Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Ct. No. 2001003342, Charles R. McGrath, Judge
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster, David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Kenneth David Ruz appeals the order extending his commitment to the California Department of Mental Health for treatment as a mentally disordered offender (MDO). (Pen. Code, §§ 2962, 2966, subd. (c), 2970.) Ruz contends the trial court erred by failing to instruct the jury that a recommitment required the People to prove (1) he would not take his medication if released or would be a substantial danger to others even with medication, and (2) he suffered from a volitional impairment making him dangerous beyond his control. Ruz also claims the trial court erred in orally instructing the jury regarding expert opinions. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
In 2001, Ruz was convicted of five counts of attempted kidnapping (§§ 664/207, subd. (a)), stalking (§ 646.9, subd. (b)), burglary (§ 459), false imprisonment (§ 236), and disobeying a domestic relations order (§ 273.6, subd. (e)). The offenses involved an attack on his wife where Ruz entered the wife's home unannounced, tackled her, bound her wrists, and taped her mouth shut. Ruz was committed for treatment as an MDO as a condition of parole for his offenses. In August 2008, the People filed a petition to extend his commitment. (§ 2970.)
Trial was by jury. At trial, Dr. Robert Beilin, a psychologist and psychology teacher, testified that he had evaluated Ruz at Atascadero State Hospital twice a year for the past three years, and had reviewed his own reports and reports by other experts prior to testifying. He testified that Ruz suffered from a severe mental disorder he identified as a "[p]sychotic disorder not otherwise specified." The disorder is characterized by distorted thoughts and hallucinations or delusions. Ruz has a "fixed delusion" that he was a military agent with duties other people could not understand. He also has "fixed delusions" that the government was out to get him, the government had influenced his wife and child, he had been falsely accused of harming his family, and he was acting on behalf of God. Dr. Beilin testified that a "fixed delusion" could not be cured, but could be mitigated through medication and/or hospitalization.
Dr. Beilin testified that Ruz's severe mental disorder was not in remission and presented a substantial danger of physical harm to others. His opinion was based on written records, including reports that Ruz had stopped taking his medication on certain occasions. Dr. Beilin testified that a parole violation in January 2008 showed an increase in his delusional behavior and the danger of violence. The parole violation involved Ruz's obtaining entry onto a military base through false pretences, and attempting to board a military airplane in order to leave the state. Military personnel became suspicious, determined that he was on parole, and contacted his parole agent who took Ruz into custody. Dr. Beilin also testified that Ruz did not acknowledge that he had a severe mental disorder which required medication.
The parole violation facts were recited by Dr. Beilin on written records, and confirmed by testimony by the military officer who investigated the incident.
Forensic psychologist Patricia Kirkish testified that, based on a review of Ruz's medical files and a personal interview, Ruz suffered from hallucinations, delusional beliefs, and severe depression. Dr. Kirkish testified that Ruz's delusions included religious delusions, a belief that his wife had been impregnated by her boss with a genetically-engineered child, and that he had flown combat missions in the military in both the Army and Air Force. Dr. Kirkish concluded that Ruz suffered from a severe mental disorder, and posed a substantial danger of physical harm to others. She testified that he refused to acknowledge his disorder or his violent behavior towards his wife. Dr. Kirkish declined to testify as to whether Ruz was in remission because she had not seen him in a couple of months, but testified that, if he continued to have delusional beliefs, he would not be in remission. After hearing Ruz's trial testimony, Dr. Kirkish returned to the witness stand and testified that Ruz was not in remission but was in "partial remission." She repeated her testimony that he represented a substantial danger of physical harm to others.
Ruz testified on his own behalf. He acknowledged but minimized and justified his commission of the underlying offenses. He denied having many of the delusional beliefs which had been the subject of testimony by Drs. Beilin and Kirkish. He further testified that he had a mental illness consisting of delusions of grandeur and anger, and was embarrassed by the disorder.
On August 15, 2009, the jury found the petition to extend Ruz's commitment true, and the trial court ordered a one-year extension.
DISCUSSION
No Sua Sponte Duty to Instruct Concerning Medication
The jury was instructed that the required elements of an MDO commitment are a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and by reason of the severe mental disorder, the person represents "a substantial danger of physical harm to others." (§§ 2970, 2972, subd. (c).) The instructions defined "severe mental disorder" as an "illness or disease or condition which substantially impairs the person's thought, perception of reality, emotion process, or judgment; or which grossly impairs behaviors;" and "remission" as a "finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (§ 2962, subd. (a).)
Specifically, the court instructed the jury that the People must prove beyond a reasonable doubt: "1. The person has a severe mental disorder; and [¶] 2. The severe mental disorder is not in remission or cannot be kept in remission without treatment; and [¶] 3. By reason of his severe mental disorder the person represents a substantial danger of physical harm to others."
Ruz does not challenge these instructions, but contends that the trial court had a sua sponte duty also to instruct the jury that the People had the burden of proving beyond a reasonable doubt either that he would not take his medication if released, or that he was dangerous even while taking medication. We disagree.
A trial court has a sua sponte duty to instruct on general principles of law that are closely and openly connected with the facts of the case. (People v. Garvin (2003) 110 Cal. App.4th 484, 488-489.) When an instruction relates particular facts to the elements of an offense charged, however, it is a pinpoint instruction that need not be given absent a request. (Ibid.; see also People v. Saille (1991) 54 Cal.3d 1103, 1120.)
A defendant's claim that medication controls his severe mental disorder challenges the "substantial danger of physical harm" element of an MDO extension. (People v. Noble (2002) 100 Cal. App.4th 184, 189.) As such, the instruction is a pinpoint instruction that must be given only if requested by the defense. There was no request in this case.
The reliance by Ruz on Noble is misplaced. In Noble, the trial court instructed the jury that the People had the burden of proving the elements of an MDO commitment extension beyond a reasonable doubt, but also instructed the jury that a person does not represent a substantial danger of physical harm to others if the defendant proves that in "'... his present medicated condition he no longer represents a substantial danger of inflicting physical harm upon others...'" and he "'... will continue to take the medication as prescribed, in an unsupervised environment....'" (People v. Noble, supra, 100 Cal. App.4th at p. 189.) By instructing the jury that the defendant had the burden of proving he would continue to take his medication, the trial court erroneously shifted to the defendant the burden of proving that he did not represent a substantial danger of physical harm to others. (Id. at pp. 189-191.) Noble is inapposite because, here, the trial court did not give any instruction that shifted the burden of proof to Ruz.
There is also dicta in Noble stating that when an MDO defends on the theory that he or she is not dangerous to others while medicated, the trial court should instruct the jury that the People "have the burden to prove, beyond a reasonable doubt, that if released, the defendant will not take his or her prescribed medication and in an unmedicated state, the defendant represents a substantial danger of physical harm to others." (People v. Noble, supra, 100 Cal. App.4th at p. 190.) But, contrary to Ruz's assertion on appeal, he did not defend on that theory at trial and there was substantial evidence that he would not take his medication if released and presented a substantial risk of harm to others even while medicated.
At trial, Ruz claimed that, because he had not engaged in any violent or aggressive behavior since 2001, he no longer suffered from a severe mental disorder or presented any substantial risk of harm to others. He further claimed that his mental disorder involved "grandiosity," but did not currently or recently exhibit any dangerous delusional behavior. As the case was presented and argued, an instruction regarding the burden of proof as to medication was not required. There is no reasonable possibility that the absence of the instruction caused the jury to be confused or to fail to apply the appropriate test.
No Sua Sponte Duty to Instruct on Volitional Impairment
Ruz contends the trial court erred by failing to instruct the jury sua sponte that recommitment required a finding that he suffered from a volitional impairment that makes him dangerous beyond his control or otherwise had a mental disorder that causes serious difficulty in controlling dangerous behavior. Ruz acknowledges that his argument was rejected in People v. Putnam (2004) 115 Cal. App.4th 575, but argues both that Putnam was wrongly decided and undermined by In re Howard N. (2005) 35 Cal.4th 117, 128. We disagree.
In Putnam, the jury was instructed on the essential elements of an MDO recommitment in a similar manner to the instructions in the instant case. (People v. Putnam, supra, 115 Cal. App.4th at p. 579.) The defendant claimed the instructions were constitutionally inadequate because they did not provide that dangerousness required a finding that he had a "serious present difficulty in controlling his behavior" (id. at p. 580), which created the possibility that the jury might sustain the petition based solely on his severe mental disorder, without a finding of dangerousness.
Relying on People v. Williams (2003) 31 Cal.4th 757, Putnam concluded that instructions reciting the statutory requirements of an MDO recommitment "necessarily encompassed a determination that appellant had serious difficulty in controlling his violent criminal behavior, and... separate instructions on that issue were not constitutionally required." (People v. Putnam, supra, 115 Cal. App.4th at p. 582.) The MDO statute does not require an express finding that a person's mental disorder causes serious difficulty in controlling his or her dangerous behavior. (Id. at p. 583.)
In addition, our Supreme Court's decision in Howard N. does not undermine Putnam. In Howard N., the court considered the issue of volitional impairment under the procedures for the extended civil detention of mentally disordered juvenile offenders. (In re Howard N., supra, 35 Cal.4th at p. 122; Welf. & Inst. Code, § 1800 et seq.) Although not expressly included in the statute, Howard N. imposed a "requirement of serious difficulty in controlling dangerous behavior," as consistent with the statute's legislative intent. (Id. at p. 132.)
The decision in Howard N. is inapposite because it involved a different statutory scheme that, unlike the SVPA and MDO commitment schemes, does not define mental disorder in a way that linked the condition to impairment affecting the ability to control behavior. Therefore, instructions tracking the statutory language of the civil commitment scheme at issue in Howard N. did not necessarily inform the jury of the need to find lack of volitional control as it would in an MDO case.
Error in Oral Instructions Harmless
Ruz contends that the trial court committed prejudicial error by orally instructing the jury regarding the weight to be given expert opinions. We disagree.
The standard form written instructions provide that the jury "must consider the opinions [of experts], but you are not required to accept them as true or correct." (CALCRIM No. 332.) In orally instructing the jury, the trial court inadvertently omitted the word "not" and stated that "you are required to accept [expert opinions] as true or accurate." This omission was error, but it is well established that the written version of jury instructions governs any conflict with oral instructions and that an error in oral instructions is harmless where the corresponding written instructions given to the jury are correct. (People v. Rodriguez (2000) 77 Cal. App.4th 1101, 1113.)
To avoid the established rule, Ruz argues that the record does not show that the jury ever received written instructions to correct the error. We reject this argument.
As Ruz asserts, there is no minute order expressly stating the jury was given written instructions, and the trial court did not expressly state that written instructions would be provided. The record, however, is replete with references to the preparation and court approval of written instructions.
An August 13, 2008, minute order entered during trial states that "[t]he court and counsel settle jury instructions," and the reporter's transcript states that the court and counsel discussed jury instructions. There were also references to written instructions during argument. In addition, the clerk's transcript includes written jury instructions filed with the court on August 14. In the absence of clear evidence to the contrary, we must presume the jury received the written instructions which had been prepared by the court and counsel, and which were referenced during argument to the jury.
In any event, even without consideration of the written instructions, the trial court's error in its oral instructions was harmless under either the Chapman or Watson standards of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Although the record shows the omission of the word "not" from one sentence, the oral instructions clearly and unequivocally instructed the jury that it could disregard or disbelieve the opinion of an expert. Within a few sentences of the omission, the court expressly stated that the jury "may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." Shortly thereafter, the court instructed the jury that "[y]ou may find but are not required to find that respondent represents a physical danger to the public based solely on the testimony and opinions of expert witnesses." In addition, there was no objection by either party to the omission and, during argument, the accuracy and believability of the experts' opinions was hotly contested.
The judgment (order of commitment) is affirmed.
We concur: GILBERT, P.J., YEGAN, J.