P. v. Cuccia

Filed 9/27/06 P. v. Cuccia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Salvatore David Cuccia appeals an order determining him to be a mentally disordered offender (MDO) and recommitting him to the Department of Mental Health for treatment. (Pen. Code, § 2962 et seq.)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On October 22, 1996, Cuccia pleaded guilty, after a preliminary examination, to false imprisonment by violence, and assault with a deadly weapon with the infliction of great bodily injury. (§§ 236, 245, subd. (a)(1), & 12022.7.) According to the probation report, in March, 1995, Cuccia struck his girlfriend in the face, beat her nude body with a padlock and chain wrapped in a towel, forced her into a bathtub filled with water, and beat her with a crowbar. Later, he bound her nude body with duct tape, forced her into a hole under the house, and filled the hole with water. The Ventura County Superior Court sentenced him to a six-year prison term.

During his prison confinement, Cuccia received treatment as a mentally ill prisoner. (§ 2684.) The Board of Prison Terms later determined that he was an MDO pursuant to the criteria of section 2962. As a condition of parole, it required him to accept treatment from the Department of Mental Health.

On December 8, 2004, the Ventura County prosecutor sought to extend Cuccia's treatment as an MDO pursuant to section 2970. On May 16, 2005, Cuccia and Doctor Robert Welsh testified in a court trial.

Cuccia testified that he suffers from bipolar schizophrenia and takes psychotropic medication. He has not experienced hallucinations for many years and believes that he is now in remission.

Cuccia stated that the underlying offense occurred because he was using heroin and methamphetamine and not taking prescribed medication. He testified that the victim was a prostitute who also used illegal drugs. Cuccia denied beating the victim and regretted pleading guilty. Cuccia testified that he is not a sex offender and has not been convicted of a sexual crime. He disputed a diagnosis of "sexual sadism" that he received while imprisoned. Cuccia explained that an incident with a female minor in 1972 resulted only in his plea to harassment, and that allegations of a rape in 1981 were not prosecuted.

Cuccia stated that upon release, he planned to continue his medication, obtain psychiatric counseling, and live in a board-and-care facility. If required, he would participate in sex offender treatment. Cuccia testified that insomnia and hallucinations would mark the return of his mental illness and would alert him to obtain additional treatment. He denied that he would resume use of illegal drugs. Doctor Welsh, a forensic psychologist at Patton State Hospital, testified that he treated Cuccia in 2002 and 2003, and spoke with him recently. Welsh opined that Cuccia suffers from schizoaffective disorder, with features of depression and sexual aggression. He also opined that Cuccia lacks insight into his severe mental disorder, exercises impaired judgment, possesses little problem solving ability, and denies that he has committed any violent crimes. Welsh stated that Cuccia "seems to view sex . . . impersonally, and there's definitely an attitude of condoning violence towards women."

Welsh opined that Cuccia met the recommitment criteria of section 2972. In particular, he believed that Cuccia's severe mental disorder is not in remission because he continues to suffer from impaired judgment, cognitive rigidity, and lack of insight. Welsh explained that psychotropic medication does not ameliorate these symptoms of Cuccia's mental disorder. He also opined that Cuccia presents a substantial physical danger to others by reason of his severe mental disorder because he lacks an individual treatment plan, does not accept responsibility for his crimes, and will not appreciate the subtle symptoms evidencing a deterioration of his mental disorder.

The trial court received into evidence Cuccia's medical records from Patton State Hospital (Exhibit 1), the 1996 probation report prepared for sentencing in the underlying criminal case, and the 2002 MDO evaluation prepared by Doctor Jenkins. The trial court then determined that Cuccia met the requirements of sections 2970 and 2972 beyond a reasonable doubt. It recommitted him to the Department of Mental Health for treatment.

Cuccia appeals and contends that: 1) insufficient evidence supports the recommitment order; 2) the trial court abused its discretion by not considering and ordering outpatient treatment; and 3) he received the ineffective assistance of counsel.

DISCUSSION

I.

Cuccia argues that there is insufficient evidence that he is not in remission or that he presents a substantial physical danger to others by reason of his mental disorder. (§ 2972 [criteria for MDO recommitment].) He asserts that he does not manifest any positive symptoms of his illness. (§ 2962, subd. (a) ["'remission'" means a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support"].) Cuccia relies upon his testimony that he planned to continue his psychotropic medication, live in a board-and-care home, obtain psychiatric treatment, and monitor his symptoms to detect a relapse, upon release.

Cuccia also challenges the conclusions made by Doctor Jenkins in 2002, concerning a diagnosis of paraphilia. He argues that Doctor Welsh's testimony is also unreliable because it rests upon a mistaken assumption of conviction of crimes of sexual violence.

In reviewing the sufficiency of evidence to support an order made in MDO proceedings, we review the entire record to determine if reasonable and credible evidence supports the decision of the trier of fact. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082; People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We view the evidence and draw all reasonable inferences therefrom in favor of the order. (Ibid.) We do not reweigh the evidence nor do we substitute our decision for that of the trier of fact. (People v. Clark, supra, 82 Cal.App.4th 1072, 1082-1083.)

Sufficient evidence supports the trial court's findings and order. Cuccia suffers from schizoaffective disorder with depressive features. Psychotropic medication does not ameliorate his continuing symptoms of impaired judgment, lack of insight, lack of problem solving ability, and cognitive rigidity. Cuccia manifests these symptoms in his superficial planning for release and his unwillingness to accept responsibility for his frightening behavior toward his girlfriend. Doctor Welsh testified that Cuccia "can't even begin to start treatment" until he admits that he has committed violent crimes.

Cuccia also presents a substantial physical danger to others by reason of his severe mental disorder. Doctor Welsh testified that Cuccia lacks insight into his illness, his violent acts toward women, and the sexual nature of his violent acts (his girlfriend was nude when he beat her and later forced her under the house). Welsh stated: "With Mr. Cuccia, judgment and insight are my biggest concerns." Due to the violence involved in the committing offenses, Welsh opined that Cuccia required a highly structured outpatient setting.

Moreover, during the course of cross-examination, Welsh realized that Cuccia had not been convicted of any sexual offenses. He remained convinced, however, that Cuccia satisfied the criteria of section 2970 and "the bottom line" was that "he needs to address his issues of violence with women."

II.

Cuccia argues that the trial court abused its discretion by not considering and ordering outpatient treatment. (§ 2972, subd. (d) ["A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis."].) He asserts that the trial court was unaware that it had discretion to order outpatient treatment pursuant to section 2972, subdivision (d). Cuccia contends that he can be safely and effectively treated as an outpatient given his age (65 years), his compliance with his medication protocol, and the structured environment of an outpatient program.

Section 2972, subdivision (d), requires the trial court to release a defendant on outpatient status if the trial court reasonably believes he can be treated safely and effectively as an outpatient. Cuccia cites no judicial decision requiring the trial court to acknowledge and explain its decisionmaking pursuant to subdivision (d). We presume that the trial court knows and applies the correct statutory law. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here the trial court explained its decision in reference to section 2972, subdivisions (c) and (e); we presume it knew and considered subdivision (d), particularly because the witnesses discussed outpatient placement during testimony. There is no error.

III.

Cuccia contends that he received the ineffective assistance of counsel in several respects:

First, Cuccia asserts that his attorney did not file a protective motion to preclude the prosecutor from access to his medical records, nor did his attorney object to the admission of those records at trial (Exhibit 1). He contends that the records are inadmissible hearsay and prejudicial. Cuccia adds that the records are protected by the psychotherapist-patient privilege. (Evid. Code, § 1010 et seq.) He concedes, however, that the records contain some favorable information benefiting his defense. Cuccia appears to argue that his attorney's failure to protect his medical records is reversible structural error. He also requests an order concerning their destruction and the removal of the prosecutor from any future proceedings concerning recommitment.

Second, he argues that defense counsel did not object to admitting the 2002 MDO evaluation into evidence. He points out that the 2002 evaluation discussed the committing offenses in detail and offered a diagnosis of paraphilia. Cuccia asserts that the 2002 evaluation is unduly prejudicial because it represents him as more violent, dangerous, and mentally ill than current evaluations. He adds that the evaluation is inadmissible hearsay.

Third, Cuccia contends that his attorney abandoned his defense during summation by "conceding that [he] qualified as a mentally disordered offender." (People v. Diggs (1986) 177 Cal.App.3d 958, 970 [ineffective assistance of counsel where attorney argues against client during summation].) He asserts that counsel argued for more intensive treatment for him at the state hospital and did not request the trial court to order outpatient placement pursuant to section 2972, subdivision (d).

To establish the ineffective assistance of counsel, defendant must establish that his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms, and that he suffered prejudice therefrom. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) Prejudice is established by showing that there is a reasonable probability of a more favorable result absent his attorney's shortcomings. (Ibid.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (Ibid.) A reviewing court may resolve an issue of ineffective representation by counsel by deciding only the question of prejudice. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington, supra, 466 U.S. 668, 697.)

Cuccia has not met his burden of establishing the ineffectiveness of counsel.

As Cuccia concedes, it is likely that the trial court did not read the 300 pages of medical records in Exhibit 1, many of them handwritten, during the short recess before it ruled. Cuccia cannot establish prejudice from the admission of the medical records.

Moreover, the records in part benefited him and tended to prove that he is in remission or is no longer physically dangerous. Defense counsel may have had a tactical motive for agreeing to admit the records into evidence. In any event, it would have been difficult for counsel to restrict the trial court's review to only the favorable portions of the records. (People v. Henderson (1981) 117 Cal.App.3d 740, 748 [psychotherapist-patient privilege does not apply in mentally disordered sex offender (MDSO) proceedings].)

Cuccia's request for orders regarding possible future recommitment proceedings is premature and we do not consider it.

Sections 2970 and 2972 require the trial court to determine whether Cuccia presently has a severe mental disorder that is not in remission and whether he presents a substantial physical danger to others by reason of his severe mental disorder. The 2002 MDO evaluation is not relevant to this determination. We presume that the trial court recognized this irrelevancy in making its decision. "As an aspect of the presumption that judicial duty is properly performed, we presume . . . that the court knows and applies the correct statutory and case law . . . and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process." (People v. Coddington, supra, 23 Cal.4th 529, 644.)

We also interpret defense counsel's summation differently. Defense counsel argued that Cuccia had not been convicted of a sex crime, he had a plan for living and treatment upon release, he would recognize a relapse of his mental disorder by signs of insomnia and hallucinations, and that he "could do quite well" in outpatient placement. She also pointed out that he had not hallucinated for many years and had behaved appropriately with women at the state hospital. She summarized that "[w]hether he is a danger to the public, I don't agree that he is based on his testimony and the information that we have received."

Moreover, defense counsel's comment regarding the state hospital's creation of a better program for Cuccia concerning "his issues with women" may be interpreted to refer to the creation of an outpatient program. We cannot conclude that this ambiguous statement alone constitutes the ineffective assistance of counsel.

The order of recommitment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Rudy Kraft, 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, Kenneth N. Sokoler, Robert M. Snider, Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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