Opinion
A134498
2013-10-17
THE PEOPLE, Plaintiff and Respondent, v. PAUL WAYNE LOWE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 03056070)
I.
INTRODUCTION
Appellant challenges a court order placing him under a Murphy conservatorship on the basis of a jury's findings that he is gravely disabled as a result of a mental disorder, and poses a substantial danger of physical harm to others. Appellant does not contest the finding that he has a disabling mental disorder, but argues the jury's verdict on his dangerousness must be reversed due to procedural errors at trial.
"A conservatorship imposed under [Welfare and Institutions Code section 5008, subdivision (h)(1)(B)] is commonly referred to as a 'Murphy conservatorship' after the legislator who sponsored the amendment that added the definition to the [Lanterman-Petris-Short] Act in 1974. [Citation.]" (People v. Karriker (2007) 149 Cal.App.4th 763, 775 (Karriker).)
Specifically, appellant argues the trial court: (1) abused its discretion by permitting a deputy sheriff to accompany appellant to the witness stand; (2) erroneously admitted into evidence portions of appellant's hospital file that did not qualify as a business record and were prejudicial to appellant; and (3) violated appellant's constitutional rights by ruling that appellant could be compelled to testify at trial, and could be questioned about the incident that gave rise to the criminal charges on which appellant was found incompetent to stand trial. We conclude that the jury's verdict on dangerousness was not the product of any prejudicial error, and therefore affirm the conservatorship order.
II.
FACTS AND PROCEDURAL BACKGROUND
In March 2008, appellant entered the apartment of a woman he did not know, through an unlocked back door, and approached the woman closely. Appellant spoke to the woman, but she did not understand what he was saying. The woman offered to give appellant money, and asked him not to hurt her. She managed to lure appellant out the front door, and then ran back into her apartment and locked the doors, just in time to forestall appellant's attempt to reenter through the back door. When the woman looked out her window to see if appellant was still there, she saw him standing in front of her building blowing kisses in her direction.
When police officers arrived on the scene, two men were struggling with appellant in front of the woman's building. Appellant was wearing old, dirty clothing, was unkempt, and had a strong body odor. He was behaving aggressively and using a lot of profanity, and had a crack pipe in his hand. With some difficulty, the officers handcuffed appellant and placed him in the back seat of their patrol car, where he continued to yell, curse, and kick. The officer heard appellant say, "I am going to get some pussy anyway." During the ensuing two to three hours that the officers spent with appellant prior to taking him to jail, he continued to exhibit anger and hostility.
Appellant denied having said this, and denied having blown kisses at the woman.
Appellant apparently spent the next six months in jail awaiting trial on the charges stemming from this incident (the 2008 incident), but ultimately was determined to be incompetent to stand trial. He was sent to Napa State Hospital for treatment in late 2008. Appellant had previously been sent to Atascadero State Hospital, in 1989 and 1992, due to findings that he was incompetent to stand trial on other charges.
By July 6, 2011, appellant was still suffering from mental illness, and it appeared that further treatment would not render him competent to stand trial. Accordingly, the director of the Alameda County Criminal Justice Mental Health Program (the Director) filed a petition to place appellant under a Murphy conservatorship under Welfare and Institutions Code section 5008, subdivision (h)(1)(B) (section 5008(h)(1)(B).
The jury trial on the conservatorship petition began on November 30, 2011. The Director's principal witness at the trial was Dr. Michael Cosgrove, who was appellant's treating psychiatrist from August 2009 through August 2011. Cosgrove testified both as a treating physician and as an expert in the area of psychiatry.
When Cosgrove took over responsibility for appellant's mental health treatment, appellant had been diagnosed with undifferentiated schizophrenia (which Cosgrove also called disorganized schizophrenia). Cosgrove, who had treated many schizophrenics during his career, concurred in this diagnosis. Appellant's medical history indicated that he also suffered from a history of cocaine and alcohol abuse, having started to use drugs at the age of 13, and had borderline intellectual functioning and antisocial personality disorder. His antisocial personality diagnosis was based on his history of criminal charges, including juvenile delinquency. Appellant's IQ was in the high 70's to low 80's, which placed him below the normal range, though not quite low enough to qualify as mild retardation. Due to appellant's combination of low intellectual functioning and schizophrenia, as well as some possible head trauma, appellant suffered from cognitive deficits.
At the time Cosgrove began treating him, appellant was exhibiting delusions, and his behavior indicated that he was hallucinating. Appellant was taking an antipsychotic drug, as well as medications for his high blood pressure. During 2009, appellant began to refuse to take his medication, explaining that he felt fine and did not need it. Cosgrove was able to persuade appellant to resume taking his blood pressure medication, and a court order was obtained so that the treatment staff could require appellant to take his antipsychotic. Also, appellant's antipsychotic medication was changed from Haldol to risperidone, which did not have the same debilitating side effects. More recently, appellant had begun taking a different antipsychotic drug, Geodon. On this drug, appellant's condition had improved somewhat, and his delusions and symptoms of hallucination had diminished.
While in the structured hospital environment, appellant behaved politely, was not angry or threatening or dangerous, and exhibited good personal hygiene. Even after appellant ceased being delusional, however, his speech remained disorganized, jumping from one topic to another, and he retained some naïve or fantastic beliefs, including that his criminal cases were not serious or that he would be found "100 percent" not guilty. Appellant consistently denied that he was mentally ill or had substance abuse problems. Appellant did not believe he needed medication and had no insight into his condition.
Cosgrove opined that as of August 2011, appellant was stabilized at his baseline level of functioning, and was not likely to improve further. Cosgrove did not believe appellant was likely to become competent to stand trial in the foreseeable future. Appellant still did not understand the legal proceedings or the gravity of the charges against him.
Moreover, Cosgrove believed that despite appellant's good behavior in a structured environment like the hospital, it was highly likely that if appellant were released into an unstructured environment, he would stop taking his medication, resume taking illegal drugs, "decompensate," and exhibit "repulsive and dangerous behaviors." Appellant's history of criminal behavior, including numerous arrests, indicated that he could potentially become violent and reoffend if left without supervision.
Due to the combination of appellant's schizophrenia with his history of substance abuse, his cognitive problems, his antisocial personality disorder, and his poor impulse control, Cosgrove believed appellant could not care for himself without assistance from a third party. Appellant did not have insight into constructive ways to get his needs met, and had only a minimal ability to reflect on his own behavior. He could not live in the community without institutional support in the form of someone to supervise him, give him his medication, and arrange for his financial support and medical care. In the past, appellant had been able to get support from his family, but since his father's death, his mother had become less supportive, and appellant had no network of friends or substance abuse program sponsor to assist him. Thus, Cosgrove recommended that appellant be placed under a conservatorship.
Robin Hemenway, a psychologist at Napa State Hospital, testified at appellant's trial both as an expert on psychology, and as a member of the staff at the hospital who treat persons such as appellant who have been found incompetent to stand trial. As of the date of appellant's trial, Hemenway had worked with him for about two and one-half years.
When Hemenway first started working with appellant, he was polite and cooperative, but also hyperverbal, delusional, paranoid, and difficult to understand because of his disorganizational speech. Appellant did not understand why he was in the hospital, or what he needed to accomplish in order to be discharged. Later, appellant stopped taking his medication because he did not believe he needed it and did not like the side effects. Without his medication, appellant became increasingly paranoid, angry, and irrational. As a result, an order was obtained in May 2009 authorizing the involuntary administration of appellant's antipsychotic medication; after that, he began taking it again. When he resumed taking the medication, appellant became less hostile and argumentative, and his thinking was somewhat less disorganized.
Hemenway tested appellant's cognitive functioning and academic skills. He tested at the fourth-grade level in reading, and had an IQ of approximately 80. This was low average to average for schizophrenics, and extremely low for non-schizophrenics.
Appellant was included in group meetings with hospital patients who were attempting to regain competency, but he only attended occasionally, and did not participate actively. Hemenway also met with appellant individually once a month to discuss general information about the legal system and judicial proceedings. In October 2010, the hospital staff concluded that appellant could not be restored to competency, and he was removed from the competency groups. Hemenway met with appellant even after that, to see if anything had changed, but she did not observe any improvement.
In April 2011, the Napa State Hospital staff sent a letter to the county guardian's office indicating that appellant did not represent a danger to others, and therefore did not meet the criteria for a Murphy conservatorship. Hemenway explained, however, that this conclusion was based on a misunderstanding on the part of the hospital staff. Appellant did not present a high risk of physical violence while in the controlled environment of the hospital, where he was subject to a court order requiring him to take his antipsychotic medication, and he had no access to illegal drugs. However, appellant did not have insight into his mental illness or his substance abuse. Thus, if appellant were released from his controlled environment, Hemenway was of the opinion that he would stop taking his antipsychotic medication and resume abusing illegal drugs. Under those circumstances, appellant's condition would deteriorate.
Moreover, appellant had no history of voluntarily seeking follow-up treatment when he was released from a structured environment. Thus, Hemenway did not believe that appellant would recognize that he was decompensating and needed help. She also noted that in one instance in the past, appellant had committed a robbery within hours of his release from prison. Accordingly, Hemenway concurred with Cosgrove that appellant should be placed under a Murphy conservatorship.
Appellant was called to testify by the Director. Appellant testified he understood that the reason for the court proceeding was that he was mentally incompetent to stand trial on the charges stemming from the 2008 incident. He acknowledged that the Napa State Hospital staff believed he did not understand the nature of the charges or how the court system works.
Appellant denied having a mental illness. He knew he had been diagnosed with schizophrenia, but believed the diagnosis was incorrect, because he did not hear voices or see hallucinations. He believed that the psychiatric medication he was given was not for schizophrenia, but to help him think better, and he did not think he needed anything to help him think better. Appellant explained that he stopped taking his medication, despite the doctors' efforts to persuade him to keep taking it, because of its side effects, which included making him think more slowly. He did not believe the antipsychotic medication helped him in any way. Appellant stated that if he left the hospital, he would not seek treatment for schizophrenia.
Appellant also did not like taking his pills for high blood pressure, but took them anyway, because he did not want to die at a young age.
Appellant did not like taking medication in the form of capsules because he did not believe the capsules dissolved properly, based on his observation of what happened when he dropped them in water. However, he liked getting injections even less, so he agreed to take pills after the hospital obtained a court order requiring that he take his medication, and the doctor told him he would be given injections if he did not take the pills. He would have liked to stop taking his medication, but the hospital staff were watching him to make sure he took it. He was continuing to take his medication while in the custody of the Alameda County Sheriff during the trial.
Appellant acknowledged that when he was in school, his comprehension was not as good as that of other students. He also admitted using marijuana and cocaine, starting in his teens. At the age of 17, appellant started selling cocaine, which led to his father kicking him out of the house. Nonetheless, appellant did not believe he had a problem with illegal narcotics, and did not attend drug treatment programs at Napa State Hospital because he did not think he needed drug treatment. Appellant also drank alcohol, but only because he liked the flavor. Appellant said that if he were released from the hospital, he would not resume using cocaine.
When asked about the 2008 incident, appellant explained that he sat down on the porch of the house to smoke crack, and then went inside because the door was open and the blinds were drawn, so he thought the house was vacant and would be "a peaceable place to rest." Then he saw a woman in the house, and he thought that she was inviting him inside because she did not want him smoking crack on the porch. He did not touch the woman, and left when she told him to do so. Appellant knew he had to be careful with "girls" because he was a registered sex offender. He denied trying to reenter the house after he left, and said that two men got out of a car and attacked him as he was walking out the door.
Appellant understood that he had been charged with burglary as a result of the 2008 incident, but thought that burglary meant breaking someone's window, going into their house, and stealing their stuff. He also understood he was charged with false imprisonment. He thought this referred to his fight with the two men who attacked him, but he remembered that a woman at the hospital had tried to explain to him that it did not mean this, and instead involved holding someone against their will.
Appellant's understanding regarding why he became a registered sex offender was that it resulted from an encounter with a woman he believed was a prostitute. At the time, appellant was under the influence of alcohol and cocaine. He was convicted of kidnapping the woman, but denied that he had done so, claiming the woman made up the charge because she was jealous of how much money he had. Appellant took a "deal" on the charges, on his father's advice, in order to avoid a lengthy prison term.
Appellant was also asked about other aspects of his criminal record. He recalled going to prison for robbery due to an incident at a gas station in 1989. Appellant was panhandling there, by asking people to pay him to pump their gas or clean their windows. When a woman at the gas station told appellant to get away, using a racially derogatory epithet, appellant got angry and snatched the woman's purse. He denied hitting her or causing her to fall down. Appellant also recalled being arrested and convicted after leaving a restaurant without paying for his meal, but contended that the conviction was not for robbery, but for defrauding an innkeeper. Appellant also explained that it was not appellant, but his companion, who walked out of the restaurant without paying.
If appellant were released from the hospital, he planned to live with his mother, although he understood that she was getting old, and had at one time gotten a restraining order against him. He indicated that he might also live on his sister's patio, with a portable toilet and refrigerator. He planned to obtain money by reapplying for disability, and to could get his medication by taking the bus to "John George" (presumably a reference to the Alameda County mental health facility in Oakland). At a different point in his testimony, however, appellant stated that there was a time when he was taking pills that were provided at a facility near "John George," but he stopped taking the pills because the address he was given was incorrect.
On December 8, 2011, the jury returned a verdict finding that appellant was gravely disabled as the result of a mental disorder. On the same date, the trial court entered an order appointing a conservator for appellant for a period of one year. Letters of conservatorship were issued by the court on December 16, 2011. Appellant filed a timely notice of appeal from the order appointing a conservator.
III.
DISCUSSION
A. Governing Law
Where a criminal defendant is found incompetent to stand trial, and three years of treatment have not restored the defendant's competence, proceedings may be instituted to determine whether the defendant is "gravely disabled" as defined in section 5008(h)(1)(B). That statute provides that a person is gravely disabled if the person "has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: [¶] (i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person. [¶] (ii) The indictment or information has not been dismissed. [¶] (iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner."
Under the case law, "in order to impose a Murphy conservatorship the trial court must find, in addition to the explicit statutory elements, that 'by reason of a mental disease, defect, or disorder, the person represents a substantial danger of physical harm to others.' [Citation.]" (Karriker, supra, 149 Cal.App.4th at p. 776, citing Conservatorship of Hofferber (1980) 28 Cal.3d 161, 176-177 (Hofferber).) The defendant is entitled to request a jury trial, and the jury must find beyond a reasonable doubt that the defendant has a mental condition that renders the defendant dangerous. (Hofferber, supra, at pp. 178-179.)
If the jury finds that all of the statutory criteria are met and that the defendant's condition renders him dangerous, the defendant may be placed under a Murphy conservatorship for a period of one year. In the present case, the parties stipulated that appellant had been found mentally incompetent under Penal Code section 1370 to stand trial for the charges arising out of the 2008 incident; that at the time of that finding, appellant was charged with a felony meeting the statutory criteria; and that the information charging that felony was still pending. In addition, the evidence of appellant's continued incompetency was uncontroverted, and appellant does not challenge that aspect of the verdict on appeal. Thus, the only remaining contested issue is whether appellant presented a substantial danger of physical harm to others as a result of a mental disorder.
B. Proximity of Deputy Sheriff During Testimony
Prior to his trial, appellant filed a motion requesting that he be permitted to testify without having a deputy sheriff posted next to him at the witness stand. The trial court denied the request, explaining that the Alameda County Sheriff's Department (the Sheriff) had placed appellant in its "red" classification, and the Sheriff's policy required that a deputy sheriff sit at the witness stand during any testimony given by persons in that classification. The court also noted that appellant would be within four feet of the jury and five or six feet of the judge; that appellant was not shackled; and that the Sheriff's policy required two deputies to accompany an unshackled defendant. The court also denied appellant's alternative request that a deputy sheriff be stationed at the witness stand during the testimony of all witnesses, on the ground that it lacked a "foundational basis." Appellant contends these rulings were error. We review the trial court's rulings for abuse of discretion. (People v. Hernandez (2011) 51 Cal.4th 733, 736 (Hernandez).)
In People v. Stevens (2009) 47 Cal.4th 625 (Stevens), the California Supreme Court "held that the stationing of a courtroom deputy next to a testifying defendant is not an inherently prejudicial practice that must be justified by a showing of manifest need. [The court] explained, however, that the trial court must exercise its own discretion and determine on a case-by-case basis whether such heightened security is appropriate. [Citation.]" (Hernandez, supra, 51 Cal.4th at p. 736, citing Stevens, supra, at p. 642.) In Hernandez, the court clarified its analysis in Stevens, holding that while "manifest need" need not be demonstrated in order for a trial court to station a deputy sheriff at the witness stand during the defendant's testimony, the trial court nonetheless must "make a case-specific decision" rather than "deferr[ing] to a general policy." (Ibid.; see id. at pp. 741-744.) The court concluded, however, that in that particular case, the error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Hernandez, supra, at pp. 736, 741-745.)
Appellant attempts to distinguish this case from Hernandez, supra, 51 Cal.4th 733 and Stevens, supra, 47 Cal.4th 625, on the basis that in this civil commitment case, unlike in a criminal case, appellant's dangerousness was the principal issue placed before the jury. Appellant cites no controlling authority requiring us to draw such a distinction, however, and we are not persuaded by appellant's arguments.
Here, the trial court did not simply defer to a general policy, as occurred in Hernandez, where the trial judge explained after the fact that a deputy had been stationed at the witness stand simply because that had been done " 'in every trial I've ever done.' " (Hernandez, supra, 51 Cal.4th at p. 743; see also id. at pp. 743-744 [trial court's failure to articulate specific reasons for deputy's presence until after the fact supported conclusion that it was ordered as a matter of routine].) Rather, the trial court in the present case expressly identified several relevant, individualized facts as the basis for its ruling: appellant's unshackled status; the configuration of the courtroom; and appellant's membership in a specific class of prisoners deemed by the Sheriff to warrant the presence of a deputy sheriff at the witness stand during their testimony. Accordingly, we are not convinced that the trial court abused its discretion in denying appellant's request to take the witness stand unaccompanied.
Nor do we perceive any abuse of discretion in the denial of appellant's alternative request that all witnesses be accompanied by a deputy sheriff during their testimony. Accepting appellant's argument in this regard would place a burden on local law enforcement that is not warranted by any need for courtroom security, but would only serve the interest of criminal defendants in mitigating the prejudice caused by an otherwise justifiable security measure.
As our Supreme Court noted in Stevens and emphasized again in Hernandez, the appropriate remedy for any such prejudice is a cautionary instruction telling the jury to "disregard security measures related to the defendant's custodial status." (Hernandez, supra, 51 Cal.4th at p. 744, fn. 5, citing Stevens, supra, 47 Cal.4th at p. 642.) Here, the trial court gave just such an instruction immediately before appellant testified, using language to which both counsel agreed. Appellant's trial counsel did not request that the instruction be repeated prior to the start of the jury's deliberations. Nonetheless, the trial court's closing instructions included a general admonition that the jury must not be influenced in any way by the fact that appellant was temporarily in the custody of the Sheriff during the trial. These instructions adequately fulfilled the court's obligation to mitigate any prejudice to appellant from his accompaniment by a deputy sheriff during his testimony. Accordingly, we find no reversible error in this aspect of the proceedings at appellant's trial.
C. Admission of Physicians' Progress Notes as Business Record
During Cosgrove's testimony, in an effort to refresh his recollection, counsel for the Director showed him a "PPN [Physicians' Progress Notes] Monthly Summary" (PPN Summary) prepared in March 2009 by Napa State Hospital psychiatrist Debbie McKinney, who did not testify at trial. Cosgrove identified the PPN Summary as a hospital record, but indicated that he had not reviewed it in preparing for his testimony.
Because Cosgrove disclaimed any reliance on the PPN Summary in arriving at the opinions to which he testified, the issue appellant raises here is not resolved by the principle that otherwise inadmissible evidence may be utilized as part of the basis for an expert's opinion. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-619.)
The Director later offered the PPN Summary into evidence. Appellant's trial counsel objected on hearsay grounds to the admission of the medical opinions reflected in the PPN Summary, but the trial court overruled the objection. On appeal, appellant acknowledges that the document itself was admissible as a properly authenticated writing made in the regular course of business. (See Evid. Code, § 1271, subds. (a), (c); see also People v. Nelson (2012) 209 Cal.App.4th 698, 710 [" 'Hospital . . . records, if properly authenticated, fall within the umbrella of the business record exception'. . ."].) He argues, however, that portions of the contents of the PPN Summary were nonetheless inadmissible.
The parties agreed to redact other portions of the challenged document, but this does not affect the issues presented on this appeal.
Appellant challenges the admission of those portions of the PPN Summary that were not contemporaneous notes of McKinney's personal observations, but rather reflected either McKinney's opinions, or facts as to which it is evident that McKinney did not have personal knowledge. As to some of the information in the latter category, such as appellant's age, marital status, psychiatric history, and legal status, appellant acknowledges that its admission was "not particularly prejudicial." As to other parts of the PPN Summary, however, appellant argues that they were not only inadmissible, but also prejudicial.
Specifically, appellant contends that the admission into evidence of the following portions of the PPN Summary constituted prejudicial error: (1) the factual statement that appellant had been refusing his antipsychotic medication for two weeks; (2) the opinion that as a result of that refusal, appellant's "mental functioning [was] deteriorating with increasing paranoia" and appellant had been "increasingly growing paranoid and oppositional"; (3) the opinion that appellant was "considered to be at moderate risk for assault," and the risk had recently increased because "without medications, [appellant] has been assaultive and violent in the past"; and (4) the opinion that appellant's symptoms included "disorganized thinking, tangential thinking, alcohol abuse and no insight into his mental illness."
In arguing that these statements were inadmissible even though they were included in a business record, appellant relies on People v. Reyes (1974) 12 Cal.3d 486 (Reyes). In that case, the defendant was charged with murdering a man who had undergone psychiatric treatment 20 years earlier. The defendant sought to introduce a psychiatric report diagnosing the victim as suffering from alcoholism and sexual psychopathy, in order to bolster his defense that the killing resulted from the victim's making a homosexual advance toward the defendant, who was under the influence of alcohol and drugs at the time. (See id. at pp. 494-496, 502-503.) The trial court excluded the evidence, and the California Supreme Court affirmed. The court held that "the report did not satisfy the requirements of Evidence Code section 1271 that the record be 'of an act, condition or event,' " because it expressed the diagnostic opinion of the psychiatrist who wrote the report. (Id. at p. 503.)
On appeal, the Director argues that the PPN Summary was properly established to be a business record—a point appellant does not dispute—but does not address appellant's contention, based on Reyes, supra, 12 Cal.3d 486, that certain portions of it nonetheless should have been excluded as hearsay. We therefore proceed to consider the Director's alternative argument that even if the admission of the challenged portions of the PPN Summary was erroneous, it was not prejudicial. We review this issue under the standard articulated in Watson, supra, 46 Cal.2d at p. 836. Under this standard, we reverse only if appellant demonstrates that it is "reasonably probable that a result more favorable to [appellant] would have been reached in the absence of the error." (Ibid.)
As the Director points out, the passages in the PPN Summary to which appellant objects were largely duplicative of other evidence. Cosgrove testified that during his own work with appellant, the latter repeatedly denied suffering from any mental illness. Cosgrove also testified that while he was treating appellant, appellant was subject to a court order requiring him to take his psychotropic medication.
Most significantly, even though Cosgrove did not rely on the PPN Summary in arriving at his opinions, his opinion regarding appellant's dangerousness was consistent with the views expressed in that document. Cosgrove acknowledged that appellant was not violent when he was "in a structured environment, with the proper medications and no [illicit] drugs." Cosgrove opined, however, that "when [appellant] is released, not taking his medication and possibly using drugs, he has done some very repulsive and dangerous behaviors." He explained that given appellant's mental illness, together with his history of drug abuse and violent behavior, his risk of becoming dangerous "increase[s] dramatically" outside a structured environment. He also noted that appellant denied his need for substance abuse treatment, and rejected the suggestion that his use of drugs or alcohol had played a role in his history of getting "in trouble."
Cosgrove also testified that appellant "still considers himself not mentally ill," and opined that because appellant "doesn't have any insight into his condition," he would be likely not to take his medication. Noting that appellant had been "institutionalized and arrested numerous times over the last 30 years," Cosgrove testified that appellant still needed medication education and relapse prevention training, because otherwise, appellant would fail to take his medication and use recreational drugs.
The challenged portions of the PPN Summary were also consistent with Hemenway's testimony that when she first began treating appellant, he was only taking his psychiatric medication intermittently, and that he later refused to take it because it gave him side effects and he did not believe he needed it. Hemenway also testified that appellant became more paranoid, agitated, and hostile when he was not on his medication, to the point where she terminated conversations with him because she did not know how much he would escalate. Like Cosgrove, Hemenway testified that appellant lacked insight into his substance abuse and mental illness, and that outside the structured hospital environment, appellant was likely to stop taking his medication, resume his substance abuse, deteriorate, and resume the criminal behavior in which he had repeatedly engaged in the past.
In light of the testimony of Cosgrove and Hemenway summarized above, and the record as a whole, it is not reasonably probable that excluding the challenged portions of the PPN Summary from evidence would have resulted in a more favorable trial outcome for appellant. Accordingly, any error in admitting this evidence is not grounds for reversal.
D. Requiring Appellant to Testify
Prior to the trial on the Murphy conservatorship, the trial judge denied appellant's request to preclude the Director from calling him as a witness. Just before appellant testified, he moved to preclude the Director from asking appellant questions that could reveal information that could be used as evidence against him in a trial on the charges arising from the 2008 incident. The trial judge denied this motion also, opining that appellant's answers to any questions posed to him at the trial on the Murphy conservatorship could not be used against him, even for impeachment, in any future criminal prosecution. Appellant argues that both of the trial court's rulings on this issue were error.
As the trial court recognized, the law on this question is unsettled. In arguing that Fifth Amendment privileges do not apply, the Director relies on cases arising from proceedings for the civil commitment of persons who are mentally ill or developmentally disabled (e.g., Allen v. Illinois (1986) 478 U.S. 364, 374-375; Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550; Cramer v. Tyars (1979) 23 Cal.3d 131, 137), or the continued confinement of mentally ill persons after the completion of a criminal sentence (e.g., People v. Merfield (1997) 57 Cal.App.4th 1440, 1443-1447; People v. Lopez (2006) 137 Cal.App.4th 1099; but see People v. Haynie (2004) 116 Cal.App.4th 1224, 1228-1230 [criminal defendant found not guilty by reason of insanity has statutory right under Pen. Code, § 1026.5, subd. (b)(7), not to testify in proceedings for extension of commitment to state hospital]).
Shortly before this opinion was filed, the California Supreme Court granted review in a case presenting the same statutory issue addressed in People v. Haynie, supra, 116 Cal.App.4th 1224. (Hudec v. Superior Court, review granted Oct. 2, 2013, S213003.)
Appellant argues, however, that such cases are distinguishable from cases involving Murphy conservatorships. By definition, at the time of trial on a Murphy conservatorship petition, serious criminal charges remain pending against the putative conservatee. Thus, appellant contends the putative conservatee in a Murphy conservatorship proceeding has a greater interest than other persons subject to civil commitment in the right not to be compelled to give testimony that may involve self-incriminating statements. In that regard, a Murphy conservatee is more analogous to a criminal defendant whose competency to stand trial is being examined under Penal Code section 1368.
In the present case, the Director's trial counsel, a deputy district attorney, declined to agree to grant appellant immunity against the use of his testimony in any future criminal proceedings, but took the position that the appellant enjoyed such immunity as a matter of law. (See, e.g., People v. Pokovich (2006) 39 Cal.4th 1240, 1253 [criminal defendant's statements made during court-initiated mental competency examination cannot be used against defendant at trial, even for impeachment].) The trial court resolved the issue by ruling that appellant could be called to testify, and could be questioned about the 2008 incident, but left open for future proceedings the question whether anything appellant said during his testimony could be used against him (at all, or for impeachment only) if the underlying criminal charges ever came to trial.
In our view, the trial court proceeded correctly. In order to compel appellant to testify and answer questions about the 2008 incident, it was not necessary for the trial court to determine whether appellant's testimony may be used against him in future criminal proceedings. If that circumstance should occur in the future, the court in which the future criminal proceedings are tried will have the opportunity to review the current record—including the deputy district attorney's express representations in the present case that appellant's testimony would be subject to use immunity as a matter of law—before making a ruling. Until such a ruling is made, and unless it is adverse to appellant, he will not have suffered any prejudice from having been required to testify in the present proceeding, which is civil and non-punitive in nature.
We also reject appellant's contention that he was prejudiced on the merits of the issues presented by the Murphy conservatorship, because it was clear from his own testimony that he was mentally ill. We note that this issue was not disputed during the trial. The testimony of the expert witnesses on appellant's mental status was unimpeached and uncontroverted, and it is clear from the record, beyond a reasonable doubt, that the jury would have reached the same verdict even if appellant had not testified.
Moreover, his testimony relating to the circumstances of the 2008 incident which gave rise to these proceedings did not relate to any contested issue in the Murphy conservatorship trial. Even if it did, it too was cumulative to other evidence properly admitted concerning the incident. Thus, we conclude that if appellant's right not to incriminate himself was violated and the admission of his testimony was error, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see also People v. Earp (1999) 20 Cal.4th 826, 856-858; People v. Hardy (1992) 2 Cal.4th 86, 157.)
IV.
DISPOSITION
The order from which this appeal was taken is AFFIRMED.
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RUVOLO, P. J.
We concur: _______________
RIVERA, J.
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HUMES, J.