Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR178855
Ruvolo, P.J.
I. INTRODUCTION
Appellant James William Murray appeals from an order extending his commitment to Napa State Hospital for an additional two years pursuant to Penal Code section 1026.5, subdivision (b), which authorizes extended commitment for treatment of a person found not guilty of a felony by reason of insanity. Appellant first contends that the trial court’s extended commitment order is not supported by substantial evidence that he had a mental disease, defect, or disorder that caused serious difficulty in controlling his dangerous behavior. Appellant also contends that the order must be reversed because the court failed to secure his personal waiver to a jury trial, although his counsel made an on-the-record waiver on appellant’s behalf. We reject appellant’s contentions and affirm the order.
All statutory references are to the Penal Code.
II. FACTS AND PROCEDURAL HISTORY
On April 26, 2000, appellant was found not guilty by reason of insanity on one count of battery by a prisoner on a non-confined person (§ 4501.5) with an allegation of a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a) – (d)). The incident is described in the record as follows: “While incarcerated at California Medical Facility for a five year sentence for assault with a deadly weapon, [appellant] struck a staff member in the face with a closed fist.” On May 23, 2000, the court committed appellant to a mental hospital for a maximum term of eight years, which was doubled pursuant to sections 1170.2 and 667 et seq.
Under the statutory scheme for commitment of persons found not guilty of a felony because of legal insanity, a person may not be kept in actual custody longer than the maximum state prison term to which he or she could have been sentenced for the underlying offense. (§ 1026.5, subd. (a); People v. Crosswhite (2002) 101 Cal.App.4th 494, 501.) At the end of that period, however, the district attorney may petition to extend the commitment for two years. (§ 1026.5, subd. (b)(1).) If, after trial, the court or jury finds the patient “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others,” the patient will be recommitted for an additional period of two years from the date of termination of the previous commitment. (§ 1026.5, subd. (b)(8).)
On January 8, 2008, pursuant to section 1026.5, subdivision (b), the Solano County District Attorney petitioned for an extension of appellant’s commitment. At the time, appellant’s original eight-year maximum term of commitment was set to expire on May 19, 2008. On April 15, 2008, the trial court conducted a bench trial regarding the extension petition. Appellant was present and testified at the trial. After hearing evidence and argument, the court granted the petition, extending appellant’s commitment to May 19, 2010. Appellant has filed this appeal.
III. DISCUSSION
A. Substantial Evidence Supporting the Extended Commitment Order
Under section 1026.5, subdivision (b)(1), “[a] person may be committed beyond the term prescribed by subdivision (a) only” if the person “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” Appellant claims the evidence presented at his extended commitment hearing was insufficient to meet this standard.
“ ‘ “Whether a defendant ‘by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others’ under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.” [Citation.] “In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt. [Citations.]” [Citation.]’ [Citation.] A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant’s commitment under section 1026.5. [Citations.]” (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.)
At the extension hearing, the court heard the expert testimony of Dr. Charles Kepner, a psychologist, and Dr. Neelma Sachdev, a psychiatrist, who were both members of appellant’s treatment team at Napa State Hospital. They provided uncontroverted expert testimony that appellant suffered from a schizo-affective disorder, bipolar type. Appellant’s medication regime included taking Clozaril, an antipsychotic medication. Dr. Kepner testified that appellant was medication-compliant at the hospital and that the medication “has helped him greatly.” Nevertheless, both doctors observed that appellant’s symptoms were reduced, not eliminated, by the medication and appellant was described as being “easily irritated,” “short on patience,” “excessively voluble,” and “on the edge.” Dr. Sachdev emphasized that appellant had particular difficulty dealing with perceived stressful situations, and “if he’s in a situation where he’s really stressed out, he would . . . become real paranoid and defensive.”
Both experts concluded appellant posed a serious danger to others if he was discharged from the hospital and placed in an unsupervised setting. Each expert acknowledged that appellant’s medication was a substantial component of any plan for appellant’s safe return to society, yet each expressed concern that appellant would not be under any obligation to take his medication if released. They supported this opinion with the fact that appellant had not yet completed the hospital’s mandated relapse prevention plan, which caused the doctors concern that appellant did not adequately grasp his mental illness, his underlying violent conduct, or the triggers for his violent behavior. Dr. Sachdev added that “outside [the state hospital] there will be no structure, there will be more stress on a daily basis, and [he’s] more likely to have the symptoms much more often than we see in the hospital.” It was noted that if appellant was released from the hospital and went to live with his mother in Washington, which was appellant’s proposed plan if discharged, appellant would have no therapeutic supervision; his medication would not be provided free of charge as it is in the hospital; and he would have to arrange for “very close [medical] monitoring” in order to have it prescribed.
As Dr. Sachdev explained, if appellant were to suspend his medication regimen, “he is going to decompensate, and he will become psychotic.” (Italics added.) Dr. Sachdev cautioned that appellant “is very much a high risk if he became psychotic or paranoid to . . . engage in really dangerous behaviors.” The unanimous opinion of appellant’s treatment team was that continued commitment was appropriate.
Appellant argues that, while the record may support the conclusion that he still suffers from a mental disorder that requires treatment, the record is devoid of evidence that he represents a substantial danger of physical harm to others. Appellant stresses, among other things, his lack of assaultive behavior at the hospital, the undisputed testimony that his behavior was controlled by medication, and the general agreement that he has taken his medication without difficulty. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 1601 [it is a defense to an extended commitment petition under section 1026.5 that (1) medication makes the patient not dangerous; and (2) patient will take his medication without fail in the future in an unsupervised environment].) Appellant also points to the testimony of his own expert witness, Dr. Roger Wiere, who examined appellant once for an hour and-a-half, and concluded that appellant’s mental illness is in “complete remission” and that he was ready to be released.
Although there was conflicting testimony regarding whether appellant presented a danger of physical harm to others if released, the court impliedly found the testimony of Dr. Kepner and Dr. Sachdev to be credible and rejected appellant’s evidence to the contrary. As the trier of fact, the court was free to determine the credibility of expert witnesses and to weigh their conflicting opinions. (People v. Ward (1999) 71 Cal.App.4th 368, 374 [trier of fact can decide what weight to give expert prediction of future dangerousness].) Their conclusions were not mere speculation, as appellant claims, but were reasoned opinions based on the facts. “Given certain facts, predictions of future dangerousness may be rationally projected and the drawing of such an inference is properly within the expertise of a qualified mental health expert. . . .” (People v. Mapp (1983) 150 Cal.App.3d 346, 352.) We conclude that the opinions offered by Dr. Kepner and Dr. Sachdev as to appellant’s dangerousness to others constitutes substantial evidence to support the extended commitment.
B. Personal Waiver of the Jury Trial Right
Appellant claims the trial court’s order extending his commitment must be reversed because the court failed to obtain appellant’s personal waiver of the right to a jury trial. According to appellant, the court erred in accepting defense counsel’s waiver without addressing appellant personally in open court to make sure he understood his right to a jury trial and that he personally joined in the waiver.
By way of background, on April 4, 2008, the trial court held a trial readiness conference. Appellant was not present. The following exchange occurred regarding a jury trial:
“The Court: Okay. We have a trial date for April 15th, and it was a jury trial.
“[Defense Counsel]: And it’s our intention to waive jury in that matter, your Honor, and have a Court trial.
“[PROSECUTOR]: And we will waive as well.
“The Court: And you can waive it on his behalf.
“[Defense Counsel]: I can, yes.
“[The Court]: And the People waive, so we’ll have a Court trial.”
Appellant maintains that “the trial court erred when it failed to advise appellant personally of his right to a jury trial and to secure a personal waiver from him of that right.” In making this argument, appellant relies on section 1026.5, subdivision (b)(1)–(11), which establishes the procedural requirements for an extension hearing. As relevant here, when the petition is filed, “the court shall advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial.” (§ 1026.5, subd. (b)(3).) The statute provides for the right to jury trial “unless waived by both the person and the prosecuting attorney.” (§ 1026.5, subd. (b)(4).) The statute also provides that the person “shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees.” (§ 1026.5, subd. (b)(7).)
As appellant recognizes, the court in People v. Powell (2004) 114 Cal.App.4th 1153 (Powell) held that, notwithstanding the language in section 1026.5, a defendant’s right to a jury trial in a section 1026.5 extension proceeding could be waived by counsel, even over the defendant’s express objection. (Id. at pp. 1158-1159.) The Powell holding recognized that the liberty interest of a person facing extended commitment is different from that of a criminal defendant because the commitment of a defendant to a state hospital after a section 1026 insanity determination is in lieu of criminal punishment. Thus, a trial to extend a commitment pursuant to section 1026.5 is civil in nature and directed to treatment, not punishment. (Id. at p. 1157.) Due to the civil nature of the proceedings and the fact the individual in such cases has already been found to suffer sufficient impairment to be “insane,” the court held that section 1026.5, subdivision (b), does not require all of the criminal constitutional rights be afforded in such proceedings in the same manner as they would be in a criminal case. The Powell court held that, under these circumstances, the tactical decision of whether or not to seek or waive a jury trial should be left to trial counsel and personal waiver by the client is unnecessary despite the statute’s guarantees. (Id. at p. 1158.)
The court in People v. Givan (2007) 156 Cal.App.4th 405 (Givan), also concluded a person in appellant’s position “has no right to veto his or her attorney’s waiver of the right to trial by jury in a civil extension hearing.” (Id. at p. 410.) The court affirmed that the right to trial by jury at a commitment extension hearing is statutory, not constitutional, and as with the protections of the double jeopardy clause and the ex post facto clause, the requirement of a personal waiver of the right to trial by jury has no application. (Ibid.) The Givan court found an implicit waiver of the defendant’s right to a jury trial based on his instruction to counsel to avoid a hearing or a trial in court. (Id. at p. 411.) The court concluded that on that record, “a waiver of [defendant’s] right to trial by jury [was] necessarily implicit. ‘We do not deny the right to jury trial for such a person. We only limit the manner in which it may be invoked or waived.’ [Citation.]” (Givan, supra, 156 Cal.App.4th at p. 411, citing Powell, supra, 114 Cal.App.4th at p. 1158.)
Appellant argues that Powell and Givan were incorrectly decided. He urges us to take a different view of the pertinent statutes. However, we are satisfied the courts in Powell and Givan correctly analyzed the statutes and relevant case law, especially in a case such as the one before us where there is no indication that appellant did not acquiesce in his attorney’s waiver. Even on appeal, appellant does not complain that he was unfairly deprived of his right to trial by jury because his counsel’s waiver was unauthorized. Nor does he claim on appeal that his attorney was ineffective for allowing the hearing to be conducted without a jury.
Even if we assume for purposes of argument only that the court erred in failing to obtain a personal waiver of a jury trial from appellant, we reject appellant’s argument that the error requires reversal without a showing of prejudice. In People v. Epps (2001) 25 Cal.4th 19, 29 (Epps), the California Supreme Court explained that the erroneous denial of a jury trial does not implicate the Constitution, where the right is created by statute and not the Constitution, as it is here (Givan, supra, 156 Cal.App.4th at p. 410). In such cases the erroneous denial is an error of state law, which compels reversal only if it causes a miscarriage of justice, that is, if it is reasonably probable the result would have been more favorable to the appellant had the error not occurred. (Epps, supra, 25 Cal.4th at pp. 29-30 applying Watson test to erroneous denial of jury trial on prior conviction allegations; People v. Collins (2001) 26 Cal.4th 297, 313, fn. 5; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 applying Watson standard to erroneous directed verdict in mentally disordered offender commitment proceeding; People v. Williams (2003) 110 Cal.App.4th 1577, 1592-1593 applying Watson standard to erroneous denial of statutory right of self-representation in mentally disordered commitment proceeding.)
“The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.” (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; People v. Coley (1997) 52 Cal.App.4th 964, 972; Reid v. Balter (1993) 14 Cal.App.4th 1186, 1195.) With this in mind, we note that while appellant argues that the court erred in accepting defense counsel’s jury waiver, he offers no argument that the alleged error was prejudicial.
Under these circumstances, we need not review the evidence presented below and attempt to analyze whether there is a reasonable probability that a jury would have reached a more favorable verdict than the court did. (See, e.g., Epps, supra, 25 Cal.4th at p. 29.) This is especially so because the record contains no evidence suggesting that appellant did not (1) know he was entitled to a jury trial, (2) discuss the issue with counsel, (3) intend to waive a jury, or (4) authorize counsel to do so. Nor is there any evidence to suggest that appellant would not have waived a jury had the court asked him. Indeed, given the record before us, appellant has not shown prejudice.
IV. DISPOSITION
The order extending appellant’s commitment is affirmed.
We concur: Sepulveda, J., Rivera, J.