Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF090313, James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
On October 3, 2006, a jury found defendant Gran Destino Garrett to be a mentally disordered offender (MDO) under Penal Code section 2970 et seq. The following day, the trial court recommitted defendant to the Department of Mental Health at Atascadero State Hospital until August 5, 2007.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court committed reversible error in (1) instructing the jury with the old CALJIC jury instructions, rather than the new Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM), and (2) failing to start his trial within the statutorily prescribed period. For the reasons set forth below, we shall affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2001, defendant was convicted of making criminal threats under section 422; he was sentenced to prison for two years. Prior to his release on parole in November 2003, defendant was admitted to the Atascadero State Hospital because he showed signs of a mental illness and refused to accept treatment. When defendant first arrived at the hospital, he was physically combative with the hospital staff. In February 2004, defendant was found to meet the MDO criteria. Defendant’s commitment was changed to section 2962.
On June 5, 2006, the People filed a petition for continued involuntary treatment under section 2970 because defendant’s involuntary treatment was set to expire on August 5, 2006.
At a hearing on September 18, 2006, the court set a jury trial for the MDO proceedings for September 25, 2006. The defense made an oral motion to dismiss on “speedy trial” and “jurisdictional” grounds; the court denied the motion. Thereafter, on September 25, 2006, defense counsel filed a written motion to dismiss based on similar grounds; it was also denied.
On September 28, 2006, a jury was selected to try defendant’s case. At the hearing, the following evidence was presented:
Doctors at Atascadero State Hospital concluded that defendant suffers from a schizoaffective disorder bipolar type and polysubstance dependency. Defendant’s schizoaffective disorder exhibits itself through schizophrenic symptoms, as well as severe mood swings. Defendant harbors delusional beliefs that his internal organs are rotting and he is in need of a complete organ transplant. Additionally, he believes that he should be buried because “he smells so bad.” Defendant also suffers from paranoia. He is convinced that people around him, such as hospital staff, physicians, and patients, are trying to kill him. Defendant also hears voices. As a result of his mental illness, defendant is aggressive and assaultive.
Defendant’s mental illness is particularly severe because it affects his executive function. Defendant, however, does not believe that he has a mental illness. Therefore, he does not believe he needs medication to treat his mental illness. Notwithstanding his belief, defendant’s behavior improves when he is taking his antipsychotic and mood stabilizing medication. When defendant stops his medications, his aggressive and assaultive behavior quickly returns. However, even when defendant is on his medications, his illness does not go into remission because defendant continues to be paranoid and to have delusional beliefs about his internal putrefaction.
Defendant does well in a hospital environment because he can be involuntarily medicated there. But even at the hospital, defendant has pretended to take his pills but failed to ingest them. His behavioral problems at the hospital were directly attributable to his failure to take his medication. Were defendant to leave the structured and regimented environment of the hospital, where they have learned to ensure that defendant takes his medication, defendant would stop taking his medication and revert to his aggressive and assaultive behaviors. Defendant is a danger to himself and the community because of his mental disorders.
In fact, while awaiting trial, defendant engaged in destructive behavior in jail. He smashed a television to the ground, destroyed a telephone, and dumped water on exposed electrical wires, causing them to spark. During this episode, defendant refused to comply with the jail guards’ orders to cease. Defendant’s behavior in jail was indicative of what happens to defendant when he stops taking his medication.
After hearing the evidence, on October 3, 2006, the jury returned a true finding on the allegations of the MDO petition. The next day, the trial court signed an order for continued involuntary treatment.
II. ANALYSIS
A. CALJIC Jury Instructions
Defendant contends that the trial court committed structural error in using the CALJIC, rather than the CALCRIM, jury instructions. Defendant’s contention has no merit.
People v. Thomas (2007) 150 Cal.App.4th 461 is dispositive. There, in challenging his murder conviction, the defendant asserted—as defendant in this case—that the trial court engaged in structural error in failing to use the newly endorsed CALCRIM instructions. (Id. at p. 465.) The court held that, while the newer CALCRIM instructions were preferred and superior to the older CALJIC instructions, the adoption of CALCRIM instructions did not render the CALJIC instructions invalid. (Id. at pp. 465-466.) The trial court further noted that the defendant never requested CALCRIM instructions or objected to the use of the CALJIC instructions. (Id. at p. 465.) Therefore, the trial court concluded that there was no error in the trial court’s instructing the jury with the “legally valid and acceptably worded CALJIC instructions.” (Id. at p. 467.) The court further rejected the defendant’s argument that the use of the older instructions constituted structural error. (Ibid.)
We agree with the court in People v. Thomas, supra, 150 Cal.App.4th 461. Here, defendant did not object to the court’s use of the CALJIC instructions. Instead, defendant submitted a packet of CALJIC instructions to the trial court, requesting that the packet be used to instruct the jury. Moreover, defendant does not challenge any of the given instructions as legally inadequate, unclear, ambiguous, invalid, incorrect, or improper. Defendant merely states that the old instructions are now categorically invalid. However, “CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006.” (Id. at p. 465.) Therefore, we reject defendant’s contention.
B. Trial Delay
Defendant contends that he was prejudiced by the trial court’s failure to commence his trial within the statutorily directed period. Specifically, defendant argues that, although his trial was to commence at least 30 days before his commitment expired on August 5, 2006, under section 2972, his trial commenced on September 27, 2006. Defendant contends that he was prejudiced by the delay because the prosecutor was able to use evidence of his behavior that occurred after his prior commitment expired to prove that defendant is an MDO. We disagree.
1. Background
Defendant’s prior involuntary commitment was set to expire on August 5, 2006. On January 31, 2006, the medical director of Atascadero State Hospital advised the Riverside District Attorney that defendant’s mental disorder was not in remission and could not be kept in remission.
On June 30, 2006, the trial court set a trial readiness conference for July 14. Subsequently, a trial date was set for August 9, 2006, four days after defendant’s commitment was to expire. At that time, defendant made no objections to the trial date.
On August 9, the prosecutor moved for a continuance because the principal witness was about to go on vacation and would not be present during trial. Defendant objected and moved for a dismissal. The trial court granted the continuance and overruled the motion to dismiss.
A new trial readiness conference was scheduled for August 25. However, the conference was continued to August 28 when defendant was not produced in court. In a series of court-initiated continuance motions—as a result of criminal cases taking precedence over the mental health calendar—defendant’s trial was continued, over his repeated motions to dismiss, to September 27, 2006.
During the delay, defendant engaged in a behavioral outburst in court on August 9, the day his trial was initially scheduled to begin. In that outburst, defendant called the court officers lunatics and crazy, and stated that they should go to the devil. Defendant also announced that the judge was a lunatic who belonged on death row. Two weeks later, on August 22, defendant engaged in his destructive episode in jail. The prosecutor introduced the evidence of these events to the jury.
2. Discussion
Section 2972 provides that the trial to determine whether a patient is an MDO should commence no later than 30 days before the present involuntary commitment expires unless good cause is shown. The “practical purpose” of this deadline “is to ensure a reasonable amount of time in which to conduct a trial before the defendant is due to be released. [Citations.]” (People v. Williams (1999) 77 Cal.App.4th 436, 450-451.) Although this 30-day deadline partly benefits the defendant, in that the defendant “need not remain confined beyond the release date pending the end of trial” (People v. Kirkland (1994) 24 Cal.App.4th 891, 913), it “is primarily designed to serve the interests of the public, rather than the MDO, by providing reasonable assurance that an MDO who has been receiving treatment for a severe mental disorder will not be released unless and until a determination is made that he or she does not pose a substantial danger to others.” (People v. Williams, supra, at p. 451.)
In addressing due process and jurisdictional challenges to trials commenced after this 30-day deadline, or as much as six months after expiration of the MDO’s commitment term (see People v. Mitchell (2005) 127 Cal.App.4th 936, 939-942), courts have held that the 30-day deadline for trial is directory, but not mandatory. (Id. at pp. 945-946; People v. Noble (2002) 100 Cal.App.4th 184, 188; People v. Williams, supra, 77 Cal.App.4th at p. 451.)
Here, defendant’s trial did not commence within the statutorily directed time period of at least 30 days before his commitment expired. Instead, defendant’s trial commenced 53 days after his commitment expired. As noted above, however, the delay does not automatically constitute a statutory violation. Section 2972 expressly provides an exception to the 30-day rule if “time is waived by the person or [if] good cause is shown.” In this case, defendant’s trial was to commence on August 9—four days after his previous commitment was to end. The record indicates that there was no objection to this trial date. Therefore, defendant has waived the 30-day time frame under section 2972.
Even if defendant did not waive the 30-day time frame, the delay was for good cause. A trial court has broad discretion to grant continuances for good cause shown. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) A trial court’s determination that good cause exists to continue a trial is reviewed for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 852.)
Here, the trial court granted the first continuance based on the prosecutor’s motion because of her witness’s inability to attend the trial. It is not an abuse of discretion to grant a continuance to the prosecution to ensure the presence of a material witness at trial. (Gaines v. Municipal Court (1980) 101 Cal.App.3d 556 [proper to grant continuance to prosecution when critical subpoenaed witness failed to appear at trial]; In re Lawanda L. (1986) 178 Cal.App.3d 423 [continuance proper to permit prosecutor to secure attendance of crucial rebuttal witness].) Thus, there was no statutory violation in continuing the trial based on good cause.
After this initial continuance, several other continuances were made to defendant’s trial based on the court’s own motions to continue. As provided above, the continuances were the direct result of the priority given to criminal cases over the mental health calendar. Section 1050 provides that criminal cases are to receive precedence over any other matter. Mental health cases are civil matters. “Although the [Mentally Disordered Prisoners Act] is in the Penal Code and makes some rules of criminal procedure applicable to commitment trials, an MDO commitment is nevertheless a civil, not penal, proceeding.” (People v. Williams, supra, 77 Cal.App.4th at p. 457.) Hence, as a civil matter, defendant’s case was properly subordinated to the pending criminal matters. Therefore, the trial court had good cause to continue defendant’s trial.
Based on the above, we find that defendant has failed to establish a statutory violation of section 2972 because defendant’s trial delay was based on good cause.
Even if the delay in defendant’s trial were in violation of section 2972, defendant failed to demonstrate prejudice. As stated above, it is well settled that MDO proceedings are civil in nature, and an MDO’s right to a jury trial on petition is statutory, not constitutional. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1273-1275.) In addition, “the right to counsel (and the right to refuse such counsel) in MDO proceedings is of statutory, not constitutional origin.” (People v. Williams (2003) 110 Cal.App.4th 1577, 1591, fn. omitted.) Similarly, an MDO’s right to annual hearings regarding his continued confinement derives from section 2972, and therefore, is statutory in origin. Hence, if the delay in bringing defendant to trial beyond the statutory time frame constituted error, then “the error [was] purely one of state law, [and] the Watson harmless error test applies. [Citations.]” (People v. Epps (2001) 25 Cal.4th 19, 29; see also People v. Williams, supra, at pp. 1592-1593 [applying Watson test to denial of MDO’s right to self-representation]; People v. Cosgrove, supra, 100 Cal.App.4th at p. 1276 [holding Watson test applies to erroneous denial of jury trial on MDO petition].)
People v. Watson (1956) 46 Cal.2d 818.
In this case, there is no reasonable probability that, had defendant’s trial commenced before his prior commitment time had expired, he would have achieved a more favorable result. The evidence of defendant’s mental illness was overwhelming. Defendant’s treating and evaluating physician articulated that defendant’s illness does not and cannot go into remission because, even when defendant takes his medications, he still harbors the same delusional thought patterns and continues to believe that he does not need medication to treat his illness. The psychiatrist also unequivocally explained that, although defendant’s behavior at the state hospital had improved, defendant was still involuntarily medicated, and that regardless of his improved composure, defendant continued to pose a danger to himself and the community. Therefore, although the evidence of defendant’s behavior in court on August 9 and jail on August 22 helped to confirm that defendant continues to pose a risk to himself and the community, this evidence was not critical or necessary in light of the testimony from the doctors above. Thus, there is no reasonable probability that, absent the evidence obtained after his commitment expired, the jury would have reached a more favorable result for defendant.
The result would not change if we were to evaluate prejudice to defendant under the Chapman standard. Based on the evidence provided above, it is beyond a reasonable doubt that, had defendant’s trial commenced on time, the jury would have reached the same verdict. The psychiatrist’s testimony unequivocally demonstrated defendant suffers from a severe mental illness that cannot go into remission. Moreover, the psychiatrist testified that the only reason defendant behaves well at the state hospital is because of the highly structured and regimented environment it provides defendant. Absent that environment, defendant would quickly return to his aggressive and assaultive behavior. The doctor reached this conclusion independent of defendant’s latter behavioral outbursts in court and in jail. Therefore, it is beyond a reasonable doubt that the jury would have reached the same finding had defendant’s trial taken place in July rather than in September.
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J. Miller, J.