Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 169048
Mihara, J.
Defendant Andrew Brian Watts challenges the trial court’s order extending his commitment pursuant to Penal Code sections 1026 and 1026.5. He contends the court violated his statutory and due process rights by denying his motion to dismiss the petition for extended commitment and “illegally failed” to grant him a jury trial. We affirm the order.
Further statutory references are to the Penal Code unless otherwise noted.
I. Background
Defendant had his first psychiatric episode, “a hit of acid that wouldn’t go away, ” when he was 19. At 20, he tried to castrate himself. In an apparent psychotic rage four years later, he strangled his father and dismembered his body. Charged with voluntary manslaughter, he was found not guilty by reason of insanity in 1983 and committed to the state hospital system for treatment. In 1989, he was granted conditional outpatient status. His outpatient status was revoked in 1993, after he tested positive for cocaine use.
Defendant attacked the police officers who served the order of revocation, and assault and battery charges were filed. He was found not guilty by reason of insanity, and a new and separate order of commitment was entered in 1994. It is the extension of this second commitment that defendant challenges here.
The superior court that entered the second commitment order instructed Patton State Hospital in 1995 that “the two commitments were totally separate” and “there will remain two separate maximum commitment dates.... Any extension of the commitments should be separate matters and will have to be carefully monitored as such.” As the district attorney explained below, “there are two commitments, each of them for two years, but in alternating years.” Defendant expressly does not dispute this statement.
In 1997, defendant was released to the South Bay Conditional Release Program (CONREP). His commitment under CONREP’s supervision was periodically extended. On June 7, 2005, defendant was admitted to Napa State Hospital, and on August 19, 2005, his conditional outpatient status was revoked. Since then, both commitments have been periodically extended. Defendant has lived in an open unit at Napa State Hospital since September 30, 2006.
The most recent extension of defendant’s second commitment was set to expire on September 16, 2008. On September 4, 2008, the acting medical director of the hospital asked the district attorney to obtain another extension. On September 8, 2008, the district attorney filed a petition for extended commitment pursuant to sections 1026 and 1026.5. Defendant’s motion to dismiss the petition “for untimely submission and filing” was denied.
At a trial setting conference on December 12, 2008, defendant’s counsel told the court, “We would like to set this matter for court trial. The court’s earliest possible date is [January] 22nd.” (Italics added.) Trial was initially set for that date but logistical glitches and scheduling conflicts required further continuances to February 23, 2009.
On the morning of the trial, defense counsel made an oral motion to dismiss the petition “based on the timing of the trial.” She acknowledged that some of the delay in bringing the matter to trial was occasioned by her records subpoena, and “I needed more time to continue to review those records to prepare for trial, and set the court trial.” (Italics added.) The court denied the oral motion to dismiss the petition.
The matter was tried to the court. Defendant was present and represented by counsel. Neither he nor his counsel objected to the court’s statement that “[t]his matter has been set today for court trial on the petition that has been filed by the People.” Nor did either object when the court declared, “[w]e will go forward with the court trial.” (Italics added.)
Defendant’s treating psychologist at Napa State Hospital, David San Giovanni, Ph.D., testified for the prosecution as an expert in the diagnosis and treatment of severe mental disorders and in risk assessment. Dr. San Giovanni explained that defendant has been diagnosed with paranoid type schizophrenia and polysubstance dependence. In his opinion, defendant suffers from “a severe mental disorder” that is only partially in remission. Defendant “still has somatic delusions” and “as recently as a month ago... stated he has angel wings on his back and can fly.” “He has also made comments to me [that] he can change chemicals by looking at them.” Dr. San Giovanni believes defendant would pose a substantial danger of physical harm to others if he were not on medication and in a structured environment. In Dr. San Giovanni’s opinion, defendant could not function safely in community treatment because he minimizes the extent of his symptoms, sometimes feels he does not need treatment, and believes he would be able to convince an outside doctor to discontinue his medications. Additionally, defendant “has had poor treatment compliance in the past, ” and “would be at risk for using [illegal] substances, ” which would exacerbate his danger to others.
Defendant testified on his own behalf. He admitted that he suffers from paranoid schizophrenia and that he has heard voices and had audio hallucinations. He described the stressors that affect his mental illness and acknowledged that his medications help him. He claimed the ability to see into the future. “[I]t’s a spirit or something talks to me. I go into a trance, and I can see into the future.” He admitted having “had violent thoughts toward people before in the institution” but professed an ability to keep those thoughts under control “except for the revocation.”
At the conclusion of the trial, the court found the allegations in the petition true and ordered defendant’s commitment extended for two years, until September 16, 2010. Defendant filed a timely notice of appeal.
II. Discussion
A. Motion to Dismiss
Defendant contends the trial court erred in denying his motion to dismiss the petition after the People missed all three of the deadlines section 1026.5 imposes without establishing good cause for the noncompliance or waiver by defendant. He claims the delay caused him prejudice, in that “trial was held 160 days after the expiration of his commitment rather than 30 days before the expiration of the commitment.” The extended commitment, he argues, was “a complete deprivation of his liberty rights without any justification under the law.” “Under such circumstances, ” he contends, “this court must reverse the judgment and order [him] released.”
“[S]ection 1026.5 sets out the exclusive procedures under which a commitment may be extended. A commitment may be extended only in felony cases and only when the defendant ‘represents a substantial danger of physical harm to others’ due to ‘a mental disease, defect, or disorder.’ [Citation.]... [S]ubdivision (b) set[s] out specific time limits within which actions ‘shall’ be taken. At least 180 days before the current term ends the medical director ‘shall’ provide the district attorney with an opinion as to whether the defendant’s commitment should be extended. [Citation.] The prosecution ‘may’ then file for an extension of commitment. [Citation.] Unless good cause is shown, the petition ‘shall’ be filed at least 90 days before the commitment is to expire. [Citation.] Unless good cause is shown, a trial on the petition ‘shall’ begin at least 30 days before the existing commitment is due to end. [Citation.] If the defendant is proven to currently represent a substantial danger as described in the statute, the court shall order a recommitment for an additional two years. [Citation.] The defendant ‘may not be kept in actual custody longer than two years unless another extension of commitment is obtained in accordance with the provisions of this subdivision.’ [Citation.]” (People v. Lara (2010)48 Cal.4th 216, 222 (Lara).)
The Attorney General responds that the trial court correctly found defendant did not suffer actual prejudice. “Because the... time limits are directory, not mandatory, and the... petition was filed before the expiration of the original commitment, the trial court properly evaluated... whether the delay resulted in inadequate time for [defendant] to prepare a defense[, ] or other prejudice that precluded a fair trial.”
As both parties acknowledge, the California Supreme Court’s decision in Lara controls our analysis here. In Lara, the petition to extend the defendant’s commitment was filed less than a month before his scheduled release date. (Lara, supra, 48 Cal.4th at p. 222.) The prosecutor conceded there was no good cause for the delay. (Ibid.) The trial court denied the defendant’s motion to dismiss the petition, and seven months after his initial commitment ended, a jury found that he represented a substantial danger of physical harm to others. (Lara, at p. 223.) His commitment was extended, and he appealed. (Lara, at p. 223.) The Court of Appeal reversed, directing the trial court to grant the dismissal motion. (Lara, at p. 223.)
The California Supreme Court reversed, holding that section 1026.5’s deadlines are directory rather than mandatory, “so long as the petition is filed before the expiration of the current commitment.” (Lara, supra, 48 Cal.4th at p. 221.) The court explained that the difference between a mandatory statutory deadline and a directory one is that failure to comply with a mandatory deadline deprives the court of jurisdiction in the fundamental sense, rendering the court’s action void. (Lara, at pp. 224-225.) Failure to comply with a directory deadline, by contrast, does not deprive the court of jurisdiction in the fundamental sense, and for that reason renders the court’s action merely voidable. (Lara, at p. 225.) “ ‘Unless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory.’ [Citation.]” (Lara, at p. 225.) In section 1026.5, “the Legislature made its intent quite clear” by stating, in subdivision (a)(2), that “ ‘[t]he time limits of this section are not jurisdictional.’ ” (Lara, at p. 225.)
The court’s conclusion that section 1026.5’s time limits are directory rather than mandatory was bolstered by the Legislature’s failure to specify a penalty or consequence for not complying with them and by its inclusion of good cause and waiver exceptions. (Lara, supra, 48 Cal.4th at p. 227.) To interpret the time limits as mandatory, the court emphasized, “would run counter to the very purpose of the NGI [not guilty by reason of insanity] statutes....” (Lara, at p. 228.) “It would elevate the secondary benefit to the defendant derived from the time limit over the fundamental purposes of the NGI provisions, to ensure that needed treatment is provided and the public protected.” (Lara, at p. 228.)
Turning to the issue of prejudice, the court explained that where one or more of the section 1026.5 time limits have not been met, “the due process question must be evaluated on a case-by-case basis.” (Lara, supra, 48 Cal.4th at p. 232.) “ ‘[D]ue process in this context requires a flexible balancing of “any prejudicial effect of the delay against the justification for the delay.” ’ ” (Lara, at p. 232, citation omitted.) “The degree of prejudice will depend on a variety of factors, including how late the filing is, the amount of time reasonably required to prepare for trial and mount a defense, and whether action by the court or defense counsel contributed to the delay.” (Lara, at p. 232.)
The court held that the defendant in Lara “did not suffer prejudice in the primary sense of the term” because “[t]he fairness of his eventual trial was not affected by the due process violation.” (Lara, supra, 48 Cal.4th at p. 233.) For that reason, he was not entitled to dismissal of the petition. (Lara, at p. 236.) But he “did suffer prejudice in one sense, ” because “[t]he prosecution’s unexcused late filing forced him to choose between going to trial unprepared or being held without trial beyond his release date.” (Lara, at p. 233.) The remedy for that prejudice, the court held, would have been release pending trial, subject to LPS proceedings. (Lara, at p. 233.) The defendant was no longer eligible for release, however. “The court retained jurisdiction to try the petition. The trial, while untimely, was ultimately fair. Therefore, violation of the statutory timelines does not warrant reversal.” (Lara, at p. 236.)
The facts of this case compel the same conclusion. Here, as in Lara, the petition was filed before the expiration of defendant’s commitment term. The trial court thus retained jurisdiction to try the petition. (Lara, supra, 48 Cal.4th at p. 236.) Defendant does not contend he had insufficient time to prepare for trial or that his eventual trial was unfair.
Like the defendant in Lara, the only prejudice defendant claims is that resulting from his continued confinement while awaiting trial. But here, unlike in Lara, defendant did not suffer actual prejudice. He was not forced by the unexcused late filing “to choose between going to trial unprepared or being held without trial beyond his release date.” (Lara, supra, 48 Cal.4th at p. 233.) As he acknowledges, he is subject to two separate commitment orders, one of which did not expire until August 2009-six months after the instant matter was tried. Thus, even had he sought and obtained “release” on September 16, 2008 in the instant case, he would nonetheless have remained at Napa State Hospital under the commitment order in the other case. We conclude that no actual prejudice resulted from the failure to comply with the statutory timelines, defendant’s due process rights were not violated, and he is not entitled to reversal. (Lara, at p. 223.)
B. Jury Trial
Defendant contends the trial court “illegally” failed to grant him a jury trial. He asserts that section 1026.5 not only provides that right but also “specifically” gives him “all the state and federal constitutional rights available to a defendant in a criminal case.” Noting that “a criminal conviction must be reversed if the ‘defendant’s guilt was determined by a court trial without there having been an express waiver by the defendant of his right to a jury trial, ’ ” he contends he is entitled to reversal, since the record contains no evidence that he personally waived that right. We disagree.
Section 1026.5, subdivision (b)(4) provides that trial on a petition for extended commitment “shall be by jury unless waived by both the person and the prosecuting attorney.” (§ 1026.5, subd. (b)(4).) Subdivision (b)(7) provides that “[t]he person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings.” (§ 1026.5, subd. (b)(7).) Notwithstanding this broad language, it has been held that section 1026.5 does not mandate the application of all constitutional protections in commitment extension proceedings. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 488 (Williams).) “It does not extend the protection of constitutional provisions which bear no relevant relationship to the proceedings.” (Ibid.) The reason is that a commitment extension trial is “essentially civil in nature.” (Williams, at p. 485.) Commitment is “in lieu of criminal punishment....” (Ibid.) “An individual subject to recommitment proceedings ‘is not threatened with penal treatment. He has had his criminal trial and been adjudicated not guilty by reason of insanity. The only remaining issue is how long he must remain committed to a state hospital for treatment.’ ” (Ibid.) Applying this analysis, courts have held that ex post facto principles do not apply in section 1026.5 recommitment proceedings. (People v. Juarez (1986) 184 Cal.App.3d 570, 575.) The prohibition against double jeopardy is similarly inapplicable, as is the requirement that jury trial be personally waived. (Williams, at p. 487; People v. Powell (2004) 114 Cal.App.4th 1153 (Powell).)
In Powell, the court considered whether section 1026.5, subdivision (b) required the personalwaiver of a jury trial in an NGI recommitment proceeding. The committed person in Powell, like defendant here, relied on section 1026.5, subdivision (b)(7) to argue that the right to a jury trial, as in a criminal case, must be personally waived. (Powell, supra, 114 Cal.App.4th at p. 1157.) Analogizing to the right to jury trial in mentally disordered offender (MDO) proceedings, the court rejected that argument. (Powell, at pp. 1158-1159.) “An extension trial, like an MDO proceeding, is civil in nature. The Legislature, in enacting section 1026.5, did not say that the jury waiver must be ‘personally’ made by the NGI committee.” (Powell, at p. 1159; accord, People v. Givan (2007) 156 Cal.App.4th 405, 409 (Givan) [“Conspicuous by omission from section 1026.5 is the Legislature’s imposition of any requirement of a personal appearance to waive one’s rights”].) “Because the jury does not impose criminal punishment and has no power to determine the extent to which the person will be deprived of his or her liberty, a waiver of jury trial through counsel does not violate the person’s constitutional right to jury trial. [Citations.]” (Powell, at p. 1159.)
Defendant acknowledges that Powell is contrary authority, but claims its analysis is “seriously flawed.” We disagree. In our view, the Powell court correctly analyzed the statute and the relevant case law. We agree that the right to a jury trial in an NGI recommitment proceeding need not be personally waived by the committed person but can instead be waived by counsel. As the Powell court recognized, interpreting the statute as requiring one who has been committed as “criminally insane” to make that tactical decision does not make sense. “An insane person who is ‘a substantial danger of physical harm to others’... should not be able to veto the informed tactical decision of counsel. 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.” (Powell, supra, 114 Cal.App.4th at p. 1158; accord, Givan, supra, 156 Cal.App.4th at p. 410; see People v. Haynie (2004) 116 Cal.App.4th 1224, 1230 [“Common sense dictates that an insane person... should not be able to veto the informed tactical decision of counsel to waive jury”].)
Defendant argues that “the Haynie court’s analysis casts significant doubt on the analysis used by the Powell court in determining which constitutional rights are included within the statutory language and which rights are not.” To the extent he contends Powell was wrongly decided, we disagree. Defendant takes issue with the Williams court’s statement, quoted in Powell, that section 1026.5, subdivision (b)(7) “ ‘merely codifies the application of constitutional protections... mandated by judicial decision.’ ” (Powell, supra, 114 Cal.App.4th at p. 1158, quoting Williams, supra, 233 Cal.App.3d at p. 488.) The Haynie court disagreed with that statement. (Haynie, supra, 116 Cal.App.4th at p. 1230.) But that does not call the Powell court’s reasoning into question. The Haynie court expressly“agree[d] with Williams that the statutory language of section 1026.5 does not extend the ‘protection of constitutional provisions which bear no relevant relationship to the proceedings.’ ” (Haynie, at p. 1229, quoting Williams, at p. 488.) Applying that “relevant relationship” analysis, the Haynie court went on to hold that “[t]he right to not be compelled to testify against oneself is clearly and relevantly implicated when a person is called by the state to testify in a proceeding to recommit him or her....” (Haynie, at p. 1230.) We read Powell as having applied the same “relevant relationship” test to reach its conclusion that the right to personally waive a jury trial is not relevantly implicated in recommitment proceedings because persons adjudged criminally insane “should not be able to veto the informed tactical decision of counsel.” (Powell, supra, 114 Cal.App.4th at p. 1158.)
Defendant argues that Powell is factually distinguishable because in that case, the defendant’s attorney “made a clear waiver” at a hearing in the defendant’s presence, and the defendant did not object. Here, defendant argues, the record “contains no evidence that [he] waived his right to a jury trial or, even, that his trial attorney waived that right.” We disagree. Here, the record unambiguously reflects a waiver by defendant’s counsel of his right to a jury trial. At the December 12, 2008 trial setting conference, defendant’s counsel informed the court that “[w]e would like to set this matter for court trial.” (Italics added.) Two months later, at the hearing on defendant’s oral motion to dismiss the petition “based on the timing of the trial, ” counsel told the court that part of the delay in bringing the matter to trial was attributable to her need for “more time to continue to review those records to prepare for trial, and set the court trial.” (Italics added.) We reject defendant’s contention that the record “contains no evidence” of waiver by him or by his counsel.
The fact that defendant was not present at either hearing does not invalidate the waiver. (Givan, supra, 156 Cal.App.4th at p. 409.) We note that defendant was present on February 23 and made no objection to the court’s statements that “[t]his matter has been set today for court trial on the petition that has been filed by the People” and “[w]e will go forward with the court trial.” (Italics added.)
Defendant argues that Powell is factually distinguishable because “the defendant’s level of insanity and current mental problems were far greater than those of [defendant].” There was “a clear record” in Powell, he argues, that the defendant could not intelligently invoke or waive the right to a jury trial, particularly since “the defendant in Powell sought release in order to kill people.” We think this is a distinction without a difference. Like the committed person in Powell, defendant has been adjudged sufficiently mentally ill to be found not guilty by reason of insanity. In such cases, the tactical decision to seek or waive a jury trial is best left to trial counsel. (Powell, supra, 114 Cal.App.4th at p. 1158.)
We conclude that the trial court did not err in conducting a bench trial on the petition after defendant, through his trial counsel, waived his right to a jury trial.
III. Disposition
The order extending defendant’s commitment to September 16, 2010, is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J.McAdams, J.