Filed 5/29/15 P. v. Bachmeier CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040650
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 95953)

         v.

GEORGE LOUIS BACHMEIER,

         Defendant and Appellant.



         Defendant George Louis Bachmeier appeals from an order extending his
commitment under Penal Code section 1026.51 for two years. He contends that the trial
court erred by failing to instruct the jury that (1) it had to find he has serious difficulty
controlling his “dangerous” behavior, and that (2) reasonable doubt means the lack of an
“abiding conviction.” Defendant further argues that the cumulative effect of the errors
requires reversal.
         For reasons that we will explain, we will affirm the order for extended
commitment.




         1
             All further statutory references are to the Penal Code.
                                     BACKGROUND
       Defendant’s Prior Commitments
       In the early 1980’s, criminal proceedings were instituted against defendant,
charging him with assault with a deadly weapon with personal infliction of great bodily
injury. (§§ 245, subd. (a)(1), 12022.7). He was admitted to Atascadero State Hospital
(Atascadero) after being found incompetent to stand trial. Defendant was later found not
guilty by reason of insanity (NGI) (see § 1026), and was thereafter readmitted to
Atascadero. He was eventually placed under the supervision of a conditional release
program (CONREP) at various points in time, most recently in 2012, but ultimately he
was rehospitalized each time at Napa State Hospital (Napa).
       Defendant’s commitment term has been extended repeatedly. This court affirmed
two of the extended commitment orders in unpublished decisions. (People v. Bachmeier
(May 12, 2009, H033016) [nonpub. opn.]; People v. Bachmeier (Dec. 14, 2010,
H035324) [nonpub. opn.].)2
       The Recent Petition to Extend the Term of Commitment
       In June 2013, defendant’s treatment team determined that, because of a mental
disease, defect, or disorder, defendant represented a substantial danger of physical harm
to others, and recommended that defendant’s term of commitment, which was set to
expire on February 11, 2014, be extended pursuant to section 1026.5, subdivision (b).
The Acting Medical Director of Napa sent a letter to the District Attorney of Santa Clara
County, requesting that a petition be filed for the extension of defendant’s commitment.
In July 2013, the district attorney filed a petition for a two-year extension of defendant’s
commitment.



       2
        We take judicial notice of this court’s opinions in defendant’s previous appeals.
Our background summary includes information that we have taken from our prior
opinions.

                                              2
       The Jury Trial
       A jury trial was held on the petition in January 2014. The following two witnesses
testified for the prosecution: Douglas Johnson, Ph.D., who has been involved with
CONREP, and Sandy Ann Folker, Ph.D., who has been defendant’s treating psychologist
at Napa. Defendant testified in his own behalf.
                                    Douglas Johnson
       Dr. Johnson testified as an expert in the diagnosis and treatment of mental
disorders and assessing risks of dangerousness. Dr. Johnson has been the community
program director for Harper Medical Group, which runs a CONREP for the state in Santa
Clara County and certain other counties. Dr. Johnson has known defendant since 1992,
when Harper Medical Group took over the contract for CONREP, as defendant had
already been part of CONREP. Dr. Johnson testified as follows.
       Defendant’s diagnosis is paranoid schizophrenia. Defendant, who was born in
1952, was symptom-free until he suffered an injury in an accident when he was about
20 years old.
       Schizophrenia is a cognitive disorder, meaning it affects the way a person thinks.
The disturbances may be in the form of a person’s thinking, such as disorganized
thinking when one idea leads to another association that does not seem related, or in the
content of a person’s thinking, such as paranoia, delusions, and grandiosity.
Schizophrenia may also include a disturbance in perception, meaning hallucinations,
where the person experiences voices or other stimulation that other people do not
experience. Schizophrenia can be treated but not cured. Medication is used to alleviate
the symptoms.
       Defendant has shown paranoid delusions. At times, defendant felt he was working
with the secret service or the government. Defendant currently has delusions that people
in his hospital treatment team have an agenda to harm him. For example, he believes that
he has been ordered released, but that the staff is conspiring to keep him locked in the

                                             3
hospital. During an interview about two weeks before trial, defendant told the CONREP
evaluator that he was not answering questions and that the court “has already decided this
and I’m out of the program.” Defendant’s speech and thoughts have been at times
grossly disorganized, where it is hard to follow his train of thought. He has had
hallucinations where he hears voices. The disturbances have persisted for years.
       Schizophrenia is a progressive disease. Defendant has had “a number of
decompensations where his mental status has deteriorated.” When people suffer a
“decompensation” and then are stabilized, “they seldom ever go back to their original
baseline. They may go back to 95 percent functioning, but after a number of
decompensations, their mental status is never where it was originally.” Dr. Johnson
testified that defendant was “not the same man that [he] knew 20 some years ago.” In
particular, defendant’s “decompensations have become more severe,” and he has become
more irritable and frustrated with the system.
       In assessing dangerousness, Dr. Johnson considers many factors, including the
history of violence, the nature of the mental illness, and the active symptoms. The
person’s manageability as an outpatient is also considered, including whether the person
is compliant with medication.
       “Medication noncompliance is one of the major risks for decompensation.” When
people are properly treated with medication and their positive symptoms are ameliorated,
they may no longer think they are mentally ill because they are functioning at a higher
level and may believe the medication is no longer necessary. Consequently, it is
important to have people continue their medication even though their positive symptoms
are in remission.
       Defendant has a criminal history of assaults. The history is important because “the
best predictor of future behavior is past behavior,” and “prior assaultive, violent behavior
is a major risk factor.”



                                             4
       The underlying crime, in which defendant was found not guilty by reason of
insanity, occurred in 1983. Defendant had stopped taking his medication and went to his
mother and stepfather’s home, where he found that all of his belongings in his van had
been taken away and destroyed. Defendant subsequently got into a dispute with his
stepfather and stabbed him. Defendant felt he was unfairly treated and has described the
incident as an argument that got out of hand.
       Defendant has been verbally aggressive in the state hospital. Verbal aggression is
the first step in most of the altercations at the hospital. Dr. Johnson attributes to a “large
degree” defendant’s “ability to remain assault-free” to the training and intervention of
Napa staff. People at the hospital are closely watched. “The hospital can be a very
difficult environment and there are many provocative individuals there, but there’s also
trained staff that . . . can intervene quickly and, most times, stop aggression from getting
out of hand.” At some point prior to 2012, defendant was violent enough that he had to
be in seclusion and restraints.
       Dr. Johnson views verbal altercations as a “high-risk” situation because verbal
altercations can easily escalate. He explained that one of the benefits of CONREP “is we
can intervene early. In fact, that’s one of our missions . . . to make sure people who are
in our program don’t act out physically, so we have the authority to intervene quickly.”
In contrast, in the general community, there are not skilled, trained people to intervene so
verbal threats can easily escalate.
       One of the criteria for placement in CONREP is for the person to be able to
recognize symptoms and take steps to control them if they increase in severity.
Dr. Johnson testified that the person must be able to recognize a symptom and report
it because “we have to ensure that that doesn’t lead them to dangerousness.”
       Defendant has been accepted into CONREP four times and each time it has
resulted in rehospitalization.



                                               5
       Defendant’s first period in CONREP was from 1990 to 1996. He was
rehospitalized after his mental status appeared to deteriorate, his symptoms got worse,
and a concern arose regarding medication noncompliance after he was found with more
medication than he should have had in his possession.
       Defendant’s second placement in CONREP was from 1997 to 2003. During this
period, stressors occurred and defendant started talking about an old girlfriend. He
parked his car outside a house and stayed there for some period of time. A police officer
reported to CONREP that defendant was harassing the person. Defendant claimed that he
knew the person, but the person denied having a prior relationship with defendant.
Defendant’s conduct was considered serious because he wanted to confront someone in
the community without having discussed it in treatment, and there was a concern he
could have become violent if there was a confrontation.
       Defendant’s third time in CONREP was for approximately eight months in 2004.
Defendant was having paranoid thoughts that he failed to discuss in treatment. A
roommate had reported that defendant was talking about the Secret Service and a
political conspiracy. Defendant eventually acknowledged the thoughts when confronted.
Dr. Johnson explained that “we want to know early on” when people show interest in
this theme “so we can be involved in directing their thinking and their behavior.”
“When they don’t see that high-risk situation with these themes and start to act
independently, . . . it’s a matter of time before they get to a point of non-return, meaning
we’re not able to redirect them.”
       Defendant was last placed in CONREP from April to June 2012. Within a short
period of time, defendant’s behavior became more bizarre. A peer who was living with
defendant complained to staff that defendant “tried to blow cigarette smoke up a cat’s
butt and asked the peer if he knew how to make a cat.” Defendant also had compliance
issues, such as missing group therapy sessions and medication calls. Prescription
medication was also found in his pocket, and it was unknown whether the medication

                                              6
belonged to him or a peer. Medication noncompliance raises a risk of decompensation,
and missing group therapy is a warning sign that a person may be less serious about
overall recovery and placement in the community. Defendant’s paranoia also returned,
and he felt there was a mafia conspiracy. There was also a concern that he was
experiencing hallucinations when he felt there were electrical signals and tried to answer
a telephone that was not ringing. Regarding the decision to rehospitalize defendant,
Dr. Johnson testified that defendant seemed to be more symptomatic “and it was just a
case of looking at the history and where things go when he starts to decompensate. We
needed to make sure we intervene sooner rather than later.”
       Dr. Johnson does not believe that it is appropriate for defendant to return to
CONREP in his current state. Defendant is “psychiatrically unstable,” delusional,
paranoid, irritable, and not cooperative with treatment.
       Dr. Johnson believes that the paranoid schizophrenia is causing defendant serious
difficulty in controlling his behavior because “[t]here are a series of interactions with
staff where he’s become verbally aggressive and threatening.” Dr. Johnson explained
that when people have paranoid beliefs, those are real experiences to them. When they
feel that others are out to harm them rather than help them, they become frustrated or
frightened and act out in an aggressive manner.
       Defendant’s violence appears to be driven by his paranoia, which makes him
dangerous. As part of his paranoia, he sees people who may want to be helpful as
working against this best interest. Defendant has directed his anger, hostility, and threats
toward staff members. At times, he believed the staff was involved in a conspiracy to
keep him at the hospital against the judge’s orders. This is similar to some of the
paranoia he exhibited in 1983 when he stabbed his stepfather. He also got angry at his
psychiatrist who offered to change his medications to get better control of his symptoms.
The fact that defendant tends to direct his threats to the people who are trying to help him
is not a good predictive factor for him seeking out treatment in the community.

                                              7
       Dr. Johnson believes that defendant would represent a substantial danger of
physical harm in the community, and that the danger of physical harm would increase
without supervision by CONREP to monitor warning signs, such as medication
compliance. Dr. Johnson does not believe that defendant would continue to take
medication or seek treatment if he was released in the community because he does not
see himself as mentally ill.
       In order for Dr. Johnson to recommend defendant for CONREP, defendant’s
mental status needs to be stabilized, and he needs to gain acceptance of his mental illness
and the need for ongoing treatment, and he needs to commit to attend and participate in
treatment.
                                    Sandy Ann Folker
       Dr. Folker is a clinical psychologist who has been working at Napa since 2011.
She testified as an expert in the diagnosis and treatment of mental disorders and assessing
risk of dangerousness. Dr. Folker testified as follows.
       Dr. Folker has been defendant’s treating psychologist in the stabilization unit at
Napa since defendant returned to the hospital in 2012. The stabilization unit is for
patients whose behavior is “still aggressive, floridly psychotic.” The unit has the highest
level of security and “every door is behind lock and key.”
       To move from the stabilization unit to the transition unit, a person must not exhibit
overtly aggressive behavior or criminal activity for six months. Overtly aggressive
behavior includes threatening other people and getting into physical altercations. The
person must also engage in about half their groups, be medication compliant, and show
some motivation to want to get out of the hospital. If the person is successful in the
transition unit, the person may be transferred to the discharge unit where the goal is to
work with the CONREP provider and others in order to be released back into the
community.



                                             8
        In assessing violence risk, Dr. Folker considers a variety of factors. A person’s
history of violence is the strongest predictor. “The more people have done it in the past,
the more likely they’re [going] to do it in the future.” Dr. Folker also looks at whether
the symptoms that triggered past aggression are currently present; whether the person has
a realistic plan for the future; and whether the person is willing to engage in treatment,
stay on his or her medication, and stay in contact with the mental health professional in
case the person starts to decompensate, meaning become more psychiatrically ill.
        Defendant was born in 1952. He first psychotic break occurred around the age
of 20. Thereafter, he had 14 short hospitalizations, meaning 72-hour holds for someone
who is a danger to himself or others, as well a longer period of treatment at another
facility.
        Most of defendant’s criminal history occurred after his first psychotic break.
Defendant’s prior offenses include disturbing the peace, assault, and battery. He has also
had repeated altercations with his family and made verbal threats or engaged in physical
violence. The incidents most commonly occurred after defendant was released from
hospital care and he stopped taking his psychiatric medication or was no longer
compliant with treatment.
        Defendant’s underlying crime, for which he was found not guilty by reason of
insanity, occurred after he had been released from jail for threatening his mother and
stepfather. Defendant stopped taking his medication a few days before the underlying
crime and did not check in for his treatment. He violated a restraining order by returning
to the home. He found that his van, which contained his belongings, had been towed
away. Defendant got into an altercation and stabbed his stepfather in the eye, causing
vision loss. His mother also sustained injuries.
        Defendant’s history reflects that his illness has progressed in severity over time.
When a person repeatedly goes on and off medications, the brain usually becomes less
receptive to the medication the next time. Consequently, when a person finds a

                                              9
medication that works, remaining medication compliant is the best predictor of being able
to be rehabilitated, staying in the community without aggression, and being able to live a
normal life. Defendant, on the other hand, repeatedly went off medication. Each time he
was rehospitalized, he has not been as responsive to the medication and has not returned
to the same baseline. Over time defendant has gotten progressively more ill.
       The symptoms of schizophrenia that Dr. Folker has observed in defendant include
talking in response to voices, conversations, or things that are not there, and delusions
about conspiracies against him and about being a member of the mafia. Dr. Folker has
also observed defendant when he becomes more symptomatic and his behavior gets very
disorganized. During those periods, defendant was unable to maintain day-to-day
activities, he urinated in random places in the unit, and he was not able to form a clear
sentence.
       Defendant’s paranoid schizophrenia affects his ability to properly perceive or
process reality. For example, when Dr. Folker talked to defendant prior to trial,
defendant told her that there was already a release from the judge for him to be in the
community, that his attorney had been arrested, and that Dr. Folker was part of the
conspiracy.
       Defendant also exhibits a lack of insight, meaning that when his symptoms
emerge, he is unaware of them, is very defensive and adamant that he is not experiencing
anything, and becomes very irritable and angry when confronted.
       The lack of insight is a factor for risk of violence. More than 50 percent of the
people with schizophrenia have a neurological symptom in which they are unaware that
they are experiencing a symptom of schizophrenia and unaware of what is happening.
When the person becomes symptomatic and is experiencing, for example, a paranoid
delusion that someone is after the person, regardless of what information is provided the
person is insistent, fearful, and trying to defend his or her life against a threat that is not
actually there. It can make the person imminently dangerous, and the person tends to

                                               10
also refuse medication or treatment due to a belief that he or she is not ill and that nothing
is happening.
       In August 2012, defendant met with Dr. Folker and other treatment team members
and appeared increasingly more psychotic. He insisted that he “had multiple degrees in
education, in psychology, and the ideology of all the human beings.” He was defensive,
angry, and had a hostile tone. He could not be redirected and was unaware of the sudden
shift in his symptoms. The incident reflected defendant’s cycle over the years of having
more symptoms, being unaware of the sudden shift, and becoming very irritable and
hostile. The next day, defendant was yelling in the dining hall and referring to the team’s
conspiracy against him. His speech was aggressive in tone, and he was nonresponsive to
the staff’s attempts to redirect him.
       In October 2012, defendant used a hostile and threatening tone with a staff
member regarding use of a vending machine.
       In early December 2012, defendant met with his treating psychiatrist. Defendant
told her that she was his daughter, and he threatened that she would not make it home if
she raised his medication. One week later, defendant became so aggressive that the
hospital police had to be called, and he was given emergency medication to calm down.
       In May 2013, defendant threatened his treating psychiatrist with a physical
confrontation if she changed his medication.
       When defendant’s medication changed within a year prior to trial, he threatened
not to take the medication. As a result, his medications are crushed to powder because it
is more difficult to spit out than a pill.
       Defendant has not been physically violent since his underlying crime in 1983.
Dr. Folker believed that defendant’s verbal threats have not escalated to physical
aggression due to the intervention of hospital staff. In the hospital setting, the idea is
to “interact early, and therapeutically intervene” when someone is getting extremely
disorganized or becoming highly irritable. If defendant was in the community, Dr. Folker

                                              11
believed defendant’s threats would likely escalate to physical violence for the same
reason he was rehospitalized the last time. Dr. Folker described the history of
defendant’s mental illness as having “cycled.” He disengages in treatment, stops taking
his medication, and then begins having symptoms. He experiences a lack of insight, is
very insistent and demanding that he is not ill, and becomes increasingly more ill and
increasingly more dangerous, threatening, and irritable. Each time he was placed in
CONREP, he had to be rehospitalized.
       When defendant first arrived in Dr. Folker’s unit in mid-2012, he was much better
than he is now. He was aware that he had a mental illness, could explain his history and
symptoms, and attended group therapy. Within one or two months, defendant started to
have beliefs that his treatment team, including Dr. Folker, was part of a conspiracy
against him and that he was part of the mafia. His symptoms have further progressed and
within the last six months before trial, defendant has refused to engage in treatment
altogether.
       In preparing someone for release into the community it is important that the
person understands his or her symptoms, is able to recognize the symptoms, and is
willing to let someone else, such as a friend or mental health professional, know about
the symptoms. It shows the person has insight and the ability to help themselves.
Dr. Folker recently tried to have such conversations with defendant but he informed her
that it is not any of her business, and he refuses to meet with the treatment team.
       In Dr. Folker’s opinion, defendant’s paranoid schizophrenia causes him serious
difficulty in controlling his behavior at this time. Defendant is showing symptoms of the
illness and is completely disengaged in treatment. If he is confronted about medications,
treatment, or being mentally ill, he becomes irritable, hostile, and can be threatening. At
this time, defendant does not believe he is ill and does not believe he needs treatment. It
would be “extremely dangerous” if he was in a less secure setting because “he likely
wouldn’t take his medications and wouldn’t follow through with treatment.” If defendant

                                             12
stopped taking his medication, Dr. Folker would expect him to become extremely
delusional and disorganized, his paranoid beliefs would become more severe, and he
would become more aggressive. Dr. Folker would also expect him to become physically
violent if he was off medication and unsupervised. Dr. Folker believes that defendant
would represent a substantial danger of physical harm to others if he was free in the
community, and that he would have serious difficulty controlling that dangerous behavior
if he was free in the community.
                                        Defendant
       Defendant testified that when he was about 20 years old, he was involved in an
automobile accident and thereafter had symptoms of a mental illness. He was
hospitalized on 72-hour holds between 8 and 11 times and was diagnosed with a mental
illness. He believes he was sent to the hospital once because his roommate “set [him]
up.”
       Defendant was ordered to take psychiatric medication but the medication in those
days had bad side effects. He could have gone to a hospital to get something to alleviate
the side effects. Defendant did not take his medication at times because he thought he
needed another type of medication.
       Prior to the underlying offense, defendant had gone to jail for assault. Defendant
testified that he had pushed his mother over a coffee table because she “came at [him]”
and it was his “first reaction.”
       Defendant testified that when he got out of jail, his mother told him there was a
restraining order against him. He left the property but returned a few days later “cold,
wet, hungry, despondent,” and seeking money from his mother, who was his conservator.
Defendant found that his van had been towed away, and that all his property was taken
away and disposed of somewhere else. Defendant testified that his stepfather came at
him, so defendant picked up a kitchen knife and wrestled him to the ground. His
stepfather “was fighting back,” and defendant hit him in the forehead and “accidentally

                                            13
grazed his eye.” Defendant testified that he was in a rage at the time and that he has since
felt remorseful.
       Defendant believes that he and his stepfather were both mentally ill at the time.
Defendant also believes that if he had not been taking prescribed medication, he would
not have acted the same way during the incident. Defendant testified that he has not had
any incidents of violence since the incident.
       Defendant believes he has paranoid schizophrenia. He has “experienced various
stages of what the doctors have said.” When asked what he thought about being
diagnosed with paranoid schizophrenia, defendant testified, “I believe I’m a reclusive
individual.”
       Regarding whether he would continue to seek psychiatric treatment if released
from his commitment, defendant testified, “I would see a doctor at this point and get on a
medication where the doctor would be at least sincere and sympathetic to my needs, I
hope, and give me enough medication to take care of the side effects that I get from
medication . . . .” Without something to combat the side effects, the medication was
“physically debilitating, and very, very aggravating to contend with.”
       Regarding incidents at the hospital involving his verbal aggression, defendant
testified that it is sometimes frustrating at Napa. The other people living there have
various psychiatric illnesses and are “very unremorseful, contentious.” He testified that
he has not aggressively attacked anyone and that he would not aggressively attack
anyone. He has been attacked and has had to defend himself. If he was released from his
commitment he would try to live a peaceful life. Defendant does not consider himself a
substantial danger of harm to anyone.
       When asked why he does not attend group therapy sessions at Napa, defendant
testified: “You do the program, you go through school, you get your diploma, you don’t
want to be tested further. There’s no point in it. Taking away your material, not allowing
you to have the things you’ve had in order to study, and then applying no materials

                                             14
towards the situation, leaving you in the most restrictive secure unit in the hospital, most
available unit to the police, and the police do intervene, but the staff are very aggressive
also there. There’s no police intervention at all. The police come and take the report
later. It’s all the . . . staff and the patients.”
       Defendant testified that he has heard voices that other people cannot hear. It most
recently occurred one hour prior to him testifying at trial. Defendant refused to disclose
at trial what he had heard because he did not want to “compromis[e]” anyone who may
have been talking to him.
       Regarding why he was rehospitalized after being placed in CONREP on various
occasions, defendant testified about medication changes or other reasons. He did not
believe that he was having symptoms of mental illness or that the symptoms were getting
worse prior to some of the rehospitalizations. Regarding rehospitalization in 2004 after
having “trouble” with his roommate “for describing certain governmental factors” to the
roommate, defendant testified that he was not decompensating but rather “trying to come
out of [his] shell, per se.” Regarding his most recent rehospitalization, he “could have
been” experiencing some symptom of his mental illness, as he “may have” picked up the
phone with the belief that someone was going to call. He acknowledged being late for
medications and group sessions. He denied telling anyone that he was a part of the New
York mafia.
       Regarding his statement to his psychiatrist in December 2012, that she was not
going to make it home after they had talked about changing his medication, defendant
testified: “She was obviously being abusive and cruel to me by using the medication that
wouldn’t apply to me to begin with, one that would have given me something like
diabetes in no time flat. . . .” Defendant also testified that everyone has angels and that
“[s]he may have been arrested for doing things to me that she shouldn’t have. She
wouldn’t have made it home that night.” He also referred to a television that is never on,
phone calls being “bugged all the time,” and the psychiatrist acting inappropriately as a

                                                     15
doctor. Regarding his subsequent threat to the psychiatrist in May 2013 about a
confrontation, defendant testified that he meant there could have been further “verbal”
confrontation.
       Defendant testified that he received “psychic verbalization” from the hospital’s
executive director that she had an order from the state Supreme Court that he be released
as of March 8, 2012. Defendant also testified that the judge presiding over the trial had
“psychically” talked to him and had ordered him released. When asked whether he
thought the hospital was ignoring these orders from the judge and from the Supreme
Court and conspiring to keep him in the hospital, defendant testified: “Anybody could
feel that way because the hospital staff ignored supposed phone calls that were possibly
made or supposed to have been made to uphold my release . . . .”
       When asked what he needed to do to control his schizophrenia, defendant testified
“[p]ossibly confront or talk to a doctor about medication.” Defendant testified that if he
could take the psychiatric medicine of his choice, he would take the medication. He got
angry in the past when the doctor wanted to change his medication because it was
“obviously” the medication that he did not need. Defendant testified that the doctor was
not respecting his opinion and his right, and he made reference to the fact that she was
from Germany. When defendant was asked what happens when he does not take his
medication, he testified, “Nothing I know of.”
       Defendant indicated that if he was released from his commitment, he would get his
medication from Valley Medical Center. He testified, “A doctor there . . . has in the past
wanted to see me about getting a license also to possibly smoke marijuana too, . . . if I fit
the requirement that he specifies.” Defendant testified that he has attended treatment
groups that talk about the effect of drugs and alcohol on mental illness symptoms, and
that he has been “[i]gnorantly” told that using marijuana can make his symptoms worse.
       Defendant testified that he did not believe a person can stop taking psychiatric
medication but a person also needs a separate medication to control the side effects.

                                             16
Defendant testified that if he was taking the medication of his choice while he was free in
the community, and a doctor told him that the medication needed to be changed, he
would only take the medication that “agrees” with him along with a separate medication
to control side effects.
       Defendant testified that he would not be interested in group therapy if he was in
the community. He is a “self-taught individual” and would rather “study” and “get
reference from the books [he] read[s].” Defendant testified that he “could” go to an
individual therapist, but he has “never had a positive event with a psychiatrist before.”
He indicated that he is not willing to start group therapy at Napa or to work to try to get
out on CONREP again.
       The trial court took judicial notice that there is no order in the court file from the
Supreme Court ordering defendant’s release, and that the only order from the trial court
was for defendant’s release into CONREP in 2012.
       The Jury’s Finding and the Commitment Order
       On January 29, 2014, the jury found true the petition alleging that defendant has a
mental disease, defect, or disorder that causes him to have serious difficulty controlling
his behavior which results in him representing a substantial danger of physical harm to
others within the meaning of section 1026.5, subdivision (b). That same day, the trial
court filed an order extending defendant’s term of commitment for two years, until
February 11, 2016.
                                       DISCUSSION
       Jury Instruction Regarding Serious Difficulty Controlling Behavior
       The trial court instructed the jury pursuant to CALJIC No. 4.17. Relevant here,
the court instructed the jury that, in order to prove the allegation that defendant represents
a substantial danger of physical harm to others by reason of a mental disease, defect, or
disorder, the People had to prove the following: “1. [Defendant] has a mental disease,
defect or disorder; and [¶] 2. This mental condition causes [defendant] to have serious

                                              17
difficulty controlling his behavior; and [¶] 3. As a result, [defendant] represents a
substantial danger of physical harm to others.” (Italics added.)
         On appeal, defendant contends that the trial court prejudicially erred by failing to
instruct the jury that it must find he had a serious difficulty controlling his dangerous
behavior. (See CALCRIM No. 3453.3) According to defendant, because he “had not
committed any violent action in over 30 years, it is quite possible that a properly
instructed jury might have determined that, while [he] had a serious difficulty controlling
some aspects of his behavior, he did not have a serious difficulty controlling his
dangerous behavior.”
         The Attorney General contends that the instruction was proper because, when read
as a whole, it “adequately conveyed that the uncontrolled behavior must be dangerous.”
The Attorney General further contends that any error was harmless beyond a reasonable
doubt.
         “ ‘In assessing a claim of instructional error, “we must view a challenged portion
‘in the context of the instructions as a whole and the trial record’ to determine ‘ “whether
there is a reasonable likelihood that the jury has applied the challenged instruction in a
way” that violates the Constitution.’ ” [Citation.]’ [Citation.]” (People v. Tully (2012)
54 Cal.4th 952, 1025.)
         “Under section 1026.5, subdivision (b)(1), a person found NGI is subject to
extended commitments, beyond the maximum period of penal confinement, if ‘by reason
of a mental disease, defect, or disorder [the person] represents a substantial danger of
physical harm to others.’ In addition, there must be proof that a person subject to



         3
         CALCRIM No. 3453 provides that the People must prove the following about
the defendant: “1. (He/She) suffers from a mental disease, defect, or disorder; [¶] AND
[¶] 2. As a result of (his/her) mental disease, defect, or disorder, (he/she) now: [¶]
a. Poses a substantial danger of physical harm to others; [¶] AND [¶] b. Has serious
difficulty in controlling (his/her) dangerous behavior.” (Italics added.)

                                               18
commitment has ‘serious difficulty in controlling . . . dangerous behavior.’ [Citations.]”
(People v. Bowers (2009) 169 Cal.App.4th 1442, 1450.)
       This latter requirement regarding serious difficulty controlling dangerous behavior
“follows from the fundamental principle that ‘ “civil commitment for any purpose
constitutes a significant deprivation of liberty that requires due process protection.” ’
[Citations.] The requirement of serious difficulty in controlling dangerous behavior
‘serves “to limit involuntary civil confinement to those who suffer from a volitional
impairment rendering them dangerous beyond their control.” [Citation.] . . . [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.’ ” [Citations.]’ [Citation.]” (People v. Sudar (2007) 158
Cal.App.4th 655, 662-663, italics omitted (Sudar).)
       In this case, the jury was instructed that the People had to prove: “1. [Defendant]
has a mental disease, defect or disorder; and [¶] 2. This mental condition causes
[defendant] to have serious difficulty controlling his behavior; and [¶] 3. As a result,
[defendant] represents a substantial danger of physical harm to others.” Although the
second element did not expressly state that defendant’s serious difficulty in controlling
behavior had to pertain to dangerous behavior, we believe the jury necessarily would
have had to make that finding in view of the third element. Under the third element,
defendant could only “represent[] a substantial danger of physical harm to others” “[a]s a
result” of a serious difficulty controlling his behavior if the uncontrolled behavior at issue
was dangerous behavior. Thus, when the instruction is read as a whole, it adequately
conveys the concept that the jury has to find that defendant has a serious difficulty
controlling his dangerous behavior. Accordingly, we are not persuaded by defendant’s
contention that the instruction misinformed the jury.



                                             19
       Even assuming the instruction erroneously failed to require a finding by the jury
that defendant had serious difficulty controlling dangerous behavior, we determine that
the error is harmless. In Sudar, the trial court, in a proceeding to extend the defendant’s
commitment under section 1026.5, refused to instruct the jury that the prosecution had to
prove that the defendant could not control his dangerous behavior. (Sudar, supra, 158
Cal.App.4th at p. 661.) As a result, the jury was instructed only that it had to find that the
defendant suffered from a mental disease, defect, or disorder, and that as a result the
defendant posed a substantial danger of physical harm to others. (Id. at p. 663.) The
appellate court concluded that the error in failing to give the control instruction was
harmless beyond a reasonable doubt because “ ‘ “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.” ’ ” (Id. at p. 664.)
       In this case, the evidence reflected the following. Defendant has been diagnosed
with paranoid schizophrenia. Schizophrenia is a progressive disease that affects the way
a person thinks and it may include disturbances in perception. Defendant has delusions
that people on his hospital treatment team have an agenda to harm him and are part of a
conspiracy against him. He also has auditory hallucinations that appear to support this
theory.
       Defendant cannot control his delusions or hallucinations. Indeed, at times he has
been unable to even recognize some of his symptoms. Although there are disturbances in
defendant’s thinking and perception, he believes the experiences are real and acts in
accordance with them. For example, defendant has threatened his treating psychiatrist
over medication changes, has engaged in verbal altercations with hospital staff, and has
otherwise been aggressive and hostile toward those who are trying to treat him.
       Medication controls some symptoms. However, defendant’s cycles through
CONREP, which provides a less restrictive environment than the stabilization unit or
even the hospital in general, reflect that defendant disengages in treatment, stops taking

                                                20
his medication, and begins having symptoms. He experiences a lack of insight, is
insistent that he is not ill, and becomes increasingly more ill and increasingly more
dangerous, threatening, and irritable. Defendant’s four placements in CONREP each
resulted in rehospitalization.
       Defendant testified that he still hears voices that others cannot hear. He also
indicated in his testimony that he believes the hospital staff is working against him, that
he will only take the medicine that he chooses, and that he does not believe that anything
happens if he does not take his medicine.
       The evidence clearly established that defendant has a mental disease, defect, or
disorder, that causes defendant serious difficulty controlling his dangerous behavior, that
is, aggressive behavior toward others. Defendant does not realize he is experiencing
disturbances in thinking and perception, and he acts in accordance with his beliefs, which
currently involve a belief that others are not trying to help him, but rather are trying to do
him harm. In acting aggressively based upon his beliefs, defendant poses a substantial
danger of physical harm to others. In view of the evidence regarding the nature of
defendant’s mental illness, along with the evidence of his actions in CONREP and most
recently in a restricted hospital setting, we believe that any error in failing to give an
instruction concerning controlling “dangerous” behavior was harmless beyond a
reasonable doubt because “ ‘ “no rational jury could have failed to find [defendant]
harbored a mental disorder that made it seriously difficult for him to control” ’ ” his
dangerous impulses. (Sudar, supra, 158 Cal.App.4th at p. 664.)
       Jury Instruction Defining Reasonable Doubt
       Prior to opening statements by the parties, the trial court instructed the jury
regarding reasonable doubt as follows: “Reasonable doubt is defined as follows: [¶] It is
not a mere possible doubt, because everything relating to human affairs is open to some
possible or imaginary doubt. It is that state of the case which, after the entire comparison
and consideration of all the evidence, leaves the minds of the jurors in that condition that

                                              21
they cannot say they feel an abiding conviction of the truth of the charge.” (See CALJIC
No. 2.90)
       After the close of evidence and prior to deliberations, the court instructed the jury
that the People had the burden of proving beyond a reasonable doubt the requisite matters
in the case. The court instructed the jury with the following definition of reasonable
doubt pursuant to CALJIC No. 4.17: “Reasonable doubt in these proceedings is defined
as follows: It is not a mere possible doubt, because everything relating to human affairs
is open to some possible or imaginary doubt. It is that state of the case which, after the
entire comparison and consideration of all the evidence, leaves the minds of the jurors in
that condition that the requirements for extended detention have not been proven.”
       On appeal, defendant contends that the trial court erred by giving CALJIC
No. 4.17 because the instruction, in defining reasonable doubt, did not refer to an
“abiding conviction.” (See CALJIC No. 2.90; CALCRIM No. 220.) According to
defendant, the instruction “failed to impress the jury with the necessary level of certitude
required to make the finding in this case.” Defendant contends the instruction was
therefore deficient under the federal constitution, citing Victor v. Nebraska (1994) 511
U.S. 1 (Victor). He argues that the error was structural and mandates reversal.
       The Attorney General contends that the jury was properly instructed in this case
because no particular language is required when instructing on reasonable doubt, the
instruction in this case actually placed a higher burden on the prosecution, and the trial
court had earlier instructed the jury on reasonable doubt by using the “abiding
conviction” language. The Attorney General also argues that even if there was
instructional error, the error was not structural and was harmless whether assessed under
the standard for federal constitutional violations or the standard for state law error.
       “Courts of Appeal have held commitment extension trials under section 1026.5 to
be essentially civil in nature, rather than criminal, because they are directed at
confinement for treatment rather than punishment. [Citation.]” (Hudec v. Superior Court

                                              22
(2015) 60 Cal.4th 815, 819 (Hudec).) Section 1026.5, subdivision (b)(7) provides that
“[t]he person shall be entitled to the rights guaranteed under the federal and State
Constitutions for criminal proceedings.” Pursuant to this provision, the People in a
commitment extension trial have the burden of proving the requisite elements of
section 1026.5, subdivision (b) beyond a reasonable doubt. (Hudec, supra, at p. 828; see
People v. Dobson (2008) 161 Cal.App.4th 1422, 1434-1435.)
       The California Supreme Court has explained that, “[u]nder the due process clauses
of the Fifth and Fourteenth Amendments, the prosecution must prove a defendant’s guilt
of a criminal offense beyond a reasonable doubt, and a trial court must so inform the jury.
[Citations.]” (People v. Aranda (2012) 55 Cal.4th 342, 356 (Aranda).) However, “[t]he
failure to define the term ‘reasonable doubt’ does not amount to federal constitutional
error. As the high court explained in Victor, ‘the Constitution neither prohibits trial
courts from defining reasonable doubt nor requires them to do so as a matter of course.’
(Victor, supra, 511 U.S. at p. 5.)” (Aranda, supra, 55 Cal.4th at p. 374.) In fact, “ ‘so
long as the court instructs the jury on the necessity that the defendant’s guilt be proved
beyond a reasonable doubt, [citation], the [federal] Constitution does not require that any
particular form of words be used in advising the jury of the government’s burden of
proof.’ ” (Aranda, supra, at p. 358, quoting Victor, supra, at p. 5.)
       In Aranda, the California Supreme Court addressed a trial court’s failure to
include the standard reasonable doubt instruction in its predeliberation instructions in a
criminal murder case. The standard reasonable doubt instruction defines reasonable
doubt with reference to an “abiding conviction.” (See CALJIC No. 2.90; CALCRIM
No. 220.) Although the trial court failed to use the standard reasonable doubt instruction,
the trial court did “refer[] to the reasonable doubt standard . . . in its detailed instructions
regarding the jury’s obligation with respect to the elements of murder and to the elements
of all of its lesser included offenses, including voluntary manslaughter.” (Aranda, supra,
55 Cal.4th at p. 359; see id. at p. 351.) The California Supreme Court determined that

                                               23
those instructions “clearly and directly connect[ed] the requisite standard of proof to
those offenses.” (Id. at p. 361; see id. at p. 363 [reasonable doubt principle must be
“specifically linked” to the elements of the charged offense].) Although those
instructions given by the trial court did not provide a definition of reasonable doubt (id.
at p. 374), the California Supreme Court concluded that the omission of the standard
reasonable doubt instruction did not amount to federal constitutional error with regard to
the defendant’s voluntary manslaughter conviction. (Aranda, supra, at pp. 358, 361,
374.)
        In this case, the trial court instructed the jury that the prosecution had “the burden
of proving beyond a reasonable doubt” the requisite elements of section 1026.5,
subdivision (b). In view of this instruction, which “clearly and directly connect[ed] the
requisite standard of proof” to findings that the jury needed to make (Aranda, supra, 55
Cal.4th at p. 361; see id. at p. 363), the omission of the abiding conviction language from
the definition of reasonable doubt in the jury instruction did not amount to federal
constitutional error in this case. (Id. at pp. 358, 361, 374.)
        In reply, defendant contends that the prosecution’s burden of proof “was,
effectively, lowered” by the definition of reasonable doubt provided by the court to the
jury. Defendant’s argument is based on the contention that, in the absence of the abiding
conviction language, the definition of reasonable doubt given by the court gave the jury
“no . . . standard” with respect to the level of proof required.
        We are not persuaded by defendant’s argument. “The failure to define the term
‘reasonable doubt’ does not amount to federal constitutional error.” (Aranda, supra, 55
Cal.4th at p. 374.) “ ‘[S]o long as the court instructs the jury on the necessity that the
defendant’s guilt be proved beyond a reasonable doubt, [citation], the [federal]
Constitution does not require that any particular form of words be used in advising the
jury of the government’s burden of proof.’ ” (Id. at p. 358.) Accordingly, in this case,
the trial court’s use of CALJIC No. 4.17, which defines reasonable doubt without

                                              24
reference to an “abiding conviction,” does not amount to federal constitutional error.
(See Aranda, supra, at pp. 358, 361, 374.)
       Cumulative Error
       Defendant contends that reversal is required under the “cumulative error
standard.” The California Supreme Court has stated that “a series of trial errors, though
independently harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) In this
case, we have rejected defendant’s two claims of error with respect to CALJIC No. 4.17.
We have further determined that, even if the instruction was erroneous in its failure to
expressly state that the jury must find that defendant had a serious difficulty controlling
his dangerous behavior, the error was harmless. In the absence of more than one error,
defendant concedes that there is no cumulative error.
                                      DISPOSITION
       The order for extended commitment filed January 29, 2014, is affirmed.




                                             25
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P. J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.




People v. Bachmeier
H040650
