P. v. Pascali
Filed 12/18/08 P. v. Pascali CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. NICK BARTOLOMEO PASCALI, Defendant and Appellant. | H031995 (Santa Clara County Super. Ct. No. CC128753) |
Defendant Nick Bartolomeo Pascali appeals from an order committing him to the California Department of Mental Health for continued treatment pursuant to the Mentally Disordered Offenders (MDO) Act. (Pen. Code, § 2970.)[1] Defendant argues that the judgment must be reversed because he did not personally waive the right to a jury trial and, alternatively, if the MDO statutory scheme does not require a personal waiver, then it violates his constitutional right to equal protection of the law. We reject the arguments and affirm.
I. Background
On or about November 29, 2001, defendant entered the apartment where he lived with his girlfriend, walked over to her with a pipe in his hand, told her he was going to kill her, and struck her in the head with the pipe. Defendant pleaded no contest to one count of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and was placed on probation for three years. Within weeks of sentencing, defendant violated probation by violating a protective order. When he was taken into custody it was observed that he suffered from delusions and disorganized thinking and was unable to understand the proceedings against him. He was found not to be competent and was committed to the California Department of Mental Health. (§ 1370.) In January 2004, defendant was returned to competence and criminal proceedings were reinstated. He was sentenced to three years in prison for the section 273.5 violation. Defendant was found to be an MDO (§ 2962) and was transferred to Atascadero State Hospital as a mentally ill inmate.
On June 29, 2005, defendant was paroled to the South Bay Conditional Release Program (CONREP). His commitment was set to expire on May 17, 2007. On December 11, 2006, CONREP recommended to the district attorney that defendant’s commitment be converted to a commitment under section 2970, which would allow him to continue treatment and supervision after the period of parole expired. Defendant had been diagnosed with serious mental illness and borderline intellectual functioning. His mental illness was being treated with two medications. CONREP was concerned that if defendant were released to the community without CONREP supervision and treatment he would be at risk for reoffending. On February 6, 2007, the district attorney filed a petition alleging that defendant’s severe mental disorder was not in remission, that defendant posed a substantial danger of physical harm to others, and that his commitment should be extended for a year as allowed by sections 2970 and 2972.
At a series of hearings held in the spring of 2007, defendant’s counsel appeared on his behalf, waiving his appearance each time. At the trial setting conference on June 29, 2007, counsel asked that the matter be set for trial. The court asked, “He does demand a jury trial; correct” to which counsel replied, “At this time, Your Honor.”
On August 17, 2007, prior to trial on the section 2970 petition, CONREP reported that defendant “has become increasingly non-compliant and dishonest with [CONREP]. In addition, he demonstrates little remorse for his instant offense and is also presenting with precursory behaviors of reoffense, or warning signs.” CONREP asked that, in addition to ordering his continued commitment, the court formally revoke defendant’s outpatient status.
The matter was tried to the court on August 22, 2007. Douglas Johnson, a clinical psychologist and director of CONREP, testified that defendant suffered from schizoaffective disorder bipolar type. Defendant had initially been reported as hearing voices but after he began taking antipsychotic medication the voices subsided. Even with medication he suffered from disorganized thinking, depression, and extreme emotional lability in stressful situations. Dr. Johnson opined that defendant’s condition was not in remission, that it could not go into remission without treatment, and that his condition posed a substantial danger of physical harm to others. Dr. Johnson also described behaviors that he believed showed that defendant had not been truthful with CONREP staff, which, in turn, reduced CONREP’s ability to supervise him. Accordingly, it was Dr. Johnson’s opinion that defendant needed to be re-hospitalized.
Defendant testified in his own behalf and also offered the testimony of his pastor. Defendant’s evidence focused upon Dr. Johnson’s allegations concerning defendant’s veracity.
The trial court found the allegations of the petition to be true and revoked defendant’s status as an outpatient. The record does not show that the court advised defendant of his right to a trial by jury nor is there a record of defendant having personally waived the right.
II. Discussion
A. Counsel’s Waiver of a Jury
The MDO Act protects the public from dangerously mentally disordered criminal offenders by requiring certain violent offenders to submit to involuntary supervision and treatment until they are no longer dangerous. (People v. Robinson (1998) 63 Cal.App.4th 348, 351-352; §§ 2962, 2970.) An MDO commitment will be required as a condition of parole if the inmate’s treatment provider and a practicing psychiatrist or psychologist certify that the inmate has “a severe mental disorder, that the disorder is not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factor in the prisoner’s criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others.” (§ 2962, subd. (d)(1).) If the inmate’s condition cannot be kept in remission without continued treatment, the inmate can be subject to continued involuntary commitment even after the scheduled parole release date. (§ 2970.) In order for commitment to continue, the director of the inmate’s treatment program must submit a written evaluation and recommendation to the district attorney prior to the termination of parole. The district attorney then files a petition for an order for continued involuntary treatment. (Ibid.) Continued involuntary commitment “shall be for a period of one year from the date of termination of parole or a previous commitment or the scheduled date of release from prison as specified in Section 2970.” (§ 2972, subd. (c).)
The hearing on a petition for an MDO commitment, whether for initial commitment or for continued involuntary treatment, is not a criminal trial. The Legislature has specified that such a hearing is a “civil hearing” (§§ 2966, subd. (b), 2972, subd. (a)), although it has provided procedural safeguards typical of criminal proceedings, such as the right to trial by jury, a unanimous verdict, and the reasonable doubt standard of proof. (§§ 2966, subd. (b), 2972, subd. (a).) Pertinent to our discussion is section 2972, subdivision (a), which provides, in part, “The court shall conduct a hearing on the petition under Section 2970 for continued treatment. The court shall advise the person of his or her right to be represented by an attorney and of the right to a jury trial. . . . [¶] . . . The trial shall be by jury unless waived by both the person and the district attorney.”
Defendant claims that the trial court violated his right to a jury trial by permitting defense counsel to waive a jury without obtaining defendant’s personal waiver of the right. According to defendant, in requiring waiver by “ ‘both the person and the district attorney,’ ” section 2972 requires a personal waiver from the offender. We disagree with his contention in light of People v. Montoya (2001) 86 Cal.App.4th 825, 829-830 (Montoya), which held that in a section 2970 proceeding jury trial may be waived by defense counsel on behalf of the defendant.
Defense counsel in Montoya waived a jury trial without any express waiver from the defendant himself. (Montoya, supra, 86 Cal.App.4th at pp. 827-828.) The appellate court rejected the defendant’s contention that his constitutional rights were violated. “[W]here a jury trial right is merely statutory, the federal Constitution is generally not implicated, and the right may be waived by counsel.” (Id. at p. 829.) In a civil case, “ ‘a jury may be waived by the consent of the parties expressed as prescribed by statute.’ ” (Ibid., quoting Cal. Const., art. I, § 16.) The question, therefore, was whether the words, “trial shall be by jury unless waived by both the person and the district attorney,” meant that defense counsel could waive jury trial on behalf of the client. Montoya held that use of the word, “person” did not mean that the person had to “personally” express his or her agreement to the waiver. If the Legislature had intended the offender to make the waiver personally, it would have said so. (Montoya, supra, at p. 831.) Montoya further observed that the Legislature had presumably recognized that many persons subject to the MDO law might not be competent to determine their own best interests, including whether to demand a jury trial. Thus, there was no reason to believe the Legislature meant to require a personal waiver from the defendant. (Id. at pp. 830-831.)
Defendant recognizes that Montoya defeats his argument but he maintains that Montoya was wrongly decided because the case did not consider that the statute also requires the court to advise “the person” of his or her right to a jury. (§ 2972, subd. (a).) This, according to defendant, shows that the jury trial right is “personal” and that Montoya was wrongly decided. As the Attorney General explains, the right is, of course, “personal.” The question is whether the offender must make the waiver of the right personally or whether the waiver may be made through counsel. We agree with Montoya, counsel may properly make that waiver.
Defendant argues that we should follow the reasoning in People v. Bailie (2006) 144 Cal.App.4th 841 (Bailie). But Bailie is inapplicable to defendant’s argument that section 2972 should be read to give him the right to personally decide whether or not to waive a jury. Bailie concerned a commitment proceeding under Welfare and Institutions Code section 6500 et seq., which applies to mentally retarded persons who are deemed to be a danger to themselves or others. Bailie observed that the commitment statutes pertaining to mentally retarded persons did not expressly include the right to a jury trial or the requirement that the person be advised of that right. On the other hand, the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5302), pertaining to commitment of mentally disordered persons, gave a person the right to demand a jury and required the court to advise the person of that right. Bailie held that there was no compelling reason to treat mentally retarded persons differently than mentally ill persons and that the disparate treatment violated the defendant’s right to equal protection. (Bailie, supra, at pp. 844-845.) Bailie gave the defendant the right to demand a jury where the statute had been silent on the point. Since the defendant had not been advised of the right, he could not have demanded it and the judgment had to be reversed.
The Bailie analysis does not apply here because the MDO statutes expressly grant the jury trial right and require the court to so advise the offender. Indeed, a jury trial is the default proceeding. Thus, we are not confronted at this point with the equal protection problem considered by Bailie. Rather, the error, if there was one, was that the trial court did not meet the statutory advisement requirement. The Attorney General recognizes the omission but argues that there was no prejudice. We agree.
Since the right at issue is purely statutory, the test for harmless error is that announced in People v. Watson (1956) 46 Cal.2d 818, 836: “That a ‘miscarriage of justice’ should be declared only 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.” A more favorable result is not reasonably probable here.
Even if defendant had not been advised by the court of his right to a jury trial, he had an attorney who told the court at one of the earlier hearings that defendant wanted a jury trial. Since the matter was ultimately tried to the court, counsel must have reconsidered the point and decided to waive a jury. She had the authority to do that even over defendant’s objection. (People v. Otis (1999) 70 Cal.App.4th 1174, 1176-1177; Montoya, supra, 86 Cal.App.4th at p. 829; see also People v. Masterson (1994) 8 Cal.4th 965 [competency hearings under § 1368].) Thus, an advisement by the court would probably not have changed the process that was employed. More importantly, it is clear that defendant would not have achieved a more favorable result with a jury. The evidence of defendant’s severe mental disorder was entirely undisputed so that there was no evidence upon which any finder of fact could have found that defendant was not an MDO requiring continued treatment. The only conflicting evidence was that related to defendant’s suitability for outpatient treatment with CONREP. Whether defendant was entitled to remain in outpatient treatment was a question the court, not a jury, was entitled to decide. (§§ 2972, subd. (d), 1608.) It follows that the error was not prejudicial.
B. Equal Protection
Defendant argues that if the MDO commitment scheme does not require a personal waiver of the right to a jury trial then it violates his right to equal protection because the extended detention act (EDA) applicable to juvenile offenders expressly requires a personal waiver from wards who are subject to extended detention. (See Welf. & Inst. Code, § 1801.5.)
The EDA allows the state to extend the detention of an adult ward under the jurisdiction of the Division of Juvenile Facilities (formerly the California Youth Authority) when the ward is determined, beyond a reasonable doubt, to be physically dangerous to the public because of his or her mental or physical deficiency, disorder or abnormality, which causes the person to have serious difficulty controlling his or her dangerous behavior. (Welf. & Inst. Code, § 1801.5.) The extended detention is for up to two years. (Id., § 1802.)
Commitment under the EDA is commenced by petition. (Welf. & Inst. Code, § 1800.) The ward is entitled to notice of the petition, a probable cause hearing, and a trial. (Id., §§ 1801, 1801.5.) Trial is by jury unless the right is “personally waived by the person, after he or she has been fully advised of the constitutional rights being waived.” (Id., § 1801.5.) Defendant interprets this provision as requiring that the ward personally waive the jury trial right, which implies that the ward might overrule his attorney on the issue. Assuming, without deciding, that defendant’s interpretation is correct, we detect no equal protection problem.
Both the state and federal Constitutions provide that no person shall be deprived of equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) A person claiming a violation of this provision must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439.) The threshold question in any equal protection case is whether the groups are similarly situated for purposes of the law being challenged. (In re Lemanuel C. (2007) 41 Cal.4th 33, 47 (Lemanuel).)
In Lemanuel, an adult juvenile offender argued that the EDA denied him equal protection because it is easier to extend a detention under the EDA than it is to extend the detention of persons under the Sexually Violent Predator (SVP) or MDO laws. The court rejected the claim: “The fact that Youth Authority wards committed under [the EDA] and adults committed as SVP’s or MDO’s are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that ‘persons committed under California’s various civil commitment statutes are similarly situated in all respects. They are not.’ [Citation.] Although [the EDA] is a civil commitment statute, as are the SVPA and the MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the [EDA] extended detention scheme challenged here.” (Lemanuel, supra, 41 Cal.4th at p. 48.)
Lemanuel pointed out that the SVP and MDO statutes narrowly target a group of offenders who are labeled based, in part, upon the nature of the underlying conviction, while the EDA broadly encompasses all youthful offenders without regard to the nature of their crimes. Lemanuel concluded: “Youth Authority wards are distinctly different from more serious adult offenders who have committed violent or sexually violent crimes.” The Legislature may “ ‘ “adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified.” [Citation.]’ [Citation.] As the Court of Appeal in this case appropriately recognized, ‘[t]he mere fact that the Legislature has made it more difficult to commit a more serious, adult offender--especially one who faces the stigma of being declared an SVP [or MDO]--does not give rise to an equal protection violation.’ ” (Lemanuel, supra, 41 Cal.4th at pp. 48-49.)
Lemanuel’s reasoning is applicable here. The fact that a person committed under the EDA and one committed pursuant to the MDO Act are both considered dangerous due to mental disorders does not mean that they are similarly situated. It is, arguably, easier to be committed under the EDA than it is to be committed under the MDO Act. Also, as the Attorney General points out, in contrast to the MDO’s underlying conviction, the juvenile offender’s initial detention would have been accomplished without the right to a trial by jury. The EDA covers all wards, regardless of their underlying crimes, which is different than the MDO Act, under which a person may be committed only if his or her mental disorder “was one of the causes of or an aggravating factor in the commission of the crime for which” he or she was incarcerated. (§ 2960.) Each EDA commitment hearing can result in a two-year extension of the commitment as opposed to only a one-year commitment under the MDO. Further, there is no requirement under the EDA that the ward be housed separately from other wards, but it does give the Department of Juvenile Facilities the authority to transfer any ward over 21 years of age to the Department of Corrections for placement in an appropriate facility to protect other persons in the custody of the department. (Welf. & Inst. Code, § 1802; In re Brian J. (2007) 150 Cal.App.4th 97, 124.) In short, the EDA ward is in a different situation with respect to his or her initial and continuing commitment than is the MDO. The Legislature was, therefore, entitled to adopt varying standards for waiving the statutory right to a jury trial in each situation, and defendant’s equal protection challenge must fail.
III. Disposition
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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