P. v. Greenwood
Filed 12/14/12 P.
v. Greenwood CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CHARLES EDWARD GREENWOOD,
Defendant and
Appellant.
H037815
(Santa Clara County
Super. Ct. No. 187301)
Charles Edward Greenwood appeals
from an order entered pursuant to the Mentally
Disordered Offender (MDO) Act (Pen. Code, § 2960 et seq.
name="_ftnref1" title="">[1] extending
his commitment to Napa State Hospital.
Greenwood contends that the evidence is insufficient to support the
trial court’s finding that he represents a substantial danger of physical harm
to others if released. He also argues
that the court failed to advise him of the right to a jury trial as required by
the MDO Act and failed to obtain his personal waiver of the right, errors he
claims warrant reversal.
We conclude that the evidence is sufficient
to support the trial court’s finding and, although the record does not show
that the court gave the required advisement or that Greenwood expressly waived
the right, the evidence is such that it is not reasonably probable that a jury
would have reached a different result. (
836 (Watson).) Accordingly, we shall affirm.
I.
Legal Framework
violent crimes related to their mental
disorders and who continue to pose a danger to society receive mental
health treatment until their mental disorders can be kept in remission. (People
v. Robinson (1998) 63 Cal.App.4th 348, 351-352; §§ 2962, 2970.) If an offender’s condition cannot be kept in
remission without continued treatment, the offender can be subject to continued
involuntary commitment even after a scheduled parole release date. (§ 2970.)
Continued involuntary commitment “shall be for a period of one year from
the date of termination of parole or a previous commitment or the scheduled
date of release from prison as specified in Section 2970.†(§ 2972, subd. (c).)
In order to recommit a person under section
2972, the trial court must find (1) the person continues to have “a severe
mental disorderâ€; (2) the person’s
“mental disorder is not in remission or cannot be kept in remission without
treatmentâ€; and (3) the person continues to represent a “substantial danger of
physical harm to others.†(People v.
Beeson (2002) 99 Cal.App.4th 1393, 1398-1399; § 2972, subds. (c),
(e).) “[A]n MDO whose symptoms are
controlled by medication and who is not dangerous while on medication is by
definition ‘in remission,’ and represents no danger to others. Such a person does not meet the statutory
criteria for an extension of his or her MDO commitment. (§§ 2962, 2972, subd. (c).)†(People
v. Noble (2002) 100 Cal.App.4th 184, 190.)
To warrant continued commitment in such a case, the People must prove,
beyond a reasonable doubt, that the person will not take his medication if
released and, in an unmedicated state, he represents a substantial danger of
others. (Ibid.)
II.
Factual and Procedural Background
Greenwood
was convicted in 1996 of one count of violating section 288, subdivision (a),
based upon evidence that he had attempted to orally copulate a young child in a
public bathroom. He was sentenced to
three years in prison and upon his release was admitted to Atascadero State
Hospital pursuant to the MDO Act. He was
later transferred to Napa State Hospital where he still resides.
Greenwood’s
commitment was set to expire on February 17, 2012. On July 28, 2011, the district attorney filed
a petition to extend the commitment another year. According to the petition, Greenwood
continued to suffer a severe mental disorder that is not in remission and
cannot be kept in remission without continued treatment, and that by reason of
his mental disorder Greenwood represents a substantial danger of physical harm
to others.
A
total of six hearings were held in advance of the December 1, 2011 trial
date. Greenwood was not present at any
one of the six. He was present at trial. There is no mention of the right to or waiver
of a jury trial anywhere in the record.
Proceedings began on December 1, 2011, with the court’s question: “Are both sides ready to proceed on the
petition?†Whereupon a court trial
commenced.
The
only witness was Haesook Yuo, M.D., Greenwood’s psychiatrist at Napa State
Hospital. Yuo diagnosed the 62-year-old
Greenwood as having chronic schizophrenia and vascular dementia. He has auditory hallucinations and delusions,
difficulty learning new things, and difficulty recalling past and recent
memory. He has psychogenic polydipsia,
which is a psychological disorder that makes him drink water excessively. Staff nurses reported that Greenwood has
engaged in sexual activity with another patient. He also became angry and cursed at a staff
person when his demand was not met immediately.
Greenwood is on medication for his mental disorder; the medication is
given to him by hospital staff. Yuo
believes that Greenwood would not take his medication on his own.
According
to Yuo, Greenwood’s dementia is degenerative, which means that it gets worse
over time. Indeed, his IQ has dropped
significantly since he was first admitted; he now tests in the range of 62,
which is borderline between low-normal and “dementic.†The condition obstructs blood vessels in
multiple areas of the brain, impairing the ability to think and learn. As a result of this condition, Greenwood “has
a deficit in learning how to cope with his impulses, sexual impulses, and what
is wrong and what is right. And what he
did was wrong. And he’s not able to
comprehend [the] significance of his act and also not able to learn how to cope
with his impulses.†Although he attends
symptom management and other skill learning groups, Greenwood is unable to
benefit from the groups because he cannot absorb the information. He has shown no insight into his offense,
does not take responsibility for it, and has shown no empathy for the child
victim. Yuo believes that Greenwood
“needs sex offender treatment before he’s released to the community, if he can
benefit from it.†But Greenwood’s
cognitive function is too low to benefit from the treatment. It is Yuo’s opinion that Greenwood’s
schizophrenia, complicated by dementia, makes Greenwood a substantial risk of
harm to others.
Yuo
agreed that she has not diagnosed Greenwood with either a personality disorder
or a substance abuse problem. She was
asked on cross-examination whether Greenwood’s sexual desire would diminish
with age. Yuo replied that Greenwood’s
“dementic process†causes him to be disinhibited, which makes it difficult to
say whether his sexual impulses would be reduced as he grows older.
Greenwood
did not put on any evidence. His counsel
argued that Yuo’s risk assessment was unreliable because she had not used a
formal risk assessment tool but had relied upon her clinical judgment. The trial court rejected the argument,
finding beyond a reasonable doubt that the allegations of the petition are
true. This appeal followed.
III.
Discussion
A.
Sufficiency of the Evidence
Greenwood first argues that the
evidence is insufficient to support the finding that he presents a substantial
danger of physical harm to others. “In
considering the sufficiency of the evidence
to support MDO findings, an appellate court must determine
whether, on the whole record, a rational trier of fact could have found that
defendant is an MDO beyond a reasonable doubt,
considering all the evidence in the light which is most favorable to the
People, and drawing all inferences the trier could reasonably have made to
support the finding.†(People v.
Clark (2000) 82 Cal.App.4th 1072, 1082.)
Greenwood does not deny that he
suffers a severe mental disorder. He
argues that since there is no evidence that he has been physically violent
toward staff or patients at the hospital the evidence is insufficient to
support a finding that he represents a physical danger to others. Greenwood’s offense, attempting to orally
copulate a small child, is an example of the type of physical danger that is of
concern in this case. He need not engage
in fisticuffs with hospital staff in order to show that he continues to
represent that type of physical danger.
Although he has had no opportunity to commit further lewd acts upon
children in the controlled environment of the hospital, he has had a verbal
altercation with a staff member and sex with another patient and his
psychiatrist testified that Greenwood lacks the mental capacity to learn how to
cope with his impulses or to distinguish between right and wrong. Given the nature of the conduct that led to
Greenwood’s initial incarceration, his continued inability to recognize that
the conduct was wrongful is substantial evidence to support the conclusion that
Greenwood remains physically dangerous to others if released.
B.
The Jury Trial Advisement
to a jury trial and, therefore, was deprived of his
did not give the advisement and that such an advisement is required by the
statute. Indeed, as section 2972,
subdivision (a), provides, in part, “The court shall conduct a hearing on the
petition under Section 2970 for continued treatment. The
court shall advise the person of his or her right to be represented by an
attorney and of the right to a jury trial. . . . [¶] . . . The trial shall
be by jury unless waived by both the person and the district attorney.†(Italics added.) According to Greenwood, depriving him of the
right to a jury is structural error warranting reversal per se. We disagree.
Although the present matter was
tried to the court without a jury, the record is devoid of any indication that
the court adhered to the statutory requirement of advising Greenwood of his
right to a jury or that Greenwood or his counsel expressly waived the
right. The same problem has come to us
repeatedly in the recent past.
of such proceedings in the absence of some indication in the record that the
court has taken its statutory duty seriously and provided the rights afforded
by the law, “we are duty bound to affirm absent a miscarriage of justice. (Cal. Const., art. VI, § 13.) A miscarriage of justice arises from the
violation of a state statutory right, like an MDO defendant’s right to counsel
[or his right to a jury trial], only when a reasonable probability exists the
defendant would have obtained a more favorable result had the error not
occurred. (Watson, supra, 46 Cal.2d at p.
836.)†(People v. Wrentmore (2011) 196 Cal.App.4th 921, 931; see also, People
v. Cosgrove (2002) 100 Cal.App.4th 1266, 1275-1276 [wrongly denying jury
trial to MDO held harmless]; People v.
Williams (2003) 110 Cal.App.4th 1577, 1592-1593 [right to counsel in MDO
proceedings subject to
be declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error.†(Watson, supra, at p.
836.) A more favorable result is not
reasonably probable here.
People v. Cosgrove, supra, 100 Cal.App.4th at
page 1276, held that the denial of a jury trial was harmless error when the
expert testimony in support of an MDO finding was overwhelming and unshaken by
cross-examination. Greenwood argues that
the evidence here is not overwhelming.
He maintains that it is reasonably probable a jury would not have found
beyond a reasonable doubt that he was physically dangerous because there was no
evidence of his being physically violent with hospital staff or patients. But as we explained, the physical danger of
concern is Greenwood’s potential to inflict harm upon children or other
vulnerable persons. There is,
thankfully, no evidence of any recent attempts to copulate young children, but
there is evidence of his sexual impulsiveness and of his inability to learn how
to deal with his impulses. Most powerful
is the evidence that he takes no responsibility for his prior conduct and
cannot appreciate the difference between right and wrong. There was no conflicting evidence. And on cross-examination, Yuo clarified that
even Greenwood’s advancing age did not ensure that he would lose interest in
sex since his progressive dementia was, itself, disinhibiting. In light of this, it is not reasonably
probable that a jury would have reached a conclusion any different from that of
the trial court.
IV.
Disposition
The judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
Further unspecified statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
At oral argument the People conceded
that it would be helpful in resolving similar disputes if the parties or the
court would express on the record the status of the defendant’s mental acuity,
his understanding of his jury trial right, and his ability to comprehend and
cooperate with his attorney’s efforts.
Such a brief discussion with the court would clarify issues which are
frequently appearing in the Court of Appeal due to trial court records which
often are silent on the subject.
