People v. DunleyPeople v. Dunley
APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Dismissed.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Eddie Dunley appeals from a judgment extending his commitment as a mentally disordered offender (MDO). He contends that because persons subject to civil commitment after being found not guilty by reason of insanity (NGI) have a statutory right, pursuant to
We hold that MDO’s, SVP’s and NGI’s are all similarly situated with respect to the testimonial privilege provided for in
PROCEDURAL HISTORY
On June 9, 2014, the San Bernardino County District Attorney filed a petition pursuant to
On December 17, 2014, a jury found that appellant met the criteria for commitment as an MDO. Accordingly, the court granted the petition and extended appellant’s commitment until January 20, 2016. Appellant filed a timely notice of appeal.
While serving a prison term for robbery, appellant had several incidents of battery on correctional officers. A mental health evaluation was done after each incident. Both evaluations reported that appellant was disorganized and confused. One evaluation concluded that appellant showed severely impaired judgment. The other concluded that he showed psychosis. In 2008, he was committed to Atascadero State Hospital as an MDO. He had previously been admitted to Atascadero in 2001.
Dr. Joe Debruin, a forensic psychologist at Atascadero, evaluated appellant to determine whether he met the criteria for recommitment as an MDO.4 Dr. Debruin reviewed appellant’s treatment plan, interdisciplinary and psychiatric progress notes, previous MDO evaluation reports, and the police report concerning his prior offense. He also interviewed appellant.
Dr. Debruin diagnosed appellant with schizoaffective disorder, bipolar type, which, he testified, is a severe mental disorder that persists over a period of time. He testified that appellant had consistently exhibited symptoms of schizoaffective disorder since he was committed to Atascadero in 2008. Appellant displayed a belief that he was God or “God’s son in the flesh,” and reported hallucinations and hearing voices, which
Dr. Debruin testified that appellant lacked insight into his condition, i.e., that he did not believe he was mentally ill or that he needed medication. Appellant did not follow his treatment plan or participate in groups, and he was often unwilling to take his medication. Dr. Debruin opined that if appellant were released into the community, he would not take his medication and that his symptoms would escalate as a result.
Based on appellant’s prior offenses, violent behavior, delusional statements and lack of insight into his illness, Dr. Debruin opined that appellant’s mental disorder was not in remission and, as a result of the disorder, he posed a substantial danger for violence if he were released into the community.
Dr. Martin Steed, appellant’s treating psychiatrist for the year and a half preceding the hearing, testified to the same effect. He diagnosed appellant with schizoaffective disorder, bipolar type, which he characterized as a severe mental disorder. He testified that appellant displayed “extensive irritable mood, grandiosity, increase in self-esteem, in
The prosecution called appellant to testify. Much of his testimony was confused or nonresponsive, but he ultimately admitted that he had a mental disorder and that his disorder made him dangerous.
LEGAL ANALYSIS
1. THE APPEAL IS MOOT
A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. (Gregerson, supra, 202 Cal.App.4th at p. 321.) By the nature of MDO proceedings, in which a new commitment order must be sought every year, issues arising in such proceedings can most often not be decided on appeal quickly enough to provide any relief to the person committed. That is the case here. Appellant’s current commitment order expired on January 20, 2016, while this appeal was pending. A new petition for recommitment was filed on June 22, 2015, and
2. EQUAL PROTECTION
Background.
Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all. (
In Hudec, supra, 60 Cal.4th 815, the California Supreme Court resolved a split of authority as to whether NGI’s have a statutory right not to be compelled to testify. The court held that
In People v. Curlee, supra, 237 Cal.App.4th 709 (Curlee), the court concluded that SVP’s and NGI’s are similarly situated “for purposes of whether they may be compelled to testify at their commitment hearings.” (Curlee, at pp. 720-721.) Accordingly, it held, unless the People can justify disparate treatment, equal protection principles mandate that the statutory right not to testify in a commitment proceeding provided for in
The Claim is Not Forfeited.
We first address the Attorney General’s contention that review of the issue is forfeited because at the hearing, appellant did not assert a right not to testify. We acknowledge that an equal protection claim may be forfeited if it is raised for the first time on appeal. (Curlee, supra, 237 Cal.App.4th at p. 714.) However, we will exercise our discretion to address the issue because at the time of the hearing, in December 2014, published authority from this court held that
MDO’s, SVP’s and NGI’s are Similarly Situated for Purposes of the Testimonial Privilege Under Section 1026.5(b)(7).
“‘“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.”’ [Citation.] In other words, we ask at the threshold whether two classes that are different in some respects are sufficiently similar with respect to the laws in question to require the government to justify its differential treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee).)
In contexts other than the testimonial privilege, NGI’s, SVP’s and MDO’s have been found similarly situated for purposes of the application of the three commitment schemes, thus requiring justification for any differential treatment. In McKee, supra, 47 Cal.4th 1172, the court addressed the contention that the SVP scheme then in effect, which imposed indefinite commitments and required SVP’s to bear the burden of proving
After noting the “incontrovertible point that SVP’s and MDO’s do not share identical characteristics,” the McKee court held: “We conclude that MDO’s and SVP’s are similarly situated for our present purposes. As was stated in In re Calhoun (2004) 121 Cal.App.4th 1315 [18 Cal.Rptr.3d 315], in which the court struck down a policy that granted to SVP’s a more restricted right to refuse antipsychotic medication than MDO’s, both MDO’s and SVP’s ‘have been found, beyond a reasonable doubt, to suffer from mental disorders that render them dangerous to others. The dangerous finding requires only an assessment of future dangerousness. It does not require proof of a recent overt act. Both have been convicted of a serious or violent felony. At the end of their prison terms, both have been civilly committed to the Department of Mental Health8 for treatment of their disorders. Furthermore, the purpose of the MDO Act and the SVPA is the same: to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.’ ([Calhoun,] at pp. 1351-1352,
The McKee court went on to hold that NGI’s and SVP’s are also similarly situated for purposes of the civil commitment schemes. The court stated: “McKee argues that NGI’s and SVP’s are also similarly situated and that a comparison of the two commitment regimes raises similar equal protection problems as discussed above. His argument has merit. NGI’s as discussed are those who have committed criminal acts but have been civilly committed rather than criminally penalized because of their severe mental disorder. Under the current statutory scheme they may not be in civil custody longer than the maximum state prison term to which they could have been sentenced for the underlying offense [citations] unless at the end of that period the district attorney
In Curlee, supra, 237 Cal.App.4th 709, the court held that for purposes of the testimonial privilege in commitment proceedings, SVP’s and NGI’s are similarly situated. Citing, inter alia, McKee, supra, 47 Cal.4th 1172, the court stated: “The preconditions to commitment are similar: Both groups have committed a criminal act and have been found to suffer from a mental condition that might present a danger to others. [Citation.] At the end of the SVP’s prison term, and at the end of the term for which an NGI could have been imprisoned, each is committed to the state hospital for treatment if, at the end of that period, the district attorney proves in a jury trial beyond a reasonable doubt that the person presents a danger to others as a result of a mental disease, defect, or disorder. [Citations.] The purpose of the commitment is the same: To protect the public from those who have committed criminal acts and have mental disorders and to provide mental health treatment for the disorders. [Citations.]” (Curlee, at p. 720.)
In this case, the Attorney General contends that NGI’s are not similarly situated with respect to MDO’s or SVP’s because an NGI defendant asserts his mental disorder as an affirmative defense in his criminal trial and is, therefore, found not culpable as a result
Disparate Treatment.
If two groups are found to be similarly situated for the purposes of the law in question, the next inquiry is whether the state can justify the disparate treatment. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) The Attorney General contends that disparate treatment is justified under the rational basis test because the Legislature could rationally conclude that because an NGI has not been convicted of a felony but rather has been absolved of criminal liability, an NGI retains the rights of a person who has been accused of a crime. An MDO, on the other hand, has been convicted of a serious or violent offense. The argument is plausible under the rational basis test, which requires
Under the strict scrutiny test, a discriminatory law will not be given effect unless its classification bears a close relation to promoting a compelling state interest, the classification is necessary to achieve the state’s goal, and the classification is narrowly drawn to achieve the goal by the least restrictive means. (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.) Under that standard, we do not find the Attorney General’s argument persuasive. The Attorney General does not identify a compelling state interest nor does it address any possible reason that distinguishing between NGI’s and MDO’s with respect to the testimonial privilege is necessary to achieve any such goal.
3. REVIEW OF THE ASSERTED INSTRUCTIONAL ERROR IS FORFEITED10
Appellant appears to assert that the trial court erred by failing to instruct the jury on the burden of proof with respect to his medicated state, i.e., whether he is in remission because his symptoms are controlled by his current medication. That is, at least, what the heading of his argument states. He relies on People v. Noble (2002) 100 Cal.App.4th 184 (Noble). Upon further examination, however, appellant’s actual contention is that the trial court erred by failing to give an instruction suggested in dictum by the court in Noble. (Id. at p. 190.) The suggested instruction does not relate to the actual issue in
The jury was further instructed in terms of CALJIC No. 4.15 as follows: “‘It is a defense to a Petition to Extend Commitment that the respondent [defendant] in a medicated state does not represent a substantial danger of physical harm to others. [¶] The . . . [defendant] has the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [¶] 1. In his present medicated condition he no longer represents a substantial danger of inflicting physical harm upon others; and [¶] 2. He will continue to take the medication as prescribed, in an unsupervised environment. [¶]
The appellate court held that giving CALJIC No. 4.15 was erroneous because the so-called “medication defense,” i.e., the defense that the person is in remission because his medication controls his mental disorder and renders him not dangerous is not an affirmative defense. Rather, it is a defense that negates an element of the state’s case, in that the state has the burden of proving that the person is not in remission. An affirmative defense is one which does not negate an essential element of a cause of action or charged crime, but instead presents new matter to excuse or justify conduct that would otherwise lead to liability. (Noble, supra, 100 Cal.App.4th at p. 189.) “Where a ‘defense’ negates an essential element of the crime charged rather than introducing new matter . . . ‘the state may not constitutionally place the burden of persuasion on that issue upon the defendant.’ [Citation].” (Ibid.) Accordingly, the court held, the trial court erred in giving CALJIC No. 4.15. (Noble, at pp. 189-190.)
The court then stated in dictum that when a defendant relies on the medication defense, the court should instruct the jury as follows: “The People have the burden to prove, beyond a reasonable doubt, that if released, the defendant will not take his or her prescribed medication and in an unmedicated state, the defendant represents a substantial danger of physical harm to others.” (Noble, supra, 100 Cal.App.4th at p. 190.)
Appellant relied on the medication defense in the hearing and presented evidence that he had not engaged in any violence since he began taking lithium. He requested a special instruction in the language suggested in Noble, supra, 100 Cal.App.4th at page 190. The court denied the request, saying that the requested instruction was adequately covered by CALCRIM No. 3457.
Appellant now contends that this was error, because the jury might have been confused by CALCRIM No. 3457. He contends that the instruction may be confusing or misleading, “[d]epending on the jury’s understanding of the word ‘treatment.’”11 If the jury understood “treatment” to mean “medication,” he contends, the instruction’s
The appeal is dismissed.
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
[NO CHANGE IN JUDGEMENT]
THE COURT
Appellant has requested that our nonpublished opinion filed on April 4, 2016, be certified for publication. (Cal. Rules of Court, rule 8.1120.) The opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c)(2) and (c)(6). The request is granted. (Cal. Rules of Court, rule 8.1105(b).)
The opinion is ordered published in the Official Reports with the following modification: On page 7, footnote 5, remove the word “pending” from the first sentence.
Footnote 5 should read: We take judicial notice of the petition in People v.
This modification does not effect a change in the judgment.
CERTIFIED FOR PUBLICATION
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.