Opinion
F077395
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. STEVEN MARK HAMM, Defendant and Appellant.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CF96912986, CF98917916)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Don Penner, Judge. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen Acting P.J., Franson, J. and DeSantos, J.
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Appellant Steven Mark Hamm admitted allegations in a petition to extend his commitment as a mentally disordered offender. (Pen. Code, § 2972.) On appeal, Hamm contends the court violated his right to due process when it accepted his written waiver of his right to a jury trial and admission of the petition allegations. We affirm.
All further statutory references are to the Penal Code.
FACTS
On July 13, 1999, Hamm was sentenced to prison following his conviction for first degree robbery (§ 211) with a weapon enhancement (§ 12022, subd. (b)(1)) and petty theft with a prior (§ 666). On March 1, 2002, he was committed to the State Department of State Hospitals at Atascadero (DSH Atascadero) as a mentally disordered offender (MDO) and subsequently transferred to the State Department of State Hospitals at Napa (DSH Napa). On December 22, 2011, he was transferred to California State Prison Sacramento. On June 7, 2017, Hamm was admitted back to DSH Napa.
Hamm suffered from schizoaffective disorder, bipolar type when he was initially committed to DSH Atascadero. His recent diagnosis also included three substance abuse disorders, antisocial personality disorder, and unspecified neurocognitive disorder.
On January 16, 2018, the Fresno County District Attorney filed the underlying "Petition for Extended Treatment" (§ 2972).
The petition alleged, in pertinent part, that Hamm continued "to present with an active mental disease, defect, or disorder within the definition of ... [section] 2972 and by virtue of that mental disease, defect, or [mental] disorder continues to constitute a significant and substantial danger to himself and others." --------
On March 1, 2018, at a hearing in which Hamm was represented by counsel and did not personally appear, the court continued the arraignment on the petition until March 22, 2018.
At a hearing on March 15, 2018, at which Hamm was represented by counsel and again did not personally appear, the court left the arraignment date on March 22, 2018, and set the trial for April 12, 2018. A handwritten letter and several forms signed by Hamm were also filed during the hearing. On two of the forms, Hamm challenged the recommendation for continued confinement and demanded a jury trial. On each of those forms, Hamm marked a box in front of the statement: "I do not believe that I need further treatment, and I demand a jury trial to decide this question." (Italics added.) On a third form, Hamm indicated he did not want to be present for the extension hearing, did not need transportation so he could continue to be housed at the hospital during the hearing, and that he "would like ... a jury trial." (Italics added.)
On March 22, 2018, at the arraignment hearing, Hamm's defense counsel filed a form entitled, "Admission of Petition, Waiver of Rights and Declaration of Respondent." Attached to it was a declaration Hamm signed on March 16, 2018, in which Hamm stated that his counsel had explained to him his right to a trial and to present evidence and that he understood those rights. In pertinent part, Hamm also declared that he understood he had the right to a jury trial, to confront and cross-examine and subpoena witnesses, and the right against self-incrimination, and that he gave up those rights. The declaration also contained the following statements:
" 7. I understand that before my commitment could be involuntarily extended for another year, each and every member of the twelve person jury would be required to find beyond a reasonable doubt that the matter alleged therein is true. By admitting that the petition is true, however, the court will find that it is true and will extend my commitment for the period described by law of one year. I have a right to a verdict from a jury. I understand that right. I hereby give up that right. (Italics added, emphasis omitted.)
"8. I consent to the court's finding that the petition is true, and to the court's extension of commitment for one year, to wit: March 10, ... 2019." (Emphasis omitted.)
The court then found the allegations of the petition true based on the filing of the above documents and ordered Hamm's commitment extended until March 10, 2019.
On April 2, 2018, Hamm filed an unsigned pro se document asking the court for a change of venue from Fresno County to Sacramento County for the hearing on the petition.
On April 4, 2018, the court denied the motion as moot.
DISCUSSION
Hamm appears to contend that because he had the mental capacity to enter a personal waiver, the court should have elicited his "waiver decision" in a court proceeding after: (1) advising him of his right; (2) explaining the consequences of waiving them and admitting the petition allegations; and (3) explaining that it was his decision whether to waive his rights. Thus, according to Hamm, the court violated his right to due process when it accepted his waiver of his right to a jury trial and admission of the petition allegations without him being present and without giving him personal advisements. Hamm relies on People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn), in support of these contentions and to further contend that reversal is required because in that case, the Supreme Court held that MDO commitment proceedings without a valid waiver of the right to a jury trial constitutes a miscarriage of justice, requiring reversal per se. (Id. at p. 1135.) There is no merit to these contentions.
"A mentally disordered offender may be involuntarily committed at three different stages: as a condition of parole [citation], in conjunction with the extension of parole [citation], and following release from parole (§§ 2970, 2972). [Citation.] [¶] The district attorney may seek continued treatment and commitment of a mentally disordered offender beyond the termination of parole by filing a petition in the superior court alleging that the individual suffers from a severe mental disorder that is not in remission and that he or she poses a substantial risk of harm to others." (Blackburn, supra, 61 Cal.4th at pp. 1122-1123.)
Section 2972, subdivision (a) provides:
"The court shall conduct a hearing on the petition under Section 2970 for continued treatment. The court shall advise the person of his or her right to be represented by an attorney and of the right to a jury trial. The attorney for the person shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing .... [¶] The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney." (Italics added.)
"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial." (Boykin v. Alabama (1969) 395 U.S. 238, 243.) These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation. (Ibid.) ... Accordingly, the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." (People v. Farwell (2018) 5 Cal.5th 295, 301 (Farwell).)
In People v. Howard (1992) 1 Cal.4th 1132 (Howard), the Supreme Court held that "under the federal Constitution, 'a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' [Citation.] Upon review of the entire record, [the court] concluded that the defendant's admission of the prior conviction was valid despite the absence of an explicit admonition on the privilege against self-incrimination." (Farwell, supra, 5 Cal.5th at p. 301.)
In People v. Mosby (2004) 33 Cal.4th 353, the court "affirmed that Howard had 'shifted [the focus] from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant's admission was intelligent and voluntary because it was given with an understanding of the rights waived.' " (Farwell, supra, 5 Cal.5th at p. 302, italics added.) Further, " 'in applying the totality of the circumstances test, a reviewing court must "review[ ] the whole record, instead of just the record of the plea colloquy," and ... "previous experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' " ' " (Farwell, at p. 302.)
Along with his written admission, Hamm submitted a declaration in which he stated that he understood he had certain rights with respect to the petition allegations, including the right to a jury trial, to confront witnesses and against self-incrimination, and that he waived those rights. Hamm also acknowledged in the declaration that defense counsel had explained to him his "rights to go to trial and to present evidence to the jury." Further, Hamm filed other forms "demand[ing]" a jury trial on the petition and stating he "would like" a jury trial, although he did not want to be present for the hearing. Additionally, a prior petition to extend Hamm's commitment had been tried to a jury. These circumstances amply demonstrate that even though it did not occur in a court hearing, when Hamm executed the form and declaration waiving his rights and admitting the petition allegations he was aware of and understood his constitutional rights, including his right to a jury trial.
"In Blackburn, defense counsel requested a bench trial in a mentally disordered offender ... recommitment proceeding. The court did not advise the defendant of his statutory right to a jury trial or obtain a personal waiver of that right. [Citation.] Interpreting ... section 2972, subdivision (a), [the Supreme Court] held that the statute requires the court to inform a defendant personally of the jury trial right and obtain a personal waiver before holding a bench trial. [Citation.] The court's omission, [the Supreme Court] concluded, effectively denied the defendant his statutory right to a jury trial on the entire cause. [Citation.] That error constituted a 'miscarriage of justice' under article VI, section 13 of the California Constitution and required reversal without regard to the strength of the evidence. [Citation.]" (Farwell, supra, 5 Cal.5th at pp. 304-305.)
"Blackburn did not speak to the standard for evaluating whether a waiver is voluntary and intelligent. On the contrary, it specifically distinguished its facts from the circumstances which trigger the Howard inquiry. The court emphasized: '[A] trial court's failure to properly advise an MDO defendant of the right to a jury trial does not by itself warrant automatic reversal. Instead, a trial court's acceptance of a defendant's personal waiver without an express advisement may be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and voluntary.' (Blackburn, supra, 61 Cal.4th at p. 1136, citing Howard, supra, 1 Cal.4th at p. 1178.) Howard had expressly rejected a rule of automatic reversal." (Farwell, supra, 5 Cal.5th at p. 305, italics added.)
Blackburn is inapposite because in that case the defendant did not personally waive his right to a jury trial and other constitutional rights, as Hamm did here through the declaration in which he also admitted the petition allegations. Thus, we conclude that Hamm's waiver of his constitutional rights and admission of the petition were knowing and voluntary and that the court did not violate his right to due process when it accepted his waiver of rights and admission of the petition in writing.
DISPOSITION
The order extending Hamm's MDO commitment is affirmed.