P. v. Cheung

Filed 6/28/06 P. v. Cheung 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Michael Cheung appeals from an order continuing his commitment to the Department of Mental Health for treatment as a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)^[1] He contends the evidence is insufficient to support the court's finding that he represents a substantial danger of physical harm to others by reason of his severe mental disorder, as contemplated by section 2966, subdivision (c). He also claims the court abused its discretion by denying his request for relief from the waiver of his right to a jury trial on the matter. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 26, 2001, Cheung was sentenced to two years eight months in state prison following his conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). He was paroled on April 19, 2004, on the condition that he accept treatment through the Department of Mental Health. On June 7, 2004, the Board of Prison Terms (BPT) determined that Cheung met the MDO criteria and sustained the requirement that he receive further treatment.

On July 7, 2005, the BPT continued Cheung's MDO commitment pursuant to section 2962. Cheung petitioned for a hearing pursuant to section 2966, subdivision (b), and he and his attorney waived his right to a jury trial on the matter on August 24, 2005. On August 30, 2005, the court denied Cheung's request for relief from his jury waiver and the hearing proceeded.

Dr. Krys Doreen Hunter, a staff psychologist at Atascadero State Hospital, testified in support of the BPT's decision to continue Cheung's commitment as an MDO. After reviewing Cheung's medical and legal records, Dr. Hunter opined that Cheung met the MDO criteria under section 2962. Cheung, who began receiving psychiatric treatment when he was 15 years old, suffers from schizophrenia and polysubstance abuse. He has a history of auditory and visual hallucinations, paranoid delusions, and isolation, and has exhibited inappropriate sexual behavior. He has also exhibited symptoms of avolition, which is defined as an unwillingness to participate in treatment or social activities.

Dr. Hunter further concluded that Cheung's severe mental disorder is not in remission based on the fact that he had recently reported visual hallucinations, lacked motivation and had recently used marijuana. The doctor also opined that Cheung could not be kept in remission without treatment because he lacks insight into his illness and the need for treatment and is unlikely to comply with treatment on his own. It was also noted that Cheung had failed to attend treatment for his substance abuse.

Based on Cheung's history, Dr. Hunter concluded that he represented a substantial danger of physical harm to others by reason of his severe mental disorder. She based her opinion in part on the fact that Cheung had assaulted a store employee who attempted to prevent him from shoplifting. That offense subsequently resulted in the initial finding that Cheung qualified for MDO treatment. The doctor also relied on her conclusions that Cheung lacks insight into his mental illness and exercises poor judgment. She also relied on Cheung's admission of recent substance abuse and his history of indecent exposure during his incarceration, and warned that "if he cannot show insight into substance abuse/use problems and how they affect his mental illness, he is . . . going . . . to use substances in the future, which would limit, if not do away with, the effects of his medication and would disinhibit him to the extent that he may become violent or act in offensive acting out behaviors."

The doctor conceded that Cheung generally took his prescribed medications and that she was unaware of any incidents (other than the one involving the store employee) in which he had used force or violence. She nevertheless concluded that Cheung represented a substantial danger of physical harm to others because he would not take his medications if released and has no relapse prevention plan. She added that Cheung's severe mental disorder was an aggravating factor in his commission of the shoplifting offense, and had caused or contributed to the escalation of that incident into a violent crime. She also elaborated on Cheung's recent reports of visual hallucinations, which led to the paranoid delusion that the FBI was trying to "mess with him." This delusion, considered in conjunction with Cheung's impaired judgment, lack of insight into his illness, history of substance abuse, and the fact that he had responded to a stressful situation by resorting to violence "leave him subject to being dangerous."

At the conclusion of the hearing, the court found that Cheung met the MDO criteria and accordingly ordered him recommitted for treatment. Cheung timely appealed.

DISCUSSION

I.

Substantial Evidence

An MDO commitment requires a finding, among others, that the defendant represents a substantial danger of physical harm to others by reason of his severe mental disorder. (§ 2962, subd. (d)(1), see also subds. (a)-(d) [sets forth all MDO criteria].) Cheung contends the evidence is insufficient to support the trial court's finding that he represents a substantial danger of physical harm to others in this regard.

We review MDO commitment findings under the substantial evidence standard. (People v. Miller (1994) 25 Cal.App.4th 913, 919-920.) We view the evidence in the light most favorable to the order and will affirm whenever the record shows reasonable and credible evidence supports the decision of the trier of fact. (Ibid.) We do not consider the credibility of witnesses or reweigh the evidence, and we draw all reasonable inferences, and resolve all conflicts, in favor of the order. (Ibid.; People v. Poe (1999) 74 Cal.App.4th 826, 830.)

Substantial evidence supports the trial court's finding that Cheung represents a substantial danger of physical harm to others by reason of his severe mental disorder. Though Cheung complains that Dr. Hunter's opinion is premised solely on the shoplifting incident, the record indicates that the doctor relied on Cheung's entire history in reaching her conclusions.^[2] This evidence, viewed in the light most favorable to the trial court's decision, demonstrates a substantial likelihood that Cheung would be noncompliant with treatment if released, would abuse illicit drugs and thereby undermine any treatment that is undertaken, would be unable to conform his conduct to the law, and would resort to violence when confronted with his illegal behavior.

Cheung complains that "the present action presents a unique spectacle of an individual being subjected to potentially open-ended confinement based solely upon an incident for which he was never charged, convicted, or incarcerated in the first place." (Italics omitted.) We disagree. While Cheung was not charged with the assault that took place in the course of his commitment offense, the court was required to consider all of the facts underlying that offense in determining whether it qualified as a crime involving force or violence, as contemplated by section 2962, subdivision (e)(2)(P). Moreover, Cheung's claim that he is being subjected to an "open-ended" commitment is based on the erroneous premise that Dr. Hunter did not consider anything other than the facts of the shoplifting offense in concluding that he represented a substantial danger of physical harm to others. The heart of the doctor's conclusion lies in the fact that Cheung has continually failed to demonstrate any insight into his illness and the need for intensive treatment. This failure, considered in conjunction with the fact that Cheung resorted to violence the last time he was not receiving treatment for his mental disorder, is sufficient to support the finding that he represents a substantial danger of physical harm to others by reason of that disorder.

Cheung also asserts that the trial court failed to hold the prosecution to its burden of proving all of the MDO criteria beyond a reasonable doubt, as reflected in the trial judge's comment, "I cannot say that it is unreasonable for [Dr. Hunter] to express the opinion beyond a reasonable doubt that Mr. Cheung continues to meet the [MDO] criteria . . . ." We discern no such error. The court merely recognized that it could not, as the trier of fact, disregard the doctor's opinion as unreasonable. (§ 1127b.) In the same breath, the court expressly referred to the applicable burden of proof. Under the circumstances, there is no merit in the contention that the court failed to apply that burden in making the relevant findings.

II.

Relief From Jury Waiver

A.

Background

At the trial readiness conference on August 24, 2005, Cheung's attorney stated, "it's set for a jury trial on Tuesday. It would be our request that it remain set, but set for court trial rather than a jury trial." After Cheung expressed his understanding that he had the right to a jury trial, the court asked, "You've had a chance to talk to your attorney. You wish to waive that [right] and have that matter set down for a court trial?" Cheung responded in the affirmative. On the minute order form applicable to the proceedings, the clerk wrote a "Y" on the line providing that "counsel/petitioner waive right to . . . jury trial[.]"

When the matter came up for trial on August 30, however, Cheung's attorney informed the court that Cheung had told him in a conversation that afternoon that he wanted a jury trial. After the prosecutor stated he "[did]n't really have a strong feeling" regarding whether to "continu[e] it so that [Cheung] can explore withdrawal of his [jury] waiver," the court asked Cheung's attorney, "Is there anything you would like to put on the record on this issue?" Cheung's attorney responded, "No, your honor, other than this is Mr. Cheung's request at this point." (Italics added.) The court then denied Cheung's request for relief from his jury waiver, noting that "I don't have any indication on the record that there was any duress or lack of understanding on Mr. Cheung's part. The record indicates that it was a personal waiver on his behalf. The People are ready to proceed. So I'm going to deny the request at this time."

B.

Discussion

Cheung contends the trial court abused its discretion in denying his request for relief from his waiver of a jury trial. He acknowledges that his attorney could have waived his right to a jury trial, even over his objection (People v. Otis (1999) 70 Cal.App.4th 1174, 1177 (Otis); see also People v. Fisher (2006) 136 Cal.App.4th 76, 81 (Fisher)), yet he contends that his claim is governed by Code of Civil Procedure section 631^[3] and the body of law interpreting the trial court's discretion to grant relief pursuant to that section.^[4] We disagree.

In Otis, we reasoned that "[t]he Legislature must have contemplated that many persons . . . 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." (Otis, supra, 70 Cal.App.4th at p. 1177.) While the defendant in that case objected to his attorney's decision to waive jury, the rationale underlying our conclusion in that case applies with equal--if not greater--force to a defendant who seeks to revoke a waiver in which he expressly joined. Because a defendant cannot successfully object to his attorney's waiver in the first instance, it would be irrational to conclude that a defendant who initially agrees with his attorney's decision to waive a jury may thereafter obtain relief from the waiver without counsel's consent. Such a result would allow defendants to make an end-run around the longstanding rule that counsel in civil cases, including those involving MDO proceedings, "ha[ve] 'complete charge and supervision'" over the decision whether to exercise or waive his client's right to have a jury hear and decide the matter. (Id., at p. 1176.)

Our recent decision in Fisher is illuminating on this point. After the defendant's attorney waived a jury trial over his client's objection, the court granted the defendant's requests to discharge counsel and represent himself. The court thereafter granted the defendant's demand for a jury trial. (136 Cal.App.4th at pp. 78-79.) On appeal, the 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.) In rejecting that argument, we reasoned 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.) In reaffirming Otis, we noted that "[t]he instant case could serve as a paradigm for why a person with a severe mental disorder should not be allowed to veto his attorney's decision to waive jury . . . ." (Ibid.)

Cheung does not discuss either Otis or Fisher in his opening brief. In reply to the People's contention that these cases are dispositive of this claim, Cheung argues that both cases "simply have no relevance to this case" because he "expressly joined" in his attorney's waiver of his right to a jury trial and "counsel in this case did not oppose, but merely acquiesced in [his] request for relief from waiver . . . ." ^[5] No reasonable interpretation of counsel's comments would support the conclusion that he "acquiesced" in Cheung's request for relief from the jury waiver. On the contrary, counsel emphasized it was Cheung's request for relief from the waiver, not his. While the result would be clearer if counsel had expressly stated his opposition to Cheung's request, counsel's comments plainly conveyed that Cheung was on his own in making that request. Indeed, counsel's declination to expressly agree with Cheung's request is determinative: Even if the court had allowed Cheung to revoke his jury waiver, Otis and Fisher make it clear that Cheung was not empowered to trump counsel's waiver. Under the circumstances, it cannot be said the trial court abused its discretion in denying Cheung's request to revoke his jury waiver.^[6]

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald J. Miller, 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, Linda C. Johnson, Susan D. Martynec, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] Unless otherwise noted, statutory references are to the Penal Code.

^[2] In his reply brief, Cheung complains that the People have engaged in "a classic case of revisionist history" by "seek[ing] to bootstrap facts relied on by Dr. Hunter with respect to other of the criteria necessary to continue commitment of appellant as an MDO to justify, after the fact, her conclusion with respect to the 'substantial danger' criteria." The record belies this complaint. Dr. Hunter expressly referred to Cheung's entire history in concluding that he represents a substantial danger to others. Moreover, many, if not all, of the facts are relevant to more than one of the MDO criteria.

^[3] Subdivision (e) of that section provides that "[t]he court may, in its discretion

. . . , allow a trial by jury although there may have been a waiver of a trial by jury."

^[4] In this regard, Cheung generally relies on cases providing that trial judges should liberally exercise their discretion to grant relief from a jury trial waiver. (See, e.g., Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809; People v. Melton (1954) 125 Cal.App.2d Supp. 901, 905-906; Winston v. Superior Court (1987) 196 Cal.App.3d 600, 602.) Even assuming that Cheung was entitled to the benefit of these cases, requests for relief in this regard are subject to timeliness requirements. (See, e.g., Melton, supra, at p. 904; Byram v. Superior Court (1977) 74 Cal.App.3d 648, 651, citations omitted ["Where the trial court refuses to allow a jury trial no relief can be obtained unless it is established that the litigant made a timely application for relief and the court grossly abused its discretion"].) Cheung's request was arguably untimely because it was not raised until the day of trial. Although Cheung notes that only one witness was called and that the court trial lasted only about an hour, the court noted that the People were ready to proceed and there is no indication as to how long it would have taken to empanel a jury.

^[5] Cheung further argues that "in Fisher, this Court affirmed the trial court's order, which allowed appellant to obtain relief from his waiver of a jury trial, and to represent himself at the MDO hearing. [Citation.] As a result, neither the issue of the validity of an initial jury waiver nor the ability to request relief from that waiver was at issue in that case." Although the validity of the initial waiver was not at issue, the opinion unequivocally recognizes that the defendant had no right to revoke that waiver after his attorney was discharged.

^[6] In his opening brief, Cheung faults the stated basis for the court's denial of his request for relief from the jury waiver: "Specifically, the issue is not whether, as the trial court held, appellant's initial waiver of the jury trial, resulted from duress or lack of understanding, or was otherwise invalid when made. Indeed, if the validity of the initial waiver were the standard, there would never be grounds for granting relief from that waiver . . . ." In so arguing, Cheung fails to appreciate that the court must grant relief from a jury waiver that is not voluntary, knowing and intelligent. (See, e.g., People v. Chambers (1972) 7 Cal.3d 666, 670.) Cheung did not urge relief on any particular theory, so it was not only appropriate, but necessary to address the validity of the waiver in this regard.