P. v. Winn
Filed 8/20/12 P. v. Winn CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and Respondent,
v.
LUTHER DALE WINN,
Defendant and Appellant.
E053634
(Super.Ct.No. SWF015676)
OPINION
APPEAL from
the Superior Court
of
County. Helios (Joe)
Hernandez, Judge. Affirmed.
Chris
Truax, 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, Peter Quon, Jr. and Christopher
P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury adjudged defendant to be a Mentally Disordered
Offender and he was recommitted for involuntary
treatment at Atascadero Hospital. (Pen. Code, § 2970.)
aspect of the jury’s adjudication, i.e., that he represents a substantial
danger of physical harm due to his mental illness. We reject his contention and affirm.
Issue and Discussion
The
People’s expert and the defendant’s expert disagreed on only one aspect of the
jury’s implied finding that defendant is a mentally disordered offender, viz,
that because of his schizophrenia, he presently represents a substantial danger
of physical harm to others.
Defendant
testified that in 2003, he was at a liquor store parking lot in Temecula. He denied that a police officer approached
him and he said he would hit the officer with a roundhouse crescent kick
to a violation of section 69, resisting the police with force or violence, as a
result of this incident. According to
the People’s expert, during this incident, defendant talked about doing a
crescent kick, and about finding out where the officer lived so defendant could
“play with him.” Additionally, the
officer felt threatened by defendant and he placed defendant in handcuffs. In the expert’s opinion, the restraints
prevented defendant from hitting the officer.
Defendant admitted at trial that he was not taking medication at the
time of this incident.
A Riverside
County deputy sheriff who was
present during a March 2006 incident
complaint from the principal of a nearby elementary school about abandoned
vehicles, some of which were burned out and had broken glass, parked near bus
stops used by his students and those attending a high school. The officer and his partner, both in uniform,
went to the area in a marked patrol car and were taking down the license plate
numbers of the vehicles when defendant approached them. The officers got out of their patrol car and
told defendant that they were going to tow the vehicles and clean up the
area. Defendant became upset and said if
they towed his van, there would be serious problems, which the officer took as
a threat. Defendant shouted that he
wanted to take a polygraph exam and he said he was going to get his
shotgun. He began to walk toward the cab
of his van. The officer feared that
defendant was going to retrieve a shotgun, so he and his partner grabbed
defendant’s arms and a struggle ensued.
Defendant locked his arms against his chest and the two officers
struggled with him for six minutes to get them unlocked, so they could put
handcuffs on him. During the struggle,
all three fell to the ground. Also
during the struggle, defendant ignored the officers’ orders that he put his
hands behind his back. Defendant was
unable to hit the officer, as the latter had both of his hands on defendant’s
arms. The officer’s knees got scraped up
and bruised and his partner’s right knee sustained the same kind of
muscle in her back. Typically, Riverside
County deputies do not travel in
pairs in that area, and the closest back-up was 20 miles away. There was no shotgun in defendant’s van and
it appeared as though he was living in it.
Had the officer been told by defendant that he did not want his van
towed because he was living in it, the officer probably would not have had it
towed. Defendant admitted that he pled
guilty to resisting the police by force or violence in connection with this
incident. At trial, defendant admitted
that he was not taking medication at the time of this incident.
Following
his conviction for the 2006 incident, defendant was released to parole in
November 2008, and violated parole by disturbing the peace on January 23, 2009. During this interval, according to the
prosecution expert, defendant threatened others but was not violent. On January 23, 2009, while free on parole,
defendant went to the courthouse to get some documents, was told to leave and
then threatened and yelled at a security guard.
defendant.
In November
2009, while confined to Atascadero Hospital, defendant behaved inappropriately
during a group session and his treatment team addressed this with him. Defendant became agitated and was told to
leave the room. Defendant responded that
they had better watch what they were doing.
He then blocked the doorway so staff could not leave the room. An alarm was set off and defendant lunged
towards staff members and threatened them.
He also demanded to take a polygraph examination. He was placed in room seclusion and was involuntarily
medicated. This required a conclusion by
three doctors that defendant represented a danger of harm to others due to his
mental illness.
title="">[5] According to the prosecution expert,
defendant did not become physical due to the swift response by staff to the
alarm.
In July
2010, according to the prosecution expert, defendant, while medicated,
threatened to hit his treating physician with a paddle because he wanted to be
taken off involuntarily administered medication.
In April
2011, while still at Atascadero Hospital, defendant was performing karate kicks
in a common area. A hospital police
officer told defendant to stop doing this, as his actions could be interpreted
by some other patients as being threatening.
However, defendant did not stop.
The officer told defendant that he would escort defendant back to his
unit. Defendant began walking with the
officer, then turned and took a combative stance towards the officer, saying,
“I’m going to fucking slap you.” The
officer sounded an alarm, which set off an intercom message letting staff know
that there was a problem and its location.
Staff members in the area and two other police officers came to where
defendant was. Defendant said to all of
them, “When I get out of here, I’m going to fuck you up.” Defendant was placed on a gurney in full body
restraints, which is the most restrictive response to a problem at the
hospital.
According
to the prosecution’s expert, jail notes for an unspecified date or dates
others and he told a deputy that he hated law enforcement officers.
convicted twice of the felony of resisting an officer with force or violence,
he was also convicted of the misdemeanor of not following a police officer’s
order and, either separately or as part of the same case, he was convicted of
resisting the police in Huntington Beach.
He allowed that following one of his arrests, he may have refused to
give the police any information about himself for booking purposes, other than
a number. Defendant admitted at trial
that he suffered a misdemeanor conviction for making terrorist threats. This occurred after a 17-19 year old female
flipped him off. The incident report
stated that defendant had threatened to kill someone. He pled guilty, he said at the instant trial,
perhaps due to duress. He was not on
medication at the time of this incident.
Defendant admitted on the stand that he did not believe he had a mental
illness and, if released, he would not seek help from a doctor for his mental
condition.
The
prosecution’s expert testified that past behavior is one of the greatest
predictors of future behavior and patients who have insight into their mental
illness can guard against inappropriate behavior. She opined that part of defendant’s
delusional system was that he misperceives the intentions and behaviors of
others, for example, he believes people are threatening him when they are not.
was forcibly medicated his behavior was appropriate. She opined that defendant represented a
substantial danger of physical harm to others despite the fact that he had
struck no one, due to the fact that he was restrained on most of the
above-described occasions from actually getting physically violent. She said that the fact that defendant was
currently in the structured setting of a mental hospital, rather than the
relative freedom of normal society, was very significant in determining that he
presented a substantial danger of physical harm to others. She explained that many times, due to paranoia
or misinterpretation, defendant had made threats or took a fighting stance and
had to be restrained. Further, he had a
history of refusing to take medication, said he would not take medication if
released and he claimed that he did not have a mental illness. She said that defendant was more at risk when
he felt threatened and he blamed others for past incidents, which only
increased his paranoia and misperception of the intentions of others. She theorized that a person who responds to
armed police officers the way defendant did would respond similarly to unarmed
laypeople if he perceived that they had threatened him. The defense expert disagreed with the
prosecution, primarily on the basis that defendant had not actually harmed
anyone physically in a significant way.
In
asserting that there was insufficient evidence to support the jury’s finding
that defendant represented a substantial danger of physical harm to others,
defendant ignores all the incidents discussed above except for one, i.e., the
events of March 2006. Defendant asserts
that his passive resistance to the officers’ attempt to handcuff him, which
unintentionally resulted in both officers being slightly injured, is an
insufficient basis to conclude that he represented a substantial danger of
physical harm to others. In so doing,
defendant not only ignores all the other evidence of his reaction to other
stimuli on other occasions, but he misconstrues the theory presented by the
prosecution’s expert and the prosecutor, himself, about the basis for this
finding. The prosecutor spoke, during
argument to the jury, about all the above-discussed incidents and how they
revealed an escalating pattern of responses by defendant to being told what to
do by authority figures. The point both
the prosecution expert and the prosecutor made about the lack of actual
violence by defendant was that in each incident, defendant was engaged with
either armed police officers or mental hospital staff members, both of whom
were trained and equipped to and did control defendant in the kind of
situations that developed. The fear that
the prosecution’s expert and the prosecutor addressed was that when out in the
real world, dealing with people who were not so trained and equipped, defendant
would not be so controlled and he would resort to actual violence. Given defendant’s established opposition to
medication and his promise that he would not take it if released from
confinement, there was a substantial likelihood that the type of situations
described above, many of which occurred when defendant was not medicated, would
recur. The prosecutor argued that the
minor injuries incurred by the officers in March 2006 were minor because the
officers were trained and able to gain control of defendant before he had a chance
to substantially injure them. Based on
the testimony of the male officer, the prosecutor argued that the next time
defendant confronted a police officer who asked defendant to do something
defendant did not want to do, there might be no partner there to support the
officer and no back-up available and, in these circumstances, defendant could
not be physically prevented from getting violent.
Defendant’s
assertion here that, despite adequate provocation, he has not previously
responded in violence against the police, thus disproving the prosecution’s
theory, required that the jury misinterpret the testimony of the male officer
concerning the March 2006 incident. He
testified that during the struggle to get defendant to release his hands from
their position on his chest so he could be cuffed, the female officer “pulled
out her baton, to try to pry his arm over.
But at no point was he ever struck . . . with the
baton.” In his opening brief, defendant
summarizes this as himself “being prodded with a nightstick” and he suggests
that the fact that he did not respond to this with violence contradicts the
prosecution’s theory that in an uncontrolled setting, he could get
violent. However, defendant ignores the
circumstances. The female officer used
her nightstick not to prod defendant without justification but to try to pry
his arms off his chest after defendant struggled with both of them and their
efforts to get his arms behind him with their hands so he could be cuffed
proved unsuccessful. The fact that
defendant did not strike either of the officers during the incident, while
admirable, does nothing to call into question the prosecutor’s theory or the
prosecution’s expert opinion, considering the fact that defendant initially
caused, then escalated, the situation.
In his
opening brief, defendant asserts that he “only
has . . . serious verbal confrontations with police
officers.” The record belies his
claim. He ignores the facts that,
according to the prosecution expert, between November 2008 and January 23,
2009, while defendant was out of custody, he threatened others; that on January
23, 2009, he threatened a security guard at a courthouse; that in November
2009, he lunged at and threatened staff members at Atascadero Hospital; that in
July 2010, he threatened his treating physician at Atascadero; that during the
April 2011 incident at Atascadero, he threatened staff members; that he
threatened to kill others while he was in jail and, according to his own
testimony, he was convicted of making terrorist threats based on his reaction
to a teenager flipping him off.
Contrary to
defendant’s assertion, the prosecution’s theory about the substantial danger of
physical harm defendant represented was not based merely on the 2006 incident,
during which both officers involved were slightly injured. It was based on all the above described
incidents which established a pattern that defendant was unable to become
violent because most of his activities occurred in a structured setting, where
a police officer or hospital staff were able to contain defendant before he
became violent, but once out of custody, there would be no such containment,
therefore, defendant posed such a danger.
Defendant’s assertion, in his opening brief, that “there does not seem
to have been any proper theory advanced by the prosecution at all” is
inconsistent with the record and the prosecutor’s argument to the jury. We were able to discern the above-stated
theory and in our opinion, it could not have been clearer.
Disposition
The judgment
is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
KING
J.
Penal Code unless otherwise indicated.
tall and weighs 170 pounds, admitted he was trained in the martial arts,
including Taekwondo.
