P. v. Lopez

Filed 3/13/07 P. v. Lopez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Riverside County, Carl E. Davis, Judge. Affirmed.

Antonio Lopez challenges an order entered in 2005 extending his civil commitment to the Department of Mental Health as a mentally disordered offender (MDO) for an additional year. (Pen. Code,^[1] 2970.) He asserts that the order must be reversed because the trial court permitted the People to call him as a witness in the current recommitment proceeding, and admitted into evidence his former testimony from a 2000 recommitment proceeding. He argues that under other statutory schemes the Legislature has afforded civilly committed persons the right not to testify at their recommitment proceedings, and accordingly equal protection principles mandate that this same right be afforded to him. This precise argument was rejected by another division of this court in an appeal filed by Lopez from his 2004 recommitment order. (People v. Lopez (2006) 137 Cal.App.4th 1099(Lopez).) The Lopez court held that the Legislature has not extended the right not to testify to civil committees. We agree with this holding. Alternatively, we hold any error in admitting Lopez's testimony was not prejudicial. Accordingly, we affirm the recommitment order.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995 Lopez was convicted of making a terrorist threat. In 1998 he was determined to be an MDO, and has been civilly committed since that date.

The proceedings before us arise from a recommitment petition filed by the People in May 2005. At the jury trial on this recommitment petition, the People called two expert witnesses (Drs. Nellie Anosa and Joy Bustrum) to address the issue of Lopez's status as an MDO. These experts, who treat Lopez at Patton State Hospital, stated that Lopez suffers from schizoaffective disorder of the bipolar type, a severe mental illness, and that his illness was not in remission. Dr. Anosa noted that Lopez has a history of auditory command hallucinations, paranoid ideations (a delusion where he feels people are against him), mood lability (sudden mood swings), and assaultive behavior.

Based on their observations of Lopez and staff reports, the experts testified that because of Lopez's paranoid ideation, he constantly engaged in hostile, threatening behavior. He believed staff was singling him out for harassment, and frequently became agitated and paranoid when told to follow procedures. Although Lopez had made some progress, the hospital had not been successful in controlling his behavior through medication and psychological support. Lopez consistently denied any inappropriate behavior, and he had little or no insight into his condition or ability to manage his symptoms.

To support their conclusions, the experts referred to numerous events illustrating Lopez's ongoing hostile and threatening behavior. For example, on February 9, 2005, hospital staff placed Lopez in a five-point restraint because he was threatening staff. While Lopez was restrained, he stated: " 'As soon as I can get out of the restraints, I'm [expletive] all Patton employees one at a time. All I want to see is blood and guts.' " On February 14, Lopez argued with staff, verbally attacked them, pushed up his sleeves, raised his fists and said " ' "Come on." ' " On February 19, he was agitated and cursing, stating, " 'You [expletive] cannot stop me. I'm going outI'm going out of [bounds].' " On March 1, he yelled at staff, stating that " 'he and his home boys will jump' " the staff. When asked what the problem was, Lopez stated " ' "I will get that staff" ' " and " ' "[t]hey are all after me." ' " He refused to take medication to help calm him, and staff had to hold him down to administer the medication involuntarily. On March 6 at 2:00 a.m., Lopez was hostile and manic, and asked staff if they were harassing him and wanted " 'to take it to the streets.' " On March 29, Lopez was agitated because a kitchen worker did not give him a second juice, and Lopez threw his juice box at the kitchen worker. Also in March, Lopez got into a fight with another patient while in group psychotherapy. On April 9, he threatened a staff member with bodily harm. On May 2, Lopez stated to a staff member, " 'You narc [expletives]. Why are you here? Nobody wants you here. You left. Why did you come back? Because you need your ass kicked? I'll kick your ass, bitch!' " On May 16, Lopez repeatedly bumped into a staff member, and when questioned about his conduct, Lopez responded: " 'I'll bump into whoever I want to, you [expletives]. Why don't you go back to Nigeria with your bitch mama bitch.' " Lopez continued to threaten the staff member and was "losing control, turning red, and screaming louder" until he was forcibly escorted away. On May 20, Lopez threatened kitchen staff with bodily harm when they gave him food in accordance with his diet card. When a nurse responded to the situation, Lopez stepped forward with a closed clenched fist as though to hit the nurse, shouting that he was going to "kick[ ] [the nurse's] ass." On May 28, Lopez threatened staff and their families with physical assault, and "put up his fist and . . . made a jumping motion as though to attack" a staff member. On June 5, he kicked a patient. On October 7, he threatened another patient but did not make physical contact because of staff intervention.

The experts also reviewed Lopez's criminal history, which included numerous convictions and prison terms, and reflected a pattern of assaults and batteries and "acting out physically in harming other people." The experts did not view Lopez's conduct during the past year at the hospital as "idle threats." They stated that if a patient is verbally or physically assaultive in the hospital setting, this indicated a likelihood he or she would act the same way if released. Further, the hospital had the resources, including staff and extra medication, to immediately de-escalate situations. Outside the hospital setting these resources might not be available, thus making the consequences of assaultive behavior much graver. To characterize a mental illness as being in remission, the experts expected to see no active symptoms for six months to a year, which had not occurred for Lopez. The experts opined that Lopez posed a danger of physical harm to others and that he would pose a danger to the community if released.

Over defense objection, the People called Lopez as a witness and read into evidence his prior testimony from his 2000 recommitment proceeding. At the current trial, Lopez acknowledged he had a mental illness, but stated he felt stable and that his illness was in remission with medication. He recognized that he had a problem with anger, and he planned to continue taking anger management classes. Lopez believed that some of his agitation was caused by the ongoing extra medication given to him by hospital staff.^[2] He complained that hospital staff did not like him and acted like "prison gangs" because they were afraid, and they went out of their way to make him mad.

The People also questioned Lopez about the details of his prior convictions and about his incidents of assaultive and threatening behavior while hospitalized. Lopez acknowledged some of his prior convictions; however, he denied details reflecting his assaultive, aggressive conduct both in and out of the hospital. Lopez stated that the recent events at the hospital referred to by the experts during their testimony did not occur or he did not remember them. If the events at the hospital did occur, he stated he

did not think they constituted agitated behavior warranting extra medication as long as he was "just yelling or . . .  cussing" without being physically violent. He testified that if he was released into the community, he would continue taking his daily, prescribed medication which kept him stable and prevented paranoia.

The People read Lopez's testimony from the 2000 recommitment proceeding into the record. This prior testimony detailed his prior convictions and his lengthy history of threatening and assaultive conduct, including assault on a correctional officer, assault with a deadly weapon and kidnapping, making a criminal threat, stabbing a cellmate, and fighting with another patient and hospital staff.

The jury found that Lopez was an MDO, and the court ordered his involuntary commitment extended to September 6, 2006.

DISCUSSION

The MDO statutory scheme permits the involuntary commitment of a person previously convicted of a statutorily-specified crime who, because of a severe mental disorder, represents a substantial danger of physical harm to others if released. ( 2960-2981; Lopez, supra, 137 Cal.App.4th at p. 1101.) The involuntary commitment may be extended for one-year periods if the People show beyond a reasonable doubt that (1) the person has a severe mental disorder, (2) the severe mental disorder is not in remission or cannot be kept in remission if the person's treatment is not continued, and (3) because of the person's severe mental disorder, the person represents a substantial danger of physical harm to others. ( 2970, 2972, subds. (a), (c).)

At criminal proceedings, the constitutional privilege against self-incrimination affords a defendant the absolute right not to testify. (Lopez, supra, 137 Cal.App.4th at p. 1106.) In contrast, a person who is the subject of a civil commitment proceeding mayas in all civil proceedingsassert the privilege against self-incrimination only by refusing to answer criminally incriminating questions. (Id. at pp. 1106-1107.) The person does not otherwise have the constitutional right to refuse to testify at the commitment proceeding. (Ibid.) However, this does not preclude the Legislature from creating a statutory right not to testify at civil commitment proceedings. Lopez contends his compelled testimony violated his constitutional right to equal protection because the Legislature has afforded the right not to testify to persons committed under other civil commitment schemes.

In his appeal from his recommitment in 2004, Division Two of this District rejected this same argument. (Lopez, supra, 137 Cal.App.4th at p. 1116.)^[3] In that earlier appeal, as in the present appeal, Lopez relied on People v.Haynie (2004)116 Cal.App.4th 1224 (Haynie) and In re Luis C. (2004) 116 Cal.App.4th 1397 (Luis) to support his argument. In the Haynie and Luis decisions, the Fifth District Court of Appeal interpreted two civil commitment schemes to provide the privilege not to testify at the commitment proceedings. In Lopez, the court acknowledged that equal protection principles required that all civilly committed persons be afforded the same fundamental rights. (Lopez, supra, 137 Cal.App.4th at p. 1109.) However, the Lopez court rejected the holdings in Haynie and Luis, concluding that the statutory schemes did not provide civil committees the right not to testify, and therefore Lopez did not experience any disparate treatment when the court admitted his testimony into evidence. (Lopez, supra, 137 Cal.App.4th at p. 1116.)

In Haynie, the relevant civil commitment statute (applicable to persons found not guilty by reason of insanity) states: "[T]he person . . . 'shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.' " (Haynie, supra, 116 Cal.App.4th at pp. 1227-1228;  1026.5, subd. (b)(7).) Similarly, in Luis, the civil commitment statute (applicable to persons committed to the Youth Authority) states the person shall be " 'entitled to all rights guaranteed under the federal and state constitutions in criminal proceedings.' " (Luis, supra, 116 Cal.App.4th at p. 1402; Welf. & Inst. Code,  1801.5.) The MDO statutory scheme (see  2972) contains no comparable provision; thus, Lopez's argument is premised on equal protection principles. (See Lopez, supra, 137 Cal.App.4th at p. 1109.)

After extensively analyzing the civil commitment statutes and relevant case law, the Lopez court concluded that the statutory language at issue in the Haynie and Luis cases was designed to extend due process rights afforded in criminal proceedings to the civil commitment proceedings, such as the rights to proof beyond a reasonable doubt and a unanimous jury, but was not designed to extend the absolute right not to testify. (Lopez, supra, 137 Cal.App.4th at p. 1113.) We need not evaluate the conflict between the Lopez and Haynie/Luis decisions regarding the meaning of the statutory language, because we agree with a second premise for Lopez's holdingi.e., that the right not to testify is not meaningful in civil commitment proceedings and is therefore inapplicable.

The courts in Lopez and Haynie both agreed that regardless of the meaning of the statutory language extending the constitutional rights afforded in criminal proceedings to civil commitment proceedings, the Legislature did not intend to "extend the 'protection of constitutional provisions which bear no relevant relationship'. . . [or] . . . ha[ve] no meaningful application" to the proceeding. (Haynie, supra, 116 Cal.App.4th at p. 1229; Lopez, supra, 137 Cal.App.4th at p. 1115; see also In re Anthony C. (2006) 138 Cal.App.4th 1493, 1511 [right afforded in criminal proceedings not applicable if it would render civil commitment scheme meaningless].) Haynie concluded that the right not to testify against oneself "is clearly and relevantly implicated when a person is called by the state to testify in a proceeding to recommit him or her even if what is said on the witness stand is not per se incriminating. By calling the person in its case-in-chief, the state is essentially saying that his or her testimony is necessary for the state to prove its case." (Haynie, supra, 116 Cal.App.4th at p. 1230.) In contrast, relying on the California Supreme Court's decision in Cramer v. Tyars (1979) 23 Cal.3d 131 (Cramer), Lopez concluded that the right not to testify was not relevant to civil commitment proceedings. (Lopez, supra, 137 Cal.App.4th at p. 1115.)

We agree with this conclusion in Lopez. In Cramer, our Supreme Court held there is no constitutional right not to testify at a civil commitment proceeding for a mentally impaired person. (Cramer, supra, 23 Cal.3d at p. 137.) Summarizing its holding, Cramer states: "In a criminal matter a defendant has an absolute right not to be called as a witness and not to testify. [Citation.] Further, in any proceeding, civil or criminal, a witness has the right to decline to answer questions which may tend to incriminate him in criminal activity. [Citation.] However, . . . notwithstanding these privileges, no witness has a privilege to refuse to reveal to the trier of fact his physical or mental characteristics where they are relevant to the issues under consideration." (Ibid., italics omitted.)

To support its conclusion, the court in Cramer noted that the right not to testify was designed to ensure that criminal proceedings remain accusatorial, not inquisitorial, and that the commitment proceeding before it was predominantly civil in nature. (Cramer, supra, 23 Cal.3d at pp. 137-138.)^[4] The Cramer court reasoned that as a matter of common sense the jury should be allowed to hear the potential civil committee's testimony to the extent it is not criminally incriminatory. (Id. at p. 139.) The court explained: "[W]hile appellant could not be questioned about matters that would tend to incriminate him, he was subject to call as a witness and could be required to respond to nonincriminatory questioning which may have revealed his mental condition to the jury, whose duty it was to determine whether he was mentally retarded. Reason and common sense suggest that it is appropriate under such circumstances that a jury be permitted fully to observe the person sought to be committed, and to hear him speak and respond in order that it may make an informed judgment as to the level of his mental and intellectual functioning. The receipt of such evidence may be analogized to the disclosure of physical as opposed to testimonial evidence and may in fact be the most reliable proof and probative indicator of the person's present mental condition." (Ibid., italics added.)

As reflected in Cramer's reasoning, at a civil commitment proceeding the jurors' ability to determine whether a person's mental disorder is sufficiently in remission to allow his or her safe release into society would be significantly impaired if they were not allowed to observe the person's demeanor and thought processes on the stand. (See also People v. Leonard (2000) 78 Cal.App.4th 776, 793 [allowing the People to question the civil committee "enhances the reliability of the outcome"].) Further, inquiry into a person's present mental condition is not akin to inquiry into whether the person has committed a crime. The courts have repeatedly recognized that, subject to the person's right to refuse to answer criminally inculpatory questions, the People may properly question a civil committee about his or her present mental condition without violating the privilege against self-incrimination. (See Cramer, supra, 23 Cal.3d at pp. 137, 139; People v. Merfeld (1997) 57 Cal.App.4th 1440, 1446-1447; People v. Leonard, supra, 78 Cal.App.4th at pp. 792-793; People v. Clark, supra, 82 Cal.App.4th at pp. 1081-1082.)

We conclude that because application of the absolute right not to testify at a civil commitment proceeding would undermine the jury's proper performance of its duty to evaluate the person's mental condition, and because the People's inquiry regarding mental condition does not pertain to criminal culpability, the absolute right not to testify has no meaningful application at civil commitment proceedings. Accordingly, this right should not be included among the unspecified rights the Legislature has generally extended to civil committees in the various civil commitment statutes.^[5]

Alternatively, we conclude that even if a statutory right not to testify applies to civil commitment trials, the admission of Lopez's testimony was harmless under any standard of review. (See Cramer, supra, 23 Cal.3d at p. 139 [applying harmless beyond a reasonable doubt standard to erroneous deprivation of civil committee's right to refuse to answer criminally incriminating questions]; People v. Williams (2003) 110 Cal.App.4th 1577, 1589-1590, 1592-1593 [applying reasonable probability of different outcome standard to violation of statutory right at civil commitment proceeding].) Even without Lopez's current and former testimony, the testimony of the two experts provided overwhelming evidence that Lopez meets the requirements of an MDO. These experts established that Lopez suffers from a severe mental illness that is not in remission, and that he persistently acts in an assaultive and threatening manner that would likely escalate into violence if he was released into the community.

Lopez's current and former testimony may have bolstered the People's case by corroborating that Lopez has a long history of assaultive and threatening behavior and that he lacks meaningful insight into his behavior. However, even if the jury had not heard this testimony, we have no doubt it would have found he qualified as an MDO. There is no evidence (other than Lopez's own testimony) contradicting the evidence presented by the experts that he suffers from a severe mental illness that is not in remission, and that he would pose a substantial danger if released into the community.Further, there is nothing in the record to suggest that had Lopez not testified, the jury would have discredited the People's experts or otherwise drawn inferences favorable to Lopez. Indeed, to the extent the record might support a finding that Lopez did not qualify as an MDO, this evidentiary support would likely be derived from the jury's assessment of his credibility while testifying. On this record, any error in admitting Lopez's testimony could not have prejudiced his case.

DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] Subsequent statutory references are to the Penal Code unless otherwise specified.

^[2] Lopez's reference to extra medication was to "PRN" medication, which is extra medication that the staff was authorized to administer when Lopez became agitated.

^[3] At the 2004 recommitment proceeding, the People called Lopez as a witness, but he refused to testify, invoking his right not to incriminate himself. (Lopez, supra, 137 Cal.App.4th. at p. 1104.) Over Lopez's objection, the court allowed the People to read his former testimony from the 2000 proceeding, and admitted the testimony into evidence. (Ibid.)

^[4] MDO proceedings have also been determined to be primarily civil in nature for purposes of evaluating the privilege against self-incrimination. (People v. Clark (2000) 82 Cal.App.4th 1072, 1080.)

^[5] It appears the People used Lopez's current and prior testimony to present the jury with a full picture of his past violent conduct. At trial, the court agreed with the defense that Lopez could refuse to answer questions that might criminally incriminate him. Lopez does not contend that he was forced to answer questions that could subject him to future criminal culpability. (See People v. Clark, supra, 82 Cal.App.4th at p. 1082.)