P. v. Patterson

Filed 12/17/09 P. v. Patterson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Charles Horan, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason Tran and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Dawn Patterson was found guilty, following a bench trial in 2001, of one count of arson of an inhabited structure in violation of Penal Code[1] section 451, subdivision (b), one count of battery with injury on a police officer in violation of

section 243, subdivision (c)(2), and one count of assault on a peace officer in violation of sections 240 and 241. The court then found appellant not guilty of the offenses by reason of insanity. The court also found that she had not fully recovered her sanity as of the time of trial and that she was a danger to herself and others. The court committed appellant to the California Department of Mental Health for a period not to exceed nine years and eight months.

On July 15, 2005, the court ordered appellant released from Patton State Hospital to the Los Angeles County Conditional Release Program ("CONREP") for outpatient treatment pursuant to section 1603, subdivision (a). Appellant was placed in treatment at the Gateways Satellite CONREP.

On June 23, 2008, appellant filed an application for restoration of sanity pursuant to section 1026.2, and a request for a jury trial on the matter. A jury trial was held and on February 2, 2009, the jury found that appellant had not been restored to sanity. The court ordered appellant to remain on outpatient status.

Appellant appeals, contending that the trial court erred in failing to instruct the jury that continued commitment required the jury to consider whether appellant was unable to control her dangerousness and further contending that the evidence at trial showed that she was able to control her dangerousness and that her release is therefore required. We affirm the judgment.

Facts

Appellant's underlying crimes involved arson, assault and battery. Police found appellant on the balcony of Faith Ontal's apartment. Appellant had apparently been living at the apartment and became upset when Ontal asked her to move out because she had been acting bizarrely. Appellant poured lighter fluid on the balcony, outside of the building, apartment floor and herself. She attempted to barricade the apartment stairwell and threw items at police officers, hitting one with a twenty-pound barbell. She lit several fires in the apartment. Testimony at the hearing at issue on this appeal indicates that drugs played a role in appellant's behavior.

Discussion

Appellant contends that section 1026.2 requires a finding that a defendant has serious difficulty controlling her potentially dangerous behavior in order to deny the defendant's application for restoration of sanity. She contends that the court erred in failing to so instruct the jury.

Appellant was committed to a treatment facility because she pled not guilty by reason of insanity ("NGI") and was so adjudged. She was subsequently transferred to outpatient status. A NGI defendant will be released from outpatient status at the expiration of the maximum term of her commitment under section 1026.5.[2] That term corresponds to the maximum term of imprisonment that could have been imposed for the underlying crimes. A NGI defendant may be released earlier if she demonstrates restoration of sanity pursuant to section 1026.2.

Section 1026.2 provides that after a NGI defendant has completed one year of outpatient treatment, the court shall hold a trial "to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease or disorder." (Subd. (e).) At such a trial, there is a presumption of continued insanity. (People v. Tilbury (1991) 54 Cal.3d 56, 66.) Appellant has the burden of proof in such a trial. ( 1026.2, subd. (k).)

Appellant acknowledges that section 1026.2, as written, does not contain any reference to ability to control dangerousness. She contends that the due process clause of the United States Constitution requires the jury to consider not only whether a defendant has "dangerous tendencies, but also whether the defendant is unable to control these tendencies" and that the jury should have been so instructed. Appellant's contention is based on two United States Supreme Court cases concerning the involuntary civil commitment of sexually violent predators under Kansas law and subsequent California cases applying the reasoning of those opinions to California statutes.

The two U.S. Supreme Court cases cited by appellant hold that due process requires a showing that a person is unable to control his dangerous tendencies in order to justify involuntary civil commitment of a sexually violent predator. (Kansas v. Hendricks (1997) 521 U.S. 346; Kansas v. Crane (2002) 534 U.S. 407.) These individuals did not plead not guilty by reason of insanity in the criminal trial of their sexual offenses; they have served any term of imprisonment imposed for those offenses.

Following those U.S. Supreme Court decisions, the California Supreme Court upheld California's Sexually Violent Predator Act as constitutional, noting that due process required an inability to control dangerousness. The California Supreme Court explained that the requisite mental disorder under California's Act is "'congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.' ( 6600, subd. (c).) Through this language, the Act targets sexual offenders who suffer from a diagnosed 'volitional impairment' making them 'dangerous beyond their control.' (Hendricks, supra, 521 U.S. 346, 358 [117 S.Ct. 2072, 2080].)" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157.) The Court later found that the requirement of volitional impairment applied to extended commitments of juveniles pursuant to Welfare and Institutions Code section 1800 et seq. (In re Howard N. (2005) 35 Cal.4th 117, 133.)

Following the California Supreme Court's decision in Howard N., several Courts of Appeal held that the requirement of volitional impairment applied to extensions of commitments pursuant to Penal Code section 1026.5. (People v. Galindo (2006) 142 Cal.App.4th 531; People v. Bowers (2006) 145 Cal.App.4th 870; People v. Zapisek (2007) 147 Cal.App.4th 1151.) Section 1026.5 governs proceedings when the People seek to extend that commitment of a defendant who was found not guilty by reason of insanity and whose maximum term of confinement has expired.

Appellant contends that the reasoning of all of the above cited cases requires that we hold that section 1026.2 requires a finding that a defendant has serious difficulty controlling her potentially dangerous behavior. She contends that section 1026.2 is like the statutes considered in the above cases in that it too is a commitment statute.[3]

There are at least two significant differences between section 1026.2 and the statutes in the above cases. Defendants who file applications under section 1026.2 were committed for treatment because they previously chose to plead not guilty by reason of insanity to a crime and are still committed on that basis. The commitments of petitioners in Hendricks, Crane and Hubbart, were initiated by the state, civil in nature, and involuntary.

The U.S. Supreme Court has long recognized that there are "important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof." (Jones v. U.S. (1983) 463 U.S. 354, 367.) Insanity acquittees choose to place their sanity at issue. Candidates for civil commitment do not. The Court held that the lower standard of preponderance of the evidence was adequate to protect the due process rights of insanity acquittees. Clear and convincing was required for civil commitment candidates. (Id. at pp. 366-367.) The Court pointed out: "'[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' [Citation.]" (Id. at pp. 367-368.) Thus, merely because due process requires proof of volitional impairment for civil commitments does not mean that due process requires that same proof to deny an insanity acquittee's application for restoration of sanity.

In the California Court of Appeal cases cited by appellant, supra, the defendants had completed the maximum term of confinement imposed following their not guilty by reason of insanity plea and would have been released without action by the state. The state in those cases is, in effect, seeking to involuntarily impose a civil commitment on the defendants. Appellant has not completed her maximum term of confinement. That confinement will continue unless appellant shows that it is no longer necessary.

We see nothing in the law concerning involuntary civil commitments or extensions of commitments for insanity acquittees which would require any showing of volitional impairment in the case of insanity acquittees seeking early release under section 1026.2. Even assuming that an insanity acquittee's ability to control dangerousness were a requirement for continued commitment under section 1026.2, however, it would be the acquittee who would be required to prove that she is able to control her dangerousness. Under California law, an insanity acquittee is presumed to be dangerous during her initial term of confinement, that is to meet the criteria for confinement. If lack of volitional control were a requirement for confinement, then appellant would be presumed to lack such control. Appellant bears the burden of proving by a preponderance of the evidence that she is not dangerous, and if that were the standard, that she is able to control her dangerousness.

This she did not do. Appellant's expert did not testify that appellant was able to control her dangerousness. He merely opined that she did not pose a danger to herself or others. The jury clearly found the expert not credible. Appellant did not attempt to elicit any testimony on this topic from the People's experts.[4] Thus, there was no evidence in the record from which a jury could have found that appellant was able to control her dangerousness and so was not a danger to herself or others. Thus, even if the trial court erred in not instructing the jury on control, such an error was harmless under any standard of review.

2. Continued commitment order

Appellant contends that the trial court abused its discretion in ordering her continued commitment because her evidence demonstrated that she was able to control her dangerousness. As we discuss in section 1, supra, that is not the standard for release. Further, appellant did not show by a preponderance of the evidence that she had the ability to control her dangerousness. The trial court did not abuse its discretion.

Appellant's reliance on People v. Cross (2005) 127 Cal.App.4th 63 to show abuse of discretion is misplaced. In Cross, the "essentially unanimous recommendations" of the expert witnesses was that the defendant be placed on outpatient status; the factors cited

by the court in denying outpatient status were either not supported by the record or inadequate. (Id. at pp. 73-74.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The People may move to extend that commitment pursuant to section 1026.5.

[3] To the extent that appellant relies on People v. Williams (1988) 198 Cal.App.3d 1476 to support her claim, that reliance is misplaced. That case does involve a defendant seeking release under section 1026.2, but involves a very narrow set of circumstances. The Court in Williams held that a jury may find that a defendant is restored to sanity if the defendant shows by a preponderance of the evidence that he is not dangerous in a medicated condition and will continue to self-medicate in an unsupervised environment, and that the jury should be instructed accordingly. (Id. at p. 1479.) Appellant does not take medication to control her dangerousness.

[4] To the extent that they touched on this topic at all, the People's experts gave testimony which suggested that appellant could not control her behavior. Dr. Fairbanks testified that appellant had impulse control problems and accordingly would tend not to have much self-control, and that people with such problems are "liable to make mistakes or do things that are even maybe to their own values inappropriate." Gateways Assistant Program Director Palmer said that he was concerned about her "impulsivity." Gateways therapist Hinchliffe opined that appellant had "severe impulsivity" and lost control when she became agitated.