Opinion
H036400
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GERARD MARCHESE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC094386)
Defendant Michael Gerard Marchese appeals from an order dated December 16, 2010, extending his commitment pursuant to Penal Code section 1026.5, subdivision (b). He contends that the trial court violated his equal protection rights by placing the burden of proof on him to establish the medication defense. We find no prejudicial error and affirm the order.
I. Statement of Facts
Defendant was initially committed to Napa State Hospital as a result of his not guilty by reason of insanity plea. In December 2000, defendant saw a mother and her two-year-old child in a parking complex. He thought that the mother might be abusing or kidnapping the child, so he grabbed the child. However, when the mother screamed, he dropped the child. Defendant had also committed a prior offense when he grabbed a woman's breast. As a result of that conviction, he was required to register as a sex offender.
Dr. Bret McLaughlin, a clinical psychologist, testified as an expert in the diagnosis and treatment of mental disorders and in risk assessment. Dr. McLaughlin, who had been treating defendant for the past two years, diagnosed defendant with bipolar 1 disorder, which meant that he experienced more periods of mania than depression. During the trial, Dr. McLaughlin observed that defendant was exhibiting symptoms of mania in court. Defendant was demonstrating pressured speech, presenting a "flight of ideas," and making "some gesticulations that are happening to no one in particular." According to Dr. McLaughlin, defendant's mental disorder was not currently in remission even though he had been taking his medication for the past year.
Defendant was not complying with all of the elements of his treatment plan. First, defendant was not participating in sex offender treatment. Though defendant asserted that he had completed sex offender treatment at another hospital, there was no record that he had done so. Defendant also claimed that he did not need such treatment. He believed that grabbing a woman's breast was not a problem because "some women like it." Second, defendant frequently denied that he suffered from bipolar disorder. Third, defendant failed to show remorse for the attempted kidnapping of the child, saying that "if the situation presents itself the second time, that he would do the same thing." Defendant believed the child was being abused because the child was "wobbling," and this incident "flashed him back" to another incident on an airplane "where he believed he saw a father in some way abusing a child."
Dr. McLaughlin had concerns that defendant would not continue to take his medication if he was in a less secure environment. He noted that defendant had a history of medication noncompliance and he currently believed that his manic symptoms were the result of being a New Yorker. In December 2009, there was a hearing to determine whether defendant should be medicated against his will. During that hearing, defendant became very agitated, jumped up, and raised his arm in a fist. When Dr. McLaughlin prevented him from hitting the psychiatrist, defendant sat down. According to Dr. McLaughlin, defendant had difficulty controlling his behavior when he was in a manic phase. Dr. McLaughlin believed that defendant posed a substantial risk of physical harm to others because his crimes were committed when he was in a manic phase and he was currently exhibiting manic symptoms, including auditory hallucinations.
Defendant was currently being treated with the mood stabilizers, lithium, depakote, and geodon. Defendant's behavior and symptoms had improved since he was taking his medication regularly. Defendant was attending group therapy and he had "started to vacillate in some of his beliefs." Though defendant had not been physically assaultive in the last year, he had been verbally aggressive toward staff and peers on numerous occasions.
Dr. McLaughlin testified that in order for defendant to be eligible for placement in the Conditional Release Program (CONREP), defendant would need to acknowledge his mental illness, show remorse for his victims, participate in sex offender treatment, spend time in an unlocked unit, and take his medication.
Defendant testified that the hospital staff were "picking on" him, "saying go back to New York." He stated, "Sometimes I flip flop believing I am mentally ill or not." When he was asked what mental disorder he thought that he might have, he replied, "I don't know for sure, but I may have gotten bipolar at that 1990 air flight back to the East Coast for Christmas with the trauma, and I don't know, I don't know. Nobody sat with me and investigated." Defendant testified that he was currently taking depakeen, and he wanted to stop taking it because this liquid medication scratched his throat. When asked whether he thought that he needed medication, defendant stated, "I need to work for that hospital not just get to take my ideas in group. I say what I learn in actual workshop up in San Francisco in '80 as I paid $400 for four days to better yourself, get what you want out of life, you know, and -- " When he was again asked whether he thought he needed medication, defendant replied, "I believe I need to check in. I can tell people what I did in the Navy to the officers when they are all yelling at me down there or yelling at all of us in bootcamp, do this, go here, or crude worm, degrading stuff, shouldn't have volunteered for anything, shouldn't have signed up, and so that got on my nerves. I have been in the Navy since 1983. So much on my nerves that I wanted to check out, and one of the guys asked me, one of the officers said -- "
Defendant explained that he attempted to take the child from his mother's arms because he does not "trust adults with kids sometimes," and he had mixed his psychotropic medication with crack cocaine. He also stated that he had reasons for grabbing the woman's breast and that he did not think that they had "enough time to talk about it." When asked whether he believed that he had sexually assaulted the woman, he replied, "Yes and no." He was asked whether he was aware that he was required to participate in sexual offender treatment. Defendant responded, "I have been told that. I already did it at Atascadero. What do you want from me? To go back into more depression with your medications or whatever or suicidal? [¶] . . . [¶] Get over it. Get over it. What is the sexual assault all around here in the neighborhood that I'm hearing? In this jail, his wife Jeannie Morris and Mr. Crocie by the Grateful Dead are outside my cell. I am in a cell with shit all over the floor and newspaper and they're fondling each other. They are my favorite Californians. But I have to be in the cell all by myself for grabbing a boob, that's what you do to me. My middle finger is standing out there right now in the courtroom. I am not going to do it. That's how pissed off I am. That's how pissed off I am. When are you going to get over it. I got over it."
Following argument, the trial court found that the prosecution had met its burden of proof and extended defendant's commitment for two years.
II. Discussion
Defendant contends that the trial court violated his right to equal protection by placing the burden of proof on him to establish the medication defense.
Penal Code section 1026.5 provides that the commitment of an individual found not guilty by reason of insanity (NGI) may be extended by proof that the individual "has been committed under Section 1026 for a felony and by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others." (Pen. Code, § 1026.5, subd. (b)(1).) In determining the allocation of the burden of proof in insanity extension hearings, People v. Bolden (1990) 217 Cal.App.3d 1591 (Bolden) observed that if the defendant was "not dangerous while medicated and will unfailingly self-medicate in an unsupervised environment in the future, section 1026.5's core policy—protecting the public from persons who have already demonstrated their dangerousness—is not threatened." (Bolden, at p. 1600.) Bolden concluded that the prosecution had the burden of proof beyond a reasonable doubt as to the elements of Penal Code section 1026.5, but "the effect of medication in controlling [the defendant's] dangerousness and whether he will self-medicate in an unsupervised environment may be raised" by the defendant as an affirmative defense and proved by a preponderance of the evidence. (Bolden, at pp. 1600, 1602.)
In People v. Noble (2002) 100 Cal.App.3d 184 (Noble), the defendant appealed from an order extending his commitment as a mentally disordered offender (MDO), contending that the trial court erred in instructing the jury that he had the burden of proving a medication defense. (Noble, at p. 187.) The Noble court held that the instruction was erroneous, reasoning that "[u]nder the MDO statute, defendant's commitment may not be extended unless the prosecution proves, beyond a reasonable doubt, that he has a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and that, as a result of the disorder, defendant represents a substantial danger of physical harm to others. (§§ 2970, 2972, subd. (c).) A mental disorder is in remission if its symptoms are controlled by medication. (§ 2962.) Thus, an MDO whose symptoms are controlled by medication and who is not dangerous while on medication is by definition 'in remission,' and represents no danger to others. Such a person does not meet the statutory criteria for an extension of his or her MDO commitment. (§§ 2962, 2972, subd. (c).) Defendant's 'medication defense,' therefore, amounts to a claim that he does not meet two of the three criteria for extending his MDO commitment because he is in remission and is not dangerous. These are issues upon which the prosecution must bear the burden of proof." (Noble, at p. 190.)
Relying on People v. McKee (2010) 47 Cal.4th 1172, defendant argues that NGI's and MDO's are similarly situated for purposes of placing the burden of proof regarding a medication defense. Defendant further argues that the state has failed to show a compelling state interest in differentiating between NGI's and MDO's.
Even assuming that the prosecution had the burden in the present case to prove that medication controlled defendant's dangerousness and that he would not self-medicate in an unsupervised environment, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Here, defendant committed his offenses while manic. Though he had been taking medication for the past year, his disorder was not in remission. He had been verbally aggressive towards both staff and peers on numerous occasions, and he exhibited symptoms of mania during the proceedings. He also failed to show remorse for his crimes. More significantly, there was no evidence that defendant would take medication if unsupervised. Dr. McLaughlin believed that defendant would not take his medication if released based on defendant's history of medication noncompliance and defendant's belief that his symptoms were the result of being a New Yorker. Defendant's own testimony established that he would not self-medicate. Defendant testified that he "flip flops" about believing that he is mentally ill, and he did not know what diagnosis he might have. When defendant was asked whether he needed to take medication, his responses were incoherent. Based on this record, there was no reasonable doubt that defendant represented a substantial danger of physical harm to others.
In sustaining the allegations of the petition, the trial court stated: "Mr. Marchese, I am happy that you are doing better this past year than the year before. So it seems that you're making progress. But if I had any doubts about whether or not the Petition was proved with the end of Dr. McLaughlin's testimony you certainly cleared up those doubts."
III. Disposition
The order is affirmed.
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Mihara, J.
WE CONCUR: ____________
Bamattre-Manoukian, Acting P. J.
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Walsh, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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