Opinion
C087685
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN CARIDAD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 00F09254)
Defendant Benjamin Caridad appeals from the trial court's order extending his involuntary commitment to the State Department of State Hospitals for a period of one year. After defendant waived his right to jury trial, the trial court found beyond a reasonable doubt, pursuant to Penal Code section 2972, that defendant has a severe mental health disorder that is not in remission or cannot be kept in remission without treatment, and that by reason of this disorder, defendant represents a substantial danger of physical harm to others.
Undesignated statutory references are to the Penal Code.
Defendant contends: (1) the evidence is insufficient to support the trial court's finding he represents a substantial danger of physical harm to others; (2) the trial court prejudicially abused its discretion and violated defendant's constitutional right to due process by denying his motion to discharge appointed counsel, or in the alternative, failing to hold an adequate Marsden hearing; (3) the trial court further violated defendant's constitutional right to due process by finding he voluntarily waived his right to jury trial without inquiring into potential coercion; and (4) defendant's appointed counsel provided constitutionally deficient assistance by stipulating to the admission of a psychological evaluation in lieu of testimony and by failing to effectively argue against recommitment.
See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We affirm. The dangerousness finding is adequately supported by substantial evidence. The trial court did not abuse its discretion or violate defendant's right to due process by denying his Marsden motion or in conducting the requisite hearing. The manner in which the trial court found defendant voluntarily waived his right to jury trial did not amount to a violation of due process. Nor has defendant carried his burden of demonstrating ineffective assistance of counsel.
BACKGROUND
We begin with a brief overview of the statutory scheme pursuant to which defendant was initially committed as a mentally disordered offender (MDO) and subsequently recommitted on a yearly basis through the recommitment appealed from in this case.
"A prisoner certified as an MDO is treated by the State Department of Mental Health as a condition of parole. (§ 2962.) Unless good cause is shown, at least 180 days before parole is to end, the medical director of the state hospital 'shall' inform the district attorney in writing if the parolee's 'severe mental disorder is not in remission or cannot be kept in remission without treatment.' (§ 2970.) The district attorney 'may' then petition the superior court for another year of treatment. (Ibid.) . . . If the patient is found to have a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and by reason thereof represents a substantial danger of physical harm to others, the patient shall be recommitted for one year. (§ 2972, subd. (c).)" (People v. Cobb (2010) 48 Cal.4th 243, 247.)
Turning to the facts of this case, we previously recounted the circumstances giving rise to defendant's initial commitment as an MDO:
"Defendant began receiving psychiatric care at the age of 20 years and had been hospitalized 11 times under Welfare and Institutions Code section 5150. He also had a long history of substance abuse.
"In November 2000, the 32-year-old defendant intentionally set fire to an inhabited motel located on Stockton Boulevard. Defendant admitted he had been prescribed anti-psychotic medications but did not always take them. At the time of the offense, he had not taken any medication for a month. In June 2001, defendant entered a plea of no contest to arson and was sentenced to state prison for six years.
"During his term in state prison, defendant had been in a crisis bed twice. In 2006, after undergoing a psychological evaluation by the Department of Corrections and Rehabilitation, defendant was diagnosed with a psychotic disorder not otherwise specified (NOS) and polysubstance dependence, with symptoms and behaviors including 'auditory hallucinations, paranoid and delusional thinking, suspiciousness, isolation, depression, odd presentation, loose associations, [and] disorganized thoughts and respon[ses] to internal stimuli.' This diagnosis fell within the statutory definition of severe mental disorder. As a result of this diagnosis, defendant was determined to be an MDO and ordered to undergo treatment as a condition of parole.
"Before defendant's parole was set to expire in 2009, the District Attorney filed a petition for commitment as an MDO pursuant to . . . section 2970. The community program director in charge of defendant's outpatient program advised that his mental disorder was not in remission without treatment and he represented a substantial danger of physical harm to others if released unsupervised in the community. Defendant was committed as an MDO and has received treatment continuously since his release from prison on an inpatient or outpatient basis." (People v. Caridad (Nov. 22, 2013, C070479) [nonpub. opn.] [pp. 2-3], fn. omitted.)
Defendant was admitted to Napa State Hospital following his recommitment in 2016. He was recommitted in 2017 and again in 2018. The latter recommitment is at issue in this appeal.
At the recommitment hearing, in lieu of testimony, defense counsel stipulated to the admission of Napa State Hospital's written assessment of defendant's mental status. That assessment is comprised of a letter from Patricia Tyler, M.D., Napa State Hospital's Medical Director, accompanied by an affidavit signed by Dr. Tyler, a renewal evaluation form, and a psychiatric evaluation drafted and signed by Aaron Bartholomew, Psy.D., a staff psychologist at the hospital.
Dr. Bartholomew's report noted defendant was diagnosed with unspecified schizophrenia spectrum and other psychotic disorder, as well as various substance use disorders (designated severe for alcohol, cannabis, cocaine, & other hallucinogens, & moderate for amphetamine-type substances), in sustained remission, in a controlled environment. With respect to defendant's substance use disorders, the report noted defendant "was unwilling to speak at length regarding the extent of his substance use history but was willing to acknowledge a historic problem with alcohol."
With respect to unspecified schizophrenia spectrum and other psychotic disorder, Dr. Bartholomew's report indicated defendant "confirmed a history of hospitalizations or need for psychiatric care since the age of 20," reporting five such hospitalizations "though the prior report stated this number was 10." Defendant also "reported a history of being prescribed antipsychotic medications, but denie[d] a history of auditory or visual hallucinations." The previous report, however, chronicled a history of such hallucinations " 'including command hallucinations to paranoid delusions . . . [and] auditory hallucinations urging him to commit violence against his cellmate.' " The report also noted that since defendant's admission at Napa State Hospital, he "has presented with negative symptoms such as flat affect and as mildly disorganized and paranoid, often fixating on perceived wrongs that occurred during prior hospitalizations, or of previous units." Although defendant "present[ed] with some negative symptoms of schizophrenia, in addition to paranoid and perseverative thoughts, his thoughts [did] not appear to be explicitly delusional" and he "has also not been observed to be experiencing auditory or visual hallucinations on the unit, despite being initially unmedicated."
Dr. Bartholomew's report concluded the "symptoms of [defendant's] mental illness are not in remission," noting "some negative psychotic symptoms including flat affect" and "mildly disorganized and paranoid" thinking, but also noting he "has shown an increase in insight over the past three to six months." Nevertheless, the report also notes defendant "continues to have challenges seeing his behavior," such as "being focused on filing complaints," stems "from psychosis, or distorted perceptions. He attributes [many] of his problems to his history of substance use." The report further credits defendant for having "been increasingly compliant with treatment at the hospital over the past three to six months," noting he has "recently regularly attended his core treatment groups on the unit and has been able to engage appropriately in groups and individual interactions." The report also noted defendant "has worked independently to facilitate a patient led AA group on the unit to support his own and other[s'] sobriety."
After noting defendant's stated goal was " 'getting back to CONREP,' " i.e., the Department of State Hospital's conditional release program, the report also noted he completed a forensic relapse prevention plan, received feedback for purposes of improving the plan, and acknowledged some of the behaviors that led to his previous conditional release (from July 31, 2008 to Mar. 18, 2009) being revoked for, among other things, possessing a knife.
Dr. Bartholomew's report did not specifically offer an opinion with respect to whether or not defendant continued to represent a substantial danger of physical harm to others. However, Dr. Tyler's affidavit attached to her letter to the district attorney recommending recommitment indicates she reviewed defendant's case and concluded "that by reason of his severe mental disorder he represents a substantial danger of physical harm to others." Dr. Tyler expressed the same conclusion on the renewal evaluation form attached to her declaration.
After entertaining argument on the recommitment petition, the trial court found beyond a reasonable doubt that defendant has a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and by reason of that disorder, he represents a substantial danger of physical harm to others. Thereafter, the trial court issued an order extending defendant's commitment for one year.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support the trial court's finding he continues to represent a substantial danger of physical harm to others. He is mistaken.
"A recommitment under the . . . MDO . . . law requires proof beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder 'is not in remission or cannot be kept in remission without treatment'; and (3) by reason of that disorder, the patient represents a substantial danger of physical harm to others. (. . . § 2970.)" (People v. Burroughs (2005) 131 Cal.App.4th 1401, 1404, fn. omitted.)
In reviewing the sufficiency of the evidence in an MDO proceeding, we must determine "whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding." (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)
Defendant does not challenge the sufficiency of the evidence to support the trial court's conclusion with respect to the first two criteria for extending his commitment. We therefore address only the third criteria, i.e., whether he continued to represent a substantial danger of physical harm to others. Substantial evidence supports the trial court's conclusion he posed such a danger.
Although Dr. Bartholomew's report noted defendant "has shown an increase in insight over the past three to six months," he nevertheless minimized the extent of his mental health history, acknowledging only five hospitalizations when the actual number was twice that, and also denying a history of auditory or visual hallucinations. It is undisputed defendant's psychiatric condition contributed to his prior offense, setting fire to a motel room, and that he was not taking his antipsychotic medication when he did so. While defendant's present symptoms appear to be significantly less than they have been in the past, he still has symptoms, "such as flat affect and . . . mildly disorganized and paranoid" thoughts, despite regularly taking antipsychotic medication in a controlled environment. A rational trier of fact could have concluded defendant's minimization of his mental health problems, and his attribution of "[many] of his problems to his history of substance use," as opposed to his psychiatric condition, presented a substantial danger defendant would again stop taking his medication if released, leading to a likely increase in the severity of his psychiatric symptoms and a concomitant increase in the likelihood of the same sort of dangerous behavior that led to his initial incarceration.
Nevertheless, in support of his argument the dangerousness finding was unsupported by substantial evidence, defendant cites various positive aspects of Dr. Bartholomew's report, specifically, during the previous year, defendant "showed no signs of hallucinations or psychosis," he "had no incidents of verbal or physical aggression or property destruction, and engaged appropriately with peers and staff," and "he took his psychiatric medication willingly and independently and had a relapse prevention plan as well as plans to utilize resources provided by CONREP and to get further education." We acknowledge these facts are favorable to defendant's position. However, it is not our task to reweigh the evidence and determine the question of dangerousness ourselves. (See, e.g., People v. Williams (2015) 242 Cal.App.4th 861, 874 ["defendant wrongly asks us to reweigh the evidence"].) Our role as an appellate court is simply to determine whether or not the trial court's determination was supported by substantial evidence. We conclude it was.
II
Denial of Defendant's Motion to Discharge Counsel
Defendant claims the trial court prejudicially abused its discretion and violated his federal constitutional right to due process by denying his motion to discharge appointed counsel, or in the alternative, by failing to hold an adequate Marsden hearing. We disagree.
A.
The Marsden Hearing
Prior to the recommitment hearing, defendant filed a written request to discharge his appointed counsel, Kenneth Rosenfeld. The request noted Rosenfeld visited defendant on July 26, 2017, but claimed "his behavior was very abusive and bullying so that he terrified me." The request also explained defendant had filed a federal habeas corpus petition alleging "constitutional violations covering his recommitments as [an MDO] during the years 2013 through 2016," apparently based on Rosenfeld waiving defendant's right to jury trial during those recommitment proceedings, and further alleging that Rosenfeld's representation of him during those years amounted to "abandonment." The request asserted an "irremediable conflict of interest has arisen" between defendant and Rosenfeld, "due to the lack of communication in the past years' proceedings and because he continues to fail to communicate with me since that visit on July 26, 2017 where he terrified me with his threats to the point where I made complaints to my federal attorney and my social worker at Napa [State Hospital] but neither could help me."
At the hearing on defendant's Marsden motion, after excluding both the district attorney and defendant's attorney in the aforementioned federal habeas matter, the trial court informed defendant he should "speak very freely, very candidly" and explained what he said would be kept confidential. The trial court then asked defendant: "I just need to know the reasons why you think . . . Rosenfeld should be relieved as your lawyer and another lawyer appointed in his place, so what I would like you to do is to tell me the things that he should have done that he didn't do if that's the case or that he should not have done that he did do if that's the case, and be real specific. Don't just tell me, oh, he's not doing a good job for me or something like that. I need to know exactly what it is of . . . Rosenfeld's representation you are unhappy with, and then I will go to . . . Rosenfeld and hear from him."
The latter individual, Marylou Hillberg, attempted to appear on defendant's behalf and stated defendant "requested that [she] come to speak for him . . . because he finds it difficult." The trial court responded: "You are not a party to this case, Ma'am, so you won't speak for him. He'll speak for himself."
Defendant responded: ". . . Rosenfeld has not communicated with me since 2013 by telephone calls or letters. He hasn't answered my letters. He hasn't answered my telephone calls. I don't think this is, you know, procedure. I don't think it's normal. He's totally cut me off from the State courts, and the State courts are committing me each year because I am unable to, you know, communicate with my attorney. [¶] And last year I felt very threatened by . . . Rosenfeld when he verbally threatened me in a meeting with him, and I had to complain to the hospital police and my social worker, and also [Marylou Hillberg] instructed me on my Complaint. I think this should be the last time that I, you know, associate myself with . . . Rosenfeld because he's just pushing me away from my chances to come in to jury trial, you know, and --" In response to the trial court prompting defendant to explain what he meant by Hillberg instructing him on his complaint, defendant responded: "[Rosenfeld has] been waiving my right to jury trial without my consent. We would talk and then he would not say any instructions on jury trial or what kind of trial we would have, and he would just end up waiving the hearing, and I would be committed to another year in the hospital."
The trial court then heard from Rosenfeld, who began by setting forth his background of practicing law for "over 20 years," and having done so "in the mental health arena for 15 years." Rosenfeld explained he engaged in "a significant amount of psychiatric training every year" and kept apprised of "the latest law review articles as well as the periodic journals from scientific magazines and from different researchers in the field of mental health." Rosenfeld also boasted: "Currently I'm one of only a few attorneys in the entire State of California that can practice mental health law because of how intricate and how complicated it is with the crossovers of science, technology and actuarial skills. I have also been certified by the California State Bar to teach in the area of this at different MCLE and different other classes I have taught."
Rosenfeld then described his representation of defendant: "[H]e has been a client for just about a decade or maybe a little more. Over that period of time I have met with him no less than a dozen times. He was generally housed at Patton State Hospital, and I went to [that hospital] . . . many times. There has always been an investigator and an expert psychiatrist on the case for me for [defendant]. [¶] I think it's somewhat telling, aside from the report, of the delusions and schizophrenia, but [defendant] started his statement to the Court by saying I have not communicated with him since 2013, and then stated that last year when I met with him at the hospital, I allegedly made threats. So it can't be both ways. Of course I meet with him. My investigators met with him on many, many occasions. I have never made a threat to [defendant]. I excuse this conduct as part of the delusional behavior and the schizophrenia. I recognize, understand and more importantly, your Honor, sympathize with the fact that he has severe mental illness." At this point, Rosenfeld expressed his opinion that defendant's federal habeas counsel was "not helping the situation" by "agitating him to a point where she heightens his mental health issues and puts him in a different paranoia state with just her presence." Rosenfeld also stated the defense expert had reviewed the case and "cannot assist the defense at all."
In response to defendant's assertion he was "pushing him away from jury trial," Rosenfeld noted defendant recently sent him a letter indicating he did not want a jury trial. Finally, Rosenfeld stated he went to visit defendant at Napa State Hospital the day before, but "he was already transported to the jail, so it is true that I have not physically met with him since his last appearance which was about seven, eight months ago, but we have communicated and my investigator has met with him."
The trial court then asked defendant whether he had sent Rosenfeld a letter indicating he wished to waive jury trial. Defendant answered: "Yes, that's correct." Asked to "explain the inconsistency," defendant responded: "Um, your Honor, in 2013 he was -- he abandoned me for two years. And so in 2015 he finally came back and visited me, and he told me he was going to let me go, and so when he -- when that didn't -- when that wasn't successful, I filed a Marsden hearing, and so I lost, you know, pretty much respect of the Court and . . . Rosenfeld]. [¶] And so in 2017 we filed a stay. I had to waive -- I had to waive again because our relationship was -- was being separated, you know, it was getting more distant, so the more I picked up on his tactics, I started to waive. I started to waive, and it gave me my right other than him waiving it for me."
The trial court then heard more from Rosenfeld, who indicated defendant asked him to waive his right to jury trial on multiple occasions because he did not want "12 strangers" to hear certain embarrassing information from his background. Rosenfeld agreed with defendant's decision to waive jury trial and told him, as he explained, "in my opinion that a court is more likely to be able to be desensitized to information such as having carnal activities with animals much more than a jury could." Finally, Rosenfeld expressed his legal opinion that he was authorized under certain case law to waive jury trial even over defendant's objection because, in Rosenfeld's opinion, "he's not mentally stable enough to be able to make the decision."
After some additional questioning from the trial court concerning whether Rosenfeld had the ability to proceed to trial if defendant decided to demand a jury trial, Rosenfeld indicated there was no reason he could not do so, but again expressed his position defendant's "best interest would not be served by impaneling [a] jury." The trial court then asked Rosenfeld whether there was "any issue at all with respect to concern about the breakdown in communications." Rosenfeld responded: "None at all. I have met with [defendant] on more than a dozen occasions with my representation of him. We have a very good relationship, and we're able to just talk amongst ourselves or with my investigator. [Defendant] is an extremely bright person, and he is somebody that his communication is not a problem or issue. I think that I have already stated to the Court what I believe the problem is."
Provided a final opportunity to "add anything," defendant stated: "I just want to say there is communication breakdown, and I feel if we continue another year, the Court is just going to keep continuing my commitment with . . . Rosenfeld. Please replace him today."
The trial court denied the Marsden motion. Concluding Rosenfeld was providing defendant with "a [c]onstitutionally satisfactory level of representation," the trial court explained to defendant: "He has been communicating with you. Your own assertions to the contrary are internally contradicted. There are statements you made today which contradict on your own in other statements. . . . Rosenfeld is an exceptionally fine attorney with an enormous amount of experience in this particular area. [¶] . . . [¶] . . . And there isn't another attorney who could do a better job. I don't think there is -- it's hard to think of an attorney who could do as good a job as . . . Rosenfeld could do for you. I know you are not happy about aspects of this case, but . . . Rosenfeld has to deal with the evidence that's available."
B.
Analysis
"Marsden motions are subject to the following well-established rules. ' " 'When a defendant seeks to discharge his [or her] appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his [or her] contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' [Citations.]" ' [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
Here, the trial court gave both defendant and Rosenfeld ample opportunity to be heard on the Marsden motion. At the hearing, defendant specifically complained about a lack of communication between himself and Rosenfeld, purported threats allegedly made by Rosenfeld during their last in-person meeting, and previous waivers of defendant's right to jury trial apparently made by Rosenfeld over defendant's objection. Rosenfeld responded to each complaint and denied making any threats. The trial court appears to have credited Rosenfeld's denial and concluded defendant did not clearly demonstrate Rosenfeld was providing or was likely to provide inadequate representation. Also implicit in the ruling was a conclusion defendant had not clearly shown that he and Rosenfeld had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. Our review of the record has not persuaded us either conclusion was an abuse of discretion.
Nevertheless, defendant argues the ongoing federal habeas litigation and defendant's allegation of threats made by Rosenfeld demonstrated "a clear conflict between . . . Rosenfeld's own interests and [defendant]'s." Relying primarily on Holloway v. Arkansas (1978) 435 U.S. 475 (Holloway), defendant argues the existence of this conflict required the trial court to either seek a waiver from defendant, appoint replacement counsel, or take other "steps to ascertain whether the risk [is] too remote to warrant separate counsel." (Id. at p. 484, fn. omitted.) Holloway is manifestly inapposite. That case involved a conflict of interest that arose from counsel's representation of three codefendants in a criminal case, each of whom decided to testify, placing counsel in the position of eliciting testimony from each client that was harmful to the other two. (Id. at pp. 476-481.)
In contrast, here, the purported irreconcilable conflict arises from defendant having filed a habeas petition in federal court alleging ineffective representation and violation of defendant's right to jury trial in previous recommitment hearings. Whether or not the allegations of ineffective assistance in those proceedings have merit is not before us. Either way, we do not doubt the habeas filing created a potential conflict between Rosenfeld's interests and those of defendant. However, the same sort of potential conflict arises any time a defendant files a Marsden motion asserting ineffective assistance of counsel because "[t]he attorney must defend against charges from the very client he or she is supposed to be representing." (People v. Smith (1993) 6 Cal.4th 684, 694.) This does not mean a defendant may manufacture such a conflict merely by alleging ineffective assistance in counsel's handling of the case, or as here, by filing a federal habeas petition alleging ineffective assistance in previous litigation, and thereby "obtain substitute counsel on demand." (Ibid.) The Marsden hearing enables the trial court to determine "whether counsel has been providing competent representation" notwithstanding the defendant's claims to the contrary. (Smith, at p. 695.)
Despite the ongoing federal habeas litigation, the trial court determined defendant had not clearly demonstrated ineffective representation had occurred or was likely to occur in the current recommitment litigation. This determination was not an abuse of discretion.
We also note defendant relies on events occurring after the Marsden hearing to argue, "the conflict impaired counsel's performance," specifically, Rosenfeld's act of stipulating to the admission of Napa State Hospital's assessment of defendant's mental condition in lieu of testimony and his failure to effectively argue against recommitment. For obvious reasons, because these events had not yet taken place, they could not have informed the trial court's ruling on the Marsden motion. We address them in connection with defendant's claim of ineffective assistance of counsel in part IV of the discussion.
III
Waiver of Defendant's Right to Jury Trial
Defendant further asserts the manner in which the trial court found he voluntarily waived his right to jury trial amounts to a violation of due process. We are not persuaded.
A.
Additional Background
Following denial of defendant's Marsden motion, the trial court gave defendant and Rosenfeld an opportunity to discuss "the issue of a jury trial or waiving a jury trial." After a brief recess for that purpose, Rosenfeld informed the trial court defendant wished to waive his right to jury trial, adding: "That being said, [he] told me that five minutes ago, and he changes his mind rather quickly, so I would ask the Court to inquire."
The trial court then informed defendant he was entitled to a jury trial unless he personally waived that right. The trial court also explained that an attorney can waive the right over a defendant's objection "if the Court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver," but indicated: ". . . I don't find that you lack the capacity to make a knowing and voluntary waiver. I find that you do have the capacity to do that, so I'm saying this so I want you to understand it. It is your decision whether to have a jury trial or not. If you want to have one, we'll have a jury trial. [¶] I won't permit . . . Rosenfeld, I don't know that he would want to anyway, but I won't permit . . . Rosenfeld to waive jury over your objection, but I want to be sure that if we do waive jury that's what you want to do. Now, . . . Rosenfeld had talked to you about the reasons why a case like this might be better tried before a judge than a jury. That may or may not be the case, but I do want you to, having considered . . .Rosenfeld's counsel, be sure you are making your own personal decision about whether to waive jury or not waive jury."
After defendant indicated he understood what the trial court had told him, the trial court asked: "So what would you like to do on this?" Defendant answered: "I'll waive." The trial court reiterated: "Let me just make it very clear that you have the right to have a jury decide this. They would have to be unanimous. The People would have the burden of proving their case beyond a reasonable doubt to the satisfaction of all 12 jurors in order to achieve this extension that the People are seeking." Asked whether he understood, defendant answered: "Yes, I do, your Honor." "And with that in mind," the trial court continued, "do you waive -- do you understand your right to have a jury trial, do you waive your right to a jury trial in this matter?" Defendant answered: "I do, your Honor."
Based on the foregoing, the trial court found "a knowing, intelligent and voluntary waiver" of defendant's right to jury trial.
B.
Analysis
Section 2972 gives an MDO "the right to a jury trial." (§ 2972, subd. (a)(1).) Because this provision "gives the defendant, not counsel, primary control" over whether or not to waive this right, "a court must obtain a personal waiver of the defendant's right to a jury trial before holding a bench trial" unless "the trial court finds substantial evidence that [the] defendant lacks the capacity to make a knowing and voluntary waiver," in which case "control of the decision shifts to defense counsel." (People v. Blackburn (2015) 61 Cal.4th 1113, 1125.)
"[A] defendant's waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, ' " 'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,' " ' as well as voluntary ' " 'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.' " ' [Citations.]" (People v. Collins (2001) 26 Cal.4th 297, 305.)
Here, the trial court determined defendant possessed the capacity to make a knowing and voluntary waiver, apprised defendant of the nature of the right he was giving up and the consequences of doing so, informed defendant the decision to waive a jury trial belonged solely to him, and further advised defendant: "I want to be sure that if we do waive jury that's what you want to do." Defendant stated he understood these admonishments and thereafter waived his right to jury trial. Nothing more was required of the trial court.
Defendant's right to due process was not violated by the manner in which the trial court found he voluntarily waived his right to jury trial.
IV
Ineffective Assistance of Counsel
Finally, defendant claims he received ineffective assistance of counsel. This claim is largely premised on the purported irreconcilable conflict of interest addressed above. For reasons already expressed, we do not accept the premise defendant's filing of a federal habeas corpus petition resulted in an irreconcilable conflict. However, this conclusion does not entirely dispose of defendant's ineffective assistance of counsel claim. Defendant also argues Rosenfeld provided constitutionally deficient assistance by stipulating to the admission of Napa State Hospital's assessment of defendant's mental condition in lieu of testimony and by failing to effectively argue against recommitment. We reject these arguments as well.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him [or her] to 'the reasonably competent assistance of an attorney acting as his [or her] diligent conscientious advocate.' [Citations.]" (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
We begin with the first element of this claim, deficient performance. "Generally, failure to object [to the admission of evidence] is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520.)
Here, Rosenfeld did more than fail to object to the admission of Napa State Hospital's assessment of defendant's mental condition; he affirmatively stipulated to its admission in lieu of testimony. This suggests a tactical decision was made, rather than a negligent omission. Nevertheless, defendant argues had counsel not so stipulated, he could have objected to hearsay in Dr. Bartholomew's report and cross-examined the doctor in order to "emphasize the favorable aspects of the report and bring out the lack of evidence of dangerousness." Perhaps. But the report itself was favorable to defendant on the question of dangerousness. Although it, in conjunction with Dr. Tyler's affidavit, contains substantial evidence of current dangerousness, as defendant himself points out in his briefing on appeal, the report itself does not provide a conclusion on the subject. Rosenfeld may well have determined no opinion from Dr. Bartholomew on the question of dangerousness was better than having the doctor testify and run the risk of him opining on the witness stand that defendant did indeed continue to represent a substantial danger of physical harm to others. We decline to second-guess Rosenfeld's decision in this regard.
Finally, defendant argues Rosenfeld "entirely failed to argue that the prosecution had not met its burden of proof beyond a reasonable doubt" with respect to defendant's continuing dangerousness. Not so. In arguing defendant did not represent a danger of physical harm to others, Rosenfeld first noted Dr. Bartholomew's report indicated defendant had not been observed experiencing auditory or visual hallucinations in his current unit despite initially being unmedicated. Rosenfeld also highlighted defendant's statement to Dr. Bartholomew that he would seek treatment if he began experiencing psychiatric symptoms. Rosenfeld argued, "he's nonviolent in that he would use peer groups -- I'm paraphrasing to some extent -- and work with his social workers. [¶] I think that shows tremendous insight, and I think that by reading this report in comparison with prior reports on behalf of [defendant] it does show that he is making gains without question."
At this point, Rosenfeld argued: "There is no way that [defendant] is going to get cured. It just doesn't happen. It's not medically possible, but he does have insight. He is doing better. He is not responding to stimuli. He is making appropriate gains. I'm just not sure how much more he can do in the hospital, your Honor. I think he should be given an opportunity to be in either at a minimum in CONREP or in a maximum released. I don't think the hospital is going to be able to do anything more for him in this controlled setting." Rosenfeld also noted defendant had "support in the community" and argued, "he should be given an opportunity."
Defendant complains that Rosenfeld argued adversely to his interests, and did so based on no evidence in the record, by arguing his mental illness was incurable. While we certainly understand defendant's concern, the overall theme of Rosenfeld's argument was that defendant made significant progress in his recovery, showed equally significant insight into his mental health issues, and possessed the tools to prevent a potential relapse of symptoms from becoming dangerous. We read the objectionable portions of the argument as being harmless surplusage of the "let me level with you" variety.
We also view as surplusage comments Rosenfeld made in rebuttal concerning defendant's federal habeas petition. After calling that litigation "frivolous" and blaming defendant's habeas counsel for being "the impetus . . . or catalyst for that," Rosenfeld argued: "But be that as it may, it is still my opinion that he has done well enough to be able to have the opportunity to be in the community, at a minimum supervised by CONREP, that he deserves an opportunity to succeed and make gains. He can make gains through CONREP, so I will submit on that."
Defendant argues: "The question in this case was not whether [he] deserves to be released for trying hard in the hospital program. The only question was whether he was presently dangerous to others and whether his mental disorder was presently causing him to be unable to control dangerous behavior. Counsel failed to argue the elements the prosecution was required to prove, but had not proven." For reasons expressed earlier in this opinion, we disagree with the claim the People did not prove dangerousness. The reason for our conclusion in that regard was defendant's lack of insight and minimization of his psychiatric condition presented a substantial danger he would stop taking his medication if released, leading to a likely increase in the severity of symptoms and a concomitant increase in the likelihood of the same sort of dangerous behavior that led to defendant's initial incarceration. Rosenfeld argued against such a conclusion by pointing out the aspects of Dr. Bartholomew's report that supported an increase in defendant's insight into his mental health condition and also pointing out defendant had access to treatment options and support groups upon his release.
We conclude neither Rosenfeld's stipulation to the admission of Dr. Bartholomew's report in lieu of witness testimony nor his argument to the trial court regarding the element of current dangerousness amounted to constitutionally deficient performance.
DISPOSITION
The judgment (June 14, 2018 order extending defendant's commitment to the State Department of State Hospitals) is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BUTZ, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------