P. v. Offerman

Filed 7/17/07 P. v. Offerman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Donald Offerman appeals from the judgment, by jury, extending his commitment to Atascadero State Hospital (ASH) as a mentally disordered offender (MDO) within the meaning of Penal Code section 2970.[1] He contends the evidence is insufficient to prove that "by reason of his . . . severe mental disorder, [he] represents a substantial danger of physical harm to others . . . ." ( 2972, subd. (c).) He further contends the trial court erred because it failed to instruct the jury that his MDO commitment could be extended only if his severe mental disorder caused him to experience serious difficulty in controlling his behavior. We affirm.

Facts

Appellant pleaded guilty to battery on a police officer which caused injury to the officer. ( 243, subd. (c)(1).) The battery occurred when appellant used keys to gouge at a police officer who was assisting him off of some train tracks. He was sentenced to a term of four years in state prison and paroled to ASH as an MDO in 2004.

Appellant has been diagnosed as suffering from schizophrenia of the catatonic type. On a typical day, he spends at least 18 hours in bed with a towel draped over his eyes. Throughout his hospitalization, appellant refused to participate in treatment. In fact, he was electively mute for nearly the entire period, refusing to speak at all with doctors and only rarely to other staff or patients. He also refused to take the oral medication prescribed for him. After staff obtained the necessary court orders, appellant was involuntarily medicated by monthly injections. This process usually required the assistance of seven to nine staff members and took about 10 minutes to complete. Appellant would struggle violently against efforts to physically restrain him for the purpose of giving him the injection. He has kicked and spit at staff in an effort to avoid it. On at least one occasion, appellant was so tense and fought so hard that, even with staff members holding him down, he bent the needle while the injection was being administered.

Appellant testified at trial that he had been silent at the hospital because, "I prefer to let my actions do my speaking for me or lack thereof." He was trying to let the doctors know that he is normal and does not have any odd behavior. Appellant said he typically spends 15 to 18 hours in bed each day, rather than the 23 hours described by the psychiatrist. He resisted medication and other treatment because he did not think he needed it.

Discussion

Substantial Evidence of Dangerousness

To prove that appellant is an MDO within the meaning of the statue, the prosecution is required, among other things, to prove beyond a reasonable doubt that, "by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others . . . ." ( 2972, subd. (c).) His treating psychiatrist, Dr. Odom, testified that appellant was dangerous to others because of his untreated schizophrenia, "and more specifically paranoia [which] has been linked to increased rates of violence." Because appellant had not participated in any treatment and continued to exhibit the same symptoms he had when he entered ASH, Dr. Odom opined "that his illness is not in remission and that he should be considered from a standpoint of mental illness as dangerous today as the day he walked into our facility. []  In addition to his diagnosis, [appellant] also has a long history of violence . . . ." She further opined that, "the best predictor of future behavior is past behavior." Dr. Robert Beilin, a psychologist, agreed that appellant was dangerous because of his history of violent behavior and refusal to participate in treatment.

Appellant contends the experts based their opinions on his past behavior. As a result, he contends, there is no substantial evidence that he is presently a danger to others. We disagree. The evidence concerning appellant's violent commitment offense, his failure to participate in treatment, and his violent resistance toward staff at ASH establishes that he remains paranoid and capable of violence against others. This evidence is sufficient to permit a rational trier of fact to find that appellant currently presents a substantial risk of physical harm to others. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Hannibal (2006) 143 Cal.App.4th 1087, 1096; People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)

Instructional Error

The trial court instructed the jury, "A person is a mentally disordered offender within Section 2970 of the Penal Code if the evidence proves beyond a reasonable doubt that he meets the following criteria: []  1. The person has a severe mental disorder; []  2. The severe mental disorder is not in remission or cannot be kept in remission without treatment; []  3. By reason of his severe mental disorder the person represents a substantial danger of physical harm to others." It further instructed, "For the purposes of this trial, 'severe mental disorder' means: []  An illness or disease or condition which substantially impairs the person's thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior." In In re Howard N. (2005) 35 Cal.4th 117, 132, our Supreme Court considered a statute authorizing the extended commitment of a juvenile offender based on the juvenile's mental illness. It held that the statute would comply with due process only if it contained "a requirement of serious difficulty in controlling dangerous behavior . . . ." (Id. at p. 132.) Appellant contends the trial court erred because it did not instruct the jury using the Howard N. standard of "serious difficulty in controlling dangerous behavior."

We reject appellant's contention for two reasons. First, the contention has been waived because appellant failed to request from the trial court an instruction incorporating the Howard N. language. The trial court has no duty to give an amplifying or clarifying instruction sua sponte. (People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Welch (1999) 20 Cal.4th 701, 757.) Had the contention not been waived, we would reject it because the instructions given were adequate. The instructions incorporated the statutory definition of "severe mental disorder" and required the jury to find that, by reason of his severe mental disorder, appellant represents a substantial risk of physical harm to others. To extend appellant's MDO commitment, the jury had to find that his severe mental disorder either: (1) substantially impaired his thoughts, perceptions of reality, emotions or judgment; or (2) "grossly impair[ed]" his behavior. In either event, the jury also had to find that the mental disorder caused appellant to represent "a substantial danger of physical harm to others." These findings satisfy the holding in In re Howard N., supra, 35 Cal.4th 117. There was no error.

Conclusion

The judgment (order extending MDO commitment) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] All statutory references are to the Penal Code unless otherwise stated.