People v. Phan CA6

Filed 10/29/13 P. v. Phan CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039246 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC242072)

v.

DILLON VAN PHAN,

Defendant and Appellant.

Defendant Dillon Van Phan appeals from an order extending his commitment as a mentally disordered offender (MDO) for another year pursuant to Penal Code sections 2970 and 2972.1 Defendant contends that no substantial evidence supports the trial court‟s finding that he continued to represent a substantial danger of physical harm to others, and that therefore the extension of his commitment violates due process. We disagree and will affirm the order extending defendant‟s commitment.

BACKGROUND On July 3, 2012, the District Attorney filed a petition to extend defendant‟s MDO commitment for one year. (See § 2970.) The petition alleged the following procedural history. In 2002, defendant committed battery with serious bodily injury (§ 243, subd. (d)) and injury to an elder causing death or great bodily injury (§ 368, subd. (b)(1)).

1 All further statutory references are to the Penal Code unless otherwise indicated.

Defendant was convicted of those offenses and sentenced to an eight-year prison term. He was admitted to Atascadero State Hospital in 2008 (see § 2684), and he was found to be an MDO (see § 2962) on January 28, 2009. Defendant‟s commitment was scheduled to expire on January 28, 2013. A bench trial was held on January 2, 2013. At trial, psychologist Kevin M. Perry, Ph.D., testified for the prosecution; defendant presented no witnesses. Dr. Perry noted that when conducting an MDO evaluation, he reviews a patient‟s medical and criminal records, interviews the patient, and talks to the patient‟s treatment team. Dr. Perry had interviewed defendant on May 31, 2012, and he had spoken with defendant again the week before trial. Dr. Perry provided his “understanding” of the facts underlying defendant‟s criminal offenses. Defendant “was on a public bus when he attacked a 77-year-old citizen. He kicked the citizen, the man fell to the ground and suffered a head injury as a result. [Defendant] continued to kick and strike the elderly victim while he was on the ground, and there didn‟t seem to be any provocation for that attack. They were strangers, according to the probation officer‟s report.” When questioned about the incident, defendant told Dr. Perry “that it was a case of mistaken identity; that he didn‟t do the crime.” Dr. Perry explained that defendant had been diagnosed with “schizophrenia disorganized type.” In Dr. Perry‟s opinion, defendant needed medication to treat his mental illness. However, defendant did not believe that he had a mental disorder, and he had been “refusing his medications for nearly the entire course of his treatment at the state hospital.” He had been medication-compliant only for a brief period in October and November of 2012. During that period, defendant was described in the medical records “as being more coherent and more logical in his speech” than “previously or since.” When Dr. Perry spoke with defendant on December 27, 2012, defendant was not taking his medication. Defendant presented with two kinds of symptoms. First, he had