P. v.Voishvillo CA2/6

Filed 4/22/13 P. v.Voishvillo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B242862 (Super. Ct. No. 1253306) Plaintiff and Respondent, (Santa Barbara County)

v.

ANDREI VOISHVILLO,

Defendant and Appellant.

Andrei Voishvillo appeals a judgment extending his commitment to the State Department of State Hospitals (SDSH) for treatment as a mentally disordered offender (MDO) (Pen. Code, §§ 2962, 2970), following his 2008 conviction for battery by gassing (§ 243.9).1 We conclude, among other things, that: 1) substantial evidence supports the finding that Voishvillo suffers from a severe mental disorder, and 2) Voishvillo has not shown that the trial court misunderstood the People's burden of proof. We affirm. FACTS In 2008, Voishvillo pled guilty to one count of battery by gassing. He was sentenced to two years in state prison. In 2009, the Board of Parole Hearings (BPH) determined that he met the requirements for commitment for treatment as an MDO. He

1 All statutory references are to the Penal Code.

received treatment at the Atascadero State Hospital (ASH) and his commitment was extended. On November 21, 2011, the ASH medical director notified the Santa Barbara County District Attorney that Voishvillo's "severe mental disorder is not in remission and cannot be kept in remission" unless his treatment is continued. On December 12, 2011, the district attorney filed a petition requesting the superior court to extend Voishvillo's commitment as an MDO. (§ 2970.) At trial, Brandi Matthews, a psychologist at ASH, testified that Voishvillo suffers from "schizophrenia, paranoid type," a severe mental disorder which is not in remission. Voishvillo represents "a substantial danger of physical harm to others." He hears voices and is "experiencing paranoia that's at a psychotic level." He believed "staff was trying to kill him." He was "delusional." He claimed someone was "banging [his] wife," but he was never married. Matthews said, "He has had multiple incidents of engaging in violent behavior." Voishvillo had physically attacked hospital staff and needed to be restrained. Matthews said that "[e]ven when [Voishvillo] is medicated, he [has] a history of engaging in violent behavior." Voishvillo also has Asperger's, a developmental disorder, which would not qualify as a severe mental disorder. But his "history of exhibiting psychotic symptoms" goes "far beyond" Asperger's. His behavior from 2008 shows symptoms of schizophrenia. In the defense case, Jessica Mosich, an ASH psychologist, testified Voishvillo's "case is very complex." Voishvillo has Asperger's. Mosich said, "He scored high in the same subtests that other people with Asperger's typically score high in, and low in the subtests that people with Asperger's typically score low in." On cross-examination, she said Voishvillo's treatment team in February 2012 diagnosed him with "schizophrenia paranoid type." The prosecutor asked, "[Y]ou haven't reviewed all of the material necessary in order to really determine whether Mr. Voishvillo does not suffer from schizophrenia, isn't that true?" Mosich: "I haven't