P. v. Adams>















Filed 6/22/12 P. v. Adams CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. RICHARD RODRIGUEZ ADAMS, Defendant and Appellant.

G044662 (Super. Ct. No. C88958) O P I N I O N

Appeal
from a judgment of the Superior Court of Orange
County, Lance Jensen, Judge.
Affirmed.

Rudy
Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry J.T. Carlton,
Lynne McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff
and Respondent.

Following
a jury trial, the trial court extended appellant’s involuntary commitment as a
person who has been found not guilty by reason of insanity. Appellant contends constitutional and instructional errors compel reversal,
but we disagree and affirm the judgment.


FACTS

Appellant was born in
1960. While growing up in the Philippines, he began using drugs and alcohol and was physically
abusive to one of his family’s house servants.
He also experienced hallucinations, and at one point was committed to a
mental health facility, where he received electroconvulsive therapy.

In
1983, at the age of 23, appellant and his family moved to the United States. While here
appellant struck his father in the back of the head with a tire jack for no
apparent reason. The attack left his
father hospitalized, but it was not reported to authorities. On another occasion, while the family was at
a market, appellant tried to hit his sister in the head with a hammer. His mother grabbed his arm and thwarted the
attack.

In 1991, appellant beat
up his 10-year-old nephew for going into his room without his permission. Although appellant claimed he merely pushed
his nephew, the boy was rendered unconscious and sustained a black eye as a
result of the attack.

On the heels of that
incident, appellant assaulted his mother during a violent episode that led to
his current commitment. The assault
stemmed from appellant’s strong, but false, belief his mother was giving away
his money to his brother-in-law, whom he greatly disliked. In conjunction with this perception,
appellant began hearing voices in his head that were telling him to hurt his
mother. One night when the voices came
to him, he picked up a knife and walked into the bathroom, where his mother was
cleaning. Without provocation or
warning, he cut his mother’s throat and stabbed her repeatedly before
eventually fleeing the house. An hour
later, he called the police and surrendered to authorities.

Appellant’s mother was
seriously injured as a result of the attack.
Although appellant was charged with attempted murder, he was found not
guilty by reason of insanity and committed to Patton State Mental
Hospital
(Patton). Appellant resisted treatment
early on, but over the course of the past two decades at Patton, he has made
good progress on his treatment program, which includes group therapy,
psychological counseling and psychotropic medication. In fact, at one point, his treatment team
recommended that he be placed in a conditional release program known as
CONREP. However, CONREP apparently did
not have the resources to supervise appellant, so the placement did not go
through at that time.

Although appellant has
been compliant with his treatment program in recent years and has never engaged
in any violent behavior at Patton, it is undisputed he suffers from two
distinct mental illnesses,
schizophrenia and polysubstance dependence disorder. Schizophrenia is a chronic, life-long illness
that involves hallucinations and delusions.
It can be “managed” by treatment, but never really goes away. Polysubstance dependence disorder is the
label used to describe a person’s substance abuse problem when they don’t have
a drug of choice, but will use any drug at their disposal to get high. Prior to coming to Patton, appellant used a
long list of substances, including cocaine, heroin, PCP, marijuana and even
cough syrup, to satisfy his addiction.
He was also known to go on extended drinking binges.

At trial, psychologist
David Harp testified he evaluated appellant on several occasions between 2006
and 2010, which is when the trial occurred.
He said appellant lacks insight into the commitment offense and has offered
different stories over the years as to how it occurred. In addition, he continues to suffer from
hallucinations and delusional thinking, particularly in regard to members of
his family. Consistent with his past
beliefs, appellant still has thoughts his family is arrayed against him and
cannot be trusted. He also has a
tendency to blame others for his own shortcomings.

Despite the fact
appellant has been able to cope well in the highly-structured confines of
Patton, Harp opined appellant would have considerable difficulty transitioning
into the community, where he would be responsible for managing his mental
illness and dealing with the rigors and stresses of everyday life. Appellant told Harp that if he were released
from Patton, he would like to go to college so he could find a “virgin” and
make her his wife. He said he was not
interested in the woman at Patton because they were “used.” These statements troubled Harp, who described
appellant’s future ambitions as highly unrealistic.

Although
appellant’s family has indicated they would be willing to help take care of him
if he were released from Patton, Harp did not think that would be a good idea,
because appellant has always had issues with his family. Indeed, history shows that his mental illness
symptoms tend to increase when he gets mixed up with his family. All things considered, Harp was of the
opinion that appellant’s mental illness makes him a substantial danger to the
physical well-being of others, and therefore he should not be released from
Patton.

Psychologist Veronica
Thomas shares that opinion. She
testified if appellant were released from Patton, his prognosis for success
would be low. Even though he told her he
was not experiencing any symptoms of his mental illness, he admitted he
sometimes hears voices in his head, telling him to do things. And as recently as 2009, he became visibly
upset when describing a decade-old incident during which his brother-in-law
refused to share his lunch with him.
According to Thomas, this indicates appellant lacks understanding and
insight into his mental illness. It also
shows his delusions about his family have not been adequately remedied.

Furthermore,
while appellant understands he needs to take his medication to stay healthy,
and he has said he would continue to do so if he were released, Thomas
testified that when patients leave Patton, they are often overwhelmed by
societal demands and are unable to manage their mental illness on their
own. Given appellant’s limited life
experience, Thomas believed his plan to go to college and marry a virgin was
rather bizarre. She did not think it
would be safe for him to be released into the community, in light of his
lengthy history of mental illness.


Dr. Mark Lo is a staff
psychiatrist at Patton who has treated appellant on numerous occasions over the
years. Called as a witness by the
defense, he said he was proud of the progress appellant had made at Patton over
the years. However, he admitted
appellant’s progress has been largely attributable to the fact he receives
close supervision at Patton and does not have a lot of close contact with his
family. Lo also conceded that despite
following his medication regiment, appellant still hears voices in his head and
experiences paranoia from time to time, which shows his schizophrenia is not in
full remission. When asked about a
particular visit appellant had with his mother in 1997, Lo said appellant got
extremely angry at the time. Although Lo
speculated appellant may have taken “some kind of aggressive action” toward his
mother during the visit, that suspicion has never been confirmed. However, in the wake of the visit, appellant
did admit he was so mad at his mother that he wanted to kill her. Like Harp and Thomas, Lo opined appellant met
the criteria for extending his commitment at Patton, in that his mental
disorder makes him a substantial danger to the physical safety of others, and
he has serious difficulty controlling his dangerous behavior.

Appellant’s mother and
two of his sisters also testified at the trial.
While recognizing appellant has had some issues in the past, they
believe he is no longer a danger to others and could be safely released into
the community. They also pledged to seek
continued treatment for appellant should he be released, although they had not
made any specific arrangements in that regard.

In closing argument,
defense counsel argued the prosecution failed to prove appellant is a danger to
others. He also proffered what is known
as a “medication defense” in involuntary commitment proceedings. Specifically, counsel argued appellant has
learned to control his mental illness with medication and would continue to
take his medication if he were to be released from Patton. Given that appellant has been compliant with
his treatment plan and well behaved at Patton for many years, counsel argued he
had earned the right to be released into the community.

The
jury did not see it that way. As alleged
by the prosecution, the jury found appellant has a mental illness that makes
him a substantial danger to the physical well-being of others and he has
serious difficulty controlling his dangerous behavior. Therefore, on November 17, 2010, the court extended appellant’s involuntary
commitment for two more years.

I

Appellant raises two
equal protection arguments, the first of which pertains to the availability of
outpatient treatment for people like himself who have been found not guilty by
reason of insanity (NGI’s), as compared to other people who have been
involuntary committed, such as mentally disordered offenders (MDO’s) and
sexually violent predators (SVP’s).
However, the issue is moot because since the time appellant’s commitment
was extended, he has been placed in CONREP for outpatient treatment.

At trial, the court
spent a great deal of time discussing with counsel whether appellant was
eligible for outpatient treatment and, if so, whether that was relevant to the
proceedings. Outside the presence of the
jury, the parties informed the court that, because appellant had already been
committed longer than the maximum amount of time he could have been imprisoned
due to his commitment offense, CONREP was not a placement option for him in
these proceedings. If the jury found he
met the criteria for involuntary commitment, the court would have to extend his
stay at Patton, and if the jury found he did not meet the criteria, the court
would have to release him outright into the community. Given these choices, the court determined appellant’s
eligibility for CONREP was irrelevant, and that ruling is not being challenged
on appeal.

However, over the course
of the trial, appellant’s attorney made clear to the court that if appellant’s
commitment at Patton were extended, his “first and primary goal” would be to
get into CONREP. And as it turned out,
appellant has achieved that goal, insofar as his request for outpatient
treatment was granted in June 2011.
Therefore, his complaint about being treated differently from other
types of involuntary committees in terms of access to outpatient treatment is
moot.

Despite this, appellant
contends we should consider his equal protection argument “because it presents
an important issue that is likely to reoccur.”
However, courts have a duty to refrain from passing judgment on issues
that are moot, unless they are capable of repetition, yet evading review. (Thompson
v. Department of Corrections (2001) 25 Cal.4th 117, 122; >In re Raymond G. (1991) 230 Cal.App.3d
964, 967.) Since, as appellant admits,
his equal protection claim regarding the availability of outpatient treatment
for NGI’s is likely to present itself in future cases, and since we see no bar
to review, we decline his invitation to consider it at this time.

II

Appellant also contends
the trial court violated his equal protection rights by allocating to him the
burden of proof on his medication defense.
The claim has been forfeited.

Pursuant to CALCRIM No.
3453, the trial court instructed the jury that to prevail on his medication
defense, appellant had to prove by a preponderance of the evidence 1) he no
longer poses a substantial danger of physical harm to others because he is
taking medication that controls his mental condition, and 2) he will continue
to take that medication in an unsupervised
environment. Appellant did not
object to the instruction, and on appeal he concedes it is a correct statement
of the law. (See People v. Bolden (1990) 217 Cal.App.3d 1591.)

By comparison, when the
state seeks to extend the commitment of an MDO, it must prove beyond a
reasonable doubt that the medication defense does not exist. (>People v. Noble (2002) 100 Cal.App.4th
184, 190.) That’s because the statutory
framework for extending the commitment of MDO’s differs from that required to
extend the commitment of NGI’s. (>Ibid.)
Appellant argues this differential treatment violates equal
protection, but he did not raise this argument in the trial court. Therefore it has been forfeited. (People
v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14; People v. Burgener (2003) 29 Cal.4th 833, 860-861, fn. 3; >Neil S. v. Mary L. (2011) 199
Cal.App.4th 240, 254.)

Although we are
reluctant to decide an issue on the basis of lack of an objection in the trial
court, it makes particular sense to apply the forfeiture rule in this case
because the adjudication of appellant’s equal protection claim may require the
presentation of additional evidence, including expert testimony, as the case of
People v. McKee (2010) 47 Cal.4th
1172, 1207-1211 makes clear. Appellant
requests that we take a cue from McKee
and remand the matter to the trial court for further proceedings. (See ibid.) However, whereas the defendant in >McKee preserved his constitutional challenges
for appeal by raising them in the trial court (id. at pp. 1184-1185), appellant did no such thing. Under these circumstances, the forfeiture
rule applies, and we see no reason to depart from it. (See generally In re Seaton (2004) 34 Cal.4th 193, 198-199 [explaining reasons for
the forfeiture rule and noting it applies even when the complained of error is
based on an alleged violation of the defendant’s fundamental constitutional
rights].)[1]

III

Lastly, appellant
contends the trial court prejudicially erred in refusing his request to
instruct the jury on how to consider circumstantial evidence. We disagree.

When, as here, the
prosecution’s case relies substantially on circumstantial evidence, the trial
court is required to give CALCRIM Nos. 223 and 224. CALCRIM No. 223 explains what circumstantial
evidence is, and CALCRIM No. 224 informs jurors that “before you may rely on
circumstantial evidence to find the defendant guilty, you must be convinced
that the only reasonable conclusion supported by the circumstantial evidence is
that the defendant is guilty. If you can
draw two or more reasonable conclusions from the circumstantial evidence and
one of those reasonable conclusions points to innocence and another to guilt,
you must accept the one that points to innocence. However, when considering circumstantial
evidence, you must accept only reasonable conclusions and reject any that are
unreasonable.”

Although, as respondent
concedes, the court should have given CALCRIM Nos. 223 and 224 in this case,
the omission of these instructions warrants reversal only when it is reasonably
probable the defendant would have obtained a more favorable result had they
been given. (People v. Rogers (2006) 39 Cal.4th 826, 886; People v. Burch (2007) 148 Cal.App.4th 862, 872-873.) Here, we are not convinced that probability
exists.

Appellant argues that,
because he has been well behaved at Patton and has said he would continue to
take his medication if he were released, the jury could reasonably infer he would
not pose a substantial danger to others in an unsupervised setting. He also notes that during deliberations, the
jury asked the court for a definition of the term “substantial danger,” which
he takes as a sign that the case was close.[2] However, the evidence was undisputed that
appellant still experiences symptoms of mental illness in the form of delusions
and hallucinations, he still lacks insight into his condition, and he does not
have a specific plan in place for continuing his treatment plan if he were to
be released from Patton.

Furthermore,
it is readily apparent appellant’s compliance with his medication regiment at
Patton has been largely due to the fact Patton is a highly-structured
environment which is designed and staffed to cater to his particular mental
problems. While appellant has stuck to
his medication plan in this setting, the medical experts all agreed he would
have tremendous difficulty transitioning to an unsupervised setting, where the
stresses and strains of everyday life would severely tax his ability to cope
with his mental illness. Even
appellant’s own expert, Dr. Lo, conceded this point. Like Drs. Harp and Thomas, Lo believed that
if appellant were placed in an unsupervised setting, he would have serious
difficulty controlling his behavior and constitute a substantial danger to the
safety of others, because of his mental illness. In light of this confluence of opinion, it is
not reasonably probable the jury would have reached a contrary conclusion, had
it been instructed on the rules respecting circumstantial evidence. Therefore, the court’s err in failing to give
CALCRIM Nos. 223 and 224 is not cause for reversal.

DISPOSITION

The judgment is
affirmed.





BEDSWORTH,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







ARONSON, J.