Opinion
D057219 Super. Ct. No. MH64508
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE HARPER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Margie Woods, Judge. Affirmed.
Brian Harper appeals from a judgment extending his civil commitment as a mentally disordered sex offender (MDSO). He argues: (1) he did not receive a fair trial because the trial was not delayed when he told the court he was physically ill; (2) the trial court erred in failing to instruct the jury on the requirement that he have serious difficulty in controlling his sexually dangerous behavior; and (3) there is insufficient evidence to support the control impairment requirement. We conclude the court erred in rejecting Harper's request for an instruction on the control impairment requirement, but find the error was not prejudicial. We reject Harper's other contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1981, Harper was convicted of a lewd act offense, and that same year was found to be an MDSO and committed to Patton State Mental Hospital (Patton). He has been civilly committed since that time. In September 2009, the People filed a petition to extend Harper's commitment for another two years. After hearing testimony from two medical professionals, Harper, and Harper's mother, the jury found that Harper (now age 54) met the requirements to qualify as an MDSO. Based on this finding, the court granted the People's petition to extend his commitment.
Medical Experts' Summation of Harper's Background and of Reports from His Treatment Providers
To assist with the determination of whether Harper's commitment should be extended, two mental health professionals (psychiatrist David Naimark and psychologist Phillip Kaushall) interviewed Harper and reviewed the medical and legal records setting forth his history. Summarizing the information in his records, the doctors explained that Harper's lewd act offense occurred in 1980, when, at age 23, he molested a four-year-old girl (B) who lived in the home where he was staying. Harper placed his hand over the girl's vaginal area and inserted his finger into her vagina (either outside or inside her underwear). He stopped this behavior when the boyfriend of the girl's mother came into the room and saw what he was doing. Harper had a history of substance abuse and mental illness; he was under the care of a psychiatrist; and he was experiencing symptoms of his mental illness at the time of the offense.
After his arrest for the lewd act offense, Harper told the police that he was "turned on" by B; he touched her "in the place where little kids . . . get their rocks off"; he believed B liked the conduct; and when he was interrupted he went to the bathroom and masturbated because it was so stimulating. Harper told the authorities that B was being abused; God told him he should help her; and he thought if he had a sexual interaction with her it would help her. Harper also disclosed that when he was 12 years old he had on multiple occasions engaged in similar sexual activity with his four-year-old stepsister, and he thought his stepsister enjoyed the activity.
Harper was diagnosed with schizophrenia, pedophilia and polysubstance dependence. Drs. Naimark and Kaushall testified that schizophrenia is a major mental illness that creates thought disorganization, delusions and hallucinations. The illness may not be continually active; however, it does not go away and requires a lifetime of treatment and ongoing medical management. The treatment generally requires medication, and the medication has to be taken regularly to manage the illness. Symptoms of schizophrenia can persist even with medication. Pedophilia is a sexual disorder which makes the individual attracted to prepubescent children; the disorder tends to be chronic and usually does not go away, but it can be controlled with therapy and drugs.
Harper's records showed that during his years of civil commitment, he made varying statements concerning his sexual misconduct. In a written statement submitted to probation, he stated that he felt "very bad" because he may have affected B in a way that may hurt her in the future. In treatment, sometimes he admitted that he placed his finger in the child's vagina, and other times he denied this. At times he said it was alright to have sex with children if they wanted to and he expressed no remorse about the incident; other times he said having sex with children was not alright, he might have harmed the child, and he expressed remorse.
During his civil commitment, Harper repeatedly referred to his sexual thoughts about underage girls. In 1989, he acknowledged that he liked underage girls sexually. In 1993, he stated that when he masturbated he fantasized about rubbing the girl's vagina because it gave him "a little bit of a spark," and that when he thought about children he could ejaculate more quickly. However, Harper told his treatment providers that he did not believe he was a pedophile, explaining that out of 6,000 times that he masturbated, only six to 10 of those times involved a fantasy of child molestation.
In 1995, Patton staff removed Harper's pedophilia diagnosis. In 1999, he was sent from Patton to a less restrictive (but still locked) facility at Sylmar Rehabilitation Center (Sylmar) as part of a conditional release program, and in 2001 and 2002 Sylmar recommended that he be placed in outpatient treatment. However, in 2005 while at Sylmar he was observed masturbating in his room under a blanket while watching television shows involving children. During this time period he said that he had molested his four-year-old stepsister because he "was horny"; she "turn[ed] [him] on"; and "she wasn't that attractive but he didn't care because that was what he wanted to do." At some point his pedophilia diagnosis was reinstated and he was never released to an outpatient program. In 2007, he was reported to be minimizing his propensity to sexualize children.
The reasons for this change in diagnosis are not revealed in the record provided on appeal.
In August 2008 Sylmar staff reported that he was doing well at the facility. He had good insight into his mental illness; he was attending substance abuse and sex offender therapy; he was discussing his crime more honestly and openly; he expressed deep remorse for his crime; and he had a well-articulated relapse prevention plan. Nevertheless, his treatment team concluded that although he was doing well, his condition was cyclical and they believed he still represented a danger to himself and the community if he was released without the structure and supervision that he was being provided.
By October 2008 Harper had decompensated and he was returned to Patton. He was noncompliant with his medications and treatment; he was argumentative and stubborn and his behavior was not under control; he was having sexual fantasies about female children; he was unwilling to continue treatment if released into the community; and he did not believe he should register as a sex offender. In November 2008, he stated that when he was masturbating he at times had fantasies about his stepsister. In 2009, he continued to report to his treatment team that he had sexual fantasies about underage females; he stated these fantasies were pleasant but he knew they were inappropriate; and he said he would not act on them. He told staff that some of his issues were because he had been molested at age five while with a babysitter.
The reports prepared by his treatment providers in 2009 stated that he at times acknowledged that he had schizophrenia, but he did not believe he needed his medication and was refusing to take it; he refused to go to treatment; he was not willing to accept clinical support and supervision; he wanted to be released directly into the community without having to go through the conditional release program; he could not articulate a relapse prevention plan and claimed his symptoms would never return; he was verbally aggressive towards staff; and he had intermittent anxiety and paranoia. His treatment team was concerned that he had limited insight into his illness and his need for treatment; they doubted he would complete a relapse prevention plan; and they concluded he remained a danger to himself and others and he could not be treated safely in the community.
Harper had an extensive history of alcohol and drug use. He started using LSD at age 12, and his biggest drug usage was in his 20's. He had used LSD about 30 or 40 times, and he had also used marijuana, heroin, cocaine, and PCP. In 1989, Harper told a psychiatrist that he would potentially "slit the throat of a therapist" to get drugs. In the 1990's he used methamphetamine while at Patton, and alcohol use has been an active issue throughout his treatment. In 1991 he overdosed on an antianxiety medication which required hospitalization. Up until 1995 he told his treatment team that he craved drugs and alcohol. In 2000 while at Sylmar he obtained alcohol and drank so much that he threw up, explaining that he had an "unbelievable craving" for it. He had participated in extensive substance abuse programs at Patton; however, in 2009 he told his treatment team that he did not have a substance abuse problem and he refused to go to treatment.
Medical Experts' Conclusions
Based on their review of Harper's records and their interviews with him, the People's medical experts (Drs. Naimark and Kaushall) presented their opinions about his condition and whether he qualified as an MDSO. The doctors stated that Harper's pedophilia was the nonexclusive type because there were indications he had a sexual interest in adults as well. Dr. Naimark testified that his history demonstrated a sexual preoccupation with children, and his sexual offense was at least in part caused by his schizophrenia because schizophrenics tend to act out based on their preoccupations. Dr. Kaushall stated that because of Harper's "polymorphis" sexuality, he appeared to be an "opportunistic" type pedophile, meaning that he might not actively seek out children for sexual activity, but he would have sex with an adult or child whenever the opportunity was there.
Harper stated that he had a sexual relationship with a girlfriend at Patton; he wanted medication that would improve his libido because he wanted to have "multiple girlfriends" and "lots of sexual activity"; most recently he had sexual fantasies about men and was an "undercover gay"; and his preferred reading material was sexual magazines.
Dr. Kaushall testified that Harper's medical records revealed that his delusional behavior was fairly consistent over the years even though he had been treated with medication. During their interviews with Harper, both doctors observed that he exhibited signs of psychosis, including disorganized, incoherent, and tangential speech; profanity; talk about getting poisoned in the street; and a "labile" mood varying between being on the verge of tears and being angry.
When interviewed by Dr. Naimark, Harper acknowledged that he had schizophrenia, but stated he eventually wanted to be off all medication. He acknowledged to Dr. Kaushall that he had sexual fantasies about underage females, but claimed he was not a pedophile. He told the doctors that his offense was a one-time thing; it would not happen again; it was due to his mental health problem; and a lot of his problems were because of an incident where he had to orally copulate a man. He told Dr. Naimark that he did not believe he hurt anyone, whereas with Dr. Kaushall he broke down crying and said he knew he hurt the victim. He stated to Dr. Kaushall that he did not need treatment and he should not be classified as a sex offender because he was not going to do it again. He told Dr. Naimark that he did not want to engage in sex offender treatment at Patton because he knew too many people from his earlier periods there and he would be "physically and psychological F'd" if he had to participate.
He told Dr. Kaushall that he had fantasies about 13- and 14-year-old girls, and infrequently about girls as young as four years old.
Regarding his substance abuse, Harper stated to Dr. Kaushall that he did not need treatment for this because he was not addicted to anything. He told Dr. Naimark that he no longer wanted to use drugs but he wanted to use alcohol "a little bit" to help him relax; it was "BS" that he was not supposed to drink anymore; and he wanted to take medications that were "cross-tolerant" with alcohol.
Drs. Naimark and Kaushall concluded that Harper still qualified as an MDSO because he suffered from a mental disorder that created a substantial danger that he would molest a child if released. The doctors cited a variety of factors to explain their conclusion, including that Harper had a sexual preoccupation with children and still suffered from pedophilia; he still suffered from schizophrenia, was mentally unstable, and remained psychotic; his offense was to some degree caused by his psychosis along with his sexual attraction to children; he had little insight into his conduct, his illness, and his past alcohol and drug use; he did not want to participate in treatment or take medication; he wanted to continue to drink; and he could not provide a relapse prevention plan or identify warning signs of his illness.
Dr. Naimark noted that Harper was not cooperating with treatment in a controlled environment, and this noncompliance could also be present or even escalate in a less controlled environment. The doctors stated that his untreated schizophrenia could fuel his pedophilic tendencies because as he decompensated and became more disorganized in his thinking, this would disinhibit his sexual tendencies and make him more likely to express his pedophilia.
The doctor stated that although Harper's polysubstance dependence was in remission, this was because he was in a controlled environment. He was not able to see how drug and alcohol use could exacerbate his mental illness, and because he did not acknowledge his addiction chances were high that he would become re-addicted if released. If he were to return to substance abuse, this would increase the likelihood that he would commit a sex offense because it could exacerbate his schizophrenia and cause disinhibition, which could cause him to act out on his sexual attraction to children. Harper was unable to articulate a relapse prevention plan to Drs. Naimark and Kaushall, and the doctors concluded he would not be able to complete one. Harper stated that he had his mother and girlfriend for community support; however, his girlfriend was at Patton, and it did not appear that his mother could control him if he became a problem.
Dr. Kaushall testified that Harper did not explain how he planned not to act on his sexual fantasies with girls, but "just swore that he wouldn't." When Dr. Naimark asked him to identify warning signs suggesting that he was getting ill, he responded that being under lots of stress would be a sign, but he then became disjointed and started talking about enjoying DVD's, hearing voices, and being raped.
Testimony from Harper and his Mother
Called to testify by the People, Harper acknowledged his sexual activity with his stepsister and B. He stated he now knew it could hurt a child for life, that it was "definitely wrong" and "terrible," and he felt bad about it. He identified various factors that led to his misconduct, including that he was ill; he was molested when he was five years old; he was afraid of social situations with girls and could not have a relationship; he did not know that sex hurt children; and at the time of the offense against B he had the hallucination in which God told him it would help her to have sexual contact with her.
Harper claimed that he rubbed B on her vagina but that he never digitally penetrated her or his stepsister. He testified that at the time of his offense he knew B's parents would not like his conduct and it was illegal, but he thought rubbing a child would not hurt them although penetration would. When questioned about his statement during a recorded police interview that he had digitally penetrated B, he testified that the statement was fabricated by the officer.
Harper denied making many of the statements claimed by his treatment providers, and stated they were lying about him to keep him confined. However, he acknowledged he had sexual fantasies involving children when he masturbated, but stated they were infrequent and the last time he had one was about four or five months earlier. He testified he had not really wanted to engage in sexual fantasies involving underage girls, but he had to because he was having difficulty reaching an orgasm; he tried fantasies with women but they did not work; and he knew that fantasy would not hurt a child. He stated he needed these fantasies because the medication he was forced to take hurt his sex drive and prevented his body from getting stimulated. He said that he also enjoyed sexual fantasies about grown women; when he developed a close relationship with a girlfriend at Patton she was his only sexual fantasy; and he wanted a devoted relationship with a woman.
Harper testified that notwithstanding his fantasies involving children, he would not act on them; he did not feel like having sexual contact with a child; he did not want to go out and touch a child; and when he went on supervised field trips with Sylmar staff he was not attracted to the children he saw out in public. He knew he would not reoffend if released because at the time of his offense he did not know how to have a relationship with a woman; he did not know his offense would hurt the child; he did not know about the guilt; and he did not know the public wanted to kill him for his sex crime.
Harper testified he knew he was a sex offender and he knew he was labeled a pedophile in 1981. However, in 1995 medical professionals concluded his original diagnosis was incorrect and he was not a pedophile. He said that in 2000 a psychologist at Sylmar "unjustly" suggested he was a pedophile based on a statement he made about his stepsister, but he did not think he was a pedophile. He stated he was not opposed to going to sex offender treatment; he would register as a sex offender and would attend sex offender treatment in the community; but he did not want to be in the sex offender program at Patton. He explained that he liked the sex offender group at Sylmar that he started attending in 2005, but he did not want to attend the sex offender program at Patton because the people he knew there for many years were not aware of his offense, and for them to know he was a sex offender would "tear [him] apart inside." He also stated he was afraid of being "beat up" if he attended Patton's sex offender program.
When asked what he had learned in his sex offender treatment program at Sylmar, he stated that he appreciated the warmth of the counselors who accepted him as an individual with the offense he had committed; he learned coping skills like "take it easy, take vacations, take care of yourself"; and he participated in role plays such as how he would react if he was walking down the street and a man made an abusive comment to a woman. He did not think he needed additional sex offender treatment at Patton because he had spoken with therapists about his sex offense and his problems; they had worked on his thoughts and feelings and did not need to go any deeper; and he did not think he was a pedophile.
When asked if he thought he had schizophrenia, he said he was not denying it, but his condition may be drug induced rather than from a chemical imbalance, and other factors may also have caused it, such as when he was forced to orally copulate a male. He stated that currently he was on an extremely low dosage of medication for schizophrenia, and he had "never blanketly said" he would stop taking medication. He explained he wanted to lower his medication, and he wanted to "have a chance" in a supervised environment of taking himself completely off medication to see if he needed it, and if he did need it, he would "gladly take it for life." He testified that when he returned to Patton last year he got his medication lowered for the first time; he and his parents saw a marked improvement in his condition; and he asked the doctor to lower it some more but the doctor refused. Because his doctor refused to lower his medication gradually, he was "forced" to go off his medication all at once, which he knew was not good for him and which "fucked [his] world up." At first he felt better than he ever felt in his life, but he was unable to sleep for almost 11 days. He stated that he would take his medication if released. Harper testified he would not return to using drugs if he were released, and he would attend substance abuse treatment in the community. However, he stated that he thought he should be allowed to have a few beers if he went off all medication and was not hallucinating or experiencing any symptoms of schizophrenia.
Harper testified that if he felt like he was going to commit an offense, he would contact his mother or the authorities and have himself committed for a period of time. He had developed a relapse prevention plan for schizophrenia and substance abuse, which consisted of knowing the warning signs and triggers, having coping skills, and having a list of phone numbers of people to contact if he started getting sick. He testified that he has never felt a warning sign in his body of wanting to go out and touch a child, and he has not written a relapse prevention plan for his sex offense but he could do that. He stated that he knew God would never tell him to touch a child; he would rather die than commit his offense again; and he should be locked up for life if he reoffended with a child. He stated that if he was released and he sold the book he was planning to write and became famous, he wanted to help the world, including working with children who were disabled or burned or who had very bad diseases.
When asked if he thought he would become friends with children when he was released, he answered that right now he would say he hopes not. He then talked about children in hospitals, saying that he saw them right now laying in hospitals; the children can see him and his thoughts; he wishes he would care; they can see the world speaking to him; he feels that they have spoken to him; it seems like he would be giving them care and they can relate to that; and maybe they are his friends already.
Harper and his mother (June Harper) testified that if he was released, their plan was that he would at first be voluntarily placed in a locked facility at Sharp Mesa Vista Hospital (Sharp). Mrs. Harper had frequent contact with her son, and she stated that if he is on the right medication (which he has been for a long time), he is "fine." She did not think he was a pedophile; she noted that a Patton social worker stated he was misdiagnosed; and she was not worried that he would reoffend because he had had extensive counseling and he knew he could not be around children without proper supervision.
Mrs. Harper stated her son needed a conservatorship and to be in a supervised program. She did not want her son released to "walk[] the streets by himself," and he could not live with her because she could not supervise him and handle his medication properly. She had contacted Sharp, which had an inpatient treatment program (including sex offender treatment), and which she estimated would take about one to four years. She had also looked into supervised board and care facilities where he could live after the hospital program, and contacted a sex offender treatment program in the community. She was willing to pay for the sex offender program, and Harper said he would attend.
Mrs. Harper felt that her son would be safe in the community if he had a conservatorship and was stabilized on his medication. She acknowledged that Harper had told people (including her) that he would not take medication if released, but she believed that if he wanted some level of freedom he would take his medication and attend treatment programs.
Harper concurred with his mother's plan, testifying that he wanted to be placed in a locked facility, like at Sharp, where he could be extensively evaluated to ensure that he was safe to society. He did not want to return to Patton to develop a sex offender relapse prevention plan, stating that his mother had arranged for him to go to a locked facility; he was willing to wear a tracking device; he wanted expert doctors; he would not leave the locked facility until his doctors said he was well enough to go; and he could then go to a board and care facility and, if they wanted, they could give him sex offender treatment.
Jury Verdict and Recommitment Order
The jury made true findings on the allegations that Harper had committed a qualifying offense; that he suffers from a mental disease; and that as a result of this mental condition he is predisposed to commit sexual offenses to such a degree that he presents a substantial danger of bodily harm to others. Based on the jury's findings, the trial court extended his commitment for another two years.
DISCUSSION
I. Failure to Delay Trial Due to Illness
Harper argues that he was deprived of a fair trial, and his counsel was ineffective, because on the second day of testimony (April 6, 2010) the trial proceeded even though he was too ill to fully assist in his defense or testify coherently.
Background
During pretrial proceedings on March 30, April 1, and prior to witness testimony on April 5, Harper told the court he had some health problems, including that he was weak because he had not been allowed to take a walk since January 1, and his health was bad because he had been forced to take medication for 30 years. He asked to be moved from the detention center in South Bay to the downtown jail's psychiatric unit so he would not have to get up at 3:30 or 4:00 a.m. and would not have to stay for several hours in a cold cell. The court stated it would recommend that he be placed at the downtown jail. During the witness testimony on April 5, Harper made no further health complaints, and he frequently interjected comments about what the witnesses were saying, at one point stating that he could not "wait to get on the stand."
The court and counsel apparently tolerated Harper's ongoing vocal comments during the testimony due to his mental illness.
On the second day of testimony on April 6, Harper was not wearing civilian clothing. He told the court that he was too ill to put on his court clothes; he had a severe headache; and that Tylenol would solve the problem. Harper's counsel stated that she believed Harper was saying he was too ill to proceed that morning. Harper responded to this, saying, "No. I will proceed. I'm going to honestly do the best I can. But I need Tylenol. And, hopefully, I'm well enough." (Italics added.) The court stated that during the break the bailiff would contact his superiors to get Tylenol, but Harper might have to wait until lunch to get the medicine, and the court would do its best to see that he felt more comfortable. Harper again declined to change his clothes, saying he was too ill.
Harper elaborated on his health problems, stating: "I was very ill when I got up this morning and I felt like I was going to—I was passing out on the bus on the way here last week. And I was sick all day. I got back. I was promised medical attention the whole time I was here or see a nurse. And then I threw up. [¶] . . . I can't really put on my [court clothes] . . . I need to get better. [¶] I haven't been able to take a walk since January 1st. My body is so weak. I'm getting ill that way." He also told the court he had not been able to brush his teeth that morning and his mouth was terrible, and he had asked for Tylenol but had not been provided it.
During this colloquy, Harper stated they gave him eggs and his mouth tasted bad; he felt "like crap"; and they told him he would not have to come to court. The court asked if he was ready to change his clothes, Harper responded, "No. I'm too ill. [¶] Judge, this has been . . . bullshit since the start." The court told Harper that profanity was not allowed. Harper said he did not know that "bullshit" was profane, and reiterated, "I don't want to change my clothes. I'm too ill." The court stated they would continue with the trial; the bailiff would request the Tylenol during the break; and Harper could have some water to clean his mouth.
During witness testimony on the morning of April 6, Harper again repeatedly spoke out loud about his reactions to what the witnesses were saying, including making clarifying comments and correcting what he perceived as inaccuracies. During the course of the day, he continued to express his interest in participating in the proceedings, and at various points made requests of the court, including to use the bathroom, for a tissue, and for a short break. At the noon recess on April 6, he agreed (with no mention of any health issues) to change into his court clothes. At one point during the afternoon, he declined the court's offer for a short break. Before leaving for the day, Harper stated it was "cool" that the proceedings would continue the next day, and said he would file a lawsuit for emotional abuse if he was returned to Patton. The record contains no further mention of Harper's headache or his request for Tylenol.
Just before he began his testimony, he told the court he needed to use the bathroom, and when the court responded they would take a 10-minute recess, he stated "cool." When Harper was on the stand ready to start his testimony, he stated he was "going to do [his] best." Prior to commencing his testimony and also during his testimony, he stated he wanted to make a statement to the jury before the prosecutor questioned him and "riddle[d] [his] thought process." During his afternoon testimony, he asked for a tissue, and it was provided to him. Towards the end of the day, he asked if he could take a "couple minute" break or be allowed to walk down the aisle and back because his head was "getting very hot." The court announced that they would adjourn the proceedings for the day, and Harper thanked the court.
The next day (April 7) Harper finished his testimony. During the testimony of the last witness (his mother), he again interjected comments. During a discussion of jury instructions after the lunch break on April 7, Harper told the court that he knew he had committed the sex offense and that it was harmful, but he would never do it again; the court responded that he was clearly able to express this on the witness stand. Harper then raised the issue of his ill health the previous day, stating he was forced to come to court even though he was sick; he was so sick that he "couldn't hardly think right"; when he woke up he felt so sick and he kept falling and "almost crashing in [his] mind"; he was nauseated and had a headache; and he felt as if he was going to faint and fall on the ground. The court stated that it recalled him saying he was not feeling well the previous day. Without further discussion of his claims of illness the previous day, the court continued with the proceedings.
Analysis
Harper argues that on April 6 the trial should have been delayed for at least one day so he could receive medical treatment. He contends that although he told the court he was not too sick to continue with the trial, the court and trial counsel should have recognized he was not thinking clearly and he had a significant health problem requiring that trial be delayed. He argues he was forced to testify while seriously ill, tired, and wearing jail clothing, and the record reflects that he was not fully coherent and competent that day. The record does not support these claims.
As recognized by Harper, when his counsel told the court that it appeared he did not want to proceed to trial that morning, he affirmatively stated he wanted to continue with the proceedings. Thereafter, it is apparent from the record that he was capable of following the witness testimony, as reflected in his frequent interjection of comments during the testimony. The record shows he told the court when he needed something, including the need for a break, and at one point he declined the court's offer of a break. We have no doubt that if he had continued to feel ill during the trial testimony on April 6, he would have informed the court of this.
Further, at the noon recess on April 6 he agreed to change into his court clothes with no mention of any health concerns. He also made statements suggesting he wanted to participate in the proceedings, and at the end of the day he expressed his enthusiasm about returning to court the following day. It was not until the following day—when the court told him he had fully expressed his views to the jury—that he again raised the issue of how badly he was feeling on April 6. The trial court was able to observe Harper's demeanor during the entire proceedings, and the record supports its implicit conclusion that he was not suffering from a physical ailment on April 6 that impeded his ability to participate in the trial that day, and that his contrary claims on April 7 merely reflected his hindsight anxiety about the contents of his testimony.
Harper also complains because the trial court did not order (as opposed to recommend) that he be confined at a facility closer to the courthouse so he would not have to get up at 4:00 a.m. and would be in a better position to assist in his defense. Assuming that Harper was kept at the detention center during trial, he has not shown that this adversely affected his ability to participate in his defense.
The record does not show that Harper was deprived of a fair trial because of the court's failure to delay the trial or to take some other measures in response to his health complaints.
II. Refusal to Instruct on Impairment of Control Requirement
Harper argues the instructions provided to the jury were inadequate because they did not tell the jury that it was required to find that his mental disorder causes him to have a serious difficulty in controlling his sexually dangerous behavior. Harper's counsel requested that the jury be instructed on this control impairment requirement. The prosecutor opposed the request, arguing the requirement had been formulated for various civil committees (including sexually violent predators (SVP's)), but not for MDSO's. The court declined to include the control impairment language in the instructions, finding that it was not required in MDSO cases.
Harper was committed as an MDSO under a statutory scheme that was repealed as of 1982 (see former Welf. & Inst. Code, § 6300 et seq.); the civil commitment of sexual offenders is now governed by the SVP scheme (Welf. & Inst. Code, § 6600, et seq.). (See 1 Witkin, Cal. Criminal Law (3d ed. 2000) Defenses § 10, pp. 342-343.) However, the repealed MDSO scheme continues to apply to Harper. (Baker v. Superior Court (1984) 35 Cal.3d 663, 665-666.)
The Attorney General concedes, and we agree, that the control impairment requirement applies to MDSO's. Under federal constitutional due process, a person may not be subjected to involuntary civil commitment unless the person, as a result of a mental abnormality, has serious difficulty controlling his or her dangerous behavior. (In re Lemanuel C. (2007) 41 Cal.4th 33, 40-41; In re Howard N. (2005) 35 Cal.4th 117, 127-132; People v. Williams (2003) 31 Cal.4th 757, 759, 766.) Comporting with due process standards for civil commitment, the control impairment requirement distinguishes offenders whose mental disorders impair their volitional control over their dangerousness, from other dangerous offenders who are more properly dealt with through criminal proceedings. (People v. Williams, supra, at pp. 766-767.) Thus, civil commitment requires a " 'connection between impaired volitional control and the danger posed to the public.' " (Id. at p. 768.)
In People v. Williams, supra, 31 Cal.4th 757, the court found there was no duty to give a requested special instruction on the control impairment requirement in an SVP case, because the instructions given to the jury covered this concept by using statutory language referring to a mental disorder " 'affecting the emotional or volitional capacity.' " (Id. at pp. 759, 763, 774-775.) Unlike the situation in Williams, the instructions given in this case (which we set forth below) do not explicitly refer to the concept of lack of control or impairment of volitional capacity. Accordingly, we agree with Harper that the trial court erred in refusing his request for instruction on the control impairment requirement. (See People v. Cordero (1989) 216 Cal.App.3d 275, 282 [defendant entitled to requested instruction that amplifies legal principles from which jury may conclude guilt has not been established].)
However, we conclude the instructional error was harmless beyond a reasonable doubt because the record shows the jury understood the control impairment requirement. (See People v. Williams, supra, 31 Cal.4th at p. 778.) Harper argues that without express instruction on the control impairment requirement, the jury may have thought it could find the MDSO allegations true merely because he was predisposed to commit sex offenses, even if it thought he could control his predisposition. The record shows otherwise.
The jury was instructed that a person committed as an MDSO may have his commitment term extended if he "suffers from a mental disease, defect or disorder and as a result of that mental disease, defect or disorder is predisposed to the commission of sexual offenses to such a degree that he presents a substantial danger of bodily harm to others." The jury was also given special instructions stating that " 'substantial danger of bodily harm' does not require proof of a recent overt act," and that dangerousness because of mental illness is an element of the case.
This latter special instruction stated: "In the context of a petition such as the one in this case, a finding on whether the individual is 'dangerous' to others because of a mental illness is an element of the case. [¶] Testimony by mental health experts may establish whether such dangerousness exists, and is permissible. Given certain facts, assessments or predictions of dangerousness may be properly within the expertise of a qualified mental health expert. The weight to be given any such prediction is a matter for the jury."
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The instructions given to the jury required that it find that (1) as a result of a mental disorder, Harper has a predisposition to commit sexual offenses, and (2) this predisposition is to such a degree that he is a substantial danger. Further, the special instructions singled out the dangerousness concept, telling the jury that dangerousness is an element even though there did not need to be a recent act. These instructions did not suggest that a mere sexual offense predisposition would suffice, but rather required a distinct showing of dangerousness. Consistent with this, on numerous occasions during witness examination and closing argument the prosecutor and defense counsel addressed the issue of whether there was a danger that Harper would act on his pedophilic predisposition if released. Based on the instructions and argument, the jury must have understood that there would be no basis to find Harper dangerous if it concluded he could control his pedophilic tendencies.
Further, the instructions stating that the predisposition to offend and dangerousness must be the result of a mental disorder implicitly draw the connection between lack of control and dangerousness so as to distinguish the civil committee from other dangerous offenders. That is, if the person's dangerous criminal predisposition is caused by a mental disorder, he or she is not volitionally choosing to offend but is acting in response to the mental disorder. Consistent with this, the prosecutor pointed out to the jury in closing arguments that even if Harper has the best of intentions not to reoffend, there was a danger that he would reoffend due to the failure to take his medication for schizophrenia and other factors that would cause him to decompensate.
Our holding is not inconsistent with In re Howard N., supra, 35 Cal.4th 117, cited by Harper to support his claim of reversible error. In Howard, the court reversed because of the failure to instruct on the control impairment requirement in a case where the jury found the person was dangerous because of a mental disorder, but there was no expert testimony indicating the person's mental disorder caused lack of control. (Id. at pp. 125, 138.) In contrast here, the expert testimony established that Harper's active schizophrenia caused distorted perceptions and psychosis, which are symptoms that impair the awareness necessary for volitional control. Because the nature of Harper's schizophrenia causes lack of control over his behavior, the jury's evaluation of whether his schizophrenia made him dangerous necessarily included a resolution of the control impairment issue. (See People v. Putnam (2004) 115 Cal.App.4th 575, 582.)
It is apparent from the record the jury understood that its task was to determine whether there was a substantial danger that Harper, due to his mental disorders and lack of commitment to his treatment plan, would not be able to control his pedophilic tendencies if he were released into the community. The record shows the jury understood the control impairment requirement.
III. Sufficiency of Evidence to Establish Control Impairment
Harper argues the evidence does not support a finding that he has a serious difficulty in controlling his dangerous sexual behavior.
When reviewing a challenge to a civil commitment based on insufficient evidence, we consider the entire record in the light most favorable to the judgment to determine whether a reasonable trier of fact could find beyond a reasonable doubt that the defendant meets the requirements for the commitment. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1503.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Nelson (2011) 51 Cal.4th 198, 210.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the jury to determine credibility and to resolve evidentiary conflicts and inconsistencies. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
The People presented evidence supporting that Harper suffers from schizophrenia and pedophilia, and that his symptoms associated with these conditions continue to manifest themselves in the form of disorganized, irrational, and sometimes psychotic thinking, and ongoing sexual fantasies about underage females. The People's medical experts indicated that consistent use of medication is typically required to control schizophrenia, and Harper's mother concurred that her son requires medication to be stabilized.
The jury could reasonably conclude from the evidence that Harper is not fully committed to taking medication for his schizophrenia. Harper told treatment staff and the People's medical experts that he wanted to stop (or eventually stop) taking all medication, and he testified to the same effect. Although Harper testified that he would take his medication if he was convinced that he needed to, the jury could reasonably infer that this attitude reflected a lack of insight into the need for him to consistently take his medication. This inference is buttressed by Harper's decision in 2009 to completely stop taking all his medication when his doctor refused to continue lowering his dosage, even though Harper knew that abruptly stopping his medication was not a good choice. The People's medical experts indicated that Harper's schizophrenia manifests in distorted thinking and psychosis, which by its very nature impairs his ability to make rational choices about and control his behavior. These witnesses testified that if Harper fails to take his medication for schizophrenia, his mental state would decompensate, which would lower his inhibitions and create a serious danger that he would be unable to refrain from expressing his pedophilic tendencies if given the opportunity.
The existence of Harper's control impairment is also supported by his refusal to participate in sex offender treatment at Patton. Setting aside the dispute over whether he should properly be labeled a pedophile, there was ample evidence for the jury to conclude that he has strong pedophilic tendencies, as reflected in his sexual behavior with children when he was 12 and 23 years old, and his recent preference to fantasize about children rather than adults when faced with a diminished sexual libido. Although Harper provided an explanation as to why he did not want to participate in the sex offender program at Patton (i.e., embarrassment and fear), the jury could reasonably infer that his attitude reflects a lack of understanding that sex offender treatment is imperative to control his pedophilic tendencies and that he needs to attend regardless of any trepidation he may feel.
Harper's control impairment is further supported by his expressed desire to drink alcohol upon release. The People's experts indicated that because he fails to recognize his addiction and how drug and alcohol use can exacerbate his mental illness, there was a high chance he would become re-addicted if released. This could in turn exacerbate his symptoms and lower his inhibitions, and increase the danger that he would act out on his sexual attraction to children.
The jury could also consider that Harper does not understand the extent of his pedophilic tendencies because he expressed an interest to work with children if he were released. Harper's desire to work with children upon release, coupled with his reluctance to take medication, refrain from alcohol, and attend sex offender treatment, supports that he does not appreciate the seriousness of his conditions and does not understand that control of his symptoms requires a firm adherence to his treatment plan.
To support his challenge to a finding that he meets the control impairment requirement, Harper asserts he has not engaged in any serious misbehavior for numerous years. This contention is not persuasive because Harper has been in controlled environments which restrict his opportunities to engage in sexually dangerous behavior.
Citing People v. Galindo (2006) 142 Cal.App.4th 531, Harper argues that to support the control impairment requirement, the record must show that he tried to control his behavior but failed to do so. In Galindo, the appellate court concluded the trial court's failure (at a bench trial) to evaluate the control impairment issue was prejudicial based on a variety of factors, including the lack of evidence showing the defendant had made unsuccessful attempts to control his behavior. (Id. at pp. 533, 538-539.) Galindo does not set forth a control impairment test uniformly applicable to all cases when reviewing sufficiency of the evidence claims, and we do not find its analysis applicable here. The courts recognize that the control impairment element does not have " 'a particularly narrow or technical meaning . . . [and it is not] demonstrable with mathematical precision . . . [T]here must be proof of serious difficulty in controlling behavior[,] . . . [which], when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental . . . disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.' " (In re Howard N., supra, 35 Cal.4th at p. 129.)
The record supports that Harper has serious difficulty controlling his pedophilic tendencies based on his ongoing schizophrenic and pedophilic symptoms, and his lack of commitment to abide by a treatment regimen to control these symptoms.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR: NARES, Acting P. J.
IRION, J.