P. v. Hill

Filed 6/20/07 P. v. Hill CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.

Paul Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Marvin Hill appeals from an order extending for an additional year his commitment as a mentally disordered offender (MDO) pursuant to Penal Code section 2972.^[1] Under section 2972 an MDOs involuntary commitment may be extended when the People demonstrate that (1) the patient has a severe mental disorder, (2) the disorder is not in remission or cannot be kept in remission without treatment, and (3) by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others. ( 2972, subd. (e).) Appellant contends that case law, particularly the California Supreme Court case of In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), requires a fourth showing that by reason of the patients severe mental disorder the patient has serious difficulty controlling his or her dangerous behavior. He contends that the court erred in failing to instruct the jury on this fourth requirement. As we shall explain, however, even if we assume (without deciding the issue) that the lack of such a control instruction was error, any such error in this case was harmless beyond a reasonable doubt. We will therefore affirm the courts order extending appellants commitment.

FACTS

Two witnesses testified at the recommitment hearing: Dr. Larry Alb for the People and appellant in his own defense.

The Peoples Case: Dr. Larry Alb

Dr. Larry Alb, a Patton State Hospital psychiatrist, knows Mr. Hill via a weekly medication awareness class he teaches, a monthly medication review meeting, and a trimonthly group conference. He diagnosed Mr. Hill with Schizoaffective disorder, bipolar type. Hes heard voices [since he was] between 12 and 14 years old [,] voices telling him to kill himself. During that time, he attempted suicide. He continues to hear voices and has command hallucinations.

He also has delusions consisting of believing that he was an Oakland Raiders football player [when he was] between 16 and 18 years old, that one time he was either married or engaged to Mariah Carey. There is some concern that he might have identify himself with Mike Tyson as well. He also has a thought disorder, which is described as when somebodys able to convey a thought and say going from A to B they can do it very well, and B would be to the point of very precise way for Mr. Hill. It takes him quite a bit of time to make a point if at all. He is very disorganized and mistaken times. Hes very it doesnt get to the point and it could very well be that it makes no sense at all. That is part of the illness as well.

He also described a history of polysubstance dependence including alcohol, PCP, marijuana, and cocaine; he had used alcohol and PCP at the time of the committing offense. He described the substance abuse as an attempt at self-medication that can actually affect mood and anxiety and make the illness appear worse. Mr. Hill has not been going to AA or NA because he believes that he does not have a drug problem.

Dr. Alb described the committing offense, not for the truth of the matter but as a basis for his expert opinion, as a rape in which Mr. Hill encountered a woman on the road and took her to an abandoned building.

According to Dr. Alb, Mr. Hill is not presently in remission. He still is hearing voices what appears to be on a daily basis. His delusions about the Raiders and Mariah Carey continue. As to the committing offense, He does not believe that it was a rape. He believes that it was a consensual relationship. He believes that the victim wanted to have sex with her rather with him. He had a command hallucination as recently as last August, telling him to call his mother, but he does not understand the significance of the voices. He has had command hallucinations in the past to kill himself. If he stops taking his medications, the voices would return to a greater degree. He also identified fanaticizing [sic]. I asked him more specifically about that, he said that he had masturbated to his victim the last time two months ago, which was the first time that he had ever mentioned anything about actually masturbating or having fanaticizes [sic] of his victim at all, which is a concern. Especially when he said that it excites him to think about a hurt crime, a victim crying.

Dr. Alb opined that Mr. Hill represents a substantial danger of physical harm to others by reason of his mental disorder due to his inability to see the rape as rape, his fantasies, his drug problem, the role of substances in his history, and his lack of understanding. During the time of his committing offense or another time when he was on CONREP and he went AWOL from CONREP, that itself will indicate that if he were to be in the community, that my opinion that he would more than likely return to drinking alcohol or using drugs, which [he] has done in the past. And just based upon his history would be a good predictory [sic] for what would come to him in the future. While AWOL from CONREP in 1995 or 1996, he stole a beer from a liquor store, threatened to kill a female police officer, and assaulted an officer. Asked about this episode and whether he would again threaten to kill a police officer in a similar situation, he told Dr. Alb, yeah, they kept me here for 20 years. In 1999, Mr. Hill reportedly had an altercation with another patient related to remarks the other patient made about Mike Tyson, the boxer, with whom Mr. Hill identifies very closely. In 2000, he had made an AWOL attempt through the vehicle sally port out of the hospital, and when confronted by a couple police officers, he grabbed at one of the officers, they wrestled him to the ground. In 2001, he struck another patient in the eye. In April of the current year, he did not react to patients who spat on him and threw fruit at him, but the next day he said that he wanted to hit him and hit him and beat him to make sure that he wouldnt do that again. He has no relapse prevention plan and cannot be released without supervision.

On cross-examination, Dr. Alb acknowledged that although Mr. Hill could refuse medication while he is in the jail pending a hearing he has regimen and goes to his groups. He has never been observed under the influence of alcohol although it is possible to get alcohol in the hospital.

Dr. Alb has had no professional encounter with sex offenders who have compulsions to commit sex crimes or appear to have compulsions or with sexually violent predators for people who apparently cant help themselves, they either like little kids or they like forcing themselves on other people all the time. Mr. Hill is not such a person.

The parties then stipulated that at the time of the 1987 rape case, the complaining witness acknowledged that they had been drinking beer and doing PCP in the car prior to the alleged transportation and rape.

Defense Case: Mr. Hill

Mr. Hill then testified on his own behalf. He acknowledged using alcohol and drugs from an early age and being given medications at 12 or 18 that were helpful at the time. He described the 1986 events, in which he met the complaining witness at a liquor store, she asked if they could go to his place, and in the car they drank gin and smoked some weed and PCP. We got to the house. We got up stairs. I asked her if she wants to have sex and she said yeah. I took down her clothes and went down stairs but I didnt have sex with her. When he went to get some food, she ran outside. I freaked out so I grabbed her clothes and went outside and the police was out there and they told me to get up against the wall. They offered me a plea for a year and a half and he took it.

In the hospital, I learned to take my medication, stay away from small places like bars, liquor store, kids, abandoned buildings, stuff like that. Know my skills. Know what to do when I see things like that. Although sexual relations can and do occur in the hospital, he has never done anything inappropriate. He denied that he had even been so out of it or mentally unstable that its possible that youve done things inappropriate and you just dont remember?

He acknowledged stealing a beer while on CONREP, and then falling asleep on a bench at what he thought was a church. It turned out to be a house, and the police were called for trespassing. He denied assaulting any officers. He only asked why he was being arrested and used bad words. He had run out of medications.

He described the medication he currently takes as making him sleepy or tired and overmedicated. Although he understands he has a right to refuse medication while at the jail for this hearing, he has not refused them. If released, he would continue to take his medication voluntarily; he would like to join a church and learn how to be a reverend. He would stay in touch with his doctor. If he needed help, he would seek it out. He described the training he has received at the hospital in defusing fights and other incidents. He gets depressed because he is sick of being in the hospital for so long. He denied the report that he said he had masturbated about his victim. He denied telling the doctor that the thought of a woman being abused or crying excited him. He denied recently hearing voices. He denied having command hallucinations.

On cross-examination, he acknowledged that he was benefiting from treatment, but wanted to get out because Im scared I might die in there. He acknowledged that he has not participated in NA or AA in the hospital because Im [sic] been going to school mostly. You can only do one at a time. He indicated that he had completed those programs in the past. He acknowledged that he takes medication because he has a mental illness. If he went off medication, he thought he would react the same. He acknowledged that when he was on CONREP he asked for permission to go to San Francisco, did not receive it, and went anyway. He was out of medication at the time of his interaction with the police officer, knew he was out of medication, but didnt have enough time to get more medication. He said he had played professional football for the Raiders with Gannon. He was asked about an indecent exposure incident in 1985 and explained that he was at the beach and there wasnt no place to use the restroom and I had to go real bad and I didnt know what to do.

DISCUSSION

The Supreme Court of the United States repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.] (Addington v. Texas (1979) 441 U.S. 418, 425.) States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. (Kansas v. Hendricks (1997) 521 U.S. 346, 357 (Hendricks).) The Kansas Sexually Violent Predator Act at issue in Kansas v. Hendricks permitted involuntary civil commitment of any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence. [Citation.] (Kansas v. Hendricks, supra, 521 U.S. at p. 352.) The Kansas Supreme Court invalidated the Act, holding that its precommitment condition of a mental abnormality did not satisfy what the court perceived to be the substantive due process requirement that involuntary civil commitment must be predicated on a finding of mental illness. [Citation.] (Id. at p. 350.) The U.S. Supreme Court reversed, stating we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes (id. at p. 359) and concluding that the Kansas Sexually Violent Predator Act comports with due process requirements . (Id. at p. 371.)

In a later case, the Kansas Supreme Court construed Hendricks as requiring due process for civil commitment to include a finding that the defendant cannot control his dangerous behavior. (Kansas v. Crane (2002) 534 U.S. 407, 411 (Crane).) The Supreme Court of the United States concluded that the Kansas Supreme Court again erred. We agree with Kansas insofar as it argues that Hendricks set forth no requirement of total or complete lack of control. Hendricks referred to the Kansas Act as requiring a mental abnormality or personality disorder that makes it difficult, if not impossible, for the [dangerous] person to control his dangerous behavior. [Citation.] The word difficult indicates that the lack of control to which this Court referred was not absolute. (Kansas v. Crane, supra, 534 U.S. at p. 411.) We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. (Id. at p. 412.) [W]e did not give to the phrase lack of control a particularly narrow or technical meaning. And we recognize that in cases where lack of control is at issue, inability to control behavior will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior. And this, when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Citation.] (Id. at p. 413.)

Shortly after Kansas v. Crane, supra, was decided, the California Supreme Court addressed the question of whether a person committed under Californias Sexually Violent Predators Act (SVPA; Welf. & Inst. Code,  6600 et seq.) was denied due process of law when the jury received instructions in the statutory language but was not separately and specifically instructed on the need to find serious difficulty in controlling behavior. (People v. Williams (2003) 31 Cal.4th 757, 759.) The court concluded there was no denial of due process. By its express terms, the SVPA limits persons eligible for commitment to those few who have already been convicted of violent sexual offenses against multiple victims ([Welf. & Inst. Code,] 6600, subd. (a)(1)), and who have diagnosed mental disorder[s] (ibid.) affecting the emotional or volitional capacity (id., subd. (c)) that predispose[] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others (ibid.), such that they are likely [to] engage in sexually violent criminal behavior (id., subd. (a)(1)). This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling ones criminal sexual behavior. The SVPAs plain words thus suffice to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Citation.] (People v. Williams, supra, 31 Cal.4th at pp. 759-760.)

Two years later in Howard N., supra, the court addressed the question of whether an extended civil commitment under Welfare and Institutions Code section 1800 et seq. of a person who would otherwise be discharged by statute from a Youth Authority commitment violates due process because it does not expressly require a finding that the persons mental deficiency, disorder, or abnormality causes serious difficulty in controlling behavior. The court concluded that this extended detention scheme should be interpreted to contain such a requirement in order to preserve its constitutionality. (Howard N., supra, 35 Cal.4th at p. 122.)^[2] The court then considered whether, despite the absence of a jury instruction addressing the need for the People to demonstrate defendants serious difficulty in controlling his dangerous behavior, the jury nevertheless necessarily made such a finding. (Id. at p. 137.) Although the opinion does not expressly say so, the court apparently concluded that the jury did not necessarily make such a finding. This is because the court concluded that the absence of a control instruction was not harmless beyond a reasonable doubt. (Id., at pp. 137 & 138.) [T]he evidence was not such that no rational jury could have failed to find [defendant] harbored a mental disorder that made it seriously difficult for him to control his violent impulses [making] the absence of a control instruction harmless beyond a reasonable doubt. [Citation.] (Id. at p. 138.)

After the Howard N. court discussed Hendricks and Crane, the court stated: [N]othing in the language of these high court cases indicates that the lack of control requirement is limited to the sexually violent predator context. Indeed, it is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators. Thus, while the high court performed its due process analysis in the sexually violent predator context, its constitutional pronouncements are instructive here. (Howard N., supra, 35 Cal.4th at p. 131.) In short, the constitutional pronouncements (ibid.) of Hendricks and Crane applied in Howard N. in the Welfare and Institutions Code section 1800 et seq. context. They would thus appear to apply here in the MDO context as well. Neither appellant nor respondent contends otherwise. Indeed, we note that the Howard N. opinion even briefly describes the MDO law in its description of California civil commitment schemes (Howard N., supra, 35 Cal.4th at pp. 126-127), just before its discussion of Due Process Requirements for Civil Commitment. (Id. at p. 127.)

The People rely on a pre-Howard N. Court of Appeal case, People v. Putnam (2004) 115 Cal.App.4th 575 (Putnam), for their contention that instructing the jury in the language of the statute is sufficient. The Putnam court quoted at length from the instructions given to the jury in that case, including an instruction on the meaning of severe mental disorder (Putnam, supra, 115 Cal.App.4th at p. 579), and stated: Given these instructions, taken as a whole, we conclude beyond a reasonable doubt [citation] that the jury could not have sustained the petition in this case without having found that, as a result of appellants mental disorder, he suffered from a seriously and substantially impaired capacity to control his behavior, and that, for this reason, he represented a substantial danger of physical harm to others. (Id. at p. 582, fn. omitted.)^[3] Appellant counters that even if the instructions given in Putnam would still be sufficient after Howard N., supra, the instructions given in the present case were not as thorough as the instructions given in Putnam and cannot be viewed as inherently encompassing a requirement that appellant has serious difficulty controlling his dangerous behavior.^[4]Although the issue is an interesting one, we need not decide it in this case. This is because even if we assume, without deciding the issue, that the instructions given in the present case were deficient, any such error was harmless beyond a reasonable doubt. (Howard N., supra, 35 Cal.4th at pp. 137-138; People v. Williams, supra, 31 Cal.4th at p. 778; People v. Hurtado (2002) 28 Cal.4th 1179, 1194.) Such an error is harmless if no rational jury could have failed to find [appellant] harbored a mental disorder that made it seriously difficult for him to control his [dangerous] impulses [making] the absence of a control instruction harmless beyond a reasonable doubt. (Howard N., supra, 35 Cal.4th at p. 137; see also People v. Williams, supra, 31 Cal.4th at p. 760.)

No rational jury could have failed to find that appellants mental illness made it seriously difficult for him to control his dangerous behavior. Appellant hears voices and has conversations with himself. He delusionally believed that the victim he raped wanted to have sex with him. He hears voices that tell him to do things. He has a history of hearing voices that have told him to kill himself a number of years ago, and he in fact did try to kill himself. At the time of his hearing he was taking antipsychotic medications five times per day (two 600 milligram doses of Seroquel and three 15 milligram doses of Loxitane) because of his hallucinations, paranoia and delusions. He was also taking two 600 milligram doses of a mood stabilizer, Lithium Carbon, twice per day. Even with the medications, appellant still suffered from hallucinations. On those occasions when he stopped taking his medications, his behavior deteriorated. In December of 1995 appellant left an outpatient placement without permission. He went to San Francisco, stopped taking his medications, stole a beer from a liquor store, threatened to kill a female police officer and actually assaulted her. Only 10 days before appellants court hearing in this case, Dr. Alb asked appellant if appellant would again threaten to kill a police officer if appellant were to be confronted by an officer in the community sometime in the future. Appellant said he would again threaten to kill the officer.

There was also evidence of other incidents demonstrating that appellant has serious difficulty controlling his dangerous behavior. Dr. Alb testified that when appellant was out of the hospital and on a conditional release program, appellant decompensated and developed delusions and commanding hallucinations.^[5] Appellant was admitted to Cedar Vista Hospital and while he was there, a female patient had indicated that Mr. Hill had touched her breast. In December of 1999 appellant got into a physical altercation with another patient. Dr. Alb testified that appellant believed that he was a boxer, and because of this an altercation ensued. In July of 2000 he attempted to escape from the hospital. Dr. Alb testified that when appellant was confronted by a couple of police officers, he grabbed at one of the officers, they wrestled him to the ground and (h)e was then handcuffed. In August of 2001 appellant struck another patient in the eye, resulting in eight stitches above the eye for this other patient.

Appellant conceded that he suffered from a mental, disease, defect or disorder. His defense to the petition was his unsuccessful contention that he was in remission and did not represent a substantial danger of physical harm to others. He had no expert testimony to support his defense and to rebut Dr. Albs testimony that appellant would be a danger to the community if he were to be discharged at this time. His only witness was himself. In the course of his testimony, he supplied even more evidence of his difficulty in controlling his dangerous behavior. In response to a question from his own attorney about whether he had ever forced his body onto some other persons body, he answered that at one time when he was younger he was with a teenaged girl and was taking off her clothing and my father walked in and his father called the police . In sum, no rational jury could have failed to find that appellant harbored a mental disorder that made it seriously difficult for him to control his dangerous impulses. (Howard N., supra, 35 Cal.4^th at p. 137.)^[6]

DISPOSITION

The courts order extending appellants commitment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

CORNELL, Acting P.J.

_____________________

DAWSON, J.

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

^[2] The Howard N. court further stated: [W]e can preserve the constitutionality of the extended detention scheme by simply interpreting the scheme to require not only that a person is physically dangerous to the public because of his or her mental deficiency, disorder, or abnormality, but also that the mental deficiency, disorder, or abnormality causes him to have serous difficulty controlling his dangerous behavior. This aspect of the persons condition must be alleged in the petition for extended commitment ([Welf. & Inst. Code,]  1800), and demonstrated at the probable cause hearing ([Welf. & Inst. Code,]  1801) and any ensuing trial ([Welf. & Inst. Code,]  1801.5). (Howard N., supra, 35 Cal.4th at p. 135.) After Howard N. was decided, Welfare and Institutions Code sections 1801 and 1801.5 were amended so that this new requirement called for by the Howard N. decision is now expressly included in the statutes themselves. (Stats. 2005, ch. 110 (S.B. 447).) Section 2972, at issue in the case before us, has not been so amended.

^[3] The Putnam opinion sets forth verbatim the instructions given to the jury in that case. [T]he trial court instructed the jury as follows: In this case, the question for your determination is whether [appellant], by reason of a severe mental disorder that is currently not in remission or cannot be kept in remission without treatment, represents a substantial danger of physical harm to others. [] The plaintiff has the burden of proving beyond a reasonable doubt that [appellant], Number One, has a severe mental disorder; Number Two, that such severe mental disorder is currently not in remission or cannot be kept in remission without treatment; and, Number Three, by reason of such severe mental disorder, [appellant] represents a substantial danger [of] physical harm to others. [] The term severe mental disorder means an illness or disease or condition that substantially impairs the persons thoughts, perception of reality, emotional process, or judgment, or which grossly impairs behavior, or that demonstrates evidence of an acute brain syndrome from which prompt remission in the absence of treatment is unlikely. [] The term remission means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support. [] Later, after repeating these instructions, the court added that, A person is not in remission if during the past year he has been physically violent, caused property damage, made a threat that caused the threatened individual reasonable fear or refused to follow the treatment plan. Prompted by defense counsel, the court acknowledged that the relevant portion of this last instruction should have read, Has not been physically violent except in self-defense. (Putnam, supra, 115 Cal.App.4th at pp. 579-580, fn. omitted.)

^[4] Appellants jury was instructed as follows: Respondent, Marvin Hill has been committed to a mental health facility. You must decide whether he currently poses a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder. That is the only purpose of this proceeding. You are not being asked to decide Marvin Hills mental condition at any other time or whether he is guilty of any crime. [] To prove that Marvin Hill currently poses a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder, the People must prove beyond a reasonable doubt that: [] 1. He suffers from a mental disease, defect, or disorder; [] AND [] 2. That the disorder is not in remission or cannot be kept in remission if Respondents treatment is not continued; [] AND [] 3. That, by reason of his mental disease, defect or disorder, Respondent now represents a substantial danger of physical harm to others.

^[5] Decompensation means in psychiatry, failure of defense mechanisms resulting in progressive personality disintegration. (Dorlands Illustrated Medical Dict. (26th ed.1981) p. 349.)

^[6] Dr. Albs written evaluation of appellant (see  2970) stated in part:

All of these incidents illustrate the effects of his mental illness on his ability to control his violent behavior. Under most conditions the structured and supervised environment of the hospital helps to control his impulsivity and assaultiveness. However, there continues to be times when the symptoms of his severe mental disorder, paranoia and auditory hallucinations, combine to create situations where he has difficulty modulating his own behavior. If Mr. Hill were in a less structured environment where his medications were not as strictly supervised and he had access to drugs or alcohol, the degree of risk for him offending in a violent manner would increase significantly.

This written evaluation was attached to the district attorneys  2970 petition to the court for continued treatment of appellant. It was not offered or admitted into evidence at appellants hearing. It leaves no doubt, however, as to what Dr. Albs testimony would have been if Dr. Alb had been asked expressly at the hearing whether appellant had serious difficulty controlling his behavior, and had answered that question. As we have already noted, Dr. Alb was the only expert who testified at the hearing.