People v. Lakey

• Decision Date: 29 February 1980
• Docket Number: Cr. 34543
• Citation: 102 Cal.App.3d 962,588 P.2d 793,162 Cal.Rptr. 653
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lee Donald LAKEY, Defendant and Appellant.

Page 653

162 Cal.Rptr. 653

102 Cal.App.3d 962

The PEOPLE, Plaintiff and Respondent, v. Lee Donald LAKEY, Defendant and Appellant.

Cr. 34543.

Court of Appeal, Second District, Division 1, California.

Feb. 29, 1980.

Hearing Denied September 24, 1980.

Quin Denvir, State Public Defender, and Michael Tanaka, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Weisman, Robert R. Anderson and Elizabeth A. Baron, Deputy Attys. Gen., for plaintiff and respondent.

LONDON, Associate Justice. ^*

This appeal is taken from a determination by the superior court that defendant remain committed as a mentally disordered sex offender (MDSO) for an additional year pursuant to section 6316.2 of the Welfare and Institutions Code. ¹

FACTS

In 1973, defendant was convicted of involuntary manslaughter. Thereafter, both the court and a jury determined that defendant was a mentally disordered sex offender and defendant was committed to the Department of Health for placement in a state institution. ²

He was committed to Atascadero State Hospital and remained there until November 1977, at which time a petition was filed pursuant to section 6316.2 to extend his commitment. ³ During the period of his commitment at Atascadero, defendant was provided, and at times accepted, treatment for his mental disorder. He was, however, for the most part not cooperative. His refusal to cooperate in therapy and treatment began near the time of his initial commitment to Atascadero and became more pronounced as time passed. As a result of his lack of cooperation, in 1975, defendant was returned to the superior court for sentencing pursuant to section 6325(b). ⁴ In 1977 After the passage of section 6316.2, it was determined by the medical director at Atascadero State Hospital to seek extension of defendant's term pursuant to section 6316.2 rather than returning defendant to the superior court for sentencing pursuant to section 6325(b). The reason for that decision was it was believed that section 6316.2 provided a legal method of extending the term of defendant's confinement and that such an extension was in the public interest because defendant remained mentally disordered and very dangerous.

shortly before enactment of section 6316.2, the staff at Atascadero again prepared a preliminary recommendation to return defendant to the superior court forcing sentencing pursuant to section 6325(b).

As the record of the instant proceedings under section 6316.2 quite clearly discloses, the court was appreciative of defendant's contention that his amenability to treatment was a basic concern in determining whether his commitment could be extended. A major focus of consideration, on which substantial evidence was received, was whether defendant's "lack of cooperation" in treatment was a product of his own volition and something over which he had control, or, if it was itself, a result of his mental disorder. Also subject to inquiry was the ability and willingness of the Department of Health to formulate and implement a treatment plan designed to improve defendant's willingness to cooperate.

During a motion to dismiss the petition, heard by the court sitting without a jury, David Bourne, a program director and psychiatric technician at Atascadero, testified that it was possible that defendant could not cooperate because of his mental disorder. Dr. Ronald Markman, a psychiatrist appointed by the court, testified that defendant was "an individual who . . . refuses to cooperate, but is making a volitional choice," and is "capable of cooperation." Both Mr. Bourne and Dr. Markman were of the opinion that defendant would have benefited if he would have cooperated in treatment. ⁵

Mr. Bourne testified that he believed it possible to implement a treatment program for defendant which would take into consideration his refusal to cooperate.

The trial judge, after consideration of this evidence, determined that: "We have a man who might possibly benefit from treatment, who is capable of benefitting (sic) from treatment, should he undertake cooperation relative thereto, and who is highly motivated not to cooperate for practical reasons . . . ." ⁶ After the denial of defendant's motion to dismiss the petition defendant was tried by a jury. The evidence presented to the jury included, insofar as is important to this appeal, statements

made by defendant to psychiatric technicians at Atascadero State Hospital; evidence concerning defendant's participation and nonparticipation in various therapies; and the testimony of Dr. Markman. The jury was instructed that it had to determine whether defendant presently suffered from a mental disorder, whether defendant, as a result of such mental disorder was presently disposed to the commission of crime primarily for the purposes of sexual arousal or gratification and whether defendant's predisposition to the commission of such crime presented a serious threat of substantial harm to the health and safety of others. The phrase "mental disorder" was defined to be any abnormal condition of the mind causing and/or permitting conduct of the type not acceptable to society as expressed in its criminal statutes And of a nature changeable with or by treatment. "Substantial harm," was defined to mean "such harm that is more than slight or trivial." The jury was required to determine that the allegations of the petition were true beyond a reasonable doubt and did so.

ISSUES

In challenging the extension of his term as an MDSO, defendant contends on appeal:

1. In order to extend his commitment as an MDSO, it was constitutionally required that it be shown, beyond a reasonable doubt, that he was amenable to treatment.

2. There was insufficient evidence to show that he was amenable to treatment.

3. Section 6316.2 is unconstitutional in that it violates guarantees of equal protection, and that it is void for vagueness.

4. Statements made by him to psychiatric technicians at Atascadero State Hospital during the course of therapy sessions were privileged; accordingly, the court erred in admitting those statements in evidence.

5. Defendant is entitled to immediate release in that (a) the court erred in interpreting section 6316.2, subdivision (f) as commencing to run subsequent to a finding of extension, and, alternatively, (b) defendant is, pursuant to Penal Code section 2900.5, entitled to credit for time served before extension of his commitment.

DISCUSSION

I WELFARE AND INSTITUTIONS CODE SECTION 6316.2 DOES REQUIRE A FINDING OF AMENABILITY TO TREATMENT

Section 6316.2, by its terms, ⁷ does not explicitly require a finding of amenability to treatment. However, we are unable to agree with respondent that an MDSO's commitment to a mental health facility may be extended pursuant to section 6316.2 without a showing that an MDSO is amenable to treatment. We agree with the recent decision in People v. Compelleebee, supra According to section 6316, a person found to be an MDSO may not initially be committed to a state hospital or other mental health facility unless a finding is made that "the person could benefit by treatment." Because it is constitutionally required that a person committed for treatment as an MDSO actually be given treatment (People v. Feagley, supra, 14 Cal.3d 338, 339, 121 Cal.Rptr. 509, 535 P.2d 373), we believe that such treatment should be meaningful. As the court said in People v. Feagley, supra, at page 359, 121 Cal.Rptr. at page 522, 535 P.2d at page 386:

99 Cal.App.3d 296, 160 Cal.Rptr. 233, that there must be a finding of amenability.

". . . Not only is medical treatment the Raison d'etre of the mentally disordered sex offender law, it is its sole constitutional justification. It is settled that 'A person committed as a mentally disordered sex offender is not confined for the criminal offense but because of his Status as a mentally disordered sex offender.' (Italics added.) . . ..

"But involuntary confinement for the 'status' of having a mental or physical illness or disorder constitutes a violation of the cruel and unusual punishment clauses of both the state and federal Constitutions (citations) unless it is accompanied by adequate treatment. (Citations.) 'When patients are so committed for treatment purposes they unquestionably have a constitutional right to receive such individual treatment as will give each of them a Realistic opportunity to be cured or to improve his or her mental condition. (Citations.) Adequate and effective treatment is constitutionally required because, absent treatment, the hospital is transformed "into a penitentiary where one could be held indefinitely for no convicted offense. " (Citation.) The purpose of involuntary hospitalization for treatment purposes is Treatment and not mere custodial care or punishment. This is the only justification, from a constitutional standpoint, that allows . . . commitments to mental institutions . . ..' (Citations.)" (Emphasis added.)

People v. Compelleebee, supra, 99 Cal.App.3d 296, 160 Cal.Rptr. 233, decided on November 30, 1979, states:

". . . we conclude both by reason of constitutional mandate and statutory construction that a finding that a MDSO 'could benefit' from treatment must be made before an MDSO may have his commitment extended under section 6316.2." (At p. 302, 160 Cal.Rptr. at p. 237.)

The reasoning of the court in Compelleebee is that People v. Feagley, supra, held it constitutionally impermissible to commit an MDSO to a hospital for treatment when he could not benefit therefrom, and that the same rationale should apply to a recommitment.

If, as the Supreme Court states, " 'a realistic opportunity to be cured or to improve his or her mental condition,' " is the only " 'justification, from a constitutional standpoint,' " which supports the original commitment of an MDSO, we believe it patently improper...