other woman because it would be easier 

than admitting it to her. As to the incident when he attacked his friends in 

the car, defendant told his wife he did remember what happened, even 

though he did not. He conceded he had lied to his wife, “in a way.” Although 

defendant had previously told psychologist Dr. Minagawa, who interviewed 

him at the Napa jail, that he had blacked out more than 10 times, he now 

believed it was only three times. 

Defendant testified he was committed to sobriety and denied having 

cravings for alcohol. He was taking medication to stop those cravings, and 

was not sure if he raised the possibility of stopping it with Wojcieszak or if 

she did. He admitted he liked the smell and taste of beer. During his 

exposure therapy field trips into the community, he was sober, and had 

visited restaurants where alcohol was served but not bars. The brewery 

business he previously owned closed down during the first year he was in 

Napa State Hospital. 

DISCUSSION

Defendant asserts the trial court abused its discretion by denying him 

conditional release for outpatient treatment.

“A defendant found not guilty by reason of insanity may be released 

from a state hospital upon (1) the restoration of sanity pursuant to the 

provisions of section 1026.2; (2) expiration of the maximum term of 

commitment, which means ‘the longest term of imprisonment which could 

have been imposed for the offense or offenses of which the person was 

convicted’ (§ 1026.5, subd. (a)(1)); or (3) approval of outpatient status 

pursuant to the provisions of section 1600 et seq. (§ 1026.1; see People v. Soiu

(2003) 106 Cal.App.4th 1191, 1194–1195. . . .” (People v. Dobson (2008) 

161 Cal.App.4th 1422, 1432.)
14

“Under the latter procedure, a defendant may be placed on outpatient 

status if the director of the state hospital and the community program 

director so recommend, and the trial court approves the recommendation 

after hearing. (§ 1603.) [¶] ‘Outpatient status is not a privilege given the 

[offender] 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 [offender] and cause no undue hazard to the 

community.’ (People v. Wymer (1987) 192 Cal.App.3d 508, 513. . . .)” (People 

v. Sword (1994) 29 Cal.App.4th 614, 620 (Sword).)

“Outpatient status is a prerequisite to a finding that sanity has been 

restored. (§ 1026.2.) ‘Subdivision (e) of section 1026.2 sets up a two-step 

process for processing an application for release: first, a determination of 

whether the applicant should be placed in a local program, and later, after a 

year in such a program, a determination of whether the applicant’s sanity 

has been restored.’ (Barnes v. Superior Court (1986) 186 Cal.App.3d 969, 

973. . . ; People v. Tilbury (1991) 54 Cal.3d 56, 60 . . . . [no right to jury trial 

on outpatient placement].) At the end of one year, the trial court may either 

discharge the defendant, order confinement in a treatment facility, or renew 

its approval of outpatient status. (§ 1606.)” (Sword, supra, 29 Cal.App.4th at 

pp. 620–621, fn. omitted.)

Defendant has the burden of proving, by a preponderance of the 

evidence, that he is either no longer mentally ill or not dangerous. (People v. 

Cross (2005) 127 Cal.App.4th 63, 72 (Cross).) As the party who was found to 

have not satisfied his burden of proof below, he must show on appeal that the 

evidence compelled a finding in his favor as a matter of law. (See e.g., Shaw 

v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279; In re I.W. (2009) 
15

180 Cal.App.4th 1517, 1528, overruled in part on another ground in 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1004, fn. 4.)

We review the trial court’s order for abuse of discretion. “Under that 

standard, it is not sufficient to show facts affording an opportunity for a 

difference of opinion. [Citation.] ‘A trial court’s exercise of discretion will not 

be disturbed unless it appears that the resulting injury is sufficiently grave 

to manifest a miscarriage of justice. [Citation.] In other words, discretion is 

abused only if the court exceeds the bounds of reason, all of the circumstances 

being considered. [Citation.]’ (People v. Stewart (1985) 171 Cal.App.3d 59, 

65. . . .)” (Cross, supra, 127 Cal.App.4th at p. 73.)

Defendant maintains the court abused its discretion, in part, because

his treatment providers all opined, he could be “safely and effectively treated 

in the community.”

While the trial court “was not required to follow the essentially 

unanimous recommendations of the expert witnesses” it “could disregard 

those recommendations only for nonarbitrary reasons.” (Cross, supra, 

127 Cal.App.4th at p. 73.)

The trial court identified multiple nonarbitrary reasons. First, the 

court noted there were “issues of credibility . . . here in court and . . . some of 

the things [defendant’s] said out of court” and questioned whether defendant 

had been truthful. The court noted “integrity is important here, because all 

of the [p]eople who are, quote, unquote, treating him are using his statements 

to sort of figure out what’s going on with him. Because obviously you can 

never know what’s going on in someone’s head. So you have to listen to their 

statements. The court noted the incident during Wojcieszak’s testimony, 

stating defendant attempted to provide an answer to a question to her and 
16

then denied it.3 The court also noted the discrepancy between Robin Payne’s 

testimony that defendant said he wanted to taste beer at his brewery and 

defendant’s denial that he ever said that. The court additionally questioned 

the veracity of defendant’s testimony that he never had cravings for alcohol, 

given the extent of his alcohol consumption before being institutionalized.4

And the court noted Dr. Cleary testified she had been unaware that 

defendant had asked to stop his medication under medical supervision. Dr. 

Cleary agreed that “raise[d] some level of concern.” 

The court described defendant as “sort of a test case,” because his

treatment providers had not had experience with someone with his particular 

dual diagnosis who was not violent while sober. The court also noted

Wojcieszak had never used the workbook completed by defendant before,

concluding “so basically there hasn’t been anyone else like [defendant], 

apparently, in the treatment careers of these people. . . .”

The court also expressed concerns about the extent of defendant’s 

“exposure therapy,” noting “I certainly would hope that his, quote, unquote,

exposure therapy is more than just going to a farmer’s market with the belief 

that there might be alcohol there, because Ms. Wojcieszak was not certain, 

3 Defendant asserts the transcript states it was Wojcieszak, not 

defendant, who stated there were people in the hallway, and then she 

“corrected herself” and said it was defendant who gave her the information. 

The transcript, however, only identifies the speaker making the initial

statement as “The Witness.” The court stated it was defendant, both at the 

time of the initial statement and when the court made its ruling, and at 

neither time did defendant’s counsel object nor state the court was mistaken. 

4 The record also reflects other instances of defendant’s lack of veracity

and attempts to minimize his behavior. For example, defendant testified he 

had only blacked out three times in his life after consuming alcohol, but he 

previously told Dr. Minagawa it was about 10 times. He also admitted lying 

to his wife. 
17

and then going to—I think there was testimony about a grocery store and 

there being alcohol on the shelves. To me exposure needs to be more to really 

test this out. Because you can’t give him alcohol and say let’s see what he 

does. But you can certainly put him in other situations where it’s being 

consumed right in front of him and seeing what he does to see whether or not 

he truly is of the mind and able to control himself and not crave them.” 

Defendant disputes the court’s conclusions, maintaining that at Canyon 

Manor, “[d]espite the availability of alcohol, [he] abstained.” He also asserts 

that “[d]espite the availability of contraband . . . [he] had been sober since the 

commitment offense in 2014.” These assertions directly contradict 

defendant’s testimony that he has had no access to alcohol since 2014. The 

portions of the record cited by defendant in support of these claims do not 

support his assertions. Those record cites indicate alcohol was available in 

the jail in which defendant was placed after the offense, not at Canyon Manor 

or Napa State Hospital. The other portion of the record cited by defendant is

Wojcieszak’s testimony in response to the question “How is it that you’re able 

to gauge one’s ability to confront any underlying substance abuse disorders 

and to succeed in confronting those once they’re released to outpatient 

treatment?” (Italics added.) She responded: “Well, we do rely heavily on the 

groups . . . that focus[] on recovery and the person’s performance in that 

setting. . . . [¶] But . . . we do random testing, because, you know, contraband 

does—can get brought in, and people can drink when they’re out on a pass, 

although our CONREP folks are never unsupervised, so that’s not going to 

happen with them.” (Italics added.) Her testimony was about the 

availability of alcohol when an individual is receiving outpatient treatment 

under CONREP, not about the availability of alcohol at Canyon Manor. 

There was, in fact, no evidence that alcohol was available at Canyon Manor, 
18

or that if it was, defendant had access to it. The only evidence that defendant 

abstained when alcohol was available was his testimony that he abstained 

from alcohol while in jail, prior to his commitment to Napa State Hospital 

and prior to his placement at Canyon Manor. 

Defendant asserts the circumstances in his case are like those in Cross,

supra, 127 Cal.App.4th 63, in which the appellate court reversed the trial 

court’s denial of outpatient status. There, the defendant pled guilty to second 

degree murder of a former roommate, and the court found he was not sane at 

the time of the offense. (Id. at p. 66.) He was diagnosed with schizophrenia, 

paranoid type. (Id. at p. 68.) “While in a decompressed state, [defendant] 

suffered from delusions, hallucinations and paranoia.” (Ibid.) After 12 years 

at a state hospital, the hospital recommended outpatient status for the 79-

year-old defendant. (Id. at pp. 68–69.) 

A number of medical professionals testified. The CONREP evaluator 

testified the defendant should be placed in a skilled nursing facility because 

he was “physically fragile” and placement in skilled nursing facility “meant 

he would be under close (‘24/7’) supervision.” (Cross, supra, 127 Cal.App.4th 

at p. 68.) Defendant had undergone heart surgery about two years earlier, 

had fractured his hip about eight years before, and “was ambulatory with a 

walker.” (Id. at pp. 69–70.) As long as the defendant took his medication, the 

evaluator “felt he was stable enough to be placed in the conditional release 

program.” (Id. at p. 68.)

A staff psychologist and staff psychiatrist from the state hospital both 

testified the defendant had not been a behavioral problem while “in the 

hospital under treatment and medication.” (Cross, supra, 127 Cal.App.4th at 

p. 69.) He was “at some risk for alcohol abuse . . . but would be ‘okay’ in a 

structured setting.” (Id. at p. 70.) The assistant administrator of the skilled 
19

nursing facility testified it was “a secured, locked facility with near perpetual 

monitoring of its fenced grounds.” (Ibid.) It had “about 160 employees for 

about 179 patients,” and was staffed by registered nurses, licensed vocation 

nurses, and certified nursing assistants. (Ibid.) The staff “would take 

whatever steps were necessary to have him become compliant or remove him 

from the facility.” (Ibid.) A CONREP psychologist testified “while there was 

a higher correlation with violent behavior in younger persons, that was not a

sole factor” on which he based his opinion. (Id. at p. 71.) He noted defendant 

would have “24-hour supervision and structured support.” (Ibid.)

The appellate court reversed, in a two-one decision, the trial court’s

denial of the request for conditional release. (Cross, supra, 127 Cal.App.4th 

at p. 75.) The court observed the record “revealed no reasons to doubt the 

adequacy of the experts’ knowledge regarding [defendant’s] history or status.”

(Id. at p. 74.) The court noted the trial court had cited his “age and 

condition,” but concluded “[i]f anything, [defendant’s] advanced age of 79 and 

frail condition supported granting the application, as they doubtless rendered 

[defendant] less physically able to move about or inflict harm upon anyone.” 

(Ibid.) Notably, the “proposed transfer was not to an ‘out-patient’ program, 

but to a locked nursing facility in which [defendant] would reside under 

constant supervision.” (Ibid.)

The circumstances in this case are patently different than those in 

Cross. Defendant in this case has a different, and rare, dual diagnosis, being 

treated in part with methods his providers have not used before. Defendant 

is not elderly—he was born in 1964. There was no evidence he was physically

frail or unable to ambulate without a walker, which would reduce the risk of 

dangerousness. And the “outpatient” placement in Cross was a locked skilled 

nursing facility, in which the medical professionals would “take whatever 
20

steps necessary” to compel him to comply with his medication regimen.

Defendant was seeking release to a room and board where he would see a 

therapist weekly and a doctor monthly. 

In sum, although the trial court disagreed with the testifying medical 

professionals’ recommendations that defendant be released on CONREP, the 

court’s conclusions at the end of the hearing demonstrate that this denial was 

based upon a thorough consideration and reasonable interpretation of the 

evidence. Defendant has not shown an abuse of discretion.

DISPOSITION

The judgment is affirmed.
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_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A164840, People v. Shaffer