APPEAL from a judgment of the Superior Court of San Bernardino County, Joan M. Borba, Judge. Appeal dismissed. (Super. Ct. No. FELSS904217)
The opinion of the court was delivered by: O'rourke, J.
CERTIFIED FOR PUBLICATION
Defendant Brandon Hartshorn appeals from an order granting a petition to extend his commitment pursuant to Welfare and Institutions Code section 6500, following a jury finding he is a "mentally retarded person, is a danger to himself or others, and has serious difficulty controlling his dangerous behavior because of his mental retardation . . . ."*fn1 Raising equal protection grounds, Hartshorn contends the trial court prejudicially erred by failing to instruct the jury that he posed a substantial risk of serious physical harm to himself or others to support a true finding under section 6500.
The People argue Hartshorn's equal protection claims are forfeited and will be moot by the time we consider this appeal. They otherwise concede Hartshorn's claim of instructional error, accepting the proposition that section 6500's requirement that the person be a "danger to himself, or herself, or others" means the trial court should have instructed the jury he had "the potential for infliction of substantial physical harm upon the respondent himself or upon others." We agree Hartshorn forfeited his equal protection claim. While technically his remaining claims of instructional error are moot and the appeal is dismissed on that ground, we shall nevertheless hold that a finding a person is a danger to himself or others as a basis for involuntary civil commitment under section 6500 requires that the danger involve the potential for substantial physical harm, and the trial court should have instructed the jury accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2009, the San Bernardino County District Attorney filed a petition to commit Hartshorn as a mentally retarded person under section 6500. The petition alleged Hartshorn was a danger to himself and others as defined by that statute.
The matter proceeded to a jury trial, which took place in June 2010. The People presented Annabel Lee Fields, a staff psychologist at the Porterville Developmental Center (Porterville), who testified Hartshorn had received a score of 63 on an IQ test, falling in the mild range of retardation. Fields recounted that Hartshorn became a ward of the state at age 10 and had exhibited instances of sexually inappropriate behavior at each of his placements, including an instance where he orally copulated a fourteen-year-old son of a foster parent. She testified Hartshorn had deficits in the area of social and interpersonal skills, where he exhibited problems in masturbating in public settings or exposing himself, and staring at Porterville female staff members while masturbating. She stated there were two incidents in January and May 2009 in which Hartshorn became angry, hit and kicked walls and furniture or threw keys at a staff member, so that staff placed him in physical restraints to calm him down so he would not continue to engage in the behaviors and harm himself. Dr. Fields testified Hartshorn had engaged in approximately 25 to 40 instances of exposure or masturbation in public. She diagnosed him with paraphilia "NOS" (not otherwise specified) based on his behaviors with female staff members, and depressive disorder NOS.
Dr. Fields testified she had concluded Hartshorn was a danger to himself or others based on her concern that if Hartshorn were to continue to engage in his masturbatory behaviors in the community, he would be arrested and jailed. Though she had never seen him physically injured, she stated Hartshorn was assaulted by three other peers in 2006.
Other witnesses recounted Hartshorn's behavior in masturbating and then getting angry upon being counseled concerning his inappropriate behavior: yelling, hitting walls or punching the chair or couch in which he was seated. On one occasion Hartshorn threw a small bathroom trashcan across the room. At times when confronted with the impropriety of his behavior, Hartshorn called staff members a bitch or slut, or accused them of lying.
In June and July 2009, Hartshorn was caught engaged in orally copulating other patients. Both times after being separated and advised to act appropriately, Hartshorn remained calm or did not acknowledge anything had happened.
Gerardo Casteneda, a case manager at the Inland Regional Center, testified he believed Hartshorn had serious difficulty controlling dangerous behavior in that he could not control his sexual behavior and aggressive behavior. He opined Hartshorn's inappropriate masturbation in public areas would cause danger to himself if placed outside Porterville, noting Hartshorn had been burned on the neck with a cigarette by three peers after he had masturbated in front of a particular staff member. According to Casteneda, Hartshorn failed to appreciate the consequences of his behavior and was "bound to get in trouble" outside in the community by someone who did not like his actions. Casteneda believed there was a clear danger someone could hurt Hartshorn physically for his masturbation in public.
The court instructed the jury in part as follows: "The petition alleges that respondent, Brandon Hartshorn: 1) is mentally retarded. Mentally retarded means that significant subaverage intellectual functioning [sic]; an IQ of approximately 70 or below. Concurrent deficits or impairments or significant adaptive functioning and the onset before the age of 18.
"2) Is dangerous to himself or others. Dangerous to himself or others means there is potential for Respondent to cause infliction or substantial harm [sic] to himself or others.
"And 3) Has serious difficulty controlling his dangerous behavior because of mental retardation. Serious difficulty controlling his dangerous behavior because of his mental retardation means his mental retardation is a substantial factor in ...