Opinion
No. C042254.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. ABRAHAM JIMINEZ GALINDO, JR., Defendant and Appellant.
Abraham Jiminez Galindo, Jr. (Galindo) appeals from the order extending his commitment to Napa State Hospital (NSH) after the jury found that Galindo was mentally ill and represented a substantial danger of physical harm to others. (Pen. Code, § 1026.5, subd. (b); undesignated section references are to this code.)[] He contends the trial court prejudicially erred in failing to instruct sua sponte (1) on the affirmative defense that he was not dangerous while medicated and that he would take medication if released, and (2) on an element of recommitment, that is, Galindo is a person committed for a felony under section 1026. We will affirm the order of commitment.
FACTS
Since November 2001, David Earl Thomas, a staff psychiatrist at NSH, has treated 53-year-old Galindo. Since May 2000, Jill Leijonflycht, a social worker at NSH, has been a member of Galindos treatment team.
Dr. Thomas explained that Galindo suffers from a bipolar disorder, a biochemical disorder of the brain and genetically linked to a chromosome, and currently suffered from the manic type which consisted of a period where Galindos mood is very expansive or very irritable. For his bipolar disorder, Galindo takes lithium which is a mood stabilizer, leveling out the mood swings. Since excessive doses of lithium can be lethal, Galindos blood is tested every three to four months. Dr. Thomas noted that, at times, Galindo becomes very loud, angry, irritable, argumentative, defensive and blames others and, at other times, he is very charming, pleasant and cooperative. Galindo also lacked empathy for the pain and suffering of other patients.
Dr. Thomas further explained that Galindo has a polysubstance dependence in total remission due to his hospitalization. Galindo also suffered from an antisocial personality disorder which is characterized by a failure to conform to the rules of society. Persons with the disorder typically lie, cheat, manipulate others for personal gain, are impulsive and have a history of becoming irritable and assaultive with no remorse for their behavior. Dr. Thomas described Galindo as cunning, manipulative, a liar, and as someone who used aliases while involved in an illegal business.
Based on Galindos test results, Dr. Thomas opined that Galindo is a psychopath. Galindo scored in the 92nd percentile which meant that Galindo is more dangerous than 92 percent of all other male patients. Galindo had a history of violent behavior, having been convicted of rape. Galindo also had a history of substance abuse, which included alcohol, marijuana and cocaine. Prior violent behavior and substance abuse are factors taken into consideration to determine whether Galindo represented a substantial danger. Galindo refused to attend a particular substance abuse education program involving small groups but he did attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings. Dr. Thomas noted that those persons with bipolar disorder might self-medicate with illegal drugs.
According to Dr. Thomas, Galindo has never acknowledged his mental illness which is important for someone to do in order to manage the illness, understand the need for medication, and improve with ongoing treatment. Although Galindo takes lithium at the hospital without difficulty, Galindo believes he needs no medication because he does not have bipolar disorder. Dr. Thomas opined that Galindo would stop taking lithium if released.
Galindo saw no need to participate in a relapse prevention program or sex offender treatment. He denies committing the rape, claiming that the Mexican Mafia framed him and describing the judges and lawyers as crooks. He sees no need for a conditional release program (CONREP), claiming he can take care of himself, and refuses to meet with representatives from CONREP. CONREP is required before release from the hospital. Although he was involved in pimping, Galindo denies any antisocial behavior, claiming instead that he was a high-class businessman. He admitted drug dealing but claimed he only dealt "`the real good stuff."
Galindo performs occupational functions very well. He worked in landscaping as a sandblaster at NSH and contributed to the cost of his care. Galindo had never threatened or harmed anyone with his work tools. Galindos work is secondary to his treatment but he tries to avoid regular treatment groups by overdoing at work. He attends assigned treatment groups but does not cooperate with his treatment team. Galindo had earned the privilege of going onto the hospital grounds for two hours in addition to the time he worked.
Dr. Thomas and Jill Leijonflycht opined that if released, Galindo presented a substantial danger of committing physical harm to others based on his history of angry outbursts, substance abuse, denial of a mental disorder, and lack of understanding of the need for medication. Dr. Thomas also opined that even if Galindo remained on medication and sought treatment while released, he could still present a substantial risk to others. While medicated and supervised, Galindo had never displayed any violent tendencies at NSH, but he had at Atascadero State Hospital, although the records did not indicate the nature of the incidents. Dr. Thomas opined that Galindo had learned to manipulate the system and was just going through the motions of taking his medications and attending treatment groups and that he was not emotionally invested in his treatment. Although Galindo behaved appropriately at the hospital, Dr. Thomas opined that Galindo would not conform if released although it was possible if given structure.
Galindos sister, Diane Galindo, planned to care for Galindo if released. He would live with her and she would ensure that he complied with all requirements including treatment and medication. She had contacted a psychiatrist to set up a program. Galindo wanted to help care for Dianes three children. She claimed Galindo is never violent.
Galindo testified that he has been at NSH for six years and, before that, he had been at Atascadero and Patton State Hospitals. He desired to live with his sister and was willing to do whatever mental health care providers required including taking medication. He planned to support himself as a sandblaster. Galindo completed many substance abuse courses while committed to state hospitals.
Galindo admitted having committed the sale of methamphetamine in 1989, cultivation of and sale of marijuana and possession of cocaine in 1988, possession of marijuana for sale in 1984 and forcible rape and first degree burglary in 1976. In 1996, he was found not guilty by reason of insanity.
Galindo claimed he had been diagnosed with depression only while at Atascadero and Patton and does not believe that he suffers from any other disorder. He believes he requires no medication and claims he was taken off medication while at Patton and was doing great without it.
DISCUSSION
I
Galindo contends the trial court prejudicially erred in failing to instruct sua sponte on the affirmative defense that he was not dangerous while medicated and that he would take medication if released. We conclude that the failure to so instruct was harmless error.
Section 1026.5 does not define a crime but is analogous to one in that the patient is "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings" (& sect; 1026.5, subd. (b)(7)) and "[t]he rules of discovery in criminal cases shall apply." (§ 1026.5, subd. (b)(3); see also People v. Bolden (1990) 217 Cal.App.3d 1591, 1596, fn. 4 ["refer[ring] to the facts the People must prove as `elements and defensive matters as `defenses."].)
"`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case."" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
A trial court has a duty to instruct sua sponte on an affirmative defense "only if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendants theory of the case." (People v. Michaels (2002) 28 Cal.4th 486, 529.) Substantial evidence is "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 205 & fn. 8.) We do not consider the credibility of witnesses in determining whether there is substantial evidence. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)
A defendant in a recommitment trial may raise as an affirmative defense whether he will self-medicate without fail in a completely unsupervised environment and bears the burden of proving the same by a preponderance of the evidence. (People v. Bolden, supra, 217 Cal.App.3d 1591, 1601-1602.)
The trial court instructed the jury in the language of CALJIC No. 4.17 as follows:
"The [P]eople have the burden of proving beyond a reasonable doubt that [Galindo] has a mental disease, defect, or disorder and by reason of that mental condition represents a substantial danger of physical harm to others."
The trial court did not instruct on the defense of medication, CALJIC No. 4.17.1, which provides:
"It is a defense to a Petition to Extend Commitment that the respondent in a medicated state does not represent a substantial danger of physical harm to others.
"The respondent has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:
"1. In his [] present medicated condition he [] no longer represents a substantial danger of inflicting physical harm upon others; and
"2. He [] will continue to take the medication as prescribed, in an unsupervised environment.
"If you find that the respondent has met this burden on these issues, you should find that he [] does not represent a substantial danger of physical harm to others."
The defense trial theory was that Galindo took his medication without fail at the hospital and did not represent a substantial danger of physical harm to others. Defense counsel argued that Galindo did not present a substantial danger of physical harm to others, having not harmed anyone while at the hospital. Defense counsel cited Galindos exemplary behavior while at NSH having earned the highest level of privilege which was not disputed. Defense counsel cited Galindos willingness to take his medication in order to be released from the hospital as Galindo had so testified. Galindo appeared to be relying on, and sufficient evidence supported, the instruction on the affirmative defense of medication.
The prosecution presented evidence that Galindo suffered from bipolar disorder, antisocial personality disorder and was a psychopath with a history of violent offenses and abuse of alcohol and controlled substances. Galindo presented no evidence to contradict this evidence. Galindo claimed his only disorder was depression but called no medical expert to contradict the prosecution witnesses and admitted his criminal history.
The medication defense is not logically inconsistent with the defense that there was a reasonable doubt in the prosecutions case. The medication defense admits, for purposes of argument, the truth of the elements of the Peoples case. (People v. Bolden, supra, 217 Cal.App.3d 1591, 1601-1602.) The trial court erred in failing to instruct sua sponte on the medication defense.
The question is: what standard of prejudice applies and was the error prejudicial? In People v. Hurtado (2002) 28 Cal.4th 1179, the California Supreme Court noted that the United States Supreme Court had not decided the standard of prejudice applicable to instructional error in civil commitment proceedings. (Id. at p. 1190.) Hurtado held that prior to a defendants commitment or recommitment under the Sexually Violent Predators Act (SVPA), the issue of whether the defendant is likely to engage in future predatory acts must be decided by the trier of fact under the standard of proof beyond a reasonable doubt. (Id. at pp. 1181-1182, 1186.) The trial court failed to instruct on the predatory act requirement. (Id. at pp. 1182, 1185, 1190.) Hurtado concluded, "[P]roceedings under the SVPA, in common with proceedings under other civil commitment statutes, are civil proceedings with consequences comparable to a criminal conviction—involuntary commitment, often for an indefinite or renewable period, with associated damage to the defendants name and reputation. The United States Supreme Court and the California courts have pointed to these consequences in cases holding that the ordinary burden of proof in civil cases, preponderance of the evidence, is constitutionally inadequate in cases involving involuntary commitment, and as we shall explain, the California courts have in turn relied on the burden of proof decisions to hold that federal constitutional error in civil commitment proceedings is reversible unless shown to be harm[less] beyond a reasonable doubt." (Id. at p. 1192.) Hurtado applied the Chapman test (Chapman v. California (1967) 386 U.S. 18) and found the trial courts instructional error harmless beyond a reasonable doubt. (Hurtado, supra, 28 Cal.4th at p. 1194.)
Here, the instructional omission was not on an "element" of the offense but rather on an affirmative defense. The affirmative defense did not place upon Galindo the burden of disproving an element of the prosecutions case. Instead, Galindo was required to prove by a preponderance of the evidence that under his present medicated condition he no longer represents a substantial danger of inflicting physical harm upon others and that continued confinement was not required to ensure self-medication. Self-medication does not negate an element of the prosecutions case but presents a public policy decision not to commit a person despite proof of the prosecutions case. The defense of self-medication is based on public policy and provides an excuse or justification separate from the elements of the prosecutions case.
"By definition, the only persons coming within section 1026.5s framework are felons who have previously proven their own insanity. . . . Given a release under section 1026.5 is an unconditional one—the released person leaves the psychiatric facility without further supervision or compulsory treatment—the Legislatures failure to define dangerousness under section 1026.5(b)(1) in terms of behavior while under treatment is no mere oversight. Both the language in section 1026.5 and the policy of protecting the public compel the conclusion that under section 1026.5(b)(1), the state sustains its burden by showing, among the other elements, the respondent is dangerous to the physical safety of others, without regard to the effect of any medication. [& para;] . . . [¶]
"[M]any people afflicted with mental illness fully function in society with the aid of medication. . . . [T]he failure to consider such evidence could result in individuals languishing indefinitely in mental hospitals because of their reluctance to rely on medication and would discourage such patients from taking medication vital to their well-being. [Citation.]
"If [Galindo] is not dangerous while medicated and will unfailingly self-medicate in an unsupervised environment in the future, section 1026.5s core policy—protecting the public from persons who have already demonstrated their dangerousness—is not threatened. Under such circumstances, there is no reason someone in [Galindos] position should remain in custody, having already served the maximum period of confinement under which he could have been sentenced had he simply pleaded guilty to the underlying offense." (Bolden, supra, 217 Cal.App.3d 1591, 1599-1600.)
The courts failure to instruct on self-medication precluded the jury from determining whether Galindo had proven by a preponderance of evidence that his medication effectively controls his behavior and that he would, without fail, take his medication voluntarily, without supervision. The right to present a defense is a fundamental due process right. (People v. Schroeder (1991) 227 Cal.App.3d 784, 787.) Although Galindo was not precluded from presenting evidence of self-medication, the jury was never informed that the same was an excuse or justification for not committing him; in effect, he was precluded from presenting his only defense. The courts error was thus fundamental and constituted federal constitutional error. As such, the Chapman test applies.
In Bolden, supra, 217 Cal.App.3d 1591, the court determined that "no reasonable jury could have concluded, by a preponderance of the evidence, that Bolden would continue to self-medicate without fail in a completely unsupervised environment." (Id. at p. 1604.) We conclude the same. Galindo relies upon his behavior while at the hospital including the lack of assaults, taking medication without difficulty, proper functioning while on medication, earning the highest privileges and working. He manipulates the system, however, to avoid treatment and his work is secondary to treatment. He denies the need for medication, but the reason he has not become violent at the hospital is because he is medicated and in a structured setting. Dr. Thomas opined that Galindo was just going through the motions and that he was not emotionally invested in his treatment. Dr. Thomas and Jill Leijonflycht believed that Galindo would discontinue medication upon release and would present a substantial danger of physical harm to others. Even if Galindo continued his medication, Dr. Thomas opined that Galindo still posed a substantial risk based on his history of substance abuse. Galindo had told the doctors, and indeed, the jury, that he believed he needed no medication. He denied any disorder other than depression. He presented no medical expert testimony to support his self-diagnosis. The failure to instruct on the defense theory of self-medication without fail was harmless beyond a reasonable doubt.
II
Galindo contends the trial court prejudicially erred in failing to instruct sua sponte on an element of recommitment, that is, Galindo is a person committed for a felony under section 1026.
Section 1026.5 provides in relevant part that a person may be committed under that statute "only if the person has been committed under section 1026 for a felony . . . ." (See fn. 1, ante.)
Assuming the trial court erred in failing to instruct the jury on this requirement, any error was harmless beyond a reasonable doubt, for the following reason:
Here, prior to presentation of evidence, the parties stipulated that Galindo has been committed under section 1026 for a felony. The court so advised the jury. It is not reasonably possible the jury would have found to the contrary had they been instructed on the question. Any instructional error was harmless.
DISPOSITION
The order extending Galindos commitment is affirmed.
We concur, NICHOLSON, J., KOLKEY, J. --------------- Notes: 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."