P. v. Lowe
Filed 10/17/13 P. v. Lowe CA1/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL WAYNE
LOWE,
Defendant and Appellant.
A134498
(Alameda County
Super. Ct. No. 03056070)
introduction
Appellant
challenges a court order placing him under a Murphy conservatorship
the basis of a jury’s findings that he is gravely disabled as a result of a
mental disorder, and poses a substantial danger of
he has a disabling mental disorder, but argues the jury’s verdict on his
dangerousness must be reversed due to procedural errors at trial.
Specifically,
appellant argues the trial court: (1) abused its discretion by permitting
a deputy sheriff to accompany appellant to the witness stand;
(2) erroneously admitted into evidence portions of appellant’s hospital
file that did not qualify as a business record and were prejudicial to
appellant; and (3) violated appellant’s constitutional rights by ruling
that appellant could be compelled to testify at trial, and could be questioned
about the incident that gave rise to the criminal charges on which appellant
was found incompetent to stand trial. We conclude that the jury’s verdict on
dangerousness was not the product of any prejudicial error, and therefore
affirm the conservatorship order.
facts and procedural background
In March
2008, appellant entered the apartment of a woman he did not know, through an
unlocked back door, and approached the woman closely. Appellant spoke to the woman, but she did not
understand what he was saying. The woman
offered to give appellant money, and asked him not to hurt her. She managed to lure appellant out the front
door, and then ran back into her apartment and locked the doors, just in time
to forestall appellant’s attempt to reenter through the back door. When the woman looked out her window to see
if appellant was still there, she saw him standing in front of her building
blowing kisses in her direction.
When police
officers arrived on the scene, two men were struggling with appellant in front
of the woman’s building. Appellant was
wearing old, dirty clothing, was unkempt, and had a strong body odor. He was behaving aggressively and using a lot
of profanity, and had a crack pipe in his hand.
With some difficulty, the officers handcuffed appellant and placed him
in the back seat of their patrol car, where he continued to yell, curse, and
kick. The officer heard appellant say,
“I am going to get some pussy anyway.â€
the officers spent with appellant prior to taking him to jail, he continued to
exhibit anger and hostility.
Appellant
apparently spent the next six months in jail awaiting trial on the charges stemming
from this incident (the 2008 incident), but ultimately was determined to be
incompetent to stand trial. He was sent to Napa State Hospital for
treatment in late 2008. Appellant had
previously been sent to Atascadero State Hospital, in 1989 and 1992, due to
findings that he was incompetent to stand trial on other charges.
By July 6,
2011, appellant was still suffering from
that further treatment would not render him competent to stand trial. Accordingly, the director of the Alameda
County Criminal Justice Mental Health Program (the Director) filed a petition
to place appellant under a Murphy conservatorship under Welfare and
Institutions Code section 5008, subdivision (h)(1)(B) (section
5008(h)(1)(B).
The jury
trial on the conservatorship petition began on November 30, 2011. The Director’s principal witness at the trial
was Dr. Michael Cosgrove, who was appellant’s treating psychiatrist from August
2009 through August 2011. Cosgrove
testified both as a treating physician and as an expert in the area of
psychiatry.
When
Cosgrove took over responsibility for appellant’s mental health treatment,
appellant had been diagnosed with undifferentiated schizophrenia (which
Cosgrove also called disorganized schizophrenia). Cosgrove, who had treated many schizophrenics
during his career, concurred in this diagnosis.
Appellant’s medical history indicated that he also suffered from a
history of cocaine and alcohol abuse, having started to use drugs at the age of
13, and had borderline intellectual functioning and
based on his history of criminal charges, including juvenile delinquency. Appellant’s IQ was in the high 70’s to low
80’s, which placed him below the normal range, though not quite low enough to
qualify as mild retardation. Due to
appellant’s combination of low intellectual functioning and schizophrenia, as
well as some possible head trauma, appellant suffered from cognitive deficits.
At the time
Cosgrove began treating him, appellant was exhibiting delusions, and his
behavior indicated that he was hallucinating.
Appellant was taking an antipsychotic drug, as well as medications for
his high blood pressure. During 2009,
appellant began to refuse to take his medication, explaining that he felt fine
and did not need it. Cosgrove was able to
persuade appellant to resume taking his blood pressure medication, and a court
order was obtained so that the treatment staff could require appellant to take
his antipsychotic. Also, appellant’s
antipsychotic medication was changed from Haldol to risperidone, which did not
have the same debilitating side effects.
More recently, appellant had begun taking a different antipsychotic
drug, Geodon. On this drug, appellant’s
condition had improved somewhat, and his delusions and symptoms of
hallucination had diminished.
While in
the structured hospital environment, appellant behaved politely, was not angry
or threatening or dangerous, and exhibited good personal hygiene. Even after appellant ceased being delusional,
however, his speech remained disorganized, jumping from one topic to another,
and he retained some naïve or fantastic beliefs, including that his criminal
cases were not serious or that he would be found “100 percent†not guilty. Appellant consistently denied that he was
mentally ill or had substance abuse problems.
Appellant did not believe he needed medication and had no insight into
his condition.
Cosgrove
opined that as of August 2011, appellant was stabilized at his baseline level
of functioning, and was not likely to improve further. Cosgrove did not believe appellant was likely
to become competent to stand trial in the foreseeable future. Appellant still did not understand the
charges against him.
Moreover,
Cosgrove believed that despite appellant’s good behavior in a structured
environment like the hospital, it was highly likely that if appellant were
released into an unstructured environment, he would stop taking his medication,
resume taking illegal drugs, “decompensate,†and exhibit “repulsive and
dangerous behaviors.†Appellant’s
history of criminal behavior, including numerous arrests, indicated that he
could potentially become violent and reoffend if left without supervision.
Due to the
combination of appellant’s schizophrenia with his history of substance abuse,
his cognitive problems, his antisocial personality disorder, and his poor
impulse control, Cosgrove believed appellant could not care for himself without
assistance from a third party. Appellant
did not have insight into constructive ways to get his needs met, and had only
a minimal ability to reflect on his own behavior. He could not live in the community without
institutional support in the form of someone to supervise him, give him his
medication, and arrange for his financial support and medical care. In the past, appellant had been able to get
support from his family, but since his father’s death, his mother had become
less supportive, and appellant had no network of friends or substance abuse
program sponsor to assist him. Thus,
Cosgrove recommended that appellant be placed under a conservatorship.
Robin
Hemenway, a psychologist at Napa State Hospital, testified at appellant’s trial
both as an expert on psychology, and as a member of the staff at the hospital
who treat persons such as appellant who have been found incompetent to stand
trial. As of the date of appellant’s
trial, Hemenway had worked with him for about two and one-half years.
When
Hemenway first started working with appellant, he was polite and cooperative,
but also hyperverbal, delusional, paranoid, and difficult to understand because
of his disorganizational speech.
Appellant did not understand why he was in the hospital, or what he
needed to accomplish in order to be discharged.
Later, appellant stopped taking his medication because he did not
believe he needed it and did not like the side effects. Without his medication, appellant became
increasingly paranoid, angry, and irrational.
As a result, an order was obtained in May 2009 authorizing the
involuntary administration of appellant’s antipsychotic medication; after that,
he began taking it again. When he
resumed taking the medication, appellant became less hostile and argumentative,
and his thinking was somewhat less disorganized.
Hemenway
tested appellant’s cognitive functioning and academic skills. He tested at the fourth-grade level in
reading, and had an IQ of approximately 80.
This was low average to average for schizophrenics, and extremely low
for non-schizophrenics.
Appellant
was included in group meetings with hospital patients who were attempting to
regain competency, but he only attended occasionally, and did not participate
actively. Hemenway also met with
appellant individually once a month to discuss general information about the
legal system and judicial proceedings.
In October 2010, the hospital staff concluded that appellant could not
be restored to competency, and he was removed from the competency groups. Hemenway met with appellant even after that,
to see if anything had changed, but she did not observe any improvement.
In April
2011, the Napa State Hospital staff sent a letter to the county guardian’s
office indicating that appellant did not represent a danger to others, and
therefore did not meet the criteria for a Murphy conservatorship. Hemenway explained, however, that this
conclusion was based on a misunderstanding on the part of the hospital
staff. Appellant did not present a high
risk of physical violence while in the controlled environment of the hospital,
where he was subject to a court order requiring him to take his antipsychotic
medication, and he had no access to illegal drugs. However, appellant did not have insight into
his mental illness or his substance abuse.
Thus, if appellant were released from his controlled environment,
Hemenway was of the opinion that he would stop taking his antipsychotic
medication and resume abusing illegal drugs.
Under those circumstances, appellant’s condition would deteriorate.
Moreover,
appellant had no history of voluntarily seeking follow-up treatment when he was
released from a structured environment.
Thus, Hemenway did not believe that appellant would recognize that he
was decompensating and needed help. She
also noted that in one instance in the past, appellant had committed a robbery
within hours of his release from prison.
Accordingly, Hemenway concurred with Cosgrove that appellant should be
placed under a Murphy conservatorship.
Appellant
was called to testify by the Director.
Appellant testified he understood that the reason for the court
proceeding was that he was mentally incompetent to stand trial on the charges
stemming from the 2008 incident. He
acknowledged that the Napa State Hospital staff believed he did not understand
the nature of the charges or how the court system works.
Appellant
denied having a mental illness. He knew
he had been diagnosed with schizophrenia, but believed the diagnosis was
incorrect, because he did not hear voices or see hallucinations. He believed that the psychiatric medication
he was given was not for schizophrenia, but to help him think better, and he
did not think he needed anything to help him think better. Appellant explained that he stopped taking
his medication, despite the doctors’ efforts to persuade him to keep taking it,
because of its side effects, which included making him think more slowly. He did not believe the antipsychotic
medication helped him in any way.
name="_ftnref3" title="">[3] Appellant stated that if he left the
hospital, he would not seek treatment for schizophrenia.
Appellant
did not like taking medication in the form of capsules because he did not
believe the capsules dissolved properly, based on his observation of what
happened when he dropped them in water.
However, he liked getting injections even less, so he agreed to take
pills after the hospital obtained a court order requiring that he take his
medication, and the doctor told him he would be given injections if he did not
take the pills. He would have liked to
stop taking his medication, but the hospital staff were watching him to make
sure he took it. He was continuing to
take his medication while in the custody of the Alameda County Sheriff during
the trial.
Appellant
acknowledged that when he was in school, his comprehension was not as good as
that of other students. He also admitted
using marijuana and cocaine, starting in his teens. At the age of 17, appellant started selling
cocaine, which led to his father kicking him out of the house. Nonetheless, appellant did not believe he had
a problem with illegal narcotics, and did not attend
Hospital because he did not think he needed drug treatment. Appellant also drank alcohol, but only because
he liked the flavor. Appellant said that
if he were released from the hospital, he would not resume using cocaine.
When asked
about the 2008 incident, appellant explained that he sat down on the porch of
the house to smoke crack, and then went inside because the door was open and
the blinds were drawn, so he thought the house was vacant and would be “a
peaceable place to rest.†Then he saw a
woman in the house, and he thought that she was inviting him inside because she
did not want him smoking crack on the porch.
He did not touch the woman, and left when she told him to do so. Appellant knew he had to be careful with
“girls†because he was a registered sex offender. He denied trying to reenter the house after
he left, and said that two men got out of a car and attacked him as he was
walking out the door.
Appellant
understood that he had been charged with burglary as a result of the 2008
incident, but thought that burglary meant breaking someone’s window, going into
their house, and stealing their stuff.
He also understood he was charged with false imprisonment. He thought this referred to his fight with
the two men who attacked him, but he remembered that a woman at the hospital
had tried to explain to him that it did not mean this, and instead involved
holding someone against their will.
Appellant’s
understanding regarding why he became a registered sex offender was that it
resulted from an encounter with a woman he believed was a prostitute. At the time, appellant was under the
influence of alcohol and cocaine. He was
convicted of kidnapping the woman, but denied that he had done so, claiming the
woman made up the charge because she was jealous of how much money he had. Appellant took a “deal†on the charges, on
his father’s advice, in order to avoid a lengthy prison term.
Appellant
was also asked about other aspects of his criminal
record. He recalled going to prison
for robbery due to an incident at a gas station in 1989. Appellant was panhandling there, by asking
people to pay him to pump their gas or clean their windows. When a woman at the gas station told
appellant to get away, using a racially derogatory epithet, appellant got angry
and snatched the woman’s purse. He
denied hitting her or causing her to fall down.
Appellant also recalled being arrested and convicted after leaving a
restaurant without paying for his meal, but contended that the conviction was
not for robbery, but for defrauding an innkeeper. Appellant also explained that it was not
appellant, but his companion, who walked out of the restaurant without paying.
If
appellant were released from the hospital, he planned to live with his mother,
although he understood that she was getting old, and had at one time gotten a
restraining order against him. He
indicated that he might also live on his sister’s patio, with a portable toilet
and refrigerator. He planned to obtain
money by reapplying for disability, and to could get his medication by taking
the bus to “John George†(presumably a reference to the Alameda County mental
health facility in Oakland). At a
different point in his testimony, however, appellant stated that there was a
time when he was taking pills that were provided at a facility near “John
George,†but he stopped taking the pills because the address he was given was
incorrect.
On December
8, 2011, the jury returned a verdict finding that appellant was gravely
disabled as the result of a mental disorder.
On the same date, the trial court entered an order appointing a
conservator for appellant for a period of one year. Letters of conservatorship were issued by the
court on December 16, 2011. Appellant
filed a timely notice of appeal from the order appointing a conservator.
III.
Discussion
A.
Governing Law
Where a
criminal defendant is found incompetent to stand trial, and three years of
treatment have not restored the defendant’s competence, proceedings may be
instituted to determine whether the defendant is “gravely disabled†as defined
in section 5008(h)(1)(B). That
statute provides that a person is gravely disabled if the person “has been
found mentally incompetent under Section 1370 of the Penal Code and all of
the following facts exist: [¶] (i) The indictment or information
pending against the defendant at the time of commitment charges a felony
involving death, great bodily harm, or a serious threat to the physical
well-being of another person. [¶] (ii) The indictment or information
has not been dismissed. [¶] (iii) As a result of mental disorder, the
person is unable to understand the nature and purpose of the proceedings taken
against him or her and to assist counsel in the conduct of his or her defense
in a rational manner.â€
Under the
case law, “in order to impose a Murphy conservatorship the trial court must
find, in addition to the explicit statutory elements, that ‘by reason of a
mental disease, defect, or disorder, the person represents a substantial danger
of physical harm to others.’
[Citation.]†(
trial, and the jury must find beyond a reasonable doubt that the defendant has
a mental condition that renders the defendant dangerous. (Hofferber,
supra, at pp. 178-179.)
If the jury
finds that all of the statutory criteria are met and that the defendant’s
condition renders him dangerous, the defendant may be placed under a Murphy
conservatorship for a period of one year.
In the present case, the parties stipulated that appellant had been
found mentally incompetent under Penal Code section 1370 to stand trial
for the charges arising out of the 2008 incident; that at the time of that
finding, appellant was charged with a felony meeting the statutory criteria;
and that the information charging that felony was still pending. In addition, the evidence of appellant’s
continued incompetency was uncontroverted, and appellant does not challenge
that aspect of the verdict on appeal.
Thus, the only remaining contested issue is whether appellant presented
a substantial danger of physical harm to others as a result of a mental
disorder.
B.
Proximity of Deputy Sheriff During Testimony
Prior to
his trial, appellant filed a motion requesting that he be permitted to testify
without having a deputy sheriff posted next to him at the witness stand. The trial court denied the request,
explaining that the Alameda County Sheriff’s Department (the Sheriff) had
placed appellant in its “red†classification, and the Sheriff’s policy required
that a deputy sheriff sit at the witness stand during any testimony given by
persons in that classification. The
court also noted that appellant would be within four feet of the jury and five
or six feet of the judge; that appellant was not shackled; and that the
Sheriff’s policy required two deputies to accompany an unshackled
defendant. The court also denied
appellant’s alternative request that a deputy sheriff be stationed at the witness
stand during the testimony of all witnesses,
on the ground that it lacked a “foundational basis.†Appellant contends these rulings were
error. We review the trial court’s
rulings for abuse of discretion. (
733, 736 (Hernandez).)
In
(Stevens), the California Supreme
Court “held that the stationing of a courtroom deputy next to a testifying
defendant is not an inherently prejudicial practice that must be justified by a
showing of manifest need. [The court]
explained, however, that the trial court must exercise its own discretion and
determine on a case-by-case basis whether such heightened security is
appropriate. [Citation.]†(Hernandez,
supra, 51 Cal.4th at p. 736,
citing Stevens, supra, at p. 642.) In
analysis in Stevens, holding that
while “manifest need†need not be demonstrated in order for a trial court to
station a deputy sheriff at the witness stand during the defendant’s testimony,
the trial court nonetheless must “make a case-specific decision†rather than
“deferr[ing] to a general policy.†(
The court concluded, however, that in that particular case, the error
was harmless under People v. Watson
(1956) 46 Cal.2d 818 (Watson). (Hernandez,
supra, at pp. 736, 741-745.)
Here, the
trial court did not simply defer to a general policy, as occurred in
explained after the fact that a deputy had been stationed at the witness stand
simply because that had been done “ ‘in every trial I’ve ever
done.’ †(Hernandez, supra, 51
Cal.4th at p. 743; see also id.
at pp. 743-744 [trial court’s failure to articulate specific reasons for
deputy’s presence until after the fact supported conclusion that it was ordered
as a matter of routine].) Rather, the
trial court in the present case expressly identified several relevant,
individualized facts as the basis for its ruling: appellant’s unshackled
status; the configuration of the courtroom; and appellant’s membership in a specific
class of prisoners deemed by the Sheriff to warrant the presence of a deputy
sheriff at the witness stand during their testimony. Accordingly, we are not convinced that the
trial court abused its discretion in denying appellant’s request to take the
witness stand unaccompanied.
Nor do we
perceive any abuse of discretion in the denial of appellant’s alternative
request that all witnesses be accompanied by a deputy sheriff during their
testimony. Accepting appellant’s
argument in this regard would place a burden on local law enforcement that is
not warranted by any need for courtroom security, but would only serve the
interest of criminal defendants in mitigating the prejudice caused by an
otherwise justifiable security measure.
As our
Supreme Court noted in Stevens and
emphasized again in Hernandez, the
appropriate remedy for any such prejudice is a cautionary instruction telling
the jury to “disregard security measures related to the defendant’s custodial
status.†(Hernandez, supra, 51
Cal.4th at p. 744, fn. 5, citing Stevens,
supra, 47 Cal.4th at
p. 642.) Here, the trial court gave
just such an instruction immediately before appellant testified, using language
to which both counsel agreed. Appellant’s
trial counsel did not request that the instruction be repeated prior to the
start of the jury’s deliberations.
Nonetheless, the trial court’s closing instructions included a general
admonition that the jury must not be influenced in any way by the fact that appellant
was temporarily in the custody of the Sheriff during the trial. These instructions adequately fulfilled the
court’s obligation to mitigate any prejudice to appellant from his
accompaniment by a deputy sheriff during his testimony. Accordingly, we find no reversible error in
this aspect of the proceedings at appellant’s trial.
C.
Admission of Physicians’ Progress Notes as Business Record
During
Cosgrove’s testimony, in an effort to refresh his recollection, counsel for the
Director showed him a “PPN [Physicians’ Progress Notes] Monthly Summary†(PPN
Summary) prepared in March 2009 by Napa State Hospital psychiatrist Debbie
McKinney, who did not testify at trial.
Cosgrove identified the PPN Summary as a hospital record, but indicated
that he had not reviewed it in preparing for his testimony.
The
Director later offered the PPN Summary into evidence. Appellant’s trial counsel objected on hearsay
grounds to the admission of the medical opinions reflected in the PPN Summary,
but the trial court overruled the objection.
document itself was admissible as a properly authenticated writing made in the
regular course of business. (See Evid.
Code, § 1271, subds. (a), (c); see also People v. Nelson (2012) 209 Cal.App.4th 698, 710 [“ ‘Hospital
. . . records, if properly authenticated, fall within the umbrella of
the business record exception’. . .â€].) He argues, however, that portions of the
nonetheless inadmissible.
Appellant
challenges the admission of those portions of the PPN Summary that were not
contemporaneous notes of McKinney’s personal observations, but rather reflected
either McKinney’s opinions, or facts as to which it is evident that McKinney
did not have personal knowledge. As to
some of the information in the latter category, such as appellant’s age,
marital status, psychiatric history, and legal status, appellant acknowledges
that its admission was “not particularly prejudicial.†As to other parts of the PPN Summary,
however, appellant argues that they were not only inadmissible, but also
prejudicial.
Specifically,
appellant contends that the admission into evidence of the following portions
of the PPN Summary constituted prejudicial error: (1) the factual
statement that appellant had been refusing his antipsychotic medication for two
weeks; (2) the opinion that as a result of that refusal, appellant’s
“mental functioning [was] deteriorating with increasing paranoia†and appellant
had been “increasingly growing paranoid and oppositionalâ€; (3) the opinion
that appellant was “considered to be at moderate risk for assault,†and the
risk had recently increased because “without medications, [appellant] has been
assaultive and violent in the pastâ€; and (4) the opinion that appellant’s
symptoms included “disorganized thinking, tangential thinking, alcohol abuse
and no insight into his mental illness.â€
In arguing
that these statements were inadmissible even though they were included in a
business record, appellant relies on People
v. Reyes (1974) 12 Cal.3d 486 (Reyes). In that case, the defendant was charged with
murdering a man who had undergone psychiatric treatment 20 years earlier. The defendant sought to introduce a
psychiatric report diagnosing the victim as suffering from alcoholism and
sexual psychopathy, in order to bolster his defense that the killing resulted
from the victim’s making a homosexual advance toward the defendant, who was
under the influence of alcohol and drugs at the time. (See id.
at pp. 494-496, 502-503.) The trial
court excluded the evidence, and the California Supreme Court affirmed. The court held that “the report did not
satisfy the requirements of Evidence Code section 1271 that the record be
‘of an act, condition or event,’ †because it expressed the diagnostic
opinion of the psychiatrist who wrote the report. (Id.
at p. 503.)
On appeal,
the Director argues that the PPN Summary was properly established to be a
business record—a point appellant does not dispute—but does not address
appellant’s contention, based on Reyes,
supra, 12 Cal.3d 486, that certain
portions of it nonetheless should have been excluded as hearsay. We therefore proceed to consider the
Director’s alternative argument that even if the admission of the challenged
portions of the PPN Summary was erroneous, it was not prejudicial. We review this issue under the standard
articulated in Watson,
appellant demonstrates that it is “reasonably probable that a result more
favorable to [appellant] would have been reached in the absence of the
error.†(Ibid.)
As the
Director points out, the passages in the PPN Summary to which appellant objects
were largely duplicative of other evidence.
Cosgrove testified that during his own work with appellant, the latter
repeatedly denied suffering from any mental illness. Cosgrove also testified that while he was
treating appellant, appellant was subject to a court order requiring him to
take his psychotropic medication.
Most
significantly, even though Cosgrove did not rely on the PPN Summary in arriving
at his opinions, his opinion regarding appellant’s dangerousness was consistent
with the views expressed in that document.
Cosgrove acknowledged that appellant was not violent when he was “in a
structured environment, with the proper medications and no [illicit]
drugs.†Cosgrove opined, however, that
“when [appellant] is released, not taking his medication and possibly using
drugs, he has done some very repulsive and dangerous behaviors.†He explained that given appellant’s mental
illness, together with his history of drug abuse and violent behavior, his risk
of becoming dangerous “increase[s] dramatically†outside a structured
environment. He also noted that
appellant denied his need for substance abuse treatment, and rejected the
suggestion that his use of drugs or alcohol had played a role in his history of
getting “in trouble.â€
Cosgrove
also testified that appellant “still considers himself not mentally ill,†and
opined that because appellant “doesn’t have any insight into his condition,†he
would be likely not to take his medication.
Noting that appellant had been “institutionalized and arrested numerous
times over the last 30 years,†Cosgrove testified that appellant still needed
medication education and relapse prevention training, because otherwise,
appellant would fail to take his medication and use recreational drugs.
The
challenged portions of the PPN Summary were also consistent with Hemenway’s
testimony that when she first began treating appellant, he was only taking his
psychiatric medication intermittently, and that he later refused to take it
because it gave him side effects and he did not believe he needed it. Hemenway also testified that appellant became
more paranoid, agitated, and hostile when he was not on his medication, to the
point where she terminated conversations with him because she did not know how
much he would escalate. Like Cosgrove,
Hemenway testified that appellant lacked insight into his substance abuse and
mental illness, and that outside the structured hospital environment, appellant
was likely to stop taking his medication, resume his substance abuse,
deteriorate, and resume the criminal behavior in which he had repeatedly
engaged in the past.
In light of
the testimony of Cosgrove and Hemenway summarized above, and the record as a
whole, it is not reasonably probable that excluding the challenged portions of
the PPN Summary from evidence would have resulted in a more favorable trial
outcome for appellant. Accordingly, any
error in admitting this evidence is not grounds for reversal.
D.
Requiring Appellant to Testify
Prior to
the trial on the Murphy conservatorship, the trial judge denied appellant’s
request to preclude the Director from calling him as a witness. Just before appellant testified, he moved to
preclude the Director from asking appellant questions that could reveal
information that could be used as evidence against him in a trial on the
charges arising from the 2008 incident. The
trial judge denied this motion also, opining that appellant’s answers to any
questions posed to him at the trial on the Murphy conservatorship could not be
used against him, even for impeachment, in any future criminal
prosecution. Appellant argues that both
of the trial court’s rulings on this issue were error.
As the
trial court recognized, the law on this question is unsettled. In arguing that Fifth Amendment privileges do
not apply, the Director relies on cases arising from proceedings for the civil
commitment of persons who are mentally ill or developmentally disabled (e.g.,
374-375; Conservatorship of Baber
(1984) 153 Cal.App.3d 542, 550; Cramer v.
Tyars (1979) 23 Cal.3d 131, 137), or the continued confinement of mentally
ill persons after the completion of a criminal sentence (e.g.,
1440, 1443-1447; People v. Lopez
(2006) 137 Cal.App.4th 1099; but see People
v. Haynie (2004) 116 Cal.App.4th 1224, 1228-1230 [criminal defendant found
not guilty by reason of insanity has statutory right under Pen. Code,
§ 1026.5, subd. (b)(7), not to testify in proceedings for extension
of commitment to state hospital]).
name="_ftnref7" title="">[7]
Appellant
argues, however, that such cases are distinguishable from cases involving
Murphy conservatorships. By definition,
at the time of trial on a Murphy conservatorship petition, serious criminal
charges remain pending against the putative conservatee. Thus, appellant contends the putative
conservatee in a Murphy conservatorship proceeding has a greater interest than
other persons subject to civil commitment in the right not to be compelled to
give testimony that may involve self-incriminating statements. In that regard, a Murphy conservatee is more
analogous to a criminal defendant whose competency to stand trial is being
examined under Penal Code section 1368.
In the
present case, the Director’s trial counsel, a deputy district attorney,
declined to agree to grant appellant immunity against the use of his testimony
in any future criminal proceedings, but took the position that the appellant
enjoyed such immunity as a matter of law.
(See, e.g., People v. Pokovich
(2006) 39 Cal.4th 1240, 1253 [criminal defendant’s statements made during
court-initiated mental competency examination cannot be used against defendant
at trial, even for impeachment].) The
trial court resolved the issue by ruling that appellant could be called to
testify, and could be questioned about the 2008 incident, but left open for
future proceedings the question whether anything appellant said during his
testimony could be used against him (at all, or for impeachment only) if the
underlying criminal charges ever came to trial.
In our
view, the trial court proceeded correctly.
In order to compel appellant to testify and answer questions about the
2008 incident, it was not necessary for the trial court to determine whether
appellant’s testimony may be used against him in future criminal
proceedings. If that circumstance should
occur in the future, the court in which the future criminal proceedings are
tried will have the opportunity to review the current record—including the
deputy district attorney’s express representations in the present case that
appellant’s testimony would be subject to use immunity as a matter of
law—before making a ruling. Until such a
ruling is made, and unless it is adverse to appellant, he will not have
suffered any prejudice from having been required to testify in the present
proceeding, which is civil and non-punitive in nature.
We also
reject appellant’s contention that he was prejudiced on the merits of the
issues presented by the Murphy conservatorship, because it was clear from his
own testimony that he was mentally ill.
We note that this issue was not disputed during the trial. The testimony of the expert witnesses on
appellant’s mental status was unimpeached and uncontroverted, and it is clear
from the record, beyond a reasonable doubt, that the jury would have reached
the same verdict even if appellant had not testified.
Moreover,
his testimony relating to the circumstances of the 2008 incident which gave
rise to these proceedings did not relate to any contested issue in the Murphy
conservatorship trial. Even if it did,
it too was cumulative to other evidence properly admitted concerning the
incident. Thus, we conclude that if
appellant’s right not to incriminate himself was violated and the admission of
his testimony was error, it was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 24; see also People v. Earp (1999) 20 Cal.4th 826, 856-858; People v. Hardy (1992) 2 Cal.4th 86, 157.)
Disposition
The order
from which this appeal was taken is AFFIRMED.
_________________________
RUVOLO,
P. J.
We concur:
_________________________
RIVERA, J.
_________________________
HUMES, J.
Institutions Code section 5008, subdivision (h)(1)(B)] is commonly
referred to as a ‘Murphy conservatorship’ after the legislator who sponsored
the amendment that added the definition to the [Lanterman-Petris-Short] Act in
1974. [Citation.]†(People
v. Karriker (2007) 149 Cal.App.4th 763, 775 (Karriker).)
having blown kisses at the woman.
