P. v. Crooks

Filed 8/7/09 P. v. Crooks CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Bernard E. Revak and Charles G. Rogers, Judges. Affirmed.

William G. Crooks appeals from an order extending his commitment to Patton State Hospital (Patton) as an individual found not guilty by reason of insanity. (Pen. Code,  1026.5; all undesignated statutory references are to the Penal Code.) He argues that the trial proceedings violated the statute's express guarantee of entitlement to the rights under the federal and state Constitutions for criminal proceedings. ( 1026.5, subd. (b)(7).) Crooks also contends there is insufficient evidence to support the required finding that as a result of a mental disease, defect, or disorder, he has serious difficulty controlling his dangerous behavior. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On the recommendation of Patton's medical director, the district attorney petitioned to extend Crooks's maximum commitment for an additional two years. The petition and attachments recited that in 1982, then 20-year-old Crooks was found not guilty by reason of insanity of vehicular manslaughter, assault with a deadly weapon, and hit and run. The court committed Crooks to Patton where staff determined that his initial maximum term was 7 years 6 months 29 days. According to the 2007 report from Patton attached to the petition (Patton report), "Mr. Crooks was suffering from a delusion that his roommates were going to torture and send him to a mental hospital where he would be starved. He believed the CIA or Secret Service was also involved. Shortly before the crime, Mr. Crooks cut his wrists in an attempt to commit suicide. He then fled from his roommates, went into one residence and took a screwdriver, and entered a second home where he disarmed the resident who had a handgun. In addition to cutting his wrists, he attempted to shoot himself, but the gun malfunctioned. He then commandeered an automobile and drove away. While fleeing, he had an automobile accident, which killed another person."

The petition alleged that between 1982 and 2008, Crooks was on outpatient treatment for a total of 13 years. Crooks returned to Patton the first time in 1986, after two years as an outpatient, "due to a refusal to take medication, . . . and an eventual psychotic decompensation." He returned to Patton the second time in 2005 after nine years under the care of the San Diego and Los Angeles County Conditional Release Program (CONREP), and more than two years on the run. During the time Crooks was "AWOL" from CONREP, he left threatening messages on CONREP's voice mail. In June, 2006, the court extended Crooks's maximum confinement to August 8, 2008, pursuant to section 1026.5.

The Wellness and Recovery Team that prepared the Patton report unanimously concluded that "Mr. Crooks [should] remain in [the] current setting for further evaluation assessment and treatment. Since he has limited insight in regards to his revocation, substance abuse history, and mental illness, he is not a candidate for community placement. He continues to be a danger to the health and safety of others."

The trial court appointed two mental health experts to examine Crooks. Dr. Valerie Rice, a forensic psychologist, prepared a report and testified at trial. She evaluated Crooks in person and reviewed his legal, medical and psychiatric records, including the Patton report. When Dr. Rice interviewed Crooks, "he had a mostly normal mental state just during that brief time period that [they] met." She was concerned, however, that staff at Patton reported that even on medication Crooks was having persecutory and grandiose delusions, as well as disorganized thoughts and behavior, similar to those identified at the time of his 1981 arrest. There was evidence in Crooks's records that he failed to take his medication and relapsed into alcohol abuse when previously in outpatient treatment. Dr. Rice acknowledged that Crooks had not been a danger to others at the various mental health facilities, but noted that he had limited insight into his mental disorder and alcohol problem. He also lacked a viable plan for how these problems would be addressed in the community. Dr. Rice opined that: (1) Crooks suffered from schizophrenia, paranoid type, and alcohol dependence; (2) he met the criteria for a severe mental disorder; (3) his symptoms of a mental disorder were not fully in remission even with treatment; (4) his alcohol dependence was in remission in a controlled environment; (5) there was a question whether his symptoms would remain in remission in the future outside a controlled environment; and (6) he still posed a substantial danger of physical harm to others.

Dr. Richard G. Rappaport, a psychiatrist, also interviewed Crooks, and filed a written report which was admitted into evidence. Dr. Rappaport did not testify at trial. He agreed with the diagnosis of paranoid schizophrenia and substance abuse, but concluded that as of the date of the examination, Crooks "must be regarded as having had his sanity restored." However, Dr. Rappaport qualified his opinion by stating in the next paragraph: "Unfortunately, Mr. Crooks' history shows that he is unable to maintain such a status once he is out on his own because he does not remain on his medication and thus relapses. When he is not hospitalized he reverts to using other avenues of stress relief such as meditation, chanting and possibly substance abuse which makes him feel that he does not need the medication, which he acknowledges he needs when in the hospital. These circumstance[s] present a major conflict because once one's sanity has been restored they are eligible and appropriate for release from incarceration. It will thus have [to] be the trier of fact's decision as to whether or not to allow this patient to leave the Hospital again."

Based on the written reports, Dr. Rice's testimony, and a letter from Crooks, the trial court found beyond a reasonable doubt that Crooks currently suffered from a diagnosed mental disorder, disease or defect that was not currently in remission, and "due to this mental disease, defect, and disorder [he represented ] a substantial danger of physical harm to others." The court found the petition to be true and extended Crooks's maximum commitment to August 7, 2010.

DISCUSSION

I. Alleged Constitutional Violations

Section 1026.5, subdivision (b) outlines the procedure to be followed to extend the maximum commitment of a person found not guilty by reason of insanity and committed to a state hospital pursuant to section 1026. It provides that the person named in the section 1026.5 petition has the right to be represented by an attorney and the right to a jury trial, unless waived by both the person and the prosecuting attorney. Section 1026.5, subdivision (b)(7) provides that "[t]he person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees."

Crooks contends that reversal is required because the proceedings for extension of his commitment were not conducted in accordance with the constitutional rights guaranteed a criminal defendant under state and federal law. We disagree for reasons we explain.

We begin by acknowledging the challenge faced by the courts in insuring that individuals who suffer from mental illness receive fair hearings under constitutional, statutory and decisional law. The United States Supreme Court recently observed that: "Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways. . . . In certain instances an individual may well be able to satisfy [a] mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel." (Indiana v. Edwards (2008) ___ U.S. ____ [171 L.Ed.2d 345, 356].) Faced with this reality, courts have carved out exceptions to constitutional guarantees otherwise applicable to criminal defendants. Three of those exceptions apply in this case.

A. Right To Discharge Appointed Counsel:

The first three issues raised by Crooks focus on the following exchange between Crooks and the court. On the day initially set for trial, Crooks's attorney informed the court that although she was ready to proceed, Crooks had asked if he could get a continuance "to hire a private attorney or to represent himself." When questioned directly by the court, Crooks responded, "We were feeling that having a jury trial would be in my best interest because a lot of these cases are disposed of through plea bargains, and we would feel that a jury trial would be more fair in my case, to have my peers judge this case, because this case has been in law courts for 26 years." Crooks described the terms of a possible plea bargain. He also indicated that he had talked to a lawyer friend who was "not experienced enough in this case." Crooks told the judge that he had the money to retain a lawyer and had sent his debit card numbers to his public defender.

The court denied Crooks's request for a continuance to try to retain counsel on grounds it was untimely. The court continued, "This is a matter in which the witnesses are ready to proceed and you are represented, in my view, by counsel who is exceptionally skilled in handling these cases. It may be that you don't particularly like what the options are, but those options are limited by the law, and I know that your present lawyer is ready and able to go to trial and ready and able to give you representation that is good as any that you are likely to receive."

Crooks argues that the court violated his constitutional rights under People v. Marsden (1970) 2 Cal.3d 118 when it denied his request for continuance without inquiring into the reasons for his dissatisfaction with counsel. He also maintains that his request was "as timely as humanly possible."

The record shows that Crooks was not entitled to a Marsden hearing. The court gave Crooks an opportunity to describe generally his reasons for dissatisfaction with the public defender. His response indicated only that he wanted a jury trial and his attorney apparently did not. A disagreement over trial tactics such as this is insufficient to justify substitution of counsel in the criminal law setting. (People v. Crandell (1988) 46 Cal.3d 833, 859-860.) Nothing in the record suggests that Crooks questioned his attorney's diligence or competence. Crooks failed to show that his right to assistance of counsel was substantially impaired because the court denied his request for a continuance to obtain new counsel. (People v. Clark (1992) 3 Cal.4th 41, 104.)

Even if we were to conclude that the trial court erred in failing to inquire further into Crooks's reasons for wanting to replace the public defender, which we do not, it is not reasonably probable that Crooks would have obtained a more favorable result if the court had granted the continuance to allow him to replace the public defender. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) As we described in the factual and procedural background, uncontradicted evidence showed that Crooks remained dangerous as a result of his mental condition because he failed to take his medication, lapsed into substance abuse, and engaged in dangerous or threatening behavior when living outside the hospital setting.

Contrary to Crooks's argument, the right to counsel in civil commitment proceedings is a statutory, not a constitutional right, and therefore not subject to the stricter standard of review under Chapman v. California (1967) 386 U.S. 18. (People v. Williams (2003) 110 Cal.App.4th 1577, 1592-1593 [applying Watson standard to denial of mentally disordered offender's (MDO's) right of self-representation].) Although section 1026.5 differs from the MDO statutes and expressly states that the person subject to commitment in not guilty by reason of insanity proceedings "shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings," the Williams rationale still applies. "'[A]lthough many constitutional protections relating to criminal proceedings are available in extension proceedings, the application of all such protections is not mandated by section 1026.5. The statutory language merely codifies the application of constitutional protections to extension hearings mandated by judicial decision.' [Citation.]" (People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1158 (Powell).)

B. Right To Self-Representation:

The court denied Crooks's alternative request for self-representation. In addition to finding that the request was untimely on the day of trial, the court stated that based on its review of the record, Crooks's proposal did not appear to be "workable." Citing Faretta v. California (1975) 422 U.S. 806 (Faretta) and People v. Stanley(2006) 39 Cal.4th 913 (Stanley), Crooks contends that the court violated his constitutional rights by failing to conduct an inquiry and grant his request to represent himself. Again, the record demonstrates that Crooks was not entitled to a Faretta hearing.

In the criminal law setting, the Sixth Amendment requires that the trial court grant a defendant's request for self-representation if three conditions are met: (1) the defendant is mentally competent, and makes his request knowingly and intelligently, having been apprised of the dangers of self-representation; (2) the request must be unequivocal; (3) the defendant must request self-representation within a reasonable time before trial. (Stanley, supra, 39 Cal.4th at pp. 931-932; see also Faretta, supra, 422 U.S. at p. 835.)

The United States Supreme Court recently addressed a request for self-representation where the state court found the defendant "mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself." (Indiana v. Edwards, supra, ___ U.S. at p. ____ [171 L.Ed.2d at p. 350].) It explained that "Faretta does not answer the question before us both because it did not consider the problem of mental competency . . . , and because Faretta itself and later cases have made clear that the right of self-representation is not absolute." (Id. at p. 353.) The Supreme Court explained that "the trial judge . . . will often prove best able to make more fine-tuned mental capacity decision, tailored to the individualized circumstances of a particular defendant." (Id. at p. 357.) It held that even in the Faretta context the Constitution permits state court judges to "take [a] realistic account of [the] particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." (Ibid.)Not guilty by reason of insanity proceedings differ from MDO proceedings in the Faretta context because the person subject to commitment has been adjudged not guilty by reason of insanity. (Compare People v. Williams, supra, 110 Cal.App.4th at p. 1588 [a person facing MDO proceedings has the right to refuse counsel and represent himself].)

Here, the court had reviewed Crooks's mental health record, and was aware that he continued to experience some symptoms of paranoid schizophrenia, including disorganized thoughts, behaviors and speech, and delusions, even when medicated. In addition, the Patton report stated that Crooks minimized the impact of his psychiatric symptoms, failed to understand the need for treatment, and believed he was in full remission. In light of this record, we conclude that the trial court did not err in denying Crooks's request to represent himself based on its assessment of his mental competence.

The record also supports the conclusion that Crooks failed to demonstrate that his request was unequivocal. A Faretta motion is properly denied when made in passing anger or frustration after denial of a motion to replace appointed counsel or disagreement with counsel over trial tactics. (People v. Marshall (1997) 15 Cal.4th 1, 22-23; People v. Scott (2001) 91 Cal.App.4th 1197, 1205.) Crooks's request for self-representation was an alternative to his request to replace appointed counsel which, in turn, was based on a disagreement with counsel over whether to waive jury trial.

In any event, any error in denying Crooks's request for self-representation was harmless under Watson, which applies for the reasons we already explained. (See People v. Williams, supra, 110 Cal.App.4th at p. 1580.)

C. Right To Jury Trial:

In the face of a contrary holding in Powell, supra, 114 Cal.App.4th at page 1158, Crooks argues that the court denied his constitutional right to trial by jury by accepting defense counsel's waiver over his objection. He maintains that the Powell court ignored the express language of section 1026.5, subdivision (b), and improperly carved out exceptions to constitutionally guaranteed rights that were not intended by the Legislature.

We acknowledge that the language of section 1026.5 might appear to grant broad constitutional protections to persons involved in not guilty by reason of insanity proceedings. However, as Powell explains, the language used by the Legislature "'merely codifies the application of constitutional protections to extension hearings mandated by judicial decision.' [Citation.]" (People v. Powell, supra, 114 Cal.App.4th at pp. 1157-1158.) Other constitutional protections granted to criminal defendants are inapplicable in not guilty by reason of insanity extension trials, including prohibitions against ex post facto laws, self-incrimination, and double jeopardy. (Id. at p. 1158.) There was no error.

D. Right To Confront Witnesses:

Crooks's final claim of constitutional error arises from Dr. Rice's reliance on hearsay contained in the Patton report and the report prepared by Dr. Rappaport. Crooks contends that the court denied his right to confront witnesses in violation of the Sixth Amendment as interpreted by Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

We conclude that Crooks forfeited the issue on appeal by failing to object to Dr. Rice's testimony at trial. (People v. Williams (2008) 43 Cal.4th 584, 620.) Crooks stipulated to Dr. Rice's credentials as an expert. More significantly, he offered Dr. Rappaport's entire report into evidence.

In any event, Crooks's counsel had ample reason not to object. First, expert witnesses are entitled to rely on "matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code,  801, subd. (b)), italics added.) Mental health experts routinely rely on interview reports and observations of nontestifying experts. (People v. Cooper (2007) 148 Cal.App.4th 731, 747 (Cooper), citing People v. Campos (1995) 32 Cal.App.4th 304, 307.) Second, hearsay relied upon by experts in formulating their opinions is not "testimonial" within the meaning of Crawford and the confrontation clause. It is not offered for the truth of the facts stated but merely as the basis for the expert's opinion. (Cooper, supra, 148 Cal.App.4th at pp. 746-747; see People v. Jantz (2006) 137 Cal.App.4th 1283, 1293, 1295.) Third, it is questionable whether Crawford, which is historically based on the Sixth Amendment right of confrontation, applies to civil not guilty by reason of insanity proceedings. (See People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1368 [Crawford does not apply to civil commitment proceedings under the Sexually Violent Predator Act (Welf. & Inst. Code,  6600 et seq.)].) Again, there was no error.

II. Sufficiency of the Evidence

Section 1026.5, subdivision (b)(1) sets forth the statutory requirements for extended commitment, namely, that "the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." The California Supreme Court recently required that the People also prove that the person subject to civil commitment has serious difficulty controlling his dangerous behavior as a result of a mental disorder. (In re Howard N. (2005) 35 Cal.4th 117, 131-132 (Howard N.); People v. Galindo (2006) 142 Cal.App.4th 531, 536 (Galindo).) Both cases pre-date the section 1026.5 petition and trial in this case.

Crooks argues that he is entitled to reversal because the district attorney neither alleged nor proved that as a result of mental illness, he was unable to control his dangerous behavior. We conclude there is sufficient evidence to support the required finding.

We begin by rejecting the Attorney General's argument that Crooks forfeited his argument by failing to object to the trial court's order on due process grounds. "A challenge to the sufficiency of [the] evidence is forfeited in the trial court only by failure to file timely notice of appeal." (Galindo, supra, 142 Cal.App.4th at p. 538.)

When a person challenges the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction in a criminal action. Therefore, we review the entire record in the light most favorable to the court's extension order to determine whether any rational trier of fact could have found the expanded requirements of section 1026.5, subdivision (b)(1) beyond a reasonable doubt. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 (Zapisek).) The testimony of a single mental health expert constitutes substantial evidence to support the extension of his commitment under section 1026.5. (Ibid.) In light of Howard N. and Galindo, we will affirm extension of Crooks's commitment only if we find substantial evidence that established the elements set forth in section 1026.5 and showed that he had serious difficulty controlling his potentially dangerous behavior. (Zapisek, supra, 147 Cal.App.4th at p. 1165.)

The record reveals that Crooks failed to take his medication for paranoid schizophrenia when placed on outpatient treatment in the past. In 1986, he returned to Patton "due to a refusal to take medication, making unauthorized phone calls, deterioration of personal hygiene, increased irritability, problems with a female employee at a business school, and an eventual psychotic decompensation." Crooks's release under CONREP six years later was revoked when he left the program. While "AWOL," Crooks reportedly used marijuana, alcohol and psychedelic drugs. He made threatening phone calls to CONREP staff before his arrest in 2004. This evidence indicates that while Crooks may have initially tried to control his dangerous behavior while on outpatient treatment in the past, he was unable to do so on a consistent, long-term basis. (Compare, Galindo, supra, 142 Cal.App.4th at p. 539 [extension of commitment reversed where there was "little, if any, evidence that [defendant] tried to control his behavior" and "encountered serious difficulty when trying to do so"].)

Here, the only dispute between Dr. Rice and Dr. Rappaport was over the question whether Crooks's mental disease was in remission at the time of his most recent evaluations. Dr. Rice and Dr. Rappaport agreed that Crooks failed to take his medication when unsupervised. Indeed, Crooks told the staff at Patton that if released into the community, he would not continue to take his medication. Patton staff also reported that Crooks continued to show symptoms of paranoid schizophrenia even when medicated. "He is frequently observed pacing hallways and articulating with unseen stimuli." More troubling with respect to the question whether Crooks would be able to control his dangerous behavior on release, was the staff's observation that he "does not recognize precursors, warning signs and symptoms of dangerous behavior." Because Crooks currently "has very limited insight into his mental disorder and alcohol problem" and believes he no longer suffers from a mental disease and is in full remission, Dr. Rice feared that he would go off his medication again if released in the community, and therefore posed a substantial danger of physical harm to others. Implicit in this conclusion is her opinion that Crooks had serious difficulty controlling his dangerous behavior as an outpatient due to his mental condition. Dr. Rice's opinion provided substantial evidence on that point. (Zapisek, supra, 147 Cal.App.4th at p. 1165.)

DISPOSITION

The order is affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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