P. v. Marsik

Filed 6/6/06 P. v. Marsik CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A jury found Michael Marsik meets the criteria for a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.) The jury instructions were substantially in the language of the MDO statutes. Marsik contends he was denied due process because the trial court failed to instruct the jury an MDO commitment requires a finding that a person's mental disorder causes him serious difficulty controlling his dangerous behavior. We conclude instructions in the words of the statute are adequate. We also conclude that if such instructions are not adequate, any error was harmless beyond a reasonable doubt. We affirm.

FACTS

In December of 2003, Marsik pled guilty to one count of making a criminal threat. Marsik was breaking windows at an apartment building when a security guard ordered him to stop. Marsik threatened to kill the security guard. Prior to Marsik's release from prison, the Board of Prison terms determined he should be confined as an MDO. Marsik challenged that determination, and a jury trial was held in February of 2005.

Michael Rivard, Marsik's treating psychiatrist, testified at trial. Rivard opined that Marsik suffers from severe mental disorders, including a mood disorder not otherwise specified (NOS), a psychotic disorder NOS, and a cognitive disorder NOS. The disorders are designated "not otherwise specified" because Marsik suffered a severe head injury. The disorders were either the cause of or an aggravating factor in the underlying offense. The disorders are not in remission, and cannot be kept in remission without treatment.

Rivard also testified Marsik presents a substantial danger of physical harm to others by reason of his severe mental disorders. Marsik is not in remission, and his impaired judgment slows his progress in treatment. His disorders impair his abilities relating to planning and impulsiveness. He does not want to take all of the recommended medications. Further, Marsik has an extensive history of polysubstance dependence. Small amounts of alcohol increase the risk factor for impulsive behavior. Marsik's paranoid feelings are a major risk factor for future violence. He has a history of violent behavior beginning in adolescence. Rivard believes Marsik meets all the criteria for an MDO.

Michael Selby, a psychologist, interviewed Marsik and reviewed the reports of other evaluators. Selby agreed that Marsik suffers from severe mental disorders. Selby opined Marsik suffers from depression and paranoia. Marsik complained of auditory hallucinations. His head injury causes him significant problems with memory, planning, judgment and the ability to control his emotions. Selby believes that Marsik's mental disorder was a cause or aggravating factor in the commission of the underlying offense.

Selby opined that as a result of Marsik's mental disorder, he presents a substantial danger of physical harm to others. That Marsik has failed on probation numerous times, shows he cannot cope with high risk situations in the community. Marsik has an extensive history of criminal physical violence. Past behavior is a major factor in determining potential for physical violence. Selby believes Marsik meets all the requirements for an MDO.

Defense

George Grosso, a psychologist, testified that Marsik did not show symptoms of a severe mental disorder. Grosso opined Marsik did not meet the criteria for an MDO.

DISCUSSION

Marsik contends the trial court erred in failing to instruct the jury that an MDO commitment requires a finding that a person's mental disorder cause him serious difficulty controlling his dangerous behavior.

Here the trial court instructed the jury in the language of Penal Code section 2962 that to find a person qualified as an MDO the jury must find, among other factors, "[t]he person has a severe mental disorder;" and "[b]y reason of [the person's] severe mental disorder he represents a substantial danger of physical harm to others."

In Kansas v. Hendricks (1997) 521 U.S. 346, 358, 360, the United States Supreme Court stated that a finding of dangerousness alone is not sufficient to justify indefinite involuntary civil commitment. To justify such commitment, dangerousness must be coupled with some additional factor such as mental illness or abnormality. (Ibid.) Thus in Kansas v. Crane (2002) 534 U.S. 407, 413, the Court held that to be civilly committed a person must as a result of mental illness have serious difficulty controlling his dangerous behavior.

In People v. Williams (2003) 31 Cal.4th 757 (Williams), our Supreme Court considered this standard as it applies to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The SVPA applies to a person who has "a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Id. at § 6600, subd. (a)(1).) Our Supreme Court concluded that a jury instruction in the words of the statute was constitutionally adequate, even though the statutory language does not expressly require a finding that a mental disorder caused difficulty in controlling behavior. The Court stated: "[A] commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling one's criminal sexual violence . . . . Accordingly separate instructions or findings on that issue are not constitutionally required, and no error arose from the court's failure to give such instructions in defendant's trial." (Williams, supra, at p. 777, fns. omitted.)

In People v. Putnam (2004) 115 Cal.App.4th 575, the Court of Appeal, relying on Williams, concluded that instructions given in the language of the MDO statute were constitutionally adequate to support finding defendant an MDO.

Finally, in In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), the case on which Marsik relies, our Supreme Court considered a civil extended detention scheme for persons discharged from a Youth Authority commitment. (Welf. & Inst. Code, § 1800 et seq.) The scheme requires the trier of fact to answer the statutory question, "Is the person physically dangerous to the public because of his or her mental or physical deficiency, disorder or abnormality? (Id. at § 1801.5.) At the time Howard N. was decided, the statutory scheme did not expressly require the trier of fact to find that the deficiency, disorder, or abnormality causes the person to have serious difficulty controlling his or her dangerous behavior.^[1] The court determined that the statutory scheme must be construed to contain such language to preserve its constitutionality. (Howard N., supra, at p. 135.) The court did not discuss, however, whether an instruction given in the statutory language was constitutionally adequate. Instead, the court considered whether the absence of an express instruction on the defendant's serious difficulty in controlling his behavior was harmless beyond a reasonable doubt. (Id. at p. 137.) The court determined that under the facts of the case, the absence of the instruction was not harmless beyond a reasonable doubt. In so determining, the court distinguished Williams on its facts.

Because Howard N. did not consider whether an instruction in the statutory language of the detention scheme is constitutionally adequate, it is not authority on that question. (See People v. Ceballos (1974) 12 Cal.3d 470, 481 [A case is not authority for propositions not considered.].) Nor do we read Howard N. as implicitly overruling Williams or Putnam, both of which determined that an instruction in statutory language is constitutionally adequate.

Here the instructions require more than a finding that Marsik represents a substantial danger of physical harm to others. The instructions, echoing statutory language, told the jury it must find, "[b]y reason of the Petitioner's severe mental disorder he represents a substantial danger of physical harm to others." We cannot think of a circumstance in which a jury would make such a finding, and not also find that by reason of a mental disorder petitioner has serious difficulty controlling his dangerous behavior. Invariably, when a person is found to present a substantial danger of physical harm to others by reason of his mental disorder, it is because his mental disorder causes him serious difficulty controlling his behavior. As in Williams and Putnam, we conclude the instructions given here in statutory language are constitutionally adequate.

In any event, if there was error, it was harmless beyond a reasonable doubt. The jury clearly rejected Grosso's testimony that Marsik did not show symptoms of a severe mental disorder. Under the instructions as given, the jury was required to find Marsik suffered from a severe mental disorder to conclude he meets the criteria for an MDO.

Rivard testified Marsik's mental disorders cause impaired judgment and impulsiveness. Selby agreed that Marsik's disorders cause significant problems with judgment and the ability to control his emotions. Both opined that Marsik's mental disorder was a cause or aggravating factor in the commission of the underlying offense. Both also opined that Marsik presents a substantial danger of physical harm to others by reason of his mental disorders. The jury's verdict shows they believed Rivard and Selby. There is no reasonable doubt the jury would have found that Marsik's mental disorder causes him serious difficulty controlling his behavior had the jury been instructed on the question.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

______________________________

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Victoria B. Wilson Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Such language was added to Welfare and Institutions Code section 1801.5 effective July 21, 2005. (Stats. 2005, ch. 110, § 4.)