Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-29674
Bruiniers, J.
Defendant challenges the extension of his civil commitment following a finding of not guilty by reason of insanity on a felony offense. He argues there was insufficient evidence to support the jury’s determination that he had serious difficulty controlling his dangerous behavior. We affirm.
I. Background
Defendant was initially committed to Atascadero State Hospital in 2002 after he was found not guilty by reason of insanity of a charge of felony battery resulting in serious bodily injury (Pen. Code, §§ 243, subd. (d); 1026). His commitments were twice extended for additional two year terms, on May 13, 2004, and March 20, 2006, pursuant to section 1026.5, subdivision (b). In December 2007, the Sonoma County District Attorney filed a petition seeking a third extension of his confinement.
All statutory references are to the Penal Code unless otherwise indicated.
As discussed post, section 1026.5, subdivision (b), provides for commitment to a state hospital or other treatment facility beyond the maximum term of imprisonment for the defendant’s underlying charged felony offense “if by reason of a mental disease, defect, or disorder [he or she] represents a substantial danger of physical harm to others.”
The evidentiary phase of trial on the petition commenced before a jury on June 2, 2008. The prosecution’s trial evidence consisted of the testimony of two mental health professionals, Dr. Andrew Tamanaha and Dr. Mark Hoffman, and four correctional officers. The testimony and medical records presented documented in detail Washington’s behavioral history before and during his confinement. The defense presented the testimony of Pamela Guzman, Washington’s former foster mother.
On June 13, 2008, the jury found that the allegations of the petition were true, and that Washington had a mental disorder, that by reason of that disorder he posed a substantial danger of physical harm to others, and that he had serious difficulty in controlling his dangerous behavior. Based on this finding, the trial court extended Washington’s commitment to June 27, 2010.
Washington challenges the jury’s finding that, due to a mental disorder, he had serious difficulty controlling his violent behavior, contending that this finding is not supported by substantial evidence, and that the court misinstructed the jury on this issue. He further contends that he received ineffective assistance of counsel.
We review the evidence presented, resolving as we must all conflicts and drawing all reasonable inferences in favor of the jury’s verdict. (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1503.)
A. Childhood History and Commitment Offense
Washington became a court dependent at the age of four and was raised by his grandparents. While still in elementary school, he drank alcohol on school grounds and he ultimately was expelled from school for fighting. When he was about 15 years old, his grandmother relinquished him to social services as unmanageable. He was placed in a foster home, but the foster mother (Pamela Guzman) returned him because his behavior was that of a four or five year old and he needed more attention than she could give him. He was then placed in a group home for children.
In 2000, when he was 18 years old, Washington attacked an adult staff member at a children’s home, and the staff member sustained severe physical injuries. He was charged with felony battery resulting in serious bodily injury (§ 243, subd. (d)), and in 2002 was found factually guilty of the offense, but was then determined to be not guilty by reason of insanity (§ 1026). His initial commitment to Atascadero State Hospital expired in 2004. As previously noted, his commitments were twice extended for additional two year terms.
Washington was then six feet, two inches tall, and weighed 300 pounds.
B. Patton State Hospital Record 2002 to 2006
Between 2002 and 2006, while housed in San Bernardino County at Patton State Hospital, Washington was variously diagnosed with mood disorders, antisocial behavior, schizophrenia, paranoia, and malingering (faking psychiatric symptoms). He committed numerous acts of threatened or actual physical violence against hospital staff, other patients, and himself. In July 2002, after refusing to stop masturbating in front of other patients and while being escorted away, he clenched his fist three times in the direction of the other patients and staff from other units had to be summoned to restrain him. In October 2002, Washington reported having thrown urine on a staff member. In June 2005, after being asked to take a time-out because he had exposed himself, he fought with a staff member, swung at other patients, pushed a television to the floor, and swung a chair at a staff member. After being placed in restraints, he threatened to kill the two staff members who had apprehended him. In August 2005, he started banging on the door to the nursing station and when staff intervened he broke off the doorknob, tried to break the office window, lunged at a unit supervisor, and placed the supervisor in a chokehold. In November 2005, Washington broke the door off his locker and held it in a threatening manner. He was placed in five-point restraints but still managed to throw a full urinal at a staff member. In January 2006, after being asked to return to the dining room until dismissal time, he overturned a dining room table and smiled as he was escorted out. On other occasions, Washington “not only defecate[d] on himself to get nursing to clean him up, but he defecate[d] in front of female patients’ rooms. He then smear[ed] his fecal matter across restraint rooms. And during a family visit, he disrupt[ed] the family visit by vomiting because he states it was, quote, ‘funny.’ ”
Every three months or so, Washington was transferred between units at the hospital as a means of controlling his behavior. In July 2006, he was transferred to a unit supervised by Dr. Tamanaha. Within two weeks of the transfer, Washington needed the highest level of physical restraint available to control his behavior. He required a combination of five-point physical restraints and one-to-one physical monitoring by two male nurses because, for example, “[w]hile on the restraint bed, he would arch his back and flop really hard, to the point that a bed that’s bolted down to the floor would then shake.” Washington’s duration in restraints in the hospital “would vary from minutes to days. It all depended on his exit criteria of whether he had calmed down and stopped making threats to hurt others or fell asleep.”
Dr. Tamanaha testified that the hospital responded to patient outbursts with graduated measures. First, patients were asked to communicate what was upsetting them. Second, they were asked to take a time-out with nursing staff. Third, they were asked to take a time-out by themselves in an exclusion room. Fourth, they were put on “one-to-one” observation by a staff member who remained within five feet of the patient at all times. Fifth, they were placed in five-point physical restraints.
Washington’s physically aggressive behavior continued on Dr. Tamanaha’s unit. For example, after refusing to attend a group therapy session, “he would induce vomiting, and ask nursing staff to come clean him up, where[upon] he would verbally assault them, threaten to assault them, and then pour his urinal on them while he was on restraints and then vomit on them as well.... [H]e also threatened that, once released, he would seek [the staff members] out and hurt them because they strapped him down.” On another occasion, Washington became frustrated and “he kicked over his locker... [and] it hurt his roommate, to the point that the roommate needed surgery to replace toes.” On another occasion, he threatened a physician while clenching his fist, then ran to the day hall and threw a heavy wooden table at other patients there. He tried to throw another table, but was restrained. Dr. Tamanaha described several additional specific incidents involving similar threats and acts of violence.
C. Intensive Evaluation Pursuant to Welfare and Institutions Code section 7301
Dr. Tamanaha undertook an intensive forensic evaluation of Washington pursuant to Welfare and Institutions Code section 7301. The purpose of the evaluation was to determine whether Washington would be better treated in a prison setting because he was committing “volitional acts of violence” that could not be managed by the Department of Mental Health and that put hospital staff and patients at risk. To make the evaluation, Dr. Tamanaha interviewed Washington and thoroughly reviewed his hospital, jail, treatment facility, therapy, and criminal records, seeking to identify lifelong behavior patterns.
Welfare and Institutions Code section 7301 provides in relevant part: “Whenever, in the opinion of the Director of Mental Health and with the approval of the Director of Corrections, any person who has been committed to a state hospital pursuant to provisions of the Penal Code... needs care and treatment under conditions of custodial security which can be better provided within the Department of Corrections, such person may be transferred for such purposes from an institution under the jurisdiction of the State Department of Mental Health to an institution under the jurisdiction of the Department of Corrections.”
Dr. Tamanaha provided a new diagnosis for Washington utilizing the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Under Axis One, which covers mental illnesses that can be treated with medication, he diagnosed Washington with malingering, which is an attempt to feign symptoms of mental illness for secondary gain. Washington “would make comments of having a chip in his head, or hearing voices, or being under the influence of something. But... these, quote, symptoms were only seen when he needed his needs met.... [¶]... [F]or a clinical diagnosis on Axis One, which is symptoms similar to complex[] schizophrenia, or substance use, one would expect that these symptoms would be constant, and prior to acting out, there would be some symptoms to show that there is escalation; during the acting out, there would be some symptoms, and then a talk-down phase.... [¶] The unique thing about Mr. Washington was[] there was no precipitation of symptoms before behaviors.... And then during the debriefing time, he would make comments... to me about, ‘I know how to fool doctors. I know how to fool staff. I know how to do these behaviors that look like I’m sick.’ ”
Under Axis One, Dr. Tamanaha also diagnosed Washington with other or unknown substance abuse, specifically use of a controlled substance in prohibited settings. This diagnosis was based on Washington’s self-reported experimentation with substances he could not name specifically, as well as use of alcohol in elementary school and on two incidents in 2002 when “pruno” (alcohol fermented from fruit and fruit juice) was found in his possession at Patton.
Under Axis Two, which covers personality disorders and mental retardation, which are not treatable by medication, Dr. Tamanaha diagnosed Washington with antisocial personality disorder, psychopathy, borderline personality disorder, and borderline intellectual functioning. He testified that a personality disorder is “a pervasive way of interacting with the environment in a maladaptive way, that is not culturally specific, nor is it accounted [for] by substances, a medical issue, or any other symptoms. It’s basically a way that someone has learned to live life.” To support the diagnosis of antisocial personality disorder, which is a severe deficit in a person’s regard toward other people’s value, Dr. Tamanaha identified a pervasive pattern of impulsivity, rules violations, arrests, and violent acts that began before Washington turned 15 years old and that were not attributable to an Axis One mental illness. Psychopathy is the emotional and thought process that underlies the disorder. Dr. Tamanaha cited research that found “those with psychopathy and antisocial personality disorder were more likely to remain dangerous [for] a [longer period] of time following their release from a correctional facility or hospital than those just with antisocial personality disorder.”
Dr. Tamanaha described borderline personality disorder as follows: “[S]omeone with borderline tendencies would want to be close to someone, but at the same time[] would be hostile to the person, to push them away, because they do not want to get too emotionally attached, and will use aggression or violence to keep the person at bay, but at the same time, make comments [like], ‘Why aren’t you caring for me?....’ ” “[T]here is going to be a rapid valuing or devaluing of another. There [are] going to be mood swings in an attempt to get close and reject the other. There is also going to be violence, because they’re emotionally unstable and are looking for ways to act out and to get positive feedback, in that, when I act out, people look at me; but... I don’t want them looking at me, so I push them back.” This pattern of behavior was noted in Washington at the hospital “when he would try to connect with staff; but once staff would talk with him, he would devalue them by yelling at them, threatening to assault them, be put down in restraints[]... but then want them to be close to him.”
Finally, borderline intellectual functioning indicated that Washington’s intelligence was below the range of most adults, but not low enough to qualify as mental retardation.
Dr. Tamanaha acknowledged that Washington’s diagnosis at Patton State Hospital had changed repeatedly and often included Axis One diagnoses of mood disorder, schizophrenia, or paranoia. He explained the difference in his diagnosis by the thoroughness of his evaluation. The psychologists who had previously diagnosed Washington with schizophrenia had had a limited time to observe him, as he was only one of about 50 patients under their care. In contrast, Washington was Dr. Tamanaha’s primary assessment job and he had only about 10 other patients under his care. Moreover, many of the prior diagnoses were consistent with Dr. Tamanaha’s diagnosis. For example, psychologists had noted antisocial behaviors in Washington. Also, one of the symptoms of borderline personality disorder is “a psychotic process or [the patient] may seem delusional or hear voices,” which are symptoms of schizophrenia. With the benefit of his thorough review of Washington’s records, however, Dr. Tamanaha ruled out a diagnosis of schizophrenia.
When asked whether Washington’s diagnosis made him dangerous, Dr. Tamanaha testified that, due to his “antisocial personality disorder and borderline personality disorder,... he does pose a threat to others and the health and safety of the community....” The danger was “evidenced by his behaviors and threats toward staff members in a highly secure environment... and given that immediate staff intervention... did not work with Mr. Washington, nor did the application of restraints[] and involuntary medication assist Mr. Washington, it would be concerning... if he were placed in an area that has less security, such as the community... [where] he would have to rely on his own internal boundaries[.]... [I]t’s my opinion that he would not be able to utilize his own internal boundaries, given his two diagnoses on Axis Two.”
In September 2006, Dr. Tamanaha recommended that Washington be transferred to the Department of Corrections pursuant to Welfare and Institutions Code section 7301. Dr. Jeffrey Kropf of the California Department of Corrections and Rehabilitation, who also conducted a Welfare and Institutions Code section 7301 evaluation of Washington, agreed with Dr. Tamanaha’s diagnosis and recommendation.
As read into the record, Dr. Kropf’s report reflected a diagnosis of substance abuse not otherwise specified, malingering by history, and personality disorder not otherwise specified (NOS) with cluster B features, antisocial, borderline, histrionic and narcissistic. Dr. Mark Hoffman testified that Kropf’s diagnosis of personality disorder NOS with the identified cluster B features was consistent with a diagnosis of antisocial personality disorder.
D. November 2006 Criminal Charge and Competency Evaluations
In November 2006, while still at Patton State Hospital, Washington cheeked his medications and, when staff attempted to intervene, adopted a fighting stance. Correctional officers were called in for assistance. When one of the officers ordered Washington to turn around, Washington lunged at the officers and was pepper sprayed. Washington then repeatedly punched one of the officers in the face.
Washington was arrested for resisting an executive officer (§ 69) and transferred to San Bernardino County Jail. After being found incompetent to stand trial, he was returned to Patton State Hospital for treatment that would restore him to competency. In an August 2007 report, Dr. Tamanaha opined that Washington was competent to stand trial and reconfirmed his earlier recommendation that Washington should be transferred to prison for treatment pursuant to Welfare and Institutions Code section 7301.
E. California State Prison Record
Washington was transferred to California State Prison Sacramento on October 4, 2007. He was housed in the mental health unit, which was a “lock-up unit” for mentally ill inmates with serious behavioral violations and for Welfare and Institutions Code section 7301 transferees.
Dr. Mark Hoffman, a senior psychologist at the prison who was qualified as an expert in clinical and forensic psychology, evaluated Washington for purposes of reporting a status report to the court. He reviewed Washington’s committing offense, psychiatric history and prison disciplinary record, and reports from his treatment team. Dr. Hoffman testified that Washington’s previous pattern of complaining about symptoms, getting himself moved to a new housing situation, and then denying the symptoms continued in prison. Washington had a “very low frustration tolerance. If there was something that he wanted, he would become very demanding, and escalate his efforts to make others uncomfortable.” Such behavior included threatening staff, threatening to harm himself, smearing food and feces on his cell and on himself, and eating fecal matter. Washington was repeatedly placed in the Mental Health Outpatient Housing Unit (MHOHU) unit, which was an interim crisis unit for inmates who were awaiting placement in a mental health crisis bed or who were being held because their symptoms were of suspect validity.
Dr. Hoffman diagnosed Washington on Axis One with malingering and psychosis not otherwise specified. He described the latter diagnosis as provisional in that “we don’t really trust that that is actually the case....” He ruled out a diagnosis of schizophrenia. Under Axis Two, he diagnosed Washington with antisocial personality disorder based on Washington’s “chronic pattern of willful misbehavior [and] disregard for [the] rules and standards of society... dating back to at least adolescence.”
Dr. Hoffman also opined that Washington had a mental disorder that made him dangerous to others, based on his history of violence and his character disorder. He testified that the disorder is “extremely resistant to treatment and correction.” “A highly controlled environment with a very consistent... behavioral incentive program can bring about improved behavior within the context of that controlled, very structured environment; but there’s no guarantee that, if a person’s not in that controlled environment, that the improvement in behavior would continue at all.” “[B]ecause a person with antisocial personality disorder basically has a severe deficit in their regard toward other people’s value, the risk [of harm to others] is extremely high.... [I]f you have... a person with antisocial personality disorder who has a history of violence toward others, the likelihood is that... they’re going to exhibit violence toward others again[] in the future.”
F. Sonoma County Jail Record
In early 2008, while awaiting trial on this matter, Washington was housed in the mental health unit of the Sonoma County Jail. While there, he smeared food on the walls and window of his cell and told an officer that voices were telling him there was rat poison in his food. He used his fingernails to harm his body and struck his head against cell doors. He became agitated and aggressive when he was not given a candy bar as a cleanliness award and started threatening the officer who was handing out the bars. Once he received some candy, he instantly calmed down. On another occasion, Washington flooded his cell, smeared his feces on his cell window, and licked the fecal matter off the window and off his fingers. He would also become “very violent, kicking the door, yell, screaming profanities” in order to manipulate staff. Dr. Tamanaha opined that these behaviors were examples of malingering and borderline personality disorder.
II. Discussion
Section 1026 provides for the civil commitment for treatment of a person found not guilty of an offense by reason of insanity unless the court finds he has regained his sanity. (§ 1026, subd. (a).) The maximum term of commitment under section 1026 is “the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted....” (§ 1026.5, subd. (a)(1).) Section 1026.5, subdivision (b), however, authorizes two-year extensions of a commitment beyond the maximum term if the People prove beyond a reasonable doubt that the person “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1); People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 488.) To satisfy due process, the People must further prove that the person has serious difficulty in controlling his dangerous behavior. (People v. Galindo (2006) 142 Cal.App.4th 531, 533 [following In re Howard N. (2005) 35 Cal.4th 117, 128].) It is this last element that Washington contends is unsupported by substantial evidence. Washington also contends the court misinstructed the jury on this substantive requirement.
He argues that his trial attorney provided ineffective assistance of counsel when she failed to object to the allegedly flawed jury instruction, waived reporting of final jury instructions, agreed to admission of Washington’s medical and prison records, and challenged Dr. Tamanaha’s diagnosis of malingering. We first consider Washington’s jury instruction claim, then his ineffective assistance of counsel claims, and finally his sufficiency of the evidence claim.
A. Jury Instructions
Prior to the presentation of evidence, the trial court read an agreed-upon statement of the procedural history of the case that summarized Washington’s initial commitment, two extensions, and housing history during his commitment. The court concluded this introduction stating “Based upon certain reporting information and the anticipated testimony here at trial, the People request that the defendant’s commitment be extended under Penal Code section 1026.5(b), alleging that by reason of mental disease, defect or disorder, the defendant represents a substantial danger of physical harm to himself and others.” The court continued with standard opening jury instructions, some of which included references to “the two issues previously indicated.” After a sidebar conference with counsel, the court told the jury, without objection: “When I referred previously to the two prong test that you’ll be confronted with, I saw some questions on your face, I believe, so what I’m going to do is with the permission of both counsel, read you briefly the one instruction that applies to the two prong test so you know exactly what the Court was referring to. [¶] In this particular matter now, defendant Michael Washington has been committed to a mental disease health facility. You must decide whether he currently poses a substantial danger of physical harm to others as a result of a mental disease, defect or disorder.... To prove that Mr. Washington currently poses a substantial danger to others as a result of a mental disease, defect or disorder, the People must prove beyond a reasonable doubt that, number one, he suffers from a mental disease, defect or disorder; and, number two, as a result of his mental disease, defect or disorder, he now possesses a substantial danger of physical harm to others.”
The instruction on the presumption of innocence included the sentence: “A defendant in this type of case has the presumption that indicates that the People must have proved this matter beyond a reasonable doubt as to the two issues previously indicated to you.” The instruction on the burden of proof included the sentence: “If the evidence proves beyond a reasonable doubt the two issues previously indicated, then the defendant is entitled to a verdict in his favor.”
The trial court failed, in its initial instructions, to advise the jury that the People had to prove Washington had serious difficulty in controlling his dangerous behavior in addition to proving he had a mental impairment and he posed a substantial danger of physical harm to others. The trial court has a sua sponte duty to instruct on the People’s burden to prove this fact. (In re Howard N., supra, 35 Cal.4th at p. 137.)
Washington contends that this was reversible error. We disagree.
As Washington acknowledges, the final written instructions to the jury were correct. The instructions stated: “[T]he People must prove beyond a reasonable doubt that: [¶] 1. He suffers from a mental disease, defect, or disorder; and [¶] 2. As a result of his mental disease, defect or disorder, he now: [¶] a. Poses a substantial danger of physical harm to others; [¶] AND [¶] b. Has serious difficulty in controlling his dangerous behavior.” (CALCRIM No. 3453.) Although this final instruction differed from the pretrial oral instruction in that it included the “serious difficulty” element, it did not directly conflict with the initial instruction. Both instructions phased the legal standard as a “two prong” test; the final instruction simply added the required “serious difficulty” element to the second prong. Both instructions also clearly stated that the defendant’s dangerousness must be “a result of” his mental disease, defect or disorder; the serious difficulty element is an elaboration of that causal link. (See discussion post.)
We conclude that when the jury instructions are considered as a whole, as they must be, the jury was properly instructed on the law. “ ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]” ’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111, final bracketed insertion added.)
Although the court’s final oral instructions were not transcribed, nothing in the record suggests that they differed in any respect from the written instructions. We presume in the absence of contradictory evidence that this official duty was regularly performed. (Evid. Code, § 664.) Indeed, the closing arguments of both counsel confirm that the oral instructions given the jury included the element of serious difficulty in behavioral control. Both attorneys repeatedly referred to the People’s burden to prove Washington had serious difficulty in controlling his dangerous behavior, and the prosecutor told the jury, “Your sole role here is to make sure that I’ve proved beyond a reasonable doubt the following elements: Number one, that Mr. Washington suffers from a mental disease, defect, or disorder; and that, as a result of [that], he poses a substantial danger of physical harm to others; and he has serious difficulty in controlling his dangerous behavior. That’s it. That’s the instruction.” (Italics added.) Moreover, the record reflects that the written instructions were provided to the jury for their use during deliberations and the jury verdict form signed by the foreperson stated that the jury had found Washington had “serious difficulty in controlling his dangerous behavior.”
In light of the entirety of the jury instructions and the trial record, we conclude the trial court correctly instructed the jurors on the law governing the extension of Washington’s commitment. The court adequately informed the jury that they could not return a verdict against Washington unless the People proved beyond a reasonable doubt that Washington had serious difficulty in controlling his dangerous behavior due to his mental disorder.
B. Ineffective Assistance of Counsel
Washington argues his trial attorney provided ineffective assistance by: (1) failing to object to the court’s pretrial oral instruction omitting the “serious difficulty” element (indeed, the record appears to indicate Washington’s trial counsel acquiesced to the clarifying instruction that omitted that element); (2) by waiving the reporting of final oral instructions; (3) by agreeing to the admission of Washington’s hospital and prison records for the truth of the matters contained therein; and (4) by challenging Dr. Tamanaha’s malingering diagnosis. Assuming, without deciding, that Washington had a constitutional right to effective assistance of counsel in a proceeding under section 1026.5 (see People v. Crosswhite (2002) 101 Cal.App.4th 494, 503 (Crosswhite)), we conclude the claims lack merit.
Under both California and federal law, a defendant receives ineffective assistance of counsel if the attorney’s performance falls “ ‘below an objective standard of reasonableness... under prevailing professional norms,’ ” and “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been [more favorable to the defendant]. ’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 215–218 (Ledesma) [quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 693–694].) Generally, prejudice must be affirmatively proved. (Strickland, at p. 693.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (Ledesma, at p. 218.) “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance [citations],’ and [courts must] accord great deference to counsel’s tactical decisions.” (People v. Frye (1998) 18 Cal.4th 894, 979 (Frye) [citing Strickland, at p. 689], disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) When an ineffective assistance claim is raised on direct appeal, the reviewing court will reverse the conviction only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his conduct. (Frye, at pp. 979–980.)
1.Failure to Object to Initial Instruction
For the reasons already stated, the attorney’s failure to object to the initial instruction did not prejudice Washington because, when the instructions are reviewed as a whole, the jury was correctly instructed on the governing legal standard. An ineffective assistance of counsel claim fails on an insufficient showing of the element of prejudice, and a court need not decide the issue of counsel’s alleged deficiencies before deciding if prejudice occurred. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
We also note that defense counsel might have had tactical reasons not to object to the initial instruction at that stage of the proceedings. First, the purpose of the clarifying instruction was to resolve possible juror confusion about the references to “the two issues previously indicated.” The simplified two-prong instruction served that function, whereas the addition of a third “serious difficulty” element might have added to juror confusion. Counsel could reasonably assume that the complete instruction would be given by the court at the conclusion of the evidence and prior to the jury’s deliberations.
Washington has not established that counsel’s failure to object to the instruction constituted deficient performance or that he was prejudiced.
2. Waiver of Reporting of Final Instructions
As to the attorney’s decision to waive the reporting of final instructions, Washington also has not established deficient performance, nor has he established prejudice. His trial attorney knew that the written final instructions were correct and that they were going to be delivered both orally and in written form to the jury and included in written form in the trial record. She was present and able to object to, and note for the record, any material variations in the oral instructions to the jury. She also had the opportunity during her closing argument to remind the jury of the “serious difficulty” element in the instructions, and did so.
Washington suggests that a trial attorney should never waive the transcription of jury instructions because the absence of a transcript might make it impossible to prove an instructional error on appeal. While that may be better practice, he has not demonstrated and we are not persuaded that his attorney’s failure to take this prophylactic measure fell below an objective standard of reasonableness under prevailing professional norms. (Ledesma, supra, 43 Cal.3d at pp. 215–218.) Nor, in the absence of any evidence that the oral instructions were inaccurate, can Washington establish the necessary element of prejudice. (Ibid.)
3. Admission of Hospital and Prison Records
The prosecutor moved to admit selected pages of Washington’s medical records from the hospital and prison in evidence. Washington’s attorney then asked that the records be admitted in evidence in their entirety to provide a more accurate picture of Washington’s history. She asked that the records be admitted under the business records exception to the hearsay rule and she agreed to a final jury instruction that stated: “The medical records received into [e]vidence may be considered for the truth of the matter contained in the records.” Clearly it was part of her deliberate trial strategy to place the records in evidence, and she utilized them in her closing argument, telling the jury “[I]t’s fortunate that the District Attorney has [presented] those medical records, because, guess what? All those sheets that she was showing you [that] exhibit signs and symptoms that Dr. Tamanaha would say were malingering, those doctors, if you were carefully reading, [diagnosed] schizoaffective disorder, schizophrenia. Diagnoses that Dr. Tamanaha said don’t exist, and that’s why [Washington]’s going to prison.”
Washington argues that his attorney provided ineffective assistance of counsel in pursuing this strategy because some professional notes in the record supported a finding that Washington had serious difficulty in controlling his dangerous behavior. Her argument to the jury, however, was that, if the jury accepted Dr. Tamanaha’s diagnosis of anti-social personality, Washington did not have a mental illness that would impair his volitional control Alternatively, if the jury believed that Washington suffered from a schizoaffective disorder, as reflected in the medical records, he was being unfairly committed to prison, rather than being treated in a mental health facility. Because defense counsel had a readily apparent tactical reason to seek admission of the records, Washington’s claim fails.
4. Impeachment of Malingering Diagnosis
Finally, as to defense counsel’s attempts to impeach Dr. Tamanaha’s diagnosis of malingering rather than schizophrenia or other Axis One diagnoses, for the reasons already stated this was a tactical decision consistent with defense counsel’s overall trial strategy. Washington challenges the wisdom of his attorney’s trial strategy, arguing he had nothing to gain from convincing the jury he was severely mentally ill because it would suggest he had serious difficulty controlling his dangerous behavior. However, as previously explained, that particular tactic was part of a larger strategy to persuade the jury that Washington’s dangerousness was being greatly exaggerated, that he was being mistreated by confinement in prison as if he were a common criminal rather than a mentally ill patient needing care, and that the jury should free him from this abusive situation. Washington does not suggest what might have been a credible alternative strategy in light of his well documented history of aggressive behavior, and the lack of any expert medical evidence in his favor. We will not second-guess counsel’s strategy using the benefit of hindsight.
C. Sufficiency of the Evidence on Serious Difficulty in Controlling Behavior
The crux of Washington’s appeal is that there is insufficient evidence in the record to support the jury’s finding that he had serious difficulty in controlling his dangerous behavior. We have no difficulty identifying substantial evidence that supports the finding.
“ ‘In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt. [Citations.]’ [Citation.]” (Crosswhite, supra, 101 Cal.App.4th at pp. 507–508.)
In our analysis of the trial evidence, we are guided by the holdings of the United States Supreme Court and our own Supreme Court that due process requires a finding of serious difficulty in controlling behavior before a person can be involuntarily committed. The cases make clear that this finding is necessary to ensure that persons can be involuntarily committed only if their dangerousness derives from a mental impairment that serves to distinguish them from typical criminal recidivists.
In Kansas v. Hendricks, the United States Supreme Court explained that a “finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ or ‘mental abnormality.’ [Citations.] These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.” (Kansas v. Hendricks (1997) 521 U.S. 346, 358 (Hendricks).) In the particular case before it, the Hendricks Court concluded that the defendant’s “admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons more properly dealt with exclusively through criminal proceedings.” (Id. at p. 360.)
In Kansas v. Crane, the Court clarified that “Hendricks set forth no requirement of total or complete lack of control” and observed that “most severely ill people—even those commonly termed ‘psychopaths’—retain some ability to control their behavior.” (Kansas v. Crane (2002) 534 U.S. 407, 411, 412 (Crane).) “It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself,must be sufficient to distinguish the dangerous sexual [or other] offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” (Id. at p. 413.) The Court emphasized that the requisite “ ‘inability to control behavior’ will not be demonstrable with mathematical precision,” in part because psychiatry itself is an ever-advancing, inexact science that is not designed to mirror legal categories. (Ibid.) Moreover, the Court eschewed the label “volitional” impairment to identify that the requisite lack of control. (Id. at pp. 414–415.) “Here, as in other areas of psychiatry, there may be ‘considerable overlap between a... defective understanding or appreciation and... [an] ability to control... behavior.’ [Citation.] Nor, when considering civil commitment, have we ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments. [Citations.]” (Id. at p. 415.) While the Court declined to address whether “confinement based solely on ‘emotional’ abnormality would be constitutional,” it clearly rejected a standard that turned specifically on a lack of “volitional” control. (Ibid.)
The California Supreme Court has construed Hendricks and Crane to hold that involuntary civil commitment satisfies due process only if constrained by “the crucial class-restricting elements of future dangerousness linked to a disorder-related inability to control behavior.” (People v. Williams (2003) 31 Cal.4th 757, 769.) Crane, supra, 534 U.S. 407, “confirmed the principle of Hendricks, supra, 521 U.S. 346, that a constitutional civil commitment scheme must link future dangerousness to a mental abnormality that impairs behavioral control” to a serious degree. (Williams, at p. 773.) Williams specifically notes that Crane did not limit“serious difficulty” to a “volitional” impairment and that it observed that there was considerable overlap in such categories. (Ibid. [citing Crane, at pp. 414–415].)
In sum, the key consideration for the jury is whether the defendant’s dangerousness derives from a mental impairment that seriously interferes with his ability to control his dangerous behavior. “ ‘Whether a defendant “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others” under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.’ [Citation.]” (Crosswhite, supra, 101 Cal.App.4th at p. 507.)
Here, both of the prosecution’s experts testified that Washington suffered from mental disorders (antisocial personality disorder and borderline personality disorder) that caused him to act dangerously. With respect to Washington’s diagnosed borderline personality disorder, Dr. Tamanaha testified: “[T]here is going to be a rapid valuing or devaluing of another. There [are] going to be mood swings in an attempt to get close and reject the other. There is also going to be violence, because they’re emotionally unstable....” (Italics added.) In a graphic illustration of how borderline personality disorder interferes with a person’s ability to control his or her behavior, Dr. Tamanaha testified that “[w]hile someone is emotionally disregulated, they may hear, quote, ‘voices’; they may say they have, quote, ‘auditory hallucinations’; but in reality, this is part of their thought process racing so fast that they’re unable to understand....” The disregulation can be so severe that the disorder is mistaken for schizophrenia. Dr. Tamanaha also testified that Washington’s violent behavior derived from his antisocial personality disorder, particularly as exacerbated by his psychopathy. Dr. Hoffman expressly distinguished from the antisocial behavior of a typical criminal. “[T]he difference between antisocial personality disorder and adult antisocial behavior is that... the person with the disorder generally views other people solely as objects, means to an end to be used and manipulated; whereas somebody who has adult antisocial behavior [such as a gangster]... might have a group of individuals that he’s actually loyal to, and actually... has friends, and functions pretty well among that... group of friends.”
Washington does not challenge here the sufficiency of the evidence to show that he suffers from a diagnosed mental disorder within the meaning of section 1026.5, subdivision (b)(1), whether coded under DSM-IV Axis One or DSM-IV Axis Two. Dr. Tamanaha testified that mental illnesses under Axis One are of a “clinical nature,” and Axis Two are those of a “personality disorder,” but that mental illness “includes both.” At other times, he and Dr. Hoffman used the term “mental illness” to refer to Axis One diagnoses as distinct from Axis Two diagnoses, but both opined that Washington had a mental disorder that caused him to pose a substantial danger of physical harm to others.
The experts also testified that Washington had not acquired the skills necessary to manage, or control, his disorders and consequently, absent external restraints, he would pose a substantial danger of physical harm to others. Dr. Tamanaha explained that recovery occurs when “one is aware of their symptoms, one learns to manage their symptoms, and one learns how to successfully live with the symptoms.” In Washington’s specific case, “we hope that he can learn to make appropriate attachments, and talk about ways that he can attach to others without having to force them away at the same time.” However, Dr. Tamanaha opined that at the time of trial “Washington did not have a comprehensive relapse prevention plan that would allow him to appreciate antecedents to his violence, nor did he have appropriate coping [mechanisms]. In s[um], it would be my opinion that then he could not manage his risk....” “[I]f he were placed in an area that has less security, such as the community... it’s my opinion that he would not be able to utilize his own internal boundaries, given his two diagnoses on Axis Two.”
From the testimony that Washington’s mental disorders caused him to be dangerous and the testimony that he did not have control over his disorders, the jury could easily conclude that, due to his mental disorders, Washington had serious difficulty in controlling his dangerous behavior. “A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
Washington focuses on the experts’ repeated comments that his conduct was “volitional.” He contends that term means he was able to control his behavior and thus did not have serious difficulty in controlling his dangerous behavior. In context, however, the experts used “volitional” to distinguish Washington’s behavior, which resulted from Axis Two mental disorders, from behavior that would result from a Axis One mental illness like schizophrenia, which produce involuntary symptoms such as auditory and visual hallucinations. For example, after testifying that Washington frequently reported hallucinations, Dr. Tamanaha explained that Washington had been referred to the Positive Behavioral Support Team, which is “a specialized support team... that works with severely disturbed and violent individuals” to help them understand and cope with their symptoms. “The P.B.S. team... said, that after reviewing his chart for six months and watching his behavior, they could not determine any psychiatric antecedents to his behaviors; that his behaviors w[ere] volitional[;] and that he chose to act out violently.” (Italics added.) Explaining why he recommended that Washington be sent to prison in 2007, Dr. Tamanaha explained “his behaviors were more volitional, and spoke more of his antisocial personality and borderline [disorders] rather than to any new psychotic or mental health issues that may have arisen in the time that elapsed [since] my first report....” (Italics added.) Similarly, Dr. Hoffman used “volitional” and similar terms to distinguish Washington’s disorders from Axis One mental illnesses. He testified that he found numerous complaints of psychotic symptoms in Washington’s record, but also discerned a clear pattern “where [Washington] would basically turn these symptoms or complaints on and off at will.” (Italics added.) He described Washington’s disorder as “volitional” and explained that, while a “volitional disorder is not considered a mental illness, per se[, it m]ay very well be classified as mental disorder, as personality disorders are classified as mental disorders under the psychiatric nomenclature....”
Similarly, Dr. Hoffman noted that Washington reported “intermittent symptoms, intermittent complaints of hallucinations, intermittent complaints of suicidal thoughts, intermittent reports of impulses to hurt himself and to hurt others, but all in the context of fairly clear mentation,” which means “[k]nowing what you’re doing. Knowing what’s going on around you. Without, without great distortion.” He concluded Washington’s Axis One diagnoses were suspect and confirmed his Axis Two diagnosis of antisocial personality disorder.
By using the term “volitional” to distinguish Washington’s behavior from behavior that results from an Axis One mental illness, the experts did not suggest that Washington’s behavior was independent of his mental impairment. As already explained, the experts testified that Washington’s mental disorders caused him to act dangerously and that he had not learned how to control the disorders. As the Supreme Court explained in Crane, a defendant may have the requisite serious difficulty in controlling behavior regardless of whether his or her mental impairment is labeled “volitional,” “emotional,” or “cognitive” disorder. (Crane, supra, 534 U.S. at p. 415.) Moreover, a “volitional” impairment need not be total to satisfy the constitutional requirement. (Ibid.) Ultimately, the “serious difficulty” determination is a question for the trier of fact. (Crosswhite, supra, 101 Cal.App.4th at p. 508.) Based on the extensive record of Washington’s self-defeating, violent, and in Dr. Hoffman’s words “flatly disgusting” behavior such as eating his feces, the jurors could easily have concluded from their own life experience as further informed by the experts’ testimony that Washington had serious difficulty in controlling his dangerous behavior.
The authority Washington relies upon to argue to the contrary is distinguishable. In In re Anthony C., a juvenile was committed to the former California Youth Authority for lewd and lascivious conduct with 8- and 12-year-old girls. (In re Anthony C., supra, 138 Cal.App.4th at pp. 1500–1502.) His commitment was extended pursuant to Welfare and Institutions Code section 1800 et seq. (the Extended Detention Act), which authorizes a two-year extension of commitment if a jury finds beyond a reasonable doubt the defendant is “physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior[.]” (Welf. & Inst. Code, § 1801.5; see also Welf. & Inst. Code, §§ 1800, 1801.) The defendant’s treating psychologist diagnosed him with pedophilia, attention deficit hyperactivity disorder, and cannabis abuse. (In re Anthony C., at p. 1506.) The psychologist did not prepare a formal risk assessment and only equivocally opined the defendant posed a moderate risk of reoffending. (Id. at pp. 1502, 1506–1507.) The court of appeal concluded that the testifying psychologist’s opinion was not based on solid evidence, and that the testimony in any event did not establish “serious difficulty” in controlling behavior. (Id. at p. 1507.) The defendant’s behavior in custody “was good most of the time. He did not act out, and while initially his progress in the program was slow, after the first six months he had a fairly serious attitude toward his treatment, and he spoke and participated in his group therapy sessions.” (Id. at p. 1502, fn. 7.)
Although the law in effect at the time of the trial in In re Anthony C. did not include the phrase, “which causes the person to have serious difficulty controlling his or her dangerous behavior,” the jury was instructed consistent with the constitutional requirements of In re Howard N., supra, 35 Cal.4th 117. (In re Anthony C., supra, 138 Cal.App.4th at p. 1499, & fn. 2; former § 1801.5, as amended by Stats. 1998, ch. 267, § 2.)
Washington argues that Dr. Tamanaha’s admission that he did not prepare a formal risk assessment establishes that, under the authority of In re Anthony C., the evidence of serious difficulty in controlling behavior was insufficient in this case. However, In re Anthony C. cites the absence of a risk assessment as only one factor demonstrating the absence of sufficient evidence in that case. Also, unlike the testimony presented in In re Anthony C., two experts unequivocally testified Washington posed a substantial risk of harm, testimony that was amply corroborated by Washington’s personal history of violent behavior.
In contrast, Washington repeatedly engaged in physically aggressive and “flatly disgusting” behavior that in itself suggested a serious difficulty in controlling his behavior, including dangerous aggressive behavior. Unlike the defendant in In re Anthony C., who “understood he had a mental illness,... was participating in the program, and was serious about his treatment” (In re Anthony C., supra, 138 Cal.App.4th at p. 1508), Washington “did not have a comprehensive relapse prevention plan that would allow him to appreciate antecedents to his violence, nor did he have appropriate coping [mechanisms].” In In re Anthony C., the psychologist testified equivocally about the danger the defendant would pose if released to the community. (Id. at pp. 1506–1507.) Here, Dr. Tamanaha and Dr. Hoffman both testified unequivocally that, in their opinions, Washington posed a risk of physical harm to others if released into the community because of his mental disorders.
The circumstances presented here are more analogous to those in Crosswhite and In re Brian J., both cases upholding commitment extensions against a sufficiency of the evidence challenge. (Crosswhite, supra, 101 Cal.App.4th at p. 507; In re Brian J. (2007) 150 Cal.App.4th 97, 120.) In Crosswhite as here a commitment extension under section 1026.5, subdivision (b), medical reports “assessed defendant as having a ‘very chronic and significant history of mental illness, and of sporadically and unpredictably behaving in ways that might be very dangerous to either himself or others.’ ” (Crosswhite, at p. 508.) The defendant “continued to ‘display an inability to control or self-regulate his impulses and his decision making activities.’ ” (Ibid.) Another expert testified that defendant had “ ‘minimal appreciation for the nature of his psychosis and the best ways in which to control it’ ” and was “ ‘an unacceptable risk to be maintained in the community.’ ” (Ibid.)
In In re Brian J., an extended California Youth Authority commitment under Welfare and Institutions Code section 1800, the defendant was diagnosed with antisocial personality disorder, pedophilia, and several other sexual disorders. (In re Brian J., supra, 150 Cal.App.4th at pp. 104–105, 113.) Over eight years of commitment, he continually displayed sexually inappropriate and aggressive behavior, and at one time planned a rape of a staff member. (Id. at pp. 106–110, 119.) He had poor impulse control and had made little progress in treatment due to lack of motivation and active participation. (Id. at pp. 107, 109.) There was conflicting testimony as to whether his mental disorder would cause him to have serious difficulties in controlling his behavior, and the prosecution expert testified that the defendant, although physically dangerous, did have the capacity to control his behavior. (Id. at p. 117.) The prosecution expert testified that “based on the severity of the diagnoses and lack of treatment, defendant would not be able to control his behavior, and he is physically dangerous.... She believed defendant has the capacity to control his behavior, but there was no evidence he had learned the proper coping tools and mechanisms to help him succeed in the community....” (Id. at p. 114.) Finding the evidence sufficient, the court held that the prosecution’s burden was to prove serious difficulty in controlling behavior, and not that such control is impossible. (Id. at p. 120.)
The question was whether Washington’s mental disorder impaired his behavioral control to a significant degree. (People v. Williams, supra, 31 Cal.4th at p. 773.) The fact that a defendant’s conduct may be characterized as “volitional,” connoting some element of control over that behavior, does not negate a determination that the defendant nevertheless has “serious difficulty” in controlling his or her dangerous behavior. The evidence here adequately established that Washington had a mental disorder that made him a substantial danger of physical harm to others, and that he had serious difficulties controlling his violent conduct. The People satisfied their burden of proof.
III. Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.