P. v. Zichko

Filed 8/15/07 P. v. Zichko 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Robert Zichko was committed to a state hospital after being found not guilty of a felony offense by reason of insanity. (Pen. Code,  1026, subd. (a).)[1] He appeals the judgment and order extending his commitment, contending that there was insufficient evidence to support the required finding that he has serious difficulty controlling his dangerous behavior because of a mental disorder. ( 1026.5, subd. (b).) He also claims the trial court violated his due process rights by allowing his counsel to waive a jury trial, and by denying his motion to replace appointed counsel. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2004, Zichko was found not guilty by reason of insanity of making a criminal threat. ( 1026, 422.) Zichko entered a bank and told a teller that "he wanted to withdraw enough money to go buy a gun and a clip with enough bullets to shoot everyone." He also told the teller that, if she made him angry, he might "come back here and shoot you all in the head." A jury found Zichko guilty of committing the offense, and the trial court found him not guilty by reason of insanity. He was committed to a state mental hospital.[2]

In January 2006, the district attorney filed a petition to extend the commitment under section 1026.5, subdivision (b) alleging that, by reason of a mental disease, defect or disorder, Zichko "represents a substantial danger of bodily harm to others." The matter was tried on April 11, 2006.

At trial, treating psychiatrist Anna Wilste testified that Zichko suffered from schizophrenia, paranoid type, as well as alcohol and marijuana abuse which were in institutional remission. Dr. Wilste testified that, since his teenage years, Zichko has been treated in several psychiatric institutions and "has been always very delusional, hearing voices." He is preoccupied with a very elaborate delusional system, including a false belief that he has a wife and son. He claims his wife is the daughter of Saddam Hussein and that he has connections with terrorists.

Dr. Wilste testified that his mental disorder is not responding to anti-psychotic medication or group therapy sessions, and that he continues to minimize and deny his criminal offenses and threaten people with violent acts. Dr. Wilste related several incidents occurring shortly before his extension hearing in which Zichko threatened hospital staff members who questioned his delusions. He told a social worker that "people better not be destroying the records that I have a wife and son," and claimed he killed someone in the hospital who pinched his wife and destroyed records. On one occasion, he said he was "tight with the group brotherhood and anyone who messes with my wife could die," and on another occasion he said he was "going to hit the head of the staff with a baseball bat." Dr. Wilste concluded that, as a result of his mental illness, Zichko poses a substantial danger of physical harm to others.

Zichko testified on his own behalf. He denied that he was a threat to society because "out in society I would take medication and I would be treated better." He admitted that he had made threats but testified that threats were made only when he was "intimidated or mocked" or physically threatened by others. He denied ever assaulting staff members but admitted assaulting other patients when "I was punched first or attacked or I was cornered, and it was in self defense."

The trial court ruled that, based on his mental disorder and "the fact that he's been threatening in the recent past responding to internal stimuli," he represents a substantial danger of physical harm to others. (See 1026.5, subd. (b)(1), 1026.2, subd. (e).) Accordingly, the court ordered an extension of his commitment.

DISCUSSION

Substantial Danger Finding Supported by Substantial Evidence

When the trial court determines that a defendant is not guilty by reason of insanity at the time of the offense, it may commit the defendant to a state hospital or certain other treatment facilities. ( 1026, subd. (a).) A patient so committed may be recommitted for an additional period if, after trial, the court or jury finds the patient "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." ( 1026.5, subds. (b)(1) & (8).) To make this finding, there must be proof that the patient has a "serious difficulty in controlling [his] dangerous behavior." (People v. Galindo (2006) 142 Cal.App.4th 531, 537.) Zichko contends that the trial court erred by failing to make an express finding that he had serious difficulty in controlling his dangerous behavior, and that there was no substantial evidence to support such a finding. We disagree.

In interpreting another civil commitment statute that required a finding of dangerousness, our Supreme Court held that, to satisfy due process, the commitment could be extended only if there was evidence that "the mental deficiency, disorder, or abnormality causes [the person] to have serious difficulty controlling his dangerous behavior." (In re HowardN. (2005) 35 Cal.4th 117, 135; see Welf. & Inst. Code,

1800.)

Subsequently, cases have interpreted the "substantial danger of physical harm to others" standard in section 1026.5, subdivision (b) in a similar fashion to require evidence that the person subject to recommitment has "serious difficulty in controlling dangerous behavior." (People v. Galindo, supra, 142 Cal.App.4th at p. 537; accord, People v. Bowers (2006) 145 Cal.App.4th 870, 878; accord, People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159, 1164.) Evidence is required to establish not only that a person has exhibited dangerous behavior due to a mental disorder, but also that the mental disorder, as opposed to a volitional decision, prevents the person from controlling his or her dangerous behavior. (Galindo, supra, at p. 539.) The person must be unable to control dangerous behavior because of a mental disorder, not merely because the person concludes there is no need to do so under the circumstances. (Ibid.)

Contrary to Zichko's argument, an order extending a section 1026 commitment will be upheld if there is substantial evidence supporting a finding, express or implied, that the person has a serious difficulty in controlling dangerous behavior. (People v. Bowers, supra, 145 Cal.App.4th at p. 878; People v. Zapisek, supra, 147 Cal.App.4th at pp. 1159, 1165; see also In re Anthony C. (2006) 138 Cal.App.4th 1493, 1503.) Under the substantial evidence test, we review the entire record in the light most favorable to the order to determine whether there is any substantial evidence from which a reasonable trier of fact could have found each essential element of the recommitment beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269; Bowers, supra, at pp. 878-879.) Here, we conclude that substantial evidence supports a finding that, due to his mental illness, Zichko has a serious difficulty controlling his dangerous behavior.

Dr. Witste's testimony establishes that Zichko has at least a serious difficulty controlling his potentially dangerous behavior. He remains in the grip of a delusional system that has caused and continues to cause him to threaten physical violence against hospital staff members and other patients. Zichko's own testimony supports the conclusion that he cannot control his behavior because of his mental illness. He admits assaultive behavior, describes his criminal offenses in a manner consistent with his delusions, and continues to believe wholeheartedly in delusions which control his behavior.

Moreover, in contrast to People v. Galindo, supra, 142 Cal.App.4th at page 539, and In re Anthony C., supra, 138 Cal.App.4th at page 1506, evidence in the instant case establishes that Zichko has made significant, but unsuccessful, efforts to control his behavior by taking his medication and by regularly attending group therapy. Dr. Witste testified that he is "trying very hard" but has not responded to medication and that "his mental illness prohibits him from processing the groups."

No Error in Waiver of Jury by Counsel

Zichko contends that the trial court erred by accepting a jury waiver by his counsel over his objection and without making a determination that Zichko was not competent to waive that right. We disagree.

In People v. Powell (2004) 114 Cal.App.4th 1153, 1156, this court held that "counsel may waive jury trial over objection of his or her client in a 'not guilty by reason of insanity' commitment extension trial . . . ." We stated that a person who is a substantial danger to others "should not be able to veto the informed tactical decision of counsel" to waive jury. (Id., at p.1158; see also People v. Haynie (2004) 116 Cal.App.4th 1224, 1229-1230, citing Powell with approval.)

Zichko attempts to distinguish Powell by pointing out that, unlike in Powell, he was not so belligerent and disruptive that he had to be removed from the courtroom and that there was no basis to conclude that he was not competent to demand a jury trial. (People v. Powell, supra, 114 Cal.App.4th at p. 1158.) But, Powell states that there would be no error in accepting a jury waiver through counsel even if the defendant was lucid at the time. (Id., at pp.1158-1159, citing People v. Otis (1999) 70 Cal.App.4th 1174.) In any event, the record does not show that Zichko was entirely lucid. He referred to his delusion of having a wife and son during the hearing, asserted that a named judge was aware he had a wife, and accused his counsel of conspiring with the prosecution to permit evidence of his delusions.

No Error in Denial of Marsden Motion

Zichko also contends that the trial court erred by failing to consider his request to replace appointed counsel with retained counsel following the denial of his Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) We disagree.

Immediately before trial, Zichko made a Marsden motion for new appointed counsel. As required, the trial court allowed him to explain the basis for his motion and recite examples of inadequate representation by his present appointed attorney. (See People v. Memro (1995) 11 Cal.4th 786, 857.) Based on an insufficient showing of an irreconcilable conflict or that his present attorney was not providing adequate assistance, the court denied Zichko's motion.

Zichko does not challenge this ruling but, instead, asserts that he also sought to substitute retained counsel and that the court's failure to consider the request violated his constitutional right to counsel of choice. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) Based on the record as a whole, we conclude that Zichko did not make an express, unequivocal or serious request for the opportunity to retain his own attorney.

The record establishes that he wanted new appointed counsel based on the trial court's refusal to "overrule" his present attorney's jury trial waiver, and was agitated by the trial court's failure to accommodate him. Near the end of the Marsden hearing, he claimed to have "funds" to pay retained counsel, but did not expressly request an opportunity to retain counsel, indicate that he had taken any steps towards retaining an attorney, or request a continuance in order to do so. In addition, nothing in the record suggests that his claim of having "funds" was true, and the trial court could reasonably conclude that the assertion was simply made out of frustration and anger. (Cf. People v. Turner (1992) 7 Cal.App.4th 913, 919 [defendant's failure to present coherent reasons for replacing counsel justifies denial].)

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Paul Bernstein, 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, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.

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

[2] Zichko appealed his commitment order regarding issues unrelated to the present appeal, and we affirmed in People v. Zichko (2004) 118 Cal.App.4th 1055.