Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PMH20000001
CANTIL-SAKAUYE, J.
In 1989, defendant Danny Frederick Atterbury was found not guilty by reason of insanity and committed to Atascadero State Hospital under the provisions of Penal Code section 1026 in connection with two counts of attempted murder (§§ 664/187) with great bodily injury (§ 12022.7). After multiple commitment extensions, in April 2005, the El Dorado County District Attorney filed a section 1026.5, subdivision (b) petition to extend defendant’s period of commitment at Napa State Hospital (NSH) which was due to expire on July 18, 2005. In February 2007, the jury found that: (1) defendant suffered from a mental disease, defect or disorder; (2) as a result, he posed a substantial danger of physical harm to others; and (3) as a result, he had serious difficulty controlling his dangerous behavior. The court ordered defendant’s commitment extended for two years, up to and including July 2007.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant challenges the sufficiency of the evidence to support the commitment extension. He also contends that: (1) admission of testimony regarding his prior arrests and convictions violated his constitutional rights; (2) the state violated his right of due process by providing him with drugs for pain and then asserting in the section 1026.5 proceeding that he still had a drug dependent mental illness; (3) the prosecutor committed misconduct; and (4) cumulative error requires reversal. We affirm the order extending defendant’s commitment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution’s Case:
1. The Section 1026.5 Petition:
The amended petition alleged that, “the defendant in his present status and condition, by reason of mental disease, defect or disorder, represents a substantial danger of physical harm to others” and that defendant’s “mental condition cause[d] him to have serious difficulty controlling his dangerous behavior.”
2. Dr. Paul Anderson:
Dr. Anderson had been a medical doctor for over 50 years and a psychiatrist since 1989, when he began working at NSH. NSH’s goal is to develop treatment goals that enable patients to progress toward release. If patients meet their program goals, they earn grounds cards which allow them more freedom on hospital grounds. As patients progress, they move from a locked unit to an unlocked unit and then to CONREP, a community outpatient release program run by the state. Defendant had a grounds card at the time of trial and could leave the ward anytime cards were available.
Anderson had been defendant’s psychiatrist at NSH for most of the time since July 2000. He testified that defendant was first hospitalized for psychiatric reasons at Agnew State Hospital in 1971. Defendant was hospitalized at Atascadero State Hospital for the current offense in 1989, after he shot his ex-girlfriend and her new boyfriend. There was some indication that substance abuse was involved in those crimes. In 1989, the mental health team diagnosed defendant as suffering from a mental disorder -- schizophrenia, paranoid type.
Dr. Anderson also described what defendant’s hospital records revealed about his criminal history. Prior to his commitment in 1989, defendant had been arrested approximately 30 times for a variety of crimes including narcotics-related offenses, kidnapping, carrying a concealed weapon, disorderly conduct while intoxicated, disturbing the peace, battery, assault with a deadly weapon, robbery, and driving while intoxicated.
Defendant admitted a “strong substance abuse history.” Between the ages of 18 and 40, defendant drank alcohol daily and smoked marijuana. He also used phencyclidine hydrochloride (PCP), methamphetamine, and cocaine from 1967 through the 1970’s. However, heroin was defendant’s drug of choice beginning in 1972.
Dr. Anderson testified about the defendant’s results on the Hare Psychopathy Checklist, the Violent Risk Appraisal Guide (VRAG), and the historical and risk management tests (HCR-20) administered by three forensic psychiatrists in March and November 2004. All three tests help assess risk of violence. In March 2004, defendant was on the anti-psychotic medication Navane, and scored better than he had in November when he was no longer taking Navane. In November 2004, defendant scored 27 on the Hare Psychopathy Checklist. Only 17 percent of male forensic patients score higher than defendant did. Defendant scored 9 on the VRAG which means that there is a 58 percent chance of violent re-offense within 10 years. Defendant’s score on the HRC-20 was 31, demonstrating a “very significant risk.”
Dr. Anderson described defendant’s current diagnosis using the Diagnostic Statistical Manual Fourth Edition (DSM-IV). The DSM-IV is used by all mental health professionals in diagnosing and treating patients. On Axis I, which includes psychotic disorders and substance abuse problems, defendant suffers from psychotic disorders NOS with poly-substance abuse. NOS relates to the question whether defendant’s symptoms are due to substance abuse or schizophrenia. Anderson clarified that “the diagnosis is possibly substance dependance [sic] in a controlled environment.” However, this did not mean that defendant was actively acquiring alcohol, heroin or marijuana at NSH. Anderson explained that defendant received up to 90 milligrams of morphine per day for pain and acknowledged that it was a “big amount.” When asked if defendant had a history of malingering, Dr. Anderson cited notes from Dr. Jarvis, a forensic psychiatrist in Davis. Defendant told the psychiatrist that, “he was telling lies and wasn’t ill at all and just malingering so he could get drugs.” Dr. Anderson downplayed defendant’s use of morphine, explaining that NSH was concerned if patients were in pain. “[H]opefully, if the pain is relieved, then they can move on and have further goals.” Dr. Anderson acknowledged that once released, heroin might be a substitute if defendant could not get morphine. He noted that the combination of mental illness and substance abuse, such as heroin addiction, makes the mental health problem worse. But Anderson expressed hope that defendant had learned the skills at NSH that would help him avoid returning to substance abuse.
As to Axis II, which lists personality disorders and disabilities in intellectual functioning, Anderson diagnosed defendant as having a paranoid personality disorder with antisocial features. Over the years, mental health staff had generally agreed that defendant had strong paranoid tendencies. On Axis III, which applies to physical problems that might relate to the mental illness, Dr. Anderson described defendant’s various medical conditions, including hepatitis C, which possibly impacted his mental health. Regarding Axis IV, which includes psychosocial factors, defendant’s psychosocial problems in this area included his hospitalization and interaction with the legal system. As for Axis V, global area functioning, defendant had a score of 50 which was “not very high, but . . . high enough for people to be in the community.”
Dr. Anderson opined, based on the totality of the information before him, that defendant currently posed a danger to society due to his mental illness, if not maintained in a controlled setting. He explained that defendant had “a high risk of violent behavior, and that he doesn’t trust other people. And it could be just some verbal abuse that he will start with and then can go to physical abuse very quickly.” When asked about the best indicator of future violence, Dr. Anderson cited defendant’s past history. He stated that defendant posed a risk because he was a 58-year-old man who had never been very functional. Anderson noted that defendant had a lot of arrests and other difficulties which began in high school and involved very significant violence.
It was also Dr. Anderson’s opinion that defendant lacked the ability to control himself and his dangerous behaviors. Anderson elaborated: “I think if he were willing to accept treatment and understand where his difficulties are that he might. . . . [¶] [I] think he’s got the ability to think things through to some degree, but because of the paranoia he won’t accept that he may have an internal anger problem that can lead to violence.”
Dr. Anderson testified that defendant was a difficult patient at NSH. He stated that defendant had been “resistive” and refused to discuss much of anything with him since 2005. Defendant was “not willing to discuss his treatment plan and . . . not willing to accept that he has a mental illness or . . . needs to be working on anything.” Anderson agreed with counsel that most of the staff would “love to see [defendant] out of the hospital.”
Anderson described defendant as defiant and litigious. He had a number of angry outbursts in 2005 and 2006. Defendant screamed at staff, yelled racial and ethnic slurs, and repeatedly threatened to report staff to the state licensing board. In addition, defendant filed lawsuits against a considerable number of people, including Dr. Anderson. Anderson stated that, “our fear is that if he gets out and does this to people in the community, they may not tolerate it.” However, in spite of the history of lawsuits, angry outbursts and verbal threats, defendant had no history of physical encounters with anyone since 1989.
Dr. Anderson reported that defendant had been released on CONREP on two separate occasions. On the first occasion -- between March 1993 and April 1995 –- defendant’s participation was revoked because he refused to sign a placement contract with the Gateway program. On the second occasion, defendant was released on CONREP in 1996, but drank alcohol in 1997 and returned to NSH. Defendant now refuses to participate in CONREP, calling it “a corrupt system.” Anderson testified that defendant plans to shut down the hospital and CONREP after he is released.
Anderson cited defendant’s delusions about CONREP and treatment as symptoms of his paranoid personality disorder. He explained that there is a danger that “if a person has an illness and doesn’t recognize what the warning signs are, then they can become not predictable, they’re not stable.” Such delusions make defendant dangerous “because he has impulse to act on some of his fears.”
B. Defendant’s Case:
1. Dr. Eugene Roeder:
Dr. Roeder, a licensed psychologist, conducted a five-hour evaluation of defendant in 1997. He saw defendant again in 2003 and 2005, between two and three hours on each occasion. The purpose of the 2003 and 2005 evaluations was to determine whether defendant was ready for transfer to outpatient status. Roeder reviewed defendant’s medical records before testifying at trial.
Roeder agreed with Dr. Anderson’s Axis I diagnosis that defendant suffered from psychosis and substance abuse. However, Roeder believed that the diagnosis of psychosis was based on the 1989 symptoms. Roeder testified that although Dr. Anderson’s diagnosis was correct, in his opinion, the psychosis was in remission. Dr. Roeder’s reasoning was similar regarding the diagnosis of poly-substance abuse in a controlled setting because defendant was not currently abusing drugs. Roeder stated that until defendant was outside the controlled hospital setting, it was appropriate to keep the poly-substance abuse diagnosis.
As to Axis II, Dr. Roeder agreed with Dr. Anderson that defendant suffered from paranoid personality disorder. Turning to the GAF scores in Axis V, Roeder confirmed that someone with scores in the 50-60 range was “definitely in need of some mental health treatment.” A person with scores below 30 or 40 would need to receive “24/7” care in a psychiatric facility.
Dr. Roeder explained that there were several ways to predict dangerousness. He agreed with Dr. Anderson that, “[t]he first and most significant way that we assess dangerousness is to look at someone’s history. We know that a history is the best predictor of future behavior.” However, Roeder explained that mental health professionals also use actuarial information in predicting dangerousness. Data shows that males are more dangerous than females, younger males more dangerous than older males, and substance abusers more dangerous than people who do not abuse substances. Finally, it is necessary to consider an individual’s current psychological makeup in terms of judgment, impulse control and other factors that correlate with higher levels of dangerousness. Dr. Roeder testified that, “[t]here’s really not a correlation with psychosis and dangerousness. But if a psychotic individual has been dangerous in the past, then they are more dangerous than other psychotic individuals.”
After reviewing defendant’s history, Roeder concluded that defendant had a higher likelihood of assaulting someone than the average person. He described defendant’s criminal history as “extensive” in terms of the number of violent and anti-social acts. However, Dr. Roeder believed that defendant’s more recent history and the total absence of physically violent acts since 1989 “basically balances out the earlier history of dangerousness and violence.” Roeder explained that although defendant had expressed anger on numerous occasions during the last 18 years, he had responded verbally or in writing rather than in physical ways. Defendant told Roeder in interviews, “Yes, I’m dangerous, but with my typewriter.” Roeder viewed defendant’s litigiousness in a positive light, stating: “[A]s much as some people might not appreciate or enjoy receiving communication from [defendant], that’s a much more appropriate way for him to deal with his frustrations rather than through physical violence or assault.”
Dr. Roeder described defendant’s interaction with mental health and other medical professionals. Defendant was very frustrated when Roeder evaluated him in 2003. “It felt like to him that he was very ill, was having these problems, and that these weren’t being treated appropriately by the doctors.” Defendant was doing better physically in 2005, likely the result of his “squawk[ing]” about inadequate medical treatment. However, defendant’s mental health status remained a source of great frustration. Roeder testified that defendant “really didn’t think that he was getting treatment, quite frankly didn’t think he needed it.”
Roeder elaborated on defendant’s paranoid personality disorder. People with that diagnosis have “a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent.” They “will suspect without sufficient basis that others are exploiting, harming, or deceiving them. . . . They also tend to be unforgiving and harbor grudges.” By itself, paranoid personality disorder does not make someone dangerous, but three factors increase the danger. First, the potential for dangerousness increases “[i]f we mix into a personality like this substance abuse.” Second, lack of impulse control increases the potential for violence. Third, if the person has poor reality testing, there is a “higher likelihood that the person would act in some type of a violent way in response to these feelings of mistrust and suspiciousness.”
Although defendant currently suffers from a mental disease, defect or disorder in the form of a paranoid personality disorder, Dr. Roeder opined that defendant did not have any of the three traits that would lead a person with that diagnosis to become dangerous. Defendant’s belief that psychiatry is a fraud is not a delusion, but simply an unusual opinion. It would be a delusion if, by contrast, defendant believed that the psychiatrists plotted after hours to slip medications into his drinks. Roeder also testified that defendant demonstrated no symptoms of impulse control difficulties at NSH.
On cross-examination, Dr. Roeder responded to questions about possible opiate dependence, stating that he had not observed defendant engaging in drug-seeking behavior in connection with the morphine he received for pain. Roeder testified that it was possible that defendant had “a little dependence” on the morphine, but noted that receiving morphine at NSH was “very, very different from someone who is abusing heroin.” He continued, “[H]eroin is a drug that’s abused for psychological reasons and the morphine is being prescribed for pain management.”
Defendant told Dr. Roeder that he preferred to remain at NSH rather than deal with CONREP. Roeder testified that CONREP would require drug testing based on defendant’s history. He agreed that it was essential to monitor defendant’s abstinence in this way. Dr. Roeder opined that, “if [defendant] returns to substance abuse, his likelihood of dangerousness is increased.”
Dr. Roeder also agreed that it would be easier for defendant to get out of NSH if he cooperated with the program. However, Roeder explained that “from [defendant’s] aspect, that would be playing the game, and we already talked about his personality. That is just not his personality.”
2. William Sargent:
William Sargent was retired but assisted mental health patients as a field investigator for the Citizens Commission on Human Rights. Sargent had known defendant about eight years and visited him at NSH. Sargent testified that if defendant were released he could live with him, his wife and children on a 27-acre ranch in Millville. No one on Sargent’s property used illegal drugs or alcohol. Sargent testified on cross-examination that he would turn defendant in and evict him if he used drugs or alcohol while living at his ranch.
3. Defendant Danny Atterbury:
Defendant testified that he was 58 years old, on Medicare, and considered disabled due to a spinal compression fracture. He did not accept mental health treatment stating, “I’m not mentally ill. I never really have been mentally ill.” He added that there was no valid treatment for anyone who was mentally ill. Defendant declared that he became bored with group therapy because they made patients sit in groups and talk about the same things over and over again.
When defendant first arrived at NSH, he did everything they asked him to do. However, defendant became disillusioned when he realized that he was not getting anywhere. He acknowledged that he had done “something very bad” when he shot people years before and was sorry it happened. However, defendant testified that he had never attempted or threatened to assault anyone at NSH. He stated that he had a general privilege pass that enabled him to regularly use the library, gym and canteen. These areas were not closely supervised. If released, defendant planned to stay with Sargent until he got established. He hoped to use his computer and writing skills to help Sargent with patient advocacy.
Defendant testified that he found CONREP too restrictive. The first time that defendant was in the program, he was unable to obtain the records CONREP wanted. The second time, he was living with developmentally disabled people and there was no place for him to lock up his possessions. Defendant was so frustrated with CONREP on that occasion that he drank some beer and took a bus back to NSH. He testified: “I smelled like alcohol, and that’s why what I did it for, so I could go back there; at least at the hospital I could have my computer and go to school and stuff there.”
Defendant stated that he took no drugs except morphine for pain associated with his back injury. He would not take morphine if he got out and was able to see a back surgeon. Defendant stated that he was not addicted to morphine. He had a bad experience with illegal drugs in the past and had not taken any kind of drug for many years. However, when he fell in 2001 and aggravated an old injury, he ended up on morphine. Defendant testified that he had decided that drug abuse was a very bad thing. He continued: “[I]t just ruins people’s lives. It ruined mine for years.” Defendant testified that he had gone through years of drug treatment programs at NSH.
Defendant described his difficulties living at NSH and dealing with Dr. Anderson and other mental health staff. When asked, “Why don’t you just give in and agree that you have a mental illness and go along with the program,” defendant responded: “Because I don’t want to live a lie. I have some integrity.”
On cross-examination, defendant recounted his criminal history in detail. He admitted that he was diagnosed as paranoid schizophrenic when committed in 1989, but testified, “[I]t was the amphetamine that did it to me.” He reiterated that he was not mentally ill and not dangerous. With respect to the incidents at NSH in which he yelled, cursed and called people names, defendant admitted that he “may have got angry,” but stated that he had been provoked.
DISCUSSION
I.
Sufficiency of the Evidence
To extend a defendant’s commitment pursuant to section 1026.5, subdivision (b), the prosecution must prove beyond a reasonable doubt that: (1) the defendant has a mental disease, defect, or disorder; (2) as a result of the mental disease, defect, or disorder, defendant currently poses a substantial danger of physical harm to others; and (3) as a result of the mental disease, defect, or disorder, the person has serious difficulty controlling his dangerous behavior. (§ 1026.5, subd. (b)(1); People v. Galindo (2006) 142 Cal.App.4th 531, 536 (Galindo).) Defendant on appeal does not take issue with whether he suffers from a mental disease, defect or disorder. Dr. Anderson’s testimony included among other things, that defendant suffers from psychotic disorders NOS with poly-substance abuse. Dr. Roeder agreed with Dr. Anderson’s diagnosis that defendant suffers from psychosis and substance abuse. Rather, defendant argues that there is insufficient evidence to support the jury’s true finding on the last two elements -- that as a result of a mental disease, defect or disorder he poses a substantial danger of physical harm to others and has serious difficulty controlling dangerous behavior. We conclude that the record supports the jury verdict.
Section 1026.5, subdivision (b)(1) provides: “A person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been 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.”
A. Standard of Review:
Whether the prosecution has proved its case is a question of fact for the jury to resolve with the assistance of expert testimony. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204-205, 215.) Indeed, testimony by mental health experts will often be the only way for the prosecution to establish whether dangerousness or lack of control exists. (People v. Bennett (1982) 131 Cal.App.3d 488, 497.)
Where, as here, a defendant challenges the sufficiency of the jury’s findings, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 573].) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (In re James D. (1981) 116 Cal.App.3d 810, 813.) The same standards apply to challenges to the sufficiency of the evidence in section 1026.5 proceedings. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-508.)
A single psychiatric opinion can support a verdict to extend commitment. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490.) An appellate court may not reject the testimony of a witness who has been believed by the trier of fact unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Here, Dr. Anderson and Dr. Roeder agreed on much of the evidence presented to the jury. They differed in their assessment of the impact of defendant’s behavior during his 18-year commitment and the significance of the absence of any physical violence at NSH. In the end, the findings turned on the inferences the jury drew from the evidence. We conclude that those inferences were supported by the evidence.
B. Substantial Danger of Physical Harm To Others:
Dr. Anderson and Dr. Roeder relied on several factors in assessing whether defendant posed a substantial danger of physical harm to others. They agreed that past history was the best indicator of future violence. Other factors included actuarial information such as sex, age, and substance abuse, and defendant’s current psychological makeup in terms of judgment and impulse control.
Defendant suggests that Dr. Anderson relied too heavily on defendant’s criminal history and argues that, “criminal history alone cannot prove a current substantial danger of physical harm to others.” The record contradicts defendant’s claim that Dr. Anderson relied too heavily on defendant’s criminal history to the exclusion of other relevant factors. Although Dr. Anderson considered defendant’s numerous arrests prior to his commitment in 1989, he also emphasized the impact of defendant’s paranoia. Anderson believed that defendant “doesn’t trust other people. And it could be just some verbal abuse that he will start with and then can go to physical abuse very quickly.” In addition, Dr. Anderson cited what Dr. Roeder referred to as actuarial factors, stating: “[W]e have a gentleman that is 58 years old who has never been very functional, has a lot of arrests, and had difficulties beginning in high school.”
Defendant also argues that we must reject Dr. Anderson’s testimony regarding the psychological tests performed in 2004 because “there was absolutely no testimony describing what these tests involved, or what criteria they used.” Citing People v. Dodd (2005) 133 Cal.App.4th 1564, 1570 (Dodd), he maintains that an expert opinion “‘cannot be reasonably based on nonspecific and conclusory hearsay that does not set forth any factual details of an act necessary for the opinion.’” Defendant then shifts his argument to criticize Dr. Anderson’s testimony as “nonspecific, conclusory” and lacking “factual details.” There is no merit in either argument.
We begin by explaining how this case differs from Dodd. In that mentally disordered offender (MDO) proceeding under section 2960 et seq., the prosecution’s psychologists relied upon an unattributed comment concerning an uncharged offense contained in the probation report to support their opinion that the defendant suffered from pedophilia. (133 Cal.App.4th at p. 1567.) The court explained that although an expert may base his or her opinion on information that is inadmissible hearsay, that information must be “reliable and of the type reasonably relied upon by experts on the subject. [Citations.]” (Id. at p. 1569.) It reversed the judgment because the parole report “[did] not identify the source of the information regarding the [uncharged offense], and nothing in the report or the record as a whole indicate[d] that the parole agent obtained the information from police officers, witnesses, the victim and her family, arrest or crime reports, his own investigation, or any other source which could be deemed reliable.” (Id. at p. 1570.) Here, Dr. Anderson based his testimony on standardized tests which provide a proper basis for a mental health expert’s opinion. (See People v. Stoll (1989) 49 Cal.3d 1136, 1154.) Indeed, the defense expert, Dr. Roeder, referenced the results of the same tests in his October 2005 evaluation of defendant.
Whether an expert’s testimony is nonspecific, conclusory or lacking factual basis goes to the weight of the evidence. The court instructed the jurors that they were not required to accept the expert opinions as true or correct. They could “consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.” The court also instructed the jurors, “You must decide whether [the] information on which the expert relied was true or accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” We presume that the jury followed the court’s instructions and accepted the portion of Dr. Anderson’s opinion that it found to be adequately supported. (See People v. Smith (2007) 40 Cal.4th 483, 517.)
C. Serious Difficulty In Controlling Dangerous Behavior:
Defendant offers three points in support of his contention that there was insufficient evidence to show that he had serious difficulty controlling dangerous behavior.
First, defendant cites Dr. Anderson’s testimony on cross-examination that defendant had committed no violent acts since 1989 as evidence that he was able to control his behavior. However, defendant fails to include the entire exchange in which Anderson qualified the cited testimony, thereby undermining defendant’s claim. The record reads as follows:
“[DR. ANDERSON]: [Defendant] has a long history of having problems with the law, and almost all of it is all due to, you know, being violent at times.
“[DEFENSE COUNSEL]: But that hasn’t occurred as far as you know since 1989?
“A. That’s true. As far as he’s been in the hospital. I think that he is able to know that it is not appropriate to be striking people.
“Q. All right. So he’s conforming his behavior, then, because of the environment?
“A. I think so, to a degree.”
Moreover, the question of defendant’s ability to control his behavior involved more than the lack of violent physical assaults at NSH. Dr. Anderson and Dr. Roeder agreed that defendant suffered from paranoid personality disorder. There was also evidence that defendant had “a real anger problem” but attended only one anger management class during his time at NSH. In spite of the institutional controls cited by Dr. Anderson, defendant had a history of screaming at staff, yelling racial and ethnic slurs, refusing to participate in treatment, and filing lawsuits against those who crossed him. In 2006, defendant verbally assaulted another patient and refused him entrance to one of the bathrooms. Dr. Anderson feared that “if [defendant] gets out and does this to people in the community, they may not tolerate it.” The jury could reasonably infer from this record that defendant’s conduct at NSH manifested anger and paranoia, and was itself dangerous behavior that defendant was not willing or able to control.
Second, defendant labels Dr. Anderson’s observations concerning defendant’s paranoia and anger “merely speculative.” However, Anderson explained the basis for his opinion that defendant lacked the current ability to control his dangerous behavior: “I think if [defendant] were willing to accept treatment and understand where his difficulties are that he might [have the ability to control himself]. But . . . he has a lot of skills in doing research, he likes to do legal research. [¶] So I think he’s got the ability to think things through to some degree, but because of the paranoia he won’t accept that he may have an internal anger problem that can lead to violence.” Dr. Anderson’s observations were not speculative.
Third, defendant argues that “even the prosecutor recognized the evidentiary insufficiency” during closing argument by arguing that defendant’s intense efforts at fighting the system showed a lack of control that was “not particularly dangerous.” However, in the next sentence, the prosecutor asked jurors to consider, “[W]hat does it tell you about his underlying psyche[?]” Based on the reasonable inferences the jury could draw from this and other evidence, it found that defendant had serious difficulty controlling his dangerous behavior. We will not second-guess that finding on the record before us.
II.
Admission of Prior Arrests and Convictions Did Not Violate Due Process
Defendant contends that the evidence elicited by the prosecution in the direct examination of Dr. Anderson and the cross-examination of defendant was inadmissible under Evidence Code sections 1101 and 352. He argues that the trial court’s decision to admit “the onslaught of testimony about [defendant’s] prior convictions and arrests dating back as far as 40 years ago” rendered the proceeding fundamentally unfair in violation of his right to due process. There is no merit in defendant’s contentions.
Evidence Code section 1101 reads in relevant part: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. “(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
We begin by noting that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353; see People v. Harrison (2005) 35 Cal.4th 208, 230 (Harrison).) As we shall explain, defendant forfeited his Evidence Code section 352 argument by failing to make a timely and specific objection on the record.
Turning to the merits of the Evidence Code section 1101 claim, it is important to remember that, “[a] proceeding to extend the commitment of a patient under Penal Code section 1026.5 is essentially civil in nature, because it is directed to treatment and not punishment. [Citation.]” (Williams, supra, 233 Cal.App.3d at p. 485.) No criminal adjudication is involved. (Ibid.) Instead, the prosecution has the burden of proving that: (1) the defendant has a mental disease, defect, or disorder; (2) as a result of the mental disease, defect, or disorder, defendant currently poses a substantial danger of physical harm to others; and (3) as a result of the mental disease, defect, or disorder, the person has serious difficulty controlling his dangerous behavior. (§ 1026.5, subd. (b)(1); Galindo, supra, 142 Cal.App.4th at p. 536.) Thus, the section 1026.5 trial differs in a material way from a criminal trial where in the latter, the prosecution must prove that the defendant committed a specific criminal act.
Evidence Code section 1101, subdivision (a) bars the use of character evidence, including evidence of prior convictions, when offered to prove that the defendant committed the specific criminal act at issue in a criminal trial. (See People v. Carter (2005) 36 Cal.4th 1114, 1147.) By its language, Evidence Code section 1101, subdivision (a) does not bar the use of prior arrests or convictions when offered on the broader questions posed in a section 1026.5 proceeding -- whether by reason of a mental disease, defect or disorder, defendant currently poses a substantial danger of physical harm to others and has serious difficulty controlling his or her dangerous behavior. And defendant cites no case applying Evidence Code section 1101 to preclude the admission of the criminal history of a defendant in a section 1026.5 commitment extension hearing.
Even if Evidence Code section 1101, subdivision (a) applies in this case “we review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (Harrison, supra, 35 Cal.4th at p. 230.)
With these principles in mind, we turn to the evidence at issue.
A. Direct Examination of Dr. Anderson:
During direct examination, the prosecutor asked about the criminal history that Dr. Anderson was able to glean from defendant’s medical records. Defense counsel objected on grounds of relevance. He elaborated at side bar, stating: “The witness is simply talking about things that had never been the subject of prosecution, and he’s gone way beyond, and it just makes an outrageous history of my client as somebody who was convicted of many things, and he just read arrests so far.” The court asked the prosecution to clarify that Dr. Anderson was referring to arrests and allowed the questioning to continue.
The prosecution concedes and we agree that defendant preserved his objections to admission of Dr. Anderson’s testimony on grounds of lack of relevance and Evidence Code section 1101. Although defense counsel was not required to cite Evidence Code section 352 in his objection (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014 (Kirkpatrick)), in this case defense counsel’s language did not preserve an objection under that statute. He did not argue specifically that the probative value of the prior arrests was substantially outweighed by prejudice to defendant. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.) Defendant offers no authority for his argument that the reference of “outrageous history . . . was sufficient to alert the court to ‘undue prejudice’ under section 352.” A timely and specific objection is required. (Kirkpatrick, supra, at p. 1014.)
Turning to the merits of defendant’s objections, we reject the argument that evidence of his prior arrests was irrelevant. Defendant maintains that Dr. Anderson’s testimony “was irrelevant because long ago prior arrests [had] no tendency in reason to prove [defendant], as a result of a mental disorder, currently posed a substantial danger of physical harm and had serious difficulty controlling dangerous behavior.”
Dr. Anderson stated defendant posed a risk because he was a 58-year-old man who had never been functional. Anderson noted that defendant had a lot of arrests and other difficulties which began in high school and involved very significant violence. Defendant argues that, “[w]hile Dr. Anderson could rely upon [defendant’s] prior record of criminal convictions in forming his opinion, his hearsay testimony about [defendant’s] prior arrests was irrelevant.” However, both Dr. Anderson and Dr. Roeder testified that defendant’s past history was the best indicator of future violence. That history consisted of arrests and convictions. Moreover, the fact that some of the arrests did not lead to convictions seems to us to favor defendant’s case. Evidence of arrests and convictions was therefore relevant at trial of the section 1026.5 issues. The fact that the arrests took place before 1989 goes to the weight, not the admissibility, of the evidence. The court did not abuse its discretion in admitting Dr. Anderson’s testimony concerning the arrests mentioned in defendant’s medical reports.
We also conclude that evidence of defendant’s prior arrests was properly admitted notwithstanding Evidence Code section 1101, subdivision (a). The prosecution did not introduce the evidence to show defendant’s propensity to commit violent or anti-social acts in order to prove that he committed a specific criminal act on a particular occasion. Instead, the evidence was introduced to show the basis for Dr. Anderson’s opinions and to help the jury assess whether defendant posed a risk of physical harm to others and had serious difficulty controlling his dangerous behavior – matters at issue in the section 1026.5 trial. It was up to the jury to give whatever weight it felt appropriate to defendant’s past criminal history and to balance that against the 18 crime free years he spent at NSH. The evidence was also relevant in determining defendant’s ability to control his behavior in the community without the benefit or oversight of CONREP or other state plan.
Because Dr. Anderson’s testimony regarding defendant’s prior arrests was properly before the court, there was no due process violation.
B. Cross-Examination of Defendant:
The prosecutor cross-examined defendant in detail about his pre-1989 convictions. When cross-examination ended, defense counsel cited prosecutorial misconduct and moved for dismissal or mistrial. He noted that cross-examination “went on at quite some length and in quite some detail into the sum and substance of each individual offense.” Defense counsel argued that the questioning did not go to show defendant’s tendency to be violent but “really did nothing more than to seek to demonstrate in front of the jury that [defendant] is a bad person. Not one who is or may be violent, is or may be dangerous, but just that he is a bad person because he got convicted of all of these offenses.”
The prosecutor responded that Dr. Roeder, the defense expert, testified that prior crimes were relevant to the issues before the jury. The prosecutor also argued that defendant’s crimes involved substance abuse, violence or credibility, which the jury had to consider because defendant testified at trial.
The court agreed with the prosecution stating, “In all of the cases I have ever handled under the mental health commitments in [sexually violent predator] cases or the like, we look at the entire history of the person concerned. Because it is relevant, in my opinion and in the mental health expert’s opinion, to a determination as to what the person’s current risk of danger to [sic] harm to others and whether they can control their behavior.” The court denied the motions for mistrial, dismissal and sanctions.
Once again, defendant forfeited his Evidence Code section 352 challenge by failing to make a specific objection at the time the prosecutor began cross-examining defendant on his prior convictions. (Harrison, supra, 35 Cal.4th at p. 230.) Moreover, nothing in defense counsel’s language indicated that he based his motion for mistrial on anything other than alleged prosecutorial misconduct for arguing irrelevant matters to the jury. Defendant argues that an objection on Evidence Code section 352 grounds would have been futile because “the trial court decided [defendant’s] entire criminal history was relevant and refused counsel’s request for [an] instruction.” However, the question whether defendant’s criminal history was relevant is different from the question whether the evidence was more prejudicial than probative.
We also reject, for the reasons already explained, defendant’s argument that evidence of defendant’s convictions was irrelevant and inadmissible under Evidence Code section 1101, subdivision (a). The evidence was relevant to the question of defendant’s current dangerousness. Accordingly, the court did not abuse its discretion in denying defendant the requested relief following the prosecutor’s cross-examination of defendant on his prior convictions.
Because defendant’s testimony regarding his prior convictions was properly before the court, there was no due process violation.
III.
Morphine, Drug Dependence and Due Process
Defendant objected numerous times during trial to evidence and argument that linked his taking 90 milligrams of morphine a day with his history of poly-substance abuse and the potential danger that he would cause physical harm to others if released. The court consistently ruled against defendant, stating that there was a basis in the evidence for the prosecutor’s argument that defendant “still has a drug problem.”
Citing section 1026.5, subdivision (b)(11), which states that “[a]ny commitment under this subdivision places an affirmative obligation on the treatment facility to provide treatment for the underlying causes of the person’s mental disorder,” defendant suggests that defendant’s use of morphine for back pain is “treatment.” He then argues that it violates due process for the state to provide him with drugs for pain while he is civilly committed and then argue to the jury that by virtue of those drugs, he still suffers from mental illness and poly-substance dependence and poses a substantial danger of physical harm to others. There are several flaws in defendant’s argument.
First, it cannot be said that NSH was mandated by section 1026.5, subdivision (b)(11) to provide defendant with morphine since the drug was not prescribed for his mental illness. Indeed, defendant acknowledges in his reply brief that NSH gave him morphine “because he was in pain,” not for his mental illness. Defendant testified that he began taking morphine in 2001 after he fell and aggravated an old back injury. Dr. Anderson explained that NSH was concerned if patients were in pain. He stated that if the pain is relieved, patients can set treatment goals and move on. Thus, NSH provided morphine to treat defendant’s back pain in order to facilitate mental health treatment. Providing morphine in this context cannot form the basis for a due process claim in the section 1026.5 proceeding.
Second, the court was correct that the prosecutor was entitled to elicit evidence relevant to the issues before the jury and argue the inferences to be drawn from that evidence. There is nothing in the record to suggest that the prosecutor’s argument violated defendant’s right of due process.
Dr. Anderson testified that the combination of mental illness and substance abuse makes the mental health problem worse. Dr. Roeder elaborated on defendant’s paranoid personality disorder testifying that the disorder itself does not make someone dangerous, but three factors increase the danger -- among them, “if we mix into a personality like this substance abuse.” Dr. Anderson opined that 90 milligrams of morphine per day was a “big amount” and even Dr. Roeder testified that it was possible that defendant had “a little dependence” on the morphine, although he noted that receiving morphine at NSH was “very, very different from someone who is abusing heroin.” Thus, defendant’s current use of large doses of morphine and a diagnosis which included poly-substance abuse were relevant to the jury findings on the questions whether, due to mental disease, defect or disorder, defendant currently posed a substantial danger of physical harm to others and had serious difficulty controlling his dangerous behavior. (§ 1026.5, subd. (b)(1); Galindo, supra, 142 Cal.App.4th at p. 536.)
IV.
Prosecutorial Misconduct
Defendant cites three instances of misconduct on the part of the prosecutor during closing argument: (1) the prosecutor improperly relied on “the morphine provided by Napa State Hospital as a basis for claiming [defendant] was mentally ill due to polysubstance dependence”; (2) the prosecutor improperly quantified the concept of proof beyond a reasonable doubt; and (3) the prosecutor “repeatedly focus[ed] the jury upon what the results of its decision would be – [defendant’s] release.” He contends the misconduct entitles him to reversal.
Federal and state standards applicable to prosecutorial misconduct are well established. “‘“‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) The burden of proof is on the defendant to show that misconduct occurred. (People v. VanHouten (1980) 113 Cal.App.3d 280, 292.) To obtain relief on appeal, defendant must also establish that prejudice resulted from the prosecutor’s conduct. “Prosecutorial misconduct is cause for reversal only when it is ‘reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant.’ [Citation.]” (People v. Milner (1988) 45 Cal.3d 227, 245 (Milner).)
“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) If defendant did not follow this procedure at trial, his claim is subject to appellate review only if an admonition would not have cured harm caused by the misconduct. (People v. Price (1991) 1 Cal.4th 324, 447.)
We apply these principles to each instance of alleged misconduct and conclude that reversal is not required.
A. Defendant’s Use of Morphine:
During closing argument, the prosecutor made several references to the danger of renewed substance abuse based on defendant’s use of morphine for back pain. First, the prosecutor argued, “You know the substance abuse has haunted this man for many years, many, many years, and you have to wonder maybe Napa’s really making the wrong decision giving him morphine, particularly when his drug of choice was heroin.” Defense counsel objected that this argument improperly asked the jury to speculate because there was no evidence that defendant was dependent on the morphine. The court overruled the objection, stating, “This is argument.”
Second, during rebuttal the prosecutor referenced defense counsel’s “outrage[]” that the prosecutor argued that the drug furnished by the state was one reason for not letting defendant out. “Well, you know, you don’t change the facts. The facts are what they are. The drug that he is getting currently is an opiate. The drug of his choice before was heroin, an opiate.” When defense counsel attempted to object, the court told him not to interrupt again. The prosecutor continued his argument that defendant might be dependent on the morphine. Later, outside the presence of the jury, the court apologized for cutting off defense counsel and explained: “[M]y view of the evidence is contrary to your view. [¶] Dr. Anderson, in fact, testified that he believed that [defendant] had polysubstance dependency. . . . And Dr. Roeder says that he possibly –- indicates that he developed a dependence on [morphine]. [¶] So I think there is a basis in the evidence for his argument.”
We agree with the court’s analysis. In closing argument, the prosecutor may not state facts not in evidence or mischaracterize the evidence. However, counsel is accorded “‘great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation].’” (People v. Valdez (2004) 32 Cal.4th 73, 133-134.) “Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine.” (People v. Lewis (1990) 50 Cal.3d 262, 283.) There was no misconduct.
B. “Quantifying” Proof Beyond a Reasonable Doubt:
In defendant’s closing argument, counsel referred to Dr. Anderson’s testimony based on the statistical studies that “[t]here [was] a 50 percent chance that [defendant] will engage in some type of violent behavior in the next 10 years.” Defense counsel then argued, “Ladies and gentlemen, that’s barely over a 50/50 coin toss. You can’t say that is beyond a reasonable doubt.”
The prosecutor responded as follows during rebuttal: “Concerning the actuarial study, or actually just –- the statistical studies and Dr. Anderson mentioned something about a 50 percent likelihood the defendant would engage in a fight in the next 10 years in violent behavior. [Defense counsel] says that is better –- barely better than a coin toss. There is nothing says that it has to be more likely than not. Nothing that says it has to be beyond a reasonable doubt –- that it is going to a 90 percent certainty. There is nothing that says what level of certainty there has to be of future violence.” The prosecutor continued, “There has to be -– elements have to be proven beyond a reasonable doubt, but that is not to say what level has to be reached, 50 percent, 20 percent, 80 percent. There is nothing there.”
Defense counsel objected at that point arguing, “This is the first time [the prosecutor] has misstated either the law or the facts. It obviously cannot be anything other than beyond a reasonable doubt. And to make a representation that some other standard satisfies that is misconduct.”
The court overruled the defense objection, stating: “You state your theories, he is entitled to state his theories. The jury has to decide for themselves what proof beyond a reasonable doubt means.” The court admonished the jury, “[I]n light of the instructions that I have given you, you are the ultimate determiners of whether that burden of -– that high burden of proof has been satisfied in this case, folks.”
On this record, we are hard-pressed to second-guess the court’s determination that no misconduct occurred. The prosecutor’s brief comments were at best ambiguous referring to either the statistical studies or the burden of proof. We do not read the comments as an attempt to define reasonable doubt. In context, it seems more likely that the prosecutor was responding to defense counsel’s assessment of the results of one of the psychological tests administered to defendant.
In any event, if there was misconduct, it was harmless. It is not reasonably probable that defendant would have received a more favorable verdict had the prosecutor refrained from making the comments challenged by defendant. (Milner, supra, 45 Cal.3d at p. 245.) In addition to the admonition given after its ruling, the court informed the jury, “In this proceeding, the People must prove beyond a reasonable doubt” each of the three elements required under section 1026.5. The court also instructed the jury as follows on the definition of reasonable doubt: “The People must prove each element of the petition beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the petition is true. [¶] The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [¶] Unless the evidence proves each element of the petition to be true beyond a reasonable doubt, he is entitled to a finding that it is not true.” We presume the jury acted reasonably and followed the instructions given by the court. (People v. Cunningham (2001) 25 Cal.4th 926, 1014.)
C. Focusing The Jury on the Results of Its Decision:
In closing argument, the prosecutor cited defendant’s “refusal to accept supervision on a release program” and asked, “But what’s going to happen when he gets out with no controls[?]” The prosecutor continued, “I think you have to question whether the defendant is any way, shape or form a reasonable person to be released from a mental hospital.”
During rebuttal, the prosecutor returned to the same topic: “Supposedly [defendant] has a place to go. He has a plan. Well, he has a plan that there is no state control. No state control whatsoever. . . . The prosecution is mandated to come to the court to advocate for the state plan. And that’s what I am doing, the state plan has stated oversight, we have testing, we have -– whatever conditions are appropriate, that’s what needs to happen with [defendant]. [¶] [Defendant] can get out under the right circumstances. He has been let out before, but it has to be under the right circumstances.” The prosecutor added: “[T]here are ways to get over that [drug] dependency if there is such a problem, but it all goes back to money, unfortunately, money to get into the appropriate medical treatment program, money to get a better drug such as methadone, if it is a better drug at all. [¶] And how is [defendant] going to do any of that with this private plan? [¶] I submit to you the defendant is a danger if he is released.”
Defendant did not object to this line of argument in either the prosecutor’s initial closing argument or the rebuttal closing argument. However, on appeal he argues that the prosecutor committed misconduct “by repeatedly focusing the jury upon what the results of its decision would be – [defendant’s] release.” He maintains that “[t]he prosecutor’s argument encouraged the jury to ignore the specific issues they were required to decide – if, due to a mental disorder, [defendant] posed a current substantial danger of physical harm and had serious difficulty in controlling his dangerous behavior – and to instead contemplate the consequences of their decision.”
We conclude that the defendant forfeited the issue on appeal by failing to make a timely objection or requesting an admonition at trial. Nothing prevented counsel from objecting to the prosecutor’s comments concerning defendant’s release that were made in the initial closing argument. The court’s request that defense counsel “not interrupt again” was made during the prosecutor’s rebuttal argument on the morphine issue. Prior to the court’s request, it had already overruled defendant’s objection to the morphine issue in the prosecutor’s initial closing argument. Nothing suggests that the court’s request extended to other issues in argument. Thus, the record does not support his assertion that an objection would have been futile.
In any event, even if the prosecutor’s comments could be viewed as misconduct under the rationale of the cases cited by defendant, which hold that it is inappropriate to instruct the jury about the consequences of finding defendant a danger to others where it could “‘improperly deflect [the jury’s] attention from the issue of the defendant’s current mental condition’” (People v. Collins (1992) 10 Cal.App.4th 690, 696, quoting People v. Kipp (1986) 187 Cal.App.3d 748, 750-751), the alleged misconduct was harmless. The jury already knew from the evidence and instructions that defendant was committed to NSH and the verdict could result in his release. Dr. Anderson, Dr. Roeder and defendant all mentioned defendant’s experience with CONREP, and it was clear that defendant sought unconditional release from NSH. The prosecutor did not encourage the jury to ignore evidence that defendant was no longer dangerous. He simply used closing argument to highlight what was already before the jury. Moreover, the court instructed the jury with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 200, which reads in part: “Do not let bias, sympathy, prejudice, or public opinion influence your decisions. [¶] You must reach your verdict without any consideration of punishment.”
Based on this record, we conclude that it is not reasonably probable defendant would have received a more favorable verdict had the prosecutor refrained from making the challenged comments. (Milner, supra, 45 Cal.3d at p. 245.)
V.
Cumulative Error
As a final matter, defendant claims that cumulative error requires reversal. Having found no error, or that any possible error was harmless, we reject this claim.
DISPOSITION
The order extending defendant’s commitment is affirmed.
We concur: HULL, Acting P.J., BUTZ, J.