Opinion
NOT TO BE PUBLISHED
Superior Court County No. F384096, of San Luis Obispo Charles S. Crandall, Judge
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, Kenneth N. Sokoler, Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Master David was convicted by plea of assault with force likely to cause great bodily injury (Pen. Code § 245, subd. (a)(1), forcible rape (§ 261, subd. (a)(2)) and sentenced to nine years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
After serving his sentence, the Board of Parole Hearings (BPH) determined that appellant met the criteria for treatment as a mentally disordered offender (MDO) under section 2962. The BPH recommended that he be confined to Atascadero State Hospital (ASH) as a condition of parole.
Appellant filed a petition requesting that the trial court overturn the determination of the BPH. (§ 2966, subd. (a).) Following a jury trial, appellant was found to have met the statutory criteria to be certified as an MDO and the trial court ordered him committed to ASH. Appellant claims the jury instructions permitted the jury to find that he had a severe mental disorder without also finding he had serious difficulty in controlling his behavior. We conclude that appellant was not entitled to such an instruction, and affirm.
FACTS
Underlying Offense
Because appellant was convicted by plea, there was no trial on the underlying offense. We take our factual recitation surrounding the offense from appellant's testimony at his MDO trial.
Appellant taught a martial arts course and had approximately seven students who lived with him in a communal environment. The classes had a religious component and involved the use of violence. Appellant held himself out as having attained an inner state that was Christ-like. He instructed the students by creating "scenarios" in which they would confront a fear or emotional weakness.
For two and a half years, appellant had a sexual relationship with the victim, who was a student. She had left the school on several occasions but always returned. In one scenario, appellant struck her in the shin with a stone, fracturing the bone. He testified that his action was "intentional to create that degree of intensity in the scenario."
Appellant stated that the victim needed to overcome the fact that she "was very sexual." He testified that "[o]ne of the elements about [her] sexuality was a desire to be used or abused in some way." The victim had been hitchhiking, which appellant construed as a desire to be raped, because "hitchhiking is something that women won't really do normally . . . ." He decided to create the scenario of a rape.
Appellant testified that he drove the victim to a quiet area, pulled off the road and they got out of the car. Appellant said to her, "'Well what they would say is they would tend to walk you in a particular direction.' [¶] And I picked up a stick. [¶] I said 'well you know, they will have some weapon or some means to threaten you or keep control of you.' [¶] And we walked down the path a little ways, and then I went through the motions. [¶] . . . [¶] I said, 'take your clothes off.' And then I said 'they usually have you lay on your clothes and they remove either part of their clothing or all their clothing.' [¶] . . . [¶] Then I said, 'usually they would have some sort of sex with you and be silent.'" Appellant stated that "[t]here was no violence involved at the time. We had a physical union for perhaps a minute or less." Appellant testified that he did not feel that the victim was being sexually abused "because it was just a scenario. It was just an enactment."
Appellant asked the victim that, if she chose to leave the school again, to go to a women's shelter. She went to the shelter and apparently discussed the offense with the shelter staff. The district attorney subsequently filed charges against appellant for battery and rape. Appellant turned himself in at the governor's office in Sacramento. He brought with him a large teddy bear to say, "no hard feelings, even though you have these charges against me and I feel they are unjust . . . ."
Appellant was arrested and taken into custody. He was subsequently found not competent to stand trial and committed to ASH. Later he was transferred to Patton State Hospital. Appellant was hospitalized for 14 months, during which he was provided antipsychotic medication and a mood-stabilizing drug. After his competency was restored, criminal proceedings were resumed. Appellant entered into a plea bargain and was sentenced to nine years in state prison. In the year prior to the BPH hearing, appellant assaulted an inmate.
Expert Testimony
Dr. Gilbert Foss is a psychologist with the MDO unit in the California Department of Corrections. He evaluated appellant by reviewing the central file and his medical records, but was unable to personally evaluate him because appellant refused to be interviewed. It was his opinion that appellant suffered from a severe mental disorder. He exhibited delusional beliefs and behavior. Dr. Foss opined that appellant met the statutory criteria to qualify as an MDO.
Dr. Foss testified that appellant's delusional beliefs continued while he was in prison. He had placed an advertisement in a local newspaper, advertising employment. Women answered his advertisement and sent him personal information, unaware he was a prison inmate. He consistently denied he suffered from a mental disorder and refused medication.
Dr. Philip S. Trompetter is a clinical psychologist specializing in forensic psychology. He reviewed appellant's central file and unit health record but could not perform a personal evaluation because appellant refused to be interviewed. Dr. Trompetter approached him in the prison yard where they had a 15-minute conversation. It was the opinion of Dr. Trompetter that appellant suffered from a delusional disorder, grandiose type.
Dr. William Robert Safarjan is a treating psychologist at ASH and appellant had been on his unit for 10 months. It was his opinion that appellant met the statutory criteria. Dr. Safarjan has been unable to treat appellant because he will not engage in conversation. From a review of appellant's mental health records, Dr. Safarjan concluded that appellant suffered from a severe mental disorder which he described as a grandiose and persecutory disorder.
Appellant's Testimony
Appellant testified at his MDO trial that his martial arts class was "about meeting your soulmate, about becoming a warrior, knighthood for men and for a woman princesshood. . . . It involves both the spiritual path and martial arts." One aspect of the class was physical. The "spiritual aspects [were] purification of the self, the soul, to become a person of virtuous conduct and chivalry." He described the rape as "an innocent mistake" because the scenario was enacted with the victim's permission. He indicated that "the roughness in the class was, obviously, possibly, outside the law and we didn't know it at the time." He testified that he would not teach the class again "now [that] I know that it's possibly too rough."
Appellant stated that, if paroled, he would begin doing hostage rescue work; run a consultation service for attorneys; conduct a conference for U.S. soldiers; begin some environmental projects; start an auto repair facility; and possibly found two colleges. Appellant also indicated that he had been working to pass two ballot measures. Ballot measure 777 concerned the development of a test to evaluate prisoners for a risk of reoffense, through the use of an electromagnetic device. Ballot measure 21 is an effort to make unlawful the arrest or imprisonment of women and to release all women from U.S. prisons.
DISCUSSION
Claim of Instructional Error
In order to qualify a MDO for commitment, the prisoner must meet certain statutory criteria. (§ 2962, subd. (a)-(d)(1).) The finder of fact must first determine whether the prisoner suffers from a severe mental disorder that is not in remission or cannot be kept in remission without treatment. (Id. subd. (a).) A severe mental disorder is defined in part as "an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior . . . ." (Ibid.)
The MDO Act allows the state to civilly commit certain types of prisoners for mental health treatment as a condition of parole. To qualify as an MDO, the trial court must find that: (1) the prisoner has a severe mental disorder that is not in remission, or cannot be kept in remission without treatment; (2) the severe mental disorder was a cause or aggravating factor in the crime for which the prisoner was sentenced; (3) the prisoner has been in treatment for the disorder for at least 90 days within the year prior to release on parole; and (4) the prisoner represents a substantial danger of physical harm to others because of the severe mental disorder. (§ 2962, subds. (a)-(d)(1).)
Appellant does not challenge the jury's findings that he met the statutory criteria. His sole contention on appeal is his allegation of instructional error. He contends that the jury instructions permitted the jury to find that he had a severe mental disorder without also finding that he was "volitionally impaired." Appellant further claims that the trial court had a sua sponte duty to instruct the jury to this effect.
"The rules governing a trial court's obligation to give jury instructions without request by either party are well established. 'Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jury's understanding of the case.'" (People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Mayfield (1997) 14 Cal.4th 668, 773.)
Appellant bases his argument on the People's instruction, No. 8 which tracks the language of section 2962, subdivision (a). The jury was instructed that "[t]he term 'severe mental disorder' means an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or that grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission in the absence of treatment is unlikely. [¶] The term 'severe mental disorder' does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances." (Italics added.) Appellant did not object to this instruction, nor did he request additional instructions.
People v. Putnam
Appellant asserts the following argument, but acknowledges that it was rejected by the First District in People v. Putnam (2004) 115 Cal.App.4th 575. However, he claims that the Putnam court erred in its analysis, and that its decision is no longer good law due to a subsequent Supreme Court decision, In re Howard N. (2005) 35 Cal.4th 117, 128.
The Putnam court established that the MDO statutory scheme does not require an express finding that a person's mental disorder causes serious difficulty in controlling his or her dangerous behavior. (People v. Putnam, supra, 115 Cal.App.4th at p. 583.) This rationale has been applied to the juvenile extended detention scheme (In re Howard N., supra, 35 Cal.4th at p. 132 [statutory scheme read to include a volitional impairment requirement]) and under the sexually violent predator law (People v. Williams (2003) 31 Cal.4th 757, 776 ["impairment-of-control" instructions under Sexually Violent Predator Act are not constitutionally required].)
In Putnam, the defendant was an MDO who suffered from a schizoaffective disorder, was delusional and denied he was guilty of the underlying offense. On certain occasions he had refused to take his medication and suffered from a mood disturbance which caused him to become angry, curse, and make inappropriate sexual remarks. He also had substance abuse problems. Although he had previously engaged in physical assaults, he had not done so in the last year. His most recent aggression appeared to be primarily verbal. (People v. Putnam, supra, 115 Cal.App.4th at pp. 577-578.)
The Putnam defendant contended the jury instructions were constitutionally inadequate because they did not define the phrase "'substantial danger of physical harm to others.'" (People v. Putnam, supra, 115 Cal.App.4th atp. 580.) He claimed that the jury could not make a finding of dangerousness unless it was also instructed that it must find he had a "serious present difficulty in controlling his behavior . . . ." (Ibid.) Appellant asserted that the failure to give such an instruction created the possibility that the jury might sustain the petition based solely on his severe mental disorder, without finding that he was sufficiently dangerous to warrant his recommitment. (Ibid.) He claimed the court had a sua sponte duty to so instruct the jury.
Relying on People v. Williams, supra, 31 Cal.4th 757, the Putnam court noted that the instructions tracked the language of the MDO statute. It concluded that, based on the instructions taken as a whole, the jury could not have found that he met the statutory criteria ". . . without having found that, as a result of appellant's 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." (People v. Putnam, supra, 115 Cal.App.4th at p. 582.)
The instructions "necessarily encompassed a determination that appellant had serious difficulty in controlling his violent criminal behavior, and . . . separate instructions on that issue were not constitutionally required." (People v. Putnam, supra, 115 Cal.App.4th at p. 582.) The court also noted that appellant's trial counsel neither objected to the instructions as given nor requested additional instructions.
In re Howard N.
Our Supreme Court subsequently addressed this issue within the extended detention scheme (Welf. & Inst. Code, § 1800 et seq.) as applied to a juvenile sex offender. (In re Howard N., supra, 35 Cal.4th at p. 128.) There, it interpreted the statutory scheme "to contain a requirement of serious difficulty in controlling dangerous behavior." (Id. at p. 132.) The court stated that "[w]hile the statutory language does not expressly require a demonstration that the person has serious difficulty controlling his dangerous behavior, construing the existing language to include such a requirement does not appear inconsistent with legislative intent." (Ibid.)
Although the Supreme court found the statute constitutional, it declined to read into the extended detention scheme the definitions of an MDO and SVP found in those statutory schemes. (In re Howard N., supra, 35 Cal.4th at p. 136.)
The Howard N. court reversed the Court of Appeal based on the lack of substantial evidence. It indicated that, while testimony demonstrated that the juvenile was dangerous, there was no evidence that his mental abnormality caused him serious difficulty controlling his sexually deviant behavior. (In re Howard N., supra, 35 Cal.4that p. 138.) We reject appellant's contentions that Putnam was wrongly decided and is now inapplicable in light of Howard N. The Putnam courtconcluded that an impaired volitional requirement could be read into the MDO law, and the Howard court reached the same conclusion with respect to the SVP law.
In the case before us, the jury's instructions tracked the language of the MDO statute, which included the definitions of a severe mental disorder, remission and treatment. The jury was also instructed that it must find that "[b]y reason of [appellant's] severe mental disorder, [he] represents a substantial danger of physical harm to others."
These instructions, considered as a whole, adequately informed the jury that appellant's mental disorder grossly impaired his capacity to control his behavior, and as a result, he represented a substantial danger of physical harm to others. There was no error.
The judgment (order of commitment) is affirmed.
We concur: YEGAN, Acting P.J. PERREN, J.