People v. Shaffer CA1/1 ( 2021 )


Menu:
  • Filed 4/29/21 P. v. Shaffer CA1/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,
    Plaintiff and Respondent,
    A158950
    v.
    CHARLES LEROY SHAFFER,                                                 (Napa County
    Super. Ct. No. CR173868)
    Defendant and Appellant.
    After defendant Charles Leroy Shaffer pleaded not guilty by reason of
    insanity to the involuntary manslaughter of his nephew, he was committed to
    Napa State Hospital. Two years later, the Napa County District Attorney
    filed a Penal Code section 1026.51 petition to extend his civil commitment.
    Following a jury trial, the jury found the allegations in the petition true, and
    the court ordered defendant’s commitment extended for two more years.
    Shaffer maintains there was insufficient evidence to support the jury’s
    verdict, and that the court erred in admitting exhibits relating to the
    committing offense, including the 911 call and photographs of the victim and
    crime scene. We affirm.
    1    All further undesignated statutory references are to the Penal Code.
    1
    BACKGROUND
    The Underlying Offense
    On Christmas day in 2014, defendant, along with his wife and son,
    visited relatives. He drank beer throughout the day. At one point, he pulled
    out a pocketknife and suggested killing some rabbits that were in cages and
    giving them to the neighbors.
    After dinner, defendant’s wife and son went home. Defendant stayed
    and planned to get a ride home with his nephew and the nephew’s girlfriend,
    who had not been drinking. The three of them left the gathering at about
    10:15 p.m. Defendant was very intoxicated and needed help getting to the
    car.
    Defendant was in the rear passenger seat, his nephew was in the front
    passenger seat, and the nephew’s girlfriend was driving. As they drove, the
    group chatted about what a nice Christmas it had been. The nephew asked
    defendant to stop kicking his seat, but “nobody was mad.” When they drove
    onto a bridge, defendant started screaming, told the girlfriend to pull over,
    and said he was going to beat up his nephew.
    From the corner of her eye, the girlfriend saw defendant’s arm coming
    from the back seat of the car, and “thought he was hitting” his nephew. She
    saw defendant hit his nephew “four or five times.” Defendant yelled “pull the
    car over. I’m gonna beat the fuck out of this dude.” The girlfriend pulled
    over, and “saw blood gushing from the side . . . of his head.” She called 911,
    but at that point did not realize defendant had used a knife.
    Defendant then seemed to “snap[] out of it,” and “looked kind of lost.”
    The nephew’s girlfriend testified she believed defendant “had some kind of
    episode.” When the 911 operator instructed her to put pressure on the
    2
    nephew’s wound, she gave her sweatshirt to defendant who put it on the
    wound.
    Paramedics could not revive the nephew, and he was pronounced dead
    at the scene. Police found a knife in the backseat of the car, and arrested
    defendant. They took photographs of his nephew, the knife, and the inside of
    the car, some of which were admitted into evidence at the hearing.
    A criminalist estimated that defendant’s blood alcohol level at the time
    of the killing would have been about .26, based on his tested blood alcohol
    level of .19 at about 3:00 a.m. in the morning after the incident.
    Defendant pleaded not guilty by reason of insanity to the charge of
    involuntary manslaughter and use of a knife, and was committed to Napa
    State Hospital.
    The Commitment Hearing
    About two years later, the Napa County District Attorney filed a
    petition to extend defendant’s commitment, alleging defendant represented a
    substantial danger of physical harm to others by reason of mental disease,
    defect or disorder.
    At the hearing, a coworker testified about a 2013 incident similar to the
    one which lead to defendant’s commitment. The coworker and defendant
    attended a work-related party. Defendant became noticeably intoxicated and
    could “barely stand up.” The coworker offered to drive him home, and a
    woman who knew where defendant lived came along. She sat in the front
    passenger seat, and defendant sat in the back seat. As they were driving
    toward defendant’s home, he started repeating “who are these people? We
    need to get out of here.” Then defendant began hitting the coworker in the
    back of the head. As the coworker blocked defendant’s hand, he heard the
    female passenger’s head hit the window. He pulled over, and the woman said
    3
    defendant had hit her. Defendant got out of the car, and asked “I thought we
    were going home?” When told he had attacked his coworker, he said he did
    not remember it. After the woman called her husband, defendant’s wife
    arrived, yelled at defendant to get in the car, and they left.
    Another coworker testified defendant showed him a video at work
    which showed Russian soldiers “executing a guy with a knife in the neck.”
    “[T]hey had thrown him to the ground, were stepping on him, and then they
    used a bayonet knife to shove it in the guy’s neck.” It seemed odd to the
    coworker, and there was no work purpose to it, nor something that commonly
    happened in the shop.
    The same coworker also testified if defendant drinks enough alcohol he
    “become[s] a different person” and gets “more aggressive and more handsy.”
    In one incident, they were drinking at a bar, and a man was outside selling
    knives. Defendant went outside to see how much the knives were, and when
    he returned he was “really mad at the guy.” The coworker testified defendant
    “had that Popeye look and gritting through his teeth saying he didn’t like
    that guy and he wanted to go out there and beat him up.”
    The prosecution presented the testimony of four expert witnesses, one
    on rebuttal. All the medical professionals agreed that although defendant
    was in institutional remission and currently asymptomatic, he suffered from
    both alcohol-use disorder and “other specified trauma and stressor related
    disorder.” All opined that due to his mental disease, defect or disorder,
    defendant represented a substantial danger of physical harm if released into
    the community.
    The specifics of the experts’ testimony follows:
    Dr. Sarah Moseman, a clinical psychologist, explained defendant had
    “specified trauma and stressor-related disorder,” which is a condition in
    4
    which “a person has symptoms that are characteristic or typical of post-
    traumatic stress disorder ([PTSD]) but they don’t quite meet full criteria for
    that diagnosis.” There are eight criteria required to diagnose a person with
    post-traumatic stress disorder, and defendant had only seven.
    Defendant met the first of those criteria, being exposed to actual or
    threatened death, based on “multiple instances of witnessing violence,
    exposure to actual or threatened death” in the military while stationed in
    both Afghanistan and the Philippines. While in the Philippines, he was
    attacked in a taxicab. He was also exposed to violence while in jail for the
    underlying offense, when his cellmate attempted suicide. As to the second
    criterion, intrusive symptoms associated with the traumatic event, defendant
    reported nightmares and “thrash[ing] about” in his sleep, which lead him to
    sleep separately from his wife. He also had “instances of suspected
    dissociation or being separate from his consciousness where he just kind of
    blacked out and wasn’t really aware of what was going on.” The psychologist
    described the two instances in which defendant attacked people when he was
    being driven in a car, including the incident in which he killed his nephew, as
    examples.
    The third PTSD criterion is “avoidance of stimuli associated with a
    traumatic event.” As to that, defendant avoided talking or thinking about his
    time in the military. When driving, defendant would “leave extra room
    between cars in case he had to quickly evade which was similar to when he
    was deployed in Afghanistan . . . to evade incoming attacks.” He also would
    “sit close to exits” and “have a view point of the room to see if there was any
    kind of possible threat.”
    Dr. Moseman did not believe defendant met the fourth criterion, which
    was “negative alterations in cognition and mood.”
    5
    The fifth criterion is “marked alterations and arousal and reactivity
    associated with the traumatic event.” Defendant reported trouble sleeping, a
    startle response, and hypervigilance, all of which meet the fifth criterion.
    The sixth criterion is that the disturbance last more than a month.
    Defendant reported “his symptoms started in about March of 2012 when he
    returned and then lasted until early 2016 while he was in jail following his
    crime.”
    The seventh PTSD criterion is “the disturbance caused clinically
    significant distress or impairment in social or occupational areas of
    functioning.” Dr. Moseman opined that, although defendant did not report
    “global overall difficulty functioning in his life,” the fact that he killed his
    nephew “under the circumstances that he did” demonstrated he met the
    seventh criterion.
    The eighth criterion is “the disturbance is not attributable to
    physiological effects of a substance.” Dr. Moseman testified “the symptoms
    themselves cannot be due solely to using alcohol or drugs. In [defendant’s]
    case it appears that using alcohol exacerbated or made worse his symptoms
    but did not cause them all. They occur even when he [is] sober.”
    Because defendant met only seven of the eight criteria, Dr. Moseman
    opined he suffered from “other specified trauma and stress related disorder,”
    which is a “mental disease, defect, or disorder.” She also noted defendant’s
    records indicated he continued to suffer from symptoms of PTSD after he was
    jailed in 2016. She explained people who have PTSD symptoms but are
    diagnosed with “other stressor-related disorder” can have periods without
    symptoms which then reoccur. Such an individual might only be triggered or
    exhibit symptoms in certain situations and may not exhibit symptoms in a
    low-stress environment.
    6
    Dr. Moseman opined defendant also had alcohol use disorder, also a
    mental defect, disease or disorder. His disorder was in remission, due to
    being in an environment where alcohol was unavailable. Dr. Moseman
    testified defendant met two of the criteria for alcohol use disorder; using more
    alcohol than intended, and continuing to use despite social or interpersonal
    “problems caused or exacerbated by the alcohol.” Defendant had reported
    drinking twice the amount of alcohol he consumed before his military
    deployment. He was using alcohol to “self[-]medicate PTSD symptoms.” The
    social problems caused by his alcohol use included having sex with a friend of
    his wife’s while intoxicated but having no memory of it, and the two incidents
    in which he attacked people while in the back seat of cars.
    Dr. Moseman utilized a violence risk-assessment tool called the HCR-
    20, which looks at 20 risk factors. It is “an acceptable measure for violence
    risk assessment” in the scientific community, is used at state hospitals, and
    is “a fairly accurate measure.” Ten of the 20 risk factors are historical,
    because “one of the greatest predictors of a person’s future behavior is past
    behavior and their past history.”
    In evaluating defendant, Dr. Moseman considered her discussions with
    defendant, review of his records, his trauma disorder and alcohol use
    disorder, his past violent behaviors, his problems with personal relationships,
    his lack of insight into his alcohol problem and failure to develop a forensic
    relapse prevention plan. She opined defendant had a mental disease,
    disorder or defect and that because of those disorders, posed a substantial
    danger to others if released. She also opined he has a serious difficulty
    controlling that dangerous behavior.
    Cynthia Perez, a forensic mental health clinician who worked for Napa
    County Mental Health Con-Rep, testified as an expert in substance abuse
    7
    assessment and treatment. She also qualified as an expert in evaluating
    whether patients can be safely released into the community. Perez explained
    a patient committed to the state hospital can be released to Con-Rep, which is
    a structured board and care. It is a “step[-]down” from the hospital, but still
    a supervised environment.
    Perez conducted three assessments of defendant for Con-Rep. In one
    interview, defendant told her he owned a brewery with a friend, and asked if
    she thought “it would be okay if [he] tasted the beer,” which she found “very
    concerning.” Perez and her supervisor also reviewed defendant’s “Forensic
    Relapse Prevention Plan,” and concluded it lacked substance.
    Based on her interviews of defendant and review of his file, Perez
    opined defendant did not have insight into the severity of his alcohol use or
    the relation between his alcohol use and his violence. She explained he
    minimized his alcohol use and denied any connection between his alcohol use
    and killing his nephew. Perez recommended he continue on the substance
    abuse unit of the hospital and “be more aware and get more familiar with
    triggers and how he’s going to deal with alcohol out in the community.” She
    noted defendant had “only been sober since he’s been in a controlled
    environment.” Perez opined defendant could not be safely released into the
    community, and if he were released “without Con-Rep[,] he would pose a
    substantial danger to the community.”
    Dr. Muhammad Tariq, a Napa State Hospital staff psychiatrist
    assigned to the substance recovery unit, was defendant’s treating
    psychiatrist. He testified defendant was diagnosed with “other specified
    trauma and stress related disorder” because he did not meet one of the
    criterion for a post-traumatic stress diagnosis. Defendant was also diagnosed
    with “alcohol use disorder mild in sustained remission in a controlled
    8
    environment[,] because he had been in a controlled environment since the
    offense.” Dr. Tariq agreed with those diagnoses, which qualified as a “mental
    disease, disorder, or defect.”
    Dr. Tariq testified defendant had just started taking medication for his
    alcohol use disorder that “helps with cravings so the patients would have less
    urge to drink.” Hospital reports from 2018 indicated defendant had reported
    symptoms of PTSD, which contradicted his self-reporting of no symptoms
    since 2016. He evaluated defendant a week prior to trial, and concluded he
    represented a “substantial danger of physical harm to others if he’s released
    into the community not on Con-Rep.” He explained defendant’s past
    behavior, including defendant’s “significant history in terms of the death of
    his nephew,” was part of his assessment. Dr. Tariq also based his opinion on
    defendant’s “history of mental illness,” and “history of significant alcohol use
    disorder.” Because defendant had “done well in the hospital” and “recently
    been working on improving his insight in terms especially related to his
    alcohol use disorder,” Dr. Tariq recommended defendant’s commitment be
    extended but he be released to a “structured outpatient treatment program”
    known as “Con-Rep.” Dr. Tariq opined defendant would “have serious
    difficulty controlling his dangerous behavior if he’s released into the
    community unsupervised.”
    The defense called Dr. David Joseph, a clinical psychologist, to testify
    about the diagnosis and treatment of psychological disorders and the
    evaluation of clinical risk assessment. He reviewed defendant’s hospital and
    medical records and the police report regarding defendant’s killing of his
    nephew. He also interviewed defendant, and administered two psychological
    tests, the MMPI and the “post traumatic stress disorder checklist” for the
    military (PCLM).
    9
    Dr. Joseph testified defendant met only one of the criteria for PTSD,
    that he had experienced a traumatic event. Based on the MMPI results and
    his hospital records, Dr. Joseph concluded defendant was a reliable reporter
    of his symptoms. He saw nothing in the hospital records indicating
    defendant had “angry flareups,” nightmares, or a “flashback.” It was
    “difficult” to assess “his state in terms of alcohol . . . because he’s in an
    environment where alcohol isn’t available.” He concluded defendant did not
    currently suffer from a mental disorder, did not pose a substantial danger of
    physical harm to others, and saw no evidence defendant had serious
    difficulties controlling his dangerous behavior. He acknowledged defendant
    did not have much insight into his own symptoms, and “he could be having
    symptoms right now and he just might not know it.”
    In rebuttal, the prosecution called Mikel Matto, an assistant clinical
    professor of psychiatry at the University of California San Francisco medical
    school. He reviewed defendant’s military, hospital, and police records, and
    interviewed him for about three and a half hours. Matto agreed with
    defendant’s diagnosis of alcohol use disorder and “trauma or stressor related
    disorder,” and testified both qualify as a mental disease, defect or disorder.
    Matto talked with defendant about the killing of his nephew. Matto
    was concerned that defendant did not use “active phrasing” in describing his
    killing of his nephew. Instead, defendant described the killing as “ ‘my sister
    lost her son,’ ” “ ‘the time my nephew got stabbed,’ ” or “the thing that got me
    here,” rather than saying “ ‘I killed my nephew,’ ” which is important because
    it would “indicate[] a level of insight and accountability that’s important for
    relapse prevention.” Defendant told Matto his PTSD symptoms got better
    when he was in jail, and “in early [2016] they were gone.” Matto found it
    unusual that PTSD symptoms would “last[] for years—2012, 2013, 2014,
    10
    2015, into 2016” but would resolve when defendant was in jail and receiving
    no treatment. In Matto’s experience, PTSD symptoms tended to get worse in
    jail or prison.
    Matto conducted a risk assessment of defendant using the HCR-20,
    which is a violence risk assessment instrument. The most prevalent factor’s
    in defendant’s case were the incidents of violence, “typically while
    intoxicated, of demonstrating aggressive behavior, violent behavior, and
    including assaults and ultimately the killing of his nephew. That was
    obviously a highly relevant factor.” Matto explained past behavior is “some of
    the best evidence of how people will behave in the future.” Other risk factors
    were defendant’s alcohol use disorder, his trauma and stress related disorder,
    and his lack of insight into his alcohol use disorder. Matto opined defendant
    had poor insight in regards to the alcohol use disorder and did not appear to
    understand his alcohol disorder causes him to act violently. For example,
    even though in 2013 defendant attacked a friend while a passenger in a car
    and blacked out, he sought no treatment after that incident and continued to
    drink alcohol.
    Matto’s opinion was that based on defendant’s mental disease, defect,
    or disorder he posed a “substantial danger of physical harm to others and
    [has] serious difficulty controlling that dangerous behavior.”
    Defendant’s wife testified on his behalf. She opined defendant was a
    truthful person, and “[i]n the community he’s always been peaceful as far as I
    know.” She acknowledged he “killed his nephew during an incident.” She
    testified he was involved in another incident “that would be similar to this
    [when] he was drinking.” Defendant was getting a ride home, and she “got a
    phone call from people that were in the car saying come get [defendant].” She
    also testified about an incident in which she and defendant had been
    11
    drinking all day, and invited a woman to come to their home. After the wife
    went to bed, she woke up and found defendant having sex with the woman.
    She testified defendant “was not aware what was going on.”
    Defendant’s wife visited him while he was in jail and in the Napa State
    Hospital. She “never thought he had a mental health problem to begin with,”
    and did not discuss his treatment with him. Defendant “never spoke” to her
    about experiencing PTSD symptoms. She had been in the military for almost
    30 years, so she “recognized some signs,” but defendant told her “he was
    okay.” She was not aware defendant had been diagnosed with alcohol use
    disorder, but she would not support him drinking alcohol in the future
    because “he has an issue with it.” She had no concerns he would act violently
    again if he was released “[b]ecause he has never done anything like this
    before.” She did not discuss his diagnoses when she visited him because it
    might upset him and she did not “want to take the chance of him being
    upset.”
    When defendant was first arrested, she told the detective “one of two
    things happened. He’s either suffering—he had a psychotic break from PTSD
    or he was invaded by a demon because he would never ever do this.” She
    “heard” about the other incident when defendant was a passenger in the back
    of a car, but the coworker who was driving “didn’t say that he had been hurt”
    and he “mentioned that . . . [defendant] . . . might have hit” the female
    passenger. She then acknowledged defendant “told me he remembered he
    had hit [the driver], and he doesn’t remember hitting [the female passenger],
    but he remembered hitting [the driver] by accident. As to his behavior when
    he drank alcohol, she testified that even after eight or nine drinks, defendant
    “just got more funny . . . and he got more loving.”
    12
    A friend and coworker of defendant’s testified he believed defendant
    was honest and “had a penchant for wanting to do things accurately and by
    the book.” He thought defendant’s killing of his nephew was “way out of
    character,” and did not “have any concerns with him being released.” He
    hoped defendant’s time in the state hospital had helped him “with some
    coping skills to kind of relieve that tension and that pressure that a lot of
    your veterans don’t get.”
    Defendant testified about traumatic events in his life. In 1988, he was
    stationed in the Philippines. He and a friend were in the back seat of a taxi
    when the driver took off in the wrong direction, then stopped to let in a man
    with a gun who pointed it at defendant. As the driver started to leave,
    defendant and the friend jumped out of the moving vehicle.
    In the mid-1990’s, defendant and a friend were walking home when
    they were attacked by a group of “gangster kids.” Defendant told his friend
    they should “get out of here,” and “fought [his] way through.” He realized his
    friend was not with him, “got some people,” and went back to find his friend
    “laying in the street bleeding.” He had been stabbed 15 or 16 times.
    In 2006 or 2007, defendant was deployed to Afghanistan. He worked as
    an armed escort, escorting people into areas “people wouldn’t normally have
    access to.” There were times when he was doing that work that he felt
    unsafe. Defendant was deployed a second time to Afghanistan in 2011-2012,
    and given a more dangerous assignment designated “HRC,” meaning high
    risk of capture. His job was to drive an armored vehicle in urban areas
    outside the base, which they did in convoys for safety. Defendant and his
    passengers would all act as lookouts for danger on the road. They
    experienced hostility or threats on a daily basis. One night, his base was
    attacked by rockets and mortars. He took cover by laying on the floor during
    13
    the attack. It was “very scary” because it was the first time he had been
    under direct fire. Defendant personally knew people who had been killed in
    Afghanistan.
    When he returned home, defendant suffered from nightmares and
    flashbacks. He was “hyperalert, hypervigilant, [and had] serious anxiety.”
    He was easily startled, and “didn’t like confined spaces.” When he drove,
    defendant “was always scanning . . . [l]ooking for a way out.” He would see
    “something in the news that might trigger thoughts that was coming back.”
    His alcohol consumption increased, from “a beer or two” each evening to
    “four, five, six, seven beers.” Defendant “thrash[ed] around” so much during
    his nightmares that he and his wife stopped sleeping in the same bed.
    Defendant recalled some of the events of Christmas 2014. He was at
    his mother’s house with other family members, including his nephew. He
    became “highly intoxicated” and thinks he had about 10 beers. Defendant
    remembered nothing “from the time I got in that vehicle until the time I was
    on the side of the highway.” He only remembered talking to a sheriff’s
    deputy on the side of the road, being asked if he had any weapons. and being
    questioned afterwards. Defendant testified he had blacked out from alcohol
    on several occasions before the killing, including when he hit his friend in the
    backseat of a car, when he had sex with a woman “who was not [his] wife,”
    and when he was “a young guy in school.”
    Defendant testified he never discussed tasting beer at his brewery with
    Perez from Con-Rep. Instead, he had discussed his “future plans for the
    brewery” with another provider. Defendant explained he owned a brewery
    with some partners, and would taste the beer “at the end of a brewing session
    . . . before there’s even alcohol in it.” He felt that provider was “confused so
    that went into his report stating that I was gonna taste beer or requesting
    14
    beer tasting. . . . ” Defendant acknowledged there were “[a] couple of
    incidents” of confusion between him and mental health professionals.
    The jury found defendant suffered from a “mental disease, defect, or
    disorder,” and as a result of that mental disease, defect or disorder, he
    “now. . . [p]oses a substantial danger of physical harm to others if released;
    and . . . [h]as serious difficulty controlling his behavior if released.” The court
    ordered his commitment at Napa State Hospital extended until December,
    2021.
    DISCUSSION
    Substantial Evidence Supports the Jury’s Finding That Defendant
    Has Serious Difficulty Controlling His Dangerous Behavior
    Legal Standard
    “Under section 1026.5, subdivision (b)(1), ‘[a] person may be committed
    beyond the term prescribed by subdivision (a) only under the procedure set
    forth in this subdivision and only if the person has been committed under
    Section 1026 for a felony and by reason of a mental disease, defect, or
    disorder represents a substantial danger of physical harm to others.’ At no
    less than 90 days before the term of commitment ends, the prosecuting
    attorney may file a petition for extended commitment in the superior court
    which issued the original commitment. (§ 1026.5, subd. (b)(2).) The person
    named in the petition has a right to be represented by an attorney and the
    right to a jury trial. (§ 1026.5, subd. (b)(3).) If, after trial, the court or jury
    finds the patient ‘by reason of a mental disease, defect, or disorder represents
    a substantial danger of physical harm to others,’ the patient will be
    recommitted for an additional period of two years from the date of
    termination of the previous commitment. (§ 1026.5, subd. (b)(8).)” (People v.
    Zapisek (2007) 
    147 Cal.App.4th 1151
    , 1159.)
    15
    “[S]ection 1026.5, subdivision (b)(1) should be interpreted as requiring
    proof that a person under commitment has serious difficulty in controlling
    dangerous behavior. . . .”2 (People v. Bowers (2006) 
    145 Cal.App.4th 870
    , 878
    (Bowers).) “The People are not required to prove the defendant ‘ “is
    completely unable to control his behavior.” ’ (People v. Williams (2003) 
    31 Cal.4th 757
    , 771. . . , quoting Kansas v. Crane (2002) 
    534 U.S. 407
    , 411, . . .
    (Crane).) Instead, the defendant’s ‘impairment need only be serious, not
    absolute.’ (Williams, at p. 773.) As the Crane court explained, ‘there may be
    “considerable overlap between a . . . defective understanding or appreciation
    and . . . [an] ability to control . . . behavior.” ’ ” (People v. Kendrid (2012)
    
    205 Cal.App.4th 1360
    , 1370.)
    “ ‘ “Whether a defendant ‘by reason of a mental disease, defect, or
    disorder represents a substantial danger of physical harm to others’ under
    section 1026.5 is a question of fact to be resolved with the assistance of expert
    testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a
    section 1026.5 extension, we apply the test used to review a judgment of
    conviction; therefore, we review the entire record in the light most favorable
    to the extension order to determine whether any rational trier of fact could
    have found the requirements of section 1026.5(b)(1) beyond a reasonable
    doubt. [Citations.]” [Citation.]’ [Citation.] A single psychiatric opinion that
    an individual is dangerous because of a mental disorder constitutes
    2  That additional requirement was added following the California
    Supreme Court’s opinion in In re Howard N. (2005) 
    35 Cal.4th 117
    , (Howard
    N.). In that case, the court considered the extended detention scheme under
    Welfare and Institutions Code section 1800 et seq., (id. at p. 122) and
    concluded due process required a finding that the person’s “mental deficiency,
    disorder, or abnormality” caused him or her “to have serious difficulty
    controlling his [or her] dangerous behavior.” (Id. at p. 135.)
    16
    substantial evidence to support an extension of the defendant’s commitment
    under section 1026.5.” (Bowers, supra, 145 Cal.App.4th at pp. 878-879.)
    The Evidence
    Defendant does not dispute that he suffers from a mental disease,
    defect, or disorder. Nor does he contend there was not a sufficient showing of
    “future dangerousness.” Instead, defendant maintains there was no
    substantial evidence that he “currently has serious difficulty controlling his
    dangerous behavior.” (Boldface omitted.)
    Relying on People v. Galindo (2006) 
    142 Cal.App.4th 531
     (Galindo),
    defendant claims an extension of a commitment requires “both a prediction of
    future dangerousness and evidence of a current lack of volitional control.”
    Asserting the evidence showed his “behavior was that of a model patient,”
    defendant maintains there was no substantial evidence he currently has
    serious difficulty in controlling dangerous behavior.
    In Galindo, the defendant, who suffered from bipolar disorder and
    antisocial personality disorder, was recommitted following a trial. (Galindo,
    supra, 142 Cal.App.4th at pp. 533-534.) The defendant claimed there was
    insufficient evidence he had serious difficulty controlling his dangerous
    behavior, despite evidence that he had actually engaged in dangerous
    behavior while committed, including “pursu[ing] a ‘very fragile psychotic
    patient’ ” after being told to stop. (Id. at pp. 534, 538.)
    The court acknowledged there was “abundant evidence that defendant’s
    behavior was dangerous and that he did not, in fact, control it. However, the
    fact he did not control his behavior does not prove that he was unable to do
    so, thus making him ‘dangerous beyond [his] control.’ (Howard N., supra,
    35 Cal.4th at p. 128.)” (Galindo, supra, 142 Cal.App.4th at p. 539.) The court
    explained “[t]here was little, if any, evidence that he tried to control his
    17
    behavior, that he encountered serious difficulty when trying to do so, or that
    his difficulty was caused by his mental condition. Rather, the evidence
    strongly suggested that defendant did not try to control his dangerous
    behavior, because he perceived no reason to do so.” (Ibid.) No expert in that
    case had opined that defendant “tried to control his dangerous behavior but
    encountered serious difficulty in doing so.”3 (Ibid.) Thus, the court reversed
    the order extending commitment. (Id. at p. 540.)
    Contrary to defendant’s claim, Galindo does not aid him. The Galindo
    court made a distinction between not controlling dangerous behavior and
    being unable to control dangerous behavior and concluded the inability to
    control dangerous behavior was the critical factor. (Galindo, supra,
    142 Cal.App.4th at p. 539.) In contrast, the evidence and expert testimony in
    this case showed that while defendant did not engage in dangerous behaviors
    while committed, he would have serious difficulty controlling his dangerous
    behavior in a noninstitutional setting.
    The court in People v. Williams (2015) 
    242 Cal.App.4th 861
     (Williams),
    addressed circumstances similar to those here. In Williams, the defendant
    was committed after being found not guilty by reason of insanity of attempted
    murder and assault on a custodial officer, among other charges. (Id. at
    p. 863.) Defendant was diagnosed with “alcohol and amphetamine
    dependence and personality disorder NOS (not otherwise specified).” (Id. at
    p. 864.) He had “never been violent or threatening during his
    hospitalization.” (Id. at p. 866.)
    3 The extension of commitment hearing in Galindo was held before the
    decision in Howard N. (Galindo, supra, 142 Cal.App.4th at p. 539.)
    18
    At his commitment extension trial, the prosecution’s expert testified
    defendant had only started attending substance abuse recovery two-three
    months before trial. (Williams, supra, 242 Cal.App.4th at p. 866.) His
    relapse plan was not “realistic,” “appeared to consist only of physically
    avoiding temptation,” and seemed to have been “ ‘done hastily at the last
    minute to make sort of an impression.’ ” (Id. at pp. 867, 874.) The expert
    testified defendant “was not a danger to others in a hospital setting, but if
    released without supervision, he would pose a ‘really significant’ danger.”
    (Id. at p. 867.)
    The court rejected defendant’s claim that “his lack of violence since he
    was hospitalized showed he could control his behavior.” (Williams, supra,
    242 Cal.App.4th at p. 875.) The court explained the issue was “not whether
    defendant could put on a facade of friendliness and cooperation in the
    hospital setting in order to achieve his goal of unsupervised release, but
    whether he would have serious difficulty in controlling dangerous behavior
    once he had attained that goal and no longer had expert help or support to
    keep him on the straight and narrow.” (Ibid.) The court concluded
    “defendant’s prior history of violence was connected to his substance abuse,
    which he was not able to engage in while hospitalized. Since he had no
    credible relapse prevention plan, his lack of violence in confinement was not
    substantial evidence that he could control his impulse toward violence on
    unsupervised release.” (Ibid.)
    So too here. Although defendant had not engaged in dangerous
    behavior while institutionalized, he suffers from both other specified trauma
    disorder and alcohol use disorder, which can trigger his dangerous and
    violent behavior. Defendant had a significant history of past violence
    triggered by alcohol use. He had only recently begun to address his alcohol
    19
    use disorder and lacked insight into the connection between it and his violent
    behavior. His relapse prevention plan was inadequate. Indeed, defendant
    told mental health professionals that he planned to operate a brewery upon
    release and asked if tasting the beer would be acceptable.
    Substantial evidence supports the jury’s verdict.
    Admission of Evidence Regarding the Commitment Offense
    Defendant maintains the trial court abused its discretion in admitting
    certain evidence regarding the underlying commitment offense. He claims it
    was error to admit six photographs of the victim showing his wounds, four
    photographs showing the bloody front and back seat of the car, and a
    photograph of the knife used. He also objects to admission of an audio
    recording of the 911 call, a transcript of that call, and the actual knife used.
    Defendant maintains this evidence was “not relevant to the question before
    the jury,” and was more prejudicial than probative under Evidence Code
    section 352.
    The issues in dispute were whether defendant “suffers from a mental
    disease, defect, or disorder,” and whether “[a]s a result of his mental disease,
    defect, or disorder, he now: . . . [p]oses a substantial danger of physical harm
    to others; AND . . . [h]as serious difficulty in controlling his dangerous
    behavior.”
    Defendant claims “[t]he commitment offense was not in dispute,” and
    asserts “[w]hat is relevant is how a defendant is doing presently in the
    location where he or she has been committed.” He later concedes, however,
    “that the facts underlying the commitment offense were relevant.”
    “ ‘Relevant evidence’ means evidence, including evidence relevant to
    the credibility of a witness . . . having any tendency in reason to prove or
    disprove any disputed fact that is of consequence to the determination of the
    20
    action.” (Evid. Code, § 210.) In determining whether defendant has serious
    difficulty controlling his dangerous behavior, relevant evidence “include[s] . . .
    previous instances of violent behavior . . . , as well as the determination of the
    treatment staff . . . [defendant’s] behavior at that facility and psychiatric
    evaluations.” The statutory scheme contemplates that the “trier of fact shall
    be aided by the expert testimony of psychologists or psychiatrists. (§ 1026.5,
    subd. (b)(7).)” (People v. Superior Court (Blakely) (1997) 
    60 Cal.App.4th 202
    ,
    215.) “As we have recognized, ‘[p]revious instances of violent behavior are an
    important indicator of future violent tendencies.’ ” (Kansas v. Hendricks
    (1997) 
    521 U.S. 346
    , 358; id., at p. 350 [considering civil commitment under
    the Kansas Sexually Violent Predator Act].) And, evidence of the nature and
    severity of the underlying crime are also relevant foundational facts
    underlying the expert’s opinions in the case. Indeed, defendant concedes
    “that under People v. Sanchez (2016) 
    63 Cal.4th 665
    , for the prosecution
    experts to rely on certain details of the commitment offense, those details
    must be independently proven.”
    Thus, these exhibits were relevant to the issues at trial.
    Defendant next claims the exhibits at issue “had little to no probative
    value regarding [his] mental state now,” but “pack[ed] an emotional wallop.”
    He maintains the photographs were “bloody,” and the audio and written
    transcript of the 911 call made by his nephew’s girlfriend after the stabbing
    were “highly charged,” and the girlfriend’s “upset is evident.”
    “The court in its discretion may exclude evidence if its probative value
    is substantially outweighed by the probability that its admission will . . .
    create substantial danger of undue prejudice. . . .” (Evid.Code, § 352.) “ ‘The
    prejudice which exclusion of evidence under Evidence Code section 352 is
    designed to avoid is not the prejudice or damage to a defense that naturally
    21
    flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the
    statute uses the word in its etymological sense of “prejudging” a person or
    cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 
    4 Cal.4th 929
    , 958.)
    “ ‘The admission of photographs of a victim lies within the broad
    discretion of the trial court when a claim is made that they are unduly
    gruesome or inflammatory.’ ” (People v. Ramirez (2006) 
    39 Cal.4th 398
    , 453.)
    “Such a photograph may be admitted if: (1) the photograph is relevant, and
    (2) its probative valued is not substantially outweighed by the risk of unfair
    prejudice.” (People v. Mendez (2019) 
    7 Cal.5th 680
    , 707-708 (Mendez).)
    “ ‘[A] court may admit even “gruesome” photographs if the evidence is
    highly relevant to the issues raised by the facts, or if the photographs would
    clarify the testimony of a medical examiner.’ [Citation.] ‘We have
    consistently upheld the introduction of autopsy photographs disclosing the
    manner in which a victim was wounded as relevant not only to the question
    of deliberation and premeditation but also aggravation of the crime and the
    appropriate penalty, all of which were at issue here.’ ” (People v. Ramirez,
    
    supra.
     39 Cal.4th at pp. 453-454.) “ ‘[G]ruesome’ ” and “ ‘disturbing’ ”
    photographs may be admitted if they do not “ ‘sensationalize an alleged
    crime’ ” and are not “ ‘unnecessarily gruesome.’ ” (Mendez, supra, 7 Cal.5th
    at p. 708, italics omitted.)
    The court considered each photo individually as to whether it should be
    excluded under Evidence Code section 352. In considering whether the
    photographs of the victim and crime scene at issue were more prejudicial
    than probative, the court reasoned the prosecution had “to show proof of
    dangerousness now beyond a reasonable doubt. And what makes these
    photographs disturbing, if they are at all disturbing, is that it shows a
    22
    dangerous attack. And so they are highly probative.” They court excluded a
    photo of the victim’s face as overly prejudicial, but concluded the photo of the
    knife used, the knife itself, and the photos of the victim and crime scene were
    not more prejudicial than probative.
    As to the 911 call, the court explained: “When the court listens to this
    9-1-1 call and really contemplates what the relevance is, the court directly
    finds it to be relevant to [CALCRIM No.] 3453 in the inquiry of the jury as to
    whether the [defendant] poses a substantial danger of physical harm to
    others and has serious difficulty in controlling his dangerous behavior.
    Something that was interesting about this call was that after the call was
    made that the caller really felt that she wasn’t in any danger. That the level
    of dangerousness had subsided. That it was a momentary attack and things
    kind of went back to normal. It also goes to the intoxication. Specifically to
    the difficulty in controlling a dangerous behavior. From what I understand of
    the facts the long-term alcohol diagnosis and difficulty in controlling that
    over a number of incidents mixed with the dangerousness of the attack is
    going to be critical points for the jury . . . [and] this phone call is highly
    relevant as proof of that specifically to dangerous or not.”
    As to the photo of the knife used in the killing and the knife itself, the
    court stated, “I think a photograph of the knife, its probative value is not
    substantially outweighed by a substantial danger of undue prejudice. It was
    the weapon that was used during the attack and that will be admitted.” “The
    physical knife itself . . . [is] something that they can hold in their hands. Of
    course the knife is not something that would go to the jury on their own so
    that they’re passing around a knife. But it is the weapon that caused the
    death in this case, and I think that the jury should be able to inspect it and
    see it potentially if the proper foundation is laid. . . . I’m going to admit it
    23
    over 352. . . . [I]t’s definitely relevant. I don’t believe it would create a
    substantial danger of undue prejudice or confuse the issue or misled the
    jury.”
    In sum, the exhibits were relevant to the issue of whether defendant
    had serious difficulty controlling his dangerous behavior. As in Mendez, “the
    record demonstrates the trial court was ‘aware of [its] duty to weigh the
    prejudicial effect of the photographs against their probative value’ and
    performed that duty ‘carefully,’ . . . weigh[ing] against finding an abuse of
    discretion.” (Mendez, supra, 7 Cal.5th at p. 708.) Although some of the
    exhibits depicted blood, severe injuries, and an upset witness, their effect was
    only “ ‘the prejudice or damage to a defense that naturally flows from
    relevant, highly probative evidence.’ ” (People v. Zapien, 
    supra,
     4 Cal.4th at
    p. 958.) The court did not abuse its discretion in admitting these exhibits.
    DISPOSITION
    The order extending defendant’s commitment is affirmed.
    24
    _________________________
    Banke, J.
    We concur:
    _________________________
    Humes, P.J.
    _________________________
    Margulies, J.
    A158950, People v. Shaffer
    25
    

Document Info

Docket Number: A158950

Filed Date: 4/29/2021

Precedential Status: Non-Precedential

Modified Date: 4/29/2021