Opinion
A154291
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH THOMAS SULLIVAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR107806)
Appellant Joseph Thomas Sullivan challenges a jury verdict extending his civil commitment at Napa State Hospital (Napa) under Penal Code section 1026.5. After hearing testimony from two experts and weighing evidence of appellant's recent behavior at Napa, the jury found that he continues to pose a substantial danger of physical harm to others as a result of a mental disorder. (See § 1026.5, subd. (b).) Sullivan contends that the prosecutor committed prejudicial error during closing argument when she discussed the concept of substantial danger by using an airplane crash analogy. We agree that equating the decision before the jurors with their own personal risk of dying in an airplane disaster was error. We find the error harmless on this record, however, and affirm.
All statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
Sullivan was initially admitted to Napa in January 2000 on a mental health conservatorship. In October 2001, he assaulted another patient by punching him in the face, biting him, attempting to gouge the patient's eyes with his fingers, and threatening to kill him. Sullivan was charged with one felony count of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).) At the time of the assault, Sullivan had stopped taking his medication and reported frequent hallucinations commanding him to harm others and harm himself. He had engaged in at least four other serious assaults prior to the charged offense. Sullivan was found not guilty by reason of insanity (NGI) and was ordered committed to the Department of State Hospitals for a term of four years. (See §§ 1026, 1026.5, subd. (a).) Since the initial commitment order, his commitment has been repeatedly extended upon a finding that he "represents a substantial danger of physical harm to others" due to a "mental disease, defect, or disorder." (See § 1026.5, subd. (b).)
The instant appeal concerns a petition filed by the Napa County District Attorney to extend Sullivan's civil commitment from April 2018 to April 2020. At trial on the petition, Napa staff psychologist Aaron Bartholomew testified as an expert in the diagnosis of mental illness and risk assessment of the mentally ill. Dr. Bartholomew had been Sullivan's treating psychologist for seven months and had evaluated him to determine whether to recommend extension of his commitment. Dr. Bartholomew met with Sullivan individually and, as the leader of several groups on Sullivan's unit, observed him in a group context two or three times a week. In addition to his personal contact with Sullivan, Dr. Bartholomew reviewed applicable records and spoke with Sullivan's treatment team.
Dr. Bartholomew testified that Sullivan suffered from several mental disorders, including schizoaffective disorder and antisocial personality disorder. According to Dr. Bartholomew, Sullivan reported experiencing auditory hallucinations typical of schizoaffective disorder from a very young age. Although the hallucinations had improved with medication (tending to be "more of a mumble now"), they had not resolved, and Dr. Bartholomew opined that Sullivan would likely need to take medication for the rest of his life to manage the disorder. Sullivan's diagnosis of antisocial personality disorder was based on a history across his lifespan of rule breaking and callousness towards the impact of his behavior on others.
Dr. Bartholomew opined that Sullivan posed a significant risk of physical harm to others because he continued to have difficulty regulating his emotions, acted impulsively, and put himself in high risk situations, leading to physical and verbal altercations with peers. In support, Dr. Bartholomew relied on his own observations as well as hospital incident reports from the prior year reflecting significant rule violations, verbal or physical altercations with other patients, or safety concerns raised about Sullivan's conduct. Dr. Bartholomew testified that, in April 2017, after a conflict over trading items, Sullivan told a female peer: "You'd better watch your back. I'm going to fuck you up every chance I get." Dr. Bartholomew also discussed a report from July 2017 describing an incident where Sullivan traded items with a female peer, a dispute arose, and Sullivan allegedly punched her in the neck. Sullivan denied any physical violence. In September 2017, Sullivan called a peer a gay slur after that peer refused Sullivan's request to use a computer. The next day, Sullivan called that peer a snitch and appeared agitated, remarking to the treatment team that they did not want to see him angry or stressed. In January 2018, Sullivan had an argument with his roommate about turning off the light, during which he got into a fighting stance and postured to fight. Staff intervened and separated them. Finally, in early 2018, a peer reported receiving contraband from Sullivan in the mail. Dr. Bartholomew was present when Sullivan learned of the allegation and observed him being very frustrated and agitated, pacing and stating that "he was going to try to do something about it."
Dr. Bartholomew also related several incidents involving Sullivan's interactions with staff. In July 2017, Sullivan was confronted by staff regarding property he possessed that was not listed on his property card. Sullivan "became upset and postured and took a fighting stance towards staff and had used his belly to bump into staff." In August 2017, after being confronted by staff about his behavior toward peers, Sullivan stated he hated snitches and asked the treatment team to identify the person who had told them about his behaviors. Staff increased supervision—"checking on him every minute"—due to concerns Sullivan might react either aggressively or in a self-harming way. In January 2018, when Sullivan learned he would not be able to go with a mall group, he became hostile to staff and took "a fighting stance and postured and clenched his fists to fight the staff members."
Dr. Bartholomew conducted a standardized violence risk assessment on Sullivan, the HCR-20, which evaluates 10 historical factors related to risk of violence, five factors related to how the subject is doing in the present, and five factors related to the subject's future plan for transitioning into the community. Dr. Bartholomew determined that Sullivan met all 10 historical risk factors, which included a history of violence and antisocial behavior, the presence of a major mental disorder, and episodes of poor response to treatment. Dr. Bartholomew testified that four of the five current risk factors under the HCR-20 were also present, including lack of insight during moments of stress, violent ideation, current symptoms of a major mental disorder, and instability. Four of the five future risk factors also presented some concern, including Sullivan's proposed living situation, social support in the community, adherence to treatment, and ability to cope with stress. Dr. Bartholomew opined that Sullivan posed at least a moderate risk of violence should he transition into the community under a conditional release program. Although the risk was likely not immediate given his recent progress, there was a "good chance that it could lead [in] that direction after several months or if a specific situation develops where he ends up in conflict with somebody." The risk would be higher still if Sullivan were released into an unsupervised setting.
Dr. Bartholomew acknowledged that Sullivan had developed some insight into his mental illness and related symptoms and that he was working in treatment on emotional regulation, interpersonal effectiveness, and being better able to tolerate distress. Moreover, Sullivan was able, at times, to deescalate when coached by staff. Dr. Bartholomew concluded, however, that "it requires an intense level of supervision to ensure that things don't escalate to physical violence," even in a hospital setting. Indeed, Sullivan had remained in the most structured level of care at Napa because he could not go six months without an incident, a prerequisite for transitioning to a less restrictive setting. Thus, in spite of Sullivan's recent progress, Dr. Bartholomew opined it was not even a "close call" that Sullivan met the criteria for continued commitment.
Heather Tegeler, a clinician at Golden Gate Con-Rep, a conditional release program, also testified, qualifying as an expert in assessment of the mentally ill and their safety in outpatient treatment. After evaluating Sullivan, it was her opinion that he was not yet ready for conditional release. She emphasized that, in addition to active participation in treatment, Sullivan should have a year with no rule breaking and no verbal or physical aggression. Tegeler also clarified that conditional release would not be available to Sullivan if he was unconditionally released into the community, absent some other legal process. No other witnesses were presented.
On May 1, 2018, the jury found that Sullivan suffers from "a mental disease, defect, or disorder" and, as a result, "[p]oses a substantial danger of physical harm to others" and "[h]as serious difficulty controlling his behavior." The court therefore granted the petition and ordered Sullivan's commitment extended for two years, to April 4, 2020. This appeal followed.
II. DISCUSSION
A. Analytical Framework
A person committed after an NGI finding under section 1026 generally "may not be kept in actual custody longer than the maximum term of commitment"—that is, the longest term of imprisonment which could have been imposed for the underlying offense. (§ 1026.5, subd. (a)(1).) However, an NGI commitment may be extended beyond the maximum term if the initial commitment was for a felony and, after a trial, the trier of fact finds that the person, "by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others." (Id., subds. (b)(1) & (b)(4).) In making a finding of substantial danger of physical harm under this statutory scheme, there must also be proof that the person has "serious difficulty controlling his [or her] potentially dangerous behavior." (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159; see In re Howard N. (2005) 35 Cal.4th 117, 127-132.) If the jury finds that the person meets these criteria, he or she may be recommitted "for an additional period of two years from the date of termination of the previous commitment." (§ 1026.5, subd. (b)(8).) Further extensions can be sought at two-year intervals. (Id., subd. (b)(10).)
Sullivan's sole contention on appeal is that the most recent extension of his civil commitment should be reversed because the prosecutor committed misconduct by using an airplane crash analogy during closing argument to illustrate the meaning of "substantial danger." In doing so, appellant argues, the prosecution misled the jury into believing that they could find substantial dangerousness under a lower standard of proof. " 'The standards governing review of misconduct claims are settled. "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' " ' " (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266 (Katzenberger). " 'Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' " (People v. Jablonski (2006) 37 Cal.4th 774, 835.) "Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127.)
We start from the general premise that "[a]dvocates are given significant leeway in discussing the legal and factual merits of a case during argument." (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) Nevertheless, it is " 'improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements.' " (Ibid.) It is not necessary to establish that the prosecution acted in bad faith to demonstrate misconduct. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
When a prosecutor's closing remarks to the jury are challenged, the appellant "must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (Centeno, supra, 60 Cal.4th at p. 667.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Ibid.) Nor do we categorically disapprove the use of analogies or diagrams in argument, and must evaluate each claim of error on a case-by-case basis. (Ibid.) However, numerous courts, including our Supreme Court, have highlighted the pitfalls inherent in using analogies and diagrams when attempting to illustrate the People's burden of proof. (See, e.g., ibid. [noting that "case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard" and discouraging " ' "experiments" ' " by prosecutors]; Katzenberger, supra, 178 Cal.App.4th at p. 1269 ["we caution prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the 'beyond a reasonable doubt' standard is dangerous and unwise"].) We sound the same cautionary note about attempts by prosecutors to explain the concept of "substantial danger" in ways that invite the jury to substitute their own beliefs for the evidence and confuse the appropriate standard of proof. B. Instructions to the Jury and Argument by Counsel
The trial court's instructions to the jury included standard admonitions to follow the law as the trial court explained it and to disregard any conflicting comments on the law made by the attorneys. Jurors were informed that nothing said by the attorneys in their opening and closing statements should be considered evidence in the case. Jurors were also instructed that phrases not specifically defined in the instructions should be given their ordinary, everyday meanings.
The trial court then defined proof beyond a reasonable doubt and expressly described the prosecution's burden in this matter, stating: "Unless the evidence proves the respondent currently poses a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder beyond a reasonable doubt, you must find the petition is not true." (Italics added.) The court reiterated the prosecution's burden of proof five times during its instructions. It did not define "substantial danger" in any way.
The prosecutor began her closing argument by emphasizing the beyond-a-reasonable-doubt standard. She suggested that, in determining whether Sullivan represented a substantial danger of physical harm to others if released into the community, the jury should consider his history, his risk assessments, and the opinions of the experts. She elaborated on all three of these factors. During this discussion, the prosecutor argued that the standard for proving a substantial danger of physical harm did not require serious, life-threatening or imminent harm, only physical harm. Defense counsel objected that this misstated the instruction and the court responded: "Well, you have the instruction. You'll have it in writing and you can review the instruction and interpret it as you believe is correct." The prosecutor concluded by discussing the facts supporting a finding that Sullivan represented a substantial danger of physical harm.
Defense counsel argued that the real question was whether Sullivan currently posed a risk of danger to the community and stressed that Dr. Bartholomew had testified Sullivan was not a current risk. The prosecutor objected that this argument misstated the evidence, and the court instructed the jurors that it was up to them "to interpret exactly what you believe the witnesses said." Defense counsel reiterated the prosecution's burden of proof and asserted it had not been met. He asked that Sullivan's history be discounted in favor of his current progress and situation. He explained that beyond a reasonable doubt is a very high standard, stated that risk is about probability, and argued that the current allegations of aggression and the proffered expert opinions failed to support a current finding of dangerousness by the requisite standard. In closing, defense counsel implored the jurors to fulfill their constitutional obligation by "hold[ing] the government to their burden beyond any reasonable doubt."
On rebuttal, the prosecutor emphasized Dr. Bartholomew's testimony that, in his opinion, it was not even a close call that Sullivan met the criteria for recommitment. The prosecutor then discussed substantial danger as follows:
The standard is, does he pose a substantial danger of physical harm? You were asked during jury selection what a substantial danger means to you, by counsel. What does substantial danger? . . . You're not given a percentage. It's not 51 percent or more likely. It's not 20 percent or more. I mean, you can look at substantial danger in other contexts. If you were getting on a flight today and we told you that this airplane has a 50 percent chance of crashing, I'd say none of you, none of us would get on that plane. We'd consider that a substantial danger. What if the likelihood was 20 percent, or ten percent? That flight was ten percent likely, we probably still wouldn't get on that flight. We'd consider that a substantial danger.
After defense counsel objected and the trial court held an unreported sidebar, the prosecutor was allowed to continue on the same topic. No admonishment to the jury was asked for or given, and the court never expressly ruled on the objection. Rather, the prosecutor renewed her argument, stating:
We acknowledge that, generally speaking, " '[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.' " (People v. Lopez (2008) 42 Cal.4th 960, 966.) We will nevertheless address the merits of Sullivan's claim.
Where were we?
Your flight this afternoon is ten percent of going down, you would likely consider that a substantial danger.
In this case we are not talking about airplanes. We're not talking about flights. But I mention this only to give you context that substantial just means meaningful. Is it a substantial danger, what does that mean to you? The burden here is still beyond a reasonable doubt. We need to prove that the danger is substantial, but that doesn't mean that he's likely to go out and hit someone the moment he walks out the front door. Is the risk that Mr. Sullivan poses to the community, danger of physical harm, substantial? And I think given what you've heard about both his committing offense, the fact that through the years he's continued to be assaultive and aggressive, we focused a lot on what's happened in the last year because that's really what matters. We've mentioned things that have happened further back because that gives it context that his aggressive behaviors over the last year aren't some anomaly. This is behavior that's continued for Mr. Sullivan over the years."
The prosecutor concluded her remarks by noting that while appellant is learning coping mechanisms and wants to take his medication, in the heat of the moment he is unable to control his behavior. "He does pose a substantial danger and he does have difficulty controlling his behavior. And while he is moving forward, he's just not there yet." C. The Prosecution Committed Misconduct , But the Error Was Harmless
Sullivan argues that the prosecutor's plane crash remarks amounted to prejudicial misconduct because they misled the jury regarding the quantum of evidence required to prove "substantial danger of physical harm to others," effectively lowering the prosecution's burden of proof. According to Sullivan, the prosecution gained an unfair advantage by analogizing the standard for "substantial danger" to a 10 percent risk because it led the jury to believe that it could find "substantial danger" with minimal proof. Sullivan also claims the analogy mischaracterized the nature of the risk in this case by equating the risk of dying in a plane crash to the risk that he would exhibit dangerous behavior if released. We agree that the prosecutor's use of an airplane crash analogy to describe substantial danger was improper.
Centeno is instructive. The prosecutor in that case showed the jury a map of California with multiple inaccuracies and omissions to make the point that, despite the obvious errors, there was no reasonable doubt that the state on the map was California. (Centeno, supra, 60 Cal.4th at p. 665.) She then told the jury that they could find the defendant guilty beyond a reasonable doubt even if there were missing evidence or inaccurate or inconsistent testimony, just as one can identify a map of the state of California by focusing on the totality of the evidence. (Id. at pp. 665-666.) Our high court found several problems with this presentation. It concluded that the use of an iconic image like the shape of California was a flawed way to demonstrate the reasonable doubt standard because it invited the jury to draw on its own knowledge rather than rely on the evidence presented at trial. "[O]ne of the dangers . . . here is that [the demonstrative] had nothing to do with the case or the evidence before the jury. . . . What occurred here was not the legitimate marshalling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question." (Id. at p. 671.)
Further, the prosecutor misstated the burden of proof by creating "the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden." (Centeno, supra, 60 Cal.4th at p. 672.) While it is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence proffered by the defense, the prosecutor may not suggest that a reasonable account of its own evidence satisfies the prosecution's burden of proof. (Ibid.)
Likewise, in Katzenberger, supra, 178 Cal.App.4th 1260, the prosecutor's use of a puzzle image of the Statute of Liberty to explain reasonable doubt was deemed improper because the iconic image was almost immediately recognizable with just one or two pieces displayed, leaving "the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence" and inviting "the jury to guess or jump to a conclusion." (Id. at pp. 1266-1267.) Moreover, by showing a picture of an eight-piece puzzle of the Statute of Liberty with two pieces missing as a depiction of the concept of reasonable doubt, the prosecutor inappropriately suggested a specific quantitative measure of reasonable doubt—i.e., 75 percent. (Id. at pp. 1267-1268.) Despite these errors, the Katzenberger court concluded that the misconduct was not prejudicial because the jurors were properly instructed on the reasonable doubt standard and the evidence against the defendant was strong. (Id. at pp. 1268-1269; see People v. Otero (2012) 210 Cal.App.4th 865, 873-874 (Otero) [using map of California to describe reasonable doubt standard was improper but concluding the error was harmless because the case was not close, the jury was admonished to disregard it, and the court properly instructed the jury on the standard of proof].).)
For similar reasons, we conclude that the prosecutor's attempt to explain "substantial danger" by resorting to a plane crash analogy was error. What a juror would tolerate as an acceptable risk for flight has nothing to do with the jury's task of evaluating the evidence to determine whether the appellant poses a substantial danger of causing physical harm to another person if released. The jurors were invited to draw on their own knowledge and fears of flying instead of considering the evidence presented at trial, thereby "trivializ[ing] the deliberative process [and] . . . encourag[ing] the jurors to guess or jump to a conclusion." (Centeno, supra, 60 Cal.4th at p. 669.) Moreover, as in Katzenberger, the prosecutor's hypothetical suggested a specific and exceedingly low quantitative measure for substantial danger—10 percent—which, if adopted by the jurors, would have the effect of lowering the prosecution's overall burden of proof. Based on the prosecutor's argument, the jury need only find beyond a reasonable doubt that there is a 10 percent chance the defendant will physically harm another person as the basis for recommitment. Her improper quantification of the concept of reasonable doubt under the circumstances was misleading.
It is clear the prosecutor committed misconduct. Based on our review of the record as a whole, however, we conclude the error was harmless. In her closing argument, the prosecutor discussed at length the actual evidence upon which the jury should base a substantial danger finding, including Sullivan's history of violent and aggressive behaviors, his risk assessments, and the opinions of the experts. Moreover, the trial court instructed the jurors as to reasonable doubt, and that they should follow its instructions over anything the parties stated during closing arguments. The jury was instructed that phrases not specifically defined in the instructions should be given their ordinary, everyday meanings. Further, after a defense objection during closing arguments to the prosecutor's interpretation of substantial danger, the trial court reiterated that it was up to the jurors to review the instruction on substantial danger and interpret it as they deemed correct. And the jury was reminded that it was up to the jury to interpret the evidence. We presume the jury understood and followed the court's instructions. (See People v. Martinez (2010) 47 Cal.4th 911, 957; see also Otero, supra, 210 Cal.App.4th at p. 873 [" 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." ' "].)
Finally, we agree with Dr. Bartholomew that this was not a "close case." The two experts, who provided the only testimony in this matter, were united in their opinion that Sullivan was not ready for conditional release, much less unsupervised discharge. Dr. Bartholomew offered a compelling account of Sullivan's continued inability to control his aggressive impulses, despite his placement in the most restrictive unit at Napa. Indeed, while Sullivan had certainly been making progress, Dr. Bartholomew attributed those advances to the very structured nature of his environment. Further, the risk assessment conducted by Dr. Bartholomew revealed that Sullivan remained a moderate risk for future violence even in the hospital or on conditional release, and a higher risk in an unsupervised environment. Under such circumstances, we conclude that the prosecutor's misconduct in her closing argument was not prejudicial, even if considered under a standard of beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S 18, 24.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Banke, J.