Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 01F06852
SIMS, J.Defendant Lamarrieo Young appeals from an order extending by two years his commitment to a state mental hospital which arose from his plea of “not guilty by reason of insanity” to a charge of violating Penal Code section 245, assault with a deadly weapon. (Pen. Code, §§ 1026 [commitment upon plea of not guilty because insane], 1026.5, subd. (b).) Defendant contends the trial court erred in denying his request for a jury instruction patterned after this court’s opinion in People v. Galindo (2006) 142 Cal.App.4th 531, requiring the prosecution to prove defendant has serious difficulty in controlling dangerous behavior. Defendant also contends the trial court erred in denying a defense motion to dismiss the case based on the prosecution’s failure to present evidence on this “control” issue, and the order should be reversed for insufficiency of the evidence. We shall conclude any instructional error was harmless, and denial of the dismissal motion was proper because substantial evidence supports the order. Accordingly, we shall affirm the order extending defendant’s commitment.
Undesignated statutory references are to the Penal Code. Section 1026.5, subdivision (b)(1), states: “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.”
FACTUAL AND PROCEDURAL BACKGROUND
In August 2001, defendant was charged with one count of assault with a deadly weapon (§ 245, subd. (a)(1)). Police reports indicate that defendant went into a neighborhood convenience store, stabbed the clerk six times in the head and neck without provocation and without saying anything, and then fled without taking anything from the store.
In February 2002, defendant pled not guilty by reason of insanity and waived a jury trial. The court deemed defendant’s plea an admission of guilt, and the matter of sanity was submitted to the court upon reports of Drs. J. Nakagawa and D. Edwards.
The trial court found defendant not guilty by reason of insanity and committed him to a state mental hospital for a maximum term of four years, pursuant to section 1026.5.
Before expiration of the initial term, the prosecution in January 2006 filed a petition to extend the commitment for two more years pursuant to section 1026.5, subdivision (b).
Evidence adduced at the November 2006 jury trial included the following:
Psychiatrist Dr. Surender Punia, who has treated defendant since January 2003, testified (over a continuing defense hearsay objection denied on the ground the expert could relate hearsay as a basis for his opinion but not for the truth of the matter asserted). Dr. Punia opined defendant has schizophrenia, paranoid type, characterized by auditory hallucinations, delusions, inappropriate emotional affect, and disorganized thinking.
In reaching his opinion, Dr. Punia relied in part on reports of psychologists who evaluated defendant in connection with his 2002 insanity plea. Those reports indicated defendant could not recall his mental state during the stabbing, never wondered why he stabbed the clerk, and smiled inappropriately. In 2002 interviews, defendant minimized his mental health problems and said voices told him to take the knife to the store.
Defendant (who is now age 30) began to exhibit behavioral changes in the 10th grade, when he began to isolate himself, hit himself, and rub his palms until the skin was raw. He had delusions about Michael Jackson coming to his home. At age 19, he was diagnosed with paranoid schizophrenia and was prescribed medication.
Dr. Punia, during his treatment of defendant, observed behavior consistent with the prior psychological reports. Defendant kick-boxes or shadow-boxes in response to internal stimuli. “He’s basically fighting somebody when nobody is around.” He breaks hospital rules frequently, despite admonitions to stop, though he can usually be redirected.
Dr. Punia testified defendant still suffers from paranoid schizophrenia, for which there is no cure, but treatment and medication can “contain” the symptoms. Dr. Punia prescribed Abilify, an anti-psychotic medication to suppress the voices and paranoia, and Depakote, a mood stabilizer, to curtail defendant’s assaultive impulsive behavior. On these medications, defendant’s “shadow boxing” initially declined, and his thinking became clearer.
Medical staff and Dr. Punia observed that defendant showed poor insight into his mental illness and did not think he needed medication. He has been inconsistent about his acceptance of his mental illness. He lost a grounds pass at the hospital for fighting and using marijuana. He uses and sells illicit drugs in the hospital. When asked whether defendant’s condition has improved over the last two years, the doctor testified “initially, it did improve, but, uh, since that time, around . . . last year, like September of last year, until today, I mean he has not done -- in the sense that he’s using substances on the unit and wheeling and dealing and selling them and ha[s] been, uh, more evasive and in different physical fights, so in that sense, he’s not improved, but as far as just the medication and the team’s assessment or thinking that he’s using drugs and has [tested] positive once, but usually, he won’t give the [urine] specimen or he would ask [an]other patient to give [the] specimen for him, there have been those incidents.”
We have no occasion in this appeal to explore whether and why illegal drug dealing/use is going on in the state mental hospital.
Dr. Punia read from his notes of August 2005, that defendant completed a substance abuse program, but “[c]ontinues to have poor insight into his mental health. Reports he may or may not take medications once he’s released from the hospital and wants to top out his date [be released when his commitment period expires].”
Dr. Punia’s trial testimony continued:
“Q. Now, was it, and is it significant to you that, uh, not only th[at] [defendant] lacked, as you say, insight into his mental illness, but that he told you he may or may not take medications once he’s released?
“A. Yes. It just shows a motivation on his part and, uh, like, uh, he doesn’t need to do the program and, uh, he just will get out of the court system [and] be free. But the way the program is structured is, uh, you need to understand your mental illness and the need to take medications and, uh, him being not able to, uh, recognize that, that does pose a danger.” (Italics added.)
Defendant engaged in a physical fight with a peer on October 4, 2005. In a later discussion about the fight, defendant said, “If someone threatens me, I would assault someone, but at this time, I feel there is no need.” He said he had not heard voices since 2003. He said he has anger issues. He said his prescribed medication was “because of low blood.” He reported he did not take the medication and wanted to cut down.
On January 20, 2006, staff saw defendant hitting a person in the bathroom. When the staff spoke to him about it, defendant laughed, giggled, said he “didn’t do it or no idea [sic].”
On May 3, 2006, staff saw defendant fist-fighting, but in an interview with Dr. Punia on May 15, defendant said he was trying to break away from the fight. Defendant again said he did not think he needed medication. In discussing the same fight at a conference on August 7, 2006, defendant said, “I gave him two black eyes. I was trying to defend my friends.” Between May and August 2006, defendant was involved in a couple of other incidents, but he maintained in the August interview that he was just present and had nothing to do with the fights. He attended group therapy sporadically. He had no remorse but instead “feels proud of his assault on the unit.” Regarding the 2001 stabbing that led to his commitment, defendant said in August 2006, “I wish I would have had a gun. I probably will shoot him for that. I don’t want to take shit from anybody.” Defendant then got up, said in a threatening manner, “I want to get stopped, but I’m not getting stopped,” and left the room. Defendant’s behavior at this August 2006 conference strengthened Dr. Punia’s opinion regarding defendant’s dangerousness.
On October 10, 2006 (the month before trial), Dr. Punia met with defendant to discuss a complaint from another patient, who claimed defendant threatened him and demanded money for drugs provided by defendant for which the other patient had already paid. Defendant responded, “I did not threaten him. I just basically got a big stick out of him.” Defendant began to get angry. Dr. Punia told him to calm down. Defendant said, “You don’t tell me to calm down. You are accusing me of lying.” Dr. Punia testified, “He [defendant] also said, [‘]You don’t talk to me about my medication in [a] long time because I am going to court.[’] That tells me he is requesting to reduce them. What my thinking [sic], he thinks that kind of looks bad on him if he is on medications in the court . . . .” The doctor opined defendant did not realize how the medications were helping him. Defendant’s mood at the October meeting became more and more angry, such that Dr. Punia felt physically threatened, so he backed off the topic of the fight. Defendant nevertheless said, “Fuck you,” and left the room. Dr. Punia testified this was the first time he had seen such behavior from defendant, where defendant “was staring through me, not responding to anything, and . . . the muscle tension, the facial expression, . . . the intensity of it.”
Dr. Punia explained that, until defendant can acknowledge his behavior, he cannot be taught how to control his behavior. Dr. Punia opined defendant “suffers from schizophrenia, paranoid type, and poses a substantial risk, danger to the society because his, uh, mental illness is not in remission, uh, and he has a history of, uh, assaultive behavior. He has been assaultive on the unit, uh. He has poor insight into his, uh, mental illness and the need for treatment, uh. He does not take responsibility for his actions and, uh, the other, uh, vigorous factor substances [sic],” i.e., he uses marijuana and cocaine.
When asked on cross-examination if he believed defendant would take his medication after his release, Dr. Punia replied, “From my experience and, uh, the, uh -- some patient telling me the level of poor insight, as [defendant] has, and, uh, him saying that he doesn’t need them, I mean, uh, even with [patients] who think they need them and they start feeling better, they stop taking medication. That’s very common. That’s a very strong possibility that [defendant] will not take his medication.”
Defendant did not testify or put on any defense witnesses at trial.
Defendant moved for “dismissal” on the ground the prosecution had failed to prove that defendant has serious difficulty in controlling dangerous behavior -- an element defendant derived from our decision in Galindo, supra, 142 Cal.App.4th 531 (published three months before defendant’s trial), in which we accepted the People’s concession that an extended commitment under section 1026.5, subdivision (b)(1), requires proof that the person under commitment has a serious difficulty in controlling dangerous behavior.
Defendant relied on section 1118.1, which is a motion for acquittal, not dismissal. However, both sides refer to it as a dismissal motion. The distinction makes no difference in this appeal.
As an alternative to dismissal, defendant requested a jury instruction, pursuant to Galindo, that the prosecution bore the burden to prove defendant has a serious difficulty in controlling dangerous behavior.
The trial court denied the dismissal motion and the request for jury instruction, stating, “I’m certainly not ignoring Galindo, but I’m also not going to extend beyond the expressed terms. I’m going to find, first of all, that there is ambiguity in the statute [sic], so there’s no need to refer to other statutes to determine what must be proved for extension of commitment under 1026.5.
“Secondly, I’m going to find that there is a rational basis for an extension [sic: distinction?] between somebody who may engage in antisocial behavior because of mental disease or defect as opposed to somebody who may simply determine to do that out of some bad antisocial personality. So I’m going to deny your motion on this.
“In regards to the instructions, I’m going to find to the extent Galindo has application, it is expressed in the part of 3453, the Cal Crim [post] that we have included and, this is, that the defendant must show he no longer poses that substantial danger of physical harm to others because he’s taking medicine which controls his medication [sic], which according to the instructions and the elements, is the root cause of the antisocial behavior [sic].”
The trial court instructed the jury pursuant to CalCrim No. 3453, as follows:
“Lamarrieo Young has been committed to a mental health facility. You must decide whether he currently poses a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder. That is the only purpose of this proceeding. You are not being asked to decide Lamarrieo Young’s mental condition at any other time or whether he is guilty of any crime.
“To prove that Lamarrieo Young currently poses a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder, the People must prove beyond a reasonable doubt that:
“1. He suffers from a mental disease, defect, or disorder;
“AND
“2. As a result of his mental disease, defect, or disorder, he now poses a substantial danger of physical harm to others.
“Control of a mental condition through medication is a defense to a petition to extend commitment. To establish this defense, Lamarrieo Young must prove by a preponderance of the evidence that:
“1. He no longer poses a substantial danger of physical harm to others because he is now taking medicine that controls his mental condition;
“AND
“2. He will continue to take that medicine in an unsupervised environment.
“Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.”
The jury returned a verdict finding defendant “suffers from a mental disease, defect, or disorder that causes him to be a substantial danger of physical harm to others . . . .”
The trial court accordingly ordered defendant’s commitment extended for an additional two years, to expire on May 27, 2008.
Defendant appeals.
DISCUSSION
A court order extending a commitment under section 1026.5 is appeal able as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); People v. Crosswhite (2002) 101 Cal.App.4th 494, 501, fn. 3.)
Defendant contends (1) the trial court erred in denying his request to instruct the jury on the prosecution’s burden to prove that defendant, due to his mental condition, has a “serious difficulty” in controlling dangerous behavior; (2) the court erred in denying his dismissal motion due to lack of evidence on this control issue; and (3) the order must be reversed due to insufficiency of the evidence on this issue. We shall conclude (a) substantial evidence supports the order, thus defeating defendant’s second and third points; and (b) any instructional error was harmless.
I. Substantial Evidence
Defendant contends under separate headings that (a) the trial court erred in denying his motion to dismiss for lack of evidence that defendant had serious difficulty controlling his dangerous behavior, and (b) the evidence on this issue is insufficient to support the order extending the commitment. We shall dispose of the two contentions together, since the standard of review for the dismissal motion is similar to the standard of review for the claim that the evidence is insufficient to support the judgment. (People v. Mendoza (2000) 24 Cal.4th 130, 175 [section 1118.1 motion should be denied when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged].)
We shall conclude substantial evidence supports the judgment (order), and therefore there is no reversible error in the denial of the dismissal motion (even if the trial court did not believe the evidence was required).
“‘“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 [fn. 1, ante] 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[] beyond a reasonable doubt. [Citations.]”’ . . . A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citation.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.)
In re Howard N. (2005) 35 Cal.4th 117 (Howard N.), held in the related context of extended commitment of dangerous juveniles (Welf. & Inst. Code, § 1800 et seq.) that the extended detention scheme should be interpreted (in order to preserve its constitutionality) to require a finding that the person’s mental deficiency, disorder, or abnormality, caused serious difficulty in controlling his behavior. (Id. at p. 122.) Because the jury was not instructed on this control issue, and there was little evidence that the defendant’s mental abnormality caused him serious difficulty controlling his dangerous behavior, the Supreme Court remanded to the trial court for a new commitment proceeding. (Ibid.)
In Galindo, supra, 142 Cal.App.4th 531, we applied the same principle to extended commitments under section 1026.5. There, the Attorney General conceded that, following Howard N., section 1026.5 (fn. 1, ante) must be interpreted as requiring proof that the person under commitment has serious difficulty in controlling dangerous behavior. (Galindo, supra, 142 Cal.App.4th at p. 536.) “This added requirement serves ‘to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.’ [Citation.] . . . Howard N. explained that a prediction of future dangerousness, coupled with evidence of lack of volitional control, adequately distinguishes between persons who are subject to civil commitment and ‘“other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.”’ [Citation.]” (Galindo, supra, 142 Cal.App.4th at p. 537.)
Galindo has been followed by the Fifth Appellate District in People v. Bowers, supra, 145 Cal.App.4th 870 at page 878 and by division Two of the First Appellate District in People v. Zapisek (2007) 147 Cal.App.4th 1151 at page 1164 (rev. den.).)
The People argued in Galindo that the trial court’s failure to consider the “control” issue was harmless beyond a reasonable doubt, because “overwhelming” evidence supported a finding that the defendant had serious difficulty controlling his dangerous behavior. (Id. at p. 538.) We said there was abundant evidence that the defendant’s behavior was dangerous and that he failed to control it, but the fact defendant failed to control his behavior did not prove he was unable to control his behavior. (Id. at p. 539.) In Galindo, there was little evidence that the defendant tried to control his behavior, that he encountered serious difficulty when trying to do so, or that his difficulty was caused by his mental condition. (Ibid.) Rather, the evidence strongly suggested the defendant did not try to control his dangerous behavior because he perceived no reason to do so. He angrily denied suffering from a bipolar disorder and denied needing treatment or medication. His willingness to participate in treatment was very limited. He angrily denied having a personality disorder. He denied substance abuse despite a number of “DUI’s” and a well-documented history of drug abuse. He did not accept his criminal history, claiming he was “framed.” Regarding the offense that resulted in his commitment, he claimed he was attempting suicide, he shot his wife accidentally, and the police filed a false report. (Ibid.) There was no expert evidence on the issue of difficulty in controlling behavior, presumably because no one was aware of the need to address the issue. (Ibid.)
We concluded in Galindo, supra, 142 Cal.App.4th 531: “In short, the evidence was not such that any rational jury would have found that ‘“[defendant] harbored a mental disorder that made it seriously difficult for him to control his [dangerous behavior] . . . [making] the absence of a ‘control’ instruction . . . harmless beyond a reasonable doubt.” [Citation.]’” (Id. at p. 539.) Because the trial in Galindo predated Howard N. (such that neither the parties, nor the witnesses, nor the court had the opportunity to consider the control issue), we remanded for a new trial. (Galindo, supra, at p. 539.)
In an appeal from the ensuing trial, we issued an unpublished opinion affirming Galindo’s extended commitment and rejecting his argument that our published opinion required the prosecution to present evidence that defendant had tried to control his behavior. (People v. Galindo, (Dec. 11, 2007, C054179) [nonpub. opn.].)
Here, defendant says there was no evidence, and no rational jury could have found, that his mental condition made it seriously difficult for him to control his dangerous behavior. We disagree.
Thus, the expert did indicate that defendant was unable to control his behavior:
“Q. Now, was it, and is it significant to you that, uh, not only th[at] [defendant] lacked, as you say, insight into his mental illness, but that he told you he may or may not take medications once he’s released?
“A. Yes. It just shows a motivation on his part and, uh, like, uh, he doesn’t need to do the program and, uh, he just will get out of the court system [and] be free. But the way the program is structured is, uh, you need to understand your mental illness and the need to take medications and, uh, him being not able to, uh, recognize that, that does pose a danger.” (Italics added.)
Although this testimony arose during a discussion of the doctor’s notes of August 2005, more than a year before the November 2006 trial, the doctor’s testimony made clear that the same conditions continued to apply at the time of trial.
We note that, at one point, the doctor answered “[y]es” to the question: “you indicated throughout your questioning that [defendant] has come to the realization that he is mentally ill; is that correct?” When asked why that was important, the doctor said “if you don’t have insight and then you’re always thinking there’s nothing wrong with you, you don’t need any treatment for it. And the worry is that you don’t comply with medications and get more psychotic and high likelihood of re offense.” Given the follow-up question and the rest of the doctor’s testimony, we question whether there is reporter error in the doctor’s testimony that defendant “has” (as opposed to “has not”) come to the realization that he is mentally ill. Nevertheless, even accepting the reporter’s transcript as it stands, the doctor also testified defendant lacks insight into his illness and the importance of the medications.
Additionally, there was evidence that defendant’s mental illness is not curable and, while delusions and auditory hallucinations can be reduced through medication, they do not disappear. Even if medication could entirely suppress the internal stimuli that lead to his violent behavior, there was evidence that defendant would not continue to take the medication if he is released. The expert observed defendant’s thoughts became clearer when he was initially placed on the medication, but defendant still does not understand the purpose of the medications, thinking he is taking them to increase his blood flow. Additionally, defendant’s continued use of alcohol and illicit drugs negates the effects of his anti-psychotic medication. The expert opined defendant would still pose a substantial danger risk even if he stayed on his medications.
Defendant argues an inability to accept a mental disorder does not necessarily mean the person has difficulty controlling dangerous behavior. However, in this case there was evidence not only that defendant failed to control his behavior, but also that he had serious difficulty in controlling his behavior. Thus, defendant expressed a desire to be released rather than have his commitment extended, yet he continued to break the rules and engage in fights during his confinement, such that he lost privileges (grounds pass) which had given him a taste of the freedom he craved. In contrast to Galindo, where the defendant managed to maintain adequate behavior in the hospital for several months (id. at p. 535), defendant in this case kept breaking hospital rules as recently as the month before this trial.
Thus, the record contains substantial evidence that, as a result of his mental condition, defendant has serious difficulty controlling dangerous behavior.
Defendant argues that Howard N., supra, 35 Cal.4th 117, found the evidence insufficient, even though there was some evidence of difficulty in controlling behavior, i.e., the defendant testified and expressed “some concern” about his ability to control his outbursts. (Id. at p. 123.) However, the Supreme Court did not refer to this testimony in explaining its conclusion. (Id. at p. 138.) In any event, here there was proof of defendant’s inability to control his behavior, because he continued to engage in fights and break hospital rules, even though he knew the proceeding to extend his commitment was approaching, and he wanted the court to deny the extension.
Defendant cites our opinion in In re Anthony C. (2006) 138 Cal.App.4th 1493, where we reversed a juvenile’s extended commitment (Welf. & Inst. Code, § 1800 et seq.) for lack of substantial evidence. There, however, the staff psychologist failed to prepare a formal risk assessment, was unprepared for trial, was unable to state risk factors at trial, and was reluctant to quantify the risk without further study. (In re Anthony C., supra, at p. 1506.) The doctor’s opinion failed to satisfy the requirement that the defendant had “serious difficulty” in controlling his behavior, because the doctor opined the defendant posed only a “moderate” risk and the doctor could not say that defendant’s lack of impulse control was related to the pedophilia which led to his confinement, rather than his other disorder (ADHD). (Id. at p. 1507.) Thus, Anthony C. does not help defendant.
People v. Zapisek, supra, 147 Cal.App.4th 1151, found substantial evidence supporting an order extending commitment under section 1026.5, including evidence of serious difficulty in controlling potentially dangerous behavior, where there was expert evidence that the defendant, who had a bipolar schizo affective disorder, had little, if any, control over potentially dangerous behavior when he was gripped by delusions and paranoia. (Id. at pp. 1165-1168.) There was also evidence his delusions continued despite medication, and he continued to act on them in inappropriate ways, e.g. taping alarm sensors needed for medical emergencies because he believed he was under surveillance, and taking steps to escape the hospital for fear that workmen would return to harm him. (Id. at p. 1166.) The appellate court said that, although the defendant’s delusions were not commanding him to commit acts of violence, the court could rely on the expert testimony that the defendant continued to act inappropriately based on delusions of the type that led to his confinement, including in ways that could harm others, such as when he taped over hospital alarm sensors needed for medical emergencies. (Id. at p. 1168.)
We conclude substantial evidence exists that defendant, as a result of his mental condition, has serious difficulty in controlling his dangerous behavior. Accordingly, substantial evidence supports the order extending defendant’s commitment.
II. Claim of Instructional Error
Defendant argues the trial court erred in denying his request to instruct the jury to determine whether defendant had serious difficulty in controlling his dangerous behavior (i.e., a “control” instruction). The People concede instructional error but argue it was harmless. We shall conclude any instructional error was harmless.
The absence of a “control” instruction does not require reversal if it is harmless beyond a reasonable doubt, in that the evidence is such that “no rational jury could have failed to find [defendant] harbored a mental disorder that made it seriously difficult for him to control his violent . . . impulses . . . .” (Howard N., supra, 35 Cal.4th at p. 138 [addressing extended confinement of juveniles]; Galindo, supra, 142 Cal.App.4th at p. 538 [error in section 1026.5 case would have been harmless had the evidence been such that any rational jury would have found the defendant harbored a mental disorder that made it seriously difficult for him to control his violent impulses].)
On this record, no rational juror could have failed to find that defendant harbors a mental disorder that makes it seriously difficult for him to control his dangerous behavior. That defendant managed to restrain himself from his evident desire to punch Dr. Punia during their meeting the month before trial does not, on this record, constitute substantial evidence from which the jury could find defendant did not have serious difficulty controlling his dangerous behavior.
We recognize the expert testified he could not tell whether defendant truly believed he did not need the medication or whether he was in denial about his mental disease as a coping mechanism. However, the expert also indicated defendant was not open to a discussion of the matter. We also recognize the reporter’s transcript shows the expert testifying that defendant has come to the realization that he is mentally ill. Nevertheless, based on the entire record and the expert’s repeated testimony that defendant lacked insight into his illness and the importance of his medications, we conclude no rational juror could have failed to find that defendant’s mental condition makes it seriously difficult for him to control his dangerous behavior. Accordingly, any instructional error was harmless.
DISPOSITION
The order extending defendant’s commitment is affirmed.
We concur: BLEASE , Acting P.J., ROBIE , J.