Return to Non-CALJIC Offenses – Contents
F 18.12 n1 Rules Applicable To Mentally Disordered Offender Instructions: MDO Proceeding Is “Essentially Penal” In Nature (PC 2962 & PC 2966).
In People v. Collins (92) 10 CA4th 690, 694-95 [12 CR2d 654], the court held that the MDO scheme is essentially penal in nature and, therefore, the appellate rules dealing with instructions in criminal cases apply to MDO proceedings. (But see People v. Clark (2000) 82 CA4th 1072, 1081 [98 CR2d 767] [“defendant’s testifying about whether or not she used force or violence in the underlying offense did not violate her privilege against self-incrimination, under either the federal or California Constitutions”].)
F 18.12 n2 Rules Applicable To Mentally Disordered Offender Instructions: No Instruction as to Consequences of Verdict (PC 2962 & PC 2966).
In People v. Collins (92) 10 CA4th 690, 695-96 [12 CR2d 768], the court held that the jury should not be instructed upon the consequences of its verdict: i.e., whether the defendant should be treated as an in-patient or released. Such an instruction “stacks the deck” against the defendant. (See People v. Kipp (86) 187 CA3d 748, 750-751 [232 CR 87] [error to advise the jury in an NGI extension proceeding that their verdict will decide whether the petitioner should be released or continue to be confined for involuntary treatment].) An MDO commitment is analogous to the NGI extension proceeding at issue in Kipp and, therefore, under the reasoning of Kipp an instruction on the consequences of the verdict “is likely to distort the verdict because the jury could fear [the defendant’s] release and be more inclined to rule against [the defendant] regardless of the evidence.” (Kipp 187 CA3d at 751; Collins 10 CA4th at 695.)
F 18.12 n3 Rules Applicable To Mentally Disordered Offender Instructions: Standard Battery Instruction Does Not Correctly Define Force and Violence (PC 2962 & PC 2966).
In an MDO proceeding PC 2962(a) and PC 2962(e) require a determination that the crime for which the defendant was sent to prison involved force, violence, or “serious bodily injury.” In People v. Collins (92) 10 CA4th 690, 696 [12 CR2d 768], the court held that the standard definition of violence for purposes of battery (CJ 16.141) does not correctly convey the force or violence requirement to the jury in an MDO proceeding. CJ 16.141 states that “the words ‘force’ and ‘violence’ … mean any application of physical force against the person of another, even though it causes no pain or bodily harm or leaves no mark and even though only the feelings of such person are injured by the act. The slightest touching … is sufficient.” This definition is inadequate in an MDO proceeding. First, the use of the word “force” does not necessarily mean force against a person and may theoretically be based upon a crime which entails the use of force on property. Second, the word “violence” carries the connotation of more than a simple touching required for a battery. A simple touching may occur without “violence.” Accordingly, CJ 16.141 should not be given in a MDO proceeding. “The words ‘force’ and ‘violence’ are words of ordinary meaning and require no further definition. [Citations.]” (Collins 10 CA4th at 696.)
F 18.12 n4 MDO Instructions: Requirement That Criteria Be Met On The Date Of The Most Recent Hearing.
An essential requirement for extension of a MDO commitment (PC 2966) is a finding by the trier of fact that the parolee met the MDO criteria on the date of the most recent Board of Prison Terms hearing. It is error to not instruct the jury to make such a determination. (People v. Bell (94) 30 CA4th 1705, 1710-11 [36 CR2d 746].)
F 18.12 n5 MDO Statutes: Applicability Of Ex Post Facto Laws.
In People v. Washington UNPUBLISHED (4/4/96, A070166) 44 CA4th 162 the court held that the application of an amended version of the MDO statutes to the defendant, who committed his crime between the date the original MDO statutes were found to be unconstitutional and the date the provisions were re-enacted, violated the ex post facto clauses of the federal and state Constitutions. [The Washington opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-214.])
People v. Superior Court (Myers) (96) 50 CA4th 826 [58 CR2d 32] held that the California Mentally Disordered Offender (MDO) law (PC 2970) is not penal in nature and, therefore, not subject to ex-post facto limitations. (See also People v. Robinson (98) 63 CA4th 348 [mentally disordered offender statute is non-penal and doesn’t violate ex post facto clause].)
F 18.12 n6 MDO Statutes: Applicability Of “Strong Arm” Robbery As Qualifying Offense.
People v. Anzalone (99) 19 C4th 1074 [81 CR2d 815] held that the primary concern of the MDO Act (PC 2960 et seq.) is to assure continued treatment of severely mentally disordered prisoners whose crimes involve either use of a dangerous weapon or some other actual, rather than implied, display of force or violence or infliction of serious bodily injury. Therefore, basing a finding of “force” on the threat of force implicit in every robbery would contravene the Legislative intent of the statute. [Emphasis in original.] (Anzalone, 19 C4th at 1083.)
F 18.12 n7 Sexually Violent Predator/Mentally Disordered Offender (SVP/MDO): California State Prisoners Handbook.
(See FORECITE F 4.19 n18.)
F 18.12 n8 MDO Statutes: Applicability Of Sexual Battery Of Child As Qualifying Offense (PC 243.4).
(See People v. Valdez (2001) 89 CA4th 1013 [107 CR2d 783] [sexual battery of 5 year old qualifies as crime of force or violence for purposes of MDO law because child was unable to resist defendant].)
F 18.12 n9 MDO Statutes: Involuntary Medication.
(See In re Qawi (2004) 32 C4th 1 [defendant can be compelled to take antipsychotic medication in a non-emergency situation only if a court finds that the defendant is incompetent or is dangerous (as defined in WI 5300)].)
F 18.12 n10 MDO Statutes: Whether Violence To Animals (PC 597(a)) Qualifies.
The majority in People v. Dyer (2002) 95 CA4th 448, 455-56 [115 CR2d 527] held that in an MDO proceeding, PC 2962(e)(2)(P) provides that any crime of force or violence qualifies for an MDO commitment. Nothing in section 2962 limits the qualifying offenses to crimes committed against human beings. “The purpose underlying the MDO law is to protect the public by identifying those offenders who exhibit violence in their behavior and pose a danger to society. (§ 2960.) It does not take a leap in logic to conclude that an individual who violently or forcefully injures an animal might be dangerous to people.”
However, the rationale of the majority opinion was soundly challenged in the dissenting opinion.
Moreover, the dissent omitted a key point: That very same court previously recognized that force against property is not included within the omnibus provision of subdivision (e)(2)(P), even though the wording would technically include it. (People v. Mccauley (99) 73 CA4th 704, 707-708 [86 CR2d 675].) Moreover, this same court got the meaning of the “force or violence” clause wrong when it held in People v. Pretzer (92) 9 CA4th 1078 [11 CR2d 860] that “implied force” involving no physical contact whatsoever would suffice under (e)(2)(P). That holding was overruled by the California Supreme Court in People v. Anzalone (99) 19 C4th 1074 [81 CR2d 315], a robbery case, which held that if the Legislature had meant “implied force” in (e)(2)(P), it would have said so; and, the fact that only some robberies were delineated in (e)(2)(D) meant not all robberies were so included. (Anzalone, 19 C4th at pp. 1080-82 [the Legislature changed the statute later, but that’s irrelevant here].) And Anzalone, at pp. 1082-83, ratified the reasoning of the same Court of Appeal in People v. Collins (92) 10 CA4th 690, 697-98 [12 CR2d 768], to the effect that while the word “force” in (e)(2)(P) literally encompasses property, it would not be so construed.
So you have a statute with a word, “force,” theoretically so broad that it could literally be applied to anything, but that has been significantly limited in decisional law for that very reason; it has never been construed to include property, when animals are property in every statute there is; doesn’t even include robbery; doesn’t include arson of property, unless it substantially endangers a human being; appears in a statutory scheme that uses terms which apply entirely to people, and doesn’t even intimate a thought of inclusion of animals; has no legislative history or other indicia of legislative intent to include animals; etc. — broadened to include animals, because “that is consistent with protecting the public.”
Dyer may have been mentally ill, but his reason for slitting the dog’s throat was quite rational–he wanted to eat the dog because he was hungry.
F 18.12 n11 MDO: “Medication Defense” Places Burden On Prosecution.
People v. Noble (2002) 100 CA4th 184, 190 [121 CR2d 918] [“medication defense” amounts to a claim that defendant did not meet two of the three criteria for extending his MDO commitment because he is in remission and not dangerous; these are issues upon which the prosecution must bear the burden of proof].
F 18.12 n12 MDO Statutes: Burden Of Proof; Presumptions.
See People v. Beeson (2002) 99 CA4th 1393, 1410 [122 CR2d 384] [as to petition for continued treatment under MDO law (PC 2960 et seq.) the court was not required to instruct jury to presume that defendant was not an MDO].
F 18.12 n13 MDO Statutes: Applicability Of Reckless Arson As Qualifying Offense.
(See People v. Hayes (2003) 105 CA4th 1287 [129 CR 2d 885] [reckless arson (PC 452(b)) is not an offense that qualifies an accused for commitment under the MDO law; it is not listed in PC 2962 and does not fall into the “catch-all” provision for crimes of force or violence].)
F 18.12 n14 MDO Statutes: Applicability Of Pedophilia As Qualifying Offense.
(See People v. Starr (2003) 106 CA4th 1202 [131 CR2d 616] [mentally disordered offender includes persons suffering from pedophilia].)
F 18.12 n15 MDO Statutes: No Constitutional Right To Self-Representation At Commitment Proceedings.
In criminal proceedings a defendant has not only the right to representation by counsel but also a concurrent constitutional right to represent himself or herself. (See FORECITE F 2.60 n13.) However, because MDO proceedings are not punitive in nature, there is no constitutional right to self-representation. (People v. Williams (2003) 110 CA4th 1577.) Nevertheless, because the MDO commitment statutes give defendants the right to appointed counsel, a defendant could refuse counsel opt for self-representation. Any denial of a request for self-representation under the state statute would be governed by due process principles. (Ibid.)
F 18.12 n16 MDO (PC 2692): Res Judicata And Collateral Estoppel Apply.
When a trial court has found that a severe mental disorder was not an aggravating factor in the commission of the crime, the prosecution is precluded by the doctrine of collateral estoppel and res judicata from seeking a second mentally disordered offender determination based on the same underlying offense. (People v. Parham (2003) 111 CA4th 1178.)
F 18.12 n17 MDO Statutes: Requirement Of Finding That Defendant Has “Serious Difficulty” In Controlling His Violent Criminal Behavior.
(See People v. Putnam (2004) 115 CA4th 575; see also FORECITE F 4.19g.)