P. v. Babine

Filed 4/3/06 P. v. Babine CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.

In 1976, David Evan Babine was found not guilty by reason of insanity on two counts of voluntary manslaughter (Pen. Code,^[1] § 192.1). Babine was committed to the California Department of Mental Health pursuant to section 1026. Babine's commitment had been extended 11 times pursuant to section 1026.5 prior to the present case.

The current extension petition was filed February 8, 2005. The case was called for trial on April 27, 2005. At the time of trial, defense counsel, who had been counsel for Babine on his previous extension, advised the court that Babine waived his right to jury trial. Counsel informed the court she had explained Babine's jury trial rights to him, but that he wished to waive those rights. The court received various reports from court-appointed psychiatrists into evidence and the case was submitted. The court found beyond a reasonable doubt that Babine still suffered from a mental disease, disorder or defect and, by reason of such mental disease, disorder or defect, he represents a substantial danger of physical harm to others. The court ordered Babine's commitment extended pursuant to section 1026.5.

Babine appeals contending the trial court erred in accepting a defense counsel's waiver of his right to jury trial. We find no error and affirm.

DISCUSSION

A person who has been found not guilty of a crime by reason of insanity may be committed to a mental hospital. When the original term of commitment expires, and the person has not recovered his or her sanity, the prosecution may petition the court to extend that commitment for an additional two years. Section 1026.5, subdivisions (b)(1)-(11) establish a procedure for such extensions. The statute provides for the right to jury trial unless waived by both the person and the prosecuting attorney. (§ 1026.5, subd. (b)(4).) The section also provides that the person "shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings." (§ 1026.5, subd. (b)(7).)

The courts have recognized that proceedings to extend commitment under section 1026.5, subdivision (b) are basically civil in nature. Such extended commitment is for the purpose of treatment of the individual in an environment in which the community is protected while efforts are made to cure the underlying mental illness. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485; People v. Angeletakis (1992) 5 Cal.App.4th 963, 968.)

Due to the civil nature of the proceedings and the fact the individual in such cases has already been found to suffer sufficient impairment to be "insane," the courts have held that section 1026.5, subdivision (b), does not require all of the criminal constitutional rights be afforded in such proceedings in the same manner as they would be in a criminal case. (People v. Superior Court (Williams), supra, 233 Cal.App.3d at pp. 484-485, 487-488; People v. Juarez (1986) 184 Cal.App.3d 570, 575.)

Cases interpreting similar civil commitment statutes have also found not all criminal law constitutional protections apply to those proceedings. Specifically, in People v. Otis (1999) 70 Cal.App.4th 1174, 1176-1177, the court found counsel could waive a client's right to jury trial under the mentally disordered offender (MDO) statute. (See also People v. Montoya (2001) 86 Cal.App.4th 825, 829.) A similar result was reached in sexually violent predator commitments (SVP) in People v. Rowell (2005) 133 Cal.App.4th 447, 451, 454.

The Second District Court of Appeal considered whether section 1026.5, subdivision (b) required the criminal law constitutional protection of personal waiver of the jury trial right in extension proceedings. In People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1159, the court dealt with a case in which defense counsel waived jury trial over the client's objection. The court reviewed the statute and similar civil commitment systems. The court in Powell concluded that section 1026.5, subdivision (b) does not require personal waiver of the jury right under this statute. (Powell, supra, at p. 1158.) As the court observed, common sense indicates that the person in each instance will have already been adjudicated as mentally ill to the point of being found not guilty by reason of insanity. Under such conditions the court reasoned that the tactical decision to seek or waive jury trial should be left to trial counsel and that personal waiver by the client is not necessary. (Ibid.)

Babine argues Powell, supra, 114 Cal.App.4th 1153 was incorrectly decided. He urges us to take a different view of the statute. We have reviewed the statutory scheme as well as the comparable statutes. We are satisfied the court in Powell correctly analyzed the statute and relevant case law. We agree with the conclusion of the Second District that the jury trial right in proceedings under section 1026.5, subdivision (b) can be waived by counsel and that personal waiver by the client is not necessary. The client remains protected by the right to competent counsel and the duty of the trial court to assure a fair trial. Interpreting the statute to require a person, such as Babine, who has been committed as "criminally insane" and has already been recommitted 11 times, to personally waive the right to jury trial simply does not make sense. We agree that the Legislature did not require such personal waiver.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.

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