P. v. Lindeman

Filed 4/13/07 P. v. Lindeman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yolo)

----

In a recommitment proceeding under subdivision (b) of Penal Code^[1]section 1026.5 (hereafter section 1026.5(b)), a jury found defendant Luke Lindeman had a mental disease, defect, or disorder and by reason of that condition represented a substantial danger of physical harm to others. As a result, the trial court ordered his commitment to Napa State Hospital extended two years.

On appeal, defendant contends: (1) there was insufficient evidence to support the jurys findings; (2) the trial court erred in failing to instruct the jury that it also had to decide whether he suffered from a mental disorder that caused him to have serious difficulty controlling his dangerous behavior; and (3) the prosecutor committed misconduct in closing argument by telling the jury the consequences of their findings and arguing it would be good for defendant to lose his case.

We conclude the evidence -- the testimony of a single psychologist -- was sufficient to support the jurys findings; however, the trial court erred in failing to instruct the jury that it had to decide whether defendants mental disorder caused him to have serious difficulty controlling his dangerous behavior. As the People now concede, under our Supreme Courts decision in In re Howard N. (2005) 35 Cal.4th 117 (Howard N.) a volitional element must be read into the test for recommitment in section 1026.5(b) to make that statute comport with general due process principles regarding civil commitments. We also conclude the instructional error was not harmless beyond a reasonable doubt. Accordingly, defendant is entitled to a new recommitment trial.

For guidance on remand, we also address defendants claim of prosecutorial misconduct and conclude the prosecutors argument was improper because whether it would be to defendants benefit to stay in the hospital and continue receiving treatment is irrelevant to the determination the jury is called on to make under section 1026.5(b), and argument regarding the benefits of treatment has the potential to cause the jurors to lose sight of their true charge.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2003, defendant was charged with grand theft for shoplifting a banjo and some music books from a music store. He pled not guilty and not guilty by reason of insanity. In August 2003, based on the opinions of two out of three psychiatrists, the trial court found he was insane at the time of the offense and ordered him committed to Napa State Hospital for three years.

In September 2005, the People filed a petition for a two-year extension of defendants commitment pursuant to section 1026.5(b). (See 1026.5, subd. (b)(8).) The matter was tried to a jury in December 2005. The only witness was a psychologist on defendants most recent treatment team who had spent limited time with defendant and had not completely reviewed defendants file.

Following the psychologists testimony, defendant moved for nonsuit or judgment of acquittal ( 1118.1) on the ground the People had failed to prove a mental disease, defect, or disorder. The court determined it was a close call but denied the motion, concluding it was unable to say that there is a complete absence of evidence for the jury to consider.

As previously noted, the jury found defendant had a mental disease, defect, or disorder and by reason of that condition represented a substantial danger of physical harm to others. Accordingly, the trial court ordered his commitment extended two years.

DISCUSSION

I

Sufficiency Of The Evidence

Under section 1026, a criminal defendant found not guilty by reason of insanity is generally committed to confinement in a state hospital for the care and treatment of the mentally disordered. ( 1026, subd. (a).) Under section 1026.5, the commitment order must specify the maximum term of commitment, which is generally the longest term of imprisonment that could have been imposed on the person if he or she had been found guilty. ( 1026.5, subd. (a)(1).) Once the maximum term of commitment has expired, a defendant can be kept in confinement only if the person . . . by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others. (Id., subd. (b)(1).)

Defendant contends the evidence here was insufficient to support the jurys findings that: (1) he suffered from a mental disease, defect, or disorder; and (2) by reason of that disease, defect, or disorder he represents a substantial danger of physical harm to others. He also contends there was insufficient evidence to establish he had serious difficulty controlling his dangerous behavior. We disagree with each of these contentions.

A

Adequacy Of The Basis For Dr. Vernards Testimony

The only witness who testified in this recommitment proceeding was Dr. Michael Vernard, a psychologist at Napa State Hospital. Dr. Vernard testified that defendant came to the hospital around October 2003. However, Dr. Vernard knew defendant only because defendant was briefly assigned to the residential unit where [Dr. Vernard] work[ed]. Defendant was transferred to the unit on October 17, 2005, and was there for a little over two weeks before he was transferred to Yolo County for the recommitment trial.^[2] Dr. Vernard estimated that during the two weeks defendant was in his residential unit, he spent probably a total of two or three hours, at best with defendant. He testified that his opinion regarding defendant was based on the two weeks that we had with him on the unit, and the brief review of defendants file he was able to do the day before he testified, which amounted to what [he] could get [his] hands on after he received the subpoena at 3:30 p.m. Dr. Vernard admitted his review of defendants file was incomplete.^[3]

Defendants first challenge to the sufficiency of the evidence relates to whether, based on the foregoing testimony, Dr. Vernard had a legally adequate basis for the opinions he expressed at trial. Defendant asserts it was not reasonable to find that Dr. Vernards testimony qualifies as proof beyond a reasonable doubt because Dr. Vernard admitted that he had not spent very much time with [defendant] or had enough time to review [defendants] files and records to testify as an expert witness should. Although acknowledging there is no requirement for a specific amount of preparation time, defendant asserts Dr. Vernard did not spend enough time to render an intelligent and competent expert opinion.

As we recently explained in another context, an appellant who challenges the sufficiency of the evidence bears the burden of affirmatively demonstrating the evidence is insufficient. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Defendant has failed to carry that burden here in connection with his challenge to the adequacy of Dr. Vernards basis for his opinions.

One basis for defendants assertion that Dr. Vernard did not have a sufficient basis for his opinions is purportedly rooted in Dr. Vernards testimony about the adequacy of his preparation. Specifically, defendant asserts he has been recommitted based upon testimony that the sole witness acknowledged was inadequate. (Italics added.) Unfortunately, in violation of the California Rules of Court, defendant fails to provide any citation to the record where Dr. Vernard acknowledged any such thing. (See Cal. Rules of Court, rules 8.204(a)(1)(C) [brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears], 8.360(a) [rule 8.204 applies to briefs in criminal appeals].)

A page earlier in his brief, defendant asserts Dr. Vernard acknowledged that it would have been better practice to review [defendants] entire file and talk to some of his other, prior, doctors before testifying, which is an accurate representation of part of Dr. Vernards testimony. However, if this is what defendant contends amounted to an acknowledgment by Dr. Vernard that his testimony was inadequate, defendant is mistaken. Essentially, all Dr. Vernard acknowledged was that more preparation would have been better, not that the preparation he was able to accomplish provided an inadequate basis on which to form any opinion about defendant. On the contrary, Dr. Vernard specifically testified that he felt that even the limited information he had was a sufficient basis on which to render an opinion.

Beyond his misplaced reliance on Dr. Vernards testimony, defendants challenge to the adequacy of Dr. Vernards basis for his opinions fails because he offers no authority, and little argument, on what amount of knowledge or preparation is required for an experts opinions to constitute substantial evidence. Defendants authorities are limited to those supporting the most general principles of substantial evidence review, including the proposition that [e]vidence, to be substantial must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 576.) At no point does defendant cite any authorities addressing the more specific question at issue here of when an experts opinion, though couched in proper terms, cannot be deemed to constitute substantial evidence because the expert lacked an adequate basis for the opinion. (See, e.g., People v. Bassett (1968) 69 Cal.2d 122, 136-146.) In the absence of such authorities, defendant has no substantial basis for analyzing or criticizing the adequacy of the basis for Dr. Vernards opinion.

As for what argument defendant does offer on this point, we have already set forth the bulk of it. Essentially, it amounts to defendants assertion that Dr. Vernard did not have an adequate basis for his opinions because he did not spend enough time interviewing defendant or reviewing his file. But defendant offers no basis for concluding Dr. Vernards preparation was inadequate other than defendants assertion that it was. Because that reasoning does not persuade, we conclude defendant has failed to carry his burden of showing the evidence was insufficient because Dr. Vernard did not have an adequate basis for his opinions.

B

Defendants Remaining Challenges

That does not end our discussion of the sufficiency of the evidence, however, because defendant contends that regardless of the basis for Dr. Vernards testimony, that testimony did not constitute substantial evidence supporting the jurys findings that the statutory criteria in section 1026.5(b) were met -- i.e., that defendant suffered from a mental disease, defect, or disorder and that by reason of that condition he represented a substantial danger of physical harm to others. Defendant also contends Dr. Vernards testimony was insufficient to establish that he had serious difficulty in controlling his dangerous behavior as a result of a mental disorder -- a criterion not specifically mentioned in the statute but which (as we discuss further below) defendant contends applied here as a matter of constitutional law.

1. Dr. Vernards Testimony

We begin with a summary of Dr. Vernards testimony. Dr. Vernard testified that [f]rom [his] review of the records and the brief interactions [Dr. Vernard] had with him, [defendant] does appear to have a difficulty that would be consistent with a mental defect. Dr. Vernard noted various diagnoses other evaluators had made, ranging from developmental disability types of evaluations, depression, . . . Asperger syndrome, [and] schizophrenia, all the way to the most recent -- cognitive disorder, NOS, Not Otherwise Specified -- which Dr. Vernard described as the most likely scenario. Dr. Vernard believed this disorder was the result of damage defendant sustained to the frontal lobe of his brain when at some point [he] suffered an unfortunate bout of what the records say was meningitis. Dr. Vernard described this as his working hypothesis, but also noted that it was one of the primary conclusions in the initial evaluations that were done, before [defendant] got to the hospital -- specifically, an evaluation performed by Dr. Amy Eargle for purposes of determining whether defendant met the criteria for treatment as not guilty by reason of insanity. He noted, however, that while in Napa State Hospital defendant had been treated primarily as schizophrenic, but [he] didnt see evidence that that had been particularly successful.

As for defendants behavior, Dr. Vernard testified that in his initial interview with defendant, he was unable to get a history from defendant because defendant wasnt terribly responsive to most of the questions. Most of defendants responses were informing [Dr. Vernard], that it was all in the records. He also testified that in the two weeks that [defendant] was . . . on our unit -- we ran into repeated problems with just old fashion impulse control, getting into somebody elses space, walking into their room. [P]atients consistently reported that [defendant] was looking for paperwork, and defendant was actually found at one point with several copies of notes or treatment plans from other patients. Dr. Vernard testified that when confronted, . . . as opposed to just apologizing, turning around and leaving, [defendant would] becom[e] somewhat belligerent verbally. Dr. Vernard also testified that two patients demand[ed] to be transferred off the unit if [defendant] was to stay, because he had, apparently, been whispering [what their crimes were] to them, which he apparently learned from their paperwork.

According to Dr. Vernard, defendants behavior of going into other patients rooms and just invading the personal boundary space of others became such a constant problem that they placed him on enhanced observation, which involved assigning a staff member to watch defendant. Dr. Vernard did not believe this observation was for 24 hours a day, but it was at least 16 hours a day.

Dr. Vernard testified that defendants prior residential unit had also noted defendants penchant for looking for other patients paperwork, and he expressed the opinion that [n]othing in [defendants] behavior had changed significantly since coming to the hospital.

Dr. Vernard also described an incident in which defendant walked in and changed the television station in front of 22 people without talking to them, which was followed by an exchange of words and a physical altercation. Staff were able to control the other patients, but defendant refused to leave the area, insisting he did not feel like it and did not have to. When additional staff members were brought in, defendant finally decided to walk away.

Dr. Vernard also heard about an incident in which defendant broke a razor and tried to hide the blade in his pocket.

When asked about his awareness of any confrontations that [defendant] has had in a jail setting, Dr. Vernard recounted an incident before defendant was hospitalized when he walked into another individuals cell and took a chair, and [w]hen the individual confronted him about it, [defendant] hit him, leaving a [red] mark on the individuals stomach. Jail notes also indicated that defendant was collecting information about other inmates, including case work information, information about their crime[s]. Dr. Vernard noted that this behavior was consistent with defendants more recent behavior at the hospital.

Ultimately, Dr. Vernard expressed his opinion that defendant poses a danger to others because of his continued impulse control problems, the inability to recognize the boundaries of others and the potential hazards that they [sic] can create when others respond, and his unwillingness to back down.

2. SubstantialEvidence Of Mental Disorder

Based on the foregoing testimony, defendant first argues there was no substantial evidence he suffered from a mental disease, defect, or disorder because Dr. Vernard could not make a specific diagnosis as to the purported mental disease or defect [defendant] currently suffered from. Instead, he could only testify that [defendants] behavior was consistent with a mental disease or defect. Defendant asserts that because his behavior is also consistent with the behavior of someone who does not suffer from a mental disorder but is, sometimes, a jerk, the evidence was necessarily insufficient to prove he had a mental disorder.

We are not persuaded. In determining whether a finding is supported by substantial evidence, we must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the . . . findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether [the appellate court believes the fact to be found was] established beyond a reasonable doubt. (People v. Redmond (1969) 71 Cal.2d 745, 755.) As long as any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt, then the findings must be affirmed. (People v. McCune (1995) 37 Cal.App.4th 686, 694-695.)

Viewing his testimony in the light most favorable to the People, we conclude Dr. Vernard did far more than testify that defendants behavior was consistent with a mental disease or defect. Dr. Vernards actual testimony was that defendant appear[s] to have a difficulty that would be consistent with a mental defect. Viewing that testimony most favorably to the People, it does not appear Dr. Vernard used the term a difficulty as a synonym for behavior, as defendant would have it. Rather, it appears Dr. Vernard used the word difficulty to mean something like impediment. (See Merriam-Websters Collegiate Dict. (10th ed. 2000) p. 322, col. 2.) In other words, Dr. Vernard was saying that it appeared to him defendant had an impediment or problem that was consistent with a mental defect. Moreover, Dr. Vernard explained that he believed this defect -- which he characterized as a cognitive disorder, not otherwise specified -- to be a result of damage to the frontal lobe of defendants brain from a bout of meningitis.

More than this, however, Dr. Vernard testified about abnormal behavior that appeared to be the result of defendants mental disorder -- repeated incidents evidencing a striking lack of impulse control and respect for others, which had the potential (sometimes realized) to lead to violent confrontations. This behavior was itself valid evidence that defendant suffered from a mental disorder.

For purposes of determining the sufficiency of the evidence on appeal it does not matter, as defendant believes it does, that his behavior could be reasonably reconciled with a finding that he was a jerk without a mental disorder. The question for us is not whether the jury could have reasonably reached a different conclusion, but whether any reasonable jury could have reached the conclusion this jury did -- that defendants behavior was consistent with a mental disorder, and that that behavior -- along with all the other evidence -- demonstrated defendant did, in fact, suffer from such a disorder. The answer to that question is yes.

Furthermore, it does not matter that Dr. Vernard did not express absolute certainty about defendants disorder, or that he testified he was not offering a diagnosis. What matters is that viewing Dr. Vernards testimony in the light most favorable to the People, the jury reasonably could have concluded beyond a reasonable doubt that defendant suffered from a mental disorder. The evidence on the point may not have been overwhelming, but that does not mean it was insufficient.

3. Substantial Evidence Of Danger To Others

That brings us to defendants argument that Dr. Vernards testimony was insufficient to support the jurys finding that he represented a substantial danger of physical harm to others. Defendant first points out that Dr. Vernard specifically testified that [defendant] was equally likely to be a danger to himself. That is true, but it is irrelevant. The People did not seek to recommit defendant because he was danger to himself, and the jury was not instructed to determine if defendant was a danger to himself.^[4] What matters is that Dr. Vernard testified defendant was a danger to others, and his testimony about defendants repeated behavior showing a lack of self-control and respect for others, along with the consequences of that behavior, bore that out. That this behavior also made defendant a danger to himself in equal measure does not defeat the conclusion that he was danger to others.

Taking the pertinent conclusion head-on, defendant contends the evidence presented did not indicate the presence of any substantial danger, but he supports that contention only by minimizing the significance of what Dr. Vernard testified to. Defendant insists the testimony showed no more than that he got into disputes with his fellow patients and, on occasion, a physical altercation resulted although it was not clear from the record that [defendant] actually initiated the altercation.

Defendants characterization of Dr. Vernards testimony violates the rule that in determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the respondent. As we recently explained, this rule is not simply something for the appellate court to follow and the appellant to ignore. Because the appellant bears the burden of overcoming the presumption that the judgment is correct, the appellant must affirmatively demonstrate that the evidence is insufficient, and to do that he must present his case to us consistently with the substantial evidence standard of review, which includes setting forth all of the material evidence . . . in the light most favorable to the [respondent]. (People v. Sanghera, supra, 139 Cal.App.4th at pp. 1573-1574.)

Furthermore, this obligation is not satisfied simply by drafting a statement of facts that purports to be a thorough summary of the evidence. That obligation carries through to the argument section of an appellants brief and requires the appellant, in presenting his or her argument, to do so with all of the material evidence viewed in the light most favorable to the respondent in mind.

Defendant does not do that here when he argues that Dr. Vernards testimony showed no more than that he got into disputes with his fellow patients and, on occasion, a physical altercation resulted. Viewed in the light most favorable to the People, Dr. Vernards testimony showed that defendant had serious behavioral problems that swiftly and repeatedly manifested themselves in the short period of time defendant was housed in Dr. Vernards residential unit by defendant repeatedly putting himself in situations that were extremely likely to provoke other patients into confrontations, both verbal and physical, that could reasonably lead to physical harm.

Defendant also contravenes the rules of substantial evidence review when he insists it was not clear from the record that [he] actually initiated the [physical] altercation that followed the television incident. While it is true Dr. Vernard did not testify that defendant made the first physical contact in the altercation itself, it was clear that defendant initiated the entire incident when he walked in and changed the television station in front of 22 people without talking to them. Thus, viewed in the light most favorable to the People, the evidence supported the conclusion that defendants behavior repeatedly put him in situations where physical harm to others was likely to result (even if an actual physical altercation occurred only once in the two weeks defendant was in Dr. Vernards residential unit).

Finally, it must be noted defendants argument ignores Dr. Vernards testimony that defendants behavior at the hospital was consistent with his behavior in jail before he was hospitalized, which was key to recognizing the potential for physical harm from defendants conduct. In one jail incident, another individual confronted defendant about his intrusive conduct, and defendant responded by hitting him. Although that may not have happened (yet) at the hospital,^[5]the jury was entitled to conclude that defendants apparent inability to stop himself from intruding on and provoking those around him gave rise to a substantial danger that he would end up causing physical harm to others -- regardless of who made the first physical contact. While that conclusion was not compelled by the evidence, a reasonable jury could reach that conclusion beyond a reasonable doubt based on Dr. Vernards testimony.

4. Substantial Evidence Of Difficulty In Controlling Behavior

Defendants final challenge to the sufficiency of the evidence is that Dr. Vernards testimony could not, and did not, establish that [he] had a serious difficulty in controlling his dangerous behavior. He contends that given the lack of any specific diagnosis, the most that [Dr.] Vernards testimony could have shown, was that [defendant] failed to control his behavior, not that he was unable to do so.

Assuming for the moment that the evidence had to establish such a volitional problem, defendant again fails to present all of the material evidence in the light most favorable to the People. Dr. Vernards testimony was that defendant was suffering from impulse control problems and the inability to recognize the boundaries of others. In other words, the manifestations of defendants mental disorder included not only his impulse to violate the personal space of others and engage in other conduct likely to provoke them, but also his inability to stop himself from following this impulse. The jury easily (and reasonably) could have concluded from this evidence that defendants mental disorder made it seriously difficult for him to control his dangerous behavior.

Defendant argues there was absolutely no evidence that [he] ever tried to control his behavior and that instead the evidence suggested he did not try to [do so] and perceived no reason to do so. Based on this, defendant suggests the jury could not have found he experienced serious difficulty in controlling his behavior. Again, however, the light defendant shines on the evidence is the one that suits him best, not the one most favorable to the People. Even if it might have been reasonable for the jury to find he was simply a jerk who enjoyed intruding on others, and not a mentally disordered person who could not stop himself from doing so, that is not a basis for reversal. The jury was not bound to reach the former conclusion rather than the latter. The question for us is whether any reasonable jury could have reached the latter conclusion beyond a reasonable doubt, and the answer to that question is yes. Accordingly, the evidence was sufficient.

II

Need For Jury Instruction On Volitional Impairment

Defendant next contends the trial court erred in failing to instruct the jury that it had to decide whether he suffered from a mental disorder that caused him to have serious difficulty controlling his dangerous behavior. We agree.

In Howard N., the California Supreme Court addressed whether the statutory scheme for the civil commitment of a person at the time he would otherwise be discharged by statute from a Youth Authority commitment (former Welf. & Inst. Code,  1800 et seq.) violate[d] due process because it d[id] not expressly require a finding that the persons mental deficiency, disorder, or abnormality causes serious difficulty in controlling [dangerous] behavior. (Howard N., supra, 35 Cal.4th at p. 122.) The court concluded the extended detention scheme should be interpreted to contain such a requirement in order to preserve its constitutionality and that the defendant in that case was entitled to a new commitment proceeding because the jury was not instructed on this requirement. (Ibid.)

Last year, in People v. Galindo (2006) 142 Cal.App.4th 531, this court addressed whether a similar conclusion should apply in a case (like this) involving the recommitment of a criminal defendant under section 1026.5. In Galindo, the People conceded that following [Howard N.] section 1026.5, subdivision (b)(1), must be interpreted as requiring proof that a person under commitment has serious difficulty in controlling dangerous behavior. (Galindo, at p. 533.) This court accepted that concession and concluded the trial courts failure to consider this control issue was prejudicial.^[6] (Id. at pp. 533, 536, 538.)

Initially in this case, the People contended their concession in Galindo was ill-advised. They pointed out that under the test for insanity in California, a criminal defendant can be found not guilty by reason of insanity only if that person suffered from a cognitive impairment, rather than a volitional impairment.^[7] They further contended this cognitive impairment that is determined to exist when the defendant is found not guilty by reason of insanity in the underlying criminal trial made Howard N. inapplicable in the context of section 1026.5.

Three months after the completion of briefing, however, the People notified this court they were withdrawing this argument because the Supreme Court denied their request to depublish Galindo and because two recent decisions by the First and Fifth Appellate Districts agree with Galindo. (People v. Zapisek (2007) 147 Cal.App.4th 1151; People v. Bowers (2006) 145 Cal.App.4th 870.)^[8] Thus, the People now concede that section 1026.5(b) must be interpreted as requiring a finding of serious difficulty in controlling dangerous behavior. We accept that concession and therefore conclude that the trial court erred in failing to instruct the jury on this volitional element. The question remains whether that error was harmless beyond a reasonable doubt. (See Howard N., supra, 35 Cal.4th at pp. 137-138.) It was not.

We have concluded already that the evidence was sufficient to establish that because of a mental disorder, defendant had serious difficulty in controlling his dangerous behavior. But that does not mean the evidence compelled such a finding, or that no rational jury could have failed to make such a finding -- which is what would have to be true for us to find harmless error.

As we have noted, Dr. Vernard did testify to defendants impulse control problems and his inability to recognize the boundaries of others. But he also testified to an incident in which defendant made a hand motion to a severely impaired patient who was beginning to yell and scream, [a]nd it was enough to distract the individual enough to settle things down, and that was pretty good. Dr. Vernard testified this incident confused him because up until then he had been operating under the assumption that [defendant] was not perceptive to what others were feeling, when he responded to them in the way that he did. Dr. Vernard admitted he now had mixed data . . . as to whether [defendant] really understands how frustrated people get with him and does this on purpose, or whether he doesnt understand. I dont know, and its incidents just like that that confuse me. (Italics added.)

To act on purpose is to act intentionally. (See Websters Collegiate Dict. (10th ed. 2000) p. 947, col. 1.) A reasonable juror could have understood Dr. Vernards testimony that defendant might do what he does (i.e., act in a provoking manner toward others) on purpose as supporting the conclusion that defendant did not, in fact, have serious difficulty in controlling his behavior, but instead intentionally chose to act in that manner, despite his ability to do otherwise. At the very least, a reasonable juror could have concluded from Dr. Vernards admitted confusion based on this incident -- along with the sparse testimony that Dr. Vernard otherwise offered on the issue of defendants ability to control his behavior -- that the prosecution had not carried its burden of proving defendants mental disorder causes him serious difficulty in controlling his dangerous behavior. Under these circumstances, we cannot conclude that any reasonable jury necessarily would have found in favor of the prosecution on this issue if properly instructed. Accordingly, the instructional error was not harmless beyond a reasonable doubt, and defendant is entitled to a new recommitment trial.

III

Prosecutorial Misconduct

For guidance to the parties and the court on remand, we address defendants remaining argument that the prosecutor committed misconduct by telling the jury the consequences of their findings and arguing it would be good for defendant to lose his case.

In closing argument, the prosecutor asserted (without objection) that defendants decreased impulse control was strong evidence . . . that he needs to stay at Napa State Hospital to continue to get treatment. After then providing examples of how defendants behavior had not changed since he had been hospitalized, the prosecutor continued as follows:

So the condition that brought him to Napa State Hospital is still apparent and has gone untreated. And that is really the bottom line. And thats why he needs to stay at Napa State Hospital.

And thats all youre being asked to do, make a decision whether or not you believe he should stay, because he has a mental defect that presents a dangerousness to other people.

And really the goal is treatment. His mental disease needs to be treated, so that he can live in this society and not present a danger -- not hurt other people, when hes not being threatened.

This is really a win-win situation. Its not if I win, [defendant] loses. Thats not the situation here. If [defendant] stays at the hospital, its really a win-win situation for him . . . .

At that point, defense counsel offered an unspecified objection, which the trial court overruled. The prosecutor then continued:

-- because he gets to continue in his treatment, and he has a chance at getting the treatment he needs, seeing the neuropsychologist like Dr. Vernard plans, and maybe being released in the future if he does not present a danger to people. Right now is not the time to release him.

The prosecutor then closed her argument with two further assertions that defendant should remain at Napa State Hospital to get treatment.^[9]

Defendant contends the prosecutors argument constituted misconduct because [t]he prosecutor told the jury that [its] decision should be based not just on whether [defendant] met the standards under the law but on whether it would be good for [him] to receive further treatment at Napa State Hospital. In support of his contention, however, defendant does not cite any cases involving claims of prosecutorial misconduct; instead, he relies on one involving a claim of evidentiary error (People v. Rains (1999) 75 Cal.App.4th 1165, 1169-1170) and two cases involving claims of instructional error (People v. Kipp (1986) 187 Cal.App.3d 748, 750-751; People v. Collins (1992) 10 Cal.App.4th 690, 695-696).

None of these cases is directly on point, but they do tend to support the proposition that in a commitment case like this it is improper to focus the jurys attention (whether by jury instruction or introduction of evidence) on what the results of its decision will be. We see no reason why this same proposition should not also apply to the prosecutors argument to the jury. Indeed, a similar rule applies in the criminal context, where [i]n the usual case, where the punishment is fixed by law, argument on [punishment] is irrelevant and can only be for the purpose of improperly influencing the jury to return a verdict of guilty. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  583, p. 833.)

We do not mean to suggest the comments of the prosecutor here were intended to encourage the jury to ignore the evidence and decide the case based on . . . fear (People v. Collins, supra, 10 Cal.App.4th at p. 695), or that they could even have had that effect. The prosecutors references to defendants need for treatment and to the benefit to him of remaining in the hospital were sprinkled as they were amidst repeated references to the statutory test -- whether defendant had a mental defect that made him a danger to others. Moreover, the idea that defendant would receive treatment if the jury agreed with the prosecutors argument that he met the test for recommitment is hardly something the jurors could have failed to come up with on their own. Even defendant acknowledges that given the identity of the only witness in the case, there was no way to avoid letting the jury know that [defendant] was at Napa State Hospital and might very well return to the hospital.

Nevertheless, because the prosecutors comments about treatment and its benefits had the potential, however small, to cause the jurors to lose sight of the specific issues they were to called on to decide -- whether defendant had a mental disorder as a result of which he represented a substantial danger of physical harm to others (and had serious difficulty in controlling his dangerous behavior) -- and to focus instead on their belief of what would be best for him, those comments were improper and should be avoided in the future.

DISPOSITION

The order of extended commitment is reversed, and the case is remanded to the trial court for a new commitment trial consistent with this opinion.

ROBIE , J.

We concur:

SCOTLAND, P.J.

HULL, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The record shows that defendant appeared in court in Yolo County on November 7, 2005, when the recommitment proceeding was set for trial. He apparently remained in custody in Yolo County through the date of trial on December 7.

^[3] It appears the prosecutor attempted to get other doctors from the residential unit defendant had been in before Dr. Vernards unit to come and testify about defendants condition but was unsuccessful in doing so.

^[4] As defendant points out, danger to self is not a valid basis for recommitment under section 1026.5(b).

^[5] Of course, if defendant was responsible for the first physical contact in the altercation following the television incident, then it had happened.

^[6] The issue in Galindo was the trial courts failure to consider th[e] control issue, rather than (as here) a failure to instruct the jury, because the defendant in Galindo waived his right to a jury and the recommitment proceeding was tried to the court instead. (Galindo, at p. 533.)

^[7] The test for insanity in California (the MNaghten test) focuses on the ability of the defendant to know or understand the nature and quality of the act or to distinguish right from wrong -- i.e., the defendants cognitive ability -- rather than on his ability to conform his conduct to the requirements of law -- i.e., the defendants volitional ability. (People v. Kelly (1992) 1 Cal.4th 495, 539; see also 25, subd. (b).) The Supreme Courts attempt in People v. Drew (1978) 22 Cal.3d 333 to add a volitional element to the test for insanity by adopting the test proposed by the American Law Institute was rejected by the electorate through the initiative process four years later. (Kelly, at pp. 532-533.)

^[8] Indeed, in Zapisek, Division Two of the First Appellate District expressly rejected the same argument the People initially advanced here. (See People v. Zapisek, supra, 147 Cal.App.4th at pp. 1159-1160.)

^[9] It is worth noting that the prosecutors comments about treatment were not limited to her closing argument. In her opening statement, she informed the jury, his doctors have made a recommendation that they think he still needs treatment, and he should stay at Napa State Hospital. [] So this trials really about you deciding whether or not he should stay for an additional two years, so he can get more treatment before hes released into the community. Defense counsel offered no objection to these statements.