Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC043732
OPINION
McGuiness, P.J.
Appellant Edward John Kelleher appeals from an order following a jury trial extending his commitment as a mentally disordered offender (MDO). (Pen. Code, §§ 2970, 2972.) He contends the judgment must be reversed because (1) the evidence was insufficient to show that he represented a substantial danger of physical harm to others, as is required for an MDO extension; (2) the court should have instructed the jury sua sponte that the People had the burden of proving beyond a reasonable doubt that he would not take his psychotropic medications if unsupervised and that in an unmedicated state, he represented a substantial danger of physical harm to others; and (3) trial counsel was ineffective in failing to request a jury instruction to that effect. We affirm.
Statutory references are to the Penal Code.
I. BACKGROUND
Appellant is schizophrenic and has a lengthy criminal history that includes convictions of burglary, theft and bringing a weapon into a courthouse. He is addicted to heroin and alcohol and abused those substances for many years.
In August 1997, appellant went to the office of his former attorney and stabbed him in the back. He had stopped taking the psychotropic medication prescribed for his schizophrenia and was suffering from paranoid delusions at the time of the stabbing. Appellant was charged with assault with a deadly weapon, to which he entered a no contest plea and received a three-year prison sentence. (§ 245, subd. (a)(1).) He was paroled in 1999, but his parole was revoked in 2000 after drugs were found in his possession.
While in prison following the parole revocation, appellant was admitted to Atascadero State Hospital on January 12, 2001. Subsequently, he was declared an MDO under section 2962 and ordered to receive mental health treatment as a condition of his parole. Appellant was discharged from Atascadero on September 30, 2002, and sent to a residential treatment facility under the auspices of CONREP, an organization that supervises patients who are conditionally released into the community after receiving treatment at a state mental health hospital.
On February 25, 2003, the People petitioned to extend appellant’s MDO commitment for another year under sections 2970 and 2972. The court granted the petition and ordered appellant to remain on outpatient status under the supervision of CONREP. A second petition to extend the commitment was filed on May 5, 2004, and granted on January 18, 2005. A third petition for extension, which is the subject of this appeal, was filed on December 12, 2005, and was tried before a jury.
At the time of his trial, appellant had been diagnosed with paranoid schizophrenia, a severe mental disorder, as well as polysubstance abuse dependence, antisocial personality disorder, a closed head injury, and Hepatitis C. Appellant was taking a number of psychotropic medications, including buspar, lithium carbonate, tresadone and zyprexa. Random blood draws and urinalyses through the CONREP program showed that appellant was compliant with his medications and was not using illegal substances. Appellant was sharing a room in a house occupied by other CONREP participants and, in addition to his CONREP activities, was working part time as a janitor.
The People presented the testimony of Peter Christiansen, MFT, a licensed psychotherapist and program clinician with CONREP who met with appellant in private therapy sessions at least three times a month, saw him informally and in group sessions, and conducted monthly home visits. Christiansen explained that schizophrenia causes both positive symptoms, such as when a person carries on conversations with someone who is not there, and negative symptoms, such as lack of motivation, an inability to form close relationships with people outside one’s immediate family (and often not even within the family), and the appearance of hearing stimuli not readily apparent to anyone else. Although appellant’s positive symptoms of schizophrenia were controlled through medication, he still showed negative symptoms and appeared distracted by voices, though he denied hearing any.
Christiansen believed appellant had a good grasp of his substance abuse issues, but lacked insight into his mental illness and tended to blame his criminality on his long history of drug abuse rather than his schizophrenia. Appellant did not think he really had a severe mental illness, and was not motivated to engage in treatment unless prompted to do so. Gaining insight into one’s mental illness is crucial, because without such insight, it is difficult to recognize warning signs or utilize coping strategies to prevent relapse.
Lisa Burroughs was a clinical psychology doctoral candidate and intern at CONREP who conducted therapy sessions with appellant and led some of the group sessions he attended. She believed appellant had limited insight into the severity of his mental illness and was at risk of relapse. On February 9, 2006, he told her that, if released from CONREP, he intended to possibly stop taking his medication to demonstrate that he no longer had a mental illness. A week later, however, he approached her in the hallway and said he did not believe his schizophrenia was curable or that he was cured, and he knew he would have to stay on medication to control his symptoms.
Dr. Shelly Stolesen, a clinical psychologist at CONREP, saw appellant almost every day. She found him to be very committed to his substance abuse recovery activities, but he was more reluctant to focus on his mental illness. She believed he should be kept on outpatient status for another year because he suffered from a severe mental illness and represented a substantial danger of physical harm to others. Dr. Stolesen believed appellant was in “relative remission” from the positive symptoms of schizophrenia, but was not in remission from the negative symptoms. Without medication, appellant would become delusional and extremely dangerous, and there was a very high likelihood he would reoffend.
Though he generally followed the rules of the CONREP program, appellant failed to inform his treatment team that he had started taking interferon to treat his hepatitis. He had been told it was essential to provide CONREP with this information because interferon could interact with psychotropic medication. Appellant also missed a CONREP appointment two days after Christmas (which was unusual for him) and claimed that Burroughs had given him permission to take a two-week vacation, even though no such permission had been given. Appellant was placed on clinical probation.
Appellant testified that he had made a mistake in thinking that he had permission to take a two-week vacation when he failed to appear for his appointment after Christmas. He believed he had permission to begin taking interferon. Appellant acknowledged that he had a mental illness and needed to take medication. He explained that when he told Burroughs he might stop taking his medication, he was trying to imagine how it might feel to be well. He recognized the warning signs and if he felt he was about to relapse, he would go to meetings and use the same coping skills he had used to overcome his substance abuse.
The jury determined that appellant met the criteria of an MDO. The court issued an order granting the petition to extend his MDO commitment for one year and continuing his outpatient treatment under the supervision of CONREP.
II. DISCUSSION
Substantial Evidence
To prevail on a petition extending an MDO commitment, the People must prove beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder is not in remission and cannot be kept in remission without treatment; and (3) by reason of that mental disorder, the patient represents a substantial danger of physical harm to others. (§§ 2970, 2972, subds. (c) & (e); In re Qawi (2004) 32 Cal.4th 1, 23-24.) Appellant contends the evidence was insufficient to prove the substantial danger element.
On appeal, we judge the sufficiency of the evidence to support an MDO commitment under the substantial evidence standard. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) This requires us to determine “whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] . . . “ ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. . . .’ [Citation.]” ’ [Citation.]” (Ibid.)
At the time of the recommitment proceeding, appellant was able to safely live in the community under the close supervision of CONREP, which took a number of steps to ensure that he took his prescribed psychotropic medication. But, the evidence supported a finding that if appellant were not supervised, he would be likely to stop taking this medication. Less than two months before the MDO extension hearing, appellant told Burroughs that if released, he might stop taking his medication to prove that he was not mentally ill. Though appellant later acknowledged that he was mentally ill and needed treatment, the jury could rationally conclude that his initial statement more accurately expressed his attitude about his condition. Appellant’s testimony that he had told Burroughs he might stop taking his medication because he “was imagining what it would be like if [he] wasn’t mentally ill,” could reasonably call into doubt his later recantation.
The statement to Burroughs was not the only evidence that appellant would stop taking his medication if unsupervised. Although appellant was doing well in CONREP overall and was in relative remission from the positive signs of schizophrenia, his treatment team in that program all believed he had little insight into his mental illness and continued to minimize his symptoms. Lacking such insight, there was a greater risk appellant would decompensate. Appellant had consistently taken his medication while in CONREP, but the environment was tightly supervised and he knew he was subject to blood tests to determine his compliance.
It was not disputed that appellant would be dangerous if unmedicated. Christiansen testified that he felt “terror” when he considered the possibility of appellant stopping his medication, because appellant had violently assaulted his former attorney when unmedicated. Appellant himself acknowledged that he was not taking medication and was under the influence of paranoid delusions when he committed the stabbing. Based on the evidence as a whole, the jury could rationally conclude that if released from CONREP, appellant was likely to stop taking his medication, and would as a result represent a substantial danger of physical harm to others.
Appellant also argues that the judgment must be reversed because substantive due process requires that involuntary civil commitments be limited to persons who are dangerous beyond their control, and there was no substantial evidence of any volitional impairment in this case. (In re Howard N. (2005) 35 Cal.4th 117, 128; Kansas v. Crane (2002) 534 U.S. 407, 412-413 .) We are not persuaded. The statutory elements for an MDO commitment necessarily encompass a determination that the defendant has serious difficulty controlling his or her behavior (People v. Putnam (2004) 115 Cal.App.4th 575, 582), and the jury in this case concluded that all of those elements had been met. The evidence showed that appellant suffered from schizophrenia, a mental illness that rendered him dangerous beyond his control when unmedicated, and further supported a finding that he was likely to discontinue his medications if released from supervision.
Sua Sponte Instruction on Burden of Proving Appellant Would Take Medication
The jury was instructed that the People had the burden of proving the elements necessary to declare appellant an MDO: “The State has the burden of proving beyond a reasonable doubt that [appellant]: [¶] 1. Has a severe mental disorder; [¶] 2. That the disorder is not in remission or cannot be kept in remission if [appellant’s] treatment is not continued; [¶] 3. And that, by reason of his severe mental disorder, [appellant] represents a substantial danger of physical harm to others.” (§ 2970, 2972, subds. (c) & (e).) Appellant contends the trial court had a sua sponte duty to give an additional instruction stating that the People had the burden of proving beyond a reasonable doubt that he would not take his medication if released from CONREP and that in an unmedicated state, he would represent a substantial danger of physical harm to others. We disagree.
Appellant’s argument is premised on People v. Noble (2002) 100 Cal.App.4th 184, in which the trial court instructed the jury that the People had the burden of proving the elements necessary for an MDO extension beyond a reasonable doubt, but then undercut that instruction with CALJIC No. 4.15 (now renumbered CALJIC No. 4.17.1), which is derived from case law involving petitions to extend a commitment of not guilty by reason of insanity under section 1026.5: “ ‘It is a defense to a Petition to Extend Commitment that the respondent [defendant] in a medicated state does not represent a substantial danger of physical harm to others. [¶] The . . . [defendant] has the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [¶] 1. In his present medicated condition he no longer represents a substantial danger of inflicting physical harm upon others; and [¶] 2. He will continue to take the medication as prescribed, in an unsupervised environment. [¶] If you find the respondent [defendant] has met this burden on these issues, you should find that he does not represent a substantial danger of physical harm to others.’ ” (People v. Noble, supra, 100 Cal.App.4th at p. 189.)
Noble concluded that CALJIC No. 4.15 had no place in an MDO proceeding, in which a defendant’s claim that his disorder was controlled by medication was a challenge to one of the necessary elements for a commitment, rather than an affirmative defense. (People v. Noble, supra, 100 Cal.App.4th at p. 189.) When the trial court instructed the jury that the defendant had the burden of proving he would continue to take his medication, this shifted the People’s burden of proving he represented a substantial danger of physical harm to others. (Id. at pp. 189-190.) This was an error that could not be deemed harmless beyond a reasonable doubt. (Id. at p. 191.)
The court in this case did not give CALJIC No. 4.15 or any other instruction purporting to shift the burden of proof to appellant. Appellant does not claim otherwise, but points to dicta in Noble stating that when an MDO defends against an extension petition on the theory that he or she is not dangerous to others while medicated, the trial court should give the following instruction: “The People have the burden to prove, beyond a reasonable doubt, that if released, the defendant will not take his or her prescribed medication and in an unmedicated state, the defendant represents a substantial danger of physical harm to others.” (People v. Noble, supra, 100 Cal.App.4th at p. 190.) Appellant did not request such an instruction at trial, but argues that it should have been given sua sponte because there was no evidence suggesting he presented a substantial risk of harm while medicated and the main issue was whether he would continue to take his medication.
A trial 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. (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) This includes the duty to instruct on a defense when it is relied upon by the defendant or when it is supported by substantial evidence and is not inconsistent with the defendant’s theory of the case. (Id. at p. 488) When, however, an instruction relates particular facts to the elements of an offense charged, it is a pinpoint instruction that need not be given absent a request. (Id. at pp. 488-489; see also People v. Saille (1991) 54 Cal.3d 1103, 1120 [court need not instruct sua sponte on voluntary intoxication, which may negate specific intent element of offense but would not supply a defense to the charged murder].)
A defendant’s claim that medication controls his severe mental disorder is not a true defense, but challenges the “substantial danger of physical harm” element of an MDO extension petition. (People v. Noble, supra, 100 Cal.App.4th at p. 189.) As such, an instruction on that principle is a pinpoint instruction that must be given only if requested by the defense. There was no request in this case.
An MDO recommitment requires proof beyond a reasonable doubt that a defendant represents a substantial danger of physical harm to others. A “substantial danger” has been described in the related context of a sexually violent predator proceeding as “a serious and well-founded risk,” which exists when the defendant, by virtue of his mental disorder, is likely to engage in violent acts. (See People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) The instruction proposed by Noble would have advised the jury that the People have the higher burden of proving beyond a reasonable doubt that, if released, the defendant will not take his medication, and will, in an unmedicated state, present a substantial danger of harm to others. (People v. Noble, supra, 100 Cal.App.4th at p. 190.) Given our conclusion that the court was not required to instruct on the medication issue absent a request, we need not determine whether Noble accurately describes the People’s burden of proof on this issue.
Ineffective Assistance of Counsel
Appellant argues in the alternative that his trial counsel was ineffective in failing to request an instruction on the prosecution’s burden of proof on the medication issue. We disagree.
“To establish a claim of inadequate assistance, a defendant must show counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of reasonableness. . . . [¶] . . . under prevailing professional norms.’ [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel’s deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant. [Citations]” (People v. Frye (1998) 18 Cal.4th 894, 979.) A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215.)
Appellant cannot prevail on his claim for ineffective assistance because it is not reasonably probable he would have obtained a more favorable result if the jury had been instructed on the medication issue. The People’s theory at trial was that appellant was capable of living safely in the community under CONREP supervision, but he was likely to stop taking medication and would represent a substantial danger of physical harm to others if he was no longer in that program. This theory was supported by appellant’s recent statement to Burroughs that he would stop taking medication to prove he was not mentally ill, as well as by the testimony of appellant’s treatment team that he lacked insight into his condition and did not understand its severity. The jury was correctly instructed that the prosecution was required to prove the substantial danger element beyond a reasonable doubt. Given the state of the evidence, the prosecutor’s theory of the case, and the instruction given, the jury could have concluded the substantial danger element was met only if it determined, beyond a reasonable doubt, that appellant was likely to go off his medication if unsupervised. It is not reasonably probable that a more specific instruction on this point would have changed the result of the trial when the issue was already adequately framed for the jury.
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.