Opinion
A130923
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. SCOTT PATRICK SHELTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR450976)
Defendant Scott Patrick Shelton (appellant), previously found not guilty by reason of insanity, appeals an order imposing a two-year extension of his commitment to Napa State Hospital pursuant to Penal Code section 1026.5, subdivision (b). He contends the extension of his commitment is not supported by substantial evidence and the waiver of jury trial by his defense counsel was invalid. We reject these contentions and affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
On December 23, 2004, appellant entered a plea of not guilty by reason of insanity (NGI) to two counts of assault on a peace officer. Pursuant to section 1026, he was committed to Napa State Hospital (NSH) for a maximum term of six years four months with credit for time served.
On August 26, 2010, the People petitioned to extend appellant's commitment pursuant to section 1026.5, subdivision (b). Following defense counsel's waiver of a jury trial on the petition, a court trial ensued based on three exhibits consisting of relevant hospital reports. Appellant refused to testify at the hearing.
A July 20, 2010 extension report by NSH psychiatrists Theo Vermont and David Brody opined that appellant should be considered for an extension of his NSH commitment because "he has a severe mental illness and continues to represent a substantial danger to others." The report stated that appellant had been diagnosed with Schizoaffective Disorder, Bipolar Type; Polysubstance Dependence; Attention Deficit/Hyperactivity Disorder, Hyperactive-Impulsive Type; and Antisocial Personality Disorder. Appellant's schizoaffective disorder is manifested by a history of visual and auditory hallucinations and mood cycling. His polysubstance abuse is manifested by an extensive history of substance abuse since age 10, and he describes himself as an addict. His drugs of choice are methamphetamine and alcohol, and he has abused Oxycontin. His antisocial personality disorder is manifested by "a pervasive pattern of disregard for and violation of the rights of others occurring since age 15" and a history of arson.
In concluding that appellant has severe mental illness and continues to represent a substantial danger to others, the extension report noted that appellant "is resistant to taking medications in a verifiable manner, shows frequent angry and irritable behavior, and has had episodes of assaultive behavior (spitting on staff) as recently as [May 7, 2010,] and of threatening behavior towards staff resulting in alarm being set off as recently as [April 16, 2010]."
The extension report noted the following aggressive acts had also occurred:
1. On December 13, 2009, appellant was placed in seclusion after trashing his room and throwing his possessions, and his roommate complained about being threatened by him. Appellant was agitated, cursing, not responding to redirection, and kicked the exit door. After being placed in a locked seclusion room he kicked the door. The treatment team agreed the incident resulted from substance abuse.
2. On January 9, 2010, appellant had a physical altercation with a peer regarding the light in his room.
3. On January 29, 2010, appellant refused a urine drug screen saying, "tell the doctor she can shove the U/A cup as far as she can up her ass."
4. On February 9, 2010, appellant turned around in line and punched a peer in the face without provocation.
5. On February 12, 2010, appellant refused to take crushed medications, shoved them at the medication staff person, then shoved a heavy metal file at her, injuring her wrist.
6. Between March and May 2010, appellant was verbally abusive to staff and called female staff expletives.
7. Twice in May 2010, appellant spat on staff members.
The extension report further noted appellant's violent behavior "appears to be due at least in part to his drug abuse, and it is uncertain whether this behavior has stopped and whether it will continue in the community, as it has in the past." The report also noted that on the day of appellant's instant offense, October 7, 2004, appellant was not taking his medication and had been using methamphetamine. Appellant refuses to talk about his psychiatric symptoms, but in June 2010 admitted to being "manic." The report stated, "[A]lthough he has not shown grossly psychotic behavior and life-threatening violence towards others in the hospital as he did during his instant offense, and denies current auditory hallucinations, his hyperactivity, almost continual efforts to get his medication dose lowered, and probable drug-seeking behavior strongly suggest that the affective component of his illness is still not compensated."
Under a section entitled "Precautions," the report stated, "[A]ppellant has a history of violence and is refusing many aspects of treatment. He has had many episodes of verbal aggression, and at times physical aggression, in the last year. Therefore, precautions should be taken regarding his risk of violence directed towards others."
A November 2010 "DMH Wellness and Recovery Plan" regarding appellant stated that as to his schizoaffective disorder, he was still exhibiting mild paranoia and "some bizarre thinking." He also exhibited inconsistent compliance with treatment, agitation, yelling, cursing, and a lack of motivation. The wellness and recovery plan stated appellant had not demonstrated that he was actively using his coping strategies to manage the symptoms of his mental illness. In addition, because he was not attending group therapy, he had not identified strategies to manage his social phobia symptoms, or to solve conflicts without resorting to violence or intimidation. Since appellant regularly refused drug screens, staff believed he was using substances.
A January 5, 2011 monthly psychiatric progress note by NSH psychiatrist Sarah Benington stated, "[Appellant] continues to be very disorganized, agitat[ed], med seeking with little insight or motivation to change. He continues to seek abusable medications and disorganized and aggressive behavior is escalating." It noted that appellant had had "several major behavior problems" in the past month involving yelling, cursing, and threatening staff. It also stated, "[Appellant] continues to be high risk for assault, low risk for self injurious behavior."
The court found the People's extension petition had been proved beyond a reasonable doubt, and ordered appellant's commitment extended until February 7, 2013. Appellant filed a timely notice of appeal from the court's extension order.
DISCUSSION
I. Substantial Evidence Supports the Recommitment Order
"Under section 1026.5, subdivision (b)(1), '[a] person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.' At no less than 90 days before the term of commitment ends, the prosecuting attorney may file a petition for extended commitment in the superior court which issued the original commitment. (§ 1026.5, subd. (b)(2).) The person named in the petition has a right to be represented by an attorney and the right to a jury trial. (§ 1026.5, subd. (b)(3).) 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).)" (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159 (Zapisek).)
As part of proving that he or she represents a substantial danger of physical harm to others pursuant to section 1026.5, subdivision (b), the People must establish that the person has serious difficulty in controlling his or her potentially dangerous behavior. (In re Howard N. (2005) 35 Cal.4th 117, 132, 135 (Howard N.); People v. Galindo (2006) 142 Cal.App.4th 531, 537 (Galindo); Zapisek, supra, 147 Cal.App.4th at pp. 1164-1165.) This additional requirement " 'serve[s] to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.' " (Howard N., at p. 128.) The prediction of future dangerousness plus evidence of lack of volitional control, adequately distinguishes persons subject to civil commitments from " 'other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.' " (Id. at p. 129, citing Kansas v. Hendricks (1997) 521 U.S. 346, 360.)
The court's order extending appellant's commitment pursuant to section 1026.5, subdivision (b) will be upheld if substantial evidence supports a finding of the necessary elements. (Zapisek, supra, 147 Cal.App.4th at p. 1165.) Pursuant to that standard, we review the entire record in the light most favorable to the order to determine whether there is any substantial evidence from which a reasonable trier of fact could have found each essential element of appellant's recommitment beyond a reasonable doubt. (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.)
Appellant contends that the question of whether he ever tried to control his behavior or ever encountered serious difficulty when trying to do so was not addressed below and the People failed to present any such evidence. The People assert that substantial evidence was presented to support the finding that appellant has serious difficulty controlling his potentially dangerous behavior.
In particular, appellant argues that the only evidence that addressed his cognitive and/or volitional capacity was the following statement in the wellness and recovery plan: "Cognitively, [appellant] can be very clear about what he wants to express and achieve. His verbal behavior indicates a thoughtful and intelligent mind, and much self-awareness. In addition, he has a good sense of humor. IAPS[] shows cognitive functioning in the average range." Appellant asserts that this statement indicates he "has sufficient cognitive functioning, intelligence, and self-awareness."
"IAPS" apparently is the abbreviation for "Integrated Assessment: Psychology Section," an assessment test given to appellant in June 2007.
Contrary to appellant's contention, there is ample evidence in the record establishing that he had serious difficulty controlling his behavior. He had been diagnosed with schizoaffective disorder manifested by visual and auditory hallucinations and mood cycling. As of November 2010, he was still exhibiting mild paranoia and "some bizarre thinking." Between December 2009 and January 2011 he engaged in many episodes of verbal, threatening and physically assaultive behavior. The July 2010 extension report stated that his hyperactivity, efforts to get his medication dose lowered, and probable drug-seeking behavior "strongly suggest that the affective component of his illness is still not compensated." His wellness plan noted that he was not using his coping strategies to manage the symptoms of his mental illness, and had not identified strategies to manage his social phobia or resolve conflicts without violence and intimidation. As of January 2011, he continued to be very disorganized, agitated, sought abusable medications and had little insight or motivation to change. In addition, his aggressive behavior was "escalating." The evidence establishes that even in a controlled environment, appellant's aggressive verbal and physically assaultive behavior was escalating, he was still engaging in drug seeking behavior and was still exhibiting mild paranoia and "some bizarre thinking." These factors raised the risk of his engaging in violent behavior as a result of his disorders if he were released from a controlled environment. The trial court could reasonably conclude that due to his mental illness, appellant had serious difficulty controlling his dangerous behavior. Substantial evidence supports the court's recommitment order.
II. Defense Counsel's Waiver of Jury Trial Was Valid
Appellant also contends his defense counsel's jury trial waiver was invalid because the court did not obtain his personal waiver of the right to a jury trial, and appellant explicitly objected to the waiver and demanded a jury trial. He contends the denial of his right to jury trial is reversible per se.
At the outset of the proceeding, the following colloquy occurred:
"THE COURT: --you have a motion to make?
"[DEFENSE COUNSEL]: Yes, Your Honor. . . . [¶] . . . [¶]
"[DEFENSE COUNSEL]: I would at this time in regards to the trial on extension of commitment waive jury and ask the court to make the determination.
"THE COURT: And are you waiving the jury pursuant to People v. Powell 114 Cal.App.4th
"[DEFENSE COUNSEL]: Yes.
"THE COURT: —1153?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: Do you believe that would be in the best interest of your client at this time?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: And, [prosecutor], on behalf of the People, do you also waive jury trial?
"[THE PROSECUTOR]: Yes, Your Honor.
"THE COURT: And so we are going to proceed by way of a court trial. [¶] [Appellant], I'm going to read over everything, and I'm going to listen to you, then decide whether or not this petition should be extended.
"[APPELLANT]: I don't want to waive jury. It's my right to have a jury.
"THE COURT: You do have a right, but it can and has been waived.
"[APPELLANT]: I want to dismiss counsel if they are making a motion to waive jury, because that's incorrect.
"THE COURT: I believe that it is correct. So at this point, the jury is waived."
Appellant argues there was no inquiry as to whether he was capable of personally exercising his jury trial waiver and no evidence established that he lacked the mental capacity to understand and waive his rights.
"The right to trial by jury at a civil extension hearing is statutory, not constitutional. (See § 1026.5, subds. (b)(3), (b)(4))." (People v. Givan (2007) 156 Cal.App.4th 405, 410 (Givan).) Section 1026.5, subdivision (b)(3) provides, in part, "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." Subdivision (b)(4) provides, in part, "[t]he trial shall be by jury unless waived by both the person and the prosecuting attorney." Subdivision (b)(7) 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."
In People v. Powell (2004) 114 Cal.App.4th 1153, 1157, 1159 (Powell), the defendant appeared for trial on his section 1026.5 recommitment trial and demanded a jury. The trial court denied the request on the ground that he had already waived a jury. The defendant disagreed, asserting that his attorney had waived a jury. On appeal, the defendant contended that the right to jury trial, like that in a criminal case, must be personally waived. (Ibid.) The Court of Appeal disagreed, noting that a section 1026.5 extension trial is a civil proceeding directed at treatment, not punishment. (Ibid.)
Powell cited People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 488: " '[A]lthough many constitutional protections relating to criminal proceedings are available in extension proceedings, the application of all such protections is not mandated by section 1026.5. The statutory language merely codifies the application of constitutional protections to extension hearings mandated by judicial decision.' " (Powell, supra, 114 Cal.App.4th at pp. 1157-1158.) As in Williams, Powell concluded that, like the protections of the privilege against self-incrimination, the ex post facto clause, and the double jeopardy clause, the personal waiver of a jury trial was not applicable at a recommitment trial. (Powell, at p. 1158; accord, Givan, supra, 156 Cal.App.4th at p. 409 ["Conspicuous by omission from section 1026.5 is the Legislature's imposition of any requirement of a personal appearance to waive one's rights].") Powell stated, "An insane person who is 'a substantial danger of physical harm to others' (§ 1026.5, subd. (b)(1)) should not be able to veto the informed tactical decision of counsel." (Powell, at p. 1158; accord, Givan at p. 410.) Powell held, "counsel may waive jury trial over objection of his or her client in a '[NGI]' commitment extension trial." (Powell, at p. 1156; accord, Givan, at pp. 410-411.)
In Givan, the appellate court found an implicit waiver of the defendant's right to jury trial based on the defendant's instruction to counsel, obviating the need for the defendant's personal appearance. (Givan, supra, 156 Cal.App.4th at p. 411.)
Appellant argues that Powell "must be considered overruled by the better reasoning of the Supreme Court" in Conservatorship of John L. (2010) 48 Cal.4th 131 (John L.). However, John L. involved a different statutory scheme, the Lanterman-Petris-Short (LPS) Act. (Welf. & Inst. Code, § 5000, et seq.) and is factually distinguishable. In John L., the defendant's attorney informed the court that she had discussed the proposed conservatorship with the defendant and the defendant indicated that he was not contesting the conservatorship and did not want to be present in court. (John L., at pp. 139, 149.) John L. held, "a client who tells his appointed attorney he is unwilling to attend the hearing [on the petition to establish a conservatorship of the person] and does not wish to contest a proposed LPS conservatorship may reasonably expect his attorney to report such information to the court, with binding effect. [Citations, fn. omitted.]" (Id. at p. 147.) In a footnote, the Supreme Court made clear it "express[ed] no opinion on the situation where an appointed attorney seeks to excuse her client's presence at the hearing without the client's consent or over the client's objection." (Id. at fn. 8.) John L. neither overruled Powell, nor undermined its holding. Moreover, we disagree with appellant's view that Powell was incorrectly decided. Appellant has failed to establish that his counsel's waiver of jury trial was invalid.
"The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. ([Welf. & Inst. Code,] § 5150 et seq.)" (John L., supra, 48 Cal.4th at p. 142.)
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Even, assuming arguendo, that the court erred in failing to obtain appellant's personal waiver of his right to jury trial, we reject appellant's assertion that the error is reversible per se. In People v. Epps (2001) 25 Cal.4th 19, 28-29, the Supreme Court explained that where the right to jury trial is created by statute, and not the Constitution, the erroneous denial of a jury trial is subject to the People v. Watson (1956) 46 Cal.2d 818 test of harmless error. (See also People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [applying Watson standard to erroneous grant of directed verdict in mentally ordered offender commitment proceeding].) Based on the record before us, any error was harmless. The proceeding was tried solely on the three reports submitted by the prosecution and the recommitment order is supported by substantial evidence. Appellant has failed to establish that a different result would have been reached had the extension of commitment proceeding been tried before a jury.
DISPOSITION
The order extending appellant's commitment to NSH is affirmed.
SIMONS, Acting P.J. We concur. NEEDHAM, J. BRUINIERS, J.