Opinion
E051152
08-12-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFERSON BRUCE CHRISTOPHER, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INC082845)
OPINION
APPEAL from the Superior Court of Riverside County. J. Richard Couzens, Judge. (Retired judge of the Placer Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jefferson Bruce Christopher appeals from a judgment and order recommitting him as a mentally disordered offender (MDO) under Penal Code section 2972. He contends he received ineffective assistance of counsel (IAC), and as a result, we should remand the matter to the trial court for a hearing to determine whether he is suitable for conditional release under section 2972, subdivision (d).
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Defendant has a history of severe mental illness beginning in the 1970s, and has had multiple psychiatric hospitalizations since that time. His current diagnosis was schizoaffective disorder, bipolar type. Schizophrenia is marked by hallucinations and delusions, and bipolar disorder is marked by episodes of depression and mania.
Defendant also has a violent criminal history. On October 6, 1987, he was determined to be not guilty of an attempted murder charge by reason of insanity. He was discharged from a state mental hospital on December 14, 1992. On October 3, 2000, defendant threatened to kill a restaurant manager; he pled guilty to a violation of section 69 (resisting an officer) and was granted probation for a period of three years. While still on probation for that offense, on September 9, 2001, defendant grabbed his mother's friend, pinned her against a fence, and punched her repeatedly in the face. He was convicted by a jury of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and criminal threats (§ 422). He was later transferred from prison to a state mental hospital, and on August 21, 2004, he was found to meet the criteria as a MDO under section 2962. He therefore began involuntary treatment under section 2962.
On March 20, 2009, defendant was ordered to continue involuntary treatment until April 21, 2010. On February 4, 2010, the People filed a new petition under section 2970 seeking to once again continue defendant's involuntary treatment on the ground he still represented a substantial danger to the community.
At trial, a testifying psychiatrist explained that defendant's severe mental disorder was not in remission, and defendant continued to suffer from eccentric delusional beliefs. Also, in recent months, defendant had exhibited manic symptoms. During manic episodes defendant did not sleep, talked very fast, and was very intrusive and impulsive. In addition to medication, defendant received group therapy—about 20 hours per week.
Based on the severity of his mental illness, and his long history of violent behavior and substance abuse, the testifying psychiatrist said defendant continued to represent a substantial danger to the safety of others. All of the symptoms of defendant's illness were not under control with medication. Defendant was conflicted as to whether he believed he had a mental illness and whether he would continue to take his medications without supervision if released into a less restrictive environment or the community. According to the psychiatrist, defendant did not fully understand his need for medication and could not identify what symptoms were being addressed or controlled by them. He also had a history of not taking his medication. Without his medication, defendant would decompensate quickly and would be likely to return to substance abuse and hallucinations, which have in the past resulted in violence. Defendant also did not accept responsibility for the assault he committed and does not see the connection between the assault and his mental illness. Defendant's own testimony supported the testifying psychiatrist's opinion that defendant continued to be a danger to the community. During his testimony, defendant denied having a mental illness, and exhibited delusional behavior and paranoia.
On the other hand, the record shows defendant's condition had improved. He regularly attended his group therapy sessions and substance abuse groups, and participated at a satisfactory level. He had been attending substance abuse groups and had developed a relapse prevention plan. The record also indicated defendant had not been violent during his stay at the state psychiatric hospital. Defendant's treatment team concluded in a report prepared April 16, 2010, that he could be safely and effectively treated in an outpatient facility.
If MDO patients improved and were stable, but still met the criteria for involuntary treatment, their treatment team would typically recommend release to a less restrictive facility known as a "Conditional Release Program" or CONREP. As noted above, in the months before trial defendant's treatment team concluded he was stable enough for placement in CONREP. In December of 2007, defendant was actually released to CONREP, but returned the same day when he falsely told an employee in an intake interview that he had smoked marijuana. In addition to this incident, the testifying psychiatrist said defendant "keeps changing his mind" about CONREP. Defendant's preference had been to convince a jury he should be released without CONREP supervision, because he believed he did not have a mental illness. He indicated he would only consider CONREP as a valid option if he did not prevail at trial. Defendant also expressed ambivalence about CONREP on the stand. In addition, defendant presented conflicting testimony as to whether he would continue to take his medication in a less restrictive environment.
A jury heard the matter on June 15, 2010, and determined defendant qualified as a MDO. The court then ordered continued involuntary treatment until April 21, 2011.
DISCUSSION
Under subdivision (d) of section 2972, "[a] person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis." However, the trial court has no sua sponte duty to determine whether the defendant qualifies for outpatient status, so the defendant must make a specific request for a ruling under subdivision (d) of section 2972. (People v. Rish (2008) 163 Cal.App.4th 1370, 1384.) If the defendant does not raise the issue in the trial court and specifically request a ruling under subdivision (d) of section 2972, the claim is forfeited and cannot be raised for the first time on appeal. (Rish, at p. 1384.)
Here, defendant concedes he has forfeited his claim by not requesting a ruling from the trial court under subdivision (d) of section 2972. However, he contends he is entitled to relief because his counsel was ineffective by failing to make such a request on his behalf, even though his treatment team and the testifying psychiatrist agreed he was ready to be placed in such a program. Defendant believes counsel's performance was deficient, because he could not have had a tactical reason for failing to make the request. According to defendant, the testifying psychiatrist said on the record that he spoke to defendant the night before trial, and defendant said he was willing to accept the conditional release program.
A cognizable claim of IAC on appeal requires a showing "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an IAC claim, a defendant must also establish counsel's performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, a court may reject an IAC claim if it finds counsel's performance was reasonable, or the claimed error was not prejudicial. (Id. at p. 687.)
"Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . ' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.) In other words, claims of IAC must be rejected on direct appeal if the record does not affirmatively show why counsel failed to act and the circumstances suggest counsel could have had a valid tactical reason for not acting. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
As we read the record, it does not support defendant's contention he unequivocally told the testifying psychiatrist the night before trial that he would accept a conditional release program, and was willing to follow a treatment plan on an outpatient basis. The relevant testimony reads as follows:
"Q. And when is the last time that you spoke with [defendant] about whether he was willing to accept the Conditional Release Program as part of his treatment program?
"A. I talked to him last night.
"Q. And when you [s]poke with him last night, did he indicate that he was willing to accept the Conditional Release Program as part of his treatment?
"A. Well, the best way I can answer it, he's ambivalent about it. He said, if the team thinks that[] it's best for me, I'll take it. But what his—the concept was he will go through the trial first and see if he can be released without Con Rep. and if . . . he cannot be released, then as a second option he will accept Con Rep.
"Q. Okay. So that is—it sounds to me like you 're saying that he's not willing to accept Con Rep at this time?
"A. At this time, yes.
"Q. And that's been his position over the last few months?
"A. He has been ambivalent at best, and that has been a big issue with [defendant], that we don't know that he will be agreeable to it or not. When he was consistently agreeable for a period of time, that is when the team thought we would make a recommendation for Conditional Release Program, and that is when we made that decision that we recommended him for conditional release. He keeps changing his mind. Let me make that clear.
"Q. So one day he's willing to follow the treatment program, the next day he's not?
"A. Yes.'' (Italics added.)
More importantly, the record does not indicate what defendant told his attorney,or why his attorney did not request conditional release under subdivision (d) of section 2972 based on the recommendation of the treatment team. Defendant's own testimony and his theory of the case are inconsistent with a request for conditional release. Defendant testified he did not "really have a mental illness. [I] thought prison was never going to have anything to do with mental health. And I didn't know they could MDO me from prison. I was forced into this. . . . I never wanted anything to do with Con Rep, or mental health at Patton or Atascadero." Defendant also said he was only taking his medication so he could get out of the hospital. At first, he stated he would take his medication if released back into society, but also stated he did not have a mental illness. However, he then indicated he would stop taking his medication if he was released, because he "never had a mental illness."
IAC claims based on matters outside the record on direct appeal are more appropriately raised in a habeas corpus proceeding. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
In sum, defendant has not cited, and we were unable to locate, anything in the record which reveals with any certainty why counsel did not request a finding under subdivision (d) of section 2972. Contrary to defendant's contention, the testimony by defendant and the psychiatrist both strongly suggest counsel may not have made the request because defendant indicated he did not want to be released into an outpatient program. In other words, the record indicates counsel probably proceeded as his client wished. It is therefore likely counsel had a valid tactical reason for not making the request. Therefore, on the record before us, we can only conclude counsel's performance was reasonable under the circumstances. Because he is unable to establish deficient performance, we must reject defendant's IAC claim.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur: McKINSTER
Acting P. J.
KING
J.