AARON, J.
Welfare and Institutions Code section 8103, subdivision (f)(1)
After his involuntary hospitalization in a mental health facility pursuant to section 5150, Andrew B. (Andrew) filed a request for relief from the section 8103, subdivision (f)(1) firearm prohibition. The trial court denied the petition, finding that the People had carried their burden of establishing that Andrew would not be likely to use firearms in a safe and lawful manner. On appeal, Andrew contends that there is not substantial evidence in the record to support the trial court's denial. Although the evidence was far from overwhelming, we conclude that there is substantial evidence to support the trial court's ruling, and we therefore affirm the order.
The Chief Executive Officer (CEO) of the company for which Andrew worked called police after learning that Andrew had posted certain photographs and messages on Facebook. The posts included photographs of firearms and other posts with messages stating, among other things, "Keep Calm and Kill Everyone," and "I Love Saint Valentine's Day. Best. Massacre. Ever." (Some capitalization omitted.) The CEO explained that she had known Andrew since he was three years old, and described him as "very antisocial, [and] always nervous." Another of Andrew's coworkers informed police that Andrew was "highly antisocial."
After police detained and interviewed Andrew, an officer took him to a hospital for a psychiatric evaluation and mental health treatment pursuant to section 5150. A staff psychiatrist at the hospital assessed Andrew and determined that it was appropriate to involuntarily admit him to the hospital. (§§ 5151, 5152.) After his admission, the doctors hospitalized Andrew for approximately two days before releasing him.
A few days after his release, Andrew filed a request for hearing for relief from the section 8103, subdivision (f)(1) firearm prohibition, pursuant to section 8103, subdivision (f)(5). In April 2018, Andrew filed a supporting memorandum of points and authorities.
Andrew argued that the CEO's statement that he was antisocial was "false and prejudicial" and that a similar statement from another of his coworkers was "not supported by any evidence or facts." In support of these statements, Andrew offered numerous letters from other coworkers in which they described him as friendly and sociable.
Andrew further argued that medical evaluations performed during his involuntary hospitalization "confirm the lack of `any' evidence [that he] presents a danger to others." (Capitalization and boldface omitted.) In support of this contention, Andrew noted that the admission evaluation from a staff psychiatrist stated that Andrew appeared "open, cooperative and friendly" and that he did not appear to be psychotic or intoxicated.
Andrew also pointed out that a discharge note from another staff psychologist stated, "We do not have any evidence that [Andrew] presents an acute danger to himself or others." In addition, Andrew quoted the following portion of the discharge note, which indicated that Andrew did not appear to suffer from any mental illness and that Andrew's Facebook posts were not particularly concerning:
In June 2018, the trial court held a joint hearing on Andrew's request for relief under section 8103, subdivision (f)(5) and the City's section 8102 petition. (See fn. 2, ante.)
At the outset of the hearing, the City, Andrew, and the People all stipulated to the admission of a series of exhibits. The exhibits included the following evidence.
After obtaining a warrant, police searched Andrew's residence and found 14 firearms, hundreds of rounds of ammunition, shooting targets, and several Airsoft weapons.
Several of Andrew's medical records reflected that he was a subject of a pending rape investigation.
San Diego County Psychiatric Hospital staff psychiatrist, Dr. Izhak Fridman, stated the following in his admission note:
Dr. McLay's discharge note states:
Dr. Fridman's admission note states:
Dr. Fridman also stated that Andrew's brother had called hospital staff and had stated following about that incident:
Dr. McLay's discharge note states:
Dr. McLay's note also stated that police had verified that Andrew had no arrest history and that Andrew had provided an explanation of the encounter that was supported by a news video related to the event:
Finally, Dr. McLay's note states the following with respect to this issue:
Andrew's Facebook page included photographs of rifles, handguns, and ammunition. In addition, his Facebook page included a post containing a picture of a mask with the words, "Keep Calm and Kill Everyone," underneath the mask. (Some capitalization omitted.) Another portion of the page contained a post with a picture of a cat that appeared to be frowning and the message, "I love Saint Valentine's day. Best. Massacre. Ever." (Some capitalization omitted.) One photograph depicted a black box with the words "Not Legal in California and w/high capacity magazine," printed on what appears to be a sticker on the box.
Andrew worked as a mailroom clerk. The CEO of the company for which Andrew had worked for approximately 15 years told police that she had known Andrew since he was a small child. The CEO told also police that Andrew was "very antisocial, always nervous and [that he] has trouble speaking." The CEO recalled an incident during which Andrew had become angry with her after she had hired an employee who had been in jail. The CEO stated that during this incident, Andrew "became red in his face and yelled at [the CEO]." The CEO also stated that, if she were to have to fire Andrew, she would be scared because he always appeared angry or upset. The CEO also reported that Andrew had been working from his residence for some time, but that he had been brought back to work in the office because he was not keeping up with his workload.
One of Andrew's coworkers described him as "highly antisocial," and stated that she "does not talk to him much." This coworker explained that she had been discussing the Florida high school shooting with another coworker, who showed her the images on Andrew's Facebook page described in part II.C.1.e, ante. The coworker who had been shown the images subsequently informed a human resources representative about Andrew's Facebook page, and the human resources representative in turn informed the CEO.
Andrew submitted numerous character letters, many from his coworkers, which attested to his friendly, outgoing, and caring personality.
Andrew's brother reported to Dr. Fridman that Andrew had suffered from a speech impediment that caused him to be "picked on as a child." Andrew also acknowledged to Dr. Fridman that he had gotten into "frequent fights as a child." More recent stressors included the death of his mother, which had occurred the previous year, and the ongoing rape investigation. A medical record from Andrew's hospitalization entitled "Activity Therapy Assessment," states, "[Andrew [endorsed] feeling depression." However, Dr. McLay stated that Andrew denied "feeling consistently sad or depressed."
Dr. McLay's discharge note stated that doctors had recommended that Andrew "follow up for outpatient psychotherapy." Dr. McLay also stated that Andrew had said that he was "willing to engage in exploratory psychotherapy, which should help him if there are any underlying issues."
At the hearing, Andrew testified that he had an interest in firearms. Andrew also discussed his Facebook posts in detail, explaining that the "Keep Calm and Kill Everyone," (some capitalization omitted) image was a meme that he found on the Internet and that he reposted it on "[e]very Friday the 13th," because it was a reference to a popular horror film. Andrew provided a similar explanation for the Valentine's Day Massacre post, explaining that it was a "picture of grumpy cat," and contained a reference to an historical event in which "Al Capone sent . . . four of his men after Bugs Moran's men." Andrew considered the post to be a joke. He also explained that he had posted the Valentine's Day Massacre meme on the morning of the Florida school shooting, before the shooting had occurred, and that he did not intend for the post to provide any support for the shooting. The parties stipulated that Andrew would provide similar testimony with respect to the other images that he had posted on his Facebook page.
Andrew also testified that he had never received any formal discipline from his employer, and that he had formed many friendships with coworkers. Andrew also stated that he had never threatened the CEO or anyone else at his workplace
Andrew's coworker, Victor Reyes, testified that Andrew is friendly, that he is not antisocial, and that he had never behaved in a manner that caused Reyes any concern.
The People did not provide any live testimony and did not cross-examine any of Andrew's witnesses.
Andrew's counsel argued that there was no evidence in the record that Andrew suffered from any mental illness. Andrew's counsel further contended, "They [the doctors in Andrew's medical records] make claims that he's been charged in the past . . . that [Andrew] has been charged with a 417, brandishing of a firearm. The facts don't support that. In fact, they support that [Andrew] lawfully stopped a fleeing felon. There's news articles that are referenced in both the medical examination reports. They looked it up, checked it out, and they confirmed that."
Counsel further argued that the Facebook posts had not constituted a sufficient basis to hospitalize Andrew, given that he had merely reposted a reference to a movie. Counsel continued by arguing that the People had "offered zero evidence whatsoever that [Andrew] has ever [misused] a firearm, has ever had an accidental discharge, has ever threatened anyone with a firearm." Finally, counsel maintained that Andrew was not "liable for people's irrational fear of guns," adding, "If he posts a picture of a gun and someone considers that scary, that's their problem."
The prosecutor argued that Andrew's medical records established that he "endorsed feeling depressed." The prosecutor pointed out that Andrew had "indicated . . . that he would follow up with psychiatrists after his release from his involuntary hospitalization but that there was no evidence that Andrew had sought additional mental health care since his release. Thus, the prosecutor maintained, "there's no evidence before the Court that his mental state is one that he would not be a danger to himself or others." The People added:
The prosecutor argued that Andrew presented a "recipe for disaster," given "his lack of insight."
In rebuttal, Andrew's counsel reiterated his argument that there was "absolutely zero evidence that he's going to be a danger to others or getting back his right to own a firearm will endanger others."
At the conclusion of the hearing, the trial court denied the petition, ruling:
Andrew appeals from the trial court's order denying his request for relief from the section 8103, subdivision (f)(1), (6) firearm prohibition.
Andrew claims that "[n]o substantial evidence exists to support the trial court's denial of [his] [section] 8103 petition." (Boldface omitted.)
Section 8103, subdivision (f)(1) provides:
Section 8103, subdivision (f)(5) provides that a person may seek relief from this prohibition and specifies the procedures pursuant to which a trial court is to determine whether to order such relief. The statute provides in relevant part:
Section 8103, subdivision (f)(6) specifies that "[t]he People shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner."
In Mary H., supra, 5 Cal.App.5th at page 261, the Court of Appeal outlined how the deferential "substantial evidence" standard of review is to be applied in reviewing a trial court's denial of a section 8103 petition:
As stated in the introduction of this opinion, the evidence that Andrew would not be likely to use firearms in "in a safe and lawful manner" was, in our view, far from overwhelming. (§ 8103, subd. (f)(6).) However, we cannot say that there is not substantial evidence in the record from which the trial court could have reached such a finding. In particular, we observe that Dr. Fridman stated in his admission note that Andrew "discharged a firearm in his backyard as the police were knocking on his door." While Andrew contends that this statement is "unsupported by the record," the record includes Dr. Fridman's note. (See also § 8130, subd. (5) ["The district attorney may notify the county behavioral health director of the hearing who shall provide information about the detention of the person that may be relevant to the court and shall file that information with the superior court"].)
Moreover, while Andrew asserts in his brief that Dr. Fridman's statement is "false," and contends in his brief that the incident "never happened," (italics omitted) Andrew was not asked a single question about the incident during the hearing. Assertions in briefing are not evidence. (See e.g., York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1190-1191 [assertions of counsel are not evidence].) In short, the only evidence in the record about this incident are the two statements in Andrew's medical records indicating that he discharged a firearm in his backyard as police approached his residence. (See pt. II.C.1.c., ante.)
Similarly, while the evidence in the record is equivocal with respect to whether Andrew was previously charged with brandishing a weapon, there is evidence in the record from which a trial court could reasonably have determined that Andrew had in fact been charged with this offense.
In addition to these statements about Andrew's past use of firearms, the trial court could have reasonably found that Andrew was presently facing a number of stressful life situations, including undisputed evidence that Andrew was the subject of a pending rape investigation and that he had recently suffered the loss of a parent and "the death[s] of other friends." The court also could have reasonably considered undisputed evidence that Andrew had engaged in physical violence in the past and could have inferred that such violence was related to prior stressful challenges that he was facing at the time.
There was also evidence from which the trial court could have found that Andrew was depressed, and there was no evidence that Andrew had followed through on a doctor's recommendation to begin psychotherapy. In addition, while the evidence of Andrew's temperament at work was equivocal, there is evidence in the record both that he had angrily yelled at the CEO and that at least some coworkers viewed him as antisocial and were afraid of him. There also is evidence that Andrew had previously been permitted to work from home for reasons that appear to have been related to his workplace disposition.
In sum, while there is certainly contrary evidence in the record that would have supported the trial court granting Andrew's petition, we conclude that the trial court could have reasonably found that the People carried their burden of proving, by a mere preponderance of the evidence,
In reaching this conclusion, we emphasize that the applicable standard of review requires that we affirm if there exists "substantial evidence" supporting the trial court's finding, even in cases where "the reviewing justices personally would have ruled differently had they presided over the proceedings below." (Mary H., supra, 5 Cal.App.5th at page 262.)
The order denying Andrew's request for relief from the section 8103, subdivision (f)(1), (6) firearm prohibition is affirmed. Andrew is to bear costs on appeal.
BENKE, Acting P. J. and DATO, J., concurs.
In March 2018, the City of San Diego (City) filed a petition to retain and destroy Andrew's firearms pursuant to section 8102. The trial court held a joint hearing on Andrew's request for relief under section 8103, subdivision (f)(5) and the City's section 8102 petition. After denying Andrew's petition, the court dismissed the City's petition as moot. Thereafter, Andrew's counsel requested that Andrew be allowed to sell his firearms to "an FFL [federal firearms license] [holder] and to reduce his costs rather than destroy the firearm[s] as it is an option under [section] 8102." After determining that the City had no objection, the trial court granted Andrew's request.
The trial court's ruling on the section 8102 petition is not before this court. We refer to the briefing and proceedings on the City's section 8102 petition only insofar as they are relevant to this appeal.
In his brief on appeal, Andrew requests that we take judicial notice of the timing of the Florida shooting in relation to his post. A request for judicial notice must be made by way of separate motion. (See Cal. Rules of Court, rule 8.252(a)(1).) Thus, Andrew's request is procedurally improper. In any event, we deny Andrew's request as moot given that it is undisputed that Andrew made the post prior to the shooting.
Andrew's May 2013 employee performance review indicated that Andrew's title at that time was "Claims Clerk." The review also stated that Andrew was "currently working from home," and remarked that, "[w]hen he comes to the office, he looks happier and is open to suggestions given by Supervisor." The evaluation also stated that Andrew "has adjusted well to working from home." However, the evaluation indicated that while Andrew's demeanor and his interactions with coworkers had improved, he still had room to improve with respect to his interpersonal skills with customers:
In addition, the evaluation stated, "There has been significant improvement in his interactions with coworkers. He enjoys working from home and this has made a big difference the times he is in the office."
