Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC197573.
ELIA, J.
Following a jury trial, appellant was found to be a Mentally Disordered Offender (MDO) within the meaning of Penal Code sections 2970 and 2972. He contends that the trial court erred in excluding certain evidence, that he received ineffective assistance of counsel, and that the trial court committed instructional error. We affirm.
Background
In April 2001, appellant pleaded guilty to one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He was placed on probation. In August 2002, he admitted a probation violation and was sentenced to two years in state prison. In November 2005, the prosecutor filed a petition "to convert [appellant's] commitment from Penal Code 2962 to Penal Code 2970." The petition alleged that appellant had been admitted to Atascadero State Hospital and later released on the conditional release program (CONREP). The petition alleged that appellant "deteriorated while on CONREP and was admitted to Atascadero State Hospital and subsequently transferred to Napa State Hospital." Appellant's commitment was set to expire and the prosecutor alleged that appellant "suffers from a severe mental disorder, said mental disorder is not in remission and cannot be kept in remission without continued treatment, and that by reason of his mental disorder, [appellant] represents a substantial danger of physical harm to others."
In June 2006, at the jury trial on this petition, Dr. Gabrielle Paladino testified that she was a psychiatrist working at Atascadero State Hospital. She testified that appellant suffered from the mental disease of "chronic paranoid schizophrenia." She said that a person with this disease has delusions that "involve a persecution or poisoning or attacking or threats to that person. And it is these people who can get very, very angry because they truly believe that they are being threatened, harmed, harassed, and they can . . . become violent." Dr. Paladino testified that "this form of schizophrenia is actually quite treatable, and these people can actually go on into the community if they're treated, if compliant, and potentially hold jobs."
Dr. Paladino considered appellant's mental health history, which included multiple psychiatric hospitalizations. In 2001, while residing at a board and care home, and perhaps after discontinuing his medications, appellant hit another resident with a wooden stake, causing a gash that required 20 stitches to close. While on probation for this offense and residing with his aunt, appellant pushed his aunt to the floor and screamed at her. While appellant was in prison, he became so mentally ill that he was one of the small number of prison inmates who are sent to Atascadero State Hospital. Dr. Paladino testified that while appellant was at Atascadero, observations of his behavior included "sometimes physical threats to staff . . . very angrily proclaiming that others were out to get him very strong theme of paranoid ideation there; insisting that certain people were actually not the people they were, that happened to several staff members at Atascadero State Hospital."
This resulted in appellant's conviction for assault with a deadly weapon.
This resulted in a misdemeanor battery conviction and appellant's probation violation.
Dr. Paladino testified that while at Atascadero, appellant was "kind of sort of medication compliant." At one point, appellant was placed in the NorthStar Program. NorthStar is a 90 day "enhanced preparational program where they evaluate patients to determine their specific needs" in an attempt to transition the patient, through CONREP, into the community. Dr. Paladino testified that appellant's performance at NorthStar was "not a pretty picture." Appellant "had multiple instances of not taking his medications or delaying taking his medications." He also "started in on the delusional system." Dr. Paladino said, "He became very focused on a particular peer and insisted that that peer had been someone who had assaulted him in the distant past." Appellant was moved to an area of greater supervision but he "maintained he didn't need medication, didn't have a mental illness."
Appellant was returned to Atascadero where he told Dr. Paladino that he had been treated unfairly and that "he didn't think he had a mental illness and that he should be allowed to go home into the community." Dr. Paladino said that since that time appellant "was making little, if any, progress towards treatment goals. . . . [T]here was still voices going on, still hearing things and . . . he just did not appreciate what a severe pervasive mental illness he has. [¶] He's been in multiple instances of his refusing medications as well."
Dr. Paladino testified that appellant's mental disorder was not in remission and that by reason of his mental disorder he represented a substantial danger of physical harm to other people. She said that if appellant were willing to accept treatment, he could "go far" but that his refusal to do so had "been the problem from day one."
Although appellant had not physically assaulted anyone at Atascadero, he was placed in wrist restraints on one occasion because "He became very paranoid. He started furiously cursing at staff, using really, really profane language, blaming staff for a conspiracy. He was red-faced. He took a fighting stance and staff, at that point, intervened before it did become physical." Dr. Paladino testified, "I would stake my reputation on the fact that the reason why he hasn't been violent at Atascadero State Hospital is because staff there are very good at managing violent patients."
Appellant's mother, Tharon Carter, testified that she and several relatives live in and around a small family compound in New Mexico. She had made two trips to Atascadero State Hospital to see her son and to meet with the staff. She loves her son and keeps in contact with him through visits and by telephone. She was not afraid of him and he has never hurt her.
Appellant testified, "I know that I'm approximately 33 years old" although "it's been really hard for me to keep track because there's been sporadic times where I haven't spent any time with my family." Appellant testified that he does not have delusions or hallucinations. If he appears to be talking to himself it is because he is thinking out loud or praying.
Appellant testified that he took three medications. He had refused to take one of them because it is used to treat mood swings and a previous doctor had told him that he did not suffer from mood swings. Another medication gave him headaches or made him feel groggy. He testified that more recently he had been taking his medication consistently but that "the only reason why I've taken the medication is because I wanted to avoid getting . . . an involuntary order where they force you to take medication." However, if he were released from the hospital, he would not stop taking his medications without a doctor's order. Appellant testified that he did not think that he was dangerous because "over the years I've learned that by doing things that aren't safe and by pointing fingers at other people, that I just borrow more trouble than I really need and I put myself though a lot of more unnecessary grief."
Appellant was asked if he had "any plans about what [he] would do if [he] got out of the hospital." He said that if he were released from the hospital he would "like to get a Juris Doctorate" and "finish going to the administration of justice branch there at West Valley College, but I'd first like to get my GED first." When defense counsel asked appellant if he saw himself "staying here" or "going home with your mom," appellant said that "right now to me everything is kind of up in the air. Where I see myself is kind of like in God's hands right now."
The prosecutor argued to the jury that he had to prove three elements: 1) that appellant had a mental disorder, 2) that it was "not in remission or can't be kept in remission," and 3) that "as a result of the mental disorder, does the respondent represent a danger of substantial physical harm to other people." He argued that "The real issue and the only issue" was the third element. He reviewed the circumstances of the assault with a deadly weapon while appellant was living in the board and care home and the violation of probation when appellant was living with his aunt. The prosecutor argued, "Now, why this is important is if he was released, where is he going to go? . . . Is he going to be with relatives or is he going to be in a halfway house?" The prosecutor discussed the misdemeanor battery conviction appellant sustained when he attacked his aunt and reviewed the difficulties appellant had had with others while in the prison system. The prosecutor argued, "Now, to release this guy into the community at this time for the . . . rest of his life, he is going to attack somebody."
Defense counsel argued to the jury that Dr. Paladino lacked sufficient personal knowledge of appellant to be credible and that she spoke "in vague generalities." Defense counsel observed that the evidence that appellant had a mental disorder was "pretty strong." She argued that, however, the conflicts appellant had with others were not a product of that mental disorder and that Dr. Paladino "used a lot of inaccurate and incomplete information to base her opinion that [appellant] is dangerous." She asserted that Dr. Paladino was "a very biased witness." Counsel argued that there was insufficient evidence that appellant was "a danger now or that he ever was really a substantial danger because of his mental disorder."
Shortly after the jury began deliberating, the jury sent a note for "Direction upon the following issues: 1) What is the result of the defendant if we say 'not true.' 2) What is the result of the defendant if we say 'true.' 3) Clarification or simplification of phrase 'represents a substantial danger.' 4) Can we decide upon the 3 issues separately or must we decide upon one decision." As part of its response, the trial court reinstructed the jury that "You must reach your verdict without any consideration of the consequences" and that "substantial danger of physical harm does not require proof of a recent [overt] act." The jury resumed its deliberations and eventually returned a verdict finding true the allegation that appellant, "by reason of mental disease, defect or disorder, continues to represent a substantial danger of physical harm to others." The trial court extended appellant's commitment to April 20, 2007.
Exclusion of Mother's Testimony
Appellant contends, "The trial court excluded relevant and highly prob[a]tive evidence thereby destroying appellant's case."
Background
Before trial, the prosecutor requested that the court rule on the admissibility of evidence that appellant sought to introduce concerning treatment. Defense counsel said, "I did bring the information regarding the Lyons House which was brought to me by Mr. Hunter's mother, Theron Carter and would like to present that to the jury because, not so much to talk about consequences of finding of an MDO but because one of the main issues that the jury has to decide is whether he's dangerous. . . . [¶] So in order to assess that factor, I think that the jury has to be allowed to consider information that Mr. Hunter would be with family; that his family has made efforts to educate themselves regarding various treatments available for mental illness and that information is directly relevant to whether Mr. Hunter would be a danger to other people if released."
Citing People v. Collins (1992) 10 Cal.App.4th 690, the court said that the proffered evidence was "not really probative or relevant, as the jury is not required . . . to consider alternative sources of treatment."
During Carter's testimony, defense counsel asked Carter what she would do if appellant were released from the hospital. The trial court sustained the prosecutor's objection to this question. Later, the court gave defense counsel an opportunity to "make [a] record" concerning this ruling. In her offer of proof, defense counsel said, "Mentally Disordered Offender law requires a determination by the jury as to whether the respondent presents a substantial danger of physical harm to others. [¶] That is not an assessment that can be made in a vacuum. It is an assessment . . . of what the future holds for the respondent. [¶] . . . I proposed to call Tharon Carter, Raphael's mother, to testify that their plan was to bring Raphael back to the family in New Mexico to keep track of him and to get him the necessary mental health services that he needed, because she does not believe that the services that he's getting at Atascadero are either appropriate or the most beneficial. [¶] But primarily it is relevant and it is relevant, because the jury should not be required to make a decision about the future dangerousness of the person before them without any information about what the plan for the future would be. [¶] In terms of the [Lanterman-Petris-Short Act] which is somewhat analogous, the plan for the person upon release is an extremely important factor. And, in fact, third party assistance is an important fact that the finder of fact, including a jury, can consider in deciding whether a person is gravely disabled or a danger to self or others, because there are, in fact, various different grounds of involuntary commitment under the Lanterman-Petris-Short Act. [¶] I would say that the Mentally Disordered Offender Act is analogous at that level and the jury is entitled to consider the defendant's psychotropic medication and psychosocial support, including third party assistance, to make an accurate assessment as to what kind of danger the defendant represents as well as whether his illness can be kept in remission with treatment."
The prosecutor responded, "I did not object to Mr. Hunter talking about how he would feel in the future. My objection only went to the mother who is not a medical expert testifying about what she would do in the future."
The court said, "Ms. Carter lacks the credentials to voice an opinion as to what mental health treatment services would keep Mr. Hunter's mental disorder in remission and, accordingly, on that basis, with the court considering the proffered evidence in light of the balancing that needs to be done under [Evidence Code section] 352, found the proffered evidence not to be probative or relevant to the issues at hand, i.e., under the elements of the MDO Proceeding. [¶] And although [defense counsel] has argued that the [Lanterman-Petris-Short Act] scheme is analog[ous], the Court is of the opinion that it is not and it has no application to the MDO proceedings, and on that basis the proffered evidence was rejected."
Discussion
Appellant argues that Carter's, "personal intentions as to how she would assist appellant upon his release was highly relevant, admissible evidence." Appellant argues, "By excluding this evidence, the trial court prevented appellant from presenting the most critical core of his defense because it would constitute evidence of the consequences of a jury finding in favor of appellant." Respondent argues that "the evidence that was excluded was hearsay, or impermissible lay opinion, or irrelevant." Appellant replies, "Respondent fundamentally misunderst[ands] appellant's argument. The focus of appellant's argument was not his claim that the trial court erroneously prevented his mother, Theron Carter, from providing expert testimony on the appropriate treatment for appellant or on the nature and quality of the treatment available either at Atascadero State Hospital or at the Lyon's House private facility. Instead, appellant claims that Carter should have been permitted to testify about her plans to assist her son if he were released."
In sustaining the prosecution's objection to this evidence, the trial court relied on People v. Collins, supra, an MDO proceeding in which the jury was instructed that the respondent "may be hospitalized" if found to be mentally ill, but was "presumed to be entitled to be released on parole" if the jury found otherwise. (Collins, supra, 10 Cal.App.4th at pp. 693-694.) The jury in Collins received two verdict forms: The first stated that the respondent met the criteria for commitment and should be treated as an inpatient, and the second stated that the respondent did not meet the criteria and should be released on parole. The Collins court ruled that it was error to instruct on the consequences of a mental illness verdict in such a way that it encouraged the jury to ignore the evidence and decide the case based upon fear of the respondent's release. The court noted that the error in the instruction was exacerbated by the use of the verdict forms, as well as the fact that the prosecutor informed the jury that if it did not find the respondent to be a mentally disabled person, he would be back on the streets again. The court concluded that the cumulative effect of these errors was prejudicial and entitled the respondent to a new trial.
Collins involved an initial commitment as an MDO under Penal Code section 2962, rather than, as here, an extension of an MDO commitment under Penal Code section 2972.
Appellant argues that, in ruling on the admissibility of appellant's mother's testimony, "the trial court ignored two more recent and directly relevant cases, People v. Rains (1999) 75 Cal.App.4th 1165 and People v. Calderon (2004) 124 Cal.App.4th 80." In Rains, a juror had expressed a concern that if the defendant was found to be a sexually violent predator, commitment would be to prison rather than to a hospital for treatment. In response, and over defense objection, brief testimony was presented indicating the type of treatment available and that commitment would be to a mental health facility. The Court of Appeal found that the trial court erred in overruling the objection, because such evidence was irrelevant to the question of whether the defendant met the criteria of the Sexually Violent Predator Act. The Rains court held that such evidence was not admissible.
The court deemed the error harmless, however, because it concluded that it was not reasonably probable that the defendant would have had a more favorable result absent the error.
In Calderon, another proceedings under the Sexually Violent Predator Act, the appellant sought to introduce evidence from expert witnesses that the best disposition for appellant was to put him under a conservatorship and that he could be treated in a secure nursing facility. Appellant contended that the trial court had erred in excluding this evidence of planned treatment recommended by his doctors and evidence of his amenability to treatment, which he argued were relevant to the determination of his dangerousness. Calderon relied heavily on People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, in which our Supreme Court accepted the defendant's argument that a person's amenability to effective voluntary treatment could reduce his dangerousness to a level below what was required for commitment under the Sexually Violent Predator Act. The Calderon court affirmed, observing that the Ghilotti ruling is limited to evidence of the person's amenability to voluntary, not involuntary, treatment. The excluded testimony challenged did not fall within the scope of voluntary treatment as discussed in Ghilotti.
Appellant argues that "the evidence excluded in appellant's case fits exactly within the evidence relating to future voluntary treatment that was expressly permitted under Ghilotti and Calderon. Appellant sought, via his mother, to present evidence demonstrating that appellant, if released, would move to New Mexico, live with his family, and undergo voluntary treatment in a program located and arranged by his mother." Appellant argues, "Had the trial court permitted appellant to present evidence concerning how he and his family would deal with his mental illness upon his release, that evidence would have been designed to alleviate fear and prejudice towards appellant rather than decide the case based upon their fear. Instead, because the jury was, ultimately, told that a verdict against appellant would result in a one year commitment to the state mental hospital, the jury was encouraged in exactly the opposite fashion. They could ignore the evidence and decide the case based upon their fear without too much concern for the consequences because appellant would only receive a one year commitment." Appellant argues that "The primary focus of appellant's defense was that he was not too dangerous to be released because he would, upon his release, move to New Mexico and live with his family where his family would arrange for his necessary mental health treatment."
The trial court's exclusion of Carter's proposed testimony was proper. Evidence of a voluntary treatment plan is irrelevant if there is no evidence that the subject of the petition plans to volunteer for that treatment. The availability of treatment in New Mexico becomes relevant when the one who needs the treatment indicates that he or she will seek that treatment. The offer of proof went to the family's plan "to bring Raphael back to the family in New Mexico to keep track of him and to get him the necessary mental health services that he needed." However well-researched and sincere the family's plan may have been, nothing in the offer of proof, Carter's testimony, or, importantly, appellant's testimony, indicated that this was also appellant's plan. Appellant testified that he planned to continue his education by attending a local community college and he made no mention of moving to or residing in New Mexico. When specifically invited to tell the jury if he planned to go "home with [his] mom," appellant said that "right now to me everything is kind of up in the air. Where I see myself is kind of like in God's hands right now." While we have no reason to doubt that Carter fully intended to try to assist her adult son in obtaining treatment, without some evidence that appellant intended to cooperate with her efforts, her plans for him were irrelevant to any issues in the case, including whether "he was not too dangerous to be released."
For the same reason, even if we were to find that the trial court erred in excluding this evidence, the error would not have prejudiced appellant. Ghilotti did say that a "pertinent factor" for an evaluator to consider in determining whether a candidate for commitment under the sexually violent predator statute would be amenable to voluntary treatment should include the "availability, effectiveness, safety, and practicality of community treatment for the particular disorder the person harbors." (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929.) However, also to be considered is "the person's expressed intent, if any, to seek out and submit to any necessary treatment, whatever its effects; and any . . . other indicia bearing on the credibility and sincerity of such an expression of intent." (Ibid.)
Here, appellant did not express any intent to seek out treatment of any kind. He essentially denied that he had a mental illness, testifying that he had never had a hallucination, "never heard voices" and "never had a delusion in [his] entire life." His statement that if he were released he would not discontinue taking medication without a doctor's order is undermined by the rest of his testimony concerning his prescribed medications, which was, essentially, that he did not like them and did not feel that he needed them, and Dr. Paladino's testimony that appellant's refusal to accept treatment had always been a problem.
To the extent appellant sought to introduce the evidence of Carter's plans for appellant to alleviate fear and prejudice concerning what would happen if appellant were released, nothing about the proposed testimony showed that it was relevant to what would, in fact, happen if appellant were released. Appellant did present evidence of his plans to further his education if he were released. However, appellant could not have been prejudiced by the exclusion of evidence of plans that appellant did not have.
Ineffective Assistance – The Consequences of a True Finding
Appellant contends, "Appellant's trial counsel provided ineffective assistance of counsel by informing the jury as to the consequences of a finding against appellant and failing to object to the trial court's decision to so inform the jury."
Background
In closing argument, defense counsel discussed the burden of proof and the reasonable doubt standard and said "because in order to deprive someone of liberty, you know you have to have – " After the prosecutor objected, the trial court ordered the deprivation of liberty comment stricken. Defense counsel invited the jury, in discussing the need to evaluate Dr. Paladino's testimony, to consider if "this is the type of testimony upon which you can really be confident such that you can keep somebody in a mental hospital on an indefinite basis. [¶] Raphael needs you, because you know what? The way things are, he may never get out." After the prosecutor objected, the trial court ordered this remark stricken as well. The court then had an unreported bench conference with both counsel. After this, with both parties' consent, the court instructed the jury, "Ladies and gentlemen, in connection with this matter, if you find the petition to be true, the result will be that Mr. Hunter will be committed to the Department of Mental Health for one year, after which Mr. Hunter is entitled to another proceeding, the nature of which is identical to the one before you. All right?" Counsel continued her argument saying, "the way this is set up Raphael may never get out because as long as there are people like Dr. Paladino who are willing to come to court and say that based on him having this incident five years ago, he is a danger, then she can come to court next year and say he had this incident six years ago, he is a danger. . . . He had this incident eight years ago, he is a danger."
Discussion
Appellant argues that he received ineffective assistance of counsel because, "trial counsel could have had no tactical reason for repeatedly, and improperly, appealing to the jury to be sympathetic to appellant by telling them that he faced, potentially, a lifetime commitment if they didn't help him. Further, once she made that mistake, she had no valid tactical reason for agreeing to allow the trial court to, in clear violation of well-established law, tell the jury the exact consequences of a finding against appellant." Respondent argues that defense counsel may have had a tactical reason, that is, to elicit sympathy for her client, for arguing that her client might "never get out." Because there may have been a tactical reason, respondent contends, "any remedy appellant might have would not be through an appeal."
Both parties are misinterpreting counsel's argument. Taken in context, counsel was arguing that if the jury were to accept as proof beyond a reasonable doubt expert testimony that "used a lot of inaccurate and incomplete information to base [an] opinion that [someone] is dangerous," the allegation that one is a mentally disordered offender could, theoretically, never be defeated. Thus, it was an attack on the nature of the evidence the prosecution had introduced in support of the petition. To the extent that defense counsel may have been, inferentially, appealing to the juror's sympathy for appellant, the argument certainly did not rise to the level of impropriety as to be ineffective assistance. Counsel may have had a tactical reason for agreeing to the instruction to the jury concerning the duration of the commitment following a true finding on the MDO petition. By informing the jury of the "identical" nature of any subsequent proceedings, the instruction played into defense counsel's argument that one might be continuously committed in perpetuity if the type of evidence presented by the prosecutor sufficed.
People v. Kipp (1986) 187 Cal.App.3d 748, held that in a Penal Code section 1026.5 proceeding to determine whether an insane acquittee should be released, the jury should not be instructed that he or she would receive no more treatment or court supervision if released. "There can be no purpose to advising the jury of the consequences of its decision under the present circumstances, except to improperly deflect its attention from the issue of the defendant's current mental condition to the possible effect of a decision to find him presently sane, i.e., 'to stack the deck' against the defendant." (Id. at p. 751.) People v. Collins, supra, 10 Cal.App.4th 690 followed Kipp in the MDO setting. The Collins court said, "It is error . . . to instruct on the consequences of such a [mental illness] verdict when it would encourage the jury to ignore the evidence and decide the case based on their fear" of the offender's release. (Id. at p. 695.)
Whether or not it was ineffective assistance to agree to the trial court instructing the jury as to the consequences of one possible verdict, appellant cannot show prejudice. Unlike Kipp and Collins, although the jury here was instructed during argument on the consequences of a true finding, the jury was not advised of the consequences of a not true finding. At the beginning of trial, the court instructed the jury that "It would be a violation of your sworn duty to base any verdicts or to be influenced by sentiment, sympathy, passion, prejudice, public opinion, public feeling, guesswork or speculation." The instruction complained of here was given during defense counsel's argument. After argument, the jury was instructed "you must reach your verdict without any consideration of the consequences." Despite having been advised during argument of the consequences of a true finding, the jury, during deliberations, sent a note asking for "direction" on "the result of the defendant if we say 'not true' [and] the result of the defendant if we say 'true.' " In response, the trial court reinstructed the jury "You must reach your verdict without any consideration of the consequences." Thus, although the jury was told that a true finding meant that appellant would be committed for another year, the jury was not advised that a not true finding would mean that appellant would be released with no restrictions upon him. In other words, the jury was specifically discouraged from ignoring the evidence and deciding the case based on fear of appellant's release.
Sua Sponte Instruction ON remission Without treatment
Appellant contends, "The trial court deprived appellant of a fair trial by failing to perform its sua sponte duty to instruct the jury concerning the meaning of the term 'cannot be kept in remission without treatment.' "
Background
The trial court instructed the jury in accordance with Penal Code section 2972, subdivision (c). The trial court told the jury, "By petition the People of the State of California allege that respondent, Mr. Hunter, has, one, a severe mental disorder; two, that the disorder is not in remission or cannot be kept in remission without treatment; three, and that by reason of his mental disorder, respondent represents a substantial danger of physical harm to others. [¶] To find the petition to be true, each of the following elements must be proved beyond a reasonable doubt: [¶] One, the respondent has a severe mental disorder; two, that the disorder is not in remission or cannot be kept in remission without treatment; and three, that by reason of his mental disorder, respondent presents a substantial danger of physical harm to others. [¶] For the purpose of this trial, severe mental disorder means an illness or disease or condition which substantially impairs a person's thoughts, perception of reality, emotional process or judgment, or which grossly impairs behavior or which demonstrates evidence of an acute brain syndrome for which chronic remission in the absence of treatment is unlikely. [¶] The term 'severe mental disorder' as used in this instruction does not include a personality or adjustment disorder, epilepsy, mental retardation, or other developmental disabilities or addiction to or abuse of intoxicating substances. [¶] The term 'special' – strike that – the term 'remission' means a finding that the overt signs and symptoms of severe mental disorder are controlled either by psychotropic medication or psychosocial support. [¶] Substantial danger of physical harm does not require proof of recent overt act."
Discussion
Appellant contends that the trial court erred because it "failed to instruct the jury with the definition of 'cannot be kept in remission without treatment' " found in Penal Code section 2962, subdivision (a). That section provides in pertinent part, "A person 'cannot be kept in remission without treatment' if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan."
Respondent argues that the definition in Penal Code section 2962, subdivision (a) of "cannot be kept in remission without treatment" does not apply here. Respondent argues that the "plain meaning" of section 2962 "is to require that those who are paroled and who have a condition that is in remission but have engaged in certain conduct, obtain treatment from the Department of Mental Health as a condition of parole. The statute has no application to extensions of MDO commitments." Respondent states that "appellant's reading of the statute leads to an absurdity. If an MDO were in remission only because he was undergoing treatment at Atascadero, but in the past year had not committed any of the acts described in section 2962, subdivision (a), then under appellant's reading of the statute, his commitment could not be extended." In reply, appellant argues that "the absurdity is respondent's conclusion not appellant's reading of the statue. It is, in fact, true that if a person who is committed as a mentally disordered offender is in remission because of his treatment and has not committed any of the acts described in section 2962, subdivision (a), then he is entitled to be released. That is the whole point of the statute. . . . Under respondent's logic, someone whose mental illness requires continuing treatment for the rest of his life – a very common situation with many mentally ill persons – would never be entitled to be released."
Appellant observes that "a person can only be subject to a commitment under sections 2970 and 2972, based upon an earlier commitment under Penal Code section 2962. To suggest that the definition of 'cannot be kept in remission without treatment' magically changed when the defendant's period of parole ended would create a very strange situation. In theory, someone could qualify as a mentally disordered offender one day and no longer qualify the next day without any actual change in status." Appellant acknowledges that he "has not found any case specifically holding that the definition of 'cannot be kept in remission without treatment' from Penal Code section 2962 applies to proceedings under Penal Code sections 2970 and 2972," but argues that "any conclusion to the contrary would be peculiar indeed and especially inappropriate in this case."
Section 2962 describes the proceedings to determine whether a state prisoner will be required to undergo treatment in a state hospital as a condition of parole, the initial commitment as an MDO. A proceeding under section 2972, however, is a post-prison civil commitment which commences when a prisoner's parole period is about to expire in order to extend his commitment as an MDO. In that context, the issue becomes whether an MDO's mental disorder cannot be kept in remission without "continued involuntary treatment." (Pen. Code, § 2970.) Implicit in the definition of "cannot be kept in remission without treatment" in section 2962 is that the treatment to which the statute refers is involuntary treatment. Accepting this implication resolves the debate between appellant and respondent about whose interpretation of the statute is an absurdity. A recommitment proceeding under section 2972 concerns one whose mental illness is not in remission or cannot be kept in remission without continuing the involuntary treatment that he or she has been receiving after his or her initial commitment under section 2962 as an MDO.
One who is initially committed as an MDO whose mental illness has been put into remission can avoid recommitment proceedings. See Penal Code section 2968, which states: "If the prisoner's severe mental disorder is put into remission during the parole period, and can be kept in remission, the Director of Mental Health shall notify the Board of Prison Terms and the State Department of Mental Health shall discontinue treating the parolee."
A court has a sua sponte duty to instruct on "general principles of law" that are "closely and openly connected" with the facts of the case and are necessary for the jury's understanding of the case. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) The California Supreme Court has stated that, in the context of an SPV case, "[t]he rules governing a trial court's obligation to give jury instructions without request by either party are well established. 'Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case.' " (People v. Roberge (2003) 29 Cal.4th 979, 988.) However, even assuming that the court had a sua sponte duty to define the phrase "cannot be kept in remission without treatment" for the jury, and assuming that the Chapman v. California (1967) 386 U.S. 18 standard applies, we would conclude that any instructional error was harmless beyond a reasonable doubt.
Relying on People v. Noble (2002) 100 Cal.App.4th 184, appellant argues that he was prejudiced by the trial court's failure to instruct sua sponte on the definition of "cannot be kept in remission " in section 2962 because, "There is no way that this court can determine that the jury's verdict in this case was unattributable to the trial court's failure to define 'cannot be kept in remission without treatment' because the jury was never told or given the correct definitions or asked to address them. Thus, it is impossible to determine whether this jury believed that appellant was not in remission or believed that the prosecution had failed to prove beyond a reasonable doubt that appellant was in remission but since, obviously, he needed treatment, he could not be kept in remission without treatment."
Noble involved an appeal from an MDO extended commitment order. The defendant maintained that his mental disorder was controlled by medication and he would not be dangerous if released because he would continue to take his medication. The trial court correctly instructed the jury that the prosecution had the burden to prove beyond a reasonable doubt that the defendant met the MDO law's requirements for an extended commitment. The Noble court found that a properly instructed jury could reasonably find MDO status based on evidence that the defendant believed he did not need medication and disliked its side effects, and that defendant would relapse if he stopped taking it.
However, in Noble the trial court also gave an affirmative defense instruction that set forth a different burden of proof. That instruction indicated that the defendant had the burden to prove by a preponderance of evidence that he was not dangerous if medicated and would continue to take his medication in an unsupervised environment. Noble held that the affirmative defense instruction was erroneous, and the error was not harmless beyond a reasonable doubt, as the conflicting burden of proof instructions made it impossible to determine how the jury reached its verdict.
Here, unlike Noble, there was no problem with conflicting instructions on the burden of proof. The jury was instructed on the meaning of the term "remission" and the record amply reflected that appellant's mental illness was not in remission. Dr. Paladino specifically testified that appellant had a serious mental disorder that was not in remission. The doctor further testified that when appellant had to be moved to an area of greater supervision he "maintained he didn't need medication, didn't have a mental illness."
Defense counsel conceded that the evidence that appellant had a mental disorder was "pretty strong." Counsel did not argue that appellant's mental disorder was in remission or that it could be kept in remission without involuntary treatment. She argued that Dr. Paladino "basically has no specifics to prove her allegation that Raphael is dangerous now, none." The defense focused on whether the evidence established a "connection" between appellant's mental disorder and his alleged dangerousness. Counsel reviewed all the incidents on which Dr. Paladino based her conclusion that appellant was dangerous and argued that these incidents were interpersonal conflicts and that the assault with a deadly weapon was "Not legally defensible, but not necessarily the product of a mental illness." Thus, the defense to this MDO petition was not that appellant's disorder was in remission or could be kept in remission without involuntary treatment, it was that the prosecution had not proven that, by reason of his mental disorder, appellant represented a substantial danger of physical harm to others. Appellate counsel recognizes as much by asserting, that "The primary focus of appellant's defense was that he was not too dangerous to be released because he would, upon his release, move to New Mexico and live with this family where his family would arrange for his necessary mental health treatment."
Appellant acknowledges that defense counsel did not request an instruction on the definition of "cannot be kept in remission without treatment" but argues that the issue of the court's sua sponte duty to so instruct was not waived or was not invited error because the record contains no evidence that this was a conscious, deliberate, or tactical choice. However, because the defense to recommitment was that appellant was not dangerous, rather than that his mental illness was in remission, defense counsel may have wished to focus the jury's attention on the weakness of the connection between appellant's mental illness and his dangerousness, rather than having the jury instructed on a concept unrelated to the defense.
Here, the jury was properly instructed on the definition of "remission" and the statutory criteria for extending appellant's MDO commitment. Without the necessary predicate of appellant's mental disorder being in remission, which finds no support in this record, there would be no reason to determine whether it could be kept in remission without treatment, and the jury's verdict could not be attributed to the lack of a definition of that phrase. Furthermore, there was evidence that appellant did not believe that he was mentally ill, that he believed that he did not need medication, that he disliked its side effects, and that he would relapse if he stopped taking it. "A reasonable person, whose mental disorder can be kept in remission with treatment, must, at minimum, acknowledge if possible the seriousness of his mental illness and cooperate in all the mandatory components of his treatment plan." (People v. Beeson (2002) 99 Cal.App.4th 1393, 1399.) Thus, we conclude beyond a reasonable doubt that appellant was not prejudiced by the jury instructions not including the definition of the phrase "cannot be kept in remission without treatment" found in Penal Code section 2962.
Special instructions on difficulty controlling behavior
Appellant contends, "the trial court erroneously failed to instruct the jury with appellant['s] special instructions two and three that appellant must have a serious and present difficulty controlling his behavior."
Background
Appellant requested that the court instruct the jury with two "special instructions." The first was: "A finding of 'substantial danger of physical harm to others' as used in these instructions, requires proof that respondent's mental disorder causes him to have serious present difficulty in controlling his violent criminal behavior, such that he poses a serious and well-founded risk of physical harm to others." The second instruction was: "Proof that, by reason of his mental disorder, respondent represents a substantial danger of physical harm to others, requires proof that the mental disorder causes respondent serious present difficulty in controlling his dangerous behavior."
Defense counsel argued that under Kansas v. Crane (2002) 534 U.S. 407, and In re Howard N. (2005) 35 Cal.4th 117, "the serious difficulty controlling behavior language is appropriate to add to the jury instructions to allow the jury to make a determination. It's basically a pinpoint instruction that is appropriately given where there is an issue as to mental illness and involuntary civil commitment." The trial court denied appellant's request for these special instructions.
Discussion
Appellant contends that the trial court erred in denying the request to give the special jury instructions that appellant must have a serious and present difficulty controlling his behavior. Appellant acknowledges that this issue was considered and rejected by the Second Division of the First District in People v. Putnam (2004) 115 Cal.App.4th 575. Appellant argues that In re Howard N., supra, 35 Cal.4th 117, "requires that the result in People v. Putnam. . . . be changed."
In Putnam, the Court of Appeal rejected the defendant's contention that, after Kansas v. Crane, supra, 534 U.S. 407, the trial court had a sua sponte duty to instruct the jury that the defendant could not be found dangerous and an MDO unless, as a result of a mental disorder, he had serious present difficulty in controlling his behavior. In Putnam, the jury had been instructed in accordance with the statutory elements of an MDO finding. The Putnam court reasoned that "instructing the jury with the applicable statutory language adequately informs the jury of the kind and degree of risk it must find to be present in order to extend an MDO commitment. The instructions here informed the jury that in order to find that appellant had a severe mental disorder, it had to find that he had 'an illness or disease or condition that substantially impair[ed] [his] thoughts, perception of reality, emotional process, or judgment, or which grossly impair[ed] [his] behavior.' Moreover, in order to find that the disorder was not in remission, the jury had to find that 'the overt signs and symptoms of the severe mental disorder' were not under control. Finally, the jury was instructed that it had to find that 'by reason of such severe mental disorder, [appellant] represents a substantial danger [of] physical harm to others.' . . . [¶] Given these instructions, taken as a whole, we conclude beyond a reasonable doubt [citation] that the jury could not have sustained the section 2970 petition in this case without having found that, as a result of appellant's mental disorder, he suffered from a seriously and substantially impaired capacity to control his behavior, and that, for this reason, he represented a substantial danger of physical harm to others. In other words, the instructions given here, which tracked the language of the MDO statute, necessarily encompassed a determination that appellant had serious difficulty in controlling his violent criminal behavior, and thus, . . . separate instructions on that issue were not constitutionally required." (Putnam, supra, 115 Cal.App.4th at p. 582, fn. omitted.)
The Putnam court also considered our Supreme Court's then-recent response to a similar argument based on Kansas v. Crane that was made in the context of Sexually Violent Predator Act proceedings. In People v. Williams (2003) 31 Cal.4th 757, the court held that specific jury instructions on a sexually violent predator's volitional capacity to control his behavior were not required. The Williams court reasoned that since "the [Sexually Violent Predator Act] requires a diagnosed mental disorder affecting the person's emotional or volitional capacity that predisposes the person to commit sex crimes . . . this requirement alone implies 'serious difficulty' in controlling behavior, as required by Kansas v. Crane." (Id. at p. 776.) "Thus, because jurors instructed using the language of the SVPA must necessarily understand that the defendant has a seriously impaired capacity or ability to control violent criminal sexual conduct, no additional instructions are needed." (Putnam, supra, 115 Cal.App.4th at p. 581.)
The Putnam court acknowledged that Williams involved a different statutory scheme, but determined that "the same rationale adopted by our Supreme Court in Williams also forecloses the argument appellant makes here. In the MDO context, just as in the [Sexually Violent Predator Act] context, instructing the jury with the applicable statutory language adequately informs the jury of the kind and degree of risk it must find to be present in order to extend an MDO commitment." (Putnam, supra, 115 Cal.App.4th at pp. 581-582, fn. omitted.)
In our view, In re Howard N. does not undermine Putnam. Howard N. involved a distinct statutory scheme, a civil commitment under Welfare and Institutions Code section 1800 et seq., which provides procedures for the extended civil detention of mentally disordered juvenile offenders. The court concluded that a jury instruction tracking the statutory language of that scheme, which permitted the extension of a commitment upon a finding of "probable cause to believe that discharge of the person would be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality" (Welf. & Inst. Code, § 1801, subd. (b)) was constitutionally inadequate because it did not require the jury to "link[] th[e] finding" of dangerousness to the mental disorder. (In re Howard N., supra, 35 Cal.4th at p. 130, internal quotation marks omitted.) In the course of its opinion, the In re Howard N. court discussed Williams at great length and in no way indicated its disapproval of that prior opinion. We therefore conclude that Putnam is still valid, and we choose to follow it.
Here, as in Putnam and Williams, the jury instructions tracked the statutory language which, Putnam held and we agree, adequately apprises the jury of the causal connection between appellant's serious mental disorder and his lack of volitional control over his violent criminal behavior. As a result, in making the MDO finding, the jury implicitly found that he has serious difficulty in controlling his behavior as a result of that disorder. We therefore conclude that a separate instruction on volitional control was not required in this case.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.