Opinion
A113127
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. LONNIE LEE DANIELS, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant and appellant Lonnie Lee Daniels appeals from a judgment revoking his outpatient status and recommitting him to Atascadero State Hospital. Appellant contends the Superior Court violated his substantive due process rights when it recommitted him based on a finding of dangerousness, without a concomitant finding of mental illness. Appellant also asserts Penal Code section 1609, on which the superior court based its ruling, is unconstitutional. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On August 29, 1995, armed and under the influence of methamphetamine, appellant robbed a Safeway store. He was arrested at the scene and charged with second degree robbery under Penal Code section 211. The complaint included a charge of personal use of a firearm under sections 1203.06, subdivision (a)(1) and 12022.5 and listed six prior robbery convictions and one for attempted robbery.
Further statutory references are to the Penal Code unless otherwise stated.
Appellant pleaded guilty to the charges, and not guilty by reason of insanity. Two court-appointed psychiatrists found no indication of insanity either at the time of the robbery or the time of examination. However, a third psychiatrist diagnosed appellant with severe brain damage. Subsequent testing revealed "neurological abnormalities," attributable to head trauma and chronic substance abuse, which may have caused "transient global amnesia." Appellant based his insanity defense on this diagnosis. On December 13, 1996, the parties stipulated to appellants insanity plea. The People conditioned their stipulation on appellants agreement to accept the maximum commitment term of life and not to petition for or accept restoration of sanity for at least 17 years. On January 7, 1997, the court committed appellant to Atascadero State Hospital for a maximum term of life, pursuant to section 1026.
At his September 2005 revocation hearing, appellant freely admitted "malingering" his insanity defense in order to avoid prison. He admitted the same to police when arrested in December 2004. One of appellants doctors, Herb McGrew, also testified, stating extensive testing at Atascadero had never revealed any mental illness. Dr. McGrew testified again at the November 2005 restoration hearing and opined appellant had never been legally insane.
In January 1998, hospital staff recommended appellant for outpatient treatment in Solano Countys Conditional Release Program ("CONREP"). The court approved the application after denying a prosecution motion to keep appellant confined. Appellants release to CONREP was ordered on May 5, 1998.
Despite a promising start, appellants compliance with the CONREP program ultimately deteriorated into a repetitive cycle: criminal conduct, rehospitalization, treatment for substance abuse, return to outpatient status and more criminal conduct. For example, in August 2000 appellant tested positive for heroin (for the second time in two weeks); CONREP revoked outpatient status and returned him to Atascadero; there appellant "refine[d] his relapse prevention plan" and was returned to outpatient status on August 31, 2000; he remained free until May 2001 when CONREP learned of a DUI arrest and two more positive heroin screens. On December 7, 2004, San Francisco police arrested appellant on firearms charges and CONREP moved the court to revoke his outpatient status.
At the revocation hearing on September 21, 2005, CONREP Director Steve Williams testified about appellants transgressions while on outpatient status between May 2001 and December 2004. These included numerous failed urinalyses; violations of CONREP curfew, income and travel restrictions and four arrests. The court found appellants failure to comply with the terms and conditions of CONREP constituted an effective refusal of treatment under section 1608. The court also made a finding of dangerousness under section 1609, based on appellants arrest in San Francisco. Outpatient status was revoked and appellant returned to the state hospital.
Arrests were for public intoxication; possession of a concealed weapon; absconding from CONREP; and the December 7 firearms offense ).
In November 2005, appellant appeared again before the superior court for a hearing on his motion for restoration of sanity. Two forensic psychologists, Dr. McGrew and Dr. Cohan, testified appellant was not legally insane and had probably never been legally insane. They did note appellants ongoing diagnoses of polysubstance abuse disorder and antisocial personality disorder. The court found appellant had met his burden of proof and shown he no longer suffered from a mental defect, disease or disorder. The court noted appellant remained dangerous, but because his dangerousness did not stem from a mental illness he had satisfied the requirements of section 1026.2, subdivision (e) and could no longer be hospitalized. The court ordered appellant released to CONREP once more.
Appellant returned to court on January 31, 2006, in response to the Peoples January 5 petition to discontinue outpatient status. The People moved for revocation under section 1609, alleging appellant had again proven a danger to the health and safety of others. The basis for the motion was a series of letters sent by appellant, to his ex-girlfriend, Arpage Nicholson in November and December 2005. Nicholson testified at the revocation hearing, characterizing the letters as "violent." She perceived the letters as a threat to herself and her family. CONREP Director Williams, whom Nicholson had contacted about the letters, also testified, stating he considered the letters "very threatening." On the other hand, appellant testified and characterized the letters either as a joke or as a warning to Arpage Nicolson about the dangers of a promiscuous lifestyle.
In addition to the revocation motion, the Solano County District Attorneys Office charged appellant under section 646.9(b) (stalking) with a strike enhancement under sections 1170.12(a)-(d) and 667(b)-(i). The charges were still pending at the conclusion of the revocation hearing.
In the letters appellant tells Nicholson she will "never be completely free of me," and expresses his intention to "dominate" her; appellant imagines himself on death row; notes harming someones family members is effective retaliation for unfaithfulness; relates several stories of men torturing and killing their wives and girlfriends and; imagines himself attending Nicholsons funeral, "shak[ing] his head saying, `She wouldnt listen to me. I told her so." Nicholson testified about the last letter, and how it prompted her to contact police and then CONREP.
Neither party presented any evidence regarding appellants mental health and the court made no findings in that regard. However, the court did find appellant posed a "substantial danger to Ms. Nicholson" and revoked his outpatient status on that basis alone. Thereafter, appellant was returned to the state hospital and this appeal timely followed.
DISCUSSION
Appellant contends the People must connect dangerousness to a showing of mental defect, disease or disorder in order to comply with substantive due process and permit revocation. Furthermore, he argues the disparity between section 1026.2, subdivision (e) [granting outpatient status to a restoration of sanity petitioner who shows he is no longer dangerous due to mental defect, disease or disorder] and section 1609 [requiring the prosecutor show only dangerousness to revoke outpatient status] leads to absurd results. On these bases appellant asks this court to reverse, reinstate his outpatient status, and either declare section 1609 unconstitutional or construe it to require a showing of mental illness.
Statutory Scheme
In California, criminal defendants may assert the complete, affirmative defense of not guilty by reason of insanity ("NGI"). The trier of fact determines legal sanity in a separate proceeding, held after a guilty verdict in the criminal trial. (§ 1026, subd. (a).) An insanity plea prevails by demonstrating legal insanity at the time of the offense, by a preponderance of the evidence. (§ 25, subd. (b).) Once deemed insane, the community program director (a mental health professional) evaluates the defendant and recommends a course of treatment to the court. (§ 1026, subd. (b).) Based on the recommendation, the court commits the defendant either to a state mental hospital, other treatment facility, or outpatient program. (Ibid.) The court cannot commit an NGI felony acquittee ("acquittee") for longer than the maximum prison term for the charged offense. (§ 1026.5, subd. (a)(1).)
However, an acquittee may be released from commitment before expiration of the maximum term, by showing restoration of sanity. The superior court must hear a petition for restoration of sanity filed any time after the first 180 days of commitment. (§ 1026.2, subd. (d).) The acquittee, the treatment facilitys medical director, or the outpatient program director may file such a petition and begin the restoration of sanity process. (§ 1026.2, subd. (a).)
There are three steps to the restoration of sanity process. First, the court hears the petition and determines whether acquittee "will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community[.]" (§ 1026.2, subd. (e).) If so, the court proceeds to the second step — releasing acquittee into a yearlong supervised, outpatient treatment program. (Ibid.) Upon completion of the program the court conducts a trial to determine whether sanity is in fact restored (the third step). (Ibid.) If, after trial, the trier of fact finds acquittee "is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder," sanity is fully restored. (Ibid.) The acquittee is then released from commitment with no further restrictions.
Sections 1605 through 1610 govern administration of the yearlong outpatient program. (§ 1026.2, subd. (g).) The court may revoke outpatient status upon request by the acquittees treatment supervisor (§ 1608 [if, in the supervisors opinion, acquittee "requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision"].). The prosecutor may also request revocation. (§ 1609 [the court will grant the request if "the [acquittee] is a danger to the health and safety of others."].) The court conducts a 1609 hearing using the same standards as a section 1203.2 probation revocation hearing. (§ 1609.) If the court grants a request for outpatient revocation, it may then recommit acquittee to a state hospital or other treatment facility. Revocation of outpatient status means the acquittees restoration of sanity petition has failed and the acquittee may not reapply for restoration of sanity for at least one year. (§ 1026.2, subd. (j).)
Section 1203.2, subd. (a) provides: "the court may revoke . . . if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses."
Due Process
"[S]ubstantive due process prevents the government from engaging in conduct that `shocks the conscience, or interferes with rights implicit in the concept of ordered liberty." (U.S. v. Salerno (1987) 481 U.S. 739, 746 [internal citations omitted].) For a state to commit a person for mental health treatment against their will, and do so without violating substantive due process, it must make a clear and convincing showing of both mental illness and dangerousness. (Foucha v. Louisiana (1992) 504 U.S. 71, 75-76, (Foucha).) Appellant relies heavily on Foucha for his argument that section 1609 is unconstitutional because it does not contain a mental illness component. However, Foucha is distinguishable from appellants case for a number of reasons.
Foucha, supra, 504 U.S. 71 dealt with the state of Louisianas attempt to confine an NGI acquittee indefinitely based on dangerousness alone. (Id. at p. 78.) Foucha was committed after an NGI plea to charges of aggravated burglary and illegal discharge of a firearm. (Id. at p. 73.) After less than four years of commitment a two-doctor "sanity commission" deemed Foucha legally sane. (Id. at pp. 74-75.) However, the commission declined to certify Foucha as not dangerous. (Ibid.) The doctors reluctance to do so formed the basis for prolonging Fouchas commitment and was justified under Louisiana law by Fouchas failure to prove he was not dangerous. (Id. at 75.) In a plurality opinion, the Supreme Court held one of the initial justifications for Fouchas NGI (his mental illness) no longer existed. Consequently, the state could not continue to confine him without a fresh showing of current mental illness and dangerousness. The state could achieve this only by clear and convincing evidence in a civil commitment hearing. (Id. at pp. 77-78.)
In contrast, appellant had not been found legally sane, as Foucha was by the sanity commission. Appellants NGI plea established two facts: one, he committed a crime; and, two, he did so because of mental illness. (Jones v. U.S. (1983) 463 U.S. 354, 363.) The first fact raised a presumption of dangerousness. (Id. at p. 364.) The second fact established "an inference of continuing mental illness" which provided "sufficient foundation for commitment of [the] acquittee." (Id. at p. 366.) These presumptions remain in effect until appellants sanity is fully restored. At the time of the revocation, appellant had merely begun the yearlong second step of the three step restoration of sanity process. Under Californias statutory scheme, appellant remains legally insane until his successful completion of all three steps. (§ 1026.2, subd. (e); Marshall v. U.S. (1974) 414 U.S. 417, 427 ["When [the legislature] undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation."].)
We find no support for appellants argument the first restoration hearing created a presumption of sanity. Section 1026.2, subd. (e) states: "The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate forensic conditional release program[.]" (See also People v. Superior Court (Woods) (1990) 219 Cal. App. 3d 614 [trial court cannot proceed directly to restoration of sanity hearing before completion of outpatient phase].)
We also distinguish appellants case from Foucha based on the burden of proof and term of commitment. Californias statutory scheme places the burden of proving appellants dangerousness on the prosecution, not appellant. Unlike the state in Foucha, respondent made an affirmative evidentiary showing of appellants dangerousness by presenting appellants threatening letters and the testimony of Nicholson and Williams. The trial court found this an adequate showing of dangerousness under section 1609. Moreover, appellants reconfinement is not indefinite. He may petition again for restoration of sanity one year after the date of revocation. (§ 1026.2, subd. (j).)
We also note Justice OConnors concurrence in Foucha. (Foucha v. Louisiana, supra, 504 U.S. at p. 86.) Justice OConnor confined her holding to the Louisiana statute at issue and stated "more narrowly drawn" laws would not necessarily be impermissible. (Id. at pp. 87-88.) She elaborated, saying a state could detain a dangerous acquittee provided the "nature and duration of the detention were tailored to reflect pressing public safety concerns related to the acquittees continuing dangerousness." (Ibid.) Justice OConnor cites California Penal Code section 1026.2 in particular as an example of a policy "consistent with the Courts holding." (Id. at p. 89.)
Moreover, our colleagues in the Court of Appeal, First District, Division One have examined section 1026.2 in light of Foucha and found it "falling within the description of such a `more narrowly drawn law." (People v. Beck (1996) 47 Cal.App.4th 1676, 1684.) Beck challenged the constitutionality of the one-year outpatient phase of Californias restoration of sanity process. He argued his release should be complete, unconditional and immediate upon the courts finding "he was neither mentally ill, nor violent." (Id. at p. 1680.) Our colleagues disagreed, finding Californias statutory scheme valid for three reasons. First, in line with Jones, the commission of a crime supports "an inference of potential dangerousness and possible continuing mental illness." (Id. at p. 1684.) Second, an evaluative "trial run" has obvious merits for assessing an acquittees readiness for release back into the community. (Ibid.) And third, the outpatient program poses "a lesser interference with personal liberty" especially considering the program director may recommend early restoration of sanity anytime before completion of the one-year term. (Ibid.)
The same three reasons defeat appellants challenge to the constitutionality of Californias revocation process. The inference of appellants dangerousness and mental illness continued during his outpatient term and at the time of revocation. In appellants case, the wisdom of the yearlong trial run was vindicated by a showing of his actual dangerousness and unfitness for return to the community. Finally, the fact appellant agreed not to petition for restoration of sanity until 2014 diminishes his liberty interest even further than Becks. We find the nature of the state action (revocation of outpatient status) reasonably related to the purpose of appellants original commitment (public safety) and, therefore, constitutional. (Id. at p. 1685.)
We find appellants attempt to distinguish his claims from Beck unpersuasive. His constitutional claims require the same, substantive due process analysis, despite the fact he is challenging only the revocation process.
The nature of appellants detention is commitment to a state hospital where he will continue to receive counseling and treatment for his substance abuse problems and antisocial personality disorder. Appellant may apply for restoration of sanity again after one year. Most importantly, the revocation order is a direct reflection of a highly pressing public safety concern — the threats of violence against Arpage Nicholson in appellants letters. Rather than render an absurd result, this case illustrates the proper function of section 1609, operating within the 1026.2 scheme to accomplish the twin purposes of NGI acquittal commitment — treatment of the mentally ill and protection of society. (Jones v. U.S., supra, 463 U.S. at p. 368.)
DISPOSITION
The judgment is affirmed.
We Concur:
McGUINESS, P. J.
SIGGINS, J.