P. v. Shady

Filed 7/19/06 P. v. Shady 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Leo Shady appeals from the judgment committing him to Atascadero State Hospital as a mentally disordered offender (MDO). (Pen. Code, § 2962, et seq.)^[1] He only claims the court erred in accepting a jury waiver from trial counsel. We affirm. (People v. Otis (1999) 70 Cal.App.4th 1174, 1176-1177.)

Facts and Procedural History

Appellant was sentenced to state prison for assault with a deadly weapon (§ 245, subd. (a)(1)). The Board of Prison Terms (BPT) certified appellant as an MDO. Appellant filed a petition challenging the BPT determination and counsel was appointed. (§ 2966, subd. (b).) Appointed counsel waived jury trial.

Appellant's treating psychiatrist, Doctor Joshua Deane, testified that appellant suffered from paranoid schizophrenia, a severe mental illness that was not in remission. Appellant's symptoms included bizarre and disorganized thought, delusions, inappropriate behavior, and severely impaired insight and judgment as to his condition. Appellant (age 53) told hospital staff that he was a 99-year-old architect, made music records for a living, and had multiple cancers all over his body including his genital area.

Doctor Deane testified that appellant had a history of cocaine and alcohol abuse, has not attended a drug treatment program, was not able to meaningfully participate in treatment, was dangerous, and could not care for himself. The doctor opined that appellant met all the MDO criteria. (§ 2962.)

Jury Waiver

Appellant argues that the trial court violated his statutory and constitutional right to jury trial in accepting a jury waiver from his attorney. In People v. Otis, supra, 70 Cal.App.4th 1174, we held that counsel for a person challenging an MDO certification may waive jury trial without the consent of his client. (Id., at pp. 1176-1177; see also People v. Powell (2004) 114 Cal.App.4th 1153, 1159 [jury waiver by counsel does not violate due process]; People v. Montoya (2001) 86 Cal.App.4th 825, 831-832 [same].) We recently reaffirmed the correctness of our decision in People v. Otis, supra, 70 Cal.App.4th 1174, and decline to reconsider the issue. (People v. Fisher (2006) 136 Cal.App.4th 76, 81.)

The judgment (order of commitment) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Charles S. Crandall, 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, Robert F. Katz, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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