People v. Wilder

• Citation: 33 Cal.App.4th 90,39 Cal.Rptr.2d 247
• Decision Date: 15 March 1995
• Docket Number: Nos. D020002,D021351,s. D020002
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gary Lee WILDER, Defendant and Appellant. In re Gary Lee WILDER, On Habeas Corpus.
• Court: California Court of Appeals

Page 247

39 Cal.Rptr.2d 247

33 Cal.App.4th 90

The PEOPLE, Plaintiff and Respondent, v. Gary Lee WILDER, Defendant and Appellant In re Gary Lee WILDER, On Habeas Corpus.

Nos. D020002, D021351.

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

March 15, 1995.

Certified for Partial Publication ¹

Rehearing Denied April 5, 1995.

Review Denied June 14, 1995.

[33 Cal.App.4th 94] Robert F. Howell, under appointment by the Court of Appeal, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Janelle B. Davis and M. Howard Wayne, Supervising Deputy Attys. Gen., for plaintiff and respondent.

FROEHLICH, Associate Justice.

In this opinion we decide the constitutionality of Penal Code section 1026.5, subdivision (b), ² which sets out the procedures for extending the commitment to the State Department of Mental Health of a person found not guilty of a felony by reason of insanity.

Appellant Gary Lee Wilder (Wilder) contends he was denied due process at a trial under section 1026.5, subdivision (b), which resulted in an extension of his commitment. He argues section 1026.5, subdivision (b) is unconstitutional on its face and as applied, because extension of commitment under section 1026.5, subdivision (b) is based not on a finding of continued legal insanity under the M'Naghten test but on a standard which is unconstitutionally vague and overly inclusive. He also asserts (1) the trial court prejudicially erred by failing to instruct sua sponte on the legal meaning of the phrase "mental disease, defect or disorder"; (2) he was denied equal protection by the application of section 1026.5, subdivision (b); (3) the prosecution's

use of evidence at the recommitment hearing was fundamentally unfair, depriving him of due process; (4) his attorney provided ineffective assistance because she stipulated to the admission of irrelevant and prejudicial hearsay and failed to object to inadmissible evidence; (5) the trial court failed to conduct meaningful inquiry into his motion to substitute counsel and abused its discretion in denying his motion; and (6) he was denied due process by the court's instruction on the preponderance of the evidence standard of proof. ³

FACTUAL AND PROCEDURAL BACKGROUND

Wilder pleaded nolo contendere and not guilty by reason of insanity to one count of residential burglary. ⁴ The trial court found him not guilty by reason of insanity and committed him to the Department of Mental Health, placing him at Patton State Hospital (Patton) under section 1026.

On August 26, 1993, the district attorney petitioned under section 1026.5 to extend Wilder's commitment for two years on the basis that Wilder "is still suffering from a mental disease, defect, or disorder and by reason of such ... presents a substantial danger of physical harm to others."

At a jury trial on the petition, expert evidence was presented concerning Wilder's mental disease and danger to others. Wilder presented a defense that when medicated he posed no danger, and he would continue to take necessary medication when released.

Psychiatrist William Hocter (Hocter) interviewed Wilder and reviewed his history. Hocter opined that at the time of the interview Wilder had a bipolar disorder, also called manic-depressive illness, and that he presented a substantial danger to others. He also determined that Wilder had an antisocial personality disorder, which increased the severity and danger of his mental disease, and that Wilder abused alcohol, exacerbating the risks. Hocter stated that Wilder had just recently begun to gain insight into his mental illness and that he was uncertain whether Wilder would continue to take medication if he were not supervised.

Clinical psychologist Richard Owen (Owen) conducted a battery of psychological tests on Wilder and reviewed earlier psychological and psychiatric evaluations. Owen concluded Wilder suffered from residual chronic schizophrenia, an antisocial personality disorder, and substance abuse, the latter of which was in remission. Owen detailed earlier Patton reports on Wilder. He opined that if Wilder were released he would not take his medication and that he posed a risk of danger even on medication.

Clinical psychologist Thomas MacSpieden (MacSpieden) took Wilder's history, and administered an intelligence test and psychological tests. MacSpieden opined that Wilder suffered from manic-depressive illness and posed a risk of harm to others. He stated that Wilder had recounted to him a history of violence, which began when he was in the fourth grade, and that this pattern had increased through his life. MacSpieden said Wilder told him of crimes he had committed: a "robbery spree" when he was 18 and a gun battle and kidnapping of an Alabama state trooper. MacSpieden reported that Wilder appeared to glory in the telling of these events. MacSpieden said testing indicated that Wilder has a neurological dysfunction and Wilder told him of being knocked unconscious in a fall from a speeding automobile at the age of eight. MacSpieden further stated if Wilder were released into an unstructured Patton staff psychiatrist Boniface Dy (Dy) met with Wilder at least once a month from July 1992 through February 1993. Dy first diagnosed Wilder as suffering from manic-depressive disorder because of his pressured speech, inflated self-esteem, hyperactivity, and distractibility. Wilder later seemed to improve and Dy changed the diagnosis to cyclothymic disorder--a less serious version of the disease. In late December 1992 Dy, with Wilder's permission, began withdrawing the lithium to gauge Wilder's condition without medication. However, the experiment was unsuccessful and, after he threatened other individuals, Wilder had to be placed in seclusion and put into restraints. Dy resumed the lithium treatment in February 1993, but noted that although Wilder's condition improved, he continued to be hostile and uncooperative. Dy opined that Wilder presented a danger to others and that it would be difficult for Wilder to continue to improve outside of a structured environment.

setting, especially if he were not taking his medication or was drinking alcohol, he would pose a significant danger.

Patton psychiatric social worker Dixie Lowder (Lowder) worked in the unit in which Wilder was housed from July 1992 until February 1993. Lowder noted that Wilder was a particularly needy and difficult patient and that he resisted treatment programs offered, but requested individualized psychotherapy, which the staff decided would have negative results. Lowder opined that Wilder suffered from bipolar disorder and antisocial personality. She stated that he posed a risk of danger to others and that few people with Wilder's problems will take medication in an unstructured environment.

Patton psychiatric social worker Mary Fleming (Fleming) worked in Wilder's unit for several months in 1991 and was his individual therapist from April 1993 until September 1993. She stated Wilder's current diagnosis was bipolar disorder, alcohol abuse and antisocial personality. She opined that Wilder appeared to be making a sincere attempt to participate in therapy, that he was always polite, and that he had not been involved in any altercations or physical violence. Fleming opined that Wilder's recent period of therapy was insufficient, recommending instead a period of at least two years. She also said Wilder needed to work further on his alcohol problem. Additionally, she stated that many people with Wilder's problems do not continue to take medication in an unstructured setting.

Patton registered nurse Vanna Anderson cared for Wilder after his recent heart attack and observed that he appeared more subdued than at previous times. She stated Wilder's potential for danger to others would depend on whether he continued to take his medication and stayed away from alcohol. She said she believed him when he told her he would take medication when released.

Witnesses for Wilder

Patton psychiatric technician Robert Smith (Smith) provided primary care for Wilder at Patton from 1988 to 1990 and again in 1992. Smith said Wilder was arrogant and nasty when he first worked with him, but later Wilder became more accepting. Smith attributed the change to Wilder's giving up drinking after completing an alcohol dependency program. Smith also said Wilder appeared to be less agitated since suffering a recent heart attack.

Wilder, testifying in his own behalf, said that he had conducted himself as an ex-convict when he first arrived at Patton, but that later he did research and developed insight into his problems. He said in December 1992 he agreed to stop taking lithium to determine if he had a mental illness which required medication, and he had learned from that experience that he needed to take lithium for the rest of his life. He also said he knew he could not drink alcohol in combination with the medication. Wilder said he remembers only parts of the circumstances of the crimes of which he was accused. He also testified that he had stopped making, drinking and supplying bootleg alcohol after completing the alcohol abuse program at Patton.

DISCUSSION

I. Due Process

Wilder contends section 1026.5 is unconstitutional on its face and as applied to his case.

He argues the order for extension of commitment violates his due process rights because it is not based on the same standard under which he was committed.

Under the California procedure for commitment of insanity acquittees, if a defendant is judged not guilty of a felony because of legal insanity, he may be committed to the Department of Mental Health for a period of time which does not exceed the maximum state prison term to which he could have been sentenced for the underlying offense. (§§ 1026, 1026.5, subd. (a)(1).) Section 1026.2 provides that a defendant must be released when his sanity is...