People v. Pavelko

1

THE PEOPLE, Plaintiff and Respondent, v. VICTOR PAVELKO, Defendant and Appellant.

C096829

California Court of Appeals, Third District, Sacramento

January 23, 2024

NOT TO BE PUBLISHED

(Super. Ct. No. 04F09970)

Krause, J.

In 2005, the trial court found defendant Victor Pavelko not guilty by reason of insanity for three counts of assault with a deadly weapon (Pen. Code,^[1] § 245, subd (a)(1)) with one allegation of great bodily injury (§ 12022.7). As a result, he was committed to Napa State Hospital for a term not to exceed nine years. Thereafter, the People obtained further commitments of two years each (§ 1026.5, subd (b)) in 2013, 2015, 2017, and 2019.

In 2021, the People moved to extend defendant's commitment an additional two years (§ 1026.5, subd. (b)), which defendant opposed. Before trial, defendant moved for a conditional placement in an outpatient program (§ 1026.2). Because the People maintained that a trial on defendant's section 1026.2 petition could not occur until after the extension petition had been decided, defendant agreed to extend his commitment an additional two years (§ 1026.5, subd. (b)) to November 11 2023.^[2]

Following a bench trial during which both parties presented evidence and argument, the trial court denied defendant's petition. Defendant now appeals arguing the phrase "danger to the health and safety of others" in section 1026.2 is unconstitutionally vague and overbroad, requiring this court to interpret the proscription of dangerousness in section 1026.2 using the dangerousness standard embodied in section 1026.5, subdivision (b). Defendant reasons under this more stringent standard that the trial court abused its discretion in denying his petition because the evidence in the record does not show the required link between defendant's dangerousness and his: (1) schizophrenia; (2) substance abuse; or (3) lack of insight/failure to complete the Napa State Hospital's discharge unit level. We discern no abuse of discretion, and accordingly, we will affirm.

BACKGROUND

In 1980, defendant was diagnosed with schizophrenia at the age of 25. On November 13, 2004, defendant repeatedly stabbed his roommate and two other residents at a board and care facility where they lived. Responding authorities located defendant holding a knife, which he had used to stab the three victims multiple times. Defendant believed his roommate was "messing" with him by stealing his belongings and stabbed him nine times, including in the chest, arms, and base of the skull. Defendant failed to take his medication the day before because he was tired of waiting in line for it. He also drank alcohol before stabbing the victims. He believed his roommate had stolen $30 or $40 from him.

As noted, ante, defendant was found not guilty by reason of insanity of three counts of assault with a deadly weapon (§ 245, subd. (a)(1)) with one allegation of great bodily injury (§ 12022.7). He was committed to Napa State Hospital for a term not to exceed nine years. Thereafter, the People obtained orders extending his commitment to the hospital through November 2023.

A. Defendant's Evidence

Dr. Douglas Korpi, a forensic psychologist and former conditional release program (CONREP) administrator, testified as an expert in "NGI assessment" as to defendant's appropriateness as a candidate for CONREP. He was retained by defendant's attorney and evaluated defendant in 2017, 2019, and 2021, ultimately concluding defendant could be safely supervised by CONREP. In evaluating defendant's appropriateness, Dr. Korpi considered: (1) write-ups and violent behavior at the hospital; (2) medication compliance; (3) the use of as-needed medications; and (4) insightfulness concerning defendant's mental illness and associated triggers. Dr. Korpi described the first three considerations as "incredibly important," while insightfulness was preferred, but not required.

As to the first factor, defendant had not been in physical fights since his admission to the hospital, but he did hit a dentist's door in 2009 or 2010 seeking medication and had many documented instances of non-overt "agitation" and "anger" since 2010, which could suggest that he is not stable. Further, defendant had a few write-ups in 2017, one of which was for possessing marijuana, which was concerning because of defendant's history of substance abuse (specifically alcohol and methamphetamine use disorders in remission in a controlled environment). Given that the write-up was five years old, it was less concerning than it might have been, but it still showed defendant had not learned the lesson of taking only his prescribed medications and staying away from other drugs. Dr. Korpi opined that alcohol appeared "to have been a precursor to the criminal behavior in 2004."^[3] Further, because defendant was over 60 years old, he was much less likely to be violent.

As to the second factor, defendant was medication compliant, willingly taking clozapine. In fact, defendant's behavior was unusual because he "always ask[s] . . . for more and more and more. He wants to lay [sic] in bed and be zoned out." Because of defendant's desire for more medications, the staff "stopped giving him as-needed meds because he was always asking for them just because he wanted to sleep more." Even on medication, defendant continued to have breakthrough auditory hallucinations, but they were less frequent and intense. These voices "say mean things to him" and sometimes he hears "women screaming," which can make it hard to concentrate, but the voices do not appear to have ever made him violent or threatening.

Further, as to the third factor, defendant's seeking as-needed medications did not concern Dr. Korpi because those medicines would make him sleepier, which would not increase the likelihood of him stabbing anyone. Defendant did not need as-needed medications to keep him stable and was well controlled on his regimen of Clozapine and Depakote. Nonetheless, defendant admitted to Dr. Korpi he had used drugs and alcohol in the past in an attempt to self-medicate his depression and drugs/alcohol were more readily available should defendant decide to self-medicate while at the board and care facility. Dr. Korpi also acknowledged defendant had consistently sought to increase his prescription medication in 2019, 2020, and 2021.

Finally, concerning the fourth factor, defendant was not insightful because of his schizophrenia, cognitive impairment, and honesty, which kept him from parroting phrases which would make him appear "insightful." Defendant's preference for sedation over insight made him less safe than someone who had identified his or her triggers and had strategies to deal with them. Further, although defendant previously identified his paranoia as the underlying cause for the stabbing, he no longer held that belief.

If released, defendant would be placed in a board and care facility where he would have weekly group meetings and individual therapy, as well as monthly drug tests. He would see his psychiatrist every one to three months. Visits with mental health professionals would occur offsite. No one at the board and care facility is a mental health professional, but his drugs would be distributed to him daily. A board and care facility is "just a house," so security is not well maintained. Nonetheless, Dr. Korpi opined defendant would not present a risk of dangerousness if housed in a board and care facility because he has been stable and nonviolent at the hospital.

On cross-examination, Dr. Korpi conceded he had recommended release to CONREP in "the vast majority" of the section 1026.2 evaluations he had done in the past five years. Further, he acknowledged that one of the symptoms of schizophrenia is paranoia, and defendant's commitment offense included a belief his roommate was out to get him before stabbing him and two others who had intervened. While generally a loner at the hospital, at a board and care facility, defendant would be forced to interact with up to five roommates, with no professional onsite supervision. Finally, the kind of board and care facility defendant was seeking release into was exactly the kind of facility where he was housed when he stabbed his roommate.

B. The People's Evidence

Dr. Jennifer Warring, a psychologist at Napa State Hospital, explained the hospital's goal for patients found not guilty by reason of insanity is to restore them to sanity for a safe return to the community. To that end, patients entering the hospital move from the admission unit to a unit level where they are stabilized, then to a treatment unit, and finally to the discharge level unit. At the treatment phase, medication regimes are refined and individuals are allowed to have jobs. At the discharge phase, patients have good insight into their illnesses (including relapse risks), are refining their forensic relapse prevention plans, and are on stable medication regimens. While the hospital is a locked facility, patients in the treatment and discharge units are afforded more freedoms. Nonetheless, nurses, psychologists, doctors, and other necessary staff are all onsite and available to assist patients around the clock.

Dr. Warring had treated defendant for approximately six months and observed he attended groups, despite health difficulties,^[4] but was unable to complete the homework associated therewith. Defendant was housed in the treatment unit and to advance to the discharge unit level, he needed to participate more actively in groups and re-engage with the substance recovery group. Dr. Warring believed defendant was still dangerous.

Brittany Lopez, a forensic mental health specialist with Central Valley CONREP, evaluated defendant for his suitability for placement at a CONREP...