Opinion
H036975
06-19-2013
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTONIO ESCUDERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 146796)
David Antonio Escudero appeals from an order extending his commitment as a mentally disordered offender. (Pen. Code, § 2970.) A petition dated January 14, 2011, requested that the trial court extend appellant's commitment term as a mentally disordered offender based on an affidavit from Napa State Hospital where appellant resides. The petition alleged that appellant had been committed after he violated Penal Code section 192 subdivision (a). The petition further alleged that appellant suffers from a severe mental disorder which is not in remission and cannot be kept in remission without continued treatment, and by reason of his mental illness, appellant represents a substantial danger of physical harm to others. After a court trial, the trial court found the allegations in the petition to be true and extended appellant's term for an additional year. This timely appeal ensued.
On appeal, we appointed counsel to represent appellant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 543-544 (Ben C.); People v. Taylor (2008) 160 Cal.App.4th 304.) In the opening brief, counsel requests that we allow appellant the opportunity to submit a brief in propria persona on his own behalf pursuant to Ben C. On June 27, 2011, we notified appellant of his right to submit written argument in his own behalf within 30 days.
On July 8, 2011 we received a letter from appellant. In his letter appellant contends that the order is not supported by the evidence, that he is being mistreated at Napa State Hospital and that he was deprived of a jury trial as required by Penal Code section 2972, subdivision (a). Appellant's argument that he is being mistreated is not a viable argument on appeal. If he does have concrete complaints about his treatment at the hospital, there are administrative procedural vehicles for him to raise those complaints. He cannot raise those claims on appeal in the first instance.
Appellant also contends that he was deprived of his right to a jury trial and that the decision was not supported by the evidence. While under Ben C. we are not required to review the record, we are not prohibited from doing so. (Ben C., supra, 40 Cal.4th at pp. 535-536.) Our review of the record reveals that the record is silent as to whether the trial court advised the appellant of his statutory right to a jury trial, or assured that appellant had so been advised by counsel. The record is also silent as to whether appellant, or counsel on his behalf, properly waived the right to a trial by jury. (Pen. Code sec. 2972, subd. (a).) Indeed in this instance, appellant's letter tends to suggest that his attempts to ask for a jury trial were ignored. We, therefore, asked appellate counsel to further brief the question of whether the trial court erred in failing to advise appellant and secure a waiver, and if there were error whether such error was harmless under People v. Watson (1956) 46 Cal.2d 818. Counsel has filed a supplemental brief, and we now address these issues.
Recently in People v. Blackburn (2013) 215 Cal.App.4th 809 (Blackburn)the majority found that the Santa Clara County Trial Court's practice of taking jury waivers off the record, in chambers, with only counsel present was "troubling." (Id at p. 835.)We further found that the purpose of the jury trial mandates are "frustrated and an MDO's right to a jury trial is undermined" (Id. at p. 836) when the trial court fails to make a record regarding compliance with a appellant's rights under Penal Code section 2972, subdivision (a). In his letter, appellant contends that he did ask for a jury trial, but was told to be quiet. The record before us does not support such an assertion. While we are not able to accept appellant's claim on appeal that his pleas for a jury trial were ignored, we can conclude, by implication, that he knew of his right to a jury trial. In Blackburn, the record was silent regarding compliance with both the advisement and waiver provision of Penal Code section 2972, subdivision (a). Here, the record on appeal is silent as to both as well, despite appellant's admission.
In the course of further briefing in this case, as well as the other similarly situated cases of which this court has already taken judicial notice in its prior orders, we received a request for judicial notice from the Attorney General in the case entitled People v. Gauwain, H037019. We granted that request on February 15, 2012, and took judicial notice of two settled statements prepared by the trial court in People v. Collier (May 9, 2013, H036720) [nonpub. opn.] and People v. Thomas (May 11, 2012, H036517) [nonpub. opn.] as well as a motion to settle the record filed in People v. Tran 216 Cal.App.4th 102. While no such request was made in this case, we, on our own motion, hereby take judicial notice of the documents attached to the request for judicial filed in Gauwain.
Where the evidence supporting appellant's claim that he opposed waiving his right to a jury trial lays outside the record on appeal, appellant has the alternative remedy of habeas corpus to challenge his commitment on the ground of ineffective assistance of counsel. (Blackburn, supra, 215 Cal.App.4th at p. 834, fn.12.)
In Blackburn, we found the failure to make a record, error, and held that "compliance with the statutory mandates matters even when there is overwhelming evidence to support a commitment order and the failure to comply with the statute can be deemed harmless error." (Blackburn, supra, 215 Cal.App.4th at p. 836.) Similarly here, we find that the trial court's failure to make a record regarding advisement and waiver of the statutory right to jury trial was error. From the record before us we are unable to determine if appellant, or counsel acting properly on appellant's behalf, waived his right to a jury trial. (Id. at p. 831.) However, as in Blackburn, this error is harmless because there was overwhelming evidence to support the commitment order.
At the hearing, the prosecution called appellant's treating physician from Napa State Hospital to testify and qualified him as an expert in diagnosis and treatment of mental disorders and risk assessment. This expert testified, based on his familiarity with appellant's history and performance, that appellant currently represents a substantial danger of physical harm to others. Appellant had no competing expert to challenge these conclusions, but testified on his own behalf, denying any mental illness or current drug addiction problem. Given the uncontroverted testimony of the prosecution's expert, we are unable to conclude that it is reasonably probable that a jury would have reached a different result than the trial judge. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276.) Nor can we say that the order is not supported by the evidence as [appellant] urges. "a single opinion by a psychiatric expert that the appellant is currently dangerous doe to a mental disorder can constitute substantial evidence to support the extension of a commitment." (Blackburn, supra, 215 Cal.App.4th at p. 834, citing People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.)
The appellant having failed to raise any issue on appeal, we have no alternative but to dismiss the appeal as abandoned. (Ben C., supra, 40 Cal.4th 529.)
DISPOSITION
The appeal is dismissed as abandoned.
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RUSHING, P.J.
I CONCUR:
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PREMO, J.
ELIA, J., Dissenting
I respectfully dissent in that I would affirm the judgment since this court addresses the substantive merits of appellant's cognizable arguments and finds no reversible error.
In requested supplemental briefing in this case, appellant has raised multiple issues related to jury trial, including the court's failure to advise him of his right to a jury trial and the lack of an express, personal waiver of a jury trial. As the majority indicates, no reversible error has been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) We must presume for purposes of this appeal that appellant's counsel informed appellant that he was entitled to be tried by a jury and counsel requested a court trial in accordance with appellant's informed consent. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [all presumptions are indulged to support a lower court judgment or order regarding matters as to which the record is silent; error must be affirmatively shown]; see also Conservatorship of John L. (2010) 48 Cal.4th 131, 148 ["When a statutory right in a civil commitment scheme is at issue, the proposed conservatee may waive the right through counsel if no statutory prohibition exists. [Citations.]"], 151-152 [attorney is obligated to keep client fully informed of proceedings, to advise client of his rights, and to refrain from any act or representation that misleads the court].)
Even assuming arguendo that appellant had a constitutional right to a jury trial as a matter of due process, the same presumption regarding waiver applies on appeal. (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Conservatorship of John L., supra, 48 Cal.4th at pp. 151-152.) To the extent appellant is arguing that he had concomitant due process rights, under either the United States or California Constitution, to a judicial advisement of his right to a jury trial and to personally waive a jury on the record, his arguments are unpersuasive since he was represented by counsel who presumably advised and consulted with him and there is no constitutional provision explicitly requiring an express, personal waiver of a jury in noncriminal proceedings. (See Cal. Const., art. I, § 16; cf. Code Civ. Proc., § 631; People v. Bradford (1997) 14 Cal.4th 1005, 1052-1053 [in criminal prosecution, no express, personal waiver from a defendant is required for waiver of constitutional right to testify; a trial judge may safely assume that a nontestifying defendant is abiding by his counsel's trial strategy].)
It is unnecessary in this case to repeat statements of the majority in People v. Blackburn (2013) 215 Cal.App.4th 809. As the U.S. Supreme Court stated: "The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." (Mills v. Green (1895) 159 U.S. 651, 653 ; see Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)