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P. v. K.S. CA4/2

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P. v. K.S. CA4/2
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05:29:2017

Filed 4/13/17 P. v. K.S. CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

K.S.,

Defendant and Appellant.


E065440

(Super.Ct.No. FELJS1500907)

OPINION


APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant K.S. appeals from the trial court’s order extending his commitment to a state hospital under Penal Code section 1026.5, subdivision (b). He argues that because the trial court denied his constitutional and statutory right to self-representation, the extension order should be reversed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 1992, defendant heard what he believed was the voice of God telling him to strike a person. He then assaulted a stranger on the street with a piece of steel. He was charged and found not guilty by reason of insanity of assault with a deadly weapon, with great bodily injury. (§ 245, subd. (a)(1).) A trial court committed defendant to the California Department of Mental Health, and he was admitted to Patton State Hospital (the hospital) in 1993, pursuant to section 1026.
On March 4, 2015, the hospital medical director notified the district attorney’s office that defendant’s maximum term of commitment was set to expire on August 3, 2015. He requested the district attorney file a petition for extension of commitment, pursuant to section 1026.5, subdivision (b), because the hospital’s treatment staff believed defendant represented a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. A report by Dr. Greta Herbes, a psychiatrist who worked at the hospital, stated that defendant had been diagnosed with schizoaffective disorder, bipolar type, alcohol abuse, and antisocial personality disorder. The report further stated that defendant had a significant history of assaultive behavior, and that he was still at risk of assaulting others. The district attorney filed a petition for extension under section 1026.5, subdivision (b) (the petition) on March 16, 2015.
A trial on the petition was held on February 1, 2016. Dr. Herbes testified first. She testified that she was defendant’s treating psychiatrist from 2011 to the summer of 2015. She said defendant had delusions, and he declared that he was a prophet and was married to three of the female staff members. In 2012, there were at least three documented incidents where defendant exposed himself to staff members. In 2014, there were multiple incidents where defendant was angry about being in the hospital for so long, so he would “spit” at staff members during his treatment meetings. In January 2015, defendant decided not to take his medication, and he decompensated within weeks. Dr. Herbes asked for a court order to force defendant to take his medication because he was becoming more psychotic, and he was denying he had a mental illness or that his dangerousness was a problem. Defendant refused to cooperate with his healthcare providers, so the hospital could not give him the most effective treatments available. He would not participate in key psychotherapy groups.
Dr. Maher Saleeb, defendant’s current treating psychiatrist at the hospital, also testified at the trial. Dr. Saleeb testified that defendant’s current level of insight was poor, in that he only had a partial understanding that he had a severe mental illness. Dr. Saleeb testified that schizophrenia was an illness that was permanent, but could be managed. In contrast, defendant believed schizophrenia went away after a long time. Dr. Saleeb further testified that defendant did not believe he needed to take medication or attend group therapy; thus, he was at a high risk of relapse. Dr. Saleeb said that when his symptoms were in relapse, defendant could be violent. He opined that if defendant were released, he would easily reoffend.
Defendant testified on his own behalf. He said he had been in the hospital for over 23 years, and he was frustrated and depressed. He said he did not feel better when he was on medication, and that if he had a choice, he would not take it. He said nothing changed when he previously went off his medication. Defendant testified that he had paranoid schizophrenia and that he “still [could] get a little paranoid.”
After hearing testimony and deliberating, a jury found that defendant, by reason of mental disease, defect, or disorder, represented a substantial danger of physical harm to others. The court confirmed the jurors’ finding that he still suffered from a mental disease and, as a result, would have serious difficulty controlling his behavior. The court concluded that defendant met the criteria of section 1026.5 and granted the extension of commitment for two years. The period of commitment was thus extended to August 3, 2017.
ANALYSIS
The Court Properly Denied the Request for Self-representation
Defendant claims that the court erred in denying his alleged constitutional and statutory right to represent himself at the trial on the petition and, therefore, the order extending his commitment must be reversed. We disagree.
A. Procedural Background
Prior to the trial on the petition, defendant moved to represent himself. At the outset, the court noted that, under Indiana v. Edwards (2008) 554 U.S. 164 and People v. Johnson (2012) 53 Cal.4th 519 (Johnson), the right to self-representation was not absolute where a defendant lacked the mental capacity to conduct his own defense. The court asked defendant why he wanted to represent himself, and defendant said that “[s]ometimes an attorney will take the attitude” that defendant had nowhere to go, so he should just stay at the hospital. Defendant also said he had been “locked up 23 years with a three-year sentence,” and he had been through all the therapy the hospital had to offer. He said he could go “directly to mental health and ask for boarding care,” and he could “phone [his] people who live in Florida for financial aid prior to getting an SSD check.” He added that he did not like “a person up there against me telling little lies,” and having his attorney “[j]ust let it slide.” He said he had to “put a stopgap . . . on this” and that he was “not responsible for something [he] did 42 years ago when [he] had treatment for it.” The court noted that defendant represented himself on a prior petition; defendant said it was eight years ago, and the “jury shot [him] down.” The court warned that he would be opposed by a trained prosecutor, and it would not assist him in his self-representation. Defendant then said he wanted “an outside attorney” and a psychiatrist to come and visit him “on his own and not have to answer to these people before the trial.” The following discussion ensued:
The court: “Well, the public defender can find . . . a psychologist to interview you.”
Defendant: “Yeah. That’s all I ask.”
The court: “Well, they can do that.”
Defendant: “Okay.”
The court: “Are you good with that, then?”
Defendant: “Yeah. I’m good. Yeah.”
The court: “So are you good with the public defender representing you?”
Defendant: “Well, get that for me if they could do anything.”
The court: “Well, I assume that that’s what they—that might be an option for you.”
Defendant: “All right. I’ll have that done. Yeah.”
The court: “Okay. So are you withdrawing your request to represent yourself at this time?”
Defendant: “No. No, no, no.”
The court: “Okay.”
Defendant: “I’ll just bring it up at my trial that you refused to allow me to have my own psychiatrist. And what is the reason for that?”
The court: “I haven’t refused it.”{rt 10}
The court then warned defendant about the difficulties of self-representation and asked him how far he had gotten in school. Defendant said he had completed high school. Finally, the court asked if he was currently taking any medication that interfered with his ability to think clearly. Defendant said he was.
Given defendant’s responses during questioning, the court concluded that he was not competent to adequately represent himself. Thus, the court denied his request for self-representation and ordered the public defender to remain his attorney. Approximately five months later, defendant renewed his motion to represent himself. The court said it would only reconsider the motion if there were changed circumstances. Defendant stated that he was requesting to represent himself “so that people can’t get by with lying or shafting [him] . . . .” The court stood by its prior ruling.
B. Defendant Did Not Have a Constitutional Right to Self-representation at His Commitment Extension Trial
Defendant concedes that no appellate court has yet to determine whether a defendant facing a recommitment trial under section 1026.5 has a constitutional, rather than a mere statutory, right of self-representation. Nonetheless, he argues this court should hold that he had a federal and state constitutional right to self-representation, in this context. We disagree.
“After a determination that a defendant is not guilty of a criminal offense by reason of insanity, he or she may be committed to the Department of Mental Health for a period not to exceed the maximum state prison sentence he or she could have received for the underlying offense. [Citation.] Such a defendant may be released when his or her sanity has been restored [citation], but must be released when the maximum period expires [citation]. However, the district attorney may petition to extend the commitment of a patient whose maximum term of commitment has expired, if the patient poses a substantial risk of physical harm to others as a result of mental disease, defect, or disorder. Such extensions are for a period of two years.” (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485 (Williams), overruled on other grounds as stated in Hudec v. Superior Court (2015) 60 Cal.4th 815, 828; see § 1026.5.) “A proceeding to extend the commitment of a patient under Penal Code section 1026.5 is essentially civil in nature, because it is directed to treatment and not punishment. [Citation.] An individual subject to recommitment proceedings ‘is not threatened with penal treatment. He has had his criminal trial and been adjudicated not guilty by reason of insanity. The only remaining issue is how long he must remain committed to a state hospital for treatment.’ [Citation.] No criminal adjudication is involved.” (Williams, at p. 485.)
The Sixth Amendment of the federal Constitution provides criminal defendants a right to waive counsel and represent themselves at trial, provided the waiver is intelligently and voluntarily made. (Faretta v. California (1975) 422 U.S. 806, 819, 835-836 (Faretta).) The holding in Faretta “was confined to the right to defend oneself at trial.” (Martinez v. Court of Appeal (2000) 528 U.S. 152, 154 (Martinez).) The Sixth Amendment “does not provide any basis for finding a right to self-representation on appeal.” (Martinez, at p. 160.) In other words, “the sole constitutional right to self-representation derives from the Sixth Amendment, which pertains strictly to the basic rights that an accused enjoys in defending against a criminal prosecution and does not extend beyond the point of conviction.” (In re Barnett (2003) 31 Cal.4th 466, 473 (Barnett), italics added.)
As to a state right to self-representation, “California law . . . has long been that criminal defendants have no right of self-representation.” (Johnson, supra, 53 Cal.4th at p. 523.) As explained in Johnson, “[w]hen Faretta was decided, the law in California had been that a criminal defendant had no constitutional or statutory right to self-representation, although in noncapital cases the trial court had discretion to grant a defendant’s request for self-representation. [Citations.] The California Constitution gives criminal defendants only the right to ‘the assistance of counsel’ and ‘to be personally present with counsel.’” (Id. at p. 526.) However, “California law is subject to the United States Constitution, including the Sixth Amendment right to self-representation as established in Faretta, supra, 422 U.S. 806, and its progeny.” (Ibid.) Thus, a criminal defendant’s right of self-representation in California is rooted in the federal constitution only, and a court in California may deny self-representation to the extent permitted by Faretta and its progeny. (Johnson, at p. 528.) In Indiana v. Edwards, supra, 554 U.S. 164, the United States Supreme Court held that states may deny self-representation to defendants who, “although competent to stand trial, lack the mental health or capacity to represent themselves at trial—persons the court referred to as ‘gray-area defendants.’” (Johnson, at p. 523.)
Defendant claims this court should find he had a constitutional right of self-representation at his recommitment trial by operation of section 1026.5, subdivision (b)(7), which states in pertinent part: “The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.” However, “proceedings to extend the commitment of a patient under section 1026.5, subdivision (b), though they include many constitutional protections relating to criminal proceedings, are essentially civil in nature.” (People v. Wilder (1995) 33 Cal.App.4th 90, 99.) Thus, “although many constitutional protections relating to criminal proceedings are available in extension proceedings, the application of all such protections is not mandated by section 1026.5. The statutory language merely codifies the application of constitutional protections to extension hearings mandated by judicial decision. It does not extend the protection of constitutional provisions which bear no relevant relationship to the proceedings. Thus, for example, ex post facto principles are not applicable to extension proceedings. [Citation.] Neither is the privilege against self-incrimination applicable to court-ordered psychiatric examinations.” (Williams, supra, 233 Cal.App.3d at p. 488, italics added.)
Therefore, it does not appear that defendant had a constitutional or statutory right to self-representation at his commitment extension proceeding. The Sixth Amendment right to self-representation, as stated in Faretta, “was confined to the right to defend oneself at trial.” (Martinez, supra, 528 U.S. at p. 154; see Faretta, 422 U.S. at pp. 835-836; see also Barnett, supra, 31 Cal.4th at p. 473.) However, defendant had already had his criminal trial and had been adjudicated not guilty by reason of insanity. The only issue at the extension trial was how long he should remain committed to the hospital for treatment. (See Williams, supra, 233 Cal.App.3d at p. 485.) Moreover, there is no indication that section 1026.5 confers the right to self-representation at extension hearings. (Williams, at p. 488.) We note defendant’s citation to People v. Wolozon (1982) 138 Cal.App.3d 456 (Wolozon). Wolozon held that, in a section 1026.5 hearing, the person committed to the state hospital has a right to confront psychiatrists and psychologists testifying against him at “any pretrial hearing concerned with the person’s knowing and intelligent waiver of his right to counsel.” (Wolozon, at p. 462.) However, the Wolozon court merely “assume[d] without analysis that there is a right of self-representation” at a section 1026.5 hearing. (Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, 440, fn. 8.)
Assuming arguendo there is a right of self-representation at a section 1026.5 hearing, we nonetheless conclude that the court properly denied defendant’s request in this case. The court denied it after a thorough discussion with defendant. When the court asked him why he wanted to represent himself, defendant stated that an attorney might have the attitude that he had nowhere else to go, so he should just stay in the hospital. Defendant also complained that he had been “locked up 23 years with a three-year sentence,” asserted that he could go to “mental health and ask for boarding care,” and said he did not like people telling lies about him using drugs. He added that he was not responsible for something he did 42 years ago. Defendant informed the court that he did represent himself on a prior petition, but the jury “shot [him] down.” Finally, defendant only had a high school education, and he was currently taking medication that interfered with his ability to think clearly. On this record, we cannot say the court abused its discretion in determining that he could not adequately defend himself without the help of counsel. (See Johnson, supra, 53 Cal.4th at p. 531.) His meandering responses, his lack of education, and the fact that he was on medication that negatively affected his thinking demonstrated that he did not have the capacity to adequately represent himself.
Defendant claims “the court conceded that [he] was lucid, bright, [and] appeared knowledgeable.” He also claims that the court did not deny his request because it found him incapable of self-representation, “but exclusively because the court believed [he] had no such right.” Both claims are belied by the record. Contrary to his claims, the record does not show that the court said defendant was “lucid, bright, [or] appeared knowledgeable.” Furthermore, in denying defendant’s request for self-representation, the court expressly stated: “And it would appear to me that given your responses to me today, I don’t think that you could adequately—that you are competent to adequately represent yourself.”
Finally, we note that substantial evidence supported the jury’s finding that defendant suffered from a mental disease, defect, or disorder, within the meaning of section 1026.5, and that he represented a substantial danger of physical harm to others, by reason of such condition. (People v. Williams (2015) 242 Cal.App.4th 861, 872 [“A single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment.”].) Dr. Saleeb testified that defendant did not believe he needed to take medication or attend group therapy; thus, he was at a high risk of relapse. Dr. Saleeb stated that when his symptoms were in relapse, defendant could be violent and if he were released, he would easily reoffend. Ultimately, defendant has given us no reason to reverse the order extending his commitment.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.


We concur:

McKINSTER
J.

MILLER
J.




Description Defendant and appellant K.S. appeals from the trial court’s order extending his commitment to a state hospital under Penal Code section 1026.5, subdivision (b). He argues that because the trial court denied his constitutional and statutory right to self-representation, the extension order should be reversed. We affirm.
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