People v. Lopez, E037066.

• Citation: 137 Cal.App.4th 1099,40 Cal.Rptr.3d 789
• Decision Date: 23 March 2006
• Docket Number: No. E037066.,E037066.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio Perez LOPEZ, Defendant and Appellant.

40 Cal.Rptr.3d 789

137 Cal.App.4th 1099

The PEOPLE, Plaintiff and Respondent, v. Antonio Perez LOPEZ, Defendant and Appellant.

No. E037066.

Court of Appeal, Fourth District, Division Two.

March 23, 2006.

Certified for Partial Publication.^*

[40 Cal.Rptr.3d 790]

Dacia A. Burz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Pat Zaharopoulos, Deputy Attorney General, for Plaintiff and Respondent.

[137 Cal.App.4th 1101]

OPINION

RICHLI, J.

Antonio Lopez appeals a judgment committing him to the California Department of Mental Health after a jury determined him to be a mentally disordered offender (MDO) within the meaning of Penal Code section 2970.¹ We affirm.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Previous Commitments

The MDO law (§§ 2960-2981) provides for the civil commitment of a person previously convicted and punished for a violent crime who, because of a severe mental disorder, represents a substantial danger of physical harm to others if released. The commitment is for one year and can be renewed annually as long as the disorder and the danger of harm exist. The committee is entitled to a jury trial, a unanimous verdict, proof beyond a reasonable doubt, and appointed counsel if he or she is indigent. (§§ 2962, 2970, 2972; see generally In re Qawi (2004) 32 Cal.4th 1, 9, 7 Cal.Rptr.3d 780, 81 P.3d 224.)

Prior to the present proceeding, Lopez was committed under the MDO law six successive times. All of these commitments, as well as the present one, were based on Lopez's conviction in May 1995 for making a terrorist threat against his father's girlfriend, Betty Shepherd. (See People v. Lopez (1999) 74 Cal.App.4th 675, 677, 88 Cal.Rptr.2d 252.) Lopez served prison time for that offense and was returned to prison when his parole was revoked in July 1997.

1. Initial commitment

In August 1998, the Board of Prison Terms determined Lopez was an MDO. Lopez requested a trial, and a jury confirmed the MDO finding. The court committed Lopez to the Department of Mental Health for treatment, and he was placed in Atascadero State Hospital (ASH). (People v. Lopez, supra, 74 Cal.App.4th 675, 678, 88 Cal.Rptr.2d 252.)

2. First petition

During his time at ASH, Lopez threatened the staff more than 10 times and tried to strike staff members who broke up an altercation between him and another patient. His diagnoses at that time included schizoaffective disorder, substance abuse, and antisocial personality disorder.

In October 1999, the People filed a petition for recommitment of Lopez pursuant to section 2970. The matter proceeded to a jury trial in July 2000, at which the People called Lopez to testify in their case-in-chief. The jury found Lopez was an MDO, and in August 2000, he was transferred to Patton State Hospital (PSH).

3. Second petition

Lopez continued to show aggressive behavior, paranoia, noncompliance with staff, and rapid mood changes. In February 2001, the People filed a second recommitment petition. Lopez waived trial and stipulated that his commitment would be extended to March 2002.

4. Third petition

In November 2001, the People filed a third recommitment petition. Since the last petition, a large spring and a sharp piece of metal had been found in Lopez's locker, which he stated he was going to use on the staff. When asked for a urine sample, he became physically assaultive and had to be placed in five-point restraints for four days.

Lopez waived a jury trial on the petition, and in December 2001 the parties submitted the matter to the court without argument. The court extended Lopez's commitment to March 2003.

5. Fourth petition

Prior to the expiration of the March 2003 commitment, the People filed a fourth petition for recommitment. Lopez agreed to a one-year extension of his commitment, and the court in February 2003 extended the commitment to March 2004.

6. Fifth petition

In November 2003, the People filed a fifth petition for recommitment. In December 2003, the parties stipulated, and the court ordered, that the commitment be extended to September 2004.

7. Sixth petition

In May 2004, the People filed a sixth petition for recommitment, the one at issue in the present case. The matter proceeded to a jury trial in November 2004.

B. Trial Evidence

The People presented testimony of two health care professionals from PSH who had treated Lopez. The People also presented Lopez's testimony from the 2000 recommitment proceeding. Lopez presented no evidence in his defense.

1. Dr. Bustrum

Dr. Joy Bustrum was a PSH staff psychologist who treated Lopez beginning in August 2003. She testified based on her personal experience with Lopez and on her review of his medical file.

Dr. Bustrum diagnosed Lopez with schizoaffective disorder of the depressed type, a severe mental illness that was not in remission. She found in Lopez a pattern of being suspicious or paranoid, followed by threats and then physical violence against another person. She noted that in 1978 he was charged with battery, and in 1988 and 1989 he was charged with physical assault against a correctional officer and a police officer. He also received numerous citations in prison during the 1990's for physically fighting with peers. At PSH, Lopez had threatened people 19 times from the beginning of 2003 through September 2004.

Dr. Bustrum also concluded Lopez had a polysubstance abuse problem. His abuse of alcohol and drugs had led to two arrests in 1977 for driving under the influence, an arrest for possession of a controlled substance in 1977 or 1978, citations during the 1980's or 1990's for having drugs in prison, and a parole revocation in 1997.

Dr. Bustrum concluded Lopez still needed to be in a hospital environment with sustained further intensive treatment before he could go out into the community. However, he did not willingly follow his treatment plan, which included individual and group psychotherapy and an intensive substance abuse program. Though he had not acted out physically since the July 2003 incident, he did not have insight into how he was functioning as a person and therefore was at risk of either physically assaulting someone or relapsing in his mental illness. In Dr. Bustrum's opinion, Lopez still posed a substantial risk of physical danger to others because of his mental illness.

2. Dr. Anosa

Dr. Nellie Anosa was Lopez's treating psychiatrist at PSH. She testified Lopez suffered from schizoaffective disorder of the depressive type, a severe mental disorder. He also suffered from polysubstance dependence.

Lopez's disorder caused him to become angry and hostile over little things. Every two or three months he would have an episode of angry or assaultive behavior. He was constantly thinking that the staff had singled him out.

Dr. Anosa believed Lopez posed a danger to others because of his mental illness. She explained: "Mr. Lopez has not really worked on his problem. He continues to be very angry, very paranoid.... He has not followed all the treatment modalities that we asked him to do."

3. Lopez's testimony from the 2000 recommitment trial

The People called Lopez as a witness, but he refused to testify, invoking the Fifth Amendment. Over Lopez's objection, the court permitted the People to read Lopez's testimony from the July 2000 jury trial and admitted the testimony into evidence.

In the prior testimony, Lopez stated that in about 1983, he was sent to the California Institute for Men for possession of a deadly or dangerous weapon. In about 1986, he was sent to the state prison at Susanville; he claimed not to know the reason. While there, he threw hot chocolate during a food riot, unintentionally hitting a guard, and was placed in a higher-security unit.

Lopez was transferred to Folsom State Prison and eventually released in 1991. About a year later, he was sent back to Folsom for assault with a deadly weapon and kidnapping. He was released in 1994 but was sent back to Folsom for the terrorist threat against Ms. Shepherd in 1995. When he was arrested for that crime, Lopez told one of the officers, an African-American, that he had an "Aryan brother" who would "get after" the officer.

At Folsom, Lopez stabbed his cellmate in the heart in an attempt to kill him. He explained he did this because the cellmate had "snitched off some people at Soledad" whom Lopez knew.

Shortly before he was sent to ASH, Lopez threatened an officer at the California Men's Colony. According to Lopez, the officer threatened to kill him, and Lopez responded, "[A]ll right. Well two can play at that too."

About the time Lopez arrived at ASH, in August 1998, he told a doctor he was probably going to kill someone. In January 1999, he said he felt like going off and hurting someone. In February 1999, he got into a fight with another patient and had to be restrained by staff members.

Lopez also testified about his history of drug and alcohol offenses. He was arrested in 1977, 1978, and 1979 for driving under the influence. In 1978 or 1979, he was convicted of possessing PCP (phencyclidine). In 1979, he was arrested for possession of a needle. In 1982, he was convicted of possessing a drug pipe that he used to smoke marijuana. In 1986, his parole was violated for using, or being under the influence of, a controlled substance and for possessing a syringe and a knife. While in prison, he was "busted" for using marijuana.

C. Judgment

As stated, the jury found Lopez was an MDO within the meaning of section 2970. The court ordered that Lopez continue involuntary treatment at PSH until September 2005.

II DISCUSSION

A. Equal Protection

Lopez argues that by admitting his testimony from the 2000 recommitment proceeding, the court violated his right of equal protection under the federal and state Constitutions. He...