Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 167022
STEIN, J.
John Kolov (defendant) appeals an October 27, 2006 order extending his involuntary civil commitment as a mentally disordered offender (MDO), pursuant to Penal Code sections 2970 and 2972. He contends the order must be reversed because: (1) in violation of his federal due process rights, the jury instructions tracking the statutory language did not inform the jury, and it did not necessarily find, that defendant’s mental disorder caused serious difficulty in controlling his behavior; and (2) the prosecutor committed prejudicial misconduct.
All statutory references are to the Penal Code unless otherwise stated.
Facts
Dr. Gabrielle Paladino, a staff psychiatrist at Atascadero State Hospital, testified that she had been defendant’s treating psychiatrist from July 2005 through August 2006. When admitted in December 2004, defendant was coping with esophageal cancer, which was in remission at the time of trial. Defendant suffered from bipolar disorder with psychotic features. Some recent examples of defendant’s behavior that were symptomatic of his bipolar disorder included yelling at representatives of the Conditional Release Program, pulling out feeding tubes he needed because of his cancer, and, in violation of hospital security rules, going to another unit where he angrily searched for a psychologist who had treated him. The feeding tubes were critical not only to feed him but also to administer the medications for his mental illness.
The incident that led to his commitment had occurred in February 1997. Defendant threw a large rock at his neighbor and made racially derogatory slurs. He was convicted of making threats and placed on probation. After repeated probation violations, including threatening his probation officer, defendant was sent to prison, where he was diagnosed as being mentally ill. In December 2004, after he was released on parole, defendant was committed to Atascadero.
Dr. Paladino testified that defendant met the criteria of a mentally disordered offender. His 1997 offense was a crime of violence, and he continued to suffer from bipolar disorder. He also had a history of other contacts with law enforcement, including eight arrests for assault with a deadly weapon. He had been charged with burglary, assault on a peace officer, car theft, petty theft, possession of a bomb or bomb-like device, child molestation, battery, drug possession, brandishing a deadly weapon, arson within a jail, vandalism, and damage to a jail. His bipolar disorder included “a great deal of agitation and aggression.” Dr. Paladino opined that defendant’s bipolar disorder was not in remission, because even while medicated he still had symptoms of major thought and mood disorder. Although he would benefit from them, she did not currently have him on a mood stabilizer drug because the drug could have other negative medical consequences related to his cancer. Without the mood stabilizers he can become angry quickly, and his history shows that his uncontrolled anger can be associated with violence. Yet, defendant told Dr. Paladino that he thought he no longer had a mental disorder, and that he would not take his medication if released. This denial is also symptomatic of bipolar disorder. Defendant did not take his medication when released, and the lack of medication led to rapid deterioration, agitation, irritation, and violence. He had been in and out of jail, prison or mental institutions for over 40 years. In her opinion, based upon his history and her knowledge of his behavior and thought patterns, defendant represented a substantial danger of physical harm to others.
Defendant testified that if he were released, he would continue to take his medication to “remain balanced.” He also would continue cancer treatment, and see a psychiatrist. He planned to live at Laguna Honda or the YMCA. Defendant was confident that he could control his mental illness with medication, and his temper through anger management.
Analysis
I.
Due Process
“The safeguards of personal liberty embodied in the due process guaranty of the federal Constitution prohibit the involuntary confinement of persons on the basis that they are dangerously disordered without ‘proof that they have serious difficulty in controlling their dangerous behavior.’ ” (People v. Williams (2003) 31 Cal.4th 757, 759 (Williams), quoting Kansas v. Crane (2002) 534 U.S. 407, 413 (Crane).) Defendant contends that his recommitment as an MDO did not meet this due process requirement because under the instructions given tracking the statutory language, the jury was not asked to decide, and would not necessarily have found, that his mental disorder caused serious difficulty in controlling his dangerous behavior.
In Williams, supra, 31 Cal.4th 757, our Supreme Court applied the due process standard established in Crane, supra, 534 U.S. 407, to another civil commitment scheme, the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). The defendant in Williams contended his commitment was invalid because the statutory language of the SVPA did not include the federal constitutional requirement of proof of a mental disorder that causes “serious difficulty in controlling behavior” (Crane, at p. 413) and the jury was not specifically instructed on the need to find such impairment of control. (Williams, at p. 764.) The Supreme Court rejected this argument. It held that “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 citation, and who have ‘diagnosed mental disorders’ citation ‘affecting the emotional or volitional capacity’ citation that ‘predispose them to the commission of criminal sexual acts in a degree constituting them menaces to the health and safety of others’ citation, such that they are ‘likely to engage in sexually violent criminal behavior’ citation. This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal sexual behavior.” The court concluded that because the jury instructions tracked the statutory language, including the SPVA’s definition of a “diagnosed mental disorder,” no additional instruction was necessary. (Id. at p. 759.)
After Williams, supra, 31 Cal.4th 757 was decided, Division Two of this court, in People v. Putnam (2004) 115 Cal.App.4th 575 (Putnam), applied these principles to the MDO civil commitment scheme. The Putnam court acknowledged that Williams involved a different statutory scheme, but determined that “the same rationale adopted by our Supreme Court in Williams also forecloses the argument appellant makes here. In the MDO context, just as in the SVPA context, instructing the jury with the applicable statutory language adequately informs the jury of the kind and degree of risk it must find to be present in order to extend an MDO commitment.” (Putnam, at pp. 581-582, fn. omitted.) The Putnam court reasoned that “the instructions [which tracked the MDO statutory elements and definition of severe mental disorder] informed the jury that in order to find that appellant had a severe mental disorder, it had to find that he had ‘an illness or disease or condition that substantially impair[ed] [his] thoughts, perception of reality, emotional process, or judgment, or which grossly impair[ed] [his] behavior.’ Moreover, in order to find that the disorder was not in remission, the jury had to find that ‘the overt signs and symptoms of the severe mental disorder’ were not under control. Finally, the jury was instructed that it had to find that ‘by reason of such severe mental disorder, [appellant] represents a substantial danger [of] physical harm to others.’ . . . [¶] Given these instructions, taken as a whole, we conclude beyond a reasonable doubt [citation] that the jury could not have sustained the section 2970 petition in this case 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. In other words, the instructions given here, which tracked the language of the MDO statute, necessarily encompassed a determination that appellant had serious difficulty in controlling his violent criminal behavior, and thus, . . . separate instructions on that issue were not constitutionally required.” (Id. at p. 582, fn. omitted.)
Here, as in Putnam, supra, 115 Cal.App.4th 575 and Williams, supra, 31 Cal.4th 757, the jury instructions defined the statutory elements of an MDO finding. As in Putnam, the instructions also informed the jury that a “[s]evere mental disorder means an illness, or disease, or condition that substantially impairs the person thought perception of reality, emotional process, or judgment, or which grossly impairs behavior.” The instructions also stated that, in order to find that the disorder was not in remission, the jury had to find that “the overt signs and symptoms of the severe mental disorder” were not under control. Finally, the jury was instructed that it had to find that “by reason of his mental disorder, [defendant] represents a substantial danger of physical harm to others.” We agree with the court in Putnam that these instructions adequately inform the jury of the causal connection between defendant’s serious mental disorder and his lack of volitional control over his violent criminal behavior. As a result, in making the MDO finding, the jury implicitly found that defendant has serious difficulty in controlling his behavior as a result of his disorder. No separate instruction on volitional control was required.
The decision upon which defendant primarily relies, In re Howard N. (2005) 35 Cal.4th 117 (Howard N.) does not undermine Putnam, supra, 115 Cal.App.4th 575. Howard N. involved Welfare and Institutions Code section 1800 et seq., which provides procedures for the extended civil detention of mentally disordered juvenile offenders. (Id. at p. 122.) The court first held that despite the absence of an express statutory requirement, it could construe Welfare and Institutions Code section 1800 et seq. to require demonstration that the person has serious difficulty controlling his dangerous behavior. (Id. at pp. 132-135.) Unlike the SVPA and the MDO, this statutory scheme did not include a definition of “ ‘mental . . . deficiency, disorder, or abnormality’ ” linking the defendant’s mental disorder to a lack of volitional control. (Howard N., at p. 136.) Consequently, unlike Williams, supra, 31 Cal.4th 757, jury instructions tracking the statutory language of that scheme, which permitted the extension of a commitment upon a finding that “the person is physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality” (Welf. & Inst. Code, § 1801.5) would not necessarily inform the jury of the required showing that the mental disorder impaired the ability to control dangerous behavior. (Howard N., at p. 130.) The court therefore had to determine whether it could find the instructional error harmless, and determined it could not because the evidence that the defendant’s mental disorder impaired his volitional capacity to control his behavior was not overwhelming. (Id. at p. 137-138; see Williams, supra, at p. 778.)
The court in Howard N. specifically declined the Attorney General’s invitation to read “into the extended detention scheme ‘definitions for a mental disorder found in analogous MDO and/or SVPA civil commitment schemes’ . . . . Rather than define such conditions, which we are ill-equipped to do, we simply conclude that however the Legislature does or does not choose to define ‘mental . . . deficiency, disorder, or abnormality,’ due process principles require that the state demonstrate that the ‘mental . . . deficiency, disorder, or abnormality’ causes the person to have serious difficulty controlling his dangerous behavior.” (Howard N., supra, 35 Cal.4th 117 at p. 136.)
The decision in Howard N., supra, 35 Cal.4th 117 is inapposite because it involved a different statutory scheme that, unlike the SVPA and MDO commitment schemes, did not define mental disorder in a way that linked the condition to impairment affecting the ability to control behavior. Therefore, instructions tracking the statutory language of the civil commitment scheme at issue in Howard N. did not necessarily inform the jury of the need to find lack of volitional control. The analysis in Howard N. does not undermine Williams, supra, 31 Cal.4th 757, upon which the Putnam court (Putnam, supra, 115 Cal.App.4th 575) heavily relied in analyzing the adequacy of instructions based upon the MDO commitment scheme, because the SVPA and the MDO do define mental disorders, thereby rendering special instructions unnecessary. In fact, the Howard N. court discussed Williams at great length and in no way indicated its disapproval of that prior opinion. (Howard N.,at pp. 130-131.)
If anything, the analysis in Howard N. rejecting the Attorney General’s suggestion that the court read “into the extended detention scheme ‘definitions for a mental disorder found in analogous MDO and/or SVPA civil commitment schemes’ ” (Howard N., supra, 35 Cal.4th at p. 136) implies that if the Legislature had amended the statute to include a definition of mental disorder similar to that in the SVPA or the MDO scheme, then instructions tracking that statutory language would have been adequate.
We conclude that the analysis in Putnam, supra, 115 Cal.App.4th 575 is not undermined by Howard N., supra, 35 Cal.4th 117 and we find its reasoning persuasive. For the reasons stated in Putnam, we conclude under the instructions given tracking the statutory language, the jury would necessarily have found that his mental disorder caused serious difficulty in controlling his dangerous behavior. Therefore defendant’s recommitment as an MDO met federal due process standards.
II.
Prosecutorial Misconduct
Defendant also contends that the prosecutor committed prejudicial misconduct by:
1) violating an in limine ruling prohibiting either party from mentioning the consequences of a “true” finding or using defendant’s cancer to evoke sympathy; and
2) asking Dr. Paladino and defendant about irrelevant and inflammatory details of his criminal past.
“A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.)
Defendant first cites a series of questions the prosecutor asked of Dr. Paladino concerning defendant’s cancer and need for medical attention. He contends that this line of questioning was in violation of the in limine ruling, and an improper attempt to suggest to the jury that it should find the MDO allegations true because defendant would receive better medical care for his cancer than if he were released. Defendant, however, did not make any objection on these grounds, and therefore has waived any contention that these questions constituted misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821.) Defendant did object to the two other instances, one on cross-examination of defendant and one in closing argument, and the court sustained the objections.
On cross-examination the prosecutor asked defendant if anything would prevent defendant from leaving Laguna Honda hospital, if his application were accepted, and the court sustained his objection.
The prosecutor argued “a controlled mental condition through medication is a defense. However, I would submit to you that the current medication is not even working at this point. He is not in remission. And if he were to be released—” whereupon defendant objected, and the court sustained the objection.
We find no reasonable likelihood that the jury would have understood any of the line of questioning to which defendant now objects, or the prosecutor’s closing argument, as an improper plea to find the MDO allegations true based upon the irrelevant and speculative implication that he would receive better medical care for his cancer. (See People v. Cole, supra, 33 Cal.4th at pp. 1202-1203 [question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion]; People v. Sanders (1995) 11 Cal.4th 475, 526 [same].) The questioning of Dr. Paladino regarding defendant’s cancer was clearly related to explaining the need for feeding tubes, and why pulling them out was symptomatic of his mental disorder. In the cited portions, Dr. Paladino does not state or imply that he would not receive adequate medical care if he were released. To the contrary, later Dr. Paladino affirmed that defendant had stated that if he were released he would “do whatever it takes to treat the cancer” and “to his credit” he had been “very aggressive in treating [it] at Atascadero.” Read as a whole, the prosecutor’s closing arguments also would not reasonably be construed as suggesting that the jury should base its true finding on speculation that he would receive better medical care for his cancer if recommitted. To the contrary, the argument was devoted entirely to demonstrating that the evidence supported findings that defendant met all the statutory criteria for an MDO commitment.
Nor do we find prejudicial misconduct occurred as result of the questioning of Dr. Paladino and defendant concerning some of the details of defendant’s criminal history. First, defendant did not object to this line of questioning, and therefore has waived the claim of misconduct. (See People v. Hill, supra, 17 Cal.4th 800.) In any event, the questions of Dr. Paladino were all relevant and proper because they were asked in the context of explaining the basis for her opinion that because of defendant’s mental disorder he represented a substantial danger to others if released. She testified that she relied in part upon his criminal history, and the details she offered were relevant to further explain the basis of her opinion. The cross-examination of defendant on this subject was also not misconduct. The prosecutor asked about the details of defendant’s criminal history because defendant denied that many of the incidents had occurred. If defense counsel deemed some of the details to be too inflammatory, he could have objected and moved to exclude them based upon Evidence Code section 352 grounds, yet he did not.
We conclude that no prejudicial misconduct occurred .
Conclusion
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.