PEOPLE v. GREEN

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald E. GREEN, Defendant and Appellant.

No. D044632.

Decided: January 26, 2006

Dacia A. Burz, under appointment by the Court of Appeal, Vista, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert T. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

In 1992 Ronald E. Green was found not guilty of arson by reason of insanity and was committed to a state hospital.   In 2004 pursuant to Penal Code 1 section 1026.5, subdivision (b), his commitment was extended.   Green appeals, arguing the procedures for extending his commitment denied him due process because the section does not require proof he was unable to control his behavior.   He also argues the trial court erred in failing to instruct the jury concerning this volitional element.   We affirm.

BACKGROUND

Appellant was found not guilty of arson by reason of insanity on December 8, 1992.   He was diagnosed with bipolar disorder and committed to Patton State Hospital (Patton) pursuant to section 1026. His maximum commitment date was August 7, 2000.   He was released under the Conditional Release Program (CONREP) on April 26, 1994, but recommitted April 1, 1997, after empty bottles of alcohol were found in his home and he tested positive for cocaine use.   During the outpatient revocation hearing, appellant threatened a member of the treatment staff.

Appellant was again released under CONREP on November 25, 1998, and was subsequently convicted of a misdemeanor assault on his fiancée.   During the incident that led to the conviction, appellant beat his fiancée severely, threatened to kill her, attempted to sodomize her and forced her to perform oral sex on him.   Appellant admitted using methamphetamines that day.   He was returned to Patton in 1999 and his maximum date of commitment was May 1, 2004.   On February 20, 2004, the People filed a petition to extend appellant's commitment for an additional two years.

A. Prosecution Evidence

At the hearing on the petition, Dr. Stacey Berardino, a clinical psychologist for the CONREP program, testified she reviewed appellant's medical records and interviewed him.   Dr. Berardino concluded appellant suffered from bipolar disorder, which she described as a “mood” disorder, substance dependence and narcissistic personality disorder.   Dr. Berardino concluded appellant's mental disorders made him a risk to the safety of others. Medication seemed to control appellant's bipolar disorder, but Berardino noted his history of failure to take medication.   Dr. Berardino also testified appellant's narcissistic personality traits caused him to lack empathy towards others.   She testified substance dependence is linked to violent outbreaks and noted appellant's repeated relapse into substance abuse outside a controlled hospital setting.   Dr. Berardino concluded appellant's failure to appreciate the gravity of his prior criminal actions, the reasons for the revocation of his outpatient status, his substance abuse and the need for treatment indicates a likelihood of future violence.

Dr. George Proctor was appellant's treating psychiatrist at Patton.   Dr. Proctor testified appellant suffered from bipolar disorder, poly-substance abuse and narcissistic personality disorder. The doctor stated appellant has great difficulty with intimate relationships.   Appellant perceives he is unappreciated and reacts with rage.   Dr. Proctor stated substance abuse triggers appellant's bipolar symptoms and noted the controlled hospital environment greatly reduced appellant's access to those substances.   Dr. Proctor additionally stated appellant's narcissistic personality disorder prevented him from feeling empathy and accepting feedback from others.   Dr. Proctor stated the ability to accept feedback is critical to controlling the symptoms of bipolar disorder.

Dr. Proctor testified appellant has demonstrated control over his bipolar symptoms while hospitalized at Patton.   However, he added, appellant lacked insight into the criminal behavior that resulted in his hospitalization.   Dr. Proctor testified appellant refused to participate in a conditional release program such as CONREP and expressed his desire to be released unconditionally.   The doctor concluded appellant suffers from a mental disorder and poses an unacceptable risk of violence to the community.

Psychologist Randy Stotland reviewed documents concerning appellant, interviewed him and administered various psychological tests.   Dr. Stotland testified appellant suffered from a severe mental disorder, a bipolar disorder with paranoid features.   Dr. Stotland considered the issue of appellant's future dangerousness a difficult question.   In the final analysis, he concluded that if released appellant represented a danger of physical harm to others.   Dr. Stotland stated appellant's past failures while released under CONREP, his lack of family support and an inadequate relapse prevention plan are likely to result in future relapse if he is released into the community.   He added substance abuse may trigger manic episodes and appellant's refusal to participate in therapy to treat his substance dependency could result in drug use upon his release.

Psychiatrist Matthew Carroll reviewed appellant's medical records and interviewed him.   Dr. Carroll concluded appellant suffers from a severe mental disorder, a bipolar disorder characterized by manic episodes.   In appellant's type of disorder, he had episodes in which he does not “think straight,” and can behave “in a very abnormal manner.”   The condition can cause great irritability.   It can cause persons, for example, to get into fights, to harm persons or to become paranoid and wrongly believe, for example, their spouse is being unfaithful or people are “out to get them.”   Some people function well with a bipolar disorder, some do not.   The nature of appellant's disorder is that during a manic phase he becomes irritable, angry and “mean.”   The doctor concluded based on appellant's violent criminal history and poor performance when released from custody he poses a substantial danger of physical harm to others.   Dr. Carroll testified appellant's continued drug use is likely to trigger manic episodes.   Dr. Carroll stated appellant's bipolar disorder prevented him from understanding the effect of his illness on his behavior.

Dr. Donald Williams, a psychiatrist for CONREP, prescribed Lithium and Depakote for appellant in order to treat his bipolar disorder in March 1999.   Based on a police report listing the medicine found in appellant's home following the September 1999 assault, Dr. Williams concluded appellant had not taken his medicine while he was conditionally released from Patton.

B. Appellant's Evidence

Appellant testified he was found not guilty of arson by reason of insanity in 1992 and was committed to Patton.   He stated he did not know what he was doing as he set his house on fire while speaking to his wife on the telephone.   Appellant stated he was released under CONREP in 1994 and did not know why he was recommitted.   He admitted he had a verbal altercation with a CONREP representative and missed mandatory group meetings.   He acknowledged empty bottles of alcohol were found in his house but denied they were his.   Despite testing positive for cocaine, he denied ingesting the drug and insisted the test results were erroneous.

He testified he was released again and recommitted after assaulting his fiancée.   He stated the incident occurred after drugs and drug paraphernalia he found in her car prompted him to break off their relationship.   He testified his fiancée cut herself with knives and threatened him.   A physical altercation ensued between them, during which he struck her with his hand and with a telephone.   He denied attempting to sodomize her and forcing her to perform oral sex.   He also denied the incident resulted from any failure to take his medication, stating he took his prescribed medication at all times after his release from the hospital.   Appellant denied using methamphetamine on the morning of the incident.

After his return to Patton, appellant participated in an intensive drug treatment program and therapy to build coping skills.   He testified he believed he would be dangerous if he discontinued his medication.   He noted the importance of continuing to take his medication, abstaining from drug use and continuing with professional monitoring of his mental health.

Patton's librarian, Fredrick Brenion, supervised appellant in his work as a library technician and testified appellant was good at his job and showed empathy towards other patients.

Roger Combs is a rehabilitation therapist at Patton.   He testified appellant has acquired coping skills and insight into interpersonal relationships, as well as empathy towards other patients.

Psychiatric technicians Lucille Knutson and Janette Irwin testified appellant was polite to staff members and showed empathy towards fellow patients.   They noted he recognized the importance of taking his medication and took it willingly.

On May 17, 2004, a jury found appellant had a mental disorder and because of such disorder, represents a substantial danger of physical harm to others.   Appellant was recommitted to Patton for a two-year term set to expire on May 1, 2006.

DISCUSSION

Appellant argues his extended commitment made pursuant to section 1026.5 is unlawful.   He contends in order to satisfy substantive due process, a civil commitment must be based on a finding that because of a mental disease or disorder the person has serious difficulty in controlling his behavior and because of this condition he or she is predisposed to inflict harm on others.   He argues section 1026.5, while requiring a finding of mental illness and a physical danger to others, does not require a finding of serious difficulty in controlling such behavior and, thus, is not a proper basis for a civil commitment.

A. The Problem

What must be proved to recommit one civilly confined after a verdict of not guilty by reason of insanity?   As is often the case in the law, the issue is in large measure a semantic one.   The semantic issues here are complex because they deal with that place where the vocabulary of the law overlays the vocabulary of psychiatry and psychology.   They are also complex because the causes of human action and the differentiation of mental states are not given to precise description.   Determining the requirements for recommitment of those originally committed based on a finding of insanity is also complex because the law concerning the requirements for civil commitments has developed for the most part in the context of sexual predator statutes or cases in which the person committed was a sexual offender.   In such situations the relevant mental disorders most often relate to volitional controls and the cases have analyzed the issue in that context.   In this state, however, a finding of insanity cannot be based on a lack of volitional control but can be based only on mental disorders affecting cognitive capacity.   The language of the cases dealing with civil commitments, therefore, while helpful in providing a general analytical framework, can be misleading when seeking a definitive mental basis for civil commitments.   With this in mind we confront appellant's recommitment under section 1026.5.

B. Statutory Scheme

 In California a defendant may plead not guilty by reason of insanity.   Our insanity test is a form of the M'naghten standard. (M'naghten's Case (1843) 8 Eng.Rep. 718, 722-723.)   In order to be found not guilty by reason of insanity, a defendant must prove by a preponderance of the evidence that at the time of the offense he or she was incapable of knowing or understanding the nature and quality of his or her act or of distinguishing right from wrong. (§ 25, subd. (b).)  This incapacity must be based on a mental disease or defect.  (People v. Stress (1988) 205 Cal.App.3d 1259, 1271, 252 Cal.Rptr. 913;  People v. McCaslin (1986) 178 Cal.App.3d 1, 8-9, 223 Cal.Rptr. 587.)   The test focuses exclusively on cognitive capacity and is unconcerned with volitional control.  (People v. Drew (1978) 22 Cal.3d 333, 341-343, 149 Cal.Rptr. 275, 583 P.2d 1318.)

If found insane, the court must decide if the defendant has fully recovered his sanity.   If sanity has not been fully recovered, the defendant must be confined in a state hospital or in another appropriate treatment facility or placed on outpatient status pursuant to section 1600 et seq. (§ 1026, subd. (a).)

The length of the committed person's actual custody can be no longer than the maximum term that could have been imposed had he been found guilty of the charged offense or offenses.   At the end of that period, however, the People may petition for an extended commitment if the prosecutor concludes by reason of mental disease, defect or disorder the committed person represents a substantial danger of physical harm to others. (§ 1026.5, subd. (b)(1), (2).)

The committed person is entitled to a jury trial on the petition (§ 1026.5, subd.(b)(3)), and section 1026.5, subdivision (b)(8), limits each extension of commitment to a two-year period.   In order for the confinement to be extended, the prosecution must show beyond a reasonable doubt the person “by reason of a mental disease, defect or disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd. (b)(1).)

 There is no requirement the standard for legal insanity as a defense to a criminal charge be the same as for an extension of a commitment initially made after a finding of not guilty by reason of insanity.   The purposes of the two proceedings are different.  (People v. Wilder (1995) 33 Cal.App.4th 90, 98-100, 39 Cal.Rptr.2d 247.)

C. Cases

In a series of cases, the United States Supreme Court and the courts of this state have explored the circumstances under which persons may be civilly committed.

1. Hendricks

In Kansas v. Hendricks (1997) 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 the court dealt with the Kansas Sexually Violent Predator Act (the Kansas Act).   The Kansas Act, very similar to California's SVPA Sexually Violent Predators Act (California's SVPA), established procedures for the civil commitment of persons who due to “mental abnormality” or a “personality disorder” are likely to engage in “predatory acts of sexual violence.”   The Kansas Supreme Court reversed Hendricks's commitment, concluding the Kansas Act's requirement for a finding of “mental abnormality” did not satisfy substantive due process because it not require a finding of “mental illness.”   (Id. at p. 350, 117 S.Ct. 2072.)

In its ruling, the United States Supreme Court reviewed the history of the Kansas Act and noted its definition of a “mental abnormality” as a “ ‘congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ ” (Kansas v. Hendricks, supra, 521 U.S. at p. 352, 117 S.Ct. 2072 italics added.)   This is also essentially the definition of a “diagnosed mental disorder” under California's SVPA. (Welf. & Inst.Code, § 6600, subd. (c).)

The court began its analysis by noting in “certain narrow circumstances” states can detain persons who are unable to control their behavior and who, thus, pose a danger to the public.   The court noted the Kansas statute required more than a mere “predisposition to violence.”   Rather, it required evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future.  (Kansas v. Hendricks, supra, 521 U.S. at p. 357, 117 S.Ct. 2072.)

The court stated ordinarily a finding of dangerousness alone is insufficient to justify a civil commitment.   The finding of dangerousness must be coupled with a finding of some additional factor such as mental illness or mental abnormality.   The court noted:  “These added statutory requirements serve to limit involuntary civil confinement to those suffering from a volitional impairment rendering them dangerous beyond their control.”  (Kansas v. Hendricks, supra, 521 U.S. at p. 358, 117 S.Ct. 2072 italics added.)

The court observed there was no talismanic quality to any particular word or phrase describing the mental quality required.   There was disagreement even in the scientific community concerning the nature of mental illness.   It noted the court itself had used a variety of expressions to describe the mental condition sufficient to support a civil commitment, e.g., “emotionally disturbed,” “mentally ill,” “incompetency,” “insanity”.   The court noted it had left to legislators “the task of defining terms of a medical nature that have legal significance.”  (Kansas v. Hendricks, supra, 521 U.S. at p. 359, 117 S.Ct. 2072.)

The court observed often the specialized terms adopted by the Legislature did not mirror precisely the definitions employed by the scientific community and indeed could vary substantially.   The court found nothing disturbing or unexpected in this since the task of psychiatrists and psychologists and the office of their vocabularies were different than those of the law.  (Kansas v. Hendricks, supra, 521 U.S. at p. 359, 117 S.Ct. 2072.)

With regard to the Kansas Act, the court stated:  “To the extent that the civil commitment statutes we have considered set forth criteria relating to an individual's inability to control his dangerousness, the Kansas Act set forth comparable criteria.”  (Kansas v. Hendricks, supra, 521 U.S. at p. 360, 117 S.Ct. 2072 italics added.)

The court noted Hendricks was diagnosed as a pedophile and admitted that under stress he could not control his urge to molest children.   The court stated:  “This admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.”  (Kansas v. Hendricks, supra, 521 U.S. at p. 360, 117 S.Ct. 2072.)

2. Hubbart

After the decision in Hendricks, our Supreme Court considered the same question in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584.   In Hubbart, a case involving a commitment under California's SVPA, it was argued civil commitments must be limited to those with a “mental illness,” i.e., a “serious cognitive, perceptual or affective dysfunction.”  Hubbart noted California's SVPA allowed commitment based on a “ ‘condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sex acts in a degree constituting the person a menace to the health and safety of others.’ ” (Id. at p. 1152, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   Hubbart argued this definition was constitutionally flawed because it allowed commitment on an overly broad range of mental disorders, including those characterized by an inability to control sexually violent impulses and behavior.   The court concluded the claim lacked merit for the reasons stated in Hendricks.  (Id. at pp. 1152-1158, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   In doing so the court noted Kansas and California use the same description of the mental disorder required for a commitment.   The court then stated:  “Through this language, the Kansas Act targets sexual offenders who suffer from a diagnosed ‘volitional impairment ’ making them ‘dangerous beyond their control.’ ”  (Id. at p. 1157, 81 Cal.Rptr.2d 492, 969 P.2d 584, italics added.)

3. Crane

Following the Hubbart decision, in Kansas v. Crane (2002) 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 the United States Supreme Court again considered the Kansas Act. The court reviewed its decision in Hendricks.   It noted based on that decision the Supreme Court of Kansas held a civil commitment is only permissible when there is a finding the person to be committed “ ‘cannot control his dangerous behavior.’ ”  (Id. at p. 411, 122 S.Ct. 867.)

The United States Supreme Court concluded the Constitution does not require such a total or complete lack of control.   The court stated it had not announced such a requirement in Hendricks and given the nature of mental illness and the evaluation of mental illness, such a requirement would be unworkable.   The court further observed “most severely ill people-even those commonly termed ‘psychopaths'-retain some ability to control their behavior.”  (Kansas v. Crane (2002) 534 U.S. at p. 412, 122 S.Ct. 867.)   The court said:  “Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.”  (Ibid.)

The court added, however, it did not agree with the state that commitment “of the type of dangerous sexual offender considered in Hendricks ” (Kansas v. Crane (2002) 534 U.S. at p. 412, 122 S.Ct. 867) was permissible without any lack of control determination.   It noted Hendricks highlighted the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment from other persons more properly dealt with through the criminal justice system.   The court stated:  “That distinction is necessary lest ‘civil commitment’ become a ‘mechanism for retribution or general deterrence’-functions properly those of criminal law, not civil commitment.”  (Ibid.) The court continued:  “The presence of what the ‘psychiatric profession itself classifie[d] ․ as a serious mental disorder’ helped to make that distinction in Hendricks.   And as a critical distinguishing feature of that ‘serious ․ disorder’ there consisted of a special and serious lack of ability to control behavior.”  (Id. at pp. 412-413, 122 S.Ct. 867.)

The court then stated:  “In recognizing that fact, we did not give the phrase ‘lack of control’ a particularly narrow or technical meaning.   And we recognize that in cases where lack of control is at issue, ‘inability to control behavior’ will not be demonstrable with mathematical procession.   It is enough to say that there must be proof of serious difficulty in controlling behavior.   And this when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.”  (Kansas v. Crane (2002) 534 U.S. at p. 413, 122 S.Ct. 867.)

The court then noted the state's observation that volitional problems are not always at the heart of a dangerous sexual offender's mental abnormality and the Kansas Act permitted civil commitment of dangerous sexual offenders who suffer from mental disorders characterized as “emotional” impairments and suffer no “volitional,” impairment at all.  (Kansas v. Crane, supra, 534 U.S. at p. 414, 122 S.Ct. 867.)   California's SVPA also allows such commitments.   (Welf. & Inst.Code, § 6600, subd. (c).)

In reply to the state's argument, the court noted Hendricks had limited its discussion to volitional disabilities but this was not surprising because Hendricks suffered from a disorder that affected his volitional control.   The court stated most persons committed as dangerous sexual offenders are those who have difficulty controlling their behavior.   The court stated Hendricks had to be read in context and it “did not draw a clear distinction between the purely ‘emotional’ sexually related mental abnormality and the ‘volitional.’   Here, as in other areas of psychiatry, there may be ‘considerable overlap between a ․ defective understanding or appreciation and ․ [an] ability to control ․ behavior.’ ”  (Kansas v. Crane, supra, 534 U.S. at p. 415, 122 S.Ct. 867.)

The court then made this important statement:  “[W]hen considering civil commitment, [we have not] ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments.  [Citations.]  The Court in Hendricks had no occasion to consider whether confinement based solely on ‘emotional’ abnormality would be constitutional, and we likewise have no occasion to do so in the present case.”  (Kansas v. Crane, supra, 534 U.S. at p. 415, 122 S.Ct. 867.)

4. Ghilotti

Shortly after the decision in Crane, our Supreme Court decided People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 119 Cal.Rptr.2d 1, 44 P.3d 949.   In Ghilotti the court dealt with several issues involving the evaluation required of potential SVPA committees.   Before commitment proceedings may be undertaken, two clinicians must find the person potentially committed has “a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.”   (Welf. & Inst.Code, § 6601, subd. (d).)  One of the issues faced by the court in Ghilotti was the meaning of the word “likely” as used in the section.

The court concluded “likely” meant “that, as of result of a current mental disorder which predisposes the person to commit violent sex offenses, he or she presents a substantial danger-that is, a serious and well founded risk-of reoffending in this way if free.”  (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 916, 119 Cal.Rptr.2d 1, 44 P.3d 949.)

In discussing the “without treatment and custody” aspect of the test, the court stated:  “California's SVPA thus consistently emphasizes the theme common to valid civil commitment statutes, i.e., a current mental condition or disorder that makes it difficult or impossible to control volitional behavior [italics added] and predisposes the person to inflict harm on himself or others, thus producing dangerousness measured by a high risk or threat of further injurious acts if the person is not confined.  [Citations.]”  (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 920, 119 Cal.Rptr.2d 1, 44 P.3d 949;  see also fn. 12.)

5. Williams

In People v. Williams (2003) 31 Cal.4th 757, 3 Cal.Rptr.3d 684, 74 P.3d 779, a case again dealing with California's SVPA, our Supreme Court addressed more specifically the mental disorder requirement for civil commitments discussed in Crane.   Citing Crane, the court stated:  “The federal Constitution prohibit[s] the involuntary confinement of persons on the basis that they are dangerously disordered without ‘proof [that they have] serious difficulty in controlling [their dangerous] behavior.’ ”  (Id. at p. 759, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

The court noted California's SVPA did not use that precise language in defining who was eligible for involuntary commitment as a sexual violent predator and in the Williams hearing the jury was instructed in the statutory terms of California's SVPA but was not instructed that proof of a serious difficulty in controlling behavior was required.   The court concluded no such instruction was necessary.   It noted by its express terms California's SVPA was limited to persons who had been convicted of violent sexual offenses and who were diagnosed with mental disorders “affecting the emotional or volitional capacity” that predisposes them to the commission of criminal sex acts in a degree constituting them a menace to the safety of others.   The court stated:  “This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one's criminal sexual behavior.”  (People v. Williams, supra, 31 Cal.4th at p. 759, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

The court added:  “California's SVPA's plain words thus suffice ‘to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.’  [Citation.]”  (People v. Williams, supra, 31 Cal.4th at pp. 759-760, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

In discussing Crane and Hendricks, the court in Williams states it is the existence of a serious mental disorder resulting in a “difficulty in controlling ․ dangerous behavior” (People v. Williams, supra, 31 Cal.4th at p. 772, 3 Cal.Rptr.3d 684, 74 P.3d 779) that is the crucial element separating those who may properly be civilly committed from those subject exclusively to the criminal law. Williams repeated Crane's observation the term “lack of control” did not have a narrow or technical meaning and such lack of control could not be demonstrated with mathematical precision.   The court stated it was enough there was some proof of serious difficulty in controlling behavior.   Williams also agreed there were no “bright-line” rules in this area and the states had considerable leeway in defining the mental abnormalities and personality disorders that make persons eligible for commitment.  (Id. at pp. 772-773, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

The court also discussed the “emotional impairment” language of the Kansas Act and California's SVPA's.   It noted that Crane took no position on whether confinement based on an emotional impairment would be constitutional.   It observed, however, Crane indicated a reluctance to eliminate such impairments as a basis for commitment given the unclear margin between mental disorders affecting understanding and appreciation and those affecting the capacity to control behavior.  (People v. Williams, supra, 31 Cal.4th at p. 773, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

6. Howard N.

In In re Howard N. (2005) 35 Cal.4th 117, 24 Cal.Rptr.3d 866, 106 P.3d 305 the court addressed whether a civil commitment pursuant to Welfare and Institutions Code section 1800 et seq. violates due process because it does not require a finding the individual to be committed has a mental deficiency, disorder or abnormality causing a serious difficulty in controlling behavior.

Welfare and Institutions Code section 1800 provides for the civil commitment and recommitment of a person under the control of CYA whose lawful term of commitment has expired if a jury determines the person is “physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality.”  (Welf. & Inst.Code, § 1801.5.)

In determining whether this commitment scheme violates due process, the court reviewed the decisions in Hendricks, Crane and Williams.   The court noted those cases held to be committed as a sexually violent predator, it is necessary the fact finder conclude as a result of mental illness the person must have serious difficulty in controlling his or her dangerous behavior.   (In re Howard N., supra, 35 Cal.4th at pp. 128-130, 24 Cal.Rptr.3d 866, 106 P.3d 305.)

The court noted while sexually violent predator acts deal with persons who suffer from ailments that typically contain a compulsive element, it was difficult to imagine a different due process standard for civil commitments dealing with other types of dangerously mentally ill persons.   The court concluded to save the section 1800 commitment scheme, it was necessary to read into it a requirement the person to be committed suffer from a mental impairment that causes serious difficulty in controlling dangerous behavior.   The court describes this as a volitional requirement.  (In re Howard N., supra, 35 Cal.4th at pp. 131-132, 136-137, 24 Cal.Rptr.3d 866, 106 P.3d 305.)

In interpreting Howard N., it is useful to note while the case dealt with a commitment under Welfare and Institutions Code, section 1800 et seq., the individual committed was placed in CYA after molesting a three-and a half-year-old boy.   While in the CYA, he had fantasies involving criminal sex acts and acted out sexually.   He was diagnosed with “Paraphilia Not Otherwise Specified.”  (In re Howard N., supra, 35 Cal.4th at p. 125, 24 Cal.Rptr.3d 866, 106 P.3d 305.)   A psychologist concluded he presented an imminent danger to the community.  (Id. at pp. 123-125, 24 Cal.Rptr.3d 866, 106 P.3d 305.)

7. Michael H.

After In re Howard N., the Court of Appeal decided In re Michael H. (2005) 128 Cal.App.4th 1074, 27 Cal.Rptr.3d 627.  Michael H. again considered the substantive due process requirement for a civil commitment pursuant to Welfare and Institutions Code section 1800, et seq.   Michael H. was committed to CYA for a variety of acts, including serious sexual misconduct.   A section 1800 petition was filed.   Michael H. was found to suffer from paraphilia or pedophila as a result of which he was a physical danger to the public.   He was civilly committed based on those findings.   (Id. at pp. 1080-1082, 27 Cal.Rptr.3d 627.)

After a thorough review of United States and California Supreme Court cases, the court identified an additional due process requirement not discussed in Williams or Howard N. The court in Michael H. decided the Constitution permits civil commitment only when “(1) The potential committee has a mental illness or abnormality;  (2) the mental illness or abnormality causes the potential committee to have serious difficulty controlling his or her behavior;  and (3) the inability to control his or her behavior results in a serious and well-founded risk that the potential committee will reoffend.”   (In re Michael H., supra, 128 Cal.App.4th at p. 1089, 27 Cal.Rptr.3d 627, italics added.)

Like the court in Howard N., the court in Michael H. read the potential for reoffense element into section 1800 to save the statutory scheme from being declared unconstitutional.   The court also concluded it was necessary this potential for reoffense element be alleged in the section 1800 petition, demonstrated at the probable cause hearing and proved at trial.   (In re Michael H., supra, 128 Cal.App.4th at pp. 1089-1091, 27 Cal.Rptr.3d 627.)

D. Analysis

1. The Elements of a Section 1026.5 Recommitment

 The task before us is determining the elements necessary for a civil recommitment made pursuant to section 1026.5.   As generally described by the cases, to be civilly committed as part of a scheme dealing with those initially incarcerated for the commission of a criminal act, a person must have a mental illness or abnormality which causes that person to have serious difficulty controlling his or her behavior and that inability must result in a serious and well-founded risk the person will reoffend.

These elements arise from the working out of tension between two important policy considerations.   On one side is the interest of the State in protecting itself from those who have a high potential for committing future criminal acts.   Against this is society's countervailing interest in not civilly committing persons merely because of a history of criminality even when that history suggests a high potential for reoffense.   Society places such a high value on personal freedom and such a hope for and interest in self-derived change that it will not indefinitely civilly incarcerate persons merely because statistics suggest a high possibility of reoffense.   Thus, the Supreme Court speaks of drawing a distinction between those dangerous offenders reasonably subject to civil commitment from other persons more properly dealt with in the criminal justice system.   As was stated in Crane, this distinction is necessary “lest ‘civil commitment’ become a ‘mechanism for retribution or general deterrence’-functions properly those of criminal law, not civil commitment.”  (Kansas v. Crane, supra, 534 U.S. at p. 412, 122 S.Ct. 867.)

This interest in avoiding civil commitments as an expedient means of dealing with difficult persons does not apply when the danger of reoffense is predictable not merely from a history of criminality but from a serious mental disorder that makes reoffense likely.   In these persons, as we conceive of the matter legally, the possibility of reoffense arises not from the actor's free choice arising from an accurate perception of reality but from some symptom of a serious mental disease or defect that affects volitional control and/or the ability to correctly interpret reality.   Such persons are in many ways more dangerous than a “mere criminal” and less likely to “reform” without therapeutic intervention.   With such persons, the calculus changes and civil commitment becomes reasonable and appropriate.

One difficulty in applying recent case authority dealing with these issues to recommitments under section 1026.5 is that those cases uniformly deal with commitment schemes or criminal behavior in which the relevant mental disorders affect volitional controls.   Thus, the cases repeatedly speak of the requirement the potential committee have serious difficulty controlling his or her behavior.   The courts have gone even farther and described this difficulty of control as a “volitional impairment.”  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1157, 81 Cal.Rptr.2d 492, 969 P.2d 584;  see also In re Howard N., supra, 35 Cal.4th at pp. 131-132, 136-137, 24 Cal.Rptr.3d 866, 106 P.3d 305;  People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929, 119 Cal.Rptr.2d 1, 44 P.3d 949.)

The difficulty, of course, is that those found not guilty by reasons of insanity under section 1026 have, as a matter of statutory definition, been found to suffer not from mental illnesses affecting volitional control but from illnesses affecting cognitive capacity, i.e., the individual is incapable of knowing or understanding the nature and quality of his or her act or of distinguishing right from wrong.  (See People v. Drew, supra, 22 Cal.3d at pp. 341-343, 149 Cal.Rptr. 275, 583 P.2d 1318.)   It is likely, therefore, the reason for recommitment will be the continued existence of this nonvolitional mental impairment.

While focusing on issues of volitional control, courts dealing with the propriety of civil commitments have recognized not all serious mental disorders that render an individual a danger to the community and create a serious potential for reoffense arise from volitional impairments.  (Kansas v. Crane, supra, 534 U.S. at pp. 414-415, 122 S.Ct. 867;  People v. Williams, supra, 31 Cal.4th at p. 773, 3 Cal.Rptr.3d 684, 74 P.3d 779.)   Some of the most serious crimes committed by the most mentally disturbed and dangerous persons arise not from volitional disorders but from other types of mental impairment.

 The analytical lesson in this is we cannot look to the specific decisional language in cases such as Hendricks, Crane, Williams and Howard N. in seeking an all-encompassing definition for the types of mental disorders that will properly serve as a basis for civil commitments.   Rather, we must look to the policy considerations which underlie that decisional language.   As noted, the core consideration is to draw a meaningful distinction between those dangerous offenders reasonably subject to civil commitment from other persons more properly dealt with in the criminal justice system.   Neither the United States Supreme Court nor our own high court give many clues as to how we are to draw this distinction, but necessarily persons with mental disorders which make them incapable of knowing and understanding the nature and quality of their acts or to distinguish right from wrong fit as readily as those with volitional impairments in the category of persons properly subject to civil commitment.   In this respect, we note the court in Crane states in considering the lack of control element:  “Insistence upon absolute lack of control would risk barring the civil commitment of highly dangerous persons suffering severe mental abnormalities.”  (Kansas v. Crane, supra, 534 U.S. at p. 412, 122 S.Ct. 867.)   The same can be said about limiting civil commitment to those with volitional disorders.

Given this analysis, we conclude a recommitment under section 1026.5 is proper when (1) the person potentially recommitted has a mental disease, defect or disorder and (2) that condition causes the person to have serious difficulty controlling his or her behavior or seriously affects the potential committee's capacity to properly perceive or process reality or the condition affects both capacities such that (3) the individual is a substantial danger of physical harm to others.  (See generally In re Michael H., supra, 128 Cal.App.4th at p. 1091, 27 Cal.Rptr.3d 627.)

This test allows the recommitment of persons under section 1026.5 based not only on a finding of volitional impairment but also upon a finding of cognitive impairment, i.e., the types of impairments that result in persons being found not guilty by reason of insanity.   In articulating this test, we note there is nothing in section 1026.5 suggesting the mental condition supporting recommitment must always consist of a cognitive impairment.   Case law suggests no such limit exists.  (People v. Wilder, supra, 33 Cal.App.4th at pp. 98-100, 39 Cal.Rptr.2d 247.)   Given the imprecise edges of psychiatric disorders and the level of dangerousness potentially posed by those found not guilty by reason of insanity, this broad rule is appropriate.  (See generally (Kansas v. Crane, supra, 534 U.S. at pp. 414-415, 122 S.Ct. 867.)

We conclude this refinement to the statutory basis for a recommitment pursuant to section 1026.5 is necessary to both preserve the section's constitutionality and find it is consistent with legislative intent.  (See In re Howard N., supra, 35 Cal.4th at pp. 132-136, 24 Cal.Rptr.3d 866, 106 P.3d 305;  In re Michael H., supra, 128 Cal.App.4th at p. 1090, 27 Cal.Rptr.3d 627.)

2. This Case

 While we interpret section 1026.5 in a manner rendering it constitutional, the question remains whether the instructions given in this case were adequate.

Here, the recommitment petition was cast in the statutory language of section 1026.5 and did not allege the particular mental elements we have defined in this opinion.   Using CALJIC No. 4.17, the trial court instructed the jury the issue to be determined was whether appellant was “by reason of mental disease, defect or disorder” a “substantial danger of physical harm to others.”   The jury's true findings on the petition were made in these terms.

As noted above, it is not enough to satisfy the requirements of substantive due process to base a civil commitment merely on a finding of a mental disorder rendering the potential committee dangerous.   The trier of fact must additionally find, in the context of a section 1026.5 recommitment, the mental condition causes the potential committee to have serious difficulty controlling his or her behavior or seriously affects the potential committee's capacity to properly perceive or process reality and this volitional or cognitive incapacity results in a substantial danger of physical harm to others.

In the present case the jury was instructed it was to determine if appellant by reason of mental disease, defect or disorder posed a substantial danger of physical harm to others.   The instruction was inadequate.   It was too general and failed to require the jury find the necessary cognitive or volitional incapacity.

3. Prejudice

 The remaining question is whether the instructional error was prejudicial.

An instructional error that improperly describes or omits an element of the offense is not a structural defect which requires per se reversal under the federal Constitution.  (People v. Flood (1998) 18 Cal.4th 470, 502, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   The test is whether the error was harmless beyond a reasonable doubt.  (See In re Howard N. supra, 35 Cal.4th at pp. 137-138, 24 Cal.Rptr.3d 866, 106 P.3d 305;  People v. Williams, supra, 31 Cal.4th at p. 778, 3 Cal.Rptr.3d 684, 74 P.3d 779.)

Here, two psychiatrists and two psychologists testified for the State concerning appellant's mental health.   Their undisputed opinion was appellant suffered from a severe mental disorder, i.e., a bipolar condition combined with a narcissistic personality and polysubtance abuse.   They all agreed this condition rendered appellant an unacceptable risk for violence against others.   Evidence was offered appellant's severe mental disorder had resulted in violence.

Appellant did not offer testimony from a psychiatrist or psychologist.   Instead, he offered the testimony of a librarian, a rehabilitation therapist and two psychiatric technicians.   These witnesses opined appellant was a good worker who showed empathy, he had coping skills and he was polite to staff.   Appellant testified, denying some events and stating he had no memory of others.

The jury was instructed concerning the requirement it find that because of a serious mental disorder appellant was a physical danger to others.   It was not instructed, as we conclude it should have been, the disorder affected appellant's volitional or cognitive capacity such that he was a physical danger to others.   Given the evidence presented, however, no reasonable juror could have failed to find this necessary linkage.

We note of the five experts who testified appellant had a serious mental disorder and was a danger to others, only Dr. Carroll discussed the issue of linkage between the diagnosed disorder and the fact of dangerousness.   He explained appellant's severe disorder caused him to have episodes in which he does not “think straight” and behaves “in a very abnormal manner.”   The doctor explained appellant's mental disorder could result in paranoid thinking that would cause him to believe, for example, people were out to get him.   Carroll's testimony describes a disorder that affects an individual's cognitive capacity.   This testimony was not only uncontested but makes clear why the other experts, while not specifically explaining the linkage, would conclude the form of appellant's disorder would make him a danger to others.

Any reasonable juror in light of the evidence in this case would have found the necessary linkage between appellant's severe mental disorder and his dangerousness.   Any instructional error was harmless.

The judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

BENKE, Acting P.J.

WE CONCUR:  HALLER and O'ROURKE, JJ.

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