P. v. Bartz
Filed 6/7/13 P. v. Bartz CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES BARTZ,
Defendant and
Appellant.
H037331
(Santa Clara
County
Super. Ct. No. 211692)
I. Statement
of the Case
Defendant
James Bartz appeals from an order converting his involuntary commitment as a
(MDO) on parole to a post-parole, civil commitment and then extending it. (Pen. Code, §§ 2962, 2970, 2972.)
advise him of his right to a jury trial,
accepting counsel’s jury waiver, and conducting a
We affirm
the extension order.
II. Background
and Procedural History
On November 3, 2006, a man was standing
on his property when defendant attacked him with either a pipe or a wooden
stake, kicked him in the head, clawed his eyes, punched him, and bit his
finger. At the time, defendant had been
off his psychotropic medication for a month and was suffering from the
trespassing and he needed to protect his property. After the attack, defendant asked the man if
he wanted to go have a drink but then ran off.
In February
2006, defendant was convicted of assault
with a deadly weapon (§ 245, subd. (a)(1)) and sent to prison. He was released on parole in January 2008,
but in April 2008, his parole was revoked after his arrest for public
drunkenness. In June 2008, defendant was
sent to San Quentin and then transferred to Atascadero
State Hospital (ASH),
where he was certified as an MDO. (§
2962.)
In August
2010, defendant was moved to a less structured, state transitional residential
program called Northstar, and in November 2010, he was released for outpatient
treatment to Harper Medical Group (Harper) under the South Bay Conditional
Release program. However, in December
2010, after only a few weeks at Harper, defendant packed a bag and
absconded. An arrest warrant was issued.
On February 16, 2011, the Santa Clara
County District Attorney filed a petition to convert and extend defendant’s MDO
commitment. In July 2011, defendant was
arrested. At a pretrial hearing on August 19, 2011, counsel appeared and
waived a jury trial. On August 31, 2011, after a bench trial,
the court sustained the petition, converted defendant’s commitment, and
extended it until September 11, 2012.
III. The
Extension Trial
Kristine
Campbell, MFT, testified as an expert in the diagnosis and treatment of
assessment. She evaluated defendant
at ASH and was his case supervisor at Harper. She said that defendant was diagnosed with
schizo-affective disorder, bi-polar type, polysubstance dependence, and
antisocial personality disorder. She
testified that defendant had a long criminal history involving alcohol and drug
related offenses, domestic violence, robbery, burglary, and assault.
Ms.
Campbell met with defendant regularly in groups and for individual therapy
until he absconded. She testified that
he had been long history of psychosis was still “struggling with reality
testing.†At one point, he told her that
without the support at Harper, he would likely start using drugs and alcohol
again, reoffend, and end up incarcerated.
He also admitted being an alcoholic and drug addict.
Ms.
Campbell recommended that defendant’s commitment be extended. She noted that he had an extensive history of
noncompliance with treatment and medication. She opined that without
supervision and medication, defendant’s delusions would return. They included a
belief that he was Satan, that he owned everything, and that people were following
him. Ms. Campbell did not know whether
defendant was currently taking his medication to control his symptoms. However, she opined that it was unlikely that
his mental condition was in remission, given how long defendant had been
psychotic—10 years—the period of time that he had not been in a structured
program, the likelihood that he had not taken medication during the seven
months after he had absconded. She
testified that defendant needed a
significant period of time to restabilize with his medication before his
condition could be considered in remission. She also believed that he would benefit from
mental health treatment. She opined that
at present, he currently posed a risk to others if released.
Defendant
admitted that he had not been taking any medication, but he denied that he
needed it. He did not recall telling Ms.
Campbell that without supervision, he would relapse and be reincarcerated. Defendant said he knew that absconding
violated parole but he left Harper anyway.
He explained that he was not supposed to drink but knew that he would
and left to avoid having to report. He
said that his pattern is to drink, abscond, and get arrested until his parole
period expires.
Defendant
denied being an alcoholic but acknowledged having a number of alcohol related
convictions and using every kind of drug available on the street.
Defendant
admitted attacking the victim and conceded that the man was not trespassing on
defendant’s property. However, he was
not sure the man was on his own property, adding that “there’s a little more to
the story than that . . . .â€
Defendant
denied ever believing that he was Satan but admitted having his family look
into the fact that the number “0666†was on his birth certificate. He also admitted to being concerned at times
about people following him.
Defendant
denied suffering from schizo-affective disorder or ever having delusions or
hallucinations. He said that in prison,
he heard how it was possible to feign mental illness in order to get
medication, his own cell, and social security.
However, defendant admitted having antisocial personality disorder,
which he described as being more logical than emotional. “It means I’m not led by my emotions, which
to me is a benefit, you know. Say, you
know, I have a love for my family and my family runs a business or doing
something illegal, you know, and I know they’re wrong, but because I love my
family it’s okay if they did that, you know.
Do you understand?†He continued,
“I’m not led by it. The same thing with
maybe a relationship between a man and a woman and they fall in love, and
because of that it turns to hate and then somebody ends up dead. But—so I don’t really have a love for my
family—this may sound negative, but I don’t have really a love for anything
except for, you know, my survival, things that I need to do.â€
Defendant
explained that once he left Harper, he and a girlfriend went to Santa
Cruz and then to San Leandro, where he was
arrested. He admitted that after he left
Harper, he drank alcohol and smoked marijuana even though he knew he was
violating parole.
IV. Mootness
The
extension period of defendant’s commitment has expired, and therefore the
propriety of the court’s order is now moot.
Thus, it may not appear necessary to address defendant’s
claims of error concerning the jury advisement, lack of personal waiver, and
bench trial. However, “we review
the merits of appeals from timely filed petitions that are rendered technically
moot during the pending of the appeal, . . . because the
appellant is subject to recertification as an MDO, and the issues are otherwise
likely to evade review due to the time constraints of MDO commitments. [Citations.]†(People v. Merfield (2007) 147
Cal.App.4th 1071, 1074.)
V. The
MDO Commitment Scheme and Extension Procedure
When
persons who have been convicted of a violent crime related to their mental
disorders are eligible for release but currently pose a danger of harm to
others, the Mentally Disordered Offender Act (the Act) (§ 2960 et seq.) permits
their involuntary commitment to a state hospital for treatment until their
disorders can be kept in remission. (In
re Qawi (2004) 32 Cal.4th 1, 9 (Qawi); see Lopez v. Superior
Court (2010) 50 Cal.4th 1055, 1061 (Lopez) [the MDO Act has the dual
purpose of protecting the public while treating severely mentally ill
offenders].)
The Act
provides treatment at three stages of commitment: as a condition of parole, in conjunction with
the extension of parole, and following release from parole. (Lopez, supra, 50 Cal.4th at p.
1061.) “Sections 2970 and 2972 govern
the third and final commitment phase, once parole is terminated. If continued treatment is sought, the
district attorney must file a petition in the superior court alleging that the
individual suffers from a severe mental disorder that is not in remission, and
that he or she poses a substantial risk of harm. (§ 2970.)â€
(Lopez, supra, 50 Cal.4th at p. 1063.)
Section
2972, subdivision (a) provides, among other things, that when a petition is
filed, the court “shall advise the person . . . of the
right to a jury trialâ€; and “the trial shall be by jury unless waived by both
the person and the district attorney.â€
To obtain an extension, the district attorney must prove, and the trier
of fact must find beyond a reasonable doubt, that (1) the person continues to
have a severe mental disorder; (2) the person’s mental disorder is not in
remission or cannot be kept in remission without treatment; and (3) the person
continues to represent a substantial danger of physical harm to others. (Lopez, supra, 50 Cal.4th at p. 1063; People
v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399; § 2972, subds. (c), (e).)
VI. Discussion
Defendant
contends that the court erroneously denied him the right to a jury trial
because it failed to give the required jury advisement, failed to obtain an
express, personal jury waiver from him, and instead accepted counsel’s waiver.
A. Failure to Advise
Section
2972, subdivision (a) requires the court to “advise the person of his or her
right . . . to a jury trial.†This language imposes a mandatory duty on the
court.
Court (2011) 51 Cal.4th 538, 542 [“ ‘shall’ †typically construed as
mandatory; e.g., People v. Tindall (2000) 24 Cal.4th 767, 772.)
It is
undisputed that the court did not directly advise defendant on the record
before trial. The record reveals that
counsel waived defendant’s presence at a number of pretrial status hearings
before and after defendant’s arrest.
Defendant did not make his first appearance until March 17, the day of
the bench trial. Nevertheless, the
court’s failure to give the required advisement does not compel reversal.
Before
any judgment can be reversed for error under state law, it must appear that the
error complained of “has resulted in a miscarriage
of justice.†(Cal. Const., art. VI,
§ 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means that reversal is justified “when
the court, ‘after an examination of the entire cause, including the evidence,’
is of the ‘opinion’ that it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the error.†(People v. Watson (1956) 46 Cal.2d 818,
836 (Watson).)
It is beyond dispute that counsel was aware of defendant’s
right to a jury trial. Where, as here,
counsel waives an MDO’s presence at pretrial hearings, effectively preventing a
direct judicial advisement before trial, the court may reasonably expect
counsel to discuss all pertinent matters that will arise or that have arisen in
pretrial hearings, including the right to a jury trial and whether to have
one. Indeed, “[l]ike all lawyers,
the court-appointed attorney is obligated to keep her client fully informed
about the proceedings at hand, to advise the client of his rights, and
to vigorously advocate on his behalf.
[Citations.] The attorney must
also refrain from any act or representation that misleads the court. (Bus. & Prof.Code, § 6068, subd. (d);
Rules Prof. Conduct, rule 5–200(B).)†(
151-152, italics added.) Moreover,
absent a showing to the contrary, “[a] reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.â€
(People v. Carter (2003) 30 Cal.4th 1166, 1211; Conservatorship
of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship
of Mary K. (1991) 234 Cal.App.3d 265, 272
[where no evidence to the contrary, court may presume counsel discussed jury
waiver with client before waiving on client’s behalf].)
Under
the circumstances, and in the absence of evidence to the contrary, we may
presume that counsel discussed the jury issue with defendant.
Moreover,
on appeal, the appellant bears the burden to affirmatively establish error
and then demonstrate that it resulted in a miscarriage of justice that requires
reversal. (Cucinella v. Weston
Biscuit Co. (1954) 42 Cal.2d 71, 82; Freeman v. Sullivant (2011) 192
Cal.App.4th 523, 528; Paterno v. State of California (1999) 74
Cal.App.4th 68, 105-106; Thompson v. Thames (1997) 57 Cal.App.4th 1296,
1308; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409
[presumption of correctness; “error must be affirmatively shownâ€].)
Here, the record does not suggest that defendant was
unaware that counsel intended to waive a jury and had done so or that counsel
acted without defendant’s knowledge or consent or that defendant wanted a jury
trial and objected (or would have objected) to counsel’s waiver. Any such inferences would be pure speculation
on our part.
title="">[4]
Last, we
note that a single opinion by a psychiatric expert that the defendant is
currently dangerous due to a mental disorder can constitute substantial
evidence to support the extension of a commitment. (People v. Zapisek (2007) 147
Cal.App.4th 1151, 1165; People v. Bowers (2006) 145 Cal.App.4th
870, 879.)
The
testimony of Ms. Campbell constitutes overwhelming evidence to support the
court’s finding that defendant posed a risk of harm due to mental disorders
that were not in remission. She
testified that defendant suffered from schizo-affective disorder, polysubstance
dependence, and antisocial personality disorder and had delusions like the one
that led to his commitment offense.
Defendant denied having that disorder but admitted having anti-personality
disorder, but understood it to mean putting one’s survival first and thinking
logically rather than emotionally.
Although defendant denied having delusions or hallucinations, he
admitted that at times he thought people were following him.
Given
defendant’s long criminal history of alcohol and drug related violent offenses,
psychosis, and lack of compliance with treatment, Ms. Campbell considered it
likely that defendant would not take medication if released, without it, his
psychotic delusions were likely to resurface and render him dangerous. Indeed, defendant admitted to her, in
essence, that he would relapse into substance abuse without supervision, and in
fact, after absconding he did.
Other than
his own testimony, defendant offered no evidence that contradicted or
undermined Ms. Campbell’s expert testimony.
Under the
circumstances, we do not find it reasonably possible, let alone reasonably
probable, that defendant would have obtained a more favorable result had the
court ordered his presence before trial to expressly advise him about the right
to a jury trial. (Watson, supra,
46 Cal.2d at p. 836; cf. People v.
McClellan (1993) 6 Cal.4th 367, 377, 378 [failure to advise about sex
registration requirement harmless].)
B. Failure to obtain Personal Waiver
Defendant
claims that the Act requires the court to conduct a jury trial unless it
obtains the MDO’s personal waiver.
Recently, in People v. Blackburn
(2013) 156 Cal.App.4th 809 [156 Cal.Rptr.3d 106, 112-115] (Blackburn), we addressed and rejected this claim.
We noted
that the claim previously had been rejected in People v. Otis (1999) 70
Cal.App.4th 1174 (Otis) and People v.
Montoya (2001) 86 Cal.App.4th 825, 829 (Montoya). Those courts noted that the statutory
language did not expressly require a personal waiver; nor did it clearly
preclude a waiver by counsel. The courts
also declined to infer such a requirement because some MDOs may not be
sufficiently competent to determine whether a bench or jury trial is in his or
her best interests. Under those
circumstances, the MDO must act through counsel, and counsel must have
authority to act, even over the objection of such an MDO. (Otis,
supra, 70 Cal.App.4th at pp.
1176-1177; Montoya,
1153, 1157-1159 (Powell) [relying on
language in section 1026.5 required personal jury waiver].)
In
___ [156 Cal.Rptr.3d at p. 113].) In
addition, we opined that interpreting the statutory language to require a
personal waiver resulted in consequences that were illogical and
anomalous. (Ibid.) We noted that for a
variety of reasons, MDOs often do not appear in court until the day of
trial. We considered it was illogical to
prohibit counsel from waiving the statutory
right to a jury trial at the MDO’s direction or with the MDO’s express
consent and instead require the court to order the MDO’s presence at some
pretrial hearing just to secure a personal waiver because counsel can waive a
client’s more fundamental constitutional right to a jury trial in civil
actions. (Id. at p.114; see (Cal. Const., art. I, § 16 [right to jury trial];
Code of Civ. Proc, § 631 [prescribing types of waiver]; Zurich General Acc.
& Liability Ins. Co. v. Kinsler (1938) 12 Cal.2d 98, 105 (
overruled on other grounds in Fracasse v. Brent (1972) 6 Cal.3d 784,
792; Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144
Cal.App.4th 504, 510; Conservatorship of Maldonado (1985) 173 Cal.App.3d
144, 148; see Code Civ. Proc., § 283, subd. (1) [counsel has authority to bind
client in any of the steps of an action].)
We further
observed that some MDO may be so delusional or otherwise affected by their
mental disorders that they lack the capacity to know what is in their own best
interests and make a rational decision.
Under such circumstances, an MDO may not be able to knowingly and
intelligently waive the right to a jury trial.
We opined that “[i]f an MDO is incompetent, and in a particular case
counsel believes that a jury waiver is in the MDO’s best interests, requiring
that MDO’s personal waiver would undermine counsel’s ability to protect the
MDO’s interests and mechanically require the court to conduct a jury trial or
give the incompetent defendant veto power over counsel’s informed
determination.†(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 113].)
In short,
we found that “preventing counsel from waiving a jury at the NGI defendant’s
direction or with the MDO’s consent and preventing counsel from doing so on
behalf of an incompetent MDO are anomalous consequences that would flow from
interpreting the waiver provision literally and restrictively to require a
personal waiver.†(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p.
113].) For that reason, we considered it
unreasonable to infer such a restrictive and exclusive legislative intent from the statutory language. (Ibid.)
Defendant
urges us not to follow Otis—and
presumably Montoya—because
Otis is factually distinguishable. He notes that the MDO in Otis was
delusional and thus not sufficiently competent to make a rational
decision. Here, on the other hand, there
was no evidence or testimony suggesting that he was not capable of rationally
deciding between a bench and jury trial.
We
acknowledge this distinction. However,
it makes no difference. The
waiver not because the MDO in that particular case was delusional but because
in general, the requirement would prevent counsel from protecting the interests
of MDOs who are not sufficiently competent to know what was in their own best
interests. That the MDO in that case was
delusional is what allowed the court to uphold counsel’s waiver over the
MDO’s objection.
Defendant
also claims that Otis erroneously presumes that all MDOs are not
sufficiently competent to decide between a bench and jury trial. We agree that MDOs should not be
considered categorically incompetent to control the decision of whether to have
a jury trial. However,
presumption.
In
Cal.App.4th at 1174, counsel waived a jury trial. The defendant objected and requested a jury
trial, but at the time, he was experiencing delusions that he was being
sexually assaulted by invisible police.
The court denied the request. On
appeal the defendant claimed that the Act required his personal waiver. As noted, the court disagreed and upheld the
waiver over the defendant’s objection.
In doing so, the court further explained that the Act “concerns persons
who have been found by the Board of Prison Terms to be mentally
disordered. The Legislature must have
contemplated that many persons, such as
Otis, might not be sufficiently competent to determine their own best
interests. There is no reason to believe
the Legislature intended to leave the decision on whether trial should be
before the court or a jury in the hands of such a person.†(
In Blackburn, we
understood Otis in light of its facts and the issues raised. (See Ginns v. Savage (1964) 61 Cal.2d
520, 524, fn. 2 [“[l]anguage used in any opinion is of course to be understood
in the light of the facts and the issue then before the courtâ€].) Given the mental state of the defendant in
MDO appears to be incapable of determining whether a bench or jury trial is in
his or her best interests, the MDO must act through counsel, and counsel has
exclusive authority to decide even over the MDO’s objection.†(Blackburn,
supra, 152 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 122].) We concluded that it could not be read more
broadly to hold that counsel controls the jury issue regardless of whether the
MDO is competent to understand the advisement and make a reasoned
decision. (Ibid.)
Failure to Conduct Jury Trial
Given our
analysis, it is clear that the court did not err in failing to obtain an
express, personal waiver from defendant himself. Nevertheless, the propriety of the bench
trial depends on whether counsel’s waiver was valid. However, on the record before us, defendant
cannot satisfy his burden to establish that counsel’s waiver was invalid or
that the court erred in accepting it.
As noted,
we may presume that counsel discussed the jury issue with defendant. Moreover, it is mere speculation to find that
defendant was unaware that counsel intended to waive a jury and had done so or
that counsel acted without defendant’s knowledge or consent or that defendant
wanted a jury trial and objected (or would have objected) to counsel’s waiver.
Moreover,
even if defendant could show that counsel acted without his knowledge and
consent or over his objection, he could not establish prejudice. In this regard, it is settled that the
erroneous denial of a statutory right to a jury trial is subject to
harmless-error review under the Watson test which asks whether it is
reasonably probable the result would have been more favorable had there been a
jury trial. (People v. Epps
(2001) 25 Cal.4th 19, 29.)
Our Watson
analysis concerning the court’s failure to advise applies with equal force to
the alleged erroneous denial of a jury trial.
Given Ms. Campbell’s and defendant’s testimony, we do not consider it
reasonably possible, let alone reasonably probable, that a jury would have
returned a verdict more favorable than the court’s verdict. (People v. Watson, supra, 46 Cal.2d at
p. 836; e.g., People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [denial of statutory
right to MDO trial harmless].)
D. Constitutional Claims
Defendant
contends that in conducting a bench trial, the court denied his constitutional
right to a jury trial under the state and
federal due process and equal protection clauses.
1. Due Process
Defendant
theorizes that if the Act did not provide the right to a jury trial, he would
still have the right under the state and federal constitutional guarantees of
due process. He argues that the court’s
procedure in this case violated this constitutional right. However, since there is a statutory right, defendant’s
due process claim is based upon an assumption which is contrary to the state of
existing law. We will not decide
theoretical constitutional questions which are based upon faulty premises. (People v. Moore (2011) 51 Cal.4th
1104, 1123 [rejecting equal protection argument based on faulty premise]; People
v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging
state’s actions rejected where argument based upon faulty premise that
defendant committed no unlawful act]; Berardi v. Superior Court (2008)
160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other
questions of constitutional law unnecessary to our disposition of the caseâ€].)
Moreover,
we note that in Montoya, supra, 86 Cal.App.4th 825, the court rejected the MDO’s
claim that the federal due process clause guaranteed an MDO the right to a jury
trial. “ ‘Where . . . a
State has provided for the imposition of criminal punishment in the
discretion of the trial jury, it is not correct to say that the defendant’s
interest in the exercise of that discretion is merely a matter of state
procedural law. The defendant in such a
case has a substantial and legitimate expectation that he will be deprived of
his liberty only to the extent determined by the jury in the exercise of its
statutory discretion, [citation], and that liberty interest is one that the
Fourteenth Amendment preserves against arbitrary deprivation by the State.’ [Citation.] A jury sitting in a civil hearing pursuant to
sections 2970 and 2972 does not impose criminal punishment and has no power to
determine the extent to which the defendant will be deprived of his liberty. Defendant’s jury trial interest thus is, in
this case, ‘merely a matter of state procedural law’ and does not implicate the
Fourteenth Amendment. [Citation].†(Id. at pp. 831-832, quoting Hicks
v. Oklahoma (1980) 447 U.S. 343, 346 (Hicks); cf. Powell, supra,
114 Cal.App.4th at p. 1159 [rejecting NGI’s claim that denial of jury trial
violated constitutional right to due process].)
Defendant cites In re Gary W. (1971) 5 Cal.3d 297, People
v. Feagley (1975) 14 Cal.3d 338, People v. Thomas (1977) 19 Cal.3d
630, and In re Hop (1981) 29 Cal.3d 82 for the proposition that due
process guarantees the right to a jury trial in commitment cases.
In
these cases, the court found that persons facing involuntary commitment under
statutory schemes that did not provide for a jury trial were similarly
situated to persons facing commitment under schemes that provided a jury trial
upon request. Thus, under the equal
protection clause, the former group is entitled to request a jury trial unless
there is a valid justification for not allowing them to do so. And if there is no such valid justification,
the unequal treatment is arbitrary and violates due process. However, none of these cases separately analyzed
whether, apart from arbitrarily treating similarly situated persons
differently, the due process clause independently guarantees persons subject to
civil commitment the right to a jury trial.
Accordingly, we find defendant’s reliance on them to be misplaced.
Moreover,
while the arbitrary denial of a statutory right may violate the constitutional
guarantee of due process, the record here does not establish that the court’s
failure to advise defendant and failure to conduct a jury trial were arbitrary. Counsel waived defendant’s presence at
every hearing before trial, and he also waived a jury trial. Again, we do not presume error, and, as
noted, because defendant has not shown that counsel’s waiver was unauthorized
or otherwise invalid, he can no more show a constitutional violation than he
could show a statutory violation.
Accordingly, we reject defendant’s due process claim.
B. Equal Protection
Defendant
asserts that in every scheme permitting the involuntary commitment of a person
for mental health purposes, there is a right to a jury trial. He further asserts that an MDO defendant
facing an extended commitment is similarly situated to persons facing a
commitment under these other schemes. Thus, he claims that in conducting a bench
trial here, the court denied him equal protection. Defendant’s claim fails because the Act
provides defendant with the right to a jury trial, and counsel waived that
right. Thus, defendant fails to identify
how he was treated differently from how he would have been treated under any of
the other commitment schemes.
VII. Disposition
The order
extending defendant’s commitment is affirmed.
______________________________________
RUSHING, P.J.
I CONCUR:
____________________________________
PREMO, J.
ELIA, J., Concurring
I
respectfully concur in the judgment on the ground that no reversible error has
been shown. (Cal. Const., art. VI, § 13;
People v. Watson (1956) 46 Cal.2d
818, 836.) We must presume for purposes
of this appeal that appellant's counsel informed appellant that he was entitled
to be tried by a jury and counsel waived a jury trial in accordance with
appellant's informed consent (see maj. opn., ante, p. 2). (See
557, 564 [all presumptions are indulged to support a judgment or order regarding
matters as to which the record is silent; error must be affirmatively shown];
see also Conservatorship of John L.
(2010) 48 Cal.4th 131, 148 ["When a statutory right in a civil commitment
scheme is at issue, the proposed conservatee may waive the right through
counsel if no statutory prohibition exists.
[Citations.]"], 151-152 [attorney is obligated to keep client fully
informed of proceedings, to advise client of his rights, and to refrain from
any act or representation that misleads the court].)
Even
assuming arguendo that appellant had a constitutional right to a jury trial as
a matter of due process, the same presumption regarding waiver applies on
appeal. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564;
Cal.4th at pp. 151-152.) To the extent
appellant is arguing that he had concomitant due process rights, under either
the United States or California Constitution, to a judicial advisement of his
right to a jury trial and to personally waive a jury on the record, his
arguments are unpersuasive since he was represented by counsel who presumably
advised and consulted with him and there is no
requiring an express, personal waiver of a jury in noncriminal
proceedings. (See Cal. Const., art. I,
§ 16; cf. Code Civ. Proc., § 631; People
v. Bradford (1997) 14 Cal.4th 1005, 1052-1053 [in criminal prosecution, no
express, personal waiver from a defendant is required for waiver of
constitutional right to testify; a trial judge may safely assume that a
nontestifying defendant is abiding by his counsel's trial strategy].)
Consequently,
it is unnecessary in this case to repeat the majority's conclusions in
Cal.App.4th 809 regarding the exact extent of a counsel's authority to waive a
jury for trial on a petition for continued treatment (Pen. Code, §§ 2970,
2972). As the United States Supreme Court
stated: "The duty of this court, as
of every other judicial tribunal, is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it." (Mills
v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132]; see Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67 Cal.2d 536, 541.)
_________________________________
ELIA,
J.
All unspecified statutory references are to the Penal Code.
Section 2972, subdivision (a) provides,
“(a) The court shall conduct a hearing on the petition under Section 2970 for
continued treatment. The court shall
advise the person of his or her right to be represented by an attorney and of
the right to a jury trial. The attorney for the person shall be given a copy of
the petition, and any supporting documents.
The hearing shall be a civil hearing, however, in order to reduce costs
the rules of criminal discovery, as well as civil discovery, shall be
applicable. [¶] The standard of proof under this section
shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury
shall be unanimous in its verdict. The trial shall be by jury unless waived by
both the person and the district attorney. The trial shall commence no later
than 30 calendar days prior to the time the person would otherwise have been
released, unless the time is waived by the person or unless good cause is
shown.â€
