People v. Bolden

will self-medicate—the court should have corrected and then given the requested instruction.

Adopting the dissent’s arguments in People v. Williams, the People ask us to overrule Williams. However, the Supreme Court denied review in Williams, which ‘“may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.’ [Citation omitted.]” (DiGenova v. State Board of Education (1962) 57 Cal.2d 167 , 178 [ 18 Cal.Rptr. 369 , 367 P.2d 865 ]; but see Jennings v. Superior Court (1980) 104 Cal.App.3d 50 , 56-57 [ 163 Cal.Rptr. 391 ] and Advisory Com. comment, Cal. Rules of Court, rule 28 [“It has long been established in California law that a denial of hearing is not an expression of the Supreme Court on the merits of the cause”].)

More importantly, despite the inevitable differences among justices of appellate courts, stare decisis remains a vital principle. We hesitate to overrule a decision rendered by another panel of this court except for compelling reasons.

Although the People assert Williams is incorrect because the Legislature did not intend a jury to consider an applicant’s medicated status in determining dangerousness under section 1026.2, they do not cite, nor has our own research located, any specific items in the statute’s text, legislative history, or context, providing explicit guidance on this issue. Although Williams may be open to criticism, under these circumstances, we decline the invitation to overrule it.

Determining Williams should not be overruled does not, however, resolve whether Williams applies in Bolden’s case, which arises under a different statute (§ 1026.5) serving different purposes and policies. A case is not authority for points neither considered nor decided (People v. Myers (1987) 43 Cal.3d 250 , 265, fn. 5 [ 233 Cal.Rptr. 264 , 729 P.2d 698 ]) and Williams neither discussed, analyzed, nor addressed section 1026.5. Williams ’s precedential force is limited to its own facts and issues. (See Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 , 734-735 [ 257 Cal.Rptr. 708 , 771 P.2d 406 ].) Accordingly, we must carefully examine the statute and policies at work in Williams to determine if a similar result is compelled here.

Section 1026.2, the statute at issue in Williams, provides a two-stage proceeding for persons seeking release on the basis their sanity has been restored. In the first stage, the court determines whether the respondent “will not be a danger to the health and safety of others . . . while under supervision and treatment. . . .” (§ 1026.2(e), italics added.) If the court so

concludes, the person is placed in an outpatient treatment program for one year. (Ibid.) At the end of one year, a trial is conducted to determine if the respondent’s sanity “has been restored.” (Ibid.) Under section 1026.2(e), sanity is restored when the respondent “is no longer a danger to the health and safety of others, including himself or herself.”

Williams approved a jury instruction stating sanity is “restored” under the second stage of a section 1026.2 proceeding when the respondent is no longer dangerous in a medicated condition and will continue to self-medicate. (People v. Williams, supra, 198 Cal.App.3d at p. 1479.) Accordingly, viewed as a case of statutory interpretation, as it must, Williams implicitly determined the “not dangerous while under treatment” standard of dangerousness which is expressly required by the statute under the first stage of a section 1026.2 proceeding also applies to the second stage where the treatment under consideration is the respondent’s medicating himself.

Unlike the statute at issue in Williams, here section 1026.5 defines dangerousness without regard to the effect of medical treatment. Under section 1026.5(b)(1) and section 1026.5(b)(5), the People sustain their burden by proving beyond a reasonable doubt the respondent (1) was committed for a felony and (2) has a mental disease, defect, or disorder (3) which causes him to represent a substantial danger of physical harm to others.

By definition, the only persons coming within section 1026.5’s framework are felons who have previously proven their own insanity. (Evid. Code, § 522; Pen. Code, § 25(b) [defendant must prove insanity defense by a preponderance of the evidence].) Given a release under section 1026.5 is an unconditional one—the released person leaves the psychiatric facility without further supervision or compulsory treatment—the Legislature’s failure to define dangerousness under section 1026.5(b)(1) in terms of behavior while under treatment is no mere oversight. Both the language in section 1026.5 and the policy of protecting the public compel the conclusion that under section 1026.5(b)(1), the state sustains its burden by showing, among the other elements, the respondent is dangerous to the physical safety of others, without regard to the effect of any medication.

Thus, section 1026.2 (as construed by Williams) and section 1026.5 significantly differ: Section 1026.2 defines “dangerousness” in terms of behavior while under “treatment,” whereas section 1026.5, by its own terms, does not. Williams’s rule requiring the jury be instructed to consider treatment in determining “dangerousness” in a section 1026.2 proceeding cannot logically be carried wholesale into section 1026.5, which contains a different standard for release.

This conclusion does not mean, however, that evidence regarding the respondent’s behavior while medicated and the likelihood he will self-medicate is irrelevant under section 1026.5. As Williams noted, many people afflicted with mental illness fully function in society with the aid of medication. Moreover, in Williams, this court emphasized the failure to consider such evidence could result in individuals languishing indefinitely in mental hospitals because of their reluctance to rely on medication and would discourage such patients from taking medication vital to their well-being. (People v. Williams, supra, 198 Cal.App.3d at p. 1482.)

Although we have determined Williams is distinguishable on its facts and issues, the policy considerations outlined above have equal force here. If Bolden is not dangerous while medicated and will unfailingly self-medicate in an unsupervised environment in the future, section 1026.5’s core policy— protecting the public from persons who have already demonstrated their dangerousness—is not threatened. Under such circumstances, there is no reason someone in Bolden’s position should remain in custody, having already served the maximum period of confinement under which he could have been sentenced had he simply pleaded guilty to the underlying offense.

In light of the foregoing and in the absence of any legislative indication to the contrary, we conclude, therefore, the following: (1) The People present a prima facie case under section 1026.5(b)(1) by showing, beyond a reasonable doubt, that the respondent was committed for a felony and has a mental disease, defect, or disorder which causes him to represent a substantial danger of physical harm to others, without regard to the effect of treatment or medication upon his behavior; (2) however, the effect of medication in controlling the respondent’s dangerousness and whether he will self-medicate in an unsupervised environment may be raised by the respondent as a defense.

Perhaps anticipating this result, at oral argument the parties addressed whether Bolden may constitutionally be required to prove such a defense by a preponderance of the evidence, or whether the People must instead prove the absence of such facts beyond a reasonable doubt.

Section 1026.5(b)(5) provides Bolden is entitled “to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The due process clause of the federal Constitution requires the People to prove every element of a criminal charge beyond a reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684 [ 44 L.Ed.2d 508 , 95 S.Ct. 1881 ]; In re Winship (1970) 397 U.S. 358 [ 25 L.Ed.2d 368 , 90 S.Ct. 1068 ].) However, “the Due Process Clause [does] not invalidate every instance of burdening the defendant with proving an exculpatory fact.” (Patterson v. New

York (1977) 432 U.S. 197 , 203, fn. 9 [ 53 L.Ed.2d 281 , 287, 97 S.Ct. 2319 ].) It is constitutional to require a criminal defendant to bear the burden of proving an affirmative defense by a preponderance of the evidence. (Martin v. Ohio (1987) 480 U.S. 228 [ 94 L.Ed.2d 267 , 107 S.Ct. 1098 ].) In this context, an affirmative defense is one which presumes the prima facie elements of the crime are true, but exculpates the defendant because of excuse or justification. (Adkins v. Bordenkircher (4th Cir. 1982) 674 F.2d 279 , 282, overruled on other grounds in Meadows v. Holland (4th Cir. 1987) 831 F.2d 493 , 498, fn. 8 [Meadows itself is vacated by Meadows v. Holland (1989) 489 U.S. 1049 ( 103 L.Ed.2d 575 , 109 S.Ct. 1306 )].) Stated another way, in this context an affirmative defense is one which does not negate any element of the crime, but is new matter which excuses or justifies conduct which would otherwise lead to criminal responsibility. For example, necessity is a defense which admits, for the sake of argument, the elements of the charged offense, but offers a justification to avoid criminal culpability. As such, it is an affirmative defense which the defendant must prove by a preponderance of the evidence. (People v. Waters (1985) 163 Cal.App.3d 935 [ 209 Cal.Rptr. 661 ].)

In contrast, some defenses do not admit the elements of the crime, but instead serve to overcome or negate such proof. For example, alibi negates an element of the People’s case—identity. Similarly, voluntary intoxication negates proof of an element of some crimes—specific intent. Where the defense would necessarily negate an essential element of the crime charged, the state may not constitutionally place the burden of persuasion on that issue upon the defendant. (People v. Babbitt (1988) 45 Cal.3d 660 , 694 [ 248 Cal.Rptr. 69 , 755 P.2d 253 ]; Holloway v. McElroy (5th Cir. 1980) 632 F.2d 605 , 624-625; People v. Lewis (1947) 81 Cal.App.2d 119 , 123-124 [ 183 P.2d 271 ] [alibi]; CALJIC No. 4.21 [voluntary intoxication].)

Here, although section 1026.5 does not define a crime, it provides, “The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” (§ 1026.5(b)(5).) Accordingly, in determining whether Bolden may constitutionally bear the burden of proving his defense, we must consider whether it is an affirmative defense or instead negates an element of the People’s case.

The “elements” under section 1026.5 are (1) a felony resulting in commitment and (2) mental disease, defect or disorder (3) which causes dangerousness. Bolden’s defense is (1) medication makes him not dangerous and (2) he will take his medication without fail in the future in an unsupervised environment. This defense admits (arguendo) the truth of the elements of the People’s case: (1) his felony resulting in commitment; (2) the underlying mental illness; and (3) that without medication, he is dangerous. Stated

deficient, or misleading on their face, but may become so in particular circumstances. [Citation omitted.] When the issue is not whether erroneous instructions have been cured by argument, but whether the interplay of argument with individually proper instructions produced a distorted meaning, it seems appropriate to evaluate the remarks of both counsel to determine whether the jury received adequate information.” (Id. at p. 1256.) Applying People v. Brown, in People v. Nguyen (1988) 204 Cal.App.3d 181 [ 251 Cal.Rptr. 40 ], the court agreed with the defendant’s contention CAL-JIC No. 3.00 was improper because, although it did not misstate the law, it was incomplete. Stating “instructions should not be viewed in a vacuum” and citing People v. Brown, the court in Nguyen looked to the prosecutor’s closing argument “to conclude the jury was adequately informed notwithstanding the claimed inadequacies of CALJIC No. 3.00.” (People v. Nguyen, supra, 204 Cal.App.3d at p. 188.)

Here, like the situation in Nguyen, CALJIC No. 4.17 does not misstate the law. Instead, where, as here, the defendant relies on a medication defense, it is incomplete. Moreover, unlike the situation in People v. Williams, here the court did not misstate the law. Accordingly, because CALJIC No. 4.17 is not misleading or erroneous on its face, in assessing whether prejudicial error occurred, we may consider counsels’ closing arguments to determine whether the jury “understood its mission and completed it properly.” (People v. Nguyen, supra, 204 Cal.App.3d at p. 189.)

As summarized above, there was abundant testimony concerning the effect of medication on Bolden’s dangerousness and his propensity to self-medicate. In closing argument, the People stated: “He has told several doctors that, T will only use medication if I have to.’ That’s a problem, that’s something for you to consider, fl|] The doctors felt that he was unlikely to take his medication without supervision. That’s why he’s in an injection system now.

“He felt that Patton put him on these medications for punishment and that is, again, something you can discuss and consider as to whether Mr. Bolden does realize he does need these medications.

“I think it’s very clear that he is and he’s a danger again because of all the things we talked about, the poor judgment, the failure of insight into his illness, the failure to realize the need for medication. [1f] If you don’t believe that you have an illness, you won’t take your medication.

“If you don’t believe that he’s okay, walk him out the door. But think about what’s going to happen. He’s going to have that $50 outside the door of Patton. Then what? That's what you have to look at. Has he taken his medication? " (Italics added.) As demonstrated by these excerpts, here the People explicitly directed the jury’s attention to the effect and frequency of Bolden’s medication and told the jury, “That’s something for you to consider” and “That’s what you have to look at. Has he taken his medication?” Similarly, in his closing, Bolden’s attorney stated: “I think if you look at the recent history there is definitely compliance with taking medication. There is definitely not violent behavior.” Thus, although the instructions did not expressly advise the jury it could consider Bolden’s medicated condition in assessing his dangerousness, it is apparent the People and Bolden not only each introduced substantial evidence on the issue, but each argued the point as if the requested instruction, in a correct form, had been given. Under all the circumstances, the jurors must have understood they should take into account the effect of Bolden’s use of psychotropic medication and the likelihood of his continued self-medication, topics which each party argued without objection. (See People v. Brown, supra , 45 Cal.3d at p. 1256.) In light of the strength of the People’s evidence that Bolden would not self-medicate and the scarce evidence to the contrary which Bolden offered from a recreational therapist and nurse, we are satisfied the jury understood its mission and completed it properly. On this record, no reasonable jury could have concluded, by a preponderance of the evidence, that Bolden would continue to self-medicate without fail in a completely unsupervised environment. Although the instruction was incomplete, there was no harm. (People v. Nguyen, supra, 204 Cal.App.3d at p. 189.)

Future Dangerousness

In People v. Williams, this court said “[a]n individual’s present condition is the focus of a commitment proceeding, not his or her behavior under future changes.” (People v. Williams, supra, 198 Cal.App.3d at p. 1481.) Latching ahold of this phrase out of context, Bolden contends the People committed reversible error by referring to his propensity for future dangerous behavior when, in closing argument, the prosecutor said, “Again, they feel that if he did take—stop taking his medications that he would decompensate. . . . That’s what they have seen over the past ten years and that’s what would happen again.”

We reject Bolden’s contention for several reasons. First, Bolden’s assertion is internally inconsistent. On the one hand, Bolden contends the jury must be instructed to consider whether he will continue to self-medicate if

unsupervised in the future. Now, however, he contends the jury should not be able to consider the equally relevant counterpart—whether he will be dangerous in the future. Bolden cannot have it both ways. The issue under section 1026.5(b) is whether Bolden “represents” a substantial danger of physical harm to others. In making this determination, the jury must be able to appropriately consider whether, based upon his present condition, he poses such a danger if placed in an unsupervised environment. Here, not only did the prosecutor direct the jury’s attention to the relevant inquiry, she later told the jury, “We don’t want you to speculate.” Accordingly, there was no improper argument.

Disposition

The order is affirmed.

Kremer, P. J., and Todd, J., concurred.

Appellant’s petition for review by the Supreme Court was denied May 23, 1990.