Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCR58781, Robert J. Lemkau, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
Defendant Billy Dee Means appeals an order extending his commitment to Patton State Hospital, pursuant to Penal Code section 1026.5, subdivision (b). He contends that the constitutional privilege against self-incrimination applies to proceedings under section 1026.5, and that his right against self-incrimination was violated by the court’s refusal to instruct the jury that he had a right not to testify and that it could draw no adverse inferences from his decision not to testify. His argument focuses on this court’s decision in People v. Lopez (2006) 137 Cal.App.4th 1099 (Lopez), in which we held that the right against self-incrimination does not apply in civil commitment proceedings, including proceedings pursuant to section 1026.5. He contends that Lopez was wrongly decided. We disagree, and we affirm.
All further statutory citations refer to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Means was charged with attempted murder and assault with a deadly weapon, arising out of an incident in November 1992. The attempted murder charge was dismissed after Means pled guilty and not guilty by reason of insanity (NGI) to the assault charge and the associated enhancement for personal infliction of great bodily injury. (§§ 245, subd. (a), 12022.7.) On December 29, 1993, the court committed him to Patton Sate Hospital, pursuant to section 1026. On July 31, 2007, the San Bernardino County District Attorney filed a petition for extension of Means’s commitment, pursuant to section 1026.5. (See fn. 2, ante.) On December 14, 2007, a jury found that Means was a person who suffered from a mental disease, defect or disorder and who represented a substantial danger of physical harm to others. The court ordered Means recommitted to Patton State Hospital for a period of two years. Means filed a timely notice of appeal.
Section 1026, subdivision (a), provides, in pertinent part, that upon a finding that a defendant was insane at the time of the commission of the offense, the court shall “direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered,” “unless it shall appear to the court that the sanity of the defendant has been recovered fully.”
LEGAL ANALYSIS
THE COURT PROPERLY REFUSED MEANS’S REQUEST FOR AN INSTRUCTION THAT HE HAD AN ABSOLUTE RIGHT NOT TO TESTIFY
Means did not testify at the trial. The prosecutor did not attempt to call him to testify, and he did not testify on his own behalf. The court refused Means’s request to instruct the jury that he had an absolute right not to testify and that it could not draw any adverse inferences from his decision not to testify. He now contends that the court violated his constitutional right against self-incrimination when it refused his request.
The right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution includes the right to have the jury instructed that the defendant has an absolute right not to testify and that no adverse inference may be drawn from the defendant’s exercise of that right. (Carter v. Kentucky (1981) 450 U.S. 288, 304.) In a criminal proceeding, failure to give such an instruction on request is reversible error unless it can be determined beyond a reasonable doubt that the instruction did not contribute to the guilty verdict. (United States v. Soto (9th Cir. 2008) 519 F.3d 927, 930-931; People v. Evans (1998) 62 Cal.App.4th 186, 196-198.) The same right arises under article I, section 15 of the California Constitution. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 (Cramer).) Commitment proceedings under sections 1026 and 1026.5 are civil in nature, not criminal, and neither the federal nor the state constitutional right against self-incrimination applies to such proceedings. (Allen v. Illinois (1986) 478 U.S. 364, 374-375; People v. Allen (2008) 44 Cal.4th 843, 860; Cramer, at p. 137.) If Means had a right to refuse to testify, that right emanates from section 1026.5, which provides that a person committed to a treatment facility pursuant to a finding that he is not guilty by reason of insanity “shall [for all proceedings] be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.” (§ 1026.5, subd. (b)(7).)
In Lopez, supra, 137 Cal.App.4th 1099, we held that in enacting section 1026.5, the Legislature did not intend to provide persons subject to civil commitment proceedings with a broad right to refuse to testify. (Lopez, at pp. 1113-1116.) Rather, as in civil proceedings generally, the subject of a civil commitment proceeding may invoke his right not to answer questions which might serve to incriminate him in a future criminal prosecution, but he has no right to refuse to testify otherwise to matters which are pertinent to the commitment proceedings. (See id. at p. 1107, discussing Cramer, supra, 23 Cal.3d at p. 139.)
Means relies on two cases from the Fifth District, in which the court reached the opposite conclusion—People v. Haynie (2004) 116 Cal.App.4th 1224, and In re Luis C. (2004) 116 Cal.App.4th 1397—and one case from Division Three of this court, Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, which criticized our analysis and holding in Lopez. We discussed People v. Haynie and In re Luis C. in Lopez, and concluded that they were incorrectly decided (Lopez, supra, 137 Cal.App.4th at pp. 1109-1116), and we are unpersuaded by Joshua D. v. Superior Court. We need not review our reasoning here. Rather, following Lopez, we conclude that because Means’s constitutional right against self-incrimination was not implicated in these proceedings, the court’s refusal to give the requested instruction was not error.
Moreover, even if we assume, for the sake of argument, that Means had a statutory right to have the jury instructed not to draw any adverse inference from his decision not to testify, he has failed to demonstrate that he was prejudiced by the court’s refusal to give the instruction. Errors in jury instructions which do not implicate federal constitutional rights are reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Flood (1998) 18 Cal.4th 470, 490.) Under that standard, the defendant has the burden of showing that there is a reasonable probability that the outcome of the trial would have been different if the instruction had been given. (People v. Rundle (2008) 43 Cal.4th 76, 134.) To establish prejudice, Means argues only that the evidence was “far from overwhelming.” The jury, however, found the evidence sufficiently persuasive to meet the petitioner’s burden of proof beyond a reasonable doubt. Means does not make any argument or point to any evidence which would support the conclusion that if the jury had been told that it could not draw any adverse inference from his failure to testify, it might have found that the petitioner had failed to satisfy its burden. Accordingly, if the question of prejudice were before us, we would conclude that the omission of the requested instruction was not prejudicial.
Means contends that “only a slight showing of prejudice need be made.” He bases this contention on the fact that in In re Luis C., supra, 116 Cal.App.4th 1397, the court reversed with no discussion of prejudice. Cases are not authority for issues they do not address, however (People v. Alvarez (2002) 27 Cal.4th 1161, 1176), and the fact that the court in In re Luis C. did not discuss prejudice cannot be bootstrapped into an affirmative holding that “only a slight showing” of prejudice is required.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Gaut J.
Section 1026.5 provides that the maximum term of commitment is the maximum term of imprisonment which could be imposed for the offense or offenses of which the person was convicted. (§ 1026.5, subd. (a)(1).) It provides that the commitment may be extended beyond that maximum term only if the person was committed under section 1026 for a felony, “and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1).) “If the court or jury finds that the patient is a person described in paragraph (1), the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed. This commitment shall be for an additional period of two years from the date of termination of the previous commitment . . . .” (§ 1026.5, subd. (b)(8).)