People v. McCaleb CA1/1

Filed 3/20/14 P. v. McCaleb CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Petitioner and Respondent, A138845 v. JAMES EDWARD McCALEB, (Contra Costa County Super. Ct. No. 20386) Respondent and Appellant.

In this case, appellant contests the order of the Contra Costa Superior Court re- committing him under Penal Code section 1026.5. This appeal is authorized under Penal Code section 1237, subdivision (b). Counsel has been appointed for appellant and she has reviewed the record before submitting her brief. She indicates she has found “no arguable issues to be pursued on appeal.” (See Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544.) She has provided this court with a narrative of the facts germane to the legal issues in the case. Finally, she has provided the conservatee with a copy of this brief and he has been informed of the right to file a supplemental brief. He has not done so. We have reviewed the case and find no basis for disturbing the order of the trial court. STATEMENT OF THE CASE On December 14, 2012, the District Attorney of Contra Costa County filed a petition to recommit appellant under Penal Code section 1026.5. Appellant’s commitment was scheduled to expire on December 22, 2012. Each side waived a jury

1

trial on the matter. The case of the district attorney consisted of the testimony of two forensic experts. Appellant presented no evidence and did not testify himself. On May 9, 2013 the court sustained the petition and re-committed appellant for another two years, through December 22, 2014. On May 28, 2013, appellant filed his notice of appeal. STATEMENT OF FACTS In February 1977, appellant robbed the concession stand of a drive-in theater and shot out the windows with a BB or pellet gun. It appears the appellant was under the influence of alcohol at the time of the act, as well as possible illegal drugs. He also indicated he was hearing voices and acting under a delusion related to the KKK. Later on, appellant could not provide a coherent statement regarding his behavior; only to acknowledge ingestion of alcohol and drugs at the time of the offense. He was charged with a violation of Penal Code section 211 (robbery) and section 245, subdivision (a) (assault with a deadly weapon). Appellant was found not guilty by reason of insanity for each offense. Appellant was committed to the Department of Mental Health after being found not guilty by reason of insanity in May 1977. He was discharged to CONREP (Conditional Release Program) in 1987 and in 1993 but quickly failed the CONREP program each time. At the trial, Dr. William Cirimele, staff psychologist at Napa State Hospital, testified he was appellant’s treating psychologist from March 1, 2012 to February 28, 2013. However, Dr. Cirimele had limited contact with appellant because the patient refused to attend group therapy. The doctor conceded appellant attended interdisciplinary team meetings. Appellant is currently a resident of the most restrictive unit at the hospital, which is a closed and locked section. Only if the patient becomes involved in his appropriate treatment plan can he work his way out of the unit. Cirimele diagnosed the appellant as having paranoid schizophrenia; it is in a moderate-to-severe state complicated by symptoms of disorganized thoughts and 2