P. v. Arlington

Filed 10/5/07 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant was charged in 1999 with assault with a deadly weapon ( 245, subd. (a)(1)) and other offenses. Criminal proceedings were suspended and defendant was declared mentally incompetent and committed to Atascadero State Hospital in November 1999. He had previous admissions to Atascadero in 1996 and 1998.

In 2002, defendant pleaded guilty to assault with a deadly weapon. He was sentenced to state prison for a term of three years, but his sentence was deemed served pursuant to section 1170, subdivision (a)(3), based on credit for time served of 1,306 days, including 1,050 days at medical facilities. He was placed on parole in 2002, but was reincarcerated after violating his parole. Defendant was first designated an MDO following a jury trial in July 2006. That commitment expired on June 7, 2006, at the end of defendants parole period. His commitment was extended for an additional year to June 7, 2007, following a bench trial in October 2006. Following the filing of a Wende brief, we affirmed that judgment in a nonpublished opinion. (People v. Arlington (May 31, 2007, A115650).)

In January 2007, pursuant to a request from the California Department of Mental Health, the People filed a petition pursuant to section 2970 to extend defendants involuntary treatment for one year until June 7, 2008. On April 16, 2007, the same trial counsel who represented defendant in the October 2006 proceeding stated his intention to waive jury trial over his clients objection, as he had done in 2006. He stated in relevant part: I dont believe that any purpose would be served by a jury trial in this case. [] I put in the record last time that I [have] tried over two dozen . . . mentally-disordered-offender cases in front of a jury. Ive had cases where my client has walked throughout the courtroom, Ive had cases where my client began babbling in the Court, screaming at the judge, and walking out of the courtroom, and I tried those [cases] in front of a jury without any problems. [Defendant], unfortunately, is the most clearly psychotic individual Ive had the opportunity to defend in this type of situation. [] . . . [] . . . [B]ased upon the record that Im making at this point, I would ask the Court to allow me, over his objection, to waive a jury. The trial court granted counsels request that a jury trial be waived.

At trial, Dr. Emily Rosten, a staff psychiatrist at Atascadero State Hospital, testified as an expert. Dr. Rosten opined that defendant suffered from a severe mental disorder, which she described as schizophrenia, paranoid type, chronic, sub-poly substance dependency and antisocial personality disorder. She further opined that defendants severe mental disorder was not in remission and that he had continued to suffer active symptoms within the last year, including paranoia, delusional ideas, and partially auditory hallucinations.

Dr. Rosten further testified that in her opinion defendant presents a substantial danger of physical harm to others. Among other grounds for her opinion, Dr. Rosten stated that: (1) defendant had a very angry affect and tended to present with paranoid delusions; (2) he continued to believe that Atascadero staff are plotting against him and have infected him with cancer; (3) he had an extreme and long-standing history of assaultive behavior predating his underlying 1999 offense; (4) the 1999 offense was an assault on a total stranger who he struck from behind and knocked to the ground without provocation as she was walking on the street; (5) while a patient at San Francisco General Hospital shortly after the 1999 assault, defendant grabbed a nurse by the hair and punched her in the face; (6) defendant had exhibited a recurring pattern of assaultive behavior while in Department of Corrections custody from 1989 to 1996, and at Atascadero after being committed there in 2006; and (7) defendants consistent denial that he is mentally ill, substance abuse, and noncompliance with medication are all factors associated with a greater likelihood of committing violent crimes. Dr. Rosten further opined that the overt symptoms of defendants mental disorders were not controlled by the psychotropic medication he was taking, and that he would not continue to take his medications outside of a treatment or hospital setting.

Defendant testified on his own behalf. He stated that he would continue to take his medications if released into the community. He denied having assaulted a fellow patient in October 2006, which Dr. Rosten had testified about, and denied assaulting any patient or worker at Atascadero, or threatening physical harm to anyone, or causing property damage. When asked if there was anything else he would like to tell the court, defendant stated: I am going to die soon, I know that. Maybe a couple of years it will be too late. I am in pain. I have all kinds of symptoms of something wrong with me, but they are saying they are doing something here, but they do not want to look inside of my body. [] They are doing everything but looking inside of my body. I blame everything on other things, you know. I have been raped a lot, you know. I have been beaten up a lot. I have been assaulted at hospitals two times . . . .

When asked whether he had cooperated in a 2006 scheduled interview with staff, defendant responded, in part, I really do not have much to say to those people after what has been done to me while in their custody. When asked what the staff had done to make him not want to talk to them, defendant stated: One day I woke up . . . and I noticed my toenail is purple when I wake up in the morning, and then I notice I did not hit my toe, it has been happening all of the time, my toenail and my clothes were on backwards when I woke up. When I went to bed, I was wearing my clothing right and when I woke up my clothes were different . . . . [] . . . [] . . . They raped me in the middle of the night and they talked like craziness to me. They write down a bunch of stuff that is not true. Thats why I do not talk with them.

At the conclusion of the bench trial, the court found beyond a reasonable doubt that all of the statutory conditions for continued treatment under section 2972, subdivision (c) were satisfied, and granted the Peoples petition to extend defendants involuntary treatment.

Defendant filed a timely appeal.

II. DISCUSSION

A. Does Wende Apply to This Appeal?

Recently, the California Supreme Court concluded that the Anders^[[2]]/Wende procedures are not required in appeals from [Lanterman-Petris-Short Act]^[[3]] conservatorship proceedings. The conservatee is not a criminal defendant and the proceedings are civil in nature. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 537.)

The issue of the necessity of a Wende review in appeals from judgments in MDO proceedings has not been resolved. Pending resolution of the issue we will continue to independently review the record in the MDO cases where counsel submits a Wende brief.

We reiterate here our discussion and conclusion in People v. Arlington, supra, A115650, 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. 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, defendant was the most clearly psychotic individual he had defended in this type of case and no purpose would be served by having him appear before a jury. Given counsels concerns about having defendant appear in front of a jury, his waiver of a jury trial was appropriate and valid.

C. 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, he poses a substantial danger of physical harm to others.

Dr. Rosten testified that defendant suffered from chronic paranoid schizophrenia which was not in remission, but continued to manifest in active symptoms including paranoia, delusional ideas, and partially auditory hallucinations. According to Dr. Rosten, he presented a substantial risk of physical harm to others by reason of his severe mental disorder as shown by his angry demeanor and paranoid beliefs, his history and ongoing pattern of assaultive behavior, and the presence of factors often associated with a greater likelihood of violent behavior including defendants denial of mental illness, substance abuse, and noncompliance with medication.

Based on this medical testimony regarding defendant, the trial courts findings and conclusion were 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:

_________________________

Marchiano, P.J.

_________________________

Swager, P.J.

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

[2]Anders v. California (1967) 386 U.S. 738.

[3] Welfare and Institutions Code section 5000 et seq.