PEOPLE v. HANSHEW

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Alan HANSHEW, Defendant and Appellant.

No. E008625.

Decided: February 26, 1992

Mark Alan Hart, Northridge, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I. Motley and Robert Foster, Supervising Deputy Attys. Gen., and Esteban Hernandez, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

I

INTRODUCTION

Michael Alan Hanshew (defendant) appeals from an order by the superior court that his commitment to Patton State Hospital as a mentally disordered sex offender (MDSO) be extended for a two year period, pursuant to former section 6316.2 of the Welfare and Institutions Code.1  He contends that (1) the trial court committed reversible error by failing to instruct the jury on the presumption of “innocence,” as to his alleged status, and (2) there is insufficient credible evidence to support the extension of his commitment.

The People contend that defendant is precluded from raising the issue of the asserted jury instruction error by the doctrine of the law of the case, defendant having raised this same issue in an earlier appeal (People v. Hanshew (June 30, 1989) E005743 [nonpub.opn.] ), and the issue having been decided against him.   The People also contend that there is sufficient evidence to support the order extending commitment.

II

FACTS AND PROCEDURAL BACKGROUND

Defendant was first committed to Patton State Hospital as an MDSO in 1977 after being convicted of rape.   He has been recommitted several times in the interim.

In 1990, a petition to extend his commitment by another two years was filed.   Expert testimony was presented on behalf of the People by Patton psychologist Dr. Ira Vroubel and two independent, court-appointed psychologists, Dr. Michael Kania and Dr. Craig Rath, all of whom expressed the opinion that he continued to suffer from a mental disorder which predisposed him to the commission of sexual offenses and that he presented a substantial danger to others.

Defendant testified on his own behalf, and also presented the testimony of Dr. Otto Gericke, a psychiatrist, who expressed the expert opinion that defendant suffered from no mental defect, disease or disorder.

The jury determined that defendant was a person who suffered from a mental defect, disease, or disorder, that he was predisposed to commit sexual crimes, and that he presented a danger to others.   Based on this finding, the court ordered defendant's recommitment.   Defendant filed a timely notice of appeal.

III

DISCUSSIONA. The Doctrine of Law of the Case Does Not Apply Here

The People contend that the doctrine of the law of the case precludes defendant from raising the issue of whether or not he was entitled to an instruction on the presumption of “innocence.”   Not so.

 The doctrine of the law of the case applies only to a principle or rule of law which is necessary to, and stated in, an earlier appellate opinion, which principle or rule of law then is determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.  (See 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 737 and cases cited therein.)   The doctrine only applies to a point necessarily decided in an appellate opinion (id. at § 752 and cases cited therein), and it is particularly true that a point noted in an appellate opinion, which the court expressly declines to decide, does not become law of the case.  (Estate of Baird (1924) 193 Cal. 225, 239, 223 P. 974.)

In appeal No. E005743, in response to the issue raised by defendant as to whether he was entitled to an instruction on the presumption of “innocence” (or its equivalent) in an MDSO proceeding, this court stated that:  “We need not deal with this somewhat novel issue because the failure to give such an instruction in this case did not deprive defendant of his right to a fair trial under the totality of the circumstances.”   Thus, the earlier appeal did not decide the issue of whether it was error to refuse to instruct the jury as requested, but merely decided the issue of whether defendant, under the particular facts of that particular recommitment proceeding, received a fair trial, or, to put it another way, whether, even if failure to give the instruction was error, it was harmless error.

We therefore conclude that the doctrine of the law of the case does not preclude us from considering the issue raised by defendant regarding his entitlement to an instruction that he should be presumed “innocent” (or more appropriately, presumed to be not a person of the status described in former section 6316.2, subdivision (a)).

B. The Trial Court Did Not Err By Refusing to Instruct the Jury on the Presumption of “Innocence”

Defendant contends that the trial court committed prejudicial error by failing to instruct the jury that he was presumed “innocent,” but instead instructing the jury:

“The petitioner has [the People have] the burden of proving each element of the allegation of the petition beyond a reasonable doubt.   Reasonable doubt is defined as follows:  It is not a mere possible doubt because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt.   It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.

“In this case the question for your determination is whether the respondent, Michael Alan Henshew [sic], by reason of a mental disease, defect or disorder, is predisposed to the commission of sexual crimes to such a degree that he presents a substantial danger of bodily harm to others.   The state has the burden of proving beyond a reasonable doubt that the respondent:  One, has a mental disease, defect or disorder;  and, two, as a result of such mental condition, is predisposed to the commission of sexual crimes;  and three, represents a substantial danger of bodily harm to others.”

 The fundamental presumption of a defendant's innocence, and the prosecution's concomitant burden of proving a defendant is guilty beyond a reasonable doubt of a charged criminal offense, are set forth in Penal Code section 1096, which provides in relevant part that “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal, ․”  The failure to give an instruction on the presumption of innocence, even if such an instruction is specifically requested, is not necessarily error, let alone reversible error, for the failure to give such an instruction “does not in and of itself violate the Constitution.”  (Kentucky v. Whorton (1979) 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643.)   Instead, the failure to give such an instruction must be evaluated in light of the record as a whole, including all the instructions to the jury, the arguments of counsel, whether the weight of evidence was overwhelming, and other relevant factors.  (Kentucky v. Whorton, supra, 441 U.S. 786, 788–789, 99 S.Ct. 2088, 2090, 60 L.Ed.2d 640, 643.)

 Defendant contends that he was “denied ․ the benefit of the evidentiary value of the presumption, which differs from the burden of proof in that it is weighed by the trier of fact against the prosecution's evidence.”   (Emphasis added.)   Defendant cites Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603, 119 Cal.Rptr. 302, 531 P.2d 1086 and People v. Hill (1946) 77 Cal.App.2d 287, 293, 175 P.2d 45 for this proposition.

Although presumptions were formerly considered to be independent evidence, to be somehow weighed against other evidence (as stated in People v. Hill, supra, a case decided under the former state of the law as to presumptions) (see 1 Witkin, Cal.Evidence (3d ed. 1986) § 171), a presumption is no longer considered to be independent evidence (Evid.Code, § 600, subd. (a);  1 Witkin, supra, § 174;  see also Taylor v. Kentucky (1978) 436 U.S. 478, 483, fn. 12, 98 S.Ct. 1930, 1933, fn. 12, 56 L.Ed.2d 468, 474, fn. 12), and its effect is either to affect the burden of producing evidence or the burden of proof.  (Evid.Code, § 175;  see also Taylor v. Kentucky (1978) 436 U.S. 478, 483, fn. 12, 98 S.Ct. 1930, 1933, fn. 12, 56 L.Ed.2d 468, 474, fn. 12.)   The distinction between the manner in which presumptions were treated under the former law and the law as it now exists is, coincidentally, well-illustrated by the two cases cited by defendant.   In People v. Hill, the court stated that “The presumption of innocence must be weighed along with the evidence in deriving a verdict,” (77 Cal.App.2d at p. 293, 175 P.2d 45, emphasis added), while in Bunnell v. Superior Court, supra, the court stated that “a defendant who has entered a plea of not guilty is entitled to the presumption of innocence and to require the People to assume the burden of overcoming that presumption by introducing evidence sufficient to establish his guilt beyond a reasonable doubt.”  (13 Cal.3d at p. 603, 119 Cal.Rptr. 302, 531 P.2d 1086, emphasis added.)

Even Penal Code section 1096 itself, which sets forth the presumption of innocence, acknowledges this distinction, for it provides, in relevant part, that the effect of the presumption “is only to place upon the state the burden of proving [the defendant] guilty beyond a reasonable doubt.”  (See also Taylor v. Kentucky, supra, 436 U.S. 478, 485–486 and fn. 13, 98 S.Ct. 1930, 1934–1935 and fn. 13, 56 L.Ed.2d 468, 474–475 and fn. 13:  “an instruction on the presumption [of innocence] is one way of impressing upon the jury the importance of that right․ to be judged solely on the basis of proof adduced at trial” and “on the basis of the evidence and beyond a reasonable doubt.”)

Thus, defendant's contention that he was entitled both to an instruction on the People's burden of proving him to be an MDSO beyond a reasonable doubt and to an instruction that he must be presumed to be not an MDSO, because an MDSO proceeding is akin to a criminal proceeding and in a criminal trial the jury must be allowed to consider the evidentiary “weight” of the presumption of innocence, is simply incorrect.

Although we conclude that it was not error to refuse to instruct the jury on the presumption that defendant was not an MDSO for the reasons asserted by defendant at trial and on appeal, i.e., that a defendant in a criminal case is entitled to such an instruction, and an MDSO proceeding is sufficiently analogous to a criminal proceeding that it should likewise be given there, we nonetheless point out that it would not be error to give such an instruction in addition to the instruction on the People's burden of proof.   Under the particular factual scenario involved in MDSO recommitment proceedings, such an instruction, or its equivalent, may be more important functionally than in a criminal trial.   The reason for this is that a defendant in a recommitment proceeding is laboring under a disability not faced by a defendant in a criminal trial.   In a recommitment proceeding, the jury will of necessity hear, through the testimony of those charged with the defendant's treatment and the testimony of court-appointed psychiatrists or psychologists, that defendant has already been formally determined to be an MDSO.   This occurs even though such expert testimony may be admitted for nonhearsay purposes.   Practically speaking, a jury might well infer that someone previously determined to be an MDSO, who is currently held in a state hospital as such, is in fact an MDSO until he proves otherwise.  (See, e.g., Civ.Code 3547, “A thing continues to exist as long as is usual with things of that nature,” and Estate of Fosselman (1957) 48 Cal.2d 179, 186, 308 P.2d 336:  “Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable [citations], perhaps there is even a legal presumption [citations] that the incompetency continues to exist.”)

As the court in Taylor v. Kentucky pointed out, “scholars advise against abandoning the instruction on the presumption of innocence, even when a complete explanation of the burden of proof beyond a reasonable doubt is provided.  [Citations.]  This admonition derives from a perceived salutory effect upon lay jurors.   While the legal scholar may understand that the presumption of innocence and the prosecution's burden of proof are logically similar, the ordinary citizen well may draw significant additional guidance from an instruction on the presumption of innocence.   Wigmore described this effect as follows:

“ ‘[I]n a criminal case the term [presumption of innocence] does convey a special and perhaps useful hint over and above the other form of the rule about the burden of proof, in that it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.   In other words, the rule about burden of proof requires the prosecution by evidence to convince the jury of the accused's guilt;  while the presumption of innocence, too, requires this, but conveys for the jury a special and additional caution (which is perhaps only an implied corollary to the other) to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.   This caution is indeed particularly needed in criminal cases.’   Wigmore 407.”  (Taylor v. Kentucky, supra, 436 U.S. 478, 484–485, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, 474–475.)

Here, the other jury instructions adequately provided some additional and special caution.   The jury was instructed that it must not be biased against defendant because he was committed to a mental hospital, and that “None of these circumstances is evidence of the truth of the allegation on this matter, and you must not infer or assume from any or all of them that the allegation is more likely to be true than not true.”   It was instructed that “a finding that the petition is true in this matter may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the respondent has a mental disease, defect or disorder and as a result of such mental condition is predisposed to the commission of sexual crimes and represents a substantial danger of physical harm to others, but, also, cannot be reconciled with any other rational conclusion.”

 Although we conclude that it was not error to fail to give defendant's requested instruction, we also conclude that there was no reason not to give the instruction requested by defendant, and that it would be the better practice to do so in future recommitment proceedings, on the basic principle that the trial court should, if requested by a defendant, give instructions on specific points so long as the requested instructions are correct, pertinent, (Pen.Code, § 1127) and not unduly repetitious.   (People v. Farmer (1989) 47 Cal.3d 888, 913–914, 254 Cal.Rptr. 508, 765 P.2d 940.)

C. There Was Sufficient Evidence To Support the Jury's Verdict **

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory section references are to the Welfare and Institutions Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

TIMLIN, Acting Presiding Justice.

McKINSTER and McDANIEL *, JJ., concur.