By Jamie Moddelmog
The trial of Vernon Earl Rubidoux commenced Friday morning with Judge Samuel T. McAdam presiding. Rubidoux had been charged with a crime in 2007 in which he threatened a civilian with a knife, and he had been found not guilty by reason of insanity. He is currently in a mental health facility and has reached the end of the maximum sentence available.
The People have requested an “extension of commitment,” maintaining that Mr. Rubidoux poses a substantial danger of physical harm to others as a result of a mental defect, disease or disorder. Under California jury instructions CALCRIM No. 3453 on extension of commitment, to be successful in gaining Mr. Rubidoux an extension of commitment, they must prove:
Element 1. He suffers from a mental disease, defect, or disorder
Element 2. As a result of his mental disease, defect, or disorder, he now poses a substantial danger of physical harm to others.
The day began by addressing the somewhat odd circumstances of the trial, one of which being the absence of the defendant. Mr. Rubidoux refused to show up for court, refusing transportation by the district attorney from the California State Prison-Sacramento (commonly referred to as SAC). His absence led the district attorney’s office to previously suggest forcibly removing him from SAC in order to have the defendant present for a jury trial, so that the jurors could view his demeanor. Mr. Rubidoux’s attorney, Chief Deputy Public Defender Allison Zuvela, did not want her client to be forcibly removed so, “as a strategic move,” she waived her client’s right to a jury trial. Because the client has refused to come into court, Ms. Zuvela said that he effectively handed over his waiver of a jury trial to her, citing the case People v. Tran from 2015 regarding required waivers of the right to jury trial. Judge McAdam agreed and the bench trial, with no defendant present, proceeded.
The first and only witness called by Deputy DA Deanna Hays was Silvia Torrez, a psychologist who works for the California Department of Corrections in the SAC prison. Her job title is “73.01 coordinator.” Ms. Hays asked her what a 73.01 was, and Torrez explained that a 73.01 was the name for individuals who have been found “not guilty due to insanity” and were later deemed too dangerous for hospitals, forcing them to be put into the psychiatric services unit of a state correctional facility. Mr. Rubidoux is one of 26 people in the State of California currently in this program. Torrez claimed her job was to write reports on the 73.01s, providing consultation for clinicians and a diagnosis of any mental health issues they have.
When writing her report on Mr. Rubidoux, who was referred to the California Department of Corrections in February of 2015 and arrived at SAC on August 16, 2015, she said she looked over documents from the hospitals at which he was previously treated, as well as reports from his previous prison sentences. She also interviewed him before writing the report. Based on her findings, she diagnosed him with “anti-social disorder” and “persecutory delusional disorder.” She defined anti-social disorder as a “pervasive pattern of the disregard of rights of others.” She defined delusional disorder as “always having delusions that people were out to get him.” His specific paranoia, as described by Ms. Torrez, is that “he believes he is a high priority ‘hit’ for the Hells Angels motorcycle gang.” Ms. Torrez admits that Mr. Rubidoux did in fact testify against one of the members of the Hells Angels in 1999, but claims that he has such a rigid, extreme belief that “everyone he meets is the Hells Angels” that he can be diagnosed with delusional disorder.
According to Ms. Torrez, Mr. Rubidoux was treated at three separate facilities. First, he went to the Napa State Hospital where he was given an Access 1 diagnosis (major mental illness), but they diagnosed him with a different mental illness than delusional disorder. He was then transferred to Atascadero State Hospital where he was not diagnosed with any major mental illness. Later he was transferred to the Patton psychiatric facility, where he was given differing diagnoses by different psychologists at the facility. He was diagnosed with delusional disorder by one doctor, just the ant-social disorder by another, and a third wrote that they should consider the possibility that he may have delusional disorder.
Ms. Torrez stated that, throughout Rubidoux’s roughly ten years in the three hospitals where he was treated, he displayed a pattern that led the hospitals and the director of all California prison systems to believe he was too dangerous to be treated at a hospital and should instead be given into the custody of the CDCR (California Department of Corrections and Rehabilitation). These patterns included assaulting, intimidating and threatening others, as well as having narcotics sent into the hospital. He also consistently claimed that hospital staff were members of the Hells Angels gang and vowed to escape from them, saying he would hurt anyone who got in his way.
He was constantly either restrained in his bed or accompanied by several “observers” following him around to make sure he didn’t hurt people. On April 10, 2015, he was involved in a physical altercation in the bathroom in which he seriously injured another patient. It was at that point that the Patton facility requested he be put in the 73.01 program, with the understanding that he would not be taken out of it until he no longer demonstrated those same behaviors and nor posed a threat to the safety of others.
After reviewing his records at other facilities, Ms. Torrez also interviewed Mr. Rubidoux when he came to SAC. She stated that during the interview Mr. Rubidoux told her that that he knew she was a part of the Hells Angels. He answered most of her questions with responses like “don’t play stupid,” and consistently called her a b—h throughout the interview. He claimed that he was not mentally ill, though he did acknowledge that he was anti-social, describing himself as a “malingerer” and “not caring what other people think about me.”
Torrez said that he has only had one incident since arriving at SAC, when he broke the rules by resisting a guard escorting him from his cell. Ms. Hays asked if that meant he was doing better, and Torrez responded that he was only doing better because he was in “the most restrictive setting possible in a maximum security prison.” He is held in an 8 by 12-foot concrete cell alone, and is escorted in handcuffs by several guards whenever he leaves. He must be contained inside a Plexiglas module whenever he meets with anyone.
To determine whether he was still a threat to others, Ms. Torrez claimed she wanted to have him go out in the general yard with the other prisoners. He refused, because he was concerned for his own safety, saying, “I’m a dead man if I go out there and you know that.”
Ms. Hays moved to have Ms. Torrez classified as an expert witness in diagnosing mental disorders. Ms. Zuvela objected to classifying Torrez as an expert, saying that only the “trier of fact,” meaning the judge in this case, could state whether or not Mr. Rubidoux was mentally ill. Judge McAdam agreed but stated that he would not come to a conclusion based on her opinion, only add weight to the fact that she was an expert in the field. Ms. Torrez was classified as an expert witness.
In her cross-examination, Ms. Zuvela asked Ms. Torrez whether she knew that the defendant had not been diagnosed with delusional disorder at the first two hospitals he has treated at. She said she was unaware of their diagnoses because she did not have access to those records. Zuvela also noted that his delusional disorder had only existed on paper for about a year, and asked, “So you don’t have to have this disorder for a long time to be considered a threat?” Ms. Torrez replied, “No.” Torrez also said that Rubidoux has demonstrated an inability to regulate his impulses for years, citing his past prison terms.
Ms. Torrez told Ms. Zuvela that Mr. Rubidoux was not attending the minimum 80 percent of his treatment required for eligibility to leave the CDCR, and he has not been able to demonstrate any improvements because he has had “very limited access to assault people,” due to his fear of leaving the psychiatric services unit. She claimed that they are not allowed to forcibly extract him and cited another individual who was kept in the psychiatric unit for nine years because of his refusal to leave.
Judge McAdam ruled in favor of the DA regarding element 2 of the jury instructions, stating that Ms. Hays had in fact proven beyond a reasonable doubt that Mr. Rubidoux posed a substantial danger of physical harm toward others. He hesitated in stating that he had a “mental disease, defect or disorder,” and asked if there was any specific definition. Ms. Hays told him that it was completely at his discretion to decide whether or not Mr. Rubidoux had a mental disease, defect or disorder, and that he should use the common meaning, because there is nothing more specific. In other words, she advised Judge McAdam to trust the diagnosis by professional psychiatrists.
Ms. Zuvela brought up the fact that, although Rubidoux had been diagnosed with delusional disorder by some medical professionals, he has, more the majority of the time, been diagnosed only with “anti-social disorder” by others, which is only an “Access 2” diagnosis. This is opposed to delusional disorder, an “Access 1” disorder, meaning “a major mental illness.” Ms. Zuvela advised the judge to only consider “Access 1” diagnoses when deciding whether or not Mr. Rubidoux suffered from a mental illness.
She also argued on the basis of a “gut feeling,” saying she “didn’t think it was right” to keep him in his current conditions. She said that he wasn’t even supposed to go to prison, he was supposed to get help, and now, because the psychiatrists treating him have decided that medication will not help, and he is not leaving his cell, he is receiving virtually no treatment, essentially receiving a prison sentence. She stated she did not want Rubidoux to end up like the man who spent nine years in the psychiatric facility.
Judge McAdam decided that he could not be restricted by “Access 1 or Access 2” diagnoses, that he must evaluate all evidence. He stated that Ms. Torrez had ample information and was very well informed. He said he also “gave great weight to the fact that she actually interviewed Mr. Rubidoux” before making a diagnosis.
He ruled that the state had met its burden on element 1 as well, having proven that Mr. Rubidoux did in fact have a mental disease, defect or disorder. He extended Rubidoux’s commitment for two more years, until May 1, 2018.
He also verified that the court is ordering that the prison staff provide treatment to Mr. Rubidoux and agreed that they are doing “all that they can.”
