P. v. Barger
Filed 1/18/07 P. v. Barger CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. SONNY MARK BARGER, Defendant and Appellant. | 2d Crim. No. B188492 (Super. Ct. No. F376370) (San Luis Obispo County) |
Sonny Mark Barger appeals an order finding him to be a mentally disordered offender (MDO). (Pen. Code, § 2960.)[1] He claims the finding is not supported by substantial evidence, and that his attorney cannot waive his right to a jury trial. We affirm.
FACTS
In December of 2000, Barger was convicted of stalking (§ 646.9, subd. (a)), and making a terrorist threat (§ 422). The victim of both crimes was a 59-year-old woman. Barger continued to try to contact the victim even after his arrest. While incarcerated, Barger wrote her letters threatening that he would kill her or commit suicide.
Doctor Lev Iofis evaluated Barger for the purpose of determining whether he meets the MDO criteria. Iofis opined that Barger suffers delusional disorder, grandiose type. This severe mental disorder was either one of the causes or an aggravating factor in the commission of the crime for which he was sent to prison. Barger still claims that he was not aware his victim did not welcome his advances, and that she did not have a restraining order against him.
Iofis also opined that Barger's severe mental disorder was not in remission at the time of the hearing. He based his opinion on an interview during which Barger sounded delusional. Barger claimed to be an accomplished studio guitarist who has played with all the famous people in the rock music world. He also claimed to own a number of restaurants, and to have an annual income of $80,000. Barger's records said he had an annual income of $3,000. Barger said his given name is Mark Wilson. He claimed he was given the name Sonny Barger at age 16, when a vice-president of the Hell's Angels told him he was the illegitimate son of Ralph Sonny Barger.
Iofis testified that Barger remains a substantial danger to others. Iofis based this opinion on Barger's refusal to take medication, that he still harbors grandiose delusions, and that he has denied doing anything wrong when he stalked his former girlfriend. Iofis also said Barger had a history of violence that included convictions for kidnapping and corporal injury to a spouse. Iofis admitted on cross-examination that Barger's probation report does not mention " kidnapping or anything of that nature . . . ."
Iofis said Barger has been in treatment for his mental disorder for more than 90 days. Iofis said Barger was offered medication, but refused to take it. If he refuses medication, all officials can do is keep monitoring him.
The parties agreed that the court could consider a report by Dr. Lance Portnoff. Portnoff opined that Barger has a severe mental disorder: schizoaffective disorder, bipolar type. Portnoff also opined that Barger's mental disorder was a cause or aggravating factor in the underlying crime. Portnoff pointed out that at least by the time Barger was arrested and put in jail, a rational person would know he should not keep stalking the victim.
Portnoff said Barger's mental disorder is not in remission.
Portnoff opined that by reason of Barger's mental disorder, he remains a danger of physical harm to others. Portnoff said Barger has reportedly been arrested for robbery, kidnapping, battery on a custodial officer and spousal battery. Portnoff also cited Barger's long-term stalking of the victim, his poor performance on previous grants of parole, his poor insight into his mental illness, his denial of responsibility for the underlying offenses, and his history of substance abuse as a basis for his opinion that Barger remains a physical danger to others.
Finally, Portnoff said Barger has been in treatment for his disorder for a period of more than 90 days. He was in psychosocial treatment for 55 days and in a psychotropic medication program for an additional 48 days, for a total of 103 days.
The parties agreed that the court could consider the report of Dr. Dawn Starr. Starr agreed that Barger meets all MDO criteria.
Defense
Barger testified on his own behalf. He said the only problem he has is a drug problem. He is not refusing medication. He has no problem that requires medication. He admitted that kidnapping charges were filed against him, but were dismissed. He also admitted he was charged with battery on a custodial officer, and that he " took a deal."
The parties agreed the court could consider a report by Dr. Allison Little. Little reported that Barger meets all the criteria for an MDO, except that his mental illness was a cause or aggravating factor in the underlying offense, and that Barger represents a substantial danger of physical harm to others.
DISCUSSION
I
Barger contends there is no substantial evidence to support a finding that he qualified as an MDO.
To be adjudged an MDO, the defendant must have a severe mental disorder that is not in remission or which cannot be kept in remission without treatment; the mental disorder must be a cause or an aggravating factor in the commission of the underlying crime; the defendant represents a substantial danger of physical harm to others; and the defendant must have been in treatment for the mental disorder for 90 days or more within one year of his parole release date. (§ 2962.)
In determining whether substantial evidence supports an MDO finding, we view the evidence in a light most favorable to the judgment, drawing all inferences a trier of fact could reasonably have made in support of the findings. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083.) We cannot determine the credibility of witnesses or reweigh the evidence. (Ibid.)
Barger argues there is no substantial evidence to support the finding that his mental disorder was a cause or aggravating factor in the commission of his stalking offense. But three experts, Iofis, Portnoff and Starr, stated it was. Their opinions were supported by evidence that even after Barger was incarcerated for stalking, he continued to try to contact the victim. A reasonable trier of fact could conclude that Barger's mental disorder was at least an aggravating factor in the commission of the stalking offense.
Barger argues there is no substantial evidence that he represents a substantial danger of physical harm to others. But again, three experts testified that he does. Barger's reliance on Iofis's cross-examination is misplaced. On direct, Iofis testified that Barger had a history of violence that includes kidnapping and corporal injury to a spouse. Portnoff's report also mentioned that Barger had been convicted of robbery, kidnapping, battery on a custodial officer and spousal battery. On cross-examination, Iofis admitted Barger's probation report did not mention " kidnapping or anything of that nature . . . ."
Even assuming Barger's probation report is correct, there is still sufficient evidence to support a finding Barger represents a substantial danger of physical harm to others. Barger made a death threat against his victim in the stalking case. He also admitted he pled to the charge of battery on a custodial officer. He refuses to admit he did anything wrong in the stalking case, and refuses to admit he has a mental disorder that needs treatment. The trial court does not have to wait until he actually injures someone to conclude Barger represents a substantial danger of physical harm to others.
Finally, substantial evidence supports the finding that Barger was in treatment for his mental disorder for 90 days or more before his parole release date.
Barger points out that Iofis testified he prescribed medication for Barger but Barger refused to take it. Iofis said once a prisoner refuses medication, all the officials can do is keep monitoring him. Barger argues that monitoring is not treatment. But Barger cannot avoid being designated an MDO simply by refusing offered treatment. If Barger refuses treatment, he must be held to have waived the statutory treatment requirement. In any event, as Barger concedes, Portnoff's report states Barger has been in treatment for more than 90 days. That alone is sufficient to support the finding.
II
Barger contends his attorney cannot waive his right to a jury trial. He claims People v. Otis (1999) 70 Cal.App.4th 1174, which approved such a waiver, was wrongly decided. But we continue to believe Otis was correctly decided. (People v. Fisher (2006) 136 Cal.App.4th 76, 81.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
COFFEE, J.
John A. Trice, Judge
Superior Court County of San Luis Obispo
______________________________
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Linda C. Johnson, Deputy Attorney General, for Plaintiff and Respondent.
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[1] All statutory references are to the Penal Code unless otherwise stated.
