P. v. Ibanga

Filed 5/23/06 CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Elijah Ibanga appeals an order recommitting him to Atascadero State Hospital (ASH) as a mentally disordered offender (MDO). (Pen. Code, § 2962.)^[1] His commitment offense was for the continuous sexual abuse and commission of lewd and lascivious acts with a child under the age of 14. (§§ 288.5; 288, subd. (b).) Appellant does not challenge the trial court's findings that he qualifies as an MDO, but claims the court erred by removing him from the courtroom and that he was denied his right to a jury trial. We affirm.

FACTS

At a readiness conference, defense counsel waived a jury trial and appellant objected. The court explained to appellant that his attorney could waive a jury over his objection, but that appellant nevertheless had a right to ask that his counsel be relieved. The court held a hearing under People v. Marsden (1970) 2 Cal.3d 118, in which the following exchange occurred:

" [Appellant]: Your honor, this is not fair by the law. I went to the first department when I was – when I went on this motion, the judge told me we would rule on it, and the other day I was brought to the court here into another department, and the judge told me the reason why he's sending me back to the old department is so the judge can rule on this matter. [¶] So now you and [defense counsel] are using illegal tactics to swindle me out of my law-given right either to go to jury trial or a court trial with a judge trial, and I voice my opinion by the law that I asked for a jury trial and [defense counsel] be removed from this case. So I asked by the law to be removed from this courtroom.^[2]

" [The Court]: Okay. Those requests have been denied, and you can appeal.

" [Appellant]: I'm not talking about appeal. The appeal last year until today did not bring me anything at all.

" [The Court]: The next step now, Mr. Ibanga, is whether we are going to proceed with the trial with you here or not here. If you do not conduct yourself cooperatively, you are going to have to leave, and then we will have the trial without you, and we don't want to do that.

" [Appellant]: Sir, I already asked by the law of the United States and the State of California, which you have violated, including illegal tactics with [defense counsel] to have me removed from this courtroom.

" [The Court]: We are going to take a recess until they calm you down and then we will have you come back up, and then we will proceed. These proceeding were sealed, and we will return when [defense counsel] is ready."

Following a recess, the court addressed counsel in open court. The district attorney and defense counsel were present, but appellant was not. The court asked defense counsel to describe appellant's behavior after the Marsden hearing. Defense counsel deferred to the bailiff, because he had chosen to remove appellant from the courtroom.

" [Bailiff]: [Appellant] started shaking, became nonresponsive. When asked if he was going to be able to maintain control of his actions for the rest of the afternoon, he refused to answer several requests by myself and Atascadero staff as to whether or not he would be be [sic] able to behave, at which point I thought it would be safer to have him removed from the courtroom.

" [The Court]: Before I left the bench, he was starting to shake uncontrollably when I told him he had to cooperate with the trial and that he could appeal. . . . He wanted to have his trial today by jury, and he wanted to have a new attorney, and since I denied those requests, he began to react in an extremely harsh manner. I don't know if the doctor witnessed his actions, but when she testifies, she can perhaps address them."

Doctor Emily Rosten is a psychologist at ASH who conducts treatment groups. She stated that she did not observe appellant's condition following the Marsden hearing because she had not been in the courtroom. However, she indicated that she regularly witnessed similar behaviors by appellant during the monthly treatment team meetings. " If we persist in trying to discuss issues with [appellant], we will see him begin to shake and become very resistant and just repeat the same thing over and over again without being able to respond appropriately in a dialogue and discussion." Dr. Rosten indicated that there is no point in continuing, so the staff responds by telling appellant that the meeting is over and he can leave.

The court said, " I'm going to find he is unable to cooperate. The matter is ready for trial[,] . . . and I don't believe it would be in anyone's interest to recess the trial and try again at a future date because his response undoubtedly would be the same in that he has a history of that same response in the hospital when they tried to address issues with [him]. So for that reason, we will proceed in his absence."

At trial, doctor Rosten testified that appellant's commitment offense was for the continuous sexual abuse of a child under 14 and a lewd and lascivious act with a child under the age of 14. (§§ 288.5; 288, subd. (b).) She diagnosed appellant as suffering from a schizoaffective disorder, pedophilia, cocaine abuse and a personality disorder, not otherwise specified. She indicated that he has a severe mental disorder that is not in remission, cannot be kept in remission without treatment and presents a substantial danger of physical harm to others.

Doctor Rosten reported that appellant will not attend the sex offender treatment group because it is against his religion. She testified that he now adheres to a religious belief that " it would be inappropriate to engage in a sexual relationship without the sanctity of marriage. So that given that you cannot engage in a sexual relationship unless you are married, he would no longer engage in pedophilic activity." Appellant has indicated it is unnecessary for him to attend a substance abuse program because his religious beliefs forbidding drug use will prevent him from using.

The trial court stated that the People had presented a strong case, which included evidence of appellant's sex offenses pursuant to sections 288, subdivision (b) and 288.5. The court noted that, given the gravity of these offenses, defense counsel was justified in waiving the jury. The court found that appellant met the statutory criteria and ordered him recommitted to ASH for another year.

DISCUSSION

Removal of Appellant from Courtroom

Ordinarily, a criminal defendant has both a constitutional and a statutory right to be personally present during all critical stages of his or her trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Waidla (2000) 22 Cal.4th 690, 741.) A court may remove a defendant from a courtroom when, despite a warning by the judge, the defendant conducts himself " in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom." (§ 1043, subd. (b)(1).)

A defendant may " reclaim his right to be present at trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings." (§ 1043, subd. (c); Illinois v. Allen (1970) 397 U.S. 337, 343; People v. Sully(1991) 53 Cal.3d 1195, 1239-1240.) A defendant who disrupts the trial after adequate warnings by the court may be deemed to have waived this right. (People v. Medina (1995) 11 Cal.4th 694, 738.) We accord considerable discretion to the trial court's judgment as to when a disruption has occurred. (People v. Welch (1999) 20 Cal.4th 701, 773, 774.)

Appellant argues that the court erred in removing him from the courtroom because his actions were not so disruptive as to justify his removal. He claims there was no indication that he was disrupting the hearing or unable to cooperate in the trial process. Rather, his behavior was an " uncontrollable psychological reaction" to the trial court's ruling. Furthermore, appellant contends he was not given an opportunity to correct his behavior. He argues the trial court's removal was even less justified if his physical reaction was a symptom of his mental illness. Moreover, excluding appellant from trial precluded him from presenting a defense.

From our reading of the record, it appears that appellant believed that the court and his attorney were acting together to deprive him of his right to a jury trial. He stated that the court had shuttled him between several departments before setting the matter for trial and defense counsel had ignored his request for a jury trial. When the court denied his requests for new counsel and a jury trial, appellant verbally opposed the ruling. His behavior deteriorated and he began to shake uncontrollably and was removed from the courtroom.

When asked by the bailiff and ASH staff, outside the courtroom, whether he could cooperate with the trial process, appellant was unable to answer and his agitation continued. Based on its own observations and the statements of the bailiff and Dr. Rosten, the court chose to conduct the trial in appellant's absence. Although appellant did not directly inform the judge that he would refuse to cooperate at trial, he demonstrated an inability to submit to the trial court's ruling without deteriorating to a point at which he became unable to communicate.

Appellant cites our decision in People v. Powell (2004) 114 Cal.App.4th 1153, to buttress his claim of error. In Powell we applied section 1043 to an order extending commitment to a state hospital for an individual who had been found not guilty by reason of insanity. (§§ 1026, 1026.5.) We held that such an individual can be removed from a courtroom for disruptive behavior during a trial extending his commitment. (Id.at p. 1160.) Appellant relies on Powell to argue that he was not informed by the trial judge that he could return to the courtroom if he corrected his misbehavior.

We reject this argument because the defendant's interchange with the Powell court is almost identical to facts recited in appellant's case. In Powell, after objecting to his attorney's waiver of a jury trial, " [a]ppellant was belligerent and argued with the court. He was ordered removed from the courtroom and told that he could come back when he behaved himself and 'felt better.' The trial proceeded in appellant's absence." (People v Powell, supra,114 Cal.App.4th at p. 1157.)

Here, appellant objected to his counsel's waiver of a jury trial and requested a new attorney. The court denied appellant's requests, and he challenged the rulings. The court warned him, " [i]f you do not conduct yourself cooperatively, you are going to have to leave, and then we will have the trial without you, and we don't want to do that." Appellant continued to argue with the court and it responded, " We are going to take a recess until they calm you down, and then we will have you come back up, and then we will proceed." Although the court recessed the proceedings to allow appellant to regain his composure, he was unable to do so. Under these circumstances, the court was justified in removing appellant from the courtroom.^[3]

Appellant's contention that he was precluded from presenting a defense also fails. He made no offer of proof of what evidence he might have offered had he attended trial. Appellant's counsel cross-examined Dr. Rosten, whose testimony was unrefuted. Appellant's absence did not affect the trial court's ruling. There is no likelihood he would have obtained a more favorable result if the court had allowed him to remain in the courtroom during the trial. (SeePeople v. El (2002) 102 Cal.App.4th 1047, 1050.)

Waiver of Jury Trial

Appellant claims that his attorney's waiver of a jury trial violated his statutory and due process rights. Section 2966, subdivision (b) provides in part that, " [t]he trial shall be by jury unless waived by both the person and the district attorney." Appellant argues that he is entitled to a jury trial because he did not personally waive the jury. Appellant acknowledges that our decision in People v. Otis (1999) 70 Cal.App.4th 1174 is controlling law. However, he argues that it was wrongly decided and should be overruled. We have recently reaffirmed the correctness of our decision, thus decline appellant's request. (People v. Fisher (2006) 136 Cal.App.4th 76, 81.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.

^[2] We granted appellant's request to unseal two pages of appellant's Marsden hearing, designated as RT 306 and 307.

^[3] We decline the People's request that we extend our holding in People v. Powell, supra, 114 Cal.App.4th 1153 to MDO proceedings in general. We indicated in Powell that the case was fact-driven, and reach the same conclusion here. (See id. at p. 1160.)