Filed 12/4/19 P. v. Freund CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LUKE FREUND,

Defendant and Appellant.

E071825

(Super.Ct.No. SWF026721)

OPINION

APPEAL from the Superior Court of Riverside County. William S. Lebov, Judge. (Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

“The Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) authorizes the Board of Parole Hearings to involuntarily commit individuals convicted of certain felony offenses for mental health treatment as a condition of parole. [Citation.] Commitment as a mentally disordered offender (MDO) may continue even after an offender’s parole term has expired, so long as the district attorney makes a showing that the MDO’s mental disorder is not in remission and that the MDO, because of the disorder, represents a substantial danger of physical harm. (§§ 2970, 2972.)” (People v. Foster (2019) 7 Cal.5th 1202, 1205.)

Defendant and appellant, Luke Freund, appeals from a jury determination extending his commitment as a mentally disordered offender (MDO). He contends there was insufficient evidence that he presented a substantial danger of physical harm to others because of his mental disorder, and the trial court erred in failing to modify a jury instruction (CALCRIM No. 3457) to define the term “substantial danger.” We reject defendant’s contentions and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Conviction and Sentence.

On September 10, 2008, defendant (37 years old) was renting a room in a house where the victim (17 years old) lived. Defendant tossed water onto the victim, who was lying in bed, and told him to get up. The victim became angry, and the two argued and exchanged insults. When the victim said defendant belonged in a hospital and was mentally ill, defendant punched the victim in the face, causing him to lose consciousness. When the victim woke up, he was lying on his back, and defendant was on top of him repeatedly punching him in the face. The victim suffered two minor cuts to the left side of his nose, two minor cuts to his neck, swelling, scratches, and blood on both his face and neck. Defendant had no visible injuries and was uncooperative with the police. Defendant pleaded guilty to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and was sentenced to three years in state prison.

B. Defendant’s MDO Commitment.

Before defendant’s parole terminated, he was involuntarily committed for mental health treatment as an MDO under section 2962. Several recommitment petitions went unchallenged until May 2018. A jury trial on the latest petition commenced on December 3, 2018.

The People offered the testimony of Dr. My Kha, a psychiatrist at Patton State Hospital (Patton), who had been treating defendant since June 2017. She testified that defendant suffers from schizophrenia, a mental disorder that involves hallucinations, delusions, inappropriate or bizarre behavior, disorganized thinking, negative affect or symptoms, and apathy that significantly impairs a person’s functioning. She stated that he lacks insight into how his illness contributed to his violent behavior, explaining that “he believed that he was acting in self-defense” when he committed the assault, and that “the medications were not necessary, that marijuana and alcohol would be all he needs, and at the time he was using marijuana.”

Dr. Kha testified defendant had been subject to an order for involuntary medication since 2012. She described his history as including “aggression, psychomotor agitation, easily angered, persecutory delusions that lead to violence, auditory hallucinations, . . . suicidal ideations and suicide attempts.” She stated defendant is delusional, as demonstrated by his belief that his medication is poisoning his body, and turning him into a woman. However, she pointed out that once he was prescribed Thorazine, and his dosage was increased to its current level, his aggression diminished and he became able to control his anger, as exhibited by his ability to walk away when provoked. Dr. Kha expressed concern that, outside the structured setting at Patton, defendant would pose a substantial risk of danger to others “based on his history, current presentation, which includes [his] symptoms,[ ] and also his lack of insight[,] . . . poor judgment regarding his treatment and his illness,” and his failure to comply with his treatment plan (attendance of about 40%). She added that for defendant’s treatment to be effective, he needed “to buy into it. And currently he does not buy into his . . . need for medications, the need for even group therapy or treatment groups where . . . he learns about his illness, his symptoms, the different medications, different treatment modalities.” She did not believe that defendant’s condition was in remission or could be kept in remission without treatment. On cross-examination, she acknowledged that she was unaware of any incidents of physical violence in the past year.

Dr. Kathryn Peek, a psychologist with the “Mental Health Management Conditional Release Program” has evaluated defendant periodically, since 2015, for placement. Her opinion was similar to Dr. Kha’s: defendant suffers from schizophrenia; his condition is not in remission; he poses a danger to others based on history, poor group participation, lack of compliance with his treatment plan, the need for an involuntary medication order; and he does not have a plan to manage his illness, his sobriety, or to maintain safety in the community. Dr. Peek added that defendant had also been diagnosed with “alcohol use disorder, severe; cannabis use disorder, severe; other hallucinogen use disorder, also severe; amphetamine type substance use disorder, mild; [and] cocaine use disorder, mild.” Defendant admitted to Dr. Peek that he could be violent in the future if he stopped taking his medication. Thus, she concluded: “Given his inability to control his behavior in a structured environment, it is not likely he will be able to do so in the community with less support and structure.”

In June 2018, Dr. Peek interviewed defendant and remained firm in her opinion that he met the criteria for an MDO and was not suitable for conditional release in the community. Although defendant had been taking his medications, he stated he did not believe he needed them, and he would not take them if given the opportunity or if released into the community.

Brian Cunningham, a licensed clinical social worker at Patton, spoke with defendant daily and would see him for up to four hours each week in group treatment. Mr. Cunningham testified as follows: (1) defendant had attended about 50 percent (as opposed to the recommended 80% to 100% attendance) of his assigned group meetings; (2) in August 2017, he tried to hide his medication in his cheek to avoid taking it; (3) he continued to ask his treatment team to decrease his medications; and (4) a January 2018 progress note indicated defendant expressed a belief that he did not need medications and was not responsible for his assault on the victim. Mr. Cunningham expressed concern that defendant would not voluntarily take his medications if released from Patton. According to defendant’s August 2018 progress notes, he had made very little progress due to his delusions, he walked “out of groups angry when he [was] questioned regarding his thoughts,” and he denied he needed medication for his illness.

Dr. Herberth Valle, a clinical psychologist at Patton, treated defendant in 2017 and 2018, and now sees him weekly for group therapy. Based on an interview with defendant in February 2018 and a review of his records, Dr. Valle recommended defendant be recommitted for an additional year. Dr. Valle explained that defendant suffers paranoid delusions that affect his ability to function, continues to express paranoid thoughts and beliefs, talks to himself, and is verbally aggressive. The doctor testified defendant talks about going to Canada to get away from the United States justice system, he expresses the delusion that judges are pirates and the navy provides their ships, and he states that he needs weapons to defend himself against the police, who are imposters. Given defendant’s lack of insight into his illness, his poor understanding of the need to follow his treatment plan and take his medicine, his inability to identify any coping skills he could use if he experienced increased symptoms, and his admission that he would stop taking his medication if released, Dr. Valle opined that defendant would pose a substantial danger of physical harm to others if released.

On December 6, 2018, a jury found that defendant was an MDO, and the trial court extended his commitment.

II. DISCUSSION

Defendant contends there is insufficient evidence to support the jury’s finding that he presents a substantial danger of physical harm to others, and the trial court erred in refusing to define the term “substantial danger” as used in CALCRIM No. 3457.

A. The Mentally Disordered Offender Act (§ 2960 et seq.; the MDO Act).

Enacted in 1985, the MDO Act requires that an offender who has been convicted of a specified felony related to a severe mental disorder and who continues to pose a danger to society receive appropriate treatment until the disorder can be kept in remission. The MDO Act provides for treatment at three stages of commitment: as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), and following release from parole (§§ 2970, 2972).

The MDO Act “‘“requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment . . . until their mental disorder can be kept in remission. [Citation.]” [Citation.] The MDO Act is not penal or punitive, but is instead designed to “protect the public” from offenders with severe mental illness and “provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person’s prior criminal behavior is in remission and can be kept in remission.” [Citation.] The MDO Act has the dual purpose of protecting the public while treating severely mentally ill offenders.’” (People v. Goodrich (2017) 7 Cal.App.5th 699, 706.)

“‘Commitment as an MDO is not indefinite; instead, “[a]n MDO is committed for . . . one-year period[s] and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.”’ [Citation.] Thus, after an MDO’s parole has been terminated, ‘[i]f continued treatment is sought, the district attorney must file a petition in the superior court alleging that the individual suffers from a severe mental disorder that is not in remission, and that he or she poses a substantial risk of harm. [Citation.]’ [Citation.] At the hearing on the People’s petition for recommitment of an MDO, ‘the three criteria that must be satisfied for continued treatment [i.e., recommitment] relate, not to the past, but to the defendant’s current condition. At an extension proceeding, the questions are: Does the defendant continue to have a severe mental disorder? Is the disorder in remission? Does the defendant continue to represent a substantial danger of physical harm to others?’ [Citation.] [¶] Thus, only three of the criteria outlined in section 2962 . . . have been described as factors that are capable of change over time, and their existence must be established at each annual review of the commitment.” (People v. Goodrich, supra, 7 Cal.App.5th at pp. 707-708.)

B. There Was Sufficient Evidence Defendant Presents a Substantial Danger of Physical Harm to Others.

Defendant contends the evidence is insufficient to support the finding that he represents a “substantial danger of physical harm to others” (§ 2962, subd. (d)(1)) since “no expert could describe any [recent] instance of him becoming dangerous to others because of his illness or his persecutory delusions, other than his commitment offense.” Based on the record, we conclude sufficient evidence supports defendant’s recommitment.

“A recommitment under the [MDO] law requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder ‘is not in remission or cannot be kept in remission without treatment’; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others.” (People v. Burroughs (2005) 131 Cal.App.4th 1401, 1404.) “In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding.” (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)

Regarding the third element, that by reason of the severe mental disorder the MDO represents “a substantial danger of physical harm to others,” the MDO statutes do not define this phrase other than providing that it “does not require proof of a recent overt act.” (§ 2962, subd. (g).) However, our Supreme Court has instructed that, while “‘substantial danger of physical harm to others’ is without definition,” “[i]n context, it appears to mean a prediction of future dangerousness by mental health professionals.” (In re Qawi (2004) 32 Cal.4th 1, 24.) Further, courts have recognized that “[a] single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of the commitment.” (People v. Williams (2015) 242 Cal.App.4th 861, 872.)

Here, the experts testified that, due to defendant’s severe mental disorder, he posed a substantial risk of physical harm to others. Dr. Kha testified defendant was more likely to be dangerous if he was released because defendant does not agree he needs medication or continued treatment; thus, he has been subject to an order for involuntary medication since 2012. The doctor stated defendant was unable to control his violent tendencies without medication and, even in the structured environment of Patton, defendant does not comply with his treatment plan. Dr. Peek testified that defendant admitted to her that he could be violent in the future if he stopped taking his medication; however, he still did not believe he needed the medication and stated he would not take it if given the opportunity or if released into the community. Dr. Valle was concerned about defendant’s lack of insight into his illness and the need to follow his treatment plan and take his medication. The doctors agreed that defendant failed to appreciate the extent of his disorder, lacked relapse prevention skills, and had a poor prognosis if released. Although no expert described any recent instance of defendant being dangerous to others, such evidence is irrelevant. (§ 2962, subd. (g) [“‘[S]ubstantial danger of physical harm’ does not require proof of a recent overt act.”].) Plainly, the experts’ testimony provided substantial evidence to support the conclusion that defendant presented a substantial danger to others because of his mental disorder. (People v. Pace (1994) 27 Cal.App.4th 795, 798.)

C. Review of the Asserted Instructional Error Is Forfeited.

Defendant contends the trial court erred in failing to modify CALCRIM No. 3457 to define the term “substantial danger.” The People argue the contention has been forfeited. We agree the issue has been forfeited.

1. Further background information.

During closing argument, both sides agreed the evidence showed defendant has a severe mental disorder, which is not in remission. However, they disagreed on whether there was sufficient evidence defendant represents a substantial danger of physical harm to others. The People argued defendant presents a substantial danger due to “his insight, his failure to recognize his illness in terms of the seriousness of it, [and his] failure to have coping skills put in place for when he’s out walking around on the street.” Counsel added: “Of course, in the hospital, he’s in a controlled environment. He’s in a locked facility. If he is having a schizophrenic episode or having a delusion, there are safeguards in place. He can’t do too much damage. But if he’s out walking in the streets where he wants to be, there’s no one there to come and take him and redirect him or to come and restrain him or put him in his room or talk to him and help him. And that’s why he represents a danger.”

In response, defense counsel argued the law requires proof defendant represents a substantial danger, not just a danger. He added: “‘Substantial’ is used, in the common sense, more than a risk. A substantial danger. [¶] Now, you have to decide among your collective minds what you think the word ‘substantial’ means. You can’t look it up, can’t Google it. You’ve got to figure out what it means. But it’s more than an ordinary danger, which is what he presents when he gets agitated, a substantial danger, not just of harm—the doctors kind of short circuited it, He’s dangerous. Well, no. The law requires substantial danger of physical harm; not emotional harm or threatening harm, physical harm.”

The People replied: “Counsel made a big deal about the word ‘substantial.’ We all are using our common sense here. We don’t have a situation like we see with some of the people out in the courtyard out there walking around talking to themselves, just minding their own business, but it’s clear they have some type of mental health issue going on. We have a person who has a history of being violent towards others due to his mental health. That’s what makes it a substantial danger.”

Regarding the issue of whether defendant represents a substantial danger of physical harm to others, the jury was instructed with CALCRIM No. 3457 which, in relevant part, provides: “The petition alleges that [defendant] is a mentally disordered offender. To prove this allegation, the People must prove beyond a reasonable doubt that: . . . he presently represents a substantial danger of physical harm to others. [¶] . . . [¶] . . . A substantial danger of physical harm does not require proof of a recent overt act.” (Italics added.)

During deliberations, the jury submitted two written questions to the court. The jury asked for (1) a definition of substantial danger, and (2) whether they were to consider only the past 12 months or defendant’s entire background. A discussion between the court and counsel regarding the questions was not recorded, and it does not appear that defense counsel made an objection or suggested further instruction was required. In response, the trial court referred the jury to CALCRIM Nos. 3457 and 200.

2. Analysis.

As a preliminary matter, the People contend defendant has forfeited his claim of instructional error by failing to object to CALCRIM No. 3457 or argue that clarification was needed to prevent any misapplication of the instruction by the jury. We agree.

Here, any discussion of the jury instructions was not transcribed. Moreover, after the jury asked for a definition of substantial danger, the discussion between court and counsel was held “in chambers off the record.” As a result of that discussion, the trial court provided the following response to the jury: “The Court has received, in writing, the question or questions that the jury has. I’ve discussed it with both counsel. We have come up with an answer that may not be exactly what you’re looking for, but it’s all that I can tell you. And I’m—I have made a copy of it, so you’re going to get the copy so there’s no misunderstanding about which instruction the Court’s going to refer you to. And you are referred to jury instructions for both the questions, I can’t state anything other than that, specifically Jury Instruction No. 200 and Jury Instruction No. 3457. [¶] So if you want to read those again, you might find them instructive. Maybe you’ve already done that more than once, but that’s all I can tell you to do at this point. You’ll have to struggle with it as best you can. Any questions? No? Okay.” No objection was raised by defense counsel in the trial court, nor did defense counsel suggest what the jurors should be told regarding the definition of substantial danger. Defense counsel did not make the assertion defendant now makes, i.e., that CALCRIM No. 3457 “prejudicially failed to tell jurors that ‘substantial danger’ meant [defendant] had to be unable to control his dangerous behavior.” (Boldface omitted.)

Because CALCRIM No. 3457, as given, conformed to the statutory definition under section 2962 and correctly included all the criteria necessary for recommitment, it was incumbent upon defendant to request clarification of the instruction to the extent he deems substantial danger of physical harm as requiring a finding that he was unable to control his behavior. (People v. Williams (2003) 31 Cal.4th 757, 769, 774-775 [The language of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) “inherently and adequately convey[s] the crucial class-restricting elements of future dangerousness linked to a disorder-related inability to control behavior,” and since the jury instructions tracked the statutory language, no additional instruction was necessary.]; see People v. Covarrubias (2016) 1 Cal.5th 838, 876-877 [Because CALJIC No. 9.40 conformed with § 211 and correctly included all elements of the crime, “it was incumbent upon defendant to request clarification of the instruction to the extent he deemed ownership of the property taken to be an issue in his case.”]; People v. Hillhouse (2002) 27 Cal.4th 469, 503 [“A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.”]; People v. Hardy (1992) 2 Cal.4th 86, 153 [“[B]ecause the instruction given was correct, it was incumbent on defendants to request clarifying language. Their failure to do so waived the issue.”].) Defendant’s failure to request clarifying language where an instruction is otherwise correct forfeits review. (People v. Maury (2003) 30 Cal.4th 342, 425-426, disapproved on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.)

Moreover, the failure to modify CALCRIM No. 3457 to require proof that defendant was unable to control his dangerous behavior was harmless because it could not have affected the outcome. Given defendant’s past acts of violence, his admission that he could be violent if he stopped taking his medication, and the experts’ testimony that defendant failed to comprehend his need for prescribed medication to control his violent tendencies, it is inconceivable that the jury would have determined that defendant did not present a substantial danger of physical harm to others. (See, e.g., People v. Maury, supra, 30 Cal.4th at p. 426.)

 

III. DISPOSITION

The order recommitting defendant from October 7, 2018, to October 7, 2019, is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

SLOUGH

J.

MENETREZ

J.