Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. ECR7581, Frederick Maguire, Judge.
O'ROURKE, J.
In 1993, Floyd Lee Wiedrich entered a plea of not guilty by reason of insanity to robbery and was committed to a state hospital for about eight years before being released. After his conditional release was revoked, the People petitioned for and obtained an order extending his involuntary commitment to the Department of Mental Health (DMH) under Penal Code section 1026.5, subdivision (b). On appeal from that order, Wiedrich contends the trial court prejudicially erred by allocating to him the burden of proving that he was not dangerous while on medication and that he would continue to take his medication in an unsupervised environment. We disagree and affirm the recommitment order.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006 the People filed a petition to extend Wiedrich's commitment to the DMH for a two-year period. The People alleged that in 1994, after he was found not guilty of robbery by reason of insanity, Wiedrich was committed to Metropolitan State Hospital (Metropolitan) until August 2002, when he was discharged to the Conditional Release Program (CONREP). In March 2006 Wiedrich's outpatient status was revoked and he was returned to Metropolitan. The People alleged Wiedrich still suffered from a mental disease, defect or disorder that caused him to be a substantial danger to others.
Wiedrich waived his right to a jury and the matter proceeded to a bench trial in October 2007. At trial, the People presented Donald Williams, a psychiatrist with CONREP, and Bruce Abrams, a senior psychologist at Metropolitan. Dr. Abrams, who from about April 2006 to July 2007 treated Wiedrich and also supervised his treating doctors, explained that Wiedrich was diagnosed with paranoid schizophrenia, polysubstance dependence and adult antisocial behavior. In direct and redirect examination, he described the car theft incidents resulting in Wiedrich's original commitment and the danger they posed to the victims and police officers involved in attempting to stop him, Wiedrich's performance and treatment at Metropolitan, Wiedrich's attempts to leave the facility, and his tendency to refuse medication because of his belief it was poison. Dr. Abrams opined that due to his severe mental illness, Wiedrich posed a substantial danger to others; that Wiedrich would commit similar acts posing physical harm to others as he had in the past.
Dr. Williams, who treated Wiedrich while he was on conditional release from November 2002 to March 2007, testified that Wiedrich never reached a point where he had insight into his mental illness, which made him more dangerous to be released into the community. Based on Wiedrich's past history, Dr. Williams testified he had no reason to believe Wiedrich would want to take his medication or would take it, which would result in his mental illness becoming unmonitored and free to exacerbate into previous symptoms. The doctor also opined based on Wiedrich's history that Wiedrich posed a danger of physical harm to others if he was not on his medication. When asked whether Wiedrich would do well if released unconditionally into the community, Dr. Williams responded, "absolutely not," in view of Wiedrich's poor performance in a highly structured environment. Dr. Williams pointed out that Wiedrich had expressed hesitancy in his ability to remain sober while out unsupervised in the community, though at the same time he maintained a paranoid belief that the individuals at CONREP were "out to get him." He noted Wiedrich had expressed interest in committing another crime in order to return to prison rather than deal with the complexity of conditional release, another factor that "definitely" made him more dangerous upon release to the community. Like Dr. Abrams, Dr. Williams testified that as a result of his mental illness, Wiedrich would pose a substantial danger of physical harm to others if he were released unsupervised into the community.
Wiedrich presented experts who testified that based on his behavior since the original incidents, he did not currently present a substantial risk of physical harm to others and would not pose a substantial danger to others due to his mental illness if he stopped taking his medications. One of the experts opined that Wiedrich would continue taking his medications if he were released as long as he lived with his family.
Before reaching its decision, the trial court explained it had been guided by jury instructions on the matter including an instruction pertaining to the People's burden of proof and another stating that to establish his defense, Wiedrich had to prove by a preponderance of the evidence that he no longer poses a substantial danger because he is now taking medication that controls his mental condition, and that he would continue to take his medicine in an unsupervised environment. The court proceeded to give a lengthy explanation of the evidence on which it relied and its thought process. Thereafter, it found beyond a reasonable doubt that Wiedrich suffered from a mental disease, defect or disorder that caused him to presently pose a substantial danger of physical harm to others.
The court was referring to CALCRIM No. 3453, which at the time of trial provided: "<insert name of respondent> has been committed to a mental health facility. You must decide whether (he/she) currently poses a substantial danger of physical harm to others as a result of mental disease, defect, or disorder. That is the only purpose of this proceeding. You are not being asked to decide <insert name of respondent>'s mental condition at any other time or whether (he/she) is guilty of any crime. [¶] To prove that <insert name of respondent> currently poses a substantial danger of physical harm to others as a result of mental disease, defect or disorder, the People must prove beyond a reasonable doubt that: [¶] 1. (He/She) suffers from a mental disease, defect, or disorder; [¶] [AND] [¶] 2. As a result of (his/her) mental disease, defect, or disorder, (he/she) now: [¶] a. Poses a substantial danger of physical harm to others(;/.) [¶] [AND [¶] b. Has serious difficulty in controlling (his/her) dangerous behavior.] [¶] [Control of a mental condition through medication is a defense to a petition to extend commitment. To establish this defense, <insert name of respondent> must prove by a preponderance of the evidence that: [¶] 1. (He/She) no longer poses a substantial danger of physical harm to others because (he/she) is now taking medicine that controls (his/her) mental condition; [¶] AND [¶] 2. (He/She) will continue to take that medication in an unsupervised environment. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.]"
Immediately after the court made its finding, Wiedrich's counsel pointed out that she did not assert the defense with respect to medication on Wiedrich's behalf. The court acknowledged she had not, and the following colloquy ensued:
"[Wiedrich's counsel]: I did not argue that, and that's an affirmative defense that I did not put out there and did not intend to have the trier of fact consider because I did not consider that defense.
"The court: No, you did not. I will make that clear for the record. But it's in the jury instruction, so I considered it.
"[Wiedrich's counsel]: Only if it's an affirmative defense argued by myself. Then it becomes my burden to prove that defense. Aside from medication, the D.A. has to prove this petition beyond a reasonable doubt.
"The court: That's my point. That's why I made the findings the way I did. I find that he suffers from a disease, defect or disorder. As a result of that, he now poses a substantial danger of physical harm to others. I made those findings. [¶] And then I said, further on, it has this. So I realize you did not put that on as [an] affirmative defense. But if it was there, I think I would have had the obligation to consider it. I think it was meritorious. I do believe the issue was raised, even though you are not stating it as an affirmative defense because that became an issue that was essentially litigated. [¶] What do you think the chances are of him taking it in the future? I will acknowledge the fact you didn't raise it as an affirmative defense.
"[Wiedrich's counsel]: And had this been a jury, I would not have asked for that portion of the jury instruction to be included or read to the jury. So if I neglected to inform the court, as the trier of fact, that that portion of the jury instruction should not be read – should not have been read, I will accept that responsibility at this point because I was not bringing that up as an affirmative defense. [¶] And, on the contrary, any questions I may have asked of the doctors with respect to medication were quite the opposite; that even when he was on medication, his behavior did not change, and he still did not act aggressively or in a dangerous manner. So
"The court: That's fine. Like I said, I would sustain the petition without getting into that affirmative defense, based on reasonable doubt; that's why I put all that in there. I believe I did note already that I did hear [one of Wiedrich's experts] say, notwithstanding the poor history of or relatively poor history . . . of taking medication by Mr. Wiedrich, he said, look, even though there is — he has these issues, maybe he is not the most diligent prescription taker. I still don't think he is a substantial risk. That's what he said, right?
"[Wiedrich's counsel]: I believe both of them [Wiedrich's experts] indicated whether he was on medication or off medication, since his behavior showed he was not aggressive or violent towards anyone, it did not matter, in their opinions, whether or not he took the medication.
"The court: Exactly. That is my understanding of their testimony as well."
The court explained its decision came down to a weighing of expert opinions, and concluded: "So, just wrapping it up, I would sustain the petition beyond a reasonable doubt on the first two parts that I mentioned. And if you want me to disregard the affirmative defense, that's fine. But I just went through the jury instruction because it was there. Fair enough? So, if I am wrong, I'm wrong." It issued an order recommitting Wiedrich to Metropolitan for a two-year period. Wiedrich appeals from that order.
DISCUSSION
I. Section 1026.5 Recommitment Scheme/People v. Bolden
We addressed section 1026.5's recommitment scheme and the parties' burdens of proof in People v. Bolden (1990) 217 Cal.App.3d 1591, 1596 (Bolden). When a defendant is found not guilty by reason of insanity and committed to a state hospital, his or her commitment term runs until sanity is restored (§ 1026.2) or until the maximum state prison term that could have been imposed for the offenses the defendant committed has expired, whichever occurs first. (§§ 1026.5, subd. (a)(1), 1026.1; Bolden, at p. 1596.) After the maximum commitment term has expired, the prosecution may petition the court to extend the commitment under section 1026.5, subdivision (b). Under that section, the court may extend a defendant's commitment in two year intervals "where the defendant has been convicted of a felony and has a mental disease which causes him to 'represent a substantial danger of physical harm to others.' " (Bolden, at p. 1596.)
In Bolden, this court was faced with a commitment extension proceeding under section 1026.5 in which the defendant argued the trial court should have instructed the jury that the prosecution had the burden of proving he was a substantial danger in a medicated state and he would not continue to take his medication in an unsupervised environment. (Bolden, supra, 217 Cal.App.3d at p. 1597.) We rejected this argument, holding the state sustains its burden of proof by showing, among the other elements, the respondent is dangerous to the physical safety of others without regard to the effect of any medication. (Bolden, supra, 217 Cal.App.3d 1591, 1599.) We pointed out that unlike other statutes (e.g., section 1026.2), section 1026.5 defines dangerousness without regard to the effect of medical treatment, and that, "[g]iven a release under section 1026.5 is an unconditional one – the released person leaves the psychiatric facility without further supervision or compulsory treatment – the Legislature's failure to define dangerousness under section 1026.5[, subdivision] (b)(1) in terms of behavior while under treatment is no mere oversight." (Bolden, 217 Cal.App.3d at p. 1599.) Our conclusion was compelled by both the language in section 1026.5 and the policy of protecting the public. (Bolden, at p. 1599.)
We concluded, however, that even though the People had no burden to prove the defendant was dangerous even if medicated, "the effect of medication in controlling the respondent's dangerousness and whether he will self-medicate in an unsupervised environment may be raised by the respondent as a defense." (Bolden, supra, 217 Cal.App.3d at p. 1600.) Our reasoning depended on the nature of an affirmative defense: "[A]n affirmative defense is one which does not negate any element of the crime, but is new matter which excuses or justifies conduct which would otherwise lead to criminal responsibility. For example, necessity is a defense which admits, for the sake of argument, the elements of the charged offense, but offers a justification to avoid criminal culpability. As such, it is an affirmative defense which the defendant must prove by the preponderance of the evidence." (Id. at p. 1601.) Bolden's claims about the impact of medication admitted the truth of the elements of the People's case; "[s]tated differently, there is nothing logically inconsistent with the truth of both the elements of the People's case and those of Bolden's defense existing simultaneously." (Id. at pp. 1601-1602.) Accordingly, this court held the trial court should have directed the jury to consider that defense and should have instructed it that the defendant bore the burden of proving the defense by a preponderance of the evidence. (Id. at p. 1602.)
II. Analysis
Wiedrich contends the court erroneously required him to prove by a preponderance of the evidence Bolden's medication defense, i.e., that he is not dangerous while on medication and that he will take his medication without fail in the future in an unsupervised environment. (Bolden, supra, 217 Cal.App.3d at p. 1601.) He maintains Bolden has been weakened or abrogated by People v. Noble (2002) 100 Cal.App.4th 184 (Noble)and In re Howard N. (2005) 35 Cal.4th 117 (Howard N.). Wiedrich argues that applying the analyses of Noble and Howard N., the elements of Bolden's medication defense are now part of the prosecution's burden to prove beyond a reasonable doubt that he has a serious difficulty in controlling his dangerous behavior. According to Wiedrich, the trial court's failure to apply the correct burden of proof is the equivalent of misinstructing the jury on an element of a crime and requires reversal under any harmless error standard.
The People argue Wiedrich forfeited these arguments by failing to object to the trial court's reliance on CALCRIM No. 3453, request modification of the language of that instruction, or challenge the impact of the instruction on his case. They point out that after Wiedrich expressly acknowledged the medication question is an affirmative defense on which he bore the burden of proof and declined to rely upon it as a tactical decision, he cannot be permitted to get a "second bite at the apple" and raise his burden of proof challenges on appeal.
The People's forfeiture argument has merit. Section 1259 provides: "Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (Italics added.)
This was a bench trial in which counsel did not submit jury instructions or anticipate the trial court's reliance upon them, and the trial court did not "give[], refuse[] or modif[y]" any instruction as the phrase is used in section 1259. When the court stated it had relied on CALCRIM No. 3453 setting out the medication defense in deciding the case, defense counsel immediately sought to make it clear that she disclaimed any such defense and did not intend for the court to rely on it. In clarifying her position, counsel conceded that evidence as to the positive effect of medication on Wiedrich's behavior (and his voluntary compliance with his medication regimen) would be an affirmative defense on which Wiedrich bore the burden of proof, and by doing so, effectively conceded the correctness of the trial court's analysis. Indeed, during their colloquy, Wiedrich's counsel advised the court that the medication question was irrelevant to the People's burden ("Aside from medication, the D.A. has to prove this petition beyond a reasonable doubt," italics added). Counsel's position was consistent with her closing argument in which she characterized the People's burden as having to prove, "[a]t the present time, [Wiedrich] is presently a substantial risk of physical harm to others, not just a possibility of potential dangerousness" and also stated, "During the time period he is off medications or on medications, he didn't show physical harm to others. Even when he is showing quite active psychotic symptoms, he did not express that he was going to commit an assault on a person. He did not threaten anyone during that time period. So whether he is on or off medications, he still has not exhibited any aggressive behavior." (Italics added.) At no time did defense counsel advise the court that it somehow had an incomplete or inaccurate understanding of the elements the People had to prove beyond a reasonable doubt in petitioning for recommitment under section 1026.5. As a result of its discussion with defense counsel, the court stated it was not considering the medication issues in reaching its decision.
To the extent the trial court operated under any possible misunderstanding of the parties' respective burdens of proof, defense counsel's recitation and adoption of those burdens facilitated that misunderstanding. Under these circumstances, we decline to characterize the proceedings that took place or Wiedrich's burden of proof arguments as raising "instructional" error that eliminates the need to assert objections in order to preserve review. To the contrary, defense counsel's acquiescence in the trial court's understanding of the essential elements of the People's petition and the defendant's burdens forfeits the appellate contention under the doctrine of invited error. (E.g., People v. Davis (2005) 36 Cal.4th 510, 539.)
To forestall any claim of ineffective assistance of counsel, we exercise our discretion to address the merits of his challenge. Doing so, we reject his arguments. First, we disagree that this court's holding in Bolden was weakened or impacted by Noble, supra, 100 Cal.App.4th 184, which dealt exclusively with the mentally disordered offender (MDO) law (§ 2960 et seq.), an entirely different statutory scheme. Indeed, the Noble court expressly distinguished Bolden, explaining that the MDO statute (unlike the provisions for commitment and extension of commitment of those found not guilty by reason of insanity) requires that the prosecution prove beyond a reasonable doubt that "[the defendant] 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." (Noble, at p. 190; §§ 2970, 2972, subd. (c).) The MDO law expressly defines "remission" to mean a finding that overt signs or symptoms of the mental disorder are controlled by medication or psychosocial support. (§ 2962.) Thus, the appellate court in Noble reasoned that an MDO contending he or she is on remission is making a claim that he or she does not meet two of the three criteria for extending the MDO commitment, issues on which the prosecution bore the burden of proof: "Where, as here, an MDO defends on [a theory that he is in remission and not dangerous to others while medicated], the trial court should instruct the jury [that] [t]he 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." (Noble, 100 Cal.App.4th at p. 190.) It held the trial court gave the jury contradictory instructions on the parties' respective burdens of proof when it instructed them on the medication defense, which error could not be considered harmless beyond a reasonable doubt. (Noble, at pp. 189-191.) In view of the distinction between the statutory schemes at issue, we decline Wiedrich's invitation to extend Noble's holding to the "dangerousness" criterion of the present recommitment scheme. Noble's precedential force is limited to its own facts and issues. (Bolden, supra, 217 Cal.App.3d at p. 1598, citing Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735.)
Nor are we convinced that Howard N., supra, 35 Cal.4th 117requires reversal on the grounds advanced by Wiedrich. Howard N. was decided in the context of extended detention of dangerous juveniles. (Welf. & Inst. Code, § 1800 et seq.) There, our state's high court held that to maintain its constitutionality under United States Supreme Court and California Supreme Court authority, that scheme should be interpreted to contain a requirement that the person's mental deficiency, disorder, or abnormality caused serious difficulty in controlling his or her behavior. (Howard N., 35 Cal.4th at pp. 122-132.) According to the court, the requirement of serious difficulty in controlling dangerous behavior "serve[s] 'to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.' " (Id. at p. 128.)Further, the court held the lack of control requirement was not limited to the sexually violent predator context, stating, "[I]t is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators." (Id. at p. 131.) Because the jury was not instructed on this control issue and there was little evidence the defendant's mental abnormality caused him serious difficulty controlling his dangerous behavior, the Supreme Court in Howard N. remanded to the trial court for a new commitment proceeding. (Ibid.)
Kansas v. Crane (2002) 534 U.S. 407, 412-413; Kansas v. Hendricks (1997) 521 U.S. 346, 358, 360; People v. Williams (2003) 31 Cal.4th 757, 759; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1156, 1158.
Some appellate courts have applied Howard N.'sprinciples to extended commitments under section 1026.5. (People v. Sudar (2007) 158 Cal.App.4th 655, 662-663; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165; People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo (2006) 142 Cal.App.4th 531, 537.) None of these decisions, however, address whether the inclusion of a control element impacts the parties' burdens with respect to the effect of medication on the defendant. The CALCRIM instruction on the matter incorporated the control element into the prosecution's burden of proof, though at the same time it maintains the burden on the defendant to prove the medication defense by a preponderance of the evidence. (CALCRIM No. 3453, see footnote 2, ante.)
Based on Howard N., Wiedrich argues: "If appellant, or any other civil committee, is not dangerous while under medication and would voluntarily take that medication in an unsupervised environment then, by definition, that person does not have a serious difficulty controlling his dangerous behavior. Instead, the very fact that he will voluntarily take his medication demonstrates that he can control his dangerous behavior. Thus, the medication defense directly negates an element of the allegations necessary in order to civilly commit a person." We are not persuaded.
Assuming (without deciding) that we agree with the above referenced decisions and construe section 1026.5 as having a requirement that the People prove beyond a reasonable doubt that Wiedrich has serious difficulty in controlling his dangerous behavior, we conclude inclusion of this element does not change the nature of the medication defense as an affirmative defense on which the defendant bears the burden of proof by a preponderance of the evidence. Wiedrich's arguments in this regard do not fully state the lack of control element, which is that the defendant must suffer from a serious metal disorder having as a "critical distinguishing feature . . . a special and serious lack of ability to control behavior." (Kansas v. Crane, supra, 534 U.S. 407, 412-413; Howard N., supra, 35 Cal.4th at p. 128 [requirement is that person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior];People v. Williams, supra, 31 Cal.4th at pp. 766, 769 [characterizing element as a "disorder-related inability to control behavior"].) Thus, it is not merely that the defendant has serious difficulty in controlling his behavior, but that he or she has a control-impairing disorder.
Wiedrich does not argue that there is insufficient evidence of his having a mental disorder that causes "serious difficulty in controlling behavior." (Kansas v. Crane, supra, 534 U.S. at p. 413.) "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." (People v. Bowers, supra, 145 Cal.App.4th at p. 879.) He effectively concedes the People's experts provided sufficient proof on the issue of lack of control.
The defendant's ability to take medicine and the positive effect of medication does not negate the fact that the defendant is afflicted with a control-impairing disorder, but rather is new matter. (Accord, Bolden, supra, 217 Cal.App.3d at p. 1601.) As in Bolden, there is nothing logically inconsistent with the truth of the elements of the People's case and those of Wiedrich's defense existing simultaneously. Under the circumstances, Wiedrich is not relieved of the burden to prove as an affirmative defense that he is not dangerous when medicated and would continue to take his medication in an unsupervised setting. Having found no error in the trial court's understanding or application of the parties' respective burdens of proof, we need not reach Wiedrich's prejudice arguments.
DISPOSITION
The order is affirmed.
WE CONCUR: HALLER, Acting P. J., McINTYRE, J.