California Cases January 24, 2022: People v. Allen

Case Description

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. SC-035484A

BANKE, J.

Defendant Pamela Maria Allen appeals from orders extending her not guilty by reason of insanity commitment to Napa State Hospital for an additional two years under Penal Code section 1026.5, subdivision (b), and denying her petition for conditional release into a supervised outpatient program (CONREP) under Penal Code section 1026.2.

On appeal, her appellate counsel has filed an opening brief raising no arguable issues. Counsel asks this court to exercise its discretion to independently review the record ( People v. Wende (1979) 25 Cal.3d 436) or "at a minimum, to conduct the level of review prescribed for [Lanterman-Petris-Short Act] conservatees" in accordance with Conservatorship of Ben C . (2007)

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40 Cal.4th 529 ( Ben C .). Defendant was provided with a copy of the brief and informed of her right to file a supplemental brief; she has not done so.

As appellate counsel acknowledges, Wende review is only available in a first appeal of right from a criminal conviction. ( Ben C ., supra , 40 Cal.4th at pp. 543-544; People v. Serrano (2012) 211 Cal.App.4th 496, 501; People v. Taylor (2008) 160 Cal.App.4th 304, 312.) However, given the "private interests at stake" and the "restraints upon physical freedom and personal autonomy" at issue, we will proceed with a Wende review. ( Ben C ., at p. 545 (dis. opn. of George, C.J.), pp. 543-544, fn. 7.)

Upon independent review of the record, we find no arguable issues on appeal and affirm the orders.

BACKGROUND

In 1995, defendant was charged by information with two counts of assault with a deadly weapon by means of a firearm (§ 245, subd. (a)(2)), each with a firearm use allegation (12022.5, subd. (a)), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). Defendant pled no contest, with the stipulation that the court would find her not guilty by reason of insanity. The court committed her to the Department of State Hospitals, and her commitment has been extended for two-year periods under section 1026.5, subdivision (b) since that time.

A number of mental health professionals who treated or examined defendant testified at the jury trial on the two-year extension of commitment. Dr. Anita Sachdev, a staff psychiatrist at Napa State Hospital, has treated defendant since 2015. She testified defendant's diagnosis is schizoaffective disorder, bipolar type. Defendant has paranoid, delusional beliefs, is taking three different medications, and is housed in the most restrictive unit of the

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hospital. She opined defendant lacks insight into her mental illness and would pose a substantial danger of physical harm to others if released.

Dr. Jessica Gipson, a staff psychiatrist at Napa State Hospital, testified defendant has a history of "aggressive behavior, assaulting staff and other patients, verbal threats, sexually inappropriate behavior and rule-violating behavior." She opined defendant's risk for committing violence inside the hospital is low, but in the community is high.

At the time of trial, defendant was being medicated under an involuntary medication order after she stopped taking her medication and her delusions became more pronounced while awaiting trial in the San Mateo County Jail for Correctional Health.

In regard to defendant's suitability for CONREP, Dr. Kimberly Smith, a clinical psychologist who works with CONREP, opined defendant is not an appropriate candidate for the program. Dr. Smith testified defendant "remains psychotic, including delusions of a persecutory nature," and is not adequately participating in treatment.

Dr. Christopher Fisher, a forensic psychologist, testified defendant's "delusions are very prominent and are . . . the central feature of how she interacts with the world at this point in time." He also testified defendant's "past violence that directly came from her paranoid delusions . . . is one of those historical risk factors. . . ." Nevertheless, he opined that while defendant suffers from schizoaffective disorder bipolar type, he does not believe this makes her a serious danger to others.

Dr. Kimberly Kinnaird, a clinical psychologist, has treated defendant intermittently for 18 years. Although in 2019, Dr. Kinnaird reported defendant "posed a substantial risk of physical harm to others," she has changed her opinion based on defendant's physical health and use of a

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wheelchair. She testified "somebody who has declining health . . . just sort of physically can't, you know, do the motion of stabbing somebody or isn't sort of fast enough to get to the person. . . . [I]t does lower their risk." Dr. Kinnaird testified CONREP is not an appropriate program for defendant, but that "being in an apartment with her mom and having family around" would be adequate support. She opined that, based on defendant's declining physical health, and with the support of family to ensure medication compliance, defendant will not pose a substantial risk of harm to others.

Defendant testified, admitting she stabbed her sister, but felt remorseful. She also admitted shooting her father's friends because she thought they were giving him drugs but testified she "should have called the police and let the police handle it."

A jury found the allegations under section 1026.5, subdivision (b) true, and defendant's commitment was extended for two more years, until January 14, 2022. The court found defendant was "still a danger, cannot be successfully treated in the community," and denied her petition for conditional release.

DISCUSSION

Having reviewed the entire record, we conclude the order extending defendant's commitment for an additional two years is supported by substantial evidence, and the order denying her petition for conditional release is not an abuse of discretion. ( People v. Dobson (2008)

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161 Cal.App.4th 1422, 1433-1434; People v. Bowers (2006) 145 Cal.App.4th 870, 879.) Additionally, defendant was at all times ably represented by competent counsel who protected her rights and interests. Our independent review of the record discloses no arguable issue requiring further briefing.

DISPOSITION

The orders are affirmed.

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We concur: Humes, P.J. Margulies, J.

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Notes:

All further statutory references are to the Penal Code.

It is unfortunate the disposition of this appeal coincides with the end of the extended commitment. The trial commenced on May 3, 2021, after a number of continuances. Defendant filed a notice of appeal on June 4, 2021, but the record on appeal was not filed until September 27, with an augmented record filed on November 1. Defendant, in turn, did not file her opening brief until December 2. This court then informally treated the case as a priority matter.

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