People v. Short CA1/5

Filed 7/23/14 P. v. Short CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 5

THE PEOPLE, Plaintiff and Respondent, A138706 v. JAMES ERIC SHORT, (Solano County Super. Ct. No. VC43525) Defendant and Appellant.

James Short appeals from a judgment extending his commitment to a state hospital for two years under Penal Code section 1026.5.1 At trial, a jury found in favor of the extension, based on a psychologist’s expert opinion that due to his mental illness, Short poses a substantial danger of physical harm to others. Short contends that neither this finding, nor the requisite showing that he has serious difficulty in controlling potentially dangerous behavior, is supported by substantial evidence. We reject his arguments and affirm. FACTUAL AND PROCEDURAL BACKGROUND In 1998, Short entered a plea of no contest to terrorist threats (§ 422) and false imprisonment by violence (§ 236). Pursuant to a negotiated agreement, the court found him not guilty by reason of insanity, and, under section 1026.5, he was committed to a state hospital for a maximum term of seven years. After Short served the full term, his commitment was extended four times. The Solano County District Attorney then moved

1 All further undesignated code references are to the Penal Code.

1

to extend the commitment a fifth time in 2013. Sandy Folker, Psy.D., a Napa State Hospital psychologist, was the only witness at trial. Folker testified, inter alia, Short has schizoaffective disorder and had undergone a standardized violence risk assessment. After the jury found in favor of the extension, Short filed a timely notice of appeal. DISCUSSION In reviewing appeals challenging the sufficiency of evidence to extend a section 1026.5 commitment, “ ‘ “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[, subdivision ](b)(1) beyond a reasonable doubt. [Citations.]” [Citation.]’ [Citation.] A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878–879.) Expert testimony is considered substantial evidence if it is supported by “relevant, probative” facts and reasoning, rather than “ ‘guess, surmise or conjecture.’ ” (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1168.) Under section 1026.5, subdivision (a)(1), a person committed to a state hospital after being found not guilty by reason of insanity may be kept in custody no longer than the maximum term of commitment. However, if that person committed a felony and represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder, then the prosecuting attorney may file for a two-year commitment extension. (§1026.5, subd. (b)(1), (2) & (8).) Our Supreme Court has determined civil commitments for juvenile sex offenders constitute a significant deprivation of liberty (In re Howard N. (2005) 35 Cal.4th 117, 127–128); as a due process protection, the scheme for extensions of such commitments “should be interpreted to contain a requirement of serious difficulty in controlling dangerous behavior” (id. at p. 132). This standard has been held to apply also to extensions under section 1026.5. (People v. Galindo (2006) 142 Cal.App.4th 531, 537.) Thus, the prosecutor in this case had to establish that because