Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCE207093, Jeffrey F. Fraser and Janet Kintner, Judges.
HUFFMAN, J.
Scott E. Graham appeals from an order entered following jury trial extending his commitment as a mentally disordered offender (MDO) for one year under Penal Code sections 2970 and 2972. He contends that (1) there is insufficient evidence to support an implied finding that his underlying offenses qualified for MDO treatment; (2) the trial court lacked jurisdiction to extend his commitment because the trial took place after the expiration of his parole, which also violated his due process rights; (3) the court erred in denying his second motion brought under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (4) the court's responses to two jury questions violated section 1138 and denied him a fair trial. We affirm.
All statutory references are to the Penal Code unless otherwise specified.
Although Graham's one-year recommitment expired on July 11, 2007, technically rendering this appeal moot, records of this court reveal that he has recently appealed from a subsequent one-year extension of his commitment. (D052256, filed Dec. 11, 2007.) Because our determination may still effect the trial court's right to continue jurisdiction under the recommitment and the issues are of recurring importance and are likely to evade appellate review due to the time constraints of the MDO commitment, we address the merits. (See People v. Fernandez (1999) 70 Cal.App.4th 117, 134-135.)
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, after Graham was convicted of stalking (§ 646.9, subd. (a)), making criminal threats (§ 422), and making harassing telephone calls (§ 653m, subd. (a)), the trial court placed him on five-years formal probation. In 2002, Graham was sentenced to state prison after violating the terms of his probation. On July 11, 2003, he was certified an MDO and admitted to Atascadero State Hospital (Atascadero), where he was treated until he was administratively transferred to Patton State Hospital (Patton) on May 5, 2005.
On April 11, 2006, the San Diego County District Attorney filed a petition under section 2970 to extend Graham's MDO commitment, alleging the above, that his parole termination date was July 11, 2006, and that he continued to suffer "from a severe mental disorder which is not in remission or cannot be kept in remission without treatment, and by reason of such mental disorder presents a substantial danger of physical harm to others." In support of the petition, the People submitted the affidavit of Patton's medical director, Sarla Gnanamuthu, M.D., and a report from Patton's medical staff.
Due to various stipulations between the parties and defense requests for continuances, trial commenced on October 5, 2006. Two evaluators appointed to interview Graham, Dr. G. Preston Sims and Dr. Richard Rappaport, as well as Graham's treating psychiatrist at Patton, Dr. Mubashir Farooqi, testified in the People's case as experts in support of the petition.
Sims, a clinical and forensic psychologist and MDO evaluator for the San Diego County Superior Court, who had interviewed Graham and reviewed his records from Atascadero, Patton, and the California Department of Corrections (CDC), testified Graham met the statutory requirements to be an MDO and diagnosed him with schizophrenia, paranoid type, and an antisocial personality disorder. Sims based his diagnosis on Graham's history of violence, which included six assaults, his stalking conviction and possession of brass knuckles; on Graham's denial of having a mental illness; on his refusal to take psychoactive medication; and on his denial of the events that had occurred in the MDO qualifying offense, which involved the stalking of a border patrol agent and his wife. In the past, Graham had also threatened to kill his father multiple times, had spoken about buying a gun to kill an obnoxious roommate who had purportedly harassed him, and had talked about chopping off a girlfriend's head with an axe. Sims explained that Graham's long history of mental illness included delusional thoughts about the Federal Bureau of Investigation (FBI), about Border Patrol agents, about people involved in the criminal justice, medical and mental health systems, religious organizations, his own father and others he believed were "out to get him." Sims noted that the offense that resulted in Graham's probation being revoked and his eventual hospitalization had involved delusions about Border Patrol agents out to get him. Despite these delusions, which were recurrent over the past year, Graham told Sims he had not suffered any schizophrenic symptoms since 1980 and he refused to take medication that could reduce the frequency or intensity of any delusions.
In evaluating Graham's risk of future violence, Sims administered several psychological tests, including: the Hare Psychotherapy Checklist (Hare), which measures psychopathic personality traits that correlate to future violence; the Historical Clinical Risk Management 20 test (HCR-20), which was specifically designed to predict future violence in MDOs; and the Violence Risk Assessment Guide (Risk Guide), an actuarial or statistical guideline. Graham scored a 22 on the Hare test, which is in the 51st percentile and suggests a moderate risk for future violence, meaning an elevated risk compared to a person who has no history of violence or crime. On the HCR-20, Graham exhibited factors tending to also show a moderate risk for future violence. The Risk Guide showed that 17 out of 100 people with Graham's score committed violent acts within seven years and that 31 out of 100 people committed a violent act within 10 years. Based on these test scores and the fact Graham displayed delusional thoughts during his interview, Sims opined that he represented a substantial danger of physical harm to others.
Rappaport, a self-employed psychiatrist and MDO evaluator for the San Diego County Superior Court, who had also reviewed Graham's records from Patton and Atascadero and had attempted to interview him, but Graham had abruptly left the interview after about 30 or 45 minutes, agreed with Sims and the Patton treatment team that Graham suffered from long-standing paranoid schizophrenia that was not in remission and that he posed a substantial risk of physical harm to others. Rappaport's opinions were based on Graham's criminal history as well as his refusal to accept treatment for skin cancer, to take medication for his mental illness and to cooperate in the evaluation. Rappaport understood that Graham had thought a border patrol agent was going to help him and when he did not, he threatened to kill the agent and his family. Because Graham's schizophrenia was not resolved or controlled by medication as he refused to believe he had a mental illness, Rappaport opined Graham had the potential to be violent like in the past with very little chance of getting better.
Farooqi, who had treated Graham at Patton from September 2005 until May 2006, and had led his treatment team there, opined Graham suffered from a severe mental disorder, paranoid type schizophrenia, and that he met all the criteria for extended treatment as an MDO. Farooqi based this diagnosis and opinion on a review of Graham's various records and on talking with Graham and his treatment team, which included psychologists, social workers, case managers, nurses, psychiatric technicians and rehabilitation therapists. Graham's records indicated that he had had an almost 35-year history of mental illness, including delusional beliefs and bizarre behaviors, the most prevalent being delusional beliefs concerning authority figures like his father and the FBI, which he believed were after him and persecuting him. Due to his mental illness, Graham had been unable to work for any reasonable length of time or function as a normal human being in society, and received social security disability income and veteran's benefits.
According to Farooqi, Graham continued to have delusional beliefs at Patton that everyone, including his father and the FBI, had conspired to put him in the state hospital. Graham also had problems following the hospital's rules and regulations and refused to take medication for his mental illness as well as receive treatment for basal cell carcinoma on his nose, which he instead treated with tabasco sauce. Based on the above, and Graham's denial of having a mental illness that needed treatment, Farooqi concluded that not much had changed regarding his mental status from the time of his committing offense of stalking a border patrol agent. Because Graham still held the same beliefs and refused to take medication for his delusions, Farooqi believed his schizophrenia was not in remission and he would likely go back to the same mental state that had caused him to threaten the border patrol agent. Consequently, even though Farooqi had not seen any violent acts from Graham at Patton or in his review of Graham's records from Atascadero, he opined that Graham posed a substantial danger of physical harm to others.
When Graham was called by the prosecutor to testify in the prosecution case, he complained about his public defender, said he was invoking his right to represent himself and stated he would not answer any questions until he had adequate counsel. Graham's counsel had no questions for him at that time.
Defense Case
Graham testified on his own behalf. He admitted he had been diagnosed with paranoid schizophrenia in 1973, but claimed he had been in remission since 1980. He also admitted he had not taken medication at Patton or any psychiatric medication since 1980 except for trying some at Atascadero, which he stopped when it allegedly revived dormant cancer cells left after treatment for skin cancer. Graham did not believe anyone should fear for their safety if he were released. He also did not believe he would relapse into mental illness as he had healed himself by getting rid of over reliance on his ex-girlfriend.
Even though the transcript characterizes Graham's testimony as "cross-examination," such is inaccurate because the prosecution case had rested before Graham was called to testify by his own attorney in the defense case.
With regard to the underlying criminal case, Graham believed there had been an injustice as he had been falsely convicted because the victim and others lied and made everything up. He claimed that the case had been politically motivated by religious fundamentalists who had targeted him because he had meaningful criticisms of their interpretation of biblical ideology, that it was the Border Patrol agents who had harassed him, that the FBI became involved to cover it up, and that his father, a former FBI agent, had hired an attorney for him who would not defend him in order to help the government convict him. He denied he had ever had a firearm or that he had ever shot a gun outside the home of one of the Border Patrol agents.
Graham also discounted various facts concerning assault convictions in his criminal record, claiming any "head-butting" could be disproved by documents. He conceded, however, that he had punched a man in 2002, but claimed he did so only because the man had harassed him while trespassing on his property and he did not want the harassment to continue. Graham stated that if he felt threatened by the man again, he would try to defend himself.
Jury Verdict
After considering the above evidence in light of the court's instructions and argument of counsel, the jury returned the following "true" verdict:
"We, the jury in the above entitled cause, find that [Graham], is a person who has a severe mental disorder which is not in remission or cannot be kept in remission without treatment, and that by reason of his severe mental disorder he represents a substantial danger of physical harm to others."
DISCUSSION
I
SUFFICIENT EVIDENCE OF QUALIFYING CRIMES FOR MDO TREATMENT
Graham first contends that his crimes in the underlying case did not qualify for MDO treatment under section 2962, subdivisions (b) and (e). He specifically argues that there was insufficient evidence presented at the recommitment hearing to show that he had qualified for such statutory treatment. His claim is without merit.
Under the MDO Act (§§ 2960 et seq.), "[a]s a condition of parole, a prisoner may be designated and civilly committed as an MDO for involuntary treatment of a 'severe mental disorder' if certain conditions are met." (People v. Allen (2007) 42 Cal.4th 91, 99, fn. omitted (Allen).) Section 2962 provides that a prisoner may be subjected to an MDO commitment if:
" '(a) The prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment'; '(b) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of the crime for which the prisoner was sentenced to prison'; '(c) The prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner's parole or release'; '(d)' a mental health professional evaluated the prisoner and concluded that criteria (a), (b) and (c) above have been met, and that due to the severe mental disorder, the prisoner 'represents a substantial danger of physical harm to others'; '(e)' the prisoner received a determinate sentence for the crime referenced in subdivision (b), and the crime is one of the enumerated crimes in subdivision (e). [Citation.]" (Allen, supra, 42 Cal.4th at p. 99.)
Once an initial MDO commitment is established, before that period expires, "the district attorney may petition to extend the commitment by one year." (Allen, supra, 42 Cal.4th at p. 99.) If it is extended, "the district attorney may file subsequent petitions to [further] extend the MDO's commitment in one-year increments. [Citations.]" (Id. at p. 100.) In order to extend a commitment, the court or jury must find "(1) that the [prisoner/]parolee has a severe mental disorder; (2) that the disorder is not in remission and cannot be kept in remission without treatment; and (3) that the [prisoner/]parolee represents a substantial danger of physical harm to others by reason of that disorder. (§ 2972, subd. (c).)" (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075, fn. 2 (Merfield).) These three criteria are based on the prisoner/parolee's current mental condition and not on the past events that were required to be found for the initial MDO commitment. (Id. at p. 1075.) As the court in Merfield explained:
"Three of the original criteria 'concern past events that once established, are incapable of change[.]' [Citation.] By contrast, the other three criteria are based on evidence as it existed at the time of the . . . annual review hearing continuing that commitment. . . . [¶] The practical effect of this distinction is that the three criteria concerning past events need only be proven once, while the [court or jury] must find the [prisoner/]parolee meets the other three criteria at the time of [trial, if requested] in order to continue treatment for an additional year. 'Under the doctrines of res judicata and collateral estoppel, issues relating to the three criteria concerning past events that have been litigated in an MDO proceeding cannot be relitigated in a subsequent proceeding. [Citation.]' [Citation.] While issues relating to those criteria are not actually 'litigated' where the MDO does not petition for a hearing during his initial commitment, preclusive effect is also given to issues that could have been litigated in a prior proceeding. [Citation.] An MDO therefore has but one opportunity to challenge the . . . findings on the three criteria concerning past events. The MDO may do so by petitioning for a hearing in the superior court of the county in which he is incarcerated on the . . . initial commitment decision before that commitment has expired." (Merfield, supra, 147 Cal.App.4th at pp. 1075-1076.)
The court clarified that "[t]his rule applies irrespective of whether the first commitment resulted from the inmate's acceptance of the [determination by the Board of Prison Terms] or from a hearing conducted in the trial court." (Merfield, supra, 147 Cal.App.4th at p. 1077.)
Here, Graham was initially committed as an MDO under section 2962 on July 11, 2003. Nothing in the record shows that he challenged that commitment or any of the annual review hearings continuing that commitment. Rather the instant case concerns solely a petition filed to extend Graham's commitment for yet another year. Under such circumstances, as in Merfield, the court or jury was not required to find that Graham had committed a qualifying offense under section 2962, subdivisions (b) and (e) as he contends on appeal. Moreover, because such determination would relate to past events that were litigated or could have been litigated in the original proceeding resulting in the initial commitment order, and the time to challenge the findings in that initial commitment order is past, Graham's attempt to relitigate the issue now is barred by res judicata and collateral estoppel. (Merfield, supra, 147 Cal.App.4th at pp. 1075-1077.)
The record is confusing as to whether Graham may have asked for a hearing in the superior court concerning one of those annual review hearings. At a court hearing on June 12, 2006, Graham represented that he had "appealed" his last hearing in July 2005, but had withdrawn his petition in January. Graham's counsel, however, was unclear whether he was referring to his underlying case or to a hearing continuing his MDO commitment.
Graham's assertion in his reply brief that he is not barred from attacking the underlying offense as not qualifying for MDO treatment because there was no showing by the prosecution that he had waived his right to a Board of Prison Terms' hearing under section 2966 is specious. As noted above, because only the current recommitment petition for continued treatment was at issue before the court and jury in this case, challenges to the initial commitment findings, including any issue of waiver, were not relevant to that determination.
II
JURISDICTION TO EXTEND COMMITMENT
To set in motion a petition to extend an MDO's commitment by one year, "the medical director of the state hospital, the community program director, or the Director of Corrections first 'shall submit' to the district attorney a written evaluation of the prisoner '[n]ot later than 180 days' before the prisoner's termination of parole or release, 'unless good cause is shown' for delay. [Citation.] If the district attorney files a petition for continued involuntary treatment for one year [citation], the trial court will hold a hearing on the petition, and the trial 'shall commence no later than 30 calendar days' before the time the prisoner would have been released, 'unless the time is waived by the person or unless good cause is shown.' (2972, subd. (a).)" (Allen, supra, 42 Cal.4th at p. 99.) Because the trial took place after the expiration of Graham's parole termination date of July 11, 2006, he next contends that the trial court lacked jurisdiction to extend his commitment for an additional year and violated his due process rights. We disagree.
It is now established that the 30-day trial deadline in section 2972, subdivision (a), "is directory and not mandatory," and "is primarily designed to serve the interests of the public, rather than the MDO, by providing reasonable assurance that an MDO . . . will not be released unless and until a determination is made that he or she does not pose a substantial danger to others." (People v. Williams (1999) 77 Cal.App.4th 436, 450-451 (Williams); see also Allen, supra, 42 Cal.4th at p. 104.) "A trial commenced less than 30 days before an MDO's scheduled release date is not automatically invalid, nor does the trial court lose jurisdiction if trial commences after the deadline has passed. [Citation.]" (People v. Noble (2002) 100 Cal.App.4th 184, 188.) Such a proceeding in violation of section 2972, subdivision (a)'s directory time requirements is not rendered invalid absent a due process violation. (People v. Mitchell (2005) 127 Cal.App.4th 936, 943-944; Williams, supra, at p. 457.) Ultimately, the test for determining whether a due process violation has occurred requires that " 'any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.' [Citation.]" (Allen, supra, 42 Cal.4th at p. 105.)
Graham has inaccurately cited to Williams, supra, 77 Cal.App.4th 436 as People v. Allen, as well as misstating the law presented in Williams.
However, because the deadline for the time within which trial must be commenced may be waived or excused for good cause, a defendant must generally make a pretrial objection and motion to dismiss to preserve the issue of noncompliance with section 2972, subdivision (a). (Williams, supra, 77 Cal.App.4th at pp. 459-461.) The court in Williams analogized the noncompliance with the deadlines in that section with a violation of the right to a speedy trial under section 1382 to find that a pretrial objection and motion to dismiss would permit the trial court "to make a timely determination, which in turn may obviate the need for a trial." (Id. at p. 460.) The court noted that although the objection/waiver rule would usually not be applied when the alleged error concerned a pure question of law, "which can be resolved on appeal without reference to a record developed below. . . [citation]," the waiver rule will be applied "when the alleged error involves the exercise of trial court's discretion based on factual findings and the particular circumstances of a case . . . because it serves an essential function: It encourages the parties to present all relevant evidence so the court can resolve factual disputes upon which the ruling must be based, and permits the court to develop a complete record for review. [Citations.]" (Ibid.) The court in Williams found the defendant there had waived any claim based on noncompliance with the 30-day requirement of section 2972, subdivision (a) because he failed to make a proper objection and motion to dismiss before trial in that case involving "the presentation of evidence and resolution of factual matters rather than a pure question of law." (Id. at p. 461.)
Here, as in Williams, supra, 77 Cal.App.4th 436, we conclude "that by not making a proper objection and motion to dismiss before trial, [Graham] waived any claim based on a failure to comply with section 2972[, subdivision] (a)." (Williams, supra, at p. 461.) As the record and briefing of the parties reflect, there were numerous pretrial hearings, including two Marsden hearings, that resulted in the continuation of the trial date past the 30-day requirement of that statute and Graham's release date, with many of the requests to continue the matter being made or stipulated to by Graham and his counsel. A conflict with defense counsel was also declared and new counsel appointed for Graham during pretrial proceedings. Because Graham did not object to any delays or bring a motion to dismiss the MDO recommitment petition before trial for any violation of section 2972, subdivision (a), the trial court was not required to determine whether there was good cause or justification for the various delays or to determine whether a due process violation had occurred by any of the delays. Under these circumstances which involve the resolution of disputed factual matters and not merely a question of law, Graham has forfeited his claims based on noncompliance with section 2972, subdivision (a). (Williams, supra, 77 Cal.App.4th at pp. 460-461.)
III
DENIAL OF MARSDEN MOTION
Although Graham captions his next assertion as only going to the second Marsden motion heard by the trial court, in his argument he attacks the rulings of both Marsden hearings as being denials of his due process and an abuse of the respective judges' discretion. Graham also contends the court at the second Marsden hearing failed to provide him an adequate hearing and that the failure of his trial counsel to obtain certain records and to call the witnesses he requested constituted ineffective assistance of counsel on its face. None of these claims has merit.
As the People correctly point out, this court, along with others, has already determined that because MDO proceedings are civil in nature, MDO defendants "do not enjoy the constitutional rights accorded criminal defendants" and thus have no constitutional right to counsel, but rather only a statutory right to counsel. (People v. Williams (2003) 110 Cal.App.4th 1577, 1590, 1588-1591; accord People v. Hannibal (2006) 143 Cal.App.4th 1087, 1092 (Hannibal).) In so holding, we declined to follow People v. Leonard (2000) 78 Cal.App.4th 776, on which Graham relies, and which assumed without analysis that such constitutional protections applied to sexually violent predator proceedings. (People v. Williams, supra, 110 Cal.App.4th at p. 1590.) We have reviewed our reasoning in People v. Williams and continue to adhere to our conclusions "that the right to counsel (and the right to refuse such counsel) in MDO proceedings is of statutory, not constitutional origin" and that a trial court's decision to grant or deny a request for substitute counsel or to self-representation is governed by due process principles and committed to the court's sound discretion. (Id. at pp. 1591-1592; accord, Hannibal, supra, 143 Cal.App.4th at p. 1092.) Further, we continue to agree that any abuse of that discretion is reviewed for reversible error under People v. Watson (1956) 46 Cal.2d 818, 836; i.e., we will reverse only if it is more probable than not that the defendant would have received a better result had he been allowed to change counsel or to represent himself. (People v. Williams, supra, 110 Cal.App.4th at pp. 1592-1593.)
Contrary to Graham's additional reliance in his reply brief on People v. Gibson (1988) 204 Cal.App.3d 1425, 1434, which held that an MDO proceeding is penal in nature with regard to double jeopardy principles, the same court that decided Gibson noted in People v. Robinson (1998) 63 Cal.App.4th 348, that such holding with regard to ex post facto issues had been superseded by the July 1989 amendment of the MDO Act which declared that an MDO commitment proceeding "shall be a civil hearing . . ." (§ 2972, subdivision (a)) and by the United States Supreme Court's decision in Kansas v. Hendricks (1997) 521 U.S. 346. (Robinson, supra, at pp. 350-352.) Although that same court has subsequently stated in People v. Coronado (1994) 28 Cal.App.4th 1402, 1407, that it was not retreating from its earlier observations about an MDO proceeding being " 'essentially penal in nature' " with regard to jeopardy principles, it acknowledged that such principles should not be mechanically applied when dealing with the mental health aspect of an MDO proceeding regarding a change in mental status, similar to the situation in this case. (Id. at pp. 1407-1408.)
Here, the trial judges properly acted within their discretion in denying Graham's requests for substitute counsel. Although not required to do so, each judge applied the legal principles of Marsden, which provide that: " '[a] defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (People v. Dickey (2005) 35 Cal.4th 884, 917.) Moreover, the second judge also applied the principles of Faretta v. California (1975) 422 U.S. 806, because Graham continued to say he was not seeking a Marsden hearing, but rather wanted to represent himself.
The first Marsden motion was denied June 12, 2006, after the court heard Graham's complaints and explanations from his then counsel. The court found there had not been any breakdown in communication, which would prevent counsel from effectively representing Graham for trial and that at that early stage of the case, Graham had failed to show that counsel was not providing adequate representation. Our review of the record supports the court's findings.
During that hearing, Graham claimed that his public defender was adversarial or hostile to him, and that he had not received the attachments to the declaration supporting the petition for commitment or the discovery, including documents from the CDC, he had requested counsel obtain. Counsel, who was experienced with handling MDO cases, explained that she had been assigned the case on May 4, 2006, had met with Graham for over an hour explaining the nature of the recommitment proceedings, had requested the discovery but had not yet received anything except the petition and attachments, which she did not give to Graham due to the attachments containing sensitive information, which she believed could not be disclosed to him, and had requested the medical reports from the hospital. Counsel further explained that when Graham continually insisted on retrying the underlying criminal case, she told him that was not her role although she was looking into whether the charge of stalking qualified as a predicate offense for his MDO commitment. The court suggested that Graham listen to his MDO experienced counsel, noting she was still in the process of obtaining medical documents and conducting research and that she would be in the best position to determine the relevance of the CDC documents and whether they should be obtained.
The second Marsden motion, and Graham's Faretta motion, were denied October 11, 2006, after trial had commenced and Graham blurted out in front of the jury that he wanted to represent himself. Before such denials, the court again heard from Graham and then his counsel (who was different than his first counsel due to a conflict discovered in July 2006). Again, the record supports the court's rulings and findings.
Out of the jury's presence, when the court asked Graham about his request to represent himself, Graham complained about his appointed counsel from the alternate public defender's office, but then agreed that counsel was "more than competent enough" even though he had failed to summon witnesses on his behalf or present a defense. When counsel and the court expressed the belief that Graham was essentially making a Marsden request to remove appointed counsel, Graham disagreed, stating he had tried that before, such was denied, and he was forced to try to represent himself because his second attorney was not doing anything. The court thereafter excused the district attorney and asked Graham what he thought his attorney should have done.
Graham essentially complained that a doctor at CDC should have been called to verify he had been head-butted by an inmate in prison and not that he had done so to the other inmate as mentioned in one of the expert's reports, that the public defender who represented him in his 1998 battery conviction should be called to explain why he had committed that crime to show he had no intent to injure anyone, and that he needed medical records from 26 years ago to rebut Dr. Sims's testimony. Graham said it was only his word against the experts, he needed documentary corroboration, he did not want other counsel and was asking in "desperation" to represent himself.
Counsel explained that he was fully aware of Graham's various arrests and convictions, that it was not necessary to relitigate the circumstances of those offenses, only one of which was of a violent nature, and that Graham could competently testify to the events, including the head-butting and the other items he had requested. Counsel also believed that Graham could explain and put in context any inaccurate history testified to by the court-appointed evaluators, particularly his reasons for declining medication. Counsel thought that Graham had exhibited a rational train of thought and sincere belief in the decisions he had made and that he was the best person to convey those to the jury. Counsel had decided to try the case through Graham's testimony, which he believed Graham had gone along with until then when he indicated he was considering going "pro per," which counsel did not think would be in Graham's best interest.
In denying the Marsden and Faretta motions, the court found that counsel was prepared and was doing a competent job representing Graham at trial, which had already commenced, noting "[s]ometimes a person's testimony is all it takes," and that Graham's request to represent himself, which he agreed may not be in his best interest, was not timely.
On this record, which reflects the respective trial judges adequately heard and considered Graham's various complaints with his appointed counsel, that basically concerned disagreement as to defense tactics and not deficient performance, we cannot find that the judges abused their discretion in denying Graham's Marsden motions. (See People v. Smith (2003) 30 Cal.4th 581, 606-607.) No due process violation of Graham's rights in this regard is shown.
Graham has not challenged on appeal the denial of his Faretta motion.
Moreover, to the extent Graham claims the record shows on its face that he was denied the effective assistance of counsel by counsel relying on his own testimony instead of obtaining records he had requested and certain witnesses for trial, the claim fails. "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Further, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
Here, the record reflects that Graham's counsel was questioned during the second Marsden hearing as to his tactical reasons for not calling a certain witness from CDC regarding the head-butting incident, about not calling a former attorney regarding one of his criminal cases, and about not obtaining and presenting CDC records and other documentary evidence. As shown above, counsel gave satisfactory explanations for choosing to have Graham testify and to then cross-examine the experts on discrepancies in their recitation of Graham's mental and criminal history and his lack of recent violence while in prison and in the state hospital.
As to certain other matters concerning records from Hennepin County Hospital in Minnesota from 1980 and from the court concerning whether a shotgun had been used during the underlying stalking incident, the record is silent on why Graham's counsel did not request those various records. Because the record reflects there may have been sound tactical reasons for not obtaining or presenting evidence of those records, i.e., their questionable relevance to Graham's mental condition at the time the recommitment petition was filed, Graham has not made a prima facie showing on the face of the record that his counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) We therefore reject Graham's claim of ineffective assistance of counsel on appeal.
Graham also appears to challenge the competence of his first counsel who was replaced due to a conflict because she did not challenge the underlying stalking offense as qualifying him for MDO commitment in the first instance. However, as we have already determined, he forfeited the right to challenge his recommitment on that ground and a reasonably competent counsel would have discovered such preclusion in his or her research. No ineffective assistance is shown.
Graham has recently filed a petition for writ of habeas corpus alleging ineffective assistance of counsel on similar grounds as raised here, which will be treated separately in case no. D052845.
IV
COURT'S RESPONSES TO JURY QUESTIONS
During deliberations, the jury sent two notes to the court. The first note (Jury Note # 6) asked, "Is there a document that states Mr. Graham had a gun outside the border patrol's home?" The second note (Jury Note # 7) stated, "Please define what 'moderate' means. The Dr.'s said that the tests showed Mr. Graham at a 'moderate' risk." The court held a telephone conference with both counsel regarding the notes.
With regard to the first note, the prosecutor thought the jury was asking to see some type of police report or otherwise inadmissible documentary hearsay that the experts relied upon as a basis for their opinions. Graham's counsel thought the jury was asking for a specific document which did not exist but for which a reference had gotten into the hospital records. Counsel agreed that an expert could rely on reliable hearsay documents in forming an opinion and that the jury is not permitted to see those documents. He opined that the question could not be answered one way or the other, but that the court should just give general law regarding what an expert can rely upon for his or her opinion.
The trial judge agreed and proposed to answer the first question as follows: "I cannot answer this question yes or no. A qualified mental health pro[f]essional may rely on reliable hearsay, which includes documents, in forming his opinion. However, the jury does not get to see the documents referred to." Graham's counsel objected that the proposed answer "tends to suggest that such a document does exist" and that neither counsel could remember whether there was such a document.
The trial judge then came up with an answer that both counsel said they could "live with" and read to the jury in response to the first question,
"I cannot recall the answer to your question. The evidence is in. You may have the court reporter re-read the testimony of a witness if you wish. A qualified mental health professional may rely on reliable hearsay (which includes documents) in forming his opinion. However, under the Evidence Code, the jury does not get to see the documents referred to."
As to the second question, the trial judge proposed to answer the jury's inquiry regarding "moderate," with "I did not define moderate in the instructions. As the first instruction number 200 says, near the end, 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary and everyday meanings.' " Graham's counsel said "fine," and "great" after the prosecutor also agreed, noting that the experts had given a statistical breakdown in one of the tests given Graham for the jury's reference. The jury returned the verdict in this case approximately an hour and a half after receiving the responses to the two jury questions.
On appeal, Graham contends the trial court's two responses to the jury's two questions violated section 1138 and denied him a fair trial. As the People correctly point out, Graham has forfeited his claims by consenting to the court's responses.
Although section 1138 requires the court "respond to jury questions during deliberations regarding 'any point of law arising in the case' [citations]" (People v. Payton (1992) 3 Cal.4th 1050, 1068), the first note really concerned a factual point and not one of law for which the court granted defense counsel's request to not answer the factual part one way or the other, but merely to point out the legal aspects of what an expert may rely upon when forming an opinion. In this regard, Graham has forfeited any claim of error on appeal concerning the trial court's response because he agreed with the court's answer that was modified pursuant to his request effectively precluding the type of response he now asserts should have been given. (Ibid.; People v. Thoi (1989) 213 Cal.App.3d 689, 698.) Graham forfeited his claim of error regarding the trial court's response to the second note because he unequivocally consented to the response given by the court. (See People v. Hughes (2002) 27 Cal.4th 287, 402; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
DISPOSITION
The order of recommitment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.