Opinion
E078959
09-10-2024
THE PEOPLE, Plaintiff and Respondent, v. MARC ANTHONY ENDSLEY, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Felicity Senoski, and Tyler L. Krentz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. FSB07901, Lorenzo R. Balderrama, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Felicity Senoski, and Tyler L. Krentz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ, J.
Marc Anthony Endsley appeals from the denial of his petition for restoration of sanity under Penal Code section 1026.2. (Unlabeled statutory citations refer to the Penal Code.) The trial court denied the petition on the ground that Endsley failed to demonstrate that he would not "be a danger to the health and safety of others" if placed on outpatient status in San Bernardino County's conditional release program (CONREP) for "supervision and treatment in the community." (§ 1026.2, subd. (e).)
On appeal, Endsley argues that he has a First Amendment right to play violent video games while on conditional release and that the trial court committed reversible error by (1) failing to recognize that it had the authority to review CONREP's terms and conditions and to order that he be allowed to play violent video games, (2) denying his motion to represent himself at the outpatient placement hearing, and (3) failing to follow section 1026.2's local confinement procedures so that he could appear in person at the hearing. We conclude that Endsley's arguments lack merit, and we therefore affirm.
BACKGROUND
This is Endsley's third appeal from the denial of his petition for restoration of sanity under section 1026.2. We draw some of the factual and procedural background from our published opinions in his previous appeals-People v. Endsley (2016) 248 Cal.App.4th 110 (Endsley I) and People v. Endsley (2018) 28 Cal.App.5th 93 (Endsley II).
I. Initial commitment, revocation of outpatient status, and recommitment
In 1995, when Endsley was 24 years old, he killed his father by shooting him with a pistol five times at close range. He was found not guilty of first degree murder by reason of insanity and committed to the state hospital for a life term under section 1026. (Endsley I, supra, 248 Cal.App.4th at p. 115.) Endsley's primary diagnosis was major depressive disorder.
In 2012, Endsley was placed on outpatient status in CONREP. (§ 1026.3.) Several months into his placement, CONREP implemented a policy prohibiting violent media, including video games. On January 7, 2013, the trial court revoked Endsley's outpatient status (§ 1608) and recommitted him to the state hospital on the basis of reports that Endsley was angry about the new policy and was refusing to process his anger and violent ideations in therapy. (Endsley I, supra, 248 Cal.App.4th at p. 115.)
II. Prior proceedings on the current petition
In 2015, Endsley filed a petition for restoration of sanity, requesting conditional release and placement in outpatient treatment. (Endsley I, supra, 248 Cal.App.4th at p. 114.) The trial court denied the petition without a hearing, and Endsley appealed. (Ibid.) In Endsley I, we held that he was entitled to an outpatient placement hearing and that the trial court was required to obtain the recommendation of the state hospital's medical director before the hearing. (Id. at p. 115.) On remand, the trial court held the hearing and again denied the petition, this time on the basis of its finding that Endsley would be a danger to the health and safety of others if conditionally released for supervision and treatment in the community. (Endsley II, supra, 28 Cal.App.5th at p. 100.) Endsley once again appealed, and in Endsley II we held that the denial of his motion for an independent expert was reversible error. (Id. at p. 97.) This appeal involves the proceedings on remand from Endsley II.
III. Denial of the petition
Endsley's new outpatient placement hearing began on August 25, 2021. Endsley appeared by videoconference and testified in support of his petition. Endsley expressed his belief that CONREP had violated his constitutional rights by implementing the violent media policy (and thus restricting his access to video games) when he was an outpatient there in 2012. He said that, before his placement at CONREP, he used to play video games at the state hospital for about 16 hours per day without incident. He believed that playing video games helped him "manage [his] anger and frustration" and that he has a First Amendment right to play them.
Endsley said that after he expressed his anger about the policy and threatened to sue CONREP, staff began "badger[ing]" him with questions about whether he planned to act on his violent thoughts. He said that he found the questions so frustrating that he stopped answering them. He admitted that his relationship with CONREP has been "adversarial" ever since then. He said that he will not meet with anyone from CONREP, because he does not trust them to report his statements accurately.
When asked about violent thoughts that he had expressed to therapists in the past, Endsley said that he has violent ideations "against people who have wronged [him]" and that he would act on those impulses only if he felt "backed against the wall." He added, "I would not characterize myself as an aggressive person. I characterize myself as an assertive person who becomes aggressive when all other options fail."
Endsley testified that he killed his father as a reaction to being in an "abusive environment," and he agreed that CONREP created an abusive environment when it confiscated his video games "without any justification" and revoked his outpatient status when he "didn't do anything wrong." Endsley said that he would refuse placement at CONREP if he could not play violent video games as an outpatient.
Endsley denied that he suffered from a mental illness. He also admitted that he had not participated in treatment since his recommitment to the state hospital in 2013. He believed that treatment was no longer necessary and that his only problem was the infringement of his constitutional right to play video games. In his view, "the state of California has a perfectly sane person locked up in a mental hospital right now because he will not agree to not play video games."
The People presented the opinions of two psychologists, both of whom recommended against conditional release. Dr. Camille Morgan, a psychologist for the state hospital, believed that Endsley posed a moderate to high risk of future violence "if released to the community under CONREP supervision." Dr. Melanie Cleary, a psychologist for CONREP, believed that Endsley lacked an "awareness of his need for continued mental health treatment," which she viewed as a fundamental prerequisite for outpatient treatment.
According to the psychologists' reports that were introduced into evidence, Endsley's major depressive disorder was in full remission, and his current diagnosis was an "other specified" personality disorder with obsessive-compulsive and narcissistic features. Those features manifested as a preoccupation with rules, a sense of entitlement, and a lack of empathy. The reports observed that since his recommitment to the state hospital in 2013, Endsley had refused to participate in treatment and had engaged in a pattern of violent behavior toward patients and hospital staff.
For example, in April 2016, Endsley wrote a letter to the program director and hospital staff at Napa State Hospital (where he is currently committed), informing them of his decision to refuse treatment and warning them that he would defend himself if they tried to get him to attend group therapy. He wrote, "If you don't believe me, check my chart, I have priors. If the situation escalates from there, well, so be it. Just understand that if anyone should put their hands on me, I'll consider anything after that self-defense. I'm done being the State's bitch." In January 2019, he verbally assaulted and threw a shoe at another patient. In March 2019, he wrote a letter to his treatment team, reiterating his refusal to engage in treatment and stating, "Leave me alone. It's no great secret that I don't want to talk since the whole Xbox thing, but that was just the straw that broke the camel's back. . . . I hate Napa, and I'm done here. . . . All of my problems at this point are legal, not psychiatric. . . . Being angry is not a mental illness." In September 2019, when a psychiatrist asked Endsley to stop playing a game on the television, he charged at the psychiatrist, tried to punch him, and had to be restrained until additional staff arrived. The next day, Endsley punched another patient in the face.
In her report, Dr. Morgan recounted an interview she conducted with Endsley in January 2021, during which he refused to develop a relapse prevention plan. Endsley said that his "plan" was to "sue the shit out of CONREP" and that "nothing would make [him] happier than imprisoning them." He said that the only reason he had sought conditional release was to be able to play video games, and if he cannot play them at CONREP then "there [is] no point." Endsley also said that killing his father "took a great weight off [his] chest" and that he continues to consider the act "cathartic." Dr. Morgan reported that she had submitted Endsley's case file to the state hospital's review panel, and the panel concurred in her assessment of his risk of future violence.
Dr. Morgan and Dr. Cleary testified at the hearing in support of their recommendations against conditional release. Dr. Morgan said that Endsley posed a danger to others if placed on outpatient status because "violence continues to be a method that he believes could be [accept]able" in response to perceived violations of his rights. Dr. Cleary testified that Endsley's failure to develop a relapse prevention plan was a "major concern" because he "has proven that he's capable of severe violence." She also said that Endsley's outpatient status was not revoked because he disagreed with CONREP's violent media policy or was angry about the policy; it was revoked because he refused to "engage in a meaningful or collaborative, protective conversation with the treatment team."
On March 29, 2022, the trial court issued its ruling denying the petition. Noting Endsley's violent and aggressive behavior since his last hearing and his continued refusal to accept the diagnosis and treatment of mental health professionals, the court found that he "lacks any insight that the rules and treatment apply to him." The court also found that Endsley "cannot improve his mental functioning unless he submits to treatment" and that "he needs more treatment at the state hospital." On the basis of those findings, the court concluded that Endsley "has not carried his burden of proof" and that he would "be a danger to others including himself if under the supervision of and treatment of CONREP in the community."
DISCUSSION
Endsley raises four arguments for reversing the order denying his petition. We conclude that each one lacks merit.
I. Restoration of sanity under section 1026.2
A person who has been found not guilty by reason of insanity (NGI) and committed to a state hospital may apply to the superior court for release from commitment "upon the ground that sanity has been restored." (§ 1026.2, subd. (a).) This is a "two-step process initiated when either the NGI or the person in charge of their treatment petitions the court for release." (Endsley II, supra, 28 Cal.App.5th at p. 101.)
This case involves the first step, in which the court must hold a hearing (commonly referred to as the outpatient placement hearing) to determine whether the applicant "would be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community."(§ 1026.2, subd. (e); see generally People v. Dobson (2008) 161 Cal.App.4th 1422, 1432 (Dobson).) If the court finds the applicant would not be dangerous under supervision and treatment in the community, then "the court shall order the applicant placed with an appropriate forensic conditional release program for one year." (§ 1026.2, subd. (e).)
Because the longest term of imprisonment for Endsley's offense of first degree murder is imprisonment for life (§ 190, subd. (a)), "restoration of sanity under section 1026.2 is [his] only route to release." (Endsley II, supra, 28 Cal.App.5th at p. 101.)
The applicant bears "the burden of proof by a preponderance of the evidence" at the outpatient placement hearing. (§ 1026.2, subd. (k).) Upon the denial of a petition for restoration of sanity, the applicant must wait one year before filing a new petition. (§ 1026.2, subd. (j).)
"We review the trial court's determination for an abuse of discretion, drawing every reasonable inference in favor of the trial court's determination." (Dobson, supra, 161 Cal.App.4th at p. 1434.)
II. CONREP's policy concerning violent media
Endsley argues that the violent media policy that CONREP implemented when he was placed there in 2012 violated his First Amendment right to play violent video games. He further contends that the trial court's failure to invalidate the policy was prejudicial because "[a]bsent the rule prohibiting [him] from playing video games, the trial court likely would have determined that [he] could be safely placed in CONREP."
We agree with the People that Endsley is collaterally estopped from challenging the policy on this appeal. Collateral estoppel bars a party from relitigating a claim that has already been decided. (People v. Barragan (2004) 32 Cal.4th 236, 253.) The doctrine applies if "(1) [a] claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding." (Ibid.)
As the People correctly point out, Endsley previously litigated and lost his challenge to CONREP's policy in federal court. In Endsley v. California (C.D.Cal., Oct. 16, 2014) 2014 WL 5335857, Endsley challenged the constitutionality of Atascadero State Hospital's prohibition against video games, and the district court dismissed the challenge for failure to state a claim. (Id. at p. *3.) The district court also issued an order declaring Endsley to be a vexatious litigant, concluding that his previous filings were "both numerous and meritless, often focusing on his disagreement with his institution's policies regarding laptop computers and videogames." (Id. at pp. *1, *5-*6 ["the Court has repeatedly explained to [Endsley] that the conditions of confinement typically at issue in his actions, including restrictions on the possession of electronic devices such as game stations, do not violate the Constitution"]; see also Endsley v. California ex rel. Brown (9th Cir. 2015) 627 Fed.Appx. 644, 645 [affirming the district court's vexation litigant determination].) Among the examples of previous filings that the court cited was the case of Marc Anthony Lowell Endsley v. The State of California, Case No. EDCV 13- 1971 UA (SS), in which the court concluded that Endsley's "alleged violations of the First Amendment . . . due to restrictions on his videogame ownership while he was an out-patient in California's Conditional Release Program [CONREP]" failed to state a claim. (Id. at p. *6.) Because Endsley has already litigated and lost his constitutional challenge in federal court, he is precluded from raising it again.
But even if Endsley were not collaterally estopped from asserting his challenge, we would nevertheless conclude that it fails on the merits, because he provides no authority for his assertion that he has a First Amendment right to play violent video games. His reliance on Brown v. Entertainment Merchants Assn. (2011) 564 U.S. 786 is misplaced because that case concerned software companies' First Amendment right to create, publish, and distribute violent video games, not an inmate's or involuntary civil committee's right to play violent video games. (Id. at p. 788.) Endsley also provides no authority for his assertion that CONREP's policy should be subject to strict scrutiny. His claim that CONREP must demonstrate a compelling state interest to justify its decision to ban violent media runs contrary to the "'well-established'" principle "that when an individual is confined in a state institution, individual liberties must be balanced against the interests of the institution in preventing the individual from harming himself or others residing or working in the institution.'" (In re Qawi (2004) 32 Cal.4th 1, 16, quoting Jurasek v. Utah State Hospital (10th Cir. 1998) 158 F.3d 506, 510.) We therefore reject Endsley's contention that the trial court's failure to invalidate CONREP's violent media policy warrants reversal.
III. Failure to set terms and conditions of release
In a related argument, Endsley contends that the trial court abused its discretion by failing to "recognize[] that it had the authority to set the terms and conditions of [his] conditional release" and therefore could order that he be allowed to play violent video games at CONREP. He argues that the error was prejudicial because if the trial court had known that it could make such an order, then it was "very likely" that the trial court would have determined that he could be safely placed in CONREP.
Endsley's contention fails because the record does not support the conclusion that it was reasonably probable (let alone "very likely") that the outcome of the hearing would have been more favorable to him if the court recognized that it could order that he be allowed to play violent video games at CONREP. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The record contains ample evidence that Endsley would be a danger to the health and safety of others if placed on outpatient status, regardless of whether he would be allowed to play violent video games at CONREP, and the record contains no meaningful contrary evidence. The People's medical experts recommended against conditional release, and it was uncontroverted that Endsley denied having a mental illness, had not participated in treatment since January 2013, and continued to engage in violent behavior. On this record, there is no reasonable probability that the court would have granted Endsley's petition if the court had believed that it could order CONREP to allow Endsley to play violent video games on conditional release.
IV. Motion for self-representation
Before the outpatient placement hearing, Endsley filed a motion for self-representation under Faretta v. California (1975) 422 U.S. 806, arguing that the Sixth Amendment guaranteed him the right to represent himself. After a hearing, the trial court denied the motion, concluding that Endsley's personality disorder and fixation on CONREP's violent media policy rendered him incompetent under the standard articulated in People v. Johnson (2012) 53 Cal.4th 519, 530. Endsley argues that reversal is required because the trial court's ruling is not supported by the record. We disagree.
Endsley acknowledges on appeal that he does not have a constitutional right to represent himself at the outpatient placement hearing. (See People v. Williams (2003) 110 Cal.App.4th 1577, 1588 [there is no constitutional right to self-representation at commitment proceedings under the Mentally Disordered Offenders Act because the proceedings "are not punitive in nature"]; People v. Fraser (2006) 138 Cal.App.4th 1430, 1446 [the same holding applies to commitment proceedings under the Sexually Violent Predators Act].) Endsley also acknowledges that "section 1026.2 does not specifically provide" NGIs with the right to counsel. He argues, however, that a statutory right to counsel (and corresponding right to self-representation) is implied because "section 1026.2, subdivision (b) appears to assume that the [applicant] will have an attorney."
We need not decide whether section 1026.2 provides a right to self-representation or whether that right was violated, because any such error was harmless. To demonstrate prejudice, Endsley must show that "it is reasonably probable that a result more favorable to [him] would have been reached" had he represented himself. (Watson, supra, 46 Cal.2d at p. 836; see also People v. Lewis (2021) 11 Cal.5th 952, 957 [when the right to counsel arises from a state statute, the Watson prejudice standard applies].) Given his own statements at the hearing, Endsley cannot carry that burden.
Endsley told the court that he wanted to represent himself because his appointed counsel "didn't want to present" his "[pos]ition that video games are [his] constitutional right." Endsley said that, if allowed to represent himself, he would litigate his constitutional challenge to CONREP's violent media policy by giving "CONREP every opportunity to get on the witness stand . . . and make their argument for why [I] specifically . . . shouldn't be allowed to play video games." In Endsley's view, his entire case hinges on the legal issue of whether CONREP is allowed to restrict his access to violent video games. Because Endsley is barred by collateral estoppel from relitigating that issue and because Endsley made clear that he planned to focus on it if permitted to represent himself, it is not reasonably probable that he would have obtained a more favorable result had the court granted his motion to represent himself. V. Appearance by videoconference
Because Endsley told the trial court what his litigation strategy would be, we reject his assertion that it is impossible to evaluate the harm caused by the court's denial of his motion and that we should therefore consider the error to be structural.
Endsley argues that the trial court committed reversible error by failing to follow the local confinement procedures in section 1026.2, subdivisions (b) and (c), to facilitate his in-person appearance at the hearing. Again, we disagree.
A. Additional background
In February 2019, CONREP's community program director submitted a letter to the court recommending that Endsley either be temporarily confined at the San Bernardino County jail during his outpatient placement hearing or be permitted to testify "via videoconference" from Napa State Hospital. The director stated that he had confirmed with the jail's healthcare provider that the jail had procedures in place "to determine [Endsley's] proper placement and continuity of care."
In response, Endsley filed a motion objecting to jail as an appropriate local confinement facility and requesting that the trial court hold an evidentiary hearing at which the community program director must "support [his] placement recommendation with facts and reason." The People opposed the motion. After a hearing, the trial court denied the motion on the ground that section 1026.2 did not require the community program director to justify his recommendation at an evidentiary hearing.
The matter of Endsley's appearance was not revisited until August 9, 2021. After denying Endsley's motion for self-representation, the court told him, "the good thing for you is I'm letting you appear by video. [¶] I'm not going to bring you down to the county jail to participate in this hearing or refer the matter to the community program director to see where they will []place you." Endsley did not object. Both he and his counsel appeared at the hearing via videoconference.
B. Relevant law
Section 1026.2 sets forth procedures for "designat[ing] a facility within a reasonable distance from the court in which the [NGI] may be detained pending the hearing on the application for release." (§ 1026.2, subd. (b).) Subdivision (b) of section 1026.2 provides: "Pending the hearing, the medical director . . . shall prepare a summary of the person's programs of treatment and shall forward the summary to the community program director . . . and to the court. The community program director . . . shall review the summary and shall designate a facility within a reasonable distance from the court in which the person may be detained pending the hearing on the application for release. The facility so designated shall continue the program of treatment, shall provide adequate security, and shall, to the greatest extent possible, minimize interference with the person's program of treatment." (§ 1026.2, subd. (b).) Subdivision (c) of section 1026.2 states that "a county jail may not be designated" as the temporary local confinement facility "unless" the jail can provide the NGI's programs of treatment, as well as "accommodations . . . which ensure both the safety of the [NGI] and the safety of the general population of the jail." (§ 1026.2, subd. (c).) The provision also authorizes the trial court to order the NGI transferred out of jail to a different facility "[i]f there is evidence that" those two conditions are not being satisfied. (Ibid.)
C. Analysis
Endsley argues that the court abused its discretion by failing to follow those statutory procedures and oversee the designation of a local confinement facility for him, other than the San Bernardino County jail. He contends that the error was prejudicial because it "deprived [him] of the opportunity to appear in person to testify," and there is a "reasonable probability" that his testimony "might have been more convincing in person." We are not persuaded.
First, the issue is forfeited because Endsley did not request to appear in person. '"No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" (People v. Harrison (2013) 57 Cal.4th 1211, 1229 [applying forfeiture rule to involuntary commitment proceedings under the Mentally Disordered Offender Act].) Endsley did not object to CONREP's recommendation that he be allowed to appear remotely via videoconference, and he also did not object to the court's ruling that he could appear remotely. Instead, by remaining silent when the court indicated that it was ruling in his favor by allowing him to appear remotely, he allowed the court to believe that it was accommodating his preference. The court's belief was reasonable, given that Endsley had previously expressed his preference to appear remotely (by telephone) at the hearing that was the subject of Endsley II. (See Endsley II, supra, 28 Cal.App.5th at p. 100 [trial court denied Endsley's request to appear by telephone because the request was opposed].) If the court's belief was mistaken, it was incumbent on Endsley to say so. Because he did not, and because he did not thereafter request to be transferred to a local confinement facility, he forfeited his challenge.
Second, Endsley cannot demonstrate prejudice on this record. The trial court's basis for denying the petition was not that it found Endsley not credible. On the contrary, Endsley's testimony provided some of the strongest evidence to support the denial of his petition. He admitted that he had not participated in treatment for several years, that he believed that he did not have a mental illness, that his relationship with CONREP was adversarial, and that he viewed violence as an acceptable response to perceived wrongs when all other options fail. The court apparently credited Endsley's testimony on all of those points, at least as an honest expression of his beliefs. Endsley does not identify any portion of his testimony that would have increased the likelihood of a more favorable result if an in-person appearance had made the testimony "more convincing." He therefore has not shown that the trial court's failure to arrange for him to appear in person was prejudicial.
Endsley also asserts that the failure to arrange for him to appear in person "should be per se prejudicial." But he cites no authority for that claim and presents no argument in support of it, so we need not address it. (See, e.g., People v. Anderson (2007) 152 Cal.App.4th 919, 929 ["A point not argued or supported by citation to authority is forfeited"].)
DISPOSITION
The order denying Endsley's petition under section 1026.2 is affirmed.
We concur: MILLER, Acting P. J., CODRINGTON, J.