P. v. Gauwain

Filed 11/29/05 P. v. Gauwain CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. PAUL GAUWAIN, Defendant and Appellant.

H027891 (Santa Clara County Super. Ct. No. 113483)

Paul Gauwain appeals from an order extending his involuntary psychiatric commitment pursuant to Penal Code section 2970. He contends that the evidence before the trial court was insufficient to support the requisite finding beyond a reasonable doubt that he “represents a substantial danger of physical harm to others . . . .” (Pen. Code, § 2972, subd. (c).) We conclude that the record contains substantial evidence in support of the challenged finding. Accordingly, we will affirm.

Background

It is alleged in the petition giving rise to the present order, and has not been disputed below or here, that in 1987 appellant was sentenced to six months in prison upon his conviction on two counts of lewd conduct with a minor in violation of Penal Code section 288, subdivision (a). He was admitted to Atascadero State Hospital in 1989, and remained there until 1996 as a mentally disordered offender. (See Pen. Code, §§ 2966, 2970.) His commitment was continued, with intervening transfers among state hospitals, until the present petition was filed. The petition alleged, substantially in the language of the governing statute, that appellant suffers from a severe mental disorder that has not been put in remission and cannot be kept in remission without continued treatment, and that by reason of this disorder he represents a substantial danger of physical harm to others.

Appellant waived a jury and the matter was tried to the court. The deputy district attorney called two witnesses, appellant and staff psychiatrist Javed Iqubal. The district attorney sought to prove two qualifying mental disorders, pedophilia and paranoid schizophrenia. It was not seriously contested that appellant suffers from the second disorder, although appellant denied it.[1] Counsel for appellant did contest the sufficiency of the evidence to show that appellant was presently suffering from pedophilia not in remission, and also contested its sufficiency to show that either condition made appellant a substantial danger of physical harm to others. The trial court appeared to agree that the evidence of current pedophilia was doubtful, but it found that appellant did pose a substantial danger to others by virtue of his schizophrenia, and sustained the petition on that basis. This timely appeal followed.

Discussion

Appellant challenges the sufficiency of the evidence to establish that, at the time of the hearing, he was suffering from pedophilia not in remission, and that he posed a substantial danger of physical harm to others. The first point appears to be moot because the court’s finding of another qualifying mental disorder, chronic schizophrenia of the paranoid type, is not disputed. Appellant suggests that the trial court should have dismissed the “portion of the petition” alleging that he suffered from pedophilia. No authority is cited for such a procedure, which would seem pointless where, as here, a second qualifying disorder is pleaded and proven. The challenge to the evidence of pedophilia thus appears entirely academic, and we decline to address it.

As for appellant’s challenge to the finding of dangerousness, the question on appeal is not whether we ourselves believe the finding was correct in fact but “ ‘whether, after viewing the evidence in the light most favorable to the [finding], any rational trier of fact could have found the [fact at issue] beyond a reasonable doubt.’ ” (People v. Holt (1997) 15 Cal.4th 619, 667, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) It is true that we cannot view the evidence favoring the judgment in isolation, but must “look[] to the whole record.” (People v. Holt, supra, 15 Cal.4th at p. 667.) But appellant has taken the opposite approach, conspicuously failing to acknowledge the evidence and inferences supporting the challenged order and instead emphasizing, almost exclusively, the evidence supporting a contrary finding. In an ordinary civil appeal this would effect a forfeiture of the evidentiary challenge and would, by itself, justify affirmance. (See Roemer v. Pappas (1988) 203 Cal.App.3d 201, 208.) We acknowledge, however, that the proceeding here is infused with many of the standards and protections of a criminal prosecution. For that reason we will reach the merits.

Nonetheless appellant’s argument cannot be sustained. To begin with, Dr. Iqubal flatly testified that in his opinion, appellant represented a substantial danger of physical harm to others “[d]ue to schizophrenia and his delusion[s] . . . .” To justify reversal, appellant would have to demonstrate that this testimony did not by itself constitute substantial evidence. Appellant attacks the opinion on the grounds that Dr. Iqubal had “no specific training in risk assessment” and “minimal personal contact with appellant.” The first point goes only to the weight of the opinion, a matter which is itself largely entrusted to the trial court. The second point also goes to weight, and in any event verges on misstating the record. The cited testimony states that appellant had been Dr. Iqubal’s patient since October 2003, a period of some 10 months at the time of his testimony. That exposure coupled with what we gather was a voluminous medical record was more than sufficient to support a sound professional judgment. Certainly there is no basis to conclude that the trial court could not find it so.

Next appellant mischaracterizes Dr. Iqubal’s opinion as based solely on the fact that appellant was “schizophrenic and delusional.” Immediately after the testimony cited by appellant, Dr. Iqubal went on to explain that appellant’s delusions were dangerous because they had played a direct role in the child molestation that had originally landed appellant in prison, and in his apparent continuing refusal to take responsibility for that conduct. Dr. Iqubal was referring to appellant’s statement in August 2003, as reported in the medical record, that the molestation “ ‘was commanded by God and [appellant’s] responsibility was to follow God’s order.’ ” In other words, as Dr. Iqubal put it, “God ha[d] told him to do that and he was following [that] order.” This was an instance of a “command hallucination,” i.e., “when you hear voices” that “are commanding you to do something . . . .” Dr. Iqubal’s opinion thus appears to rest in part on an eminently reasonable professional judgment that one who hears imaginary divine instructions to commit acts harmful to others, who has demonstrated a willingness to carry out such instructions, and who continues to believe years afterwards that the acts were divinely directed, poses a hazard to others.

Dr. Iquabal further explained that appellant had an ongoing “problem with . . . anger and . . . recent incidences of verbal abuse . . . .” Appellant fastens on the term “verbal abuse,” but the transcript shows more than vituperation; it shows several recent incidents where appellant issued actual threats of physical harm. The medical record refers to an incident in March 2004, when staff admonished appellant concerning some infraction involving cigarette butts, and appellant responded by telling them, “I will take down each one of you from the strongest to the weakest.” At that time his facial muscles were reportedly tense, his skin flushed, and his fists clenched. Another note alluded to an occasion, of which appellant had denied any memory in his own testimony, when he reportedly told a staff member that if he did not have a sound reason for his actions, “you will find yourself bleeding later on . . . .” A note from September 2003 referred to another incident, which appellant acknowledged in his testimony, when he threatened to “go prison mentality” on a staff member. Appellant translated this to mean, “mark[ing]” the staff member “for death.” He acknowledged that he had witnessed killings at Napa but denied that he was capable of doing that. Asked why he had made the statement, if that were so, he replied, “I don’t have to physically do anything” because “I have God on my side.” Again, it takes no expertise and little hard thinking to realize that one who believes God will wreak vengeance on his behalf, and who also believes he has committed harmful felonies on God’s instructions, is dangerous to others. Moreover, a November 2003 assessment referred to appellant’s placement in seclusion in March of that year for verbally abusing staff and stating, “I’ll kill you all.”

There is no suggestion on appeal that Dr. Iqubal could not properly rely upon these reports of outright threats. Appellant simply ignores their threatening tenor, characterizing them as “verbal outbursts” toward staff members. But Dr. Iqubal testified that even verbal abusiveness at a sufficiently heightened level “can lead to physical assault.” An example was an occasion in April 2004 when appellant “threw his G card at the staff when he was reminded to take his medication and he stated . . . , ‘Fuck you, idiot. You can suck my dick.’ ” Dr. Iqubal noted that these confrontations had taken place in a “structured” community, where appellant’s conduct was presumably constrained by the likelihood of immediate intervention were he to go beyond verbal abuse. If appellant were to go “out [into] the community,” Dr. Iqubal believed, he would “pose a danger to others.”

Appellant has failed to establish that the evidence before the trial court was insufficient to support the order under review.

Disposition

The order is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] Appellant testified that he did “[n]ot completely” agree that he suffered from schizophrenia, claiming instead to suffer from “a chemical imbalance” caused by surgery performed on his eyes in 1966 by a medical team associated with “a guy who says he’s my uncle” and who “paid for the surgery.” As a consequence of the surgery, he testified, “I have a shunt in my head to this day where the fluids behind my eyes drain down into my throat and into my stomach,” causing a chemical imbalance. He said that further surgery was scheduled to remove the shunt while he was in prison, but he “passed [it] up.” He could still have the shunt removed “at any time if I run into my uncle . . . .” Appellant occasionally wrote to the uncle, who responded by unusual means. For instance, he had “girls” show up at institutions where appellant was being held, masquerading as “psych[] techs,” to communicate with appellant. They did not actually tell appellant anything; he “had to figure it all out.” However they seemed capable of getting things done at his request: “[I]f I had ran [upon] one of these girls and said, hey, can you get this through? This is what I want done. Yes, it probably would have got done.” He was not sure that he wanted to have the shunt removed while he was in a mental hospital. The procedure would require him to quit smoking for a month and a half. Indeed, he found the thought of surgery “scary,” and might elect to “leave the tube that’s causing these problems in [his] head.”