P. v. Gonzalez



















Filed 6/7/13 P. v. Gonzalez CA6

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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opinion has not been certified for publication or ordered published for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. ALEJANDRO MUNOS GONZALEZ, Defendant and Appellant.

H037267 (Santa Clara County Super. Ct. No. CC9945524)

I. Statement
of the Case

In 2000,
after a bench trial, the court found defendant Alejandro Munos Gonzalez not
guilty by reason of insanity (NGI) of arson
and assault and battery and committed him to the Department of Mental
Health (Department) for treatment at Atascadero State Hospital (ASH). (Pen. Code, §§ 451, subd. (d), 242, 243,
subd. (a), 1026.5, subd. (a).)href="#_ftn1"
name="_ftnref1" title="">[1]
Defendant appeals from an order
extending his commitment until September
9, 2013. He claims the court
erred in failing to advise him of his right
to a jury trial, failing to obtain his personal waiver, accepting counsel’s
jury waiver, and conducting a bench trial.

We affirm
the order.

II. Background and Procedural History

On September 2, 1999, defendant poured
gasoline on a neighbor’s boat and set it on fire. On September 17, he assaulted his
mother. On September 19, he threatened
to kill his sister. According to defendant,
he heard voices before these incidents challenging and daring him to do
something. As noted, he was found NGI
and committed to ASH.

In 2003, the
Santa Clara Count District Attorney (the District Attorney) sought to extend
defendant’s NGI commitment. However, on
March 12, 2003 before an extension hearing, defendant was released on
outpatient status to Harper Medical Group (Harper) under the South Bay
Conditional Release Program (CONREP).
Four days later, Harper asked the court to recommit defendant because he
was exhibiting bizarre behavior, and shortly thereafter, the court ordered him
to Napa State Hospital (NSH) for continued
treatment. Thereafter, defendant waived
his rights to a trial on the petition and agreed to an extension of his
commitment until March 14, 2005.

In 2004,
before the commitment expired, defendant sought release on the ground that his sanity
had been restored. (§ 1026.2.) The court
ordered NSH to evaluate defendant. During this time, the District Attorney sought
another extension of the commitment to March 2007. After evaluating defendant, NSH recommended
that his commitment be extended again. In
April 2005, the court held a jury trial on the petition, but the jury was
unable to reach a verdict, and the court declared a mistrial. The matter was not retried because defendant
agreed to the extension on condition that he be released on outpatient status.

Thereafter,
defendant was placed in a transitional residence for CONREP clients called
Northstar. In August, 2005, he
“decompensated,” and the court ordered a temporary commitment to NSH. In February 2006, Harper recommended that he
be returned to Harper, and in March 2006, defendant’s outpatient status was
reinstated. However, defendant again
quickly decompensated, becoming delusional, paranoid, violent, intimidating,
verbally abusive, and threatening. In
April 2006, he was temporarily recommitted to NSH
to restabilize. He responded to
treatment, and in July 2006, he regained outpatient status.

In a report
dated August 2006, CONREP advised the court that defendant was stable, controlling
his behavior, and motivated to return to the community. He also understood the need to deal with his
psychiatric problems without resorting to threats and intimidation. In November 2006, the court revoked
defendant’s outpatient status and recommitted him to NSH
because he had verbally abused and threatened staff and had pretended to start
a fire.

Defendant’s
commitment under the court’s previous order expired on March 14, 2007. On March 22, the court, after a hearing,
reconfirmed the previous revocation of defendant’s outpatient status. In June 2007, defendant petitioned for a writ
of habeas corpus alleging the wrongful denial of “dignity, respect, and humane
care.” The District Attorney sought
another extension. In August, the court
denied defendant’s habeas petition. In
October 2007, counsel submitted the determination of the extension petition on
the latest psychological evaluation by NSH.
Based on that report, the court extended defendant’s commitment to
September 9, 2009.

In January
2009, defendant filed another habeas petition.
In March 2009, he also sought a determination that his sanity had been
restored. At that time, the District
Attorney sought another extension. On
August 26, 2009, defendant personally waived all of his rights and admitted
that he posed a danger to others if released, and the court extended his
commitment until September 9, 2011.

One year
later, on September 17, 2010, defendant sought release on outpatient status to
CONREP but later withdrew his request. It
appears that he renewed it in February 2011. In April 2011, the District Attorney again
sought another extension. On April 28, 2011,
the court denied defendant’s request for release. On June 24, 2011, counsel waived a jury trial
on the extension petition, and on August 4, 2011, the court granted the
petition and extended defendant’s commitment to September 9, 2013. As noted, defendant appeals from that order.

III.
The Extension Hearing

Dr. James Eyerman, M.D., a
psychiatrist at NSH, testified as an expert in the diagnosis and
treatment of mental disorders and risk assessment. He had been defendant’s treating psychiatrist
since November 2010. He testified that
defendant suffered from schizo-affective disorder that caused him to have
difficulty controlling his dangerous behavior. He also had problems with auditory hallucinations
both before and after the commitment offense in 1999. Although treatment with medication had helped
control certain extreme manifestations of defendant’s disorder, lesser
manifestations, including rapid mood swings, delusions, and hyper-religiosity,
persisted. Although defendant could be
pleasant, at other times he was irritable, argumentative, and perhaps
threatening. These were the primary
reasons his previous releases to CONREP were revoked. Although defendant understood the need to
continue taking medication, Dr. Eyerman was not sure how long defendant would
do so without some supervision. He noted
studies revealing that a high percentage of persons stop taking their
medication after being released from supervision.

Dr. Eyerman commended defendant for acknowledging
that he had a mental disorder, understanding the connection between his
disorder and his commitment offense, and learning to recognize the warning
signs of his disorder, including mood swings.
However, he noted that defendant did not recognize warning signs before
becoming upset or while he was upset. He
had been working on a relapse prevention plan and had identified his
impulsivity and anger as risk factors.
He had also worked on strategies to help him recognize these factors so
that he would not become aggressive and threatening. Although at times, defendant had not acted
impulsively when he had gotten angry, he had not been able to consistently
restrain his impulsivity. Dr. Eyerman
noted that within the previous 10 months, defendant had been verbally
aggressive and threatening to a female staff member. Moreover, defendant initially felt that his
hostility was justified. Only later did
he acknowledge that his actions had been improper.

Defendant had manifested his mood
swings in a pushing incident and in threats of self harm, although Dr. Eyerman
opined that those incidents might have been caused in part by a chemical
imbalance related to the mood stabilizing medication defendant had been
taking. For that reason, his staff began
to monitor defendant’s chemical levels regularly especially when he seemed
particularly irritable. Dr. Eyerman also
noted that defendant had in the past year been placed on “continuous insight
observation”—i.e., one-on-one staffing—after an incident in which he “pinned a
staff member against a wall.” He noted
some other incidents in which defendant tried to strip a staff member or became
hostile toward one staff member and verbally abusive. He later filed a complaint against the latter
demanding that she stop some unspecified conduct “before I take things the
wrong way and she ends up on the floor.”

In all, Dr. Eyerman opined that
defendant still had some difficulty with mood swings and irritability. Defendant had done well for the last few
months, but Dr. Eyerman did not find him ready for release even to CONREP
on outpatient status. He opined that
defendant should first demonstrate that he can maintain his behavior for six
months in his highly supervised and structured locked unit, thereafter in an
open unit placement, and then on outpatient status before being unconditionally
released. Dr. Eyerman noted that
defendant still had a few months to go before he could become eligible for an
open unit.

Defendant acknowledged that he had a
mental disorder and will
need treatment and medication for the rest of his life. He said he intended to continue taking
medication because without it he cannot act properly. He said that the medication helped him
channel his energy in a positive way, and he would continue to take it even without
supervision. He pointed out that he has
been avidly participating in numerous groups and programs, including therapy,
AA, NA, sports, relapse prevention, and anger management. As a result, he had learned tools to help him
cope with aggressive and obnoxious people.

Defendant acknowledged an incident
with a female staff member, although he denied pinning her against the wall and
said he only pushed her. He could not
recall any of the other incidents mentioned by Dr. Eyerman. Defendant acknowledged his previous
unsuccessful releases on outpatient status.
However, he said that now he would handle himself differently.

IV. An NGI
Commitment and Extension

Under the
statutory scheme for NGI commitments, a defendant who has been committed to a
state hospital after being found NGI may not be kept in actual custody longer
than the maximum state prison term to which he or she could have been sentenced
for the underlying offense. (§ 1026.5,
subd. (a)(1).) At the end of that
period, the district attorney can seek a two-year extension by filing a
petition alleging that the defendant presents a substantial danger of physical
harm to others because of his or her mental disease, defect, or disorder. (§ 1026.5, subds. (b)(1)-(2).) At that time, the court is required to “advise
the person named in the petition . . . of the right to a
jury trial” (§ 1026.5, subd. (b)(3)) and conduct a jury trial “unless
waived by both the person and the prosecuting attorney” (§ 1026.5, subd.
(b)(4)). The person is “entitled to the
rights guaranteed under the federal and State Constitutions for criminal
proceedings,” and all proceedings must “be in accordance with applicable constitutional
guarantees.” (§ 1026.5, subd.
(b)(7).)href="#_ftn2" name="_ftnref2" title="">[2]

>V. Contentions

Defendant
contends that the court committed reversible error in failing to give the
required advisement and conducting a bench trial without obtaining his personal
waiver. He argues that a competent NGI
is entitled to decide whether to have a jury trial and therefore, under section
1026.5, the court must conduct a jury trial unless the jury is waived either personally
by the NGI or by counsel at the NGI’s direction or with his or her knowledge
and consent. Citing People v. Powell (2004) 114 Cal.App.4th 1153, (Powell), the Attorney General argues that defendant’s personal
waiver is not required because counsel has exclusive control over whether to
have a jury trial.

VI. Discussion

Recently, in
People v. Tran (2013) 216 Cal.App.4th
102 (Tran), this court rejected the
Attorney General’s claim that under section 1026.5, counsel, not the NGI,
controls the decision of whether to waive a jury trial. Rather, we concluded that under the statute, a
competent defendant is entitled to decide whether to waive a jury trial and may
do so personally or through counsel; however, when the defendant is not sufficiently
competent to make the decision, he or she must act through counsel, and counsel
may waive a jury even over the defendant’s objection.

We noted
that the statutory language pertinent language in the waiver provision—“unless waived
by both the person and the prosecuting attorney”—does not confer exclusive
control on counsel; nor does it expressly or implicitly bar NGIs from
controlling the decision. We further
observed that when read together, the advisement and waiver provisions do not
reflect a legislative intent to confer such exclusive control. Rather, in requiring that the court advise
“the person named in the petition” and conduct a jury trial unless waived by
“the person,” the statute contemplates that NGIs can make the decision and
expressly provides for them to do so. (>Tran, supra, 216 Cal.App.4th at p. 125.)

We further
reasoned, “that if the Legislature had intended to give counsel exclusive
control, it could have done so easily and clearly by requiring a jury trial
unless waived by ‘the person’s attorney’ just as it specified a waiver by the district attorney.’ (Cf. § 2966, subd. (b) [requiring hearing
within specified time unless waived by ‘petitioner or his or her
counsel’].) Conversely, we doubt the
Legislature would have clouded such an intent by requiring the court to advise
‘the person’ and further requiring a jury trial unless waived by ‘the person.’ ” (Tran,
supra, 216 Cal.App.4th at p. 125.)
We also presumed that the Legislature intended the advisement to perform
a meaningful and useful function, and noted that if the statute gave counsel
exclusive authority, an advisement would serve no meaningful function, and
there would have been no need to make it mandatory. (Ibid.)

We
acknowledged that in People v. Masterson (1994) 8 Cal.4th 965, 974
(Masterson), the Supreme Court concluded that in
a collateral proceeding to determine the competency of a criminal defendant to
stand trial, counsel had exclusive control over the whether to request a jury
and may decline to do so over the defendant’s objection. (Id.
at pp. 971, 973; see § 1368.) We pointed
out that the court’s conclusion rested on both the specific nature of a competency
proceeding, where the defendant necessarily plays a lesser role. The court’s conclusion also reflected the
view that when a defendant’s competency is called into question and must be
determined, the defendant is assumed to be unable to act in his or her own best
interests and must therefore act through counsel. (Tran,
supra, 216 Cal.App.4th at p. 127.)

We noted that more recently in People v. Barrett (2012) 54 Cal.4th 1081 (Barrett), the court similarly recognized counsel exclusive authority
in proceedings under Welfare and Institutions Code § 6500 to involuntarily
commit developmentally or intellectually disabled persons who pose a danger to
others. (Id. at pp. 1104-1105.) There
too counsel’s exclusive authority derived from the nature of the
proceedings. The court explained that
the statute applies to persons who have significant cognitive and intellectual
deficits that never recede and affect the ability to make basic decisions about
the conduct of the proceedings. In other
words, it may be assumed that they are unable to act in their own best
interests and must act through counsel.
(Id. at pp. 1103-1104.)

As
we explained in Tran, Masterson
and Barrett establish that in certain types of commitment proceedings,
the defendant’s alleged mental state—e.g., incompetency and developmental or
intellectual disability—renders the defendant unable to make reasoned decisions
concerning whether to have a jury trial.
In other words, it is reasonable to categorically assume that such
defendants lack the capacity to make a rational choice. “For that reason, they must act through
counsel, and counsel has exclusive control over the jury issue.” (Tran,
supra, 216 Cal.App.4th at p. 129.)

Turning to
the NGI context, we found it unreasonable to similarly assume that >all NGIs lack the capacity to make a
rational decision about whether to have a jury trial. (Tran,
supra, 216 Cal.App.4th at p. 131.) In this regard, we relied on >Barrett, where the court carefully distinguished
persons who have developmental and intellectual disabilities from persons who
suffer from a mental disorder, disease, or defect concerning their capacity to
function in a competent manner and, more specifically, comprehend and control
the jury decision. The Barrett court
concluded that unlike persons with developmental and intellectual disabilities,
many mentally ill persons retain the capacity to function in a competent
manner, and therefore, their illness does not necessarily imply incompetence or
a reduced ability to understand and make decisions about the conduct of the
proceedings against them, such as comprehending an advisement and controlling
the decision to request or waive a jury trial.
(Barrett,
supra, 54 Cal.4th at pp. 1108-1109; >Tran, supra, 216 Cal.App.4th at p. 132.)

We found
the Attorney General’s reliance on Powell
to support to establish counsel’s exclusive authority to be misplaced. We noted that in Powell, counsel waived a jury, but the defendant objected to
counsel’s waiver and requested a jury.
At that time, however, the defendant was medicated and experiencing mood
swings, and when the court denied the request, the defendant became so
argumentative, belligerent, and disruptive that he had to be removed from the
courtroom. In upholding counsel’s
waiver, the court found that the defendant was not competent to waive jury at
the extension trial, and therefore, counsel was authorized to do so on his
behalf. (Powell, supra, 114 Cal.App.4th at pp. 1157-1158; >Tran, supra, 216 Cal.App.4th at p. 131.) Thus, as we pointed out in >Tran, Powell was consistent with—indeed it mirrored—the >Masterson-Barrett rationale for
recognizing counsel’s exclusive control over the jury issue. (Ibid.)

The issue
before us now, however, is whether the court committed reversible error. The propriety of the bench trial turned on
the validity of counsel’s waiver, which, in turn, hinged on whether the
defendant knew he had the right to a jury trial and directed or knowingly consented
to counsel’s waiver.

As defendant
correctly notes, the record does not reflect that the court gave the required
advisement. This is understandable
because counsel waived defendant’s at the pretrial hearing on June 24, 2011, at
which time counsel waived a jury trial. However, it is
beyond dispute that counsel was aware of defendant’s right to a jury
trial. And where, as here, counsel
waives an MDO’s presence at pretrial hearings, 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).)” (>In re Conservatorship of Person of John L. (2010) 48 Cal.4th at 131,
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.”
(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, the record does not suggest that
defendant was unaware of his right to a jury trial. On the contrary, as noted, this was not the
first extension of defendant’s commitment, and he actually had a jury trial on
an extension in April 2005. When
the court declared a mistrial, defendant waived his rights and agreed to an
extension in exchange for release on outpatient status.

The
record also 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.href="#_ftn3" name="_ftnref3"
title="">[3]

It is
settled that 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 shown”].)

In short,
given the record before us, defendant cannot satisfy his burden to establish
that he was unaware of the right to a jury trial before counsel waived a jury
or that counsel’s waiver was invalid.

Furthermore,
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.)

Here,
Dr. Eyerman testified as an
expert in diagnosis of mental disorders and risk assessment. He was also defendant’s treating href="http://www.sandiegohealthdirectory.com/">psychiatrist. He testified that defendant suffered from
schizo-affective disorder that caused him to have difficulty controlling his
dangerous behavior. Although his
medication controlled the extreme manifestations of his disorder, less extreme
manifestations, including rapid mood swings, delusions, and hyper-religiosity,
persisted, at times, defendant because irritable, argumentative, and perhaps
threatening to others. Moreover, Dr.
Eyerman could not conclude with that defendant would continue to take his
medication if unconditionally released without any supervision.

Dr. Eyerman opined that defendant was
not fully able to consistently implement the strategies that help him recognize
the triggers and warning signs of potential aggression and threatening behavior
either before becoming upset or while in such a state. He noted a number of incidents within the
past year in which defendant had been aggressive and threatening to others and
had sent a note that arguably contained a threatening comment.

In all, Dr. Eyerman opined that
defendant had made commendable progress.
Nevertheless, he currently posed a risk of harm to others if unconditionally
released. He recommended that defendant’s
commitment be extended so that defendant could establish eligibility for
placement in an open unit and then for outpatient status. In this regard, we note that defendant’s
previous releases on outpatient status had been short lived and resulted in his
recommitment.

Defendant acknowledged his mental
illness and the need to take medication for the rest of his life and said he
intended to do so even without supervision because it helped him act
properly. Through the various programs
he had participated in, he had learned how to channel his energy and cope with
obnoxious and aggressive people. And
although he had failed to maintain stability when previously released on
outpatient status, he asserted that he would now handle himself differently.

Defendant does not suggest that Dr.
Eyerman’s informed opinion does not constitute substantial evidence supporting
the extension order. Nor does his own
testimony impeach or substantially undermine Dr. Eyerman’s opinion and the
bases for it. Finally, defendant’s
previous record of failure on outpatient status provides compelling cause to be
concerned about his ability to maintain the ability to control the
manifestations of his disorder if unconditionally released without any
supervision.

Given the
record before us, and even assuming that defendant was unaware of his right to
a jury trial, we do not find it reasonably probable that defendant would have
obtained a more favorable verdict had the court given the required advisement
and conducted a jury trial. (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].)href="#_ftn4" name="_ftnref4" title="">[4]

VI. 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. 4). (See >Denham v. Superior Court (1970) 2 Cal.3d
557, 564 [all presumptions are indulged to support a lower court 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 href="http://www.mcmillanlaw.com/">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; Conservatorship of
John L., supra, 48 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 constitutional
provision explicitly 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 >People v. Tran (2013) ___ Cal.App.4th
___ [2013 WL 1881050] regarding the exact extent of a counsel's authority to
waive a jury for trial on a petition for extended commitment pursuant to Penal
Code section 1026.5. 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.