P. v. Hicks

 

 

 

Filed 1/2/14  P. v. Hicks CA1/2

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

FIRST APPELLATE DISTRICT

 

DIVISION TWO

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. DENNIS R. HICKS,             Defendant and Appellant.

A138643         (Napa County       Super. Ct. No. CR34668)

 

            Dennis R. Hicks appeals from a final
judgment determining that he qualifies as a href="http://www.sandiegohealthdirectory.com/">mentally disordered offender
(MDO), and recommitting him to Napa State href="http://www.sandiegohealthdirectory.com/">Hospital for a
period of one year.  (Pen. Code,
§§ 2790, 2792.)href="#_ftn1"
name="_ftnref1" title="">[1]  His court-appointed attorney has filed a
brief raising no legal issues and requesting this court independently review
the record pursuant to Anders v.
California (1967) 386 U.S. 738 (Anders)
and People v. Wende (1979) 25 Cal.3d
436 (Wende).

            Appellant’s counsel acknowledges
that, pursuant to People v. Taylor
(2008) 160 Cal.App.4th 304 (>Taylor), judicial review pursuant to Anders
and Wende is not required in
appeals from civil commitments under the Mentally
Disordered Offender Act (MDOA).  (§ 2962.)  Counsel
believes, however, “that the California Supreme Court would, and should, reach
a different result [from Taylor] in MDO cases.”  Counsel also
maintains that “even if Wende/Anders procedures
are not required because of the similarities between MDO and criminal cases,
they are required under the due process clause of the State and federal
constitution.”  As counsel sees it, >Conservatorship of Ben C. (2007) 40
Cal.4th 529 (Ben C.) and >In re Sade C. (1996) 13 Cal.4th 952,
which are the bases of the holding in Taylor,
involve appeals in proceedings in which the risk of an erroneous result that
would result from the elimination of Wende
review is far less than that which would result from the elimination of such
review in MDOA cases.  Counsel argues, in
other words, that Taylor’s analysis of the procedural protections afforded an MDO in section
2962 proceedings “overstates their significance.”

            Finally, appellant argues that even
if we agree with Taylor that Wende/Anders review
is not required in MDO cases, we nevertheless retain discretion to conduct such
review (see Ben C., at p. 553, fn.
7), and should do so.

            Concurring with the reasoning and
result in Taylor, we
decline to depart from the ruling in that case. 
However, we are mindful of the forceful dissent in Ben C. emphasizing the fundamental nature of the private interests
at stake in that case, which are comparable to those at stake in this case, and
observing that the majority’s holding “in no way prevents the href="http://www.mcmillanlaw.us/">Courts of Appeal from expending the
minimal effort required to provide these appeals with a second look and to
provide an opinion that briefly notes the court has reviewed the record and that
identifies the findings and evidence supporting the order.”  (Ben C.,
supra, 40 Cal.4th at p. 556.)  For
those reasons, we shall undertake review of the record.

FACTS AND PROCEEDINGS BELOW

            The record is unclear as to why and
exactly when appellant was originally found to be an MDO and committed to Napa State Hospital.  It does indicate, however, that as a result
of his mental state appellant has been “in and out of the hospital since the
age of 15” and may initially have been committed to Napa State Hospital
due to a finding he was incompetent to stand trial.  (See §§ 1026, 1026.5.)  The record also shows that in 1999, while a
patient in that facility, appellant was charged by the District Attorney of
Napa County with assault with a deadly weapon other than a firearm (§ 245,
subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)).  On October 6th of that year, after the
battery had been dismissed, appellant entered a plea of guilty to the assault.

            The instant proceeding commenced on November 20, 2012, when the District Attorney of Napa County filed a petition seeking
to recommit appellant as an MDO pursuant to sections 2970 and 2972.  Jury trial commenced on May 6, 2013, and a verdict concluding appellant “represents a substantial
danger of physical harm to others” (§ 2972, subd. (c)) was returned at 1:30 p.m. the next day.  The evidence
received at the trial consisted entirely of the testimony of Dr. Kamaljeet Boora,
a staff psychiatrist at Napa State Hospital, who was the prosecution’s sole witness.  Appellant did not testify and the defense
presented no witnesses.

            Dr. Boora, who had been treating
appellant for about a year-and-a-half, diagnosed him as having a
schizoaffective disorder, bipolar type, along with polysubstance
dependency.  Appellant’s psychotic
symptoms included “grandiose delusions he’s in charge, and a ruler of the
world.  He’s the best singer, dancer.  And he feels doctors are drinking his blood,
and doctors are keeping him in the hospital to make money.  And he’s hearing voices telling him to do
things.”  Appellant also suffers “manic
symptoms,” such as angry outbursts, raising voices, irritability, and feelings
of grandiosity.  Documents regarding
appellant showed that he began exhibiting mental illness around the age of 15,
at which time he started using drugs and engaging remorselessly in assaultive
behavior and violence, although his behavior problems started even earlier.

            Though appellant was then daily
being administered two antipsychotic medications and a “mood stabilizer” by
staff (as well as another medication for “side effects”), he remained “very
psychotic, still hearing voices, and delusional,” which showed he was not responding
to medication as well as had been hoped. 
Although appellant takes his staff administered medication, he does not
think he suffers any mental illness and “doesn’t think he needs
medication.”  Though he refuses to
believe he has any medical problems, appellant also suffers from diabetes and
hypertension.  If appellant’s medications
are lowered, even slightly, he becomes “very angry, very irritable.”

            Asked whether, in his opinion,
appellant represents a danger to others, Dr. Boora stated “yes,” explaining
that he has “serious mental illness that is not responding to medication,” and
“doesn’t think he needs medication.”  While
appellant engages in group therapy, he does so only sporadically due to his
lack of insight regarding his mental illness and symptoms.

            Dr. Boora also testified that
appellant has a history of violence.  In
2010, he engaged in “physical altercation with other patients,” and before that
assaulted Napa staff members.  Appellant had
also engaged in or been arrested for such assaults in 2004, 1998, 1990 and 1987.
 Due to his violent behavior, appellant has
been housed in Unit E-8, a so-called “stabilization unit,” which  provides the “highest level of care”
available at Napa State Hospital.  (The two lower levels of
care available there are in the “transitional” and discharge” units.)

            On cross-examination, Dr. Boora
stated that, at the time of his 2010 assault, appellant was housed in the “high
security zone of Napa State Hospital” used for mentally ill offenders and
patients found not guilty of a charged offense due to insanity, which are the
most dangerous patients at the hospital, and had been housed in this security
zone since 1998.  Before that time,
appellant had been housed in Napa State Hospital due to the fact he had been
found incompetent to stand trial, and due to his mental state had previously
been “in and out of hospital” since a teenager.

            Dr. Boora acknowledged that he spent
only “about 10 minutes” preparing his April 2013 progress note on appellant,
and at that time there was no behavioral problem.  However, he also stated that appellant had
screamed at him every time he passed by and “was screaming at the staff for one
week or so,” asserting that he had no mental illness and should not be in the
hospital.  Boora also stated that appellant’s
medication was recently changed, after he reported hearing voices and was
observed talking to himself.         On
redirect, Dr. Boora stated that the recent change in appellant’s medication was
due to his increased screaming at staff. 
He also stated that as a result of appellant’s assault on a hospital
staff person in 1998, a court ordered that petitioner be administered a
(presumably psychotropic) medication involuntarily if necessary; though he
ordinarily took the medications administered him by hospital staff voluntarily.  In Dr. Boora’s opinion, the medications
appellant has been taking and the treatment group meetings he sporadically
attended have “improved” but not “controlled” his symptoms.

            At the close of Dr. Boora’s
testimony, the prosecution and defense both declared they had no documents or
other evidence to offer and rested.

            After a recess, the jury left the
courtroom, the court advised counsel it planned to give the same jury
instructions it had used in the May 8, 2012 proceeding, which was evidently appellant’s
last recommitment hearing, gave a copy of those instructions to counsel for
review, and declared a recess.  Defense
counsel made no objection to the proposed instructions, and they were given to
the jury.

            After the instructions were given,
counsel made their final arguments to the jury.  The case was then submitted to the jury, the
bailiff was sworn, the jury selected a foreperson and, it being about 5:00 p.m., the court instructed jurors to return to the jury room at 8:30 a.m. the next day to commence deliberations.   The jury returned its verdict at 1:30 p.m. the following day.  The jury
determined appellant has a mental disorder; that the disorder is not in
remission without continued treatment; and that because of his severe mental
disorder he currently presents “a substantial danger of physical harm to
others.”

DISCUSSION

            Having reviewed the entire record,
we find that appellant was at all times represented by competent counsel who
ably protected his rights and interests, 
no inadmissible evidence was received nor admissible evidence rejected
by the court, no instructional error was made by the court, and the court’s
order extending appellant’s commitment for a period of one year was lawful.

            The only event at trial deserving of
discussion was a comment made by the district attorney during closing argument.

            In response to defense counsel’s statement
in his closing argument that jurors would not think a neighbor presented a
“substantial danger of physical harm to others” in the absence of a recent
overt act, which was assertedly missing in this case, the district attorney stated
as follows:  â€œMr. Raphael talks about
neighborhoods.  How many of you would
like to go home and find out that Mr. Hicks is living in the house next to
you[?]”   Defense counsel immediately
objected.

            After an unrecorded bench
conference, the court told the jury:  â€œI
just want to say, we had a nice, agreeable and important discussion here at the
bench, about the remarks being made [by counsel].  [¶] Mr. Rossi [the district attorney] and
Mr. Raphael [the public defender] expressed their views, and Mr. Rossi will now
continue his argument as we have agreed he ought to.”  

            The district attorney then said to
the jury:  â€œLet me say, there’s no danger
that Mr. Hicks is going to move into your neighborhood.  That’s not the essence of my statement.  My statement is if somebody like Mr. Hicks
moved into your neighborhood, how would you feel, even if you knew that he had
not attacked somebody for a period of time.  [¶] Whether Mr. Raphael likes it []or
not, the law does not require that . . . I stand here and prove to you that he
has attacked somebody recently.  [¶] Nothing
in the jury instructions requires me to prove that he has attacked anybody at
any time, only that he’s a substantial danger to others.  That’s all that’s required by law.”

            Assuming the statement objected to
was improper, we believe the district attorney’s clarification that its purpose
was limited to a pertinent legal question—i.e., whether a finding of
substantial danger could be made in the absence of a recent overt act—eliminated
any possible prejudice.

            For the foregoing reasons, we find
no arguable legal issues warranting further briefing.

DISPOSITION

            The order extending appellant’s
commitment for a period of one year, from June 14, 2013 to June 14, 2014 is affirmed.



 

 

 

                                                                                    _________________________

                                                                                    Kline,
P.J.

 

 

We concur:

 

 

_________________________

Richman, J.

 

 

_________________________

Brick, J.*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

            * Judge of the Alameda County
Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.