The People v. Avery CA1/2

Filed 8/27/13 P. v. Avery CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A134992 v. ROBERT DERWIN AVERY, (Lake County Super. Ct. No. CR03320) Defendant and Appellant.

Defendant Robert Derwin Avery was committed to the state mental hospital after being found not guilty of a felony battery charge by reason of insanity. Penal Code section 1026.5 allows for such a commitment to be extended for two years when, in the language of subdivision (b)(1), a trier of fact determines that “the person . . . by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” A jury made that determination. Defendant seeks reversal of the order extending his commitment on the ground there is not substantial evidence that (1) he lacked the volitional capacity to control his behavior, and (2) the risk of danger he posed if released was indeed “substantial.” We have addressed these issues before. In People v. Zapisek (2007) 147 Cal.App.4th 1151, after holding that the People are required to prove that the person whose commitment they seek to extend “had a serious difficulty in controlling his potentially dangerous behavior,” we stated “we can only affirm [the person’s] commitment extension if we find substantial evidence that he had, at the very least, serious difficulty controlling his potentially dangerous behavior.” (Id. at pp. 1159, 1165.)

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In People v. Sudar (2007) 158 Cal.App.4th 655, 662, we explained that “The requirement of serious difficulty in controlling dangerous behavior ‘serves “to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.” . . . .’ ” Concerning a challenge to the sufficiency of the evidence on this point, we held in Zapisek: “ ‘ “ ‘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. [Citation.]’ [Citation.]” [Citation.] A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extention of the defendant’s commitment under section 1026.5. [Citation.]’ [Citation.]” (People v. Zapisek , supra, 147 Cal.App.4th 1151, 1165.) And our colleagues in Division Five have added this: “The People are not required to prove the defendant ‘ “is completely unable to control his behavior.” ’ [Citation.] Instead, the defendant's ‘impairment need on only be serious, not absolute.’ [Citation.] . . . ‘[T]here may be “considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior.” [Citation.]’ [Citation.]” (People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370.) Only two witnesses testified at trial. One was defendant’s wife, but she is not a mental health professional and provided nothing relevant to defendant’s contentions. The other witness, the only one called by the People, was James Eyerman, M.D., a staff psychiatrist at Napa State Hospital. Having personally examined defendant, Dr. Eyerman was of the opinion that defendant “still poses a risk of danger to others due to his history of violence and mental illness.” Defendant “has used a variety of drugs in the past,”