Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. ZM010366, Marcelita V. Haynes, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Defendant and appellant Elijah Ibanga was committed for treatment under the mentally disordered law (Pen. Code, § 2960 et seq.). Thereafter, the People petitioned to extend his commitment. A jury found that Ibanga has a mental disease, defect or disorder, and, as a result of it, he represents a substantial danger of physical harm to others. He was therefore recommitted to the state mental hospital. Ibanga appeals from that recommitment order. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 14, 2006, the People filed a petition for involuntary treatment of Ibanga under section 2970. Defendant had been convicted of a forced lewd act on a child under the age of 14 and of continuous sexual abuse of a child from November 1, 1989 to July 24, 1990.
A. Dr. Emily Rosten
Dr. Rosten is a psychologist at Atascadero State Hospital. Ibanga became her patient in 2004, and she has observed him for three years. Ibanga suffers from schizoaffective disorder, bipolar type, and from pedophilia. Schizoaffective disorder refers to the presence of a schizophrenia, a psychotic illness. A mood disorder, like bipolar disorder or manic depressive disorder is the affective part of the disorder. The victim of the disorder has episodes of manic behaviors and impulsivity and difficulty controlling their behaviors, as well as psychotic hallucinations and delusions.
Ibanga has tactile hallucinations during which he experiences things happening to his body. In May 2006, Ibanga told Dr. Rosten that before 1997 he had not had any spontaneous erections, but thereafter erections were being forced on him as if someone else were controlling him. He reported being made unable to see, hear or read. He accused the Vacaville staff of controlling his body.
Ibanga does not believe he has schizoaffective disorder, although he agrees he has bipolar and manic depressive disorders. He has never acknowledged he has psychotic symptoms, although Dr. Rosten has observed Ibanga experiencing them. When he stops taking his medication, Ibanga’s body changes; his eyes blink rapidly—so fast he is unable to see. He becomes physically withdrawn, hunching his body and refusing to initiate contact with others.
Sex offender treatment has been offered to him. He participated in the introductory group, during which men talk in general about their sexuality and offenses. The treatment program then proceeds to more intensive groups in which men talk about the nature of their offenses and participate in penile plethysmograph (testing responses to, for example, children, rape scenes). Ibanga refuses to participate in this sex offender treatment and testing, saying it is against his religion. He says God forgives him.
Ibanga gave different versions of his offense to Dr. Rosten. He said he had sexual intercourse with his five-year old stepdaughter on multiple occasions. Another time he said it happened once. He also said it didn’t happen because God forgave him for it. He said it didn’t happen because his stepdaughter enjoyed it.
Ibanga believes he will not reoffend because he has become religious, and he cannot have sexual intercourse outside the bounds of marriage. Because he would never marry a child, he would never have intercourse with a child. He does not agree he needs medication for a psychotic illness, although he agrees he needs lithium for his bipolar disorder. Blood work has shown low levels of the medication, indicating he “cheeks” the medication; he spits it out. He does, however, at times take his antipsychotic medications.
Ibanga’s mental disorder causes him to have trouble controlling his behavior. When psychotic, he talks to himself, responds to voices and lunges at staff members in a violent way. The psychosis affects his ability to properly perceive or process reality. His mental disorder is not in remission. Even when he is fully compliant with the medication regimen, he expresses significant delusional ideas.
Ibanga presents a substantial danger to others and to children of both sexes, as he allegedly also molested his two-year-old son. Because he denies his psychosis, he won’t take his medication. When he doesn’t take his medication, Ibanga becomes hostile, angry and he engages in assaultive-type behaviors. For example, he attacked his cellmate in 2002 or 2003 without provocation.
B. Dr. Gordon Plotkin
Dr. Plotkin, a forensic psychiatrist, examined Ibanga. He reviewed documents from Atascadero and from Ibanga’s criminal court file, and he met with Ibanga for about 45 minutes. Dr. Plotkin made two diagnoses. First, Ibanga has either a bipolar disorder (also called a manic-depressive disorder) or a schizoaffective disorder, although the doctor leans towards the schizoaffective disorder. Second, Ibanga has pedophilia.
“Manic depression” is a two-week or longer episode of seven to ten symptoms that are diagnostic of depression. Mania is a week or longer of irritability or elation. People become, among other things, hypersexual, hyper religious and delusional. Someone with schizoaffective disorder has true manic episodes involving, for example, voices, visions, delusions and smell or feeling hallucinations. Pedophilia is an urge, fantasy or behavior that is for sexual arousal or gratification towards a prepubescent child.
Ibanga’s schizoaffective disorder and pedophilia make it difficult for him either to control his actions or to perceive reality accurately. Although medication can relieve symptoms of almost all disorders and create remission, Ibanga is not in remission. As a result he poses a significant risk of harm to others. As to the schizoaffective disorder, he could be in remission with the right medication and insight into his illness. But he has never “gotten there” because he’s either noncompliant completely or partially and because he doesn’t believe he has an illness other than bipolar disorder.
As to the pedophilia, Ibanga has not had treatment for it. Pedophiles cannot be cured without treatment. Substantial treatment, however, may reduce the risk of reoffense. Even so, pedophiles who receive treatment are at a high risk for reoffense. Pedophiles who do not receive treatment are at an even higher risk. Pedophiles who have committed a crime tend to be recidivists. Ibanga told the doctor that if he prayed enough he would not reoffend.
Lithium is not enough to treat Ibanga’s symptoms. When Dr. Plotkin saw Ibanga, Ibanga had disorganized thoughts, he was disheveled and his speech was fast. During his interview with Dr. Plotkin, Ibanga told him that without his medication he cries, does not get enjoyment and does not have peace of mind.
C. The jury’s verdict.
On August 8, 2007, the jury found true the allegations: (1) that Ibanga has a mental disease, defect or disorder; (2) that the mental condition causes him to have serious difficulty controlling his behavior or seriously affects his ability properly to perceive or to process reality; (3) that this mental disorder, defect or disorder is not in remission and cannot be kept in remission if the respondent’s treatment is not continued; and (4) as a result of his mental disease, defect or disorder, he now represents a substantial danger of physical harm to others. The trial court therefore granted the petition to extend Ibanga’s maximum term of commitment to January 13, 2008.
DISCUSSION
I. Ibanga was not prejudiced by any prosecutorial misconduct.
Ibanga first contends that the prosecutor committed prejudicial misconduct by referring to punishment during her opening argument. We disagree that prejudicial misconduct occurred.
The prosecutor began her argument with the following statement: “This is an unusual kind of case. Mr. Ibanga has been committed to the Atascadero State Mental Hospital. There is a California state law. It’s Penal Code section 2970. It provides a method where we can extend his commitment to the mental facility for a year[.]” Defense counsel objected to the reference to “the amount of time,” but the trial court overruled the objection. Later, before testimony began, defense counsel moved for a mistrial, arguing that the prosecutor’s reference to the one-year commitment was a reference to punishment. “Now the jury is tainted because they’re under the belief ‘Oh[,] [w]ell, now he only is–it’s going to only be a year.’ ” The prosecutor argued that the commitment is not punishment; it is treatment.
The trial court agreed that the prosecutor should not have referenced the commitment time and ordered her not to bring it up again. The court, however, did not find that it was malicious or intentional misconduct. Before testimony began, the court instructed the jury, “[O]pening and closing arguments of the attorneys are not evidence. [¶] Yesterday there was an objection made. There was a reference to what the [result] of a sustaining of this petition as to what may occur to the respondent. It has been stricken from the record. You are totally to absolutely ignore it. You are not–when you are deliberating or deciding the case, you must not consider any statement made by the prosecutor in that regard for any purpose. [¶] I remind you you must not be influenced by pity for the respondent or prejudiced against him. You must not be biased against the respondent because he has been brought before this court on these proceedings. None of these circumstances is evidence that the petition is true. You must not infer or assume from any or all of them that the respondent is more likely than not to have this petition sustained. [¶] In determining whether you should sustain the petition, you must not be influenced by mere sentiment, conjecture, passion, prejudice, public opinion, public feeling, or the result of what may happen to the respondent should the petition be sustained.”
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)
Under these standards of review, we cannot find that the prosecutor’s comment here, even assuming it was misconduct, was prejudicial. The comment was brief and isolated. Objection to the comment was immediate. The trial court instructed the jury to ignore the comment. The court also reminded the jury it could not consider what might happen to Ibanga if the petition was sustained. Moreover, it is not reasonably probable a result more favorable to the defendant would have been reached in the absence of the assumed misconduct. The case was not close. Ibanga admits to having sexual intercourse with his five-year-old stepdaughter. He has only said it was wrong because of his religious beliefs. He refuses treatment for his pedophilia and schizoaffective disorder, relying instead on his religious beliefs to control his actions. It is not reasonably probable, based on this evidence, that the jury could have found that Ibanga does not have a mental disease, defect or disorder which causes him to represent a substantial danger of physical harm to others.
II. Ibanga was not prejudiced by limitations placed on his trial counsel’s argument.
Ibanga’s second contention is he was prejudiced by the trial court’s refusal to allow his trial counsel to argue that the prosecution failed to produce certain evidence. We disagree that the limitation the court placed on trial counsel’s argument prejudiced Ibanga.
Under section 1044, a trial court has the duty “to control all proceedings during the trial, and to limit . . . the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” “A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citations.] This right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.” (People v. Marshall (1996) 13 Cal.4th 799, 854-855.)
The trial court here limited defendant’s trial counsel’s closing argument. During her closing argument, defense counsel said, “[T]here was a treating psychiatrist that wrote notes. Okay. We don’t tell the prosecutor which people to bring in. But everybody that saw my client at Atascadero could have come in. They could have come in and said ‘Yes. Mr. Ibanga said to me –’ ‘I saw Mr. Ibanga do this.’ ” The prosecutor objected. At sidebar, defense counsel said she was merely talking about the prosecution’s duty to put on evidence to support their case. The court told defense counsel she could not “argue why didn’t they bring in ‘A,’ ‘B,’ ‘C,’ ‘D,’ ‘Q,’ ‘E,’ ‘F.’ [¶] . . . [¶] . . . [Y]ou cannot in this courtroom argue why didn’t they bring in this witness or that one? That’s the ruling.”
Defense counsel’s argument was a fair comment on the evidence the prosecution must produce to satisfy its burden; hence, the argument was not improper. That being said, defense counsel was not improperly limited in making a key argument; namely, the witnesses and evidence adduced by the People were unpersuasive, particularly given other available alternatives. Defense counsel made this argument by attacking Dr. Rosten’s credibility. Counsel argued that Dr. Rosten lacked training in pedophilia and did not spend enough time with Ibanga to diagnose him.
Counsel also later directly made the argument. She said, “Now, it’s true that the prosecutor does not have to put on all witnesses. Okay. She could stand on her case with one witness, with two witnesses. With however many that she feels is necessary to prove her case beyond a reasonable doubt. [¶] She, in fact, said in her opening statement, ‘I can call the defendant if I want to.’ She didn’t think it was necessary. And I didn’t think it was necessary that I had to prove anything because that is the burden of proof. [¶] I don’t think she did it. I don’t think there was enough. A lot of this information is only offered in the doctor’s opinion. [¶] Now, question: How reliable do you think that information is? . . . She thought what she put on was enough. And she has a right to do that. She can rely on that. . . . Would you feel that it would be more compelling and reliable if you heard witnesses from the hospital other than Dr. Rosten? [¶] . . . [¶] . . . Would you feel it to be more compelling and reliable to hear the witnesses that observed any of this paranoia or whatever they said he had? [¶] I don’t remember many delusions. Would that be more compelling? People who actually saw? [¶] . . . [¶] There could have been more compelling evidence of people that saw him consistently. The nurses, one of the treating psychiatrists.” (Italics added.)
The prosecutor’s objection to this argument was overruled.
Therefore, although defense counsel was limited one time in making her argument, she was not so limited thereafter. There was no prejudicial error.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.