Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge. Super. Ct. No. F98612095-0
Paul Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
In 1998, appellant Fred Dominguez Rivas was adjudged not guilty by reason of insanity of violating Penal Code sections 422, 69, and 417, subdivision (a)(1). He was committed to the state mental hospital for a maximum term of eight years eight months. In 2005, appellant was placed in the outpatient Central California Conditional Release Program (CONREP). Perry Rankin is appellant’s social worker. In 2007, appellant petitioned for restoration of sanity. Jury trial was held. Appellant testified on his own behalf and Rankin testified for the People. The jury determined that appellant should not be restored to sanity.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant argues the record lacks evidence proving that he is still dangerous. He also argues the court prejudicially erred by refusing to give both alternate subparts of CALCRIM No. 3452. Neither contention is persuasive; we will affirm.
FACTS
Appellant’s testimony
Appellant is around 50 years old. He suffers from bipolar disorder.
Prior to appellant’s commitment, he used cocaine and methamphetamine and he drank excessively. Appellant described his “common-law” marriage and marital problems. He said that the commitment offenses were precipitated by seeing his spouse in bed with another man. He consumed 18 beers and $60 to $80 worth of cocaine. Then he called his spouse and told her that he was going to come over and kill her. When he arrived at the residence, police officers had already arrived. He waved a knife around and told the officers to shoot him. After a 20-minute standoff, a friend persuaded him to drop the knife and surrender. He was transported to Atascadero State Hospital and given unspecified medications.
Appellant has attempted to commit suicide approximately 15 times; three of the attempts occurred during his postcommitment hospitalization.
In addition to various psychotropic medications, appellant’s treatment included programs on anger management, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA). Appellant testified that he used to get “mad at every little thing. Sometimes I would get mad at the doctors and nurses…. There was situations they had to talk to me, figure out what kind of medication would work with me right. Most of the medications they were giving me was not working right until they found the right medications that were working.” After the right medications were prescribed and appellant “decided to go with the program and start doing everything they said,” he calmed down and did not attempt suicide again. It was difficult for hospital personnel to find a drug combination that worked for appellant. At time of trial, appellant was taking Welbutrin, Tegatrol, Reperdol and Benadryl. Appellant described this combination of medications as a “cocktail that works.” Appellant testified that he needs to remain on medication for the rest of his life. He said that the medication “[i]s to help [him]” and he is “gonna need it for the rest of [his] life.” Appellant testified that the medication “agrees with” him and he does not have any problems taking it.
Rankin conducts home visits and monitors appellant’s medication compliance about one to two times per week; a doctor monitors appellant’s medications once or twice per month. Appellant has a daily check-in with a CONREP staff member. Appellant repeatedly asked Rankin to be excused from his daily check-in. Eventually, Rankin told him that he could have “Fridays off.”
Records showed that appellant previously took a double dose of Welbutrin and tested positive for Vicodin, which was not prescribed for him. Appellant admitted that he doubled-up his medication three or four times to deal with stress.
Appellant’s counsel asked him, “What makes you believe that you’re ready to take charge of your own life without supervision?” Appellant replied:
“As far as the way I’ve been and acting and the way I am, I think I’m ready to be on the community. I don’t think I’m a violent person. I don’t think I’m -- I don’t think I scare anybody no more. I don’t drink no more. I take my medication. As long as I take my medication, I’m normal. And I know I’m gonna take it for the rest of my life. I can’t stop it because it does help me a lot. It especially helps me to sleep.”
Defense counsel asked, “Do you feel that you would pose a danger to the community?” Appellant replied, “No.” Counsel asked, “If you began drinking again, I suppose that would be a possibility?” Appellant replied, “Yes it would.” Defense counsel asked, “Are you confident that you can stay on the wagon?” Appellant replied, “I could stay clean.” Appellant stated that he attends a type of 12-step meeting with other CONREP clients once per week and would maintain this practice if restored to sanity. However, appellant admitted that he “joked” with Rankin that he might start drinking again.
At the time of trial, appellant lived in a CONREP apartment with another CONREP participant. He did not have regular employment and subsisted on social security disability benefits. He did not spend any time seeking employment.
Appellant admitted physically abusing his former spouse. He also admitted that when he was a juvenile he got in lots of fights. He also admitted that he stole a vehicle, committed an armed robbery and an assault with a deadly weapon and set a van on fire.
Rankin’s testimony
Rankin testified that he is an accredited clinical social worker employed by CONREP. He provides individual treatment and group therapy for CONREP clients. Rankin is trained to assess for violence and reoffense. He characterizes appellant’s background history as “considerably violent for a long period of time.” At the time of trial, Rankin had worked with appellant for over three years.
Appellant was diagnosed as “Bipolar I” which is the more serious form of the condition, usually requiring hospitalization for the majority of patients. Also, appellant was diagnosed with polysubstance abuse.
Rankin described appellant as minimally compliant with the terms and conditions of treatment and supervision. This minimal compliance resulted from appellant’s belief that he really does not have a mental disorder or substance abuse problem. Rankin stated that there is “a passive-aggressive quality or flavor to most of [appellant’s] treatment.” Rankin thinks this is appellant’s belief that he really does not have a mental disorder or a substance abuse problem and does not need to be in the program. Appellant refuses to be involved in most socialization opportunities and never has anything to talk about in therapy meetings. These are symptoms of resistance to treatment. Appellant’s attitude is, “I don’t have any goals. I don’t need to work on anything.” Appellant occasionally did not correctly take his medications. Taking double doses of Welbutrin would cause a “high.” Appellant was not able to understand that doubling his dosage was an abuse of prescribed medication. Rankin found it difficult to form clinical opinions because appellant was not participating in the treatment program at the level Rankin expected of a client seeking restoration of sanity.
Ranking testified the he does not “have any grounds for saying that [appellant] would be safe while -- after being released from the program.” Appellant “hasn’t completed the necessary treatment for [Rankin] to feel comfortable saying that [appellant] wouldn’t be a danger to others.” Rankin opined that appellant has a pattern in his relationships with women or anyone where he doesn’t feel he has the ability to assert himself. This becomes a source of anxiety and it becomes internalized. Appellant tends to harm himself to get people’s attention or to turn the situation around as in the case of his controlling offenses. When asked whether this could pose a danger to others as well, Rankin replied, “Yes, because, I mean, essentially if it’s -- if you find it all right to harm yourself, it’s a hop, skip, and a jump to harming someone else.”
Appellant’s counsel objected to this answer as lacking foundation. The court ruled that this answer would be received into evidence but it “would not be considered an expert opinion but a lay person’s opinion. The jury will be likewise instructed.”
Rankin opined that if appellant was restored to sanity, he would take his medications for a short period of time and then discontinue them. Based on appellant’s current behavior, Rankin does not believe that appellant would seek a therapist. Also, there is a good possibility that appellant would backslide into substance abuse. Appellant had stopped attending AA and NA meetings and he told Rankin that he didn’t need to do any maintenance work because he did not have any temptation to drink. Appellant alluded to the idea of drinking in a joking manner, which exhibited poor judgment.
DISCUSSION
I. The jury’s determination that appellant failed to prove that he was no longer a danger to himself or others is supported by the record.
Appellant asserts that by his own testimony he established a prima facie case that he was not dangerous. At that point, the burden shifted to the People to prove that he was dangerous and the People failed to satisfy this burden. We are not persuaded.
A successful insanity plea relieves the defendant of all criminal responsibility for the commitment offense. He is committed to the state hospital instead of criminal punishment for the purpose of treatment and to protect him and society. (People v. Dobson (2008) 161 Cal.App.4th 1422, 1432 (Dobson).) Restoration of sanity involves a two-step process. As relevant here, once an applicant has completed a one-year period in a conditional release program, a restoration of sanity trial shall be held. (§ 1026.2, subd. (f).) The applicant bears the burden of proving that he is no longer dangerous by a preponderance of the evidence. (§ 1026.2, subd. (k); Dobson, supra, 161 Cal.App.4th at p. 1433.) “There is nothing unusual about placing this burden of proof on defendant. [Citation].” (People v. Sword (1994) 29 Cal.App.4th 614, 624 (Sword), fn. omitted.) The fact of the prior conviction provides a basis for inferring that the applicant is both mentally ill and dangerous and it is reasonable to presume that his insanity has continued to the date of the sanity restoration trial. (Ibid.; In re Franklin (1972) 7 Cal.3d 126, 141.) Presentation of evidence sufficient to overcome the presumption of continuing dangerousness does not result in a shifting of the burden of proof onto the People. It is the applicant who must prove by a preponderance of the evidence that he is no longer dangerous. (§ 1026.2, subd. (k); Evid. Code, § 500; Sword, supra, 29 Cal.App.4th at p. 624; People v. Bartsch (2008) 167 Cal.App.4th 896, 903 (Bartsch); People v. Mapp (1983) 150 Cal.App.3d 346, 348.) As explained in In re Franklin, supra, 7 Cal.3d 126, “… there seems to be no serious dispute among the authorities regarding the propriety of requiring one who has proved himself insane at the time of the offense to prove that he has recovered his sanity.” (Id. at p. 145.) On appeal, we review the fact finder’s determination under the substantial evidence standard of review. (See, e.g., People v. Crosswhite (2002) 101 Cal.App.4th 494, 507; cf. People v. DeGuzman (1995) 33 Cal.App.4th 414, 420 & People v. Michael W. (1995) 32 Cal.App.4th 1111, 1114.)
Here, the record supports the jury’s determination that appellant failed to prove by a preponderance of the evidence that he was no longer dangerous. Appellant was the sole witness in his favor. He acknowledged that prior to his commitment and treatment for bipolar disorder, he had a violent criminal history. In addition to the commitment offenses, he physically abused his spouse and committed other crimes such as armed robbery and assault with a deadly weapon. Appellant acknowledged that he previously misused alcohol and took illegal narcotics. Appellant recognized that he needed to remain on prescription medications for the rest of his life to treat his bipolar disorder. Appellant admitted that he could become dangerous if he resumed alcohol usage. Yet, he acknowledged that he was only attending one “12-step” meeting per week.
Rankin testified that appellant had ceased attending AA meetings. Rankin did not believe that appellant would be safe if restored to sanity and released from the CONREP program. Rankin testified that appellant “hasn’t completed the necessary treatment for [him] to feel comfortable saying that [appellant] wouldn’t be a danger to others.” Appellant quibbles with the phrasing of Rankin’s opinion, but the import of it is clear: Rankin thought that appellant was still dangerous and opposed restoration of sanity. Rankin had worked with appellant for three years. Rankin’s opinion was based on appellant’s medical records from the mental hospitals, police reports, court documents and client meetings. Rankin described appellant as only minimally compliant with the terms and conditions of his treatment. Rankin opined that if appellant was restored to sanity and released from the CONREP program, he would stop taking his medications. He also opined that appellant would not seek out a therapist and there is a good possibility that appellant would begin drinking again. Rankin testified that appellant has a pattern of harming himself to get people’s attention or to change the dynamics of a situation, as he did in the case of the controlling offenses. As a lay opinion, Rankin was permitted to testify that this could pose a danger to others because harming oneself is only “a hop, skip, and a jump” away from harming another person.
Appellant challenges Rankin’s qualifications as an expert witness based on the nature of his credentials. This contention was forfeited because objection on this ground was not interposed at trial. (People v. Gonzalez (2006) 38 Cal.4th 932, 948-949.)
In sum, we find substantial evidence supporting the jury’s verdict. Alternatively expressed, the record contains substantial evidence rebutting appellant’s prima facie showing that he was no longer dangerous.
II. No instructional error occurred; appellant was not prejudiced by the refusal to give both alternative subparts of CALCRIM No. 3452.
In its entirety, CALCRIM No. 3452 provides:
“The defendant was previously found not guilty of a crime and committed to a mental health facility. You must decide whether the defendant currently poses a danger to the health and safety of others as a result of a mental disease, defect, or disorder. That is the only purpose of this proceeding. You are not being asked to decide the defendant’s mental condition at any other time or whether (he/she) is guilty of any crime.
“<Alternative A--defendant’s ability to continue unsupervised self-medication not an issue>
“[The law presumes that the defendant currently poses a danger to the health and safety of others as a result of a mental disease, defect, or disorder. In order to overcome this presumption, the defendant has the burden of proving that it is more likely than not that (he/she) no longer poses such a danger.]
“<Alternative B--defendant’s ability to continue unsupervised self-medication an issue>
“[The law presumes that the defendant currently poses a danger to the health and safety of others as a result of a mental disease, defect, or disorder. In order to overcome this presumption, the defendant has the burden of proving that it is more likely than not that:
“1. (He/She) is no longer a danger to the health and safety of others because (he/she) is now taking prescribed medicine that controls (his/her) mental condition; [¶ ] AND
“2. (He/She) will continue to take that medicine in an unsupervised environment.]”
During the instructional conference, appellant’s counsel argued that the trial court should give both alternative subparts of CALCRIM 3452. The court declined this request and gave alternative subpart B. Appellant argues that he is no longer dangerous regardless whether or not he continues to take his medication and therefore refusal to give subpart A of CALCRIM 3452 was prejudicial instructional error. We reject this argument because appellant’s contention that he would not be dangerous if he stopped taking medications to treat his bipolar disorder is unsupported by the evidence.
The court is required to instruct on the law that is closely and openly connected to the facts before the court and necessary for the jury to understand the case. (People v. Avila (2006 38 Cal.4th 491, 568.) The court does not have a duty to instruct on a theory that not supported by trial evidence. (See, e.g., People v. Barton (1995) 12 Cal.4th 186, 201; People v. Memro (1995) 11 Cal.4th 786, 868; People v. Schultz (1987) 192 Cal.App.3d 535, 539.)
The language of alternative subpart A would have been applicable in this case only if there was evidence from which a reasonable jury could have concluded that appellant would not be dangerous if he ceased taking medications to treat his bipolar disorder. The record does not support such a position. Both appellant and Rankin testified that appellant suffers from bipolar disorder. They both testified that appellant needs to take medications to treat this condition for the rest of his life. Appellant testified, “I take my medication. As long as I take my medication, I’m normal. And I know I’m gonna take it for the rest of my life. I can’t stop it because it does help me a lot.” Appellant admitted that prior to his commitment (when he was not medicated to treat his bipolar disorder) he committed violent crimes against others, including the commitment offenses, spousal abuse, armed robbery and assault with a deadly weapon. Appellant testified that during his hospitalization he attempted suicide three times and frequently became angry with the doctors and nurses. Once the correct combination of medications was found and he decided to listen to them, he calmed down and the suicidal ideation stopped. Thus, a reasonable jury could not have concluded from the evidence presented at trial that if appellant ceased taking his medications he would not be a danger to the health or safety of others. Accordingly, we conclude that in this case refusal to give subpart A of CALCRIM No. 3452 was not instructional error. Furthermore, appellant was not prejudiced by the omission under any possible standard of review because it is not reasonably possible that the jury would have returned a more favorable verdict if subpart A of CALCRIM No. 3452 had been given.
In a single sentence, appellant asserts that failure to give subpart A of CALJIC No. 3452 infringed his federal constitutional due process right. He did not develop this assertion with legal argument accompanied by citation to authority. “Points ‘perfunctorily asserted without argument in support’ are not properly raised. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 206.) Therefore, we summarily reject the assertion as undeveloped and lacking foundation. (Ibid.; People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.