Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 146796
Bamattre-Manoukian, ACTING P.J.
On May 13, 2010, the trial court found that defendant David Antonio Escudero was a mentally disordered offender (MDO) and extended his commitment for involuntary treatment for one year pursuant to Penal Code section 2972. On appeal, defendant contends that the court erred in refusing his request for a jury trial and therefore the order extending his commitment must be reversed.
All further statutory references are to the Penal Code.
For reasons that we will explain, we will affirm the judgment.
BACKGROUND
In 1991, defendant, a codefendant, the victim, and others were involved in an altercation at a residence. The codefendant held the victim in a “choke-hold” and defendant stabbed the victim. Defendant and his codefendant dragged the victim from the residence and the victim eventually died.
As Escudero was convicted by plea in the underlying criminal case, the facts of his offense are taken from the probation officer’s report, which was based on a San Jose police report and a transcript of the preliminary examination.
Defendant was charged by “revised” second amended information with murder (§ 187). The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the offense (former § 12022, subd. (b)). The information further alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)) and that he had two prior serious felony convictions (§§ 667, 1192.7). The information was later amended to add a count for voluntary manslaughter (§ 192, subd. (a)). Defendant pleaded no contest to voluntary manslaughter, admitted the weapon use enhancement, and admitted that he had served two prior prison terms. The murder count was dismissed and the serious felony allegations were stricken. In November 1991, defendant was sentenced to 14 years in prison.
In July 2005, the district attorney filed a petition for continued involuntary treatment of defendant as an MDO for one year pursuant to section 2970. According to the petition, in 2002, defendant was admitted to Atascadero State Hospital as an MDO pursuant to section 2962, and in 2004, he was released on outpatient status under a conditional release program (CONREP). His commitment for involuntary treatment was set to expire in October 2005. In August 2005, defendant filed a waiver of appearance and submitted the matter on the petition by the district attorney and other reports. The trial court extended defendant’s commitment for one year.
In July 2006, defendant went “AWOL” from CONREP. The trial court ordered him remanded into custody. Defendant contacted CONREP and apparently turned himself in. On August 1, 2006, defendant appeared in court, and the court ordered him hospitalized before being reconsidered for outpatient placement. In September 2006, based on a recommendation from CONREP, the court ordered that defendant be returned to community outpatient treatment status. Defendant’s commitment for involuntary treatment was repeatedly extended thereafter.
In May 2009, defendant again went “AWOL” from CONREP and a bench warrant was issued. Defendant was apparently taken into custody in Oregon and then transported back to Santa Clara County. In August 2009, defendant appeared in court. That same month, the court revoked defendant’s outpatient status and ordered him transported to Napa State Hospital.
On February 1, 2010, the district attorney filed a petition to extend defendant’s commitment for involuntary treatment at Napa State Hospital for one year. According to the petition, defendant’s most current commitment was set to expire on June 19, 2010.
Prior to the court trial on the petition, the court determined that there was a need for a “Marsden type hearing.” During the hearing, at which the district attorney and the public were excluded, defendant indicated to the court that he “would like to have” a jury trial but was told by his trial counsel that he did not have the right. Trial counsel acknowledged that defendant wanted a jury trial but explained to the court that he (trial counsel) had reasons for selecting a court trial and it was his “decision to make.” Trial counsel provided those reasons to the court. At the conclusion of the hearing, the court denied defendant’s request for a different lawyer.
People v. Marsden (1970) 2 Cal.3d 118.
A court trial on the petition to extend defendant’s involuntary treatment was held on May 13, 2010. Dr. Jonathan William Berry, the acting senior psychiatrist at Napa State Hospital and formerly a staff psychiatrist at the hospital, was the sole witness to testify at trial. He was defendant’s treating psychiatrist from at least mid-November of 2009, until approximately two weeks before trial. He testified as an expert in the diagnosis of mental disorders and risk assessment.
Dr. Berry diagnosed defendant as having schizoaffective disorder, antisocial personality disorder, and polysubstance dependence, involving alcohol, marijuana, and PCP. Schizoaffective disorder is a “combination of symptoms of schizophrenia coupled with symptoms of a mood disorder, either major depression or bipolar disorder.” Defendant has a “history of major depressive symptoms and the bipolar mood.” With respect to symptoms of schizophrenia, defendant has a history of “command auditory hallucinations, ” which reportedly tell him to harm others, and a history of “grossly disorganized catatonic behavior.” Defendant reported hearing voices approximately a year and a half prior to his admission to Napa State Hospital, but he had not reported hearing any voices during his time at the hospital.
In providing an overview of antisocial personality disorder, Dr. Berry explained that the disorder is “basically a pervasive pattern of disrespect for the rights of others manifested in several different ways, including violence against others, or a history of criminal behavior....” Dr. Berry believed that defendant’s “fairly extensive history of violence” was consistent with the diagnoses of schizoaffective disorder and antisocial personality disorder.
Dr. Berry testified about his understanding of the circumstances under which defendant went “AWOL” from CONREP in early May 2009. Defendant drank beer with a peer from CONREP at a restaurant and at a bar. Defendant became so intoxicated that he had difficulty standing up. He was taken by the police to the county medical center and, after returning to his residence, he “eloped from CONREP entirely” and went to Oregon. He was found by the police in Oregon intoxicated and with evidence of trauma to his leg. Defendant “reported possibly that he had been dragged behind a vehicle.” He stated, “I’m not sure what happened. I was sleeping. I was dragged. We were playing or could have been playing.” Dr. Berry found it significant that defendant was drunk when he initially went “AWOL” and when he was found in Oregon. This showed “the very real difficulties [defendant] had managing his history of alcohol abuse, and how that is a contributing factor to some difficult behavior on his part.”
In Dr. Berry’s opinion, defendant would “represent a substantial risk” to others and would pose a “high risk of causing physical harm to others” if he was released into the community. This was based on defendant having “a significant Axis I diagnosis of schizoaffective disorder, ” his “long history of violence, ” his “recent history of relapsing with the substances, ” and his failure to take his medication while absent without leave from CONREP. Although defendant “does well for long periods of time in highly structured” settings, Dr. Berry opined that releasing defendant into “a completely unstructured setting... would put him at extremely high risk.”
Dr. Berry testified that defendant “believe[s] that he has... problems with alcohol dependence.” However, when defendant first came to the hospital he “really minimized his history of alcohol abuse and its significance, including his very recent relapse with alcohol....” Defendant “has been increasingly engaged” in substance abuse treatment and “has been attending A.A. and N.A. meetings, but it has been for a relatively short period of time.” Defendant was also cooperating with urine and toxicology screens, but “[t]hat has also been for a... short period of time.”
Dr. Berry believed that defendant had “done a nice job” in the admission unit and the locked unit at Napa State Hospital. However, he needed to remain at the hospital “for a while longer and continue to stabilize....” Dr. Berry explained that defendant needed to continue “working on the alcohol issue, ” develop a discharge plan, and spend time in an unlocked unit, as it would be a “good transitional step” between a locked unit and being discharged.
On cross-examination, Dr. Berry admitted that it was “unclear” to him whether defendant had alcohol in his system when he killed a man in 1991. Dr. Berry explained that some CONREP reports “say yes” but he had “seen another report that says no.” He also did not know whether defendant had alcohol in his system when he committed prior violent acts.
Dr. Berry acknowledged he had no evidence defendant “engaged” in violence while AWOL in Oregon, even though he was not taking medication, lacked supervision, and was drunk. Dr. Berry testified, however, that it was not logical to conclude from these circumstances that defendant posed a low risk of committing physical harm to others in the community. Dr. Berry pointed out that defendant was “involved in some violence” given that he was injured, apparently as a result of being dragged behind a car. Dr. Berry explained that “[a] two-month period without any reporting violence doesn’t really affect the risk assessment. [¶]... [¶] It just means he got away with a couple of months, unfortunately as far as we know that nobody got hurt, except” himself.
Dr. Berry assessed defendant as posing a low risk of physical harm to others while at Napa State Hospital “on a locked ward in a highly structured setting....” Defendant had not hit anyone while under Dr. Berry’s care, had not threatened to kill or beat anyone, and had “been pretty much a peaceful guy” at the hospital since September 2009.
At the conclusion of the trial, the court determined that the People had met their burden of proof and extended defendant’s commitment for one year. In a written order filed that same day, the court found that defendant “continues to suffer from a severe mental disorder, ” that the disorder “is not in remission, ” and that by reason of his disorder, defendant “represents a substantial danger of physical harm to others.” The court ordered defendant’s commitment extended until June 19, 2011.
DISCUSSION
On appeal, defendant contends that the trial court erred in refusing his request for a jury trial and that the error is reversible per se. Alternatively, he argues that he suffered prejudice under the harmless error analysis of People v. Watson (1956) 46 Cal.2d 818.
The People respond that defendant’s trial counsel was entitled to select a bench trial over defendant’s objection and, therefore, the trial court did not err in denying defendant’s request for a jury trial. Even if there was error, the People contend that the Watson test applies and there is no reasonable likelihood that a jury would have reached a different conclusion than the court.
“The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. (Pen. Code, § 2960 et seq.)” (In re Qawi (2004) 32 Cal.4th 1, 9 (Qawi).) Recommitment proceedings to continue an MDO’s treatment “shall be conducted in accordance with the provisions” of section 2972. (§ 2972, subd. (e).) Relevant here, section 2972, subdivision (a) directs that with respect to the trial on the petition for recommitment, “[t]he trial shall be by jury unless waived by both the person and the district attorney.”
We find the reasoning of People v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya (2001) 86 Cal.App.4th 825 (Montoya) persuasive and conclude, as did those courts, that the reference to “person” in section 2972, subdivision (a) permits defense counsel to waive a jury on behalf of defendant and that subdivision (a) does not require defendant to personally waive a jury.
In Otis, the Court of Appeal addressed whether identical language in section 2966, subdivision (b), which sets forth the procedure for challenging the initial commitment as an MDO, requires the defendant to personally waive a jury. (Otis, supra, 70 Cal.App.4th at pp. 1176-1177.) The trial court accepted defense counsel’s waiver of a jury over the defendant’s objection. The Court of Appeal concluded that the defendant need not personally waive a jury and that counsel may act on behalf of the defendant. (Id. at p. 1175.)
Section 2966, subdivision (b) states, “The trial shall be by jury unless waived by both the person and the district attorney.”
In reaching its conclusion, the Court of Appeal observed that “[g]enerally in civil cases, an attorney has ‘complete charge and supervision’ to waive a jury. [Citations.]” (Otis, supra, 70 Cal.App.4th at p. 1176.) Although the defendant did not dispute that an MDO proceeding is a civil matter, he argued that the reference to “person” in section 2966, subdivision (b) required that a jury waiver be by “the person himself” or herself. (Otis, supra, 70 Cal.App.4th at p. 1176.) The Court of Appeal pointed out, however, that “nothing in the requirement that the waiver must be by ‘the person’ precludes the person’s attorney from acting on his [or her] behalf. The Legislature did not say the waiver had to be made ‘personally.’ ” (Ibid.) Further, “[h]ad the Legislature intended that waiver could only be made personally by the [defendant], the Legislature would have made its intent clear. For example, the California Constitution, article I, section 16 states that waiver of a jury in a criminal case must be by ‘the defendant and the defendant’s counsel.’ No similar language appears in section 2966, subdivision (b).” (Ibid.)
The Court of Appeal was not persuaded by the defendant’s attempt to rely on other language in section 2966, subdivision (b) to support his argument that the reference to a waiver of a jury by a “person” means by the person himself or herself. For example, section 2966, subdivision (b) refers to a waiver of time by “petitioner or his or her counsel.” The defendant contended that “construing the word ‘person’ to include counsel makes the words ‘or his or her counsel’ surplus.” (Otis, supra, 70 Cal.App.4th at p. 1176.) The Court of Appeal explained that the rules of statutory construction, including the rule that surplusage should be avoided, cannot be “mechanically appl[ied]... to reach a result that is at odds with the intention of the Legislature.” (Id. at p. 1177.) In considering the “context and purpose” of section 2966, the Court of Appeal reasoned: “Section 2966 concerns persons who have been found by the Board of Prison Terms to be mentally disordered. The Legislature must have contemplated that many persons, such as Otis, might not be sufficiently competent to determine their own best interests. There is no reason to believe the Legislature intended to leave the decision on whether trial should be before the court or a jury in the hands of such a person.” (Otis, supra, at p. 1177.)
As of July 1, 2005, the Board of Prison Terms was abolished, the Board of Parole Hearings was created, and any reference to the former in the California codes was deemed a reference to the latter. (§ 5075, subd. (a).)
In Montoya, the Court of Appeal reached a similar conclusion that defense counsel may waive jury trial on behalf of the defendant under the same statute at issue in the present case. (Montoya, supra, 86 Cal.App.4th at p. 830.) In Montoya, defense counsel waived a jury and the defendant did not protest the waiver in court. Following a court trial, the defendant was recommitted as an MDO. (Id. at pp. 827-828, 831, fn. 4.) On appeal, the defendant contended that his constitutional rights were violated because he did not personally waive his right to a jury trial.
The Court of Appeal in Montoya first considered the general rules governing waiver of a jury. It explained that “in a criminal proceeding the right to a jury trial on the underlying charges is a federal and state constitutional right that must be waived by the defendant personally. [Citations.]” (Montoya, supra, 86 Cal.App.4th at p. 829.) Regarding civil cases, although the California Constitution establishes the right to a jury trial in such cases, “a jury may be waived by the consent of the parties expressed as prescribed by statute.” (Cal. Const., art. I, § 16.) This generally means that “an attorney or the client may waive jury trial in a civil case. [Citations.]” (Montoya, supra, 86 Cal.App.4th at p. 829.) As for “proceedings that are neither civil nor criminal, but ‘special proceedings, ’ such as a competency hearing, the right to a jury trial may be waived by counsel, even over defendant’s express objection. ([People v.] Masterson [(1994) Cal.4th 965], at p. 969.)” (Ibid.)
The Montoya court next considered the nature of an MDO proceeding and the applicable rules concerning waiver of a jury. It observed that “[a]lthough [an MDO] hearing, like a competency hearing, is something of a hybrid, a civil hearing with criminal procedural protections, it is nonetheless, as the statute clearly states and California courts have consistently agreed, a civil hearing. (§ 2972, subd. (a);...) As a civil hearing, jury trial may thus be waived ‘as prescribed by statute.’ (Cal. Const., art. I, § 16.)” (Montoya, supra, 86 Cal.App.4th at p. 830, fns. omitted.) The Court of Appeal determined that the words in section 2972, subdivision (a) that “[t]he trial shall be by jury unless waived by both the person and the district attorney” “mean defense counsel may waive jury trial on behalf of his [or her] client” (Montoya, supra, 86 Cal.App.4th at p. 830).
In making this determination, the Montoya court rejected the defendant’s argument that, “since the word ‘person’ as used in other parts of section 2972 refers to the defendant personally, it must do the same in this sentence of subdivision (a).” (Montoya, supra, 86 Cal.App.4th at p. 830.) The Court of Appeal reiterated the reasoning of Otis, supra, 70 Cal.App.4th at page 1177, that the rules of statutory construction may not be applied to reach a conclusion that conflicts with legislative intent, and there is no reason to believe that the Legislature intended to leave the decision about a jury trial in the hands of a defendant who might not be sufficiently competent to determine what is in the defendant’s best interest. (Montoya, supra, 86 Cal.App.4th at pp. 830-831.) The Montoya court observed that the defendant in the case before it “did not contest that he was an MDO not in remission, ” and “[t]he fact that the Legislature gave him other personal rights within the statute [did] not lead [it] to conclude that he had to personally waive his right to a jury trial in a civil proceeding.” (Id. at p. 831.) Moreover, “the Legislature knows how to make clear when a personal jury waiver is required, ” and “[n]o such language is present in the disputed sentence of section 2972.” (Montoya, supra, 86 Cal.App.4th at p. 831.)
In this case, defendant argues that the reasoning of Montoya is “flawed.” Defendant relies on a passage from Montoya in which the appellate court determined that there was “no reason to believe” that the defendant in the case before it “was capable of making a reasoned decision about the relative benefits of a civil jury trial compared to a civil bench trial.” (Montoya, supra, 86 Cal.App.4th at p. 831, fn. omitted.) Defendant contends that Montoya’s conclusion “that an MDO defendant is not capable of making a reasoned decision regarding a jury trial is negated by the California Supreme Court’s holding in” Qawi, supra, 32 Cal.4th 1.
The paragraph in Montoya, from which defendant quotes, states in full: “Although it is certainly conceivable, as defendant suggests, that a patient might be mentally disordered for some purposes and not for others, it is particularly difficult to sort those categories out in a case of schizophrenia, as all of the doctors testified. For whatever reasons (drug damage, inherited characteristics, other mental illnesses), defendant’s mind, as even his attorney admitted, did not function normally. Defendant’s poor judgment had been demonstrated by his aberrant behavior innumerable times over the years, most recently by his ill-considered decision to hit a staff member over the head with a chair and to threaten to kill staff members and fellow inmates. Thus there was no reason to believe that defendant was capable of making a reasoned decision about the relative benefits of a civil jury trial compared to a civil bench trial.” (Montoya, supra, 86 Cal.App.4th at p. 831, fn. omitted.)
In Qawi, the California Supreme Court addressed an MDO’s right to refuse antipsychotic medication. Under the MDO Act, “MDO’s who have been civilly committed after their parole period has expired are granted the same rights that are afforded involuntary mental patients” under certain provisions of the Lanterman-Petris-Short Act (LPS Act; Welf. & Inst. Code, § 5000 et seq.). (Qawi, supra, 32 Cal.4th at p. 9, fn. omitted; see § 2972, subd. (g).) Our Supreme Court determined in Qawi that “in order to give MDO’s the same rights as LPS patients, an MDO can be compelled to take antipsychotic medication in a nonemergency situation only if a court... makes one of two findings: (1) that the MDO is incompetent or incapable of making decisions about his medical treatment; or (2) that the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300.” (Qawi, supra, 32 Cal.4th at pp. 9-10, italics added and omitted.) In making this determination, the Qawi court observed that “someone committed or recommitted as an MDO may not necessarily fit in either of these categories” and that “such MDO’s would have the right to refuse medication in nonemergency circumstances.” (Id. at p. 10.)
In this case, defendant argues that “[i]f MDOs are competent to participate in their medical decisions despite a commitment for a mental disorder, it follows that they are also competent to participate in the decision of whether to have a jury trial.” We are not persuaded by defendant’s argument. First, Qawi concerned an MDO’s right to refuse antipsychotic medication and not whether a jury must be personally waived by the defendant. (See Qawi, supra, 32 Cal.4th at p. 15, fn. 4.) The different rights implicate different legal considerations. For example, the forced administration of medication implicates “the basic constitutional and common law right to privacy and bodily integrity.” (Qawi, supra, 32 Cal.4th at p. 15.) Second, neither Montoya nor Otis was based on the assumption that all individuals subject to the MDO Act are incompetent to determine whether a jury trial or a court trial should be had. Rather, those opinions relied on the premise that the Legislature presumably recognized that many defendants subject to the MDO Act might not be sufficiently competent to determine their own best interests, and there is no reason to believe the Legislature intended to leave the decision of a jury trial in the hands of such a defendant and require that a jury be waived personally by the defendant. (Otis, supra, 70 Cal.App.4th at p. 1177; Montoya, supra, 86 Cal.App.4th at p. 831.) This legislative intent, combined with the fact that an MDO hearing is a civil hearing, and the absence of an explicit requirement in section 2972, subdivision (a) that the defendant must personally waive a jury, led the appellate courts in Otis and Montoya to conclude that defense counsel may act on the defendant’s behalf. Qawi does not compel a contrary conclusion.
Defendant next contends that his right to a jury trial in an MDO hearing is protected by the Fourteenth Amendment of the United States Constitution, based on Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks). The Court of Appeal in Montoya addressed and rejected the same contention: “Defendant relies on Hicks..., but Hicks does not support him. In the very passage of Hicks cited by defendant, the Supreme Court stated: ‘Where... a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, [citation], and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State.’ (Id., at p. 346, italics added.) A jury sitting in a civil hearing pursuant to sections 2970 and 2972 does not impose criminal punishment and has no power to determine the extent to which the defendant will be deprived of his liberty. Defendant’s jury trial interest thus is, in this case, ‘merely a matter of state procedural law’ and does not implicate the Fourteenth Amendment. [Citation.]” (Montoya, supra, 86 Cal.App.4th at pp. 831-832.) In this case, defendant does not offer any reason for departing from Montoya. We agree with Montoya and determine that the failure of defendant to receive a jury trial did not implicate the federal due process clause.
In sum, we conclude, based on the reasoning of Montoya, supra, 86 Cal.App.4th 825, and Otis, supra, 70 Cal.App.4th 1174, and after careful consideration of Qawi, supra, 32 Cal.4th 1, that the reference to “person” in section 2972, subdivision (a) permitted defense counsel in this case to waive a jury on behalf of defendant and that the failure of defendant to receive a jury trial did not implicate the federal due process clause.
DISPOSITION
The order of May 13, 2010, extending defendant’s commitment pursuant to section 2972 is affirmed.
WE CONCUR: MIHARA, J., duffy, J.