P. v. Arlington

Filed 5/31/07 P. v. Arlington CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Michael J. Arlington is a state prisoner who was involuntarily committed as a mentally disordered offender (MDO) pursuant to Penal Code section 2960.[1] He appeals from a judgment after a bench trial extending his commitment to the state mental hospital pursuant to section 2970. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal. 4th 106; People v. Wende (1979) 25 Cal.3d 436 (Wende); see Smith v. Robbins (2000) 528 U.S. 259.) Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

I. BACKGROUND

In 2002, defendant was convicted of assault with a deadly weapon ( 245, subd. (a)(1)) and was sentenced to three years in state prison. Following the conclusion of a jury trial on approximately July 3, 2006, defendant was first designated an MDO pursuant to section 2960. That commitment expired on June 7, 2006, at the end of his parole period. Although a petition to extend the commitment beyond the parole period pursuant to section 2970 was filed on April 19, 2006, the trial was not heard until October 20, 2006. On October 4, while defendants trial was trailing another matter, his counsel stated, I have made arguments why that matter [referring to the other case] should go first because Ive never waived time in that and the commitments expires. He added, In this particular case, though, we did agree to have the trial set passed [sic] the expiration of the commitment because [defendant] was litigating the [section] 2960 commitment. Counsel agreed to let defendants case trail day by day until the court completed the other matter.

On October 18, defendant made a motion to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) He indicated to the court, They changed my teeth already while I was in the institution while I was sleeping. [] I know there is a lot of stuff in the news. I understand they say I caused HIV, you know. I dont see this as true. I am not old enough to have done it anyway. I believe I can prove that this aint true. Defendant continued, No. I want to go pro per. I dont want no attorney stepping on me where I cant talk. Sometimes, I cant talk. I got something in my head. I want it out of my head. There is a radio or something. There is people on the TV and community that can hear me right now. I am plugged into somebody. Its been like that all my life since I was a little boy, but I didnt know about it. The trial court denied defendants request to represent himself explaining, I am going to deny your request to represent yourself because of the complexity of the issues involved in your case. And I can tell by listening to what you have to say that you would not handle them appropriately.

The trial court next attempted unsuccessfully to take a personal waiver of jury trial. Defendants counsel told the court that he had decided a long time ago that he would not waive jury over his clients objections in these cases. However, in this case, it is quite obvious that [defendant] is grossly psychotic. [] . . . [] There is no question about that. He is hearing voices. This is all consistent with the records I have. I had hoped that he would be responding to some of the medication he was getting. I did have him evaluated. I had the records looked at. He is actually worse now, I believe, than he was two months ago. [] In any event, I cant see any purpose in allowing a grossly psychotic person who believes he iswho says he is hearing voices, who believes he is being manipulated by these voices, as the Court has heard, to appear in front of a jury.

On October 20, defendants counsel did in fact waive jury, stating that he had spoken with the attorney who had represented defendant at the section 2960 trial and the attorney said defendant was not able . . . to comport his behavior in a manner, shall we say, appropriate for the courtroom. Counsel related that defendants prior attorney indicated that Mr. Arlington appears, because of his mental defect, at least alleged in the papers has uncontrolled periods of violence. Counsel explained to the court that it would be inappropriate for him to argue to a jury that defendant did not represent a substantial danger, while at the same time the jury would observe defendant handcuffed sitting away from counsel.

At trial, Joshua Deane, defendants treating psychiatrist at Atascadero State Hospital, testified that defendant has a diagnosis of paranoid schizophrenia. Specifically, he has ongoing delusions. I can go into specifics. Auditory hallucinations, or commonly known as hearing voices, bizarre behaviors, bizarre affect, and grosslyI would say grossly impaired insight and judgment. According to Dr. Deane, defendant has exhibited long-standing aggressive behavior, not only toward others, towards himself as well. Dr. Deane testified that at age 12, defendant attempted to kill his father for no apparent reason. In the underlying offense, he struck a female stranger walking down the street without any pre-warning, any justification whatsoever. Knock her down to the ground. At one time he mentioned that My family was being killed.  When the police arrested defendant, Dr. Deane believed that he struck down the squad car window and jump off [sic] the window of the car. As recently as October 8, defendant had punched another patient.

Dr. Deane opined that defendant was not in remission and could not be kept in remission without treatment. The doctor explained that defendant continued to exhibit behavior that could only be characterized as dangerous to others.

At the conclusion of the bench trial, the court granted the petition to extend the commitment.

Defendant filed a timely appeal.

II. DISCUSSION

A. Does Wende Apply to This Appeal?

For reasons we explain, we conclude that mentally disordered offenders are similarly situated to criminal defendants and as a result, the Wende procedures do apply to them. As an initial matter, we recognize that a hearing under the MDO Act is a postconviction proceeding that is civil in nature. The statute requires first a hearing before the Board of Prison Terms on whether the prisoner has a severe mental disorder. ( 2962, 2966.) If the prisoner disagrees with the boards determination, the prisoner may request a hearing in superior court. The hearing shall be a civil hearing . . . . ( 2966, subd. (b).) A petition for a one-year extension is made by the district attorney to the superior court. ( 2970.) Again, the hearing is a civil proceeding. ( 2972, subd. (a).)

Nevertheless, the Legislature has recognized that a proceeding on an MDO has the characteristics of a criminal proceeding. Under the MDO Act, the prisoner has the right to appointed counsel and the right to a jury trial; the rules of criminal discovery apply; the district attorney must prove the allegations of the petition beyond a reasonable doubt; and the jurys verdict must be unanimous. ( 2972, subds. (a) & (b).) As a result, a prisoner committed for treatment as an MDO stands on parallel footing with a defendant in a criminal proceeding and must be afforded the same due process rights and protections, including the right to the assistance of appointed counsel on appeal and the right to effective representation. Because the procedures established by Wende are designed to ensure effective representation by appointed counsel on appeal, we hold that the procedures do apply to the present appeal.

B. Denial of Faretta Motion

In criminal proceedings, a defendant has the constitutional right to represent him-or herself. (Faretta, supra, 422 U.S. 806.) Unlike criminal proceedings, MDO proceedings are not punitive in nature and therefore there is no constitutional right to self-representation. However, as the MDO commitment statutes give defendants the right to appointed counsel, a defendant also could refuse counsel and represent him- or herself. The right only being statutory, any denial of a request to represent oneself is governed by due process principles and the decision is reviewed for an abuse of discretion. (People v. Williams (2003) 110 Cal.App.4th 1577, 1588) Here, the trial court did not violate defendants due process rights and its decision was not an abuse of discretion. Defendant was allowed to make a request for self-representation and a hearing was conducted. The court listened to defendant, and taking into account his comments properly denied his request because of the complexity of the case and his inability to handle the issues.

C. Waiver of Jury Trial

In an MDO proceeding, defense counsel may waive jury trial without defendants consent. (People v. Otis (1999) 70 Cal.App.4th 1174, 11761177.) As defendants counsel in this case explained to the court, he believed that defendant was grossly psychotic, was hearing voices, and was not responding to medication. Additionally, defendant had been evaluated and was actually doing worse than two months earlier. Given counsels serious concerns with having defendant appear in front of a jury, counsels waiver of a jury trial was valid.

D. Substantial Evidence

Substantial evidence supports the trial courts finding that pursuant to section 2970, defendant has a severe mental disorder, the disorder is not in remission, or cannot be kept in remission if his treatment is not continued, and that by reason of his mental disorder, represents a substantial danger of physical harm to others. Defendants treating psychiatrist, Dr. Deane, testified that defendant has paranoid schizophrenia with ongoing delusions and auditory hallucinations. Dr. Deane emphasized that defendant exhibited bizarre behaviors and had grossly impaired insight and judgment. He had also displayed longstanding aggressive behavior toward others. Dr. Deane concluded that defendant was not in remission, could not be kept in remission without treatment, and represented a substantial danger to others. Based on this medical testimony regarding defendant, the trial courts finding was supported by the evidence.

III. CONCLUSION

We have reviewed the entire record before us. Defendant was represented by competent counsel at all stages of the proceedings. Counsel advised defendant that a Wende brief would be filed and that defendant had 30 days to file a supplemental brief. There were no errors during the proceedings. There are no issues that require further briefing.

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

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Swager, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.