P. v. Tartaglione

Filed 8/20/07 P. v. Tartaglione CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

William Dana Tartaglione appeals from an order recommitting him to the Department of Mental Health for treatment as a mentally disordered offender. (MDO; Pen. Code,  2962 et seq.)^[1] Appellant argues that the trial court erred in denying his Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) after counsel waived jury trial over appellant's objection. We affirm.

Procedural History

Appellant was sentenced to state prison in 1989 for residential burglary ( 459), forcible rape ( 261, subd. (a)), oral copulation with force ( 288a, subd. (c)(2)), and rape with a foreign object ( 289).

In 2005, the Board of Prison Terms (BPT) certified appellant as an MDO and committed him to the California Department of Mental Health for treatment. Appellant unsuccessfully challenged the BPT finding and we affirmed the MDO order in an unpublished opinion. (B186798.)

On October 3, 2006, appellant filed a second petition challenging a new BPT decision to recommit him as an MDO. ( 2966, subd. (b).) The trial court appointed counsel and denied appellant's Faretta motion to represent himself after counsel waived jury trial. On November 2, 2006, appellant renewed the Faretta motion which was denied.

Doctor Kate Burkhart testified that appellant suffered from schizophrenia, paraphilia, alcohol abuse and noncompliance with medications, an Axis II disorder, and a personality disorder not otherwise specified with antisocial features. Appellant had a 30 year history of psychotic symptoms, was twice placed at Patton State Hospital ( 1370), and spent a considerable amount of time at Atascadero State Hospital (ASH) before he was recommitted as an MDO.

As a patient at ASH, appellant was subject to a Keyhea medication order (Keyhea v. Rushen (1986) 178 Cal.App.3d 526) and told hospital staff that he would stop taking his medication after the Keyhea order expired. This was a medical concern. Appellant had a history of rapid decompensation manifested by bizarre behavior, severe agitation, and anger when he decreased or stopped his medication.

Doctor Burkhardt opined that appellant met all the MDO criteria, that the severe mental disorder was not in remission, and that appellant was a substantial danger to others.

Faretta

Appellant argues that the trial court erred in denying his Faretta request to represent himself. Appellant did not "see eye to eye" with his attorney and said that "I would prefer a jury. My attorney doesn't want -- does not agree with the jury. And he will be compensated the same, win or lose, whether it's 10 minutes in court or 10 days in court. He gets the same compensation. And I don't have faith -- I don't have personal faith in him."

The trial court correctly ruled that counsel's decision to waive jury was not grounds for granting the Faretta request. Because MDO proceedings are civil in nature, appellant had a statutory but not a constitutional right to represent himself. (People v. Williams (2003) 110 Cal.App.4th 1577, 1588-1589.) Appellant erroneously argues that the statutory right to represent himself trumps counsel's tactical decision to waive jury trial.

In Peoplev. Otis (1999) 70 Cal.App,4th 1174, we held that counsel may waive jury trial in a MDO proceeding over the objection of his or her client. ( Id., at pp. 1176-1177.) Although the MDO scheme grants a defendant certain personal rights, the Legislature does not require that the defendant personally waive the right to jury trial. (Id., at p. 1177; see also People v. Montoya (2001) 86 Cal.App.4th 825, 831-832 [jury waiver by counsel does not violate due process].)

In People v. Fisher (2006) 136 Cal.App.4th 76, counsel waived jury over his client's objection in a MDO proceeding. The trial court granted defendant's request to discharge counsel and represent himself, and thereafter granted defendant's demand for jury trial. (Id., at pp. 78-79.) On appeal, defendant complained that "[b]ecause the trial court relied on Otis to enforce counsel's decision [to waive jury], . . . he was 'forced ' to waive his right to counsel in order to assert his right to jury trial." (Id., at p. 81.) Rejecting the argument, we held among other things that the trial court "was not required to allow appellant to successfully reassert the right to jury trial after a valid waiver by counsel." (Ibid.)

Otis and Fisher make it clear that appellant could not veto counsel's tactical decision to waive jury by removing counsel and demanding leave to represent himself. The decision to waive jury was a matter of trial tactics and not grounds for granting the Faretta motion. (See People v. Marshall (1997) 15 Cal.4th 1, 22-23 [disagreement over trial tactics deemed to be equivocal; Faretta motion denied]; People v Scott (2001) 91 Cal.App.4th 1197, 1206 [same].)^[2]

Assuming that the trial court erred in denying the Faretta motion, the error has harmless. (People v. Fraser (2006) 138 Cal.App.4th 1430, 1450-1451.) The MDO evidence was overwhelming. There is no reasonable probability that a more favorable result would have been reached had appellant been granted leave to represent himself. (See People v. Williams, supra, 110 Cal.App.4th at pp. 1592-1593; People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276.) Nor has appellant demonstrated that that denial of his statutory right of self-representation affected the fairness or accuracy of the trial. (See e.g., People v. Otto (2001) 26 Cal.4th 200, 209-211 [SVPA proceeding].)

The judgment (MDO recommitment order) is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Marc E. Turchibn, Deputy Attorney General, for Plaintiff and Respondent.

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

^[2]Doctor Burkhardt testified that appellant's severe mental disorder is manifested by rambling and tangential speech. This is apparent in appellant's letter to the trial court which states in pertinent part: "Dearest of Dear Sirs with all due just deserved honorable honor and courteous courtesy and regardful regard and respectful respect and considerationable consideration for you and yours . . . . []  In all humility, I do very humbly request that you take the time to seriously reconsider and realize that my appeal becomes and is made to no effect by not permitting the defense to . . . contest before a jury of twelve to both examin[e] and try the facts of both my incarceration and allegations of mental unstability and the original accusations which are false . . . ."